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https://www.courtlistener.com/api/rest/v3/opinions/4260884/

Fourth Court of Appeals San Antonio, Texas March 29, 2018 No. 04-17-00799-CR Derri Raye LUKASIK, Appellant v. The STATE of Texas, Appellee From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2016CR9695 Honorable Melisa Skinner, Judge Presiding ORDER Appellant’s brief was due March 23, 2018. On March 27, 2018, appellant filed a motion for extension of time asking for an extension of forty-five days from the date the motion was filed. After review, we GRANT IN PART AND DENY IN PART appellant’s motion. We GRANT appellant an extension of thirty days from the date the motion was filed, but DENY appellant’s request for an extension of forty-five days from the date the motion was filed. We therefore ORDER appellant to file the brief in this court on or before April 26, 2018. _________________________________ Marialyn Barnard, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 29th day of March, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court

01-03-2023

04-04-2018

https://www.courtlistener.com/api/rest/v3/opinions/4045343/

COURT OF APPEALS TENTH DISTRICT OF TEXAS July 9, 2015 No. 10-14-00217-CR HOBART T. RICHARDSON, JR. v. THE STATE OF TEXAS From the 54[th] District Court McLennan County, Texas Trial Court No. 2013-949-C2 -------------------------------------------------------------------------------- JUDGMENT This Court has reviewed the briefs of the parties and the record as relevant to the issue raised in this proceeding and finds that reversible error is presented. Accordingly, the trial court's judgment as to Court I signed on July 17, 2014, is reversed and remanded to the trial court for further proceedings. A copy of this judgment will be certified by the Clerk of this Court and delivered to the trial court clerk for enforcement. PER CURIAM SHARRI ROESSLER, CLERK By: ___________________________ Nita Whitener, Deputy Clerk

01-03-2023

09-28-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426553/

This is an original action seeking to mandate the respondent judge and court to comply with the mandate of this court in Cause No. 26651, Hutchinson's Estate et al. v. Arnt et al. (1936),210 Ind. 509, 1 N.E.2d 585, 4 N.E.2d 202. The relief prayed is that they be mandated to disregard and hold for naught the special findings of facts *Page 244 and conclusions of law and judgment of the LaPorte Superior Court in the case referred to, and proceed with reasonable diligence to determine which of the chattels in the possession of Emma Hutchinson at the time of her death were her individual property and which were a part of the estate of William B. Hutchinson, deceased, within the meaning of the former opinions of this court. The respondents appeared and waived an alternative writ. After the opinions in the case referred to were certified to the trial court, the relators filed in the LaPorte Superior Court a verified petition and report accounting for "all of the remainder of the so-called fund, consisting of securities, intangibles and money in bank which was in possession of Emma Hutchinson at the time of her death," and asking authority to turn the same over to the children of William B. Hutchinson, Sr. The petition and report further listed all tangible personal property which was in the possession of Emma Hutchinson at the time of her death, in two schedules; the first, chattels in the home of Emma Hutchinson when she died, which she had purchased, made, or acquired, for comfort, enjoyment, and consumption, and not for investment, profit, or income-producing purposes, and not for use as household equipment, and which were strictly her personal property; and, the second, tangible personal property in the possession of Emma Hutchinson, which was part of her husband's estate, including all household furniture and equipment, regardless of when purchased. This petition and report seems to conform to the mandate of this court. Amy Hutchinson Arnt and Grace Hutchinson Hitchcock filed exceptions. The court ordered a hearing in order to pass upon the petition and report, and to allocate chattels in accordance with the mandate of this court. Thereupon the relators offered to prove that the items listed as personal to Emma Hutchinson *Page 245 were not part of the household equipment, but were acquired by her for her comfort, enjoyment, and consumption, and not for investment, profit, or income-producing purposes. The court refused to hear evidence concerning certain articles which were included in the findings of fact and conclusions of law in the trial of the case above referred to, and, by the response, says that "respondent conceived the law to be that inasmuch as this court in the opinions in the cause of Hutchinson v. Arnt aforesaid refused to grant a new trial upon the question, among others, of the true ownership of said chattels and directed the trial court to make its order as to such ownership that the trial court was bound by the previous findings of fact." In the principal case the judgment was reversed. In that case the administratrix de bonis non of the estate of William B. Hutchinson was seeking to recover from the estate of Emma Hutchinson, and the cause was tried upon the theory that Emma Hutchinson had converted the property of her husband's estate, and that, as to the household goods and equipment, she had comingled her own property with her husband's estate. Property in the home at the death of William B. Hutchinson was treated as property of his estate, and all household equipment in the home purchased after his death was treated as Emma Hutchinson's property. But, because of the comingling, the court found that all property in the home should be treated as property of the William B. Hutchinson estate, excepting only that which the administrators of the estate of Emma Hutchinson could establish to have been purchased after the death of William B. Hutchinson. By the opinions of this court, it was held that the case was tried upon the wrong theory, and that the estate of William B. Hutchinson was entitled to recover nothing; that there was no conversion; that, under the will of William B. Hutchinson, Emma Hutchinson was entitled to the use of the household equipment *Page 246 during her lifetime, and that any replacements or equipment purchased and placed in the household as part of the household equipment should be treated as part of the corpus of the estate of William B. Hutchinson and should revert to the remaindermen; that a distinction should be made in respect to the strictly person effects of Mrs. Hutchinson. In the trial of the principal case no such distinctions were made, and no effort was made to determine the rights of the parties and the ownership of the property upon the basis of any such classification. The judgment was reversed in its entirety, but since the facts fully appeared, and all parties in interest were before the court in the trial, this court declared the rights of the parties in the premises and sought by mandate to effect a correct distribution of the property involved. It appeared then, and appears now, that but one question of disputed fact might arise, a question as to the proper allocation of the chattels in the home on the basis of the classification established by the opinions. That is a new question of fact that has not been determined. It arises, not in an action by the administratrix de bonis non of the estate of William B. Hutchinson, but upon the report of the administrators of the estate of Emma Hutchinson, and the controversy is between Mrs. Hutchinson's estate and the remaindermen, and must be determined by the court upon original evidence, upon the issue made by the report and the exceptions. It does not follow, however, that a writ of mandate should issue. It is a new action upon issues not included in the former action. If evidence offered is rejected or refused upon an erroneous conception of the law, it is error, and the remedy is by appeal. The petition for mandate is denied. *Page 247

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426331/

The appellee, Alva Henry, administrator of the estate of LeRoy Robbins, deceased, instituted this action against the appellant, Inter State Motor Freight System, the appellees, Virgil F. Cottongim, and Walter R. O'Neal, and one Leon Cottongim, to recover damages resulting to the widow and children of the decedent, LeRoy Robbins, because of his alleged wrongful death. Robbins was killed on October 2, 1936, while riding as a guest in an automobile being operated by one Fred Evans along Indiana State Highway No. 67. Such automobile, at about 11:30 p.m., on such date, ran into the rear of a trailer, which, with its attached motor truck, was parked upon the paved portion of such highway, and the fatal injuries of Robbins were received in such collision. *Page 184 The complaint alleged, in substance, that on the 2nd day of October, 1936, the defendants, Inter State Motor Freight System, Virgil F. Cottongim, Leon Cottongim, and Walter R. O'Neal, controlled and operated a certain motor vehicle and trailer consisting of a truck or tractor to which the trailer was attached, and that said motor vehicle and trailer were being operated and driven upon Indiana State Highway No. 67, in a southwesterly direction, by the defendants between the City of Portland, Jay County, Indiana, and the City of Muncie, Delaware County, Indiana; that said defendants stopped said motor vehicle and trailer on the paved portion of said highway about the hour of 4:30 p.m. until about 7:00 a.m. of October 3, 1936, and that said defendants carelessly and negligently permitted said motor vehicle and said trailer to be and remain on said paved portion of said highway from sundown until the hour of midnight on said 2nd day of October, 1936, without displaying thereon any lights or danger signals of any kind to warn travelers on said highway of said danger and obstruction, and said defendants carelessly and negligently failed to place any flares of any kind to the rear of said obstruction on said highway as required by the laws of the State of Indiana, and said defendants carelessly and negligently failed and neglected to station any person or persons to the rear of said obstruction where travelers on said highway could be warned of the danger of said obstruction in time to prevent accident or injury. The complaint further alleged, in substance, that on the 2nd day of October, 1936, plaintiff's decedent was riding as a guest in an automobile that was controlled and operated by one Fred Evans, and that said decedent was seated in the rear seat in such automobile and on the left side, and had no management or control *Page 185 of its operation; that the automobile was being driven in a southwesterly direction on Indiana State Highway No. 67 in a careful manner and at a moderate rate of speed of 40 miles per hour, and that the automobile driven by Evans approached the motor vehicle and trailer that were stopped on such highway without any notice or knowledge of Evans and the other occupants of such automobile of said obstruction being so located, and while said automobile was being so operated it ran into and against the rear of such trailer with such force that plaintiff's decedent was fatally injured and almost instantly died. It is further alleged that the fatal injury and death of plaintiff's decedent was caused solely by reason of the careless and negligent act of the defendants in permitting said motor truck and trailer to be and remain standing on such paved highway without displaying any lights on the rear of such trailer and without placing any flares or signals at the rear of said trailer, and without using ordinary care in placing some person or persons at the rear of said trailer at a distance where travelers on said highway could be warned of said danger and to plaintiff's damage in the sum of $10,000. After plaintiff's action was instituted it was dismissed as against Leon Cottongim, but issues were completed by the plaintiff and the remaining defendants and the cause was submitted to a jury of the Delaware Circuit Court for trial and a verdict was returned on January 4, 1939. This verdict was in favor of the appellee, Alva Henry, administrator of the estate of LeRoy Robbins, deceased, and against the appellant, Inter State Motor Freight System, in the sum of $5,000. The verdict was silent as to the defendants and appellees, Virgil F. Cottongim and Walter R. O'Neal. The appellant is relying for reversal upon the following *Page 186 alleged errors which it contends the trial court committed, to wit: (1) Error in overruling its motion to make appellee's amended complaint more specific. (2) Error in overruling its motion to strike out parts of appellee's amended complaint. (3) Error in overruling its demurrer to appellee's amended complaint. (4) Error in overruling its motion for judgment in its favor notwithstanding the verdict of the jury. (5) Error in overruling its motion for a new trial. (6) Error in overruling its motion for a venire de novo. The record shows that after the filing of appellant's motion to make the amended complaint of the appellee, Alva Henry, administrator of the estate of LeRoy Robbins, deceased, more specific, such appellee filed a second amended complaint and issues were closed and the cause tried thereon. The motion to make more specific was not refiled thereto. This second amended complaint took the place of the amended complaint to which appellant's motion to make more specific was addressed. Where an amended complaint, complete in itself, is filed, it supersedes the prior complaint and no rulings made upon motions or demurrers addressed to the prior complaint are available 1. as error on appeal. Kirkpatrick v. Holman (1865), 25 Ind. 293; Humphrey v. City Nat. Bank (1921),190 Ind. 293, 130 N.E. 273; Slifer v. Williard (1922),78 Ind. App. 88, 131 N.E. 87; Watson v. Gary Street Railway Co. (1938),104 Ind. App. 656, 12 N.E.2d 976; Williams v. Williams,Admr. (1940), 217 Ind. 581, 588, 29 N.E.2d 557. Appellant filed a motion to strike out parts of the second amended complaint of appellee. This motion *Page 187 was overruled by the trial court. It is settled law that 2. error on appeal cannot be predicated on the action of the trial court in overruling a motion to strike out a part or all of a pleading. Lindley v. Sink (1940), 218 Ind. 1,30 N.E.2d 456; Dickerson v. Dickerson (1937),104 Ind. App. 686, 689, 10 N.E.2d 424, 11 N.E.2d 514;London Lanc. I. Co. v. Comm. S. L. Assn. (1936),102 Ind. App. 665, 670, 4 N.E.2d 688; Rooker v.Fidelity Trust Co. (1921), 191 Ind. 141, 159, 131 N.E. 769. The appellant contends that its demurrer to appellee's second amended complaint should have been sustained and that the complaint was insufficient because it failed to show that 3. the negligent acts of defendants were the proximate cause of the damage complained of, and because it affirmatively showed that the negligence of Fred Evans was the proximate cause of such damage. This contention is wholly without merit. The allegations of the complaint heretofore set forth fully show that appellant's contentions are not justified. After the return of the verdict, the appellant filed a motion for a judgment in its favor notwithstanding the verdict. Attached to such motion was a memorandum which disclosed that the claimed basis therefor was the fact that the jury returned a verdict against the appellant alone and had made no mention of its codefendants, Virgil F. Cottongim and Walter R. O'Neal. Such motion further disclosed that appellant claimed that the evidence and pleadings established that the theory of the action was that a relationship of master and servant existed between the defendants, and that a verdict against appellant and exonerating its codefendants was self-contradictory. It is well established by a number of decisions in *Page 188 this State that where an action proceeds upon the theory that the relation of master and servant exists between the 4, 5. defendants, and that the master is liable solely because of the negligent acts of the servant, that a verdict in favor of the servant and holding the master guilty of negligence relieves not only the servant but the master from liability.Zainey v. Rieman (1926), 84 Ind. App. 480, 151 N.E. 625;Holbrook v. Nolan (1938), 105 Ind. App. 75, 10 N.E.2d 744;United Transportation Co. v. Jefferies (1937), 211 Ind. 226,5 N.E.2d 524. These holdings are in accordance with the weight of authority in other states. Where a master and servant are joined as parties defendant in an action for injuries inflicted by the servant, a verdict which exonerates the servant from liability for injuries caused solely by the alleged negligence of the servant requires also the exoneration of the master. 35 Am. Jur., Master and Servant, § 534, p. 962; note in 78 A.L.R. 365. But a verdict in favor of one servant does not bar a recovery against the master, where the evidence shows that the negligence of another servant who is not joined as a party, or who 6, 7. if joined as a party is not exonerated by the verdict, has caused the injury. Nor does the verdict in favor of a joined servant bar a recovery against the master where the latter has himself been guilty of acts on which, independently of the acts of the servant, liability may be predicated. Holbrook v. Nolan (1938), 105 Ind. App. 75, 10 N.E.2d 744; LakeErie, etc., R. Co. v. Reed (1913), 57 Ind. App. 65, 103 N.E. 127; Mims v. Bennett (1931), 160 S.C. 39, 158 S.E. 124, 78 A.L.R. 360, and anno. on p. 365. The failure of the jury to render a verdict against the joined defendants, Virgil F. Cottongim and Walter *Page 189 R. O'Neal, was equivalent to a verdict in their favor. 8, 9. Holbrook v. Nolan (1938), 105 Ind. App. 75, 78, 10 N.E.2d 744; Westfield Gas Milling Co. v.Abernathy (1893), 8 Ind. App. 73, 35 N.E. 399. But appellee, Alva Henry, administrator of the estate of LeRoy Robbins, deceased, contends that no question is presented for determination by this court by appellant's motion for a judgment in its favor notwithstanding the verdict. He asserts that a motion for judgment notwithstanding the verdict is unknown to the practice in the State of Indiana, and that here the court cannot pass upon the motion without considering the evidence and that the evidence is not in the record. It should be noted that there is no allegation in the complaint of the appellee Henry which shows the relationship of master and servant, employer and employee, or principal and agent, between the appellant and the appellees who were joined with appellant as codefendants. The complaint proceeded upon the theory that the defendants acted as joint tort-feasors. Joint tort-feasors are jointly and severally liable for their illegal acts and all or any number may be sued in one action, and a verdict may be returned and a judgment rendered against a part of those sued. Jackson v. Record,Admr. (1937), 211 Ind. 141, 145, 5 N.E.2d 897; Kniola v.Kozlowski (1921), 75 Ind. App. 2, 129 N.E. 489. The appellee, to sustain his contention that a motion for a judgment notwithstanding the verdict is unknown to our practice, calls attention to the cases of Childress v. Lake Erie, etc.,R. Co. (1914), 182 Ind. 251, 105 N.E. 467, and Lake Erie, etc.,R. Co. v. Reed (1913), 57 Ind. App. 65, 103 N.E. 127, which seem to sustain his contention, while the appellant calls attention to Holbrook v. Nolan (1938), 105 Ind. App. 75, 10 *Page 190 10 N.E.2d 744, where this court reversed the action of the trial court and held that it erred in overruling an appellant's motion for judgment notwithstanding the verdict. Our statutes recognize a judgment upon the pleadings notwithstanding the verdict (§ 2-2503, Burns' 1933), and a judgment on answers to interrogatories notwithstanding the general verdict (§ 2-2023 and § 2-2502, Burns' 1933), but they also provide (§ 2-2501, Burns' 1933), "When a trial by jury has been had, and a general verdict rendered, the judgment must be in conformity to the verdict." In the case of United Transportation Co. v. Jefferies (1937), 211 Ind. 226, 5 N.E.2d 524, our Supreme Court considered an action against the owner of a taxicab and also a taxicab company for personal injuries received by a third person whose action was based upon the negligence of the taxicab driver, and proceeded upon the theory that such taxicab driver was the servant of both defendants engaged in a joint enterprise. The jury rendered a verdict against the taxicab company but in favor of the owner of the taxicab. The Supreme Court held that the verdict was contradictory and could not stand, but the question concerning the validity of the verdict was raised by assignment in appellant's motion for a new trial that the verdict was contrary to law. In the case of Holbrook v. Nolan, supra, the action was against a master and servant, and the servant alone was guilty of the negligent acts which resulted in the plaintiff's 10, 11. injury, and under the allegations of the complaint the liability of the master arose because of the doctrine ofrespondeat superior. In passing upon the motion the court was able to determine it by considering solely the pleadings *Page 191 and the verdict. It does not appear that the question was presented or determined as to whether a motion for judgment notwithstanding the verdict under the particular circumstances was proper. At common law, a judgment for the plaintiff, although a verdict had been rendered against him was known as "a judgment non obstante veredicto," and such judgment was originally enterable only in favor of the plaintiff, the remedy in favor of the defendant being confined to the arrest of the judgment. But now a motion for a judgment notwithstanding the verdict is generally available to all parties, either as a result of judicial relaxation of the common-law rule confining the remedy to the plaintiff, or as a result of express statutory provisions operating, not only as an adoption of the common-law motion by the plaintiff for judgment notwithstanding the verdict, but also as an extension of this remedy to the defendant as a substitute for the common-law motion in arrest of judgment. 30 Am. Jur., Judgments, § 52, p. 844; Encyclopedia of Pleading and Practice, Vol. 11, Judgments, pp. 912-913. In cases where motions non obstante are filed, and it is sought to obtain a judgment on the answers to interrogatories notwithstanding the general verdict, every reasonable 12-14. presumption is indulged in favor of the general verdict which will not be overthrown unless the conflict between the answers to interrogatories and the general verdict is so irreconcilable as not to be removable by any evidence legitimately admissible under the issues. And it is well established that in ruling upon such a motion the court will look only to the pleadings in the case, the general verdict and the answers to the interrogatories. New York Central R. Co. v.Solomon (1928), 88 Ind. App. 95, 161 N.E. 635; ConsolidatedStone Co. v. Summit (1899), *Page 192 152 Ind. 297, 53 N.E. 235. When a motion for a judgment on answers to interrogatories is general, the motion must be overruled if the answers are consistent with the general verdict under either paragraph of complaint. W. McMillen Son v.Hall (1915), 59 Ind. App. 545, 109 N.E. 424; Cleveland, etc.,R. Co. v. Berry (1899), 152 Ind. 607, 53 N.E. 415. Assuming, but without deciding, that a motion for a judgment notwithstanding the general verdict may be filed and is a proper proceeding when it appears from the pleadings and the 15, 16. terms of the general verdict itself that the verdict is invalid, we know of no authority in this State which authorizes a motion for a judgment notwithstanding the general verdict when the determination thereof would require a consideration of the evidence. Here we find no irreconcilable conflict between the general verdict and the issues made upon the pleadings. A general verdict finds every material and issuable fact in favor of the prevailing party. It carries to its support all intendments, inferences, and presumptions which may be drawn from any evidence admissible under the pleadings. Chicago E.I.R. Co. v. Gilbert (1935), 100 Ind. App. 365, 194 N.E. 186;Cleveland, etc., R. Co. v. Wolf, Admr. (1920), 189 Ind. 585, 592, 128 N.E. 38, 128 N.E. 695; W. McMillen Son v. Hall (1915),59 Ind. App. 545, 558, 559, 560, 109 N.E. 424. While the appellant filed a separate answer in two paragraphs and the appellees and defendants, Virgil F. Cottongim and Walter R. O'Neal, filed a separate and several answer in three paragraphs, the paragraphs of answer of the appellant and its codefendants, that were designated as affirmative paragraphs, did not confess and avoid the cause of action stated in the plaintiff's complaint. These affirmative paragraphs were but argumentative *Page 193 general denials, and no facts were stated therein except such as were provable under their answers of general denial. "Defenses in bar to all legal actions on contract, or for tort, may be separated into, first, those which deny that the plaintiff ever had the cause of action alleged, because 17-20. either no foundation therefor ever existed, or if such foundation ever existed, it had been in some manner removed before the cause of action arose therefrom; and, second, those which admit that a cause of action once existed, but show that it no longer exists." Pomeroy's Remedies, § 644, quoted in Watson's Rev. of Works' Practice Forms, Vol. 1, § 569, p. 418. An answer may be equivalent to a general denial although not in that form. An answer which does not confess and avoid the complaint, but states facts utterly inconsistent therewith, may be good as an argumentative denial. Watson's Rev. of Works' Practice Forms, Vol. 1, § 571, p. 423. The plaintiff's complaint having charged the defendants with three acts of negligence committed by them as joint tort-feasors, there was no conflict between the general verdict, which in legal effect found against the appellant and in favor of the appellees, Virgil F. Cottongim and Walter R. O'Neal, that arose from a consideration of the issues made by the pleadings. If such conflict existed it must have arisen because of evidence introduced at the trial. For reasons hereinafter set forth we are not permitted to consider the bill of exceptions containing the evidence for the purpose of determining whether error was committed. The trial court did not err in overruling appellant's motion for a judgment in its favor notwithstanding the general verdict. *Page 194 The appellant, under its assignment that the trial court erred in overruling its motion for a new trial, seeks to question the sufficiency of the evidence to sustain the verdict and also contends that the verdict is contrary to law, and that the court erred in admitting certain evidence. But appellee Henry contends that the bill of exceptions purporting to set forth the evidence is not properly a part of the record and that we cannot consider any question where a determination thereof requires an examination of such bill of exceptions. It appears from the record that appellant's motion for a new trial was filed on the 27th judicial day of the January Term, 1939, of the Delaware Circuit Court, and that it was overruled on the 11th judicial day of the April Term, 1939, thereof. At the time of the overruling of such motion for a new trial no time was granted for the tendering or filing of any bill or bills of exceptions and the bill of exceptions containing the evidence was not filed during the April Term, 1939, of such court. It was filed on the 84th judicial day of the September Term thereof. The appellant admits that this is true, but it contends that it filed a motion for avenire de novo during the April Term, 1939, of such court and that such motion was not overruled until September 22, 1939, and during the September Term, 1939, of such court, and at the time of the overruling of such motion for a venire de novo, and at the time of the rendition of the judgment on the verdict, which date was September 22, 1939, the trial court granted the appellant eighty days time within which to file bill of exceptions, and that because of such action by the trial court and the rules of this court, then effective, this was sufficient to make the bill of exceptions containing the evidence a part of the record. *Page 195 The rules of the Supreme and Appellate Court adopted June 21, 1937, and then effective, do not affect or change the statutory requirements or previous determinations of this and the 21. Supreme Court as to when time must be granted by the trial court for the tendering of a bill of exceptions containing the evidence. § 2-3105, Burns' 1933, provides that the party objecting to any decision of the trial court must except at the time the decision is made, but time may be given to reduce the exception to writing but not beyond the term, unless by special leave of the court. It further provides, "That if a motion for a new trial shall be filed in a cause in which such decision so excepted to is assigned as a reason for a new trial, such motion shall carry such decision and exception forward to the time of ruling on such motion, and time may be then given by the court within which to reduce such exception to writing." The evidence is not in the record. Time and again it has been determined by this and the Supreme Court that where a bill of exceptions containing the evidence is not tendered to the judge of the trial court for approval until after the term at which the motion for a new trial was overruled, such bill is not a part of the record, where the record does not show that any time was granted at the time of overruling the motion for a new trial for the tendering thereof. Crouse v. Crouse (1939), 106 Ind. App. 565, 21 N.E.2d 71; Harker v. Eisenhut (1937), 212 Ind. 67,6 N.E.2d 936; W.T. Rawleigh Co. v. Snider (1935), 207 Ind. 686, 691,194 N.E. 356; Bolka v. File (1931), 92 Ind. App. 454, 176 N.E. 108; Ernsting v. Stegman (1927), 86 Ind. App. 213,156 N.E. 520; Conover v. Cooper (1925), 83 Ind. App. 675,145 N.E. 779; Stremmel v. Gaar, Scott Co. (1911), 176 Ind. 600, 96 N.E. 703. *Page 196 The only ground specified in appellant's motion for a new trial that is presented by it under its Propositions, Points and Authorities, that does not require a consideration of the evidence for its determination, is alleged error of the trial court in giving to the jury of its own motion instruction No. 4. This instruction quoted the allegations of the complaint wherein the particular charges of negligence were contained and the allegations thereof which connected such charges of negligence with the fatal injuries of the plaintiff's decedent, and also quoted certain statutory provisions concerning the equipping of motor vehicles with at least two brilliant burning danger or caution signals, and the provisions of section 5, ch. 90, p. 653, of the Acts of 1933, concerning the parking of motor vehicles upon the traveled portion of any highway outside the corporate limits of any city or town, except in case of emergency, and then proceeded as follows: "And the court instructs the jury that to entitle the plaintiff to recover in this cause it must have been proven by a preponderance of the evidence that said motor vehicle and trailer was stopped on the paved portion of the highway in question, and that said motor vehicle and trailer was carelessly and negligently permitted to be and remain on said paved portion of said highway from sundown until the happening of the accident in question on the 2nd day of October, 1936, without displaying thereon any lights or danger signals of any kind to warn travelers on said highway of said danger and obstruction, and that those in charge of said motor vehicle and trailer carelessly and negligently failed to place any flares of any kind to the rear of said obstruction on said highway as required by the laws of the State of Indiana, or that the defendants carelessly and negligently failed and neglected to station any person or persons to the rear of said obstruction after said motor vehicle and trailer had been parked on said highway and prior to the happening *Page 197 of the accident in controversy in this cause, whereby travelers on said highway could be warned of the danger of said obstruction in time to prevent accident or injury." Appellant objects to the quoted portion of such instruction and says that thereby the trial court erroneously informed the jury that it was negligence to permit a motor vehicle and 22. trailer to remain on the paved portion of a highway from sundown until the happening of the accident without displaying on the motor vehicle and on the trailer any lights or danger signals of any kind to warn travelers on the highway of said danger and obstruction, when the only legal duty upon the appellant was the placing of proper warning flares on the highway itself, and that it was unnecessary to have lights upon the vehicles. If the instruction of the trial court is carefully considered we believe that it is apparent that appellant has misconstrued the same. The trial court was not defining what was negligence, but was stating the particular charges of negligence the plaintiff was required to prove by a preponderance of the evidence before he could recover. Evidently, because the plaintiff had alleged in his complaint that the defendants had negligently permitted the motor vehicle and trailer to remain upon the highway without displaying any lights or danger signals thereon, and that they had negligently failed to place any flares of any kind to the rear of said obstruction on said highway, the court, by such instruction, told the jury that the plaintiff must prove both of these charges of negligence before he could recover. This was not harmful to the appellant. Appellant filed a motion for a venire de novo and therein contends that the verdict is defective in that it *Page 198 failed to find upon all of the issues and for and 23, 24. against all of the parties. The only defect specified is that the verdict was against appellant, but no mention was made of the appellees, Cottongim and O'Neal, who were joined as codefendants with appellant. As we have heretofore pointed out, the defendants were sued as joint tort-feasors. A verdict for a plaintiff in an action against several joint tort-feasors that is silent as to one of the joint tort-feasors is not defective so as to be subject to a motion for a venire de novo.Alexandria Mining Exploring Co. v. Painter (1891),1 Ind. App. 587, 590, 28 N.E. 113; The American Express Company v.Patterson (1881), 73 Ind. 430, 436. There is no question about the certainty of the verdict as far as the appellant is concerned. Where a verdict is certain as to the complaining party he cannot avail himself of its uncertainty as to others. AmericanExpress Company v. Patterson (1881), 73 Ind. 430, 436; The H.G.Olds Wagon Works v. Coombs (1890), 124 Ind. 62, 64, 24 N.E. 589;Compton v. Jones (1878), 65 Ind. 117. No reversible error having been pointed out by appellant, the judgment is affirmed and it is so ordered. NOTE. — Reported in 38 N.E.2d 909.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426372/

The facts involved in the controversy between the parties to this cause were found specially by the court below, and so far as the facts are material for the purpose of a determination of this appeal, they are substantially as follows: "(2) That on the 26th day of June, 1926, and continuously thereafter, until the 2nd day of February, 1931, the defendant, First Trust Savings Bank of Hammond, Indiana, was a banking corporation, organized and existing under and by virtue of the laws of the State of Indiana, providing for the organization of loan and trust and savings deposit companies, and carried on a general bank and trust company business during the said period, with its said offices located in the City of Hammond, Lake County, Indiana. That on the said 2nd day of February, 1931, the said First Trust Savings Bank of Hammond, Indiana, closed its doors, and suspended business, and on said date, was placed in the hands of the banking department of the State of Indiana; that . . . the said Harry E. Folk is now the duly appointed, qualified and acting Receiver of the said First Trust Savings Bank of Hammond, Indiana." On June 26, 1926, Approved Investment Company, a corporation, executed and delivered to the First Trust Savings Bank of Hammond, Indiana (which bank will hereinafter be referred to as "bank"), its certain mortgage bonds in the aggregate principal sum of thirty-five thousand ($35,000.00) dollars, made payable to the order of said bank or bearer, each of said bonds to become due June 26, 1931. Interest coupons were attached to each of said bonds. On the same date, June 26, 1926, said Approved Investment Company executed and delivered to said bank *Page 572 a mortgage on Lots Four (4) and Five (5) in Block Six (6) of Towle and Young's Addition to the City of Hammond (which real estate shall hereinafter be referred to as plot one (1) to secure the payment of said bonds. This mortgage was recorded in the office of the Recorder of Lake County, Indiana on July 12, 1926. Upon the delivery of said mortgage bonds and mortgage to the bank, the bank "paid" to said Approved Investment Company the sum of thirty-five thousand ($35,000.00) dollars. Subsequent to June 26, 1926, and from time to time prior to November 1, 1929, the bank sold $22,000 (principal) of said bonds to appellant Clara Kaufmann, and $11,000.00 (Principal) to various persons, whom we shall hereinafter refer to as the Thum group. The bank also sold $2,000.00 (principal) of said mortgage bonds to Frank S. Betz, which bonds were thereafter paid off by the Approved Investment Company, and hence are not involved in this litigation. Appellant and the Thum group were the owners of said bonds in the aggregate sum of $33,000.00 at the time of the trial court's decision. Carl Kaufmann, husband of appellant, Clara Kaufmann, had on a number of occasions prior to September 1, 1929, acted for and on behalf of his wife with respect to said $22,000.00 bonds purchased by her and "was the agent of said Clara Kaufmann with authority to act for said Clara Kaufmann concerning said investment." During the year 1929 and subsequent thereto, until February 2, 1931, Carl Kaufmann was a director of said bank and a member of its finance committee. The court found, "(9) That during the year of 1929, the principal stockholder of the defendant, Approved Investment Company, a corporation, was a certain Eben N. Bunnell; that said Eben N. Bunnell was President of said Approved Investment Company during the *Page 573 year 1929; that the said Eben N. Bunnell was engaged in business during the year 1929, and for a number of years prior thereto, in the Cities of Hammond, East Chicago and Gary, Indiana, in the retail automobile business, and operated and conducted in each of said cities, an automobile sales room and repair garage, as a dealer in the automobiles of the Ford Motor Company; that prior to the first day of December, 1929, the place of business of the said Eben N. Bunnell in Hammond, Indiana, was located in a building in the said City of Hammond, on Hohman Street, North of a point where said Hohman Street is intersected by multiple Railroad right-of-ways; (which premises will herein be referred to as plot two [2]) that during the year 1929 and for a number of years prior thereto, the said Eben N. Bunnell had transacted numerous financial matters with the said First Trust Savings Bank of Hammond, Indiana, with respect to his various business enterprises, and prior to November 1st, 1929, the said Eben N. Bunnell, and certain corporations in which he was the largest stockholder, were indebted to the First Trust Savings Bank of Hammond, Indiana, for considerable and substantial sums of money; that during the year 1929, certain agents or representatives of the Ford Motor Company, threatened to cancel the agency contract then existing between the said Eben N. Bunnell and the said Ford Motor Company, unless the sales rooms, offices and garage of the said Eben N. Bunnell, within the City of Hammond, Indiana, was moved to a more desirable location within better equipped, and larger quarters; that the said Eben N. Bunnell informed the officers of the First Trust Savings Bank of Hammond, Indiana, of the threats and demands of the said representatives and agents of the Ford Motor Company, in the spring of the year, 1929, and requesting the said bank to consider financing the erection of a building upon . . . (plot two [2])." "(14) That on the first day of September, 1929, the defendant, Approved Investment Company, made a written application for a mortgage loan of One Hundred Twenty-five Thousand ($125,000.00) Dollars, of said First Trust Savings Bank of Hammond, Indiana, which application was discussed and considered at two meetings of the *Page 574 Finance Committee of said First Trust Savings Bank of which the cross-complainant, Carl Kaufmann, was a member, and present; that at the second of said meetings, in the presence of the cross-complainant, Carl Kaufmann, the said application of the said Approved Investment Company, for a mortgage loan of the sum of One Hundred Twenty-five Thousand ($125,000.00) Dollars, was approved, the funds so loaned, to be used for the purpose of retiring and paying the then outstanding mortgage of the Approved Investment Company, dated June 26th, 1926, in the principal sum of Thirty-five Thousand ($35,000.00) Dollars, and for the purpose of erecting a two (2) story concrete automobile sales office and garage building upon (plot two [2]), which funds so to be loaned to the said Approved Investment Company, were to be disbursed and paid by the said First Trust Savings Bank of Hammond, Indiana, as the work upon the said building so to be erected, progressed, upon presentation of the certificates of L. Cosby Bernard, the architect for said building; and that on the 20th day of September, 1929, the Biggs Construction Company, and Joseph H. Salyer, contractors, commenced the erection of a two-story concrete automobile sales office and garage building, upon (plot two [2]), pursuant to articles of agreement, dated September 20th, 1929, and September 25th, 1929, respectively, providing for the erection of said building, at a cost of: Ninety Thousand no/100 ($90,000) Dollars." On the first day of November, 1929, Approved Investment Company made, executed and delivered to the bank mortgage bonds in the aggregate sum of one hundred twenty-five thousand ($125,000.00) dollars, each dated November 1, 1929, payable to the order of said bank or bearer payable in series, the first series to become payable two years after date (Nov. 1, 1931, five months after the maturity date of the 1926 bond issue). To each of these bonds interest coupons were attached, all of which interest coupons were made payable "to the order of bearer." On the same date, Nov. 1, 1929, Approved Investment *Page 575 Company executed and delivered to the bank its mortgage, dated Nov. 1, 1929, covering plots one (1) and two (2), which mortgage recited, among other things, as follows: "The mortgagor further represents that the funds hereby secured, are to be used for the purpose of refunding and paying the indebtedness secured by . . . (the) mortgages and encumbrances now against said real estate and premises herein described and to pay for additional improvements thereon . . ." That mortgage was recorded in the office of the Recorder of Lake County on November 9, 1929. The court found further: "(17) That (said bank) became the owner of the said mortgage bonds so delivered to it, by depositing to the credit of the said Approved Investment Company, in a commercial account in said bank, in a certain account known as the: `Approved Investment Company Building Account,' the aggregate sum of One Hundred Twenty-Five Thousand ($125,000.00) Dollars, as follows, to-wit: a credit to said account on the 14th day of November, 1929, of the sum of Twenty-five Thousand ($25,000.00) Dollars, a credit to said account on the 16th day of November, 1929, of the sum of Fifty Thousand ($50,000.00) Dollars, a credit to said account, on the 7th day of December, 1929, of the sum of Twenty-five Thousand ($25,000.00) Dollars, and a credit to said account on the 13th day of January, 1930, of the sum of Twenty-Five Thousand ($25,000.00) Dollars; that at the various times that credit was given to the said Approved Investment Company, by the said First Trust Savings Bank, the said bank charged a corresponding amount equal to the said respective credits to an asset account of said bank, known as the `Real Estate Mortgage Loans Account.' "(18) That sometime during the month of November, 1929, the said mortgage bonds of the Approved Investment Company, dated November 1st, 1929, in the aggregate principal sum of One Hundred Twenty-five Thousand ($125,000.00) Dollars, were transferred to the bond department of the *Page 576 said First Trust Savings Bank of Hammond, Indiana, for sale to its customers; and that on the 16th day of November, 1929, and continuously thereafter, to and including the 24th day of January, 1931, the said First Trust Savings Bank of Hammond, Indiana, sold the said mortgage bonds of the Approved Investment Company, dated November 1st, 1929, to its customers, for cash, . . ." Of said 1929 bond issue, $90,800 in aggregate principal amount were owned at the time of the trial court's decision by a group of persons whom we shall herein refer to as the Millies group. On the first day of November, 1929, the amount due from Approved Investment Company, by reason of the mortgage bonds and mortgage dated June 26, 1926, together with interest thereon to said date, was $37,105.47. On November 15, 1929, a "check" was drawn against said Approved Investment Company Building Account (by the secretary-treasurer of said bank) for $37,105.47, the amount due on November 1, 1929, on the 1926 bonds, and this amount was credited in an account known as "Approved Investment Coupon Account." Checks in the aggregate sum $99,118.77 were drawn against said Approved Investment Building Account for various purposes connected with said building project, including checks in the total sum of $90,468.38 issued to contractors, material men and architects. The court found further: "(25) That the account known as the: `Approved Investment Company Coupon Account,' was an account in said bank, used by said bank to credit all payments made by the Approved Investment Company, upon mortgages of the said Approved Investment Company, either for interest thereon, or the principal sums thereof, and to debit any payments made by said bank to the holders of bonds of the Approved Investment Company, which had *Page 577 been sold by said bank, to said holders, either for interest due upon said bonds, as evidenced by interest coupons, or for the payment of the principal sums due upon said bonds; . . ." "(27) That on the 16th day of November, 1929, the said First Trust Savings Bank of Hammond, Indiana, by means of a debit and credit slip, withdrew from the said account, known as the `Approved Investment Company Coupon Account,' the sum of $35,000.00, for which sum the said account was debited; that said sum of $35,000.00 was transferred to the cash account of the said First Trust Savings Bank of Hammond, Indiana, and with the sum of $35,000.00, the said First Trust Savings Bank of Hammond, Indiana, purchased from itself, mortgage bonds of the Approved Investment Company, dated November 1st, 1929, in the aggregate principal sum of $35,000.00, and by a corresponding entry, credited the asset account of said bank, known as the `Real Estate Loan Account,' and at the same time, removed bonds in the aggregate principal sum of $35,000.00 of the said issue, dated November 1st, 1929, from among the real estate bonds owned by said bank, and placed them in a separate envelope, which envelope was marked `Approved Investment Company Escrow Bonds,' which said envelope was placed with other bonds and securities held for safe-keeping for its customers, in that part of the vault or safe, in said bank, where `carte' or `transit' items were kept." "(54) That on the 2nd day of February, 1931, (when the bank closed) there remained in the possession of the said First Trust Savings Bank of Hammond, Indiana, the envelope containing mortgage bonds of the Approved Investment Company, dated November 1st, 1929, in the principal sum of $33,000.00, which envelope was marked: `Approved Investment Company Escrow Bonds;' that said bonds have remained in the possession and custody of the Receivers of said First Trust Savings Bank continuously thereafter, until they were delivered into evidence in the case; that Harry E. Folk, as Receiver of the First Trust Savings Bank of Hammond, Indiana, makes no claim of ownership or interest in and to the said bonds, in the principal sum of $33,000.00, dated November 1st, 1929." *Page 578 "(30) That all payments made by the Approved Investment Company, upon its mortgage dated June 26th, 1926, were paid to the First Trust Savings Bank of Hammond, Indiana; . . . that the cross-complainants, Clara Kaufmann and others, the same being the holders and owners of mortgage bonds dated June 26th, 1926, never presented interest coupons due upon the mortgage bonds dated June 26th, 1926, for payment, to the said Approved Investment Company; that the cross-complainants, Clara Kaufmann et al., the same being the holders and owners of mortgage bonds dated June 26th, 1926, presented the interest coupons due upon the respective mortgage bonds held and owned by them, when the same became due, to the First Trust Savings Bank of Hammond, Indiana, for payment, that all payments made upon the mortgage dated June 26th, 1926, at any time, to the holders and owners of the mortgage bonds of said issue, were paid to said holders by the First Trust Savings Bank of Hammond, Indiana; and that the cross-complainants, Clara Kaufmann et al., the same being the holders and owners of mortgage bonds, dated June 26th, 1926, at all times prior to the 2nd day of February, 1931, looked to for, and depended upon the said First Trust Savings Bank of Hammond, Indiana, to collect from the said Approved Investment Company the mortgage indebtedness due upon their respective mortgage bonds, dated June 26th, 1926. "(31) That the cross-complainants, Carl Kaufmann and Clara Kaufmann, had prior to the 1st day of November, 1929, notice and knowledge of the purpose and intention of the said First Trust Savings Bank of Hammond, Indiana, to pay and retire the mortgage bonds of the said Approved Investment Company, dated June 26th, 1926, so held and owned at said time, by the said Clara Kaufmann, either by a payment of said mortgage bonds, in cash, out of the proceeds of the loan dated November 1st, 1929, or by an exchange of mortgage bonds, dated November 1st, 1929, of an equal amount, for mortgage bonds dated June 26th, 1926. "(32) That during the months of November and December, 1929, W. Norman Bridge and Edward Eggebrecht, employees of the said First Trust Savings Bank, in its Bond Department on two occasions made oral requests to the cross-complainant, *Page 579 Carl Kaufmann, to deliver the mortgage bonds then held and owned by the cross-complainant, Clara Kaufmann, dated June 26th, 1926, of the said Approved Investment Company, in the aggregate principal sum of Twenty-two Thousand ($22,000.00) Dollars, for exchange, for the same amount of mortgage bonds of the said Approved Investment Company, dated November 1st, 1929, of which demands, the said cross-complainant, Clara Kaufmann, had notice and knowledge." "(33) That during the month of December, 1929, Peter W. Meyn (president of said bank) in a conversation with the cross-complainant, Carl Kaufmann, in the offices of said bank, made a request upon said Carl Kaufmann, to deliver to the said bank, the mortgage bonds then held and owned by the cross-complainant, Clara Kaufmann, dated June 26th, 1926, in the principal sum of $22,000.00, and at said time, told the said Carl Kaufmann, that the said bank would, upon the delivery of said bonds, in the principal sum of $22,000.00, dated June 26th, 1926, deliver to the said Kaufmann, mortgage bonds of the mortgage issue dated November 1st, 1929, for the same amount, or pay to the said Kaufmann, in cash, the principal amount thereof, together with accrued interest thereon, and informed and notified the said Carl Kaufmann, that the said bank, was at said time selling to the customers of said bank, over the counter, in its Bond Department, the mortgage bonds dated November 1st, 1929, of the said Approved Investment Company, of which demand and conversation, the said cross-complainant, Clara Kaufmann, had notice and knowledge." "(34) That the cross-complainants, Clara Kaufmann and Carl Kaufmann, did not deliver to the First Trust Savings Bank of Hammond, Indiana, the mortgage bonds, so held and owned by the said Clara Kaufmann, dated June 26th, 1926, in the principal sum of $22,000.00; and that the said cross-complainants, Carl Kaufmann and Clara Kaufmann, did not at any time prior to the closing of said bank on the 2nd day of February, 1931, present the said mortgage bonds of the said Clara Kaufmann, dated June 26th, 1926, in the principal sum of $22,000.00, to the said bank, for payment, or make any demand upon the said First Trust Savings Bank of Hammond, *Page 580 Indiana, or the Approved Investment Company, for payment of said mortgage bonds." "(35) That the cross-complainant, Carl Kaufmann, knew prior to the 1st day of January, 1930, that the First Trust Savings Bank of Hammond, Indiana, had made the mortgage dated November 1st, 1929; that said mortgage bonds dated November 1st, 1929, in the principal sum of $125,000.00, had been placed among the assets of the First Trust Savings Bank of Hammond, Indiana, as first mortgage bonds; and that the First Trust Savings Bank of Hammond, Indiana, was selling said mortgage bonds, dated November 1st, 1929, to its customers, at par, or full face value, as first mortgage real estate bonds." "(53) That the cross-complainant, Carl Kaufmann, was during the years 1929 and 1930, a merchant in the city of Hammond, Indiana, and during said period and for a large number of years prior thereto, a part owner of the largest department store located in the city of Hammond, Indiana, which department store was located immediately across the street from the banking offices of the First Trust Savings Bank, of Hammond, Indiana; that the said Carl Kaufmann remained a Director of the First Trust Savings Bank of Hammond, Indiana, continuously after the year 1929, until the said bank closed on the 2nd day of February, 1931; that the said Carl Kaufmann, almost daily, witnessed the construction and erection of the building of the Approved Investment Company, on the property located at the intersection of Hohman and Doty Streets, in the city of Hammond, Indiana, and knew at said time, that his wife, Clara Kaufmann, was the holder and owner of mortgage bonds in the principal sum of $22,000.00 of the mortgage issue dated June 26th, 1926; that the said Carl Kaufmann, knew at the time the said building was being constructed and erected, that the same was being paid for by and with funds of the First Trust Savings Bank of Hammond, Indiana; that the said Carl Kaufmann visited the banking offices of the First Trust Savings Bank of Hammond, Indiana, during the years of 1929 and 1930, almost daily; that the said Carl Kaufmann was an active Director of the First Trust Savings Bank during the years 1929 and 1930, and attended *Page 581 nearly all, if not all, of the meetings of the Board of Directors of the First Trust Savings Bank of Hammond, Indiana, during said years; and that during the years 1929 and 1930, the cross-complainants, Carl Kaufmann and Clara Kaufmann, were husband and wife, and resided together in the city of Hammond, Indiana." The court further found, "(43) That prior to the 2nd day of February, 1931, the First Trust Savings Bank of Hammond, Indiana, paid to holders and owners of mortgage bonds dated June 26th, 1926, the same being the cross-complainants herein, upon interest coupons presented to said bank, for payment the sum of $3,482.50, in excess of the payments made by the said Approved Investment Company, for interest upon said mortgage issue dated November 26th, 1926, which sum appeared as a part of the overdraft in the account in said bank, known as the `Approved Investment Company Coupon Account'; and that interest upon said sum to the 20th day of December, 1933, at the rate of seven (7%) per cent per annum, is the sum of $1,102.50." "(44) That prior to the 2nd day of February, 1931, the First Trust Savings Bank of Hammond, Indiana, paid to the holders and owners of mortgage bonds dated November 1st, 1929, the same being the plaintiffs herein, upon interest coupons presented to said bank, for payment, the sum of $7,441.00, in excess of the payments made by the said Approved Investment Company, for interest upon said mortgage issue dated November 1st, 1929, which sum appeared as a part of the overdraft in the account in said bank, known as the `Approved Investment Company Coupon Account'; and that interest upon said sum from the date the same was advanced or paid to the 20th day of December, 1933, is the sum of: $2,963.10." "(46) That on the 13th day of November, 1930, the Lake Superior Court, Room No. 1, Hammond, Lake County, Indiana, in Cause No. 36591, found the Approved Investment Company to be insolvent, or in imminent danger of insolvency, and appointed the defendant, Charles L. Surprise, as Receiver of said Approved Investment Company; and that the *Page 582 defendant, Charles L. Surprise, is now the duly appointed, qualified and acting Receiver of the said defendant, Approved Investment Company; and that subsequent thereto, there was entered by the said Lake Superior Court, Room 1, in said cause an order, permitting and allowing the plaintiffs herein, to make the said defendant, Charles L. Surprise, as Receiver of the Defendant, Approved Investment Company, a party defendant to this proceeding." The issues in this cause were presented as follows: On May 1, 1931, appellee, Fred J. Millies, and 121 other persons (the owners of $90,800 in principal of said 1929 bond issue), herein referred to as the Millies group, instituted an action to foreclose the mortgage securing said bond issue. On July 20, 1931, appellant, Clara Kaufmann, and 13 other persons (owners of $33,000 in principal of said 1926 bond issue) instituted an action to foreclose the mortgage securing that bond issue. On September 8, 1930, McLaughlin Mill Supply Company instituted an action to foreclose a claimed mechanic's lien against a building covered by both of said mortgages. Certain other parties holding mechanics' liens filed cross-complaints. All the actions were consolidated. After the consolidation, appellees, Millies et al., filed an amended complaint and it was designated the complaint in the consolidated action. The other complaints were designated cross-complaints. It is not necessary for the purpose of this opinion that we discuss the pleadings. All cross-complaints to foreclose mechanics' liens were dismissed before trial, except those of three cross-complainants. The trial court found that said three cross-complainants should take nothing by their cross-complaints. None of them excepted to the finding, or appealed from the judgment. The consolidated cause was submitted to the court for trial, and the court, upon proper request, made a special *Page 583 finding of facts, as we have heretofore indicated, and stated conclusions of law. The principal issue before the trial court was a question of priority of the liens of the parties to the suit. There was no dispute as to the amount due to respective judgment creditors. The trial court held in its first conclusion of law that the Thum group, owners of $11,000 in principal of the 1926 bond issue, have a first lien on the property covered by the mortgage securing said bond issue, and that their lien be prior to the lien of "all other parties to this action including Clara Kaufmann . . ." Conclusion two (2) and three (3) are as follows: "2. That by reason of the knowledge, acts, interests and implied agreements of the said Clara Kaufmann and Carl Kaufmann, acting as her agent, the said Clara Kaufmann is not entitled to the priorities which she would otherwise have had under and by virtue of her bond secured by the mortgage dated the 26th day of June, 1926, but is entitled to a judgment against the Approved Investment Company and Charles L. Surprise, its receiver, in the sum of $30,085.00, plus $2,000.00, attorney fees, as set forth in the Findings herein; that she is, however, entitled to share with the plaintiffs and cross-complainants and the lien of her judgment is equal in priority to the liens of the bondholders secured by the mortgage dated November 1, 1929, and which is a second lien on the real estate described in said mortgage dated June 26, 1929." "3. That by reason of the knowledge, acts, interests and agreements of the officials of the First Trust Savings Bank of Hammond, Indiana, acting for and on its behalf, the said Harry E. Folk, Receiver of said bank, is not entitled to the priorities which said bank would otherwise have had under and by virtue of the purchase and payment for the coupons which were purchased and paid for by its said officers, but he is entitled to a judgment against the Approved Investment Company and Charles L. Surprise, its Receiver, for the sum of $10,361.97, plus $350.00 attorneys' fees, as set forth in the Findings *Page 584 herein; that he is, however, entitled to share with the plaintiffs and cross-complainants and Clara Kaufmann and his judgment is equal in priority to the liens of Clara Kaufmann and the bondholders whose bonds are secured by the mortgage dated November 1, 1929." Judgment was rendered in accordance with the conclusions of law. Appellant, Clara Kaufmann, perfected an appeal from said judgment. It is not necessary to delineate all the errors presented by her upon appeal; it is sufficient to say in that regard that she has presented contended error in each the first, second, and third conclusions of law. Appellees Millies et al. duly filed a cross-assignment of errors. It is not necessary that we state all the errors assigned by them upon appeal; it is sufficient to say in that regard that said appellees have assigned as cross-errors that the court erred in each the first and third conclusions of law, and have presented questions under said cross-errors. Appellant Clara Kaufmann contends that upon the facts found by the court she was entitled to first mortgage rights in equal priority with the Thum group and ahead of the Millies group. Appellees Millies et al. contend that the court did not err in its holding that appellant was entitled to equal priority with the Millies group. One of the reasons of appellees Millies et al., in support of said contention, is stated as follows in their brief, "Appellant's agent having tacitly agreed to payment (of her bonds) before maturity, before a refinance and improvement plan was undertaken by a mortgagor (Approved Investment Company), she cannot refuse to discharge the debt upon the offer of payment, when the refinance and improvements are completed." Appellees Millies et al. do not indicate where, in the *Page 585 finding, it is shown that the court found that appellant's agent"tacitly agreed to payment (of her bonds) before maturity." The court did not find such fact. In conclusion two (2) the court held that "by reasons of ". . . implied agreements" of Clara Kaufmann, she was not entitled to "the priorities which she would otherwise have had." Such a 1. statement of fact, if any, being incorporated in the conclusions of law, cannot be considered a fact found by the court. The court did not find facts which give rise to an implied agreement, by appellant Clara Kaufman, to accept payment of her 1926 bonds before maturity. Appellees Millies et al. also base their said contention on a theory of estoppel. They contend "equitable estoppel includes concealment by silence, or failure to declare rights or 2-3. claims, which will estop such rights or claims, as against the persons who should have been informed or notified." We accept said statement as a proposition of law. Appellee does not however make specific application of said proposition of law to the instant case. We do not think the doctrine of equitable estoppel is applicable here, as against appellant Clara Kaufmann. The finding of facts and conclusions of law clearly show that this cause was tried upon a theory of an implied agreement of appellant Clara Kaufmann, and not upon any theory of equitable estoppel as against her. Appellees Millies et al. say further: "Appellant having delegated the mortgagee bank her agent to collect the mortgage debt, and the bank having received full payment of the 1926 mortgage, the lien securing appellant's debt is discharged as to third persons who subsequently acquired an interest in the mortgaged real estate, even though the agent converted the funds to its own use." *Page 586 It is not necessary that we determine whether or not such a conclusion is founded in law. The facts found show that all payments made by the Approved Investment Company upon its mortgage dated June 26, 1926, were paid to the bank, that Clara Kaufmann presented the interest coupons on her said bonds to the bank "when the same became due," etc.; (See Finding 30) but the court did not find facts showing that appellant had delegated the bank to "collect the mortgage debt," and therefore said point of appellee is unavailing. The court did not find facts which give rise to an implied agency on the part of the bank, with power to collect appellant's bonds for her before maturity. It is our opinion that under the facts found the court erred in holding that appellant Clara Kaufmann was entitled to equal priority rights with the Millies group; it is our opinion 4. that under the facts found appellant Clara Kaufmann was entitled to first mortgage rights, superior to the rights of the Millies group, and therefore we hold that the court erred in each its first and second conclusions of law. Appellees Millies et al. contend in support of their cross error that the court erred in its conclusion one (1) that "Appellees Thum et al. (owners of $11,000 of the 1926 bonds) having failed to obtain and record an assignment of the 1926 mortgage, in a suit by them on the mortgage instrument against third persons any defense can be interposed against them, that could have been interposed against the apparent owner, the mortgagee bank." Appellee relies upon Sec. 2, Chap. 122, Acts of 1899 (Sec. 13489 Burns 1926, which was repealed by Ch. 128 Acts 1933.) Said statute did require assignees of mortgages of real estate 5. to record such assignments and provide penalties for failure to record them, but it did not provide that where, as in the *Page 587 instant case, the mortgage is given to secure a series of bonds, which bonds are payable to the mortgagee or bearer, and the mortgagee sells some of said bonds, the purchaser thereof losesthe security afforded by the mortgage if he fails to record anassignment of his proportional interest in said mortgage. Appellees Millies et al. contend further that they, being persons without notice, are protected against the unrecorded assignment of the 1926 mortgage. It is our opinion that Sec. 13489 Burns 1926, supra, did not require the holders of the 1926 bonds to obtain and record assignments of their respective interests in the mortgage 6-8. securing the bonds. The mortgage was duly recorded by the bank. The mortgage secured each of said bonds regardless of the person who thereafter became the owner thereof and no assignment of such bondholder's interests in the mortgage was necessary for the purpose of protecting such interests. The mortgage, which secured the 1929 bonds, recited that the funds of said bond issue were to be used "for the purpose of refundingand paying the indebtedness secured by (the) . . . mortgages and encumbrances now against said real estate." This recitation, if read by a prospective purchaser of one of the 1929 bonds secured by said mortgages in effect informed him that there were mortgages or encumbrances against the property. Certainly the Millies group had constructive notice of the prior liens of the respective holders of the 1926 bonds by reason of the recording of the 1926 mortgage. Furthermore, in view of said recitation in the 1929 mortgage the Millies group are not in position to contend lack of notice of the prior lien. We hold, therefore, that the court did not err in its holding that appellees Thum are entitled to a first lien on their claim, with priority ahead of the claim of appellees Millies et al. *Page 588 Three of the persons included in the Thum group (owners of $11,000.00 of the 1926 bonds) purchased and were the owners of 1929 bonds when this cause was tried. Appellees Millies et 9. al. contend that said three persons "had actual knowledge of the two issues . . . and thereby impliedly knew of the receipt of payment of the 1926 mortgage by the bank . . . and the rights of (said three persons) . . . under their 1926 bonds are postponed to equality with the 1929 bonds" on the ground of estoppel. Appellee does not however specifically apply any theory of estoppel to the instant case in support of said contention. We deem it sufficient to say that the facts found by the court, including the fact that said three parties owned some of the 1929 bonds do not estop them from pressing their claim for priority with reference to their 1926 bonds. The fact that they had actual knowledge of the 1926 mortgage and purchased 1929 bonds did not cause them to lose their priority rights with reference to their 1926 bonds. Appellees Millies et al. contend that the court erred in that part of the third conclusion of law in which it held that Harry E. Folk, as Receiver, was entitled to equal priority, on his claims for payment of interest coupons, with the lien of appellees' Millies et al. Points one and two stated in their brief in support of said contention are based on theories of estoppel as against the Receiver; but each of said points is based on facts which 10. were not found by the court, therefore we will not discuss said points. No other question of estoppel as against the Receiver is presented. Appellees Millies et al. say further however "the bank having received and accepted payment in full of the 1926 mortgage prior to its acquiring the coupons *Page 589 claimed, its receiver cannot be subrogated to a debt that has been paid and extinguished." That proposition of law may be tenable as applied to facts other than those in the instant case, but is not tenable as applied to the instant case. Here the bank "paid" (finding 4) the mortgagor $35,000.00 for said 1926 bonds, which were payable to bearer. The bank sold the bonds to its customers. The bonds were negotiable instruments, and payment therefor by the purchasers certainly did not "extinguish" the debt. It should be noted here that the Receiver did not assign cross errors or present the question whether or not he was entitled to a first lien on his claim for 1926 interest coupons, apriority equal to that of appellees Thum et al. We hold that no error is shown to have been committed by the court in its holding that Harry E. Folk as receiver of the bank was entitled to equal priority with the lien of Appellees' Millies et al. on his claim for payment of interest coupons. Appellant, Clara Kaufmann, filed a demurrer to the complaint (of appellee Millies et al.) which demurrer was overruled and appellant has assigned said action of the court as an error and presented questions there-under. In view of the conclusions reached by us, we deem it unnecessary to discuss said questions. We deem it expedient, however, to say that the complaint alleged, among other facts, that appellant, Clara Kaufmann "entered into a parol agreement with the defendant Improved Investment Company, and the defendant, First Trust and Savings Bank of Hammond, Indiana, by the terms of which the said . . . Clara Kaufmann agreed to accept (1929) mortgage bonds . . . in the aggregate principal sum of Twenty-two Thousand ($22,000.00) in full and complete payment of the (1926) bonds held by . . . (her)." *Page 590 Appellant, Clara Kaufmann, also assigns as error the overruling of her motion for a new trial. In view of the conclusions reached by us we deem it unnecessary to discuss any of the questions sought to be raised under said assigned error. Having concluded that the trial court erred in each its first and second conclusions of law, the judgment is reversed with instructions that the trial court restate each of its conclusions of law in accordance with this opinion, and that further proceedings be consistent herewith. Curtis, C.J., not participating.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426373/

This is an appeal from a judgment on a verdict finding the appellant guilty of grand larceny as charged in the affidavit upon which he was prosecuted. He claims error in that the verdict is not sustained by sufficient evidence and is contrary to law. He was tried for the theft of a cow owned by John W. Bergdoll (hereinafter referred to as the owner), *Page 207 who resided on his 52 acre farm immediately north of State Road No. 67, in Jay County, Indiana. After a conviction, on appeal we must consider the evidence most favorable to the State to support the verdict or decision of the trial court. Straw v. State (1925), 197 Ind. 606, 1. 149 N.E. 430, 151 N.E. 695; Smith v. State (1942), 219 Ind. 533, 39 N.E.2d 472; Swope v. State (1942),220 Ind. 40, 39 N.E.2d 947. In reviewing the evidence, we follow the rule that we do not determine the credibility of the witnesses, since that is a matter for the determination of the trier of the facts in the trial court. Straw v. State (1925),197 Ind. 606, 149 N.E. 430, 151 N.E. 695, supra; Walker v. State (1934), 206 Ind. 232, 189 N.E. 127; Smith v. State (1942),219 Ind. 533, 39 N.E.2d 742, supra. When the record is examined in the light of these well recognized principles, the jury was warranted in finding the facts as follows: The evening of April 7, 1947, the owner and his son milked seven cows on his farm, at which time the cow, which was stolen, was in the barn. Next morning she was missing, and there were tracks in the soft ground going from the barn through three fences, one of which had been cut, to an abandoned part of old State Road No. 67, just north of the present road, where there were other tracks left by an automobile and a two-wheel trailer. At this place the cow had been loaded into the trailer and there were many tracks showing the cow had struggled and jumped around. From this place other tracks led back toward the barn where she had attempted to return to the barn before being returned to the loading place. At the loading place there were found small bits of broken rope, some broken boards, some fresh corn cobs and some hair the same color of the stolen cow. Beside *Page 208 the cow tracks there were tracks made by some man accompanying her. One of the rear wheels of the car, as revealed by its imprints, had a military type tread and the state police took photographs of this. The corn cobs, broken boards and the rope at the loading place were taken by the officers making the investigation. About daylight the morning of Tuesday, April 8, two of the neighbors saw a car of the general description of the one owned by the appellant on the highway, pulling a trailer in which was a large cow. At the time one of the neighbors saw the cow being transported, the automobile had one tire down and was driving slowly. The following Saturday, which was April 12, the sheriff of Jay County, in company with a member of the state police force, went to the appellant's home, where they examined his automobile and the two-wheel trailer, the ownership of which was admitted by appellant. The car had a hitch for coupling to the trailer. There was a tire with a military type tread, similar to the tread on the car at the loading place, in the coal bin. The tire had a hole in it where it had blown out. There were corn cobs in the trailer, similar to some of the cobs left at the loading place. The officers were in the barnyard about 10 or 15 minutes before appellant, who was working about 40 feet away, came over to the officers. The appellant admitted the tire was his, and said that he had had a flat tire on State Road No. 67 near the Bergdoll place and had changed the tire there; that a man named "Sparky," who lived around Springport, south of Muncie, came along when he had the tire trouble, and looked over at Bergdoll's cows and said he would like to have a cow like one of them. An investigation by the police officers failed to locate anyone by the name of "Sparky" near Springport or any other place. *Page 209 The officers went back the following Monday and the appellant went into the house and refused to come out. The endgate of the trailer had been recently repaired. The officers took off the boards of the endgate, some of which had been recently broken, and they fitted other broken boards which were found at the loading place. These were admitted in evidence and exhibited to the jury at the trial. At the time appellant was arrested and placed in jail, he stated to a member of the state police force in answer to questions about the tail gate, "If you fellows are so damn smart, why don't you find out?" During the time the appellant was in jail, the sheriff asked him where he was going with the cow early about a week ago, and appellant answered that he had a friend's cow but had no place to keep her, and was taking her home to one H.C. Uhrick, who lived about a mile south of Winchester. Investigation in this neighborhood failed to locate any man by the name of Uhrick. During the time he was in jail, the jailer asked appellant why he didn't burn the endgate and he would not have any evidence against him, and the appellant answered, "I never thought of that." The officers made an extensive investigation, which extended into Ohio, in an attempt to recover the cow, but she was never located. "It is the law that `where the evidence, either direct or circumstantial, is such that two inferences may reasonably be drawn therefrom, one of guilt and one of innocence, it is 2, 3. not within the province of the Supreme Court to determine which inference should have controlled, that being exclusively for the jury, or for the trial court.'Winters v. State (1928), 200 Ind. 48, 160 N.E. 294. See alsoWarner v. State (1931), 202 Ind. 479, 175 N.E. 661." Butler v. State (1945), 223 Ind. 260, 263, *Page 210 60 N.E.2d 137. There was ample evidence to justify the jury in returning the verdict of guilty. There is no merit in appellant's contention that there was a fatal variance between the description of the property stolen and the evidence given in the trial. The affidavit is not in the 4. intrinsic record, but assuming that the court's instruction No. 1, which purported to state the affidavit in full, is correct, it charged appellant did "feloniously take, steal and carry away of the goods and chattels of one J.W. Bergdoll one guernsey eight year old cow. . . ." The owner's son described the cow as "a large cow, guernsey color, spotted, as much white as guernsey." She had "large horns." The owner testified she was "eight or nine years old. She had long horns and color was white and guernsey red." This evidence sustained the allegation as to the cow. The verdict was sustained by sufficient evidence, and was not contrary to law. Judgment affirmed. NOTE. — Reported in 91 N.E.2d 167.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426550/

Tony A. Tubbs died on August 1, 1925, from injuries received July 30, 1925, while working as an inspector on a street improvement in Broadmoor addition in the town of Munster, Indiana. His wife, appellee, as his sole dependent, made application to the Industrial Board against appellant for an adjustment of her claim for compensation for his death. After a hearing by a member of the Industrial Board, and on appeal to the full board, it awarded her $13.20 per week for 300 weeks, and $100 funeral expenses. *Page 409 The controlling question presented by appellant is as to whether Tony A. Tubbs was in the employ of appellant, and was engaged in that employment at the time he suffered the injuries resulting in his death. There is evidence to sustain the following facts: Appellant wanted an inspector on this street improvement, and, contemplating employing an inspector, took the matter up 1, 2. in a town board meeting prior to the time Tubbs went on the job, and prior to his death, and discussed available men for the place. Roscoe Hemstock and Ray Seely, the engineer, were at this meeting. Hemstock suggested a man in Hammond, and the board instructed him, Hemstock, to see this man and see if he was available. The matter was left to Hemstock; if he wanted a man, the board would appoint him. After this meeting, Hemstock telephoned Tubbs and told him about the job and told Tubbs to see Seely, the engineer for the town, and he could get the job from Seely. Hemstock later saw Tubbs on the job and Tubbs told Hemstock that he had gotten the job. Tubbs saw Seely and told him that he was sent out as inspector. Seely accepted Tubbs as inspector and, as engineer for appellant town, discussed the plans and specifications with him, gave him a copy of such plans and specifications, and saw Tubbs on the job inspecting it for about a week, and introduced him to the contractor as the inspector. Seely was engineer for the town of Munster in laying out and building these streets. Tubbs was working on the job as such inspector at the time he was injured, having worked about six or ten days. Tubbs was killed while doing work incident to these improvements, and his business on that subdivision was as an inspector. The street improvement was being done by appellant town which had let the contract, and the work was being done under the special assessment law. Seely, the engineer, was paid out of the special assessment. *Page 410 The wages in the community for inspectors were from $4 to $12 per day, and another inspector on the same job had been paid from $4 to $5 per day for similar work. It was customary for the town to employ inspectors on work of this kind. The board took no further action toward getting an inspector. This subdivision was in the town of Munster. Tubbs was injured on July 30, 1925, from which injuries he died on August 1, 1925. It appearing by this evidence that another inspector had been employed upon the same job; that it was customary for appellant to employ such inspectors on such work; that at a regular meeting of the board of trustees appellant Hemstock was authorized to negotiate with Tubbs looking to his employment as an inspector; that, knowing that the work was going on, it took no further steps to employ an inspector after Tubbs commenced to perform such services; that appellant engineer accepted him and introduced him to the contractor as the inspector, and furnished him with plans and specifications after a conference in the office, the Industrial Board, under such circumstances, might reasonably infer that appellant had employed Tubbs as such inspector. It was not necessary that appellant should adopt a formal ordinance or resolution in order to make a valid employment of Tubbs. It is well established that contracts of corporations may rest upon the same footing as those of natural persons, and are valid, whether expressly made by the corporation, or arise by 3. implication, or from ratification of acts done on behalf of the corporation by parties assuming to act as agents, although without sufficient authority. Board, etc., v. Ritter (1883), 90 Ind. 362, 370; City of Logansport v. Dykeman (1888), 116 Ind. 15, 17 N.E. 587. Appellant contends that even if there was an attempted employment of Tubbs, such employment was *Page 411 wholly without authority of law and therefore invalid. But 4. we do not so understand the law. Town boards are by statute expressly given power to lay out, open, change, pave and otherwise improve streets. § 11277, cl. 9, Burns 1926. One of the necessary incidents to the performance of their duties in the improvement of streets is the daily inspection thereof to see that the work is being done and the material furnished according to the plans and specifications. While the detail of such supervision is not provided by statute, it necessarily follows as an incidental power that such boards, in their discretion, may employ some one to perform the duty of inspecting the work in order that the town and the property owner may have the improvement for which they pay their money. Appellant contends that the award was contrary to law for the reason that there was no evidence of a bona fide attempt to settle appellee's claim. But having denied liability and 5. resisted payment, it cannot on appeal be heard to question the jurisdiction of the board to hear the application on the ground that there was no bona fide effort at settlement.Dye Son v. Nichols (1923), 81 Ind. App. 13; GrasselliChemical Co. v. Simon (1925), 84 Ind. App. 327, 150 N.E. 617. The award is affirmed. McMahan, J., does not participate.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426551/

Appellees brought this action to enjoin appellants from using certain premises located in *Page 389 Anderson, Indiana, for a funeral home and undertaking business. The complaint is in two paragraphs; the first paragraph alleges that appellants violated and were violating a certain zoning ordinance of the City of Anderson, Indiana, which prohibited using the property of appellants for business purposes, said property being situated in a residence district; the second paragraph of complaint is upon the theory of a private nuisance with special damage to appellees. To both paragraphs of complaint, appellants filed an answer in general denial. This closed the issues and the cause was tried by the court. There was a special finding of facts with conclusions of law thereon made at the request of appellants. The appellants rely upon four assignments of error, three of them calling in question the conclusions of law, and the fourth, the overruling of the motion for a new trial. The first assignment of error is included in the second and third, which challenges conclusions of law one and two. The motion for new trial has two grounds therein: (1) That the decision of the court is not sustained by sufficient evidence; (2) that the decision of the court is contrary to law. After this appeal was perfected and the briefs filed, appellants filed a motion which they denominate a verified motion to dismiss parts of appeal. This motion sets up that, since 1. this appeal was perfected, and the briefs filed, the planning commission of the city of Anderson amended the zoning ordinance relied upon by appellees in the first paragraph of complaint; and that, by such amendment, the property of appellants in controversy in this case has been taken into the business district of the city of Anderson so as to permit the establishment of a funeral home *Page 390 thereon, as far as the ordinance is concerned. To the verified motion to dismiss parts of the appeal are attached copies of the amended ordinance and the proceedings in connection therewith. The matter set forth in this motion has not been controverted by appellees. Therefore, the question presented by the first paragraph of complaint as to the violation of the zoning ordinance by appellants is now moot, and this appeal will be determined upon the issue presented in the second paragraph of complaint, namely, that of whether the conducting of this funeral home at the location, and in the manner alleged, constitutes a private nuisance so that its operation as a funeral home and undertaking establishment can be enjoined. The motion of appellants to dismiss parts of the appeal is overruled. The court in deciding this case takes cognizance, however, of the fact that the matter raised in the first paragraph of complaint upon the question of violation of a zoning ordinance is moot, and the case will be decided solely upon the issue as presented in said second paragraph of complaint. It will not be necessary to notice further the first paragraph of complaint. The second paragraph of complaint charges in substance that West Eighth Street is purely a residential district, and that appellees are the owners of certain real estate therein which is adjacent and in close proximity to property of appellants which is being used as an undertaking parlor and funeral home. The complaint further charges that appellants have partly moved their undertaking business into said premises at 231 West Eighth Street in the city of Anderson, Indiana, which for more than fifty years has been occupied as a dwelling; that they began to operate thereon an undertaking and mortuary business at this location, *Page 391 which is purely a residential section for several blocks on either side of Eighth Street; that the appellees' residences were located adjacent to or immediately across the street therefrom; that the property of appellees was valuable and desirable for residential purposes; that the location and operation of the undertaking and mortuary business by the appellants at that place will materially decrease the value of the appellees' properties; that in the operation of said place as an undertaking and mortuary business, dead bodies will be taken on said premises for the purposes of autopsies and embalming; that persons meeting with accidental death will be brought there and left for some time pending identification and preparation for burial; that funerals will be conducted upon and from said premises, and there will be frequent coming and going of hearses with dead bodies therein; and that a large number of dead bodies will be carried into and out of said premises in the day time and night time and will be kept on said premises for long periods of time, all to the annoyance, inconvenience and damage of appellees; that it will create such a constant reminder of death as to depress the appellees, render them less able to resist disease, and under the circumstances render the conduct of the business in that location, a private nuisance, to the great and irreparable damage of these appellees; that the annoyance and damage to appellees is special and peculiar and different from the public in general, and that their property will be materially and greatly depreciated in value by and on account of said business. In the special finding of facts, the court found the location of appellees' premises and those of appellants; that said premises of appellants being used for an undertaking and mortuary business were located at 231 West Eighth Street in the residential district of the city of Anderson; and that such location has always *Page 392 been devoted solely to residential purposes, and exclusively to the erection and maintenance of private homes and dwellings. The special findings further show that the appellants purchased the lot number 9 in John Davis' First Addition in the city of Anderson, for the purpose of carrying on and conducting their undertaking business, and that they had been in such business in the city of Anderson many years prior thereto. The finding of facts further shows: "13. That at the time of the commencement of this action, the defendants had moved their stock of undertaking goods upon said premises and were operating their undertaking business thereon." Then, after finding that the appellees' property was all located in close proximity to the appellants' property, or adjacent thereto, the court found as follows: "That in the operation and maintenance by the defendants of their undertaking establishment and mortuary business on the said premises large numbers of burial caskets will be stored and carried on said premises and unloaded thereon, large numbers of deceased human bodies will be taken to said premises for the purpose of preparing them for burial and will be kept there from a period of a few hours to several days and while thereon will undergo the process of embalming. That occasionally persons meeting accidental and violent death will be taken to said premises for the purpose of identification and preparation for burial. That there will be funerals conducted upon and from said premises and there will be frequent going and coming of hearses with dead bodies therein, and at times of funerals large numbers of vehicles will be congregated in and around said premises; that dead bodies will be taken to said premises both in the daytime and night-time. That in the garage of said premises, hearses, ambulances, and funeral cars will be stored day after day and many times will be allowed to stand on the street in front of and near said premises. "15 1/2. That the constant presence of dead persons on said premises, the holding of funerals *Page 393 thereon, the carrying of dead bodies in and out of said premises, the presence of hearses and funeral cars on and around said premises, will create such a constant reminder of death as to depress the plaintiffs and the members of their families; and will be a constant annoyance and inconvenience to them and because thereof they will be unable to enjoy their homes in peace, quiet, and comfort." The court further found that the real estate of the appellees was damaged in value by reason of the location of the undertaking and mortuary establishment of appellees anywhere from $8,000 to as much as $12,000 on the different properties of the appellees. The court also found that the appellants are conducting their undertaking and mortuary business in a lawful, sanitary, and scientific manner, and that no physical destruction of appellees' properties will result from their business; that the injury to appellees and to their real estate as found in the special finding of facts will arise from the use and occupation of appellants' said real estate as an undertaking establishment in the manner found in the special findings. Upon this special finding of facts, the court stated its conclusions of law, two in number: "(1) That upon the above and foregoing facts, the law is with the plaintiffs. (2) That the defendants should be and they are hereby perpetually enjoined from using the following described real estate in Madison County, Indiana, to wit: The North part of Lot No. Nine (9) in John Davis' First Addition to the City of Anderson and the brick dwelling house located thereon known as No. 231 West Eighth Street, for the operation of an undertaking and mortuary business and funeral home thereon." The only question left in this case for decision is, Does the operation and maintenance by the appellants of an undertaking and mortuary establishment in a purely residential section of the city of Anderson, Indiana, *Page 394 where such section has been used exclusively for residential purposes and has been built up with large, substantial, and valuable homes, constitute a private nuisance under the facts and circumstances in this case? In determining this question, we will have to look for precedent outside of the state of Indiana, for this precise question is one of first impression to the courts of appeal 2. in this state. An undertaking and mortuary establishment, or a funeral home, is not a nuisance per se. This is a well established principle in this country. Then, the question arises, Does the operation and maintenance by the appellants of the undertaking establishment and mortuary business on the premises heretofore described where a large 3. number of caskets will be stored and unloaded thereon; where large numbers of dead human bodies will be taken for preparation for burial, and will be kept there for a period of a few hours to several days, and will undergo the process of embalming; where, occasionally, persons meeting violent and accidental death will be taken for preparation for burial; from where funerals will be conducted; where there will be frequent coming and going of hearses with dead bodies therein; where, at time of funerals, large numbers of vehicles will be congregated; where dead bodies will be taken to and from, both at night time and in the day time, create such a constant reminder of death to the appellees who reside in the immediate vicinity of these premises, that it would depress them and the members of their families, and will become a constant annoyance and inconvenience to them, and because thereof, they will be unable to enjoy their homes in peace, quiet, and comfort? We can best explain the view of this court upon this proposition by quoting *Page 395 from the case of Bragg et al. v. Ives (1927), 149 Va. 482,140 S.E. 656, 660, wherein the court said: "We agree with those decisions, however, which hold that when an undertaking establishment invades a community which has previously been strictly residential, and the character of the business, or the manner in which it is conducted, is such as will naturally depress the spirits and sensibilities of those living in close proximity to it, to the extent of weakening their power to resist disease and destroying the comfort, repose and enjoyment of their homes, making them less desirable and thereby materially depreciating their value, then such business is a nuisance to those so affected by it. It is true that the objection to the business must be something more than imaginary, or an individual aversion to the proximity of the establishment and to the thought of death superinduced by its nearness and the activities carried on in connection with it. The annoyance complained of must be something real, substantial and tangible — one that affects the normal person, not the over-nervous or supersensitive, nor yet the hardened and stoical, but the ordinary men, with ordinary sensibilities, tastes and feelings. The maintenance of an undertaking establishment under circumstances that produce such a result upon such a person goes beyond mere mental disturbance — it involves the physical enjoyment and comfort of the home, with which no business, however lawful and necessary, has the right to interfere." In a recent case decided by the Supreme Court of Lewis County in New York, Arthur et al. v. Virkler et ux. (July 26, 1932),258 N.Y.S. 886, 890, the judge of that court, in a well-considered opinion upon the subject of the enjoining of a nuisance created by the operation of an undertaking establishment in a residential district, stated: "I conclude, that by moving their undertaking establishment from a business district into the midst of a district where for a long period of years only a church and private residences have existed, *Page 396 was an illegal encroachment by the defendants upon the plaintiffs' property rights. It has rendered plaintiffs' residence properties physically uncomfortable, and accordingly is a private nuisance which equity will abate." In the above case, the judge has compiled nearly all of the decisions of our courts for and against the enjoining of the operation of an undertaking business in a residential district, and cites, on page 891, a great many cases supporting the theory that to move into and operate an undertaking and mortuary business in a purely residential section, which has always been occupied as a residential section, and is built up with large and substantial homes, from the very nature of the business located in such residential district, it will interfere with the free use and enjoyment of residence property, producing a constant annoyance and inconvenience to occupants of adjacent and nearby buildings, and render them physically uncomfortable, and thereby create such a depressed condition upon the part of residents in close proximity thereto, as will of necessity cause them physical discomfiture and annoyance, as well as a depreciation in the value of their property. In the absence of a strong showing of public necessity, we think the location of an undertaking and mortuary business in such a district should not be permitted over the protest of those who would be materially injured thereby. So, in this case, we hold that from the facts as found by the court, its conclusions of law were correct, and that the moving by the appellants of their undertaking and mortuary business into this strictly residential section, as shown herein, and the operation and maintenance of their undertaking and mortuary business therein, under the facts as found by the court, constitute a nuisance and an injury to appellees' property by a depreciation of the value thereof, as well *Page 397 as to the comfort and enjoyment thereof by the appellees. The law in respect to nuisances rests upon the maxim, "Every man must so use his own property as not to interfere with that of his neighbor." Laughlin, Wood Co. v. Cooney et al. (1930),220 Ala. 556, 126 So. 864, 866. We quote with approval from the Cooney case, supra, where the court said, on page 866: "While it must be conceded that the business of conducting funeral parlors is a lawful business and necessary to the proper care and disposition of the dead, nevertheless the fact remains that its inherent nature is such, if located in a residential district, it will inevitably create an atmosphere detrimental to use and enjoyment of residence property, produce material annoyance and inconvenience to the occupants of adjacent dwellings, and render them physically uncomfortable, and in the absence of a strong showing of public necessity, its location in such district should not be allowed to protrude into such residential district over the protests of those who would be materially injured thereby." To the above statement, the court cited a large number of authorities. There are some authorities, namely, in the states of Oregon, Washington, New Jersey and Kentucky, that do not fully support this theory; still, the greater weight of authority coincides therewith. Cooley on Torts, (fourth edition 1932) vol. 3, p. 180, section 435, quoting from the case of Arthur v. Virkler,supra, says: "Undertaking Establishment. An undertaking establishment is not a nuisance per se, and by some courts it is held that even when located in an exclusively residential district, with the result that, because of sentimental repugnance on the part of those who might reside near it, property values in the vicinity would depreciate, such establishment would not be enjoined. By what appears to be the weight of modern authority, however, it is held *Page 398 that the location of such a business in a residential district is sufficiently objectionable to make it a nuisance. Thus it has been stated: The inherent nature of an undertaking establishment `is such that, if located in a residential district, it will inevitably create an atmosphere detrimental to the use and enjoyment of residence property, produce material annoyance and inconvenience to the occupants of adjacent dwellings, and render them physically uncomfortable, and in the absence of a strong showing of public necessity, its location in such a district should not be permitted over the protest of those who would be materially injured thereby.'" To substantially the same effect is Joyce on Nuisances, p. 162 quoted in an Oklahoma case (269 P. 1098), from a Maryland case, as follows: "No principle is better settled than that where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner, for which an action will lie. And this, too, without regard to the locality where such business is carried on; and this, too, although the business may be lawful business, and one useful to the public, and although the best and most approved appliances and methods may be used in the conduct and management of the business." The greater weight of authority is to the effect that the establishment and operation of an undertaking and embalming business in a purely residential section, under circumstances which would cause a depressed feeling to the families in the immediate neighborhood, and a constant reminder of death which appreciably impairs their happiness, and damages the value of their property, constitutes a nuisance. Cunningham v. Milleret ux. (1922), 178 Wis. 22, 189 N.W. 531, and cases cited on page 534; Jordan et al. v. Nesmith et al. (1928),132 Okla. 226, 269 P. 1096; Dillon v. Moran et al. *Page 399 (1926), 237 Mich. 130, 211 N.W. 67; Leland et al. v. Turner etal. (1924), 117 Kan. 294, 230 P. 1061; Saier et al. v. Joyet al. (1917), 198 Mich. 295, 164 N.W. 507, L.R.A. 1918A, p. 825; Higgins et al. v. Block et al. (1925), (Ala.),104 So. 429; Tureman et al v. Ketterlin et al. (1924), (Mo.),263 S.W. 202. As was said in the Cunningham v. Miller, supra, (Wis.), "We think it is equally clear that maintenance of an undertaking and embalming establishment in a residential section must inevitably operate to decrease substantially property values, destroy the comfort and happiness of people residing in the immediate vicinity, and is an unwarrantable invasion of the rights of others." To entitle the appellees to injunctive relief in this case, the depressing influence and discomfort caused by the maintenance of the undertaking and mortuary establishment must create such 4. depressing influence upon a normal person and not one who is unduly nervous or highly supersensitive, as was said by the Supreme Court of Michigan, Saier v. Joy, supra: "It requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person." Our own Supreme Court in Indiana, in a suit to enjoin the operation of a mill as a nuisance, in the case of Owen et al. v. Phillips et al. (1881), 73 Ind. 284, 295 said: "The owner of property is entitled to enjoy the ordinary comforts of life, and that right is not to be measured by the notions of the people of a particular locality." Appellants say that there is no showing of an irreparable injury. We think the depreciation in the value *Page 400 of the property shown and the constant depressing influence 5. the maintenance of this undertaking establishment will have upon the appellees, and the resultant annoyance and discomfort, all tending to destroy their peace of mind and happiness, constitute an irreparable injury within the meaning of our law. Furthermore, our court has said that in order to entitle one to injunctive relief, it is not absolutely necessary to allege or prove irreparable injury, but a showing that there is a great injury will be sufficient. Biggs v. Bank of Marshfield (1929), 90 Ind. App. 467, 473, 169 N.E. 71. We therefore hold, that the locating and operating of an undertaking establishment, and funeral home, by appellants in the location and under the circumstances as shown in this case, constituted a private nuisance; and that the lower court did not err in stating its conclusions of law; that there was sufficient evidence to sustain the finding of facts; and the decision of the court is not contrary to law. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426442/

On and for some time prior to February 24, 1923, one Joseph Simon, the husband of appellee and with whom she was living, was an employee of appellant. On that date, said Simon came to his death by drowning in the Calumet river, leaving the appellee *Page 329 as his sole dependent. The widow filed her claim asking for an award of compensation against the employer and such proceedings were had in the matter of said claim that the full Industrial Board, by a majority of its members, made a finding that the said Joseph Simon came to his death by an accident arising out of and in the course of his employment, and awarded compensation to said widow, from which award this appeal is prosecuted. Appellant's first contention is, that said award is contrary to law, because there is not sufficient evidence to sustain the above noted finding. This contention necessitates a consideration of the evidence. There is competent evidence in the record sufficient to establish directly the following facts: The morning of February 24, 1923, was cold and a strong wind was blowing; the deceased had suffered the loss of one eye and the sight of the other eye was impaired to the extent that, while he had sufficient vision to go to and from his work, he could scarcely recognize an individual face; that he left his home at about six o'clock a.m. of the morning in question, which was his usual time for starting to his work; that at the time he left his home, he was in his usual good health and nothing unusual was observed in his manner or appearance; that he "checked in" at the gate at which employees entered the grounds of the appellant company at the usual time and received his check as an employee; that about eight o'clock of the morning in question, the body of said Simon was found in the Calumet river; that situate on the bank of said river, near where the body was found, and on the premises of appellant, was a comfort station, erected and maintained by the appellant; that the dinner pail of deceased and the metal check which he received at the gate upon entering the grounds of appellant on that morning were found near the comfort station, *Page 330 the check lying on the top of said dinner pail; that the overcoat of the deceased was found a short distance to the east and south of the dinner pail, the coat being on the bank of the river and near to the water's edge; that the general course of said river at that point is east and west; that said comfort station is built partly out over the water of the river and is about eight feet long, east and west, by four feet wide, and is approached by a walk way from the top of the river bank; that a piece of lumber about four inches wide was placed in said comfort station and used by the employees as a seat, the space between said seat and the back side of said building being entirely open and of the width of sixteen inches; that the sides of said station were enclosed down to the water and that the water under the rear portion of said building was some three or four feet deep; that this station was flushed and cleaned out once each week; that it was very frequently in bad condition and that men would not take their coats and dinner pails therein but leave them outside on the ground. There was also offered in evidence a map, blue print, of the grounds of appellant company involved in this cause, on which are shown the location of the entrance gate, the comfort station in question, the building in which the deceased was employed, various railroad tracks and switches, roadways, crossings, power plant and various other buildings. This map purports to have been drawn to a scale and shows the building in which the deceased was employed as being located east and a little to the north of the entrance gate and at a distance therefrom of about 1,600 feet, in a direct line; it also shows the location of the comfort station involved as being to the south and east of said gate and at a distance therefrom of about 1,000 feet, in a direct line; also, a comfort station is shown as being located about *Page 331 100 feet east of the building in which the deceased was employed. On these facts, the appellant contends that the evidence not only fails to sustain the finding of the board, but that it shows that the deceased was not, at the time he came to his death, at a place where he could reasonably have been expected to be, that he had gone entirely out of his way in going to said comfort station, if he went there for the purpose of using the same, which appellant denies. It is the theory of the appellant that the deceased came to his death by suicide, while it is the theory of appellee that he came to his death by accidental drowning. On the said map in evidence in this case, two routes have been marked as ways for travel, leading from the entrance gate to the building in which the deceased was employed. One of these routes has been marked "logical," and the other "optional." The route marked "optional" is the one supposedly taken by the deceased, and this route brought him to within about 200 feet of the comfort station on the river bank while he was yet at a distance of about 1,000 feet from his place of work. This map also shows that for the deceased to have taken the route marked "logical," and which route appellant insists should have been taken, he would have been under the necessity of crossing at least two lines of railroad tracks and switches, seven tracks in all, and to have crossed these tracks at places where there were no regular crossings, while by following the route marked "optional," although he would have to cross the same number of tracks, the places where he would cross these tracks were, as indicated by said map, roadway crossings. When we consider the condition of the sight of the deceased and his ability to get about, we are impressed that the route designated as "optional," was, in *Page 332 fact, the logical route for him to take in going from said entrance gate to the building in which he was employed. We also note that the record is silent as to the route of travel usually taken, if there was any such usual route, by the deceased or by other persons employed in the same building with deceased, in passing from the entrance gate to the said building. Whether the deceased came to his death by accident was a question of fact for the Industrial Board. If he came to his death by accidental drowning, then, under the facts of 1, 2. this case, that such accident arose out of and in the course of his employment will not admit of question. The finding in this case was that he came to his death by accident and we think that such was a reasonable inference. The appellant next urges that this cause should be reversed because of the admission of incompetent evidence. At the hearing, the verdict of the coroner of Lake county, who held the 3. inquest upon the body of the deceased, and also the testimony taken by the coroner upon such inquest were offered and read in evidence over the objection of the appellant. These were incompetent in this case and should not have been admitted in evidence. But, as there is other competent evidence in the record sufficient to sustain the finding herein, we cannot, under the well-settled rule, reverse this case because of such error; it was harmless. Shira v. State, ex rel. (1918),187 Ind. 441, 119 N.E. 833; Bowers v. Headen (1853),4 Ind. 318. Finally, the appellant insists that this cause must be reversed because there is no finding, and no evidence tending to show, that the parties had made an effort to settle this 4, 5. matter and had failed, and that therefore the Industrial Board was without jurisdiction. He relies upon the case of In re Moore (1923), 79 Ind. App. 470, 138 N.E. 783, to sustain his *Page 333 contention. In this case, the appellant has, from the beginning of this proceeding, contested the matter of its liability. Had it, when it first appeared before the single member of the Industrial Board, filed an answer based on the matter now urged, and thereby raised the question as to whether or not there was a disagreement between the parties as to the question of paying compensation, quite a different question would be presented for our consideration. But it appeared and offered its evidence and, from an adverse finding and award, it asked for a review by the full board, and it now appeals to this court, still contesting its liability. No question as to the jurisdiction of the Industrial Board was made below, and it cannot be made for the first time on appeal. Dye Son v. Nichols (1923),81 Ind. App. 13, 141 N.E. 259; Eureka Block Coal Co. v. Wells (1925),83 Ind. App. 181, 146 N.E. 869. We find no reversible error, and the award is therefore affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426443/

Appellant began this proceeding in the exercise of the power of eminent domain for the purpose of appropriating two certain tracts of land, the first, containing 6.65 acres, being the property of Minnie P. *Page 525 Orcutt, and the second, consisting of .85 part of an acre, being the property of Minnie P. Orcutt and Charles S. Orcutt, her husband, as tenants by the entireties. It is alleged that the land condemned is to be used for state forestry purposes. Appraisers appointed by the court fixed the damages of Minnie P. Orcutt at $424.50, and the damages of Minnie P. Orcutt and Charles S. Orcutt at $25.50. Exceptions to this report were filed by each of the parties, and the cause being at issue upon the question of the amount of damages was submitted to the jury for trial, which resulted in a verdict against appellant and in favor of Minnie P. Orcutt in the sum of $9,710.15, and in favor of Minnie P. Orcutt and Charles S. Orcutt in the sum of $17. Appellant's motions for a new trial and to modify the judgment were overruled, and these rulings are assigned as error. It appears that appellee Minnie P. Orcutt is the owner of 120 acres of land, consisting of three 40-acre tracts lying in a row from east to west; that the 6.65 acres appropriated is an irregular piece out of the north part of the east 40 and the northeast corner of the middle 40; that appellees, Minnie P. Orcutt and Charles S. Orcutt, are the owners as tenants by the entireties of a 5-acre tract immediately adjoining the northeast corner of the each 40 acres of Minnie P. Orcutt's land upon the east. The .85 part of an acre appropriated is part of this 5-acre tract. The 120 acres do not touch upon any public highway, but are entirely surrounded by land owned by the state, except at one point where they adjoin the land of a stranger and the point where they adjoin the land of Minnie P. Orcutt and Charles S. Orcutt. The 5-acre tract belonging to Minnie P. Orcutt and Charles S. Orcutt is located upon a public highway. Title to the 120 acres and the 5 acres was formerly united in the same person. At that time there *Page 526 was a roadway leading from the public highway across the 5-acre tract and across the 6.65 acres appropriated out of the 120-acre tract, and into the 120-acre tract, which was used as a means of ingress and egress from the 120 acres, and the same road has been continuously used for the same purpose until the present time, and is the only means of ingress and egress from the 120 acres and from what will remain of the 120 acres after the appropriation of the 6.65 acres. The case was tried, evidence was admitted, and jury instructed upon the theory that the appropriation of the 6.65 acres entirely cuts off the right to use the private way above described as a means of ingress and egress from the remaining 113 acres, and damages were assessed upon the theory that the 113 acres were entirely cut off from any means of reaching the public highway. The correctness of this theory is questioned by the errors assigned. There is a universally accepted doctrine that: "Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, 1-3. which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use. In such case, the law implies that with the grant of the one an easement is also granted or reserved, as the case may be, in the other, subjecting it to the burden of all such visible uses and incidents as are reasonably necessary to the enjoyment of the dominant heritage, in substantially the same condition in which it appeared and was used when the grant was made." John Hancock Mutual Life Insurance Co. v. Patterson (1885), *Page 527 103 Ind. 582, 586, 2 N.E. 188. The private way in question was in use when all of the tracts of land here involved were in the possession of a common owner, and was then, and has continued to be, the only means of reaching the public highway from the interior of the 120-acre tract. Whether the 5-acre tract or the 120-acre tract was first conveyed by the common owner does not appear nor is it material, since there was an obvious servitude imposed upon the 5-acre tract, now owned by Minnie P. Orcutt and Charles S. Orcutt, in favor of the 120-acre tract, to the extent of the use of the way as a means of communication with the public highway. The same roadway has been in continuous use for more than twenty years, not only across the 5-acre tract, but also the 6.65 acres, which are by this proceeding appropriated out of the 120-acre tract. Appellees do not question that, under the rule of law above referred to, in the absence of an express provision to the contrary, a way of necessity would be implied upon a severance of the land appropriated by grant or judicial proceeding, but they insist that the rule does not apply where the severance is brought about by exercise of the power of eminent domain; that there is no grant or contract involved in a condemnation proceeding; and that it is not a judicial proceeding, since the power of eminent domain vests in the legislative branch of the government. They rely upon those authorities which say that a way of necessity rests upon the implied intention of the parties, and contend that in a condemnation proceeding there can be no implied grants or reservations, since there is no contractual relationship. It is unquestionably the rule that the right to a way of necessity cannot arise against the lands of a stranger. The right can only be asserted where the tract claiming the right of way and that over which it is claimed descended from a common owner. The court, in Stewart *Page 528 v. Hartman et al. (1874), 46 Ind. 331, 341, 342, quotes as follows: "Kent says: `Sergeant Williams is of opinion, that the right of way, when claimed by necessity, is founded entirely upon grant, and derives its force and origin from it. It is either created by express words, or it is created by operation of law, as incident to the grant; so that, in both cases, the grant is the foundation of the title. If this be a sound construction of the rule, then it follows, that, in the cases I have mentioned, the right of the grantor to a way over the land he has sold, to his remaining land, must be founded upon an implied restriction, incident to the grant, and that it cannot be supposed the grantor meant to deprive himself of all use of his remaining land. This would be placing the right upon a reasonable foundation, and one consistent with the general principles of law.' 3 Kent Com. 423, original paging. Blackstone says: `A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come to it; and I may cross his land for that purpose without trespass.' 2 Bl. Com. 36, star paging. In the same place, Mr. Chitty, in his notes, says: `A way of necessity, when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant, for there seems to be no difference where a thing is granted by express words, and where by operation of law it passes as incident to the grant; and of course it is as necessary to set forth the title to a way of necessity as it is to a way by express grant'." And concludes that: "There cannot legally exist a general way of necessity without reference to the manner whereby the land over which the way is claimed became charged with the burden." It may be that the necessity of tracing title to a common owner to find a basis for the right to a way of *Page 529 necessity induced the statements that the right derives its force and origin from a grant, and still it is recognized that the right arises by operation of law, and not in any event by express contract. It is often said that the taking of land under the power of eminent domain is in the nature of a compulsory sale at a price to be agreed upon, or, upon failure of agreement, to be fixed by judicial determination. See cases, 20 C.J. 515, note 11. It is said upon abundant authority: "As in the case of the implication of easements generally, and with more potent reasons, a right to a way of necessity may arise where the severance of land is affected by judicial or legal proceedings." 9 R.C.L. 771. But it is clear that in many, if not in most, judicial proceedings there is no express grant from the owner, if there be grant at all, and that in most cases the severance is involuntary. Where there are express convenants in a deed, conveying all right, title, and interest of every kind and character, the implication that the parties contracted for, and that there was a grant of an easement for, a way is contrary to the express convenants, so that, in fact, it cannot be truly said that the right of way was created by grant or agreement of the parties. It may be more correctly said that it is created notwithstanding the terms of a contract to the contrary, and it is clearly apparent that the right is enforced without any evidence whatever of the intention of the parties. It would seem that to treat the transaction as an enforced grant or sale by the owner involves no more difficulties than are involved in implying an intention contrary to that which is expressed in a written conveyance. It is said in Dillman et al. v. Hoffman (1875),38 Wis. 559, that the doctrine originally arose because it was for the public good that the land should not be unoccupied, and it is said by the annotator in 8 L.R.A. 329, that this public policy is probably the true foundation for the doctrine. *Page 530 But, whatever is said to be the source of the doctrine, it is clearly apparent that it did arise in fact from the consciousness of courts that any other rule would be against the public interest. And if public policy requires that, in the absence of an express agreement to the contrary, the reservation of a way of necessity will be implied as against one who takes by private grant, no reason is seen why the same policy should not require the same result where the state enforces its right to take private property. If the public good is promoted in one instance it is in the other. The reasons for enforcing the right are identical in either case, and no good reason is seen why the state should not be presumed to have intended that which its policy presumes was intended by an individual under like circumstances. In Cleveland, C.C. St. L.R. Co. v. Smith (1912),177 Ind. 524, 539, 97 N.E. 164, the question under consideration was whether a landowner had an easement to pass over a railroad right of way through his land which had been taken by condemnation. It is said: "There was, after the 1869 condemnation, no practical means of travel to or from the tract south of the railroad and west of the creek, except over appellant's right of way, and in such case, a right of way of necessity, was, by legal implication, reserved in the owner, when the original condemnation proceedings were had." The cases cited and relied on are John Hancock Mutual Life Ins. Co. v. Patterson, supra, and others dealing with the right to a way of necessity in transactions between individuals. The court obviously believed that the same principles controlled the situation, and that the right to a way of necessity arises by implication of law where property is appropriated through the power of eminent domain, in the same manner as in the case of transactions between individuals. The court there apparently saw no distinction, and no distinction is *Page 531 seen now. And there is no basis for a distinction between cases where the state itself takes or where the power of eminent domain is exercised by municipalities or private corporations. There is nothing inconsistent with this view in the opinion in Cleveland,C.C. St. L.R. Co. v. Hadley et al. (1913), 179 Ind. 429, 101 N.E. 473. It may be inferred from the language of that opinion that, where a railroad condemns a right of way which divides the owner's land, the owner has the right to a crossing as a way of necessity, and that the cost and expense of constructing the crossing and maintaining it was a proper element to take into consideration in fixing the damage. There is now a statute providing for such crossings. In the case of New Jersey,etc., R. Co. v. Tutt et al. (1907), 168 Ind. 205, 80 N.E. 420, it was held that, when a railroad condemns a right of way over land through which there is an artificial ditch which serves the purpose of carrying away surface water only, there was no easement or right in the landowner to have the ditch maintained across the right of way, and it was assumed that damages for its obstruction were awarded at the time of the condemnation. The decision is based upon the ground that one may take such measures as he may deem expedient to keep surface water off from him, and, quite clearly, the court did not understand that the rule of a way of necessity was broad enough to include the right to drain surface water. The opinions in Evansville Terminal Railway v.Heerdink (1910), 174 Ind. 537, 92 N.E. 548, and Louisville N.R. Co. et al. v. Western Union Telegraph Co. (1916),184 Ind. 531, 111 N.E. 802, deal with and distinguish unaccepted promissory stipulations for future undertakings on the part of the condemning party of its own motion from reserved rights and easements, and there is nothing in those opinions inconsistent with the views here expressed. Appellees cite *Page 532 the case of Cedar Rapids, etc., R. Co. v. Raymond et al. (1887), 37 Minn. 204, 33 N.W. 704, which holds that in the case of condemnation of land by a railroad there are no implied reservations of a way of necessity. An examination of the opinion indicates that the decision was influenced by a statute. They also cite Banks et al. v. School Directors, etc., of McLeanCounty (1901), 194 Ill. 247, 62 N.E. 604. That case involved the condemnation of a site for a school house in the center of a pasture. There are expressions in the case which seem to sustain appellees' view, but the decision rests upon the ground that, by the issues and judgment, a way to the land condemned was excluded from the consideration of the jury in fixing the damages. The court therefore erred in the giving and refusal of instructions and the admission of evidence, upon the theory that the doctrine of way of necessity does not apply to condemnation proceedings. Upon motion of appellees, the court awarded judgment for the amount of the verdict plus interest at the rate of 6 per cent. per annum from the 19th day of July, 1933, which is said 4-6. in the judgment to be the date on which the plaintiff took possession. Appellant contends that the state is not liable for the payment of interest, except where there is a positive statute or an express contract providing for interest. But the Constitution provides that: "No man's property shall be taken by law, without just compensation." Art. 1, § 21, Constitution of Indiana. In New York, C. St. L.R. Co. v.Roper et al. (1911), 176 Ind. 497, 96 N.E. 468, it is held that, in cases in which the jury is required to determine the value of property at a given date in awarding damages, interest should be added to the date of verdict, and that otherwise the injured party is not fully compensated. Many persuasive reasons are given in demonstrating that compensation in such cases *Page 533 is not complete without interest for delay in payment. The reasoning fully applies to condemnation cases, and requires us to conclude that interest is a proper element of damage. But the interest should be included in the verdict, and the jury should be instructed accordingly, and there should be evidence as to the date of taking, for, if the landowner is permitted to remain in possession, notwithstanding title may be treated as passing as of the filing of proceedings, and remains in possession and enjoys the benefits of the appropriated land, interest should not be allowed. The question of interest in any given case is one of fact for the jury. For a discussion of other elements which affect the rule, see Schnull et al. v. Indianapolis UnionRailway Co. (1921), 190 Ind. 572, 131 N.E. 51; and State v.Hamer et al. (1936), post 570, 199 N.E. 589. Appellees were entitled to an instruction covering the elements of damage, and if interest was not included they cannot complain. The court erred in adding interest to the amount of the verdict. In view of what we have said, the other questions presented are not likely to arise upon another trial. Mrs. Orcutt's land is used as a fruit and berry farm. In the court below it was insisted that by the condemnation she would be deprived of access to the remaining 113 acres, and evidence 7. was introduced to show that without a means of reaching the highway the land would be of no value whatever. Appellant insisted that it took the condemned land subject to a right of way of necessity over the driveway which had been used in connection with the farm, and that the remaining 113 acres would continue to have the right to use the driveway, and that damages should be fixed accordingly, and consistently objected to testimony offered and instructions which were tendered upon the contrary theory, and tendered instructions consistent *Page 534 with its own theory. Since Mrs. Orcutt did not seem to wish to be deprived of the use of her remaining land, and since appellant insisted that it did not want to deprive her of that use, it is difficult to understand why the pleadings were not amended or other steps taken at the trial to clarify the issue and accomplish a result satisfactory to both parties. The case was tried upon appellee's theory, and the amount of recovery clearly indicates that the jury understood and believed that appellee's 113 acres would be useless. Upon a retrial it will be understood that appellees are entitled to damages based upon the value of the land taken, and any incidental damage to their remaining land, and that they cannot be deprived of their right of way to the public highway except in a proceeding which expressly condemns and deprives them of that right. Judgment reversed, with instructions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion. Treanor, J., dissents.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/7247106/

Gray H. Miller, United States District Judge MEMORANDUM OPINION AND ORDER Pending before the court is a motion for summary judgment filed by defendant Wells Fargo Bank, N.A. ("Wells Fargo"). Dkt. 15. Having considered the motion, response, reply, record evidence, and applicable law, the court is of the opinion that the motion should be DENIED. I. BACKGROUND In this employment discrimination case, plaintiff Rochelle Sims, an African American woman, worked as the branch manager of Wells Fargo's Waterside branch from 2010 to 2015. Dkt. 15-5. Initially, Wells Fargo paid Sims $50,147 and later increased her salary to $53,000. Id. *990As branch manager, she reported to various district managers, including Riad Ali. Dkt. 16 at 7. Sims received many performance reviews from her district managers. Dkts. 15-6, 15-7, 15-8, 15-9, 15-10, 15-11, 15-12. Those performance reviews regularly indicated that Sims "[m]et some but not all key targets" or "[m]et all and may have exceeded some key targets." Id. The reviews also contained specific instances of positive and negative feedback. Id. In 2013 and 2014, Sims received numerous awards for her job performance. Dkt. 16-3. Notably, she received one award on November 5, 2014. Id. Two days before, Wells Fargo placed Sims on a Performance Improvement Plan ("P.I.P."). Dkt. 15-13. The P.I.P. alerted Sims that she fell below the bank's expectations in various areas and gave her a plan to improve as manager. Id. Several months earlier in July 2014, Abdul Hannan transferred to Sims's branch as a business banking specialist. Dkts. 15-17, 15-18. As branch manager, Sims conducted Hannan's performance reviews. Dkt. 16-1 at 8. In March 2015, while conducting that review, Sims alleges that she learned the bank paid Hannan more than it paid her.1 Id. When Sims learned about the pay gap with Hannan, she gathered information about the salaries of male, non-African American branch managers ("Counterparts"). Id. at 5. She claims that the bank paid her Counterparts more than it paid her. Id. at 7. Sims acknowledges that certain factors (such as performance, experience, and tenure) dictate a manager's salary, but she claims she outperformed the other managers with respect to several of those factors. Id. at 4-5, 9. In the same month, Sims asked district manager Ali about her pay. Dkt. 16-1 at 8. She also discussed her pay with the bank's human resources department ("H.R."). Dkt. 15-2 at 17. Sims maintains that she specifically raised the issue of discrimination to H.R. Dkt. 16-1 at 10. Ali spoke with H.R. multiple times about Sims's pay and performance as branch manager. Dkt. 15-4 at 13-14; Dkt. 15-25. In April 2015, Sims and Ali met. Dkt. 15-2 at 20. Sims alleges that Ali told her to step down from her position and become a business banking specialist, or Wells Fargo "would eat her lunch." Id. Then, Sims transferred to a different branch and took on the business banking specialist role. Dkt. 15 at 14. Wells Fargo adjusted Sims's pay to $25.47 per hour, which equates to nearly $53,000 per year. Dkt. 15-5. Approximately a year after Sims's transfer, Wells Fargo promoted Hannan to manage a branch in Edison, New Jersey. Dkt. 15-29. Sims sued Wells Fargo alleging: (1) gender discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"); (2) race discrimination under Title VII; (3) violation of the Equal Pay Act ("EPA"); and (4) retaliation under Title VII. Dkt. 1. In the instant motion, Wells Fargo seeks summary judgment on all of Sims's causes of action. Dkt. 15. II. LEGAL STANDARD A court shall grant summary judgment when a "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party." Fordoche, Inc. v. Texaco, Inc. , 463 F.3d 388, 392 (5th Cir. 2006). The moving party bears the initial burden *991of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e). The court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org. v. City of Dallas , 529 F.3d 519, 524 (5th Cir. 2008). III. ANALYSIS A. Gender/Race Discrimination Sims alleges that Wells Fargo violated Title VII when it: (1) paid her less than Hannan and her Counterparts; and (2) demoted her and replaced her with Hannan, a non-African American male. Dkt. 1 at 4-5. Wells Fargo moves for summary judgment on those claims. Title VII prohibits employers from discriminating based on an individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Where, as here, a plaintiff only relies on circumstantial evidence, courts apply the framework from McDonnell Douglas . Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 345 (5th Cir. 2007) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ). Under McDonnell Douglas , Sims must first make a prima facie case of gender or racial discrimination. Vaughn v. Woodforest Bank , 665 F.3d 632, 636 (5th Cir. 2011). To establish her prima facie case, Sims must show that she was: (1) a member of a protected group; (2) qualified for the position in question; (3) subjected to an adverse employment action; and (4) replaced by someone outside of her protected class, or was treated less favorably than similarly situated persons outside of her protected class. Okoye v. Univ. of Tex. Hous. Health Sci. Ctr. , 245 F.3d 507, 512-13 (5th Cir. 2001). If Sims makes that showing, the burden of production shifts to Wells Fargo to identify a legitimate, nondiscriminatory reason for the adverse employment action. Johnson v. Louisiana , 351 F.3d 616, 621 (5th Cir. 2003). Finally, Sims-who bears the ultimate burden of persuasion to prove discrimination-must raise a genuine issue of material fact that Wells Fargo's proffered nondiscriminatory reason is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). 1. Prima facie case Wells Fargo first argues that Sims cannot establish her prima facie case because she cannot produce any evidence showing that she suffered an adverse employment action or that the bank replaced her, or treated her less favorably than, someone outside her class. Dkt. 15 at 16. Sims argues that the change of positions,2 which Ali forced upon her, and the pay gap (with Hannan and with her Counterparts) count as adverse employment actions. Dkt. 16 at 10-12. Wells Fargo challenges the alleged pay gap with Hannan by arguing that it paid Hannan less than Sims and that he does not count as a similarly situated comparator. Dkt. 15 at 16. The court agrees. Sims *992was a branch manager and Hannan was a business banking specialist. Sims produces no evidence she and Hannan were similarly situated.3 Without any such evidence, Sims does not have a claim for discrimination based on the pay disparity, if any, between them. However, Sims raises a material fact issue regarding the pay gap with her Counterparts. In her deposition, Sims stated that she knew that the bank paid her Counterparts more than she was paid.4 Dkt. 15-2 at 7. Thus, the amount the bank paid her Counterparts constitutes a material fact issue. Because there is a material fact issue on Sims's ability to establish her prima facie case, summary judgment is not appropriate on that ground. 2. Legitimate, nondiscriminatory reason Next, Wells Fargo argues that even assuming Sims makes her prima facie case, summary judgment is still proper because the bank had a legitimate, nondiscriminatory reason for any pay disparity and because Sims cannot prove that the bank's reason was pretextual. Dkt. 15 at 17. Wells Fargo meets its burden of showing a legitimate, nondiscriminatory reason. Wells Fargo's burden is " 'exceedingly light,' " and it " 'must merely proffer non[discriminatory] based reasons, not prove them.' " Lenihan v. Boeing Co. , 994 F.Supp. 776, 798 (S.D. Tex. 1998) (quoting Meeks v. Comput. Assocs. Int'l , 15 F.3d 1013, 1019 (11th Cir. 1994) ). Wells Fargo produces evidence that it uses a branch manager's performance, experience, and tenure to determine that manager's salary. Dkt. 15-2 at 4-5. Thus, to the extent that the bank paid any other branch manager more than Sims, it argues the pay disparity was because of that specific manager's performance, experience, and tenure. Dkt. 15 at 18. 3. Pretext Because Wells Fargo proffers a legitimate, nondiscriminatory reason for any pay disparity, Sims must raise a material fact issue on pretext to defeat summary judgment. Reeves , 530 U.S. at 142-43, 120 S.Ct. 2097. Sims does so. In her deposition, Sims stated that she knew "that [she] performed above as a store manager on [her] audits above [her Counterparts]." Dkt. 15-2 at 9. She explained that she had stronger customer service scores and more tenure than some managers. Id. Viewing the evidence in a light most favorable to Sims, she raises a material fact issue of whether Wells Fargo's nondiscriminatory reason was pretextual. Thus, Wells Fargo's motion is DENIED as to Sims's Title VII discrimination claims. B. Equal Pay Act Sims alleges that Wells Fargo violated the EPA by paying Hannan and her Counterparts more than she was paid. Dkt. 1 at 6. Again, the bank argues that Sims cannot establish her prima facie case. Dkt. 15 at 19. Sims argues that Hannan is a comparator for the purposes of her EPA claim and that the bank paid him more than it paid her. Dkt. 16 at 16. *993The EPA requires covered employers to pay employees of opposite sexes equal wages "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." 29 U.S.C. § 206(d)(1). To establish her prima facie case, Sims must show: "(1) that her employer is subject to the Act; (2) that she performed work in a position requiring equal skill, effort[,] and responsibility under similar working conditions; and (3) that she was paid less than members of the opposite sex." Jones v. Flagship Int'l , 793 F.2d 714, 722-23 (5th Cir. 1986) ; see also Chance v. Rice Univ. , 984 F.2d 151, 153 (5th Cir. 1993). If Sims does so, the burden shifts to Wells Fargo to demonstrate that it made disparate wage payments pursuant to: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based upon any factors other than sex. King v. Univ. Healthcare Sys., L.C. , 645 F.3d 713, 723 (5th Cir. 2011). Wells Fargo argues that Sims cannot produce evidence that it paid her less than her Counterparts.5 Dkt. 15 at 19. Further, the bank argues that Hannan cannot be Sims's comparator. Id. at 20. Thus, Wells Fargo claims that Sims fails to meet her initial burden. Id. While the court agrees that Hannan fails as a comparator, the bank fails to demonstrate the absence of a material fact issue regarding the pay of Sims's Counterparts. Wells Fargo claims that Sims admits that she can only speculate that she was paid less than her Counterparts. Id. at 19. But, the evidence demonstrates a material fact issue. In her deposition, Sims indicated that she can only speculate as to the salary of her Counterparts. Dkt. 15-2 at 7 ("Q. First of all, do you know what their pay was, any of [your Counterparts]? A. Not exactly."). However, Sims stated that she is aware that Wells Fargo paid those Counterparts more than she was paid. Id. Sims can have personal knowledge that her Counterparts were paid more than she was paid without having personal knowledge of their salaries. Thus, whether the bank paid Sims's Counterparts more than it paid her is a material fact issue, and summary judgment is inappropriate. Wells Fargo's motion is DENIED as to Sims's EPA claim. C. Retaliation Sims alleges that Wells Fargo retaliated against her when it demoted her for complaining to Ali about her pay. Dkt. 1 at 7. Wells Fargo argues that Sims cannot establish her prima facie showing of retaliation. Dkt. 15 at 21. Further, Wells Fargo argues that even if she could, Sims cannot point to any evidence showing that the bank's reason for the demotion was pretextual. Id. at 23. Sims responds that she makes her prima facie case and provides sufficient evidence that the bank would not have demoted her but for her protected activity. Dkt. 16 at 17-18. To make her prima facie showing in a retaliation case, Sims "must show that (1) [s]he engaged in conduct protected by Title VII; (2) [s]he suffered a materially adverse action; and (3) a causal connection exists between the protected activity and the adverse action." Jenkins v. City of San Antonio Fire Dep't , 784 F.3d 263, 269 (5th Cir. 2015). If Sims does so, the burden shifts to Wells Fargo to demonstrate a legitimate, non-retaliatory reason *994for the adverse employment action. Pineda v. United Parcel Serv., Inc. , 360 F.3d 483, 487 (5th Cir. 2004). Sims then assumes the burden to present proof that the bank's stated reason is pretextual. McCoy v. City of Shreveport , 492 F.3d 551, 557 (5th Cir. 2007). Under this framework, Sims's ultimate burden is to prove that the adverse employment action would not have occurred "but for" her protected conduct. Pineda , 360 F.3d at 487. In other words, "this requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013) ; see also Long v. Eastfield Coll. , 88 F.3d 300, 305 n.4 (5th Cir. 1996). 1. Prima facie case Wells Fargo argues that Sims's prima facie case fails because she cannot present any evidence that she engaged in protected conduct or that a causal connection exists between any protected conduct and her demotion.6 Dkt. 15 at 21. Sims argues that she engaged in protected conduct when she complained about her pay to Ali and to H.R.7 Dkt. 16 at 17-18. Wells Fargo correctly asserts that the alleged protected conduct must at least alert an employer to the employee's reasonable belief that unlawful discrimination is at issue. Brown v. United Parcel Serv., Inc. , 406 Fed.Appx. 837, 840 (5th Cir. 2010). As for her complaints to Ali, Sims points to no evidence that she raised any issues of discrimination. Rather, the evidence only shows that Sims asked about her pay. Dkt. 16-1 at 9 ("I had already reached out to [Ali]. And when I did, I had reached out to human resources as well about my pay."); Dkt. 15-2 at 19 ("[Ali] came into the branch and we sat and spoke and I asked him about my concerns about my pay."). Sims points to no evidence to raise a fact issue regarding whether she alerted Ali to concerns of discrimination. Thus, Sims's complaints to Ali do not constitute protected conduct. But, Sims raises a material fact issue regarding her complaints to H.R. Wells Fargo suggests that Sims cannot show that her complaints were based on discrimination. Dkt. 15 at 22. However, Sims points to evidence that she did raise that issue with H.R. Dkt. 16-1 at 10 ("Q. Is there anything else you can remember about your conversation with the woman [in H.R.]? A. Not that I recall outside of my concerns about the discrimination and the retaliation that I was going through."). Thus, Sims provides evidence that she engaged in protected conduct. Further, a material fact issue exists on causation. Sims's prima facie case only requires her to show that she made a complaint, her supervisor knew about the complaint, and her supervisor took adverse action against her after learning of the complaint. See Long , 88 F.3d at 306. Wells Fargo admits that Ali spoke with H.R. about Sims's complaint to the department. Dkt. 15 at 12. After that conversation, he met with Sims and demoted her. Id. at 14. *995Because material fact issues exist on two prima facie elements of Sims's retaliation claim, summary judgment is not appropriate on that ground. 2. Legitimate, non-retaliatory reason Next, Wells Fargo argues that its legitimate, non-retaliatory reason for the demotion and Sims's inability to prove pretext warrants summary judgment. Id. at 23. Wells Fargo produces evidence that it made Sims transfer from branch manager to business banking specialist because Ali thought Sims would be "better suited" in the latter role. Dkt. 15-2 at 20. Further, Wells Fargo produces evidence that Sims was struggling to perform as branch manager, giving Ali reason to make her transfer. See Dkts. 15-6, 15-7, 15-9, 15-10, 15-11, 15-12, 15-13, 15-14, 15-23. This reason, "taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Thus, "the focus shifts to the ultimate question of whether the defendant unlawfully retaliated against the plaintiff." Long , 88 F.3d at 305. 3. Pretext Because Wells Fargo has provided a legitimate, non-retaliatory reason for the demotion, Sims must provide enough evidence to raise a material fact issue that the demotion would not have occurred "but for" the protected activity in order to defeat summary judgment. Id. at 308. In other words, Sims must provide evidence that the reason proffered by the bank was a pretext. Id. Viewing the evidence in the light most favorable to Sims, a material fact issue exists on the reason for Sims's demotion. Sims produces evidence that throughout 2013 and 2014, she received numerous awards for her performance as branch manager. Dkt. 16-3. Wells Fargo alleges that Sims failed to meet expectations as branch manager during that same time period. Dkt. 15 at 10. Notably, Sims received one award just two days after the bank placed her on the P.I.P. Dkt. 16-3 at 10; Dkt. 15-13 at 2. While Sims admits that her performance reviews are fair, the question still remains if the performance reviews justified her demotion, especially when viewed in light of Sims's awards. Wells Fargo's evidence suggests that its justification for demoting Sims was not pretextual, but the "evidence is not of such magnitude that a reasonable jury could only find in their favor." Russell v. McKinney Hosp. Venture , 235 F.3d 219, 225 (5th Cir. 2000). Thus, summary judgment is inappropriate and Wells Fargo's motion is DENIED as to Sims's retaliation claim. IV. CONCLUSION Because Sims produces enough evidence to raise material fact issues on her causes of action, Well Fargo's motion for summary judgment (Dkt. 15) is DENIED. It is further ORDERED that the joint motion for continuance (Dkt. 20) is DENIED. Wells Fargo claims that it paid Sims more than Hannan, not including Hannan's overtime compensation. Wells Fargo's evidence supports that claim. Compare Dkt. 15-5, with Dkt. 15-18 (indicating that Sims made $25.25 per hour in March 2015, resulting in an annual pay of $52,520 at 40 hours a week for 52 weeks). In her complaint, Sims argues that she was replaced as branch manager by Hannan. Dkt. 1 at 3. Sims seems to abandon that argument in her response to Wells Fargo's motion for summary judgment. Further, no evidence supports that assertion. Thus, Sims cannot establish her prima facie case for her demotion because she provides no evidence that she was replaced by someone outside her class or treated less favorably than similarly situated persons outside her class. In an unrelated section of her response, Sims argues that "[t]here is no question that Mr. Hannan took over many of the duties that Ms. Sims performed as a Branch Manager when he transferred to her location." This unsupported claim is no evidence that Hannan did, in fact, share responsibilities and duties with Sims. Wells Fargo conclusorily asserts that Sims relies on speculation, rumors, and inadmissible hearsay to support her claim. Dkt. 15 at 16. However, Wells Fargo does not object to any piece of evidence proffered by Sims, and certainly not with any specificity. Thus, the court will consider the evidence Sims relied on. Sims does not respond to this argument, and thus it is unopposed. S.D. Tex. L.R. 7.4. However, Wells Fargo still bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. , 477 U.S. at 323, 106 S.Ct. 2548. Wells Fargo seems to suggest that the change in position was not a demotion and was Sims's voluntary choice. Dkt. 15 at 22. However, for the purposes of this motion, Wells Fargo fails to argue whether the position change constitutes an adverse employment action. Thus, the court need not consider that potential ground for summary judgment. In her complaint, Sims only asserts that her complaint to Ali constituted a protected activity. Dkt. 1 at 7. But, the court finds that, reading the complaint as a whole, it can be construed broadly enough to allege that the complaint to H.R. also constituted a protected activity.

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/3426393/

ON PETITION FOR REHEARING. Appellee contends that we should not have reversed this cause because of excessive damages, but asks in case we do not grant a rehearing, that we exercise our right to order a remittitur 5. so as to bring the action to an end. This court will not weigh the evidence in order to determine whether there should be a recovery. But, in determining whether the damages are excessive and whether there shall be a remittitur, we will consider all the evidence bearing upon that question. If the damages assessed had been for a nominal sum, we would not have reversed the judgment, and while we are of the opinion that justice calls for a new trial, we have, upon mature consideration, concluded that if appellee will within thirty days remit all of the verdict in excess of twenty-five dollars as of the date of the verdict, the cause will be affirmed. Upon failure of appellee to file with the clerk of this court a certificate of the clerk of the trial court showing such remittitur, the order of reversal will stand. Petition for rehearing denied. *Page 199

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426376/

The Appellate Court of Indiana, on May 21, 1930, purported to decide this case, its entry reading as follows: "Per Curiam. — Affirmed." The appellants, within 60 days thereafter, filed a petition for rehearing, in which they requested the Appellate Court to state the reasons why it had affirmed the decision of the trial court, which petition was overruled July 30. On August 28, the appellants filed in this court a petition (application) for the transfer of the case to the Supreme Court. The appellee has filed a motion to dismiss this petition on the ground that, since the Appellate Court wrote no opinion when it affirmed the judgment, its opinion does not (1) contravene any ruling precedent of the Supreme Court or (2) decide any new question of law erroneously (which are the only grounds that can *Page 330 be relied upon in a petition for transfer under subd. 2, § 1357 Burns 1926). A question thus arises, which we shall consider, viz.: Does a party to an appeal in the Appellate Court have a right guaranteed by the Constitution or provided by statute to have a written opinion or statement in writing of the material questions arising in the record thereof? The Constitution of 1816 contained no provision requiring the Supreme Court to render any of its decisions or opinions in writing, but § 26, ch. 1, of the acts of 1816 provided that: "the opinions and determinations of the Court shall be delivered in writing, except in cases and on subjects of an unimportant nature, which opinions and determinations shall be recorded by the clerk in a book kept for that purpose." This provision was incorporated substantially in § 89, ch. 37, Revised Statutes 1843 p. 639. The debates of the Constitutional Convention of 1850 indicate (vol. 2, p. 1862) that there was a continued disregard of this statute by the Supreme Court1 which *Page 331 resulted in the adoption of § 5, Art. 7, Constitution 1851, § 172 Burns 1926. This section reads as follows: "The Supreme Court shall, upon the decision of every case, give a statement in writing of each question arising in the record of such case and the decision of the court thereon." Six years later, this court, in Willets v. Ridgeway (1857),9 Ind. 367, said that such provision should receive a construction which would "obviate its inconvenience and objectionable character, as far as consistently can be done,"2 and held that "a question arising in the record" (within the meaning of those words as used in the Constitution) must be "a question, the decision of which is necessary to the final determination of the cause; and which the record presents with a fullness and distinctness rendering it possible for the court to comprehend it in all its bearings." Section 15, ch. 247, Acts 1901, § 1351 Burns 1926 (a substantial re-enactment of § 12, ch. 37, Acts 1891 — the act creating the Appellate Court) provides that: "Appeals to the Appellate Court shall be taken in the same manner and with the same effect and subject to the same limitations and restrictions as are now or hereafter may be provided in case of appeals to the Supreme Court. . . . The rules of court, pleadings, practice and proceedings in cases assigned or transferred to said divisions [of the Appellate Court] shall be the same as provided by or for the Supreme Court." Section 17, ch. 247, Acts 1901, § 1361 Burns 1926 (a *Page 332 substantial re-enactment of § 13, ch. 37, Acts 18913 the act creating the Appellate Court) provides that: "In every case reversed by the Appellate Court an opinion shall be given on the material questions therein in writing and the appropriate judgment shall be entered with directions to the lower court," etc. By the provisions of § 1351 Burns 1926, supra (that appeals to the Appellate Court are subject to the same limitations, restrictions, rules and proceedings as are appeals to the 1. Supreme Court) the requirement of § 5, Art. 7, Constitution 1851, § 172 Burns 1926 (that a statement in writing be made in the decision of cases appealed to the Supreme Court) is, by statute, extended to the cases appealed to the Appellate Court. In Houston v. Williams (1859), 13 Cal. 24, 73 Am. Dec. 565, it was held that a legislature has no power to impose such a requirement on the courts. This question seems not to have been raised elsewhere (except in Speight v. People, ex rel. [1877], 87 Ill. 595, and Vaughn v. Harp [1886], 49 Ark. 160, 4 S.W. 751), although statutory provisions (as well as constitutional provisions), requiring written decisions or opinions are not uncommon.4 *Page 333 The requirement of our Constitution in this regard is onerous and burdensome, but it was placed in our basic law to cure an abuse that had occurred, and that is apt to occur when a 2. court of appeal is not required to give reasons for its decisions, nor even to state what the questions are which are involved and its decision thereon.5 The Legislature may prescribe reasonable regulations and restrictions for the appeal of cases, and we cannot say that it is unreasonable to provide that *Page 334 the same rule shall govern the Appellate Court which is enjoined by the Constitution upon the Supreme Court. In Craig v. Bennett (1901), 158 Ind. 9, 62 N.E. 273 it was held that the requirement imposed by § 5, Art. 7, Constitution 1851 upon the Supreme Court does not control the Appellate 3. Court, while § 1361 Burns requires that in every case reversed by the Appellate Court an opinion in writing must be given on the material points. But the court there apparently failed to take notice of the provisions and effect of § 1351 Burns 1926 (then § 1337o Burns 1901). If § 1351 imposes upon the Appellate Court the duty of giving "a statement in writing of each question arising in the record of such case and the decision of the court thereon" in all cases, then § 1361, providing that, "in every case reversed by the Appellate Court, an opinion shall be given on the material questions therein in writing," is not sufficient to relieve that court of the duty imposed by § 1351 (regarding all cases, which includes cases affirmed). It follows that the decision in Craig v. Bennett,supra, on this point must be overruled. The clerk is directed to provide the Chief Judge of the Appellate Court of Indiana with a copy of this opinion, and the attention of that court is respectfully directed to the statements of law made herein. In the case under consideration, the judgment of the Appellate Court has not been certified to the lower court. It follows from what has been stated that the parties are entitled to a 4. decision and judgment herein by the Appellate Court in the manner directed by § 5, Art. 7, Constitution 1851, § 172 Burns 1926 and § 1351 Burns 1926, that no such judgment has been rendered and that the cause is still pending in the Appellate Court for a proper decision. The appellees' motion to dismiss appellant's petition to transfer, being founded on the incorrect premise that *Page 335 a valid decision and judgment was rendered by the Appellate Court, is insufficient and is overruled. A petition to transfer being authorized only after a valid decision and judgment has been rendered, and a petition for 5. rehearing of the same has been overruled, the appellant's petition is dismissed. In making the foregoing decision, the court is not unmindful of the fact that, in addition to overruling Craig v. Bennett, supra, it is, in effect, overruling its former uniform 6, 7. action in denying petitions to transfer in cases where the Appellate Court gave no written decision or opinion. Under the law as stated herein, these former rulings on petitions to transfer are erroneous, but, they must, of necessity, remain the law of those cases. Likewise, in all disposed-of cases in which the Appellate Court has entered judgments of affirmance without written opinions or decisions and such judgments have been certified to the lower court (after the expiration of the time in which they could be attacked), they must remain the law of such cases. Travis, J., dissents. Myers, C.J., concurs in the result. 1 Mr. Thomas W. Gibson of Clark County, in offering this section, said: "The object I have in view is to put an end to a species of dodging questions which has been practiced in our Supreme Court from its organization, and which has increased, from year to year, until it has become an intolerable evil. "You try a cause before the Circuit Court involving large interests, or perhaps, liberty or life. The various questions of law arising on the trial, are placed upon the record, and the losing party brings his case to the Supreme Court for the purpose of having those questions passed upon by the highest judicial tribunal of the State. The Supreme Court will, in some instances, affirm the judgment of the court below without giving any opinion in writing upon the questions involved; in other cases they will decide some one of the questions, reverse the case and leave the other points untouched. The case goes back to the Circuit Court to be tried over again, and again brought back to the Supreme Court, upon the very questions that they ought to have decided at first. . . . "The section I offer does not require of the court a long argumentative opinion — about that the judges can consult their own taste. All that it requires is that they shall, in all cases, state what they do decide, and I think that the universal experience of the bar will bear witness to the necessity of some provision of the kind." 2 The court then observed (Willets v. Ridgeway, supra, at p. 369): "It is true that the Constitution, by an unwise provision, requires that this court shall give a written opinion upon every point arising in the record of every case — a provision which, if literally followed, tends to fill our reports with repetitions of decisions upon settled, as well as frivolous, points, and often to introduce into them, in the great press of business, premature and not well considered opinions, upon points only slightly argued; yet it is a provision not to be disregarded, though merely directory, like that requiring the legislature to use good English." 3 In the 1891 act, it was provided that: "In every case reversed, an opinion shall be given upon the material questions therein in writing, stating the reasons," etc. § 13, p. 42, Acts 1891. 4 CONSTITUTIONAL PROVISIONS: "All decisions of the (Supreme) Court shall be in writing and the grounds of the decision shall be stated." Ariz. Const. Art. 6, § 2; Cal. Const. Art. 6, § 2; Wash. Const. Art. 4, § 2. "When a judgment or decree is reversed, . . . or affirmed by the Supreme Court . . . the reasons therefor shall be stated . . . in writing." Va. Const. Art. 6, § 90; Utah Const. Art. 8, § 25. "When a judgment or decree is reversed or confirmed by the Supreme Court, every point fairly arising upon the record of the case shall be considered and decided, and the reasons therefor shall be concisely stated in writing," . . . N. Dak. Const. § 101. "In all cases decided by the (Supreme) Court it shall give its decision in writing . . . together with headnotes briefly stating the points decided." Minn. Const. ch. 5, § 134. "Decisions of the Supreme Court, including all cases ofmandamus, quo warranto and certiorari, shall be in writing, with a concise statement of facts and reasons for the decisions." Mich. Const. Art. 7, § 7. "The opinions of the (Supreme) Court shall be in writing" . . . Mo. Const. Art. 6, § 15. "In every case an opinion in writing shall be filed within three months after the argument or submission of the cause." Md. Const. Art. 4, § 15. (Provision for written opinions to be given by Supreme Court to the Governor or the legislature upon important questions of law and upon solemn occasions are made in Mass. Const. Art. 146 Judicial Dept.; R.I. Const. Art. 7, § 2; Colo. Const. Art. 6, § 2.) STATUTORY PROVISIONS: "Decisions in writing" in all cases are required of Supreme Court by: Idaho, § 6446 Compiled Statutes 1919, Ill. ch. 37, § 25, R.S. 1927, N.D. § 7343 Compiled Laws 1913; Utah, § 6995 Compiled Laws 1917; Wis. § 2410 Statutes 1921. The Idaho statute provides that: "If a new trial be granted the court shall pass upon and determine all questions of law involved in the case presented upon such appeal and necessary for the final determination of the case." "All opinions and decisions rendered by the Supreme Court" are required to be in writing by Nevada, § 4839, Rev. Laws 1912, and "a written synopsis of the points decided" is required by Ga. § 6202 Code. "Written opinions" in all cases are required of Supreme Court by: N.H. § 1290 Public Laws 1926; Tenn. Art. 5, § 5735 Anno. Code 1918. All opinions of the Illinois Appellate Court are required to be "reduced to writing, briefly giving the reasons for such opinion or decision." Ill. ch. 37, § 49, R.S. 1927. Written opinions "stating the reasons upon which the decision is made" are required "in all cases settling important principles, in cases . . . where the judgment or decree of the court below is reversed, and in all felonies where the punishment prescribed is 10 years or more." Miss. § 3399 Anno. Code 1927. Written opinions shall be delivered in all cases (in Supreme and certain other courts) "if either party by himself or counsel require it." Penna. § 17287 Statutes 1920. 5 In this connection it is interesting to note the following, which is an extract from the 19th Canon of Judicial Ethics adopted by the American Bar Association on July 9, 1924, published in American Bar Association Reports (1929) vol. 54, p. 927: "In disposing of controverted cases a judge should indicate the reasons for his action in an opinion showing that he has not disregarded or overlooked serious arguments of counsel. He thus . . . avoids suspicion of arbitrary conclusion . . . and may contribute useful precedent to the growth of the law. . . . But the volume of reported decisions is . . . so rapidly increasing that in writing opinions that are to be published judges may well take this fact into consideration, and curtail them accordingly. . . ."

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426377/

The appellee, Chester E. Allen, filed his claim for compensation with the Industrial Board making the appellants, William C. Freund, his wife, Stella Freund, and Edward G. Eikman, administrator of the estate of George O. Johnson, deceased, defendants. Several partial hearings were had before single members of the board at different times. Finally, on February 19, 1932, a single member of the board made an order awarding compensation against all three of the appellants. The appellants Freund and Freund filed an application for a review of the award by the full Industrial *Page 662 Board. On September 12, 1932, a majority of the full Industrial Board made an order awarding the appellee Chester E. Allen compensation against the Freunds and Eikman as administrator of the estate of George O. Johnson, deceased. Appellants have appealed from this award. In their assignment of errors they allege twenty-three causes for reversal. The first error assigned, that the award of the full Industrial Board is contrary to law, is sufficient to present all alleged errors sought to be presented by the record. Section 61, Indiana Workmen's Compensation Act, Acts 1929, p. 536, ch. 172, § 40-1512, Burns 1933, § 16437, Baldwin's 1934; Frazer v. McMillan (1932),94 Ind. App. 431, 179 N.E. 564; Clark v. Woods (1933),95 Ind. App. 530, 183 N.E. 804. It is not necessary to set out or consider the other errors assigned for reversal. On June 10, 1930, the appellee Chester E. Allen and one George O. Johnson were painting on a building owned by the appellants, Freund and Freund, as tenants by the entireties. While thus engaged the scaffold on which Allen and Johnson were standing gave way, precipitating both of them to the ground, resulting in the instant death of Johnson, and injuring Allen. Neither Allen nor Johnson carried compensation insurance under "The Indiana Workmen's Compensation Act of 1929," Acts 1929, p. 536, ch. 172. The appellants Freund and Freund did not require a certificate from either of them previous to undertaking the job of painting, as required by Sec. 14 of said act. On January 9, 1933, in response to a writ of certiorari issued from this court, the Industrial Board filed a corrected award. That portion of the finding of fact and award necessary to be set out for the purpose of this opinion is as follows: "The full Industrial Board of Indiana having heard the argument of counsel and having examined the briefs submitted by respective counsel *Page 663 and having reviewed the evidence and being thereby duly advised in the premises, a majority of the members of said board find: "That on and prior to June 10, 1930, one George O. Johnson entered into a contract with the defendants William C. Freund and Stella Freund whereby the said George O. Johnson was to paint the premises of the defendants William C. and Stella Freund, in the city of Indianapolis, for a consideration; that the said George O. Johnson employed the plaintiff Chester E. Allen at an average weekly wage of $30.00, to assist and perform labor in the painting of said premises pursuant to said contract with the defendants Freunds; that on June 10, 1930, the plaintiff, while engaged in said employment, received a personal injury by reason of an accident arising out of and in the course of his said employment by the said George O. Johnson, of which accidental injury the said George O. Johnson, and the defendants Freunds, had knowledge but did not furnish medical attention. "That as a result of said accidental injury the plaintiff was totally disabled at the time of said injury and which disability continued and plaintiff was totally disabled at the time of this original hearing on November 27th, 1931. "That since the date of said injury the said George O. Johnson has died and one Edward G. Eikman, the duly qualified administrator of his estate, is made a party defendant herein. "Said members further find that at the time of the accidental injury to the plaintiff, the defendant George O. Johnson, had failed to comply with sections 5, 68 and 69 of the Indiana Workmen's Compensation Act of 1929, and at the time of making agreement with said George O. Johnson, the said William C. Freund and Stella Freund, had failed to exact from said George O. *Page 664 Johnson a certificate from the Industrial Board of Indiana, showing that said defendant, George O. Johnson, had complied with sections 5, 68 and 69 of the Indiana Workmen's Compensation Act of 1929 as the defendants William C. Freund and Stella Freund was required to do by Section 14 of said act. AWARD "It is, therefore, considered and ordered by a majority of the members of the Industrial Board of Indiana that plaintiff be and is hereby awarded as against the defendant, Edward G. Eikman, Administrator of the estate of George O. Johnson, deceased, and the defendants, William C. Freund and Stella Freund, compensation at the rate of $16.50 per week, beginning on the 17th day of June, 1930, said compensation payments to continue so long as the plaintiff is totally disabled as the result of said accidental injury. "It is further ordered that the resources of the defendant, Edward G. Eikman, Administrator of the Estate of George O. Johnson, be exhausted before recourse is taken upon the resources of the defendants, William C. Freund and Stella Freund. "It is further ordered that the defendants pay the necessary and reasonable medical, surgical, hospital and nurse expenses for the first thirty days following date of said injury. "It is further ordered that all deferred payments of compensation be brought up to date and paid in cash in a lump sum." Appellants complain of the action of the Industrial Board in correcting its finding of facts by inserting therein the average weekly wage of the appellee Allen. Section 45 of the above 1. act gives to the board the power to make this correction. Appellants contend that the evidence is not sufficient to sustain the finding of facts made by the Industrial *Page 665 Board. We have carefully and diligently examined all the 2. evidence submitted at the various hearings before single members of the board and before the full board. There is competent evidence to sustain the finding of facts of the majority of the full board in every respect, except as to the appellant Stella Freund. There is no evidence in the record to sustain the finding of facts upon which the award against her is based. Where the evidence is conflicting, as in this case, except as to the appellant Stella Freund, concerning whom there is no evidence whatsoever, connecting her with the transaction out of which this controversy arose, and the Industrial Board has made a finding of facts, such finding is binding upon this court, and it will not weigh the evidence. Wagner v. Wooley (1926),85 Ind. App. 259, 152 N.E. 856; Moore v. Copeland (1928),88 Ind. App. 54, 163 N.E. 235. Under Section 14 of the Workmen's Compensation Act, supra, it was the duty of appellants, Freunds, if they wanted to avoid liability for compensation, to exact from Johnson a 3. certificate from the Industrial Board showing that he had complied with Sections 5, 68, and 69 of the act. Any statements made to them by Johnson, at the time the purported contract was entered into, regarding the relation existing between himself and Allen, or any inferences which they may have drawn from other facts or circumstances in the case as to the contractural relations existing between Allen and Johnson could not relieve the appellants, Freunds, from demanding the certificates. Moore v. Copeland, supra. The Industrial Board did not commit error in refusing to admit in evidence a compensation insurance policy carried by the appellant William C. Freund, for even though he did carry 4. such a policy, this fact would not relieve appellant Freund from exacting the certificate. *Page 666 Appellants say that the Industrial Board had no jurisdiction to make an award against the estate of George O. Johnson. In the recent case of Clark v. Woods, supra, this court held 5. that where a contractee, contracting with the injured employee's contractor did not exact from the contractor a certificate as required by Section 14, of the Workmen's Compensation Act, that the employee's right of compensation survived against said contractee's legal representatives. The contractual relation between the contractor and employee in the instant case is closer than it was in the case of Clark v.Woods, supra, where there was no direct contractual relation existing between the employee and the contractee. It follows, as a necessary conclusion, from the reasoning in that case, that the estate of George O. Johnson was liable to the appellee Allen for compensation. Complaint is made because the award of the board does not fix a definite time during which compensation shall be paid. The board found as a fact, "That as a result of said accidental 6. injury the plaintiff was totally disabled at the time of said injury and which disability continued and plaintiff was totally disabled at the time of this original hearing on November 27, 1931." Section 29 of the act reads as follows: "For injuries causing temporary total disability for work there shall be paid to the injured employee during such total disability but not including the first seven calendar days thereof, a weekly compensation equal to fifty-five per cent of his average weekly wages for a period not to exceed five hundred weeks." The accident occurred on June 10, 1930. The award provides for "compensation at the rate of $16.50 per week, beginning on the 17th day of June, 1930, said compensation payments to continue so long as the plaintiff is totally disabled as a result of said accidental injury." Section 29 limits the *Page 667 length of time during which payments must be made. Section 40 of the act provides that in no event shall the amount of compensation to be paid exceed $5,000. Thus the law fixes the maximum amount and time for which compensation must be paid whether stated in the award or not. The award was sufficiently definite. Should there be a change in the condition of appellee Allen, the appellants have their remedy, for Section 45 of the act provides that the board shall have continuing power and jurisdiction from time to time, upon its own motion, or upon the application of either party, on account of a change in condition to make such modification and change in the award as it may deem just, subject to the maximum or minimum provided in the law. Appellants Freunds did not offer to file their special answers as required by the rules of the Industrial Board, so there 7. was not an abuse of discretion in refusing to allow them to be filed. Complaint is also made of the admission and rejection of certain evidence. We do not think the Industrial Board abused its discretion in this respect. The Industrial Board is an 8. administrative body and the strict rules of law regarding the admission of evidence do not apply. Milholland v.Griffiths (1931), 94 Ind. App. 62, 178 N.E. 458; Inland SteelCo. v. Pigo (1932), 94 Ind. App. 659, 182 N.E. 279. The award is reversed as to the appellant Stella Freund, with instructions to the Industrial Board to set the award aside as to her. The award is affirmed as to the appellants William C. Freund and Edward G. Eikman administrator of the estate of George O. Johnson, with the penalty of five per cent as provided by statute. *Page 668

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426387/

This is an action by appellant Robert Banner, a minor, by his next friend, against appellees for damages for personal injuries received by appellant when he was struck by an automobile as he was crossing Lyman Avenue from an abutting alley, in the city of Hammond, Indiana. Appellant was crossing the street "on foot," and the automobile was being driven by appellee Caroline Hohman. The issues were formed by an amended complaint consisting of three paragraphs and an answer in general denial. The cause was submitted to a jury for trial and the jury returned a general verdict in favor of all the appellees, and the court rendered judgment in accord with the verdict, for appellees. *Page 638 Appellant filed a motion for new trial, which was overruled, and perfected this appeal. The only alleged error presented which needs be discussed is alleged error in the giving of Instruction No. 34. Other questions are presented but in view of the conclusion we have reached with reference to that alleged error, and in view of the fact that it is not probable that said other questions will be presented in another trial of this cause, it is not necessary that we discuss them. It is not necessary that we discuss in detail the theories of the various paragraphs of complaint, or the evidence introduced to prove the allegations thereof. It is sufficient in that regard to say that the plaintiff proceeded upon the theory that appellee Caroline Hohman at the time of the accident was driving the automobile as an agent of appellees Charles G. Hohman and Christina Hohman, her father and mother; that she, Caroline, was then and there negligently driving said automobile and that the injuries to appellant were caused by her negligence. Appellees proceeded upon the theory that Caroline was not negligent in driving the automobile, and upon the theory that appellant was then and there contributorily negligent and that his negligence caused the injuries. In the course of introducing defendants' evidence, one of their witnesses was permitted, over appellant's objections, to testify that on two occasions, both of which were at least six months before the accident involved in the instant case, and on a different street in the city of Hammond, appellant ran in front of the witness' automobile and on one of said occasions the witness had to step on the brake to keep from hitting appellant. Before permitting the witness to testify to that effect the court admonished the jury as follows: "Gentlemen of the jury you are instructed that *Page 639 we are not trying any other accident or any other issue, and the only purpose of introducing this evidence is that the jury may form whatever opinion it pleases as to the weight to be given certain testimony in the case. I do feel that the court hasn't any right to exclude it, because it may be pertinent on the question of the weight to be given certain evidence in the case." Instruction No. 34 which was given to the jury is as follows: "If you find from the preponderance of the evidence that the plaintiff had on previous occasions carelessly run in front of other cars while in motion, you are entitled to consider this evidence, if any, in determining whether or not the plaintiff was guilty of contributory negligence at the time and place of the accident, taking into consideration the ordinary care required of the plaintiff, as you have been heretofore instructed." By that instruction the court in effect told the jury that they could consider said evidence of appellant running in front of said witness' automobile six months before the accident, on adifferent street, as tending to prove that appellant was contributorily negligent at the time of the accident. Under that instruction, appellant could be proven to have been contributorily negligent at the time of the accident by evidence of his former acts of negligence, which acts were not connected with his conduct at the time of the accident. See Ogle et al. v. Brooks (1882), 87 Ind. 600. "Negligence is a question of fact, . . . and must be determined by the facts and circumstances that occurred at the time . . ." (Our italics.) The Pitt., Ft. Wayne Chi. Rwy. Co. v. Ruby (1871), 38 Ind. 294, p. 312. Appellees contend, "A. Where the direct evidence shows that an act was done or omitted, it is competent to prove that a custom existed prior to that time to do or not to do such act. . . . B. In determining the sufficiency *Page 640 of a certain instruction, it is not necessary that all of the law applicable to the case be incorporated therein, but it suffices if the instructions taken as a whole correctly state the law involved. C. . . . Instructions given upon the admission of evidence must be considered in conjunction with the general instructions given at the close of the case." It is not necessary for the purpose of this appeal that we determine the validity of any of said contentions of appellees, and we do not do so. The effect of said contentions, as applied to the instant case, is that since the evidence as to appellant's negligence at the time of the accident resulting in appellant's injuries was contradictory, evidence of appellant's "custom" or habit of running across streets in front of approaching automobiles was admissible; that in construing Instruction No. 34, we must construe it in conjunction with all the other instructions given, including the instruction given when said evidence of other negligent acts of appellant was introduced. Assuming, but not deciding that all of said contentions are tenable, the harmful characteristics of Instruction No. 34 would not be obviated by the application of the principles of law contended for. The court gave no other instructions relative to the purpose or purposes for which said evidence might be considered. The court gave no instruction relative to evidence, if any, of appellant's habit of running across streets in front of approaching automobiles. It is apparent that the instruction given at the time of the admission of said evidence did not advise the jury in that regard. (For list of authorities relating to habit evidence see Annotations 15 A.L.R. 125, and 18 A.L.R. 1109. Appellees have cited Pitt., etc., Rwy. Co. v. McNeil [March 20, 1903], 66 N.E. 777, in support of their said contentions. The records in the office of the *Page 641 clerk of this court show that a rehearing was granted in that cause by this court on December 8, 1903, and this court finally decided said cause on January 12, 1904, see Pitt., etc., Rwy.Co. v. McNeil [1904], 34 Ind. App. 310, 69 N.E. 471 [transfer denied December 15, 1904]. Said later opinion of this court does not support appellees' said contentions.) We hold that the court committed reversible error in giving Instruction No. 34, and therefore the judgment must be reversed. (For a case supporting the conclusion we have reached seeCitizens Street R. Co. v. Jolly [1903], 161 Ind. 80, 67 N.E. 935.) Judgment reversed with instructions that the trial court sustain appellant's motion for new trial.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426389/

Appellants were prosecuted upon an affidavit *Page 382 which charged them with the felony of unlawfully transporting intoxicating liquor in an automobile. Acts 1923, ch. 34, p. 108. The issue made by defendants' plea of not guilty was tried to a jury, which returned a verdict of guilty, upon which the court rendered judgment. The errors relied upon for reversal of the judgment are based upon the court's overruling their motion for a new trial, for the causes: (1) That the court refused to give certain tendered instructions; (2) that the court gave certain instructions over objection; (3) that the evidence is insufficient to sustain the verdict, and that the verdict is contrary to law; and (4) that the court permitted women to serve as jurors, over objection. Appellants' instructions Nos. 2 and 3 were based upon the proposition that if the liquor which was transported in the automobile was to be used for a lawful purpose, it did not constitute a violation of the statute. The argument in support of this proposition is that by the terms of the statute, in the proviso thereof, it was the duty of the state to show by evidence sufficient to support a verdict, that the liquor was not being lawfully transported, as defined in the proviso in the act. It has been decided by this court in the case of Asher v. State (1924), 194 Ind. 553, 142 N.E. 407, 144 N.E. 513, that evidence in relation to the carrying of liquor for a lawful purpose under the proviso in the act, is a matter of defense. Acts 1923 p. 70. Appellants seek to distinguish the Asher case from the case at bar, for the reason that the section of the statute upon which the Asher case was tried was an amendatory act and the 1, 2. exceptions created by the amendment had reference to any other sections of the general act itself, upon which any such exception was based; but that the act in support of this prosecution is a complete act within itself, from which *Page 383 they reason that the state must go forward and prove everything that might bring them in or take them out of the statute; in other words, that the exception in the proviso must be obviated by the state. It is the rule of law which governs here that where an offense is created by statute and an exception is made in a subsequent clause of the same section of the statute, or by a proviso therein, or the exception is contained in another section of the same statute, or when the exception is made by another and separate statute, it is not necessary for the prosecution to allege, either in the indictment, or to sustain by evidence, the fact that the defendant does not come within the exception. It is for the defendant to prove that he comes within such exception as a matter of defense. 1 Archbold, Criminal Procedure (8th ed.) pp. 270 and 361; 1 Wharton, Criminal Law (11th ed.) p. 19, note 3; and particularly as to bigamy, 3 Wharton, Criminal Law (11th ed.) § 2055, p. 2228; Wharton, Criminal Pleading Practice (9th ed.) §§ 238-241; United States v. Cook (1872), 84 U.S. (17 Wall.) 168, 173, 21 L.Ed. 538. An analogous situation arose under the common-law definition of murder, which was to the effect that the crime could be committed only by a person of sound mind. But, under the common law, it was not necessary for the king in the prosecution to prove that the defendant was of sound mind. Insanity was then a matter of defense. The earliest statute in Indiana in defining murder follows the common law in this particular (Jerry v. State [1825], 1 Blackf. [Ind.] 396), and the common-law definition was also followed in the first statute enacted defining the crime of murder under the state Constitution adopted in 1852. But, under none of these laws, was it necessary for the state to go forward and prove the soundness of the mind of the defendant. It was a matter of defense if unsoundness of mind was *Page 384 claimed at the time of the commission of the alleged offense. Acts 1853, ch. 66, § 1, p. 87; Colson v. State (1845), 7 Blackf. (Ind.) 590; Brutton v. State (1853), 4 Ind. 601;Peterson v. State (1856), 7 Ind. 560; Dillon v. State (1857), 9 Ind. 408, 410; Russell v. State (1875),50 Ind. 174; State v. Maddox (1881), 74 Ind. 105; Hewitt v. State (1889), 121 Ind. 245, 23 N.E. 83; Yazel v. State (1908),170 Ind. 535, 84 N.E. 972; State v. Paris (1913), 179 Ind. 446 (11), 101 N.E. 497; Jenkins v. State (1919), 188 Ind. 510, 124 N.E. 748. Appellants' requested instruction No. 4 is: "Mere possession of intoxicating liquor under the laws of the State of Indiana is not unlawful." This instruction had no relation to the 3. pleadings or the evidence. It was properly refused. Appellants' requested instruction No. 6 is upon the question of the presumption of innocence, and its resultant — the doctrine of reasonable doubt. This instruction was to the effect that the defendants at bar, and each of them, are presumed in law to be innocent of the commission of any crime, which presumption continues in their favor throughout the trial of the cause step by step; and that it was the duty of the jurors, if it could be reasonably and consistently done, to reconcile the evidence upon the theory that the defendants are innocent; and that the jury could not find the defendants guilty of the crime charged until the evidence given in the trial of the cause satisfied them beyond a reasonable doubt of the guilt of the defendants; and as long as the jury or any one of them had from the whole evidence a reasonable doubt as to the existence of any one of the several elements necessary to constitute the crime charged, it (the jury) could not find the defendants guilty of such crime if, from the whole evidence, they entertained a reasonable doubt of the guilt of the defendants or any of said defendants, and that in such case the jury shall *Page 385 acquit such defendants in whose favor a reasonable doubt of guilt was entertained. The doctrine of reasonable doubt is of such antiquity, having come from the civil law, that it is necessary to instruct the jury in the trial of a civil cause upon the rules of law 4. governing reasonable doubt when requested by the defendant. It is to those lawyers and jurists that commendation is due, who by their philosophy of reasoning, traced the doctrine of reasonable doubt to the presumption of innocence, since which time it has been held erroneous for the court to refuse to charge the jury upon the rule of law of the presumption of innocence and its application to the rule of reasonable doubt when timely requested to do so by the defendant. Coffin v. United States (1894), 156 U.S. 432, 460, 39 L.Ed. 481, 493, 15 Sup. Ct. 394, 405; Long v. State (1874), 46 Ind. 582, 587; Snell v.State (1875), 50 Ind. 516; Line v. State (1875),51 Ind. 172; Castle v. State (1881), 75 Ind. 146; Aszman v. State (1890), 123 Ind. 347, 360, 24 N.E. 123; Farley v. State (1891c), 127 Ind. 419, 421, 26 N.E. 898. The court gave twenty-seven instructions upon its own motion, not one of which instructed the jury upon the presumption of innocence or upon the presumption of innocence as it applies to the law of reasonable doubt. The answer of the appellee concerning defendants' tendered instruction No. 6 is that it was not prejudicial error to refuse to give it. To indicate to what length the refusal to give this instruction goes in support of a holding that to refuse to give the instruction justifies the holding that because of such refusal the defendants did not have a fair trial, this court has held that it was error not to give such an instruction when requested even though the general instructions of the court covered the legal propositions, for the reason that the defendant *Page 386 had the right to have this rule of law specifically called to the attention of the jury. Castle v. State, supra. Instruction No. 4 given by the court defines the phrase "transporting intoxicating liquor" to be the conveying of such liquor from one place to another regardless of the distance 5. moved, and refers to another instruction given in relation to transportation. The giving of this instruction was not error. Instructions Nos. 3 and 12, given by the court over objection, are to the effect that the jury are to determine the guilt or innocence of the defendants from a consideration of the 6. evidence. These instructions are not objectionable when considered with other instructions to the effect that the jury are to consider a lack of evidence upon any material point as well as to give attention to the evidence given in the trial of the cause. The court's instruction No. 9, given over objection, is upon the question of reasonable doubt as applied to subsidiary evidence. The instruction given did overreach. It was not 7. unlike the instruction complained of as shown in the opinion in the case of Sharp v. State (1919),188 Ind. 276, 279. Upon the authority of the case cited, we hold that the instruction given was erroneous. Instruction No. 21, given by the court over objection, is to the effect that, although the jury have the right to disagree with the court as to what the law is as pronounced by the 8. court's instructions, and that they have the right to construe the law themselves, the jury should weigh the instructions as they weigh the evidence and disregard neither without proper reason. It is claimed this instruction is erroneous when considered with other instructions in the case to the effect that it was the duty of the jury to reconcile conflicts in the evidence so that all the evidence might be *Page 387 reconciled and believed. The instruction complained of will not bear the construction claimed. It is not to the effect that the jury should reconcile instructions that are in conflict with each other. Appellants do not base error upon any of the instructions which they inferentially allege are in conflict with instruction No. 21, but admit that each of the instructions mentioned correctly states the law. Instruction No. 21 was not erroneous. Instruction No. 27, given by the court over objection, is an argumentative instruction which does not by its language relate to the pleadings or to the evidence in the case. It is 9. proper argument which might emanate from the inspiration of the prosecuting attorney. The instruction is a conglomerate, in that it is constructed by sentences taken from instructions given in the cases of Stout v. State (1883),90 Ind. 1, 13, 14, and Hinshaw v. State (1897), 147 Ind. 334, 384, 386, 47 N.E. 157, connected by the court's own language. It would serve no useful purpose to quote this lengthy instruction herein. An instruction similar to the one before us was presented in the appeal of Lindley v. State (1927), 199 Ind. 18,154 N.E. 867, which was disapproved, although such instructions have been held not to be erroneous even though subject to adverse criticism. Stout v. State, supra; Hinshaw v. State, supra;Hess v. State (1922), 192 Ind. 50, 133 N.E. 880, 135 N.E. 145. Concerning the permission for women to sit upon the trial jury over objection, this court has decided the question contrary to appellants' proposition that such permission over 10. objection constituted error. Moore v. State (1926), 197 Ind. 640, 151 N.E. 689. Based upon the error presented that the court refused to give tendered instruction No. 6, and the giving of court's instruction No. 9, it follows that appellants did not have a fair trial. Inasmuch as the case is to be reversed *Page 388 upon these errors, it would serve no useful purpose to narrate the evidence given and to pass upon its sufficiency to sustain the verdict, notwithstanding the error of the court in refusing to give requested instruction No. 6, and the giving of the court's instruction No. 9. Error is not predicated upon objections made to questions propounded eliciting evidence, or to any ruling of the court overruling any motion by defendant to strike out evidence. The cause is remanded to the Clay Circuit Court, with instructions to sustain appellants' motion for a new trial. Judgment reversed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426397/

On the 28th day of May, 1921, the Thermoid Rubber Company recovered a judgment in replevin against Ben Saperstine and Ellis E. Sluss in the Johnson Circuit Court. The plaintiff in that suit sought to replevin certain personal property, to wit: Automobile casings and tubes which it alleged the defendants unlawfully and wrongfully held possession. The judgment rendered was in the alternative to return the property or its value which was found to be $1,002.82. From this judgment the defendants, Ben Saperstine and Ellis E. Sluss, appealed. An appeal bond was given in the sum of $1,500.00, which was signed by Ellis E. Sluss as principal and the United States Fidelity Guaranty Company of Baltimore, Maryland, as surety, which bond was duly approved. Upon the filing of the said bond all proceedings for the collection of the said judgment were stayed and the appeal was prosecuted in the Appellate Court of Indiana. On January 10, 1923, the Appellate Court handed down its decision in said cause affirming the judgment of the Johnson Circuit Court. That thereafter an execution was issued by the clerk of the Johnson Circuit Court against Ellis E. Sluss for the collection of the said judgment, interest and cost, which execution was delivered to the sheriff of Marion County, but was returned unsatisfied. Thereafter the Thermoid Rubber Company filed in the Circuit Court of Marion County its action against Ellis E. Sluss and the United States Fidelity Guaranty Company as defendants on the appeal bond, alleging in substance that the property, to wit: the automobile casings and tubes which were adjudged to be the property of the plaintiff by the Johnson Circuit Court had never been delivered to the plaintiff pursuant to its judgment and decree but had been retained by the defendant Sluss pending the appeal to the Appellate Court and that by reason of the delay in delivering said property, *Page 260 the same had deteriorated in value and become valueless and by reason thereof, the plaintiff was entitled to recover judgment against Ellis E. Sluss, for the amount of said judgment, with interest and accrued cost, as principal, and the United States Fidelity Guaranty Company as surety upon the appeal bond. This cause of action was venued to the Boone Circuit Court where a trial was had, resulting in a judgment in favor of the Thermoid Rubber Company and against Ellis E. Sluss as principal, and the United States Fidelity Guaranty Company as surety on said appeal bond in the sum of $1,290.89, plus cost. From this judgment the defendant Ellis E. Sluss prayed an appeal to the Appellate Court, which appeal was granted upon filing an appeal bond in the penal sum of $2,000.00. The United States Fidelity Guaranty Company did not appeal and assigned no error. Ellis E. Sluss perfected the appeal and gave bond in the amount above stated with the Fidelity Deposit Company of Maryland as surety on said appeal bond. Before the Fidelity Deposit Company of Maryland executed and signed the appeal bond the defendant, John W. Sluss (appellee herein), entered into an indemnity agreement with the Fidelity Deposit Company of Maryland. As to this indemnity agreement it was stipulated as follows: "It is further agreed and stipulated that prior to the execution of said appeal bond by the plaintiff herein, to-wit: the Fidelity Deposit Company of Maryland, a written application was duly made by the said Ellis E. Sluss to said Fidelity Deposit Company of Maryland for said bond aforesaid, which application was in writing and is made a part of this agreement and marked Exhibit `A.' "And it is further agreed that as a part of said application and as a condition precedent to the execution of said appeal bond by the said Fidelity Deposit Company of Maryland, plaintiff herein, it was agreed between the parties that a contract of indemnity should be executed by the defendant, John W. *Page 261 Sluss, wherein he agreed, in consideration of the said Fidelity Deposit Company of Maryland, plaintiff herein, becoming surety on said appeal bond for the said Ellis E. Sluss, that he, the said John W. Sluss, would indemnify and save harmless this plaintiff from any loss or damage by reason of its suretyship on said appeal bond, which said contract of indemnity was duly executed by the defendant, John W. Sluss, on the 11th day of August, 1925, and prior to the execution of said appeal bond aforesaid, and is made a part of this Stipulation and marked Exhibit `B'." The appeal from the judgment of the Boone Circuit Court was thereafter perfected to the Appellate Court of Indiana, which court affirmed the judgment of the Boone Circuit Court. After the Appellate Court had affirmed the judgment of the Boone Circuit Court the United States Fidelity Guaranty Company paid the Thermoid Rubber Company $1,875.59, being the amount of the principal, interest and cost on said judgment. After said payment was made by the United States Fidelity Guaranty Company, said company made demand upon the Fidelity Deposit Company of Maryland as surety on the separate appeal bond of said Ellis E. Sluss which was filed in the appeal from the judgment of the Boone Circuit Court for payment of said sum by way of reimbursement for the amount paid out and expended by the said United States Fidelity Guaranty Company in satisfaction of said judgment rendered in the Boone Circuit Court. On the 5th day of June, 1935, the Fidelity Deposit Company of Maryland paid the United States Fidelity Guaranty Company of Maryland said sum of $1,875.59, being the amount laid out and expended by the United States Fidelity Guaranty Company in satisfaction of said judgment of the Boone Circuit Court and also an additional sum of $29.90, which it paid to Charles L. Sumner, sheriff of Marion County, as costs occasioned by *Page 262 the appeal to the Appellate Court from the judgment of the Boone Circuit Court. This action is brought by the Fidelity Deposit Company of Maryland against John W. Sluss upon the indemnity agreement which the said John W. Sluss executed and delivered to the Fidelity Deposit Company, before it signed the appeal bond in the appeal from the Boone Circuit Court, and which indemnity agreement was executed as a part consideration to the Fidelity Deposit Company of Maryland for signing said appeal bond. The facts were stipulated and were in substance as above set out. Upon the above facts the lower court concluded that the Fidelity Deposit Company of Maryland was entitled to recover $29.90, plus interest being the amount of cost paid to the sheriff of Marion County and occasioned by the appeal prosecuted by Ellis E. Sluss from the judgment rendered in the Boone Circuit Court, but denied recovery for the amount of the judgment it paid to the United States Fidelity Guaranty Company to reimburse it for the amount of the judgment plus interest and cost rendered in the Boone Circuit Court. The errors assigned are: 1. That the decision of the court is not sustained by sufficient evidence. 2. The decision of the court is contrary to law. 3. The court erred in assessing the amount of recovery in that the amount is too small. As to the terms of the indemnity agreement, there is no controversy. It is impliedly conceded by appellee that if the Fidelity Deposit Company of Maryland was under legal obligation to reimburse the United States Fidelity Guaranty Company for the amount it paid in discharge of the Boone Circuit Court judgment, he would be liable to save appellant harmless by the terms of the indemnity agreement. The appellee contends that at the time appellant Fidelity *Page 263 Deposit Company of Maryland paid the sum of $1,875.59 to the United States Fidelity Guaranty Company it did so as a volunteer and was not legally bound to make such payment, and therefore appellee is not liable to appellant on his indemnity agreement, and in support of this contention he says that in order to constitute subrogation, the payment must be made under coercion and unless payment was made under compulsion of law it was not subrogation. And cites in support, Opp v. Ward (1890), 125 Ind. 241, 24 N.E. 974; State ex rel. v. Kaufman (1917), 186 Ind. 602, 117 N.E. 643. If we understand the record, the judgment rendered in the Boone Circuit Court was in favor of the Thermoid Rubber Company and against Ellis E. Sluss and the United States Fidelity Guaranty Company. From this judgment Ellis E. Sluss appealed and the Fidelity Deposit Company of Maryland became surety on the appeal bond. When this judgment was affirmed by the Appellate Court the Thermoid Rubber Company might have issued execution against the United States Fidelity Guaranty Company. The United States Fidelity Guaranty Company was one of the judgment defendants in the action of the Thermoid Rubber Company v. Ellis E. Sluss and United States Fidelity Guaranty Company, and as a judgment debtor was responsible to the plaintiff for the amount of said judgment. The Thermoid Rubber Company might have had execution issued against Ellis E. Sluss, or it might have chosen to hold the Fidelity Deposit Company of Maryland on its appeal bond. The United States Fidelity Guaranty Company, recognizing its liability as a judgment defendant and to prevent the incurring of possible additional cost and interest occasioned by its refusal to pay, liquidated said judgment by paying it in full. It could not be said under such circumstances that the payment of this judgment by the United States Fidelity Guaranty Company was a voluntary *Page 264 payment. The appellant herein, Fidelity Deposit Company of Maryland, was liable also to the Thermoid Rubber Company on the appeal bond as above stated. The Fidelity Deposit Company of Maryland never became surety for the United States Fidelity Guaranty Company. When it signed the appeal bond of Ellis E. Sluss, it became bound according to the terms of said bond, which in part provided as follows: "That, We, Ellis E. Sluss, as Principal, and Fidelity Deposit Company of Maryland, as Surety, are held and firmly bound unto The Thermoid Rubber Company in the penal sum of $2,000.00 to the payment of which well and truly to be made and done, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents. "Sealed with our seals and dated this 1st day of September, 1925. "The condition of the above obligation is such that whereas, heretofore, to-wit: on the 11th day of July, 1925, the said Plaintiff in Boone Circuit Court recovered a judgment against the said Ellis E. Sluss for the sum of $1,230.00 in damages and costs of suit, etc., from which said judgment of said Boone Circuit Court the said Ellis E. Sluss appeals to the Appellate Court of Indiana. "Now if the said Ellis E. Sluss shall well and truly prosecute said appeal and abide by and pay the judgment and costs which may be rendered or affirmed against him, then the above obligation to be void; otherwise to be and remain in full force and virtue." It will thus be seen that by the above provision of the appeal bond the appellant became bound for the payment of said judgment, in the event said judgment was not paid by the principal, Ellis E. Sluss. Ellis E. Sluss did not pay the judgment. It was paid by the United States Fidelity Guaranty Company as a judgment defendant, *Page 265 and was later upon demand reimbursed by the appellant herein. Brandt on Suretyship and Guaranty (3ed) Sec. 288, says: "A surety who becomes bound for a debt during the course of legal proceedings against the principal for the collection of the same is not a co-surety with the original surety for the debt nor entitled to contribution from it, and if such original surety afterwards has to pay the debt he is entitled to subrogation to the creditors' rights against such subsequent surety and may collect the whole amount he has paid from such subsequent surety. Where a judgment was recovered against principal and surety and the principal alone appeals giving a different surety on the appeal bond and the judgment was affirmed and was paid by the surety in the appeal bond it was held that he could not recover contribution from the original surety." Stearns' Law of Suretyship (4ed) § 246, p. 433, says "Where successive appeal bonds were given it was said in reference to the rights of the last bondsmen, `But for their intervention the judgments may have been collected of the defendant therein. They secure the delay by agreeing to pay the judgment. The present defendants may have been injured, and justice would seem to demand, that between parties thus situated the primary liability should rest upon those who intervened to procure the delay. It is a general rule that sureties, upon payment, are entitled to be substituted to all the rights and remedies of the creditor as to any fund, lien or equity to which the latter may resort for payment, and in equity are entitled to the benefit of any judgment or instrument against the principal. This right of substitution does not depend upon contract but upon principles of equity arising out of the relation of principal and surety, and the obligation of the former to indemnify the latter against loss. Upon the affirmance of the judgments at the General Term, these defendants had a right to pay the same as sureties, and to be substituted to the rights of the plaintiff *Page 266 in the judgments and to enforce the same against the defendants therein. "`In that case, upon appeal to the Court of Appeals, the undertaking would necessarily inure to the benefit of the defendants as equitable owners of the judgments, and upon affirmance in the Court of Appeals they could enforce it against the second sureties. The latter agreed, upon the contingency of affirmance, to stand in the place of their principal, the defendant in the judgments, and to pay the judgments. In effect they became sureties to and not for these defendants, and, hence, would not have been entitled, upon payment, to substitution against them.'" If the Fidelity Deposit Company had paid the judgment of the Boone Circuit Court it could not recover from the United States Fidelity Guaranty Company, which was surety on the 1, 2. first appeal bond; then it necessarily follows that the United States Fidelity Guaranty Company having paid the judgment under the rule above stated would be entitled to recover from appellant herein. The Fidelity Deposit Company was liable to pay the judgment by reason of having signed the appeal bond in the last appeal, and if the appellant herein was liable to reimburse the United States Fidelity Guaranty Company which paid the judgment without suit such payment cannot be considered as a voluntary payment. In the case of Opp v. Ward (1890), 125 Ind. 241, 24 N.E. 974, Wilson Hanna leased certain premises to one Telford for a stipulated sum as rent. Ward, the appellee therein, became guarantor for the performance of the terms of the lease. Telford went into possession but refused to pay the agreed rent and refused to surrender possession of the premises at the end of his term. The lessors recovered judgment for possession and for $164.44, damages. Telford appealed to the Supreme Court, giving Opp as surety on the appeal bond. The judgment was affirmed. Thereupon Wilson Hanna *Page 267 brought suit and recovered judgment against Ward, on his contract of guaranty. The amount recovered was $676.00, besides cost, the amount specified being the rental value of the leased premises from the date of the judgment appealed from to the 16th day of July, 1880, on which date Telford died, having previously paid the judgment recovered against him for damages. The judgment against Ward was afterwards affirmed against him. Ward subsequently paid the judgment recovered against him and thereupon brought this action against Opp on the appeal bond. The trial court rendered judgment in favor of Ward. The court premised its decision on the proposition that Ward, upon paying the judgment recovered by Wilson Hanna against him for the rent that accrued pending the appeal taken by Telford became subrogated to their rights and remedies upon the appeal bond. It was insisted in the above case that in case of successive sureties, who became bound by separate obligations for the payment of the same debt, the equity of the last surety is superior to that of the first, and that as the liability of the plaintiff below, as guarantor, was prior in point of time to that of appellant as surety on the appeal bond, both being bound for the same debt, the equity of the latter was at least, equal, if not superior, to that of the former. This court said (pp. 243, 244, 245): "This view is not maintainable in a case like the one under consideration. It is quite true the plaintiff below became liable, as guarantor, for the payment of all rent, as well as for all damages growing out of the unlawful detention of the property by the tenant. But it is also true that his liability, which theretofore was uncertain and contingent, became certain and fixed when the landlord recovered judgment for the possession of the leased premises, and for damages for their unlawful detention. The guarantor had the right to pay the amount of the judgment *Page 268 recovered against his principal, and thus put an end to his liability at once. By the voluntary intervention of the appellant, in becoming surety on the appeal bond, all further proceedings on the judgment by which the landlord was awarded the right of immediate possession, were stayed, and the hands of the guarantor were effectually tied until the appeal was disposed of. It is settled that the sureties on an appeal bond given by a judgment defendant on appeal from a judgment for the possession of certain real estate are liable not only for the money judgment, but also for the rental value of the real estate pending the appeal, to an amount not exceeding the penalty of the bond. Opp v. Ten Eyck, 99 Ind. 345; Hays v. Wilstach, 101 Ind. 100; Graeter v. DeWolf, 112 Ind. 1, Stults v. Zahn, 117 Ind. 297. "Upon the determination of the appeal, the landlord had his election to sue on the appeal bond and recover the rental value of the premises unlawfully detained, or to proceed against the guarantor on the lease. He adopted the latter alternative. If he had sued on the appeal bond and recovered judgment against the surety, it is quite certain that the latter would have had no standing in a court of equity to recover from the guarantor. This is so because he occupies the position of a volunteer, and, as is pertinently said in Acer v. Hotchkiss, supra: `One who is only a volunteer can not invoke the aid of subrogation, for such a person can establish no equity.' Gans v. Thieme, 93 N.Y. 225. Having intervened as a volunteer, and by his interposition stayed proceedings on the judgment for possession to the prejudice of the guarantor, whose liability had become fixed and at an end, so far as respects future rents, it must be considered in equity that he did so upon the condition that he would take the place of the guarantor from that time forward. Barnes v. Moot, 64 N.Y. 397; Hinckley v. Kreitz, 58 N.Y. 583; Schnitzel's Appeal, 49 Pa. St. 23. "The interposition of the second surety having been the means of involving the first in the liability which he was ultimately compelled to pay, the equity of the first is complete, and he is entitled, on the principles of subrogation, to stand as though the creditor had assigned the appeal bond to him. Brandenburg v. Flynn, 12 B. Mon. 397; Bohannon v. Combs, 12 B. Mon. 563; Brandt Suretyship and *Page 269 Guaranty, section 227; Sheldon Subrogation, section 131. "One who intervenes without the solicitation of a surety, and by his interference ties the hands of the latter so as to prolong or add to his liability, and prevent the effectual enforcement of the judgment or process against the principal, as it might have been but for his intervention, can not be made to say that he occupies a position which should commend him to the favor of a court of equity." In Fidelity Deposit Company v. Bowen (1904), 123 Iowa 356, 98 N.W. 897, the original action was by a Mrs. Bowen against Mrs. Nyere for the alienation of her husband's affections and the action was aided by a writ of attachment levied upon certain real estate owned by the defendant. To release the attachment the defendant gave a release bond with one Offenbacker and Gerber as sureties. Plaintiff recovered judgment and defendant appealed giving the Fidelity and Deposit Company as surety on her supersedeas bond. The judgment was affirmed and judgment was entered on the supersedeas bond in the Supreme Court. Upon execution being issued the Fidelity and Deposit Company paid the judgment and cost, and brings this action against Gerber on the bond given in the district court for the discharge of the attachment and recovered. Upon reversing the district court the Supreme Court of Iowa said (pp. 359, 360): "The appeal was taken by Mrs. Nyere, and the supersedeas bond executed by her with the plaintiff as surety, without the knowledge or consent of Gerber as surety on the release bond. Undoubtedly a surety, upon the payment of his principal's debt, is ordinarily entitled to be subrogated to the rights of the creditor to all the securities held by him. But this right of necessity depends upon the superiority of his equities. Indeed, subrogation, which is defined as the `substitution of another person in the place of the creditor to whose rights he succeeds in relation to the debt,' is, as was said in Richards v. Cowles, 105 Iowa, 738, 75 N.W. 649, `an equitable *Page 270 result purely, and depends on facts to develop its necessity that justice may be done.' This principle has been uniformly applied in determining the liabilities of sureties on successive bonds for the satisfaction of the same debt to each other. That the surety on one bond has paid the debt does not alone entitle him to step into the creditor's shoes and recover what he has expended from bondsmen on another obligation. To entitle him to do so, his equities must appear to be superior to those of the sureties on the other bond. If the execution of one bond has worked no detriment to the sureties on another, and all are alike obligated to pay precisely the same debt, there is no basis for subrogation of any of the creditor's rights against others. In such a case the most that can be said is that the equities are equal — a condition of things essential to contribution, but fatal to subrogation. In discussing the question, but not deciding it, the court, in Pott v. Nathans, 1 Watts S. 155, (37 Am. Dec. 456) said: `Where, however, such means consist of the responsibility of an individual becoming a later surety or guaranty for the same debt of the principal, there arises a conflict of equities which may give rise to new questions as to priority between the former and the latter surety. Such latter surety, stipulating at the instance of the principal to pay the debt, suffers no absolute injustice in being obliged to do so, since he is compelled to perform no more than he undertook, and has no right to complain that he is not allowed to use as a payment by himself the money which proceeds from another person whom his principal was previously bound to save harmless.' There the second bond operated to stay an execution levied against real estate, and this was held to be detrimental to the first surety, and therefore to entitle him to subrogation upon the payment of the judgment to the rights of the creditor in the stay bond. But for the interposition of the second surety the judgment might have been enforced against the real estate. The discharge of a levy, however, does not appear essential in order to preponderate the equities in favor of the first surety. It is enough, according to some authorities, if the effect of the second bond is to tie the hands of the *Page 271 first surety and creditor, so as to interfere with or delay the collection of the debt." In the case of Burns v. Huntingdon Bank (1830), 1 Penr. W. (Pa.) 395, a surety on a note upon payment of the judgment rendered thereon was held entitled to be substituted to the right of the creditor to recover on a bond given to stay execution one year on the ground that they (the stay) interposed to procure a personal advantage to the principal and to the detriment of the surety, who might perhaps have been exonerated had the proceedings not been stayed against the principal. In Mitchell v. DeWitt (1860), 25 Tex. Supp. 180, where the surety on a note who paid the judgment subsequently rendered was allowed to recover on the supersedeas bond, a writ of error having been sued out. The court said (p. 187): "The latter sureties upon the writ-of-error bond suffer no absolute injustice in being obliged to comply with their undertaking, and cannot complain that they are not allowed to use as a payment by themselves the money which has proceeded from the original surety, whom their principal was previously bound to save harmless. But for their interposition, the plaintiff may have been exonerated from his liability. The principal may then have had visible property subject to execution, of which, but for the interposition of defendants to supersede the judgment and prevent execution thereof, the plaintiff might have availed himself to have satisfaction of the judgment." In Hartwell v. Smith (1864), 15 Ohio St. 200, it is said (p. 204): "In regard to this question of superiority of equities, which is liable to arise in the case of prior and subsequent bonds, executed by different sureties, for distinct purposes, and both constituting securities in the hands of the creditor for the same debt, it is well settled that if the interposition of the second surety is for the benefit of the principal alone, without the sanction or assent of the first surety, who *Page 272 may be prejudiced thereby; as when the effect of the second bond is to prevent the enforcement of present payment from the principal, and thus to prolong the responsibility of the first surety; in such a case the equity of the first surety is superior, and he is entitled to be subrogated to the rights of the creditor as against the second." The doctrine announced in the above cases seems sound and equitable. The benefits intended for the principal alone by the second surety should be conferred, if at all, at his own 3. risk and not at the risk of the other parties, whose wishes were not consulted in any way whatsoever in the transaction. The above rule finds support in the following cases: Ex parteHarrison (1845), 7 Ala. 736; Chaffin v. Campbell (1856), 36 Tenn. (4 Sneed) 184; Schnitzel's Appeal, 49 Pa. 23; Winston v. Rives (1883), 4 Stew. P. (Ala.) 269; Brown v. Glascock (1842), 1 Rob. (Va.) 461; Continental Trust Co. v. AmericanSurety Co. (1897), 80 Fed. 180, 25 C.C.A. 364, 53 U.S. App. 44. Appellee relies upon the case of Kane v. State ex rel. (1881), 78 Ind. 103. That case was discussed and distinguished in the case of Opp v. Ward, supra. It may also be observed that the decision in the Kane case was controlled by the replevin bail statute, § 2-3411 Burns' Ind. St. 1933. Whether the proper interpretation was placed upon the statute, and whether that decision is sound we need not decide, for it is clear that the law there laid down and adopted is not controlling in this case. We conclude, therefore, that since appellant paid the judgment for which the Fidelity Deposit Company had become liable on its second appeal bond and since the Fidelity Deposit Company 4. nor Ellis E. Sluss or appellee herein, John W. Sluss never in any manner consulted the wishes of the United States Fidelity Guaranty Company on the question of the second appeal, *Page 273 it is clear from the authorities herein cited that the Fidelity Deposit Company was a volunteer and became liable to reimburse the United States Fidelity Guaranty Company and when the Fidelity Deposit Company reimbursed the United States Fidelity Guaranty Company it did only what it could have been compelled to do. Therefore appellee is liable to appellant on his indemnity agreement herein sued upon, and that the trial court erred in overruling appellant's motion for a new trial. Judgment reversed, with instructions to sustain appellant's motion for a new trial and for further proceedings not inconsistent with this opinion.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3177354/

IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA15-699 Filed: 16 February 2016 N.C. Industrial Commission, I.C. No. U00037 IN THE MATTER OF HUGHES, by and through V.H. INGRAM, Administratrix of the Estate of Hughes, Claim for Compensation Under the North Carolina Eugenics Asexualization and Sterilization Compensation Program, Claimant-Appellant. ____________________________________ No. COA15-763 Filed: 16 February 2016 N.C. Industrial Commission, I.C. No. U00438 IN THE MATTER OF REDMOND, by and through L. NICHOLS, Administratrix of the Estate of Redmond, Claim for Compensation Under the North Carolina Eugenics Asexualization and Sterilization Compensation Program, Claimant-Appellant. ____________________________________ No. COA15-829 Filed: 16 February 2016 N.C. Industrial Commission, No. U00750 IN THE MATTER OF SMITH, Claim for Compensation Under the North Carolina Eugenics Asexualization and Sterilization Compensation Program, Claimant- Appellant. Appeal by Claimant-Appellant Hughes, by and through V.H. Ingram, Administratrix of the Estate of Hughes, from amended decision and order entered 28 April 2015 by the North Carolina Industrial Commission. Appeal by Claimant- Appellant Redmond, by and through L. Nichols, Administratrix of the Estate of IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court Redmond, from decision and order entered 27 April 2015 by the North Carolina Industrial Commission. Appeal by Claimant-Appellant Smith from decision and order entered 7 May 2015 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 November 2015. Pressly, Thomas & Conley, PA, by Edwin A. Pressly; and UNC Center for Civil Rights, by Elizabeth McLaughlin Haddix, for Claimant-Appellants. Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for North Carolina Department of Justice, Tort Claims Section. McGEE, Chief Judge. Ms. Hughes (“Hughes”), Ms. Redmond (“Redmond”), and Mr. Smith (“Smith”)1 were all “sterilized involuntarily under the authority of the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937.” N.C. Gen. Stat. § 143B-426.50(5) (2013). Hughes died in 1996, Redmond died in 2010, and Smith died in 2006. In 2013, the General Assembly enacted the Eugenics Asexualization and Sterilization Compensation Program (“the Compensation Program”), N.C. Gen. Stat. § 143B-426.50 et seq., in order to provide compensation to victims of the North Carolina Eugenics laws. Because the North Carolina Industrial Commission (“Industrial Commission”) concluded that Hughes, Redmond and Smith were 1 We avoid using the full names of Claimants in order to protect their anonymity. -2- IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court “asexualized involuntarily or sterilized involuntarily under the authority of the Eugenics Board of North Carolina in accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the Public Laws of 1937[,]” they were “qualified recipients” under the Compensation Program. N.C. Gen. Stat. § 143B-426.50(5) (2013). However, N.C. Gen. Stat. § 143B-426.50(1) limited which qualified recipients could become successful claimants as follows: “Claimant. – An individual on whose behalf a claim is made for compensation as a qualified recipient under this Part. An individual must be alive on June 30, 2013, in order to be a claimant.” N.C. Gen. Stat. § 143B-426.50(1) (emphasis added). The estates of Hughes, Redmond, and Smith (“Claimants”) filed claims pursuant to the Compensation Program. However, because Hughes, Redmond and Smith each died before 30 June 2013, those claims were denied. Each Claimant followed the appeals process from the initial denial of their claims to the rehearings by deputy commissioners. Following denials by the deputy commissioners, Claimants filed appeals to the Full Commission. N.C. Gen. Stat. § 143B-426.53 (2013). Following denial of their claims by the Full Commission, Claimants filed notices of appeal with this Court. Id. On appeal, Claimants argue that N.C. Gen. Stat. § 143B- 426.50(1), by limiting recovery to victims or heirs of victims living on or after 30 June 2013, violates the North Carolina and the United States Constitutions. -3- IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court Because we conclude this Court is without jurisdiction to consider Claimants’ appeals, we must dismiss and remand to the Industrial Commission for transfer to Superior Court, Wake County. According to the Compensation Program: “The [Industrial] Commission shall determine whether a claimant is eligible for compensation as a qualified recipient under this Part. The Commission shall have all powers and authority granted under Article 31 of Chapter 143 of the General Statutes with regard to claims filed pursuant to this Part.” N.C. Gen. Stat. § 143B-426.53(a) (2013). Article 31 of Chapter 143 of the General Statutes constitutes the Tort Claims Act. According to the Tort Claims Act: “The North Carolina Industrial Commission is hereby constituted a court for the purpose of hearing and passing upon tort claims against the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State.” N.C. Gen. Stat. § 143-291(a) (2013). Therefore, the Industrial Commission acts as a court when determining whether claimants under the Compensation Program meet the criteria for compensation. Claimants argue that N.C. Gen. Stat. § 143B-426.50(1) violates the guarantees to equal protection and due process under Article 1, Section 19 of the Constitution of the State of North Carolina and the Fourteenth Amendment to the Constitution of the United States because there is no rational basis to deny compensation to an otherwise qualified claimant who dies before June 20, 2013 while granting compensation to the heirs of a qualified claimant who dies after June 30, 2013. -4- IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court The General Assembly, by statute enacted in 2014, created a new procedure and venue for facial constitutional challenges of its enactments. N.C. Gen. Stat. § 1- 267.1 states in relevant part: [A]ny facial challenge to the validity of an act of the General Assembly shall be transferred pursuant to G.S. 1A-1, Rule 42(b)(4), to the Superior Court of Wake County and shall be heard and determined by a three-judge panel of the Superior Court of Wake County, organized as provided by subsection (b2) of this section. N.C. Gen. Stat. § 1-267.1(a1) (2014) (emphasis added). The General Assembly had the authority to limit jurisdiction in this manner.2 N.C. Gen. Stat. § 1-267.1 further states in relevant part: No order or judgment shall be entered . . . [that] finds that an act of the General Assembly is facially invalid on the basis that the act violates the North Carolina Constitution or federal law, except by a three-judge panel of the Superior Court of Wake County organized as provided by subsection (b) or subsection (b2) of this section. N.C. Gen. Stat. § 1-267.1 (c); see also N.C. Gen. Stat. § 1-81.1 (a1) (2014) (“Venue lies exclusively with the Wake County Superior Court with regard to any claim seeking an order or judgment of a court, either final or interlocutory, to restrain the 2 “Except as otherwise provided by the General Assembly, the Superior Court shall have original general jurisdiction throughout the State.” N.C. Const. art. IV, § 12(3). “The General Assembly may make rules of procedure and practice for the Superior Court and District Court Divisions[.]” N.C. Const. art. IV, § 13(2). The General Assembly also has the authority to prescribe the appellate jurisdiction of this Court. N.C. Const. art. IV, § 12(2) (“The Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe.”). -5- IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court enforcement, operation, or execution of an act of the General Assembly, in whole or in part, based upon an allegation that the act of the General Assembly is facially invalid on the basis that the act violates the North Carolina Constitution or federal law. Pursuant to G.S. 1–267.1(a1) and G.S. 1–1A, Rule 42(b)(4), claims described in this subsection that are filed or raised in courts other than Wake County Superior Court or that are filed in Wake County Superior Court shall be transferred to a three- judge panel of the Wake County Superior Court if, after all other questions of law in the action have been resolved, a determination as to the facial validity of an act of the General Assembly must be made in order to completely resolve any issues in the case.”) (emphasis added). These provisions became law, and thus effective, on 7 August 2014. 2014 N.C. Sess. Laws, ch. 100, § 18B.16(f) (“The remainder of this section is effective when it becomes law and applies to any claim filed on or after that date or asserted in an amended pleading on or after that date that asserts that an act of the General Assembly is either facially invalid or invalid as applied to a set of factual circumstances on the basis that the act violates the North Carolina Constitution or federal law.”). N.C. Gen. Stat. § 1A-1, Rule 42(b)(4) states: Pursuant to G.S. 1-267.1, any facial challenge to the validity of an act of the General Assembly, other than a challenge to plans apportioning or redistricting State legislative or congressional districts, shall be heard by a three-judge panel in the Superior Court of Wake County if a claimant raises such a challenge in the claimant’s -6- IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court complaint or amended complaint in any court in this State, or if such a challenge is raised by the defendant in the defendant’s answer, responsive pleading, or within 30 days of filing the defendant’s answer or responsive pleading. In that event, the court shall, on its own motion, transfer that portion of the action challenging the validity of the act of the General Assembly to the Superior Court of Wake County for resolution by a three-judge panel if, after all other matters in the action have been resolved, a determination as to the facial validity of an act of the General Assembly must be made in order to completely resolve any matters in the case. The court in which the action originated shall maintain jurisdiction over all matters other than the challenge to the act’s facial validity and shall stay all matters that are contingent upon the outcome of the challenge to the act’s facial validity pending a ruling on that challenge and until all appeal rights are exhausted. Once the three-judge panel has ruled and all appeal rights have been exhausted, the matter shall be transferred or remanded to the three-judge panel or the trial court in which the action originated for resolution of any outstanding matters, as appropriate. N.C. Gen. Stat. § 1A-1, Rule 42(b)(4) (2014) (emphasis added). Pursuant to N.C. Gen. Stat. § 143B-426.53(a), in the matters before us “[t]he Commission shall have all powers and authority granted under Article 31 of Chapter 143 of the General Statutes with regard to claims filed pursuant to this Part.” Pursuant to Article 31 of Chapter 143: The Industrial Commission is hereby authorized and empowered to adopt such rules and regulations as may, in the discretion of the Commission, be necessary to carry out the purpose and intent of this Article. The North Carolina Rules of Civil Procedure and Rules of Evidence, insofar as they are not in conflict with the provisions of this Article, shall be followed in proceedings under this Article. -7- IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court N.C. Gen. Stat. § 143-300 (2013) (emphasis added). We disagree with the dissenting opinion’s conclusion that Rule 42(b)(4) does not apply in the matters before us. The dissenting opinion contends that “it could be argued that G.S. 1-267.1 only applies to actions and proceedings in the general court of justice. See, e.g., N.C. Gen. Stat. § 1-1.” We are in agreement that the Industrial Commission is not a part of the Judicial Branch. However, N.C. Gen. Stat. § 1-1 simply states: “Remedies in the courts of justice are divided into – (1) Actions[,] [ and] (2) Special proceedings.” N.C. Gen. Stat. § 1-1 (2013). We are not convinced that N.C. Gen. Stat. § 1-1, or any other provision in Chapter 1 serves to prevent the application of N.C. Gen. Stat. § 1-267.1 to the matters before us. The dissenting opinion cites Ocean Hill v. N.C. DEHNR for the proposition that “the grant of limited judicial authority to an administrative agency does not transform the agency into a court for purposes of the statute of limitations.” Ocean Hill Joint Venture v. N.C. Dept of E.H.N.R., 333 N.C. 318, 321, 426 S.E.2d 274, 276 (1993); see also In re Twin County Motorsports, 367 N.C. 613, 766 S.E.2d 832 (2014). Our Supreme Court in Ocean Hill simply held that because the relevant statute of limitations provision, N.C. Gen. Stat. § 1-54(2) only applied to “actions” or “proceedings” in the general court of justice, and because an Executive Branch agency is not a part of the general court of justice, N.C. Gen. Stat. § 1-54(2) did not apply to matters decided by the Office of Administrative Hearings. This holding in Ocean Hill -8- IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court does not stand for the proposition that no provisions of Chapter 1 can ever apply to matters heard outside the general court of justice. In fact, this Court has applied provisions from Chapter 1 to matters heard by the Industrial Commission. See Sellers v. FMC Corp., 216 N.C. App. 134, 139, 716 S.E.2d 661, 665 (2011), disc. review denied, 366 N.C. 250, 731 S.E.2d 429 (2012) (applying N.C. Gen. Stat. § 1–278); Parsons v. Board of Education, 4 N.C. App. 36, 42, 165 S.E.2d 776, 780 (1969) (applying N.C. Gen. Stat. § 1-139). As there is nothing in N.C. Gen. Stat. § 1-267.1 limiting its application to actions or proceedings conducted in the general court of justice, and as there is no logical reason why a facial challenge to an act of the General Assembly would be reviewed differently depending on whether it was brought before the Industrial Commission or a court of the Judicial Branch, we hold that N.C. Gen. Stat. § 1-267.1 applies to the matters before us. Because, pursuant to N.C. Gen. Stat. § 143B- 426.53(a) and the Tort Claims Act, the Industrial Commission has been constituted as a court for resolution of the matters before us, N.C. Gen. Stat. § 1-267.1 and other relevant provisions apply, so long as the facial challenges in these matters were included in pleadings or amended pleadings filed on or after 7 August 2014. We must also address the dissenting opinion’s argument concerning this Court’s appellate jurisdiction. N.C. Gen. Stat. § 7A-26 is a statute granting general appellate jurisdiction and cannot serve to broaden the jurisdiction of this Court if that -9- IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court jurisdiction has been curtailed or rescinded by another, more specific, statute. See In re Vandiford, 56 N.C. App. 224, 226-27, 287 S.E.2d 912, 913-14 (1982). State v. Colson, 274 N.C. 295, 302-03, 163 S.E.2d 376, 381 (1968), relied on by the dissenting opinion, has been abrogated by statute, specifically N.C. Gen. Stat. § 1-267.1 and N.C. Gen. Stat. § 1-1A, Rule 42(b)(4), so far as a facial challenge to an enactment of the General Assembly, such as the one before us, is concerned. N.C. Gen. Stat. § 143B- 426.53(f), the statute granting a right of appeal from the denial of a claim pursuant to the Compensation Program, stated: “Appeals under this section shall be in accordance with the procedures set forth in G.S. 143-293[.]” N.C. Gen. Stat. § 143B- 426.53(f) (2013). N.C. Gen. Stat. § 143-293, which concerns appeals from the Industrial Commission when acting as a court for the purposes of the Tort Claims Act, states: “appeal shall be for errors of law only under the same terms and conditions as govern appeals in ordinary civil actions[.]” N.C. Gen. Stat. § 143-293 (2013). N.C. Gen. Stat. § 7A-27 is the statute governing appeals of right in ordinary civil actions.3 For this reason, N.C. Gen. Stat. § 7A-29(a), which applies generally to appeals from the Industrial Commission and other administrative agencies, does not apply to the present appeal. 3We note that because, pursuant to N.C. Gen. Stat. § 143B-426.53(f) and N.C. Gen. Stat. § 143-293, N.C. Gen. Stat. § 7A-27 controls the appeal in this matter, the Industrial Commission must be included when N.C. Gen. Stat. § 7A-27 refers to “court,” “trial court,” “district court,” or “superior court.” - 10 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court We do not believe a general grant of jurisdiction to this Court to review decisions of the Industrial Commission, or more specifically in these instances – decisions denying compensation pursuant to the Compensation Program – can supplant the intent of the General Assembly that “any facial challenge to the validity of an act of the General Assembly shall be transferred pursuant to G.S. 1A-1, Rule 42(b)(4), to the Superior Court of Wake County and shall be heard and determined by a three-judge panel of the Superior Court of Wake County[.]” N.C. Gen. Stat. § 1- 267.1(a1). The General Assembly, having provided an exclusive means of review of facial challenges to enactments of the General Assembly based upon the North Carolina Constitution or federal law, has thereby precluded review by other means in the first instance.4 Returning to the cases before us, Claimants initiated these actions by filing the necessary claims with the North Carolina Office of Justice for Sterilization Victims. These claims were initiated prior to 7 August 2014, and all three claims were first denied by the Industrial Commission based on the fact that Hughes, Redmond, and Smith had all died before 30 June 2013 and therefore did not qualify as claimants 4 The situation before us is analogous to the failure to follow the procedural mandates provided by the General Assembly for challenges to administrative decisions. See Justice for Animals, Inc. v. Robeson Cty., 164 N.C. App. 366, 369, 595 S.E.2d 773, 775 (2004) (citations omitted) (“It is well- established that ‘where the legislature has provided by statute an effective administrative remedy, that remedy is exclusive and its relief must be exhausted before recourse may be had to the courts.’ If a plaintiff has failed to exhaust its administrative remedies, the court lacks subject matter jurisdiction and the action must be dismissed.”); See also Shell Island Homeowners Ass'n, Inc. v. Tomlinson, 134 N.C. App. 217, 220-21, 517 S.E.2d 406, 410 (1999). - 11 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court pursuant to N.C. Gen. Stat. § 143B-426.50(1) (2013) (“Claimant. – An individual on whose behalf a claim is made for compensation as a qualified recipient under this Part. An individual must be alive on June 30, 2013, in order to be a claimant.”). Each Claimant appealed the rejection of their claim according to the procedures set forth pursuant to the Compensation Program. However, because the Industrial Commission is not part of the judicial branch, it could not have made any determinations concerning a statute’s constitutionality. Carolinas Med. Ctr. v. Employers & Carriers Listed In Exhibit A, 172 N.C. App. 549, 553, 616 S.E.2d 588, 591 (2005) (citations omitted) (“It is a ‘well-settled rule that a statute’s constitutionality shall be determined by the judiciary, not an administrative board.’”). For this reason, in their appeals from the decisions of the deputy commissioners, the attorneys representing the estates of Redmond and Smith included motions to certify the constitutional questions relevant to those appeals to this Court. The estate of Hughes, apparently operating without benefit of an attorney at the time, filed its appeal to the Full Commission without any motion to address the constitutional issues. The current attorney for the Hughes estate petitioned this Court for a writ of certiorari, which was granted 9 November 2015, in order to include the appeal of the Hughes estate along with those of the Redmond and Smith estates for consideration of their constitutional challenges. - 12 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court We hold that the motions in COA15-763 and COA15-829 to certify constitutional questions to this Court and the petition for writ of certiorari in COA15- 699, all of which were sought and granted following the 7 August 2014 effective date of N.C. Gen. Stat. § 1-267.1(a1), constituted claims asserted in an amended pleading on or after [7 August 2014] that assert[ed] that an act of the General Assembly [N.C. Gen. Stat. § 143B-426.50(1)] is either facially invalid or invalid as applied to a set of factual circumstances on the basis that the act violates the North Carolina Constitution or federal law. 2014 N.C. Sess. Laws, ch.100, § 18B.16(f). For this reason, the appropriate procedure is for the Industrial Commission, sua sponte if necessary, to “transfer that portion of the action challenging the validity of the act of the General Assembly to the Superior Court of Wake County for resolution by a three-judge panel[.]” N.C. Gen. Stat. § 1A- 1, Rule 42(b)(4). We dismiss Claimants’ appeals, and remand to the Industrial Commission for transfer to the Superior Court of Wake County those portions of the actions challenging the constitutional validity of N.C. Gen. Stat. § 143B-426.50(1) for resolution by a three-judge panel pursuant to N.C. Gen. Stat. 1A-1, Rule 42(b)(4). The Industrial Commission may take any additional action, in accordance with the law, that it deems prudent or necessary to facilitate transfer. DISMISSED AND REMANDED. Judge DAVIS concurs. - 13 - IN RE HUGHES; IN RE REDMOND; IN RE SMITH Opinion of the Court Judge DILLON dissents by separate opinion. -2- No. COA15-699 – IN THE MATTER OF HUGHES; No. COA15-763 – IN THE MATTER OF REDMOND; No. COA15-829 – IN THE MATTER OF SMITH DILLON, Judge, dissenting. The majority concludes that N.C. Gen. Stat. § 1-267.1 (in which our General Assembly created “the three-judge panel” to consider facial constitutional challenges) abrogates our Court’s appellate jurisdiction to consider the facial constitutional arguments raised in the present appeals. I believe, however, that we do have the appellate jurisdiction to consider the facial challenge arguments raised by these appellants. Therefore, I respectfully dissent. The North Carolina Constitution provides that “[t]he Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe.” N.C. Const. Art. IV, § 12(2). The General Assembly has empowered the Court of Appeals with “jurisdiction to review upon appeal decisions . . . of administrative agencies, upon matters of law or legal inference, in accordance with the system of appeals provided in this Article [5].” N.C. Gen. Stat. § 7A-26 (2014) (emphasis added). Clearly, a facial challenge to a law is a matter of law or legal inference. See State v. Colson, 274 N.C. 295, 302-03, 163 S.E.2d 376, 381 (1968) (stating that “cases involving a substantial constitutional question are appealable in the first instance to the intermediate appellate court and then to the highest court as a matter of right”) (emphasis added). The General Assembly has provided in Article 5 that an “appeal of right lies directly to the Court of Appeals” “[f]rom any final order or decision of . . . the North IN RE HUGHES DILLON, J., dissenting Carolina Industrial Commission[.]” N.C. Gen. Stat. § 7A-29(a) (2014) (emphasis added). Additionally, the General Assembly provided in the Compensation Program legislation that an unsuccessful claimant may appeal the Industrial Commission’s denial of a claim to the Court of Appeals. N.C. Gen. Stat. § 143B-426.53(f) (2014). The General Assembly has placed a limitation in Article 5 on our Court’s consideration of facial challenges. Specifically, Article 5 provides that a litigant no longer has an “appeal of right” to the Court of Appeals in the limited context where the trial division has held “that an act of the General Assembly is facially invalid [based on our State Constitution or federal law],” but rather a litigant’s appeal in this limited context “lies of right directly to the Supreme Court[.]” N.C. Gen. Stat. § 7A- 27(a1) (2014).5 N.C. Gen. Stat. § 7A-27(a1), however, is not implicated in these appeals since there has not been any order holding that the Compensation Program is facially invalid. Indeed, the Industrial Commission is without authority even to consider the challenge. See Meads v. N.C. Dep’t. of Agric., 349 N.C. 656, 670, 509 S.E.2d 165, 174 5The General Assembly has not expressly provided in N.C. Gen. Stat. § 7A-27(a1) that the Supreme Court has exclusive appellate jurisdiction to consider the appeal from an order in the trial division declaring a law to be facially invalid, only that the appeal of right lies with the Supreme Court and not with this Court. It may be argued that, in this context, our Court could exercise appellate jurisdiction through the power to grant certiorari conferred on us in Article 5 (assuming the parties seek review here and choose not to exercise their appeal of right to the Supreme Court). However, this argument need not be addressed here since there has been no determination in the trial division that the Compensation Program is facially invalid. 2 IN RE HUGHES DILLON, J., dissenting (1998) (stating the “well-settled rule that a statute’s constitutionality shall be determined by the judiciary, not an administrative board”); Carolina Med. Ctr. v. Employers & Carriers, 172 N.C. App. 549, 553, 616 S.E.2d 588, 591 (2005) (holding that Industrial Commission lacks power to consider constitutional issues). Simply stated, these appeals are properly before us: They are from final determinations of the Industrial Commission involving claims made under the Compensation Program. N.C. Gen. Stat. § 143B-426.53(f) (2014). As such, we have the appellate jurisdiction to consider any “matters of law” raised by these claimants concerning the denial of their claims, including the matter concerning their facial challenge to the Compensation Program. N.C. Gen. Stat. §§ 1-267.1 and 7A-27(a1) do not provide any impediment since the appeal is not from a determination by the trial division that the Compensation Program is facially invalid. It is true that “[o]rdinarily, appellate courts will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court.”6 State v. Hudson, 281 N.C. 100, 105, 187 S.E.2d 756, 760 (1972). This Court, nonetheless, has been granted the authority to consider the arguments raised by these claimants. For instance, the General Assembly has 6The matter involves three appeals making a facial challenge to the Compensation Program. In two of the appeals (In the Matter of Redmon and In the Matter of Smith), the parties expressly raised the facial challenge before the Industrial Commission, though recognizing that the Commission lacked authority to act on it. Nonetheless, these claimants sought to preserve the issue for appeal. In the third appeal (In re Hughes), the claimant did not make a facial challenge at the Commission level. 3 IN RE HUGHES DILLON, J., dissenting provided the Court of Appeals with the power “to issue . . . writs . . in the aid of its jurisdiction, or to supervise and control the proceedings of . . . the Industrial Commission.” N.C. Gen. Stat. § 7A-32(c) (2014). Our Supreme Court has recently recognized our Court’s broad authority to issue such writs. State v. Stubbs, 368 N.C. 40, 42-44, 770 S.E.2d 74, 75-76 (2015). Further, in promulgating Rule 2 of our Rules of Appellate Procedure, our Supreme Court has recognized “the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest[.]” Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299 (1999) (emphasis added); see also Dogwood Dev. and Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008) (“Rule 2 permits the appellate courts to excuse a party’s [failure to argue an issue at the trial level] in both civil and criminal appeals when necessary to . . . ‘expedite decision in the public interest’”) (emphasis added).7 7The majority suggests that the context here is analogous to the context where a party has not exhausted its administrative remedies, in which case, courts lack subject-matter jurisdiction. The majority quotes Justice for Animals, Inc. v. Robeson Cty., 164 N.C. App. 366, 369, 595 S.E.2d 773, 775 (2004), for the proposition that “where the legislature has provided by statute an effective administrative remedy, that remedy is exclusive and its relief must be exhausted before recourse may be had to the courts.” I do not believe, however, that the situations are analogous. In Justice for Animals, our Court was quoting the Supreme Court in Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611 (1979). In Presnell, the Supreme Court explained that exhaustion of administrative remedies was an essential prerequisite to a court’s jurisdiction where the relevant administrative agency was “particularly qualified for the purpose [of reviewing the issue],” and “the legislature [by providing an administrative remedy] has expressed an intention to give the administrative entity most concerned with a particular matter the first chance to discover and rectify error.” Id. at 721, 260 S.E.2d at 615. Here, though, the three-judge panel is no more “particularly qualified” than a panel of Court of Appeals judges to consider a facial challenge. I believe that the 4 IN RE HUGHES DILLON, J., dissenting In conclusion, the General Assembly has addressed a past injustice suffered by many at the hands of the State. I believe that we have the appellate jurisdiction to consider the facial challenge to the Compensation Program. And to the extent that these claimants, or any of them, have lost their right of review of their constitutional arguments, I believe we should, nonetheless, exercise our authority to consider them. Otherwise, they could be deemed waived on remand. __________________________________________________ Though not essential my conclusion above, I note that it could be argued that the N.C. Gen. Stat. §§ 1-267.1 and 1A-1, Rule 42(b)(4) do not apply to Compensation Program claims at all. Specifically, it could be argued that N.C. Gen. Stat. § 1-267.1 only applies to actions and proceedings in the general court of justice. See, e.g., N.C. Gen. Stat. § 1-1 (2014) (“Remedies in the courts of justice are divided into . . . (1) Actions[] [and] (2) Special proceedings.”). Our Supreme Court has so held in the context of the statute of limitations provisions in Chapter 1. See In re Twin County Motorsports, 367 N.C. 613, 616, 766 S.E.2d 832, 834-35 (2014) (holding that even though an administrative agency may be clothed with some measure of judicial authority, said agency is not part a “court of justice” and, therefore, the statute of limitations provisions in Chapter 1 of our General Statutes do not apply). See also present situation is more analogous to any other situation where the trial division fails to rule on a legal issue (in which the appellate division has de novo review). In such a case, our Court is not required to remand the issue to the trial division, but may consider the issue on appeal, though generally we would deem the issue waived and refuse to consider it. 5 IN RE HUGHES DILLON, J., dissenting Ocean Hill Joint Venture v. N.C. Dep’t of Env’t, Healh and Natural Res., 333 N.C. 318, 321, 426 S.E.2d 274, 276 (1993) (reversing a Court of Appeals determination that a matter before DEHNR was an action or proceeding within N.C. Gen. Stat. § 1-54). Also, the provisions of Subsection 8 (“Judgment”) of Chapter 1 – of which N.C. Gen. Stat. § 1-267.1 is a part – only reference the general court of justice, and not administrative agencies. See, e.g., N.C. Gen. Stat. § 1-208.1 (2014) (providing for the docketing of judgments rendered in the trial division, whereas N.C. Gen. Stat. § 97- 87 provides for the docketing of awards of the Industrial Commission); id. § 1-277 (providing for appeals from the “superior or district court,” whereas appeals from the Industrial Commission are provided for in other statutes). Additionally, it could be argued that the procedure in Rule 42(b)(4) (containing the procedure for transfers to the three-judge panel) does not apply in the present appeals. Specifically, the Rules of Civil Procedure expressly provide that the only Industrial Commission matters which they govern are those tort claims brought under the Tort Claims Act. N.C. Gen. Stat. § 1A-1, Rule 1 (2014) (“These rules shall govern the procedure in the superior and district courts . . . [in civil] actions and proceedings [and] . . . the procedure in tort actions brought before the Industrial Commission”). See Hogan v. Cone Mills, 315 N.C. 127, 137, 337 S.E.2d 477, 483 (1985) (holding that the Rules do not apply directly to claims brought under the 6 IN RE HUGHES DILLON, J., dissenting Worker’s Compensation Act).8 Compensation Program claims are not tort claims against the State. But assuming N.C. Gen. Stat. § 1-267.1 does apply, generally, to Compensation Program proceedings, its procedure requiring transfer to a three-judge panel was never implicated in the Hughes appeal before this Court, as the claimant in that matter never made any facial challenge argument below. See N.C. Gen. Stat. § 1A-1, Rule 42(b)(4) (2014) (providing a procedure for trial courts to transfer facial challenges to a three-judge panel only if a challenge is actually made). Regarding the other two appeals before us, I note that those claimants did attempt to make the facial challenge below. However, the provision in N.C. Gen. Stat. § 1-267.1 allowing an appeal of right to the Supreme Court was never implicated since the Compensation Program was not held to be facially invalid. In sum, N.C. Gen. Stat. § 1-267.1 and Rule 42 do not require that a three-judge panel decide every facial challenge raised in the trial division. For example, Rule 42 states that a three-judge panel need not decide a facial challenge when the decision is not necessary to the resolution of the case. However, the failure of having a three- judge panel decide the facial challenge issue does not abrogate our Court’s appellate jurisdiction to consider the issue in an appeal that is otherwise properly before us. 8Though Hogan was subsequently reversed on other grounds by the Supreme Court, see 326 N.C. 476, 390 S.E.2d 136 (1990), its holding that the Rules of Civil Procedure do not apply to Worker’s Compensation proceedings was not reversed, see Moore v. City of Raleigh, 135 N.C. App. 332, 336, 520 S.E.2d 133, 137 (1999). 7 IN RE HUGHES DILLON, J., dissenting By way of example, suppose a defendant raises two defenses at the trial level, one of which is a facial challenge; and suppose, further, that a trial judge grants the defendant summary judgment based on the other defense. Our Appellate Rules allow the defendant to raise his facial challenge argument as an alternate basis in the law for his victory below, see N.C. R. App. P. 10(c) (allowing an appellee to propose issues on appeal as to an alternate basis in the law). In such a case, I do not believe that N.C. Gen. Stat. § 1-267.1 provides that a three-judge panel of our Court considering the appeal be required to remand the facial challenge issue to a three-judge panel of superior court judges before addressing the other issues. Rather, I believe that by enacting N.C. Gen. Stat. § 1-267.1 the General Assembly was simply providing a procedure whereby a facial challenge would never be left up to a single judge, but always to a panel of jurists. 8

01-03-2023

02-16-2016

https://www.courtlistener.com/api/rest/v3/opinions/3177346/

IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA15-105 Filed: 16 February 2016 Orange County, No. 12 CRS 52658 STATE OF NORTH CAROLINA v. WENDY M. DALE Appeal by defendant from judgment entered 10 July 2014 by Judge Robert F. Johnson in Orange County Superior Court. Heard in the Court of Appeals 13 August 2015. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Wendy Dale, pro se. McCULLOUGH, Judge. Wendy Dale (“defendant”) appeals from a judgment entered upon a jury verdict finding her guilty of disorderly conduct in a public facility in violation of N.C. Gen. Stat. § 14-132(a)(1), for which she received a suspended sentence of 30 days and 12 months of supervised probation along with court costs and a community service fee. Defendant raises several issues on appeal including lack of subject matter jurisdiction due to a defective indictment, instructional error, double jeopardy, and, by a motion for appropriate relief (MAR) filed during the pendency of this appeal, facial and as applied challenges to the constitutionality of N.C. Gen. Stat. § 14-132(a)(1). After a STATE V. DALE Opinion of the Court careful consideration of each of defendant’s arguments, we find no error and uphold her conviction. I. Procedural Background Defendant was tried before a jury and convicted of disorderly conduct in a public building on 10 July 2015. Although defendant was represented by counsel at trial, she has pursued her appeal and post-conviction proceedings pro se.1 Defendant timely appealed from the judgment entered on her conviction to this Court on 24 July 2014. On that same date, defendant filed her first motion for appropriate relief (the “Initial MAR”) with the trial court pursuant to N.C. Gen. Stat. § 15A-1414. The Initial MAR alleged that defendant was arrested without probable cause and convicted without sufficient evidence of the offense charged, disorderly conduct in a public building. The Initial MAR also alleged that the trial court erred in refusing to instruct the jurors on defendant’s First Amendment right to free speech. 1 It appears that defendant based her purported notice of appeal on a previous version of N.C. Gen. Stat. § 15A-1448(a)(4), which, until repealed in 1987, provided: “If there has been no ruling by the trial judge on a motion for appropriate relief within 10 days after motion for such relief has been made, the motion shall be deemed denied.” See 1997 N.C. Sess. Laws Ch. 1147 S. 29, repealed by 1987 N.C. Sess. Laws Ch. 624. Since it was repealed, that provision is of no legal effect. We note that defendant, representing herself pro se in her post-conviction filings with the trial court and on appeal, also has violated Rule 28 of the North Carolina Rules of Appellate Procedure by submitting her brief in single-spaced, rather than double-spaced, text. See N.C. R. App. P. 28(j)(2)(A). Although the Rules of Appellate Procedure apply equally to all parties, “whether acting pro se or being represented by all of the five largest law firms in the state,” Bledsoe v. County of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d 316, 317 (1999), this nonjurisdictional defect is not “gross” or “substantial” enough to warrant sanctions. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transport Co., Inc., 362 N.C. 191, 199, 657 S.E.2d 361, 366 (2008). -2- STATE V. DALE Opinion of the Court Based on an erroneous calculation of the filing deadline, on 11 September 2014, the trial court determined the Initial MAR was untimely and entered an order denying the Initial MAR without a hearing on the merits (the “First Order”). On 26 September 2014, defendant filed a motion to vacate the First Order. The trial court entered an order vacating the First Order on 19 November 2014. On 3 October 2014, while defendant’s motion to vacate the First Order was pending before the trial court, defendant filed an amended motion for appropriate relief (the “Amended MAR”) as allowed by N.C. Gen. Stat. § 15A-1415(g). The Amended MAR alleged errors within the scope of N.C. Gen. Stat. § 15A-1415 including that N.C. Gen. Stat. § 14-132(a)(1), the disorderly conduct statute defendant was convicted of violating, is unconstitutionally overbroad. This argument was not included in defendant’s Initial MAR. On 10 December 2014, the trial court entered an order denying appropriate relief (the “Second Order”) based on its review of “the Motion,” a trial transcript, and other materials in the record. The Second Order does not define the term “the Motion” or otherwise reference the Initial MAR or the Amended MAR, but it appears from the content of the Second Order that the trial court addressed only the issues raised in the Initial MAR. The Second Order does not determine the merits of the claims added by defendant in the Amended MAR, including the claim that N.C. Gen. -3- STATE V. DALE Opinion of the Court Stat. § 14-132(a)(1) is unconstitutional. Accordingly, it appears that the trial court never determined the merits of defendant’s Amended MAR. The record for defendant’s appeal to this Court was settled on 26 January 2015 by the expiration of the time allowed for the State to serve defendant with notice of its approval of the proposed record or with an alternative proposed record. On 3 August 2015, defendant filed a MAR in this Court (the “Appellate MAR”). In the Appellate MAR, defendant makes the same constitutional claims as she did to the trial court in the Amended MAR. Because the record on appeal has been settled, defendant’s Appellate MAR is properly before this Court. Although this Court ordered that a copy of the Appellate MAR and the State’s response be forwarded to the trial court, those pleadings, through inadvertence, were not forwarded. The complex procedural history of this case, along with missing portions of the record, may explain the trial court’s order stating that it was a “bit baffled as to what evidence or proceedings the Court of Appeals wanted” the trial court to consider on remand. On 30 November 2015, the trial court proceeded with a hearing in an effort to comply with this Court’s remand order. The trial court conducted a hearing, but neither defendant nor the State offered any evidence. The trial court made findings of fact regarding defendant’s objections during trial and concluded as a matter of law that defendant raised state and federal constitutional claims at trial. -4- STATE V. DALE Opinion of the Court The trial court has not determined the merits of the constitutional claims in defendant’s Amended MAR. Those claims, which are also raised in defendant’s Appellate MAR, involve only issues of law and are now addressed in this opinion. II. Factual Background On 25 September 2012, defendant’s seventeen-year-old son was arrested by Officer Joseph Glenn with the Carrboro Police Department (“CPD”) upon a warrant charging him with failure to appear. While at the CPD, defendant’s son called defendant, at which time Officer Glenn informed defendant that her son was being arrested and taken before a magistrate. At that time, defendant became irate and Officer Glenn informed defendant that she could speak to the magistrate. Officer Glenn then transported defendant’s son to the magistrate’s office, a courtroom, where the magistrate on duty set bond. When defendant’s son was unable to post bond, a process Officer Glenn explained to defendant during a second call by defendant’s son to defendant upon arrival at the Orange County Jail, Officer Glenn began the jail admittance process. At the time of defendant’s arrival at the facility, Officer Glenn was standing with defendant’s son in the lobby of the jail, immediately outside of the magistrate’s courtroom. When defendant came through the door visibly upset, Officer Glenn asked defendant if she was the mother. Defendant then replied, “Yes, I’m his F-ing mother.” Defendant was then informed that her son was going to be admitted to the jail -5- STATE V. DALE Opinion of the Court because he was unable to post bond. At that point defendant stated, “No, he’s coming home with me.” When Officer Glenn once again said that her son could not post bond, defendant screamed, “No, you’re going to give me my son now.” These events transpired in the jail lobby in front of the magistrate’s courtroom. Upon hearing defendant’s loud scream, Corporal Danotric Nash with the Hillsborough Police Department, along with Officer Jason Winn, responded to the area where defendant was yelling at Officer Glenn and said, “Ma’am, you have to calm down, this is the lobby of the jail.” Defendant continued yelling, at which time Corporal Nash advised her to step outside and walked her toward the door. When Corporal Nash went to close the door, defendant resisted, banging loudly on the closed door twice. Defendant stopped banging on the door when Corporal Nash informed her she would be charged if she continued banging on the door or if she damaged any property. Corporal Nash then observed defendant talking on her cell phone and, after she hung up, stated to defendant, “Ma’am, if you calm down, if you just go speak to the magistrate. Or, your friend that you was on the phone with, or a Judge, maybe he’ll undo the bond.” Defendant replied, “Shut the F up talking to me, shut the F up talking to me.” Defendant was then advised to leave and directed to the parking lot by Corporal Nash. According to Corporal Nash, defendant then grabbed him, scratching the left side of his face behind his ear, causing him to bleed. Corporal -6- STATE V. DALE Opinion of the Court Nash and Officer Winn then arrested defendant. At trial, defendant testified that she thought Corporal Nash was going to grab her so she put up her hands in a defensive movement, thereby making contact with Corporal Nash’s face. Defendant was acquitted on the charge of assaulting an officer but convicted of disorderly conduct in a public facility. III. Discussion A. Sufficiency of Charging Document The facts of this case show that defendant, upset that her son was being arrested, engaged in abusive conduct toward two officers who were in the lobby of the jail while her son was being processed into the jail. The statute under which defendant was charged makes it a misdemeanor for any person to “[m]ake any rude or riotous noise, or be guilty of any disorderly conduct, in or near any public building or facility[.]” 2 N.C. Gen. Stat. § 14-132(a)(1) (2013). The charging document does not use the words “rude or riotous noise” but instead states that the defendant did unlawfully “curse and shout” at police officers in the jail lobby. Without a valid warrant or indictment, a court lacks jurisdiction to proceed. Challenges to the validity of an indictment may be raised at any stage in the proceedings and we review the challenge de novo. State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009). In a misdemeanor case the charging document may 2 Defendant does not contest the fact that the lobby of a jail is a public facility. -7- STATE V. DALE Opinion of the Court be a statement of charges instead of an indictment. See N.C. Gen. Stat. § 15A-922 (2013). Whether by statement of charges or by indictment, the charging document shall require: [a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation. N.C. Gen. Stat. § 15A–924(a)(5) (2013). An indictment has been held to be sufficient “if it charges the offense in a plain, intelligible and explicit manner[.]” State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972). This Court recently described the requirements of a valid indictment, which apply equally to a statement of charges, as follows: Pursuant to N.C. Gen. Stat. § 15A-924(a)(5) (2013), a valid indictment must contain ‘‘[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.’’ An indictment ‘‘is sufficient in form for all intents and purposes if it expresses the charge against the defendant in a plain, intelligible, and explicit manner.’’ N.C. Gen. Stat. § 15–153 (2013). “[T]he purpose of an indictment . . . is to inform a party so that he may learn with reasonable certainty the nature of the crime of which he is accused[.]” State v. Coker, 312 N.C. 432, 437, 323 S.E.2d 343, 347 (1984). The trial court need not subject the indictment to ‘‘hyper technical scrutiny with respect to form.’’ In re S.R.S., 180 N.C. App. 151, 153, 636 S.E.2d 277, 280 (2006). ‘‘The general rule in this -8- STATE V. DALE Opinion of the Court State and elsewhere is that an indictment for a statutory offense is sufficient, if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words.’’ State v. Greer, 238 N.C. 325, 328, 77 S.E.2d 917, 920 (1953). State v. Simpson, __ N.C. App. __, __, 763 S.E.2d 1, 3 (2014). As stated earlier, defendant was tried upon a statement of charges (AOC Form–CR-120) drafted by the Assistant District Attorney which alleged: I, the undersigned, upon information and belief allege that on or about the date of offense shown and in the county named above, the defendant named above did unlawfully and willfully curse and shout at the officers J. Glenn of the Carrboro Police Department and officer D. Nash of the Hillsborough Police Department while inside the lobby of the Orange County Jail[.] The statement of charges also references N.C. Gen. Stat. § 14-132(a)(1), which provides that “[i]t is a misdemeanor if any person shall . . . [m]ake any rude or riotous noise, or be guilty of any disorderly conduct, in or near any public building or facility[.]” N.C. Gen. Stat. § 14-132(a)(1) (2013). It is difficult to discern from defendant’s brief exactly what she complains of with regard to the notice required in a charging document as she seems to merge her arguments regarding the jury instructions with her argument as to the sufficiency of the notice provided by the statement of charges. While the statement of charges does not use the phrase “rude or riotous noise” and instead charges that defendant did “curse and shout” at the officers while in the lobby of the jail, even defendant acknowledges that this satisfied the first prong of -9- STATE V. DALE Opinion of the Court the elements of the offense. In her brief, defendant properly states the elements of the offense of which she has been convicted stating: “Accordingly, from the language of the statute, the elements of this crime are: First, that the defendant made a rude or riotous noise or is guilty of disorderly conduct; and second, that such rude or riotous noise or disorderly conduct occurred in or near a public building or facility.” Defendant then goes on to acknowledge that “curse and shout” are equivalent to making a “rude or riotous noise” when she states: “The concise allegation in the Warrant and Misdemeanor Statement of Charges that I ‘cursed and shouted’ in the lobby of the jail may very well support the ‘rude or riotous noise’ prong of the first element of Disorderly Conduct in a Public Building pursuant to N.C. Gen Stat. § 14- 132(a)(1)[.]” We agree the charging document in this case was sufficient because it charged the offense in N.C. Gen. Stat. § 14-132(a)(1) “in the words of the statute, either literally or substantially, or in equivalent words.” Simpson, __ N.C. App. at __, 763 S.E.2d at 3. There is no practical difference between “curse and shout” and “rude or riotous noise.” Either phrase provides the defendant more than adequate notice of what behavior is alleged to be the cause of the charges. In other cases our courts have found common sense definitions proper when upholding indictments. For instance, in State v. Cockerham, this Court held an indictment charging a defendant with discharging a firearm into an occupied property was not defective where the - 10 - STATE V. DALE Opinion of the Court indictment read “that dwelling known as apartment ‘D-1’, located at 2733 Wake Forest Highway, Durham, North Carolina. . . .” 155 N.C. App. 729, 735, 574 S.E.2d, 694, 698 (2003). The word “apartment” does not appear in the statute, which instead lists “building, structure . . . or enclosure.” N.C. Gen. Stat. § 14-34.1(a) (2013). Thus, we have held that words in an indictment or other charging document which fit within the definition of the words in a statute sufficiently describe the crime charged so as to provide the court with jurisdiction. In other words, we properly interpret charging documents when we utilize normal definitions of the words in the document, even if they are not the exact same words as in the statute. This notice pleading has replaced the use of “magic words” and allows for a less exacting standard, so long as the defendant is properly advised of the charge against him or her. In analyzing the phrase “rude and riotous noise” in N.C. Gen. Stat. § 14- 132(a)(1), we note the ordinary definitions. “Rude” is defined as “ill-mannered; discourteous.” The American Heritage Dictionary, 1076 (Second College Edition 1985). Is not a person who is cursing and shouting acting in an ill-mannered, discourteous way? The same dictionary defines “riot” as “an unrestrained outbreak, as of laughter or passions” and “riotous” as “boisterous.” Id. at 1064. When one is shouting curses at another person, are they not engaged in an unrestrained outbreak of passion? Our Supreme Court has long believed so. See State v. Horne, 115 N.C. 739, 740-41, 20 S.E. 443, 443 (1894). - 11 - STATE V. DALE Opinion of the Court The words in the charging document in this case fit within the definition for the behavior described in the statute and are thus sufficient to confer jurisdiction so that the trial could proceed. Thus, defendant’s claim that the statement of charges is defective is overruled. B. Instructional Error Defendant next argues that the trial court committed instructional error by giving pattern jury instruction N.C.P.I. -- Crim. 236A.31 (1999). The court instructed the jury as follows: Now, the Defendant, Wendy Dale, has been charged with disorderly conduct. For you to find the Defendant, Wendy Dale, guilty of this offense, the State must prove four things beyond a reasonable doubt. First, that the Defendant, Wendy Dale, willfully and without justification or excuse, made or used an utterance, gesture or abusive language. Secondly, that such utterance, gesture or abusive language was intended and plainly likely to provoke a violent retaliation, and thereby cause a breach of the peace. Third, that such utterance, gesture or abusive language was a public disturbance. A public disturbance is an annoying, disturbing or alarming act or condition occurring in a public place that is beyond what would normally be tolerated in that place at that time. The Orange County jail lobby is a public place. And fourth, that such public disturbance was intentionally caused by the Defendant, Wendy Dale. If you find from the evidence beyond a reasonable doubt - 12 - STATE V. DALE Opinion of the Court that on or about the alleged date, September 25th, 2012, the Defendant, Wendy Dale, willfully and intentionally, without justification or excuse, made or used an utterance, gesture or abusive language that was intended and plainly likely to provoke violent retaliation, and thereby caused a breach of the peace, and that such utterance, gesture or abusive language was a public disturbance, it would be your duty to return a verdict of guilty. At the conclusion of the charge, defendant’s counsel made no suggestions for changes and did not object. Defendant now claims the error amounts to plain error because it is prejudicial. This Court’s review of jury instructions is limited to a review for plain error when the issues concerning the instructions are not preserved below. See N.C. R. App. P. 10(a)(4) (2015). For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice-that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted). In the instructions issued in this case, the trial court required the State to prove an element that was not required by the charging statute, that being the requirement that the “utterance, gesture or abusive language that was intended and - 13 - STATE V. DALE Opinion of the Court plainly likely to provoke violent retaliation, and thereby caused a breach of the peace[.]” While defendant may argue that her statements were not likely to so provoke, that is an issue of fact to be resolved by the jury. When she challenged the authority of the court to order her son into detention and stated she was going to take him home, without regard to the court process and the requirements of bond, it was within the jury’s prerogative to find otherwise. Furthermore, as the State had to prove more than was required in order to obtain a conviction, there is no prejudice to defendant. See State v. Farrar, 361 N.C. 675, 679, 651 S.E.2d 865, 867 (2007) (such variance is not fatal when variance benefits the defendant). In Farrar our Supreme Court held “the trial court’s charge to the jury . . . benefitted [the] defendant[ ] because the instructions required the State to prove more elements than those alleged in the indictment. Therefore, there was no prejudicial error in the instructions.” Id. Similarly in this case, it is clear defendant benefitted from the charge given, to which no objection was made. It is unlikely defendant would have been acquitted had the trial court instructed the jury by tracking the statute or had given the charge approved in State v. Leyshon, 209 N.C. App. 755, 710 S.E.2d 710, COA 10-556 (1 March 2011) (unpub.), available at 2011 WL 705140, appeal dismissed, 365 N.C. 203, 710 S.E.2d 52 (2011), an unpublished case cited in both parties’ briefs. The instruction in Leyshon provided the jury the following guidance: - 14 - STATE V. DALE Opinion of the Court [I]f you find from the evidence in this case and beyond a reasonable doubt that on or about the alleged date of July 14, 2008 that this Defendant did make a rude or riotous noise or engage in disorderly conduct within the Watauga County Courthouse. If you find each of those things beyond a reasonable doubt, then it would be your duty to return a verdict finding the Defendant guilty of Disorderly Conduct. 2011 WL 705140 at *4. A simple comparison of the two instructions demonstrates the State had to prove much more to obtain a conviction in this case than was actually required. Thus, in accordance with Farrar, we hold the trial court did not commit prejudicial error, much less plain error, by giving the instruction now being contested. Defendant’s argument is overruled. C. Double Jeopardy Defendant next argues that because she was acquitted of resisting, delaying, or obstructing an officer in violation of N.C. Gen. Stat. § 14-223 (2013), she must be acquitted of the charge for which she was convicted, disorderly conduct in a public facility. Defendant asserts the argument as double jeopardy. Double jeopardy is prohibited under both the U.S. Constitution and the North Carolina Constitution’s “Law of the Land Clause.” See U.S. Const. amend. V; State v. Gardner, 315 N.C. 444, 464, 340 S.E.2d 701, 714 (1986). A plea under former jeopardy fails unless it is grounded both in law and fact. If the two offenses contain elements which differ then the offense is not well grounded in law. State v. - 15 - STATE V. DALE Opinion of the Court McAllister, 138 N.C. App. 252, 256, 530 S.E.2d 859, 862, appeal dismissed, 352 N.C. 681, 545 S.E.2d 724 (2000). To be well grounded in fact, the same evidence must support a conviction in both cases. State v. Ray, 97 N.C. App. 621, 623, 389 S.E.2d 422, 424 (1990). As can be readily seen from the previous discussion of the elements for the offense of disorderly conduct, the two offenses have different elements and the proof of the disorderly conduct charge does not require any proof that the prohibited conduct obstructed or resisted an officer. This argument is baseless and is overruled. D. Constitutionality of N.C. Gen. Stat. § 14-132(a)(1) Defendant, in her Appellate MAR, contests the constitutionality of N.C. Gen. Stat. § 14-132(a)(1) both as enacted and as applied to her. In the Appellate MAR, defendant argues that she had a First Amendment right to curse and shout in a public facility at officers who were in the process of jailing her son despite being warned that she was in the lobby of the jail and had to calm down. This Court is not going to engage in a lengthy discussion of the void for vagueness doctrine as our Supreme Court has already decided that the statute at issue here is not void for vagueness. See In Re Burrus, 275 N.C. 517, 532, 169 S.E.2d 879, 888 (1969), aff’d sub nom., McKeiver v. Pennsylvania, 403 U.S. 528 (1971). In that case the statute at issue provided that if a person “shall make any rude or riotous noise or be guilty of any disorderly conduct in any public building of any county, or shall commit any nuisance - 16 - STATE V. DALE Opinion of the Court in such building, he shall be guilty of a misdemeanor[.]” Id. at 531, 169 S.E.2d at 888. Our Supreme Court went on to say: There is nothing vague or indefinite about these statutes. Men - even children - of common intelligence can comprehend what conduct is prohibited without overtaxing the intellect. Judges and juries should be able to interpret and apply them uniformly. There, as here, defendants argued that the statute was void because its prohibitions were uncertain, vague and indefinite. In upholding that statute, the court said: “It is difficult to believe that the defendants are as mystified as to the meaning of these ordinary English words as . . . they profess to be in their brief. Clearly, they have grossly underestimated the powers of comprehension possessed by ‘men of common intelligence.’ ” That observation seems appropriate here. The Supreme Court of the United States in sustaining a conviction in the courts of New Jersey for a violation of an ordinance forbidding the use of sound trucks emitting “loud and raucous” sound, said: “The contention that the section is so vague, obscure and indefinite as to be unenforceable merits only a passing reference. This objection centers around the use of the words ‘loud and raucous.’ While these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden.” Kovacs v. Cooper, 336 U.S. 77, 93 L. Ed. 513, 69 S. Ct. 448, 10 A.L.R. 2d 608 (1949). Id. at 532, 169 S.E.2d at 888-89 (internal citation omitted). As our Supreme Court has found a statute that is virtually identical to the statute as the one now in force to be constitutional, this Court is bound to uphold the constitutionality of N.C. Gen. Stat. § 14-132 (a)(1). In Re: Civil Penalty, 324 N.C. 373, - 17 - STATE V. DALE Opinion of the Court 384, 379 S.E.2d 30, 37 (1989). Defendant’s argument that the statute is unconstitutional is thus overruled. Defendant’s argument that the statute as applied to her is unconstitutional also lacks merit. As we have found the statute to be constitutional, certainly her misbehavior in the lobby of the jail adjacent to the magistrate’s courtroom violates its proscription of rude or riotous conduct in a public facility, or at the very least, raised a jury issue now resolved against defendant. This argument is also overruled. IV. Conclusion Having found that the statement of charges was not defective, that defendant’s acquittal of resisting an officer in District Court did not prohibit her being tried for disorderly conduct in Superior Court, that the trial court did not commit prejudicial error in its jury instructions, and the statute in question is both constitutional upon its face and as applied, we find defendant’s trial was conducted free of prejudicial error. Thus, we uphold her conviction. NO ERROR Judge STROUD concurs. Judge INMAN concurs in result only. - 18 -

01-03-2023

02-16-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426401/

Appellants as tenants by the entirety in 1931 were the owners of a lot in Gary on which there were two mortgages in the total amount of *Page 261 $7400. While the lot was so incumbered appellants entered into a written contract with appellee for the erection of a garage thereon to cost $352.08, the contract providing that appellee should retain title to the garage until complete payment of the said purchase price, which, in the contract, appellants specifically agreed to pay with interest and attorneys' fees. Later appellants executed to appellee a note as of the date of the contract for the purchase price of the garage. The note contained provisions similar to those in the contract, except that the contract had a specific clause permitting the removal of the garage from the lot in the event the debt should not be paid. The first mortgagee thereafter brought suit to foreclose its mortgage and made appellee a party. An answer "by way of cross-complaint" was filed by appellee to which it attached its contract as an exhibit and the pleading alleged a balance past due and owing in the sum of $364.81 on the purchase price of the garage and concluded with this prayer: "Wherefore cross-complainant now sues and asks the court's permission to remove said portable garage building from said real estate; a judgment as against Charles S. Castor and Mary B. Castor, his wife, the costs of this action, and all other just and proper relief." Other lienholders were made parties to the foreclosure suit and after hearing a decree was entered April 24, 1933, foreclosing both mortgages which at that time with interest and attorneys' fees aggregated $8,564.52. There was a finding and decree "against the cross-complainant Gary Lumber Company that it take nothing by its said cross-complaint." After the lot had been sold on this decree, during the year for redemption, a loan was procured from the Home Owners' Loan Corporation with which the *Page 262 indebtedness to the two mortgagees was scaled down and the lot was redeemed. The title at all times remained in appellants as tenants by the entirety but their equity in March, 1940, when this action was begun evidently was sufficient to encourage appellee again to attempt to collect the indebtedness for the garage. In the meanwhile Mary S. Castor had become a voluntary bankrupt scheduling the note and listing the lot with title as aforesaid and had received her discharge. The complaint herein is on the note, asks personal judgment against Charles S. Castor and that the judgment be adjudged a lien against the lot. Appellee says that the complaint was drafted in reliance upon the case of First National Bank ofGoodland v. Pothuisje (1940), 217 Ind. 1, 25 N.E.2d 436, 130 A.L.R. 1238. Among the several answers filed was one setting up the proceedings and decree in the foreclosure suit as a prior adjudication. Apparently the pleadings were not tested by demurrer. After trial appellee procured judgment as prayed in its complaint. The record in the foreclosure suit was put in evidence so as to present the question of res judicata which is now raised on the assignment that the court erred in overruling motion for new trial for the reason that the decision of the court is contrary to law. "The law is well settled that where matters in issue between the parties to an action were, or might have been, litigated in a former action, such matters are considered `forever at 1, 2. rest.'" Mutual Benefit Life Ins. Co. v. Bachtenkircher, Rec. (1935), 209 Ind. 106, 114,198 N.E. 81, 104 A.L.R. 1135, 30 Am. Jur., Judgments, § 179, p. 923, 34 C.J., Judgments, p. 818. More specifically, Judge Remy inJordan v. Sisson (1924), 82 Ind. App. 128, 131, 141 N.E. 881, *Page 263 states that: "The rule that every question which might have been decided or litigated in a cause will be presumed to have been decided, means that every question which was within the issues, and which, under the issues, might have been proved, will be presumed to have been proved and adjudicated." Endeavoring to take its case out of this rule, appellee says that its cross-complaint in the foreclosure suit proceed on the theory that under the conditional sales contract sued upon title to the garage had not passed while, on the contrary, its complaint herein treats the sale as absolute recognizes title in the appellants and counts upon the promise to pay. It may be true that the primary purpose of the cross-complaint was to remove the garage, which relief if it had been granted, could have been treated as an election between alternative remedies so as to preclude a later action for the purchase price of the garage. Nevertheless this was not the only relief to which appellee was then entitled under the issues. It might then have had the alternative relief of a personal judgment against both appellants. Pursuant to such judgment the real estate held by them as tenants by the entirety could have been subjected to sale to satisfy the personal judgment. It is true that this was not specifically requested but the prayer for "all other just and proper relief" was broad enough to include such an order, if an order to that effect were necessary which we do not decide. While the cross-complaint counted on the contract which contained the promise to pay and the complaint herein counted on the promissory note, the indebtedness was the same in both instances, namely, the unpaid balance of the purchase price, with interest and attorneys' fees. In both pleadings it was alleged to be due and unpaid which was a necessary allegation to *Page 264 entitle appellee to any relief under either pleading. Under the rule above stated we might presume that recovery was denied in the prior suit for failure to prove the allegation. Reading between the lines, however, we understand that in the depression year 1933 when appellants' real estate in Gary had prior incumbrances amounting to $8,564.52, appellee was not interested in a judgment that would be inferior thereto. However, the fact that appellee did not take such a judgment does not prevent the decree, which denied all relief, from barring the relief to which it was then entitled. In the final analysis appellee's position is that, being entitled to one of two alternative remedies within the issues raised by the cross-complaint, the decree denying any remedy must be construed as applying only to the remedy more specifically requested and which, perhaps, was the only one brought to the attention of the trial court. The doctrine of the theory of the case does not compel any such conclusion. The case of Unger v. McManus, Exrx. (1921),75 Ind. App. 595, 130 N.E. 146, relied upon by appellee, may be distinguished. There the court found that the former action permitted only one kind of relief, not two kinds as in the case at bar. The notes involved therein were not due so that personal judgment, if sought and given, would have been premature. As the court properly said "a judgment on the ground that the action was prematurely brought . . . would not be res adjudicata." Appellee also relies upon the opinion of the Appellate Court inRoyal Insurance Co. v. Stewart (1918), 121 N.E. 307, which upon transfer was superceded by an opinion of this court 3. (1921), 190 Ind. 444, 129 N.E. 853. The decision did not involve the question now before the court. The dicta quoted *Page 265 from the opinion of the Appellate Court are not in conflict with our views. We agree that "what might properly have been so tried and determined depends primarily upon the issues in the suit or proceeding relied upon to show such former adjudication." This is in harmony with the rule stated by Judge Remy which, when applied to the facts before us, justifies our conclusion that the decree in the foreclosure suit was a bar to this action. A new trial seems unnecessary because the only proper judgment under the issues should be for appellants. Judgment reversed with instruction to enter such a judgment. NOTE. — Reported in 41 N.E.2d 945.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3211342/

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A15-1212 Brandon Darnell Barnes, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed March 7, 2016 Affirmed Connolly, Judge Dakota County District Court File No. 19HA-CR-08-4164 Cathryn Middlebrook, Chief Appellate Public Defender, Carol Comp, Special Assistant Public Defender, St. Paul, Minnesota (for appellant) Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, G. Paul Beaumaster, Assistant County Attorney, Hastings, Minnesota (for respondent) Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Reilly, Judge. UNPUBLISHED OPINION CONNOLLY, Judge Appellant challenges his 2009 conviction of first-degree sale of a controlled substance, arguing that the district court abused its discretion in denying his petition for postconviction relief because problems discovered in 2012 with the St. Paul Police Department Crime Lab (SPPDCL) testing procedures were newly discovered evidence; (2) the district court erred in concluding that appellant did not receive ineffective assistance of counsel in 2009 because his counsel did not assert this argument to the district court, and (3) he was denied relief on his Brady violation claim. Because we see no abuse of discretion, we affirm. FACTS On June 10, June 11, and July 3, 2008, appellant Brandon Barnes sold an undercover police officer a substance later determined by the SPPDCL to be cocaine. After the July 3 sale, he admitted to an investigator that he had sold an ounce of cocaine that day and smaller amounts of cocaine on the two previous days. Appellant was arrested and charged with first-degree controlled substance crime on the basis of the three incidents. In 2009, he pleaded guilty and was sentenced to 98 months in prison; that sentence was stayed for 15 years, and appellant was placed on probation on the condition that he serve 180 days in jail. In 2012, a Dakota County case, State v. Jensen, led to the investigation, audit, and closing of the SPPDCL. In 2013, appellant received a concurrent 120-month sentence on another matter and requested execution of the 98-month sentence. In July 2014, he filed a petition for postconviction relief, asking to withdraw his 2009 guilty plea based on the closing of the SPPDCL and arguing (1) newly discovered evidence; (2) a Brady violation; (3) a due process violation; (4) that his plea was inaccurate, involuntary, and unintelligent; and (5) ineffective assistance of counsel. The district court 2 order granted his request for an evidentiary hearing on withdrawal of his guilty plea and denied relief on the Brady violation. Respondent State of Minnesota requested reconsideration of the grant of an evidentiary hearing in light of Roberts v. State, 856 N.W.2d 287, 292 (Minn. App. 2014) (holding that SPPDCL problems are not newly discovered evidence), review denied (Minn. Mar. 28, 2015). The district court let the hearing go forward but said respondent could argue whether relief was time-barred in post-hearing briefs. At the hearing, appellant, the attorney whom he claims provided ineffective assistance, two scientists from the SPPDCL, the attorney in Jensen, and two expert witnesses testified. Following the hearing, the district court concluded that the SPPDCL litigation was not newly discovered evidence and that appellant had not been denied effective assistance of counsel and denied his motion for postconviction relief. Appellant challenges the denial, arguing that the district court abused its discretion in concluding that the problems with the SPPDCL were not newly discovered evidence, that appellant did not receive effective assistance of counsel, and that there had been no Brady violation. DECISION “The denial of a new trial by a postconviction court will not be disturbed absent an abuse of discretion and review is limited to whether there is sufficient evidence to sustain the postconviction court’s findings.” State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000). 1. Newly Discovered Evidence Appellant did not file a direct appeal. When no direct appeal is filed, a petition for postconviction relief must be filed within two years of the entry of judgment of conviction 3 or sentence. Minn. Stat. § 590.01, subd. 4(a) (2014). But an exception to this limitation occurs when five criteria are met: (1) the petitioner alleges the existence of newly discovered evidence; (2) the evidence could not have been discovered by the exercise of the due diligence of the petitioner or the petitioner’s attorney within the two-year period following the entry of judgment of conviction or sentence; (3) the evidence is not cumulative to that presented at trial, (4) the evidence is not introduced for impeachment, and (5) the evidence “establishes by a clear and convincing standard that the petitioner is innocent of the offense or offenses for which the petitioner was convicted.” Minn. Stat. § 590.01, subd. 4(b)(2) (2014); see also Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997) (holding that a new trial may be granted on the basis of newly discovered evidence when the defendant proves “(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result”). The argument that the 2012 investigation of SPPDCL was newly discovered evidence that could entitle petitioners convicted before 2012 to postconviction relief was addressed and rejected in Roberts, 856 N.W.2d at 292 (“[The petitioner] has not met his burden to establish that the new evidence regarding [SPPDCL] could not have been discovered with due diligence or that the new evidence clearly and convincingly establishes his innocence.”). The district court here relied on Roberts, noting that it 4 focused on two elements of the newly discovered evidence exception, due diligence and actual innocence. [Roberts, 856 N.W.2d] at 290. In doing so, the court [of appeals] found that [Roberts] had not demonstrated that the information regarding the crime lab could not have been discovered through the exercise of due diligence. Id. at 291. Additionally, the court [of appeals] did not find that the [SPPDCL] evidence established [Roberts]’s innocence by clear and convincing evidence. Id. Similarly, . . . [appellant] has failed to establish that the evidence could not have been discovered through due diligence or that the evidence establishes his innocence. We agree with the district court. a. Due diligence Roberts explained that: The complaint against Roberts alleged that the crime lab analyzed the substance in this case and identified it as cocaine. Roberts therefore knew that the charge against him was based on the crime lab’s test results. He had access to the test results under the discovery rules. He could have challenged the foundational reliability of the test results. If Roberts was financially unable to obtain expert review of the test results, he could have requested public funds for that purpose. Roberts does not claim that he made any effort to investigate the validity of the test results. Nor does he claim that anyone prevented him from doing so. Instead, he merely asserts that the deficiencies in the crime lab’s procedure could not have been discovered with due diligence because no one had reason to suspect problems at the crime lab. That assertion is belied by Roberts’s postconviction submissions, which show that the defendant in the 2012 Dakota county case [i.e., Jensen] discovered the deficiencies. Thus, Roberts has not demonstrated that the information regarding the crime lab could not have been discovered through the exercise of due diligence. Id. (quotations and citations omitted). The district court, having heard testimony from the attorney involved in Jensen, applied Roberts: 5 [Appellant] asserts that he informed his attorney [in the 2008 case that] . . . he had reason to question whether the substance sold was, in fact, cocaine. However, [appellant’s attorney] has no recollection of [appellant] challenging the drug evidence, nor did she make a note in her file to indicate this. [Appellant] was aware that the allegations against him were based upon the crime lab’s results. Additionally, he and his attorney received the lab report as part of the state’s discovery. [Appellant] could have challenged the foundational reliability of this evidence. . . . As with the appellant in Roberts, [appellant] did not make any effort to investigate the validity of the test[] results. Appellant argued to the district court, as he argues on appeal, that due diligence of himself or his attorney could not have led to the discovery of the SPPDCL problems because the attorney in Jensen “went above and beyond due diligence and has specialized science training that alerted [her] to the problems.” The district court, having heard testimony from the Jensen attorney, noted that she testified that she had no specialized knowledge about drug testing at the time she began to realize problems existed [at SPPDCL.] [Her] testimony and the way in which she discovered the issues at [SPPDCL] belies [appellant’s] argument that due diligence was not enough to uncover the deficiencies. [The attorney’s] curiosity and desire to learn more about drug testing led to discovery of the deficiencies at [SPPDCL]. She did not have specialized training. Any attorney could have requested the full discovery file and asked to meet with a crime lab analyst as she and her colleague did. Therefore, [appellant] cannot satisfy the due diligence prong of the newly discovered evidence exception. Appellant disagrees with the Roberts conclusion that due diligence could have led to the discovery of the evidence and with the district court’s following of Roberts. But the district court and this court are both obliged to follow this court’s published decisions, particularly 6 those on which review has been denied. See Sefkow v. Sefkow, 427 N.W.2d 203, 213 (Minn. 1988). b. Clear-and-Convincing Evidence of Innocence To meet the newly discovered evidence criteria, the evidence must establish “actual innocence.” Riley v. State, 819 N.W.2d 162, 170 (Minn. 2012). “Actual innocence is more than an uncertainty about guilt. Instead, establishing actual innocence requires evidence that renders it more likely than not that no reasonable jury would convict.” Id. Here, appellant admitted to an investigator that he sold an ounce of cocaine on July 3 and sold cocaine on two dates in June; he pleaded guilty to first-degree controlled substance crime based on those sales, testifying that he had engaged in the sale of a substance he knew was cocaine; he admitted to using cocaine from the same source himself; and he told a probation officer doing the presentence investigation that he sold cocaine. In light of appellant’s admissions immediately after arrest, at the plea hearing, and during the presentence investigation, evidence about the problems at SPPDCL four years later would have been unlikely to prevent a jury from finding appellant guilty or to establish his “actual innocence.” Although appellant testified in 2014 that he doubted whether the substance he sold in 2008 was actually cocaine and that he pled guilty to avoid jail time, his 2008 attorney testified that she had no recollection and no notes of appellant ever telling her that he doubted the substance he sold was cocaine. 7 The district court did not abuse its discretion in finding that, because the SPPDCL findings were not newly discovered evidence, appellant was not entitled to postconviction relief. 2. Ineffective Assistance of Counsel “We review the denial of postconviction relief based on a claim of ineffective assistance of counsel de novo because such a claim involves a mixed question of law and fact.” Hawes v. State, 826 N.W.2d 775, 782 (Minn. 2013). For an ineffective-assistance- of-counsel claim to succeed, [t]he defendant must affirmatively prove that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations and citation omitted). Appellant argues that his counsel’s failure to request the full lab report was ineffective assistance. But, as the district court noted, it was not customary for defense counsel to request the full lab report in controlled substance cases at that time [i.e., in 2008. Appellant’s] counsel had no reason to request the full lab report then. The only evidence to suggest [appellant] told his attorney that the substance may not have been cocaine is [appellant’s] present self-serving statements. The [c]ourt does not find [appellant’s] testimony credible. [His 2008 attorney] does not recall [appellant] ever challenging that the substance was cocaine nor did she make any note in her file to reflect such a statement. [Appellant] elected to accept a plea bargain rather than challenge the [SPPDCL] test results. The decision not to pursue a challenge to the test results constitutes trial strategy. 8 Appellant presents no evidence to refute the district court’s statements, and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Minn. R. Civ. P. 52.01. Even if counsel’s failure to obtain the full lab report did fall below the standard of reasonable representation, appellant’s ineffective-assistance claim would fail because, again, evidence of his statements to the police, the investigator, and the parole officer that he had sold cocaine would have precluded any result other than his conviction. 3. Brady Violation This court conducts a de novo review of Brady-violation rulings. Pederson v. State, 692 N.W.2d 452, 460 (Minn. 2005). A Brady violation requires a showing that the evidence was favorable to the defendant as exculpating or impeaching; the prosecution suppressed the evidence, intentionally or otherwise; and the evidence was material, so the defendant was prejudiced. Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010). The district court concluded that appellant was not entitled to a hearing on his Brady violation claim because he “failed to present any evidence that the [s]tate ha[d] any knowledge of the [SPPDCL] issues in 2008” and, absent knowledge of the evidence, the state could not have suppressed it. Appellant argues that “[i]f the evidence [of problems at SPPDCL] was available at the time of trial, prosecutors should have disclosed it,” but does not explain that such evidence was available at the time of trial. Appellant says further that “[t]]here is a material question of fact as to whether the prosecutor or the police knew about the problems at the lab at the time of [a]ppellant’s trial” but, again, he offers nothing to indicate even the possibility of such knowledge. Finally, a Brady violation also requires a 9 showing of prejudice, in this context “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” State v. Hunt, 615 N.W.2d 294, 299 (Minn. 2000) (quotation and citation omitted). Evidence of appellant’s repeated admissions that he had sold cocaine preclude any reasonable probability that a jury would not have convicted him. Affirmed. 10

01-03-2023

06-09-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426462/

DISSENTING OPINION. As disclosed by the majority opinion, the court found the facts specially. The sufficiency of the evidence to support any finding is not questioned. The exceptions are taken to the conclusions of law. The facts found are as follows: "1. — That defendant, Isaac Bloom and Fannie Bloom on the 18th day of October, 1932, and for some years prior thereto were, and are now, husband and wife; that plaintiff, Irene Shirley Bloom Bellin, is the daughter of Isaac Bloom and Fannie Bloom, and was born in November, 1908. "2. — That on the 18th day of October, 1932, and for a number of years prior thereto, said Isaac Bloom and Fannie Bloom were the owners as tenants by the entireties of the following described real estate, to-wit: Lot Forty (40) in block sixty-four (64), as marked and laid down on the recorded *Page 670 plat of Gary Land Company's First Subdivision in the city of Gary, Lake County, Indiana. "3. — That in the year 1932 said real estate was encumbered by mortgage to the Home Savings and Loan Association of Gary, Indiana, securing a stock loan of $6,000.00 upon which on October 18th, 1932, there was unpaid the sum of $1,600.00. "4. — That defendant was then personally indebted on accounts payable contracted in his coal business and otherwise in a large amount and together with his said wife upon mortgages covering other real estate, the value of which was greatly in excess of such mortgage indebtedness. "5. — That at said time banks and building and loan associations were failing and defendant became alarmed and thought that if said Home Savings and Loan Association should fail, both he and his said wife would lose the stock payments theretofore made and said mortgage would remain totally unpaid. He also was apprehensive concerning action his own individual creditors might take and that the equity in said real estate so held by them might become involved. "6. — That for the better protection of said equity of himself and wife, said defendant determined on or about October 18th, 1932, to refinance said $6,000.00 mortgage for the unpaid balance of $1,600.00 and to transfer the record title to said real estate to his said daughter, then Irene Shirley Bloom, until such time as conditions should become settled and improved and the claims of creditors satisfied. "7. — That thereupon defendant and his said wife pursuant to said determination signed and acknowledged a deed to said real estate purporting to convey the *Page 671 same to his said daughter who thereupon executed a new mortgage for $1,600.00 to said association representing the unpaid balance upon the prior mortgage after stock payments had been fully credited thereon, whereupon said $6,000.00 mortgage was released. "8. — That at the time of the purported conveyance mentioned in Finding 7, it was understood and agreed between defendant and his said wife and his said daughter, that defendant would make payment of the said new $1,600.00 mortgage and that when requested by the defendant so to do said daughter would reconvey said real estate to her said father and mother, as tenants by the entirety, as the same had been heretofore held by them, and that pending said reconveyance, the defendant would retain possession of said real estate and exercise all the privileges of ownership thereof. "9. — That said defendant has paid said $1,600.00 mortgage and has retained possession of said real estate hitherto, kept the same insured and repaired, paid the taxes, and has continuously exercised all the privileges and obligations of ownership thereof to this date. "10. — That at the time of the purported conveyance to plaintiff aforesaid, it was not the intention of defendant or his said wife to transfer said real estate to plaintiff as her property or of plaintiff to receive it as such. "11. — That there was no consideration whatever for said purported conveyance. "12. — That pursuant to arrangements so to do, said purported deed was with the knowledge and consent of defendant recorded in the recorder's office of Lake County, Indiana, on October 25, 1932, in deed record 499, page 157, by said Home Savings and Loan Association of Gary, Indiana, and delivered by it to the defendant. *Page 672 "13. — That defendant did not deliver same to plaintiff nor authorize anyone else so to do, but placed the same in a safety deposit box to which defendant and his wife each had access. "14. — That several years thereafter defendant's said wife without the knowledge or consent of defendant and against his wishes took said deed out of said box and placed the same in another safety deposit box to which she alone had access, but which later became accessible to plaintiff by arrangements agreeable to defendant's said wife. "15. — That plaintiff has never had the exclusive possession of said deed. "16. — That in December, 1937, defendant having satisfied the claims of creditors and having learned of plaintiff's intended marriage demanded from plaintiff, then unmarried, a reconveyance of record of said real estate which plaintiff refused and has ever since refused to do. "17. — That on May 19, 1938, but never before, plaintiff made demand on defendant for possession of said real estate. "18. — That defendant and his said wife for over two years have been estranged and that plaintiff and defendant's said wife have considered to cheat this defendant out of any and all interest in and to said real estate by said refusal to reconvey as per said agreement so to do and to claim that said real estate was conveyed to plaintiff as a gift. "19. — That the rental value of said real estate since May 19th, 1938, has been the sum of $150.00 per month. "20. — That defendant's said wife, Fannie Bloom, refuses to join the defendant as party-cross-complainant in his cross complaint." *Page 673 From these facts the court concluded that the deed was never delivered and was, therefore, insufficient to pass title, and that the grantor never intended to transfer ownership to the appellant. It is not questioned that the recording of the deed is primafacie evidence of delivery. Whether or not the deed was delivered is the question to be determined from the facts found. The delivery of the deed is as essential to its validity as the signature of the grantor. Since its recordation is only primafacie evidence of its delivery, evidence of words, acts, or conduct showing that it was not the intention of the grantor to give effect to the instrument may be considered. The authorities everywhere stress the importance of the intention of the grantor. There are many decisions in this state emphasizing that fact and so holding. These decisions extend throughout the history of this court. A few of them are as follows: Townsend v. Millican (1913), 53 Ind. App. 11, 101 N.E. 112; Reed v. Robbins (1915), 58 Ind. App. 659, 108 N.E. 780; Fitzgerald, Trustee v.Goff (1884), 99 Ind. 28; Emmons v. Harding (1904),162 Ind. 154, 164, 70 N.E. 142; Stokes v. Anderson (1889),118 Ind. 533, 544, 545, 21 N.E. 331; Vaughan v. Godman (1884),94 Ind. 191. From these and many other decisions the rule has been firmly settled that the crucial test in all cases of this nature is the intent of the grantor to deliver the deed under all the facts and circumstances in the case. 16 Am. Jur. 501, 502, Deeds §§ 115, 116. The question of the delivery of a deed is ordinarily one of fact. Some of the authorities say it is a mixed question of law and fact. It is for the court or jury trying the case to determine whether or not there was a delivery of the deed.Firemans Fund Ins. Co. v. Dunn (1899), *Page 674 22 Ind. App. 332, 337, 53 N.E. 251; Klingaman v. Burch (1940),216 Ind. 695, 25 N.E.2d 996. No question as to the rights of creditors is involved in this appeal either by the pleadings or by the finding of the court. The facts found by the court speak for themselves. The court found that, at the time of the purported conveyance, it was not the intention of the defendant or his wife to transfer said real estate to their daughter as her property. There is no finding and no showing to the effect that the appellee conveyed the property to defeat any creditor. This is not a creditor's action to set aside a fraudulent deed. If it were, the creditor alone could maintain the action. Findings Nos. 5 and 6 disclose that the appellee and his wife had theretofore executed a mortgage to a building and loan association to secure the payment of $6,000. They were apprehensive of their position if the building and loan association should fail. They believed that in such event they would lose their stock payments, having reduced the indebtedness to the sum of $1,600, and that the appellee could better protect himself and his wife by a transfer of the record title to the daughter and the execution of a mortgage by her to secure the $1,600, thereby securing a release of the $6,000 mortgage. The daughter agreed to all these matters, and knew that the property was not transferred to her as her own; that her father was to retain possession of it and pay the indebtedness, taxes, and insurance; and, when all of these things were done, she was to reconvey it to her father and mother. The court found that the deed was never delivered; that there was never any intention to deliver it; that it came into the possession of the daughter, if she ever received it, by a trick or fraud upon the part of the appellee's wife who had become estranged. In many *Page 675 well reasoned decisions the courts have extended the equity rule so as to prevent fraud from being perpetrated. The appellant never paid any consideration for the property; never exercised any ownership over it; and agreed with her father and mother, according to the findings, that the property should be and remain theirs. I do not think that the criticism of the decisions of this and the Appellate Court is justified under the facts in the case at bar. It is not necessary to overrule any decision in this state in order to affirm the judgment of the lower court, nor is it expedient or necessary to overrule well reasoned decisions in order to assist the appellant, the daughter, to hold and retain property which is not hers. This action does not fall within the statute discussed in the majority opinion. The title and ownership of the real estate never passed to the appellant, for want of a delivery of the deed. "Delivery of a deed" imports possession or right of possession of the instrument with intent to pass title. It is the final act which consummates the deed without which it is inoperative to pass title. Fitzgerald,Trustee v. Goff, supra. The recording of the deed does not pass title. It only secured the title from being defeated by a subsequent sale to an innocent purchaser. 16 Am. Jur. 500, Deeds § 112. The solution of this question is grounded entirely upon the intention of the grantor. On the subject of intent to deliver the deed, the special findings finally settle that question of fact in favor of appellee. If it were necessary or proper to go back of the findings to the evidence, it would be discovered that each finding is fully sustained. On appeal this court considers only the evidence favorable to appellee. The majority opinion is in error in assuming that title passed to appellant. It could not pass to her under *Page 676 the findings for the reason that the deed was never executed. The execution by the appellant of the mortgage to the building and loan is not evidence of ownership of title. The facts found deny rather than affirm that idea. The appellant was the medium through whom the form of indebtedness was changed. No one was injured thereby. However, by a reversal of this case the father is injured by being deprived of property which is his, and the daughter is benefited by property which in justice and good conscience she should not have. I think the trial court reached the correct result, well sustained by many decisions of this and other courts. The judgment should have been affirmed. NOTE. — Reported in 28 N.E.2d 53.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426554/

The appellant was tried by a jury and convicted of operating a motor vehicle on a public highway of this state while under the influence of intoxicating liquor, in violation of § 1. 47-2001, Burns' 1940 Replacement, § 11189-62, Baldwin's Supp. 1939. Two errors are assigned: (1) that the "appellant was deprived of his legal and substantial rights by not being taken immediately before a magistrate upon his arrest as by law provided," and (2) that the trial court erred in overruling the appellant's motion for a new trial. The first assignment is based on § 47-2307, Burns' 1940 Replacement, § 11189-174, Baldwin's Supp. 1939, which provides that whenever any person is arrested upon a charge of driving a motor vehicle while under the influence of intoxicating liquor or narcotic drugs, he shall be immediately taken before a magistrate within the county in which the offense is alleged to have been committed and who has jurisdiction of such offense and is nearest or most accessible with reference to the place where said arrest is made. It does not appear from the record that the trial court was afforded any opportunity to redress the alleged wrong done the appellant, or that it was apprised of his claim that his rights were violated by the arresting or prosecuting officials. This is primarily a court of review, and the above assignment therefore presents nothing for our consideration. The motion for a new trial charges numerous alleged errors. The court gave on its own motion instruction No. 19, as follows: *Page 604 "You ladies and gentlemen, in this cause, are the judges of the law as well as of the facts. You can take the law as given and explained to you by the Court; but if you see fit, you have the legal and constitutional right to reject the same and construe and determine it for yourselves. Notwithstanding, you have the legal right to disagree with the Court as to what the law is, still you should weigh the instructions given you in this case as you weigh the evidence and disregard neither without proper reason." By a statute of this state, the trial court is required to charge the jury in a criminal case as to "all matters of law which are necessary for their information in giving 2, 3. their verdict" (§ 9-1805, Burns' 1933, § 2285, Baldwin's 1934); but the Constitution of Indiana provides in Section 19 of Article 1 that: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts." This constitutional mandate has never been construed as restricting the power of a trial court to declare the law to a jury, but it has been said in numerous cases that this must not be done in a manner calculated to bind the consciences of the jurors or restrict them in their right under the Constitution to determine the law for themselves. The part of the above instruction objected to is the last sentence thereof, where the jurors were told that they should weigh the instructions as they weigh the evidence. An instruction substantially like the one before us was approved without discussion in Blaker v. State (1892), 130 Ind. 203, 29 N.E. 1077; and in Chesterfield v. State (1924), 194 Ind. 282, 141 N.E. 632, it was said that it was not error to give such a charge. However, in Hubbard v. State (1925), 196 Ind. 137,147 N.E. 323, it was held that it was improper to give this instruction in connection with another to the effect that *Page 605 it was the duty of the jury to reconcile all of the evidence so as to believe all of the testimony, if that could reasonably be done, and the Blaker case, supra, was disapproved. The instruction was again condemned in Wolf v. State (1926),198 Ind. 261, 151 N.E. 731, but the giving of it was held to be harmless, in view of the fact that the instructions taken as a whole were more favorable to the defendant than he was entitled to have them; and in Lehr v. State (1927), 199 Ind. 280,157 N.E. 98, the court cited the Hubbard case, supra, and held that no question was presented as to a like instruction, although the court said that the use of the word weigh instead of consider therein was subject to criticism. The last pronouncement on the subject is found in Landreth v. State (1930), 201 Ind. 691,171 N.E. 192, 72 A.L.R. 891. This instruction was there branded as erroneous and harmful, but by a process of reasoning which we are unable to follow, the conclusion was reached that the judgment of conviction should be affirmed. It has many times been said that this is a "government of laws and not of men," and it is not to be supposed that the framers of our Constitution intended by Section 19 of Article 1 to 4. authorize jurors to ignore the law or to decide criminal cases according to their personal whims. It is rather to be presumed that it was thought that inasmuch as jurors are drawn from the body of the people, the surest guaranty of obtaining general respect for and obedience to the law was to directly place upon them, as officers of the courts, the solemn responsibility of determining the law. Having themselves the right to determine the law, under proper instructions, it was no doubt thought that jurors would be less likely to suffer the guilty to *Page 606 go unpunished than if they were obliged to accept the law from the presiding judge. Instructions are not the subject of comparative evaluation. They either correctly state the law or they do not, although if they are erroneous it does not necessarily follow that 5, 7. they are harmful. The jury may properly weigh the evidence because it may be necessary to determine the facts from conflicting testimony; but there can be no conflict in instructions that correctly state the law applicable to a given case and, consequently, no occasion for weighing them. Constitutional liberties are more likely to be endangered by subtle and insidious encroachment than by bold and violent assaults, and in view of the positive command of our organic law that "in all criminal cases whatever, the jury shall have the right to determine the law and the facts," this court is not prepared to say that a charge in mandatory form that the jury shall weigh the instructions as they weigh the evidence may be regarded as harmless. For the giving of the court's instruction No. 19, the judgment must be reversed. Since a new trial will be ordered, we shall note some of the other alleged errors that might recur. In its instruction No. 23 the court quoted the section of the statute upon which the 8. affidavit was based, including the part relating to the punishment upon conviction of a second or subsequent violation. The appellant was not charged with a second or subsequent offense, and the part of the instruction relating to that subject was improper. Campbell v. State (1925),197 Ind. 112, 149 N.E. 903; Lindley v. State (1927), 199 Ind. 18,154 N.E. 867. Witnesses for the state testified as to their observations of the appellant, including his appearance and *Page 607 manner of conduct, and they expressed opinions, based 9, 10. upon the facts detailed by them, that he was under the influence of intoxicating liquor. This was in accordance with the accepted method of making such proof, but the prosecuting attorney pursued the inquiry further and asked these witnesses whether, in their opinions, the appellant was sufficiently under the influence of intoxicating liquor to make him an unsafe or dangerous driver or a hazard to the highway. This was improper, if for no other reason than that the matters inquired about were without the issues. It was sufficient, for the purposes of the state, to show that the appellant was under the influence of intoxicating liquor while operating a motor vehicle on a public highway. The other alleged errors are not likely to recur. Judgment reversed, with instructions to sustain the motion for a new trial. NOTE. — Reported in 34 N.E.2d 928.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426555/

This action was brought by appellee, the father, to recover for the alleged wrongful death of his son. From a judgment in favor of appellee, appellant appeals. The basic facts resulting in the almost instant death of appellee's son are not in dispute. Only two persons witnessed the accident, the appellant, and his friend who was riding with him in the automobile. The following facts are disclosed by interrogatories and answers thereto, and the testimony given by the two eyewitnesses, and are in substance, as follows: On June 21, 1936, about 7:30 o'clock in the evening, appellant was on his way to his home in Evansville, Indiana, and passed through the town of Patoka, and proceeded southward on U.S. Highway No. 41, at the rate of about 45 miles per hour. The lights on his 1936 Plymouth Coach were burning, but the jury found that it was dusk, but he could see plainly. The weather was *Page 526 fair. There was a curve in the highway just south of the town of Patoka, but from the curve southward the highway was level and straight for about 930 feet to the scene of the accident, and south of the scene of the accident for a distance of about one-third of a mile. The cement portion of the highway was 18 feet wide with a gravel shoulder on either side three feet in width, flanked by grass on each side. Appellee's son, a boy 15 years and nine months old, was walking northward on the pavement two or three feet from the west edge, leaving at least 15 feet of the pavement to the right of him for other traffic. There was no other traffic on the highway within sight of the scene of the accident. The boy had finished his first year in high school; his hearing, his eye sight with glasses, were normal; he was wearing a dark suit; he lived about 60 rods from the highway, and was familiar with the use and traffic on the highway. There was nothing on the highway to obstruct his view of approaching vehicles for a third of a mile northward, and nothing to have prevented him from hearing the approach of automobiles had he listened. The undisputed evidence shows that appellant's companion saw the boy when he turned the curve immediately south of the town of Patoka, but said nothing to appellant, and did not see the boy thereafter, as he was looking out of the window, until immediately prior to the accident. Appellant was driving on the right-hand side of the highway and did not see appellee's son until the front of the car was within 15 to 20 feet of him, at which time the boy was walking with his head downward, and appellant testified that he did not think the boy saw or heard the approach of the car. At that time there was insufficient time to sound the horn or give other signal, but appellant swerved his car to the *Page 527 left in an attempt to avoid striking the boy, but the right front fender came in contact with him, and the impact threw the boy against the rear part of the right door, causing instant death. Appellant testified that he stopped his car on the west side of the road about 87 paces south of the place of collision. The jury found, in answer to interrogatories, that after appellant saw decedent he could have reasonably slowed, but not stopped, his car in time to avoid the collision, and that appellant also could have reasonably turned his car more and avoided hitting decedent. Upon these facts appellant contends that appellee's son was guilty of contributory negligence as a matter of law, and that the judgment should be reversed, with instructions to enter judgment for appellant on answers to the interrogatories, notwithstanding the general verdict. Appellee says that the above facts present a mixed question of law and fact, and therefore is a proper question for the jury; and further contends that even though his said son was negligent, nevertheless the general verdict should not be disturbed because the answers made by the jury to the interrogatories show that appellant had the last clear chance to avoid the collision. The principles of law governing questions presented herein are not new, or complex. We have, however, had considerable difficulty in the application of these principles in determining whether or not the facts here presented show contributory negligence on the part of appellee's son, as a matter of law. So it is in the application of well-established rules and principles to the facts, that has given the court some concern. *Page 528 It is clear, we think, that appellee's son had a legal right to walk on the left side of the highway, facing oncoming traffic; and, under the law of the road, appellant was also expected 1. to drive on the west or right-hand side of the pavement. Even at common law, both appellee's son, and appellant, were under the duty of exercising ordinary care under the circumstances. The rights and duties of appellee's son are clearly defined in the following cases: Indianapolis Traction Co. v. Kidd (1906), 167 Ind. 402, 407, 79 N.E. 347; Fishman v. Eads (1929), 90 Ind. App. 137, 168 N.E. 495. Quoting from Raymond v.Hill (1914), 168 Cal. 473, 143 P. 743; Lindloff v. Duecker (1933), 217 Iowa 326, 251 N.W. 698; Korstange v. Kroeze (1933), 261 Mich. 298, 246 N.W. 127. Appellant's duty in some respects has been defined by statute. Acts of 1925, ch. 213, § 36, p. 570, § 47-513, Burns' 1940 Replacement, § 11166, Baldwin's 1934, provides: "In approaching a pedestrian who is walking or standing upon the traveled part of any highway, and not upon a sidewalk . . . every person driving or operating a motor vehicle . . . shall slow down and give a timely signal with the bell or horn or other device for signaling." By the provisions of the above statute, the duty to slow down, to give warning upon approaching pedestrians, is enjoined upon the driver of an automobile. The warning is for the purpose 2. of giving the pedestrian an opportunity to protect himself. See Croatian Bros. Packing Co. v. Rice (1928),88 Ind. App. 126, 147 N.E. 288. We think it also might be construed as a notice to the pedestrian that the driver intends to use that part of the highway on which the pedestrian is walking. The duty to slow down is enjoined *Page 529 upon drivers of automobiles, perhaps to the end that the driver may change the course of his automobile in time to avoid a collision, if the pedestrian does not heed the warning. Under the circumstances here presented, appellant was not required to use the right side of the pavement, for the reason that at least 15 feet of the pavement to the east was available for his use, as there was no other traffic on the highway at the time. If a car had been approaching appellant from the south at the time appellant's car approached appellee's son, a different question would be presented. But here the road was free from any traffic whatsoever, save and except appellee's son, and appellant's automobile. There is no question presented in this case as to the negligence of appellant. Therefore, we are not concerned with his conduct, as it might affect his negligence, but, nevertheless, the conduct of appellant as he approached appellee's son, must be considered as affecting decedent's conduct. In determining whether or not appellee's son was guilty of negligence contributing to his own injury, his actions must be considered in the light of the conduct of appellant as he 3. approached appellee's son. There was no evidence in the case as to whether or not appellee's son saw or heard the approach of appellant's car. But since the evidence discloses that there was no obstruction between appellee's son and the approaching car that would have prevented said son, by the exercise of ordinary care, from seeing the car as it approached, the jury had a right to infer that appellee's son did see and did hear the car approaching. It has been many times said that it is negligence to fail to see or hear that which you could see or hear, *Page 530 by the exercise of ordinary and reasonable care, and for 4, 5. that reason the law attaches the same legal consequences for not seeing or hearing as it does if in fact you did see and hear. However, negligence must be proven, and in the absence of some proof of negligence, the jury would not be justified in inferring negligence. While the evidence was to the effect that appellant did not in fact see appellee's son, yet appellee's son did not know that appellant did not see him. Therefore, as heretofore pointed out, appellee's son had a right to assume that appellant did see him, and it was not negligence per se on his part to act upon that assumption. Consequently, we cannot say, as a matter of law, that appellee's son was guilty of negligence in continuing his direct course on the assumption that appellant saw him and would exercise ordinary care toward him, and that appellant would be mindful of the duties imposed upon him by the above-mentioned statute. While it may be true that the sound of a horn was unnecessary to warn appellee's son of the approach of the car, the fact that the horn was not sounded might have indicated to appellee's son that the appellant would not insist on pursuing his direct course, but would sufficiently swerve to the left upon the nonoccupied part of the highway, and thus avoid a collision. Therefore, until appellee's son had some notice to the contrary, it may reasonably be said that the conduct of the decedent in maintaining his course was that of an ordinary, prudent person under the circumstances. This view finds support in the following authorities: 1 Berry on Automobiles (6th Ed.), § 352, page 311; Indianapolis Traction Co. v. Kidd, supra,Lewis v. Seattle Taxicab Co. (1913), 72 Wash. 320, 130 P. 341. *Page 531 It is apparent, therefore, the difficulty is in determining at what time the decisive moment occurs for the pedestrian to act. As stated above, appellant had a right to assume that 6, 7. the pedestrian would exercise ordinary care and at the proper time would step from the pathway of the car, if necessary, to avoid injury. In cases of this kind there is a period of time as the parties approach each other, when it may be said, as a matter of law, that neither party is guilty of negligence, and on the other hand a later period when it may be said, as a matter of law, that both parties are negligent. But between these extremes there is a twilight zone where reasonable minds may differ upon the question of negligence. When the facts are such as to bring the issues within this twilight zone, the question of negligence, or contributory negligence, is a mixed question of law and fact, and is a proper question to present to a jury. We think this is such a case. In adopting this view of the case, the general verdict can stand upon the theory that the jury, by its general verdict, determined that appellee's son was not guilty of contributory negligence, and that appellant was negligent, and that his negligence was the proximate cause of the injury. We must give effect to the verdict of the jury, if it can be sustained on any theory presented by the issues. So it is unnecessary to determine whether it may also be sustained, 8. by the application of the doctrine of "last clear chance." The doctrine of last clear chance is discussed at length in the briefs, and no doubt occasioned much argument in the making of the issues. Appellant filed a motion to separate into paragraphs, a motion to strike out, a motion to make more specific, and a demurrer, all of which were overruled. It was urged that each *Page 532 paragraph proceeded upon the theory of willful injury, negligence, and last clear chance. We find no allegations that would justify a conclusion that appellee predicated his cause of action upon a willful injury. Both paragraphs, and particularly the second, stated 9, 10. the essential facts as herein set out. Negligence on the part of appellee's son was not admitted in either paragraph of the complaint, and, therefore, the doctrine of last clear chance was not specifically pleaded. The doctrine of last clear chance, generally speaking, is not a doctrine of pleading, but a doctrine of evidence. Union Traction Co. v. Bowen (1915), 57 Ind. App. 661, 103 N.E. 1096; Indianapolis, etc.,Traction Co. v. Senour, Admx. (1919), 71 Ind. App. 10, 122 N.E. 772; City of Michigan City v. Werner (1916),186 Ind. 149, 114 N.E. 636; Indianapolis Street Railway Co. v.Marschke (1906), 166 Ind. 490, 77 N.E. 945. But under the above authorities we think it clear that the allegations in the complaint were sufficiently broad to 11. admit evidence as to the doctrine of last clear chance. There were charges in the complaint that appellant failed to keep a lookout ahead to discover if the boy was aware of his peril; that appellant failed to give warning of his approach, and failed to slow down so as to prevent injuring the boy; and it is charged that the appellant, after seeing the boy walking with his head down, "carelessly and negligently and with great force and violence directed and drove his automobile upon and against the boy, inflicting mortal injuries." It is our view that there was no error in overruling the various motions above mentioned, or in overruling *Page 533 the demurrer to the complaint. It cannot be said that 12. appellant was misled as to the charges he would have to meet at the trial, for all of the material facts proved, other than the question of damages, were within his own knowledge as one of the eyewitnesses to the accident, and we think the facts were sufficiently alleged in the complaint to state a cause of action. One of the errors relied upon was that the appellant was denied a struck jury. The record shows that after the case was assigned for trial, appellant filed a request for a struck jury. The jury was drawn, and summons were placed in the hands of the sheriff for service upon each member thereof. The sheriff refused to serve the summons for the reason that appellant did not deposit or offer to pay the members thereof, as provided by § 4-3315, Burns' 1933, § 335, Baldwin's 1934. We are of the opinion that appellant is in no position to urge this error, for it was determined in the case of Board, etc. v. Board, etc. (1901), 27 Ind. App. 378, 61 N.E. 612, that 13. a party who cannot or will not pay for this special jury must do without it. Under the provisions of the above statute, and the decision in the case above referred to, we hold that there was no available error in refusing a struck jury. Appellant makes complaint of instruction No. 6, given by the court on its own motion. This instruction reads as follows: "One who operates an automobile upon a public highway is bound to constantly observe the highway in front of him so as to discover other vehicles or pedestrians thereon, and avoid colliding therewith, and to keep his automobile under such control that he may readily operate or stop the same to avoid a collision and possible injury to other persons. He is bound to see what he could have seen if he had exercised due care under the circumstances, *Page 534 and, if, in this case, you find that the defendant could have seen the plaintiff's decedent, with which he collided, in time to have so operated his automobile, or to have stopped the same, in time to have avoided a collision with the decedent, by the exercise of due care and caution, required by the particular circumstances, and you also find that he did so collide with plaintiff's decedent, then he was negligent in so operating his automobile to cause such collision." In support of his contention he cites and relies upon Martin v. Lilly (1919), 188 Ind. 139, 121 N.E. 443; Lauer v.Roberts (1934), 99 Ind. App. 216, 192 N.E. 101, and four other cases. The Martin v. Lilly case was decided before the statute above referred to was enacted by the 1925 Legislature, and the duties imposed upon the drivers of motor vehicles by 14, 15. the provisions of that statute were not involved. For that reason the case is not controlling in this case. Neither is the case of Lauer v. Roberts, supra, in point, because in that case there was evidence that the pedestrian came suddenly from in front of a street car and either stepped in front of the automobile or ran into the side of it. The duty of a driver of an automobile to discover pedestrians on the highway, and have his automobile under control so as to avoid collision with them as stated in the instruction has no application to cases where a pedestrian suddenly steps out from behind another car or other obstruction into the path of an oncoming car. So for that reason the Lauer case is not decisive. The other cases cited are also distinguishable. Appellant says that by the use of the words "constantly observe" the jury was told that appellant must keep his eyes constantly on the roadway while he was driving. Webster defines the verb "observe" as, to take notice; to be attentive, and the word "constant" as continually recurring, *Page 535 regular, steady, and the word "constantly" as in a constant manner, uniformly, continuously. So the phrase "constantly observe the highway" would mean, literally, to continually or regularly pay attention to the highway. We think the statute above referred to does make it the duty of a driver of an automobile to regularly and continuously pay attention to the highway. To be sure, looking to the right or to the left to see if another vehicle or any other object was about to come on the highway from either side would be observing the highway. But we can understand how the jury might get a more narrow view from the wording of the instructions, and for that reason we could not approve it as a model instruction. But even though the instruction could be said to be erroneous, we think it harmless for the reason that under the evidence and the other facts as found by the jury as disclosed by their answers to interrogatories, the jury could have reached no other conclusion than that appellant himself was guilty of negligence. Since from the undisputed evidence appearing in the record, the trial court could have instructed to the effect that appellant was guilty of negligence, erroneous instruction to the jury as to the duty of appellant could not have been harmful. We, therefore, find no reversible error in giving this instruction. Appellant says the court's instruction No. 11 was erroneous. This instruction told the jury that if it found that the defendant was guilty of any of the acts of negligence 16. charged in the complaint and that by reason thereof plaintiff's decedent was suddenly and unexpectedly placed in a position of great apparent danger, this was a probable circumstance for it to consider in respect to his own conduct. The instruction then instructed the jury, correctly we *Page 536 think, that if plaintiff's decedent acted as an ordinary, prudent person of decedent's age, intelligence, experience, and capacity, placed in the same situation would have probably acted, then it would not be warranted in finding him guilty of negligence. Appellant says this instruction was erroneous because it was not applicable to the issues presented. He says that there was no evidence that appellee's decedent was in any apparent danger; that there was no evidence that Charles Key ever saw appellant's car before he was struck. The evidence on this subject was given by appellant himself, and he stated that he did not think Charles Key saw him before the car struck him. As pointed out above under the facts presented, the jury would have had a right to infer that Charles Key saw appellant's car as it approached, even though he did not see it immediately before the collision. So we think appellant's position cannot be sustained. It is also contended that the instruction is erroneous because, according to the instruction, it makes no difference whether appellee's son was guilty of negligence in bringing himself into a position of danger or not. We have heretofore pointed out that in the first place appellee's son had a right to walk upon the west edge of the pavement, and that it was not negligence per se to so walk. In the second place he had a right to rely upon the assumption that appellant would see him and would not run him down without warning. It cannot be said, as a matter of law, that appellee's son was guilty of negligence in failing to step off the highway until he had some notice or warning, or reasonable grounds to 17. believe that appellant did not see him or did not intend to turn to the left side of the road and pass him. But after appellee's son had such knowledge or notice, then he must act as *Page 537 an ordinary, prudent person of his age and experience would act under such circumstances. Whether or not appellee's son had such a warning, or had reasonable cause to believe that appellant did not see him and was not going to turn to the left in time for him to 18, 19. step off the pavement and avoid injury, was, under the circumstances of this case, a question of fact for the jury. Other instructions given and refused are made the basis for a reversal of the judgment. We do not think it advisable to write upon the various errors assigned. Appellant's brief contains 367 printed pages, and 19 alleged errors and rulings are urged with reference to the pleadings alone. The motion for a new trial specifies 86 separate reasons — over 60 instructions were read to the jury — 93 interrogatories were submitted and answered. Appellant has 69 propositions, and under each proposition he cites as many as 20 to 30 cases. We do not think we would be justified in extending this opinion to the extent necessary to discuss these various objections. It is evident in this case, as in many jury cases, that far too many instructions were given. It is the purpose of instructions to give the jury a clear and definite statement of the law, and too many instructions often confuse the jury and thus defeat their very purpose. However, this is primarily the province of the trial court. We have, however, examined all of the questions presented by appellant in his brief, and find no reversible error. Judgment affirmed. NOTE. — Reported in 33 N.E.2d 330. *Page 538

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426556/

On October 16, 1939, the Appellate Court of Indiana filed an opinion dismissing the case of Santa Claus, Inc., et al. v.Santa Clause of Santa Claus, Inc., 22 N.E.2d 879, 880. The opinion recites: "The record presented to us is so impregnated with spoliation of some unknown stranger to the record while the record was in the possession of the appellants or actually mutilated and forged by the appellants as charged by the appellee that in our opinion no record importing proper verity is before us." It is said in the opinion that the record was altered by adding page 157, showing the filing of a bill of exceptions by the appellants, and page 717, showing that the appellants filed with the clerk a written praecipe; that on page 98 of the transcript the date, August twenty-eighth, was changed to August twenty-ninth. It is also pointed out that, after the transcript was prepared, six pages had been inserted in the bill of exceptions containing the longhand transcript of the shorthand report of the trial, and that these pages were removed by the trial judge. These are the only changes in, or mutilations of, the record referred to in the opinion. On March 28, 1940, the Appellate Court filed an opinion denying a rehearing in the case, in which it is said: "In considering this petition it is noted that the appellants do not deny the mutilation but contend only that such mutilation, if any, is immaterial. In the *Page 161 oral argument of this case the attorney for the appellants, W.D. Hardy, accepted full responsibility for whatever mutilation that appears in the record and stated in open court that such responsibility was his." 26 N.E.2d 80, 81. And, on the same day, the Appellate Court presented to this court a memorandum bearing the title and number of the case referred to, which is as follows: "We respectfully call the attention of the Supreme Court of this State to the mutilation of the record in this case as shown by the opinion of this court in 22 N.E.2d 879. We take this action by reason of the lack of jurisdiction in this court to deal with the matter fully and finally. On the oral argument of this case in this court attorney William D. Hardy assumed full responsibility for whatever mutilation was made and at that time he fully exonerated from blame the other attorneys appearing for the appellant." Upon receipt of the above memorandum, this court examined the opinion of the Appellate Court and found that the matters disclosed were sufficient to challenge the consideration of this court, and ordered that "on or before the 19th day of April, 1940, at 10:00 o'clock A.M., of said day, the said William D. Hardy show cause, if any he has, why his name should not be stricken from the roll of attorneys of this court, and why this court should not take such further action and make such further orders in said matter as it shall deem necessary and proper." Thereafter, on April 19, 1940, William D. Hardy appeared by Frank H. Hatfield, Edwin C. Henning, Winfield K. Denton, Richard Waller, Isidor Kahn, and Edward E. Meyer, reputable members of the bar of Vanderburgh County and of the bar of this court, and filed his verified response and answer, expressly and *Page 162 categorically denying that he made any changes or alterations in the record in question, except that he prepared two pages which he presented to the clerk of the trial court with the request that they be substituted for two pages which the clerk had prepared as part of the record, and which the clerk did personally insert in such record. There is a prayer that he be adjudged free from any wrongful act, and for such other relief as may be considered proper. For the purpose of ascertaining the facts, we have carefully examined the record and pleadings on file in the Appellate Court, and the response and the affidavits and exhibits attached thereto. We have caused the deposition of Marguerite Canary, the deputy clerk who prepared the transcript, to be taken, we have caused the alleged erasure and changes in the transcript to be examined by the expert in the laboratory of the Indiana State Police Department, and we have caused all of the attorneys of record in the case to appear before the bar of this court and testify as to the facts within their knowledge. The record as filed in the Appellate Court is typed upon ruled and line-numbered transcript paper. Pages 157 and 717 are upon paper with unruled margins. These two pages are clearly and obviously different from the other paper in the record. The transcript was filed in the office of the Clerk of the Appellate Court on May 8, 1937. On November 16, 1937, the appellee filed a verified petition for a writ of certiorari in which it is alleged that the transcript is incomplete and incorrect in eleven particulars. Most of the specifications deal with small matters of inadvertent omission by the clerk. We are concerned only with the specification that page 157, showing the filing of defendants' bill of exceptions, "has been wrongfully, erroneously *Page 163 and apparently by design, added to this Transcript, although it does not appear of record in the Martin Circuit Court of Indiana, either in the Reporter's minutes concerning the trial of this cause, the original papers therein, the court's minutes, or civil order book entries"; the specification that page 717, purporting to show a praecipe directing the preparation of a transcript by the clerk, "has been wrongfully, erroneously and apparently by design, added to this Transcript, although it does not appear of record in the Martin Circuit Court of Indiana, either in the original papers therein, the Reporter's minutes concerning the trial of this cause, the court's minutes, or civil order book entries"; and the specification that on page 98 of the transcript the word "twenty-eighth" has been changed and altered to read "twenty-ninth." At the time of the filing of the petition for certiorari, certain affidavits were filed supporting it. One purported to be the affidavit of James G. Canary, Clerk of the Martin Circuit Court. In this it is recited "that he prepared and signed" the transcript; that he has examined the transcript and the verified petition for certiorari, and that the specifications therein are true so far as is disclosed by the records. "That pages 157 and 717 of said Transcript and each of them were not a part of said Transcript at the time it was signed by him, nor at the time it was delivered to Appellants counsel as hereinafter stated and that he did not prepare either of said purported order book entries on said pages, his certificate to said transcript notwithstanding, nor has he had any manuscript paper of the kind and character on which said pages 157 and 717 are written in his said office at any time, for the purpose of preparation of Transcripts. That said affiant, at the time of signing said Transcript, did not know that either of *Page 164 said pages 157 and 717 had been added thereto or were contained therein." This affidavit was sworn to before Fabius Gwin, as Notary Public, on the 15th day of November, 1937. It now appears beyond all controversy, and is admitted by counsel for the appellee, who prepared the affidavit and caused it to be signed, that, although it appears to be the affidavit of James G. Canary, it was signed with his name by Marguerite Canary, the deputy clerk; that James G. Canary had no knowledge of the making of the affidavit, and that at the time it was made Marguerite Canary had no knowledge of the fact that James G. Canary was cognizant of, and had approved, the substitution of the new pages 157 and 717 in lieu of the original pages 157 and 158 in the transcript. There is also an affidavit of the Honorable Fabius Gwin, who presided at the trial, in which he states that, after the transcript prepared for the appeal had "been signed by this affiant and the Court Reporter at the trial of said cause," it was delivered to Julian C. Ryer; that when the transcript was returned it was found that six pages of typewritten matter, purporting to be a portion of the bill of exceptions or the court reporter's record of the proceedings at the trial, "had been wrongfully, erroneously and apparently by design, added to said Transcript," and that he as judge removed those pages from the transcript. There is also an affidavit of the Honorable Frank E. Gilkison, the regular Judge of the Martin Circuit Court, concerning the date on page 98 of the transcript, to the effect that the transaction involved occurred upon the twenty-eighth of August, 1936, and not the twenty-ninth. On the filing of this petition for certiorari, the appellants were granted time to file a response thereto, which was filed on November 26, 1937. This response is *Page 165 signed by Julian C. Ryer, of Chicago, Illinois, a member of the Illinois bar, and William D. Hardy, as attorneys for appellants, and is accompanied by an affidavit of William D. Hardy. It appears from this affidavit that William D. Hardy was not retained as an attorney for the appellants until after the trial and judgment in the court below, and that he is not familiar with the proceedings prior to that time, but that he was retained for the purposes of the appeal and to make up the record for appeal; that when the transcript was delivered to appellants' counsel it was unassembled and unbound, and the pages were in part unnumbered; that it was delivered to Julian C. Ryer, and by him delivered to Mr. Hardy at the City of Evansville for indexing, marginal noting, assembling, and binding; that he delivered it to a former reporter of the Vanderburgh Circuit Court to be indexed and marginal noted, and that after this reporter had done some work upon it she abandoned her effort because of the confused condition of the transcript; that thereafter the affiant, with his stenographer, completed the index, assembled the transcript and had it bound; that he discovered that the Clerk of the Martin Circuit Court had inserted the praecipe between the entry showing the filing of the bill of exceptions and the bill of exceptions itself; that for the sole purpose of separating these parts of the record, so that the entry showing the filing of the bill of exceptions might immediately precede the bill of exceptions, and the praecipe would come at the end of the transcript preceding the certificate of the clerk, he rewrote pages 157 and 158, and numbered the pages so rewritten 157 and 717; and that, without removing the original pages 157 and 158 from the transcript, which was still unbound, he drove to the City of Shoals, in Martin County, and there exhibited the pages which *Page 166 he had written to James G. Canary, the clerk of the court, at his home, and that the clerk proofread the rewritten pages, and that then and there, in the presence of the clerk, the original pages 157 and 158 were removed and the pages 157 and 717, prepared by the affiant, were inserted in the unbound transcript "with the knowledge, consent and approval of said Clerk." Attached to the response are two pages, which William D. Hardy, in his affidavit, asserts to be the original pages 157 and 158 which he found in the transcript prepared by the clerk. These pages have marginal notes in pen and ink that seem the same as the marginal notes in the other part of the transcript, and they are on transcript paper identical with that used by the clerk in the remainder of the transcript. The top part of page 157 shows the filing of a bill of exceptions, and the bottom part of that page and page 158 show the filing of the praecipe, and the praecipe for the entire record. It is obvious that if the record of the filing of the bill of exceptions was to precede the bill of exceptions, and the praecipe was to be inserted at the end of the record, the pages would have to be rewritten. It is asserted in Mr. Hardy's affidavit "that counsel for appellee knew these facts at the time their verified petition for writ of certiorari was filed herein; that this affiant told Paul F. Mason, of counsel for appellee, the facts above stated and that the original pages included in the transcript were in possession of said affiant before said petition (for certiorari) was filed by appellee." Concerning the erasure and change of date, we quote the following from the affidavit: "Affiant further says that he has no knowledge of the error, mistake, or alteration appearing from the insertion of the word `twenty-ninth' in lieu of `twenty-eighth' in line 13 on page 98 of the transcript; that he does not know *Page 167 who wrote the word `twenty-ninth' and that it is an apparent error in correcting, or attempting to correct the manuscript in typing. Pages 97 to 101 inclusive, reveal clearly that this is purely an error, as the context and other dates set forth reveal no other alterations and the change of no other date." Certiorari was ordered, and in response certain facts respecting the specifications in the petition for certiorari were certified in the name of James G. Canary, Clerk. The clerk's certificate to this response is signed with what appears to be the identical signature attached to the certificate to the original transcript and to the affidavit sworn to before Fabius Gwin, Notary Public. It is certified that: "The word, `twenty-ninth' on page 98 at line 13 of said transcript has wrongfully, erroneously and apparently by design been changed and altered after I, as Clerk of this court had heretofore certified to said Transcript. The correct and true wording thereof is `twenty-eighth.'" The response also contains this statement: "I further certify that page 157, in its entirety, and purporting to be an order book entry, showing the filing of Defendant's Bill of Exceptions, should be stricken from the record and Transcript herein, for the reason that it has been wrongfully, erroneously and apparently by design, added to this transcript, although it does not appear of record in the Martin Circuit Court of Indiana, either in the Reporter's minutes concerning the trial of this cause, or the civil order book entries. "I further certify that I do not have, nor have I ever had, in this office of the Clerk of the Martin Circuit Court, transcript paper such as is used on said page. I further certify that I, as Clerk, did not prepare said page, and the records disclose no such proceedings were had in this court on March 25, 1937. *Page 168 "I further certify that page 717 of this Transcript, in its entirety, and purporting to be a Praecipe of the defendants, directing the preparation of the Transcript by the Clerk of the Martin Circuit Court of Indiana, should be stricken from the record and transcript herein, for the reason that it has been wrongfully erroneously and apparently by design, added to this Transcript, although it does not appear of record in the Martin Circuit Court of Indiana, either in the Reporter's minutes concerning the trial of this cause, the court's minutes, or civil order book entries." Upon this record, and a statement by William D. Hardy in oral argument that he assumed full responsibility for the changes in the record, the Appellate Court reached the conclusion announced in its various opinions and orders above referred to. Upon the face of the affidavits then before the Appellate Court, it appears that James G. Canary made the affidavit, filed with the petition for certiorari, to the effect that he prepared and certified to the original transcript, and that pages 157 and 717 had been added to the transcript without his knowledge or consent, and that they had no proper place in the transcript. The affidavit of William D. Hardy, filed with the objections to the petition for certiorari, stated that he had prepared pages 157 and 717, and had substituted them for the original pages 157 and 158 which he found in the transcript, and that the substitution of the pages was in the presence of, and with the consent and approval of, James G. Canary, Clerk. After this affidavit was filed, and upon response to the writ of certiorari, it was again certified in the name of James G. Canary that the pages were improperly in the transcript, and were not there with his knowledge or consent. Thus, upon the surface, there appears to be a direct conflict *Page 169 between the sworn statements of James G. Canary, Clerk, and William D. Hardy. In William D. Hardy's affidavit he disclaims any knowledge of the change in dates from the "twenty-eighth" to the "twenty-ninth," and shows that no question involving the date was presented on the appeal, and hazards the suggestion that it is a stenographic mistake. In his affidavit he points out that six pages were added to the bill of exceptions by his associate, Julian C. Ryer, and that when he discovered the fact he went to the trial judge, and that, with his consent, the trial judge removed the pages. What was said in the argument we do not know, but the statement that William D. Hardy accepted full responsibility for whatever mutilation appears in the record, would seem to indicate either a change of position on the part of Mr. Hardy with respect to the facts, or a misunderstanding on the part of the court as to the matter for which Mr. Hardy was accepting responsibility. Responsibility for having prepared the substituted pages 157 and 717, and having caused them to be inserted in the transcript, with the consent of James G. Canary, Clerk, he had already accepted in his affidavit, and it is difficult to believe that in oral argument he wished to be understood as admitting that the pages were inserted in the transcript under any other circumstances; and it is difficult to conclude, in the face of the record, that he wished to be understood as accepting responsibility for erasure of the word "twenty-eighth" and the substitution of the word "twenty-ninth," or that he wished to be understood as accepting responsibility for the insertion of the pages in the bill of exceptions which had been removed at his suggestion by the trial judge. Aside, however, from the statement of his having accepted full responsibility, we have what must have appeared to be a direct conflict between the *Page 170 affidavits of James G. Canary and William D. Hardy upon the question of whether or not the substitution of the pages was made with the consent and knowledge of James G. Canary, and the Appellate Court may have concluded that William D. Hardy's affidavit was false in this respect, and that James G. Canary's affidavit was true, and that therefore William D. Hardy had unlawfully and improperly mutilated and changed the record. It is now conceded by all that James G. Canary did not sign the affidavit which bears his name; that both the affidavit and the response to the petition for writ of certiorari were signed with the name "James G. Canary" by Marguerite Canary, his deputy. Paul F. Mason, attorney for the appellee, has stated at the bar of this court that he prepared both the affidavit and the response to the petition for writ of certiorari; that he has no recollection of examining the affidavit of William D. Hardy above referred to before preparing the response; that he has no recollection of William D. Hardy informing him of the change of the two pages; that he did not at any time consult with, or make inquiry of, James G. Canary personally concerning the change, and that he did not advise Marguerite Canary of the facts disclosed in the affidavit of William D. Hardy. Marguerite Canary has since examined the original pages exhibited by William D. Hardy, and has made affidavit that they were prepared by her as part of the original transcript, and that they clearly appear to have been part of it. James G. Canary has since died. He was a farmer, unfamiliar with the ways of courts, and took no part in the management of the clerk's office in so far as it affected the court and its records. His widow has made affidavit that she clearly remembers the occasion of William D. Hardy's visit to their home *Page 171 and of his explaining to her husband the purpose of rewriting the pages in question in the transcript; that she assisted in comparing the pages, and that they were inserted in the transcript with the consent and approval of her husband. There is nothing in the record to dispute these facts. Counsel for appellee at the bar have said that they can suggest no evidence to the contrary, or no reason for disbelieving them, and there are other facts since come to light which clearly corroborate the Hardy affidavit. The present Clerk of the Martin Circuit Court has searched the letter files, and has discovered in the files the following original letter: "William D. Hardy "Attorney at Law "Mercantile Bank Building "Evansville, Indiana "March 24, 1937. "Clerk Martin Circuit Court, "Shoals, Indiana. "Dear Sir: Re: No. 11,470 — Santa Claus of Santa Claus, Inc. vs. Santa Claus, Inc., et al. "I enclose herewith copy of the original motion for a new trial. "I have been advised that you cannot find the original motion, and this is the copy you made and sent to me at my request in December last. "This may be copied into the transcript. "I enclose also an entry showing the filing of the bill of exceptions. Please copy this entry into the record as the transcript must show the bill was filed after it was approved by the Judge. *Page 172 "I am sending you also, by express, the bill of exceptions which was left with me at Indianapolis during the session of the Legislature. I have carried this through Shoals a time or two, but after your office hours, and therefore I did not leave it. "I am enclosing also a praecipe for transcript. "Very truly yours, "WDH:KS "W.D. Hardy "Enc. "W.D. HARDY "P.S. In preparing this transcript be sure to include the minute of the filing of the supplemental motion as this appears on the entry docket, showing the date of the filing of this motion and the Clerk's initials as this appears in the record made. "W.D.H." Marguerite Canary has examined this original letter and indorsed upon it the following: "I definitely remember receiving this letter from Senator Hardy on or about March 26, 1937 at the Clerks Office in Shoals. "Marguerite Canary. "Dated this 25th day of April, 1940." She now makes affidavit that, notwithstanding she had certified in the response to the petition for writ of certiorari that there was no praecipe in the files, she now distinctly remembers the enclosure of the entry showing the filing of the bill of exceptions and the praecipe. The present clerk has also discovered in the files what appears to be the original praecipe. In the light of these facts, disclosed and exhibited to all of the attorneys of record in the case, at the bar of this court, the attorneys for the appellee have stated *Page 173 in open court that they are unable to point to any evidence indicating, or tending to indicate, any mutilation or unlawful change in the transcript in respect to pages 157 and 717. It may be noted that Mr. Mason informed the court that the language of the affidavit and the response to the petition for writ of certiorari was his language, and that he had prepared the instruments for signature by Marguerite Canary, and that the language was not her language. The transcript was submitted by the court to Edwin C. Schroeder, Examiner of Questioned Documents of the Indiana State Police Criminological Laboratory. He has made affidavit that he made a laboratory examination of page 98 of the transcript; that his examination discloses that the questioned word was originally written "twenty-ninth"; that the only erasure discernible under the microscope was in the space occupied by the letters "wen" in the word "twenty"; that after this erasure the word "twenty-ninth" was retyped in its entirety; that under the word "ninth" none of the fibres of the paper had been disturbed by erasure; that the letters are in perfect alignment, and that the erasure and retyping were undoubtedly done without removing the paper from the typewriter; that the typist who wrote the page evidently made a mistake in writing the word "twenty," and, after the erasure, retyped the entire hyphenated word. It is noted that in the second line above this questioned word, and almost immediately above it, there properly appears the word "twenty-ninth." Marguerite Canary had never prepared a transcript for an appeal before, and had but slight familiarity with pleadings and records. The context might be confusing to an inexperienced person, since the dates "twenty-eight" and "twenty-ninth" appear repeatedly upon page 98 and the preceding and succeeding *Page 174 pages. A re-examination of the page, in the light of the information furnished by Mr. Schroeder, leaves no reasonable doubt that the word was originally written "ninth," and that it was not changed from "eighth" to "ninth" by any one. This conclusion becomes unavoidable when it is found that there could have been no possible motive for changing the word. The affidavit of Judge Gilkison, in which it is contained, was first brought into the case in response to a petition for a writ of prohibition filed in this court. Its purpose was to show that the attorneys for the defendants had been notified that they must strike from the list of names handed down, from which a special judge was to be chosen, on the morning of the twenty-ninth. The attorneys who prepared this response were evidently under the impression that the defendants' attorneys were disputing the fact, but, on the contrary, they asserted in their petition for a writ of prohibition that they had been ordered to strike on the morning of the twenty-ninth, and contended that this was unlawful, and that under the law they had until midnight on the twenty-ninth to strike. The same contention is sought to be made in the argument on pages 272 and 273 of appellants' brief. The conversation which was fixed in the affidavit as occurring on the night of the twenty-eighth was of no importance whatever. It made no difference whether it occurred on the twenty-eighth, or the twenty-ninth, or the thirtieth, or at all, and no effort was made to make any point or contention respecting this date. It is further noted that a reading of the context beginning on page 97, and including page 101, of the record, clearly discloses the error, and that the date of the conversation was the evening of the twenty-eighth, and, to avoid this disclosure by the record, it would seem that it would have been necessary *Page 175 to alter several other words, and there is no indication of any attempt to do so. It seems therefore, upon this careful examination, that the Appellate Court was laboring under a misapprehension in concluding that this date was of importance; that it had been changed from the "twenty-eighth" to the "twenty-ninth"; and in concluding that this part of the record was changed or mutilated by the appellants or by William D. Hardy, if it so concluded. Respecting the six pages that had been inserted in the bill of exceptions, it has been represented to this court, both by affidavit, and under oath at the bar of this court by Julian C. Ryer, a member of the bar of Illinois, that he inserted this matter in the bill of exceptions, believing that he had a right so to do. It was stated by William D. Hardy in his affidavit attached to the objections to the issuing of the writ of certiorari by the Appellate Court, and filed in that court on November 26, 1937, that when the transcript came into his hands he found these typewritten pages, which appeared not to have been prepared by the court reporter, inserted in the bill of exceptions, and a notation by Fabius Gwin, Special Judge, that they had not been a part of the bill of exceptions when it was certified by him; that he immediately took the bill of exceptions to the special judge and asked him to remove them, and that they were thus removed by Fabius Gwin. This was not disputed before the Appellate Court, and it is corroborated now by the affidavit of Fabius Gwin, and there is no evidence to the contrary, and counsel for the appellee have stated at the bar of this court that they know of no evidence to the contrary. It may be noted further that the insertion of these pages and their removal all occurred before the transcript was filed in the Appellate Court. *Page 176 Reference is made in the Appellate Court's opinion to an original action in this same case filed in this court before the trial of the case below. It is said that this court was falsely informed concerning the facts. It was asserted in the petition in that case that the name of Fabius Gwin was not in the original list of names handed down by the trial judge. The response disclosed that Mr. Gwin's name was not announced by the court in the first instance, but that almost immediately after announcing the first three names the court withdrew one of them and substituted the name of Mr. Gwin. There was another slight conflict in the representations made by the parties as to what was said orally at another time during the proceedings. Immediately upon the filing of the affidavit of the trial judge giving his version of these conversations, the petitioners withdrew their contentions. These conflicting statements as to what was said in oral conversations were attributed by this court to misunderstanding, the kind of misunderstanding that so frequently results in disagreement as to what was said orally. It was said by counsel for the appellee at the bar of this court that the statements then made by appellants' attorneys aroused their suspicion that these attorneys were seeking to misrepresent the facts and were stooping to dishonorable practice. While it may be conceded that the representations may have aroused suspicion, the facts were not sufficient to justify the conclusion that they were dishonestly made. It is to be noted that William D. Hardy was not appearing in the case at that time. After a full consideration and examination of the various evidences herein referred to, counsel for the appellee, who procured the dismissal in the Appellate Court, were asked if they had any evidence, or could *Page 177 point to anything in the record or the evidence before this court, which indicated or tended to indicate any mutilation or spoliation of the record as it appeared in the Appellate Court at the time the case was dismissed, or any substantial inaccuracy in the record. Court was recessed and they were given time to compare and further consider and examine the record, and they were offered further time, which they declined, and they each and all stated to the court that they were unable to point to or suggest any such evidence. They were asked if they could suggest or point to any evidence, or if they knew of any evidence, that indicated or tended to indicate any unlawfulness or unethical conduct or impropriety on the part of William D. Hardy in respect to the record, and each and all expressly said that they found no such evidence or indication thereof. The members of this court have carefully scrutinized and examined the record and the affidavits and other evidence adduced, and have invited counsel to fully advise the court and bring forth any evidence which they may have. We have failed to find any evidence which establishes, or tends to establish, any impropriety of any kind on the part of William D. Hardy, or any evidence that the record, as it stood in the Appellate Court at the time the cause was dismissed, was forged or mutilated or that it misstated or misrepresented the facts as disclosed by the records of the court below in any substantial respect, or in any respect except that in making the transcript the clerk inadvertently and erroneously wrote the word "twenty-ninth" where it should have been "twenty-eighth" on page 98. In his response Mr. Hardy says: "Your respondent further respectfully submits that he is of the opinion, *Page 178 which opinion is shared by his counsel, that the 1, 2. citation herein brings into the issue of this cause his reputation for ethical and good moral conduct, and that, purely for the purpose of supplying evidence upon that issue, he has attached to and made a part of this, his said response, a resolution of the Evansville Bar Association, unanimously adopted on Monday, April 15, 1940, at a regular meeting of said association, purely as an attestation to the reputation of this respondent for good character and ethical conduct, together with other affidavits solely upon that issue, which affidavits this respondent respectfully submits he has attached hereto solely upon that issue, and for no other purpose." The attached resolution is in part to the effect: "That W.D. Hardy has practised law before the courts of this county for thirty-five years, during by far the greater portion of which time he has been and is now a member of this Association; that we, the members of this Association, have known him for varying periods of time during that practise and during his membership in this Association and that we have found him to be uniformly ethical, honorable and gentlemanly in his dealings with the court and his brother lawyers." When one is charged with crime he may show his good reputation as tending to establish innocence. We quite agree with respondent and his counsel that his standing among his fellows was properly brought into the issues when he is charged not only with dishonorable and unethical conduct, but with a felony, and threatened with the destruction of that priceless asset to a professional man, his good reputation. There is no evidence of his guilt. On the contrary, the evidence discloses his complete innocence of wrongdoing beyond the peradventure of doubt, and the testimony of his fellows as to his good reputation was *Page 179 not necessary to establish his innocence, but it tends to accentuate the grave injustice that has been done him through a misapprehension of the facts. Legally, the fact that he has been cited does not mitigate against his high standing and good reputation. It is to be hoped that it will in fact work him no injury. The rule to show cause is discharged. NOTE. — Reported in 26 N.E.2d 921.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426557/

Affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426405/

The only substantial question presented for our consideration in this appeal is the sufficiency of the evidence to sustain the decision of the trial court. We have examined the evidence as set out in the briefs and we hold that it is sufficient to sustain the decision. There can be nothing gained by setting out the evidence. Judgment affirmed. *Page 702

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426392/

Action by appellee to recover damages for assault and battery and false imprisonment. The complaint is in two paragraphs, the first being an ordinary complaint alleging assault and battery by one of appellant's servants while appellee was a passenger on appellant's train. The second after alleging that appellant without a warrant or legal authority unlawfully and maliciously arrested and placed appellee in jail for several hours, and that in making such arrest did forcibly and against his will eject him from the train to his damages. Appellant filed an answer in two paragraphs, the first being a general denial. The second admitted appellee was a passenger but alleged that after he was received as a passenger he forfeited his right to be carried as a passenger by gambling in the car in which he was riding in violation of law and of the rules of appellant forbidding gambling on the train, and because of such gambling appellee was in a reasonable and proper manner arrested and removed from the train. A trial resulted in a verdict and judgment in favor of appellee for $1,000. Appellant's motion for a new trial, the specifications of which were that the verdict is not sustained by sufficient evidence, is contrary to law, excessive damages, the giving and refusing to give certain instructions, and error in the admission of evidence, being overruled, this appeal. The evidence, without conflict, shows that George Nachand of Jeffersonville, organized a party consisting of himself and five others, including appellee, to go to Toledo, Ohio, from New Albany, Indiana, and drive from Toledo automobiles which Nachand was purchasing. *Page 195 Nachand was to pay each of the five including appellee five dollars a day and their expenses which he did. Before the train on which said party took passage reached New Albany, Nachand bought six tickets to Toledo, one for himself, and one for each of the other five. After they got on the train Nachand temporarily surrendered all the tickets to the conductor, said tickets to be returned at Cincinnati for further transportation. After getting on the train Nachand purchased six Pullman tickets to Toledo retaining all the tickets himself. Later they obtained a table and proceeded to play cards. Shortly before the train reached Aurora three of appellant's special officers entered the car in which Nachand and his five employees were riding. Appellee and one of the other men named Mayfield were not at that time playing cards, but were seated across the aisle from the other four men who were then playing cards. The special officers claiming the four men were gambling arrested them, and when the train stopped at Aurora the six men including appellee and Mayfield left the car. This was about eight or nine o'clock at night. They went to the police station and soon thereafter affidavits were filed before a justice of peace against the four men who were playing cards at the time of the arrest, charging them with gambling. They were tried and convicted. The six men went from Aurora that night on the interurban car to Cincinnati and from there to Toledo the next morning. Whether any of the men were gambling and whether appellee and Mayfield were arrested or voluntarily left the train and went with the other four men are disputed questions. Appellee testified that when the four men were arrested, he also was searched and compelled by the officers to leave the train and go with them in company with the other men. That he was detained and kept in the police station until after the trial of the *Page 196 other four men when he and Mayfield were permitted to leave, no charges in the meantime having been filed against him. His testimony was corroborated by the testimony of other witnesses. This testimony was contradicted by the officers who arrested the four men. They testified that appellee was not arrested, assaulted, or compelled to leave the train. That his leaving the train and going to the police station with the other men were voluntary on his part. In that part of appellant's brief devoted to points and authorities, and under the statement that, "The Clark Circuit Court erred in overruling appellant's motion for a new 1. trial" appellant devotes six pages to an argument in justification of the arrest of the four men who were found guilty of gambling, and, in this connection, asserts that appellee was not in any way disturbed or arrested. That he went along with Nachand because the latter had all the railroad tickets and was paying the expenses of all the men. Appellant may be correct in its contention that there has been a miscarriage of justice in this cause and that it has had an unjust verdict rendered against it, but the testimony of appellee and his witnesses, if believed, is amply sufficient to sustain a verdict in his favor. Appellant next contends that the court erred in refusing to permit it to prove by a number of witnesses that, prior to the night when appellee and his comrades were on the train, the 2. conductor on this particular train had informed his superior officers that he was unable to handle the situation as to gambling on his train and that the conductor had been ordered to apply to the chief of detectives for assistance, and that the court also erred in refusing to allow certain witnesses to testify to circumstances that took place prior to the night in question. There is no claim that appellee or any of the men who were with him *Page 197 were on the train prior to the night when the present controversy arose or were in any way responsible for any gambling or disturbance on appellant's trains prior to that night. The purpose of the offered testimony was to justify the presence of the special police officers on the train. There was no error in excluding the offered testimony. Complaint is next made of the action of the court in refusing to give certain instructions, the first of which directed the jury to return a verdict for appellant. What we said concerning the sufficiency of the evidence to sustain a verdict for appellee disposes of this contention. There was no error in this refusal. We have examined each of the instructions tendered and refused, and find no reversible error in the refusal to give any of them. The next contention of appellant is that the damages assessed are excessive. This contention in our judgment should be sustained. We are unable to understand upon what 3, 4. reasonable basis a judgment for $1,000 can be sustained under the facts in this case. While there is no mathematical rule by which damages can be calculated in cases of this character, we know there must be some reasonable basis for their admeasurement. When it appears to the mind of an appellate court, upon an examination of the evidence, that the damages assessed are so excessive and unjust that the jury in assessing them must have been influenced by prejudice, passion or partiality, or has proceeded upon a wrong principle, a new trial will be ordered. Pittsburgh, etc., R. Co. v. Coll (1906),37 Ind. App. 232, 76 N.E. 816. As was said in Dayton, etc.,Traction Co. v. Marshall (1905), 36 Ind. App. 491, 75 N.E. 824: "When it is apparent that the jury have acted on a motive of this character, as testified to by their verdict, it is one of the highest duties of the court *Page 198 to interfere by setting the verdict aside and submitting the cause to a second jury. It is the unbiased, unprejudiced and impartial judgment of juries which should prevail, and, as we have heretofore said, great latitude should be allowed them in their estimate of damages, but to this there must be a limit, and this limit is overstepped when, from the facts of the case, it is apparent at first blush that the damages allowed are outrageously excessive." In our judgment the damages assessed are so outrageously excessive that it would be a travesty on justice to allow the verdict to stand. Judgment reversed, with directions to sustain the motion for a new trial.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426399/

Two of the appellees brought this action to contest the will of Samuel Barger, deceased, alleging that the instrument was forged. There was a verdict and judgment for the plaintiffs. Error is assigned on the overruling of the motion for a new trial. The appellant offered to prove that in a conversation, after the date of the execution of the will in question, the decedent stated that he had made a will. The exclusion of this evidence is assigned as error. The appellant cites 6 Wigmore on Evidence (3rd Ed.), Vol. 6, § 1736, p. 107, and McDonald et al. v. McDonald et al. (1895),142 Ind. 55, 81, 41 N.E. 336, to support his contention that the evidence was competent. Professor Wigmore, in § 1734 et seq., analyzes at length the considerations involved in the admission or rejection of post-testamentary declarations of the deceased testator 1, 2. on the subject of execution, contents, or revocation of the purported will. If they are admitted, under proper limitation, as indicating the state of mind of the testator at the time he made the will, upon an issue of insanity or undue influence, they stand not as hearsay, but as direct evidence of the fact of undue influence or insanity. When they are offered as evidence of the primary fact of execution, contents, or revocation, they are hearsay and are generally excluded. It is pointed out that a few courts, increasing perhaps in number, admit such statements, in some cases, to prove execution, contents, or revocation, as a special exception to the hearsay-rule, but it seems the exception is made to depend not upon an abstract rule, but upon the circumstance of trustworthiness appearing in each case. In the early case ofHayes *Page 534 et al. v. West et al. (1871), 37 Ind. 21, it was held that such statements of the testator were admissible to prove insanity, but not to prove undue influence, although it is conceded that some of the American cases incline to the view that they are admissible to prove the fact of fraud or undue influence. It seems clear that the court considered that such statements were not admissible for the purpose of proving or disproving execution. A close examination of the McDonald case discloses that it does not support the appellant's contention, but, on the contrary, strictly limits the admission and consideration of such testimony. The evidence there admitted was held competent to show the contents of an alleged lost or destroyed will, the execution of which was admitted, and to show that it was unrevoked at the time of the death of the testator. The court said that it is settled in this state that declarations of the decedent, made at a time other than that at which the will was executed, are not admissible in an action to contest upon the issue of fraud or undue influence. An instruction, which told the jury that (page 85 of 142 Ind., page 346 of 41 N.E.): "`A testator's own declarations to prove that a will, apparently regular, was forged . . . are hearsay and inadmissible,'" was refused. The opinion concedes that the instruction correctly states the law, but the court concluded that there was no error in refusing it, since the jury was instructed (page 85 of 142 Ind., p. 346 of 41 N.E.): "`. . . if you find that such declarations were made, you will only consider them for the purpose of determining the character and contents of such alleged lost or destroyed will, and whether, if it ever existed, it remained unrevoked at the time of the death of the testator, no inference in support of the other issues and charges in this case *Page 535 can be drawn by you from these alleged declarations,'"1 and that this sufficiently advised the jury and limited it to a proper consideration of the evidence. The genuineness of the signature of the testator was in issue. No question of revocation or of the contents of a lost will is presented here, and no good purpose would be served in further examining our decisions in that respect. It is clear, 3. however, that in all of our decisions it has been concluded that such declarations were not admissible to prove the execution of the instrument, and that is the purpose for which they were offered here. See Hayes et al. v. West et al.,supra; Morell v. Morell (1901), 157 Ind. 179, 60 N.E. 1092; and Emry et al. v. Beaver et al. (1922), 192 Ind. 471, 137 N.E. 55. The reasons advanced for excluding the post-testamentary declarations in Throckmorton v. Holt (1901), 180 U.S. 552, 21 S.Ct. 474, 45 L.Ed. 663, are most persuasive. It is suggested that the exception to the hearsay-rule grew out of the exigencies of the particular cases, and that a sound rule must operate uniformly. We feel that in this jurisdiction the rule excluding the evidence for the purpose for which it was here sought to be used is well settled, and we find no impelling reasons to consider any further extension of the exception to the hearsay-rule. The appellant tendered an instruction which would have told the jury in effect that, since forgery is a crime, the law presumes that there was no forgery, and that plaintiffs had the 4. burden of overcoming this presumption. The appellant relies on Continental Insurance Co. v. Jachnichen (1887),110 Ind. 59, 63, 10 N.E. 636, 638. That case *Page 536 involved an action on a policy of insurance. It was contended that the insured himself burned the property. An instruction was tendered to the effect that, since arson is a crime, the truth of the allegation that the insured had burned his own barn must be established beyond a reasonable doubt. It was held that this was not a correct statement of the law, and that it was sufficient to establish the fact by a preponderance of the evidence. The court, in the opinion, discussed the growth and the reason for the rule of reasonable doubt in criminal cases, and pointed out that in some exceptional cases this doctrine has been applied in civil cases where a crime is charged. The court concluded, however, that (pages 64, 65 of 110 Ind., page 639 of 10 N.E.): "It may, therefore, be considered as established, that in civil actions of this class, the rights of the parties are to be determined by a preponderance of the evidence. Being a civil action, it is subject to all the rules which belong to actions of that class, without regard to the fact, that the matter in issue may involve the imputation of a crime." To the effect that the law presumes nothing as to the facts in issue in civil actions, see Kaiser etal. v. Happel et al. (1941), 219 Ind. 28, 36 N.E.2d 784, and cases cited. A tendered instruction referred to a judge who had testified as a witness, and said that his position as a judge does not authorize the attaching of additional weight to his 5, 6. testimony, and that the jury should give his testimony such weight as they thought it justly deserved. Another instruction was tendered which singled out two witnesses who testified as experts on handwriting. It told the jury that the opinion of these experts is not binding on the jury and referred to the fact that they were being paid as experts. In a general instruction, the jury was fully and correctly *Page 537 advised concerning the credibility of witnesses, and that they might consider any interest, bias, or prejudice of the witnesses. The impropriety of singling out particular witnesses and commenting concerning them has repeatedly been pointed out. Such instructions have a tendency to give the jury the impression that the judge is attempting to express approval or disapproval of the witnesses. Generally it is not error to refuse such specific instructions where general instructions as to the credibility of witnesses are given. The appellant was not prejudiced by the refusal of these instructions. The appellant requested an instruction to the effect that the fact that the will was probated established prima facie the genuiness of the signature of the testator. It was 7, 8. properly refused. It is true that before a will is probated in an ex parte proceeding, prima facie evidence of its genuineness is required, but the determination of the probating officer or court upon such evidence is not binding in a subsequent adversary proceeding. The plaintiffs asserted that the signature on the will was a forgery, and had the burden of establishing that fact by competent evidence. The jury was required to decide the question upon the evidence submitted in the trial, and it would be highly improper to permit them to consider the conclusions of another trior of fact in an exparte proceeding, based perhaps upon other or different evidence. As part of his charge to the jury, the trial court read the complaint over the objection of the defendants. It has been said that such a practice is not commendable, but we know of no 9. case in which it has been held to be prejudicial to the defendant. Complaint is made of misconduct of counsel in argument. There was no direct evidence as to who prepared *Page 538 the typewritten will. A lawyer testified that he had 10. prepared certain other instruments on his typewriter. An expert testified that the will was prepared on the same typewriter. The lawyer was not asked whether he had prepared the will. In the closing argument counsel for plaintiffs argued that they knew who prepared the will, and that it was plain from the evidence. The appellant's counsel objected that it was improper argument, and that it was a matter which had not been touched in the opening argument. Defendant's attorneys were given time to answer this contention. We see no impropriety in the argument, and it seems not to have been a new question, since it appears that the defendant's counsel touched upon the subject and argued that the decedent and his immediate family could not have prepared the will. It does not appear that the appellant's rights were in any way prejudiced by the argument. We find no error. Judgment affirmed. NOTE. — Reported in 48 N.E.2d 813. 1 The text quoted seems confused. See 41 N.E. 346 for a differently punctuated text.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426403/

The appellant, Rachel Glendening, commenced this action in the trial court to enjoin the sheriff of Adams County and the appellee, The Federal Land Bank of Louisville, at whose instance it was issued, from executing a writ of seizure issued from that court in an ejectment suit commenced by the appellee, The Federal Land Bank of Louisville, against Robert W. Glendening alone. The appellant was in possession of said real estate. She had owned an undivided one-third of it and a life estate in an additional eight-fifteenths of it, and had conveyed all of her interest to the said Robert W. Glendening, who was her son. The deed to him contained the following provision: "The grantor reserves the right to live in and occupy the dwelling house on said premises as long as she sees fit, and as a part of the consideration herein, the grantee agree to furnish the grantor herein a home on said premises so long as she may desire." Later, the said Robert W. Glendening acquired the remainder interest in said real estate and mortgaged it to the appellee The Federal Land Bank of Louisville. The appellant did not join in that mortgage, and she was not made a party to the foreclosure proceedings on *Page 164 said mortgage. The claim of The Federal Land Bank of Louisville to the right of possession is based on a sheriff's deed resulting from the foreclosure of said mortgage and the purchase by it of said real estate at the sheriff's sale thereunder. The appellant bases her right to retain possession of said real estate upon the reservation and covenant in the deed which we have above set out and which of course is shown in the chain of title of the appellee. The complaint was in one paragraph seeking injunctive relief against eviction. To this complaint The Federal Land Bank of Louisville filed an answer in two paragraphs, the first in effect being a general denial, and the second questioned the appellant's right to injunctive relief. The appellant filed a reply in general denial to the said second paragraph of answer. The case was tried by the court without the intervention of a jury resulting in a finding for the appellee Land Bank and against the appellant. The finding in effect was that the temporary restraining order theretofore issued in this cause was wrongful, and that the appellant was not entitled to a temporary injunction or a permanent injunction and that the said Land Bank was entitled to the possession of the said real estate "save and except the right of Rachel Glendening to live in and occupy the dwelling house now situate on said premises during her lifetime." The further finding was that the appellant take nothing as against said sheriff, and that the costs of said proceedings should be taxed against the appellant. In due time, the appellant filed her motion for new trial alleging therein that the decision of the court is not sustained by sufficient evidence and is contrary to law, which motion was by the court overruled with an exception to the appellant. The appellant then filed a *Page 165 motion to modify the judgment, which was likewise overruled with an exception. The errors relied upon for reversal are alleged error in overruling the appellant's motion for new trial and alleged error in overruling the appellant's said motion to modify said judgment. The controlling facts in this case are not in dispute. They are substantially as follows: The appellant's husband died intestate, seized of the real estate in controversy. He left surviving him the appellant as his widow and five children, one of whom was a minor. Immediately after the father's death, all of the adult children with their respective consorts, conveyed to their said mother, the appellant, their respective interests in said real estate so long as she remained the widow of her deceased husband. The appellant has never remarried and is 75 years of age, and has lived upon the premises in question for more than fifty years excepting a period of two years in 1915 and 1916. The appellant conveyed her interest in said real estate on December 28, 1917, to her son, Robert W. Glendening, which deed of conveyance contained the reservation heretofore set out. This deed was accepted by the son, and was duly recorded January 1, 1918. The appellant, with her son, who is unmarried, and an unmarried daughter, has since said time lived upon the said premises in said dwelling house, and has had her maintenance from said premises. After the said foreclosure proceedings and sale thereunder, to wit, on September 28, 1936, The Federal Land Bank of Louisville commenced its action in ejectment in the Adams Circuit Court against Robert W. Glendening, as sole defendant, and filed its affidavit for immediate possession, and caused a writ of seizure to be issued to the sheriff of Adams County. The defendant in said action did not file a bond within *Page 166 five days, and the appellee Land Bank filed its bond as provided by statute. This writ of seizure so issued to the sheriff of Adams County, and about to be served by him, caused the appellant to commence the instant suit. The appellant owned the furniture and equipment in the home and the farming equipment and stock upon the said premises, and was in possession of the farm as her home. Upon those facts, it is the appellant's contention that she was entitled to the injunctive relief which she prayed for in her complaint. The controlling question in the case is the proper construction to be placed upon said reservation in said deed, which we again set forth as follows: "Grantor reserves the right to live in and occupy the dwelling house on said premises as long as she sees fit, AND AS A PART OF THE CONSIDERATION HEREIN THE GRANTEE AGREES TO FURNISH THE GRANTOR HEREIN A HOME ON SAID PREMISES SO LONG AS SHE MAY DESIRE." (Our emphasis.) It is especially the proper construction to be placed upon said capitalized words in said reservation that is the important and controlling factor in this case. The contention of the appellant is that the said reservation entitled the appellant to more than the mere right to live in the dwelling house on said premises. The trial court took the view that the appellant's only right was to live in said dwelling house during her lifetime. We now quote from the finding of the court as follows: ". . . and the Court further finds that the defendant, The Federal Land Bank of Louisville, has been continuously since the 9th day of January, 1934, and now is entitled to possession of all of said real estate, save and except the right of *Page 167 the plaintiff, Rachel Glendening, to live in and occupy the dwelling house now situated on said premises during her lifetime; and that the defendant, The Federal Land Bank of Louisville, is the owner of the unencumbered fee simple title to said real estate subject to said right of the plaintiff, Rachel Glendening;" The court further found that the temporary restraining order that had theretofore been issued in the case was wrongful and should be dissolved, and that the appellant was not entitled to either a temporary or permanent injunction against the defendants in the case. The judgment followed the finding. That part of the judgment which the appellant particularly assails is that the Federal Land Bank of Louisville is entitled to the possession of said real estate "save and except the right of Rachel Glendening to live in and occupy the dwelling house now situated on said premises during her lifetime." Under the motion for new trial the appellant relies upon two causes therein, to wit, that the decision of the court is not sustained by sufficient evidence, and that the decision of the court is contrary to law. These two grounds are sufficient to present the question as to whether or not the trial court properly construed the reservation in said deed, which we have heretofore set forth. We agree with the appellant that the agreement of the son, who was the grantee in said deed executed by the appellant, to furnish his mother, the grantor, a home on the premises 1, 2. so long as she might desire such home, which was specifically designated as a part of the consideration for the conveyance, meant much more than merely to live in the dwelling house. It is true that there was reserved the right to live in the dwelling house, but it is equally true that *Page 168 at least a part of the consideration for the deed was the son's agreement to furnish his mother a home on the premises, which was something much more than the mere right to live in the dwelling house. We also agree with the appellant that the agreement contained in the clause referred to constituted a covenant running with the land, and that it was binding on the grantee therein and upon all subsequent holders of the title including the appellee. See Federal Land Bank of Louisville v.Luckenbill (1938), 213 Ind. 616, 13 N.E.2d 531, and the cases therein cited. See also Henry v. Knight (1921),74 Ind. App. 562, 122 N.E. 675; Gregory v. Arms (1911),48 Ind. App. 562, 96 N.E. 196; Larrance v. Lewis (1912), 51 Ind. App. 1,98 N.E. 892; Oglebay v. Todd (1906), 166 Ind. 250,76 N.E. 238. The provision in said deed which we have heretofore set out not only reserves to the grantor the right to live in and occupy the dwelling house on said premises as long as she sees fit, but as a part consideration the grantee therein agreed to furnish the grantor a home on said premises so long as she may desire. This we think meant something more than a mere place to live. Similar provisions have been before the courts of other states and we cite with approval the following cases: In re Burr's Estate (1913), 144 N.Y.S. 926. In that case the court construed a provision in the will for a home on the homestead to mean something more than simply the right to abide thereon, that is, to have a shelter at the homestead, and further said: "It included the right of maintenance, board, clothing, and if necessary medical attendance." The court said that the intention of the testator should be ascertained, and that the court could inquire into the conditions existing at the time the will was executed. We think that rule is *Page 169 equally applicable in the instant case, and that when it was shown that the grantor had lived upon these particular premises as her home for approximately 50 years and had been supported by said premises, and that she owned the farming utensils and equipment used on the farm, and that she and her said son had both construed the provision in the deed to mean that she was entitled to more than a mere place to live in the house on said premises, that these matters should all be taken into account. When all of these facts and circumstances are considered, we think one must inevitably come to the conclusion that the trial court placed too narrow a construction upon the reservation contained in said deed. The narrow construction placed upon said reservation in said deed by the trial court amounts to an error of law which renders the decision of the court contrary to law. It is also not sustained by sufficient evidence. The motion for new trial should have been sustained. See also Tibbetts v.Tibbetts (1915), 113 Me. 201, 93 A. 178; Denfield, Petitioner (1892), 156 Mass. 265, 30 N.E. 1018; Day v. Towns (1911),76 N.H. 200, 81 A. 405. Since the facts in the case appear not to be converted, we do not deem it necessary to order a new trial of the case. The judgment is reversed, and the trial court is ordered to 3. vacate its judgment and to render a judgment enjoining the appellees and each of them from interfering with the right of the appellant to live in and occupy the dwelling house on said premises, and from interfering with her right to maintenance, board, clothing, and all necessary medical attendance during her lifetime as a lien on said premises superior to the mortgage lien and judgment thereon of the appellee, The Federal Land Bank of Louisville, *Page 170 and for further proceedings not inconsistent with this opinion. Judgment reversed. DeVOSS, J., not participating. NOTE. — Reported in 44 N.E.2d 251.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426404/

This was an action by appellee Luce against appellant and the co-appellees for the foreclosure of a mechanic's lien on certain real estate located in Montpelier, Blackford County, Indiana. Appellees Snyder and Landon also filed cross-complaints to foreclose mechanic's liens against the same property, which was a business block in Montpelier. On the 1st day of July, 1931, appellant entered into a written contract with appellee Longnecker through her agent, appellee Metz, for the exchange of certain real estate owned by the parties and described in the agreement. The contract was as follows: "Winchester Indiana July 1st 1931 "This contract of agreement by and between C.B. Courtney of Winchester Indiana Party of the first part and Maud Longnecker of Saratoga Indiana. Party of the second part. Represented by Frank Metz of Winchester Indiana as her agent. Witnesseth that the said first party is this day trading to said second part his business block located in Montpelier Indiana. Lot Eight Block six in Montpelier Indiana. said first party is taking in exchange a 14 acre tract of land with a house and barn connected with same described as follows S.W. 25-21-14 Also lot one — S.W. 25-21-14 also lot one — s.w. 25-21-14 containing 14 acres more or less, the said second party by her agent Frank Metz is to pay said first part two hundred dollars in *Page 624 money, and one Plymeth Coop modle 29. and the above described property in Saratoga clear of all incumbrances. the said second party is to assume Mortgage of $2000 payable to farmers Merchants Bank of Winchester Indiana each party is to give a good and sufficient abstract title to the above described propertys down to date. each party is to pay taxes for the year of 1930 due and payable in 1931. and each to assume the taxes from there on, the said second party is to have full and compleat possession of Montpelier Block first of August 1931. also second party can do any kind of work on said block from now on, said second party is to have to the first of August 1931 to live in said property in Saratoga Indiana. "Each party to assign the insurance that he carries on the above described propertys. C.B. COURTNEY, MAUD LONGNECKER, Per W. Metz Agt." The cause was tried by the court without the intervention of a jury. Upon proper request the court made a special finding of facts, stated conclusions of law thereon, and entered judgment against the appellant for the appellees Luce, Landon, and Snyder, foreclosing their mechanic's liens, and rendered judgment for the appellees Longnecker and Metz. The appellant seasonably filed his motion for new trial. At the time of the trial appellant objected to the introduction of evidence as to certain conversations between Metz, and also one Hoy, and the various lien-holders, showing the employment of such lien-holders to perform the labor and furnish the materials for the improvements on the building in question, on the ground that all of such conversations were in the absence of the appellant and no agency of Metz or Hoy for appellant had been shown. The rulings on these various objections was held up by the court. The special finding of facts contain thirty-three separate findings. Judgment was entered by the trial court on May 6, 1932. On November 4th, 1932, and just prior to his ruling on the motion *Page 625 for new trial, the court sustained appellant's objections to such testimony and ordered it stricken out in the following language: "COURT. There was evidence introduced in this case of conversations had by witnesses in the absence of the defendant, Courtney, by the witness, Metz, and I believe Hoy, I am not sure about that, and the court held the motion up; these conversations were objected to by counsel for the defendant at the time followed by a motion to strike out; the court admitted this evidence, the conversations in the absence of Courtney, on the theory, as stated by counsel, that it would be shown that they were acting for Mr. Courtney and as his agent and I don't believe that the evidence disclosed that there was an agency established with authority to make statements that Mr. Courtney had made in reference to this work and the material furnished and the court held up the motion to strike out until the close of the trial and the court now sustains the motion made by defendant to strike out these conversations that were given in evidence in his absence. I hardly think now, after hearing all the evidence, that perhaps they were proper. That will include any conversations of any witness who testified to them in his absence and show exceptions by the different plaintiffs to the ruling of the court on sustaining the motion to strike out upon the ground that it did not show that Metz had authority as agent to make the statements in his absence." The court then overruled appellant's motion for new trial. Appellant then prayed an appeal to this court assigning as error that the court erred in each of the conclusions of law, that the court erred in holding up its rulings on appellant's motion to strike out the answers made to the questions referred to above until after it had announced its special finding of facts and conclusions of law, and the court erred in overruling appellant's motion for new trial. The specifications of the motion for new trial pertinent here are that the decision of the court is not sustained by sufficient evidence and is contrary to law and error of the court in ruling on the admission of certain *Page 626 evidence. No cross-errors are assigned by any of the parties appellee. The sole question necessary for us to consider here is as to the sufficiency of the evidence. The court had full authority over his record and could amend or correct the same at 1-3. any time before the rendition of final judgment. A judgment rendered before the motion for new trial is disposed of is not a final judgment within the meaning of the statute regulating appeals. Colchen v. Minde et al. (1889),120 Ind. 88, 22 N.E. 94. It was, therefore, within the province of the court to rule upon the objection and motion to strike out the evidence in question at any time until his ruling upon the motion for new trial and such evidence was stricken out of the record. The foregoing being true, the court should also have granted the appellant's motion for new trial as a reading of the special finding of facts readily discloses that many material 4. findings depend upon the evidence thus deleted. A person in possession of real estate under a contract of purchase cannot defeat or cloud the vendor's title by suffering a mechanic's lien to be filed against such real estate for 5, 6. improvements made thereon by him. In order that a lien may attach to the real estate it is necessary that such materials should be furnished or labor performed by the authority and direction of the owner and something more than mere inactive consent on the part of such owner is necessary in order that such lien may be acquired against him. Holland v. Farrier (1920),75 Ind. App. 368, 130 N.E. 323; Peoples Savings, Loan andBuilding Assn. v. Spears et al. (1888), 115 Ind. 297, 301, 17 N.E. 470; Rush v. Pittman (1904), 34 Ind. App. 159, 162, 72 N.E. 473; Toner v. Whybrew (1911), 50 Ind. App. 387, 98 N.E. 450; Robert Hixon *Page 627 Lumber Co. v. Rowe (1925), 83 Ind. App. 508, 149 N.E. 92. The clause in the contract to the effect "also second party can do any kind of work on said block from now on" is relied upon by appellees to show a delegation of authority to Metz or Hoy. 7. The court in sustaining the motion to strike out on November 4, 1932, expressly stated "I don't believe the evidence disclosed that there was an agency established with authority to make statements that Mr. Courtney had made in reference to this work and the material furnished . . ." Such statement of the court negatives the finding of any agency on the part of the persons who, by the evidence left in the record, employed any of the lien-holders. We must, therefore, hold that the decision of the court is not sustained by sufficient evidence and, therefore, the court erred in overruling appellant's motion for new trial. The judgment of the Jay Circuit Court is reversed with instructions to grant appellant's motion for new trial.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426445/

ON PETITION FOR REHEARING DISSENTING OPINION I respectfully dissent from the action of the court in overruling appellees' petition for rehearing. The plaintiff in the condemnation proceeding was the State of Indiana on the relation of the Department of Public Works of the State of Indiana. The Board of Public Works by resolution had declared that it was necessary for the State of Indiana to acquire the "rights, *Page 539 title and interest" of Minnie P. Orcutt in and to the real estate in question for state forestry purposes and for other uses connected therewith. The complaint contained the following: "The plaintiff further alleges that as stated in said resolution, it is necessary in carrying out the powers and duties of said Board of Public Works to acquire the above described real estate for state forestry purposes; that said above described real estate is adjacent to other real estate now owned by the State of Indiana and used for state forestry purposes and that the above described real estate when acquired will be used by the State of Indiana and the Board of Public Works for state forestry purposes and for other uses connected therewith and provided for by law. . . . "WHEREFORE, the plaintiff prays for an order of condemnation of the rights, title and interest of the above named defendants, in and to the above described lands for the uses and purposes aforesaid. . . . that all steps be taken and that all proceedings be had that may be necessary for this plaintiff to acquire all right, title and interest of said defendants in and to said real estate owned and claimed by the defendant, Minnie P. Orcutt, and for the uses and purposes set forth herein." No objections to the proceedings were filed by the appellees and the court thereupon found for the State of Indiana on the relation of the Board of Public Works and entered judgment in part as follows: "It is therefore ordered, adjudged and decreed that said real estate as above described should be, and is hereby condemned for uses and purposes as described in the complaint, and the Court now appoints . . . to assess the damages, if any, which said defendants herein may sustain by reason of the condemnation as proposed in said complaint. . . ." The cause then came to trial on exceptions to the report of the appraisers, and among the instructions given by the court for the purpose of guiding the jury in the assessment of damages, was one to the effect that *Page 540 the jury should take into consideration that the condemnation of all right, title and interest of Minnie Orcutt in the land in question had cut off access to the remaining land of Minnie Orcutt from the highway. And although the State of Indiana on the relation of the Board of Public Works requested the Monroe Circuit Court to enter judgment which purported to deprive Minnie Orcutt of all right, title and interest in the appropriated land, the plaintiff objected to the foregoing instruction and insisted that a way of necessity to the remaining land of Minnie Orcutt was reserved by law. Upon appeal to this court the contention of the appellant was sustained. The following excerpt from the opinion of the court expresses the court's reason for so holding: "And if public policy requires that, in the absence of an express agreement to the contrary, the reservation of a way of necessity will be implied as against one who takes by private grant, no reason is seen why the same policy should not require the same result where the state enforces its right to take private property." In my opinion both reason and authority forbid the application of the doctrine of an implied easement of right of way of necessity in cases where the severance of ownership is affected by an exercise of the power of eminent domain. There is no public policy that can qualify the public policy upon which rests the exercise of the power of eminent domain by the sovereign. To say that the sovereign, which is the source of all public policy, can be limited by judicial implication of public policy in a special situation is merely using words. There can be no reality in such a statement. The exercise of the power of eminent domain is an act of political sovereignty and can not be limited or controlled by *Page 541 courts. The General Assembly of Indiana alone can place limitations upon the exercise of this power, subject only to the express constitutional limitations that compensation must be made, and to the implied limitation that the taking must be for a public purpose. As a practical matter the General Assembly speaking for the sovereign acts through agents and does place conditions or limitations upon the exercise of this sovereign power of eminent domain. But when the agents act within the authority conferred their acts have the full force of an exercise of the power of eminent domain by direct legislative declaration. In the case of Hallett v. Calvert1 the exercise of the power of eminent domain by a levee committee was in question. In passing upon the question this court used the following language: "The case seems to have been decided below upon the theory that the powers of the levee committee are confined to making necessary repairs to the levee to keep and maintain the same in its original condition, and that the court had jurisdiction and power to hear evidence and determine whether or not in its judgment the condemnation of the land and the use thereof is necessary. (Here the court quoted Sec. 27-816 Burns Annotated Statutes, 1933). "This statute vests the fullest discretion in the levee committee, and, if, in the judgment of the committee, the ground sought to be condemned was necessary not only to repair or maintain the levee, but to protect it, the committee has the power to condemn, and its judgment in the premises cannot be questioned or superseded by the judgment of the court." In harmony with the foregoing are the statements of this court in the case of Root v. State:2 "Even though the power of eminent domain is inherent in the state, an agent of the state can exercise *Page 542 the power only when the legislature has conferred the necessary authority. The occasion, mode, and conditions upon which an agent of the state may exercise the power of eminent domain in behalf of the state are to be prescribed by the legislature. Richland School Township v. Overmeyer (1905), 164 Ind. 382, 73 N.E. 811. The delegation to a state agency of the right to exercise the power of eminent domain carries with it the authority to determine the necessity for its exercise to accomplish an authorized purpose, and the question of such necessity is not for judicial determination. But a judicial question will be presented when it is insisted that the purpose for which the agent seeks to exercise the power of eminent domain is unauthorized. Consequently, while the courts will not review a decision of the highway commission as to the necessity of separating the grades of two intersecting state highways, the courts will examine the statutory grant of authority to determine whether there is included therein the authority to exercise the power of eminent domain for the purpose of acquiring land deemed necessary in the separation of such grades." The authority of the Board of Public Works of the State of Indiana to exercise the power of eminent domain is founded in the original grant of authority to the conservation commission.3 There was no contention by plaintiff below, nor is there any indication in the opinion and decision of this court in this appeal, that the State of Indiana, acting through the Board of Public Works, did not have the power in the instant case to deprive appellee Orcutt of the right of way across the appropriated land. The crux of the controversy is whether the State of Indiana, acting through its lawfully constituted agent, the Board of Public Works, did appropriate all right, title and interest of Minnie Orcutt, including the potential easement of a right of way. The Board of Public Works adopted its resolution in accordance with statutory *Page 543 requirements, and in this resolution declared that it was necessary for the State of Indiana to acquire the rights, title and interest of the Orcutts in the real estate "for state forestry purposes and for other uses connected therewith;" and the jurisdiction of the Monroe Circuit Court was invoked to adjudge that all right, title and interest of the Orcutts therein had been appropriated by the State of Indiana in accordance with law. The court so adjudged. If the declaration of the Board of Public Works, and its complaint and the order of the Monroe Circuit Court are given their obvious factual and legal significance, the State of Indiana did effectively appropriate all right, title and interest of the Orcutts in the land in question; and since an easement of right of way is an interest in land, it must follow that the State of Indiana took the land free of an easement of right of way in favor of the land retained by the owner. It is important to note that a court does not by its judgment appropriate land for the state and transfer "rights, title, and interest" of the owner to the state. The limit of the jurisdiction of the court is to determine whether the agents of the state have exercised the state's power of eminent domain in accordance with their authority. If the General Assembly by direct legislative action had declared an appropriation of the rights, title and interest of the owner of the land in question, reciting in such act of appropriation that it was necessary for the state in carrying out its forestry project to acquire said rights, title and interest of the owners in and to the land, it is inconceivable that any court would assume to limit the legislative declaration of the extent of the taking by holding, as a matter of law, that a limitation was implied in fact. And courts have no power to determine how much, or how little authorized agents of the state can appropriate in the exercise of the state's *Page 544 power of eminent domain. Courts are bound by the declaration of the General Assembly or its agents as to the extent of the appropriation; and cannot imply a limitation upon the exercise of a power which is incapable of being limited except by the General Assembly or by its authorized agents. Since it is exclusively within the power of the State as a condemnor to determine what interests it will take in the land of the condemnee, it is necessary that the condemnor declare the extent of the taking. The condemnee is entirely without legal power to reserve any interest as against the condemnor. If the condemnor desires less than the entire interest of the condemnee the declaration of appropriation will indicate this by appropriate recitals. But such recitals do not represent a limitation upon the condemnor's power to take, nor an admission either of the power or intention of the condemnee to reserve an interest; but merely define the quantum of interest to be appropriated. This was clearly stated in the case of Tyler v.Hudson4 as follows: "No more land and no greater interest in it need be taken than the public use requires. If the right to make a particular use of the land is of benefit to the owner, and puts no new burden upon him, and does not interfere with the public use for which the land is taken, there is no reason that he should be deprived of that use, and be paid the value as damages; all the right to use the land except that right may be taken, and that be left in him to enjoy or not as he pleases. If the right is of value, a valuable right in the land will remain in him, though he may refuse to exercise it." The State of Indiana having the power to take all right, title and interest of the owner, there can be no rational basis of an implication to take less when the formal declaration of appropriation recites that it is necessary for the state to acquire all, and when the complaint *Page 545 seeks the appointment of appraisers "to appraise the value of the right, title and interest of the defendants in and to said real estate" and prays "that all steps be taken and that all proceedings be had that may be necessary for this plaintiff to acquire all right, title and interest of said defendants in and to said real estate owned and claimed by the defendant Minnie P. Orcutt." The decisions of the courts recognize that the state in the exercise of its power of eminent domain may appropriate less than all the interest of the owner of a parcel of land; but the decisions also recognize that the instrument of appropriation, or the complaint must exclude the interests which the condemnor does not intend to take. In the case of St. Louis, K. N.W.R. Co. v. Clark,5 the court discussed at length the privilege of the condemnor to take less than the whole interest in a particular parcel of land and pointed out the proper method of exercising this privilege as follows: "Where the condemning company proposes to reserve to the landowner some right or easement not reserved by the statute itself, the reservation should be made in the original or by an amended petition. In other words, the petition should specially set forth what the company proposes to take. The easement reserved to the landowner should be specifically defined and located, so that the rights of the parties may be then and thereafter protected." This court cited the foregoing Missouri case with approval in the two cases of Indianapolis, etc., Traction Co. v. Wiles (1910), 174 Ind. 236, 242, 91 N.E. 161, and Louisville, etc., R.Co. v. Western Union Tel. Co. (1916), 184 Ind. 531, 111 N.E. 802. In the case of Indianapolis, etc. v. Wiles, supra, the opinion of this court pointed out that: "A proprietary right reserved in the owner of the fee and not appropriated is quite a different thing from *Page 546 a promissory stipulation made on its own motion by the condemning party." And it was stated in the opinion that the landowner is not obliged to accept or be bound by such promissory stipulations, "but may insist upon full pecuniary compensation for property appropriated against his will, together with resultant damages." But the opinion contains the following statement, p. 242: "It is pretty well settled that in exercising the power of eminent domain a party may limit the rights to be appropriated, and reserve to the owner of the land certain rights and privileges not inconsistent with the public use to be acquired." The later case of Louisville etc., R. Co. v. Western UnionTel. Co., supra, cites with approval the case of Indianapolis,etc., Traction Co. v. Wiles, supra, and St. Louis, etc., v.Clark, supra, in support of its discussion of the difference between "a limited appropriation" and "promissory stipulations." The thought of this court on that subject is indicated by the following excerpts from the opinion in the Louisville Railway case, supra (p. 536): "It has been held that a complaint for appropriation of land may be so drawn as to limit the rights to be acquired thereunder and so as to leave in the landowner certain easements and rights not taken by appropriation. When a limited appropriation of this kind is made the damages are assessed on the basis of the land appropriated as considered in connection with the rights and easements not taken and compensation is awarded accordingly. Indianapolis, etc., Traction Co. v. Wiles (1910), 174 Ind. 236, 91 N.E. 160; St. Louis, etc., R. Co. v. Clark (1894), 121 Mo. 169, 25 S.W. 192, 26 L.R.A. 751, note. A distinction is to be observed however between an appropriation subject to certain rights of the landowner excepted from the appropriation sought and left unaffected thereby in the landowner, and an attempt to impose unaccepted promissory stipulations and proposed agreements by the condemning party in respect to undertakings to be *Page 547 performed subsequent to the time of appropriation. In the absence of an agreement, the party condemning must take the rights which he seeks to appropriate absolutely and unconditionally and he must make full compensation for what he takes. His unaccepted promise to do something in the future in case certain emergencies arise can not affect the character or the extent of the rights acquired and they can not be considered as affecting the amount of damages to be awarded." The foregoing case of Louisville etc. R. Co. v. WesternUnion Tel. Co., supra, also cites with approval the case ofEvansville Terminal Railway v. Heerdink5 which was decided shortly after the Wiles Case, supra. The following excerpts are from the opinion of this court in the Heerdink Case (p. 540): "There is the further question involved in this case, that there is a distinction recognized between an instrument of appropriation reserving rights in the landowner not inconsistent with the public use to be acquired, and unaccepted promissory stipulations of future undertakings, on the part of the condemning party of its own motion, which is pointed out in Indianapolis, etc., Traction Co. v. Wiles (1919), ante, 236. The offers in both the first and the second paragraph of answer, including stipulations of the deed, are so far promissory in character that, unless accepted by the landowner, they clearly fall within the rule in the case of Indianapolis, etc., Traction Co. v. Wiles, supra, so that they could not be treated as amendments to the complaint, owing to their promissory character, instead of being limitations upon the rights to be acquired by appellant, or reservations in the landowner. The reason for the rule lies in the right of one whose property is taken without limitation or reservation in the taking, by the power of eminent domain, to make his election to stand upon his right to damages once for all, or contract with reference to the matter . . . Had amendment of the complaint been sought, so as to present the question of a limitation upon the rights to be acquired, or defining the rights reserved, a different question might be presented. *Page 548 That would have gone to the substantive matter, while, as it stands, the broad assertion of an easement of a way for an electric railway, with all its incidents, is presented without qualification. That the complaint might have been originally drawn or amended so as to limit the taking, or reserve an easement for drainage across the strip of ground so taken, so that damages might be assessed in view of that limitation or easement, is, we think, true; but it can only be done by a lawful amendment of an authorized pleading, which, in this case, was the complaint, so that in no event was there harmful error in striking out the answers and deed." The foregoing cases clearly establish the rule in this state that a condemnor of land under a declaration of appropriation which purports to take all interest in the land, does as a matter of law, take all legal interests in the land unless the apparent purpose to take all legal interest is qualified by express limitations in the declaration of appropriation, or, perhaps, by appropriate allegation in the complaint which rests upon the declaration of appropriation. Which, after all, amounts simply to stating that the condemnor takes what he wants, and the only way of determining what he wants is by his own statement of what he intends to take. See also New Jersey, etc., R. Co. v. Tutt (1907), 168 Ind. 205, 80 N.E. 420; Stauffer v. Cincinnati,etc. Railroad (1804), 33 Ind. App. 356, 70 N.E. 543; Cleveland,etc. R. Co. v. Smith (1923), 192 Ind. 674, 138 N.E. 347;Cleveland, etc. R. Co. v. Hadley (1913), 179 Ind. 429, 441, 101 N.E.N.E. 473, 4 L.R.A. (N.S.) 796; State v. Patten (1936), 209 Ind. 482, 199 N.E. 577. The recent decision of this court in State of Indiana v.Patten, supra, gives effect to a rule which is of special significance in this case. In that case the owners of land had voluntarily granted to the State Highway Commission a right of way. The Commission caused the grade *Page 549 of the road bed to be raised and in order to avoid taking additional land, constructed perpendicular retaining walls, and as a result of this construction destroyed the means of ingress and egress from the road to the landowner's farm. This court upheld the contention of the State of Indiana that the landowner could not recover additional damages because of the injury resulting from the change of grade. This court's position is made clear by the following excerpt from its opinion (p. 582): "When the appellees granted to the Commission the right of way, they then had the right and the power to limit the height of the grade of the roadbed; and, if the commission had not seen fit to accept the limitations, it could have then condemned the land and so use it in the most advantageous manner for road purposes, and damages would have been fixed as provided by statute. The State Highway Commission had the right to purchase the land or acquire it under the right of eminent domain. Section 36-118 Burns' 1933. And, having purchased the right of way, it had the same right to raise the grade as it would have had if it had obtained the same by condemnation proceedings, without being liable for damages to appellees other than originally fixed. If the right of way had been procured by condemnation proceedings, all possible damages would have then been awarded except such as might have resulted from an improper or negligent construction of the improvement. As the right of way was granted by deed, without limitation, the appellees waived any action for damages on account of the change of grade except such as might result from an improper or negligent construction of the improvement. There is no charge of improper or negligent construction." It is clear from the foregoing that the effect of a voluntary conveyance of property to the State of Indiana, as an alternative to having it taken by condemnation proceedings, has the same legal consequences as a taking by an exercise of the power of eminent domain; and if there is no reservation in favor of the grantor in the *Page 550 deed of conveyance, the interest acquired by the state is as complete as it would be in case of condemnation under a declaration of appropriation which contains no limitation. Further this court lays down the rule that when an interest is acquired by the state, the state has the right to use that interest "in the most advantageous manner" for the purpose for which the interest is acquired. It follows from the foregoing that the owner of the land must anticipate all damages which may be caused by the most advantageous use of the interest by the state. So in the instant case when the state demanded all right, title and interest of the owner of the land in question "for state forestry purposes and for other uses connected therewith," the owner of the land was bound to know that he was losing all interest in the land which conceivably could interfere with the most advantageous use of the land in question for state forestry purposes and for other uses connected therewith. The owner was bound to know that which is of common knowledge, that the state erects buildings on lands used for forestry purposes; that it creates artificial lakes by building dams; that it plants seedlings; that at least portions are surrounded by high wire fences for the purpose of inclosing wild animals and that it is impractical to have traveled roads through these inclosures; that frequently scenic roads are built through these forestry lands which might be of such a grade as to destroy the usefulness of an intersecting road which had been used by the owner. In short under the doctrine of the Patten Case, which is generally recognized as a sound doctrine, any implications indulged in by courts or parties in the instant case should be implications against an intention on the part of the owner to retain any interest whatever in the land taken. A striking example of the application of the "most *Page 551 advantageous use" rule is found in the case of Baker v. Cityof Rochester.6 The city of Rochester in the State of New York had the power to take eminent domain in the fee simple title to lands for park purposes. The city appropriated without limitations expressed in the declaration of appropriation twelve acres out of 140 acres belonging to the appellant and adjoining the park land. The owner of the land had constructed and was using a large drain through the twelve acres for the purpose of draining about 60 acres of the remainder of his land. The landowner claimed as one item of damages the injury resulting to him through the loss of his drainage outlet. On the other hand the city contended that the owner had not lost his right to use the established drainage system for the benefit of the remainder of his land, together with the right to enter upon the park land to repair and maintain the drain. This contention of the city was disposed of in the following statement by the court: "The title in fee to the realty vests in the city. The absolute control of the lands thus taken for park purposes is secured to the city by legislative decree. There is no reservation of easements, water rights, or other privileges as connected with the portions of the property of the landowner from which the condemned premises are taken. (Here reference is made to the legislative acts showing that the city had ample power to take the fee and all right therein.) The implied reservation of the easement to pass the water accumulated upon the farm through the twelve acres would be inconsistent with the use of the twelve acres as a park. If the easement existed, the appellant would have the right to enter upon the park to repair the tile ditch when necessary in order to preserve the right of drainage. In so doing, he might have to tear up the walks, grass plots, or destroy shrubbery in the park, and interfere with its use as a park. . . . The right to appropriate property for public use includes *Page 552 not only the tangible thing owned, but every right and incident which accompany ownership. In case of land it includes any right or easement, and it has been held that it even includes a right of action for injuries to land. 6 Am. Eng. Enc. Law (1st Ed.) p. 530, and cases cited. It is within the power of the legislature to authorize lands to be condemned for public use which may be permanent, to determine what estate shall be taken, and to authorize the taking of any fee or vested estate in its discretion." It is of special significance that the court in the foregoing excerpt expressly recognized a rule which was declared to be the law in Indiana in John Hancock Mut. Life Ins. Co. v.Patterson7 in which opinion the rule is stated as follows (p. 586): "Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use." The foregoing rule is as binding as the rule which reserves to the grantor a way of necessity, when the facts call for an application of the rule. Consequently, the reasoning in the New York case would apply to the instant case. And it would be a necessary deduction from the rule just quoted from the Patterson Case that in Indiana no greater protection, as a matter of law, would be given to a way of necessity than would be given to a servitude which at the time of the severance is in use and is reasonably necessary for the fair enjoyment of the retained property when such servitude is apparently permanent and obvious. And in the Indiana case of New Jersey etc. Ry. Co. v. Tutt,supra, *Page 553 this court held that such a servitude was destroyed in a condemnation proceeding by a railroad company. In reference to the servitude this court made the following statement, p. 212: "It follows that appellant had the lawful right to destroy the drain by constructing its embankment across it; and in assessing appellees' damages it was proper for the appraisers to assume that appellant would exercise its legal rights in this respect, and they were thus warranted in considering the obstruction of the ditch, and the consequences of appellees' farm, as proper element of damage." The case of Prowattain v. City of Philadelphia8 decided by the Supreme Court of Pennsylvania, involved the question presented in the instant case. In that case plaintiff owned in fee an acre of land bordering on the highway known as the "Wissahickon Drive in Fairmount Park." This acre represented the remainder of a larger tract of land which had been owned by plaintiff's father. In 1871 the city of Philadelphia had appropriated for the use of Fairmount Park a part of this large tract leaving the ace in question which had been conveyed to plaintiff in fee in December, 1878. At the time of the appropriation in 1871 the tract of land lay on both sides of the "Wissahickon Road," and plaintiff's father owned the fee to the bed of the road, subject to the right of the turnpike as a way. When the land of plaintiff's father was appropriated it was taken by the city of Philadelphia for the use of Fairmount Park and included that portion of the Wissahickon Turnpike road which ran through the land owned by plaintiff's father. The acre which was owned by plaintiff lay within three feet of the public drive, which was included in Fairmount Park, and the plaintiff had exercised the right to pass to and from his land into this drive until June, 1883, when the city of Philadelphia *Page 554 barred him from doing this by erecting a fence across the passage to his land. There was no other outlet for plaintiff except over the land of other people, and the nearest highway, except this drive, to the plaintiff's land, was more than half a mile distant. The plaintiff brought his action against the city of Philadelphia to recover damages for the deprivation of the right of way. At the trial the report of the jury awarding damages to plaintiff's father was offered in evidence and contained the following: "The foregoing damages are awarded, inclusive of all rights and title of the said Evan Prowattain to the Wissahickon creek, and all roads and highways." The trial court nonsuited the plaintiff on the grounds: (1) that the land had been taken by the city, by virtue of their right of eminent domain, for a purpose inconsistent with a right of way, with a result that no such right existed by implication of law; and (2) that the verdict of the jury to assess damages, and a quitclaim deed afterwards given, must be conclusively presumed to cover the loss in value resulting from any deprivation of access. The judgment of the trial court was affirmed by the Supreme Court of Pennsylvania with the following statement (p. 442): "The facts of this case negative any implied reservation of the right of way now claimed. The opinion of the learned judge in disposing of the rule to take off nonsuit, contains a clear and correct statement of the law applicable to the case." In the foregoing case no contention was made that there was express reference either to a taking or to a grant of the landowner's right of access to the public drive in either the report of the jury to assess damages or the quitclaim deed afterwards executed. The trial court clearly based its holding upon the assumption that the taking of the land for park purposes was inconsistent *Page 555 with the existence of a private way of necessity through a part of the park, and upon the presumption that any loss suffered by the owner of the land by reason of being deprived of access to the highway had been compensated for on the original assessment of damages. The case clearly stands for the rule, as stated in the syllabus in the report of the case, that where land is taken by virtue of the right of eminent domain, for a purpose inconsistent with the existence of a right of way, no way of necessity is created by implication of law. In the case of Flagg v. Town of Concord9 there had been a general taking under the power of eminent domain with no limitations expressed. The court pointed out that the extent of plaintiff's damages must be measured by the extent of the interest taken, regardless of whether the condemnor should make use of the interest or not. The following is quoted from the opinion of the court (p. 571): "Whatever rights are acquired by the taking may be exercised at once. It is of no consequence when in fact they are exercised. This is the precise point decided in Newton v. Perry, 163 Mass. 319, 39 N.E. 1032. The principle is thoroughly settled and finds illustration in many cases. See, for example, Ham v. Salem, 100 Mass. 350; Howe v. Weymouth, 148 Mass. 605, 20 N.E. 316; Lincoln v. Com., 164 Mass. 1, 10, 41 N.E. 112; Googins v. Boston Albany R.R., 155 Mass. 505, 30 N.E. 71; Proprietors of Locks and Canals v. Nashau Lowell R.R., 104 Mass. 1. 9, 6 Am. Rep. 181; Wapole v. Mass. Chemical Co., 192 Mass. 66, 78 N.E. 140. The whole beneficial use of the land in effect is taken. The plaintiffs' damages must be assessed now for all injuries sustained by the taking. Future exercise of rights included within the scope of this taking, although suffered to lie dormant for a considerable time, affords no ground for an additional assessment of damages in the future. The extent of the plaintiffs' damages is measured by the extent of the rights included *Page 556 within the taking by the defendant, and not by the extent of the exercise of such rights." The opinion and decision of the Supreme Court of Massachusetts in the case of Ham v. City of Salem10 is of special significance in the determination of the question presented by this appeal. The city of Salem had the power to take such lands as were necessary to procure and maintain a water supply for the city, including the right to lay mains and drains upon and over the lands taken. Under the procedure applicable to the taking of land the appropriation was accomplished by filing a description of the lands as required by statute. The description had been filed designating the land to be taken and with no limitations expressed. The city took the position that damages should be assessed with the assumption that the landowner would still have a right of way across the lands, and offered evidence to show that such right would still remain open to the landowner. The court disposed of this contention as follows (p. 351): "In thus taking the land, the company may reserve to the owner such rights of way or other rights as they may think proper; and the record will show that they are reserved. Such reservations may diminish his claim for damages. But no rights which are not thus reserved will exist. If they lay their pipes upon the land, they may decide how far below the surface they shall be laid; and may vary the depth from time to time as they shall think proper; and when they have dug their ditch for that purpose, they may decide whether or not to fill it, and make the surface smooth so that it can be used as a way. And as they cannot now foresee what their future necessities or interests may be, it is important to them to limit their rights as little as possible. Probably it is with this view that they have omitted to make any reservations." In the case of Inhabitants of Walpole v. Massachusetts *Page 557 Chemical Co.11 the town of Walpole has appropriated lands to be used in connection with furnishing a water supply to the town. The Chemical Company had enjoyed an easement over the land appropriated; and in support of its holding that the appropriation extinguished the easement the Massachusetts court used the following language (p. 69): "It is as if the easement were a right of way over the land where the pumping station is erected. Such a right, annexed to a neighboring estate, would be taken by a taking of the whole of the servient tenement for such a public use. An easement is an interest in the land, carved out of it for the benefit of the owner of the dominant tenement, and it leaves the owner of the servient tenement with a title limited by the ownership of this separate interest in another person. So a taking of the entire land, which describes it as if it were unincumbered, includes the easement, just as it would include a leasehold estate as well as the fee or reversion. Commonwealth v. Fisher, 6 Metc. 433; Sprague v. Dorr, 185 Mass. 10, 13, 69 N.E. 344." In Googins v. Boston, etc., R. Co.12 the railroad company had taken land under the provisions of a statute which authorized the railroad to take the fee. The owner of certain land brought suit to restrain the defendant corporation from obstructing an alleged right of way over its railroad. We quote the following from the opinion in the case (p. 506): "There is no reason to construe the location as taking less than the statute authorizes. The language is `do hereby . . . take the railroad property heretofore known as the Union and Grand Junction Railroad, . . . and also all land described' in a paper annexed. That paper directly, and by reference to a plan, includes the locus. It should be observed also that the width and boundaries of a large part of the location vary from the width and boundaries *Page 558 of the earlier road. In general, when land is taken for a railroad, and no right of crossing is reserved in the location or ordered by the county commissioners, it is not subject to such a right, even if without it an owner will be cut off from access to his land. Old Colony Railroad v. Miller, 125 Mass. 1, 5. Smith v. New York New England Railroad, 142 Mass. 21, 22. Abbott v. New York New England Railroad, 145 Mass. 450, 460. Boston Gas Light Co. v. Old Colony Newport Railway, 14 Allen 444. . . . But the reason plaintiff's way is destroyed is that the defendant has the right to take land given it by the statute; that land includes easements; (Gen. Sts. c. 3, § 7, cl. 10; see Pub. Sts., c. 3, § 3, cl. 12;) and that, as matter of construction, when a railroad takes land and does not mention the way in its location, it does not leave outstanding a right which presumably will be inconvenient to it, and to a certain extent inconsistent with the purpose of the taking." The decision of the Supreme Court of Kansas in the case ofAtchison, Topeka Santa Fe Railway Company v. Conlon,13 involves a definite recognition of the rule that when a strip of land is taken in fee simple through a farm by a railroad company an easement of a right of way of crossing is destroyed. In this case it was claimed that the crossing over the railroad tracks was indispensible to the use of the farm and consistuted a way of necessity. The court said that in view of the facts it was unnecessary to dwell on this contention. The facts were as follows: In 1864 the railroad corporation had condemned a right of way 100 feet wide over and through the farm and had acquired a fee simple title to the land for its right of way. In 1870 the owner of the farm sold it to James Conlin and by mean conveyances the land passed to the defendant, Anna Conlin, in 1872. The deeds contained the following exception: "The right of way has been given to P.P. Railroad by said Baldwin." From 1873 until 1897 the *Page 559 owners of the farm had used the crossing and the owners of the 100 foot strip had maintained a plank crossing over the rails for the accommodation of the owner of the farm. The court said that when James Conlin acquired the land by virtue of the deed which excepted the 100 foot strip, the fee of which had been taken from his grantor by condemnation proceedings, he was in the same situation as if the grantor had made two deeds, — one to the ground on the south, and the other to the land on the north, of the right of way; and that Anna Conlin bought land situated on both sides of the railway with a fee-simple proprietor owning an estate between the two tracts at the time she took title. The court concluded that "no rule of law will permit her to assert a dominant estate, from necessity, in any part of the intervening property." There is no suggestion in the opinion of the Supreme Court of Kansas that the exception in the deeds destroyed an easement over the 100 foot strip to which the original condemnor had acquired a fee simple title. If a way of necessity had arisen by implication when the condemnor took the strip there was nothing in the later conveyance which would have destroyed it. Consequently the decision necessarily involves the holding that when a condemnor has the right to take a fee simple under an exercise of the power of eminent domain and does take such an interest without limitation that no way of necessity is preserved for the benefit of the portion of the condemnee's land which is not taken. The foregoing cases, and others which might be cited, recognize that when the fee is taken there is a complete severance, with the legal consequence that all interests of the condemnee in the land which is taken pass to the condemnor as a part of the appropriation; but that when the title of the land appropriated remains in the condemnee, only such interests are taken *Page 560 which are expressly described or which are reasonably necessary to make effective the purpose for which the appropriation is made. For that reason it is regularly held than when a railroad corporation does not take the title to land for its right of way it does not cut off the rights of the condemnee in the land appropriated for the right of way, unless the exercise of these rights by the condemnee interfere with the condemnor's use of the right of way. The rule just stated explains the decision of this court inCleveland R. Co. v. Smith14 which is strongly relied upon by appellant in the instant appeal. In this case the railroad had condemned a right of way for its railroad across a farm with the result that "the only means of communication, used in transporting farm products and machinery, between this forty-acre tract, and the tract north of the railroad, was a crossing over the railroad . . ." In assessing damages in a later condemnation proceeding it became important to decide whether the original taking in 1869 had severed the tracts of land which were separated by the right of way into separate independent tracts and whether the condemnor was entitled to any damages for the destruction of the private crossing. This court held that the trial court did not err in refusing to give an instruction which stated that in estimating the damages the jury must consider the land north of the old right of way as a separate, independent tract, and determine the damages to it independent of its connection with the land south of the right of way. In discussing this point this court used the following language (p. 538): "The court did not err. The right which a railroad company acquires by the appropriation of a right of way under our statute, is a mere easement. *Page 561 Quick v. Taylor (1888), 113 Ind. 540, 16 N.E. 588; Cincinnati, etc. R. Co. v. Geisel (1889), 119 Ind. 77, 21 N.E. 470. The imposition of this easement does not, in itself, divide a farm into separate tracts. Chicago, etc., R. Co. v. Huncheon (1892), 130 Ind. 529, 30 N.E. 636. Whether the tracts north and south of the old right of way, were, at the time of the last appropriation, separate and distinct tracts, was a question of fact for the jury to determine." (Our italics.) The foregoing was a correct statement of the law as to the effect of the appropriation of a right of way by a railroad in Indiana. And this court also pointed out that whether or not the tracts north and south of the old right of way had, by reason of subsequent use of these tracts, become two separate and independent tracts for the purpose of estimating damages to them by the second taking, was a fact to be determined by the jury. The appellant Railroad Company also asked the trial court in instruct the jury to the effect that the appellant was not entitled to any damages for the destruction of the private crossing on the assumption that the original condemnation had separated the farm into two separate and independent tracts with the consequent destruction of any right of the condemnee in the land appropriated for the right of way; and that the owners of the land had not acquired an easement by prescription. In connection with this contention this court made the following statement (p. 539): "Under the facts in this case, it is unnecessary to determine whether appellee was the owner of an easement in a way across the tracts by prescription, or by virtue of the crossing act of 1885, supra. There was, after the 1869 condemnation, no practical means of travel to or from the tract south of the railroad and west of the creek, except over appellant's right of way, and in such case, a right of way of necessity, was, by legal implication, reserved in the owner, when the original condemnation proceedings were had." *Page 562 The foregoing statement by this court was sound and in accordance with decisions above referred to in this opinion. But it is not authority for the conclusion that in Indiana a way of necessity would have been preserved if the original condemnation involved in the foregoing case had resulted in the acquisition by the railroad company of a fee simple interest in the land which was appropriated for the right of way, since the result would have been the same whether the easement claimed by the condemnee is one for a way of necessity or one which at the time of the taking of the right of way was in use and was reasonably necessary for the fair enjoyment of the portion of the land which is not taken, and which is an apparently permanent and obvious servitude. The latter type of easement is the one which is recognized in John Hancock Mutual Life Ins. Co. v. Patterson,supra. It is perhaps worth noting that the foregoing case is cited and relied upon in Cleveland R.R. Co. v. Smith, supra, along with other cases, no one of which involves a way of necessity. It is urged that the implication of a reservation of an easement of a way of necessity rests upon a public policy. It is assumed that there is a public policy which requires the implication of a way of necessity in order to prevent land thereby cut off from becoming useless. The existence of such a policy has been referred to frequently by courts in cases of voluntary grants or in cases where transfers of interests in land were effected by judicial proceedings which involved grants or their equivalent, such as sheriff deeds or reports of petition. In all such proceedings the court in reality decrees the interest which the claimant is legally entitled to have conveyed to himself by voluntary grant of another party. There is no taking by the court in the sense that the state of Indiana takes by an exercise of the power *Page 563 of eminent domain. Consequently if the implication of a reservation of a way of necessity rests upon the public policy there would seem to be no reason why such policy should not be given effect in cases of transfers which are decreed in judicial proceedings. But in exercising its power of eminent domain the state is giving effect to the most fundamental public policy recognized by a political sovereign, — namely public need is paramount to any private interest. Granting that a use for which the state demands land is a public use there is no limitation upon the power to take. The constitutional requirement that compensation must be made for whatever property is taken does not limit the power to take; but it does protect property owners from confiscation of their property and makes unnecessary the implication of any reservations of interest by the property owner to prevent injustice in the exercise of the power of eminent domain. Since in the exercise of the power of eminent domain the state is giving expression to a fundamental public policy, it would seem beyond the power of a court to limit the extent of the exercise of this power by implying a specific limitation under color of giving effect to public policy. And since the individual is protected by the requirement that compensation must be made for the taking of his property, there is no basis for implications of limitations in order to protect the property owner. While the cases refer to public policy in connection with the creation of ways of necessity it is significant that the courts assume that the foundation of the rule is the presumed intention in fact of a voluntary grantor. If the rule rested entirely upon a public policy of requiring all land to have a way of necessity to and from a public highway, such a public policy would operate in favor of land entirely surrounded by lands of strangers. The rule however has always been limited in its application *Page 564 to easements in favor of the land retained by an immediate or common grantor. At least one decision of this court has impliedly held that a way of necessity is not supported by public policy. In the case of Logan v. Stogsdale15 this court held that an act of the General Assembly which gave any freeholder, who had no outlet to a highway, the right to petition the board of county commissioners to establish a way, was unconstitutional since it assumed to "authorize the seizure of the property of one citizen for the benefit of another." If this court had recognized the existence of a true public policy in favor of ways of necessity the Act should have been held constitutional. But the court expressly stated that "A way by necessity exists by grant, and the grant is an implied one. . . . It results from this that a way by necessity can not be successfully claimed over the land of a stranger, and if the appellant were asserting a right of way over a stranger's land she could not succeed." The court then stated that the allegations of the complaint showed that both parties claimed through a common grantor and consequently that appellee, whose land was surrounded by the land of appellant, was entitled to a way "as of necessity" across the land of appellant. In the case of Richey et al. v. Walsh16 the opinion of this court emphasizes the factual basis of the implication of a way of necessity. The following is quoted from the opinion in that case: "It is settled law that if one conveys a part of his land in such form as to deprive himself of access to the remainder, unless he goes across the land sold, he has a way of necessity over the portion conveyed. This is because the law presumes an understanding of the parties that the one selling a portion of his land shall have a legal right to access over the part sold to the remainder, if he cannot reach it in any *Page 565 other way. If the part conveyed is in such form that the grantee cannot reach the same except over the part not conveyed, such grantee has a way of necessity thereto over the land of the grantor, not conveyed, for the reason that the law presumes that one would not sell his land to another without an understanding that the grantee should have a legal right of access thereto over the part not conveyed." We quote further from the opinion in the foregoing case, p. 219: "The reason for the doctrine of a way of necessity is thus stated in Collins v. Prentice (15 Conn. 39, 38 Am. Dec. 61, 52): `And although it is called a way of necessity, yet in strictness, the necessity does not create the way, but merely furnishes evidence as to the real intentions of the parties. For the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such a manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder.' The reasons given to support a way of necessity, in case of a grant, support such a rule with equal force, when there is partition of land by deed or by a proceeding in court." In the case of Stewart v. Hartman17 this court quoted definitions of "way of necessity" from different authorities and upon the authority of these definitions made the following statement: "There cannot legally exist a general way of necessity without reference to the manner whereby the land over which the way is claimed because charged with the burden. In the case under consideration, it is not shown, that either of the parties, or any one under whom they or either of them claims, was ever seized of both tracts of land; and consequently the claim set up by appellant to a way of necessity can have no valid foundation." From the various expressions of this court we must *Page 566 conclude that a court cannot declare the existence of a way of necessity unless there has been a voluntary grant or unless the facts and circumstances are such that they are equivalent in law to a grant; and in the latter case our courts have declared the existence of a way of necessity only when equity and justice for the one claiming it requires it to be declared. No case has been passed upon by this court in which a way of necessity has been declared in favor of the owner of land when a severance in fee simple of part of his land has been effected by the exercise of the power of eminent domain of the State of Indiana. The essential element of such an implication is lacking, namely the element of freedom of the owner to withhold consent to the alienation of the land appropriated. After detailed discussion of the grounds for the implication of a way of necessity the annotator of Corpus Juris reaches the following conclusion:18 "The presumption of law is that it was not the intention of the parties that one should convey land to the other in such a way that the grantee could derive no benefit from the conveyance, nor that the vendor should so convey a portion as to deprive himself of the enjoyment of the remainder. However, the presumption that a way of necessity is created by a conveyance under the circumstances under consideration is one of fact, and whether or not the grant is to be implied in a given case depends upon the terms of the deed, and the facts in that case." And the annotator further suggests that among the special facts to be considered is the fact that the grantor may exercise the right of eminent domain and the fact that part of the estate is taken for public purposes. In connection with the latter the following note is appended:19 *Page 567 "Where a portion of an estate is taken for public purposes, no way by necessity over the portion taken arises in favor of the part remaining, since the taking is by virtue of a power whose exercise has but one limitation, that compensation should be made for the value of what is taken and for the injury to all that remains (Prowattain v. Philadelphia, 17 Phila. (Pa.) 158; Tracy v. Atherton, 35 Vt. 52, 82 Am. D. 621), and for the further reason that there has been no grant from which it could be implied (Banks v. School Directors, 194 Ill. 247, 62 N.E. 604). Where a grantor in a deed excepted from the land conveyed a strip one hundred feet wide through it, theretofore taken by a railroad company under condemnation proceedings under a statute by which the railroad obtained title in fee, it was held that the grantee was not entitled to a way of necessity from one part of the land to another divided by the strip so condemned. Atchison etc. R. Co. v. Condon, 62 Kan. 416, 63 P. 432, 53 L.R.A. 781." We have already discussed the cases of Prowattain v.Philadelphia and Atchison v. Condon. The case of Banks v.School Directors cited in the note in Corpus Juris, definitely states the rule that there can be no implication of an implied way of necessity in the case of taking of land under the power of eminent domain, because there is no grant upon which any such implication can be based. In that case a proceeding was instituted to condemn a certain portion of land 12.7 rods square which was near the center of an inclosed pasture. The petition did not ask for a right of way or specify any way or proposed way to the tract of land condemned, but simply asked for condemnation of the tract as described. In the trial before a jury for damages the jury returned the verdict for $75.00 for the value of the tract of land and $100.00 for damages to the remaining land. The trial court entered judgment that upon payment of the compensation so ascertained the petitioners should have a right to enter upon the tract and the use *Page 568 of the same as a school house site. Upon appeal to the Supreme Court of Illinois the latter court held that the judgment of the lower court was erroneous in attempting to give petitioners a right of way since petitioners had not asked for a right of way, and for the further reason that the cross petition of the defendant, owner of the land in question, had excluded any damages for a right of way to the tract and none had been assessed. The condemnors insisted upon appeal that having acquired the tract of land they would have a way by necessity to it from the public highway. We quote the following from the Supreme Court's discussion of this contention (p. 249): "The rules under which a way by necessity arises and is presumed to have been granted cannot be acquired by condemning the tract. When anything is granted all the means to attain it are granted with it, and pass inclusive with the grant of the thing itself. So if one grants a piece of land in the midst of his own he thereby impliedly grants a way to reach it, and the grantee may cross the grantor's land for that purpose without trespass. (Sheppard's Touchstone, 96.) In such a case the way itself is granted by the owner, and the rule is stated in 2 Blackstone's Commentaries, 35, note, as follows: (Here the court quotes from Blackstone's and Kent's Commentaries) The principle of law cannot be applied here, because there is no grant of the thing and no implication that a way was an incident to be included with it. It is proposed to take defendant's land by compulsory means, not including any right of way, and having obtained the tract, claim the way from necessity. The court could not authorize petitioners to enter into possession by going across land where they had no right to go, where they had not condemned or attempted to condemn any right of way, and neither could the officer of the court put them into possession without a trespass." The foregoing Illinois case is an especially strong *Page 569 authority for the proposition that in cases of taking by eminent domain there is no implication of a way of necessity since the one claiming the way of necessity was the condemnor and would stand in the place of the grantee, if we should follow the analogy of a voluntary grant; and the cases from the very earliest time have uniformly held that a grantee who has received a grant of land which is entirely surrounded by lands of his grantor has a way of necessity. In view of the foregoing the conclusion seems irresistible that when the state of Indiana by its declaration of appropriation and by its complaint demanded all right, title and interest of the owners of the land specifically described in the declaration of appropriation and in the complaint, and invoked the jurisdiction of the Monroe Circuit Court to declare that such appropriation had been effected, and obtained a decree of the court to that effect, that no outstanding interest in the land was left in favor of the remaining land belonging to the condemnee, Minnie Orcutt. The trial court did not err in directing the jury to assess as a part of the damages the injury to her remaining land which resulted from the destruction of her way across the intervening land to the public highway. In my opinion appellee's petition for rehearing should be granted and the judgment of the Monroe Circuit Court affirmed. Hughes, J., concurs. 1 (1934), 207 Ind. 25, 26, 191 N.E. 77. 2 (1934), 207 Ind. 312, 313, 314, 192 N.E. 447. 3 Acts 1919, Ch. 60, § 2, p. 375. 4 (1888), 147 Mass. 609, 612, 18 N.E. 582. 5 (1894), 121 Mo. 161, 25 S.W. 192, 26 L.R.A. 751, 763. 5 (1910), 174 Ind. 537, 92 N.E. 548. 6 (1897), 48 N.Y.S. 764, p. 766, 24 A.D. 383. 7 (1885), 103 Ind. 582, 2 N.E. 188. 8 (1886), 1 Pa. (Sad.) 437, 4 A. 806. 9 (1916), 222 Mass. 569, 111 N.E. 369. 10 (1868), 100 Mass. 350. 11 (1906), 192 Mass. 66, 78 N.E. 140. 12 (1892), 155 Mass. 505, 30 N.E. 71. 13 (1901), 62 Kan. 416, 63 P. 432, 53 L.R.A. 781. 14 (1911), 177 Ind. 524, 97 N.E. 164. 15 (1899), 123 Ind. 372, 24 N.E. 135. 16 (1897), 149 Ind. 214, 217, 48 N.E. 1031. 17 (1874), 46 Ind. 331, p. 342. 18 19 C.J. p. 924. 19 Ibid., p. 925, note 17. *Page 570

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426446/

Complaint by Lucille McCollough against Great Northern Casualty Company on an insurance policy to recover benefits alleged to be due plaintiff by reason of an injury resulting in a disability alleged to be within the terms of the policy. A trial by jury resulted in a verdict and judgment in favor of plaintiff for $400. The error assigned is the overruling of appellant's *Page 508 motion for a new trial, the specifications of which are: (a) That the verdict is not sustained by sufficient evidence; (b) that it is contrary to law; (c) that the amount of the recovery is too large; and (d) that the court erred in giving and in refusing to give certain instructions. The policy provides for the payment of a monthly accident indemnity of $100, "for the period of total loss of time commencing on date of accident, during which independently of all other causes such injury alone, wholly and continuously disables and prevents the insured from performing any and every duty pertaining to any business or occupation. . . . Provided, that indemnity under this part shall not be paid . . . in excess of the time the assured is, by reason of injury, under the professional care and attendance of legally qualified physician or surgeon." Appellee was a deputy in the office of the clerk of the Clinton Circuit court and was so classified in the policy of insurance. The policy was issued March 29, 1928, at which time appellee was expecting to give birth to a child in July, 1928. Appellee was injured by reason of a fall at the home of her father-in-law at Crawfordsville, June 9, 1928, and on July 19, she was confined by reason of childbirth. Appellant concedes that appellee, by reason of her injury, was entitled to some benefits under the policy, but contends: (1) that she ceased her employment as deputy clerk April 15, and entered the classification of "housewife"; (2) that the accident, independently of all other causes caused total disability only from the date of the accident, June 9, until her confinement by reason of childbirth; (3) that appellee's change of employment reduced the monthly indemnity from $100 per month to $13.09 per month, under the classification of "housewife"; (4) that appellee was under the care and attendance of a physician only until August 5, *Page 509 a period of 58 days; and (5) that such period of 58 days included disability caused jointly by the accident and confinement and that she was entitled to benefits for forty days at $100 per month and which would amount to $133.34, if she had not changed her employment, and that if she had changed her employment to that of "housewife", she was entitled to but $16.15. Appellee contends: (1) that she did not change her employment when she went to Crawfordsville; (2) that no deduction from this period should be made by reason of her confinement. The only evidence relating to change of occupation is found in the testimony of appellee. She testified that when the policy was issued she was deputy clerk of the Clinton Circuit court under her father; that in the middle of April she went to live with her husband's parents at Crawfordsville, paying her board while there; that she took no employment in any capacity before her injury; that she went back to the clerk's office at Frankfort every week to help her father in the office, and was paid by him and so assisted him for three days in the week just before her injury; that she did nothing between those three days and the time when she was injured; her injury was caused by falling down stairs; before she went to Crawfordsville she agreed with her father that she would return to her work as soon as she was able; that she was subject to call by her father at any time; and that she did not expect to stop work but expected to go back to work as soon as she could after her confinement. Before we can sustain appellant's claim that there had been a change in occupation, we would have to say the evidence shows as a matter of law that appellee had changed her occupation. 1. This we cannot do. Whether there was a change in occupation was a question of fact for the jury. The jury found against appellant on that contention, and there is evidence to support that finding. *Page 510 As heretofore indicated, indemnity for total disability under the terms of the policy was to be paid for the period "during which independently of all other causes such injury alone, wholly and continuously disables and prevents the insured from performing any and every duty pertaining to any business or occupation." Appellant contends that under this provision, appellee was not entitled to any indemnity for eighteen days when she was confined to her bed by reason of childbirth. The claim of appellant is that the disability during such period of eighteen days was caused by two concurrent proximate causes, and hence the disability during that period is not within the terms of the policy. Appellee was accidently injured June 9, and as a result of such injury, she was totally disabled for a period of more than four months. The proximate and efficient cause of such 2. disability was the injury which she received on June 9. The intervening childbirth was not a proximate or efficient cause of her disability during any part of such period. She would have been totally disabled during the whole of that period if she had not given birth to a child. The sole proximate and efficient cause of her disability was the accidental injury. The incident of childbirth had nothing to do with the cause of her disability and added nothing thereto. The eighteen days during which appellee was recovering from the effect of childbirth should not be deducted from the period during which appellee was totally disabled. Appellant, referring to the provision which provides that the policy should not cover disability for any period during which the insured was not under the professional care and regular attendance of a physician, says that appellee ceased to be under the care and attendance of a physician August 5, and that she was not entitled to indemnity after that date. *Page 511 Dr. Daugherty, a licensed physician, was called June 9, immediately after appellee's injury. He saw her every day thereafter until July 12. He testified that he placed splints on wrist and collar bone and bandaged her ankle. Splint remained on arm six weeks. When splint removed, wrist was so weak she could not do anything. That condition existed until September, when she went to her father's home in Frankfort, at which time she was wearing a brace on her arm and an elastic bandage. Up to that time she complained of pain. When she would go to pick up anything she was not sure of it. She did not know whether she would drop it or not. During that time she could not operate typewriter or take shorthand and could have done very little work in a home. Splint remained on collar bone four weeks. Ankle was bandaged two weeks, but remained swollen until September. She was under his constant care until she went to Frankfort in September. When she went to Frankfort, she could not have performed regularly and in the usual way the duties of any occupation. Did not see her after she went to Frankfort until in December when she returned to Crawfordsville. At that time wrist was still weak and soreness in back reduced efficiency. She was in bed as a result of the accident until June 23. She was confined to her bed by reason of childbirth three weeks. She could not lift anything before September when she went to Frankfort. There is a slight conflict in the evidence as to when appellee left Crawfordsville and returned to Frankfort. Dr. Daugherty said it was in September. Appellee said she thought it was August 4. The undisputed evidence, however, is that appellee was confined by reason of childbirth July 19; that she was confined to her bed for three weeks, or until August 9, and that for a week thereafter, Dr. Daugherty saw her every other day and possibly a *Page 512 couple times the next week, and it was after this when she went to Frankfort. The jury trying the case was clearly justified in finding that appellee returned to Frankfort in the early part of September. And there is other evidence including the testimony of appellee that as a result of her injuries she was disabled from doing any appreciable amount of work of any kind until sometime in October, and which would sustain a finding that she was entitled to an indemnity benefit under the policy of $100 per month for a period of four months. There are two provisions in the policy relating to the care and attendance of a physician. The first is that indemnity shall not be paid in excess of the time the insured is under the "care and attendance" of a legally qualified physician. This provision is found in what is designated as "Part 4" of the policy. Following "Part 13" of the policy under the heading "Standard Provisions," are twenty provisions, and following these, and under the heading "Additional Provisions" we find six "additional provisions," the fourth one of these provides that the policy does not cover disability for any period during which the insured is not under the "professional care and regular attendance" of a licensed physician. Appellant insists that the use of the word "regular" in this last provision prevents a recovery of indemnity for the time that intervened after appellee returned to Frankfort because, as appellant contends, appellee was not, during that time, under the care and "regular" attendance of a physician. The primary meaning of medical attendance is the rendering of professional medical services. Bouv. Law Dict., Title Medicine. And it has been held that the words "medical attendance" 3. are not necessarily restricted in their meaning to the professional attendance of a physician, but may include nursing *Page 513 and watching. Scott v. Winneshick County (1879), 52 Iowa 579, 3 N.W. 626. In this connection, appellant calls attention to the fact that appellee did not see or communicate with any physician about her injuries after she went to Frankfort, and says that the fact that her physician, before she went to Frankfort, gave her instructions as to how she should move and exercise her wrist and that the fact that during the time she was at Frankfort she followed such instructions are not sufficient to bring her within the provision that she must be under the care and regular attendance of a physician, and that the words "regular attendance" means more than following a physician's instruction. There was a period of about four weeks while appellee was in Frankfort, that she did not see or communicate with a physician, but this does not necessarily mean that she was not, during 4. that time, under the care and attendance of her physician. She had received instructions from her physician as to what she should do during this period in order that she might recover from her injuries and remove her then disability, and she followed such instructions. The jury had the right to find that while she was at Frankfort, she was under the care and regular attendance of a physician. Complaint is made of instruction 2 given at the request of appellee. By this instruction, the attention of the jury was called to the clause which provides for payment of 5. indemnity during the period when the injury "wholly and continuously disables and prevents the insured from performing any and every duty pertaining to any business or occupation." Referring to this provision, the court charged the jury as follows: "The meaning of the words `wholly and continuously disables and prevents the insured from performing each and every duty pertaining to any business or occupation' *Page 514 is not that plaintiff must have been disabled so as to prevent her from doing anything whatsoever pertaining to any duty of any business or occupation, but that she must be disabled to the extent that she could not do any and every duty pertaining to any business or occupation. She might be able to do a part and not be able to do all, and because she was not able to do all be deemed to be wholly disabled from doing any and every kind, provided, of course, that she was so disabled as to be prevented from doing substantially all the necessary and material things in any occupation requiring her own exertions in substantially her customary and usual manner of so doing. She might be able to do personally minor and trivial things, not requiring much time or physical labor, and through others, acting under her direction, to do heavier things requiring physical exertion, which in the ordinary and proper performance of her duties in any occupation which she had or might theretofore have done personally and yet, because of inability to do heavier things and more material things personally, be said to be wholly disabled within the terms of her policy; provided further, that the things she was unable personally to do would constitute substantially all of the duties of the employment, if any, in which she was engaged at the time of her injury or any occupation into which she might have entered." This instruction is, for all practicable purposes, a copy of an instruction which this court approved in Commercial Travelers,etc., Assn. v. Springsteen (1900), 23 Ind. App. 657, 55 N.E. 973, 975. The policy in the Springsteen Case provided that no claim should accrue upon the contract of insurance except when the injury should "immediately and wholly disable the insured from performing any and every kind of business pertaining to his occupation" as manager of a certain store. The policy in the instant case provides for the payment of a *Page 515 monthly indemnity for the period of total loss of time during which the injury alone "wholly and continuously disables and prevents the insured from performing any and every duty pertaining to any business or occupation." As was said by this court in the case just cited, p. 662, "The expressions of the courts as to what constitutes total disability are not in harmony." After a review of the authorities, the court adopted the liberal rule of construction which holds that where the language of a policy of insurance is capable of two constructions, the one most favorable to the insured would be adopted, and approved the instruction there involved. As was said in American Liability Co. v. Bowman (1917),65 Ind. App. 109, 120, 114 N.E. 992, 995: "The rule prevails in this and most jurisdictions that provisions in a policy for total disability, irrespective of the technical variations in the language employed, should be given a rational and practical construction; that the phrase `total disability' is a relative term, depending in a measure upon the nature of the employment, the capabilities of the injured person, and likewise the circumstances and peculiar facts of each particular case. It is usually a question of fact to be determined by the court or jury trying the case and was such question in the case at bar." May on Insurance (4th ed), § 552, says that "wholly disabled" is equivalent to "quite disabled" and that though the insured "may do certain parts of his accustomed work, and engage in some of his usual employments, he may yet recover, so long as he cannot, to some extent, do all parts, and engage in all such employments." In Clarke v. Travelers Ins. Co. (1920), 99 Vt. 383, 111 A. 449, 450, the insured was indemnified against loss if the injury "shall . . . wholly, and continuously disable and prevent the insured from performing any and *Page 516 every kind of duty pertaining to his occupation." It was there held that "total disability" did not mean absolute physical inability to transact any kind of business pertaining to the insured's occupation, but disability from performing the substantial and material acts connected with such occupation. In Hohn v. Inter-State Cas. Co. (1897), 115 Mich. 79, 72 N.W. 1105, 1106, the injuries insured against were such as should "immediately, continuously and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation." It was there held that the insured was not prevented from recovery as for a total disability because he went to his place of business for several days after the accident, when he was practically unable to perform any work because of his injuries, and after a few days was forced to remain at home several weeks. In Young v. Insurance Co. (1888), 80 Me. 294, 13 A. 896, 897, the court, in construing a contract of insurance similar to the one involved in the instant case, said: "The object to be accomplished by this contract was indemnity to the plaintiff for loss of time from being wholly disabled from prosecuting his business by an injury received as specified in the policy. He was not able to prosecute his business unless he was able to do all the substantial acts necessary to be done in its prosecution. If the prosecution of the business required him to do several acts and perform several kinds of labor, and he was able to do and perform one only, he was as effectually disabled from performing his business as if he could do nothing required to be done, and while remaining in that condition, he would suffer loss of time in the business of his occupation." There is no material difference between the provision now under consideration and involved in the instant case and the provisions of the contract involved in Commercial Travelers, etc., Assn. v *Page 517 Springsteen, supra, and Young v. Insurance Co., supra. See also, Gross v. Commercial Cas. Ins. Co. (1917), 90 N.J.L. 594, 101 A. 169; Fitzgerald v. Globe Indemnity Co. (1927),84 Cal. App. 689, 258 P. 458; Fagerlie v. New York Life Ins.Co. (1929), 129 Or. 485, 278 P. 104; Turner v. Fidelity Cas. Co. (1897), 112 Mich. 425, 70 N.W. 898, 38 L.R.A. 529, 67 Am. St. Rep. 428. The court did not err in giving appellee's requested instruction No. 2. We do not deem it necessary to enter in a review and discussion of the refusal to give certain of appellant's requested instructions. We have given each of them careful consideration and find no error in the refusal to give any of them. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426423/

Appellee brought this action for additional salary due him as clerk of the St. Joseph Circuit Court for the years 1930, 1931 and 1932. From the judgment in favor of appellee and against appellants, appellants appealed. Questions presented on this appeal are identical with those in the case of Crowe v. Boardof County Commissioners of the County of St. Joseph, number 26,955, decided this term. Upon authority of that case the judgment is affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426426/

This is an action to remove appellant from the office of township trustee. Appellant filed what is denominated an "Objection of the Defendant to the Legal Sufficiency of the Accusation," which amounts to, and must be treated as, a demurrer, and another pleading, which is termed "Plea to the Jurisdiction of the Perry Circuit Court," in which the jurisdiction of the court is questioned. Pending a final determination of the cause, an original action was begun in this court in the name of the State on the Relation of Walter Weatherholt, seeking a writ prohibiting the Perry Circuit Court from taking further action in connection with the proceeding. The writ was denied, and it was held that the complaint was sufficient to give the court jurisdiction of the cause, and that the legal sufficiency of the complaint, as against demurrer or similar pleading, was to be determined by the trial court. Stateex rel. Weatherholt v. Perry Circuit Court (1933),204 Ind. 673, 185 N.E. 510. Thereafter the court overruled appellant's pleading questioning its jurisdiction and his pleading questioning the sufficiency of the complaint. Thereupon appellant refused to plead further, and there was judgment upon the verified complaint, removing him from office and for $500 in favor of the prosecuting attorney: Appellant assigns as error: "1. The court erred in overruling appellant's written objections to the legal sufficiency of the accusation or complaint. *Page 527 "2. The court erred in overruling appellant's plea to the jurisdiction of the court, over the subject matter." The jurisdictional question is settled by the decision of 1. this court in State ex rel. Weatherholt v. Perry Circuit Court, supra. The statute, section 12139, Burns' Ann. St. 1926, § 49-836, Burns 1933, provides: "When an accusation in writing, verified by the oath of any person, is presented to a circuit court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered, or to be rendered, in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at any time not more than ten nor less than five days from the time the accusation was presented; and on that day, or some other subsequent day not more than twenty days from the time the accusation was presented, must proceed to hear, in a summary manner, the accusation and evidence offered in support of the same, and the answer and evidence offered by the party accused; and if, on such hearing, it appears that the charge is sustained, the court must enter a decree that the party accused be deprived of his office, and must enter a judgment for five hundred dollars in favor of the prosecuting officer, and such costs as are allowed in civil cases." The complaint, after alleging that appellant is trustee, charged with the duty of employing teachers, and that two certain teachers were duly licensed to teach school and had requested and had made application with appellant for employment, which requests and applications have been repeatedly refused, alleges that: "On or about the 20th day of August, 1932, the defendant refused and neglected to perform the official duties pertaining to his office, Township Trustee, of said township *Page 528 in these things, to-wit: that he wrongfully, feloniously and corruptly advised and solicited said Susie Martin and Ira Carter to unlawfully employ, hire, engage and contract with one Lavina Weatherholt, who was at said time, and now is, the wife of the defendant herein, with respect to his official duty, and influence the defendant's action, and to employ said teachers to teach in said term of school or some part thereof; that said teachers did thereafter and before said school term commenced, act upon the advice and solicitation of said defendant, hired, employed, engaged and contracted with said Lavina Weatherholt, to persuade, influence and obtain said defendant to employ said Susie Martin and Ira Carter in a position as teacher in said township schools; that each of said teachers did pay said Lavina Weatherholt the sum of Five ($5.00) Dollars in cash as a part consideration for said contract and did then and there execute a contract with said Lavina Weatherholt for a fee to be paid to her by said teachers a sum equal to Ten Percent (10%) of the total amount received from said employment for said school term; that said teachers were not and at this time do not have a copy of said contract and for said reason cannot make said contract a part of this complaint; that by, through and under influence, and solicitation of said Lavina Weatherholt and in completion of an understanding by and between the defendant and Lavina Weatherholt and in pursuance of said unlawful solicitation of said teachers said defendant did hire, employ and contract with said teachers for the said school term or some part thereof." It is contended by appellant that: "Although the complaint proceeds upon the theory of refusal and neglect on the part of the defendant to perform the official duties pertaining 2, 3. to his office as township trustee, in the matter of the employment of *Page 529 teachers, it wholly fails to state any facts tending to show or disclose any refusal or neglect on the part of the defendant to perform any official duty pertaining to his office." It was the duty of the trustee to select and employ teachers and to consider applications for employment without demanding that any compensation for so doing should be paid to him, or to any member of his family, or to any other person. A refusal to consider applications for the position as teacher until an unlawful condition was complied with was a refusal to perform an official duty pertaining to his office. If an officer whose duty it is to act refuses to act until a sum of money is paid to him, or to someone else, he has refused to do his duty, and it does not suffice to say that he afterwards did the thing which it was his duty to do after compensation had been paid to him or to some other person at his request. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426427/

Appellees brought this action against Bridget McGoran, appellant herein, and James McGoran, one of the defendants below, to recover damages for injuries to the property of appellees. The complaint was in two paragraphs. The first paragraph alleged, in substance, that appellant was the owner of an automobile and that James McGoran, on April 1, 1923, on behalf of appellant, was driving said automobile on North Seventh street in the city of Terre Haute, Indiana; that said James McGoran, while operating said automobile, and while under the influence of intoxicating liquor, negligently, carelessly and wrongfully drove said automobile on the premises of appellees and against a house owned by them, damaging the same in the sum of $300. The second paragraph of complaint alleged, in substance, that on April 1, 1923, appellant was the owner of a Jewett automobile purchased and used for pleasure driving for herself and members of her family; that James McGoran was a member of appellant's family and lived with her; that on said date, with the authority and consent of appellant, James McGoran was driving said automobile on North Seventh street, a public highway in the city of Terre Haute, and was operating said automobile carelessly and negligently and, while so doing, injured appellees' real estate, etc. *Page 109 Demurrers filed to the complaint were overruled. There was a trial by the court, and a special finding of facts and conclusions of law, resulting in a judgment for appellees in the sum of $200 and costs, against both appellant and James McGoran, from which judgment, appellant alone appealed. A motion for a new trial was overruled. The errors assigned for reversal are: the action of the court in overruling the demurrers to the complaint; the court's conclusions of law; and the action of the court in overruling the motion for a new trial. The only error assigned which we need consider here is that arising upon the exceptions to the conclusions of law. In the special finding of facts, the court found that on April 1, 1923, appellant was the owner of a Jewett automobile which she had purchased and was using for the pleasure of herself and her nephew James McGoran; that appellant did not operate said automobile herself; that James McGoran was a nephew of appellant, whom she had raised, and over whom she had had custody and supervision from his infancy until he became of age, and that appellant exercised supervision over him until after April 1, 1923; that, at that time, they resided in the city of Terre Haute, as a family, of which appellant was the head; that James McGoran was past the age of twenty-one years on April 1, 1923, and paid a part of his earnings to appellant for the maintenance of the family and as payment for board and room; that on April 1, 1923, said James McGoran, with the consent, authority and permission of appellant, was driving said automobile for his own pleasure, and, while so driving, negligently and carelessly drove against the house of appellees and thereby damaged the same in the sum of $200. Upon the foregoing facts, the court stated its conclusions *Page 110 of law and rendered a judgment for appellees against appellant and James McGoran in the sum of $200 and costs. Under the facts found and stated above, the controlling question is whether or not the appellant is liable under the law as applied to cases of this character. The first and fourth conclusions of law, as stated by the court, are as follows: "(1) The law in this case is with the plaintiffs. (4) That the plaintiffs are entitled to recover in this action against the defendants Bridget McGoran and James McGoran, or either of them, the sum of Two Hundred Dollars ($200) together with the costs of this suit." Appellees insist that the application of the rule commonly known as the "family purpose doctrine" of liability of an owner of an automobile for family purposes should be applied, and cite authorities outside of this state to sustain their contention. The precise question involved has been decided in the case ofSmith v. Weaver, Admx. (1919), 73 Ind. App. 350, 124 N.E. 503, cited by appellees and also by appellant, and upon the decision in that case, the judgment as to appellant herein must be reversed. The automobile was not driven, on the occasion in question, on business for the appellant, nor for her pleasure nor under her control, and she cannot be held liable under the law. See, also, Fisher v. Fletcher (1922), 191 Ind. 529, 133 N.E. 834, 22 A.L.R. 1392; Parker v. Wilson (1912), 179 Ala. 361, 60 So. 150, 43 L.R.A. (N.S.) 87; Doran v. Thomsen (1908), 76 N.J. Law 754, 71 A. 296, 19 L.R.A. (N.S.) 335, 131 Am. St. 677;McGowan v. Longwood (1922), 242 Mass. 337, 136 N.E. 72, 23 A.L.R. 617; Bretzfelder v. Demaree (1921), 102 Ohio St. 105, 130 N.E. 505; Arkin v. Page (1919), 287 Ill. 420, 123 N.E. 30, 5 A.L.R. 216. The judgment is reversed, with instructions to the *Page 111 court below to restate its 1st and 4th conclusions of law in accordance with this opinion, and to render judgment accordingly. Dausman, J., absent.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426428/

Judgment affirmed. *Page 720

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426406/

Appellees herein are husband and wife. Hereinafter they will individually be referred to as husband or wife. Appellants were the parents of the *Page 158 husband. The husband deserted his wife and four children in February, 1945. Subsequently, the wife brought this action against her husband and the appellants. Her complaint, in substance, alleged the husband deserted her and their four minor children without making provision for their support and maintenance. It further alleged the appellants, in January, 1941, agreed to and did loan the appellees money with which to purchase certain described real estate in St. Joseph County and to erect a dwelling for appellees thereon. To secure the payment to them of the monies so advanced it was agreed the title to said property should be and was taken in the name of appellants or in the name of appellant Fred Barber, and said appellants agreed to convey said property to appellees upon payment of the amount so loaned; that pursuant to said agreement appellees purchased the described real estate and built a dwelling thereon and have ever since lived and made their home therein; that the property is worth $2,500. The complaint concluded with the prayer that appellees be declared the owners of said real estate, that the deed be declared a mortgage, and that the interest of the husband be ordered sold and proceeds turned over to the wife for her maintenance and the support of the children. Appellants filed answer of admission and denial under the rules. Appellant Fred Barber filed cross-complaint against appellees averring he was the owner of such real estate; that their claim was unfounded and constituted a cloud on his title. He prayed that his title to said property be quieted. The wife filed a denial of the averments of the cross-complaint. Upon proper affidavits, service by publication was had on the husband on both the complaint and cross-complaint. On the verified petition of appellant Fred Barber, the trial *Page 159 court appointed an attorney to represent the husband. Said attorney filed an answer of denial to the complaint and cross-complaint. After trial the court found for appellee on her complaint against her husband and the appellants. It found against appellant Fred Barber on his cross-complaint. The judgment was, in substance, as follows: That appellees are the owners in fee simple of the real estate described; that the deed mentioned and described in the complaint is a mortgage given appellant Fred Barber to secure payment of $749.70; that appellant Edith Barber has no right, title or interest in and to said real estate; that appellant Fred Barber take nothing on his cross-complaint; that said real estate be appraised, sold at private sale for cash, and out of the proceeds the lien of appellant Fred Barber in the sum of $749.70, less costs, be paid. After payment the balance of proceeds be paid appellee Violet F. Barber for the support of herself and children. From this judgment appellants appealed to this court, assigning as error the overruling of their motion for a new trial. The specifications in this motion are: (1) That the decision of the court is contrary to law; (2) the decision of the court is not sustained by sufficient evidence. Appellants contend the parol agreement is within the statute of frauds and therefore unenforceable. They assert the fact appellees took possession on completion of the dwelling does not take the contract out of the statute because there was no valid contract until such time as there was a meeting of the minds and until there was an agreement as to the amount of the loan, and when, how and in what manner it was to be repaid. They further contend there was no pre-existing debt at the time of the conveyance of the land from a third *Page 160 party to them; that possession was taken preliminarily during negotiations and before the negotiations ripened into a contract; that a mortgage presupposes a liquidated amount and the time and manner of payment. In this jurisdiction in actions of this nature it is well established that parol evidence may be used to show that a conveyance of land absolute on its face is in fact a 1. mortgage. Turpie v. Lowe (1887), 114 Ind. 37, 15 N.E. 834; Brown v. Follette (1900), 155 Ind. 316, 58 N.E. 197; Matchett v. Knisely (1901), 27 Ind. App. 664, 62 N.E. 87; Calahan v. Dunker (1912), 51 Ind. App. 436, 99 N.E. 1021. "If a person who has contracted for the purchase of land procures another to lend him the money necessary to make the payments, or to advance it for him, and has the deed made to the latter, with an agreement that he will convey the title to the former on repayment of the amount advanced, the transaction will amount to an equitable mortgage if it was the understanding and intention of the parties that the one should become debtor to the other for the money advanced, and that the land should be held merely as security for this debt. If this was their contract, the form in which they may have cast the agreement is immaterial." 41 C.J. (Mortgages), p. 297, § 40. We are of the opinion that if the evidence was sufficient to show the parties entered into a parol agreement by which appellants agreed to convey this property to appellees 2-5. upon the payment of the money advanced by them, there was an enforceable contract. This requires an understanding of what evidence is necessary to sustain such an action. The question of whether a deed absolute in form is in fact a mortgage depends, of course, upon the intention of the parties at the time of its execution. This intention may *Page 161 be shown either by written or parol evidence. Beidelman v.Koch (1908), 42 Ind. App. 423, 85 N.E. 977; Calahan v.Dunker, supra. Inadequacy of consideration is a fact which tends to establish that the deed is a mortgage. White v.Redenbaugh (1908), 41 Ind. App. 580, 82 N.E. 110; Calahan v.Dunker, supra. There is evidence tending to show a mortgage when the party asserting such fact retains control, possession and use of the property, particularly where no rent was fixed or paid. And where such party makes improvements which a tenant would not likely make. Also where the grantee has not exercised any control or ownership in relation to the property. 41 C.J. 340, § 104. "A mortgage may be given as security for an unliquidated claim, or for whatever sum may be due from the mortgagor to the mortgagee at a given time, or for all and every kind of indebtedness which may exist between the parties or be thereafter contracted, without any specification or limitation as to amount; and in such cases it may be enforced for whatever sum the holder of the mortgage may prove to be due and payable." 41 C.J. 457, § 349. See also, 41 C.J. 323, § 86. We next proceed to a consideration of the evidence. While there is a sharp conflict, we are permitted to consider only that most favorable to appellee. There was evidence from which the 6. court could have found that appellant Fred Barber told the appellees he would loan them the money to purchase a lot and finance the cost of the lumber for building a house; that he would have the deed put in his name to protect himself. He agreed when appellees paid back the money to deed the property to them. Pursuant to this agreement the appellees selected the lot here involved. Appellant Fred Barber paid the purchase price, the deed being made to him. Subsequently, appellees *Page 162 built a house with four or five rooms on this lot and since June, 1941 have lived therein. Appellant Fred Barber paid $190 for the lot and advanced the further sum of $559.70 for materials used in the house. He at times helped the husband in construction work on the house. The appellees paid all other labor and material bills. They gave to appellants the money to pay taxes and insurance. The property is now worth $2,500. We are of the opinion this evidence is sufficient to establish a binding contract between appellants and appellees by the terms of which the deed here involved became and was in fact a 7. mortgage. Therefore, the judgment of St. Joseph Superior Court No. 1 is affirmed. NOTE. — Reported in 70 N.E.2d 185.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426407/

This is a proceeding arising in the matter of the receivership of the Elliston Gravel Company, wherein the First National Bank of Vincennes, appellant, filed its petition for permission to file with said receiver a claim upon six promissory notes executed by the Elliston Gravel Company to appellant. The court refused to grant said petition and refused to permit appellant to file its claim with the receiver. *Page 406 The errors relied upon for reversal are the sustaining of the objections of certain creditors to the petition of the appellant for leave to file its claim, the overruling of the petition and application of the appellant for leave to file its claim, and the rendering of judgment against appellant on its said petition. On July 10, 1926, the transcript shows that the receiver filed and presented to the court a motion asking the court to fix the time for filing of claims in this receivership. On the same day, the transcript shows that the court sustained the motion and fixed the time for filing of claims in this receivership at 60 days from that date, and ordered the receiver to give due and legal notice thereof, and the only notice given was by publication in the Bloomfield News. On November 28, 1927, appellant filed its petition for permission to file its claim with the receiver. The petitioner further shows that the first information it had that a time limit for the filing of claims had been fixed was during the week beginning November 14, 1927, and that it made and filed this petition at the earliest possible date after it received notice that a time limit had been fixed, and filed affidavits of W.H. Hill, C.B. Kessinger and J.B. LaPlant in support thereof. Objections filed by certain creditors to the claim recite, among other facts, that, in accordance with said order, notice thereof was given by the publication of a notice in the Bloomfield News, a weekly newspaper of general circulation printed and published in the town of Bloomfield, in Greene County, State of Indiana, on July 15, 22, 29 and August 5, 1926, respectively, and that due proof of the publication was filed in said cause and court September 22, 1926, which said notice and proof of its publication are made a part thereof; that, notwithstanding the facts above mentioned, neither the First National Bank of Vincennes nor its attorneys made any attempt *Page 407 to file its claim in this cause or with the receiver until November 3, 1927, and never made application for permission to file it until November 28, 1927; that, during all the time from the appointment of the receiver, March 19, 1926, until the filing of the application November 28, 1927, the law firm of Kessinger and Hill were attorneys for the receiver in this cause, and knew of the existence of the claim sought to be filed, and knew of the appointment of the receiver, and were compelled to take notice of the action of this court in this cause in all things, including the fixing of the time in which to file claims; that the receiver has had in his hands and available for distribution to the creditors of the Elliston Gravel Company a sum of more than $10,000 since July 14, 1927, and that both the receiver and Kessinger and Hill, his attorneys, have been requested prior to September 1, 1927, to declare a dividend to the creditors and distribute the funds available for that purpose; that no dividend has been declared or paid, and that no report or recommendation of claims filed or as to the allowance of the same has been made to the court. The objectors say they are informed that dividends have been held up on account of the failure of the First National Bank of Vincennes to file its claim with the receiver, and that the receiver and his attorneys, Kessinger and Hill, intend to further delay the distribution to creditors until this matter is determined. The record of the court shows that the court had had submitted to it the verified petition of appellant for permission to file its claim with the receiver, together with the affidavits in support thereof, and also had had submitted to it the verified objections of the objecting creditors theretofore filed, and also heard testimony in evidence in the matter of the petition of appellant for permission to file its claim with the receiver, and, on said day, the court sustained the objections of the objecting *Page 408 creditors to the petition of appellant for leave to file its claim with the receiver, and, on said day, the court sustained the objections of the objecting creditors to the petition of the appellant for leave to file its claim with the receiver of the Elliston Gravel Company, to which ruling appellant at the time excepted, and, at the same time, the court overruled the petition of appellant for leave to file its claim against the Elliston Gravel Company with the receiver and refused to permit said claim to be filed, to which ruling of the court, appellant at the time excepted. We are unable to find any statute in Indiana requiring a court of equity handling a receivership to make an order fixing a time limit for filing claims, barring thereby any person who has a legitimate claim against the estate. It has been held in some jurisdictions that courts of equity have inherent power to prescribe a time limit within which claims must be filed, and to bar all claims not filed within the limit. 2 Tardy's Smith, Receivers (2d. ed.) pp. 1, 161; Pottlitzer v. Citizens' TrustCo. (1915), 60 Ind. App. 45, 108 N.E. 36; Phelan v. MiddleStates Oil Corporation (1926), 15 F.2d 88, 89;Pennsylvania Steel Co. v. New York City R. Co. (1915), 229 Fed. 120; Leadville Coal Co. v. McCreery (1891),141 U.S. 475, 12 Sup. Ct. 28, 35 L.Ed. 824; Dillingham, Rec., v. Kelly (1894), 8 Texas Civ. App. 113[8 Tex. Civ. App. 113], 27 S.W. 806;United States Trust Co. v. New Mexico (1902), 183 U.S. 535 at p. 541, 22 Sup. Ct. 172, 46 L.Ed. 315. Appellant herein contends that, if a reasonable excuse for delay in filing claim is shown, the creditor will be admitted at any time before the actual distribution, or even after partial distribution, if there be surplus in the hands of the receiver so as not to interfere with the payments already made, citingGrinnell v. Merchants Ins. Co. (1863), 16 N.J. Eq. 283;Buzzell v. Aetna Indemnity Co. (1917), 91 Conn. 359,100 A. 32; Pattberg v. Pattberg *Page 409 (1897), 55 N.J. Eq. 604, 38 A. 205; Bank of Washington v.Creditors (1879), 80 N.C. 9; In re Ziegler (1904), 98 App. Div. 117, 90 N.Y. Supp. 681; Clark, Law of Receivers § 759; Inre Marx (1899), 43 Atl. (N.J. Ch.) 981. We are of the opinion that courts of equity have the right to control the administration of a receivership therein, and the orders of the court will not be disturbed unless an 1, 2. abuse of discretion is clearly shown. In the case at bar, the claim of appellant seems to show it to be the largest creditor of the Elliston Gravel Company; that no distribution had been made of any of the assets at the time application to file its claim was made. Appellees charge that the delay was occasioned by appellant trying to collect the debt upon collateral security that it held. If this is true and appellant had been successful in collecting its debt in this manner, it might have been to the advantage of the other creditors. We are of the opinion that it was an abuse of discretion on the part of the trial court to deny the right of the appellant to file its claim. Judgment reversed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426408/

This is an action by Ethel Wolford against the Kokomo Life and Accident Insurance Company to recover on a policy of insurance insuring Arthur Wolford, husband of the plaintiff, against accident and sickness. The complaint alleged that the insured met his death by accident in an automobile. The policy covered death resulting "directly and independently of all other causes, from bodily injuries sustained through external, violent, and accidental means," and specifically provided that if the insured met "with any personal bodily injury which is effected directly and independently of all other causes through external, violent, and purely accidental means," and which resulted in loss of life, the insurance company would pay to his wife, Ethel Wolford, $500. A trial by jury resulted in a verdict and judgment in favor of plaintiff for $500. The error assigned is the overruling of appellant's motion for a new trial, under which appellant contends that the verdict is not sustained by sufficient evidence, and error in giving and refusing to give certain instructions. In support of the first contention, appellant insists the evidence does not show that the death of the insured was caused by an accidental bodily injury "effected directly and independently of all other causes." It is difficult to *Page 397 state with precision the grounds upon which appellant bases its first contention. As we understand the same, it seems to be that the insured's death was not caused by an accidental injury within the meaning of the policy and that the bodily injury suffered by him did not "directly and independently of all other causes" effect his death. Appellant and appellee disagree in their recital of the evidence and in their final analysis of the facts as disclosed by the evidence. As an appellate tribunal, we can look only to 1. the evidence tending to support the verdict, and where reasonable men might draw different inferences, one supporting the verdict and the other to the contrary, it is our duty to adopt the inference which supports the verdict. The facts directly and inferentially proved to sustain the verdict are, in substance, as follows: The insured was 49 years old at the time of his death; he was, and for a number of years had been, a skimmer in the casting department of the Pittsburgh Plate Glass Company at Kokomo; on December 30, 1925, he began his work at 6 o'clock p.m., at which time he complained of not feeling well; he worked about an hour when he quit work, saying he was going home; W.M. Thomas testified that he was sitting in his house reading a paper when he heard a crash and went to the door and saw an automobile up against a tree at the corner of his porch; that he spoke to the man in the car and got only a mumble out of him; it was dark and he could not see who it was; the man in the car was leaning over the steering wheel with his head down; the crank of the machine had hit the tree and cut a gash in it an inch to an inch and a half deep; did not think he could handle the man alone, so he called the police, who came in about 25 minutes and put the insured in the police car and took him away; after the police left, he looked at the identification card in the car and discovered *Page 398 it was the insured whom he had known for many years; the decedent's car was backed away from the tree but could not be run; the radius rod was bent so the car had to be pulled in; the tree was six to eight feet from the sidewalk; the witness saw no place in the street where there had been an accident and heard nothing until he heard the crash in question. Virgil Elliott was the police officer who responded to the call of Thomas. He testified that he found the insured sitting in the car bent over the wheel, with his hat on; the only remark he made was that he was sick; put him in the police car and took him to police station; he died before they reached the station; did not see any injury, blood or bruise about his body. Another policeman testified to about the same facts. Dr. Morrison was the coroner. He was called and investigated the cause of the death, and testified that the direct cause of the death was traumatic shock, with chronic myocarditis and arteriosclerosis as an indirect and contributing cause; that traumatic shock is a physical condition; that the case in question was the result of a blow or violence; that he thought the insured had hit a very sensitive area in his abdomen; that he believed this shock was sufficient to have caused the death regardless of any other condition, and that it was the cause of the death. It is not debatable but that there was sufficient evidence to warrant the jury in finding that the insured met with an accidental injury. The real question is: Was the evidence 2. sufficient to sustain a finding that the injury so received was the only active, efficient and proximate cause of his death? The cause of his death was a question of fact for the jury, and the finding of the jury must be sustained if there is any legitimate evidence to support it, and we hold the evidence is sufficient for that purpose, and that the verdict is not contrary to law. *Page 399 The next question relates to the giving and the refusing to give certain instructions. Instruction 9, of which complaint is made, defines a direct and proximate cause as the active and efficient cause that sets in motion a train of events which brings about a result 3-5. without the intervention of any force, started and working actively and efficiently from a new and independent source, and then informs the jury that, if it found the alleged sickness of the insured was the proximate cause of his death and that if there was no other active and efficient cause intervening, the plaintiff had failed to make out her case and would not be entitled to recovery; but that, if the jury found the alleged accident was the proximate cause of his death and that there was no other active and efficient cause intervening, she had established that the death of the insured resulted directly and independently of all other causes and was entitled to recover. The other instructions given of which appellant complains are along the same line. The instructions tendered by appellant, and which were refused, were to the effect that, if the insured was suffering from arteriosclerosis and myocarditis and that his death resulted from traumatic shock caused by external, violent and accidental means jointly and in conjunction with such disease, she could not recover. One of such proffered instructions was to the effect that if his bodily infirmities were aggravated by the accident and that the accidental injury and his infirmities contributed to his death, there could be no recovery. In Continental Casualty Co. v. Lloyd (1905), 165 Ind. 52, 73 N.E. 824, the liability was limited to "bodily injuries effected through external, violent and purely accidental causes — such injuries as shall, solely and independently of all other causes, necessarily result in death within ninety days." In discussing the policy there involved, the court said: "The causes referred to *Page 400 in this class of instruments relate to proximate, and not remote, causes. . . . When two or more causes contribute to an injury, where there is doubt, or the facts [are] of a character that equally prudent persons would draw different conclusions therefrom, in such cases, which of the contributing causes is the efficient, dominant, proximate cause, is a question to be submitted to the jury." And, on page 61, the court said: "And it makes no difference whether it (the jury) found that the cause closest [to] the death was hemorrhage of the brain, or an organized blood clot within the walls of the cerebral artery. It had the right to find that the accidental fall was the cause that put his life in jeopardy, because it incited the fatal energy of the tumor, which was at least dormant, and would have remained so for an indefinite period, and, perhaps, until death from some other cause would have supervened. The tumor had impaired the resisting strength of the artery, but had not effected immediate danger to life. It was proper under the evidence for the jury to view the impairment as a condition, and not as a cause, and to find that the fall was the originating, efficient, direct and proximate cause of death; that is, that the fall set in motion a force that progressed upon present existing conditions in natural, usual sequence to effect the fatal result." The contention in that case was that an artery had been impaired by a tumor; that the insured's death was caused partly by the accident and partly from the diseased condition of the artery. The court there held that the causes mentioned in the policy were the proximate and not the remote causes. So, in the instant case, the causes referred to in the policy were the proximate or direct causes and not the remote cause. On the authority of Continental Casualty Co. v. Lloyd, supra, we hold the court did not err in giving or in *Page 401 refusing to give the instructions of which complaint is made. Affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426409/

This action was brought by the appellee against appellants Bertha Michalik and her husband George Michalik, to recover judgment for certain amounts of money which appellee alleges he loaned to both of the Michaliks. Both defendants to the complaint *Page 326 filed an answer to the several paragraphs thereof in general denial. Defendant George Michalik filed an additional pleading, which he denominated a cross-complaint, but since he assigns no error on appeal, and by this additional pleading sought relief against Jacob Pazdur only, there is no need to state its averments. The cause was submitted to a jury for trial upon the issues formed by the third, fourth, amended seventh, and the amended eighth paragraphs of complaint, and the answers thereto. All other paragraphs of the complaint were dismissed on motion of plaintiff, the appellee Pazdur. The jury returned its verdict in favor of appellee, and against both Bertha and George Michalik, for the sum of $4,500.00. Judgment on the verdict followed. In due course, Bertha Michalik filed her motion for a new trial, assigning as causes therefor, among others, that the verdict of the jury is not sustained by sufficient evidence, and that the verdict of the jury is contrary to law. This motion was overruled, appellant excepted, and thereafter perfected this appeal as a term-time appeal, assigning as error the action of the court in overruling her motion for a new trial. It is contended by appellant that the evidence is wholly insufficient to sustain the verdict, and after reading the entire evidence from the transcript, we agree with this 1. contention. We find evidence to prove that on four different occasions appellee Pazdur delivered to George Michalik certain checks, aggregating in amount $4,372.18, which were endorsed by said Michalik and thereafter cashed from funds owned by Pazdur, but none of said checks were payable to Bertha Michalik, or to her and her husband George, nor does her endorsement appear upon any one of them. There is no written evidence of any loan ever made by appellee to her, nor is there any evidence tending to prove that, prior to the transactions between her husband *Page 327 and Pazdur, she had ever solicited the making of the claimed loans, or any one of them, or had any negotiations concerning same with Pazdur. There is also an entire lack of evidence to show any authority on the part of her husband to borrow any money from the appellee on her account; nor does it appear, from any evidence given by any witnesses testifying, that any such representation was made to appellee by the said George Michalik. In addition to the foregoing, it may also be stated that there is no evidence to prove that the proceeds of any one of the alleged loans, or any part of said proceeds, ever came into the possession of Bertha Michalik. It is true that appellee Pazdur, while testifying, stated that he made the claimed loans to both George and Bertha Michalik, yet when he states the facts in connection with the respective loans, which he purports to do, it clearly appears that his prior statement concerning making the loans to both is but a conclusion on his part, and that the loans here involved were made only to the said George Michalik. There is some evidence disclosed by the record, and upon which appellee relies, as to certain statements made by appellant wherein she admitted she owed appellee money, but the witness testifying concerning these claimed admissions does not by her evidence purport to connect the statement alleged to have been made as referring in any way to the loans, or either of the loans, for which recovery is here sought. If it be conceded that appellant did say she owed appellee Pazdur money, and made the statement after the time when he claims the four transactions here involved occurred, this of itself would not be sufficient evidence to sustain the verdict, as it would fall far short of proving that she borrowed the particular amounts at the times claimed, and as alleged in the complaint. In reaching our conclusion herein, we have kept in *Page 328 mind the well established rule that this court will not weigh the evidence, nor reverse a judgment because of insufficiency 2. thereof where there is some evidence to sustain the decision of the trial court, or the verdict of the jury on all material questions involved. However, where, as in the instant case, there is no evidence to support the verdict of the jury on a material point, it is also well settled that the judgment will not be allowed to prevail. See McConnell v. TheCitizens' State Bank (1891), 130 Ind. 127, 27 N.E. 616. We have considered the evidence most favorable to appellee and, after so doing, conclude that it is not sufficient to sustain the verdict as against Bertha Michalik. The judgment against George Michalik is affirmed. The judgment against Bertha Michalik is reversed, with instructions to sustain her motion for a new trial.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426415/

Claim in two paragraphs filed in the Allen Circuit Court by appellees for damages, wherein it was charged by appellees that appellant unlawfully held over the possession of certain real estate, the property of appellees, after the expiration of the term stated in the lease between appellant's decedent and appellees. Said cause was venued to Whitley county and Honorable Howard L. Townsend was appointed special judge. The cause was submitted to a jury for trial, which resulted in a verdict for appellees in the sum of $7,951.50, upon which the court rendered judgment in favor of appellees against appellant. The error assigned for reversal is the court's action in overruling appellant's motion for a new trial, under which she concedes that she has only presented questions as to the court's action as to the instructions. The instructions, the action of the court as to which is challenged, were not made a part of the record by a bill of exceptions. After the jury's return of the verdict, the following entry appears in appellant's statement of the record: "It is ordered by the court that all instructions tendered, whether given or refused, are ordered filed and are now filed herein in the following words and figures to wit." (Our italics.) Then follow two sets of instructions, one tendered by appellees and the other by appellant. It readily appears by this statement that *Page 476 the only instructions filed were those tendered. It does not appear whether others were given. Appellees contend that before any error can be predicated upon giving or refusing instructions, it must affirmatively appear that all the instructions given are in the record, citing to sustain their contention, with other cases, Hart v. Williams (1922), 77 Ind. App. 454, 455, 133 N.E. 885; Hammond, etc., R. Co. v. Kasper (1919),71 Ind. App. 328, 330, 123 N.E. 360; Welch v. State (1924),195 Ind. 87, 90, 143 N.E. 354; Chicago, etc., R. Co. v. Wysor Land Co. (1904), 163 Ind. 288, 293, 69 N.E. 546. In the Hart case this court stated: "Appellee calls attention to the fact that the instructions given and refused were not made a part of the record by a bill of exceptions, and that, 1. while such instructions were ordered filed and made a part of the record, there is nothing in the record showing that the instructions set out in the record are all of the instructions that were given. This contention of appellee is well taken. No question is therefore presented as to the correctness of the giving or refusal to give instructions," citing numerous cases to sustain the holding. It nowhere appears that the instructions, either of appellees or of appellant, were tendered before the argument began, and appellees contend that before the refusal to give tendered 2. instructions can be reviewed, the record must affirmatively disclose that they were tendered before the argument began, and, in the absence of such a showing, it will be presumed that they were refused because they were tendered too late, if such a presumption is necessary to sustain the judgment, citing to sustain their contention, with numerous other authorities,Folson v. Buttolph (1924), 82 Ind. App. 283, 306,143 N.E. 258, wherein this court stated: "But in order to reverse the action of the trial court in refusing to give instructions, the record must show that the request *Page 477 was made before the commencement of the argument to the jury. We cannot look to statements in the request to determine when it was made, especially when the record fails to show when it was filed. . . . There being no affirmative showing that appellants tendered the instructions and requested their giving before the commencement of the argument, it will be presumed that they were not tendered in time." These failures properly to present errors as to the instructions are sufficient to preclude their consideration. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426416/

Action by appellee for damages caused by delay in transporting a carload of sugar from Edgewater, New Jersey, to Lafayette, Indiana. Trial by the court and special findings of fact upon which conclusions of law are stated favorable to the appellee. The sufficiency of the facts found to support the conclusions of law is the only question presented. The material findings of fact are, in substance: That *Page 582 the carload of sugar was delivered to the appellant, a common carrier, at Edgewater, New Jersey, on September 11, 1920, and arrived at Lafayette, Indiana, September 30, 1920, too late to be put upon that day's market; that a reasonable time for transporting the car by freight over the lines used was five days; that the shipment was made under a standard bill of lading contract, containing, among other things, the language, "Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within six months . . .;" that the goods were shipped over the lines of appellant to Huntington, Indiana, and thence via the Wabash Railroad to Lafayette, Indiana; that 823 lbs. of the sugar were lost out of said car in transit; that appellee filed notice of a claim for the shortage with the Wabash Railroad Company, which was paid. It is not contended that the evidence was insufficient to support the findings. The shipment was interstate and is controlled by the acts of Congress governing the rights of parties to such transactions, insofar as they apply. Pittsburgh, Cincinnati, Chicago 1, 2. St. Louis Ry. Co. v. Mitchell (1910), 175 Ind. 196, 91 N.E. 735. Concerning the federal statute in question, the United States Supreme Court said: "Chapter 176 requires any common carrier receiving property for transportation in interstate commerce to issue a receipt or bill of lading therefor, and makes it liable to the lawful holder thereof for any loss, damage or injury to such property, and contains certain provisos, the last two of which are: `Provided further, That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims *Page 583 than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: Provided, however, That if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.'" Barrett, etc., v. VanPelt (1925), 268 U.S. 85, 69 L.Ed. 857. Under these provisions, a shipper who seeks to recover for damage due to delay caused by carelessness or negligence need not give notice to the carrier, but if he would recover for loss of any, or all, of the goods shipped without showing carelessness or negligence, he must give the notice. Barrett, etc., v. Van Pelt, supra; Chesapeake Ohio Railway Co. v. Thompson Mfg. Co. (1926), 270 U.S. 416;Gillette Safety Razor Co. v. Davis, etc. (1922), 278 Fed. 864. Appellant concedes that the facts found show an unreasonable delay in completing the shipment, but contends that under the federal statute above referred to this is not sufficient to make out a prima facie case of negligence. In Chesapeake Ohio Railway Co. v. Thompson Mfg. Co.,supra, the court said: "There is no language in the statute from which a purpose may be inferred to vary or limit the common law rules governing proof of negligence as a fact in issue, and the shipper may follow these rules when he seeks to show that no notice of claim was necessary. The respondent therefore had the burden of proving the carrier's negligence as one of the facts essential to recovery. When he introduced evidence to show delivery of the shipment to the carrier in good condition and its delivery to the consignee in bad condition, the petitioner became subject to the rule applicable to all bailees, that such evidence makes out a *Page 584 prima facie case of negligence." That the same rules apply in actions for loss occasioned by delay is unquestioned, and this view is clearly discernible in the opinion in the case ofBarrett v. Van Pelt, supra. In that case, the trial judge found that a reasonable time for delivery was not more than 30 hours, and the court in its opinion says: "We think the evidence was not sufficient to sustain that finding or to show what was a reasonable time for such transportation and delivery." It was not the finding, but the evidence supporting it, which was held insufficient. The court having found that completion of the shipment was delayed an unreasonable time, the burden was upon appellant to show that the delay was not caused by its negligence, 3, 4. and a failure to find any fact on the subject is a finding against appellant. Piggly-Wiggly Stores, Inc., v. Lowenstein et al. (1925), 197 Ind. 62, 147 N.E. 771; Natl.Surety Co. v. State, ex rel. Heimann (1913), 181 Ind. 54, 103 N.E. 105; McAdams v. Bailey (1907), 169 Ind. 518, 83 N.E. 1057. It is contended by appellant that since both carriers acted under the same contract, appellee's action in filing a claim with the Wabash Railroad for the shortage of sugar and 5-7. accepting payment therefor, barred this action against the appellant under the rule that where one has a cause of action against another he must assert all of his damage in a single action and not split his cause of action. The object of the rule against splitting causes of actions is to prevent repeated litigation, protect the defendant from unnecessary vexation and the costs and expenses incident to numerous suits. It arose, not as an original legal right of the defendant, but as an interposition of courts to prevent multiplicity of suits upon principles of public policy. 1 C.J. 1107. In this case there were not two actions. The appellee *Page 585 merely gave the statutory notice of a claim for the loss of sugar which he was bound to give, unless he would assume the burden of proving negligence in connection with its loss. The carrier paid the loss claimed without disputing the amount, insofar as we can ascertain from the findings. He was not required to give notice of his claim for damages occasioned by delay, but could prosecute it without notice by assuming the burden of proving negligence. If the carrier had not paid for the shortage of sugar that claim could have, and doubtless would have, been joined in this action and there would have been no splitting of causes. The carrier having paid the claim, it was not necessary to join it in this action, and there is but one action and no splitting. The reason for the rule against splitting of actions fails in this case. There is nothing in the findings to indicate that the payment was intended by the parties as full satisfaction of all claims existing between them and, therefore, the payment would not bar this action under the accord and satisfaction rule. Under appellant's theory, appellee, having filed notice of its claim for the sugar shortage, could only preserve its right to sue for the delay by refusing to accept payment of the claim until after action was brought on both claims. Such a procedure would defeat the very purposes of the rule against splitting actions by complicating the issues when the action was finally brought. We find no error in the record. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426420/

On November 23, 1925, the appellant, while in the employment of appellee Hunt, received a personal injury by accident arising out of and in the course of his employment of which said employer had knowledge. At the time of the injury, the appellant was engaged in the work of excavating a cellar on property owned by the appellees Lloyd Dunlap and Rella Dunlap, and they were joined as defendants in appellant's application for compensation on the theory that they had employed the appellee Hunt, as a contractor, to do said work and had not exacted from him a certificate that he had complied with the provisions of § 68 (§ 9513 Burns 1926), as required by § 14, (§ 9459 Burns 1926) of the Workmen's Compensation Act. *Page 648 A final hearing before the full Industrial Board resulted in an award of compensation to the appellant, as against the appellee Hunt, and a dismissal of the application as against the appellees Dunlap, and from this award this appeal is prosecuted. The material portion of said § 14, supra, involved in this case is as follows: "The State, any political subdivision thereof, any municipal corporation, partnership or person,contracting for the performance of any work without exacting from the contractor a certificate from the Industrial Board showing that such contractor has complied with section 68 of this act, shall be liable to the same extent as the contractor for compensation, physicians' fees, hospital fees, nurses' charges, and burial expenses on account of the injury or death of any employee of such contractor, due to an accident arising out of and in the course of the performance of the work covered by suchcontract." (Our italics.) Upon the hearing of this cause, the appellees Dunlap defended upon the ground that they had not employed their coappellee to do said work; that they had not made any contract with said Hunt to do said work, and that, at the time of said accident, said Hunt was, as to them, a mere volunteer. This issue presented a question of fact for the determination of the Industrial Board; it found "that at the time of the said accident and injury to the plaintiff there was no contract 1. or other business relationship between the defendant Theodore Hunt, and the defendants Lloyd W. Dunlap and Rella Dunlap." There is abundant evidence in the record to sustain this decision, and the same is, therefore, conclusive upon us. The appellant also complains of the action of the Industrial Board in permitting appellees Dunlap on the *Page 649 hearing before the full board, to introduce further and 2. additional testimony in their behalf. In this, there was no error. The record discloses that said appellees duly filed their application in that behalf, disclosing the nature of the evidence which they desired to offer. It is provided in § 60 of said act (§ 9505 Burns 1926) that, on review of an award, the full board "shall review the evidence, or, if deemed advisable, hear the parties at issue, their representatives and witnesses * * *." This provision is in the interest of all parties, that justice may be done, and it is a matter within the sound discretion of the board whether, upon the showing made, it will upon such hearing permit the introduction of further evidence.Bimel Spoke, etc., Co. v. Loper (1917), 65 Ind. App. 479, 117 N.E. 527; Consumers Co. v. Ceislik (1919), 69 Ind. App. 333, 121 N.E. 832. Award affirmed. Dausman, J., absent.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426506/

This is an appeal from an award of the Review Board of the Indiana Employment Security Division. The appellant was the employer of the individual appellees. (Hereinafter the appellant will be referred to as the employer, the individual appellees as the employees, and the other appellee as the Board.) The employer and the employees had entered into a written collective bargaining agreement by the terms of which Local No. 151 of the U.A.W. acted as agent of the employees. The dispute herein arose over the construction of the following provisions of the collective bargaining agreement: Article XIII — Section 1 provides that all employees who, as of June 1, have completed one year or more of seniority shall be eligible to receive vacation pay, based on their length of seniority. *Page 433 Section 3 provides as follows: "All vacations shall be taken between June 1, and December 31, of each year, and must be arranged for in advance with the foreman." Section 6 provides as follows: "Vacation time preference shall be given to employees with the greatest seniority, whenever possible." Article XIV — Section 1, provides as follows: "The management of the Company's plants and the direction of the working forces, including the right to hire, discipline, suspend, discharge or transfer for proper cause or lack of work or for other legitimate reasons, is vested exclusively in the Company, provided that this will not be used for purpose of discrimination against any members of the Union, and provided further, that it does not conflict with any of the provisions of the agreement." The contract further provided for the arbitration of grievances arising under the contract. The facts from which the dispute arose are not in dispute and may be summarized as follows: On April 17, 1948 the employer posted the following notice in the plant: "The entire factory and office will be closed for a two-week vacation period, starting August 9th and ending August 21st. "All employees needed for any work during that period will be notified by their supervisors, and these employees can make arrangements with their supervisors to take their vacations later. "This notice is being given far enough in advance so that all employees who are eligible for a vacation will have an opportunity to make their plans accordingly." Subsequently the following notice was posted by the employees bargaining agent: *Page 434 "NOTICE MEMBERS OF UAW-CIO, LOCAL No. 151 YOUR LOCAL UNION OFFICE, 111 1/2 E. 5th St. WILL BE CLOSED DURING THE TWO WEEKS' VACATION PERIOD AUGUST 9th TO 21st INCLUSIVE REOPENING . . . AUGUST 23rd AT 8:00 A.M. NEXT REGULAR SCHEDULED MEETING — August 25th NEXT REGULAR STEWARD'S MEETING — September 15th A.C. Herbstreit, Secretary." Before the vacation period commenced the employer paid or made available to each employee for vacation pay, a check for approximately $115.71. A majority of the appellees accepted their checks. In June, 1948, one of the employees told his foreman he would like to have his vacation in November if possible. On July 26, 1948, the employees filed their claims for unemployment benefits for the weeks ending August 14th and August 21st, 1948. The employees alleged in their claims that they refused to accept the vacation pay checks which were offered to them by appellant in advance of the vacation period, because they did not choose to take their vacations during the two weeks ending August 14th and August 21st, 1948. The employer filed a statement of objections to the claims and contended that the said appellees were not unemployed during said period; that remuneration in the form of vacation pay was available for them in an amount in excess of allowable benefits; that it had the right to *Page 435 close its plant during said period and, further, that such available remuneration was deductible income to said claimants. A hearing was conducted on October 8, 1948 by the Referee, who heard evidence on the claims; a decision was rendered by him against the employees. The employees appealed to the Board and it (one member dissenting) reversed the Appeals Referee and made an award in favor of appellees. The fundamental purpose of our Employment Security Act is to alleviate the menace to the health, welfare, morale and public order of the individual and the people generally which is 1. brought about by the loss of wages or income from personal services when an employee is involuntarily out of employment. Burns' 1933 (1947 Supp.), § 52-1525; Walter BledsoeCoal Co. et al. v. Review Board (1943), 221 Ind. 16, 21,46 N.E.2d 477; White v. Review Board of Indiana EmploymentSecurity Division (1944), 114 Ind. App. 383, 52 N.E.2d 500. To accomplish this humane purpose a fund is established by the Act from which benefits are paid to those eligible therefor under its provisions. Section 52-1527, Burns' 1933 (1947 Supp.), provides as follows: "An individual shall be deemed `totally unemployed' in any week in which he was available for work but with respect to which no remuneration was payable to him for personal services." Section 52-1532a, Burns' 1933 (1947 Supp.), provides: "The term `employment' shall include: . . . (f) Periods of vacation with pay or leave with pay, . . ." Section 52-1528, Burns' 1933 (1947 Supp.), provides, in part: *Page 436 "`Remuneration,' wherever used in this act, unless the context clearly denotes otherwise, means all compensation for personal services, including, but not limited to, commissions, bonuses, dismissal pay, vacation pay." It cannot be denied that generally an employer has the right to determine the vacation period of his employees. Of course he may, by contract, restrict or relinquish that right. In the 2-4. instant case, by its contract with the agent of the employees, the employer limited his right to determine the time in which vacations could be taken to the period between June 1st and December 31st. The provision of Sec. 3, Article XIII of the agreement, that arrangements for vacation must be made in advance with the foreman, is a recognition that an employee did not have the right to be the sole arbiter of when, during such period, he could take his vacation. The provision of Sec. 6 of the same Article that "whenever possible" vacation time preference shall be given to the employees with the greatest seniority, does not give such preferred employees the sole and exclusive right to determine the time they will take their vacation. On the contrary, we are of the opinion that when this section is construed with Sec. 1 of Article XIV, it means that if the parties to the agreement could not mutually agree on the time for vacations the employer had the right to make such determination. The notice posted by the Union announcing it would be closed during this period indicates to us that it, as the agent of the employees, acquiesced in this action of the employer. Furthermore, it is to be remembered that under the terms of the agreement, if the employees or their duly authorized agent felt they were aggrieved by the action of the employer in this instance, they could have protested *Page 437 this action in the manner provided for therein. It is significant that neither the employees herein nor their agent took such action. It is undisputed that a majority of the employees herein received and accepted vacation pay in the sum of $115.71, and a like sum was at all times ready and available to each of 5. the other employees herein. We know judicially this was far in excess of the unemployment benefits payable for the period to those who, under the Act, would be entitled to such benefits. It is conclusively shown by the record herein that during the period in question the employees had received or there was available for them remuneration as vacation pay. They 6. suffered no loss of wages and therefore have not brought themselves within the class for whose benefit the law was enacted. Under such circumstances the award must be reversed. NOTE. — Reported in 88 N.E.2d 256.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426507/

The appellant was indicted in the Vanderburgh Circuit Court for murder in the first degree. It was alleged in the indictment that he killed *Page 58 and murdered one Ruby Mossie by cutting, stabbing and mortally wounding her with a knife, on September 11, 1924. Upon arraignment, he entered a plea of not guilty. He was tried by a jury and was found guilty of murder in the first degree. The verdict fixed his punishment at imprisonment in the state prison during life, and judgment was rendered on the verdict. He assigns as error that the court erred in overruling his motion for a new trial. The evidence shows that the woman named in the indictment as Ruby Mossie, but whose name was Ruby Mauzy, and who was twenty-one years old, was stabbed on September 11, 1924, between 4:30 and 5:30 o'clock p.m., in a field a short distance from the corner of Taylor and Lodge streets, in the city of Evansville. She died at St. Mary's Hospital in that city about 6:20 p.m. on that day. The last person who was seen with her prior to the time she was stabbed was the appellant. He was taken to police headquarters soon after her death, was questioned and was released. He was arrested the next morning; and on the afternoon of that day, after he had been taken to the morgue, where he viewed the body of the deceased, he signed by making his mark and swore to an extra-judicial written confession, in which he stated that he stabbed said Ruby Mossie. This confession was repudiated by him at the trial. After the trial and conviction of appellant, one Henry Chapman executed an affidavit in which he said that he stabbed the woman. That affidavit and supporting affidavits are made part of the motion for a new trial to show that appellant had newly-discovered evidence. The confession of appellant which the court permitted to be introduced in evidence is as follows: "Evansville, Indiana, September 12, 1924. "My name is Thomas Evans. I live on Gilbert Ave. just off the Henderson traction line. I am now 26 *Page 59 years old and will be 27 next February 14th. "I met Ruby Mossie about five weeks ago on the river in a family boat. I took her to my father's house, where I, my father and step-mother lived. I was supposed to pay five dollars a week board for her and five dollars for myself. I paid the board as long as I had the money. "She left my father's house last Sunday a week ago, on August 31st, 1924, and went to live with Frank Redman at 407 Lodge Ave. I was supposed to pay six dollars a week board for her there. I had not paid anything on this board yet. I saw Ruby every night when I came from work. "Yesterday I was not working. I went to Redman's about seven o'clock in the morning. I saw Annie Redman and Ruby. I stayed at Redman's until Ruby was ready to go with me to look for a job for myself. I went to the Evansville Veneer Co., the Dyer Packing Co. (now American Packing Corporation), the Graham Glass Co. and Schmadels Furniture Factory. "We then went back to Redman's. Ruby and I ate dinner there, eating bread, cakes and pies bought from a baker wagon. About two p.m. Ruby and I left. Ruby stopped at a store on Kentucky Ave. while I went down on Washington Ave. to look for a job. We then went back to Redman's. It was about 3:15 p.m. We stayed there until 4:30 p.m. We walked down Lodge Ave. toward Green River Road. On Lodge Ave., near the Henderson Traction Line, about two blocks from Redman's home, I pulled out my knife and opened it. I didn't say anything. Neither did Ruby. I stabbed Ruby Mossie in the neck with the knife. It is the same knife shown me by Chief Bell, and is a two blade bone handle knife. "After I stabbed Ruby I went down Lodge Ave. and cut across toward the saw mill on Green River Road, the *Page 60 shortest way to my home. I did not see Ruby any more that day, and I didn't go back to the place where I stabbed her. "This afternoon, when Mr. Heeger and Chief Bell took me to Schaefer's morgue and showed me the body of Ruby Mossie, was the first time I saw her after stabbing her. "I was jealous of Ruby because she started flirting with Joe Durbin and some other man whose name I do not remember. I made up my mind about a week ago to put her out of the way. She started flirting about a week and a half ago. "The clothes I had on when I stabbed her are at my home. I had a black coat with green checks, and a pair of blue overalls. "This is a true statement of how I killed Ruby Mossie, and is made of my own free will without any threats or promises from any person. "(SIGNED) Thomas Evans X His mark Witness W.J. Foley "Subscribed and sworn to before me this 12th day of September, 1924. "Walter J. Foley "CITY CLERK "This statement made in the presence of Ira C. Wiltshire, Supt. of Police, Emmett Bell, Chief of Detectives, and John Heeger. (Seal of the City Clerk affixed)." The first alleged error as cause for a new trial presented by appellant in his brief is that the court erred in giving to the jury of its own motion instruction number nineteen. This instruction is as follows: "The indictment charges the killing of Ruby Mossie, spelled R-u-b-y M-o-s-s-i-e. Some of the evidence introduced herein was to the effect that the deceased's name was Ruby Mauzy, spelled R-u-b-y M-a-u-z-y. I instruct *Page 61 you that on this point you may disregard the difference in the two names, and that proof of the killing of Ruby Mauzy, spelled R-u-b-y M-a-u-z-y, will support the charge in the indictment charging the killing of Ruby Mossie, spelled R-u-b-y M-o-s-s-i-e." Appellant says that this instruction was erroneous for the reason that it invaded the province of the jury; and he contends that the question as to whether the two names were idem 1-5. sonans was a question of fact for the jury and not of law for the court. Usually the question as to whether the doctrine of idem sonans applies to the name of a person as set forth in a pleading so as to avoid a charge of variance is one of fact for the jury. When, however; the issue is free from doubt, it may be determined by the court as a question of law. 19 R.C.L. 1336, § 15. Whether names are idem sonans is not a question of spelling, but of pronunciation, determined largely by usage. If the names, though spelled differently, sound alike, the court may determine that they are idem sonans and instruct the jury to disregard the variance in spelling. Underhill, Criminal Evidence (3d ed.) § 82; 29 Cyc 277; 21 Am. Eng. Ency. of Law (2d ed.) 317; Commonwealth v. Warren (1887), 143 Mass. 568, 569, 10 N.E. 178; State v. Williams (1900), 68 Ark. 241, 57 S.W. 792, 82 Am. St. 288. In People v. Spoor (1908), 235 Ill. 230, 85 N.E. 207, 126 Am. St. 197, 14 Ann. Cas. 638, where the court instructed that it was not material that the indictment spelled the name "Staunton" instead of "Stanton," the Supreme Court held that the trial court instructed properly, as the names were idemsonans. In Webb v. State (1919), 149 Ga. 211, 99 S.E. 630, the court instructed the jury that if it should appear that the name of the party killed was spelled "Welsh" instead of "Welch," that these two words were idem sonans in law, and therefore it was immaterial whether his name was spelled *Page 62 properly or improperly, so far as that feature of the case was concerned. It was decided by the higher court that there was no error in the instruction and that the law did not regard the spelling of names so much as their pronunciation or sound. InCleaveland v. State (1863), 20 Ind. 444, the court instructed as follows: "Geissler and Geessler are near enough alike to make no difference in this case." This court held that said instruction was correct. It has been held that a mere variance in the letters with which the names are spelled is not fatal, if they are pronounced substantially the same. People v. Gormach (1922), 302 Ill. 332, 134 N.E. 756, 29 A.L.R. 1120. Perfect identity of sound is not required. Practical similarity of sound is all that can be insisted upon. Puckett v. Hetzer (1910), 82 Kans. 726, 109 P. 285, 136 Am. St. 127. The appellant cites and relies upon Siebert v. State (1884), 95 Ind. 471, 478, in which the court refused to instruct the jury that certain names were not idem sonans. This court held that the refusal of the lower court was not error. The matter was not free from doubt, and it was a question of fact for the jury. He also cites Smurr v. State (1883), 88 Ind. 504. In that case, this court said: "It is a well-established principle in criminal prosecutions that the name of the injured party must be proved as charged in the indictment. It is not essential, however, that the evidence must show that the name is correctly spelled in the indictment. When substantially the same sound is preserved, the variant orthography will make no difference. . . . If the orthography in the indictment and in the evidence indicated a variance in the sound of the name of the deceased, it was, perhaps, a proper question for the jury to determine from the evidence whether the sound as disclosed in the testimony was the same as that indicated in the indictment, and upon this point the court gave the jury a proper charge." The Indiana cases relied upon by appellant are in *Page 63 accord with the general rule stated. Instruction No. 19 was a proper instruction in this case. Appellant claims that there was error because the court refused to give his tendered instruction No. 7. Said instruction reads: "While in cases where the fact is clearly established 6-8. that the person accused of murder, actually killed the person with whose murder he is charged, it is not imperative that any motive should be established; yet in any case evidence establishing or tending to establish motive or lack of motive upon the part of the accused to commit the crime with which he is charged is proper, and should be fairly considered by you. And in case where there is not direct evidence that the accused actually did the killing, but is purely circumstantial in its character, the question of the presence or the absence of motive becomes of greater importance." It is insisted by appellant that his confession was only circumstantial evidence. On that proposition, appellant relies upon Damas v. People (1917), 62 Colo. 418, 163 P. 289, L.R.A. 1917B 591. That case was overruled in Mitchell v. People (1924), 76 Colo. 346,232 P. 685, 40 L.R.A. 566, which holds that a confession is direct evidence and not circumstantial. In Underhill, Criminal Evidence (3d ed.) § 4, it is said: "Direct evidence of the crime is the evidence of an eye-witness that it was committed. This includes in criminal law the confession and admissions of the accused." And in Randall, Instructions to Juries § 228, the following is stated: "A confession or admission by the defendant of actual participation in the act charged against him as a criminal offense constitutes direct evidence of guilt. In accordance with the rule stated above, therefore, where there is evidence of such a confession or admission, the court will not be required to charge on circumstantial evidence." The confession of appellant was direct evidence and the motive *Page 64 for the crime is therein stated. In this jurisdiction, it has been held that it is unnecessary to establish a motive for the commission of crime as a motive may be inferred from the criminal act. Reynolds v. State (1897), 147 Ind. 3, 46 N.E. 31;Hinshaw v. State (1897), 147 Ind. 334, 47 N.E. 157; Wheeler v. State (1902), 158 Ind. 687, 63 N.E. 975; Morgan v. State (1921), 190 Ind. 411, 130 N.E. 528. In Porter v. State (1910), 173 Ind. 694, 91 N.E. 340, where there was evidence introduced by the defendant that the killing was accidental and there was no evidence of any motive, it was held that he was entitled to an instruction that if the evidence failed to show any motive for the alleged crime, such fact would be a circumstance which the jury should consider in determining its verdict. That case is quite different from the instant case where the defendant's motive was shown by direct evidence. In charging the jury, the court must state to them all matters of law which are necessary for their information in giving their verdict. § 2301 Burns 1926, § 2136 Burns 1914. As it was not essential that a motive for the crime be established, it was not necessary that the court instruct as to motive. Where there is evidence as to motive, same should be considered in determining whether the accused is guilty of the act charged. In State v. Aitken (1912), 240 Mo. 254, 144 S.W. 499, the court said: "Motive is a circumstance for or against the defendant as the jury may find that it does not or does exist; and is to be weighed together with all other facts and circumstances in evidence. It does not follow from the fact that a circumstance is material that a jury must be instructed especially upon that circumstance." In the instant case, evidence of motive like other evidence to prove the crime, is covered by the court's instructions. If the evidence as to motive tended to show premeditation on the part of the defendant, then that subject is fully stated in instructions *Page 65 No. 3 and No. 6 given by the court on its own motion. The court did not err in refusing to give said instruction. The refusal of the court to give instruction No. 9 tendered by the defendant, is complained of. Said instruction reads as follows: "Before the State can ask the conviction of this 9. defendant in this case it is required to prove beyond a reasonable doubt that the defendant, Thomas Evans, feloniously killed Ruby Mossie, or that he was present, aiding and abetting some other person in said killing at the time and place and in the manner and form alleged in the indictment. It is not sufficient if the State has enveloped the death of the said Ruby Mossie in mystery that is incapable of explanation, without inferring the defendant's guilt. To convict, the State is required to explain all mystery sufficient to remove all reasonable doubt and establish facts that are susceptible of explanation upon no reasonable hypothesis consistent with the defendant's innocence which points to his guilt beyond any reasonable solution and beyond all reasonable doubt." A similar instruction was given by the trial court in Hinshaw v. State,supra. However, in the instant case, it does not appear from the evidence that there were such mysterious circumstances as would require the giving of said instruction, which, in reality, is on the subject of reasonable doubt; and instructions Nos. 10, 12, 13, 14 and 15 on that subject, given by the court on its own motion, covered the subject-matter of the tendered instruction. In the Hinshaw case, this court said: "The court is not required to repeat an instruction or to give the law to the jury in the particular phraseology which the defendant sees fit to request. All the court is required to do is to express the law in its own language." It was not reversible error to refuse said instruction. *Page 66 Appellant complains because the court refused to give his requested instruction No. 3, which reads thus: "The court instructs you that there has been introduced in evidence a 10. confession of the defendant. The confession of the defendant made under inducement, with all the circumstances, may be given in evidence against him; but a confession made under inducement is not sufficient to warrant a conviction without corroborating evidence." Instruction No. 17 given by the court on its own motion was as follows: "I instruct you that a confession made under inducement is not sufficient to warrant a conviction without corroborating evidence." Same was sufficient. Error is alleged upon the refusal of the court to give instruction No. 8 requested and tendered by the defendant. Same is as follows: "There has been evidence introduced by the 11. State, tending to prove the theory of the State that Ruby Mossie was fatally cut and stabbed by Thomas Evans on Lodge Avenue, City of Evansville, County of Vanderburgh, Indiana; and that the cut and stab was inflicted on the evening of September 11, 1924. There has also been introduced evidence tending to show that the defendant on trial was at his home on Gilbert Avenue, County of Vanderburgh, Indiana, and not at the place of the tragedy on the evening of that day, ten public squares, more or less, from the place of the tragedy; and that the defendant did not wear a red sweater on the day of the tragedy, and that the party seen to leave the place of the tragedy was wearing a red sweater. If you believe the defendant on trial was away from the place of the tragedy and at his home on Gilbert Avenue during that time, or if you believe the defendant was not wearing a red sweater on the day of the tragedy and the party seen to leave the place of the tragedy was wearing a red sweater, or if you, or either of you, have reasonable *Page 67 doubt as to whether the defendant was not at the place of the tragedy, or that the defendant was not wearing a red sweater on the day of the tragedy, and that the party seen to leave the place of the tragedy wearing a red sweater was not the defendant herein, and after considering this in connection with all the evidence and circumstances of the case you entertain any reasonable doubt as to the guilt or innocence of the defendant then you cannot find the defendant guilty." The court's instruction No. 18 in regard to evidence introduced by the defendant to prove an alibi, taken in connection with the instructions given by the court on the subject of reasonable doubt, was all that the court was required to give on the subject covered by said requested instruction. The court refused to give defendant's requested instruction No. 11. This instruction was stated in almost the same language as his instruction No. 8. The legal principles therein set 12. out were given by the court in instructions given on its own motion and the refusal to give said instruction was not error. It is claimed by the appellant that the court erred in overruling his objection to the introduction in evidence of the confession of the defendant for the reason that the 13, 14. corpus delicti had not been proved. Prior to the admission of the confession in evidence, the death of the party alleged to have been killed was shown, and also the existence of a criminal agency as its cause. Appellant insists that no person had testified that the person named in the indictment had been murdered or killed. The fact that some of the evidence showed that the name of the person who was killed was not correctly spelled in the indictment was not fatal to the proof of the corpus delicti, as the names "Mossie" and "Mauzy" were idem sonans; and there was no doubt as to the identity of the person *Page 68 named in the indictment. Before the confession was admitted, evidence was heard by the court, in the absence of the jury, regarding same. The trial court's decision on the admissibility of a confession, made upon conflicting evidence will not be disturbed on appeal. Thurman v. State (1907), 169 Ind. 240, 82 N.E. 64. This alleged error is not sustained. The appellant contends that his motion for a new trial should have been granted on account of newly-discovered evidence, which is one of the causes stated in said motion. He claims 15-18. that it could not have been discovered before the trial with reasonable diligence. As a part of said motion, is the affidavit of Henry Chapman, in which the following is stated: He knew Ruby Mauzy when she lived in a tent with Aubrey Quinn in the summer of 1924. About a week before Ruby Mauzy was killed, Quinn told him that he would give him ten dollars and a knife if he would kill her. He wanted her killed because she was running around with other men. Affiant had arranged to meet her about 3 o'clock on the afternoon she was murdered. He saw Thomas Evans and the woman kiss each other good-bye and Evans then left her. After that, Chapman met her and they had a quarrel and she tried to hit him. He grabbed her with his left arm around the neck and stabbed her in the neck and she fell to the ground. He then ran away, and at the wagon bridge at the Maley and Wert old mill, he took off the long, red sweater which he was wearing and put it under his arm. Just across the bridge that crosses Pigeon creek on Dixie Bee concrete road, he burned his red sweater and washed his bloody hands. He then walked up the road toward Princeton and caught a truck and rode into Princeton. The next day, he looked for work and failed to find it and then returned to Evansville. He knew what would happen to him for killing Ruby *Page 69 Mauzy, but he could not stand by and see an innocent man, Tom Evans, punished. An affidavit of a truck driver shows that his story that he went to Princeton on a truck was correct. A deputy sheriff of Gibson county who put him in jail at Princeton said Chapman acted like a man who was not right and said he was wearing a red sweater. The chief of police of Princeton also said he was wearing a red sweater. This does not agree with Chapman's sworn statement in which he says he burned the red sweater at a time and place before he started up the Princeton road. There was evidence at the trial that a man wearing a red sweater was near the place where the stabbing occurred about the time it happened. It was contended when the motion for a new trial was presented that said party was Chapman. It is shown in the trial of the case that an attempt was made to use said Henry Chapman as a witness for the defendant. After one of the attorneys for the defendant and the court had asked him some questions, the court appointed two physicians to examine the witness as to his mental condition and report their findings to the court. After the examination, Dr. Edward P. Busse testified that he had had experience in mental cases and insane hospital work, that he had examined Henry Chapman at the jail and found that he was a low grade mental deficiency case, that he never had much mind, that he went to school five years, never got out of the primer and could not read or write, that he was irresponsible and apparently always had been, that he was of the irresponsible type who would lie as readily as tell the truth, and that the witness would consider him as responsible as a child between the age of four and five years. Dr. P.B. Combs gave testimony which agreed with that of the other physician, saying that Chapman had only the mentality of a child of four or five years, and that he would not realize what it meant to take an *Page 70 oath. The court ruled that Chapman was not a competent witness on account of his mental incapacity; and the testimony which he had given was stricken out. Some of the parties making affidavits in support of the defendant's claim of newly-discovered evidence were brought into court and cross-examined as to the matters stated in their affidavits and some other witnesses were also examined. One witness testified that after the murder, Chapman said he did not know Ruby Mauzy. The affidavit of James Howard stated that he asked Ruby Mauzy various questions before she was taken to the hospital. She could not talk but nodded her head for "yes" and shook her head for "no." He said she indicated that the man who gave her the watch did not stab her, that Tom Evans did not stab her, and that the man who stabbed her had on a red sweater. One J.P. Monahan, who was the father-in-law of Howard, testified at the trial to part of the matters about which it was claimed Howard would testify. According to other evidence, appellant had given her the watch. Three witnesses testified that she did not answer questions as Howard stated that she did; but said that she indicated that the man who had given her the watch stabbed her. To authorize a new trial for newly-discovered evidence, same must have been discovered since the trial. It is apparent that appellant knew prior to his trial that Chapman had boasted that he had killed the woman. When the defendant at the trial attempted to use Henry Chapman as a witness, and he was not permitted to testify on account of his mental condition and his testimony was stricken out; no objection was made and no exception was taken to this action of the court. Newly-discovered evidence must be such as probably to produce a different result on another trial. It appears that the newly-discovered evidence was of such character that it would not do this. And a new trial *Page 71 will not be granted where the purpose of same is for impeachment. The confession of appellant, although afterwards denied, was such that it would be believed in preference to that of Chapman. Some of the alleged newly-discovered evidence was merely cumulative. Such evidence will not warrant the granting of a new trial. There was no error in the lower court refusing to grant a new trial for newly-discovered evidence. Another reason for a new trial which is relied upon is that the court erred in overruling the objection of the defendant to a part of the coroner's inquest over the body of Ruby 19, 20. Mauzy, offered and submitted in evidence by the state. Same were statements of the appellant. Statements voluntarily made by a defendant before the coroner, at an inquest upon the body of the person he is accused of killing, are properly admitted in evidence against him on the trial of the cause. Sage v. State (1891), 127 Ind. 15, 26 N.E. 667;Davidson v. State (1893), 135 Ind. 254, 34 N.E. 972. The testimony of the accused voluntarily given at a coroner's inquest may be subsequently employed against him to contradict his testimony at the trial. Underhill, Criminal Evidence (3d ed.) § 114; Jones v. State (1898), 120 Ala. 303, 25 So. 204;Steele v. State (1898), 76 Miss. 387, 24 So. 910. Said evidence was competent. It was not necessary that all the evidence given by him at the coroner's inquest be introduced by the state. After the state had introduced part of the coroner's inquest, the defendant attempted to introduce another part of same, which was rejected by the court. The part which the defendant desired to introduce did not contradict or tend to explain the part submitted by the state. Same was not competent evidence. Appellant insists that the verdict of the jury was contrary to law and that it was not sustained by sufficient evidence. The fact that Ruby Mossie was named in *Page 72 the indictment as the party who was killed when her name was Ruby Mauzy, as shown by the evidence, did not make the verdict contrary to law. From the evidence which supports the verdict, it appears that appellant was the last person who was seen with Mrs. Mauzy before she was stabbed and was with her a short time before 21, 22. that happened; and that his extrajudicial confession was voluntarily made. On the trial when he denied the confession, he said the officers threatened him and later promised to be his friend, and that he signed the confession because they told him he could go home if he did so. The jury evidently believed his confession and did not believe his alleged reason for executing it. The jail physician and the jailer at the county jail testified that the appellant was asked what the woman did after he stabbed her, and he answered: "She walked away." There was also evidence that the appellant admitted that the knife found a short distance from where the crime was committed and which was introduced in evidence belonged to him. His attempted alibi about which several relatives and some others testified was not established to the satisfaction of the jury. That was a matter for the jury's determination. There was sufficient evidence to support the verdict. This court will not weigh the evidence. The court did not err in overruling the motion for a new trial. Finding no reversible error, the judgment is affirmed. *Page 73

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426510/

James Gray died testate in 1904, a citizen and resident of Vanderburgh County, Indiana, leaving, *Page 679 as his sole surviving heirs at law, his widow, Margaret M. Gray, and his daughter, the appellee Margaret Gray Patterson. By his will, he established a trust in the residue of his estate, the entire net income of which was to be paid to his widow and his daughter, and the survivor of them, during their lives. At their death the trust was to terminate, and the property go to the surviving child or children, or descendants of any child or children, of Margaret Gray Patterson, if any, and if she have no surviving child or children, or descendants of such, to those who would be the heirs at law of the testator, had he died, at the time of the death of Margaret Gray Patterson or Margaret M. Gray. Margaret M. Gray is dead. Margaret Gray Patterson has had no children. It thus appeared at the time of the death of James Gray that his brothers, Allen Gray, Harry Gray, and William W. Gray, or their descendants, would inherit the trust property upon the death of Margaret M. Gray and Margaret Gray Patterson, if Margaret Gray Patterson was not survived by descendants. James Gray named his three brothers as testamentary co-trustees. The will was admitted to probate. Allen Gray qualified as executor. The estate was administered, and, pursuant to the order confirming his final report, the executor delivered the residue of the estate, amounting to several hundred thousand dollars, to himself and his two brothers as testamentary trustees. These trustees assumed the full management and control of the trust estate, and continued such control until the death of Allen Gray in 1920. Thereafter the surviving brothers continued to administer the trust until the death of Harry Gray in 1922. Thereafter William W. Gray assumed the sole management and control of the trust until the 16th day of September, 1926. None of the brothers assuming to act as trustees ever qualified by giving bond, subscribing an oath, or submitting *Page 680 any inventory or report to any court, and they at all times acted without the direction of a court. During this period the trustees sold property belonging to the corpus of the trust, changed investments, made collections and distributions according to their own interpretation of the provisions of the trust agreement, and paid certain portions of the income to Margaret M. Gray and Margaret Gray Patterson. As a result of the administration of the trust, during the period from 1905 until 1922, the life beneficiaries of the trust concluded that they were not receiving the income that they were entitled to under the provisions of the will, and that the trustees had misconducted themselves and had misappropriated certain of the trust assets. In May, 1922, Margaret M. Gray and the appellee Margaret Gray Patterson instituted a proceeding in the Vanderburgh Probate Court, alleging that the trustees had withheld large sums of income and had submitted false reports to the beneficiaries; that they had converted income-producing property into nonincome-producing property, had misapplied income to increase the corpus of the estate, had sold valuable properties of the trust to themselves and paid much less therefor than the property was worth, and had purchased from themselves undesirable nonincome-producing property. William W. Gray and Harry Gray petitioned to remove the proceeding to the United States District Court for the Southern District of Indiana, upon the ground of diversity of citizenship, alleging that Margaret Gray Patterson was a citizen of New York, and Harry Gray and William W. Gray were citizens of California. The Vanderburgh Probate Court ordered the removal of the cause. Margaret M. Gray and Margaret Gray Patterson appeared in the United States District Court and moved to remand the cause to the Vanderburgh Probate Court. This motion was overruled, and the United *Page 681 States District Court retained jurisdiction. The matter was referred to a master, Mr. Charles Martindale, who heard the evidence, and, on April 15, 1925, filed a report in which he concluded that the trust was entitled to recover more than $750,000 from the trustees; that more than $500,000 of the amount should be credited as income in the trust estate. Exceptions to the report were filed, and William W. Gray, as surviving trustee of the estate of James Gray, then suggested to the court that there was a defect of indispensable parties, and, upon the suggestion, he was made a defendant as executor and trustee of the estate of Allen Gray, and as executor and trustee of the estate of Harry Gray. It will be seen that William W. Gray, in his individual and fiduciary capacities, represented all of the defendants. The report of Commissioner Martindale was set aside, and a new reference was made to Mr. William H. Thompson as special master. Mr. Thompson heard the evidence, and filed a report in which he found that the trustees had misapplied income, and had appropriated large amounts of the trust estate to their own use, and that William W. Gray and Allen Gray were guilty of willful maladministration for their own benefit. He recommended the recovery of more than $500,000. Both masters recommended that William W. Gray be removed as trustee of the James Gray estate. All parties filed exceptions to this report, and, pending a hearing, on September 16, 1926, all parties to the litigation appeared in open court and submitted a final decree, which had been agreed upon by all of the parties, and was signed by all of the attorneys of record. With this decree, William W. Gray submitted his written resignation as trustee of the James Gray trust, effective as of the close of business November 15, 1926. The resignation was accepted by the court, and the decree was entered as a final judgment and decree determining the rights of the *Page 682 parties, and it was specifically agreed of record that the parties waived the right to appeal. By the decree and judgment so entered, the defendants, that is, William W. Gray, in his personal capacity and his various fiduciary capacities, agreed to pay more than $500,000 to the trust, most of which was by the decree found to be chargeable to income, and it was ordered that it be paid out to Margaret M. Gray and Margaret Gray Patterson. The United States District Court then appointed appellee Union Trust Company of Indianapolis and Stuart T. Fisher, as trustees of the James Gray trust, to succeed William W. Gray. William W. Gray thereafter paid the amounts, found due from him to the trust, in the judgment and decree, to the Union Trust Company of Indianapolis and Stuart T. Fisher, trustees; and, as an incident to procuring the funds with which to make said payments, filed a petition in the Vanderburgh Probate Court, in the matter of the estate of one of his brothers, by which he sought and procured authority of court to pay part of the judgment out of his brother's estate. All of the parties acquiesced in, and carried out, the provisions of the final decree and judgment in full. William W. Gray delivered the assets in his possession and custody, as trustee, to the Union Trust Company of Indianapolis and Stuart T. Fisher. He paid all of the amounts found due from him and his various trusts to them, and they in turn paid out to Margaret M. Gray and Margaret Gray Patterson the amounts which were decreed as income and due them as life beneficiaries. Thereafter the new trustees regularly filed reports of their management of the trust in the United States District Court for a period of more than six years. William W. Gray, in his individual capacity, had numerous substantial business transactions with the trust, through the new trustees, wherein he purchased trust assets, and engaged in litigation for *Page 683 the partition of real estate in which he was jointly interested, and in many of which transactions his interests were adverse to the interests of the trust. It is apparent that William W. Gray and his brothers were never disinterested trustees. They always had an interest adverse to that of Margaret M. Gray and Margaret Gray Patterson, since, if Margaret Gray Patterson died without descendants, they, or their descendants, would finally inherit the corpus of the trust property. Thus their interest was to minimize the amount to be paid as net income to Margaret M. Gray and Margaret Gray Patterson in order to increase and retain in the trust as much property as possible. Their misappropriations and malfeasances did not injure them or their estates, but injured only the life beneficiaries and the prospective descendants of Margaret Gray Patterson. After the decree and judgment, by agreement, in 1926, all of the parties considered and treated the entire controversy as settled, and recognized the Union Trust Company of Indianapolis and Stuart T. Fisher as the legal trustees. In 1932, Margaret M. Gray died testate, and the Old National Bank of Evansville was appointed executor of her estate. A minor question arose as to whether the proceeds of certain interest coupons, maturing after her death, should be paid in full to the surviving life beneficiary, or whether that portion which accrued before the date of the death of Margaret M. Gray should be paid to her executor. The trustees, being in doubt, applied to the court of their appointment for advice and instruction. Upon hearing, the court entered an order instructing the trustees. An appeal was taken by the executor of the estate of Margaret M. Gray to the United States Circuit Court of Appeals for the Seventh Judicial Circuit. On August 1, 1933, the Circuit Court of Appeals handed down an opinion, reported in 66 F.2d 367, reversing the decree *Page 684 of the United States District Court instructing the trustees, and remanding the case, with instructions to dismiss the trustees' petition, upon the ground that the United States District Court was without jurisdiction to administer the trust estate of James Gray, deceased. In the light of this judgment, to the effect that the United States District Court was without jurisdiction to administer the trust, Margaret Gray Patterson, in November, 1933, applied to the Vanderburgh Probate Court for a citation against the Union Trust Company of Indianapolis and Stuart T. Fisher, requiring them to appear in that court and account to that court for the trust property and their management thereof. The citation issued, and the Union Trust Company of Indianapolis and Stuart T. Fisher, trustees, asked the United States District Court for instructions, and that court issued its order directing them to respond to the citation and to account to the Vanderburgh Probate Court for the trust property and the administration of the trust. Thereafter, in November, 1933, the Union Trust Company of Indianapolis and Stuart T. Fisher appeared in the Vanderburgh Probate Court and filed an answer and submitted the trust property and their accounts to that court. Pending a determination of the issues, Stuart T. Fisher died, and his administratrix was substituted. William W. Gray, personally, and in the various interests in which he appeals, was brought into this proceeding. By numerous pleadings, the particulars of which need not be noticed, appellants questioned the jurisdiction of the court and the correctness of the accounting. They asserted that, upon the authority of the decision of the United States Circuit Court of Appeals above referred to, the judgment and decree, by agreement of the parties above referred to, was and is void and of no effect whatever, and that therefore the *Page 685 Union Trust Company of Indianapolis and Stuart T. Fisher, trustees, should be required to account for, and pay back to William W. Gray, personally, and in his various fiduciary capacities, all of the money which was paid to the trustees pursuant to the compromise agreement, decree and judgment referred to. It was asserted by these pleadings that William W. Gray continued to be the de jure trustee of the trust; that the payments made to Margaret M. Gray and Margaret Gray Patterson, pursuant to the judgment of the United States District Court, and out of the funds paid to the Union Trust Company of Indianapolis and Stuart T. Fisher, trustees, by William W. Gray in his various capacities, under the judgment and decree of the United States District Court, should be recaptured and recovered; that, in effect, the entire controversy and the trust should be restored to the condition in which it was found by the United States District Court before the judgment and decree, by agreement, in 1926. There is a further contention which seems to be to the effect that Margaret Gray Patterson is estopped from asserting that jurisdiction of the trust is in the Vanderburgh Probate Court while she retains the money paid into the trust by William W. Gray in his various capacities, and paid by the new trustees to her under the judgment of the United States District Court entered in 1926. The court below held against appellants in all of these contentions, and approved the report and accounting of the trustees. From this decision, the appeal in No. 26,897 was perfected. Appellants assign 281 errors, and their brief is in two volumes and contains a total of over 850 pages. Space does not permit, nor does the full consideration and determination of the questions require, that each of these errors, and the various complicated arguments *Page 686 and contentions urged in support of them, be separately considered. On the day that the Union Trust Company of Indianapolis and Stuart T. Fisher appeared and answered and submitted their accounts in the Vanderburgh Probate Court, William W. Gray and Margaret Gray Patterson likewise appeared, and it was made to appear that the respondent trustees were bringing before the court the body of the trust, which consisted of several hundred thousand dollars' worth of real and personal property, which required constant attention and constant dealings with third parties; that, because of the decision of the United States District Court of Appeals above referred to, and of the contention of William W. Gray that he was the de jure trustee, doubts and uncertainty had arisen as to the right of the Union Trust Company of Indianapolis and Stuart T. Fisher, trustees, to bind the trust; that the property required constant and vigilant care; and that the estate would suffer if not administered by some one with clear legal authority; and that, in order to preserve the trust estate, a receiver should be appointed to take over and administer the same under the orders of the court until there could be a determination of the question and the establishment of a de jure trustee. A receiver was appointedpendente lite. There was no appeal, and it is too late now to question the appointment, but it may be said that any other action would have constituted an abuse of discretion. It is contended that the Vanderburgh Probate Court has no jurisdiction to appoint receivers. But it has exclusive jurisdiction to administer trusts and to appoint trustees. 1. "Receiver," after all, is but a name applied to one type of trustee, and, regardless of the name used, the court has ample inherent power, and it was its duty, to appoint a conservator to manage and protect the trust and the trust property *Page 687 pending a determination of the controversy and the establishment of some one as a de jure trustee. The Union Trust Company of Indianapolis, as receiver, filed a petition for instructions as to the payment of income of the trust. Appellants filed objections, principally based upon the ground that the court had no jurisdiction to appoint a receiver, and no jurisdiction to order a distribution of the income of the trust. The court found that the net income was payable to Margaret Gray Patterson, and determined that a certain proportion of the income accruing from certain securities prior to the death of Margaret M. Gray was payable to her estate, and the balance to Margaret Gray Patterson, but ordered that, pursuant to the stipulation of the parties, only $800 per month should be payable by the receiver to Margaret Gray Patterson until the final determination of the controversy. Cause No. 26,847 is appellants' appeal from this order, and in this appeal appellants have assigned 244 errors. There is no controversy concerning the accounts of the Union Trust Company of Indianapolis and Stuart T. Fisher, trustees. There is no controversy as to any of the material facts. The contentions of the appellants in both cases are the same. They are in substance that the Vanderburgh Probate Court does not have jurisdiction to administer the trust; that Margaret Gray Patterson is estopped from asserting that there is jurisdiction in the Vanderburgh Probate Court, by reason of having accepted and retained the benefits of the judgment in favor of her and of the trust in the United States District Court; that the judgment of the United States District Court is void and that therefore appellants are entitled to recover from the trust the amounts paid under that judgment; that, if the Vanderburgh Probate Court has or takes jurisdiction, appellants are entitled to have repaid to them the sums *Page 688 which they paid under the decree in the United States District Court; that the appellant William W. Gray is the de jure trustee; and that, if an accounting be had, it should involve a redetermination of the matters settled and adjudicated by the decree of the United States District Court. It thus appears that substantially the same questions are involved in both appeals. In the appeal from the order of the United States District Court, instructing the trustees as to the disposition of income, the United States Circuit Court of Appeals decided that 2-4. the District Court had no jurisdiction to appoint trustees for, or to administer, the trust. That is the law of the case in so far as the jurisdiction of the District Court is concerned. The Vanderburgh Probate Court now has, and always has had, jurisdiction to administer the trust. This can hardly be seriously questioned, even in the face of a contention that the United States District Court might also have concurrent jurisdiction. But it does not follow that, because the District Court had no jurisdiction to appoint a trustee and to administer the trust, the judgment of 1926 is void. The original proceeding instituted by the appellee Margaret Gray Patterson in the Vanderburgh Probate Court does not seem to have questioned the authority of the then acting trustees. Primarily it sought an accounting, and that the trustees be charged with, and required to account for, certain monies because of misappropriation and maladministration. Appellant William W. Gray and his brother, Harry Gray, the then acting trustees, procured removal of the proceeding to the United States District Court, the appellee Margaret Gray Patterson resisting, and after it was removed she sought to have it returned to the Vanderburgh Probate Court. The then trustees objected and resisted, and it was upon their solicitation and contention that it remained in the District Court. *Page 689 After the evidence was taken by two masters, both of whom found that there had been misappropriation and maladministration, by reason of which the trustees were indebted to the trust in a sum exceeding half a million dollars, there was an agreement in settlement of the controversy, subscribed to by the trustees and the interests which are appellants' here. The terms of this agreement were embodied in the decree and judgment at the request of all the parties, and, as a part of the settlement, it was agreed that all parties waived their right to appeal and thus question the legality and correctness of the judgment and decree. Margaret Gray Patterson had contended that the District Court did not have jurisdiction, but that jurisdiction was in the Vanderburgh Probate Court. If the issues had been decided against her, or if there had been an unfavorable judgment and decree, she might have appealed to the circuit court where her contention might have been sustained. The United States District Court is a court of general jurisdiction. It had jurisdiction of the parties and jurisdiction to determine whether the subject-matter was within its jurisdiction. If it decided this question erroneously, the error might have been corrected on appeal. The waiver of the right to appeal waived the right to question the jurisdiction of the court to enter the decree and judgment, even if the trustees might have questioned it after procuring the court, upon their motion, to take jurisdiction. But, even if the judgment and decree was void for want of jurisdiction in the District Court, and even if the appellants here are not estopped from asserting that the decree is void by reason of having invoked the jurisdiction, the agreement in settlement, acquiesced in and acted upon by the parties, sufficiently binds all of them. Margaret Gray Patterson and Margaret M. Gray accepted and retained a large sum of money paid by appellants here, upon the agreement *Page 690 that it should be in full settlement of all sums due, because of alleged misappropriation and maladministration, notwithstanding one of the masters, at least, had found a much greater amount due; and appellants, by agreeing to pay, and paying, the amounts which were agreed upon, were excused from answering as to any further indebtedness so far as Margaret Gray Patterson and Margaret M. Gray were concerned. There is no contention that any of the parties labored under any coercion, or restraint, or fraud, or misrepresentation, at the time of the settlement. For seven years it was treated by all the parties as a legal and binding settlement of the controversy. If there had been no action in any court, if the life beneficiaries had merely charged the acting trustees with maladministration and misappropriation of the trust property and income, and if the trustees had agreed to pay, and had paid, the half million dollars into the trust, partly for the benefit of the life beneficiaries, and partly for the benefit of the corpus of the trust, upon the understanding that the sum was in settlement of any amounts for which they were liable, or for which they were being charged with liability, it would have been sufficient, and seven years afterwards the trustees would not, in the absence of a showing of mistake, misrepresentation, fraud, or coercion, be heard to say that they were entitled to a return of the money, or a re-examination of the question of their liability. The judgment and decree of the District Court would seem to be valid and binding, but, whether it is or not, the settlement effected by that judgment and decree, entered upon the request and the agreement of the parties in settlement of the controversy, is binding and concludes them upon the questions then in controversy. One of the conditions of the agreement and the decree and judgment was that the sole surviving trustee *Page 691 nominated in the will, appellant William W. Gray, should 5. resign as trustee, and he tendered his written resignation. The surviving brothers of James Gray had taken possession of the property of the trust, and had assumed to act without giving bond, without filing an inventory with, or reporting or accounting to, any court, and they managed and dealt with the trust and the trust property without asking the direction or orders of any court. Whether they were de jure trustees need not be determined. They were at least de facto trustees. The intention of William W. Gray to resign, and discontinue and relinquish his duties, as surviving trustee, by agreeing to tender his resignation, and by tendering it, to the District Court, cannot be doubted. No court had appointed him. He tendered his resignation to the court that the parties apparently believed to be the proper one to accept it. He relinquished the duties and delivered the property of the trust to the Union Trust Company of Indianapolis and Stuart T. Fisher, trustees, appointed by that court, with the intention of divesting himself of further responsibility as trustee, and he thereafter dealt with the trust in business matters in a manner entirely inconsistent with any claim or contention that he was the trustee or owed any duty or responsibility to the trust as a trustee. It was at least a defacto resignation, and the trustees appointed by the District Court became at least de facto trustees, in good faith, believing themselves to be the de jure trustees. They reported regularly to the court which they believed had jurisdiction to administer the trust, and sought the advice and direction of the court, which the original trustees had never done. After the decision of the Circuit Court of Appeals that the District Court had no jurisdiction to administer the trust, and upon citation to appear in the Vanderburgh Probate Court, they sought permission of *Page 692 the District Court, which was granted, and submitted themselves and the trust and the trust property to the jurisdiction of the Vanderburgh Probate Court, and offered to report their doings and to submit to the directions of that court. The Vanderburgh Probate Court has never appointed trustees. The Union Trust Company of Indianapolis and Stuart T. Fisher were the acting trustees. William W. Gray had abandoned the trust and whatever rights he may have had to act as trustee, and, in view of his abandonment, and the findings of both masters in the federal court that he had misappropriated property of the trust, and his admission of liability by the payment of a large sum of money in compromise, it would be the undoubted duty of the court having jurisdiction of the trust to remove him if it considered that he was the trustee in law or in fact. He has undoubtedly forfeited any rights which he may have had to act as trustee. The Vanderburgh Probate Court has never appointed him as trustee, and it certainly would be an abuse of discretion to now or hereafter appoint him as trustee. Margaret Gray Patterson is not estopped from asserting that the Vanderburgh Probate Court has jurisdiction to administer the trust. She always so contended. It was the appellants who 6. contended otherwise. She was apparently content with supervision of the trust by the United States District Court until, by the decision of the Circuit Court of Appeals, that became impossible. She had the undoubted right to have the trust supervised and administered by some court having jurisdiction, and, when the District Court could no longer act, she was quite within her rights in appealing to the Vanderburgh Probate Court, where she had originally sought protection for the trust and herself as a beneficiary thereof. No question is made upon the correctness of the accounts *Page 693 of the Union Trust Company of Indianapolis and Stuart T. Fisher, as trustees, or of the correctness of the accounts of 4, 7. the receiver. If, in the multitude of pleadings and assignments of error, any question is made about the right of the appellee Margaret Gray Patterson to receive the entire net income from the trust property it cannot be sustained. The terms of the trust are clear, unambiguous, and unmistakable. The amounts paid to the life beneficiaries of the trust, under the decree and judgment of the District Court in 1926, as deferred payments of income which had been misappropriated by the former trustees, were agreed to by the appellants, and they are not in a position now to question those payments. The former trustees had not made reports to any court, but the entire matter of their management of the trust was gone into before the masters in that proceeding, and the entire record of that proceeding and all of the reports of the Union Trust Company of Indianapolis and Stuart T. Fisher, as trustees, made to the District Court, were before the court in the instant case, and, since no deficiency in the evidence is pointed out, it must be assumed that there was sufficient basis for a determination of the amount of income due, and paid to, the life beneficiaries. Appellants offered no evidence, nor is it contended, that the accounts are incorrect in respect to income. Upon the evidence before the court, appellants merely contended that the court was without jurisdiction to determine the question. That the court had jurisdiction to administer a trust of this kind, and jurisdiction to determine from time to time the amounts that shall be allocated to income and paid out as such, cannot be doubted. The court approved the accounts of the Union Trust Company of Indianapolis and Stuart T. Fisher, trustees, *Page 694 and found that they had, in good faith, prudently 8-10. administered the trust, relying upon the appointment by the United States District Court. It was also found that they had earned reasonable compensation and incurred reasonable expenses in the amount of $35,057.64. But the trustees were not allowed this amount. Failure to make this allowance is made the basis of cross-errors. The assignment of cross-errors was timely filed in the office of the clerk of this court, but was not attached to the transcript of the record filed by appellants. There was no motion to dismiss or strike out the assignment of cross-errors, and appellants sought, and procured, an extension of time within which to file their brief upon the merits. The appellee trustees filed their brief upon their assigned cross-errors; and, by their answer brief, the appellants contend that no question is presented by the assignment because it is not entered on the transcript or attached thereto. Appellants rely upon Dutton v. Dutton (1868), 30 Ind. 452, 455; MerchantsNational Bank of Muncie v. Delaware School Twp. (1916),185 Ind. 658, 669, 114 N.E. 450, 453; and State v. Dunn (1932),203 Ind. 265, 275, 180 N.E. 5, 9. In the first case referred to, the only thing that is said about cross-errors is that: "Cross-errors are assigned, but not upon, nor attached to, the record. We cannot consider them, as the statute requires they should be `entered upon the transcript.' 2 G. H. 275, sec. 568." In the second case it is said that: "The transcript contains no assignment of cross-errors, and we do not consider any question attempted to be presented thereon. Ewbank's Manual § 125; Dutton v. Dutton, 30 Ind. 452." In the third case it is said that: "Appellee attempts to assign cross-errors, based upon the court's ruling in sustaining appellant's demurrer to his amended plea in abatement, but no assignment of cross-errors appear on the transcript, and *Page 695 therefore no error is presented to this court." The first two cases referred to are cited as supporting the statement. It will be noted that the last two cases give no reason for the ruling. They merely rely upon Dutton v. Dutton, supra, which seems to have been decided upon the theory that the statute requires that the assignment of cross-errors shall be entered upon the transcript. But the Code makes no provision for the assignment of cross-errors, and there is no statutory procedure prescribed for their assignment. The practice of recognizing cross-errors originated with the court, and has been said to be one of the unwritten rules of appellate procedure. Feder et al. v. Fieldet al. (1889), 117 Ind. 386, 20 N.E. 129; American Mutual LifeIns. Co. v. Bertram (1904), 163 Ind. 51, 70 N.E. 258. Section 2-3225 Burns' Ann. St. 1933, § 502 Baldwin's 1934, like the statutes that preceded it, requires that appellant's assignment of errors "be entered on the transcript," and this is a reasonable requirement, since the appellant procures the transcript to be prepared, and since his assignment of errors is a pleading charging error, which he is required to support by a transcript of the proceedings which will disclose the error. After the transcript, with the appellant's assignment of errors attached, is filed in the office of the clerk of this court it becomes part of the records of the court. The propriety of permitting any of the parties to attach anything further to the transcript, without leave of court, after it has become a part of the records of this court, may well be doubted. It is the practice, when the appellant files his assignment of errors and transcript, to cause the records to show that both are filed. It has also been the proper practice to file an assignment of cross-errors with the clerk, and have the clerk to mark it filed, and to cause the records to show its filing. After the transcript is filed by the appellant it is generally delivered *Page 696 to him immediately, or within a short time, to be used in briefing. If the appellee should appear in the clerk's office on the last day for filing cross-errors, and find that the transcript is in a distant part of the state, it might be difficult or impossible to file the cross-errors with the clerk and attach them to the transcript within the time allowed. It seems clear that merely seeking out the transcript and attaching the assignment of cross-errors, without filing it in time in the clerk's office, would not suffice. We see no substantial reason for the requirement that the assignment of cross-errors be entered upon the transcript if it is filed and made a part of the records in the case in this court. The impression of the court in the early case, that the statute requires it, is seen to be erroneous. The timely filing in the clerk's office, so that the cross-errors may become a part of the records in the case in this court, is the important thing, and, since the transcript is not always in the clerk's office at the time of filing, they may be entered upon the transcript, if that is deemed necessary, at any time thereafter by the clerk, or, upon motion, by order of the court. Appellees have filed a motion asking an order that their assignment of cross-errors be entered upon the transcript nuncpro tunc as of the date of filing. The motion is sustained, and it is so ordered. In acting as trustee, and conserving and administering the trust, in making collections of income, and in conserving the trust property, the trustees rendered a useful and 11, 12. valuable service to the trust estate; a service that it was contemplated should be, and which the necessities required that some one should render. They took possession, when the former trustees abandoned their duties, under an appointment by a court which they apparently, in good faith, believed to have the power of appointment. They were at least de facto trustees, their accounts have been approved, *Page 697 and their administration was prudent and faithful, and just as valuable to the trust as though they had been de jure trustees. No reason why this reasonable amount should not have been allowed as compensation for services and expenses is suggested by appellants other than that the court was without jurisdiction of the cause. As indicated above, this is not a sufficient reason. The amount found by the court to be reasonable should have been allowed as an expense of administering the trust, and should be ordered paid out of income as an expense of administration. The appellants filed a brief questioning the assignment of cross-errors and the brief thereon. But appellants have no interest, since the expenses will be paid out of income otherwise payable to Margaret Gray Patterson. At the bar, in oral argument, all parties have agreed that, since the matters involved are of equitable cognizance, such orders should be made as will finally terminate the 13. controversy and dispose of all questions appearing upon the record. That there is jurisdiction to do so is not questioned. Rooker et al. v. Fidelity Trust Co., Trustee, etal. (1931), 202 Ind. 641, 177 N.E. 454; § 2-3229 Burns' Ann. St. 1933, § 467 Baldwin's 1934. It is suggested by appellee Margaret Gray Patterson that the conduct of the appellants in this long and protracted litigation has been vexatious and designed to prevent appellee from 14, 15. receiving the income due her under the provisions of the trust. The voluminous pleadings, the duplication of methods by which the jurisdiction of the court has been questioned, and the apparent desire to prolong the controversy, lend strong support to the contention. The appellee Margaret Gray Patterson performed a service to the trust estate by filing her petition and causing a citation to issue requiring that the estate and its administration *Page 698 be brought within the jurisdiction of the Vanderburgh Probate Court. Such supervision is in the interest of, and for the protection of, all parties in interest in the trust. By objecting to the assertion of jurisdiction by the Vanderburgh Probate Court, the only court within the State of Indiana having jurisdiction of the trust, when the federal courts had declined to retain jurisdiction, the appellants were rendering a disservice to the trust estate. It must be presumed that trusts are benefited by supervision of a court of competent jurisdiction, and that an effort to prevent supervision by any court is against the interest of the trust. If, upon the petition of the appellee Margaret Gray Patterson, and the trustees' submission to the jurisdiction, the matter had ended, the appellee Margaret Gray Patterson would have been to but slight expense, but, since appellants resisted, the court has taken jurisdiction through a long and tedious course of litigation, involving these two appeals with records and briefs aggregating thousands of pages. The appellee Margaret Gray Patterson must have incurred a large expense in protecting herself and the other beneficiaries of the trust in the obvious right to have the administration supervised by the court. One who volunteers services or incurs expenses which are a benefit to a trust, and which may be deemed reasonably necessary to protect the trust, should be reimbursed out of the trust. The controversy required the appointment of a receiverpendente lite. The expenses and services of the receiver, in the normal management of the trust, should be allowed, 16, 17. and charged as a normal cost of administering the trust, to be paid out of income. But the receiver, no doubt, incurred costs and expenses because of this protracted litigation, which otherwise would not have accrued. These latter expenses *Page 699 of the receiver, in a reasonable amount, should be allowed as costs and charged against the appellants, together with all of the other normal costs of the litigation. The reasonable expenses and counsel fees of the appellee Margaret Gray Patterson should be allowed as a charge against the trust and paid out of the corpus of the trust, and not out of income. A trustee, other than William W. Gray, should be appointed by the court to manage and administer the trust under the supervision and direction of the Vanderburgh Probate Court. Both judgments of the court are in all things affirmed, except as to the subject of cross-errors above referred to. They are ordered modified in that respect, and in respect to the allowances above referred to.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3209651/

In the Supreme Court of Georgia Decided: June 6, 2016 S16A0397. THE STATE v. ALVAREZ. BENHAM, Justice. Appellee Pedro Alvarez was tried by a jury and convicted of malice murder and other offenses arising out of the shooting death of Ainsley Jackson.1 Immediately before the shooting, appellee observed Jackson and appellee’s brother, known as “Nunu” Alvarez, engage in a fist fight over the sale of cocaine to a person they both claimed as a customer. After appellee’s brother lost the fight, appellee retrieved a shotgun from a nearby apartment, went back outside, and fired two shots at Jackson. Although the brother was subpoenaed to testify at trial, he failed to appear. In both its opening statement and closing argument, 1 The crimes occurred on January 21, 2010. On April 23, 2010, a Fulton County grand jury returned an indictment against appellee charging him with malice murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during commission of a felony. Appellee was tried June 20-June 27, 2011, and the jury returned a verdict of guilty on all counts. The felony murder conviction was vacated as a matter of law, and the conviction for aggravated assault merged into the murder conviction for sentencing purposes. Appellee was sentenced to life in prison for malice murder and the trial court imposed a five-year sentence for the possession of a firearm conviction, which was suspended. Appellee filed a timely motion for new trial which was twice amended. After a hearing, the trial court granted the motion for new trial, as amended, by order dated August 5, 2014. The State filed a timely notice of appeal, and the case was docketed in this Court to the January 2016 term of court for a decision to be made on the briefs. the State referenced the statement the brother made to police shortly after the incident. Because the brother did not appear as a witness and his out-of-court statements were not entered into evidence, appellee objected to the reference made during the closing argument and the trial court sustained the objection. In his motion for new trial, appellee claimed the State nevertheless continued to reference the inadmissible statement. In granting the motion for new trial, the trial court found the State’s conduct in referencing the brother’s statement in its closing even after the court sustained appellee’s objection, and in implying that the statement incriminated appellee, was improper and prejudiced appellee’s right to a fair trial. The court also found it had committed plain error when it failed to instruct the jury that the State had the burden of proving beyond a reasonable doubt that appellee’s conduct was not justified despite being requested to do so in appellee’s written requests to charge. The State filed this appeal, and we affirm. 1. We agree that appellee is entitled to a new trial as a result of plain error in the jury instruction regarding the appellee’s defense of justification. Appellee’s sole defense was justification, and evidence was presented to support this defense. Appellee requested a charge instructing the jury that the State had 2 the burden of disproving beyond a reasonable doubt that appellee was justified in his conduct. When the trial court failed to give the requested charge, trial counsel failed to object to this omission. Consequently, the claimed error must be reviewed under the plain error doctrine. See OCGA § 17-8-58 (b).2 In considering whether plain error is shown, this Court has stated: Reversal is authorized if all four prongs of the standard adopted in [State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011)] are met: the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings. White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012). The failure to give the requested instruction on appellee’s affirmative defense of justification was erroneous in this case because evidence was presented to support the defense and the charge requested is a correct statement of the law. See Bishop v. State, 271 Ga. 291 (2) (519 SE2d 206) (1999). Given the longstanding rule regarding the State’s burden of disproving a defendant’s affirmative defense in these circumstances, the error was obvious. The failure to give this instruction was 2 Pursuant to OCGA § 17-8-58 (a), a party who objects to a jury charge or a failure to charge is required to inform the trial court of the objection before the jury retires to deliberate. Pursuant to OCGA § 17-8-58 (b), if a party fails to object as required by subsection (a), appellate review is precluded “unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” 3 all the more harmful in this case since, during the State’s closing argument, the prosecuting attorney referenced the brother’s absence as a trial witness and implied appellee had a duty to present this testimony if it would have confirmed appellee’s justification defense. We reject the State’s assertion that the outcome of the proceedings was not likely to have been affected by the instruction because the evidence of justification was not credible. Sufficient evidence was presented from which a jury could find justification, and in fact, justification was the critical disputed issue at trial. In these circumstances, the failure to instruct the jury on the State’s burden to disprove that defense likely affected the outcome and fairness of the proceeding, and we cannot say that the trial court erred in finding this failure to instruct was plain error. Cf. Johnson v. State, 295 Ga. 615 (759 SE2d 837) (2014) (appellant failed to show that the trial court’s failure to give the requested instruction affected the outcome of the proceedings where the undisputed evidence established that the instruction was not applicable). We also reject the State’s argument that because the instruction, taken as a whole, properly instructed the jury on the burden of proof and that appellee had a right to use force in a reasonable manner to defend himself, then plain error was not 4 established. See Bishop, supra, 271 Ga. at 291 (2) (rejecting this argument by overruling Bruce v. State, 259 Ga. 798 (3) (387 SE2d 886) (1990)). The trial court did not err in granting appellee’s motion for new trial on the ground that plain error was created by the court’s failure to instruct the jury that the State had the burden of disproving appellee’s justification defense. 2. We do not reach the remaining grounds for appeal, relating to rulings on the State’s references in its opening statement and closing argument to Nunu Alvarez’s statement to the police, because those alleged errors are unlikely to recur at retrial. See Stanbury v. State, ___ Ga. ___ (3) (___ SE2d ___) (Case No. S16A0321, decided May 23, 2016) (2016). Judgment affirmed. All the Justices concur. 5

01-03-2023

06-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426433/

Appellant was charged, by affidavit filed in the Bartholomew Circuit Court, on November 25, 1947, with first degree burglary. On November 29, he appeared before the judge of said court in person and without counsel for arraignment. The court filed with the Clerk a transcript of the proceedings which occurred in connection with such arraignment and said transcript was made a part of *Page 650 the record in this cause pursuant to Rule 1-11 of this court. This transcript is as follows: "Transcript of proceedings in connection with the arraignment and sentencing, including questions and answers and statements made by the Defendant, Prosecuting Attorney and Judge. The Prosecuting Attorney will read the affidavit to you. (Affidavit read by Prosecuting Attorney.) Q. What do you say, are you guilty or not guilty? A. Guilty. Prosecuting Attorney will read the second affidavit No. 8305. (Prosecuting Attorney reads second affidavit.) Q. What do you say, guilty or not guilty? A. Guilty. Q. You understand what the penalty is for first degree burglary? A. Yes, ten to twenty years. Q. You had been informed of that before? A. Yes. Q. And you had that in mind when you said you was guilty in these cases? A. Yes. Q. You do further understand that if you wanted to have done so you could have pleaded not guilty and had a trial either before a jury or before the court, you understand that? A. Yes, sir. Q. You do further understand that you would have the right to have an attorney to represent you if you wanted one to represent you? A. Yes, sir. Q. Do you want one to represent you? A. No, sir. Q. Knowing all these facts that I have explained to you, which are your constitutional rights, you still desire to plead guilty to these two charges? A. Yes, sir." *Page 651 Following his plea of guilty and pursuant thereto, he was found to be 30 years of age and sentenced to be imprisoned in the Indiana State Prison for a period of not less than ten (10) years, nor more than twenty (20) years. On January 9, 1948, appellant filed in the Bartholomew Circuit Court a verified motion and request for an appeal of said cause to the Supreme Court of Indiana as a poor person and for the appointment of an attorney to represent him upon appeal, which said petition was granted and an attorney of good standing was appointed to represent him upon appeal and the Clerk was directed to furnish a transcript of all proceedings in the cause at the expense of the county to be used upon such appeal. Such transcript was duly prepared and filed in this court, together with an assignment of errors. The substance of the errors assigned, and upon which appellant relies, is that he was denied his constitutional right to counsel. Appellant, in his brief, contends that it was the court's duty to advise him that he was entitled to counsel. This, of course, is true, but it appears to us from the transcript of 1-4. proceedings in connection with his arraignment that he was advised of such right. It is true that the court took his plea without first advising him of his right to counsel, but he was told before sentence was passed that he had such right and was definitely asked if he wanted counsel and said he did not. He was told of his right to a trial by jury and of the penalty for first degree burglary and then, after being so apprised, was asked if he still desired to plead guilty to the charges against him and replied that he did. It is obvious that if he had indicated that he wanted counsel, counsel would have been appointed for him and *Page 652 his constitutional rights would have been fully observed, but he declined counsel and no one can be compelled to accept counsel appointed by the court. It would have been better practice if the judge had explained to the accused his right to counsel before he took his plea, but in our opinion the offer of counsel made by the judge in this case fully met appellant's constitutional right to counsel and having declined the service of such counsel before sentence he cannot now complain that counsel was not appointed for him. Aid of counsel provided after a plea of guilty has been entered, but before sentence, is sufficient to satisfy constitutional requirements. Canizio v. New York (1946),327 U.S. 82, 90 L. Ed. 545, 66 S. Ct. 452. The law is well settled that an accused may waive his constitutional rights, if such waiver is made freely and understandingly. Irwin v. State (1942), 220 Ind. 228, 5. 238, 41 N.E.2d 809; Kuhn v. State (1944), 222 Ind. 179, 52 N.E.2d 491; Batchelor v. State (1920),189 Ind. 69, 76, 80, 125 N.E. 773. Appellant's counsel in his well thought out brief leans heavily on Batchelor v. State, supra. That case was correctly decided and the law laid down in that case is applicable to the case before us, but the facts in the case before us are so different as to compel a result different from the result in the Batchelor case. In that case this court held that a person prosecuted for a crime may waive his constitutional rights to counsel and a jury trial, and that if a plea of guilty to a charge of murder is made by an accused advisedly, and with full knowledge of his rights and of the consequences of such plea it amounts to a waiver of his constitutional rights. In the Batchelor case the defendant was not asked *Page 653 if he wanted a lawyer. In this case he was and said no. In the Batchelor case this court pointed out that the defendant was not apprised of the penalty. This was not true in the case before us. In the Batchelor case the accused, after pleading guilty, was sworn and testified as to facts and circumstances leading up to and attending the commission of the crime of which he was charged. In the case before us nothing of this kind happened. In the Batchelor case there was discretion in the court or jury as to the penalty to be inflicted. The accused was not advised of this. In the case before us there was no discretion as to punishment. That was fixed by statute. In the Batchelor case the accused made frequent requests to his jailers before arraignment for permission to see and consult a lawyer, although when he was brought before the judge he was told that he had a right to a lawyer but said he did not wish one and desired to plead guilty. It seems to us that the plea of guilty in the case was made freely and understandingly. The accused admitted that at the time he entered his plea of guilty he understood the penalty for 6. the offense with which he was charged; he understood that he could plead not guilty and have a trial by jury; that he could have an attorney to represent him, if he wanted one. He stated that he did not want one, but, knowing his rights, decided to plead guilty. He was a man 30 years old, with nothing to indicate that he was sub-normal or lacking in mentality. We hold, therefore, that knowing the penalty that might be imposed upon him and his right to counsel and a jury trial, he waived same and that the court did not err in entering judgment against him upon his plea of guilty. *Page 654 The State filed a motion to dismiss this appeal on the ground that a judgment based upon a plea of guilty is not appealable but is final and conclusive until such plea of guilty is set 7. aside. It is the State's contention that appellant's only remedies were by motion to vacate the judgment and for leave to withdraw his plea of guilty, or by a petition for a writ of error coram nobis. Certainly these remedies at proper times would be open to appellant, but a judgment on a plea of guilty may also be challenged by appeal. Kuhn v. State, supra. Appellant says he was deprived of his constitutional right to counsel. If he did not waive his right to counsel there was error in taking his plea and entering judgment thereon. By Rule 1-11, this court has recently provided a means for placing in the record the facts in connection with an arraignment where a plea of guilty is made. Historically we know that the reason for this was to make a record at the time, to which both the State and the accused may look if a question such as is before us now is raised. In this case the judge, pursuant to the requirement of said rule, caused a transcript of all proceedings in connection with the arraignment and sentencing of the appellant to be made and certified that it was true and complete. We know of no reason why an appeal should not lie from the judgment in this case. The facts are in the record and the claimed error of the court in failing to advise appellant of and afford him his constitutional rights could be assigned as independent error in this court. The motion to dismiss is overruled and the judgment is affirmed. NOTE. — Reported in 83 N.E.2d 189. *Page 655

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426424/

On March 12, 1925, the appellant loaned the appellee church $3,000.00. This loan was evidenced by a promissory note, payable to the order of William H. Zieseniss, on or before five years after date, and was secured by a real estate mortgage upon the appellee's parsonage. On the same day Zieseniss assigned the note and mortgage, without recourse, to the appellant. At the same time the appellant, as additional security for the loan to the appellee, required the appellee to furnish an accommodation note for the same amount, signed by Zieseniss and two others and maturing at an earlier date than the mortgage note. The proceeds of this loan were received and used by the appellee church. The appellant bank carried this loan on its books as if it were evidenced by the accommodation note but on some of the records, following the names of the makers of the note, there was the explanatory notation "Church Note." Sometime thereafter Zieseniss, as surety for Henry C. Peters, executed two additional notes, one for the sum of $4,000.00 to the appellant and one for the sum of $5600.00 to another bank. On May 4, 1934, the said Zieseniss procured a mortgage loan from the Federal Land Bank of Louisville and, in connection with this loan, the cashier of the appellant, for and on behalf of the appellant, signed a "Creditor's Statement of *Page 75 Indebtedness and Authority for Payment" addressed to said Federal Land Bank, which statement represented that the said Zieseniss was indebted to the appellant on an unsecured note for $7,000.00 and agreed that the appellant would accept, in full satisfaction of said claim, the sum of $3,860.00 in bonds of the Federal Farm Mortgage Corporation, at face value and/or cash, at the option of the Federal Land Bank, and further agreed "that directly or indirectly no note, mortgage, or other consideration will be received from the debtor, other than the consideration paid by the Federal Land Bank and/or the Land Bank Commissioner, and that when said consideration is paid all claims of this creditor against the above named debtor will have been satisfied in full." While said creditor's statement did not give any further details as to the $7,000.00 claim of the appellant against Zieseniss than that it was evidenced by an unsecured note, it seems perfectly clear from the evidence and from the consideration of the creditor's statement as a whole that the appellant intended that said $7,000.00 should include the liability of Zieseniss as surety on the $4,000.00 Peter's note and his liability on the $3,000.00 accommodation note given in connection with the church loan. Upon the closing of said loan from the Federal Land Bank to Zieseniss the appellant received $3,654.00 in cash in lieu of said bonds and with said amount, pursuant to a prior agreement with Zieseniss, paid and satisfied the Peters note upon which Zieseniss was surety and applied none of the proceeds of said loan to the payment of the $3,000.00 accommodation note. When the accommodation note was renewed from time to time it was made for the amount of the balance then still unpaid on the appellee's mortgage loan. The last *Page 76 renewal of the accommodation note was made on July 27, 1935, for $2,418.39. In September, 1935, the appellee sold its parsonage property, and the purchasers thereof procured a loan in the amount of $2,400.00 from the appellant to apply on the purchase price, giving their note and purchase money mortgage as security therefor. Thereupon, the proceeds of said purchasers' loan were used to pay the mortgage debt of the appellee, on which there was an unpaid balance of $2,400.00, and said mortgage of the appellee was released. In December, 1939, the then minister of the appellee church called on the appellant and demanded that the appellant pay back said $2,400.00 either to the appellee or said Zieseniss. The appellant refused to do this and the appellee then brought this action to recover of the appellant the sum of $2,740.00, on the theory that the purchaser of the parsonage property had paid this amount of the purchase money to the appellant for the use and benefit of the appellee. A trial to the court on the issues joined resulted in a finding for the appellee in the sum of $1,654.28 with interest at six per cent from September 10, 1935, and judgment for the appellee was entered accordingly. The appellant's motion for a new trial, on the grounds that the decision of the court was not sustained by sufficient evidence and was contrary to law; and that the court erred in the assessment of the amount of the recovery in that the amount of the recovery was too large, was overruled, and this action of the court is assigned as error. The appellant contends that the inclusion of the liability of Zieseniss on the accommodation note in the total liability described in the creditor's statement and the agreement to accept, and the acceptance of, the proceeds *Page 77 of the Federal Land Bank loan in full payment of said liability did not affect the liability of the appellee as principal on its debt to the appellant; and that the amount received by the appellant from the proceeds of the sale of the parsonage was only the amount which was still unpaid and due on the original mortgage debt of the appellee. The appellee insists that the appellant, by receiving the proceeds of the Federal Land Bank loan after having agreed in the creditor's statement given in connection with the loan to accept said proceeds in full satisfaction of its $7,000.00 claim against William Zieseniss which included the amount of the accommodation note held by the appellant in connection with the church mortgage loan, thereby satisfied the church debt; that the proceeds from the sale of the parsonage property were applied to a debt which had already been fully paid and satisfied; and that the appellee is entitled to recover in this action for money had and received the amount so misapplied by the appellant. With this contention of the appellee we cannot agree. Counsel for the appellee, throughout appellee's brief, has repeatedly stated, as a statement of fact, that the appellant has overpaid itself on the debt of the appellee. For example, on page 30 of the appellee's brief it is stated: "Clearly appellant has collected from appellee church not $3,000.00 and interest . . . the amount of this debt, but $4,654.28 and interest. Why should appellant under any circumstances be permitted to make such a profit out of its own chicanery and trickery perpetrated on the helpless farmer, Wm. Zieseniss, and this innocent church who was not aware of this `secret, private, oral understanding' existing between farmer Zieseniss and appellant's cashier Lehman?" *Page 78 Again, on page 38 of the appellee's brief, counsel for appellee said: "And appellant succeeded quite well with its nefarious plan because up to the time appellee church filed this suit appellant had collected and paid itself $4,654.28 plus 10 years interest on the whole sum and had obtained appellee church's parsonage property in the process." There is no evidence to support these statements. The evidence in this case clearly shows that when the loan from the appellant to the appellee was made, the appellee received from the appellant $3,000.00 in cash, which it used; that the appellant received in payment of this loan only $3,000.00 principal, with interest thereon to the date of the payment; that if the appellant by reason of the judgment herein should be compelled to pay to the appellee the sum of $2,165.71 it will result in the appellee receiving from the appellant the total sum of $5,165.71, for which the appellee has paid only $3,000.00, a profit to the appellee of $2,165.71 at the expense of the appellant. It is difficult to conceive of any one resorting to equity to attempt to accomplish such an inequitable result. In attempting to support the judgment obtained below the appellee cites O'Neil v. Johnson et al. (1939), 29 F. Supp. 307;Smeltzer v. McCrory (1937), (Tex.) 101 S.W.2d 850;Federal Land Bank et al. v. Koslofsky (1937), 67 N.D. 322,271 N.W. 907; Federal Land Bank et al. v. Blackshear Bank (1936), 182 Ga. 657, 186 S.E. 724; Chaves County Bldg. LoanAss'n v. Hodges, et ux. (1936), 40 N.M. 326, 59 P.2d 671, and Bealkowski v. Powers et al. (1941), 310 Ill. App. 662,35 N.E.2d 386. In each of these cases it was held, on the plea of the debtor or the Federal Land Bank, that notes taken or held by the creditor in violation *Page 79 of a "scale-down" agreement, which the creditor had made with either the Federal Land Bank or the Home Owners Loan Corporation, were void and unenforceable. In O'Neil v. Johnson, supra, the court pointed out two reasons for this holding, first, that to permit the creditor to rebuild the very debt structure which was reduced by the "scale-down" agreement would put the farmer back in his old position and, although the Federal Land Bank would thereafter hold a first lien against the farmer's land, such a lien would not give "the true security which is intended, namely, the security of a successful farm, whose earnings are ample to assure repayment of the Land Bank loan. The farmer, as already demonstrated, is unable to realize sufficient income to take care of his obligations under his former load of debts. Hence the courts declare promissory notes obtained in violation of a scale-down agreement, and which recreate the old debt structure, void." In the second place the purpose of the Federal Land Bank law was to extend relief to farmers so that they would be able to continue the operation of their property. "By means of debt reduction, the farmer was to be placed in a position where he might make a success of his business. If the individual creditor were permitted to ignore the debt reduction and were allowed to exact notes for the balance of the old debt, the farmer would be no better off than he had been before the Land Bank came to his assistance with a loan." The appellee contends that these cases apply to the instant case and make the church note and mortgage, held by the appellant, void as of the time the appellant accepted the 1. proceeds of the Federal Land Bank loan to Zieseniss. The appellant makes this contention on the theory that there was *Page 80 only one $3,000.00 debt owing to the appellant at the time it made the "scale-down" agreement with the Federal Land Bank, and that this one debt was included in the "scale-down" agreement. It is true that there was only one $3,000.00 debt held by the appellant at that time but on that one debt the appellee church was liable as principal and the liability of Zieseniss as a maker on the accommodation note, was only a contingent liability as a surety for the church debt. If the appellant had attempted to enforce the liability of the accommodation note against Zieseniss the rule of law announced in the above decisions would have applied. It does not follow, however, that because the appellant could not enforce the liability of Zieseniss, on the accommodation note as surety for the church debt, it could not enforce the liability of the principal debtor. The release of a surety under circumstances such as these does not release the principal. The liability of the church was not mentioned in the creditor's statement and the reasons announced for the holding in the above cases furnish no reason for holding the liability of the appellee church cancelled in this case. The appellee admits that at the time the appellant received the proceeds of the Federal Land Bank loan the balance of the principal due on the church debt from the appellee was 2, 3. $2,400.00. Since the obligation of the appellee as principal was not destroyed by the receipt by the appellant of the proceeds of the Federal Land Bank loan, the payment to the appellant of $2,400.00 from the proceeds of the sale of the parsonage amounted simply to the payment by the appellee of the balance due on its debt to the appellant, and there is neither any legal nor equitable reason for the return of this money to the appellee. Equity will not imply a promise of a creditor to repay *Page 81 to a debtor an amount paid to the creditor to discharge the just debt of the debtor. Equity imputes to the debtor an intention to fulfill his obligation. Another fatal defect in appellee's case is disclosed by the facts. If the receipt by the appellant of the proceeds of the Federal Land Bank loan to Zieseniss could be held to have 4. extinguished the debt of the appellee or any part thereof, this would amount to a payment by the surety on the debt of the principal. In such case any possible right to a refund from the creditor would belong to the surety unless the principal had repaid the surety. This is recognized by the appellee as shown by the following statement on page 42 of its brief: "Zieseniss was surety for the appellee church and as such surety paid $1,654.28 of the appellee church's debt to appellant; then the appellee church repaid its surety Zieseniss and owed Zieseniss no money at the time of the trial." It is true that at the time of the trial the appellee church owed Zieseniss no money, not because they had paid him the $1,654.28, but because he, as surety, had not paid any part of the debt of the appellee church. There was no evidence from which a reasonable inference could be drawn that the appellee had repaid any amount to Zieseniss. The only testimony on this point was by Zieseniss. In his direct examination he was asked, "Is that note, and the debt represented by that note of the Church to you — has that been paid?" He answered, "That has been paid to me." On cross-examination he was asked the question, "Mr. Zieseniss, if I understood you rightly yesterday, you said that the Church has paid you what it owed you. Will you tell us what the real facts were, about that?" Zieseniss *Page 82 answered that he did not know that question was put to him in that way; and that he did not recall having made such an answer. He then testified as follows: "Q. You don't recall that: What are the facts about it — did the Church ever pay you anything? "A. No. "Q. They never paid you anything, did they? "A. They paid the bank, yes. "Q. Yes, they paid the bank; they never paid you anything, did they? "A. No." In reference to the payments that were made on the mortgage and note given by the appellee in 1925, reducing the mortgage debt down to $2,400.00, Zieseniss testified as follows: "Q. Yes. Those payments all came from the Church, didn't they? "A. They came from the Church, yes. "Q. You never paid anything on the note yourself? "A. No." In oral argument counsel for appellee at first insisted that Zieseniss had been repaid by the Church; then said that there was evidence to sustain a finding of such repayment; and finally admitted that no such repayment had been made. The above testimony by Zieseniss, of course, furnishes no basis for an inference that he had been repaid in any amount by the church. Without such repayment to the surety the principal could have no possible equitable claim to a refund. Since the decision of the trial court is not sustained by the evidence and is contrary to law the judgment is reversed and the trial court is instructed to grant the appellant's motion for a new trial. NOTE. — Reported in 41 N.E.2d 197. *Page 83

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426430/

On and prior to May 31, 1946, there was pending in Room 3 of the Superior Court of Marion County, Indiana, an action wherein relator was plaintiff. A partnership between plaintiff 1, 2. and defendants was alleged and the plaintiff sought an accounting and a receiver for the partnership *Page 542 property. The case was tried without a jury and the evidence was concluded on May 31, 1946, and taken under advisement. We know judicially that the May term of the Superior Court of Marion County ended on June 1, and that the June term of said court ended on June 29, and said court was in vacation from said date until September 3, 1946. It does not appear that during the vacation of said court any special, adjourned or continued term of said court had been provided, in the absence of which the court and the judge were without power to determine the issue held under advisement. Glaser v. State (1932), 204 Ind. 59,183 N.E. 33, 35; State v. Hindman (1902), 159 Ind. 586, 589, 590, 65 N.E. 911; State v. Bridges (1946), 116 Ind. App. 483,64 N.E.2d 411, 414; Isaacs, Trustee v. Fletcher AmericanNat. Bank (1934), 98 Ind. App. 111, 120, 185 N.E. 154, 157. It appears from respondent's verified answer, without contradiction in relator's reply, that during the 24 judicial days intervening between May 31, and June 29, date of adjournment for summer vacation, the docket of said court was congested with other matters of equal importance and right to priority, and that during said period of time rulings on pleadings in 56 cases were made and entered, six cases were tried and taken under advisement, support hearings and hearings upon other domestic matters, not including divorces, were heard in 109 cases, and 154 cases were tried and disposed of, making a total of 324 cases in which the court acted during the period between May 31, and June 29, 1946. The court had not decided relator's case when the June term ended and summer vacation intervened. During vacation the judge of said court did not file his *Page 543 determination of said case in writing with the papers in the case, and on August 30, 1946, because of respondent's failure to decide said case within 90 days after taking same under advisement, relator filed in the office of the clerk of said court his application that the submission of said cause be withdrawn from the judge who tried the same, and that the judge be disqualified to hear or determine same, and that a special judge be appointed to take jurisdiction thereof. A copy of said application to terminate the jurisdiction of the judge who heard the evidence in said cause was left with the wife of said judge at their home and there is no claim that his attention was not called to same promptly. Notwithstanding the filing of said application, respondent continued jurisdiction over said cause and announced that he would decide and determine same. Relator thereupon presented to, and later filed in, this court his petition for a writ prohibiting respondent from proceeding further in said matter. A temporary writ was not issued, but respondent was ordered to file answer and briefs, which has been done. The statute, upon which relator relies, reads as follows: "Upon trials of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally for the plaintiff or defendant, unless one of the parties requests it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case, the court shall first state the facts in writing, and then the conclusions of law upon them, and judgment shall be entered accordingly. And whenever any issue of law or fact is submitted to the court for trial, and the judge shall take the same under advisement, the judge shall not, except in case of severe illness of himself or family, hold the same under advisement for more than sixty (60) days; *Page 544 and, if the court wherein said issues arose be not then in session, he shall file his determination therein, in writing, with the papers in the case: Provided, That if the judge shall fail to determine any issue of law or fact which has been taken under advisement within ninety (90) days after having taken the same under advisement, upon written application of any of the parties to the action, or their attorneys of record, duly filed in the office of the clerk of said court and called to the attention of said judge before the announcement of the decision of the issue in question, the submission of said issue shall thereupon be withdrawn and the judge before whom said cause is pending shall be disqualified to hear or determine any of the issues in said cause, and a special judge shall be appointed to take jurisdiction thereof under the same rules and regulations prescribed by law in cases where the judge is disqualified for hearing a given cause." (§ 2-2102, Burns' 1946 Replacement.) It is contended by relator that by virtue of this statute respondent has been without jurisdiction in the case referred to since August 30, 1946, and should be prohibited from proceeding further therein. It is contended by respondent, among other things, that the statute is unconstitutional and void as a legislative interference with judicial functions insofar as it attempts to fix the time within which a court shall rule upon an issue submitted to it. This statute has been before this court and the Appellate Court in its different stages a number of times, but its constitutionality has never been presented or passed on, although in one case this court took occasion to express doubt concerning the constitutional validity of the proviso depriving the court of further jurisdiction of any issue taken and held under advisement for 90 days or more. State ex rel. Harlan v.Municipal Court (1942), 221 Ind. 12, 14,46 N.E.2d 198. *Page 545 It is also of interest and significant, we think, to note that never in the several cases involving this statute which have been before this court and the Appellate Court has the statute been given literal effect. In Jones v. Swift, Exr. (1883),94 Ind. 516, and in Smith v. Uhler (1884), 99 Ind. 140, 142, the language forbidding the court to hold any issue under advisement for more than 60 days was held to be directory only and judgments rendered after the prescribed period were held to be valid. InState v. Wirt (1931), 203 Ind. 121, 130, 132, 177 N.E. 441, an application to withdraw submission was made, but the proviso clause was held to create only a procedural privilege which could be, and was held to have been, waived in that case. In State exrel. Harlan v. Municipal Court, supra, it was held that after a judge had heard the evidence in a case, and later held a motion for a new trial under advisement for more than 90 days, he was still entitled and required to rule upon the motion for a new trial upon the ground that the proviso in the statute, insofar as it would require appointment of a special judge to pass upon a motion for a new trial was superseded by Rule 1-9 of this court requiring that motions for a new trial shall be ruled on by the judge who had heard the evidence. The constitutionality of those portions of the statute which require the judge to act within a named period of time is now before us and decision involves the application of old and well established principles. The separation and independence of the executive, legislative and judicial branches of government are fundamental in the scheme of government which has uniformly prevailed in this country. Provision therefor is found in the Federal Constitution and in the constitutions of substantially all of the states. *Page 546 Section 1 of Art. 3 of the Constitution of Indiana reads as follows: "The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided." Of this section of the Constitution, Judge Elliott said inState, ex rel. Hovey v. Noble (1889), 118 Ind. 350, at p. 354, 21 N.E. 244: ". . . There is more than a mere theoretical separation, or else words are powerless and constitutions mere empty fulminations. The provisions of the Constitution we have quoted, taken in connection with those which prescribe, define and limit the powers of the other departments of government, remove all doubt and make it incontrovertibly plain that the courts possess the entire body of the intrinsic judicial power of the State, and that the other departments are prohibited from assuming to exercise any part of that judicial power." Section 1 of Art. 7 says that, "The judicial power of the State shall be vested in a Supreme Court, in Circuit Courts and such other courts as the General Assembly may establish." Of this section, Judge Elliott said, in State, ex rel. Hoveyv. Noble, supra, at p. 352: ". . . The effect of this provision is to vest in the courts the whole element of sovereignty known as the judicial, established by the Constitution and the laws enacted under it, except in a few instances where powers of a judicial nature are expressly and specifically lodged elsewhere . . ." *Page 547 In the same case, at p. 355, the following words from an Illinois case are quoted with approval: "`If there is any one proposition immutably established, I had supposed it to be, that the judiciary department is absolutely independent of the other departments of the government.'" In Board v. Albright (1907), 168 Ind. 564, 578, 81 N.E. 578, the following language is quoted from Board, etc. v.Stout (1893), 136 Ind. 53, 35 N.E. 683: "Courts are an integral part of the government, and entirely independent; deriving their powers directly from the Constitution, in so far as such powers are not inherent in the very nature of the judiciary. A court of general jurisdiction, whether named in the Constitution or established in pursuance of the provisions of the Constitution, cannot be directed, controlled, or impeded in its functions by any of the other departments of the government. The security of human rights and safety of free institutions require the absolute integrity and freedom of action of courts." By these provisions in the Constitution the three departments of government are made equal, coordinate, and independent, Lafayette M. B.R. Co. v. Geiger (1870), 34 Ind. 3, 4. 185, and no department of the state government can be controlled or embarrassed by another department of the government, unless the Constitution so ordains. State v.Shumaker (1928), 200 Ind. 716, 721, 164 N.E. 408. Any act by which the legislature attempts to hamper judicial functions or interfere with the discharge of judicial duties is unconstitutional and void. 16 C.J.S. 298; 11 Am. Jur. p. 908. The principles above enunciated have been applied to statutes undertaking to fix the time within which *Page 548 courts shall act in certain cases or matters. Rottschaefer on Constitutional Law, p. 53. Atchison T. S.F.R. Co. v. Long (1926), 122 Okla. 86, 88, 251 P. 486; Schario v. State (1922), 105 Ohio St. 535, 138 N.E. 63, 64; Riglander v. StarCo. (1904), 90 N.Y. Supp. 774, 775, Affirmed, 181 N.Y. 531, 73 N.E. 1131. In each of the cases just cited, legislation attempting to require judicial action within periods named was held unconstitutional and void as legislative interference with judicial functions. In Riglander v. Star Co., supra, the following language was used: "One of the powers which has always been recognized as inherent in courts, which are protected in their existence, their powers, and jurisdiction by constitutional provisions, has been the right to control its order of business, and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a court organized to enforce rights and redress wrongs." In the same case the court said that in considering the order of disposition of cases courts exercise judicial discretion with which the legislature may not interfere. In Schario v. State, supra, the court used the following language: "We hold, therefore, that a provision of law mandatory in its terms, intention, and character, requiring the court in the exercise of a jurisdiction duly conferred upon it to hear or determine a cause within 30 days from the time within which it is filed in court, or submitted to the court, is an unreasonable and unconstitutional invasion of judicial power, and therefore void." *Page 549 Rottschaefer on Constitutional Law, says at p. 53: "The principal of separation of powers prohibits the legislature not only from exercising judicial functions but also from unduly burdening or interfering with the judicial department in its exercise thereof. . . . Statutes unduly restricting the court's discretion in controlling the conduct of its business, as by requiring certain cases to be tried within 10 days after filing the answer therein, or by limiting the time within which appeals must be heard and determined, have been held invalid on this basis." This court has also given expression to the same idea. In 1917, the legislature passed an act concerning civil procedure and undertook to prescribe rules to bind courts in the performance of their duties. The act was promptly held unconstitutional.Solimeto v. State (1919), 188 Ind. 170, 172, 122 N.E. 578;Gray v. McLaughlin (1921), 191 Ind. 190, 193, 131 N.E. 518;Roberts v. Donahoe (1921), 191 Ind. 98, 104, 131 N.E. 33. InSolimeto v. State, supra, Judge Townsend said: "The court has power to make its own rules as to briefs, and as to the conduct of business before the court. It is not a legislative function to make rules for the court, or to say what the court shall consider a sufficient brief. This court will have to be the judge of how it can best expedite business, . . ." (Our italics.) The same language was repeated in Gray v. Mclaughlin,supra. Likewise, it may be said in the case before us, that the court and not the legislature must be the judge of the order in which it will dispose of cases and what period of time proper disposition shall require. There may be, and probably are, abuses and unjustified delays by courts in the disposition of cases, but the remedy is with the judicial branch of the government, *Page 550 not the legislative, or perhaps at the polls when a delinquent judge comes up for reelection. The application of the foregoing rules and principles to the case before us is so obvious as hardly to require elucidation. Here we have a case where the evidence was heard by a regular judge of the Superior Court of Marion County and taken under advisement. Its disposition, and determination of the time of disposition, would be judicial acts, and the statute under consideration undertook to authorize interference with these judicial functions. With the number of cases which the record shows required the court's attention, it is clear that if business was to be expedited the court must have full control of the time and order and manner of disposition. To permit one of the parties in one of very many pending cases to require disposition of his case in advance of all the others would clearly be such interference with the management of the business of the court as would constitute interference with judicial functions. We conclude, therefore, that the statute involved constitutes legislative interference with the judiciary and to the extent that it requires action by courts within specified times 5. and deprives the courts of jurisdiction for failure to act within such time, is unconstitutional and void. Having so decided, it is unnecessary to consider other points presented by the respondent. The relator in arguing the constitutionality of the statute, urges that the Superior Court of Marion County is a statutory court created by the legislature and therefore subject to 6. regulation by its creator. It is true that the Superior Court of Marion County is a statutory court but that does not mean that it acquires its judicial power from the legislature. The legislature, under the Constitution, may create other *Page 551 courts than those named in the Constitution. But the Constitution alone bestows judicial power and all judicial power comes from the Constitution and is vested by it in courts and judges who can no more be interfered with by the legislature than a court or a judge created by the Constitution itself. State ex rel.Youngblood v. Warrick Circuit Court, supra; Board, etc. v.Albright, supra; Board v. Stout, supra; State, ex rel v.Noble, supra. Relator leans heavily upon Burton v. McGregor (1853),4 Ind. 550, which involved the statute requiring a justice of the peace to enter certain judgments immediately and others within four days after trial. It is true that this case holds that the failure of the justice to enter judgment within the specified period terminated his authority over the case. But the constitutionality of the statute was not presented, and therefore not decided, and we have found no other case to the same effect. On the contrary, State, ex rel. Cory v. Brewer (1878),64 Ind. 131, and Martin v. Pifer (1884), 96 Ind. 245, fail to follow it. The court attempts to distinguish these cases fromBurton v. McGregor, supra, but the effect of these cases is seriously to weaken the force of Burton v. McGregor, supra. We do not think that Burton v. McGregor can properly be considered authority for sustaining the validity of the statute before us, and to the extent that it may be so considered, we decline to follow it. Believing as we do that the portions of the statute upon which relator relies are unconstitutional, we find that respondent was not shorn of his jurisdiction in this case and that relator 7. therefore is not entitled to the writ of prohibition prayed for. Writ denied. NOTE. — Reported in 69 N.E.2d 592. *Page 552

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426431/

This action was instituted by William MacGrath as administratorde bonis non of the estate of his daughter Gladys MacGrath against appellants *Page 519 and against Lind Construction Company, an Illinois corporation. William MacGrath died and Margaret Struble was substituted as administratrix de bonis non and plaintiff while this action was pending in the trial court. No service was had upon Lind Construction Company, and no appearance was made by it. The complaint was in four paragraphs, the first charging negligence on the part of the City of Gary, the second charging negligence upon the part of T.P. Phillips Building Building Company, the third charging negligence on the part of the Lind Construction Company, and the fourth charging negligence upon the part of all the defendants. The City of Gary filed a demurrer to the fourth paragraph of complaint, which demurrer was overruled. Separate answers in general denial were filed by appellants. The cause was submitted to a jury for trial and the jury returned a verdict in favor of appellee against both appellants in the sum of $4,000. Appellants filed separate motions for new trial and thereafter appellee remitted $1,500.00 on the verdict. Thereupon the court overruled each of said motions for new trial and rendered judgment against both appellants in the sum of $2,500.00. Upon appeal appellants filed separate assignments of error. City of Gary assigned as error, the overruling of its demurrer to the fourth paragraph of complaint and the overruling of its motion for a new trial. T.P. Phillips Building Company assigned as its sole error the overruling of its motion for a new trial. We shall first discuss the contended error in overruling the demurrer of the City of Gary to the fourth paragraph of complaint. The demurrer alleged insufficiency of facts to constitute a cause of action. Hereinafter the word "complaint" shall be construed to refer only to the fourth paragraph of complaint unless a different meaning is indicated. *Page 520 The allegations of the complaint which are or might reasonably be considered pertinent here are as follows: ". . . That plaintiff's intestate, the said Gladys MacGrath, on and prior to the 2nd day of December, 1925, resided at 191 Maple Avenue, Galesburg, Illinois, but that, on said date, she was staying temporarily at the Olympic Hotel, located on the corner of Fifth Avenue and Massachusetts Street, in the City of Gary, Lake County, Indiana. That, on said date, she was a school teacher in the Emerson High School and was staying at said hotel, but was accustomed to going elsewhere for her meals. That, on said date, to-wit: the 2nd day of December, 1925, at about 6:15 P.M., she left said hotel, in company with her roommate, to go for her evening meal. That she emerged from said hotel on Massachusetts Street, proceeding south along the east side of said street, until she reached the south line of said hotel, thence stepping off the curbing into the alley south of said hotel, which alley leads into Massachusetts Street from the east, in a line parallel with the south line of said hotel. That, after stepping into said alley, decedent proceeded south and west across said alley, there being then and there no sidewalk on the east side of Massachusetts Street from the south line of said alley to Sixth Avenue, on which she could walk. "That, at the time said decedent commenced to cross from the east side of Massachusetts Street to the west side of said street, at the point where the alley intersects as aforesaid, there was an automobile parked on the east side of said street just north of the north line of said alley, thereby cutting off the view of decedent and preventing her from seeing any objects approaching from the north. That, as decedent was proceeding across the street as aforesaid, and, when she was approximately one step west of the west line of said parked automobile and directly south of the south line of said car, being then and there only ten (10) feet, more or less, from the east line of said Massachusetts Street, she was struck by an automobile coming from the north, thrown over against the curbing of the east side of said street and suffered numerous injuries, to-wit: a crushed ruptured lung, contusion of the scalp, with laceration thereof, fracture of the left *Page 521 scapula, fracture of the mid-auxiliary line of the left third and fourth ribs, and general shock. That said decedent was taken to the Mercy Hospital, Gary, Indiana, immediately, where she succumbed and died the following day, to-wit: the 3rd day of December, 1925. "That the proximate cause of the death of plaintiff's intestate was the wrongful act, default, negligence and carelessness of the defendants, jointly and severally, to-wit: the City of Gary, T.P. Phillips Building Company, and Lind Construction Company, in allowing to be placed and permitting to remain an unwarranted obstruction, by building materials and machinery, of the public street and sidewalk areas on said Massachusetts Street along and in front of a garage then and there being erected by, for and in behalf of the defendant, T.P. Phillips Building Company, across from the said Olympic Hotel on the west side of Massachusetts Street, beginning at the corner of Fifth Avenue and extending south along the west side of said street, to a point west of the south line of said Olympic Hotel; in permitting to be placed and allowing to remain an unwarranted obstruction, by building materials and machinery, of the public sidewalk area on the east side of said Massachusetts Street just south of the alley which enters said street, said unwarranted obstruction then and there forcing plaintiff's intestate to cross the street to the west side of said street in order to proceed south to her destination; by permitting to be placed and allowing to remain an unwarranted obstruction of the public street and roadway, by building materials and machinery placed in the west part of said street and roadway all along and in front of said garage, being then and there erected, extending from Fifth Avenue south to a point across from where the said alley from the east intersects the said Massachusetts Street; in allowing to be placed and permitting to remain an unwarranted obstruction of the public sidewalk area, by building and machinery, all along and in front of said Massachusetts Street from the east; in allowing said building materials and machinery to remain in the west part of said street from the corner of Fifth Avenue south to a point across from where said alley intersects said Massachusetts Street from the *Page 522 east, and in allowing said materials and machinery to extend over said roadway more than one-third of the width of said roadway, in violation of a city ordinance of the City of Gary as hereinafter set forth, thereby forcing southbound automobiles on said street, from Fifth Avenue south, to pursue their course on the east side of the street. . . ." Appellant contends the allegations in the complaint to the effect that the City of Gary negligently permitted and allowed the maintenance of the alleged obstruction in the street in violation of the city ordinance thereby forcing the motorist to drive to the left of said obstruction, and that while he was so driving on the left-hand side of the street, he hit the decedent, thereby injuring her and causing her death, fails to establishor allege that said alleged negligence of the City of Gary wasthe proximate cause of said injuries and death. Appellant contends further that the allegations that the motorist hit her establish an intervening agency which was the proximate cause of decedent's injuries and death. In Sarber v. City of Indianapolis (1919), 72 Ind. App. 594, 604, 126 N.E. 330, this court said: "In applying the doctrine of proximate cause, and in determining what was the efficient cause of the injury . . ., we are required to apply our everyday judgment as men to ascertain whether or not there has been such a delinquency on the part of the appellee, uninterrupted by any supervening cause, that the act of the appellee in suffering and permitting the wire to be and remain in the river ought justly be held as the efficient cause of the injury of which complaint is made. The test is to be found not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious consequence." In that case the complaint alleged that the City of Indianapolis had assumed control of part of White River as part of a public park and had maintained it as *Page 523 a place for boating by the public, that the city had permitted barbed wire to remain imbedded in the bed of the stream, that when a canoe was overturned by a collision with a racing motor boat, appellant's minor son attempted to rescue a woman who had been thrown out of the canoe by the collision and in attempting the rescue appellant's son became entangled in the wire and was drowned. The only question presented upon appeal was the action of the trial court in sustaining a demurrer to the complaint. This court said, "the act of the appellee (City of Indianapolis) in permitting the wire to remain in the river did not set the other causes in motion," and held that said negligence of the city was not the proximate cause of the death, and that the trial court did not commit error in sustaining said demurrer. We think the language of this court which we have quoted from that case aptly states the proper attitude with which we should approach the question of proximate cause. Another apt statement on this subject is found in Milwaukee,etc., R. Co. v. Kellogg (1877), 94 U.S. 469, 474, 24 L. Ed. 256, and is as follows: "The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown in the market place. Scott v. Shepherd (squib case), 2 W. Bl. 892. The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?" In Kistner, Exrx. v. City of Indianapolis et al. (1885),100 Ind. 210, which was an action by appellant to recover *Page 524 damages for the death of appellant's decedent allegedly caused by negligence of the City of Indianapolis in permitting several railroads to operate their trains over seven tracks across a street without erecting and maintaining proper safeguards for the public, our Supreme Court held the trial court did not err in sustaining a demurrer to the complaint. The complaint alleged that decedent was about to cross said tracks when a wagon and team belonging to Archdeacon and Company approached the crossing from the opposite direction and the driver of said team, in attempting to avoid a collision with a train then approaching the crossing, caused the team to turn to the side of the street where decedent was walking and thus decedent was thrown under the wheels of the approaching train and killed. The Supreme Court said the alleged negligence in failing to guard said crossing was not the proximate cause of the death, that the act of the driver of the wagon was the proximate cause, and that "the intervening agency here was so direct and positive in its nature and effect that the death . . . can not be attributed . . . to the alleged negligence . . ." in failing to properly guard the crossing. We think the facts in the Kistner case, supra, are similar in legal effect to the facts in the instant case as to the doctrine of proximate cause. The Kistner case, supra, was followed inEnochs v. P.C.C. St. L. Rwy. Co. (1896), 145 Ind. 635, 44 N.E. 658, and Sarber v. City of Indianapolis, supra. Having applied "everyday judgment as men" to the question, asSarber v. City of Indianapolis, supra, prescribes, we conclude that the alleged negligence of appellants in the case before us, in permitting the street to be obstructed as alleged, was not such a delinquency which ought justly be held the efficient cause of decedent's alleged injuries and hence that said negligence is not the proximate cause of said injuries, and therefore *Page 525 the demurrer to the fourth paragraph of complaint should have been sustained. Appellee cites Knouff v. City of Logansport (1901),26 Ind. App. 202, 59 N.E. 347. In that case the complaint alleged that the plaintiff was walking on a public sidewalk near a bridge when suddenly and unexpectedly he was confronted with a person riding a bicycle on the same sidewalk coming directly toward him, and the plaintiff in an effort to avoid being hit by the bicyclist jumped suddenly to the side and, because of the city's failure to maintain proper guards, plaintiff fell "off of the end of the street at the place herein described." A demurrer to the complaint was sustained by the trial court and the Supreme Court held it should have been overruled. We think that case is readily distinguishable from the instant case on the question of proximate cause. As the court said in that case (p. 205), "Appellee's (City of Logansport) negligent breach of duty was a cause of the injury and although there was an intervening event, yet this intervening event and the defect in the street were concurrent causes of the injury and were both present and active in the result." That is not the situation in the instant case, the alleged permitting of said obstructions in the street and the driving of the automobile against decedent were not "both present and active in the result." The question as to whether or not the negligence of appellees, if any, in permitting said obstruction to remain in the street, was the proximate cause of decedent's injuries and death is presented by both appellants under their separate propositions that the verdict of the jury is contrary to law. It would serve no good purpose if we discussed that question with particular reference to such proposition. Even though it be assumed that the evidence sustains every material allegation of fact in each *Page 526 paragraph of complaint the verdict of the jury would be contrary to law for reasons which are apparent from a reading of this opinion. Other questions are presented, but in view of the conclusion we have reached and since none of said other questions are likely to arise in a retrial of this cause, we will not discuss them. Judgment reversed with instructions that said demurrer to the fourth paragraph of complaint be sustained and that each of the motions for new trial be sustained. Judgment reversed. Curtis, C.J., not participating.

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Appellant was sentenced to life imprisonment under the habitual criminal statute, §§ 9-2207 and 9-2208, Burns' 1933, §§ 2343 and 2344, Baldwin's 1934. The second count of the affidavit, upon which he was convicted, attempted to charge two prior convictions, sentences and imprisonments, the first for rape, the second for an offense under the laws of the United States. That part of the affidavit which pertains to the latter offense reads as follows: "And GERTRUDE E. SHENEFIELD, further says upon her oath that Fred Midland, alias Edward J. Novak, alias Harry Zalcman, alias Edward Novak, alias Harold Joseph Miller, alias Harry Hamilton, alias Harry B. Stauffer, was on the 3rd day of January, A.D., 1939, convicted in the District Court of the United States for the Southern District, California Central Division, of a felony, to-wit: obtaining value by pretending to be an officer and employee of the United States of America, and that as a result of, and based on such conviction, said defendant was sentenced by said District Court of the United States for the Southern District, California Central Division, to the United States Penitentiary at ____, in the State of ____, which was then and there a penal institution, *Page 670 for a term of One (1) year and One (1) day, and that in pursuance of said judgment said Fred Midland, alias Edward J. Novak, alias Harry Zalcman, alias Edward Novak, alias Harold Joseph Miller, alias Harry Hamilton, alias Harry B. Stauffer, was imprisoned at the said United States Penitentiary at ____ in the State of ____, in accordance with said sentence, . . ." Appellant's motion to quash this count on the ground that it "fails to state the alleged offense with sufficient certainty" was overruled and this ruling is assigned as error. The 1, 2. first sentence of § 9-2208, Burns' 1933, § 2344, Baldwin's 1934, reads: "To authorize a sentence of imprisonment for life under this act, the indictment or affidavit shall allege that the defendant has been previously twice convicted, sentenced and imprisoned in some penal institution for felonies, describing each separately." A permissible grammatical construction of this sentence is that only the felonies need to be described separately. But considering the sentence as a whole, its punctuation, the remainder of the act and the fact that life imprisonment is imposed in addition to the separate penalties for each offense, we think the court in Kelley v. State (1933), 204 Ind. 612, 616, 185 N.E. 453, 455, correctly concluded that, "To authorize a life sentence, the previous convictions, sentences and imprisonments must be described specifically, and the jury must find that the defendant was convicted, sentenced and imprisoned in the instances described, and not otherwise." A description of an imprisonment surely is not complete without a designation of the place of imprisonment. This evidently was understood by the author of the affidavit who provided a blank for the insertion of such a description but failed to fill in the blank. We think that the affidavit was so uncertain as *Page 671 to be subject to the motion to quash which should have been sustained. In State v. Dowden (1908), 137 Iowa 573, 575, 115 N.W. 211, 212, the court said, "It is not necessary that the indictment charge where the prison was in which defendant was committed; but if this were true we think it sufficiently appears from the charge that defendant was committed to prison in this State." The Iowa statute is similar to § 9-2207, Burns' 1933, § 2343, Baldwin's 1934, but does not contain the restrictive conditions as to pleading and proof found in § 9-2208, supra, and therefore we do not regard the dictum in this case as authority contra to the interpretation which has been given our statute. The record discloses that for the federal offense above mentioned appellant was committed to the custody of the Attorney General of the United States "for imprisonment in an institution of the penitentiary type," presumably pursuant to Title 18, § 753 (f) of the Criminal Code. He seems to have been confined in "Terminal Island Jail" at San Pedro, California, and in a "work camp" in Pima County, Arizona, but the record is silent as to the length of time he was in either institution. There was no evidence as to whether either was a "penal institution" within the meaning of the Indiana statute. This question is not for our determination but is brought to the attention of the trial court since there may be another trial in which such an issue may be presented. The alleged lack of certainty in the first count of the affidavit discussed in appellant's brief was not such that the court erred in overruling the motion to quash that count. 3. In any event the error was waived by the plea of guilty thereto. The judgment is reversed with instructions to the *Page 672 trial court to set aside the verdict and to sustain the motion to quash the second count of the affidavit. NOTE. — Reported in 46 N.E.2d 200.

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Appellant was employed by appellee as an inspector of steering gears at appellee's factory and as such inspector worked full time on August 20, 1934. The next day, on reporting for work, appellant was informed that because of lack of work he was laid off and at that time was given a white slip of paper notifying him to check out his tools. He then went to the *Page 409 employment office with his foreman, where plaintiff was told by a man in that office to come back the next day, August 22, at 3:00 o'clock P.M., to receive his pay. On August 22, while en route to the appellee's factory to collect his pay about 2:30 o'clock P.M., and when about one square from the said factory, upon a public highway, the motorcycle upon which plaintiff was riding and which he owned was in a collision with an automobile and plaintiff received an injury to his leg, since which time, owing to such injury, he has been unable to do any work. Appellant proceeded under the Workman's Compensation Act asking compensation because of such injuries and four members of the board, the fifth being absent because of illness, found "that plaintiff suffered no disability as the result of any accidental injury arising out of and in the course of his employment with the defendant," and ordered that plaintiff take nothing by his application for compensation and that he should pay the costs of the proceedings. Plaintiff excepted to the order of the full board and this appeal followed, the error assigned being that the award is contrary to law. In order to decide the question of whether appellant's accident arose out of and in the course of his employment with appellee we must first determine when the relationship of master and servant ceased to exist between appellant and appellee. When appellant received the notice that the employment was terminated and he had checked his tools and turned in his badge he was no longer subject to the orders of his master and the relationship of master and servant ceased to exist. When he left the premises without getting his pay the only relationship that remained existing was that of debtor and creditor. "There is no duty to the master that remains and there is no further obligation on the part of the *Page 410 master save only the payment of a debt which the former employee could collect through another or assign to another. The personal relationship which is of the essence of master and servant has then ceased. It is not reasonable to say that the employer is absolved from the responsibility of safely conducting the employee from his bench to a place where he becomes again a part of the general public. That status having been regained he is no longer an employee and if injured on a subsequent visit to the plant to get his pay or his tools or other personal property the accident may be said to arise out of his employment, but it cannot be said to be in the course of it." Olson v.Hurlburt-Sherman Hotel Co. et al. (1924), 210 A.D. 537, 538, 206 N.Y.S. 427. In the New York case the employment had been terminated as here and someone in the employment of the hotel company told the former employee to return at a certain time for her money, as was the case here, so in that respect the cases may be said to be identical. We therefore hold that appellant while engaged in the purely personal errand of collecting a debt owing to him could not be said to have been injured in the course of any employment. The award of the Industrial Board is not contrary to law and is in all things affirmed.

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https://www.courtlistener.com/api/rest/v3/opinions/3426441/

Action under the federal Employers' Liability Act by appellee, a switchman, to recover damages for alleged personal injuries sustained by him on June 12, 1924, on account of alleged negligence of appellant in maintaining a defective brake on a freight car. Appellant says that the essential controversies as to questions of fact are whether the ratchet wheel of the brake was inefficient and defective in the respects claimed by appellee, and whether appellee was injured and has been damaged in the manner and to the extent claimed by him. The court overruled the appellant's motion to make the amended complaint more specific, and his demurrer to the amended complaint, to each of which rulings appellant duly excepted. A jury trial resulted in a verdict for appellee for $6,000, on which, after appellant's motion for a new trial was overruled, this appeal. The errors relied upon for reversal are: (1) The court's action in overruling appellant's motion to make appellee's amended complaint more specific; (2) overruling appellant's demurrer to the complaint; and (3) overruling appellant's motion for a new trial. It is averred in the complaint, in substance, that on June 12, 1924, appellee was employed by appellant, as a switchman, to work and assist in the transfer and switching of freight and freight cars, hauled by appellant, from points outside of the State of Kentucky to its railroad yards which were located and maintained by appellant in the city of Louisville, Kentucky, and to make up trains of freight and freight cars in its yards and at other points in Louisville, to be transferred and switched to Jeffersonville and other points in Indiana and other *Page 604 states; that, on said day, appellee, under the terms of his said employment and while in the performance of his said duties as switchman and while acting under the orders and directions of appellant, was engaged in connecting the cars of a train of freight cars, in Louisville, to be delivered to Jeffersonville, Indiana; that in making up said train, it became necessary and was the duty of appellee, under his employment, to cut out from the train, to be delivered to Jeffersonville, a certain freight car which was loaded with freight, and which had been hauled by the Louisville and Nashville Railroad Company from a point outside Kentucky to be delivered at a point in appellant's railroad yards, to the consignee thereof; that said car, and the brake thereon, were, by reason of the carelessness and negligence of appellant, out of repair, inefficient and defective in this: That the ratchet attached to the staff of said brake was loose and would not hold when the said brake was wound up and set; that when said freight car was so cut out from said train, appellee, as required by the duties of his employment, undertook to set said brake on said car to prevent it from proceeding down a grade on said track on which it was located; that, for said purpose, he wound said brake and set the ratchet thereof to hold it in a set position; that when he was about to loosen his hold on the wheel of said brake, by reason of the defective and inefficient condition thereof, and of the ratchet thereof, it suddenly and with great force unwound and flew back, striking appellee and throwing him with great force and violence against said car, thereby injuring him. That, as a direct result of the inefficient and defective condition of said brake and the action thereof, and as a direct result of being struck against the side of said car, he suffered the fracture of one or more of the vertabrae of his spine, and his back and the muscles thereof were wrenched, bruised and strained; that the said fracture has caused *Page 605 a large callous to form, which presses against and interferes with his spinal cord; that he has been thereby caused to suffer, still suffers and will continue to suffer, great physical pain and mental anguish; that the use of his left leg has been materially reduced and injured; that said injuries are permanent; that he earned, before his said injuries, from $185 to $200 per month as wages; that he is permanently disabled from following his usual vocation as a switchman or earning wages as such; that he has been compelled to employ a physician for the treatment of his said injuries, at an expense of $200. He demands judgment for $20,000. Appellant, contending that the court erred in overruling its motion to make the complaint more specific, says that the precise nature of the charge in the complaint that the ratchet was loose and would not hold is not so apparent as to apprise a person as to why the ratchet would not hold. It is averred in the complaint that the ratchet attached to the staff of the brake was loose and would not hold and that after it was wound up, by reason of the defective and inefficient condition of the brake and ratchet, the brake unwound and flew back, thereby striking appellee. It is expressly provided by § 2 of the federal Safety Appliance Act, 8 Fed. Stat. Ann. (2d ed.) 1190, that: "On and after July 1, 1911, it shall be unlawful for any common carrier subject to the provisions of this act to haul or permit to be hauled or used on its line any car subject to the provisions of this act not equipped with appliances provided for in this act, to wit: All cars must be equipped with secure sill steps and efficient handbrakes." It thus appears that a railroad company is absolutely prohibited from hauling a car on its lines that is not 1. fully equipped with efficient hand brakes, and it was unnecessary, as against the motion to make *Page 606 more specific, that the complaint should contain an averment as to why the brake was defective and inefficient. The only fact which appellee needed to aver in its complaint as to the condition of the brake was that it was defective and not efficient, and that, while in such condition, it was hauled or permitted to be hauled by appellant. There is no duty resting upon appellee to explain why the brake or ratchet would not hold, and though the car may have been originally equipped with a proper brake, appellee was not required to aver and to prove that appellant did not use reasonable care to keep it in such proper condition. As stated above, the duty resting upon appellant not to haul or permit the car to be hauled unless properly equipped with efficient hand brakes, was absolute, regardless of any causes or reasons for its not being so equipped. Delk v. St.Louis, etc., R. Co. (1911), 220 U.S. 580, 55 L. Ed. 590, 31 Sup. Ct. 612; Chicago, etc., R. Co. v. Stierwalt (1926),87 Ind. App. 478, 153 N.E. 807, 810. The negligence averred in the complaint is the use of a car by appellant which was not properly equipped with an efficient hand brake. This was sufficient in this regard to inform appellant of the ground upon which the recovery was sought. Appellee was not required to do more.Pennsylvania R. Co. v. Winamac Cement, etc., Co. (1927),87 Ind. App. 649, 154 N.E. 772. The court did not err in overruling appellant's motion to make the complaint more specific. Appellant's contention that the court erred in overruling its demurrer to the complaint is based upon substantially the same reasoning as presented by it in its contention that the 2. court erred in overruling its motion to make more specific. It says that it does not appear by the complaint that appellant was guilty of any negligence in failing to equip the car with efficient brakes in the first instance, or in hauling it after the ratchet became loose and would not hold; that it *Page 607 does not appear that appellant was guilty of any negligence with reference to the ratchet becoming loose and failing to hold; that it does not aver in what the negligence of the defendant consisted; that the ratchet had been loose or inefficient for any length of time, or that appellant was negligent in failing to inspect it. These contentions of appellant are fully met by again asserting that it was the absolute duty of appellant under the federal Safety Appliance Act not only properly to equip its cars with efficient hand brakes but to maintain them as such, and there is no provision in the statute for any excuse for not so doing. The case of Chicago, etc., R. Co. v. Stierwalt, supra, involved the negligence of appellant in using a car in interstate traffic not properly equipped with automatic couplers, and this court held that: "This statute imposes an absolute duty on public carriers of interstate commerce. No cars loaded or unloaded can be used in interstate traffic that do not comply with the standard prescribed by the statute. This duty is notdischarged by showing the use of reasonable care in equippingcars with the required safety appliances. Chicago, etc., R. Co. v. United States (1911), 220 U.S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582; Delk v. St. Louis, etc., R. Co. (1911),220 U.S. 580, 31 Sup. Ct. 617, 55 L. Ed. 590." The complaint contains a general averment of negligence in using a car on its line that was not equipped with efficient hand brakes, and such an averment is sufficient to withstand appellant's demurrer for want of facts. Kinmore v. Cresse (1913), 53 Ind. App. 693, 102 N.E. 403; Princeton Coal, etc., Co. v. Roll (1903), 162 Ind. 115, 66 N.E. 169; Kaemmerling v. Athletic Mining Smelting Co. (1924), 2 F.2d 574. Under circumstances such as averred here, the rule of res ipsa loquitur, which is a rule of pleading as well as a rule of evidence, clearly applies. In the case of Baltimore, etc., R. Co. v. Hill (1925),84 Ind. App. 354, 148 N.E. 489, this court, in discussing *Page 608 the applicability of the res ipsa rule, said: "In this connection, let us suggest that there are cases wherein the particular facts and causal circumstances are obscure and where necessarily much is left to inference. In such cases, the rule of evidence, res ipsa loquitur, ought to and in fact does have its concomitant rule of pleading. While a complaint should state the facts with a reasonable degree of certainty, what constitutes a reasonable degree of certainty must depend upon the circumstances and nature of the case. And where the rule res ipsa loquitur is applicable, reason does not require the plaintiff to state the facts with that degree of particularity which would be required in ordinary cases. Indeed, in such a case, an attempt to specify the remote grounds of negligence would be mere guesswork on the part of the plaintiff." We hold that the complaint states a cause of action as against appellant's demurrer for want of fact. Presenting its assigned error that the court erred in overruling its motion for a new trial, appellant first contends that the verdict of the jury is not sustained by 3, 4. sufficient evidence, but this contention cannot prevail. The evidence of appellee alone, who examined the brake after he was injured, describing the defective condition of the brake, is sufficient in that regard to sustain the verdict. Supporting this testimony, there was evidence of a number of practical railroad men that such defects as appellee claims that he found on this brake frequently occur. That an accident occurred is substantially admitted. While there was some evidence by appellant's expert witnesses that he was not injured and that his condition was normal, there was other evidence by experts who had made a careful examination of appellee's condition, that he had sustained serious injury. Added to this, is the overwhelming evidence of those with whom appellee had been associated that, *Page 609 before the time of the accident, appellee was an ablebodied man and that thereafter he was disabled, being confined to his bed for a time and thereafter incapacitated for manual labor. All of these circumstances the jury had a right to consider. There was both positive and circumstantial evidence to sustain the verdict as to the injury. As was said in Chicago, etc., R. Co. v.Mitchel (1915), 184 Ind. 383, 110 N.E. 215, a case of this character may, of course, be made out entirely on circumstantial evidence, and with both positive and circumstantial evidence before it, the jury must determine upon its weight and force, and it is not for us, except upon very strong reasons, to disturb its verdict. Appellant complains that the court erred in refusing to permit it to read in evidence its Exhibit No. 7, which was an affidavit by appellee filed by him in objection to the motion of 5-8. appellant to require appellee to submit himself to physical examinations by physicians to be appointed by the court, by which affidavit, appellant sought to show that appellee, under oath, had admitted that Dr. Oscar E. Bloch, a physician and surgeon of Louisville, was in the employ of appellant acting for it in the examination and treatment of its injured employees, and in order that appellant might know the nature and extent of appellee's injuries, he went to the office of Dr. Bloch and submitted to a thorough and complete examination by Dr. Bloch, who was acting at the time for appellant, and that he again, at the request of appellant, submitted to a full and complete physical examination by Dr. Bloch, including an X-ray examination and picture of his spine. The affidavit was offered, as appellant stated, solely for the purpose of showing that Dr. Bloch was a competent witness, and, of course, was for the court. But such affidavit was a part of the record in the cause of which the court was bound to and *Page 610 did take judicial notice. It is not necessary to prove a thing of which the court takes judicial notice. State v. Simpson (1906), 166 Ind. 211, 215, 76 N.E. 544, 1005; State v. Downs (1897), 148 Ind. 324, 328, 47 N.E. 670; Hancock v. DiamondPlate Glass Co. (1905), 37 Ind. App. 351, 361, 75 N.E. 659. It is to be observed that the affidavit did not state that Dr. Bloch had not treated appellee as a patient nor that he had not been his physician. It does not appear by the affidavit that on the occasions when Dr. Bloch was examining appellee he was doing so solely as an employee of appellant. There was no error in refusing to permit the affidavit to be read in evidence. It is within the province of the trial court to determine as to the competency of a witness, and, in this case, as to whether the relation of physician and patient existed between Dr. 9-11. Bloch and appellee. After such preliminary examination, the offered testimony of the doctor was excluded on the ground that it was shown by the admissions of the doctor that he was at the time appellee's physician, that appellee had been treated by him as such physician during the preceding August, and that he had never told appellee that he was discharged as a patient. Because of the doctor's admission as to the relation between himself and appellee, the offered testimony was excluded. On this state of the record, we cannot say that the court erred. It is well settled that a physician is not competent to divulge any of the facts relative to the physical condition of his patient obtained by him when the relation of physician and patient existed. We do not need to cite authorities to sustain this well-established rule. In Louisville, etc., Traction Co. v. Snead (1910), 49 Ind. App. 16, 93 N.E. 177, the physician whose testimony was excluded was the appellant's physician, sent by it to attend those injured in a wreck. In the performance of the duties of *Page 611 his employment, he made an examination of appellee's injuries. It was held that to permit him to testify as to the result of his examination would be a clear breach of the rule excluding privileged communications. In Chicago, etc., R. Co. v.Schenkel (1914), 57 Ind. App. 175, 104 N.E. 50, it was held that statements made to or by physicians employed by a railroad company, while attending the injured party, shortly after his injury, should be closely scrutinized, because of the situation and condition of the injured party, and the natural bias and influence of physicians so situated. In the instant case, it appears by the record that Dr. Bloch had been treating appellee for the injuries involved in this action, and the doctor testified that he was his patient, that he treated him as a physician, and that he had never told him that he was discharged as his patient. We hold that the court did not err in excluding the offered testimony of Dr. Bloch on the ground of privileged communication. Appellant challenges instructions Nos. 12, 16 and 17, given by the court at appellee's request, but we have carefully examined each of these instructions in the light of the arguments of counsel thereon, and we hold that there was no reversible error in giving any one of them. The judgment is affirmed. Enloe, J., dissents. *Page 612

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07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/7247107/

KAREN K. CALDWELL, CHIEF JUDGE, UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF KENTUCKY This matter is before the Court pursuant to Defendant Jim Stevens' Motion for Summary Judgment (DE 31) filed on November 27, 2017, and his Motion to Strike Supplemental Disclosures accompanying Plaintiff Cecil Boggs' response in opposition to summary judgment (DE 40). For the following reasons, Stevens' motion for summary judgment (DE 31) is GRANTED IN PART and DENIED IN PART . Summary judgment is GRANTED as to Plaintiff's claims relying solely on supervisory liability under 42 U.S.C. § 1983. Summary judgment (DE 31) is DENIED as to all other claims. Stevens' Motion to Strike Supplemental Disclosures (DE 40) is DENIED as MOOT . The Court will entertain motions for qualified immunity following the Plaintiff's presentation of his case-in-chief. I. INTRODUCTION This case involves the alleged use of excessive force during an arrest in violation of state and federal law. Plaintiff Boggs originally filed this action in Letcher Circuit Court on September 9, 2016. (DE 1-1 at 2). In his original complaint, Boggs filed suit against Jim Stevens, individually and in his official capacity as a Jenkins City Police Officer, and Matt Martin, individually and in his official capacity as a Kentucky State Police Officer. Id. After defendants removed to this Court (DE 1), Boggs filed an amended complaint in which Jim Stevens was the only remaining defendant. (DE 14). Boggs' most recent complaint alleges that on September 11, 2015, Stevens arrested him in Letcher County, Kentucky. (DE 14 at 1). The authorities initially arrived at Boggs' home in response to a domestic violence complaint lodged by Boggs' wife. Id. Initial reports indicated that there may have been a weapon involved. (DE 30 at 6-7; DE 39 at 2). When Boggs learned that there were multiple officers outside his home, including Stevens and Martin, Boggs came out onto his second-story porch. (DE 39 at 1). Stevens directed Boggs to leave the porch and come down to the ground level. Id. Stevens contends that initially Boggs did not know what was going on, and "he was verbally non compliant [sic], verbally loud." (DE 30 at 6). After he issued repeated verbal orders, Stevens states that Boggs came out and got on the ground. Id. Stevens then began handcuffing Boggs, who was lying prone on the ground. Id. It is undisputed that Boggs attempted to keep his head off the ground when laying facedown. Boggs argues he did this to keep his face out of the gravel below. (DE 29 at 82). Stevens said he thought that by raising his head, Boggs was attempting to get up. (DE 30 at 6). *999Stevens asserts that because Boggs was trying to resist and get off the ground, he employed a pressure technique behind Boggs' ear called the "mastoid" process, which enabled him to handcuff Boggs. (DE 30 at 6-7, 14). Boggs, on the other hand, alleges that he complied with all of the officers' requests, and that his head was gratuitously slammed into the ground two or three times causing injury. (DE 29 at 72). Stevens alleges that he left the handcuffed Boggs with Deputy Chief Davis, and went an unspecified distance away to interview Boggs' wife about her domestic violence complaint. (DE 30 at 7). During this time, Boggs complains that Kentucky State Police Officer Martin threw Boggs to the ground and repeatedly delivered blows to Boggs' ribs with his flashlight resulting in further injuries. (DE 29 at 74). Boggs admits that Stevens was not around when he was thrown to the ground by Officer Martin. (DE 29 at 46). Boggs further admits that Stevens eventually ran over in an attempt to restrain Officer Martin. (DE 29 at 79). Medical records from an emergency room visit following the arrest find Boggs to have suspected hairline rib fractures, a displaced nasal fracture, swelling around the nose area, and blood in the sinuses and nasal cavity. (DE 37-1). Plaintiff Boggs' amended complaint alleges violations of state tort law, federal civil rights claims through 42 U.S.C. § 1983, and that his Fourth Amendment right against excessive force was violated during the arrest. (DE 14). Officer Stevens, the only remaining defendant in the case, now moves the Court to dismiss Boggs' claims through summary judgment, asserting among other things that he is entitled to qualified immunity on all claims. (DE 31). In his response to Stevens' motion for summary judgment, Boggs has included two affidavits-one of a responding officer, former Deputy Chief Crystal Davis, and a civilian ride-along who witnessed the arrest, Jessica Hicks. (DE 39). Stevens moves the Court to strike the affidavits from the record. (DE 40). II. ANALYSIS a. Legal standards Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden and must identify "those portions of the pleadings...which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal citation omitted). Once the movant meets the initial burden, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). When, as here, a defendant moves for summary judgment, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby , Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In this Court's consideration of the motion, "the evidence should be viewed in the light most favorable to the non-moving party." Ahlers v. Schebil , 188 F.3d 365, 369 (6th Cir. 1999) (citing Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ). When the motion for summary judgment is based on the defense of qualified immunity, the analysis is somewhat altered, and the existence of a disputed, material fact does not necessarily preclude summary judgment. See Woosley v. City of Paris , 591 F.Supp.2d 913, 918 (E.D. Ky. Dec. 2, 2008). In such a case, even if there *1000is a material fact in dispute, summary judgment is appropriate if the Court finds that-viewing the facts in the light most favorable to the plaintiff-the plaintiff has failed to establish a violation of a clearly established constitutional right. See id. ; see also Pearson v. Callahan , 555 U.S. 223, 129 S.Ct. 808, 816, 172 L.Ed.2d 565 (2009). b. Claims Premised on Supervisory Liability At the outset, it is important to note the legal scope of Officer Stevens' liability. Boggs' amended complaint alleges that "the Defendant used excessive force during the arrest[,] causing him significant injury, which included a broken nose, broken ribs and lacerations to his face...." (DE 14 at 1). Boggs claims that Officer Stevens is responsible for the force used by Officer Martin, since Stevens had taken Boggs into custody and was responsible for protecting him. (DE 39 at 5). In support of his position, Boggs cites a case from the United States Court of Appeals for the Sixth Circuit that discusses supervisory liability under § 1983. (DE 39 at 5) (citing Combs v. Wilkinson , 315 F.3d 548 (6th Cir. 2002). To prove such liability, "the plaintiff must demonstrate[ ] that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." Combs , 315 F.3d at 558 (internal citations omitted). Other than passing references to the defendant as "Chief Jim Stevens," the plaintiff does not explain the supervisory role that Jenkins Police Officer Stevens had over Kentucky State Police Officer Martin. Further, other than a passing argument that Stevens' actions during handcuffing were sufficient to authorize Martin's actions roughly ten minutes after handcuffing (DE 39 at 5; DE 29 at 45), Boggs provides no proof of encouragement or authorization by Stevens. Quite the opposite, even Boggs admits that Stevens was not in the immediate vicinity when Martin began beating him, and that Stevens was the officer who eventually intervened to stop the beating. (DE 29 at 46, 79). Even assuming Officer Martin's use of force, no reasonable jury could find that Stevens "implicitly authorized, approved or knowingly acquiesced" in Martin's allegedly unconstitutional conduct. See id. To the extent Boggs has pleaded claims based solely on supervisory liability, those claims are dismissed. c. Qualified Immunity and Federal Claims Defendant Stevens has raised the issue of qualified immunity. (DE 31 at 6). Qualified immunity shields government officials performing discretionary functions from "liability for civil damages insofar as their conduct does not violate clearly established...constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The question of whether qualified immunity shields a particular government official is one of law, and is to be determined by the district Judge. See Heflin v. Stewart County, Tenn. , 958 F.2d 709, 717 (6th Cir. 1992). Thus, where the facts shown by the plaintiff do not make out a clearly established constitutional violation, qualified immunity protects the government official from trial. See Pearson , 555 U.S. at 231-232, 129 S.Ct. 808. The plaintiff bears the burden of establishing that the defendant is not entitled to the defense, but the facts are viewed in the light most favorable to the purportedly injured party. See Malory v. Whiting , 489 Fed.Appx. 78, 82 (6th Cir. 2012). *1001Here, Boggs' claimed constitutional violation is excessive force used during his arrest, infringing upon rights guaranteed him by the Fourth Amendment. (DE 14). Claims of excessive force during arrest are analyzed under the objective-reasonableness standard. See Fox v. DeSoto , 489 F.3d 227, 236 (6th Cir. 2007). "[T]he question is whether the officer's actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor , 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989) (internal citations omitted). Proper application of the test "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396, 109 S.Ct. 1865. Overall, the Court finds the analysis in this case to be a close call, but notes that one factor relevant to reasonableness clearly favors the officer. Originally, the officers were dispatched to Boggs' home to respond to a complaint regarding domestic violence. (DE 30 at 6; DE 39 at 1). Initial reports indicated that there may have been a weapon involved. (DE 30 at 6-7; DE 39 at 2). Given the nature of the alleged crime, the intensity of responding officers is reasonably heightened in such a situation. But other factors within the reasonableness analysis are not as clear. Officer Stevens admits that after he repeatedly ordered Boggs to come out of the house and get on the ground, Boggs eventually complied, placing his hands in the air and falling to the ground. (DE 30 at 6, 15; DE 29 at 112). Once Boggs was on the ground, Officer Stevens alleges that Boggs tried to get up and resist being cuffed. Because Stevens thought Boggs was resisting, Stevens argues he reasonably used a "mastoid process," in order to apply handcuffs. (DE 30 at 6-7, 14). Boggs, on the other hand, alleges that he complied with the requests of the officers, and that, despite compliance, his head was gratuitously slammed into the ground two or three times resulting in injury. (DE 29 at 72). On Boggs' version of the story, he was neither a threat nor actively resisting when he sustained injuries to the face and nose. In support of his position, Boggs points the Court to Stevens' deposition testimony, in which Stevens admits that Boggs eventually put his hands in the air (DE 30 at 14), eventually complied with orders to get on the ground (DE 30 at 6), and Stevens admits to then pushing on the gap behind Boggs' ear (DE 30 at 15). For qualified immunity purposes, it is clear that a gratuitous blow to a neutralized or compliant suspect, and in this case one with the alleged force to fracture a nose, is unreasonable and clearly established as being so. See e.g., Baker v. City of Hamilton, Ohio , 471 F.3d 601, 607 (6th Cir. 2006) (ruling an excessive force claim could reach a jury when the plaintiff allegedly suffered a blow to the head with an asp after he raised his hands in the surrender position); see also Malory v. Whiting , 489 Fed.Appx. 78, 85 (6th Cir. 2012) ("[O]ur cases have framed a suspect's right to be free from excessive force as 'a clearly established legal norm precluding the use of violent physical force against a criminal suspect who already has been subdued and does not present a danger to himself or others ' "); see also Darnell v. Caver , 1998 WL 416000 (6th Cir. 1998) (unpublished) (finding that after suspect was thrown to ground, it was unreasonable for officer to lift suspect's head and let it drop to pavement). On Boggs' narrative, he received gratuitous blows to the head after he had surrendered and at a time in which *1002he was compliant. Viewing the evidence in a light most favorable to Boggs, he has shown a violation of a clearly established constitutional right at this procedural stage. See Pearson , 555 U.S. at 231-232, 129 S.Ct. 808. Further, the Court finds that a reasonable jury could conclude that Boggs was neither a threat nor resisting arrest at the time of the injuries to his face, and thus genuine issues of material fact preclude the Court from determining that Officer Stevens' actions were objectively reasonable as a matter of law. Boggs maintains that he complied with Stevens' requests and had given himself up prior to the alleged blows. (DE 29 at 72; DE 39 at 1-2). Boggs submitted medical records showing him to have a displaced nasal fracture, swelling around the nose area, and blood in the sinuses and nasal cavity following the arrest. (DE 37-1 at 4). The Court finds that Boggs has sufficiently shown that factual questions exist both as to the necessity of force, and the amount used. Arguments as to the reasonableness of Stevens' actions should be made to the jury. Although a jury may ultimately find differently, Boggs has sufficiently pleaded a violation of a clearly established constitutional right at this procedural stage. Boggs has also shown a sufficient dispute of facts that are material to the reasonableness analysis-namely whether he posed a threat or actively resisted arrest-to preclude summary judgment on his federal claims. d. Qualified Immunity and State Claims Plaintiff Boggs also brings state-law assault and battery claims against Stevens. (DE 14 at 1-2). In response, Stevens argues that he is entitled to qualified immunity under Kentucky law. (DE 31-1 at 8-9). While Kentucky law analyzes qualified immunity under a slightly different analysis than its federal counterpart, the result remains the same. Under Kentucky law, public employees, including police officers, enjoy qualified immunity for (1) discretionary acts or functions, (2) performed in good faith; and (3) within the scope of the employee's authority. See Yanero v. Davis , 65 S.W.3d 510, 522 (Ky. 2001). Importantly, "in the context of qualified official immunity, 'bad faith' can be predicated on a violation of a constitutional, statutory, or other clearly established right which a person in the public employee's position presumptively would have known was afforded to a person in the plaintiff's position, i.e. , objective unreasonableness...." Id. at 523 ; see also See Woodcock v. City of Bowling Green , 679 Fed.Appx. 419, 425 (6th Cir. 2017) ("And courts have held that 'this inquiry tracks the inquiry for objective reasonableness and qualified immunity' ") (citations omitted). Given that a reasonable jury could conclude that Officer Stevens acted in bad faith by violating a clearly established constitutional right-a gratuitous blow to Boggs in violation of the Fourth Amendment-Stevens is not entitled to qualified immunity under Kentucky law at this procedural stage. As to the specific tort claims, "[a]ssault is a tort which merely requires the threat of unwanted touching of the victim, while battery requires an actual unwanted touching." Banks v. Fritsch , 39 S.W.3d 474, 480 (Ky.Ct.App. 2001). However, Kentucky has codified a specific privilege allowing police officers to use force in certain situations. Under Kentucky Revised Statute § 503.090, a police officer is privileged to use force in effecting an arrest when he/she: (a) Believes that such force is necessary to effect the arrest; (b) Makes known the purpose of the arrest or believes that it is otherwise known or cannot *1003reasonably be made known to the person to be arrested; and (c) Believes the arrest to be lawful. KRS § 503.090. As discussed above, if the facts are taken in a light most favorable to Boggs, a reasonable jury could find that Officer Stevens did not believe that his use of force was necessary to arrest a compliant Boggs. As such, summary judgment on Boggs' state law claims is improper. e. Motion to Strike (DE 40) In ruling on summary judgment, the Court did not consider the affidavits filed concurrently with plaintiff Boggs' response in opposition to summary judgment. See (DE 39-1, 39-2). Therefore, the Court denies defendant Stevens' motion to strike (DE 40) the affidavits from Boggs' response as moot. The Court acknowledges, however, that use of the affidavits at trial and the scope of any potential testimony by the affiants is an issue to be taken up prior to trial. III. CONCLUSION For the foregoing reasons, the Court HEREBY ORDERS as follows: (1) Defendant's motion for summary judgment (DE 31) is GRANTED as to plaintiff's claims relying solely on supervisory liability under 42 U.S.C. § 1983 ; (2) Defendant's motion for summary judgment (DE 31) is DENIED as to all other claims; (3) Defendant's motion to strike supplemental disclosures (DE 40) is DENIED AS MOOT ; (4) The Court will entertain motions for qualified immunity following the plaintiff's presentation of his case-in-chief.

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/3209665/

Case: 14-15177 Date Filed: 06/06/2016 Page: 1 of 12 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-15177 ________________________ D.C. Docket No. 4:13-cv-00084-HLM ANGELA GARMLEY, JOE GARMLEY, JASON SOUTHERN, Plaintiffs - Appellants, versus BRYANT COCHRAN, Former Magistrate Court Judge, MURRAY COUNTY, GEORGIA, THE MURRAY COUNTY SHERIFF’S DEPARTMENT, HOWARD ENSLEY MICHAEL HENDERSON, JOSH GREESON, Defendants - Appellees. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (June 6, 2016) Case: 14-15177 Date Filed: 06/06/2016 Page: 2 of 12 Before JORDAN and ANDERSON, Circuit Judges, and KALLON,∗ District Judge. PER CURIAM: The plaintiffs-appellants in this case challenge the district court’s decision to dismiss claims against one of the defendants-appellees, to deem admitted various evidentiary matters, and to grant summary judgment for the remaining two defendants-appellees. For the reasons fully explored at oral argument, for many of the reasons set out in the district court’s opinions, and for the reasons briefly outlined below, we find that the plaintiffs failed to demonstrate an abuse of discretion in the district court’s dismissal of defendant Cochran, its evidentiary decisions, or its denial of various pre- and post-judgment motions; moreover, we agree with the district court that the plaintiffs failed to adduce sufficient evidence to create a genuine issue of fact that defendants Henderson and Greeson had violated constitutional and state law in executing the stop, search, and arrests at issue here. A. Cochran’s Motion to Dismiss This court finds that the district court did not abuse its discretion in dismissing the claims against Cochran for failure to comply with Federal Rules of ∗ The Honorable Abdul K. Kallon, United States District Judge for the Northern District of Alabama, sitting by designation. 2 Case: 14-15177 Date Filed: 06/06/2016 Page: 3 of 12 Civil Procedure 8(a)(2) and 10(b). See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015) (“Our standard of review of such dismissals [for failure to comply with Rules 8(a)(2) and (10)(b)] is abuse of discretion.”) (citation omitted). Both the language of Rule 10(b) and our previous rulings have instructed parties they must state each claim for relief in a separate count or defense and that each claim should specify the defendant or defendants to which it applies. See, e.g., id. at 1320-23. Additionally, the district court in granting plaintiffs leave to amend their complaint outlined its expectations of future pleadings—specifically, that each claim would have a separate cause of action and that each claim would allege a specific, as opposed to general, harm. Because the plaintiffs’ complaint and the claims brought against Cochran failed to comply with the Federal Rules, our precedent, or the district court’s directions, we find that the district court did not abuse its discretion in dismissing the claims against Cochran. B. The Officers’ Motions for Summary Judgment The plaintiffs-appellants raise several contentions of error with respect to the defendant officers, Henderson and Greeson. Specifically, they contend that the district court abused its discretion with respect to three discovery rulings and that the district court erred in granting the officers’ motions for summary judgment. 3 Case: 14-15177 Date Filed: 06/06/2016 Page: 4 of 12 1. Discovery Rulings We begin our analysis with the discovery issues, which we review for an abuse of discretion. See United States v. R&F Props. of Lake Cty., Inc., 433 F.3d 1349, 1355 (11th Cir. 2005) (“The district court’s discovery decisions are reviewed for abuse of discretion.”) (citation omitted); Shuford v. Fid. Nat. Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007) (reviewing for abuse of discretion a district court’s rulings on a motion under the predecessor to Federal Rule of Civil Procedure 56(d)). The district court did not abuse its discretion by deeming admitted the requests for admission that Henderson served upon Garmley and Southern. Federal Rule of Civil Procedure 36(a) allows a party to “serve on any other party a written request to admit . . . the truth of any matters within the scope of Rule 28(b)(1)” but notes that “[a] matter is deemed admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection[.]” The record reflects that neither Garmley nor Southern responded to Henderson’s requests for admissions or moved the district court to withdraw the admissions. We have previously found that a party’s failure to respond to requests for admission constituted admissions of the same, and we see no reason to depart from that rule today. See, e.g., Perez v. Miami-Dade Cty., 297 F.3d 1255, 1263 (11th Cir. 2002) (“If a party fails to respond within thirty days [to 4 Case: 14-15177 Date Filed: 06/06/2016 Page: 5 of 12 a Rule 36(a) request], then the matter is admitted.”) (internal quotations, alteration, and citation omitted). Therefore, we find that the district court did not abuse its discretion in deeming admitted Henderson’s requests for admission as to Garmley and Southern. The district court also did not abuse its discretion by denying the plaintiffs’ Federal Rule of Civil Procedure 56(d) motion to delay until the close of discovery the briefing on the officers’ motions for summary judgment. Although “[a]s a general rule summary judgment should not be granted until the party opposing the motion has had an adequate opportunity to conduct discovery,” we have not adopted a “blanket prohibition on the granting of summary judgment motions before discovery” closes. See Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th Cir. 1989) (citation omitted). While Henderson and Greeson moved for summary judgment nearly two months prior to the close of discovery, the district court in denying the Rule 56(d) motion ultimately gave the plaintiffs more than six weeks after the initial motion for summary judgment to file their responses. Notwithstanding this expanded briefing schedule and the remaining time for discovery, at no point during that time or leading up to the officers’ motions for summary judgment did the plaintiffs depose any defendant or witness 5 Case: 14-15177 Date Filed: 06/06/2016 Page: 6 of 12 in the case. 1 We additionally note that, notwithstanding the plain language of Rule 56(d) and the district court’s explicit directions to do so, the plaintiffs never filed an affidavit describing what specific discovery they needed. In light of these facts and upon review of the record as a whole, we find that the district court did not abuse its discretion in denying the plaintiffs’ Rule 56(d) motion. We similarly find that the district court did not abuse its discretion when it deemed admitted Henderson’s and Greeson’s statements of undisputed material facts that they submitted with their motions for summary judgment. Under Northern District of Georgia Local Rule 65.1(B)(2), a party opposing summary judgment must specifically refute each of the facts listed in the moving party’s statement of undisputed facts, or the district court may deem each of the unrefuted facts admitted. This court has previously examined Local Rule 56.1 and observed that it is “both a sanction for the parties and a balm for the district court: the parties are given an incentive to conform to the rule . . . and the district court is in any case relieved of the obligation to ferret through the record.” See Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (internal quotations and citation omitted). Because the plaintiffs failed to specifically refute either officer’s statements of 1 At oral argument, the plaintiffs contended that the unique nature of this case—specifically, the concurrent criminal prosecution against the officers—hampered their efforts to conduct discovery. However, the plaintiffs admitted that they never served any defendant with a deposition notice, and, as a result, no Fifth Amendment privilege defense was actually asserted. In other words, the plaintiffs were not formally prohibited from deposing—or at least noticing— the defendants in this case. 6 Case: 14-15177 Date Filed: 06/06/2016 Page: 7 of 12 undisputed facts,2 the district court did not err in finding that the officers’ statements were admitted for the purposes of summary judgment. 2. Summary Judgment Ruling We review a district court’s grant of summary judgment de novo, applying the same legal standards that bound the district court and viewing all the facts and reasonable inferences in the light most favorable to the nonmoving party. Shuford, 508 F.3d at 1341 (citation omitted). Based on the record before the district court, we agree with the district court that Henderson’s and Greeson’s motions for summary judgment were due to be granted. When, as here, a responding party fails to comply with Local Rule 56.1 and the moving party’s statement of undisputed facts is therefore deemed admitted, “a district court [is] to disregard or ignore evidence relied on by the respondent— but not cited in the movant’s statement of undisputed facts—that yields facts contrary to those listed in the movant’s statement.” See Reese, 527 F.3d at 1268. Indeed, even though in this situation the moving party has the “functional analog” 2 Although the plaintiffs did list five so-called “disputed” facts in their opposition to summary judgment, these facts do not correspond with the officers’ statements of undisputed fact as required under Local Rule 56.1(B)(2), and, further, they are conclusory in nature and cite only to the plaintiffs’ complaint or to a transcript of Henderson’s sentencing proceedings. Because the format of these disputed facts does not conform with Local Rule 56.1 and because allegations in a complaint do not constitute evidence at summary judgment, the plaintiffs’ submission failed to sufficiently refute the officers’ statements of undisputed facts. See Wright v. Farouk Sys., Inc., 701 F.3d 907, 911 n.8 (11th Cir. 2012) (“[P]leadings are only allegations, and allegations are not evidence of the truth of what is alleged.”). 7 Case: 14-15177 Date Filed: 06/06/2016 Page: 8 of 12 of an unopposed motion for summary judgment, “[t]he movant . . . continues to shoulder the initial burden of production in demonstrating the absence of any genuine issue of material fact, and the court must satisfy itself that the burden has been satisfactorily discharged.” Id. Based on the record before it, the district court appropriately found that the officers were entitled to summary judgment. We agree with the district court that Henderson and Greeson are entitled to qualified immunity on the federal claims. Specifically, the facts asserted at summary judgment—namely, that Southern was driving with his high-beam lights on in violation of Georgia law—justified Greeson’s decision to stop the car. Additionally, the facts showed that Greeson had probable cause to search Garmley’s car after Greeson’s dog alerted near the driver’s side front tire. The facts also showed that Greeson had at least arguable probable cause for the arrests of the three plaintiffs given the discovery of methamphetamine in Garmley’s car and Garmley’s husband’s obstruction of the stop. Next, with respect to Henderson, the undisputed facts before the district court reflected that Henderson did not plant the drugs on the car; did not personally stop, search, or arrest the plaintiffs; and did not direct anyone else to take such actions. Therefore, the plaintiffs’ Fourth Amendment claims must fail as a matter of law for lack of a constitutional harm. In absence of a constitutional claim, the conspiracy claim against the two officers also fails. See Hadley v. Gutierrez, 526 F.3d 1324, 1332 (11th Cir. 2008) 8 Case: 14-15177 Date Filed: 06/06/2016 Page: 9 of 12 (requiring an underlying constitutional harm to sustain a conspiracy claim under § 1983). Alternatively, the district court correctly granted summary judgment on the conspiracy claim because the plaintiffs, who did not submit any evidence to rebut the officers’ claim that they never entered into an agreement to violate the plaintiffs’ constitutional rights, failed to show “that the defendants reached an understanding to deny the plaintiff[s’] rights.” Id. (citation omitted). Therefore, because the plaintiffs failed to create a genuine dispute of material fact as to any of these federal claims, the district court did not err in granting summary judgment here for Henderson and Greeson. We similarly find no error in the district court’s ruling on the state law claims. Georgia official immunity protects the officers because the plaintiffs failed to establish that the officers acted with actual malice. See Merrow v. Hawkins, 467 S.E.2d 336, 337 (Ga. 1999) (holding that an officer “is entitled to official immunity unless he acted with actual malice.”) (quotations omitted). “[I]n the context of official immunity, ‘actual malice requires a deliberate intention to do wrong[.]’” Adams v. Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999) (quoting Merrow, 467 S.E.2d at 337). The facts at summary judgment fail to establish that either Henderson or Greeson acted with the intent to do a wrongful act. Therefore, because the plaintiffs failed to create a factual dispute regarding actual malice, the 9 Case: 14-15177 Date Filed: 06/06/2016 Page: 10 of 12 district court did not err in finding that the officers’ actions on the night in question are protected from liability under Georgia’s official immunity doctrine. C. Rule 60(b) Motions Because the decision to grant a Rule 60(b) motion is committed to the sound judgment of the district court, we review its denial for an abuse of discretion. Aldana v. Del Monte Fresh Produce N. Am., Inc., 741 F.3d 1349, 1355 (11th Cir. 2014) (citation omitted). Contrary to the plaintiffs’ contentions of alleged error, we find that the district court appropriately denied the first motion, which the plaintiffs filed after the court dismissed Cochran from the lawsuit, because the claims against Henderson and Greeson remained outstanding and the court had not issued a final judgment in the case. See Fed. R. Civ. P. 60(b) (requiring a “final judgment, order, or proceeding” for relief); see also Denson v. United States, 574 F.3d 1318, 1335 n.52 (11th Cir. 2009) (“The district court should have denied [the plaintiff’s] Rule 60(b) motion for the obvious reason that the . . . order was not final.”). We reach a similar finding as to the second Rule 60(b) motion. The plaintiffs filed this motion after final judgment in this case and asserted that the district court should set aside its order dismissing Cochran in light of his indictment and conviction on criminal charges that related, in part, to conduct that formed the basis for Garmley’s claims against him and in light of a neighbor’s affidavit describing the search of Garmely’s car. This contention is unavailing because the evidence of Cochran’s 10 Case: 14-15177 Date Filed: 06/06/2016 Page: 11 of 12 criminal proceedings, even if it were admitted, would not have resolved the complaint’s Rule 8(a) and Rule 10(b) shortcomings that formed one of the bases for dismissal. Additionally, the district court did not abuse its discretion regarding the neighbor’s affidavit because the plaintiffs did not assert a showing that the evidence was previously unavailable. 3 See M.G. v. St. Lucie Cty. Sch. Bd., 741 F.3d 1260 (11th Cir. 2014) (“[W]here a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant that motion absent some showing that the evidence was not available during the pendency of the [case].”) (alterations in original) (internal quotation and citation omitted). Therefore, we find that the district court did not abuse its discretion in denying both of the plaintiffs’ Rule 60(b) motions. Conclusion We conclude that the district court did not abuse its discretion in dismissing Cochran under Rules 8(a) and 10(b), deeming Henderson’s requests for admissions to Garmley and Southern admitted, denying the plaintiffs’ Rule 56(d) motion, deeming the officers’ undisputed statements of material fact admitted, or denying 3 The plaintiffs also assert that the district court abused its discretion by denying relief under Rule 60(b)(6), which allows a final judgment to be set aside for “any other reason that justifies relief.” Because the indictment, conviction, and neighbor’s affidavit constitute new evidence, the plaintiffs cannot find relief under Rule 60(b)(6). See Gulf Coast Bldg. & Supply Co. v. Int’l Bhd. of Elec. Workers, 460 F.2d 105, 108 (5th Cir. 1972) (“Where either Clauses [60](b)(1), (2), (3), (4), or (5) provide coverage for the movant’s claim, relief may not be obtained pursuant to Clause (b)(6).”) (citation omitted). 11 Case: 14-15177 Date Filed: 06/06/2016 Page: 12 of 12 the Rule 60(b) motions. We conclude that the evidence in this record is insufficient to establish a genuine issue of material fact that Henderson or Greeson violated either federal or state law and should not be afforded the protection of immunity. Accordingly, the judgment of the district court is AFFIRMED. 12

01-03-2023

06-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3209661/

In the Supreme Court of Georgia Decided: June 6, 2016 S15G1184. BARKING HOUND VILLAGE, LLC., et al. v. MONYAK, et al. THOMPSON, Chief Justice. The subject matter of this case is near and dear to the heart of many a Georgian in that it involves the untimely death of a beloved family pet and concerns the proper measure of damages available to the owners of an animal injured or killed through the negligence of others. Observing that pet dogs are considered personal property under Georgia law, but finding that not all dogs have an actual commercial or market value, the Court of Appeals held that where the actual market value of the animal is non-existent or nominal, the appropriate measure of damages would be the actual value of the dog to its owners. See Barking Hound Village, LLC v. Monyak, 331 Ga. App. 811, 813- 814 (771 SE2d 469) (2015). The Court of Appeals concluded that the actual value of the animal could be demonstrated by reasonable veterinary and other expenses incurred by its owners in treating its injuries, as well as by other economic factors, but held that evidence of non-economic factors demonstrating the dog’s intrinsic value to its owners would not be admissible. Id. This Court granted certiorari to consider whether the Court of Appeals erred in holding that the proper measure of damages for the loss of a pet dog is the actual value of the dog to its owners rather than the dog’s fair market value. Because we find that long-standing Georgia precedent provides that the damages recoverable by the owners of an animal negligently killed by another include both the animal’s fair market value at the time of the loss plus interest, and, in addition, any medical and other expenses reasonably incurred in treating the animal, we affirm in part and reverse in part the Court of Appeals’ decision. The damages at issue in this case arise from the death of a mixed-breed dachshund owned by Robert and Elizabeth Monyak. In 2012, the Monyaks boarded Lola, their 8 ½ -year old dachshund mix, for ten days at a kennel owned by Barking Hound Village, LLC (“BHV”) and managed by William Furman. Along with Lola, the Monyaks boarded their 13-year old mixed-breed Labrador retriever, Callie, who had been prescribed an anti-inflammatory drug for arthritis pain – medication which the Monyaks gave to kennel personnel with directions that it be administered to Callie. Three days after picking up their dogs from 2 BHV, Lola was diagnosed with acute renal failure. Despite receiving extensive veterinary care over a nine-month period, including kidney dialysis treatment, Lola died in March 2013. The Monyaks sued BHV and Furman for damages alleging that while boarded at the kennel Lola was administered toxic doses of the medication prescribed for Callie, a much larger dog. The Monyaks asserted various claims of negligence against BHV and Furman, and sought compensatory damages, including over $67,000 in veterinary and other expenses incurred in treating Lola. In addition, alleging fraud and deceit on the part of the defendants, the Monyaks sought litigation expenses and punitive damages. BHV and Furman moved for summary judgment on all the Monyaks’ claims asserting that the measure of damages for the death of a dog was capped at the dog’s fair market value and that, in this case, the Monyaks failed to prove Lola had any market value, thus their claims were barred as a matter of law. Alternatively, the defendants sought partial summary judgment on the Monyaks’ claims for punitive damages and fraud. In its order denying summary judgment to the defendants except as to the Monyaks’ fraud claim which the court found duplicative of their negligence and 3 punitive damages claims, the trial court held the Monyaks would be permitted to present evidence of the actual value of the dog to them, as demonstrated by reasonable veterinary and other expenses incurred in her treatment, as well as evidence of non-economic factors demonstrating the dog’s intrinsic value. Further, the trial court found sufficient evidence existed to create a jury issue on the Monyaks’ claim for punitive damages pursuant to OCGA § 51-12-5.1 (b).1 The Court of Appeals granted the defendants’ application for interlocutory review, and the Monyaks cross-appealed challenging the trial court’s grant of partial summary judgment with respect to their fraud claim. On appeal, the Court of Appeals affirmed the trial court’s ruling rejecting a market value cap on damages. See Monyak, 331 Ga. App. at 814. Finding the evidence showed Lola had little or no market value,2 the Court of Appeals 1 This statute allows for an award of punitive damages in tort actions where the defendant’s actions show “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Here, the record includes evidence that the defendants became aware during the dog’s boarding stay that Lola had wrongfully been administered Callie’s medication and, instead of notifying the Monyaks and/or seeking prompt veterinary care for the dog, attempted to hide the error, thus allegedly exacerbating the harm to Lola. Also included is evidence of multiple prior incidents involving errors in the administration of medication to dogs at BHV and Furman’s personal knowledge of prior incidents. 2 Evidence in the record showed that the Monyaks adopted Lola from a rescue center when she was about two years old, there was no purchase price for the dog, she was not a pure breed or a show dog, she had never generated any revenue, and that at the time she was boarded at the kennel, her market value to the public at large was non-existent or nominal. 4 observed that “[w]here the absence of a market value is shown, ‘the measure of damages . . . is the actual value to the owner.’” Id. at 813, quoting Cherry v. McCutchen, 65 Ga. App. 301, 304 (16 SE2d 167) (1941). Noting, however, that, in Cherry, no recovery was allowed for the sentimental value of the object to the owner, the Court of Appeals concluded that damages for the intrinsic value of the dog to the Monyaks were not recoverable. Monyak, 331 Ga. App. at 815. Finally, the Court of Appeals affirmed the trial court’s grant of partial summary judgment on the Monyaks’ fraud claim, albeit on different grounds than the trial court.3 BHV and Furman contend that the Court of Appeals erred in holding that an actual value to owner standard of damages was appropriate in this case, rather than the fair market value standard of damages generally applicable in actions for the negligent injury to, or loss of, personal property. They assert that under the fair market value standard a plaintiff is prevented from recovering an amount of damages against a tortfeasor greater than the fair market value of the property prior to its impairment, and thus argue that the entire amount of damages 3 We note that the Court of Appeals’ opinion does not address the trial court’s denial of partial summary judgment on the Monyaks’ punitive damages claim. Accordingly, this claim remains pending below. 5 recoverable by the Monyaks cannot exceed the fair market value of their dog. Moreover, BHV and Furman claim that Georgia case law specifically limits the recovery of animal treatment expenses to an animal’s pre-injury fair market value, citing Atlanta & West Point R. Co. v. Hudson, 62 Ga. 679, 683 (2) (1879) and Southern Ry. Co. v. Stearnes, 8 Ga. App. 111 (68 S.E. 623) (1910). The Monyaks, on the other hand, contend the Court of Appeals correctly rejected a market value cap on damages, arguing that to limit damages for the loss of a family pet to market value would not only be unjust, but would go against both Georgia precedent and the weight of authority from other jurisdictions. Although agreeing with the Court of Appeals that an actual value to owner standard is the appropriate measure of damages in this case, the Monyaks ask this Court to clarify that evidence of non-economic factors, though inadmissible for proving the dog’s intrinsic value, would be admissible for other purposes, such as proving the reasonableness of their decision to incur significant expenses in an effort to save the life of their pet. 1. The parties agree, and Georgia law clearly provides, that a pet dog has value and is considered the personal property of its owner. See Columbus R. R. Co. v. Woolfolk, 128 Ga. 631, 633 (58 S.E. 152) (1907). See also Wilcox v. 6 State, 101 Ga. 563, 565 (28 S.E. 981) (1897) (finding Georgia law pertaining to domestic animals applicable to dogs); Graham v. Smith, 100 Ga. 434, 436 (100 S.E. 225) (1897) (holding that the owner of a dog has a property right in the animal sufficient to sustain an action for trover). As a result, the owner of a dog may maintain an action against anyone who wantonly, maliciously, intentionally, or negligently injures or kills it. See Woolfolk, 128 Ga. at 634; Vaughn v. Nelson, 5 Ga. App. 105, 108-109 (62 S.E. 708) (1908). See generally Chalker v. Raley, 73 Ga. App. 415 (37 SE2d 160) (1946). 2. Having established that dogs are personal property for which a suit for damages will lie, we look to Georgia precedent in order to determine the appropriate measure of damages recoverable by a dog’s owners in such actions. In so doing, we find the Court of Appeals erred in deciding that application of an actual value to owner standard was the appropriate measure of recoverable damages, but additionally find that a cap on all damages based on application of the fair market value standard as urged by defendants is likewise incorrect. Generally, in a suit to recover damages to personal property it is a well- established principle that “a plaintiff cannot recover an amount of damages against a tortfeasor greater than the fair market value of the property prior to 7 impairment.” See MCI Communications Svcs. v. CMES, Inc., 291 Ga. 461, 463-464 (728 SE2d 649) (2012). However, over 120 years ago this Court decided that such a limitation was not appropriate in negligence cases involving the injury or death of an animal. See Telfair County v. Webb, 119 Ga. 916, 919 (47 S.E. 218) (1904); Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145, 150 (4 S.E. 759) (1887). Instead, this Court determined that where an animal is negligently injured and subsequently dies as a result of those injuries, the proper measure of damages recoverable by the animal’s owner includes not only the full market value of the animal at the time of the loss plus interest, but also expenses incurred by the owner in an effort to cure the animal. See Webb, 119 Ga. at 919; Coffey, 80 Ga. at 150. In Webb, a plaintiff whose horse was injured after stepping through rotted wood on a county bridge sought damages from the county alleging that his mare was so badly crippled that, after attempting at great trouble and expense to cure her, he had disposed of her as being practically worthless. Webb, 119 Ga. at 917. Following a jury award for the plaintiff, the defendant appealed and, granting a new trial based on the trial court’s failure to properly charge the jury on negligence and proximate cause, this Court made the following observation 8 with respect to the recovery of damages: Under the ruling in Atlanta & W.P.R. Co. v. Hudson, 62 Ga.679, approved Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 150 . . . the plaintiff’s measure of damages, if he recovered, would include reasonable hire of the animal for the time during which she was temporarily disabled for service, as well as making good any diminution in her market value occasioned by the permanent effects of the injury; such amounts, however, not to exceed, in the aggregate, the market value of the animal, with interest thereon. Plaintiff would also be entitled to recover for any expenses incurred, during the time the mare was disabled for service, in keeping her and treating her injuries. Id. at 919 (emphasis supplied). In a subsequent case with almost identical facts, the Court of Appeals followed this Court’s instructions in Webb by allowing, as a separate item of damages not limited by the value of the horse, the recovery of expenses incurred in keeping and treating the animal during the period of its disability. See Telfair County v. Clements, 1 Ga. App. 437, 440 (57 S.E. 1059) (1907). BHV and Furman rely on the Court of Appeals’ later decision in Stearnes, also a horse injury case, to argue that the expense of looking after and treating an animal during its disability should not be considered a separate component of damages, but instead is included in the aggregate amount limited by the animal’s market value. See Stearnes, 8 Ga. App. at 111. A review of the 9 opinion in Stearnes, however, reveals that the language supportive of this argument is found only in dicta. Id. at 112. Further, to the extent this language implies that the entire amount of damages recoverable for the tortious injury of an animal cannot exceed the animal’s fair market value, the Stearnes opinion clearly misstates both Webb and Coffey. Indeed, in Coffey, wherein the plaintiff’s horse suffered severe burns to his hoofs and ankles after being exposed to caustic chemicals on the defendant’s property and later died, this Court explained that while the loss of hire of the horse would have been a recoverable element of damages had the horse lived, where the personal property is lost or destroyed by the negligent acts of another . . . the [plaintiff] is entitled to recover the full value of the property lost or destroyed, according to the market rates current at the time of the loss, and interest on the same. He is also entitled to recover the expense of keeping the horse, medical attendance, medicines, and things of that sort; but he is not entitled to recover the hire during the sickness of the horse, in case the horse dies. Coffey, 80 Ga. at 150. (Emphasis supplied). An important distinction recognized in both these cases is that while a cap on the recovery of loss of use damages exists for an injured animal, there is no such cap on the amount of damages recoverable with respect to actual expenditures associated with the animal’s treatment and recovery. See Webb, 119 Ga. at 918; Coffey, 80 Ga. at 10 150. Thus, where the injured animal survives, its owner is entitled to receive loss of hire and diminution in market value up to the full market value of the animal in addition to the animal’s reasonable medical costs and treatment; whereas, when the animal fails to recover, damages are limited to the market value of the animal plus interest, as well as the reasonable costs expended on its care and treatment. See Webb, 119 Ga. at 918; Coffey, 80 Ga. at 150.4 In adopting a different measure of damages for use in tort cases involving injury to animals, this Court relied on a prominent 19th century legal treatise on negligence, see Coffey, 80 Ga. at 150, citing Sher. & R. Neg. §603 and notes, in which the authors promoted such a distinction and articulated the rationale 4 This Court’s observation in MCI that “[t]he loss of use of damaged but repairable property measured by the reasonable rental rate has its roots in cases involving injury to domestic animals such as horses and mules,” in no way vitiates this Court’s holdings in Coffey and Webb or implies that the general fair market value rule of damages now applies in tortious injury to animal cases. 291 Ga. at 463. Rather, in MCI, this Court simply refused to allow the plaintiff to recover loss of use damages in addition to actual damages where it failed to prove monetary loss. It was in acknowledging the distinction between actual damages and windfall damages that this Court in MCI observed that [T]he maximum recovery for a repairable [property] including loss of use may not exceed value before the injury. [Cits.] This ceiling removes temptation for a party to seek to make a profit out of the unfortunate occurrence and at the same time makes him financially whole. Id., quoting Firestone Tire & Rubber Co. v. Jackson Transp. Co., 126 Ga. App. 471, 478 (2) (191 SE2d 110) (1972). As in MCI, this language in Firestone was directed at the question of limitations on the recovery of damages for loss of use, something not at issue in this case. 11 behind it, stating: [I]n cases of injury to animals . . . the plaintiff ought to recover for expenses reasonably incurred in efforts to cure them, in addition to the depreciation in their value, or to their whole value where they are finally lost. The law would be inhumane in its tendency if it should prescribe a different rule, even where the animal eventually dies, since it would then offer an inducement to the owner to neglect its suffering. Shearman & Redfield, Negligence § 603, at 680-681 (2nd ed. 1870). By ensuring that property owners whose animals are negligently injured by another are able to recoup reasonable expenses incurred in attempting to save the animal, this Court’s decisions in Webb and Coffey are consistent with the position taken by courts in a majority of states, including those which have adopted an actual value to the owner measure of damages to determine a pet dog’s worth, see Strickland v. Medlen, 397 S.W.3d 184, 193, n.58 (Tex. 2013) (recognizing that “[w]hile actual value cannot include the owner’s ‘feelings,’. . . it can include a range of other factors [such as] purchase price, reasonable replacement costs . . . breeding potential . . . special training . . . veterinary expenses related to the negligent injury, and so on”), as well as those which have declined to do so, see Shera v. N.C. State Univ. Veterinary Teaching Hosp., 723 SE2d 352 (N.C. Ct. App. 2012) (awarding plaintiffs damages for the death of 12 their 12-year old dog due to veterinary malpractice in the amount of $3,105.72, which amount included reimbursement for the cost of the dog’s medical treatment plus the replacement cost for a similar dog). Similarly, under the Federal Tort Claims Act, a dog owner has been allowed to recover veterinary expenses incurred in trying to save the life of a mixed-breed dog despite its ultimate death. See Kaiser v. United States, 761 F. Supp. 150, 156 (D.D.C. 1991) (awarding $1,786 in incurred veterinary expenses for a mixed-breed pet dog shot by a United States Capitol police officer). At the time this lawsuit was filed, the Monyaks’ injured dog was still alive and the veterinary fees incurred were in the neighborhood of $10,000. The fact that the dog’s treatment ultimately proved unsuccessful and the animal died nine months later should not prevent the Monyaks from seeking compensatory damages for the reasonable veterinary fees incurred in their attempt to save their pet. Rather, we conclude, pursuant to long-established Georgia precedent, that the proper measure of damages recoverable by the Monyaks for the negligent injury and death of their dog includes both the dog’s fair market value plus interest and any reasonable medical costs and other expenses they incurred in treating the animal for its injuries. 13 3. While we are sympathetic to the concerns expressed by the parties and others regarding the difficulties in establishing the fair market value of a family pet,5 this Court long ago stated that, “[t]he value of [a] dog may be proved, as that of any other property, by evidence that he was of a particular breed, and had certain qualities, and by witnesses who knew the market value of such animal, if any market value be shown.” Woolfolk, 128 Ga. at 635. Thus, in an action for damages arising from the allegedly tortious killing of a dog belonging to a 12-year-old boy, testimony was provided regarding the dog’s breed and age, how the boy acquired the dog, how long he owned the animal prior to its death, and activities the boy did with the dog. See Chalker, 73 Ga. App. at 415. Although the only evidence presented of the dog’s value was the boy’s testimony that the dog was worth $100, the jury returned a verdict for the plaintiff in the amount of $10 and the plaintiff appealed, arguing that the verdict was contrary to the evidence. Id. Concluding that the jury was entitled to place 5 We note that amicus briefs have been filed in this case by numerous entities concerned with the care and treatment of animals both in this State and nationwide. These groups include the Georgia Veterinary Medical Association, American Veterinary Medical Association, American Kennel Club, Cat Fanciers’ Association, Animal Health Institute, National Animal Interest Alliance, American Pet Products Association, American Animal Hospital Association, Pet Industry Joint Advisory Council and the Animal Legal Defense Fund. The primary issue addressed by amici, however, is whether the law in Georgia should allow for the recovery of damages based on a pet’s sentimental value to its owner, a position properly rejected by the Court of Appeals in this case and not disputed by either party on appeal. See Division 4, infra. 14 a different value on the property than that testified to by the witnesses, the Court of Appeals held that the jurors were authorized to consider the dog’s allegedly vicious character and other qualities to reach their own conclusions regarding the dog’s value. Id. at 418.6 See also Padilla v. Padilla, 282 Ga. 273, 275-276 (646 SE2d 672) (2007) (observing that, with respect to items of a common nature, a plaintiff “need not offer any opinion evidence as to value . . . so long as the evidence contains facts upon which the [fact-finder] may legitimately exercise [its] own knowledge and ideas”). Georgia law provides that direct testimony regarding market value is opinion evidence and a witness need not be an expert to testify as to an object’s value so long as the witness has had an opportunity to form a reasoned opinion. See OCGA § 24-7-701 (b)7; Schumpert v. Carter, 175 Ga. 860, 861 (166 S.E. 6 In Chalker, the plaintiff alleged the defendant wantonly, intentionally, wilfully and maliciously shot and killed the dog while it was tied in the boy’s backyard. The defendant, in response, claimed justification, asserting the dog had recently bitten both him and his young son. Id. While it appears undisputed the dog bit the defendant and his son, there was conflicting evidence regarding the severity of the wounds and whether the animal had been provoked. Id. at 415-416. 7 This statute provides: Direct testimony as to market value is in the nature of opinion evidence. A witness need not be an expert or dealer in an article or property to testify as to its value if he or she has had an opportunity to form a reasoned opinion. OCGA § 24-7-701 (b). We note that the Federal Rules of Evidence do not contain a provision similar to OCGA § 24-7-701 (b). However, as this statutory provision in Georgia’s new evidence 15 436) (1932). Indeed, “[m]arket value is a question peculiarly for the jury, and a jury is not required to accept even uncontradicted opinions as to market value.” Childs v. Logan Motor Co., 103 Ga. App. 633, 639 (120 SE2d 138) (1961). Instead, in determining the value of personal property in tort cases, jurors “have the right to consider the nature of the property involved, together with any other facts or circumstances properly within the knowledge of the jury which throws light upon the question, and by their verdict, may fix either a lower or higher value upon the property than that stated in the opinions and estimates of the witnesses.” Hogan v. Olivera, 141 Ga. App. 399, 402-403 (233 SE2d 428) (1977) (finding award of $10,000 for water damage to plaintiff’s real and personal property well within the range of estimated damages which could be determined from the evidence). See also Wood v. Garner, 156 Ga. App. 351, 352 (274 SE2d 737) (1980) (authorizing jury verdict placing value of antique china several hundred dollars higher than testimony of expert). 4. Although we find the Court of Appeals erred in applying an actual value to owner measure of damages in this case, we find no error in that court’s code is substantially similar to the pre-existing statute, former OCGA § 24-9-66, which it replaced, we give OCGA § 24-7-701 (b) the same meaning as former OCGA § 24-9-66. See Bradshaw v. State, 296 Ga. 650, 654 (769 SE2d 892) (2015). 16 determination that Georgia precedent does not allow for the recovery of damages based on the sentimental value of personal property to its owner. See Monyak, 331 Ga. App. at 815 (“[D]amages for the intrinsic value of the dog are not recoverable.”). Instead, we agree with those courts which have held that the unique human-animal bond, while cherished, is beyond legal measure. See Shera, 723 SE2d at 357 (“[T]he sentimental bond between a human and his or her pet companion can neither be quantified in monetary terms or compensated for under our current law.”); Strickland, 397 S.W.3d at 197-198 (refusing to permit non-economic damages rooted in relational attachment). This does not mean, however, that all qualitative evidence regarding the plaintiffs’ dog is inadmissible. As in Chalker, we see no reason why opinion evidence, both qualitative and quantitative, of an animal’s particular attributes – e.g., breed, age, training, temperament, and use – should be any less admissible than similar evidence offered in describing the value of other types of personal property. See Chalker, 73 Ga. App. at 417. See also Sun Ins. Co. of New York v. League, 112 Ga. App. 625, 626 (145 SE2d 768) (1965) (noting evidence indicative of the value of a car after a collision included photographs of the car, itemized estimates of the cost of repairs and the testimony of 17 automobile repairmen); Sapp v. Howe, 79 Ga. App. 1 (1) (52 SE2d 571) (1949) (allowing as proof of its value evidence of a truck’s general condition, its use by the plaintiff and state of repair, purchase price, length of time owned by the plaintiff and the mileage he put on it). Compare Sammons v. Copeland, 85 Ga. App. 318, 322 (69 SE2d 617) (1952) (holding that where record lacked descriptive evidence of numerous items of personal property from which the jury could draw an intelligent conclusion of value, the jury’s subsequent award of damages was unauthorized). The key is ensuring that such evidence relates to the value of the dog in a fair market, not the value of the dog solely to its owner. 5. As previously stated in Division 2 of this opinion, in addition to recovering the fair market value of their deceased dog plus interest, the Monyaks would be entitled to recover the reasonable veterinary and other expenses they reasonably incurred in trying to save her. Whether the veterinary costs and other expenses incurred by a pet owner in obtaining treatment for an animal negligently injured by another are reasonable will depend on the facts of each case. As observed by the Massachusetts Appeals Court in a case involving tortious injury to a dog, 18 [a]mong the factors to be considered are the type of animal involved, the severity of its injuries, the purchase and/or replacement price of the animal, its age and special traits or skills, its income-earning potential, whether it was maintained as part of the owner’s household, the likelihood of success of the medical procedures employed, and whether the medical procedures involved are typical and customary to treat the injuries at issue. Irwin v. Degtiarov, 8 NE3d 296, 301 (Mass. App. Ct. 2014). Of course, determining the reasonableness of medical treatment and the reasonableness of its cost is a function for the factfinder and well within the capability of jurors who routinely are asked to ascertain the appropriate value of professional services in other types of cases. See Reserve Life Ins. Co. v. Gay, 214 Ga. 2, 3 (102 SE2d 492) (1958) (holding jurors are not bound by expert opinion to determine the value of legal services rendered, but may exercise their own judgement on the subject, taking into consideration the nature of the services, the time required to perform them, and all attending circumstances); Georgia Ry. & Electric Co. v. Tompkins, 138 Ga. 596, 603 (75 S.E. 664) (1912) (allowing jurors to determine the reasonableness of a physician’s bills in a personal injury case). The burden of establishing the reasonableness of any medical treatment provided in light of the animal’s injuries, condition and prognosis, as well as the reasonableness of the cost of 19 that treatment considering factors such as the nature of the services rendered, the time required to perform them, and all attending circumstances rests with the animal’s owner. See City of Savannah v. Waldner, 49 Ga. 316, 324 (1873). See generally Allen v. Spiker, 301 Ga. App. 893, 896 (689 SE2d 326) (2009). 6. For the foregoing reasons, we reverse the Court of Appeals’ decision in this case to the extent it holds that the proper measure of damages recoverable in tort cases involving the negligent injury to or death of an animal is one based on the actual value of the animal to its owner. We affirm, however, that portion of the Court of Appeals’ decision holding that damages representing an animal’s sentimental value to its owner are not recoverable, although we find that descriptive evidence, both qualitative and quantitative, is admissible to establish an animal’s attributes for determining its fair market value, as well as for determining the reasonableness of an owner’s expenditures for veterinary expenses. Accordingly, we remand this case to the Court of Appeals for further proceedings consistent with this opinion. Judgment affirmed in part, reversed in part, and case remanded. All the Justices concur. 20

01-03-2023

06-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3216333/

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: June 23, 2016 106812 ________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MEMORANDUM AND ORDER JAMES RAYMOND, Appellant. ________________________________ Calendar Date: May 3, 2016 Before: Garry, J.P., Egan Jr., Clark, Mulvey and Aarons, JJ. __________ Jane M. Bloom, Monticello, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent. __________ Appeal from a judgment of the County Court of Ulster County (Williams Jr., J.), rendered April 25, 2014, convicting defendant upon his plea of guilty of the crime of criminal contempt in the first degree. Defendant waived indictment and pleaded guilty to a superior court information charging him with criminal contempt in the first degree. As part of his guilty plea, he also waived his right to appeal, both orally and in writing. In accordance with the terms of the plea agreement, he was thereafter sentenced as a second felony offender to 1½ to 3 years in prison. He now appeals. Appellate counsel seeks to be relieved of her assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Based upon our  -2- 106812 review of the record and counsel's brief, we agree. Accordingly, the judgment is affirmed and counsel's request for leave to withdraw is granted (see People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]). Garry, J.P., Egan Jr., Clark, Mulvey and Aarons, JJ., concur. ORDERED that the judgment is affirmed, and application to be relieved of assignment granted. ENTER: Robert D. Mayberger Clerk of the Court

01-03-2023

06-23-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426558/

This is an appeal from a judgment assessing a fine of $150 and thirty days imprisonment at the Indiana State Farm for the unlawful possession of intoxicating liquor under § 4, ch. 48, acts of 1925, § 2717 Burns 1926, and assessing a fine of $250 and six months imprisonment for maintaining a common nuisance under § 24, ch. 48, acts of 1925, § 2740 Burns 1926. The only alleged error relied upon is the overruling of appellant's motion in arrest of judgment, his contention *Page 32 being that the "Act concerning intoxicating liquors," ch. 48, acts of 1925 is unconstitutional and void because, "it assumes to definitely define and fix a standard, wholly at variance with known facts as to when liquor is intoxicating and when not, to wit: that one-half of one per cent. of alcohol by volume constitutes the liquor intoxicating" and because "the legislature has no power to render that a common nuisance, punishable by fine and abatable, which is not in fact a nuisance," (i.e. maintenance of a place where liquor, defined by the statute as intoxicating, but not actually intoxicating, is sold, etc). In Guetling v. State (1926), 198 Ind. 284, 152 N.E. 166, in considering the act here in question (ch. 48, Acts 1925), we held, citing Crane v. Campbell (1917), 245 U.S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304, that the possession of intoxicating liquor for personal use may be forbidden by a state without infringing on the constitutional rights of the citizens, and in Csallo v.State (1927), 198 Ind. 693, 154 N.E. 671, we again upheld the constitutionality of the act against the contentions that it assumes to render unlawful the possession of intoxicating liquor without any intention therewith or thereby to commit any crime, and that it is not specific, definite and certain. We held inSchmitt v. Cook Brewing Co. (1918), 187 Ind. 623, 120 N.E. 19, in considering ch. 4, Acts 1917, that this state, under its Constitution and under the Federal Constitution, has power to prohibit the manufacture and sale of intoxicating liquors and toprovide such means for the enforcement of prohibition as seemsexpedient to the legislature. Under the police power of the state, the legislature, within its discretion and as a matter of legislative expediency, may, in order to effectively enforce a prohibition law, take 1, 2. away not only the right to possess or sell intoxicating liquors but also take *Page 33 away the right to possess or sell certain similar liquors although non-intoxicating. Commonwealth v. Timothy (1857), 8 Gray 480; State v. O'Connell (1904), 99 Me. 61, 58 A. 59; State v. Frederickson (1905), 101 Me. 37, 63 A. 535, 115 Am. St. 295, 8 Ann. Cas. 48, 6 L.R.A. (N.S.) 186;Luther v. State (1909), 83 Neb. 455, 120 N.W. 125, 20 L.R.A. (N.S.) 1146; State v. Walder (1909), 10 Ohio N.P. (N.S.) 497, affirmed (1910), 83 Ohio St. 68, 93 N.E. 531; Sawyer v. Botti (1910), 147 Iowa 453, 124 N.W. 787, 27 L.R.A. (N.S.) 1007;State v. Stickle (1911), 151 Iowa 303, 131 N.W. 5; Ex parteHunnicutt (1912), 7 Okla. Crim. 213, 123 P. 179; State v.Hemrich (1916), 93 Wash. 439, 161 P. 79, L.R.A. 1917B 962;State v. Reno Brewing Co. (1919), 42 Nev. 397, 178 P. 902. And it is well settled that in so doing, the legislative department may establish a standard for determining whether liquor is within the operation of the act by defining the term "intoxicating liquor" and may thereby fix the percentage of alcoholic content below that which is in fact intoxicating, and thus include within the operation of the law similar beverages which are in themselves innocuous but which are near to intoxicants and which if prohibited would make the enforcement of the law easier by making evasion more difficult. Purity ExtractCo. v. Lynch (1912), 226 U.S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184, affirming 100 Miss. 650, 56 So. 316; State of Rhode Island v. Palmer (1920), 253 U.S. 350, 40 Sup. Ct. 486, 64 L. Ed. 946;Ruppert v. Caffey (1919), 251 U.S. 264, 40 Sup. Ct. 141, 64 U.S. (L.Ed.) 260; United States v. Hill (1924), 1 F.2d 954;Lambert v. Yellowley (1924), 4 F.2d 915, (affirmed272 U.S. 581, 47 Sup. Ct. 210, 71 L. Ed. 422); State v.Guinness (1889), 16 R.I. 401, 16 A. 910; Commonwealth v.Brelsford (1894), 161 Mass. 61, 36 N.E. 677; State v.Labrecque (1916), 78 *Page 34 34 N.H. 182, 97 A. 747; State v. Martin (1910), 230 Mo. 1, 129 S.W. 931, 139 Am. St. 628; State v. Fargo Bottling Works Co. (1910), 19 N.D. 396, 124 N.W. 387, 26 L.R.A. (N.S.) 872; In reSimmons (1926), 199 Cal. 590, 250 P. 684, affirming 71 Cal. App. 522,235 P. 1029; State v. Gauthier (1922), 121 Me. 522, 118 A. 380, 26 A.L.R. 652; Estes v. State (1917),13 Okla. Crim. 604, 166 P. 77, 4 A.L.R. 1135; Coury v. State (1921), 20 Okla. Crim. 8, 200 P. 871; State v. Brothers (1919), 144 Minn. 337, 175 N.W. 685. In Everard's Breweries v. Day (1924), 265 U.S. 545, 560, 44 Sup. Ct. 628, 68 L. Ed. 1174, the court said: "The power to prohibit traffic in intoxicating liquors includes, as an appropriate means of making that prohibition effective, power to prohibit traffic in similar liquors although non-intoxicating." And in State of Rhode Island v. Palmer (National Prohibition Cases), supra, the same court said: "While recognizing that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, we think those limits are not transcended by the provision of the Volstead Act (title 2, § 1), wherein liquors containing as much as one-half of 1 per cent. of alcohol by volume and fit for use for beverage purposes are treated as within that power." In Purity Extract Co. v. Lynch, supra, the United States Supreme Court, affirming a judgment of the Supreme Court of Mississippi, (100 Miss. 650, 56 So. 316) held that a state may, in the exercise of its police power, prohibit the sale of intoxicating liquor, and to the end of making the prohibition effectual may include in the prohibition, beverages which, separately considered, may be innocuous; and that the courts have no concern with the wisdom of exercising the police power and unless the enactment has no substantial relation to a proper *Page 35 purpose cannot declare that the limit of legislative power has been transcended. We have likewise held in Schmitt v. Cook Brewing Co.,supra, "this court has nothing to do with the wisdom or unwisdom of the legislative act." Our legislature, in the same 3. manner as the National Congress and the legislatures of most of the other states, has seen fit to make unlawful the sale of certain liquor which may not be in fact intoxicating by conclusively defining as intoxicating "all malt, vinous or spirituous liquor containing as much as one-half of one per cent. of alcohol by volume," and since this enactment (§ 2) has a substantial relation to the purpose of the act (ch. 48, acts of 1925), the courts cannot declare that the limit of legislative power has been transcended thereby. The evidence adduced at the trial has not been brought up by this appeal and there is nothing in the record to show that the liquor appellant was convicted of possessing was not 4, 5. actually intoxicating. Neither is there anything in the record to show that the percentage of alcohol named in our statute (one-half of one per cent.) is not sufficient to constitute a liquor intoxicating, and this court does not judicially know what percentage of alcohol is the minimum percentage required to give a liquor the actual capacity to intoxicate the average man. As above stated, however, actual capacity to intoxicate, is not, under our statute, the exclusive test as to whether liquor is within its terms. As we recently pointed out in Bernstein v. State (1928), 199 Ind. 704,160 N.E. 296, § 2, ch. 48, acts of 1925, § 2715 Burns 1926 includes three separate classifications in its definition of intoxicating liquor viz: (1) "All malt, vinous or spirituous liquors containing as much as one-half of one per cent. of alcohol by volume, (2) and *Page 36 every other drink, mixture or preparation of like alcoholic content, whether patented or not, reasonably likely or intended to be used as a beverage, (3) and all other intoxicating beverages or preparations, whether alcoholic or not, intended for beverage purposes." This method of writing prohibition acts, viz: by defining certain classes of liquors as intoxicating and then prohibiting them as such, instead of directly prohibiting them, may 6, 7. be open to the criticism made by the appellant that it is not logical, but it was used in the National Prohibition law, and has been used in the prohibition laws of the various states for many years, and has been uniformly upheld. The courts have held that the words of such a statute do not purport to change the nature of things and make liquors intoxicating which are not intoxicating, but that by this method it is only enacted that the words "intoxicating liquor" where used in the act shall be deemed to include any liquor containing more than the specified amount of alcohol. State v. Guinness, supra;Commonwealth v. Brelsford, supra; State v. Labrecque, supra; see also, State v. O'Connell, supra. "What the Volstead Act does, we think," said the court inState v. Gauthier, supra, (and as we have pointed out our statute uses the same percentage of alcohol in its 8. definition as does the Volstead act) "is to create a conclusive presumption that liquor containing alcohol in the proportion specified is intoxicating." See Marks v. State (1909), 159 Ala. 71, 48 So. 864, 133 Am. St. 20. See, also, notes in 6 L.R.A. (N.S.) 186; 20 L.R.A. (N.S.) 1146; 26 L.R.A. (N.S.) 872 and 895; L.R.A. 1917B 962; 4 A.L.R. 1140; 11 A.L.R. 1233; 36 A.L.R. 726; 8 Ann. Cas. 48. Judgment affirmed. *Page 37

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426559/

Appellant filed his claim with the Industrial Board of Indiana for adjustment of claim for compensation for an injury as the result of an accident arising out of and in the course of his employment by *Page 475 appellee. From an award by the Full Industrial Board refusing compensation, this appeal is prosecuted. All the questions raised by the various assigned errors may be considered under the single assignment, "That the award of the Full Industrial Board is contrary to law." So much of the finding and award of the Full Industrial Board as is relevant hereto reads as follows: "And the Full Industrial Board now finds for the defendant on plaintiff's application, that plaintiff was not an employee of the defendant within the meaning of the Indiana Workmen's Compensation Law, but was a member of the fire department of the City of Lafayette, Indiana, and as such does not come under the provisions of the Indiana Workmen's Compensation Act. AWARD. "It is therefore considered and ordered by the Industrial Board of Indiana that plaintiff shall take nothing by his complaint herein and that he shall pay the costs of these proceedings." There is no dispute relative to the facts and circumstances surrounding the accident and the same are stipulated by the parties hereto as follows: "Come now the parties in the above captioned cause and by agreement hereby stipulate as follows: That on the 21st day of October, 1938, the above named plaintiff, Harry Kuntzwiller, was a duly appointed, legally qualified and acting officer in the service of the fire department of the City of Lafayette, Indiana, as a captain, and was located and in charge of the fire engine company at Station Number Two, located on North Ninth Street between Union and Elizabeth Streets, in the City of Lafayette, Indiana. "That at or about eight (8) o'clock of the evening of the said 21st day of October, 1938, a fire was in progress *Page 476 at 117-119 Vine Street, in the City of West Lafayette, Indiana; that the fire department of the City of West Lafayette, Indiana, caused a call to be made to the fire department of the City of Lafayette, Indiana, for assistance of a fire engine company of the City of Lafayette in putting out the fire then in progress at 117-119 Vine Street, in the City of West Lafayette, Indiana; that said call from the fire department of the City of West Lafayette to the fire department of the City of Lafayette, Indiana, was made under a previous written agreement between the City of Lafayette and the City of West Lafayette, which agreement reads as follows: "THIS CONTRACT MADE THIS 28th day of February, 1934, by and between the City of Lafayette, of the first part, and the City of West Lafayette, of the second part, WITNESSETH: "That in order to increase the protection against loss and damage by fire it is mutually agreed by the parties to this contract that each municipality and party to this contract shall attend and assist the other party in extinguishing such fires that may occur in their respective municipalities when such assistance is so requested by the fire department of such municipality respectively. "IN WITNESS WHEREOF the parties to this contract have set their hands and seals, the day and year first above written. City of West Lafayette, City of Lafayette, By Myron B. Morgan, By John B. Hudson, Mayor, Mayor, Charles S. Doan, James Burk, F.C. Hockema, C.E. Calsbeek, Ralph E. Adams, E.S. Urwitz, R.B. Wiley, Board of Works. Arthur McQueen, W.F. Strate, Common Council. *Page 477 "That upon the order of a superior officer in the fire department of the City of Lafayette, Indiana, Engine Company Number Two, of which said plaintiff was captain, was ordered to proceed to the place of fire to aid and assist the fire department of the City of West Lafayette, Indiana; that at the time said call for assistance was received said plaintiff was performing such duties required of him as an officer in the service of the fire department of the City of Lafayette, Indiana; that said plaintiff answered the call at the direction of his superior officer and proceeded to the scene of the said fire at 117-119 Vine Street, in the City of West Lafayette, Indiana; that there was also present at said time and place one Frank Carr, assistant fire chief of the fire department of the City of Lafayette, Indiana, who was a superior officer to this plaintiff; that there was also present at said time and place one Ben O'Connor, chief of the fire department of the City of West Lafayette, Indiana; that the hose and nozzle owned by the City of Lafayette, Indiana, was attached to the fire engine pumper owned by the City of West Lafayette, Indiana, and connected to the fire hydrant in the City of West Lafayette, Indiana; that the nozzle and hose attached as aforesaid were being handled by the plaintiff, Harry Kuntzwiller, and one Lester Hague, a member of Fire Engine Company Number Two of the City of Lafayette, Indiana, at the time of the accident hereinafter described; and that while said fire engine company, of which said plaintiff was captain, was rendering assistance to the City of West Lafayette, Indiana, as aforesaid, said plaintiff was struck by the said nozzle in his hands as aforesaid, or by a stream of water from said nozzle and hose, which said nozzle or stream of water going out of control knocked out his left eye. *Page 478 "That the defendant, the City of West Lafayette, had notice of said injury. "That as a result of said injury, said plaintiff has lost the use of his left eye, entirely and completely. "That the reasonable and necessary medical, surgical and hospital expenses of treating said injury are of the reasonable value of $185. "That the plaintiff received for his services as captain of Engine Company Number Two of the Fire Department of the City of Lafayette, Indiana, an average weekly wage of $31.50, which wage was the reasonable value of his services at the time of said accident; and that he received no money, wage or remuneration from the City of West Lafayette, Indiana, or the fire department of said City of West Lafayette, Indiana, either prior or subsequent to the time of the accident. "It is further stipulated and agreed by and between the parties hereto that the stipulations herein made admit no liability and are for the express purpose of presenting the question of employment, which employment, defendant, as shown by the record, denies. "Witness the hands and seals of the undersigned, this 21st day of June, 1939. (Signed) D. Emmett Ferguson, Attorney for Plaintiff. Lowell L. Martin, Ralph B. Gregg, Attorneys for Defendant." "The right of any person to receive and the liability of any person to pay compensation, under our Workmen's Compensation Act, depends in the first place, of course, upon the existence 1. of the relation of employer and employee, and whether this relation exists is to be determined in accordance with the usual rules. This relation is contractual in character, *Page 479 and must be created in every instance by contract, either express or implied." In re Moore (1933), 97 Ind. App. 492,187 N.E. 219, and cases cited. Pursuant to the rule laid down in the above cited case, it is apparent that the paramount question to be determined in this appeal is whether or not appellant, at the time of injury complained of, was in the employment of appellee. If the answer to this question, from all the facts and circumstances surrounding the transaction, is in the negative, then a discussion of the question of the capacity of his employment by someone other than the appellee would obviously be unnecessary and avail nothing herein. The contract for mutual assistance between the City of Lafayette and the City of West Lafayette, contains the following stipulation, "that each municipality and party to this contract shall attend and assist the other in extinguishing such fires that may occur in their respective municipalities. . . ." There is only one way the City of Lafayette could extend the aid provided for in said contract to said City of West Lafayette, and that is through its officers, agents or employees, and 2. it was only by virtue of the fact that appellant herein was an agent, officer or employee of said City of Lafayette that his services were procurable under such contract. The possibility of his being called upon to render assistance to the City of West Lafayette, was one of the risks of his employment and was incidental to his services as a fireman of the City of Lafayette. The stipulation recites that on the date of the injury, appellant was an acting officer in the service of the fire department of the City of Lafayette; that upon the order of 3. a superior officer in said fire department he proceeded to the City of West *Page 480 Lafayette, used the hose nozzle of the City of Lafayette and attached the same to a fire engine pumper and to a hydrant of the City of West Lafayette. It is further stipulated that appellant received an average weekly wage of $31.50 from the City of Lafayette. There was no express contract of employment between appellant and appellee, neither do we think one was implied, nor was he a loaned employee. The assistant fire chief of the City of Lafayette, a superior officer of appellee, was also present at the time of the injury. We cannot conclude that appellant would be deemed to have passed out of the service of his general employer and into the service of a special employer. His acts and the circumstances do not lead us to believe that he had abandoned his employment with the City of Lafayette. The fire department of the City of Lafayette was operated with the presumptive knowledge that the employer was, under the contract, bound to aid in the fighting of fire at West Lafayette. No one connected with the City of West Lafayette requested appellant to come to its assistance, but such request was made to the City of Lafayette and by nature of his employment as a fireman in Lafayette he obeyed the instructions of his superior and proceeded to the place of the fire. There is no evidence or stipulation to the effect that appellant ceased to be in the employment of the City of Lafayette nor that he would not have responded to a call from that city at the direction of his superior, even during the conflagration he was engaged in fighting. The case of Prest-O-Lite Co., Inc. v. Stone (1935),100 Ind. App. 480, 196 N.E. 352, cited by appellee, is in point, and we are inclined to, and do herein, follow the reasoning set forth therein. *Page 481 Finding no reversible error, the award of the Full Industrial Board is affirmed. Stevenson, J., concurs in result. NOTE. — Reported in 29 N.E.2d 1007.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426560/

This is an action by the appellant against the appellees, comprising the Department of Treasury of the State of Indiana, for money paid as excise tax imposed upon the alleged receipts of gross income derived from business in the State of Indiana, under the provisions of the Indiana Gross Income Tax Act of 1933, being Chapter 50, Acts 1933, §§ 64-2601 to 64-2629, Burns 1933, §§ 15981-16010, Baldwin's 1934. The action was instituted under section 12 of said act which provides that any taxpayer improperly *Page 658 charged with any tax collected under the Act may recover the amount improperly collected by applying to the Department of Treasury for such refund, and in the event such refund is not allowed, may institute suit for the recovery of any such amount in the court of the county where such taxpayer resides. The complaint was in one paragraph in which it was alleged that the appellant, plaintiff below, reported the gross income for the periods ending March 31, 1934, and June 30, 1934, derived from its business and paid taxes thereon at the rate of one-fourth of one per cent, as provided in section 3-a of said Act. It is further alleged that the Indiana Creosoting Company is an Indiana corporation with its principal office and place of business located at the city of Bloomington, Indiana, and was engaged in the business of creosoting products at said plant at Bloomington, and in the business of manufacturing, compounding or preparing for sale, profit or use, articles, substances and commodities. It further appears from the complaint that after the payment by appellant of its gross income tax figured at the rate of one-fourth of one per cent the Department of Treasury audited the returns of the appellant, and assessed a deficiency tax for each of the aforesaid periods, amounting to $35.64 for the period ending March 31, 1934, and $78.28 for the period ending June 30, 1934, and applied the rate of one per cent upon the amount of appellant's gross income; that the appellant paid the deficiency tax, and notified the department that it would institute an action under section 12 of said Act to recover the amount of the tax which the appellant claimed was unlawful in that it was fixed at the rate of one per cent. The error assigned for reversal is that the court erred in overruling appellant's motion for a new trial. The reasons assigned in the motion for a new trial were: (a) That the decision of the court was not sustained by *Page 659 sufficient evidence; and (b) that the decision was contrary to law. It is contended by appellant under points and authorities numbered one and two that the appellant was engaged in interstate commerce in running its plant at Bloomington, Indiana, with different states of the United States and foreign countries, and for this reason the legislature of Indiana cannot levy a tax called a license, income, property or excise tax; and that appellant is exempt from all taxes by reason of the exemption contained in the Gross Income Tax Act of Indiana. It is provided in section 6-a of the Act (Acts 1933, ch. 50, p. 392) that: "There shall be excepted from the gross income taxable under this act: "(a) So much of such gross income as is derived from business conducted in commerce between this state and other states of the United States, or between this state and foreign countries, to the extent to which the State of Indiana is prohibited from taxing under the Constitution of the United States of America . . ." Whether the appellant was engaged in interstate commerce depends upon the evidence, and we are unable to find any evidence in the record to sustain this contention of appellant. A contract between the appellant and the Chicago, Indianapolis, and Louisville Railway Company, dated December 17, 1914, was introduced in evidence by the appellant. The contract shows that the appellant has a creosoting plant at Bloomington, Indiana, located near the tracks of the railway company, and it contracted to creosote ties and timber for the railway company; that the railway company was to furnish and maintain adequate railroad tracks to facilitate the loading and unloading of its ties and other material; that the railway company was to deliver to the creosoting company for treatment 3,000,000 ties at the *Page 660 rate of 200,000 per annum unless the necessity of the railway required less in any one year; that the ties were to be delivered f.o.b. cars at the creosoting company's yard or stacked on the ground in the creosoting company's seasoning yard, and after treatment were to be delivered by the creosoting company f.o.b. at its yard. The contract further provided for the method of treatment, the quality of oil to be used and the price to be paid for the treatment; that the creosoting company should render the railway bills at the expiration of each month for all ties and timber treated during the previous month, and payment was to be made within twenty (20) days after receipt thereof. There are many more provisions of the contract, but the foregoing are the essential ones for the purpose of this opinion. It was alleged in the complaint of appellant that its principal office and place of business was in the city of Bloomington, Monroe county, Indiana, while the evidence shows that it was in Louisville, Kentucky, and the plant office in Bloomington. It is shown by the evidence that the book accounts were kept in Louisville; that the money received in payment of accounts was sent to the office in Louisville, and the bills for supplies and material were paid at the same place. All operating records were kept at the plant office in Bloomington. There is a total lack of any statement or statements in the contract, or of any evidence in the record, to show that any shipment of ties was to be made outside of the State of Indiana. There is nothing contained in the contract or evidence which shows, or tends to show, that there was any interstate commerce involved in the transaction between the parties to the contract. On the contrary, the contract shows that the railway company was to deliver to the creosoting company three million cross-ties at the creosoting company's plant at Bloomington *Page 661 for treatment, and after treatment the creosoting company was to deliver the ties to the railway company at Bloomington. The treatment of the ties by the creosoting company is the source of the receipt of the gross income for which it was taxed, and there is no evidence submitted in the record which shows, or tends to show, that any of the income was received from any transaction outside the State of Indiana. On the contrary all of the evidence shows that the business was done between the parties in Indiana, and all income received by the appellant from the railway company was for intrastate business done in Indiana. There is no evidence to show that any of the ties were received from outside of Indiana, nor that after treatment any of them were shipped outside of the state. We judicially know that the railway company extends through the State of Indiana from north to south, 1, 2. and we may infer, nothing to the contrary appearing, that the railway company had use for the treated ties on its road in Indiana. It is stated in argument of appellant that the contract was negotiated in Illinois, and consummated in Kentucky. There is a total lack of evidence to substantiate this statement, but, 3. even if it were true, this fact of itself would not constitute interstate commerce. As said in the case ofWare Leland v. Mobile County (1908), 209 U.S. 405, 411, 28 S.Ct. R. 526. ". . . contracts between citizens of different states are not the subjects of interstate commerce, simply because they are negotiated between citizens of different States, or by the agent of a company in another State, where the contract itself is to be completed and carried out wholly within the borders of a State, although such contracts incidentally affect interstate trade." The appellant cites many cases of the United States Supreme Court relative to interstate commerce; but, as *Page 662 the evidence in the instant case shows that there was no interstate commerce involved, the cases are not in point, and are not controlling here. In the case of Penn. R.R. v. Clark Coal Company (1915),238 U.S. 456, pp. 465, 466, 35 S.Ct. R. 896, it said: "In determining whether commerce is interstate or intrastate, regard must be had to its essential character. Mere billing, or the place at which title passes, is not determinative. If actual movement is interstate, the power of Congress attaches to it, and the provisions of the Act to Regulate Commerce . . . apply." And again, in the case of Browning v. City of Waycross (1914), 233 U.S. 16, 23, 34 S.Ct. R. 570, it is said: ". . . it was not within the power of the parties by the form of their contract to convert what was exclusively a local business, subject to state control, into an interstate commerce business protected by the commerce clause." In the case of Superior Oil Co. v. Mississippi (1930),280 U.S. 390, 395, 50 S.Ct. R. 169, the court stated: "The importance of the commerce clause to the Union, of course, is very great. But it also is important to prevent that clause being used to deprive the States of their life blood by a strained interpretation of facts." The evidence and the contract in the instant case clearly show that the work or service done by the appellant in creosoting the ties was exclusively a local and intrastate business, and 4. not interstate; and, therefore, the appellant is not exempt from the Gross Income Act. The appellant next contends that it is exempt from taxation because its intangibles at Bloomington had no situs for the purpose of taxation in the State of Indiana, and cites 5. Miami Coal Co. v. Fox (1932), 203 Ind. 99, 176 N.E. 11, to sustain its contention. *Page 663 The foregoing case does not sustain appellant's contention, and is not applicable to the facts in the instant case. In the above case, it appears that the Miami Coal Co. was an Indiana corporation, engaged in the mining, production, and sale of coal; that the company was licensed by the State of Illinois to transact business in that state as a foreign corporation; that for many years the company engaged in the mining, production, and sale of coal; that on March 1, 1923, the coal company owned intangible personal property, consisting of bills and accounts receivable, over and above all legal deductions, of the cash value of $1,060,565, and the company was assessed in Vermillion county for said amount. It further appears from the facts in said case that all sales of coal were made in its office in Chicago where all the books of account were kept in which were made the entries for the sale of coal, and where all accounts were due and payable; that the corporation never had an agent or office in Indiana authorized to sell coal or collect accounts; that the price of the coal was fixed in the office in Chicago; that no funds of the corporation entered Indiana except money for the payment of the miners' payroll; that all bills for supplies and material were paid at the office in Chicago, and all salaries of the officers and dividends to the owners of the capital stock were paid at the Chicago office. It was held that, under the facts as presented in the foregoing case, the property in question, which was the foundation of the assessment, had a business situs in the State of Illinois, and was not subject to taxation in Indiana. Moreover, the question involved related to a tax upon intangibles as property. In the instant case, we are considering a tax upon the receipt of gross income as provided in the Gross Income Tax Act of 1933, and there is no attempt to tax an intangible. The gross income tax is an excise tax, and is measured by the *Page 664 receipt of gross income. In the case of Miles v. Department ofTreasury (1935), 209 Ind. 172, 199 N.E. 372, the court, in considering the Gross Income Tax Act, said (p. 188): "We conclude that the tax in question is an excise, levied upon those domiciled within the state or who derive income from sources within the state, upon the basis of the privilege of domicile, or the privilege of transacting business within the state, and the burden may reasonably be measured by the amount of the income. The reasoning which justifies a tax upon the basis of domicile as readily supports and justifies a tax upon the basis of the right to receive income within, or transact business under the protection of the state." As there is no attempt in the instant case to tax intangibles as property, the case of Miami Coal Co. v. Fox is not applicable. It is next insisted (1) that the appellant is engaged in manufacturing, compounding, and preparing for sale articles at its plant at Bloomington, Indiana, and, therefore, is exempt from taxation, but (2) if taxable at all upon its income derived from its business at Bloomington it would be at the rate of one-quarter of one per cent of its gross income instead of one per cent. If the appellant is doing the very thing it asserts in subdivision (1) as stated above, then it is brought squarely within section 3-a, and could not be exempt, for it is specifically stated in said section that: "The tax hereby provided for shall be imposed at the following rates: (a) Upon the entire gross income of every person engaged in the business of manufacturing, compounding, or preparing for sale, profit, or use, any article or articles, substance or substances, commodity or commodities . . . one-fourth of one percent." And the appellant voluntarily made its report to the Department of Treasury, and paid taxes at the rate of *Page 665 one-fourth of one per cent, but the Department, not being satisfied, increased the rate to one per cent, as imposed by section 3-f, and this action is to recover all the taxes paid. The appellant recognized, accepting its status as defined by it, as being liable to a tax of one-fourth of one per cent. It seems to us that proposition IV of appellant's is inconsistent and contradictory. The last question to be considered is whether the appellant, under the facts as presented, is engaged in manufacturing, compounding, and preparing for sale articles at its plant 6-8. at Bloomington. We unhesitatingly hold that it is not. The process of creosoting the ties cannot in any sense be considered manufacturing. Could it be said that one who paints buggies and wagons after all parts have been made and assembled is engaged in the manufacturing business? We think not. The injection of oil into the ties is no different than the painting of a buggy, wagon, or house. All is done for the preservation of the material. The oil is supposed to preserve the ties, and the paint is to preserve the wagons, buggies, or houses. The process by which it is done, whether by machinery or labor, is not manufacturing, but merely service, or labor, in doing the work. Under no definition of any dictionary that we are able to find is the word manufacture, or manufacturing, defined to include the work done by appellant. And, in the case of State v. AmericanCreosoting Works (1927), 163 La. 547, 112 So. 412, cited by appellant, the word "manufacturer" is defined, and it certainly would not bring the appellant within its meaning. It is said (p. 550): "`A manufacturer is defined to be: One who is engaged in the business of working raw materials into wares suitable for use, who gives new shapes, new qualities, new combinations to matter which has already gone through some artificial process. A manufacturer prepares the original substance for *Page 666 use in different forms. He makes to sell, and stands between the original producer and the dealer, or first consumers, depending for his profit on the labor which he bestows on the raw materials.'" The foregoing case is clearly distinguishable from the instant case, as shown by the facts stated in the opinion. The court said: "In conducting its operations, the defendant company receives at its plant rough timber and lumber. The inner bark is peeled off the timber, and the knots are smoothed down. It is then cut into lengths for piling. Telephone and telegraph poles are made by forming a roof, either slanting or pointed, in which notches are cut to hold the cross-arms, and holes are bored for the insertion of bolts. The rough lumber is cut to size, mortized for splicing, and trimmed. The resulting product is used for bridge and highway timber. Rough lumber is also planed and smoothed, cut to size, with holes for bolts, for use as cross-arms for telegraph or telephone poles. Wooden paving blocks are made by special machinery, and cut to size as ordered by various municipalities. Cross-ties are adzed to afford an even surface for the plates. The plant also turns out car bumpers, factoring flooring, and what is known as `Martinez' sheet piling, a patented article." Then, after all the foregoing work was done, the finished product was impregnated with creosote oil by an intricate mechanical process. Taking all the facts above enumerated into consideration, the court held that the process was a manufacturing one. In the instant case, however, nothing whatever is done to the ties but the injection of the creosote oil, and this certainly cannot amount to a manufacturing process. Neither do we think the business of the appellant comes within the terms of "compounding or preparing for sale, profit, or use." The word "compound" is used in the sense to put together, as elements, ingredients, or parts, in order to form a whole; to combine, mix, or unite. Webster's New International Dictionary. If we *Page 667 were to consider the word "prepare" alone and unconnected with the words "manufacturing" and "compounding" there might be some reason for the appellant's construction of this part of Section 3-a. We think, however, that all of the language must be construed together to determine the meaning of Section 3-a. The meaning of a word used in a statute must be construed with reference to all other words used therein and with which it is associated. It is a rule of statutory construction that effect must be given to the whole statute and every part thereof. Stateex rel. Hopper v. Board of Comm. (1925), 196 Ind. 472,149 N.E. 69. We think the words "manufactured," "compounded," and "prepared," as used in the statute must be construed in connection with each other. They are all qualified by the words "for sale, profit or use" and form a classification as being taxable at one-fourth of one per cent. We do not think that the appellant's business comes within the meaning of the words "engaged in the business of manufacturing, compounding or preparing for sale, profit or use any article . . ." so that the gross income would be taxed at one-fourth of one per cent. The work done in creosoting the ties is nothing more than a service rendered for the purpose of preserving them and can not be placed in the classification of manufacturing, compounding, or preparing for sale, profit, or use of any article any more than could the painting of a house, buggy, or wagon. The service of all is for the same purpose — preservation of the material, the only difference being the method of the work and the material used. It is our judgment that the appellant is properly taxed under Section 3-f upon its gross income at the rate of one per cent. The judgment of the lower court is sustained by sufficient evidence and is not contrary to law. Judgment affirmed. *Page 668

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3209666/

****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** IN RE LEILAH W.* (AC 38620) DiPentima, C. J., and Keller and Prescott, Js.** Argued April 7—officially released June 3, 2016*** (Appeal from Superior Court, judicial district of Litchfield, Juvenile Matters, Ginocchio, J.) David E. Schneider, Jr., for the appellant (respon- dent father). Cynthia Mahon, assistant attorney general, with whom, on the brief, were George Jepsen, attorney gen- eral, Gregory T. D’Auria, solicitor general, and Benja- min Zivyon, assistant attorney general, for the appellee (petitioner). Rebecca Mayo Goodrich, for the minor child. Opinion PRESCOTT, J. The respondent father, Richard L., appeals from the judgment of the trial court, rendered in favor of the petitioner, the Commissioner of Children and Families, terminating his parental rights with respect to his daughter, Leilah W.1 On appeal, the respondent claims that the court improperly (1) failed to conduct a pretrial canvass of him in accordance with our Supreme Court’s decision in In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015); and (2) determined, in accordance with General Statutes § 17a-112 (j) (3) (B) (i), that the petitioner had proven by clear and convincing evidence that Leilah previously was adjudi- cated neglected and that the respondent has failed to achieve a sufficient degree of personal rehabilitation to encourage a belief that he could assume a responsible position in Leilah’s life within a reasonable period of time.2 We affirm the judgment of the trial court. The record reveals the following relevant facts, which are uncontested or were found by the trial court, and procedural history. Leilah was born on September 2, 2013. On September 26, 2013, the respondent was arrested on burglary charges and incarcerated. The Department of Children and Families (department) obtained an order in October, 2013, granting the peti- tioner temporary custody of Leilah after her mother tested positive for opiates and marijuana. The petitioner subsequently filed a neglect petition. Both the applica- tion for the order of temporary custody and the neglect petition identified Leilah’s father as Kenneth A.; how- ever, a December 16, 2013 paternity test later revealed that Kenneth A. was not Leilah’s biological father. Leilah was adjudicated neglected on February 11, 2014, and committed to the care and custody of the petitioner. On March 21, 2014, a paternity test identified the respondent as Leilah’s biological father.3 The peti- tioner filed a motion on July 21, 2014, asking the court to order specific steps for the respondent,4 which the court approved and ordered on August 6, 2014. On Sep- tember 10, 2014, the court approved a permanency plan of reunification and again issued specific steps to both parents. On May 19, 2015, the petitioner filed a petition to terminate the parental rights of Leilah’s mother and the respondent. The petitioner also filed a social study in support of that petition. With respect to the respondent, the petition sought termination on the ground that no ongoing parent-child relationship existed between the respondent and Leilah. On July 15, 2015, over the objec- tion of the respondent, the court approved a perma- nency plan of termination and adoption. At that time, Leilah’s mother consented to termination of her paren- tal rights. Shortly thereafter, the petitioner successfully moved to amend the termination petition with respect to the respondent. The amended petition was filed on August 5, 2015, and included as an additional ground for termi- nation that Leilah previously had been adjudicated neglected and that, considering Leilah’s age and needs, the respondent had failed to achieve a degree of per- sonal rehabilitation necessary to encourage a belief that he could assume a responsible position in Leilah’s life within a reasonable amount of time. With the amended petition, the petitioner also filed an amended social study. A trial was conducted on the operative amended peti- tion on October 5, 2015, before Judge Ginocchio. The respondent was represented by counsel throughout the proceedings. Both the petitioner and the respondent presented exhibits and called witnesses. The petition- er’s sole witness was Reagan Horvay, the department social worker assigned to Leilah’s case. Horvay was cross-examined extensively by the respondent’s attor- ney. The respondent testified on his own behalf and also presented testimony from Elizabeth Cooper, a counselor with the Department of Correction, and Carl Hoyt, the department social worker case aide who supervised his visitations with Leilah. The attorney for the minor child presented testimony from Leilah’s fos- ter mother. Shortly after the close of evidence, the assistant attor- ney general representing the petitioner informed the court that it had not conducted a canvass of the respon- dent prior to the start of trial in accordance with our Supreme Court’s recent decision in In re Yasiel R., supra, 317 Conn. 773. In In re Yasiel R., which was decided on August 18, 2015, less than two months prior to the start of the respondent’s trial, our Supreme Court held that due process did not require a trial court to canvass a parent in a termination proceeding regarding her counsel’s decision not to contest the evidence pre- sented against her and to waive her right to a full trial. Id., 787–88. Nevertheless, pursuant to the court’s super- visory powers over the administration of justice, it stated that ‘‘public confidence in the integrity of the judicial system would be enhanced by a rule requiring a brief canvass of all parents immediately before a parental rights termination trial so as to ensure that the parents understand the trial process, their rights during the trial and the potential consequences.’’ (Emphasis added.) Id., 794. To remedy its oversight in the present case, the court asked the parties to return to court on October 7, 2015, at which time the court advised the respondent that it had failed to canvass him in accordance with In re Yasiel R. prior to trial. The court indicated that although the respondent had been afforded a full trial with an attorney present, it nevertheless was obligated to advise the respondent of certain rights and to provide him with an opportunity to consult with his attorney regard- ing those rights. The following colloquy ensued: ‘‘The Court: So what I would have said before trial is, before we begin this hearing on the termination of parental rights petition, the parent should understand that in the event the court terminates your parental rights this will result in the end of your legal relationship with your child. You will have no legal rights, no author- ity and no responsibility for the child. You will no longer have any rights to make decisions of any kind affecting the child. You will not be entitled to any state or federal benefits or entitlements on behalf of the child. The child will be eligible to be adopted. ‘‘And I’m assured that you and Attorney [Brya Ann] Darley [the respondent’s counsel] did discuss all that before the trial. Correct? ‘‘[The Respondent]: Yes, sir. ‘‘The Court: And Attorney Darley— ‘‘[The Respondent’s Counsel]: Yes, Your Honor. ‘‘The Court:—you confirmed that? ‘‘It goes on to say, at the hearing you will have the right to be represented by an attorney, you will have your lawyer with you, your lawyer will help protect your legal rights. Those legal rights include the right to question, confront and cross examine any witness to test their memory and determine if they are telling the truth. You will have the right to object to testimony and to the admission of any documents or exhibits including any social studies or psychological reports. The objections must be made in accordance with the rules of evidence. You will have the right to have your own defense put on for you and you may call your own witnesses to assist you in challenging the allegations made against you. You have the right to testify—that is, tell your side of the story if you want to do so, but no one can make you testify because you’ll still have the right to remain silent. If you do not testify the court could draw an adverse inference against you—that means the court could decide that you were not testi- fying because your testimony would not be helpful to you. Finally, you are advised that if you do not present any witness on your own behalf or do not cross examine witnesses, the court will decide the matter based upon the evidence presented at the trial. ‘‘Do you have any questions you wish to ask, please consult with your attorney first. So, I’ll have you consult with your lawyer and then let me know if you have any questions about what I’ve just read to you. ‘‘[The Respondent]: I have no questions, sir. ‘‘The Court: All right. And anything further on that? ‘‘[The Respondent’s Counsel]: No, Your Honor. ‘‘The Court: All right. So the record shall reflect that I did canvass him pursuant to the supervisory authority of the Supreme Court of the State of Connecticut.’’ The hearing concluded shortly thereafter. At no time during the hearing did the respondent or his counsel voice any objection regarding either the content of the court’s canvass or its failure to conduct the canvass pretrial. The respondent did not file any posthearing motion seeking a mistrial, asking to reopen the evi- dence, or requesting any other additional relief. The court issued a written decision on October 26, 2015, granting the petition to terminate the parental rights of the respondent and, by consent, Leilah’s mother. With respect to the respondent, the court found that the petitioner had proven by clear and convincing evidence both grounds for termination asserted in the operative amended petition. First, the court found, pursuant to § 17a-112 (j) (3) (B) (i), that Leilah had been adjudicated neglected or uncared for in a prior proceeding on February 11, 2014, and that the respondent had failed to rehabilitate suffi- ciently so that, within a reasonable period of time, he could assume a responsible position in Leilah’s life. With respect to this ground, the court noted that the respondent just recently had been released from prison, and that he was obligated to reside at a halfway house until July, 2016, and could not have custody of a child there. The court also found that although the respon- dent had completed several programs while incarcer- ated, he had not addressed his domestic violence issues, and had no intention of seeking treatment or taking medication for his bipolar disorder, which the court described as largely untreated. Further, according to the court, there were no prospects for housing or mean- ingful employment in the respondent’s future. Of partic- ular concern to the court was the lack of any ‘‘viable parenting plan on the horizon.’’ The court concluded that because the respondent had ‘‘failed to demonstrate any significant periods of sobriety, employment and lack of criminal activity while in the community,’’ that, considering the needs of a young child like Leilah, the respondent could not be ‘‘in a position to be a placement resource for the child within a reasonable time.’’5 Second, the court found that the petitioner also had proven by clear and convincing evidence that termina- tion of parental rights was appropriate because the respondent lacked any parent-child relationship with Leilah. The court found the following facts particularly relevant to this ground for termination. Despite being aware during the mother’s pregnancy that he potentially could be the father, the respondent ‘‘yielded to the mother’s request to allow [Kenneth A.] to take responsi- bility for Leilah.’’ The respondent, who has been incar- cerated for much of Leilah’s life, has visited with Leilah only once a month, and, because of his incarceration, his contact during visits was restricted. For example, he was not permitted to hold her, feed her, comfort her, or change her. Although Leilah sometimes referred to the respondent as ‘‘daddy,’’ she also referred to other males as ‘‘daddy.’’ The respondent’s incarceration had prevented him from having a meaningful relationship with his child. No emotional bond existed between the respondent and Leilah, whose only memories of the respondent were formed during her visits with him in prison. The court concluded that ‘‘[t]o permit additional time to develop a parent child relationship with his daughter would not be in Leilah’s best interest because [the respondent would] not be released from a half[way] house until July of 2016 and Leilah’s permanency cannot be delayed.’’ After considering and making written findings regard- ing the criteria set forth in § 17a-112 (k), the court determined that termination of the respondent’s paren- tal rights was in the best interest of Leilah. Accordingly, the court terminated the parental rights of both parents, and appointed the petitioner as Leilah’s statutory parent for the purpose of securing an adoptive family or other permanent placement. This appeal followed.6 I The respondent first claims that he is entitled to a new trial because the court improperly failed to conduct a pretrial canvass of him in accordance with the supervi- sory rule announced by our Supreme Court in In re Yasiel R., supra, 317 Conn. 773. He argues that the court’s effort to advise him of his rights after the close of evidence was insufficient to remedy the error because it failed to satisfy the purpose underlying the pretrial canvass mandated by In re Yasiel R. The petitioner, on the other hand, responds that, under the facts of this case, which are distinct from those that led to the deci- sion in In re Yasiel R., the trial court did not commit reversible error by providing the canvass after the close of evidence, and the respondent has failed to demon- strate how he was prejudiced by the late canvass. We agree with the petitioner. At the outset, we note that the respondent never distinctly raised any claim of error before the trial court regarding the canvass and, thus, failed to properly pre- serve his claim for appellate review.7 After the court acknowledged its error in failing to canvass the respon- dent at the start of the trial, it attempted to remedy that error by providing an advisement of rights after the close of evidence. The respondent and his counsel acquiesced to the late canvass, never indicating to the court any dissatisfaction with the court’s actions or arguing that the respondent had been irreparably harmed and a new trial was necessary. In accordance with our case law and rules of practice, appellate review generally is limited to issues that were distinctly raised at trial. State v. Canales, 281 Conn. 572, 579, 916 A.2d.767 (2007); see also Practice Book § 60-5 (‘‘court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subse- quent to the trial’’). ‘‘Only in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.’’ (Internal quotation marks omitted.) State v. Canales, supra, 579. ‘‘The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambus- cade, which is unfair to both the trial court and the opposing party.’’ (Internal quotation marks omitted.) In re Azareon Y., 309 Conn. 626, 635, 72 A.3d 1074 (2013). It is equally well settled, however, that a reviewing court, although not bound to consider a claim that was not raised to the trial court, may do so at its discretion. See Persico v. Maher, 191 Conn. 384, 403, 465 A.2d 308 (1983) (although appellate court not bound to consider unpreserved claims of error, it may elect to do so on occasion, ‘‘not by reason of the appellant’s right to have it determined but because in our opinion in the interest of public welfare or of justice between individuals it ought to be done’’ [internal quotation marks omitted]). We are unaware of any statutory or procedural rule limiting that discretion. Several reasons convince us to review the respondent’s claim in this instance, despite his failure to raise any issues before the trial court. First, the petitioner will not be unfairly prejudiced if we review the claim. She has fully addressed the merits of the respondent’s claim in her brief, and, although as part of that discussion she mentions that the respondent never raised any issue concerning the late canvass to the trial court, she does not directly assert that the respondent failed to preserve his claim or provide analy- sis of that issue. Second, the precise contours of our Supreme Court’s decision in In re Yasiel R. have yet to be fully explored or explained, and, thus, our consid- eration of the issue raised by the respondent may be beneficial in defining the parameters of this new super- visory rule. Finally, because the trial court acknowl- edged its error in failing to give the required canvass prior to the start of trial, our review of the respondent’s claim, particularly whether that error should automati- cally result in a new trial, would not amount to the type of ambush of the trial court that we ordinarily attempt to avoid by eschewing review of unpreserved claims.8 Whether the trial court’s failure to strictly comply with the rule announced in In re Yasiel R. warrants the granting of a new trial raises a mixed question of law and fact over which we exercise plenary review. See In re Joseph W., 121 Conn. App. 605, 616, 997 A.2d 512 (2010), aff’d, 301 Conn. 245, 21 A.3d 723 (2011); see also In re Daniel N., 163 Conn. App. 322, A.3d (2016). Having decided to exercise our discretion to review the respondent’s unpreserved claim, we turn to our consideration of its merits. Our Supreme Court exercised its supervisory powers in In re Yasiel R. to announce a new rule that, although not constitutionally required, it concluded was neces- sary to protect the perceived fairness of the judicial system with regard to termination of parental rights proceedings. In setting forth the parameters of its newly crafted canvass requirement, our Supreme Court stated: ‘‘[B]y exercising our supervisory authority in the pre- sent case, we are promoting public confidence in the process by ensuring that all parents involved in parental termination proceedings fully understand their right to participate and the consequences of the proceeding. We conclude, therefore, that it is proper to exercise our supervisory power in the present case and require that, in all termination proceedings, the trial court must canvass the respondent prior to the start of the trial. The canvass need not be lengthy as long as the court is convinced that the respondent fully understands his or her rights. In the canvass, the respondent should be advised of: (1) the nature of the termination of parental rights proceeding and the legal effect thereof if a judg- ment is entered terminating parental rights; (2) the respondent’s right to defend against the accusations; (3) the respondent’s right to confront and cross-examine witnesses; (4) the respondent’s right to object to the admission of exhibits; (5) the respondent’s right to pre- sent evidence opposing the allegations; (6) the respon- dent’s right to representation by counsel; (7) the respondent’s right to testify on his or her own behalf; and (8) if the respondent does not intend to testify, he or she should also be advised that if requested by the petitioner, or the court is so inclined, the court may take an adverse inference from his or her failure to testify, and explain the significance of that inference. Finally, the respondent should be advised that if he or she does not present any witnesses on his or her behalf, object to exhibits, or cross-examine witnesses, the court will decide the matter based upon the evidence presented during trial. The court should then inquire whether the respondent understands his or her rights and whether there are any questions. This canvass will ensure that the respondent is fully aware of his or her rights at the commencement of the trial. It will neither materially delay the termination proceeding nor unduly burden the state.’’ (Emphasis added.) In re Yasiel R., supra, 317 Conn. 794–95. The court stressed that the canvass was required in all parental termination cases, not just in those cases in which the respondent’s attor- ney chooses not to contest evidence, as was the case in In re Yasiel R. Although this court recently held that the In re Yasiel R. canvass requirement must be applied retroactively, and we ordered a new trial in a termination proceeding in which the parent never received a canvass regarding his rights; In re Daniel N., supra, 163 Conn. App. 333–37; we are unconvinced under the facts of the present case that the trial court’s failure strictly to comply with the Supreme Court’s supervisory rule by canvassing the respondent after the close of evidence at the termina- tion trial ended requires reversal of the judgment of termination and a new trial. We agree with the petitioner that our Supreme Court’s decision in State v. Smith, 275 Conn. 205, 881 A.2d 160 (2005), is instructive in resolving the respondent’s claim because it demon- strates that a trial court’s failure to comply with a super- visory rule does not automatically require reversal and a new trial in all cases. In Smith, the defendant raised an unpreserved claim that he was entitled to a new criminal trial because the trial court had utilized language in its instructions to the jury that our Supreme Court, pursuant to its supervisory powers, previously had instructed courts to refrain from using. Id., 237; see also State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002). The Supreme Court deter- mined, consistent with its decision in Aponte, that the trial court’s use of the prohibited language did not impli- cate the defendant’s constitutional rights, and, thus, he was not entitled to Golding review.9 State v. Smith, supra, 275 Conn. 239. Further, despite the trial court having clearly violated a supervisory rule, the Supreme Court concluded that the defendant was not entitled to a reversal either under the plain error doctrine; id., 239–40; or pursuant to the court’s supervisory authority. Id., 242. With respect to whether the trial court’s action amounted to plain error, the Supreme Court explained that although it had directed trial courts to discontinue use of the challenged jury instruction language because it was concerned about the danger of misleading the jury, it was unconvinced in the case before it that any such danger actually existed or that the trial court’s error in using the language was ‘‘so significant as to affect the fairness and integrity of or the public confi- dence in the proceeding.’’ Id., 240. Similarly, the Supreme Court declined to reverse the judgment on the basis of its supervisory authority, stating: ‘‘The trial court’s failure to heed our direction to discontinue the use of the challenged jury instruction was not such an extraordinary violation that it threatened the integrity of the trial, and it certainly did not rise to the level of implicating the perceived fairness of the judicial system as a whole. The defendant does not suggest that the trial court deliberately disregarded this court’s mandate. Nor do we consider a new trial necessary to emphasize the importance of our direction in Aponte to the trial courts of this state.’’ Id., 242. In other words, merely demon- strating that a trial court has violated a supervisory mandate is not alone enough to warrant a reversal. The party raising the issue of noncompliance also must demonstrate actual harm. In the present case, the trial court’s noncompliance with our Supreme Court’s supervisory rule does not rise to the level of reversible error. It is undisputed that the trial court failed to heed the new rule that our Supreme Court announced less than two months prior to the beginning of the respondent’s trial, requiring a brief pretrial canvass of all parents subject to termina- tion of their parental rights sufficient to convince the trial court that the parent fully understands his or her rights and the consequences of the termination proceed- ing. Nevertheless, as in Smith, there is nothing in the record that indicates that the court deliberately chose not to conduct the mandated canvass. Further, although not conducted before trial, the court did conduct a canvass of the respondent immediately after the trial and before any decision was rendered on the petition. Although this was not the procedure envisioned by our Supreme Court, and, accordingly should be avoided, if any concerns arose regarding the respondent’s under- standing of his trial rights, the trial court could have reopened the evidence to allow for additional proceed- ings if necessary. Accordingly, the trial court’s failure to heed the Supreme Court’s requirement that a canvass be conducted pretrial does not appear to have been ‘‘such an extraordinary violation that it threatened the integrity of the trial.’’ State v. Smith, supra, 242. In canvassing the respondent after the close of evi- dence, the court fully advised the respondent of his rights as a parent in a termination proceeding, including potential consequences. The respondent acknowledged that he had been informed of these same rights prior to trial by his attorney. The court gave the respondent an opportunity to consult with his attorney after the canvass, and the respondent indicated that he had no questions. There was no request for any additional con- sultation time or a continuance. At no time did the respondent or his counsel voice any objection to the trial court regarding the timing of the canvass or its content.10 The respondent did not move for a mistrial, and never asked the court to reopen the evidence so that he could present any additional witnesses, raise challenges to the petitioner’s exhibits or recall wit- nesses for cross-examination. Although the respondent argues on appeal that it was useless for the court to provide a canvass after the evidence was admitted and the witnesses questioned, he fails to explain how he would have proceeded differently had the court prop- erly canvassed him prior to the start of trial. On the basis of our review of the trial court’s canvass, we conclude that the court reasonably could have con- cluded that the respondent fully understood the trial process, the rights he had during the trial, and the poten- tial consequences of the termination of his parental rights. The stated purpose underlying our Supreme Court’s supervisory rule appears to have been effectu- ated in the present case. The respondent has failed to demonstrate that he was harmed by the trial court’s failure to canvass him prior to the start of trial, and we do not believe that it is necessary to reverse the judg- ment simply to emphasize the importance of compli- ance with our Supreme Court’s holding in In re Yasiel R. Accordingly, we reject the respondent’s claim. II The respondent next claims that the court improperly concluded that termination of his parental rights was warranted in accordance with § 17a-112 (j) (3) (B) (i) because Leilah had been previously adjudicated neglected and, in light of her age and needs, the respon- dent had failed to achieve a sufficient degree of personal rehabilitation necessary to encourage a belief that he could assume a responsible position in Leilah’s life within a reasonable period of time. The respondent argues that the court focused too narrowly upon his incarceration and on events that occurred prior to Lei- lah’s birth, and contends that he has rehabilitated enough to assume a responsible role in his daughter’s life. The petitioner argues that the respondent fails to recognize the statutory requirement that rehabilitation must happen within a reasonably foreseeable time period, and that the court’s finding that he would be unable to rehabilitate in time for Leilah was firmly and fully based upon evidence in the record. We again agree with the petitioner. We begin by setting forth applicable legal principles, including our standard of review. ‘‘A hearing on a termi- nation of parental rights petition consists of two phases, adjudication and disposition. . . . In the adjudicatory phase, the court must determine whether the [peti- tioner] has proven, by clear and convincing evidence, a proper ground for termination of parental rights. . . . In the dispositional phase, once a ground for termina- tion has been proven, the court must determine whether termination is in the best interest of the child.’’ (Cita- tions omitted.) In re Vincent D., 65 Conn. App. 658, 664–65, 783 A.2d 534 (2001). ‘‘Failure of a parent to achieve sufficient personal rehabilitation is one of six statutory grounds on which a court may terminate parental rights pursuant to § 17a- 112. [See General Statutes § 17a-112 (j) (3) (B) (i).] That ground exists when a parent of a child whom the court has found to be neglected fails to achieve such a degree of rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, the parent could assume a responsible position in the life of that child.’’ (Internal quotation marks omitted.) In re G. Q., 158 Conn. App. 24, 25, 118 A.3d 164, cert. denied, 317 Conn. 918, 118 A.3d 61 (2015). ‘‘Personal rehabilitation as used in [§ 17a-112 (j) (3) (B) (i)] refers to the restoration of a parent to his or her former constructive and useful role as a parent.’’ (Internal quotation marks omitted.) Id. ‘‘The statute does not require [a parent] to prove precisely when [he] will be able to assume a responsible position in [his] child’s life. Nor does it require [him] to prove that [he] will be able to assume full responsibility for [his] child, unaided by available support systems.’’ (Internal quota- tion marks omitted.) In re Shane M., 318 Conn. 569, 585, 122 A.3d 1247 (2015). Rather, ‘‘[§ 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foresee- able within a reasonable time. . . . [The statute] requires the court to find, by clear and convincing evi- dence, that the level of rehabilitation [he or she] has achieved, if any, falls short of that which would reason- ably encourage a belief that at some future date [he or she] can assume a responsible position in [his or her] child’s life. . . . [I]n assessing rehabilitation, the criti- cal issue is not whether the parent has improved [his or her] ability to manage [his or her] own life, but rather whether [he or she] has gained the ability to care for the particular needs of the child at issue.’’ (Citation omitted; emphasis omitted; internal quotation marks omitted.) In re Sheila J., 62 Conn. App. 470, 480, 771 A.2d 244 (2001).11 ‘‘A conclusion of failure to rehabilitate is drawn from both the trial court’s factual findings and from its weighing of the facts in assessing whether those find- ings satisfy the failure to rehabilitate ground set forth in § 17a-112 (j) (3) (B). Accordingly . . . the appropriate standard of review is one of evidentiary sufficiency, that is, whether the trial court could have reasonably concluded, upon the facts established and the reason- able inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its [ulti- mate conclusion]. . . . When applying this standard, we construe the evidence in a manner most favorable to sustaining the judgment of the trial court.’’ (Emphasis omitted; internal quotation marks omitted.) In re Shane M., supra, 318 Conn. 587–88. We will not disturb the court’s subordinate factual finding unless they are clearly erroneous. Id., 587. Before turning to the court’s determination that the respondent has failed to rehabilitate, we address what we construe as challenges to the subordinate factual findings of the court. First, the respondent argues that the court improperly found that the ‘‘adjudicatory date’’ was May 19, 2015, whereas the correct date was actually August 5, 2015. Second, the respondent argues that although the court based its failure to rehabilitate con- clusion in part on the respondent’s unaddressed mental health issues, ‘‘there was no reliable evidence that he had unaddressed mental health issues and that they needed to be addressed.’’ We address each argument in turn. A The respondent first argues that the court improperly found that the ‘‘adjudicatory date’’ was May 19, 2015. ‘‘In the adjudicatory phase of a termination proceeding, the court is limited to considering events that precede the date of the filing of the petition or the latest amend- ment to the petition, also known as the adjudicatory date. Practice Book § [35a-7] (a). The court may con- sider, however, events occurring after the adjudicatory date during the dispositional phase of a termination proceeding. Practice Book § [35a-9].’’ In re Sheena I., 63 Conn. App. 713, 721, 778 A.2d 997 (2001). Further- more, ‘‘the court may rely on events occurring after the [adjudicatory] date . . . when considering the issue of whether the degree of rehabilitation is sufficient to fore- see that the parent may resume a useful role in the child’s life within a reasonable time.’’ (Emphasis omit- ted; internal quotation marks omitted.) In re Selena O., 104 Conn. App. 635, 646, 934 A.2d 860 (2007). In the present case, the court never specifically identi- fies May 19, 2015, as the ‘‘adjudicatory date’’ in its mem- orandum of decision. However, the court does indicate that the petition for termination was filed on May 19, 2015. The court never mentions that an amended peti- tion was filed on August 5, 2015. Because the adjudica- tory date is the date the latest amendment to the petition is filed, we agree that the court misidentified the rele- vant operative pleading and, thus, by implication, the adjudicatory date. Nevertheless, the respondent has failed to identify why this error is of any significance to the court’s ultimate conclusion in this matter. For example, the respondent has failed to identify any evi- dence or event that the court improperly considered or failed to consider as a result of its failure to correctly identify the ‘‘adjudicatory date.’’ Moreover, because the court may consider events that occurred both before and after the adjudicatory date in considering whether a respondent had failed to adequately rehabilitate, iden- tification of the adjudicatory date is of no matter. Accordingly, because any error regarding identification of the adjudicatory date appears to be harmless, not only when viewed in isolation, but taken as a whole; see In re Selena O., supra, 104 Conn. App. 645; a new trial clearly is not warranted. B The respondent also challenges the court’s finding that, despite his participation in several programs while incarcerated, he had unaddressed mental health issues ‘‘including a bipolar disorder that has been largely left untreated.’’ The respondent argues that there was no testimony presented at trial from a mental health pro- vider or exhibit offered at trial indicating that the respondent had any mental health issues that needed to be addressed. We disagree. As we have often repeated, ‘‘[b]ecause it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. . . . In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption . . . in favor of the trial court’s ruling.’’ (Internal quotation marks omitted.) In re Severina D., 137 Conn. App. 283, 292, 48 A.3d 86 (2012). As the petitioner correctly indi- cates in her brief, there is ample evidence in the record to support the court’s findings concerning the respon- dent’s mental health, including admissions by the respondent. For example, the amended social study filed with the operative petition was admitted as a full exhibit at trial without objection, and the court was entitled to rely upon that exhibit in support of its findings. See In re Tabitha P., 39 Conn. App. 353, 368, 664 A.2d 1168 (1995). In the amended social study, the department summa- rized information that it had obtained regarding the respondent’s mental health issues, including informa- tion obtained during telephone conversations with the respondent. According to the study, the respondent was diagnosed with bipolar disorder in 2002, and he had received extensive psychiatric care as an adolescent. Prior to incarceration, the respondent was receiving disability benefits for bipolar disorder. In addition to the social study, during her direct testimony, Horvay testified that the respondent had indicated when he became a party to the proceedings that he was bipolar and that he receives social security disability benefits, which he planned to continue receiving after his release from prison. She described him as having ‘‘vacillated from wanting to address [his bipolar disorder], to not wanting to address it,’’ but had shared that his medica- tion in the past had caused him to gain weight and that he ‘‘didn’t want to be on medications again.’’ Horvay also testified that the department believed the respon- dent needed to address his mental health issues despite the respondent’s indicating that he did not believe he needed treatment. During his own testimony at trial, the respondent acknowledged that he had mental health issues that would require further evaluation and treatment. On the basis of the aforementioned evidence and our review of the record, making every reasonable pre- sumption in favor of upholding the court’s factual find- ings as we must, we believe that the court’s finding that the respondent continued to suffer from bipolar disorder that remained largely untreated is supported by the record and, thus, not clearly erroneous. C Finally, we turn to the court’s ultimate conclusion that the respondent had failed to rehabilitate. The respondent argues that the court relied too heavily upon his past incarceration and events prior to Leilah’s birth as the basis for that conclusion. He contends that, con- trary to the court’s decision, he has achieved the requi- site degree of personal rehabilitation. He points to the fact that he is no longer incarcerated, having been released to a halfway house. The respondent explains that the halfway house will assist him ‘‘in obtaining housing and getting into appropriate programs.’’ He asserts that he is committed to being a better father and that he wants a relationship with his child. He notes that he completed a substance abuse program while incarcerated and that he participated in the Inside Out Dad Program, a parenting course for incarcerated fathers. Although the record certainly reflects that the respondent has made some strides toward improving his ability to manage his own life, on the basis of our review of the record as a whole, we are convinced that there is sufficient evidence to sustain the court’s conclusion that he has failed to rehabilitate to a suffi- cient degree necessary to encourage a belief that he could assume as responsible role in Leilah’s life in a reasonable period of time given her age and needs. The respondent’s suggestion that his incarceration was the principal factor relied upon by the trial court in reaching its decision is simply not supported by the record. Rather, this was only one of many factors con- sidered by the court. Moreover, it was entirely appro- priate for the court to take the respondent’s incarceration into consideration in deciding the issue of whether the respondent had failed to rehabilitate. Although incarceration certainly is not indicative of abandonment of a child and never, in and of itself, provides a proper basis for terminating parental rights; see In re Katia M., 124 Conn. App. 650, 661, 6 A.3d 86, cert. denied, 299 Conn. 920, 10 A.3d 1051 (2010); In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982); ‘‘incarceration nonetheless may prove an obstacle to reunification due to the par- ent’s unavailability’’; In re Katia M., supra, 661; and, thus, is properly considered by the court in considering whether to terminate parental rights on the ground of failure to rehabilitate. Id., 664–65. The court acknowledged that the respondent had made some progress, as evidenced by the programs that he had completed while incarcerated. Nevertheless, the court concluded that the respondent had failed to dem- onstrate ‘‘any significant period of sobriety, employ- ment and lack of criminal activity while in the community.’’ In reaching that conclusion, the court not only had evidence of the respondent’s most recent incarceration, but his extensive criminal history, which comprised more than twenty criminal convictions dat- ing back to 2008, including several violations of proba- tion. It was entirely appropriate for the court to consider this evidence in evaluating whether the respondent was likely to assume a responsible role in Leilah’s life within an appropriate period of time. See In re Sarah Ann K., 57 Conn. App. 441, 449–50, 749 A.2d 77 (2000). The respondent has yet to play any significant role in his daughter’s life because he has been incarcerated for most of her life, and incarceration has been an impedi- ment to the respondent being able to access programs and treatment necessary to achieve a sufficient degree of personal rehabilitation. More importantly, the respondent continues to suffer from bipolar disorder in addition to other mental health problems, including a prior diagnosis for oppositional defiant disorder. There is an established history of substance abuse and, although he has received treatment, he has no track record of maintaining sobriety outside a prison setting. The respondent and Leilah’s mother were the subjects of numerous reports of domestic violence. Neverthe- less, the evidence demonstrates that he has no real willingness to seek treatment or to take medication to control his bipolar disorder, despite such treatment being a requirement to reunify with his daughter. Simi- larly, he showed an unwillingness to address his domes- tic violence issues. As this court has previously indicated, ‘‘a respondent’s failure to acknowledge the underlying personal issues that form the basis for the department’s concerns indicates a failure to achieve a sufficient degree of personal rehabilitation.’’ In re Shane M., 148 Conn. App. 308, 322, 84 A.3d 1265 (2014), aff’d, 318 Conn. 569, 122 A.3d 1247 (2015). In sum, we conclude on the basis of our review of the record that there was sufficient evidence to support the court’s conclusion that there was clear and convinc- ing evidence that the respondent had failed to achieve such degree of personal rehabilitation as would encour- age the belief that, within a reasonable period of time, he could assume a responsible position in Leilah’s life. The judgment is affirmed. In this opinion the other judges concurred. * In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. ** Subsequent to oral argument, Chief Judge DiPentima replaced Justice Borden on the panel, and she has reviewed the record, briefs and the recording of the oral argument prior to participating in the decision of this appeal. *** June 3, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. 1 In the same proceeding, the court also terminated by consent the parental rights of Leilah’s mother, Nicole W. Because she has not appealed from that judgment, we refer to Richard L. as the respondent throughout this opinion. 2 The respondent also claims on appeal that the court improperly con- cluded that his parental rights should be terminated pursuant to § 17a-112 (j) (3) (D) because he did not have an ongoing parent-child relationship with Leilah and permitting him further time to establish or reestablish such a relationship would be detrimental to the best interest of the child. Because we conclude that the court properly terminated the respondent’s parental rights pursuant to § 17a-112 (j) (3) (B) (i), we do not address this additional claim of error. See In re Brea B., 75 Conn. App. 466, 473, 816 A.2d 707 (2003) (because statutory grounds necessary to grant termination petition expressed in disjunctive, judgment granting petition may be affirmed on single ground). 3 After it was determined that Kenneth A. was not Leilah’s biological father, the petitioner filed a motion seeking to amend the neglect petition, to cite in additional parties, and to order additional paternity testing. As a result, the respondent and John Doe were cited in as putative fathers. After adjudicating Leilah neglected, the court provided the respondent with an advisement of rights and ordered a paternity test. On April 16, 2014, the court, Trombley, J., adjudicated the respondent as Leilah’s biological father. The respondent filed a motion for visitation, which was granted on June 4, 2014. 4 Because he had not yet been identified as Leilah’s biological father at the time of the neglect adjudication, no specific steps were ordered for the respondent at that time. 5 Although we note that the proper inquiry is whether a parent will be able to assume a responsible position in the child’s life, which does not necessarily correlate with whether he or she is a viable placement resource for the child, the court properly set forth the correct standard at the start of its analysis regarding the respondent’s failure to rehabilitate and, read as a whole, there is no indication in the court’s decision that it applied an incorrect standard. The respondent has not raised the court’s ‘‘placement resource’’ language as a claim of error in this appeal. 6 We note that the attorney for the minor child filed a statement pursuant to Practice Book § 79a-6 (c) indicating that she supports and adopts the brief submitted by the petitioner. 7 The decision in In re Yasiel R. was published several weeks prior to the start of the respondent’s termination trial. Even if an argument could be made against imposing a duty on a parent to recognize and to raise to the court any failure to comply with a pretrial canvass intended to benefit that parent, in the present case, once the procedural error was disclosed by the trial court, and an effort was made by the court to cure the defect, it was incumbent on the respondent to raise an objection before the trial court if it believed that the court’s curative effort was insufficient and a new trial was necessary to protect adequately the respondent’s rights. 8 Our decision to review the respondent’s unpreserved claim in this instance is sui generis and should not be construed as diminishing in any manner our oft stated admonition that we will not review claims of error that have not first been raised and decided by the trial court. See, e.g., In re Coby C., 107 Conn. App. 395, 409, 945 A.2d 529 (2008). 9 Pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), as modified in In re Yasiel R., supra, 317 Conn. 781, ‘‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’’ (Empha- sis in original; footnote omitted.) State v. Golding, supra, 239–40; see also In re Yasiel R., supra, 781 (modifying third prong by eliminating Golding’s use of ‘‘clearly’’ in describing requirements under that prong of test). 10 We note that the trial court never specifically inquired whether the respondent understood his rights, which our Supreme Court indicated in In re Yasiel R. should be included as part of the mandated canvass. See In re Yasiel R., supra, 317 Conn. 795. Nevertheless, the entirety of the content of the canvass substantially complied with the requirements set forth by our Supreme Court. In other instances in which a canvass is mandated to ensure important rights are protected, our courts have not adhered talismani- cally to any particular recitation in considering the overall adequacy of the canvass given. See, e.g., State v. Claudio, 123 Conn. App. 286, 292, 1 A.3d 1131 (2010) (‘‘ ‘substantial compliance’ ’’ with plea canvass requirements set forth in Practice Book §§ 39-19 and 39-20 sufficient to ensure intended prophylactic safeguards met). In that context, we have explained that the test for substantial compliance is whether literal compliance would have made a difference. State v. Edwin A., 90 Conn. App. 380, 387, 876 A.2d 1272, cert. denied, 275 C onn. 930, 883 A.2d 1248 (2005). At no time has the respondent taken the position that he in fact failed to understand any of the rights explained by the court or that had he been asked if he understood he would have answered in the negative. Furthermore, that portion of the respondent’s brief discussing the alleged insufficiency of the content of the court’s canvass consists of no more than three sentences, with no citations to any law or legal authority. It is axiomatic that ‘‘[w]e are not required to review claims that are inadequately briefed.’’ (Internal quotation marks omitted.) In re Brianna L., 139 Conn. App. 239, 250, 55 A.3d 572 (2012). 11 ‘‘The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.’’ (Emphasis omitted; internal quotation marks omitted.) In re Dylan C., 126 Conn. App. 71, 87, 10 A.3d 100 (2011).

01-03-2023

06-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/4261397/

Order Michigan Supreme Court Lansing, Michigan April 4, 2018 Stephen J. Markman, Chief Justice 156743 Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder DEYONNE SMITH, Elizabeth T. Clement, Plaintiff-Appellant, Justices v SC: 156743 COA: 338518 Wayne CC: 16-004995-NO K. COLE, INC., d/b/a KING COLE FOODS, Defendant-Appellee. _________________________________________/ On order of the Court, the application for leave to appeal the September 28, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. April 4, 2018 t0328 Clerk

01-03-2023

04-05-2018

https://www.courtlistener.com/api/rest/v3/opinions/4060267/

Order entered February 13, 2015 In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00185-CR BRANDON WALTON STEWART, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. WX15-90003-J ORDER The Court has received appellant’s appeal from the trial court’s order denying him habeas corpus relief by which he sought to avoid extradition. This is an accelerated criminal appeal under Texas Rule of Appellate Procedure 31. The notice of appeal reflects that appellant is represented by appointed counsel. We ORDER the Dallas County District Clerk to file the clerk’s record in this appeal within FIFTEEN DAYS of the date of this order. In addition to the documents related to the habeas corpus proceedings, the clerk’s record shall contain the trial court’s certification of appellant’s right to appeal.  We ORDER Kimberly Xavier, official court reporter of the Criminal District Court No. 3, to file the reporter’s record of the habeas corpus hearing within FIFTEEN DAYS of the date of this order. Appellant’s brief is due by MARCH 23, 2015. The State’s brief is due by APRIL 13, 2015. If any party does not file its brief by the date specified, the appeal will be submitted without that party’s brief. See TEX. R. APP. P. 31.1. The appeal will be submitted without oral argument on May 15, 2015 to a panel consisting of Justices Lang, Stoddart, and Schenck. See TEX. R. APP. P. 31.2, 39.1. We DIRECT the Clerk to send copies of this order, by electronic transmission, to the Honorable Gracie Lewis, Presiding Judge, Criminal District Court No. 3; Kimberly Xavier, official court reporter, Criminal District Court No. 3; Felicia Pitre, Dallas County District Clerk; and to counsel for all parties. /s/ LANA MYERS JUSTICE

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426476/

The action in the trial court was by a petition filed by the appellee Philip B. O'Neill, as administrator with the will annexed of the estate of Joseph D. Cronin, deceased, for the sale of the real estate of the decedent to make assets for the payment of liabilities against said estate. The statute (§ 6-1111 Burns 1933, § 3149 Baldwin's 1934) under which the proceeding was brought is as follows: *Page 186 "6-1111 (3183). Petition to sell. Whenever an executor or administrator shall discover that the personal estate of a decedent is insufficient to satisfy the liabilities thereof, he shall, without delay, file his petition in the circuit court issuing his letters for the sale of the real estate of the deceased, to make assets for the payment of such liabilities. (Acts 1881 [Spec. Sess.], ch. 45, § 111, p. 423.)" Succeeding sections of the statute prescribe the steps to be taken in such a proceeding and are designed also to meet the contingencies that may arise therein. Only such sections as are particularly applicable to the instant case need be noticed herein. Sec. 6-1113 Burns 1933, § 3151 Baldwin's 1934, sets out the requisites of the petition and it declares who shall be made parties. The amended petition in the instant case meets the requirements of the said section. Omitting the formal parts, said amended petition is as follows: "AMENDED PETITION BY ADMINISTRATOR FOR ORDER FOR SALE OF REAL ESTATE. "The plaintiff in the above entitled cause says, and shows and represents to the court that the said Philip B. O'Neill is the duly appointed, qualified and acting administrator, with the will annexed, of the estate of Joseph D. Cronin, deceased, under appointment by Madison Circuit Court, Indiana. That the said Joseph D. Cronin died testate as to all of his property both real and personal, including the real estate hereinafter described in Madison County, Indiana, on the 13th day of June, 1929, and his will was duly probated by said Madison Circuit Court and is of record in will record No. 8, page 23, in the office of the Clerk of said court. That the defendants Elizabeth E. Cronin and Mary A. Campbell are the sole residuary legatees and devisees under said will of said Joseph D. Cronin, deceased. That no personal estate of said decedent has come to the possession or knowledge of said administrator. *Page 187 That claims have been filed and allowed against said estate in the sum of six hundred sixty-nine and fifty-hundredths ($669.50) dollars and there being no personal estate of said decedent, his real estate hereinafter described is liable to sale to make assets with which to pay the debts and liabilities of said estate and settlement thereof. That said decedent died the owner in fee simple of the following described real estate in the County of Madison, State of Indiana, to-wit: The undivided on-third in value of Lots One (1), Two (2), Three (3), Four (4), and Five (5) in Jonathan Jones First Addition to the City of Anderson, which is a part of the residuary estate of said decedent under the provisions of his will. That the probable value of the interest of said decedent in said real estate exclusive of liens is the sum of one thousand ($1,000.00) dollars. That the defendant City of Anderson is a duly incorporated City of the State of Indiana of the Second Class and claims and asserts some right, title or interest in and to said real estate and is made a party to this petition to answer as to any such right, title, or interest therein. WHEREFORE, said petitioner prays an order of the court authorizing and directing him to make sale of said real estate and for all other necessary and proper relief, and being duly sworn upon his oath, said Philip B. O'Neill, administrator as aforesaid, says that the matters and facts stated, alleged and set forth in the above and foregoing petition are true in substance and in fact. PHILIP B. O'NEILL. Subscribed and sworn to before me this November 14th, 1932. IDA A. LOVERITZ, Notary Public. My Commission expires Oct. 28, 1932." To the amended petition the appellants, Mary A. Campbell and Elizabeth E. Cronin, filed three paragraphs of answer, the first being a general denial, the second alleging that all claims as set out in the amended petition have been fully paid before the commencement *Page 188 of this action and the third paragraph alleged that there are no outstanding debts of any nature owing by said estate and that the appellants are the sole and only residuary legatees and devisees under said will. To said second and third paragraphs of answer the appellee filed a reply in two paragraphs, the first being a general denial and the second alleging that a certain claim of one John C. Armington filed in due form against the said estate had been disallowed and then transferred to the civil docket for trial and that pending a trial said claim had been compromised as to the amount and a judgment entered against said estate for the sum of $669.00, being the amount agreed upon by compromise. The matter after change of venue was submitted to a special judge for trial. Before the change of venue had been taken certain rulings had been made as to the pleadings. These rulings need not be further noticed as the correctness thereof has not been questioned in appeal. The trial was had without the intervention of a jury over the objection of the appellants who had requested a jury trial. On the 12th day of January, 1934, the court made and entered the following decision: "And the court having heard the evidence and being sufficiently advised in the premises finds that the personal assets of said estate are insufficient to pay and discharge the debts and liabilities thereof and that the real estate in said petition described is liable to be made assets in the hands of said administrator to pay such indebtedness. The court further finds that to make assets for the payment of the debts and liabilities of said estate, it will be necessary to sell all of the decedent's interest in said real estate, and that the material allegations contained in the petition of said administrator are true, as therein stated and set forth." The matter rested upon such finding and decision from January 12, 1934, to the third day of March, 1934, a *Page 189 period of fifty days during which time no motion for a new trial was filed nor any other steps taken by the appellants in relation thereto. On the said third day of March, 1934, the appellee filed an appraisement of the real estate and his additional bond as required by law, whereupon the court rendered judgment as follows: "It is, therefore, ordered, adjudged and decreed by the court that the plaintiff, Philip B. O'Neill, as administrator of the estate of said Joseph D. Cronin, sell the said real estate of said decedent described in said petition, the same being the following described real estate in the county of Madison, and State of Indiana, to wit: The undivided one-third (1/3) in value of Lots One (1), Two (2), Three (3), Four (4) and Five (5) in Jonathan Jones First Addition to the City of Anderson. That the same be sold by the administrator at private sale for cash without notice, for not less than the full appraised value thereof, as aforesaid, and subject to unpaid taxes thereon. Said administrator is ordered to make due report to this court of his doings under the foregoing order." Over the objection of the appellee, the appellants were permitted to file their motion for a new trial on the 12th day of March, 1934, which was at least 59 days after the decision above set out was made. This motion for a new trial was overruled with an exception reserved and this appeal prayed and perfected. The causes stated in the motion for new trial are as follows: "(1) That the decision or finding of the court is not sustained by sufficient evidence. (2) That the decision or finding of the court is contrary to law. (3) That the court erred in refusing to allow the case to be tried before a jury, upon the request of defendants, Mary A. Campbell and Elizabeth E. Cronin." The errors relied upon for reversal are: *Page 190 "(1) The court erred in entering the judgment rendered in this cause, in that the judgment rendered was insufficient, no amount of money, to which claimant, John C. Armington, was entitled, if any, being determined by the court. (2) The court erred in overruling the appellant's motion for a new trial." The first error assigned which we have heretofore set out is too indefinite an assignment to present any question. It may be further said that if a judgment does not follow the 1, 2. finding or decision a proper motion must be addressed to it so that the trial court can correct it. This was not done in the instant case. The judgment was based upon the prior decision of the court and if any error existed it was in the decision upon which the judgment was rendered. See the following decisions among the many to the same effect: Seisler v. Smith etal. (1898), 150 Ind. 88, 46 N.E. 993; Johnston Glass Company v.Lucas (1905), 34 Ind. App. 418, 72 N.E. 1102; Hill v.Indianapolis, etc., R. Co. (1903), 31 Ind. App. 98, 67 N.E. 276;Hawks et al. v. Mayor et al. (1896), 144 Ind. 343, 43 N.E. 304;Peel v. Overstreet et ux. (1921), 190 Ind. 290, 130 N.E. 113;Board of Commissioners of the County of Lake v. State of Indianaex rel. (1913), 179 Ind. 644, 102 N.E. 97. This brings us to a consideration of the alleged errors sought to be brought before us for review by the motion for a new trial as above set out. The appellant has not seen fit to 3, 4. bring the evidence before us, therefore, any question sought to be presented to us by the motion which would depend upon the evidence is waived. This would leave only the third cause or ground of the motion. But the most serious obstacle to the appellant is the fact that the motion for a new trial was not filed until 59 days, at least, had elapsed after the decision was made. The motion, therefore, *Page 191 came too late and is ineffective to present any question.General Outdoor Advertising Company v. City of Indianapolis,etc. (1930), 202 Ind. 85, 172 N.E. 309; Sec. 2-2403 Burns 1933. No one in the instant case has suggested anything as to the appropriateness of a motion for a new trial in the proceedings under consideration. It seems to have been sanctioned in the practice. See: House v. Cardinal et al. (1919),69 Ind. App. 428, 122 N.E. 11. The appellants in their brief, in effect, admit that the decision in the instant case was made on January 12, 1934, which would be at least 59 days before their motion for a new 5. trial was filed and there can be no doubt but that the decision we have previously set out is a decision of all the issues made by the petition and the pleadings, and it has been treated as such by the parties and by the trial court, but appellants contend that the 30 days' time for filing the motion begins to run from the date of the judgment and that having filed the motion within the 30 days from the date of the judgment that they are in time. They cite and rely upon the case of Galentine v. Brubaker et al. (1897), 147 Ind. 458, 46 N.E. 903, and Leslie v. Ebnes (1918), 67 Ind. App. 32, 117 N.E. 511. Neither of these cases are in point. What they do decide is that in an estate matter the appeal bond required by the statute for an appeal may be filed within 30 days after the date of the judgment or if the motion for a new trial is overruled after the judgment is rendered, that then the 30 days' time within which to file the appeal bond starts to run from the time the motion for a new trial is overruled. The Leslie case, supra, also holds that a motion for a new trial is appropriate in a suit upon a claim against an estate. We fully approve the above decisions. From what has been said it follows that the motion *Page 192 for a new trial having been filed too late is ineffective to present any of its causes for review. There are no independent assignments of error except the one attempted as to the judgment which we have heretofore discussed. We find no reversible error. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486250/

Martin T. Burkhouse filed a declaration in the Baltimore City Court against the appellees, alleging that he purchased a power boat from Duke, through his agent, Evans, and paid Evans $50.00 on account of the purchase price of $3,250.00; that Evans, as the agent of Duke, agreed to make certain specified repairs and deliver the boat upon the payment of the balance due; but that Duke has declined and refused to deliver the boat as agreed, although the plaintiff is ready, willing and able to comply with the agreement; and that the plaintiff has been damaged by the breach. *Page 46 Separate demurrers were filed on behalf of Duke and Evans. Duke's demurrer, in addition to general grounds, attempted to set up that the plaintiff had filed suit for specific performance of the alleged agreement of sale, which suit was dismissed without prejudice, and that the equity court "in passing on the alleged agency found for the defendant, Charles C. Duke". Evans' demurrer, in addition to general grounds, set up that the declaration showed on its face that Evans was acting solely in his capacity of agent and failed "to show any direct undertaking on his part with the plaintiff establishing a legal liability for any defaults of his principal." At the hearing upon these demurrers the court sustained Duke's demurrer, without leave to amend, and entered judgment for this defendant. The court sustained Evans' demurrer, with leave to amend, and entered judgment on motion, after the plaintiff failed or declined to amend. The plaintiff appealed from both judgments. No brief has been filed in this court on behalf of the appellee, Duke. The declaration, as against Evans, did not state a good cause of action. If Evans had been acting for an undisclosed principal, he could have been sued on the contract. Codd Co. v. Parker,97 Md. 319, 325, 55 A. 623. Whether both defendants could have been joined in one action, we need not decide. Compare Hospelhorn v.Poe, 174 Md. 242, 261, 198 A. 582, 118 A.L.R. 682. In the case at bar the principal was disclosed. In such a case the rule is stated in Poe, Pleading, 5th Ed., § 362, as follows: "Where an agent transcends his authority; departs from its provisions; or knowingly presumes to act without any authority; in all these cases he is clearly personally liable, but not on the contract. The correct remedy is a special action on the case, or for breach of an implied warranty. The principal in such case would not be liable, for the reason that the agent had no authority to bind him; and the agent would not be responsible on the contract, for he had not pretended to bind himself on it. * * * Whenever, upon the face of an *Page 47 agreement, a party contracting plainly appears to be acting as the agent of another, the stipulations of the contract are to be considered as solely to bind the principal, unless it manifestly appears by the terms of the instrument that the agent intended to superadd or substitute his own responsibility for that of the principal". See also McClernan v. Hall, 33 Md. 293; Mas BottleCorp. v. Cox, 163 Md. 176, 178, 161 A. 243; 2 Restatement,Agency, § 328, p. 724; 2 Mechem, Agency, (2nd), § 1357, p. 999. The plaintiff did not take advantage of the leave granted him to amend. The judgment in favor of the defendant Evans must be confirmed. It does not appear from the record upon what ground the court sustained the demurrer as to Duke. The declaration alleged that Evans acted as his agent throughout. If, in fact, Evans acted without, or exceeded, his authority, that would be a matter of defense. It is also clear that the defense of res adjudicata should be raised by special plea or evidence under the general issue plea. Wilmer v. Placide, 137 Md. 107, 113, 111 A. 822. It cannot be raised on demurrer. Polish-American Building LoanAss'n v. Dembowczyk, 167 Md. 259, 264, 173 A. 254. But it appears upon the face of the declaration that there was a misjoinder, and we think that the demurrer was properly sustained on this ground, despite the liberality with which defects of this character may be cured by amendment. Code, Art. 75, § 43. Compare Thompson v. Sun Cab Co., 170 Md. 299, 303, 184 A. 576; 1 Poe, Pleading, 5th Ed., § 384. However, since the demurrer was sustained without leave to amend, we shall remand the case in order to permit the plaintiff to file an amended declaration against Duke within such time as the lower court may fix.Picking v. Local Loan Co., 185 Md. 253, 264, 44 A.2d 462, 162 A.L.R. 678; H.P. Rieger Co. v. Knight, 128 Md. 189, 201,97 A. 358, L.R.A. 1916E, 1277; Rule 4, sec. 1, Rules of the Court of Appeals. Judgments affirmed and case remanded, with costs. *Page 48

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426457/

Action by appellee Massey to foreclose a second mortgage upon real estate owned by appellant, and also asking for the appointment of a receiver. Appellant was not the mortgagor and had not signed the mortgage, but had purchased the land subject to the lien of the mortgage; she had not assumed or agreed to pay the mortgage. There was judgment in favor of appellee Massey for $5,998.52, and interest and costs, and a receiver was appointed and collected $500 rent for the real estate. The land was sold under the decree of foreclosure for $6,034.58, the purchaser being the mortgagee, appellee herein. The sheriff deducted the costs and expenses of the sale and turned over to appellee Massey the balance, to wit: $5,900.58. This amount was $134 less than the amount in full of appellee's judgment. Appellant then filed her verified petition asking that the receiver be discharged and the funds received by the receiver be ordered paid to appellant. The receiver filed a petition to pay taxes in the sum of $263.78, which taxes were a lien on the real estate at the time the judgment of foreclosure was rendered, but payable in 1929. The court refused to dissolve the receivership and refused to order payment of the rent to appellant and ordered the receiver to pay said taxes. From this action of the court as to the receiver, this appeal, appellant assigning such ruling as error. *Page 607 Appellant's contention that the judgment was fully satisfied by the sale, and that the receiver should, therefore, be discharged, and the rentals in his hands paid to appellant, cannot 1, 2. prevail. Appellant is also in error in her contention that the court should not have ordered the receiver to pay taxes, which were a lien on the property. The land did not sell for a sum sufficient to pay the judgment in full. The costs of the suit, including costs occasioned by the sale, are a part of the judgment recovered by appellee in the foreclosure decree. By the express terms of the mortgage, the mortgagors agreed to pay, prior to the first day of November and May of each year, all taxes and assessments against said premises, and, on 3. demand, to exhibit receipts therefor, and to waive all right of possession of, and income from, said premises after any default in payment or a breach of any of the agreements or covenants therein contained and pending any foreclosure proceedings, and until the period of redemption for any sale thereunder expired, and agreed that, upon filing of any complaint to foreclose the mortgage, a receiver might, at once, or after decree of sale or sale thereunder, be appointed without notice and without bond on the part of the complainant therein, to take possession or charge of said premises, and collect such income or rent therefrom. The receiver was appointed for that purpose and properly applied the rent to the discharge of the balance of the judgment of the purchasing mortgagee, and, by order of the court, to the payment of the taxes, that were a lien on the real estate at the time of the foreclosure decree, and which the mortgagor, by the terms of the mortgage, agreed to pay. Russell v. Bruce (1902), 159 Ind. 553, 64 N.E. 602, 65 N.E. 585. We find no error. Judgment affirmed. Enloe, J., dissents. *Page 608

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426459/

This is an appeal from a judgment in an action for damages for alleged negligence of appellee in driving his automobile into appellant, a pedestrian, who was in the act of crossing a street. Error is predicated upon the overruling of appellants' motion for a new trial, and alleged error of the court in granting appellee leave to amend his answer by interlineation setting up the defense of contributory negligence, at the conclusion of the evidence, and after the parties had rested and the witnesses had departed. The grounds of the motion for a new trial set forth that *Page 148 there was an abuse of discretion in permitting the above amendment, and that the court erred in refusing to sustain appellant's motion to withdraw the case from the jury and to discharge the jury which motion was made after such amendment of answer. Additional grounds of the motion for a new trial were that the court erred in refusing to give four separate instructions tendered by appellant, and in giving nineteen separate instructions on its own motion, and that the verdict is not sustained by sufficient evidence and is contrary to law. Issues were joined on appellant's complaint in one paragraph, appellee's answer denying the allegation of each rhetorical paragraph, and the cause was tried to a jury. The evidence was concluded and the parties rested and after the court had submitted a tenative and partial list of instructions to the parties for suggestions on the following day, the appellee filed his motion for leave to amend his answer by interlineation setting up the defense of contributory negligence which was sustained by the court. The jury returned a verdict for appellee and this appeal is prosecuted from the judgment on such verdict. One of the questions presented by appellant's assignments of error is whether the trial court abused its discretion in permitting appellee to amend his answer at the conclusion 1. of the evidence by interlineation setting forth the defense of contributory negligence. In presenting this question appellant assumes that contributory negligence must be specially pleaded in a personal injury case. This assumption is erroneous. The rule specifically provides that ". . . All defenses shall be provable under a specific denial or statement of no information, which were heretofore *Page 149 available under an answer or reply in general denial . . ." Rule of Supreme Court, 1-3. Prior to the adoption of this rule contributory negligence in personal injury actions was provable under the general denial. It, therefore, continues to be so provable. Appellant points, however, to § 2-305, Burns' 1946 Replacement, Acts 1943, ch. 227, § 1, page 662, and insists that this Act governs. It is suggested on the other hand that this act in 2. the point now under consideration applies only to those cases where actions for personal injuries and property damages are joined. It is not necessary for us to determine whether it so applies. It is sufficient to call attention to the fact that at the time of the enactment of this act the rule of the Supreme Court above referred to was in force. Any legislative enactment in conflict therewith would necessarily be ineffective. Both by virtue of statute (§ 2-4718, Burns' 1946 Replacement) and by reason of its inherent powers the superior authority for making rules of court practice lies in the Supreme Court. See Preface to Rules of Supreme Court adopted June 21, 1937. Appellant asserts as error the court's refusal to give instruction No. 6 tendered by appellant which was as follows: "If the defendant was negligent as alleged in the complaint and 3. such negligence was a proximate cause of alleged injury to the plaintiff, it would be immaterial whether plaintiff was or was not negligent or was or was not lawfully crossing the street." Since, as we have held herein, the issue of contributory negligence was before the jury under the issues, the court properly refused such instruction. For the same reasons the action of the court in giving instructions numbered 4, 19, 21, 22, 23, and 24 on its *Page 150 own motion which submitted questions of contributory negligence to the jury, and assigned as error by appellant, was entirely properly under the issues. The appellant also assigns as error in his motion for a new trial the refusal of the court to give instruction No. 3 4. requested by appellant. This instruction reads as follows: "A driver of an automobile within an intersection for a left turn shall so turn that his automobile will be entirely to the right of the center of the highway which he is entering at the time he is entering it and if you find in this case that the defendant turned to the left off 22nd Street into Talbot Street, and in the course of making such turn, and upon entering Talbot Street, all or part of his automobile was to the left of the center of Talbot Street, then the driver would be violating the law of the State by so turning and such violation would constitute negligence if the plaintiff was thereby endangered." This instruction correctly stated the law as to left turns by a driver entering an intersection. § 47-2020, Burns' 1940 Replacement. The instruction was submitted by appellant on the theory of negligence set forth in his complaint. The complaint alleged that appellee "negiligently, [negligently] carelessly, and unlawfully swept, in making such turn, from the left of center of 22nd Street into Talbot Street at a point only four or five feet west of the southeast corner of said intersection and on the east side to the left of center of Talbot Street." Also, there was evidence in the record to warrant such instruction and from which the jury might have properly and reasonably found that part of appellee's car at the time of the accident was to the left of the center line of the street into which he was entering. *Page 151 This instruction was not covered by the other instructions given, and the request for it to be given was timely and properly made by appellant. It was clearly applicable to the alleged theory of negligence in appellant's complaint and to the evidence given at the trial. The appellant was, therefore, entitled to such instruction, and we must hold that the refusal to give this instruction constitutes reversible error. Acme-Evans v.Schnepf (1938), 105 Ind. App. 475, 15 N.E.2d 742; MuncieTraction Co. v. Sheffer (1919), 69 Ind. App. 395, 122 N.E. 9. In view of our conclusions reached herein, the questions presented by other assignments of error may not arise on a retrial of this cause, and after examination and thorough consideration of such assignments, we do not feel that we are warranted in unduly extending this opinion to discuss the same. For the reasons given herein, the judgment of the lower court is reversed with directions to sustain appellant's motion for a new trial. NOTE. — Reported in 77 N.E.2d 903.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426461/

The appellant is the daughter of appellees. She began this action to quiet title to, and for possession of, certain real estate which had been conveyed to her by the appellees who held it as tenants by the entireties. Isaac Bloom answered in general denial, and filed a cross-complaint in two paragraphs against the plaintiff and the defendant, Fannie Bloom, his wife. By the first paragraph of cross-complaint he sought to quiet title in himself and his wife, Fannie. In the second paragraph of cross-complaint it is alleged that he and his wife executed a deed to the real estate to their daughter; that he caused the deed to be recorded, but kept it in his own possession and kept possession of the real estate; that there was no consideration for the deed, and that he never intended to actually deliver the real estate to his daughter, and that she never accepted it; that his wife is conspiring with his daughter to deprive him of his interest in the property, and that his wife refuses to join him in his action. Fannie Bloom answered her husband's cross-complaint by general denial and by a second paragraph of answer in which she alleges that she and her husband by mutual agreement conveyed the property to their daughter in consideration of love and affection; that the gift was completed and executed; that she claims no interest in *Page 660 the property, and prays that the prayer of her daughter's complaint be granted. The plaintiff answered the cross-complaint in general denial. There was a trial, special findings of fact and conclusions of law, and judgment quieting title in the appellees. Error is assigned upon the conclusions of law and upon the overruling of the motion for a new trial. Appellee Fannie Bloom has confessed error. From the facts found and from the evidence, it is clear beyond any controversy that the appellees, apprehensive for the safety of the property as against the claims of creditors, 1-3. intended to, and did, vest the legal title thereto in the appellant, relying for its recovery, if and when the claims of creditors might be out of the way, upon a parol agreement to reconvey. Under such a state of facts, the appellees are not entitled to recover for two reasons. It is settled beyond controversy that one who vests the legal title to his property in another, for the purpose of putting it out of the reach of, and defrauding, his creditors, cannot recover the property upon the theory that there was no consideration for the conveyance or that there was an agreement to reconvey. There is a modern exception to this rule in cases in which the grantee is the dominant party and induced the conveyance, with the fraudulent intent upon the part of such grantee, to defraud the grantor. See Novak et al. v. Nowak (1940), 216 Ind. 673, 25 N.E.2d 993. Where one conveys property to another, to be held as the property of the grantor, and subject to his wishes as to reconveyance, it is held in trust by the grantee for the benefit of the grantor. A parol trust in real estate is not enforceable in this state, and an action to establish the trust and compel a reconveyance of the property will not lie. There is an exception to this rule in cases in which *Page 661 the grantee is the dominant party and the conveyance was procured by fraud. In this case it is clear that the daughter was in no sense the dominant party. The decision reached below is supported by, and was no doubt based upon, Vaughan v. Godman et al. (1884), 94 Ind. 191, and Townsend et al. v. Millican (1913), 53 Ind. App. 11, 4, 5. 101 N.E. 112, and Reed v. Robbins (1915), 58 Ind. App. 659, 108 N.E. 780, which derive from the Vaughan case. These cases are in conflict with the otherwise consistent views of this court as expressed in numerous opinions, and, as we see it, they are not supported by sound principle. They begin their reasoning with the often repeated dictum that the recording of a conveyance is only prima facie evidence of delivery. This is undoubtedly true, and the same may be said concerning the actual physical delivery of the deed to the grantee. That, too, is but prima facie evidence of delivery, and both recording and physical delivery of the deed are together but prima facie evidence of delivery. The intention of the grantor is the controlling thing, and if a deed is recorded, or delivered, or recorded and delivered, by mistake or under a misapprehension, or by the fraudulent procurement of the grantee, so that there is no intention upon the part of the grantor that it shall become effective, there is no delivery. But, upon the other hand, if a deed is prepared and signed and acknowledged and recorded by the grantor, with the intention to vest the legal title to the property in the grantee, and there is no mistake or fraudulent inducement by the grantee, there is a delivery of the legal title to the property, and if it is accepted by the grantee (and there is no necessity here for going into the question of when acceptance must be shown, and what constitutes acceptance) the legal title is vested. Here it is perfectly *Page 662 clear that the appellees intended that legal title should vest in the appellant, and that the appellant should exercise the privileges of legal ownership of the property by executing and delivering a mortgage upon it to secure the appellant's note, and that the appellant did exercise such privileges of ownership. The very purpose of the whole transaction was to put the property beyond the reach of the grantors' creditors upon possible execution. It is inconceivable that the grantor may be permitted to contend that the title did not pass and was not intended to pass. True, there was a parol agreement to reconvey, which, as we shall see, is void. But this agreement to reconvey is conclusive evidence of an intention to pass the title. Colee v. Colee (1890), 122 Ind. 109, 110, 111, 112, 23 N.E. 687, 688, is squarely in point. Mrs. Colee signed, acknowledged, and recorded a deed to her children. There was no consideration. She sought to quiet title upon the ground that there had been no delivery of the deed. From judgment against her she appealed. Affirming, the court said in an opinion by Mitchell, C.J.: "On the appellant's behalf it is contended that the special finding of facts does not support the conclusions of law, because it appears therein that the grantor, after signing, acknowledging, and causing the deed to be recorded, took it into her possession, intending to keep possession of it and the land during her lifetime. Hence, it is argued, that it appears from the facts specially found that the deed never was delivered to, or accepted by, the grantees. . . . "The fact that the grantor took possession of the deed after it was recorded, intending to retain it in her possession during her lifetime, is not of itself sufficient to rebut the presumption of delivery which arose *Page 663 from the making and placing of the deed upon record. . . . "Any view that may be taken of the facts found leads to the conclusion that the law was correctly stated by the court." In McNeely et al. v. Rucker (1843), 6 Blackf. 391, the facts were that Mrs. Rucker joined her husband in a deed for her own property to her husband's grandson, for the purpose of putting it out of the reach of her husband's creditors, whom she thought might reach it for his debts. The syllabus concisely states the court's conclusion that: "A conveyance having been signed, sealed, and acknowledged by a husband and wife in due form, was sent by the former in presence of the latter, to the recorder's office to be recorded. Held, in an action of disseisin by the grantee, that the conveyance had been legally delivered." In Somers et al. v. Pumphrey et al. (1865), 24 Ind. 231, it appears that a wife, who was the owner of real estate, and her husband, wished to put the legal title in the husband. For that purpose they signed and acknowledged a deed to their hired man, which was not delivered to him. On the next day the hired man and his wife signed and acknowledged a deed for the land to the husband. The deeds were then taken by the husband and recorded. Afterward the wife sought to defeat the conveyance by asserting that the deed to the hired man had not been delivered. After setting out the facts, the court said (page 243 of 24 Ind.): "And according to the authorities, supra, the leaving of the deed at the recorder's office by Golvin Somers, one of the grantors, to be recorded, is, at least, a prima facie delivery toStineman, such act being regarded by the law as an unconditional delivery to a third person, *Page 664 for the use of the grantee." It was held that, notwithstanding there was no actual delivery of the deed to the grantee, the undisputed intention of the grantors being to vest title so that it could be deeded back, "taken in connection with the fact of placing the deed upon record, we think, should be conclusive that the deed was legally delivered." (Page 244 of 24 Ind.) Many cases to the same effect might be cited. The cases above referred to as erroneous cannot be reconciled with those just referred to. In Vaughan v. Godman et al., supra, it appeared that a father, upon advice of an attorney, and for the purpose of avoiding litigation, and preserving his property against a possible creditor, executed and acknowledged a deed, procured it to be recorded, and then kept it in his own possession. The question arose upon a demurrer to the complaint, and it is said in the opinion that the complaint alleges that the conveyance was made to avoid the expense of litigation involved in a threatened suit upon an unfounded claim, but it cannot be seen that this latter fact would make any difference. If the claim was unjust, it must be assumed that, upon suit, a judgment would protect against it, and if there was judgment upon the claim it would be a legal debt. Regardless of the justice of the claim, the conveyance to the infant daughter was made with a view of avoiding payment of a possible judgment. Such a conveyance is fraudulent, regardless of the contention of the grantor that he believed the claim unjust. It therefore clearly appears, without controversy, in that case that the grantor intended to vest his infant daughter with the legal title to the property, which could only be done by delivering the conveyance, and his undisputed intention is controlling. The opinion in the Vaughan case was by three judges, Judge Byron K. Elliott dissenting. *Page 665 In Reed v. Robbins, supra, the appellee had conveyed his property with intent to defraud his creditors. He signed and acknowledged the deed and had it recorded, but kept it in his own possession. It was held that, notwithstanding his admitted intention to vest the legal title so as to defeat his creditors, his having the deed recorded was only prima facie evidence of delivery, and that the title had not passed because there was no intention to deliver the deed. But the books are full of cases to the effect that title may be delivered without the physical delivery of a deed to the grantee, and that a deed may be delivered without delivering the title. It is not the delivery of the deed to the grantee that is important, or the grantor's intention concerning the delivery of the deed. Delivery of a deed is but evidence of an intention to deliver the title, just as recording the deed is evidence, not of an intention to deliver the deed, but of an intention to deliver the title. Recording itself may amount to delivery of the deed if it is accompanied by an intention to vest title. In Townsend et al. v. Millican, supra, the facts were that the grantor, contemplating marriage, and being in bad health, and desiring that the real estate should be used as a home for his father and mother in case of his death, signed and acknowledged a deed to his sister and caused it to be recorded. It was decided that there was no delivery and that the title did not pass.Somers et al. v. Pumphrey et al., supra; Colee v. Colee etal., supra; Vaughan v. Godman et al., supra, and FiremansFund Insurance Co., etc. v. Dunn (1899), 22 Ind. App. 332, 53 N.E. 251, are cited as authority for the court's conclusion. Of these cases only the Vaughan case supports the view taken in the opinion. The Somers case holds that legal title passes without the delivery of the deed, or without any intention of delivering *Page 666 it, where the intention to transfer the legal title by recording the deed is manifest. In Fireman's Fund Insurance Co., etc. v. Dunn, supra, the Appellate Court merely held that a pleading which alleged the signing, acknowledging, and recording of a deed, but also alleged that it was not delivered, and that there was no intention of delivery, is good as against demurrer. It seems to have been the contention in that case that the instrument recorded, while a deed in form, was in fact a mortgage, and the question was whether the fee to the property had been conveyed. It is clear therefore that, of the cases cited, only the Vaughan case supports the Townsend case. It will be seen that in the Townsend case the grantor intended that if he should die, the property, not only the legal title, but the equitable ownership, should be in his sister for the benefit of his father and mother, and that his wife-to-be should not take it as his heir. In other words, he had a mental reservation. If he died, the deed was to pass title. If he lived, he wanted to be in a position to reclaim the property. But the title either passed or did not pass as of the time of recording the deed. He could not have two intentions as of that date. It is clear in all of the cases referred to that the grantor intended the legal title to pass; to put the legal title away from him and vest it in another; to put the legal title out of the reach of creditors, or, in the Townsend case, to avoid its vesting in his wife at his death. To enforce the sound rule in any of these cases and in the case at bar seems to work a hardship, seems to permit the grantee to get something for nothing, to the injury of the grantor. But in each case, the grantor, knowingly, freely, and intentionally, conveyed the property for the purpose of protecting it against, and *Page 667 putting it out of the way of, some one. In all cases, but the Townsend case, the intent was to defraud creditors. In that case it was to prevent a prospective wife from having a benefit out of the property that he preferred should go to his father and mother. In each case, if the creditors had procured judgments and were seeking to execute upon the land, the grantor would have insisted that title had passed, and, in the Townsend case, if the grantor had found himself dying, he would have insisted that title passed. The intention of the grantor that is important is the intention with respect to vesting the legal title in the grantee. This may be accomplished without physical delivery of the deed to 6-8. the grantee, and physical delivery of the deed without intention to vest the title will not vest it. But it is clear beyond controversy that the intentional recording of a deed, with the intention of vesting the title in the grantee, is conclusive. When it is said that the recording of a deed is but prima facie evidence of delivery, it is meant that this evidence of delivery of the title can be rebutted upon proof of fraud or mistake or of other circumstances which indicate that the recording was not accompanied by an intention to convey the title. It is not rebutted by evidence of an intention to reserve an equitable title or an equitable right or by showing an agreement either in parol or in writing to reconvey. In either case the agreement to reconvey the legal title necessarily indicates an intention that it shall be first transferred and delivered to the one who is to reconvey. If this agreement is in writing it can be enforced, not by showing that there was no conveyance of the legal title, but by showing the agreement to reconvey. If the agreement to reconvey is in parol it cannot be enforced because a statute forbids. *Page 668 In Dunn et al. v. Dunn (1882), 82 Ind. 42, 43, 44, it appears that a grantor conveyed his property to another under an oral agreement that it would be held in trust and deeded back. The grantor was not insolvent at that time. He afterward became insolvent, and his creditors sought to set aside the conveyance. It was held that, even though the conveyance was without consideration, it was valid as against the grantor and his heirs, and, since he was not insolvent at the time of the conveyance, it was not invalid as to his creditors; that: "The conveyance from David L. Dunn to the appellee must, as between them, be adjudged valid unless the verbal agreement created a trust which the latter could enforce. If a trust at all, it was an express one, and express trusts can not be created by parol. . . . No enforceable trust was created by the verbal agreement, and the judgment debtor, David L. Dunn, could neither have enforced the trust nor set aside the conveyance." The statute which makes parol real estate trusts unenforceable is designed to prevent frauds and perjuries. All such statutes at times seem to work unconscionable hardships, but they have 9. been thought a necessary protection. To break down the effect of the statute, in a case where it seems to work a hardship, is to establish a rule that will be of advantage to the fraudulent and the unscrupulous. And so in the case at bar, even if the conveyance, made upon the agreement of the appellant to reconvey, had not been in fraud of creditors, it could not be set aside, nor could the 10, 11. agreement to reconvey be enforced by appellees under authority of the case last referred to. But in the case at bar it is undisputed that the original conveyance was made with the intention of defrauding creditors, which furnishes another reason why it cannot now be stricken down and *Page 669 the property recovered. In putting the property beyond the reach of creditors, the appellees have put it beyond their own reach. The fraud intended upon their creditors has reacted upon them. In such a case the grantor is "hoist with his own petard." The case of Vaughan v. Godman et al., supra, is overruled, and Townsend et al. v. Millican, supra, and Reed v.Robbins, supra, are disapproved. They are inconsistent with the views expressed by this court in Colee v. Colee et al.,supra, and the other cases referred to, which are believed to be sustained by sound principle and to which we adhere. Judgment reversed, with instructions to restate the conclusions of law and enter judgment for the appellant.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426466/

Appellant appeals from an award of the Full Industrial Board denying him compensation, assigning as error that the award is contrary to law. The board's finding was "that plaintiff (appellant) was not an employee of the defendant (appellees) within the meaning of the Indiana Workmen's Compensation Act," and in the award appealed from it was ordered that he "take nothing by his complaint herein and that he pay the cost of this proceeding." The evidence establishes that appellant was a carpenter, and maintained a shop wherein he kept his tools and did some work; that appellees were operating a hotel, and on different occasions prior to the date of his injury appellant had done work for them. There is, however, nothing in the evidence to indicate that at or prior to the date of the accident resulting in appellant's injury he had ever been regularly employed by appellees to perform services of any character over any definite period of time. On Saturday, June 3, 1939, he was at the hotel, did some work, the nature of which he did not remember, and appellee Harriet Henke informed him they desired to install an exhaust fan in one of the windows of the hotel, and wanted to know when he could do it. She was told "most any time," except that he was busy that day and had most of the day "taken up." Appellant suggested that he could do the work desired the next day, Sunday, but was told by Mrs. Henke that she did not like Sunday work. Appellant then told her he could come on Monday following, which he did, arriving at the hotel about *Page 483 8 o'clock a.m. to start the work, when a lady from Indianapolis inquired of him if he was going to work upstairs, and upon learning that such was his intention told him that there were some people asleep and asked if he could wait until a later hour, which he did. This lady, so far as the record discloses, and so far as appellant knew, was not "connected with the hotel in any way." Appellant went home, did "some short odd jobs and went back at noon." The work was not completed until the following day, and after the fan was installed appellant was "trying the switch out to see how it would work, to see if it was wired correctly." He tried it on high and low speed, and had just turned the switch off when he observed that a tag was left attached to the fan, and in attempting to remove same while the fan was "coasting" he was injured, and as a result has suffered a complete loss of use of the middle finger of his left hand. When the arrangements were made for appellant to install the fan, nothing was said about what pay he should receive for doing so. The fan was furnished by appellees; the material necessary to be used in its installation was purchased by appellant, and, at his direction, charged to appellees. It was appellant's custom, when on previous occasions he had worked for appellees, or for others, to keep account of the number of hours spent on the particular job, and thereafter to submit his bill, calculated at so much per hour, the amount per hour depending on the class of labor performed. It does not appear from any evidence that the appellees, or either of them, at any time ever attempted to give any directions concerning the installation of the fan, other than to designate the place where it was to *Page 484 be installed, nor that either of them was present when the work was being done, nor in any way tried to control the manner of doing the work. It clearly appears that appellees desired a certain result accomplished (the installation of the fan), and that appellant undertook to do this, and did so, using his own knowledge, methods and tools in accomplishing the work. Our Supreme Court, in Prest-O-Lite Co. v. Skeel (1914),182 Ind. 593, 596, 106 N.E. 365, says: "Where the agreement provides for a result to be accomplished by the employe and leaves to the employe the means and methods by which the result is to be accomplished, then the relation is that of employer and contractor, and not that of master and servant." Whether one who undertakes to accomplish a specified result for another is an employee or an independent contractor is a question of fact for the Industrial Board to determine upon the 1. evidence submitted to it. Many elements, if shown to exist, may be properly considered by the board in reaching its conclusion, as is evidenced by many prior decisions of this court discussing the subject-matter here involved. See MarionMalleable Iron Works v. Baldwin (1924), 82 Ind. App. 206,145 N.E. 559; Lazarus v. Scherer (1931), 92 Ind. App. 90,174 N.E. 293; Petzold v. McGregor (1931), 92 Ind. App. 528,176 N.E. 640; J.P.O. Sandwich Shop, Inc. v. Papadopoulos (1938),105 Ind. App. 165, 13 N.E.2d 869. The decision of the board on any question of fact is 2. binding on this court if it be sustained by competent evidence. After reading the evidence, we conclude that it is *Page 485 sufficient to sustain the action of the Industrial Board in finding as it did that appellant was not an employee within 3. the meaning of that term as used in our compensation act. The award is affirmed. NOTE. — Reported in 29 N.E.2d 995.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426469/

Suit by the guardian of Rose Fulton, a cotenant, for the partition of real estate, alleging that his ward owned an undivided one-third, and appellee, The Studabaker Bank, mentioned hereinafter as "appellee," the undivided two-thirds thereof. Appellee, by its cross-action, alleged that the interest of plaintiff's ward vested in her by virtue of a judicial sale of her husband's land, and that, because the value of the land was in excess of $20,000 and the value of two-thirds thereof insufficient to satisfy the husband's debts, her interest therein, as against creditors, was but one-fifth thereof. The ward later died, and this appeal is being prosecuted by appellant as the surviving husband, and her sole heir at law. The facts, as appear by the special findings, briefly stated, are that, on December 29, 1916, Francis O. Fulton, appellant, was a married man, and was the owner of the quarter section of land in controversy. On that day, he executed to the Studabaker Bank, appellee, his promissory note for $12,000 and also executed to it a mortgage on his land, in which his wife, Rose Fulton, did not join. This mortgage was never foreclosed and the note was never paid. Thereafter, appellant became indebted to appellee in further sums, for which it held his unsecured notes, and on May 19, 1919, it recovered judgments against him on the notes in the aggregate sum of $3,379.11. *Page 276 Appellant's wife was not a party to the judgments taken. Appellee caused execution to be issued on the judgments against appellant. No other property was found, and his land, on which appellee held the mortgage, was levied upon and, in July, 1921, was sold at sheriff's sale. The aggregate of appellee's judgments, with interest, costs and accruing costs, was $3,876.70 at the date of the sale and the land was sold for that amount to W.W. Rogers, who was at the time the cashier of appellee bank, but it does not appear that he was in any way acting in a representative capacity in the purchase of such land. He paid the money to the sheriff, and the full amount of the judgments was afterward paid to and accepted by appellee. Within the year for redemption, the Rogers certificate was assigned to appellee. No redemption was made from the sheriff's sale. On July 26, 1922, the bank presented its certificate, and procured a sheriff's deed for the land. Rose Fulton, the wife of appellant, had been adjudged a person of unsound mind and Allison Fulton was appointed her guardian. On May 24, 1923, he filed this action in the Wells Circuit Court against appellee for partition, claiming that his ward was the owner of one-third of the real estate which had been sold at sheriff's sale. The court found that on the day of the sheriff's sale, the land was worth $21,600, and that the mortgage debt then held by the bank amounted to $13,234. Appellee had also paid some delinquent tax on the land to protect its mortgage lien and this, with interest, amounted to $280.23 on July 2, 1921. The total indebtedness to the bank, aside from the judgments which were satisfied by the sheriff's sale, was $13,514.23, but the court included these judgments in *Page 277 determining the total indebtedness due appellee, making thereby a total indebtedness due appellee of $17,390.93. By balance of accounts growing out of taxes and ditch installments paid and rents due subsequent to the sale, the court found that there was due appellee $933.66 from Rose Fulton, for which it was entitled to a lien on her one-third of the land. On the findings, the court stated as conclusions of law that: (1) Rose Fulton is the owner of the undivided one-third of said real estate; (2) that appellee is the owner of the undivided two-thirds thereof; (3) that plaintiff, guardian of Rose Fulton, is entitled to a partition thereof; (4) that appellee holds a lien against said one-third interest in the sum of $933.66; (5) that appellee is entitled to a lien on all that part of the real estate owned by Rose Fulton, ward of plaintiff, that exceeds an undivided one-fifth interest thereof, (because the land was valued at more than $20,000, § 3014 Burns 1914) for any sum due and owing after the two-thirds of said real estate owned by appellee has been applied in the payment of indebtedness due and owing from appellant to appellee; (6) that commissioners should be appointed to make partition of said real estate. On these conclusions, the court adjudged that Rose Fulton, the ward of plaintiff, and appellee are the owners in fee simple as tenants in common of the real estate involved; that said 1-3. Rose Fulton is the owner of the undivided one-third thereof in value, subject to the liens of appellee, hereinafter stated. Appellee is the owner of the undivided two-thirds of said real estate in value; that partition be made among said owners according to their respective interests, by setting off to said Rose Fulton, the one-third in value of said real estate, subject to said liens, and by setting off to appellee the two-thirds in value of said real estate; that appellee recover the sum of $933.66 with *Page 278 interest on account of taxes and assessments against said land paid by appellee; that appellee have and hold a lien for said sum against the said share of said Rose Fulton in said real estate and is entitled to have said lien enforced; that on July 2, 1921, appellant was and ever since has been indebted to appellee in the sum of $17,390.93; that on said day all of said real estate was and ever since has been of the value of $21,600; that in the event that said real estate is partitioned, the value of the two-thirds of said land owned by appellee, namely, $14,400 be applied to the reduction of said indebtedness to appellee and that it have and hold a lien for the remainder of said indebtedness, namely, $2,990.93, on all that part and share of said Rose Fulton in said land that exceeds the undivided one-fifth of said land, and is entitled to have said lien thereon enforced; that in the event said real estate is reported indivisible and is ordered sold through a commissioner appointed by the court, the proceeds of the sale of the two-thirds of said real estate owned by the said bank shall be applied to the reduction of said indebtedness, and said bank shall have and hold a lien for the remainder of said indebtedness on all that part or share of said Rose Fulton in said land, and the proceeds of the sale thereof, in excess of the one-fifth of said land. The sale of the real estate involved on appellee's judgments, both of which were junior to appellee's $12,000 mortgage thereon, to W.W. Rogers for the full amount of the judgments could operate only as a sale of two-thirds of such real estate subject to the lien of appellee's mortgage in which Rose Fulton, the wife, had not joined, and under the statute (§ 3365 Burns 1926, § 3037 Burns 1914, and § 3361 Burns 1926, § 3052 Burns 1914) the full one-third of such real estate, in the first instance, vested in her free from the lien of appellee's mortgage, and so continued until by proper judicial proceeding, *Page 279 such interest was reduced below the one-third. To accomplish such reduction, a judicial proceeding was necessary. Elliott v.Cole (1887), 113 Ind. 383, 407, 14 N.E. 708; Mansur v.Hinkson (1884), 94 Ind. 395; Currier v. Elliott (1895),141 Ind. 394, 405, 39 N.E. 554. There was no such action prior to the cross-complaint filed herein. Conceding, without deciding, that without some prior suit for the purpose of reducing her interest below the one-third thereof, appellee could take such step by way of cross-complaint in this action, we do not see how it can be that appellee is, under the facts as found, entitled to have the wife's interest so reduced. The undivided two-thirds sold at sheriff's sale to Rogers for enough to fully satisfy said judgments with interest and costs, and the purchase price was paid by Rogers to the sheriff, who afterward paid the full amount of the judgments and interest to appellee. The judgments were then fully satisfied. The court has determined the indebtedness due appellee from appellant to be the amount of the mortgage and delinquent taxes paid, or $13,514.23, plus the amount of these two judgments of $3,876.70, making a total indebtedness of $17,390.93. The court has then determined the value of the undivided two-thirds to be $14,400, and has given a lien to appellee on appellant's part of the real estate that is in excess of one-fifth thereof for the amount of appellee's indebtedness as stated, over and above the value of the undivided two-thirds, such lien being for $2,990.93. The conclusion of law to this effect, and the judgment thereon constitute reversible error. The value of the undivided two-thirds being $14,400, and appellee's total indebtedness being but $13,514.23, the same being a lien only upon the undivided two-thirds, appellee has no right to a lien upon appellant's one-third interest, except for the sum of $933.66 resulting from the adjustments of rents, taxes and ditch assessments subsequent *Page 280 to the sale by the sheriff, as found by the court. The judgment is reversed, with instructions to the court to restate its conclusions of law in harmony with this opinion, and enter judgment accordingly. Enloe, J., dissents.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426470/

The city of Brazil filed a complaint *Page 86 in one paragraph against William E. Eddleman to recover a penalty for his alleged violation of §§ 1 and 2 of its ordinance No. 21231 "by unlawfully driving and propelling a motor truck, the combined weight of such truck, load and driver thereof being greater than 30,000 pounds, to wit 37,500 pounds; the same having an overload over its rear axle of 20,500 pounds," over a certain street in Brazil. After a trial by the court, there was a finding of guilty as charged, and a judgment was rendered that Eddleman pay a fine of $100 from which judgment he prosecutes this appeal. The appellant assigns and relies upon as error the overruling of his motion for a new trial, on the grounds that the finding is not sustained by sufficient evidence and is contrary to law, and he presents the question of the validity of the ordinance. The evidence showed the operation by appellant over the street named of a six-wheeled freight truck, a combination of a tractor with a trailer; that the trailer had four wheels and two axles, weighed 37,500 and that the rear part of the trailer weighed 20,500. Appellant contends that the evidence is insufficient: First, because the complaint alleges the operation of a "motor truck" over the weight prohibited by the ordinance, while the proof shows the operation of a "trailer," but we 1. believe that proof of the operation of a trailer (over the specified weight), which trailer, in combination with a tractor, constituted "a six wheel freight truck," was sufficient proof of the *Page 87 operation of a motor truck as alleged in the complaint. Second, because the complaint alleges a violation of § 2 (in addition to § 1) of the ordinance, which section (§ 2) makes it unlawful to operate a vehicle of less than two axles 2. weighing in excess of 10,000 pounds, while the evidence shows that the vehicle in question had two axles. Appellant's failure to prove a violation of § 2 will not prevent a judgment against him if the proof is sufficient of the violation charged of § 1. Third, because the complaint alleges the weight of the vehicle to be 37,500 pounds while the proof is that it weighed "37,500" with no showing as to what unit of weight was 3. referred to. Proof that the trailer weighed "37,500" is not equivalent to proof that it weighed "37,500 pounds," even though "pound" was the unit of weight mentioned in the ordinance and could reasonably be presumed to be the unit of weight referred to by the figures given. It is unnecessary, however, to decide whether the omission to prove the unit of measure constitutes a failure of evidence, since the case must be reversed for the reason given in the next paragraph. Fourth, because the ordinance prescribes a weight limitation in conflict with § 10152 Burns 1926, which defines and prescribes the maximum weight of vehicles that may be used upon the 4. highways2 (and § 10160 Burns 1926 which prescribes a penalty) and is therefore void under § 2401 Burns 1926, *Page 88 which provides that an act shall not be made punishable by ordinance that is an offense against the state by statute.3 An examination of the provisions of the city ordinance and the statute discloses that the ordinance is quite similar to the statute, covers the same subject-matter and seeks to punish the same acts which are made punishable by the statute. Section 10146 Burns 1926 (as amended Acts 1927 p. 662, § 4; p. 721, § 1), does not serve to take this ordinance out of the general rule. The ordinance is void. City of Indianapolis v. Higgins (1895),141 Ind. 1, 40 N.E. 671. Judgment reversed. 1 "Sec. 1 . . . It shall be unlawful for any person, persons, firm, company or corporation to operate, drive or propel, over, along or on [certain streets, naming them] any vehicle, truck or trailer, the combined weight of such vehicle, truck or trailer, load and driver thereof shall exceed 30,000 pounds." "Sec. 2 . . . It shall be unlawful, [etc., same as in § 1] any vehicle, truck or trailer of less than two axles, the combined weight of such vehicle, truck or trailer, load and driver thereof shall exceed 10,000 pounds." 2 Weight of motor vehicles. Except as hereinafter otherwise provided, no motor vehicle, truck, trailer or semi-trailer or combined unit of motor vehicle, or truck having four wheels or less, the gross weight of which, including the load, is more than 28,000 pounds; and no motor vehicle or truck having a greater weight than 22,400 pounds on any one axle; and no motor vehicle, truck or trailer, having a greater weight than 800 pounds per inch width of tire upon any wheel concentrated upon the surface of the highway (such width, in the case of rubber tires, to be measured between the flanges of the rim), shall be used or operated upon any of the public highways or bridges of this state, etc. 3 State statutes — Ordinances. Whenever any act is made a public offense against the state by any statute and the punishment prescribed therefor, such act shall not be made punishable by any ordinance of any incorporated city or town; and any ordinance to such effect shall be null and void, and all prosecutions for any such public offense as may be within the jurisdiction of the authorities of such incorporated cities or towns, by and before such authorities, shall be had under the state law only, etc.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486255/

Louis Kline died April 9, 1945, at Cumberland, Allegany County, Maryland. He was a merchant and conducted a store at what is known as 19-21-23 Baltimore Street in that City, which he owned subject to a mortgage of $25,000, at the time of his death. He married twice. Sayde K. Daskais is his daughter by his first marriage. She and her husband are the appellants. His second wife, Carrie M. Kline, appellee, was married before, and has a daughter by the former marriage, a Mrs. Hendricks. Shortly before Mr. Kline's death he sold his store business to his step-daughter, Mrs. Hendricks, and rented to her the store property, and she, from that time on, has conducted the store formerly conducted *Page 543 by her step-father. Mr. Kline left a will in which he named his daughter, Mrs. Daskais, and Mr. William M. Somerville, as executors. Under his will he bequeathed a 60 per cent. interest in this store property to his daughter, Mrs. Daskais, and 40 per cent. therein to his wife, Carrie M. Kline. Mrs. Daskais did not live in Cumberland, but resided in Chicago, Illinois, and did not qualify as executor under her father's will. Letters testamentary thereon were granted to Mr. Somerville. Mr. William C. Walsh was employed by Mrs. Daskais to represent her in the settlement of the estate. She came to Baltimore and Cumberland to advise with Mr. Walsh. He wrote her on June 4, and on June 5, 1945, after he had been in communication with Mr. Kemper, who was the lawyer representing Mrs. Kline. On June 20, 1945, Mr. Morris H. Daskais, the husband of Sayde K. Daskais, and one of the appellants, wrote Mr. Walsh. Since that time Mr. Daskais represented his wife in the matter and conducted all correspondence with Mr. Walsh in reference thereto. There were a number of complications in the settlement of this estate. Mrs. Hendricks gave notes to Mr. Kline when she purchased the business, which were held by the executor, to which she claims certain set off. Both she and her mother filed claims against the estate. There was also the matter of what rent Mrs. Hendricks should pay for the store property. The roof and floors of this property were out of repair, which gave rise to a controversy of who should make the repairs. Mr. Walsh represented the executor in the matter of these claims, and he also represented Mrs. Daskais. Mr. Kemper has offices in Baltimore City and he associated with him in the matter Mr. Lippel, an attorney in Cumberland. An extended correspondence was carried on between Mr. Walsh and Mr. Daskais, and Mr. Kemper and Mr. Lippel. These attorneys were attempting to settle the differences between the parties and avoid litigation. On April 23, 1946, Mr. Dakais wrote a letter to Mr. Walsh, in which he proposed the following settlement: *Page 544 "a cash settlement of $6,500 — to Sayde for her interest in the estate, all benefits and obligations to be assumed by Mrs. Kline and Mrs. Hendricks." On May 3, 1946, Mr. Walsh wrote to Mr. Lippel: "In accordance with our telephone conversation of yesterday, I am writing as attorney for Mrs. Sayde Daskais to advise that Mrs. Daskais will sell her 60% interest in the Kline Building on Baltimore Street, Cumberland, Maryland, to Mrs. Kline, or her nominee, for the sum of $6,500.00 cash, with the understanding that Mrs. Kline shall then assume all of the obligations owed by the estate of her husband, the late Louis Kline, and will also be entitled to all of the assets of said estate, including the $2,000.00 cash settlement proposed by Mrs. Hendricks as a payment of the balance due by her on the purchase of the Kline Clothing business, and any and all accumulated rents on the Kline Building." The letter goes on to say: "So far as I have been able to ascertain them, the claims against and the obligations of the Louis Kline estate total approximately $2,000.00, and the commissions of the Executor, the costs in the Orphans' Court, and attorneys' fees will amount to about a thousand dollars, so that the total amount to be assumed by Mrs. Kline under the above proposal would be approximately $3,000.00, plus the $6,500.00 cash payment to Mrs. Daskais, and in return for this she would secure the entire title to the Kline Building on Baltimore Street. "While I think the above estimate of $3,000.00 covers all of the obligations of the Kline estate, I am not able to guarantee this, and in authorizing me to offer to sell her interest for $6,500.00 cash, with Mrs. Kline to assume the obligations of the estate, including commissions, costs and attorneys' fees, Mrs. Daskais did not set any amount on such obligations, but provided that Mrs. Kline was to assume them all, and this offer is made on those terms. However, since Mr. Kline has been dead for almost a year, and there have been no unexpected claims filed in the Orphans' Court up to this time, we *Page 545 could readily make practically certain of the amount of the obligations by checking at the Orphans' Court and stating the account and closing the estate at the time the settlement was made. "I understand you will give me an answer on this matter by Monday, if possible, and I trust that we may at long last be able to get the matter disposed of." On May 14, 1496, Mr. Lippel wrote to Mr. Walsh: "On May 3, 1946, you wrote me that Mrs. Sayde Daskais would sell her 60% interest in the Kline building known as No. 23 Baltimore Street, this City, to Mrs. Carrie Kline for the sum of $6,500.00 in cash, Mrs. Kline to assume all obligations due by the Estate of L. Kline, deceased, and to be entitled to all of the assets of said Estate plus any and all accumulated rents on the building. "Mrs. Kline hereby accepts the offer contained in your letter and will arrange to pay the purchase price of $6,500.00 in cash within the next 60 days and sooner if possible. "If you wish, you may prepare an agreement of sale or it is satisfactory to me if you will have Mrs. Daskais and her husband execute a deed and hold it for delivery upon payment of the purchase price within the time noted above." On May 15, 1946, Mr. Walsh wrote a letter to Mr. Lippel, in which, among other things, he stated: "I also expect to ask the court (Orphans' Court) for a counsel fee of $750.00 and I estimate the court costs will be about $50. Some time ago you told me that Mr. Kemper had suggested objecting to the amount of my fee, and while I feel confident that in view of all the work done and time consumed in this matter the court would allow me the above fee, I do not want to make a settlement of the matter and then have a fight about the fee." On May 23, 1946, Mr. Kemper wrote a letter to Mr. Lippel, which he directed to be sent to Mr. Walsh, which was done on May 31, 1946. In this letter of May 23rd Mr. Kemper stated to Mr. Walsh: "On May 3, 1946, you *Page 546 offered to sell Mrs. Daskais's 60% interest in the Kline Building for $6500. cash `with the understanding that Mrs. Kline shall then assume all of the obligations owed by the estate of her husband, — .' Your offer was accepted unconditionally by Mr. Lippel's letter of May 14, 1946, in accordance with instructions sent by me." The letter then engaged in discussions about the proposed fee of $750 to Mr. Walsh, to be paid as part of the costs in the Orphans' Court in the settlement of the Kline estate. On May 31, 1946, Mr. Walsh wrote a long letter to Mr. Kemper, in which he stated: "* * * I do not wish to be put in the position of closing this matter, and then being compelled to have a fight and perhaps litigation over my fee, and since Mrs. Daskais understood that my fee would be paid by the estate, and our offer clearly stated this, and since you now state that you will object to the estate paying the fee, I think it proper that the settlement be held up until this matter has been cleared up." On June 5th Mr. Kemper replied to this letter. On June 10, 1946, Mr. Lippel wrote Mr. Walsh the following letter: "I have been asked to write you the following: "Under date of May 3, 1946, you wrote as counsel for Mrs. Sadie Daskais offering to sell her 60% interest in the Baltimore Street property of the late Louis Kline to Mrs. Carrie Kline or her nominee for $6,500.00 cash under the conditions set forth in your letter. "On May 14, 1946, I wrote you accepting this offer. I am now holding the purchase price of $6,500.00 with instructions to deliver a check for the same upon receipt of a deed conveying a clear title to Mrs. Daskais's interest in the property. The deed is to be made to `23 Baltimore Street Corporation.' I will appreciate it if you will let me have a copy of the deed as soon as it is prepared. I will immediately examine the title and if I find it merchantable, I will probably be ready to close this transaction by the time you have the deed back from Chicago. *Page 547 "Mr. Kemper has asked me to tell you also that he does not regard the determination of your fee as any hindrance to the closing of this transaction; if the payment of your fee cannot be straightened out, that you have your recourse by filing a petition in Orphans' Court. I am writing you only as instructed." On July 16, 1946, the Bill of Complaint in this case was filed. After setting out many of the facts narrated, it prayed: "1. A declaratory judgment that the attorney's fee to be paid by complainant means that complainant shall pay such fees as may be due the attorney to the executor of the Estate of Louis Kline, Deceased, and does not mean such fee as may be due by defendants to their own attorney for services performed by said attorney for said defendants individually. "2. That the offer of defendants to sell their said sixty (60%) per cent. interest in said Baltimore Street property may be specifically enforced and that said defendants may be required to convey the same unto your complainant; that if said defendants refuse to execute a deed, that a trustee or trustees may be appointed by this Honorable Court to execute the same. "3. That your complainant may have such other and further relief as the nature of her case may require." Upon this bill and exhibits, the court passed a nisi order. On July 18th appellants demurred to the bill. The first and second reasons for the demurrer in this case are that the bill of complaint is not within Chapter 724 of the Acts of 1945 of the General Assembly of Maryland, which is the Declaratory Judgment Act, and third, the Statute of Frauds is interposed. This demurrer was overruled on July 26, 1946, and on August 13th the appellants filed their answer to the bill, in which they substantially deny its allegations. The case was heard in open court and on October 3, 1946, the court decreed that the appellants shall, within the period of 60 days, execute a deed of their respective interests in the property in question unto Carrie M. Kline, her heirs and assigns, *Page 548 in fee simple, and deliver the same unto the Clerk of the Court for Allegany County, who shall, after deducting the costs of suit, pay unto appellants the net proceeds from the sum of $6,500, deposited with the Clerk by the plaintiff as payment for the appellants' interest in the property, in compliance with the contract made between the parties hereto. It was further decreed that appellee shall assume the obligations of the estate of Louis Kline, including executor's commissions, the costs of the settlement of said estate and attorney's fees; the respective sums with relation thereto to be determined by the filing of a final account by William M. Somerville, Executor of the estate of Louis M. Kline, and the same shall be paid immediately upon final ratification thereof by the Orphans' Court of Allegany County. It further decreed that if appellants refused to execute the deed to Carrie M. Kline, for the property in question, within the time set forth, that in that event Clarence Lippel shall be "and he is hereby appointed Trustee in this cause with full power and authority to execute said deed for and on behalf of the said Sayde K. Daskais and Morris H. Daskais, her husband, and conveying their entire interest in said property unto the said Carrie M. Kline, her heirs and assigns, free, clear and discharged of all the right, title and interest of the said Sayde K. Daskais and Morris H. Daskais, her husband, or either of them or any person or persons claiming by, through or under them" and that the appellants pay the costs and the Clerk shall deduct the amount thereof from the money deposited with him by the plaintiff. The cause was thereafter reheard and on November 6, 1946, the court decreed that the decree filed in the proceedings on October 3, 1946, be ratified and confirmed. From the decree of October 3, 1946, and the decree of November 6, 1946, appeals were taken to this Court. The appellants contend: 1. That there was no binding contract upon them to convey the real estate in question. 2. If there is such a contract, it should not be enforced *Page 549 because it is inequitable. 3. That there is no case here for appellee to seek adjudication of her obligation as to payment of attorney's fees under the Declaratory Judgment Act. From the record, it appears that the chancellor treated this case as one for specific performance, and we so regard it. The matter of the allowance of a fee for an attorney for legal work done in the administration of an estate in the Orphans' Court is one that lies within the discretion of that court. It could not affect a case such as this, unless the contract involved specifically provided that it should be paid by the purchaser of the property in question. If it was not so provided it would be foreign to the matter now before the Court. The relief in this case did not depend upon the prayer for a declaratory judgment, and the first prayer of the bill may be treated as unnecessary. It did pray for specific performance of the contract which it set up, and that is the question which is before this Court. The facts of this case show the following: That in June, 1945, Mr. Walsh was employed by Mrs. Daskais. He communicated with Mr. Kemper, the attorney for Mrs. Kline, and wrote Mrs. Daskais on June 4, and June 5, 1945. From that time on Mr. Daskais handled the matter for his wife, with her consent, with Mr. Walsh. All correspondence with Mr. Walsh was conducted with Mr. Daskais and it shows that he consulted with Mrs. Daskais and they acted together in their directions to Mr. Walsh, who was looking after their interests in the Kline estate. They lived in Chicago and Mr. Walsh was "on the scene." It is conceded by all parties that the attorneys for the respective parties, with their consent and approbation, were trying to settle the matter out of court and without litigation. There was talk of Mrs. Daskais buying out the interest of Mrs. Kline, and Mrs. Kline buying out the interest of Mrs. Daskais. These negotiations were considered by the attorneys and the parties. *Page 550 After Mr. Kline had been dead a year, on April 23, 1946, Mr. Daskais wrote Mr. Walsh a letter in which he stated: "First; a cash settlement of $6500 — to Sayde for her interest in the estate, all benefits and obligations to be assumed by Mrs. Kline and Mrs. Hendricks." After considering in this letter a number of matters concerning the estate, Daskais wrote: "I realize that these proposals are not entirely in line with my last conversation with you, but they represent our final conclusions. * * *. "I expect to be East about the first week in May, although I cannot set any exact date as yet. I shall be available to you for as much time as you want in Cumberland or Baltimore. I shall notify you as to my plans as soon as they can become more definite." On May 3, 1946, Mr. Walsh, acting for the appellants, wrote Mr. Lippel, acting for Mrs. Kline, the following: "In accordance with our telephone conversation of yesterday, I am writing as attorney for Mrs. Sayde Daskais to advise that Mrs. Daskais will sell her 60% interest in the Kline Building on Baltimore Street, Cumberland, Maryland, to Mrs. Kline, or her nominee, for the sum of $6,500.00 cash, with the understanding that Mrs. Kline shall then assume all of the obligations owed by the estate of her husband, the late Louis Kline, and will also be entitled to all of the assets of said estate, including the $2,000.00 cash settlement proposed by Mrs. Hendricks as a payment of the balance due by her on the purchase of the Kline Clothing business, and any and all accumulated rents on the Kline Building." Irrespective of what other matters that letter contained, the part quoted was a clear, definite, and certain offer by Mrs. Daskais to sell her interest in the Kline estate to Mrs. Kline. On May 14, 1946, Mr. Lippel, acting on behalf of Mrs. Kline, wrote Mr. Walsh as follows: "On May 3, 1946, you wrote me that Mrs. Sayde Daskais would sell her 60% interest in the Kline building known as No. 23 Baltimore Street, this City, to Mrs. *Page 551 Carrie Kline for the sum of $6,500.00 in cash, Mrs. Kline to assume all obligations due by the Estate of L. Kline, deceased, and to be entitled to all of the assets of said Estate plus any and all accumulated rents on the building. "Mrs. Kline hereby accepts the offer contained in your letter and will arrange to pay the purchase price of $6,500.00 in cash within the next 60 days and sooner if possible. "If you wish, you may prepare an agreement of sale or it is satisfactory to me if you will have Mrs. Daskais and her husband execute a deed and hold it for delivery upon payment of the purchase price within the time noted above." This was a clear and definite acceptance in terms of the offer to sell to Mrs. Kline, contained in Mr. Walsh's letter of May 3, 1946. This offer and acceptance, in writing, complies with the Statute of Frauds, and is binding, if the respective attorneys were authorized to contract to sell and purchase the interests of their respective clients in the property concerned. A broker or agent has not the power or authority to bind his principal by signing a contract for him, unless he is authorized so to do. If he is so authorized the contract is binding. The case of Brown v. Hogan, 138 Md. 257, 113 A. 756, relied upon by both parties, so holds. In that case an attorney signed a contract for the sale of his client's property, but it was held he was without authority to do so. In the Hogan case the Court said, at page 269 of 138 Md., at page 761 of 113 A.: "As is said in the note in Ann. Cas. 1917A, 524: `While the power of a real estate broker or agent ordinarily extends only to finding a purchaser, it has been held that if the language used by the parties or in the instrument with reference to his employment, regarded in the light of surrounding circumstances, clearly shows that the broker is authorized to contract for the sale of the property, the contract may be enforced against the owner.' See also 1 Mechen on Agency, Sec. 798." See Williston onContracts, Vol. 1, Sec. 28. *Page 552 In Howard v. Carpenter, 11 Md. 259, at page 281, it is said: "An attorney, either at law or in fact, has no authority either to make a lease, or to ratify or confirm an imperfect one, or to perfect an inchoate agreement for a lease of property of his principal or client, unless authority for such purpose isexpressly given." (Italics supplied.) In Collins v. Wetzel, 163 Md. 194, 161 A. 18, real estate was owned by two sisters. One made an offer in writing to the other, through an attorney, which was accepted by the other sister in writing, through an attorney. This case has many of the features of the case now before the Court. Judge Digges, in the opinion for this Court, affirmed a decree for specific performance. When we consider the proposition which Daskais authorized Mr. Walsh to make on behalf of himself and wife, in his letter of April 23, 1946, in connection with the direct offer which Mr. Walsh made in his letter of May 3, 1946, and consider the facts and circumstances surrounding this case, we conclude that the appellants authorized Mr. Walsh to make the offer contained in his letter of May 3, 1946, and he had authority to sell the interest of the appellants in the property involved in this case. The record shows the following: "It is admitted by counsel for Mr. and Mrs. Daskais that on May 3, 1946, when Judge Walsh wrote the letter offered in evidence, he had full authority to act for Mr. and Mrs. Daskais in making the said offer in the sale of the property." Neither in the letter of April 23rd to Mr. Walsh by Mr. Daskais, nor in Mr. Walsh's letter of May 3rd to Mr. Lippel, is anything said about a fee that was to be paid by the appellee to Mr. Walsh in connection with the sale of this property. On the contrary, Mr. Kemper had notified Mr. Walsh, writing that his client would object to the payment of a fee to Mr. Walsh for services rendered personally to Mrs. Daskais as distinguished from services rendered to the estate. We see no reason why the contract in this case should not be specifically performed. There is not a word of evidence that it is tainted by unfairness, *Page 553 or that the price is inordinately low, that it is not clear, or mutual. All of the standards that we have required in such cases seem to be present, and it should be enforced as a matter of course. See Smith v. Biddle, 188 Md. 315, 52 A.2d 473, and cases cited, and Moran v. Hammersla, 188 Md. 375, 52 A.2d 727. It is interesting to note that at the argument of the case solicitor for appellants admitted that they had a more attractive offer for this property and that it could be sold for an amount greater than it was sold for to appellee. And solicitor for the appellee stated that they now make no objection to Judge Walsh's fee. We conclude that the decrees appealed from should be affirmed. Decrees of October 3, 1946, and November 6, 1946, affirmed,appellants to pay costs.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3218010/

NUMBER 13-16-00265-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG U.S CURRENCY IN THE AMOUNT OF $20,721.00, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 377th District Court of Victoria County, Texas. ORDER Before Chief Justice Valdez and Justices Garza and Longoria Order Per Curiam This cause is before the Court on the State’s motion to order supplementation of the clerk’s record. The clerk’s record in this cause was filed on June 8, 2016. The State has advised this Court that items listed on the docket sheet as being filed with the district clerk are not included in the clerk’s record. The motion indicates the following documents are missing: September 2, 2015 notice, December 22, 2015 receipt, and March 22, 2016 setting letter. The State’s motion indicates these items are necessary for this Court to determine the merits of the State’s case. When a relevant item has been omitted from the clerk’s record, the appellate court may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplemental clerk’s record containing the omitted item or items. See TEX. R. APP. P. 34.5(c)(1). Accordingly, the State’s motion to supplement the record is GRANTED. The trial court clerk for the 377th District Court of Victoria County is directed to prepare a supplemental appellate record in this case to include the following documents: September 2, 2015 notice, December 22, 2015 receipt, and March 22, 2016 setting letter. The supplemental record shall be filed with this Court within 10 days from the date of this order. IT IS SO ORDERED. PER CURIAM Delivered and filed the 22nd day of June, 2016. 2

01-03-2023

06-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/4065845/

FILE COPY No. 07-15-00187-CV In the Interest of D.D., J.M., E.M., § From the 286th District Court S.M., A.M., A.M., B.M., R.M., G.M., of Hockley County Children § May 13, 2015 § Opinion by Justice Campbell § J U D G M E N T Pursuant to the opinion of the Court dated May 13, 2015, it is ordered, adjudged and decreed that this appeal is dismissed. It is further ordered, adjudged and decreed that inasmuch as the appeal is dismissed at the appellant’s request, no motion for rehearing will be entertained, and our mandate will issue forthwith. It is further ordered that this decision be certified below for observance. oOo

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486038/

The bill of complaint in this case was filed by the appellees, Daniel J. Moses and Raymond W. Taylor, copartners, trading as Baltimore Spring Bed Company, against Baltimore Bedding Corporation, appellant, charging the latter with unfair competition in the use of its corporate name, and seeking an injunction against such use. The defendant answered the bill in due course and after a hearing in open court, the chancellor granted the prayer of the bill and issued an injunction in these words: "That a writ of injunction be issued from this Court perpetually enjoining and restraining the Defendant, Baltimore Bedding Corporation, its agents, servants and employees, from the use by the said Defendant of the name `Baltimore Bedding Corporation' in connection with the advertising for sale of mattresses or other bedding materials, or for renovating the same, or in soliciting or obtaining orders for sale or renovation of such mattresses or bedding materials on price lists or form orders, or other printed or written matter, except in such manner as to prevent the public from believing that the goods and services of the defendant are those of Daniel J. Moses and Raymond W. Taylor, co-partners trading as Baltimore Spring Bed Company. And such form of disclaimer as may be adopted by said defendant in compliance with this decree is hereby required to show clearly and amply the said absence of connection with complainants and their business." It is from this decree that the present appeal is taken. *Page 232 The essential facts of the case are practically unquestioned. Appellees are co-partners, trading as Baltimore Spring Bed Company, with their principal office in Baltimore City, and for over twenty-five years have been engaged in the bedding business under that trade-name. Their products are sold at wholesale to jobbers and retailers, principally throughout Maryland and adjacent territory, orders being received from their salesmen as well as by mail and telephone. According to both parties to the case, the term "bedding" is that generally used in the trade and covers "practically everything," that is to say, mattresses, springs, cots, couches, quilts, cushions, and also the bed itself. Besides manufacturing and selling these products, the appellees' business includes repairing and renovating them for their customers, and also, to a minor degree, in acting as distributor for bedding goods of other manufacturers, not located in Baltimore. All, however, are advertised as coming from one commercial source — the appellees. Since the beginning of their operations over twenty-five years ago, appellees have extensively publicized their trade-name, "Baltimore Spring Bed Company," built up a large patronage thereunder, and have established good will and a reputation for fair dealing and excellence of products. The present worth of the firm is $200,000, and for the year 1941 it did a business of "close to $400,000." Appellant was incorporated under the laws of Maryland in February, 1942, with its principal office in Baltimore City, and with the name of Ralph Pheterson being given as the resident agent. The business of the corporation was to be that of manufacturing, renovating and selling mattresses and bedding in Baltimore City and elsewhere. According to Pheterson, the corporation was originally set up to do a wholesale business. His associates at first, he testified, were Leonard L. Eisenberg, who represented himself to Pheterson to be a lawyer, and one Moe Snyder, both of whom were employees of *Page 233 the Comfort Spring Company, located in Baltimore. Eisenberg was a salesman or foreman for that company, and, inferentially from the testimony, was familiar with the names and standing of those already engaged in the bedding business in Baltimore. The only money that was put in the business to start with was about $2,300, of which Eisenberg put up about $2,000, and Snyder $300. Pheterson put in no money but contributed "services and knowledge and machinery." Eisenberg was made president and Pheterson became "production manager." After the incorporation on February 2, 1942, operations were held up by the Maryland State Health Department "for some time," during which interval appellees, through their counsel, wrote a letter to appellant under date of February 19, 1942, stating: "We have noted the recent incorporation of the Baltimore Bedding Corporation, and it is obvious that the use of this name by the corporation will result in considerable confusion with the business operated by our clients. Mr. Moses and Mr. Taylor have been conducting their business in Baltimore City for a number of years and have established a valuable trade-name in the Baltimore Spring Bed Company. We must, therefore, insist that you cease to use the name Baltimore Bedding Corporation or we shall be forced to take the necessary action to protect our clients' interests." This letter was received by Eisenberg, who threw it in the wastebacket, according to Pheterson. When asked "how much advertising had you done up to that time" (the receipt of the letter), Pheterson's reply was "I wouldn't know." Continuing the testimony: "Q. You wouldn't know? A. No, sir, it wasn't in my part. "Q. Had it done $50 of advertising? A. I wouldn't know. "Q. It had not done any business up to that time, had it? A. I wouldn't know. *Page 234 "Q. Didn't you just tell his Honor that for the first few weeks you didn't do any business because the Health Department wouldn't let you? A. Yes. But you know all that. Why ask it again, I wonder? "Q. Having got that notice and request from us, what did you do about it? A. You heard that, too. "Q. You did nothing about it, is that it? A. No, sir." Appellees made further protests to appellant, through telephone calls and correspondence, against the adoption and use of the name "Baltimore Bedding Corporation," but the appellant persisted in its refusal to heed any of these protests and went ahead despite them. Some time "around June or July," according to Pheterson, both Eisenberg and Snyder ceased to have any connection with the corporation, since which time the business has belonged to Pheterson "entirely." He modified this statement later by saying that: "This isn't my own individual business. This is a corporation. It belongs to the stockholders. "Q. Who are the stockholders? A. Myself, my son-in-law. "Q. Who are the officers of the corporation now? A. Myself, my son-in-law, my wife and my daughter. "Q. And they are also the stockholders? A. Yes, sir." The record shows that Pheterson moved to Baltimore from his home town, Rochester, New York, via Norfolk, "over two years" before this suit. He was "looking for a job," he said — "and I contacted the Sanitary Mattress Company and they engaged me." He was foreman in that employ and left the company in September, 1941. About a month or so later he set up in business in Baltimore as "Acme Mattress Company" but had not gotten under way in this when he and Eisenberg and Snyder incorporated the Baltimore Bedding Corporation. These details give a definite idea of the background of the appellant and of the man who was practically the sole operator of it, although, according to him, it was the salesman-lawyer Eisenberg who conceived the plan *Page 235 of incorporating Pheterson and setting him up in that form as a dealer in bedding. Pheterson denies that he was the one who selected the name "Baltimore Bedding Corporation." However, on cross-examination he undertook to tell the chancellor why he preferred the name in question to any other name. His answer is: "Well, from my forty years' experience, Your Honor, I have found that people like to deal with a local concern, and it is worth while to make it known that we are a local concern." That was at the beginning of the corporate life of the appellant when, Pheterson said, "we were set up to go in the wholesale business." Ever since his partners left him, he continued, he turned more to ward renovating and the business of second-hand and rebuilt mattresses. He had been in this business in Rochester under the name "Best Grade Mattress Company," and thereafter chose "Acme Mattress Company" for his next venture, and did not hit upon the name "Baltimore Bedding Corporation" until after he had gotten in touch with Eisenberg. Since the principal acts which form the basis of this suit were directed in large part by Eisenberg and his colleague Snyder, it is significant to note that neither one of them was called as a witness in the case and no explanation given for failure to do so. This recital of facts focuses attention, therefore, on the conduct of appellant's officers in two particulars: (1) Their persistence in the use of the name Baltimore Bedding Corporation, which was admittedly set up in the beginning for a line of business in competition with appellees, after formal protest had been made against the use of that trade-name because of the confusion likely to arise therefrom; and (2) their action in resorting to inaccurate and misleading advertisements, notably in the Baltimore Telephone Directory, under the head "Baltimore Bedding Company" "39 years experience," etc., without mention of the name of Pheterson or any other person who may have had that much experience individually, *Page 236 it being a fact of record that the Baltimore Bedding Corporation had only been in existence less than one year. The chancellor summarized his findings of fact from the case and therefrom drew the two conclusions of law upon which the decree is based: (1) That the trade-name which the appellees have used for over twenty-five years in connection with their business has acquired a secondary meaning which entitles appellees to the protection of the court in the exclusive use of that term, including particularly the geographical name "Baltimore"; and (2) that appellant's conduct in connection with the use of the name Baltimore Bedding Corporation after being warned beforehand of the claim of the appellees that confusion would probably arise, and its refusal to adopt any distinguishing features to avoid confusion, show a wrongful intent to trade on appellees' good reputation, long established. In granting the injunction the chancellor adopted the usual procedure in such cases, where injunctive relief is sought, of giving the offending party the opportunity of disclaiming any unfair competition by adopting such form thereof as will show clearly and amply the absence of connection with appellees and their business. In reviewing the facts and the principles of law applicable to this case, it is of first importance that the doctrine of unfair competition be examined as to the high purpose which it was intended to serve. Expressed in simple words, this was to prevent dealings based on deceit and dishonesty, and was, at first, — approximately a hundred years ago, — applied only to what were then termed "trade-mark cases." Since that time the gradual tendency of the courts has been to extend the scope of the law to all cases of unfair competition in the field of business. This law, both in letter and spirit, is laid upon the premise that, while it encourages fair trade in every way and aims to foster, and not to hamper, competition, *Page 237 no one, especially a trader, is justified in damaging or jeopardizing another's business by fraud, deceit, trickery or unfair methods of any sort. This necessarily precludes the trading by one dealer upon the good name and reputation built up by another. Two Centuries Growth of American Law, p. 436, W.K. Townsend; Nims on Unfair Competition and Trade Marks, 3rd Ed., 6-15. What constitutes unfair competition in a given case is governed by its own particular facts and circumstances. Each case is a law unto itself, subject, only, to the general principle that all dealings must be done on the basis of common honesty and fairness, without taint of fraud or deception. Wherever, in any case, these elements of fair trade are found to be lacking equity will grant protection against the offending party. Foss v.Culbertson, 17 Wash. 2d 610, 623, 136 P.2d 711, 717. In the case at bar, the first ground advanced by appellees for relief in equity is that the word "Baltimore" has become so associated in the minds of the purchasing public with their products that this name has acquired a secondary meaning which would prohibit its use by a subsequent competitor. If sustained, this would entitle appellees to an injunction against the appellants on that ground alone, for it would amount to a kind of unfair competition which is clearly recognized in law, and forbidden. However, we hold that this is not a case where the doctrine of secondary meaning applies. An enlightening summary of that doctrine is found in Merriam Co. v. Saalfield, 198 F. 369, 373, and quoted in Nims, supra, 107: "Primarily, it would seem that one might appropriate to himself for his goods any word or phrase that he chose; but this is not so, because the broader public right prevails, and one may not appropriate to his own exclusive use a word which already belongs to the public and so may be used by any one of the public. Hence comes the rule, first formulated in trade-mark cases, that there can be no exclusive appropriation of *Page 238 geographical words or words of quality. This is because such words are, or may be, aptly descriptive, and one may properly use for his own product any descriptive words, because such words are of public or common right. It soon developed that this latter rule, literally applied in all cases, would encourage commercial fraud, and that such universal application could not be tolerated by courts of equity; hence came the `secondary meaning' theory. There is nothing abstruse or complicated about this theory, however difficult its application may sometimes be. It contemplates that a word or phrase originally, and in that sense primarily, incapable of exclusive appropriation with reference to an article on the market, because geographically or otherwise descriptive, might nevertheless have been used so long and so exclusively by one producer with reference to his article that, in that trade and to that branch of the purchasing public, the word or phrase had come to mean that the article was his product; in other words, had come to be, to them, his trade-mark. So it was said that the word has come to have a `secondary meaning' * * *." Or, as stated elsewhere in the text by this authority: "It (secondary meaning) exists only in the minds of those of the public who have seen or known or have heard of a brand of goods by some name or sign and have associated the two in their minds."Nims, supra, 105. Secondary meaning, therefore, imports association in the mind of the purchasing public of a geographical name and a particular product as identifying a certain trader's goods. When appellees established their business in Baltimore some twenty-seven years ago, and not only manufactured beds, mattresses, bedding, etc., but also took on products of other manufacturers, such as Foster, Palmer and Goodyear, who were located elsewhere than in Maryland, they acquired no right to monopolize the name Baltimore as against appellant or any other later comers into this field of business who might likewise adopt that geographical name as part of their trade-mark. *Page 239 The City of Baltimore is recognized as one of the great industrial and commercial centers of the world, where, among hundreds of other types of manufacturers, there are, according to the record, about a dozen engaged in the manufacture of bedding alone, some of whom have been in business longer than the appellees. It would not be reasonable to hold, therefore, that when one thinks of beds, bed springs or bedding in the Baltimore trade, one would ordinarily think of such products as being those of appellees exclusively. Weiskittel Sons Company v. J. HarryC. Weiskittel Company, 167 Md. 306, 173 A. 48; Neubert v.Neubert, 163 Md. 172, 161 A. 16; Drive It Yourself Co. v.North, 148 Md. 609, 130 A. 57, 43 A.L.R. 206; Columbia Mill Co.v. Alcorn, 150 U.S. 460-466, 37 L. Ed. 1144. If the application of the secondary meaning doctrine, therefore, were the only ground upon which unfair competition is charged against appellant, relief would have to be denied in this case. Coming to the second ground upon which injunctive relief is sought, the case takes on a different aspect, for the conduct of appellant in relation to the respective trade-names of the parties clearly indicates unfair competition. The doctrine of unfair competition is based on the principle of common business integrity, and the power of a court of equity to uphold this principle has been extended to prevent deception of the general public through the employment of methods which are not on that basis. Eastern Outfitting Co. v. Manheim, 59 Wash. 428, 110 P. 23; 35 L.R.A., N.S., 251. As expressed in Dodge Bros. v. East, D.C., 8 F.2d 872, 875: "Equity looks, not at the character of the business in which the parties before the court are engaged, but at the honesty or dishonesty of their acts." Also, in the language of Justice White in the Singer Sewing Machine Company case [Singer Mfg. Co. v.June Mfg. Co.], 163 U.S. 169, 16 S. St. 1002, 1009, 41 L. Ed. 118, while *Page 240 the use of a particular name by a party was sanctioned, "he cannot resort to any artifice, or do any act calculated to mislead the public as to the identity of the business, firm or establishment, or of the articles produced by them, and thus produce injury to the other beyond that which results from the similarity of name." Weiskittel Co. v. Weiskittel Co., supra;Howe Scale Co. v. Wyckoff, Seamans Benedict, 198 U.S. 118, 25 S. Ct. 609, 49 L. Ed. 972; Bagby Rivers Co. v. Rivers,87 Md. 400, 40 A. 71; Herring-Hall-Marvin Safe Co. v. Hall's Safe Co.,208 U.S. 554, 28 S. Ct. 350, 351, 52 L. Ed. 616; Elgin Butter Co.v. Sands, 155 Ill. 127, 40 N.E. 616. Applying this test to the case at bar, and considering the undisputed facts, appellant's defense to the action fails. The conception of the idea of a corporation having the particular name that was adopted; the circumstances under which it was formed and originally set up for competing in the wholesale "bedding" business; the background and personnel of those who originated the enterprise; the advertising in the Baltimore Telephone Directory and otherwise that this new concern, Baltimore Bedding Corporation, had "39 years experience," whereas it had been in existence less than one year; the persistent refusal to modify in any way this new trade-name, after timely protest, or to make any disclaimer; the withdrawal from the corporation within four months of its formation of two of the three incorporators, Eisenberg and Snyder, and the failure to produce, without explanation, either one of them as a witness in this case, all combine to create an atmosphere of bad faith and unfair competition. In the absence of his co-founders of this enterprise, the only one who could have cleared this atmosphere was Pheterson, himself, and he was the only one offered for that purpose. That he has not only failed to do so by both the manner and substance of his testimony but, on the contrary, has further clouded the atmosphere of the case, is beyond question. *Page 241 His attempts at explaining the reason for adopting the particular name, Baltimore Bedding Corporation, are not convincing and have practically no probative value, inasmuch as he testified that either Eisenberg or Snyder, made that selection and not he, Pheterson. His own theory about it — "that people like to deal with a local concern" with a local name — is not even plausible, for the reason that none of his previous ventures had had geographical names, but had been such as "Best Grade Mattress Company" when he was in Rochester, and "Acme Mattress Company" when he first planned to do business in Baltimore. The master-mind in the corporation, Eisenberg, lawyer and business man, who knew the bedding field locally, is left exposed as the one most likely to have chosen the name now in controversy, and to have done so for reasons that do not commend themselves to a court of equity under the circumstances. If there were no other circumstance involved here than the use of the words "39 years experience," under the name Baltimore Bedding Corporation in appellant's advertising, a case of unfair competition would be made out on that point alone. It gives flavor and color to appellant's whole project and cannot be disassociated from it by anything appearing in the record, or by explanation of counsel. In the words of Nims, supra, p. 1003: "Fraudulent matter in any considerable part of the advertising media tinges the whole with that fraud upon which equity looks with disfavor." It is argued that Pheterson, who solely controlled and operated the appellant corporation after Eisenberg and Snyder had withdrawn from it, had had thirty-nine years experience in the bedding business, but Pheterson's name is not even mentioned in the advertisements in question. So far as prospective customers were concerned, they were told, in effect, that this corporation had been established in its business for thirty-nine years, and not simply that one individual connected with it may have had thirty-nine years experience as a craftsman. *Page 242 To deal with an old established house, which had built up a good reputation over a period of nearly forty years as the advertising in question implied, is quite different from dealing with an entirely new corporation which had not had time to build up any kind of a reputation, good or bad, and which was actually being operated by an individual who had only resided in Baltimore City for a comparatively short time. Yet, that is precisely the impression which this branch of its advertising by appellant was calculated to give, and is based on a statement which is both inaccurate and misleading. "False and misleading advertising is a dishonest practice, and amounts to unfair competition" which will not be countenanced by the courts. Federal Trade Commission v. Balme, 23 F.2d 615, 621; In re Northern Pigment Co., 71 F.2d 447; Wawak Co. v.Kaiser, C.C.A. (Ill.), 90 F.2d 694. The trend of modern decisions and of all legal authorities is more and more to a rigid adherence to the policy of protecting achievements in business built upon the foundation of diligence, integrity and fair dealing. "Caveat Emptor" no longer applies in the field of competitive business, but the buyer has the right to expect and demand that a dealer offering and advertising his merchandise, be candid, honest and truthful about it. Artifice, trickery, deception and all unfair and fraudulent methods, no matter what form these may take, are no longer countenanced by the courts. The broad general rule which has been developed from the era of the technical trade-mark cases to present-day operations of traders and dealers in the business world, finds direct application to those phases of unfair competition which control the decision in the case at bar. Here there is not only direct evidence of false and misleading advertisements, but there is evidence of bad faith in other particulars, notably in persisting in the use of the corporate name without modification of any kind, when, before it started operations, it had been given reason *Page 243 to believe through timely protest that its continued use of the name would probably create confusion amounting to unfair competition. This conduct in the respects noted clearly indicated wrongful intent. As stated in Nims, supra, 906, and citing Holland FurnaceCo. v. New Holland Machine Co., D.C., 24 F.2d 751, 755; "Where the name of a corporation is liable to cause confusion `the unnecessary repetition and featuring of its corporate name in its newspaper advertisements,' together with the adoption of methods similar to those of its competitior, and other unfair acts, were evidence of wrongful intent." A G. Spaulding Bros. v. A.W.Gamage, Ltd., 32 R.P.C. 273, H.L. 1915; Marshall VentilatedMattress Co. v. D'Arcy Spring Co., 280 F. 945; NationalTelephone Directory Co. v. Dawson Mfg. Co., 214 Mo. App. 683,263 S.W. 483; Masson Seeley Co., Ltd. v. Embosotype Mfg. Co., 41 R.P.C. 160; Cheney Bros. v. Gimbel Bros., D.C.N.Y., 280 F. 746; Nims, supra, 800; Bickmore Gall Cure Co. v. Karns, 134 F. 833. The law applicable here is aptly expressed in the case ofElgin Butter Co. v. Sands, supra [155 Ill. 127, 40 N.E. 618], as follows: "Even if the corporate names of the two corporations are somewhat similar, yet, in the absense of any intent, act, or artifice to mislead dealers in the market or the public at large as to the identity of the corporations, the [one company] has the same right to use its name in the transaction of its business as the [other] has to use its corporate name." The words of special significance here are "in the absence of any intent, act, or artifice to mislead." In the case at bar there is not only no absence of these elements but they are conspicuously present. It is to be noted, also, that in the telephone directory appellant's chosen name is such that it is placed directly above that of appellees under the heading of "Bedding — Manufacturing," and in its display advertisements the word "Baltimore" in appellant's name is in the same *Page 244 script form of type as that customarily used by appellees for many years. As herein elsewhere noted, appellant has added to its display advertisement the words "39 years experience." These circumstances justify the inference that the choice of names and the method of advertising were intended to trade on the name and reputation of appellees through the confusion that would be the natural consequence of such conduct. The language of the court in the case of McFell Electric Telephone Co. v. McFell Electric Co., 110 Ill. App. 182, is directly applicable. In that case, the appellant company was organized some years after appellees and took offices in the same building, and put its sign on the bulletin board of the building directly above that of the old company, so as to give the impression that they were one and the same company. The court held: "This is not open and honest competition. It has every appearance of an attempt to mislead the public and to obtain by deception the benefit of the patronage and clientage enjoyed by appellee. Courts of equity give relief against such violations of the rules of honesty and fair dealing." On the issue of confusion, it is not necessary that there be evidence of actual confusion in order to constitute unfair competition, but evidence only that the similarity of names and the method of operations thereunder, are sufficient to prove liability to deception. "To constitute unfair competition, defendant's conduct need not have actually deceived anyone into purchasing his goods in the belief that they were goods of plaintiff, but it is sufficient that such deception will be the natural and probable result of defendant's acts." Hartzler v.Goshen Churn Ladder Co., 55 Ind. App. 455, 104 N.E. 34;Gotham Silk Hosiery Co. v. Reingold, 223 A.D. 260, 228 N YS. 9; Notaseme Hosiery Co. v. Straus, 201 F. 99, C.C.A. (N.Y.); Rice Hutchins, Inc. v. Vera Shoe Co., 290 F. 124, C.C.A. (N.Y.); Afro-American Order of Owls v. Talbot,123 Md. 465, 91 A. 570; Blair's Foodland v. Shuman's Foodland, Inc.,311 Mass. 172, 40 N.E.2d 303; Nims, supra, 863. *Page 245 In the case at bar, one of the findings of fact by the chancellor was: "Instances of actual confusion were shown in the testimony and, while few in number up to the present time, tend to show that confusion is the natural consequence of the similarity of the two names." When to this finding is brought the support of evidence of some of the business methods employed by appellant in relation to these trade-names, the court sees no reason to disturb the general conclusion reached by the chancellor. The acts and conduct of appellant, as above particularized, clearly show unfair competition, as that phrase is defined by all of the authorities, so that appellees are entitled to the protection of the court against it. Hugo Stein Cloak Co. v. S.B.Stein Son, Inc., 58 Ohio App. 377, 16 N.E.2d 609. However, it is to be borne in mind that, while the law will not countenance any conduct or methods which amount to unfair competition, it operates only against competition and trading that have that characteristic. Freedom of trade and fair competition are encouraged by the law in every way, and therefore appellant's use of its corporate name should be prohibited only to the extent that it would trespass upon the good name and reputation of appellees, as built up in this particular field of business over a long period of time. Singer Mfg. Co. v. JuneMfg. Co., supra; Howe Scale Co. v. Wyckoff, Seamans Benedict,supra; Weiskittel Company v. Weiskittel Company, supra. This protection of the law to which the appellees are entitled is afforded in a reasonable manner through that portion of the chancellor's decree which prescribes, in effect, that the appellant may continue in the use of its corporate name provided, and on condition, that it adopt such form of disclaimer as will show clearly and amply absence of connection with the appellees and their business. A compliance with this decree would do substantial equity between the parties and would uphold the *Page 246 principles of fair trade to which the present policy of the law is strongly committed. As the above elements of unfair competition are conclusive of the decision in this case, it is not necessary to pass upon any of the other points raised, for they would have no controlling bearing upon it. For the reasons above stated, the granting of the injunction, with the condition attached, will be affirmed. Decree affirmed, with costs to appellees.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486041/

This is an action to recover damages for personal injuries received by Joseph Mackin, the appellee, while acting as *Page 60 Captain of a scow for the appellant, the Eyre-Shoemaker Construction Company. The record presents a number of questions arising under twelve exceptions taken to rulings of the Court upon the admissibility of evidence, and one to the action of the Court upon the twenty-six prayers which were offered by the parties at the conclusion of the testimony; but in the view which we take of this case it will be sufficient to deal with only a few of them, those involving the application of the legal principles which govern all actions of this character. At the conclusion of the entire evidence the defendant, by its first and second prayers, asked the Court to take the case from the jury, upon the ground of the lack of sufficient evidence. In this case, as in all other such cases, the foundation of the right to recover lies in some act of negligence, either of commission or omission on the part of the defendant, or its omission in the performance of some duty owed by it to the plaintiff. What then are the facts as disclosed by the record tending to show the negligence of the defendant or its failure of duty? The Construction Company was engaged in building concrete piers on Watson's Island for the Baltimore and Ohio Railroad bridge across the Susquehanna river. The materials used in construction were brought by rail to a place called Frenchtown, about one mile north of Perryville, and from there transported by scow to the Island. Mackin was employed by the Construction Company as Captain of the scow used for such transportatioan. The method of transferring the materials from the railroad to the scow was by means of a hoisting engine, which operated a derrick, and to this was attached a boom, passing over the end of the boom from the drum of the engine was a cable to which could be attached iron receptacles or buckets, into which the materials were loaded, and when so loaded the bucket was raised clear of the ground by means of the hoisting engine, swung over to the scow, lowered into the scow and unloaded. On the morning of the seventh of November, 1907, the scow *Page 61 was taken to Frenchtown. The material to be transported consisted of cement in bags, each bag weighing approximately 100 pounds. As soon as the scow was made fast to the wharf Mackin proceeded to pump out the water which had collected in the bottom. The hoisting engine, which was what is known as a Mundy engine, was located some thirty-five or forty feet from the edge of the wharf, but between the engineer who operated it and the scow there was a pile of stone sufficiently high to render it impossible for the engineer, when at his post, to see a person on the scow, or for a person on the scow to see the engineer. Accordingly there was stationed at the end of the pile of stone a signal man, whose duty it was when the bucket had been loaded at the car to give the signal to the engineer to raise and swing the bucket around until over that portion of the scow where it was desired to have the load deposited, and then by a signal to direct the lowering of the bucket and the stopping of it for the purpose of unloading. The hoisting apparatus consisted of two drums, around one of which passed the end of the cable, and thence to the top of the boom, and on to the bucket. The revolutions of this drum were controlled by means of what was called the friction, that is, a cone composed of wood specially prepared, which by means of a lever was forced into the drum when it was desired to raise or hold a load, and released when the object was to lower the load; there was also on this particular engine a foot-brake, the purpose of which was to afford a means of still further checking the revolutions of the drum. It was also in evidence that this foot break was deemed as an extra part of the engine, and not always attached since the same end could be accomplished through means of the friction. The engine was provided with a gear guard, and there was some evidence to show that this gear guard was not in place upon the morning of the accident; that, however, may be disregarded for the reason that it does not appear from the evidence that the absence of the gear guard would in any way have affected or prevented the accident. The engine stood *Page 62 and was operated in the open, without shed, covering or protection of any kind, either to the engine or any of its parts. On the morning of November 7th, the scow was towed to the Frenchtown wharf, and some half hour was consumed after its arrival there in getting up steam in the boiler before work could be begun. A bucket had been left attached to the cable the night previously, and as soon as steam was gotten up, the bucket was raised from the ground where it lay, swung over to the car, where some thirty or thirty-five bags of cement were placed in it, and then swung around to the scow. The plaintiff was at the stern end of the scow, and as the bucket approached him it suddenly dropped, and swinging too far, struck the plaintiff, throwing him to the deck, and severely injuring him. The bucket was stopped by the engineer when about one foot above the deck, with the plaintiff pinned between the bucket and the deck. Such being the salient facts it becomes pertinent to examine the evidence tending to establish negligence, and to ascertain whether such negligence was the negligence of the defendant Construction Company, or whether it was the negligence of a fellow servant. There is no question raised in the case as to the competency of the engineer. This differentiates the case at once from the case of McCall's Ferry Power Company v. Price,108 Md. 96, where the evidence showed that the superintendent of the work had knowledge that the engineer was incompetent prior to the happening of the accident. It is manifest that the place in which the plaintiff had his duties to perform was a dangerous place, inasmuch as there were required to be continually passing over the scow heavily laden buckets with loads of from 3,500 to 6,000 pounds, but this danger was open and obvious, and was, therefore, one of which the plaintiff must be treated as having assumed the risk, and for any injury resulting from danger of the place he has no claim against his employer; *Page 63 Gleason v. Suskin, 110 Md. 141; Harris v. Con. Coal Co.,111 Md. 225. The type of engine used for the work was usual and appropriate for work of this description, the same that is used by many contractors. This was fully established by the evidence and was not attempted to be controverted. The engine was not new, but had been inspected by Mr. Bowles about two days before the accident, and found to be in proper shape, and there is nothing in the evidence to suggest that Mr. Bowles was not a competent inspector, he being the man who put the engine up, and whose duty it was to keep the machinery of the defendant company in proper condition. To entitle the plaintiff to recover in an action such as this, it is not sufficient to show that the plaintiff was injured from a defect in the machinery, but he must go further and establish the fact that the injury happened because the employer did not exercise proper care in the premises. Buttner v. Steel Car Co., 101 Md. 168, 178. Nor can it be held to constitute negligence per se upon the part of the employer that the engine was run exposed to the weather. Dettering v. Levy, 114 Md. 273. The testimony in the case is not only to the effect that engines of this type frequently are so run, but that they are built for the very purpose of being so run. The fact that they are sometimes enclosed or covered over either in whole or in part, cannot make it negligence to operate them in the open, something more than this must appear. There remain, then, three possible matters upon which negligence may be predicated, (1) the fact that the gear-guard was missing, and (2) that the foot-brake did not work, and (3) that by reason of a rain the night previous the friction was wet, and slipped or failed to hold. With regard to the first of these, the fact that the gear guard was missing was disclosed in the testimony of Blose, the engineer; but he further testified "the gear-guard being off had nothing particular to do with the working of the engine," and the purpose of the gear-guard is explained in *Page 64 the evidence of the witness Higgins, who was employed by the Mundy Co., which manufactured the engine and his evidence is to the effect that when the machinery "is idle the part of the friction that is used that goes into the cone is covered by the gear-guard." There is nothing, therefore, to show that the absence of the gear-guard on this particular engine had anything to do with the occurrence of the accident. (2) The engineer Blose testified that the foot-brake wouldn't work on the first day when he tried it on loads, and that he "at once reported it to Mr. Bowes, who said he knew it wouldn't work, but no one repaired it." But the same witness further testified that at this time he did not apply the foot-brake at all, and be gives as his reason for not having attempted to apply it that "you can't depend on that at all;" the evidence of the defendant showed conclusively that the brake was not deemed an integral part of the machine, but always an extra; that the control of the revolutions of the drum was had through the lever applied to the friction, and the other witnesses in the case corroborate this testimony, and it cannot be held to be negligence upon the part of an employer, where the servant does not even attempt to avail himself of the machinery and appliances provided for the greater safety of the employees, and the negligence, if negligence it was, upon the part of Blose in not applying the footbrake, was the negligence of a fellow servant of the plaintiff, and for that there can of course be no recovery as against the employer. (3) The alleged negligence chiefly relied upon by the plaintiff consists of testimony tending to show that by reason of a rain the night previous, and a fog that morning the friction had become wet, and because of this condition slipped in the drum. The effect of this slipping, it was testified, would be to permit the drum to revolve more rapidly and then allow the cable and bucket attached to it to descend faster than when under the full control of the friction. The defendant offered evidence of a contradictory nature. There *Page 65 was also testimony, uncontradicted, that there had been no slip of the friction when the bucket was first picked up that morning, or when after the cement had been placed in the bucket it was raised and swung over to where the scow lay. After the accident the bucket was raised some ten feet in the air, and held there by use of the friction for several minutes, and the engine continued to be operated in like manner for the balance of the day. The only time when any slip of the friction is claimed to have occurred on this day was the one time when the plaintiff was injured. But before passing on the effect of the testimony given on behalf of the plaintiff to sustain the alleged slipping of the friction, there was another matter taking place at the same time which must be considered. This is an uncontradicted act of negligence which might have occasioned the accident equally with the slipping of the friction. As already stated, Blose, the engineer, could not from his position see a person on the deck of the scow, and, therefore, a signal man, Jacus, had been placed in a position where he could see both the engineer and the deck of the scow, and direct the movements of the engineer. Blose testified that after he had started the load from the car platform and swung it around "I eased the friction a little bit to cause the load to come down when I thought it was in the right position," and again, "Q. You didn't wait to get the signal from Mr. Jacus, but you undertook to lower it yourself? A. I used by own judgment." He further testified, that he was looking at the boom and that he did not know whether Jacus gave him any signal to lower the bucket or not. Mr. Jacus in his testimony testifies positively that he did not give any signal; that after the load had been swung around he turned towards the engineer for the purpose of giving such a signal, and then discovered that the engineer had already begun to lower, and continued to lower until Jacus observing the possible peril of the plaintiff, and that Blose, the engineer, was not paying attention to his signal, called to him to "hold it." The action of the engineer in lowering this load without signal from the man *Page 66 whose duty it was to give the signal, who had been placed there by the Construction Company for that purpose, was itself clearly an act of negligence, and it was the act of negligence of a fellow servant. In this condition, we have an accident which may have resulted from either one of two causes; one for which the defendant might be responsible, the other for which it could not be held responsible, and in such a case the rule of law is that laid down by CHIEF JUDGE McSHERRY, in Harford County v. Wise,75 Md. 38, and re-affirmed in Baltimore v. Schnitker,84 Md. 34 and Darby Co. v. Hoffberger, 111 Md. 84, "that where the evidence tends equally to support either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. A verdict in favor of the party bound to maintain one of those propositions against the other is necessarily wrong." It therefore follows that there was error in the rejection of the first prayer of the defendant. The prayers of the defendant numbered 1 1/2, 2 1/4 and 2 1/2, all deal in varying phraseology with the doctrine of contributory negligence, and were all refused; but they may be properly considered together. To determine the question of contributory negligence in such a case, it must first be clearly understood what was the duty or obligation resting upon the plaintiff who was performing his duty in a manifestly dangerous place, and that duty has been tersely stated in McGee v. Cuyler, 112 Md. 321, as follows: "It is the duty of the servant to exercise care to avoid injury to himself; he is under as great obligation to provide for his own safety from such dangers as are known to him, or are discernible by ordinary care upon his part, as the master is to provide for him. He must take ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly to his work where there is danger, he must inform himself; this is the law everywhere." The evidence is uncontradicted that as the loaded bucket was swung from the shore over the scow at the end of the *Page 67 cable passing over the boom, it had, either as the result of its momentum or by reason of the wind, an oscillation of its own which at times was as great as four feet; this fact was in itself an added element of danger for protection against which it was obligatory upon the plaintiff to be on his guard. What was the plaintiff doing to fulfill this obligation? According to his own testimony he was not looking at the bucket, but was standing looking out over the water, and he further testified that he paid no "attention to see which way the `high-ball' (signal) man or the engineer was sending the bucket," and in this evidence he is corroborated by the witness Martin F. Abbott, a deck hand on the tug which was lying alongside of the scow; who testified that the plaintiff "was facing kinder catercorner, it looked to me like he was facing about the draw of the Pennsylvania Railroad bridge." This is the testimony on behalf of the plaintiff, and it shows the plaintiff to have failed in the exercise of the ordinary care required of him. One of the other witnesses, Jacus, placed him in a somewhat different position, that of attempting with his hands to direct the descent of the bucket, yet since that was no part of his duty, in either event the plaintiff was not fulfilling the obligation which rested on him to provide for his own safety, and was therefore guilty of contributory negligence, and the defendant's prayer No. 2 1/4 should have been granted. In the ruling upon the prayers the Court granted the 4th prayer of the plaintiff, which was as follows: "That what is due care in furnishing machinery must be measured by the character and risk and exposures of the business and the degree of care required is higher where life or limb is in danger than in other cases." The 10th prayer of the defendant was also granted as follows: "The jury are instructed that in furnishing a hoisting machine for the work on the Frenchtown wharf and a place for its employees to do the work the defendant was not required to use the highest degree of care; but to use only ordinary or reasonable care to furnish its employees with a reasonably safe and suitable *Page 68 machine and a reasonably safe and suitable place." By this last prayer the jury were instructed as to the measure of care which the plaintiff was entitled to receive from the defendant, and that it was "ordinary or reasonable care"; the fourth prayer of the plaintiff while very general in its terms, indicates to the jury that the plaintiff was entitled at the hands of the defendant under the circumstances in which he was employed to a "higher" degree of care. Higher than what, is not stated, but the conclusion is inevitable that it was a degree of care higher than ordinary care; the two instructions were therefore inconsistent with one another, and the granting of both must inevitably have tended to confuse the jury as to the measure or extent of care which the plaintiff was entitled to receive from the defendant. The granting of these two inconsistent instructions, therefore, was prejudicial error. In view of what has been said it is unnecessary to discuss the other questions raised by the exceptions in this case, and for the reasons indicated the judgment below will be reversed without a new trial. Judgment reversed without a new trial; costs to theappellant. *Page 69

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4030723/

[Cite as State v. Barrie, 2016-Ohio-5640.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 15AP-848 v. : (C.P.C. No. 14CR-2289) Alimu Barrie, : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on September 1, 2016 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee. On brief: Thompson Steward Flecha, LLC, and Lisa F. Thompson, for appellant. APPEAL from the Franklin County Court of Common Pleas DORRIAN, P.J. {¶ 1} Defendant-appellant, Alimu Barrie, appeals the judgment of the Franklin County Court of Common Pleas convicting him and imposing sentence following a jury trial. For the following reasons, we affirm the judgment of the trial court. I. Facts and Procedural History {¶ 2} On November 7, 2013, A.R. was working as a housekeeper at the Renaissance Hotel in Columbus. The hotel assigned two housekeepers to each floor, who worked independently to clean rooms in different parts of the floor. Furthermore, it was customary for the hotel to assign a person, whom A.R. described as a "houseman," to remove the used linens before a housekeeper arrived to clean the room and make the bed. (Tr. Vol. III at 46.) {¶ 3} According to A.R., on November 7, 2013, at approximately 10:00 a.m., she entered room 927 and found that a houseman had not removed the linens from the bed. No. 15AP-848 2 As she prepared to clean the room, appellant, who was working as a houseman at the hotel, entered the room. A.R. asked appellant to strip the bed, but instead he began to inappropriately touch her. {¶ 4} Specifically, A.R. stated that appellant approached her from behind while she was at the bed and grabbed her buttocks with both hands. A.R. stated that appellant's actions made her feel "uncomfortable" because she "didn't know what he was going to do. I didn't know if he was going to rape me or pull my pants down or anything like that." (Tr. Vol. III at 49.) A.R. pushed appellant away, but he continued to force himself on her. A.R. stated that appellant rubbed his genitals against her buttocks, grabbed her neck with his right arm, and then grabbed her breasts with both hands. Additionally, appellant told A.R. to "[s]uck his dick" and that "he wanted to fuck [her]." (Tr. Vol. III at 48.) {¶ 5} After appellant touched her breasts, A.R. turned around, pushed appellant away, and told him to leave her alone. Appellant then left the room. A.R. stated that she did not scream for help because she was afraid that "[i]f I yelled * * * he was going to do something." (Tr. Vol. III at 52.) A.R. clarified that she was afraid appellant would rape her. Once appellant exited the room, A.R. stated she did not report the incident because she was "still scared"; instead, she resumed cleaning the room. (Tr. Vol. III at 53.) A.R. stated that she resumed cleaning because she "wanted to try to get my mind off of it and try to go on in my day." (Tr. Vol. III at 55.) {¶ 6} Approximately 10 to 15 minutes later, appellant re-entered the room and resumed inappropriately touching A.R. According to A.R., this second incident lasted between 5 to 10 minutes. A.R. explained that the incident lasted for that period of time because appellant "kept on touching me and wouldn't leave me alone. And I had to keep on pushing him away and he kept on forcing his self on me." (Tr. Vol. III at 67.) A.R. agreed that appellant's attempts to touch her were "persistent" and "went on and on for a while." (Tr. Vol. III at 67.) Appellant attempted to touch her "front private part" with his hands and stated that he "wanted to fuck [her] pussy," but she pushed him away and told him to leave her alone. (Tr. Vol. III at 55, 56.) Appellant then exited the room. {¶ 7} Once appellant left the room for the second time, A.R. told the other housekeeper on the floor what had happened. A.R. then told her immediate supervisor, who reported the incident to Teri Fornshell, a manager of the laundry and housekeeping operations. After she reported the incident to her supervisors, A.R. resumed working for the remainder of her shift. When asked why she did not leave for the day, A.R. stated that No. 15AP-848 3 she "wanted to finish my work [in order to] [t]ry to get my mind off of things on what had happened. I didn't want to give up." (Tr. Vol. III at 59.) {¶ 8} On November 7, 2013, Fornshell was in a meeting when she received a call from a housekeeping supervisor indicating that there was an emergency requiring her attention. Fornshell exited the meeting and went to the housekeeping offices where she found A.R., who was visibly upset. A.R. told Fornshell that appellant had inappropriately touched her buttocks and "showed her his male parts through his pants." (Tr. Vol. III at 80.) Fornshell later met with appellant, who was cooperative and denied that the incident occurred. After talking to A.R., Fornshell reported the incident to the hotel's human resources department. {¶ 9} On May 1, 2014, a Franklin County Grand Jury filed an indictment charging appellant with two counts of gross sexual imposition, in violation of R.C. 2907.05, both felonies of the fourth degree. {¶ 10} On July 13, 2015, the case proceeded to trial. On the same date, the trial court filed an entry appointing Fatim Dabo as foreign language interpreter in the proceedings; the court also filed a second document signed by Dabo reflecting the oath she swore regarding her duties before the court. On July 14, 2015, the jury returned a verdict of guilty on both counts of the indictment. {¶ 11} On September 3, 2015, the trial court held a sentencing hearing. On the same date, the trial court filed an entry appointing Fatmata Berete as foreign language interpreter in the proceedings; the court also filed a second document signed by Berete reflecting the oath that was sworn regarding the interpreter's duties before the court. At the sentencing hearing, the trial court imposed a sentence of 16 months on each count of gross sexual imposition, to be served concurrently. The trial court also imposed a 5-year period of postrelease control and classified appellant as a Tier I sexual offender. On October 6, 2015, the trial court filed a judgment entry reflecting appellant's conviction and sentence. II. Assignments of Error {¶ 12} Appellant appeals and assigns the following four assignments of error for our review: [I.] The trial court violated Alimu Barrie's rights to due process and a fair trial when it entered a judgment of guilt against him, when that finding was not supported by sufficient evidence. Fifth and Fourteenth Amendments to the No. 15AP-848 4 United States Constitution and Section 16, Article I of the Ohio Constitution. [II.] The trial court violated Alimu Barrie's rights to due process and a fair trial when it entered a judgment of guilt against him, when that finding was against the manifest weight of the evidence. Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution. [III.] The trial court violated Alimu Barrie's rights to due process, confrontation of witnesses, and a fair trial when it permitted uncertified and unqualified interpreter to interpret for Mr. Barrie during the legal proceedings against him. Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Sections 10 and 16, Article I of the Ohio Constitution; Evid.R. 604 and 702. [IV.] Alimu Barrie's attorney provided him with the ineffective assistance of counsel and violated his rights to due process and a fair trial where defense counsel failed to object to the court's appointment of uncertified and unqualified interpreters. Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution. As appellant's first and second assignments of error are interrelated, we address them together. III. Discussion A. First and Second Assignments of Error—Manifest Weight and Sufficiency {¶ 13} In his first and second assignments of error, appellant asserts that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. {¶ 14} Sufficiency of evidence is a "legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When judging the sufficiency of the evidence to support a criminal conviction, an appellate court must decide if, "after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Where the evidence, "if believed, would convince the average mind of No. 15AP-848 5 the defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction. Id. {¶ 15} "While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence's effect of inducing belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25. See also Thompkins at 387 ("Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence."). An appellate court must review the entire record, weighing the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). This authority " 'should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.' " Id., quoting Martin at 175. Thus, although an appellate court acts as a "thirteenth juror" in considering the weight of the evidence, it must give great deference to the factfinder's determination of witness credibility. State v. Spires, 10th Dist. No. 10AP-861, 2011-Ohio- 3312, ¶ 18, citing State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037, ¶ 22. {¶ 16} We first consider whether appellant's convictions were supported by sufficient evidence. R.C. 2907.05 provides in pertinent part that "[n]o person shall have sexual contact with another, not the spouse of the offender * * * when any of the following applies: (1) The offender purposely compels the other person * * * to submit by force or threat of force." "Sexual contact" is defined as "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B). R.C. 2901.22(A) defines the mens rea of purpose: "A person acts purposely when it is the person's specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender's specific intention to engage in conduct of that nature." {¶ 17} Appellant contends that plaintiff-appellee, State of Ohio, failed to establish an essential element of the crimes of which he was convicted. Specifically, appellant No. 15AP-848 6 contends that "the evidence presented was inadequate to prove that Appellant touched [A.R.'s] erogenous zones for the purpose of sexually arousing or gratifying either person." (Appellant's Brief at 8.) {¶ 18} "[P]roof of sexual gratification generally must be accomplished by inference rather than by direct evidence." State v. West, 10th Dist. No. 06AP-111, 2006-Ohio-6259, ¶ 17. See also State v. Kring, 10th Dist. No. 07AP-610, 2008-Ohio-3290, ¶ 37 ("While there must be some evidence of sexual gratification as the purpose for touching a described area, there is no requirement that there be direct testimony as to sexual arousal or gratification."). The trier of fact may infer a purpose of sexual arousal or gratification from the type, nature, and circumstances of the contact, among other relevant factors. State v. Crosky, 10th Dist. No. 06AP-655, 2008-Ohio-145, ¶ 47, citing West at ¶ 17; Kring at ¶ 35. {¶ 19} Here, A.R. testified that appellant touched her buttocks and breasts, both of which are included in the list of erogenous zones under R.C. 2907.01, thereby supporting the two counts of gross sexual imposition as charged. Both the manner in which appellant touched A.R. and his comments to her demonstrate that appellant touched A.R. for the purpose of sexual arousal or gratification. Crosky at ¶ 47; West at ¶ 17; Kring at ¶ 37. Therefore, viewing the evidence in a light most favorable to the state, we find that a rational trier of fact could have found the essential elements of appellant's crimes proven beyond a reasonable doubt. {¶ 20} We next examine appellant's contentions with regard to the manifest weight of the evidence. Specifically, appellant contends that A.R. was not credible or that her account was inconsistent because: (1) the other housekeeper on the floor did not testify and Fornshell did not witness the incidents in question; (2) A.R. resumed cleaning the room after the first incident in which appellant touched her; (3) A.R. did not tell the other housekeeper on the floor after the first incident; and (4) it was implausible that the second incident lasted five to ten minutes, as A.R. stated, because that "is an extremely long time to fight off an attacker in a hotel room with an open door." (Appellant's Brief at 12-13.) {¶ 21} First, it is immaterial that A.R. was the only witness to the incidents in question. "The testimony of a single witness, if believed by the finder of fact, is sufficient to support a criminal conviction." State v. Booker, 10th Dist. No. 15AP-42, 2015-Ohio- 5118, ¶ 18, citing State v. Elqatto, 10th Dist. No. 11AP-914, 2012-Ohio-4303, ¶ 20. No. 15AP-848 7 {¶ 22} Next, we disagree that A.R.'s testimony was inherently incredible or otherwise unworthy of belief. However, even if we found that portions of A.R.'s testimony were inconsistent, " '[a] defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial.' " State v. Jackson, 10th Dist. No. 14AP-670, 2015-Ohio-3322, ¶ 17, quoting State v. Chandler, 10th Dist. No. 05AP-415, 2006-Ohio-2070, ¶ 9, citing State v. Raver, 10th Dist. No. 02AP-604, 2003- Ohio-958, ¶ 21. See also State v. Taylor, 10th Dist. No. 14AP-254, 2015-Ohio-2490, ¶ 34, citing State v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 29. A jury may take into consideration a witness's conflicting testimony in determining his or her credibility and the persuasiveness of his or her account by either discounting or resolving the discrepancies. Jackson at ¶ 17, citing Taylor at ¶ 34. "A jury, as finder of fact, may believe all, part, or none of a witness's testimony." Taylor at ¶ 34. See also Booker at ¶ 18, citing State v. Sullivan, 10th Dist. No. 11AP-414, 2012-Ohio-2737, ¶ 37. Furthermore, not all inconsistent testimony raises serious questions about credibility. Jackson at ¶ 17, citing Taylor at ¶ 34. {¶ 23} Here, nothing in A.R.'s account raises serious questions regarding her credibility. Appellant, through his trial counsel, had the opportunity to cross-examine A.R. regarding her account of the incidents. A.R. addressed why she resumed cleaning and did not immediately report the first incident to the other housekeeper or her supervisor; she also explained how the second incident could have lasted for the amount of time she claimed. It was within the province of the jury, as trier of fact, to determine whether or not to believe A.R.'s testimony. Therefore, weighing the evidence and all reasonable inferences, and considering the credibility of the witnesses, we cannot find that the jury, in resolving conflicts in the evidence, clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. {¶ 24} Accordingly, we overrule appellant's first and second assignments of error. B. Third Assignment of Error—Interpreter {¶ 25} In his third assignment of error, appellant asserts the trial court erred by appointing unqualified interpreters both at trial and sentencing. 1. Applicable Law and Rules {¶ 26} R.C. 2311.14(A) provides that "[w]henever because of a hearing, speech, or other impairment a party to or witness in a legal proceeding cannot readily understand or No. 15AP-848 8 communicate, the court shall appoint a qualified interpreter to assist such person." R.C. 2311.14(B) provides in pertinent part that "[b]efore entering upon official duties, the interpreter shall take an oath that the interpreter will make a true interpretation of the proceedings to the party or witness, and that the interpreter will truly repeat the statements made by such party or witness to the court, to the best of the interpreter's ability." {¶ 27} Evid.R. 604, pertaining to interpreters, states that "[a]n interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation." With respect to the oath or affirmation, Evid.R. 603 provides that "[b]efore testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so." Evid.R. 702, relating to the qualification of experts, provides in relevant part as follows: A witness may testify as an expert if all of the following apply: (A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony[.] {¶ 28} The Supreme Court of Ohio Rules of Superintendence contain provisions related to the appointment of a foreign language interpreter. Sup.R. 88(A) provides: A court shall appoint a foreign language interpreter in a case or court function in either of the following situations: (1) A party or witness who is limited English proficient or non-English speaking requests a foreign language interpreter and the court determines the services of the interpreter are necessary for the meaningful participation of the party or witness; (2) Absent a request from a party or witness for a foreign language interpreter, the court concludes the party or witness is limited English proficient or non-English speaking and determines the services of the interpreter are necessary for the meaningful participation of the party or witness. No. 15AP-848 9 {¶ 29} When appointing an interpreter as required by Sup.R. 88(A), a court is required to appoint an interpreter in accordance with the requirements of Sup.R. 88(D). Sup.R. 88(D) provides in declining order of requirements a list of the types of interpreters that a court shall appoint. First, Sup.R. 88(D)(1) provides that "a court shall appoint a Supreme Court certified foreign language interpreter to participate in-person at the case or court function" subject to the exceptions in Sup.R. 88(D)(2) through (4). (Emphasis added.) Second, if a certified foreign language interpreter "does not exist or is not reasonably available to participate in-person at the case or court function and after considering the gravity of the proceedings and whether the matter could be rescheduled to obtain a Supreme Court certified foreign language interpreter * * *, a court may appoint a provisionally qualified foreign language interpreter." (Emphasis added.) Sup.R. 88(D)(2). Third, if a certified or provisionally qualified foreign language interpreter does not exist or is not reasonably available to participate in-person, "after considering the gravity of the proceedings and whether the matter could be rescheduled to obtain" a certified or provisionally qualified foreign language interpreter, "a court may appoint a foreign language interpreter who demonstrates to the court proficiency in the target language and sufficient preparation to properly interpret the proceedings." Sup.R. 88(D)(3). An interpreter appointed by the court under Sup.R. 88(D)(3) "shall be styled a 'language-skilled foreign language interpreter.' " (Emphasis added.) Sup.R. 88(D)(3). Finally, if a certified, provisionally qualified, or language-skilled foreign language interpreter does not exist or is not reasonably available to participate in-person, a court may appoint an interpreter to participate in the case through telephonic interpretation. Sup.R. 88(D)(4). {¶ 30} This court has previously provided guidance regarding interpretation in a court proceeding. State v. Newcomb, 10th Dist. No. 03AP-404, 2004-Ohio-4099, ¶ 29. First, we have stated that "[i]n addition to the execution of a written oath by the interpreter, which should occur prior to the hearing, and subsequent filing with the trial court, the administration of the oath by the trial court to the interpreter should be reflected in the transcript prior to the commencement of the hearing." Id. Second, a "trial court should confirm the interpreter's qualifications and, if necessary, qualify the interpreter as an expert witness." Id. Finally, "the transcript should reflect when the interpreter is interpreting to the defendant and when the defendant is conversing with the interpreter. The record should reflect [that] all statements made during the hearing were No. 15AP-848 10 properly conveyed to the defendant by the interpreter and that the defendant's responses to the interpreter were conveyed to the court." Id. 2. Standard of Review {¶ 31} Both at trial and the sentencing hearing, no objection was raised as to the qualifications of the interpreter, the usage of a language-skilled interpreter instead of a certified or provisionally qualified interpreter, or to the ability of the interpreter to effectively interact with appellant. Accordingly, we apply a plain error standard of review. State v. Noor, 10th Dist. No. 13AP-165, 2014-Ohio-3397, ¶ 72, citing State v. McDowall, 10th Dist. No. 09AP-443, 2009-Ohio-6902, ¶ 26. {¶ 32} Plain error under Crim.R. 52(B) consists of an obvious error or defect in the trial proceedings that affects a substantial right. State v. Lindsey, 87 Ohio St.3d 479, 482 (2000). In order to demonstrate plain error, the defendant must show: (1) an error that is plain on the record, i.e., a deviation from a legal rule that constitutes an obvious defect in the trial proceedings; and (2) that such error affected substantial rights, i.e., there was a reasonable probability that the error affected the outcome of the trial. State v. J.M., 10th Dist. No. 14AP-621, 2015-Ohio-5574, ¶ 27, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22. However, even if a defendant meets the requirements for demonstrating plain error, "an appellate court is not required to correct it," because courts are to "notice plain error with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." (Emphasis omitted; internal quotation marks omitted.) Rogers at ¶ 23. See also State v. Barnes, 94 Ohio St.3d 21, 27 (2002). 3. Foreign Language Interpretation at Trial {¶ 33} We first examine appellant's contentions with regard to the interpreter at trial. It is undisputed that, at trial, the trial court did not appoint a certified or provisionally qualified interpreter, but, rather, appointed a language-skilled interpreter. Pursuant to Sup.R. 88(D)(3), when appointing a language-skilled interpreter, the court is required to "summarize on the record" its efforts to obtain a certified or provisionally qualified foreign language interpreter, in addition to "the reasons for using a language- skilled foreign language interpreter." Furthermore, "[t]he language-skilled foreign language interpreter's experience, knowledge, and training should be stated on the record" and "[e]ach language-skilled foreign language interpreter shall take an oath or affirmation under which the interpreter affirms to know, understand, and act according to No. 15AP-848 11 the 'Code of Professional Conduct for Court Interpreters and Translators' as set forth in Appendix H to [the Rules of Superintendence]." Sup.R. 88(D)(3). {¶ 34} On July 13, 2015, the first day of trial, the trial court addressed the interpreter's qualifications and detailed the process utilized to obtain the interpreter: Interpreter, Fatima Dabo, having been heretofore duly sworn, translated the proceedings on behalf of the Court. *** [Appellant's Counsel]: Your Honor, I would like to have the translator explain to my client that she took the oath, which means to accurately interpret. [The Court]: Ms. Dabo, it's important that you repeat everything that's being said in the courtroom. *** [The Court]: All right. Ms. Dabo, okay, it's extremely important, okay, that everything that's being said in the courtroom, whether it's by me, whether it's by the attorneys and ultimately when we get to the jurors talking, okay, that you repeat everything that's being said in the mic so that [appellant] can hear. Because there were periods of time that I was talking and I didn't hear you. If you're having difficulty hearing me in any way or if I'm saying something that you don't understand, please, get my attention. [Ms. Dabo]: Okay. [The Court]: I'll stop, I'll repeat it, I'll rephrase it. If anyone else in the courtroom is talking and you're having difficulty hearing them, it's important that you let me know as well, and, again, I'll ask that person to talk up so that you can hear. But the only way that you can interpret accurately is interpreting at the time that someone is talking. Because if you're waiting until that person gets finished and then you try to, what you're going to end up doing is summarizing what was being said as opposed to interpreting directly what's being said at the time that it's being said. Okay. If you have any questions, please, just stop me and let me know. If there's any confusion it's important that you let me know as well. Okay. But everything that's being said in the courtroom must be interpreted. No. 15AP-848 12 So I want you to ask, [appellant], sir, if you have any difficulty understanding what's going on, okay, please get the attention of your attorney * * *. Do you understand, sir? [Ms. Dabo]: Yes, he does. [The Court]: Now, it's important that everything I say, it's important that everything that I say is repeated to [appellant]. Even that. Okay? [Ms. Dabo]: Okay. Yes. [The Court]: We are scheduled for trial today. The Court became aware of the need for an interpreter, I believe, it was November -- October, November, 2014. At that time, the Court worked through the administrative assistant to the court administrator, Sheila Brown, in an effort to obtain an interpreter. First, we had attempted to get an interpreter through, I believe, it was Language Line. Language Line had indicated to the Court that they were not servicing Krio at this time. And there's an email from * * * Language Line on December 10, 2014. Not being able to obtain an interpreter through Language Line, Sheila Brown contacted Bruno Romero at the Supreme Court. Mr. Romero was able to get us in contact with someone that we could use through a phone conference. And as counsel recalls, we had used an interpreter by the name of John Abeh Fontengwan * * * and we used him for a phone conference. He was with an agency called Cross Thread Solutions. It's either out of Solon, Ohio; but their main office may have been in Baltimore, Maryland. But we used his services for one of the hearings. Realizing that using the interpreter through a phone conference, while adequate for court hearing, would not be adequate either for a plea hearing or a trial. So I again got into contact with Sheila Brown who then got into contact with Bruno Romero with the Supreme Court. Mr. Romero checked once again to see if there were any interpreters for Krio, and he checked his sources. So January 21st, he had provided us names of interpreters, [an interpreter] out of Maryland; [an interpreter] out of Colorado Springs, Colorado; [an interpreter] out of New York; No. 15AP-848 13 [an interpreter] out of St. Paul, Minnesota; and [an interpreter] out of New York, New York. So the Court was trying to figure out at that time what cost potentially would be involved in having to bring someone out for trial. Bruno Romero with the Supreme Court then got back in contact with the Court indicating that he had made contact with a company out of Cincinnati and the owner was Mr. Ibrahim Amidou. Mr. Amidou was one of their certification candidates through the Supreme Court. Mr. Amidou provided the interpreters that we have been using. Now, the interpreters, Ms. Dabo is not a certified interpreter. The Court has had an opportunity to talk with her this morning, had her review the training video from the Supreme Court on expectations for interpreting and we discussed matters such as the confidential nature of conversations between the attorney and client, discussed the importance of her not interjecting her opinion, talked about the importance of not summarizing, and not providing advice; that her role is simply to repeat everything that's being said in court. The Court does have some concerns, obviously with Ms. Dabo's lack of experience with the legal aspects of interpreting. But based upon the efforts that the Court has made trying to obtain an interpreter that's available to be here for trial, the Court is, at least at this point, willing to move forward with trial using the services of Ms. Dabo. But the Court will be vigilant and ask that counsel, likewise, if they have any issues or concerns to stop the proceedings so that we can address those concerns. *** [Prosecutor]: Thank you, Judge. Are you saying that there is not a reasonably available certified foreign language interpreter nor a reasonably available provisionally qualified foreign language interpreter; but that Ms. Dabo is a language skilled foreign language interpreter? [The Court]: Correct. *** [Prosecutor]: Judge, do we need to qualify this interpreter? No. 15AP-848 14 The state's willing to stipulate that she is qualified. I don't know what [appellant's counsel's] thoughts are. I think that's a formality that we have to address. [The Court]: All right. Ms. Dabo, I mean, we did talk briefly in the back. And is it correct this is your first time doing legal interpretation? [Ms. Dabo]: Yes. [The Court]: What is your native language? [Ms. Dabo]: I was born in Sierra Leone. Krio is the native language everybody speaks growing up. *** [The Court]: Okay. And so that's where you learned to speak Krio then? [Ms. Dabo]: Yes. [The Court]: Then how did you learn English? [Ms. Dabo]: It's an English school and when outside of school you can either speak English or Krio. My native background, educational background is in English. [The Court]: Okay. So what is your educational background? [Ms. Dabo]: My educational background, I've been to a few colleges. I haven't graduated yet. I want to do business administration and I did some computer networking and human resources classes. [The Court]: In what settings have you interpreted in the past? [Ms. Dabo]: In business settings, like in purchasing something from the school. [The Court]: Okay. Now, are you related in any way with any of the participants in this case? [Ms. Dabo]: No. [The Court]: Do you know [appellant] at all? [Ms. Dabo]: No. Today is the first day I saw him. No. 15AP-848 15 [The Court]: Okay. And at least based upon what you know, not familiar with any of his relatives or anything like that? [Ms. Dabo]: No. *** [The Court]: All right. As we are moving through the trial and if it appears that you are familiar with any of the participants, please, let me know. Now, do you understand that you are to be a neutral party here to facilitate communication? [Ms. Dabo]: Yes. [The Court]: And that you should not offer advice or interject your opinion into these proceedings? [Ms. Dabo]: Yes. [The Court]: You understand that? [Ms. Dabo]: Yeah. [The Court]: What training have you done, if any, with regard to interpreting in the past? [Ms. Dabo]: Nothing. [The Court]: How have you worked with Mr. Amidou? [Ms. Dabo]: I just came to introduce myself that I would be taking over for the person and then I came in and talked. [The Court]: You're familiar with Mr. Amidou's company or was it just -- [Ms. Dabo]: Yeah. I am familiar with the company Language International as far as what they do. [The Court]: Okay. All right. I'm going to qualify you as an interpreter. I mean, we understand, again, some of the limitations that we have in these proceedings. But I think it's very important that you stop us if there's something that you do not understand; that you'd be willing to ask us questions if you need something restated or repeated; and then, again, just making sure that you're interpreting everything that's being said without interjecting your opinion without summarizing or without providing advice. No. 15AP-848 16 [Ms. Dabo]: Correct. [The Court]: Okay. So on behalf of the State then? [Prosecutor]: Does [appellant's counsel] have any objections to this interpreter being qualified? [Appellant's counsel]: No, Your Honor. What I'd like to do, just briefly, since we are on the record is ask my client, are you able to understand the translator, the interpreter? [Ms. Dabo]: Yes. [Appellant's Counsel]: Do you have any difficulties today? [The Court]: You have to say yes or no. [Ms. Dabo]: You can say yes or no. [Appellant]: Yes. Yes. [Ms. Dabo]: Do you have any difficulty right now? [Appellant]: No. No. [The Court]: It's my understand, at least having a conversation this morning, is that there is some, I guess, part of Krio that is English as well. [Ms. Dabo]: Yes. It's like a broken English. [The Court]: Okay. All right. So with regard to the interpreter, anything else that we need to place on the record on behalf of either party? [Prosecutor]: No. [Appellant's counsel]: No. (July 13, 2015 Tr. at 3-16.) {¶ 35} On July 13, 2015, the trial court filed a document titled "Oath" which was signed by the interpreter and stated: "I do solemnly swear that I will make a true interpretation of the proceedings to the party or witness, and that I will truly repeat the statements made by such party or witness to the Court, to the best of my ability." Additionally, the transcript reflects that the interpreter was sworn before the court. Here, both the signed statement by the interpreter and the transcript of proceedings before the No. 15AP-848 17 court reflect that Dabo was sworn as an interpreter. Additionally, appellant's counsel asked the court to instruct the interpreter to explain to appellant that "she took the oath, which means to accurately interpret." (July 13, 2015 Tr. at 3.) {¶ 36} Appellant first contends that the trial court erred in appointing Dabo as his interpreter because the trial court did not qualify her as an expert witness in contravention of this court's holding in Newcomb. However, in Newcomb, we stated that "[t]he failure to object in the trial court results in a waiver of the requirements to administer an oath to the interpreter and to qualify the interpreter as an expert witness." Id. at ¶ 22. Furthermore, we stated that "the alleged failure to qualify the interpreter as an expert witness does not constitute plain error" because "[t]here is no evidence which indicates the interpreter was not qualified to interpret." Id. at ¶ 25. Therefore, we concluded that "the fact the interpreter was not qualified as an expert witness does not undermine or call into question the fairness, integrity, or public reputation of appellant's plea." Id. {¶ 37} Here, as in Newcomb, there is no evidence that the interpreter was not qualified to interpret. Although appellant notes the trial court "had to instruct [the interpreter] several times before the trial began to interpret literally and not to summarize," appellant fails to demonstrate with reference to the record that the interpreter was not qualified to interpret or was inaccurately interpreting. (Appellant's Brief at 18.) Furthermore, the trial court conducted a lengthy colloquy with the interpreter on the record, inquiring into subjects including the interpreter's educational background, familiarity with the subject language, and experience interpreting, among others. Thereafter, the trial court qualified Dabo as an interpreter. The trial court cautioned the interpreter that "it's very important that you stop us if there's something that you do not understand; that you'd be willing to ask us questions if you need something restated or repeated; and then, again, just making sure that you're interpreting everything that's being said without interjecting your opinion without summarizing or without providing advice." (July 13, 2015 Tr. at 14.) {¶ 38} The trial court specifically asked appellant's counsel whether there was any objection to the qualification of the interpreter. Appellant's counsel did not object at that time or at any other time during the proceedings. We do not find any error. However, assuming, arguendo, there was error, appellant cannot show that any alleged error related No. 15AP-848 18 to the trial court's qualification of the interpreter affected the outcome of the trial. Appellant fails to demonstrate plain error. {¶ 39} Next, appellant contends that the trial court should have delayed appellant's trial "until a certified translator could be found." (Appellant's Brief at 22.) However, neither R.C. 2311.14 nor the Rules of Superintendence require that a court continue a trial until a certified interpreter can be appointed. Indeed, as we have previously stated, the Rules of Superintendence specifically allow for the appointment of a language skilled interpreter when the trial court ascertains that a certified or provisionally qualified foreign language interpreter is "not reasonably available to participate in person." Sup.R. 88(D)(3). Here, the trial court detailed its efforts to obtain a certified interpreter, including seeking the assistance of the Supreme Court. Appellant has failed to demonstrate plain error resulting from the trial court's usage of a language-skilled interpreter. {¶ 40} Accordingly, we find that the trial court did not err in appointing Dabo as a language-skilled foreign language interpreter at appellant's trial. 4. Foreign Language Interpretation at Sentencing Hearing {¶ 41} Finally, we consider appellant's contentions with regard to the foreign language interpreter at the sentencing hearing on September 3, 2015. The record reflects that on the day of the hearing, the trial court filed an entry stating: "Pursuant to section 2311.14, Ohio Revised Code, Fatmata Berete is hereby appointed interpreter in this action." Additionally, the trial court filed a document titled "Oath" which was signed by the interpreter and stated: "I do solemnly swear that I will make a true interpretation of the proceedings to the party or witness, and that I will truly repeat the statements made by such party or witness to the Court, to the best of my ability." However, the record does not reflect whether the interpreter was a certified, provisionally qualified, or language skilled interpreter. The record also does not reflect that the trial court inquired as to the qualifications of the interpreter. {¶ 42} Here, we find that appellant has failed to demonstrate plain error for several reasons. First, in a plain error analysis, the sentencing hearing is procedurally distinct from the trial phase of the proceedings since concerns related to the adversarial process are not present at sentencing. See State v. Dunbar, 3d Dist. No. 1-92-12 (Nov. 5, 1992). Additionally, there is no indication, and appellant does not contend, that a more qualified interpreter was reasonably available at the time of sentencing, especially considering the No. 15AP-848 19 lack of a reasonably available certified or provisionally qualified interpreter at trial. Therefore, under these circumstances, appellant is unable to establish that the outcome of the proceedings would have been different absent the alleged error. {¶ 43} Notwithstanding the foregoing analysis, we find that better practices could be employed at the sentencing hearing, as in other phases of the proceedings. Although not outcome determinative, the sentencing proceeding entails the communication of important obligations and responsibilities for the convicted defendant. See generally State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. Here, the trial court informed the defendant of community control notification and registration obligations imposed as a result of his classification as a Tier I sexual offender. In light of these considerations, it is important for a trial court to comply with Sup.R. 88 at the sentencing hearing, as in other phases of the proceedings. Thus, where, as here, if an interpreter at sentencing is different from the interpreter who was qualified at trial, the trial court should inquire on the record of sentencing as to the qualifications of the interpreter. {¶ 44} In conclusion, we find appellant has failed to demonstrate plain error with regard to the trial court's appointment of interpreters at trial and the sentencing hearing. {¶ 45} Accordingly, we overrule appellant's third assignment of error. C. Fourth Assignment of Error—Effective Assistance of Counsel {¶ 46} In his fourth assignment of error, appellant asserts he received ineffective assistance of counsel because his trial counsel failed to object to the interpreters provided during the trial and sentencing proceedings. {¶ 47} A convicted defendant alleging ineffective assistance of counsel must demonstrate that: (1) defense counsel's performance was so deficient that he or she was not functioning as the counsel guaranteed under the Sixth Amendment to the United States Constitution; and (2) defense counsel's errors prejudiced defendant, depriving him or her of a trial whose result is reliable. State v. Campbell, 10th Dist. No. 03AP-147, 2003-Ohio-6305, ¶ 24, citing Strickland v. Washington, 466 U.S. 668 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. {¶ 48} "Judicial scrutiny of counsel's performance must be highly deferential * * * [and a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland at 689; Bradley at 141. In Ohio, a properly licensed attorney is presumed competent. State v. Davis, 10th Dist. No. 13AP-98, 2014-Ohio-90, ¶ 20, citing Vaughn v. Maxwell, 2 Ohio St.2d 299, 301 (1965). No. 15AP-848 20 Trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). " 'To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.' " State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 42, quoting Bradley at paragraph three of the syllabus. {¶ 49} Here, appellant recasts his fourth assignment of error as an ineffective assistance of counsel claim. State v. Carse, 10th Dist. No. 09AP-932, 2010-Ohio-4513, ¶ 78, citing State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 233. However, appellant fails to demonstrate that there exists a reasonable probability that, but for trial counsel's failure to object, the result of the trial would have been different. Hale at ¶ 233, quoting State v. Holloway, 33 Ohio St.3d 239, 244 (1988) (finding that " '[t]he failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel' "). Appellant fails to point to evidence in the record demonstrating that he was unable to understand his interpreters. Furthermore, appellant's trial counsel specifically asked appellant whether he was able to understand the interpreter at trial, and appellant agreed that he had no difficulties understanding the interpreter. Therefore, based on our review of the record, we cannot find that appellant's trial counsel's failure to object rendered his performance so deficient that he was not functioning as the counsel guaranteed under the Sixth Amendment to the United States Constitution or that such performance prejudiced appellant. {¶ 50} Accordingly, we overrule appellant's fourth assignment of error. IV. Conclusion {¶ 51} Having overruled appellant's four assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. KLATT and SADLER, JJ., concur.

01-03-2023

09-01-2016

https://www.courtlistener.com/api/rest/v3/opinions/4260893/

Fourth Court of Appeals San Antonio, Texas March 28, 2018 No. 04-17-00706-CV IN THE INTEREST OF X.L.B, T.J.B., AND V.C.B., CHILDREN, From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 16-426 Honorable Bill R. Palmer, Judge Presiding ORDER The appellant’s motion for extension of time to file brief is granted. The appellant’s brief is due on or before April 23, 2018. _________________________________ Rebeca C. Martinez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 28th day of March, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court

01-03-2023

04-04-2018

https://www.courtlistener.com/api/rest/v3/opinions/4065859/

MANDATE THE STATE OF TEXAS TO THE 83RD JUDICIAL DISTRICT COURT OF VAL VERDE COUNTY, GREETINGS: Before our Court of Appeals for the Fourth District of Texas on April 22, 2015, the cause upon appeal to revise or reverse your judgment between City of Del Rio, Appellant V. Daniel Jalomos, Appellee No. 04-14-00381-CV and Tr. Ct. No. 31037 was determined, and therein our said Court of Appeals made its order in these words: In accordance with this court’s memorandum opinion of this date, the order granting the plea to the jurisdiction and dismissing the suit filed by the City of Del Rio is AFFIRMED. It is ORDERED that Appellee Daniel Jalomos recover his costs of appeal from Appellant City of Del Rio. WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth District of Texas, in this behalf and in all things have the order duly recognized, obeyed, and executed. WITNESS the Hon. Sandee Bryan Marion, Chief Justice of the Court of Appeals for the Fourth District of Texas, with the seal of the Court affixed and the City of San Antonio on July 1, 2015. KEITH E. HOTTLE, CLERK Cynthia A. Martinez Deputy Clerk, Ext. 53853  BILL OF COSTS TEXAS COURT OF APPEALS, FOURTH DISTRICT, AT SAN ANTONIO No. 04-14-00381-CV City of Del Rio v. Daniel Jalomos (NO. 31037 IN 83RD JUDICIAL DISTRICT COURT OF VAL VERDE COUNTY) TYPE OF FEE CHARGES PAID BY MOTION FEE $10.00 E-PAID MANUEL QUINTO-POZOS CLERK'S RECORD $62.00 PAID CITY OF DEL RIO REPORTER'S RECORD $873.00 PAID CITY OF DEL RIO FILING $100.00 E-PAID SUZANNE WEST STATEWIDE EFILING FEE $20.00 E-PAID SUZANNE WEST INDIGENT $25.00 E-PAID SUZANNE WEST SUPREME COURT CHAPTER 51 FEE $50.00 E-PAID SUZANNE WEST Balance of costs owing to the Fourth Court of Appeals, San Antonio, Texas: 0.00 Court costs in this cause shall be paid as per the Judgment issued by this Court. I, KEITH E. HOTTLE, CLERK OF THE FOURTH COURT OF APPEALS OF THE STATE OF TEXAS, do hereby certify that the above and foregoing is a true and correct copy of the cost bill of THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS, showing the charges and payments, in the above numbered and styled cause, as the same appears of record in this office. IN TESTIMONY WHEREOF, witness my hand and the Seal of the COURT OF APPEALS for the Fourth District of Texas, this July 1, 2015. KEITH E. HOTTLE, CLERK Cynthia A. Martinez Deputy Clerk, Ext. 53853

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486046/

The appellants contend that an order of the Circuit Court of Garrett County, closing two portions of a road in that county, under the provisions of article 25, sections 142, et seq., of the Code of Public General Laws, is invalid because, in the original proceedings before the county commissioners, it was not made to appear that the persons who gave the public notice, and filed the originating petition, were citizens of the county. Section 143 of article 25 provides that, "whenever any citizen of any county intends to petition the county commissioners for opening, altering or closing any road, he shall give thirty days' notice thereof in one or more of the newspapers published in the county." And taking the effect of this to be that the right of petitioning is restricted to citizens of the county, it is contended that a showing of citizenship on the record is essential to the validity of an order closing a road, under the rule that all facts essential to the valid exercise of a special, limited jurisdiction must be made to appear on the face of the proceedings. Smith v. Goldsborough, 80 Md. 49, 59; CumberlandValley R. Co. v. Martin, 100 Md. 165, 166. The Youghiogheny Hydro-Electric Corporation, incorporated under the laws of this State, is developing the water *Page 464 power of the Youghiogheny River and its tributaries in Garrett County, to generate electricity for public use; and as the impounded water would flood portions of several roads, including the one in question, notice was given by the corporation of intention to make application for the closing of all the roads to be flooded, and, in due course, a petition was prepared and filed with the county commissioners. The notice was signed "Youghiogheny Hydro-Electric Corporation, a Maryland corporation," and the petition was signed by twelve individuals, and in the name of the corporation; but neither the notice nor the petition contained any statement of citizenship. Counter petitions were filed by the appellants and, after a hearing, the county commissioners ordered the road closed as prayed, and executed an agreement with the Youghiogheny Corporation, which required the company to construct substitute ways. At the hearing, to meet an objection to the signature of the corporation, F.R. Corliss, an agent, added to the corporate signature on the petition: "By F.R. Corliss, Agent." On appeal to the circuit court, the appellants filed a motion to quash the proceedings, and after a verdict of a jury for the closing of the road, filed a motion in arrest of judgment. The court overruled both motions and finally ordered the parts of the road in question closed. The appeal is grounded on error in the overruling of the motions. Both motions raise the one question of jurisdiction already stated. The county commissioners attached to the record of their proceedings, and transmitted to the circuit court, the agreement executed by themselves and by the corporation. It recites the whole proceeding, and declares that, in consideration of the closing of the portions of the various roads, the corporation agrees with the county commissioners to construct the substitute ways as specified. The agreement and the order seem clearly to form one transaction, each essential to the other, and inseparable from the other; and the agreement, in our opinion, was properly attached to the order, and formed a proper part of the record of the proceeding. *Page 465 And any facts shown in the agreement would be shown on the record of the proceeding. It recites that the corporation is formed under the laws of Maryland, and is engaged in the work of constructing the dam in Garrett County to impound water for development of electric energy for public use, that it has purchased several thousand acres of land for impounding the water, and that for the same purpose it is necessary to close specified portions of county roads. In Baltimore and YorkTurnpike Co. v. Crowther, 63 Md. 558, 572, 573, this Court held it to be a general rule of law that the place of residence of a corporation is the place where its principal office is located or where its principal operations are carried on. And, under that rule, the present corporation would, on the face of the record of the proceedings, as they came from the county commissioners — to go no further, now — appear to be a resident of the county where it gave its notice and filed its petition. The statute, however, refers to a petition, not by a "resident," but by a "citizen" of the county. The appellee assumes "resident" and "citizen" to be synonymous, within the meaning and purpose of the statute, and the appellants deny that they are so, and deny that a corporation can be included under the word "citizen." The mere use of the word cannot be taken as determinative, because the word has more than one meaning. "The word `citizen' has various meanings," said this Court in Risewick v. Davis,19 Md. 82, 93, "viz: `A native of a city, an inhabitant who enjoys the freedom and privileges of the city in which he resides, an inhabitant, a dweller in any city, town or place; a person native or naturalized, who enjoys the privilege of exercising the elective franchise.' * * * In which of these senses the word was used in the Act of 1795, ch. 56, (the attachment law), does not appear from the cases above referred to. If the object of the law was, as some of the earlier cases indicate, an amelioration of the common-law process, or the protection of our own citizens from summary process, as well as to give them a remedy *Page 466 against debtors residing out of the process of the court, as others declare, the largest interpretation of the word would be most consonant to reason and justice * * * hence citizen would be synonymous with `inhabitant or permanent resident' in a city or county, as all such are alike entitled to the most enlarged remedial process, and protection from summary proceedings, equally, with native or adopted citizens, enjoying the elective franchise, and the right of purchasing and holding real estate. This construction does not conflict with the provisions of Act 1715, ch. 40, but gives a cumulative remedy adapted to the exigencies of trade and commerce which would otherwise be much embarrassed by the delays of the law." It was therefore held that in the restriction of the right of attachment to citizens of this state or of some other state, the word "citizen" included inhabitants or permanent residents. And in Field v. Adreon,7 Md. 209, 213, the Court held that an unnaturalized Irishman, residing in Baltimore City, was a "citizen" within the meaning of a provision for attachments of the property of citizens absconding. "It certainly never could have been the intention of our Legislature," said the Court, "to have made such an invidious distinction in favor of foreign citizens residing in our State, over our own resident citizens, as to exempt the former from being proceeded against as absconding debtors, while the latter were to be held subject to all the penalties of the attachment laws against debtors absconding to evade their creditors. * * * A party may not be a citizen for political purposes, and yet be a citizen for commercial or business purposes." State v.Trustees, 11 Ohio, 24, 27; McKenzie v. Murphy, 24 Ark. 155, 159; Bacon v. Board of State Tax Commrs., 126 Mich. 22. The word is found used in many clauses, statutory and constitutional, especially those of earlier years, which have established general rights and obligations. For instance, the clause in the Bill of Rights of Maryland concerning liberty of the press (article 40) provides, "that every citizen of the State ought to be allowed to speak, write and publish *Page 467 his sentiments on all subjects, being responsible for the abuse of that privilege." The Compact of 1785 between Virginia and Maryland, with which the Court has had to deal in another case at this term, secures to "citizens" of the two states rights in the ownership of property on the shores of the Potomac River. Articles in the Code pertaining to rights in ferries and fisheries provide, in words, for "citizens," "residents," or "inhabitants." Article 37, § 1; article 39, section 19; article 72, section 111; article 92, section 4. The Court has never been called upon to construe the words in any of these clauses. But the expression in the Bill of Rights, which, taken alone, is even more restrictive, "that no man ought to be taken or imprisoned or disseized * * * or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the Land," has been treated as including corporations. Regentsof Univ. of Md. v. Williams, 9 G. J. 365, 412. And the same breadth has been given it in other provisions. Laurel CanningCompany v. Baltimore Ohio Railroad Company, 115 Md. 638, 642. Chancellor Bland, in Cape Sable Company's Case, 3 Bland, 606, 656, held that corporations came within the spirit, if not the letter, of a statute (Acts, 1801, ch. 74, sec. 11), which prohibited the arrest of "any inhabitant out of the county where he or she doth reside." On the other hand, there are references to citizens or individuals which obviously cannot be construed to include corporations. Such are those in the constitutional provisions regarding the holding of public offices, (article 35 of the Bill of Rights), religious freedom (article 36), and the elective franchise (article 1 of the Constitution). Corporations organized under the laws of the several states have been held to be included within the phrase "citizens of the United States," in an Act of Congress concerning claims arising from Indian depredations, and within "citizens of the United States and those who have declared their intention to become such," in a statute giving a right to purchase mineral deposits in the public lands. The Baltimore *Page 468 Insurance Company was included in the benefits provided by the French Spoliation Act of January 20, 1885, for "citizens of the United States or their legal representatives." And the same comprehensive effect has been given to similar expressions in treaties. United States v. Northwestern Express Co.,164 U.S. 686, 688. Ramsey v. Tacoma Land Co., 196 U.S. 360. In State v. Trustees, 11 Ohio, 24, it was held that, as used in an act relating to the acquisition of public lands by religious societies, requiring such societies to furnish a list of the names of their members, specifying that they were citizens of the particular township, the word "citizen" was synonymous with resident. "It can hardly be believed," said the court, "that the Legislature, in using the word `citizen,' in this statute, intended to make a distinction between native or naturalized citizens, and resident aliens. Why should such a distinction be made? Is there not as much need of religious instruction in the one case as the other?" And in McKenzie v. Murphy, supra, a statutory reservation of a homestead exemption to "every free white citizen of this state, male or female, being a householder or head of a family," was held to include aliens domiciled in the state. In Attorney-General v. Police Commissioners,30 R.I. 212, a statute providing for liquor licenses to "citizens resident within this state," was held, because of the legislative construction, to include corporations which the General Assembly had created for the express purpose of engaging in the liquor business. On the other hand, the word "citizen," in a statute denoting the persons who might sign petitions for change in school district boundaries, was held to mean an elector. SchoolDist. No. 11 v. School Dist. No. 20, 63 Ark. 543. And another requiring that fifteen bona fide citizens sign a petition to initiate a proceeding to compel railroads to make connections, was held to exclude corporations. St. Louis S.F.R. Co. v.State, 120 Ark. 182. What the word comprehends in particular statutes must be sought, then, in the purpose and intent underlying each. *Page 469 "These considerations," said Mr. Justice White, in United Statesv. Northwestern Express Co., supra, "give rise to an ambiguity which we must solve, not by reference to a mere abstract technicality, but by that cardinal rule which commands that we seek out and apply the evident purpose intended to be accomplished by the law-making power." And this purpose must be found by ascertaining the nature of the private interests to be affected, and for which it may be assumed the Legislature intended to provide, and the nature of the public interest which it may be assumed the Legislature intended to protect and promote. The opening or closing of a road would seem to be a matter affecting all residents of the county alike, all those, that is, who may be entitled to have their convenience considered and promoted by the local government, and appears to have no especial relation to the political rights of individuals in the county. Outside of political rights, corporations in the county stand on substantially the same footing as individuals. They own property, pay taxes, and share proportionately in all the burdens of government; engage in the business activities of the county, and are entitled to have their convenience given equal consideration. From the side of the private interests to be affected, there would seem, then, to be no reason for excluding corporations from making the application to the county commissioners, and inaugurating the proceeding in which the wisdom and propriety of opening or closing a road is to be determined. And there would seem to be no public interest to require it. To construe it that way would be to suppose that in this day of widespread use of the corporate form of organization, notwithstanding the general equality of corporations in respect to rights not political, if the land to be affected is owned by corporations, or if the activities to be served, however beneficial they may be to the people of the county, are to be conducted by corporations, the county commissioners are not to receive applications in the corporate name. Practically, it would be to suppose that the Legislature intended, in such cases, to insist upon application under the borrowed names of individuals. *Page 470 And it seems to us unreasonable to suppose that the Legislature meant to require such a profitless formality. Our opinion is that the purpose and intention of the Legislature is not to be so narrowly construed, and that the Youghiogheny Corporation was, on the record before the county commissioners, entitled to make, in its own name, the application on which the commissioners proceeded. The delay in adding the name of the agent signing, so far as that may have been necessary, was immaterial. The rule which requires the jurisdictional facts to appear is not a rule of pleading or one concerned with particular documents, at particular stages of the proceedings; the requirement is merely that somewhere in the record the courts shall find assurance that the action taken was in a proceeding in which such action was authorized by law.Smith v. Goldsborough, supra; Cumberland Valley Railroad Companyv. Martin, supra. Order affirmed, with costs to the appellee.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4030734/

J-A13026-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN RE: ESTATE OF BASIL A. IN THE SUPERIOR COURT OF MARRYSHOW, DECEASED ** PENNSYLVANIA FLOY WRIGHT v. ESTATE OF BASIL A. MARRYSHOW APPEAL OF: FLOY WRIGHT, OBJECTOR No. 1146 WDA 2015 Appeal from the Order entered July 1, 2015 In the Court of Common Pleas of Allegheny County Orphans' Court at No: 02-11-01997 BEFORE: OLSON, STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 01, 2016 Appellant, Floy Wright, appeals from the order entered on July 1, 2015 in the Orphans’ Court Division of the Allegheny County Court of Common Pleas, denying her exceptions to the trial court’s February 11, 2015 order. The February 11 order denied Appellant’s objections to the First and Partial Account of Karen Marryshow, Executrix of Appellee, the Estate of Basil A. Marryshow (“the Estate”). Following review, we reverse. In its February 11, 2015 order, the trial court made the following Findings of Fact: J-A13026-16 1. On October 5, 1988, the Decedent, Basil A. Marryshow, and [Appellant] purchased real property located in McCandless, Allegheny County, Pennsylvania. 2. The Decedent and [Appellant] owned the property as joint tenants with the right of survivorship. 3. On August 26, 1992, the Decedent and [Appellant] entered into a written agreement [(“1992 Agreement” or “Agreement”)] regarding the property. 4. Section XI of the Agreement, “EFFECT OF DEATH OF PARTIES” states, in part: If Basil dies at a time when the parties are living together in the Residential Dwelling, title to the Realty passes to Floy as an incident of their joint tenancy with right of survivorship, under and subject to liens and encumbrances for which the parties are jointly liable. Not later than thirty (30) days after letters of administration or letters testamentary have been issued to the personal representative of Basil, such personal representative shall pay, in full: (1) any person or entity who or which held a lien against only the interest of Basil in the Realty (2) any transfer, inheritance or death taxes due any governmental entity which could be a lien against the Realty or any part thereof . . . [.] 5. The Agreement was recorded with the Recorder of Deeds of Allegheny County, at DBV 12605, Page 606. 6. On December 1, 2009, the Decedent executed his Last Will and Testament that directs in Item II, as follows: I direct my Executor to pay all inheritance, transfer, estate and similar taxes (including interest and penalties) assessed or payable by reason of my death on any property or interest in property which is included in my estate for the purposes of computing taxes. My Executor shall not require any beneficiary under this Will to reimburse my estate for taxes paid on property passing under this Will. 7. The Decedent passed away on March 15, 2011. -2- J-A13026-16 8. At the time of Decedent’s death, parties were living together at the McCandless property. 9. On March 29, 2011, Letters Testamentary were issued to the Decedent’s daughter[, Karen Marryshow]. 10. On July 2, 2014, the parties filed a “Statement in Lieu of Brief” stating that they had reached an agreement as to the payment of taxes. 11. On July 28, 2014, [Appellant] secured new counsel. 12. On September 12, 2014, [Appellant] filed Objections to the First and Partial Account. 13. In said objections, [Appellant] raised the Estate’s failure under the Agreement to pay inheritance tax on the property. Trial Court Order, 2/11/15, at 1-2. In her brief, Appellant provides supplemental factual information that amplifies the trial court’s findings. Specifically, the “Statement in Lieu of Brief,” referenced in ¶ 10 of the Findings of Fact, was an agreement based upon the language of Decedent’s Will and this Court’s decision in In re Estate of Allen, 960 A.2d 470 (Pa. Super. 2008), which held that inheritance tax on jointly-owned property is the exclusive responsibility of the surviving tenant, i.e., Appellant in this instance. Appellant’s Brief at 7. Appellant subsequently secured new counsel who filed objections to the First and Partial Account filed by the Executrix. In those objections, Appellant asserted that the existence of the 1992 Agreement raised a contract claim against the Estate, which was required to pay inheritance tax on the Realty pursuant to the Agreement. Id.; Findings of Fact, ¶4. -3- J-A13026-16 The Estate countered that Appellant’s objection was barred by the July 2, 2014 agreement memorialized in the Statement in Lieu of Brief, which reflected that Allen controls and requires the surviving tenant to pay the inheritance tax on jointly-owned non-probate assets. The Estate also raised affirmative defenses of res judicata, detrimental reliance, release, bad faith, and breach of agreement. Appellee’s Brief at 9-17. The trial court also offered Conclusions of Law in its February 11, 2015 Order. The trial court first set forth the text of 72 P.S. § 9144(f), which provides that “[i]n the absence of a contrary intent appearing in the will or other instrument of transfer and except as otherwise provided in this section, the ultimate liability for the inheritance tax, including interest, shall be upon each transferee.” Trial Court Order, 2/11/15, at 2. The trial court determined: The 1992 Agreement and the Decedent’s Will are clear as to the Decedent’s intention as to taxes. However, there are no unambiguous directives in either document that the Executrix was to use funds from the residuary estate to pay taxes on property passing outside of the Will. “Put another way, there is no unambiguous language shifting the tax liability for non- probate joint property from the surviving tenant to the residual beneficiary.” In re Estate of Allen, 960 A.2d 470, 472 (Pa. Super. 2008); See, e.g., In re Estate of Fleishman, 388 A.2d 1077 (Pa. 1978) (tax clause in will directing that all death taxes be paid out of the principal of the residuary estate overcame statutory scheme of apportionment of death taxes); Audenried’s Estate, 376 Pa. 31, 101 A.2d 721 (Pa. 1954) (same). Id. at 2-3. Based on its conclusions of law, the trial court overruled Appellant’s objection and her claim based upon the 1992 Agreement -4- J-A13026-16 between Appellant and the Decedent. By Order entered July 1, 2015, the trial court denied Appellant’s exceptions to the trial court’s February 11, 2015 order. This timely appeal followed. The trial court did not order the filing of a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and did not issue a separate opinion pursuant to Pa.R.A.P. 1925(a).1 Appellant presents three issues for our consideration: 1. Whether 72 P.S. § 9144(f) is determinative of the issue when the claim against the Estate arises, not through a Will or other instrument of transfer, but through a separate, recorded written Agreement. 2. Whether the Agreement at issue creates a contract claim against the Estate payable with Estate assets. 3. Whether the objection was barred by res judicata and/or detrimental reliance. Appellant’s Brief at 4. As this Court recently reiterated: ____________________________________________ 1 In response to an inquiry from this Court concerning the filing of a Rule 1925(a) opinion, the trial judge responded: I am writing regarding filing an Opinion in the above appeal. Pursuant to “Pa.R.A.P.” Rule 1925(a)(1), the place in the record where the reasons for the entry of the order appealed can be found, is the Findings of Fact, conclusions of Law and Order of Court filed on February 11, 2015 (ATTACHED).” Trial Court Correspondence, 8/20/15, at 1. -5- J-A13026-16 Our standard of review is as follows: Our standard of review of the findings of an Orphans' Court is deferential. When reviewing a decree entered by the Orphans' Court, this Court must determine whether the record is free from legal error and the court’s factual findings are supported by the evidence. Because the Orphans’ Court sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of that discretion. However, we are not constrained to give the same deference to any resulting legal conclusions. In re Estate of Harrison, 745 A.2d 676, 678[] (Pa. Super. 2000), appeal denied, 563 Pa. 646, 758 A.2d 1200 (2000) (internal citations and quotation marks omitted). “The Orphans’ Court decision will not be reversed unless there has been an abuse of discretion or a fundamental error in applying the correct principles of law.” In re Estate of Luongo, 823 A.2d 942, 951 (Pa. Super. 2003), appeal denied, 577 Pa. 722, 847 A.2d 1287 (2003). In re Estate of Whitley, 50 A.3d 203, 206–207 (Pa. Super. 2012). This Court’s standard of review of questions of law is de novo, and the scope of review is plenary, as we may review the entire record in making our determination. Kripp v. Kripp, 578 Pa. 82, 849 A.2d 1159, 1164 n. 5 (2004). When we review questions of law, our standard of review is limited to determining whether the trial court committed an error of law. Kmonk– Sullivan v. State Farm Mutual Automobile Ins. Co., 746 A.2d 1118, 1120 (Pa. Super. 1999) (en banc). In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016). -6- J-A13026-16 In her first two issues, Appellant contends that the 1992 Agreement trumps the provisions of 72 P.S. § 9144(f)2 and this Court’s Allen decision. As noted above, she asserts that the Agreement gives rise to a contract claim against the Estate for payment of the inheritance taxes on the Realty. Because Appellant’s first two issues as presented are interrelated, we shall consider them together. Appellant argues that 72 P.S. § 9144(f) is limited to “wills and other instruments of transfer,” and that the 1992 Agreement is neither of those things. She contends that the Agreement is a separate contractual agreement that “simply articulates the rights and obligations of the parties with respect to their joint interest in the Residence,” as reflected in one of the recitals to the 18-page Agreement that states, “Floy and Basil intend by this Agreement to define their respective rights and obligations in and as to the Realty, which term shall sometimes hereinafter include the Dwelling.” Appellant’s Brief at 10 (quoting Agreement, 8/26/92, at 2, ¶ I.E.). She asserts that the Agreement required the Estate to pay the inheritance tax and that “[t]he Agreement did not modify the law that places the initial inheritance tax burden upon the Objector but created a separate contractual ____________________________________________ 2 Section 9144(f) provides, “In the absence of a contrary intent appearing in the will or other instrument of transfer . . ., the ultimate liability for the inheritance tax, including interest, shall be upon each transferee. -7- J-A13026-16 obligation which requires the Estate to pay that tax.” Exceptions to Order Entered February 11, 2015, 2/27/15, at 5, ¶ 15. We agree. Without question, absent the Agreement, Appellant would be obligated to pay the inheritance tax as the surviving tenant. See Allen, supra. However, the 1992 Agreement clearly reflects the intent of the parties that the respective personal representative of whichever party died first—if the parties were cohabitating in the Residential Dwelling—“shall pay, in full . . . any . . . inheritance . . . taxes [that] could be a lien against the Realty or any part thereof[.]” Agreement, 8/26/92, at 12-13, ¶ XI (emphasis added). As Appellant suggests, the statutory language of § 9144(f), imposing “the ultimate liability for the inheritance tax . . . upon the transferee,” is limited by its terms to “wills and other instruments of transfer.” 72 P.S. § 9144(f). The 1992 Agreement is neither. Moreover, the property in question did not pass under the Will but, rather, by operation of law as property jointly held with rights of survivorship, and the obligation to pay inheritance tax on that property was determined by contract, i.e., the 1992 Agreement. In addition, that Agreement required that any modification or additional obligation assumed by either party in connection with the Agreement be in writing and signed by both parties. Agreement, 8/26/02, at 17, ¶ XVII. No such writing exists and Decedent’s Will, which was not signed by Appellant, does not constitute a modification of the Agreement. -8- J-A13026-16 The 1992 Agreement is appropriately classified as a contract concerning succession governed by 20 Pa.C.S.A. § 2701, which provides, in relevant part, that “[a] contract . . . to make . . . an obligation dischargeable only at or after death can be established in support of a claim against the estate of a decedent only by . . . (3) a writing signed by the decedent evidencing the contract.” 20 Pa.C.S.A. § 2701(a). The Agreement is a writing signed by the Decedent evidencing a contract that operates to shift the obligation for payment of inheritance tax from the transferee to the Estate. Because we find the trial court committed error of law by ignoring the terms of the 1992 Agreement and finding Appellant liable for inheritance tax on the Realty, we reverse the trial court’s order and remand for further proceedings consistent with this Memorandum.3 Order reversed. Case remanded. Jurisdiction relinquished. ____________________________________________ 3 Our disposition of Appellant’s first two issues renders her third issue moot. However, to the extent Appellant asserted her objections were not barred by the affirmative defenses of res judicata and detrimental reliance raised by the Estate, we agree. Res judicata does not apply because the cause of action she espouses arises from a contract, i.e., the 1992 Agreement, rather than under the Will. Therefore, there is no identity of the cause of action. Further, the Estate has not demonstrated that it relied to its detriment on Appellant’s initial misconception that her liability was established by Decedent’s Will and case law rather than by the 1992 Agreement. Finally, we reject the Estate’s assertion of bad faith and “unclean hands.” Appellant did not violate an agreement to terminate litigation. Rather, after agreeing that the Will imposed liability upon a transferee to pay inheritance tax, she pursued a contract claim, relying on provisions of the 1992 Agreement that directed that the Estate pay the inheritance tax on the Realty. -9- J-A13026-16 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/1/2016 - 10 -

01-03-2023

09-01-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426535/

Under the provisions of the Unemployment Compensation Act of 1937 (Acts 1937, p. 705, Sec. 7, (1) (m), Acts 1939, p. 585, Sec. 6, (1) (m)) the Review Board has certified six questions of law based upon the following facts: *Page 620 "The applicant, Dallas Zeits, filed a claim for unemployment compensation on January 25, 1940, claiming wage credits upon earnings from the Plymouth Manufacturing Company. The employer, the Plymouth Manufacturing Company, contends that the services of Zeits did not constitute employment within the meaning of the Indiana Unemployment Compensation Law because Zeits was a partner and not an employee. Zeits performed services as an alleged partner from October, 1938, until July 10, 1939, at which time his services were terminated. Upon protest of payment by the employer, the claim was referred to the Appeal Tribunal and then transferred to the Review Board upon motion of that body. Evidence was submitted by both parties and the following facts concerning the status of Zeits and others similarly situated were found: "A. The Plymouth Manufacturing Corporation owned and operated a plant for manufacturing boxes and crates at Plymouth, Indiana. Its officers were Sam Tomlinson, President, and Hubert Tanner, Secretary, and its Board of Directors included said Tanner, William H. Wolfarth, George E. Warren and Chester M. Thompson. On or about the 10th day of October, 1938, the corporation, by its proper officers and with the approval of its Board of Directors, entered into a written lease of its real estate, plant buildings thereon situate and its machinery and equipment, tools, motors, boilers, etc., to the aforementioned Hubert Tanner, William H. Wolfarth, George E. Warren and Chester M. Thompson, and transferred to them its stock of materials and inventory, together with all orders on hand. Such lease was from month to month subject to termination by either party upon notice of thirty days and gave the lessor, as part of the rental consideration, 70% of the net profits from the operation of the business. *Page 621 Under date of October 22, 1938, the lessees formed a purported partnership agreement in writing with all the workers of the plant which designated the four lessees, who were directors of the Plymouth Manufacturing Corporation, as Senior Partners and all other plant workers as Junior Partners in a firm which became the Lessee in a written sub-lease of all the aforementioned property of the Plymouth Manufacturing Corporation which had been so leased to such Senior Partners. The original lease was not assigned to the new firm but a new lease was entered into. This partnership agreement was recorded in Marshall County. The new firm was designated as `Plymouth Manufacturing Company.' It was testified that group meetings of workers, including Zeits, were held in which the terms of the new agreement were explained and each was then asked to sign the agreement as a Junior Partner and it was made known that those who refused to sign would not be furnished with further work. Zeits testified that he was called to the offices in company of two other workers and was told by a Senior Partner that they wanted 100% response from the workers and that although they did not have to sign the agreement there would be no more work for those who did not. Zeits thereupon signed the agreement as a Junior Partner and approximately 113 others did likewise but signed at different times and places. Under the agreement all of the business management was vested in the four Senior Partners. One of these, Thompson, had been Superintendent and actually continued in substantially the same capacity. All alleged Junior Partners who worked a minimum of 600 hours in any year were to receive a proportionate share of 10% of the net profits of the lessee based upon `units of interest.' These units represented hours of work and *Page 622 each Junior Partner's share was to be in ratio to his hours worked. A Junior Partner could be expelled or could resign, but was entitled to no further interest as a partner thereafter, nor was he entitled to any final distribution of assets, in the event of liquidation or termination of the partnership, except as to the 10% of profits allocated to Junior Partners. A partner's interest and his relation to the business as such existed only while he continued to perform services. No investment of capital was made by any Junior Partner and all hours of work contributed were compensated at a fixed hourly rate. The Superintendent had authority to assign the Junior Partners to their respective positions, supervise the same, and fixed their hourly rates of payment for services. New Junior Partners could be added to the partnership by the Senior Partners and old ones could be dismissed all without notice or consent of other Junior Partners. In the event of termination of the lease all inventory and other liquid assets reverted to the Plymouth Manufacturing Corporation. There is no evidence that, under the partnership articles, the status and duties of a Junior Partner were any different than he formerly enjoyed as an employee of the retiring corporation during the period of plant operation. "B. It was further disclosed that, under date of November 7, 1939, amendments in writing were made to the original articles of partnership. Under these amendments all distinction between Junior and Senior Partners was abolished, save as to drawing accounts and division of profits for the Senior Partners. It provided that thereafter the affairs of the partnership should be managed by a Board of Control of six persons with each of the four former Senior Partners named by the amendments as a member of such Board and the Board further augmented by two representatives *Page 623 chosen by a majority vote of the former Junior Partners, one from the mill and one from the East end of the plant. The members were thereafter to be elected semi-annually. The Board of Control was to exercise all powers of management exercised previously by the Senior Partners. The amendment further provided that no partner could voluntarily sever relations excepting after 30 days' notice in writing to the Board of Control. It also prevented any partner from selling, assigning or transferring his interest without the unanimous consent of the Board of Control." The questions certified are as follows: (1) "Whether or not the Plymouth Manufacturing Company was a partnership prior to November 7, 1939, and, if so, who were its members?" (2) "Whether or not the Plymouth Manufacturing Company was a partnership on and after November 7, 1939, and, if so, who were its members?" (3) "Whether, prior to November 7, 1939, the employing unit doing business in the name and style of Plymouth Manufacturing Company was an employer subject to contribution under the Indiana Unemployment Compensation Law?" (4) "Whether, on and after November 7, 1939, the employing unit doing business in the name and style of Plymouth Manufacturing Company has been and now is an employer subject to contribution under the Indiana Unemployment Compensation Law?" (5) "Whether the services performed by the claimant Zeits for the Plymouth Manufacturing Company constituted `employment' within the meaning of Section 2 (h) (5) of the Indiana Unemployment Compensation Law?" (6) "The period of time, if any, for which Zeits is *Page 624 entitled to claim wage credits for services performed for the Plymouth Manufacturing Company?" The Plymouth Manufacturing Company and the Unemployment Compensation Board have both submitted briefs on the questions involved in this case. In the brief of the Plymouth Manufacturing Company, counsel set out as an appendix to their original brief certain exhibits including the articles of agreement signed by Dallas Zeits, whose claim for unemployment compensation gives rise to the certified questions of law. Since both parties submitting briefs refer to this contract, the court in this particular case will consider it as one of the facts in determining the status of the claimant. The paragraphs of said articles of agreement bearing especially upon the questions at issue are as follows: (1) "The said senior partners have leased from the Plymouth Manufacturing Corporation, a corporation organized under the laws of the state of Indiana, with its office and place of business in Plymouth, Marshall County, Indiana, all of the real estate and tangible personal property of said corporation, all as provided by a written lease from said corporation to said Senior Partners dated October 10, 1938, which lease, by reference is incorporated herein. Said senior partners, by this instrument, sublet said premises and property unto this partnership, from month to month, beginning October 22, 1938, to continue on such month to month basis, unless this sublease is sooner terminated, either by agreement of the parties, or by a declaration of termination for a breach of any of the covenants of said lease, or by reason of the termination of the said lease between the senior partners and the corporation aforesaid. This partnership hereby assumes and agrees *Page 625 to carry out and perform all of the promises and agreements undertaken on the part of the senior partners as contained in said lease from said corporation to said senior partners." (2) "The senior partners will, at all times, have general charge and control of the property hereby sublet to this partnership, and all other property which it may in the future acquire. The partnership shall carry on the manufacture of wire-bound boxes and such other lines of products as the senior partners shall direct. Said senior partners shall direct the work to be done by the junior partners on said premises, and if any unlawful, unworkmanlike practice or conduct of disloyalty to the firm, or non-conformity with any provision of these Articles of Partnership is done or suffered to be carried on by a partner within or on said premises or in relation to the firm business, said senior partners may, at their option and by their unanimous consent, forthwith terminate this sub-lease and this partnership agreement, as to such offending member of the firm and to exclude such offender from said premises. This covenant is deemed as of the essence of this sublease and partnership agreement to protect the other persons who are now or in the future may become partners and sub-lessees and who would or might suffer irreparable injury by such breach of partnership duty." (3) "The senior partners, and all others who subscribe with them these articles of partnership, (whether contemporaneously, or from time to time hereafter) shall be and constitute a partnership doing business under the firm name and style of PLYMOUTH MANUFACTURING COMPANY. The withdrawal by or addition of any partner from or to the firm shall, in no manner, operate to terminate this agreement or in any *Page 626 respect to interrupt the continuous character of the partnership or its business affairs, it being agreed that the senior partners and the survivors of them or those remaining as such (in the event of any withdrawal), for and on behalf of the firm, may at any time, admit any new members to the firm pursuant to this agreement, and have full authority to consent, on the part of all members of the firm, that members may withdraw therefrom, and new members admitted thereto; and the senior partners shall, at all times, have the sole general management of the business affairs of the firm, and shall have the sole power and authority to employ employees for and on behalf of said firm, and to fix the salaries of such employees, the Junior partners hereby expressly reposing full power in the senior partners to carry on the prudential affairs of the firm and they will conform to the directions given them by the senior partners, at all times, to promote the orderly conduct of said business, and they grant the senior partners exclusive authority to make all contracts and other agreements, and execute all obligations on behalf of the firm, including those affecting the relationship of the partners between themselves, when and to what extent contributions of service and property shall be accepted from any junior member of the firm and the nature and value thereof, so long as consistent with the provisions hereof and the character of the business of said partnership for which it is created. Only with the consent of the senior partners shall the firm be dissolved or any dissolution proceedings whatever be inaugurated. The senior partners are granted the right to dissolve the firm at any time on giving thirty days' notice to each then existing partner of their intention so to do, whereupon a complete accounting of the partnership business and affairs will be made by the senior *Page 627 partners to all of the other partners, and this partnership agreement shall come to an end, and all of the physical property theretofore used by the firm in its business (whether acquired with partnership funds or not) shall revert to and become the property of Plymouth Manufacturing Corporation as provided by the terms of its lease, the other assets shall then be disposed of by the senior partners and the proceeds distributed, after payment of all debts of the firm in the same ratio as the annual distribution of profits hereinafter provided." (6) "Each junior partner hereby agrees that the division of the net profits arising out of the operations of the business of the firm, allocable to the junior partners, after payment of all expenses of operation and drawing accounts hereinafter provided, shall be allocated and distributed in accordance with such arrangement as shall be made on behalf of the firm by the senior partners at the time each respective junior partner enters the firm; and each member hereby authorizes mutual agreements between the senior members of the firm on behalf of the partnership, and each respective junior member, as may, from time to time, enter the firm, fixing such division, but any original or modified agreements so made between a junior partner and the senior partners, the latter acting on behalf of the firm, shall be in writing, subscribed on behalf of the firm by at least one of the senior partners and by the individual junior partner directly affected thereby. Such stipulation shall provide, in every instance, for a fixed drawing account to be paid out of firm income to the junior partner periodically, and for an annual pro rata distribution of net profit among the junior partners, which drawing accounts and proration distributions shall be governed by what, in each instance, *Page 628 the senior partners shall deem a just reflection of the contribution of each partner to the earnings and welfare of the firm, as expressed in such written arrangements, respectively, all of the partners reposing untrammeled discretion in the senior partners in the matter of determining what the respective net profits so distributable are or may be, and the respective proportions thereof to be paid to each. The form of certificate evidencing such arrangements, to be issued to each such junior partner, shall be substantially as follows: `PLYMOUTH MANUFACTURING COMPANY' Plymouth, Indiana. _________________________________ JUNIOR PARTNER'S PARTICIPATION CERTIFICATE "`This certificate, evidencing the profits participation agreement of the undersigned junior partner, issued in conformity with the general partnership agreement dated October 22, 1938, to which the holder is a signatory, and to be construed therewith, vouches that __________________ (hereinafter called `the holder' of No. _____________ Street, _____________ Indiana, is a junior partner, commencing as such as of the ____ day of ____________, 19__, and is entitled to a periodical drawing account conformable with the provisions of said partnership agreement. The drawing account of each junior partner shall be based upon the basic drawing units of service rendered for and/or property contributed by such partner to the partnership. A basic drawing unit shall be valued in accordance with the worth to the partnership of the services and/or property each partner contributes to the partnership business. One hour of service contributed shall, in the case of the holder hereof, constitute a basic *Page 629 unit and be reckoned at the value of ____ cents, which he shall be at liberty to withdraw from the partnership funds ten days after such contribution has been made. "`In addition to such drawing privileges, the holder hereof shall receive the proportionate share of ten per cent of the net profits of the firm business in each calendar year to which the holder hereof has contributed; and in calculating such net profits as a whole, there shall be deducted the total value of all basic drawing unit contributions actually paid out or credited to all of the partners — whether senior or junior. "`A basic drawing unit in property contribution shall be fixed at one dollar and the number thereof shall be reckoned at the actual value of the property contributed. The proportionate share of the holder in said distributable net profits of the firm shall be computed by a ratio application of the aggregate value of his total basic drawing units of contribution to the aggregate value of all basic drawing unit contributions effected by all of the junior partners, during the year, the holder's proportion being represented by ten per centum of the total net profits of the firm during the year multiplied by a fraction, the numerator of which constitutes the total value of all of the holder's basic drawing unit contributions during the year, and the denominator of which shall constitute the aggregate value of all of the drawing unit contributions made by all of the junior partners during such year. "`No interest in such annual distribution of net profits of the firm shall be claimable by any holder who has not contributed at least six hundred basic drawing units of service and/or property to the firm during the calendar year, but such share represented by such contribution of less than six hundred basic drawing units shall *Page 630 be distributed to the junior partners who have contributed more than six hundred such units each.' "The senior partners shall each have a drawing account for each week, in the amounts set after each name of such senior partner, namely: William H. Wolfarth _____________ $23.00 Hubert Tanner ___________________ $ ____ George E. Warren ________________ $20.00 Chester H. Thompson _____________ $20.00 payable at the end of each week, and in addition thereto, each shall receive two and one-half per cent of the net profits of said business, payable at the end of each calendar year. Whenever the term `net profits' is used herein, unless the context otherwise indicates, it shall mean the gross profits of the business (after discharging or providing by reserves for all obligations of the firm, including obligations under the principal lease aforesaid) minus the several amounts credited to and/or withdrawn from the firm funds by the several partners, senior and junior, based on their unit contributions in services and property to or for the benefit of the firm." (7) "A senior partner may withdraw from the firm at any time by giving thirty days' written notice to the other senior partners of his intention so to do, and another person may be admitted as a senior partner and substituted for the senior partner so withdrawing, provided such substitution is approved in writing by all senior partners. No senior partners shall assign his interest or rights in the partnership to any person, firm or corporation without the written consent of all the other senior partners." (8) "No junior partner shall, at any time, sell, assign, or transfer his rights or interest in and to this partnership, but may withdraw from the firm at any time, provided the senior partners may require the *Page 631 junior partner to continue as such for a period of not to exceed ten days after notice of withdrawal by said junior partner." (9) "There shall be allocated ten per cent of the net profits of said business to the junior partners; each junior partner shall receive as his portion of the said ten per cent of the net profits of said business the proportion thereof during each calendar year in which the junior partner has contributed drawing units to the number of at least six hundred. The method of computation of such share in the net profits shall be affected as provided for by the certificate set forth in Article 6 hereof, and shall be payable not more than thirty days after the expiration of each calendar year. The proportions of net profits that would be allocable to junior partners who have contributed less than six hundred basic drawing units during the year to said firm, shall be distributed pro rata to the junior partners who shall have each contributed six hundred or more basic drawing units of service during the particular calendar year." Counsel for the Plymouth Manufacturing Company take the position that claimant Zeits became a partner in said company when he signed the articles of agreement, and therefore does not come within the provisions of the Unemployment Compensation Law of this state. The Unemployment Compensation Board, through the briefs filed upon its behalf, challenges the position taken by the Plymouth Manufacturing Company and contends that claimant Zeits was not a partner in said company but performed services constituting employment within the meaning of the provisions of the Unemployment Compensation Act. This is the first case that has been submitted to this court involving the application of the Unemployment *Page 632 Compensation Act to a given statement of facts, to which we add, under circumstances heretofore referred to, some of the provisions of the articles of agreement, denominated Articles of Partnership. The relationship of claimant Zeits to the Plymouth Manufacturing Company is determined by the articles of agreement which he signed, interpreted with reference to the provisions of the Unemployment Compensation Act (Acts 1936, p. 80, and the amendments, Acts 1937, p. 705). The declaration of public policy of the Act (§ 52-1501, Burns' 1933 (Supp.)) clearly indicates that the Act is purposed as a relief to unemployment for those who for a time enjoy a 1. service relationship followed by a period of unemployment. Therefore, any contract for the performance of service will be scrutinized beyond the mere form for the purpose of determining whether the relationship of the parties involved falls within the provisions of the Act. Let us first determine, without regard to the question of partnership, whether Zeits, under the facts, comes within the provisions of the Unemployment Compensation Act. Upon examination of the Act we find that § 52-1501, Burns' 1933 (Supp.), contains a glossary of definitions of certain terms which aid in determining the relationship of the claimant to the Plymouth Manufacturing Company. "`Employing unit' means: Any individual or type of organization, including any partnership, association. . . ." § 52-1502 (f) (1), Burns' 1933 (Supp.). "`Employment' . . . means service, including service in interstate commerce, performed for remuneration, or under any contract of hire, written or oral, express or implied." § 52-1502 (h) (1), Burns' 1933 (Supp.). *Page 633 There are certain exceptions but they deserve no consideration in this case. Section 52-1502, subsec. (5), par. (A) and (B), Burns' 1933 (Supp.), provides: "(5) Services performed by an individual for remuneration shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the board that: "(A) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and "(B) Such individual is customarily engaged in an independent established trade, occupation, profession or business; or is an agent receiving remuneration solely upon a commission basis, and who is the master of his own time and effort. . . . "`Remuneration' means all compensation payable for personal services, including commissions and bonuses and the cash value of all compensation payable in any medium other than cash. . . . [Subsection (p)]. "`Wages' means all remuneration for employment, including the cash value of all remuneration payable in any medium other than cash, payable to an individual by an employer with respect to employment [Subsection (r)]." The facts submitted and considered by this court reveal that upon the execution of the articles of agreement there existed an "employing unit." This consisted of the senior partners who 2. were empowered by the articles to employ employees. The claimant by reason of his services for which he received so many cents per hour comes within the definition of "employment." *Page 634 The fact that compensation was paid claimant for personal service meets the requirements of the term "remuneration." It naturally follows from the foregoing statements with reference to the terms "employment" and "remuneration" that claimant was the recipient of "wages" as defined in the Act. The only other provisions of the Act which call for consideration under the facts before us are paragraphs (A) and (B) under subsection (5), § 52-1502, supra. Both of the 3. tests under these paragraphs must be established in order that benefits be denied one otherwise entitled thereto.Globe Grain Milling Co. v. Industrial Commission (1939),98 Utah 36, 91 P.2d 512. No question arises concerning paragraph (B) and our only inquiry respecting this feature of the Act is directed to paragraph (A). Was claimant free from control or direction 4. over the performance of the service he rendered both under the contract and in fact? Referring to the portion of the articles of agreement herein before set out we find that paragraph (2) of the articles provides that the senior partners will at all times have general charge and control of the property and shall direct the work done by the junior partners, of which claimant was one. By the provisions of the same section any junior partner guilty of any unlawful, unworkmanlike practice or conduct or disloyalty was subject to have his connection with the firm terminated by the action of the senior partners. In Section (3) of said articles the junior partners expressly agree to repose full power in the senior partners to carry on the prudential affairs of the firm, and further agree that they will conform to the directions given them by *Page 635 senior partners, at all times, to promote the orderly conduct of said company. By this same section the junior partners give the senior partners authority to determine when and to what extent contributions of service and property shall be accepted from any junior member, and the nature and value thereof, etc. Only with the consent of the senior partners shall the firm be dissolved or dissolution proceedings be inaugurated. We think these various provisions are sufficient to show that the claimant was not to be free from control and direction over the contribution or performance of any service rendered by him to the firm. In addition to the provisions of the articles of agreement, the facts submitted by the Review Board contain this statement: "The Superintendent had authority to assign the Junior Partners to their respective positions, supervise the same, and fix their hourly rates of payment for services." If it be said claimant was free from control or direction under his contract, the above-quoted statement is conclusive that claimant was not free from control or direction in fact, a requisite of (5) (A). Our next and last inquiry is: What effect does claimant's membership in this association, as fixed by the Articles of Partnership which he signed, have upon his status as a claimant? There are many definitions of "partnership" stated by courts and eminent jurists. There are also different essentials which have been held to be the test of the existence of a 5. partnership relation. The case of Bacon v. Christian (1916), 184 Ind. 517, 111 N.E. 628, emphasizes the fact that there must be a voluntary contract to carry on the business with intention of the parties to share the profits as common owners thereof. In speaking of "intention" this language is used: *Page 636 "But it must be borne in mind, however, that the intent, the existence of which is deemed essential, is an intent to do those things which constitute a partnership." The case of Macy v. Combs (1860), 15 Ind. 469, stresses sharing the profits, as profits, as an essential to constitute the existence of a partnership. In the case of Bond v. May (1906), 38 Ind. App. 396, 78 N.E. 260, the Court used this language: "To be a partner, one must have an interest with another in the profits of a business, as profits. There must be a voluntary contract to carry on a business with intention of the parties to share the profits as common owners thereof." In the case of Aylesworth v. Aylesworth (1915), 184 Ind. 80, 109 N.E. 750, it is held that the question of the existence of a partnership is one of fact, and is not controlled by the phraseology of the scrivener who prepared the agreement. For the purpose of this case a fair definition of partnership would seem to be: A voluntary contract of association for the purpose of sharing the profits, as such, which may arise from the use of labor or skill in a common enterprise; and an intention of the parties to form a partnership for that purpose. While the Articles of Partnership provide for the contribution of property, the briefs of the Plymouth Manufacturing Company concede that, "there was no investment of any kind by any member of the firm — senior or junior — excepting as they severally `invested' therein their individual skills and labor." Some contention is made that claimant Zeits was not a voluntary signatory to the Articles of Partnership, but we cannot, from the facts submitted, uphold such contention. It is probably true that the inducing cause, *Page 637 which resulted in Zeits' signature to the Articles of Partnership, was the desire to secure employment for which he would draw compensation for his labor, but his signature was not secured by coercion or fraud. Based upon the facts, we are unable to find that there was any genuine intention on the part of the junior partners to 6. enter into a partnership agreement. What rights or advantages did the junior partners have over ordinary employees? They were subject to control and direction, and by the terms of the contract, senior partners were fully authorized to, and did, control the junior membership and the tenure of their participation in the association. As further bearing on the question of intention the senior partners evaluated the drawing account of the junior partners, had full power over the question of dissolution, and could in effect hire any new junior member and fire old ones. In addition to this the sublease to the firm ran from month to month, and the original lease to the senior partners was for a like period. There was a provision by which the junior partners would divide among them, on a basis fixed by the articles of association, ten per cent of the net profits. Assuming the organization made a profit of fifty thousand dollars ($50,000) per year, this would leave five thousand dollars ($5,000) to be distributed among the junior partners. If they were all to share equally, according to the number signing the original articles of agreement, each junior partner would receive less than fifty dollars ($50). It is not plausible that such a sum would foster a voluntary intention to execute the articles of agreement. The share received of the net earnings by each of the junior partners is more consonant with a *Page 638 bonus, which, under our Unemployment Compensation Act, is compensation. The share of the net earnings as compensation is antagonistic to sharing the profits, as profits, and removes that essential to the existence of a partnership. The Articles of Partnership are meticulously and cautiously drafted and some of the language used calls for analysis. The junior partner's Participation Certificate, set out as a 7. part of the agreement, provides that, "One hour of service contributed shall, in the case of the holder hereof, constitute a basic unit and be reckoned at a value of ____ cents, which he shall be at liberty to withdraw from the partnership funds ten days after such contribution has been made." While this particular clause speaks of a contribution of service, it also provides a remuneration for such service at a value of so many cents per hour agreed upon by the senior partners under the original agreement and the holder of such certificate, and by the Board of Control and the holder of such certificate, subsequent to the amendment of the articles on the seventh day of November, 1939. An hour of service could only be contributed by the individual performance of such service, and if the value of such contribution or performance could only be withdrawn from the partnership funds subsequent to such contribution or performance, then we have a service performed for remuneration. This situation created a service relationship between the "employing unit" and the junior partners which would entitle the junior partners to the benefits of the Unemployment Compensation Act, unless it is shown that the claimant be excluded on some ground for which provision is made in the Act itself. *Page 639 Examination of Article 6 of the partnership agreement discloses that the drawing accounts of the junior partners are to be paid out of the income of the firm which includes gross profits. 8. Persons who share in the gross returns and receipts are not necessarily partners. Lindley on Partnerships, 9th Edition, pp. 42-44. We hold that under all the circumstances as shown by the facts that there was not a sharing of the profits, as such, by the junior partners and therefore this essential of a partnership is lacking. With both essentials, intention, and sharing profits as such, missing, a partnership relation between the senior partners and the junior partners cannot be sustained. Our view is influenced by the decisions of other courts which have had under consideration similar statutes. In the Globe Grain Milling Company v. Industrial Commission,supra, speaking with regard to a section of a statute quite similar to § 52-1502, Subsection (5) (A) (B) of our statute, it was held that this section signifies a relationship entitled to benefits of the Act beyond that of mere master and servant relationship. To the same effect is the statement of the court inMcDermott v. State (1938), 196 Wn. 261, 82 P.2d 568. On the right of the legislature to fix standards of interpretation the Supreme Court of the United States said, the power of the General Assembly to broaden or restrict common law concepts is widely recognized. New York Central R. Co. v. White,243 U.S. 188. The Supreme Court of North Carolina in a decision involving the Unemployment Compensation Act of that state uses this language: "An examination of the pertinent definitions in the Unemployment Compensation Act makes it *Page 640 readily apparent that such words as `employment,' `employer,' `employing unit,' `wages,' and `remuneration,' when used in the Act, are not used as words of art having rigid, precise and restricted meanings, but rather, as defined by the Act itself, are used as broad terms of description, evidencing a legislative intent to give to the Act a broad and liberal coverage to the end that the far-reaching effects of unemployment may be alleviated." Unemployment Compensation Commission v. Jefferson Standard Life Ins. Co. (1939), 215 N.C. 479, 2 S.E.2d 584. This court has spoken with reference to the liberal interpretation of legislation of this character in the case ofKunkler v. Mauck (1940), ante p. 98, 27 N.E.2d 97, and cases therein cited. We further hold that the amendments of November 7, 1939, to the Articles of Partnership, did not change the status of one who was formerly a junior partner as to his rights to claim 9. benefits under the act in question. Our answers to the certified questions of law are as follows: (1) The Plymouth Manufacturing Company was a partnership prior to November 7, 1939, and its membership was composed of the parties designated Senior Partners. (2) The Plymouth Manufacturing Company was a partnership subsequent to November 7, 1939, and the membership of the Board of Control were the partners. (3) Yes. (4) Yes. (5) Yes. The answers to questions one to five, inclusive, make unnecessary an answer to question six as the Board has all the evidence before it. NOTE. — Reported in 31 N.E.2d 209. *Page 641

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426760/

Appellee brought this suit to set aside two certain quit claim deeds which purported to convey certain real estate to the appellant. This complaint was in four paragraphs, two of which were filed at the time the suit was commenced, and the third and fourth paragraphs subsequently thereto. Paragraphs one and three each sought to set aside a certain deed dated April 2, 1941, and paragraphs two and four a deed dated November 22, 1943. From a judgment setting aside the first mentioned deed and reforming said last mentioned deed and quieting title in each of the parties hereto to certain interests in the real estate involved, this appeal is taken. The facts in this case disclose that the appellee and her brother Charles Holdeman and sister Maude B. Hardesty were each the owners of an undivided one-third interest in fee simple in and to the real estate described in the complaint by virtue of inheritance from their mother and that appellant was the son of appellee; that at the time this suit was commenced there appeared of record in the recordor's office of the county where the real estate was located, each of the above mentioned quit claim deeds. The first mentioned conveyance purporting to be executed by appellee's sister and her husband conveyed a one-third interest in the said real estate to the appellant, and that the second purported to be a deed executed by appellee dated subsequent to the first mentioned deed and conveying all of appellee's then or after acquired interest in said real estate to the appellant. The theory of the first paragraph of the complaint is that the appellee had purchased her said sister's one-third interest in said real estate and that the sister, along with her husband, had executed a deed to the appellee in conformity with said purchase, which *Page 554 deed was intrusted by appellee to an attorney for the purpose of having the same recorded which was not done, that the attorney claimed this deed had been lost and that thereafter the sister and her husband, for the purpose of replacing the lost deed, had gone to the attorney's office and executed a new deed for her undivided interest to take the place of the one that had been lost, but due to the mistake or inadvertence of the attorney appellant was named as the grantee therein instead of the appellee. The third paragraph of complaint does not mention the lost deed referred to in the first paragraph of the complaint but merely alleges the purchase by her of said one-third interest in the real estate from her sister, and that the attorney with the connivance of the appellant had named the appellant as grantee in said deed instead of the appellee; that the appellant was so named as grantee without the consent or knowledge of the appellee and for the purpose of perpetrating a fraud upon her, that in truth and in fact she had purchased the real estate from her sister and that the deed should have named her as grantee, and that the same should be set aside and that her title in said land should be quieted. The second paragraph of the complaint alleges that on November 22, 1943, the appellee was induced by said attorney to go to his office to sign a document prepared by him which he represented to her was for the purpose of avoiding certain inheritance taxes; that upon her arrival she was given a paper to be signed and acknowledged by her and her husband; that thereupon accompanied by said attorney's secretary she went from his office to her home and there along with her husband *Page 555 did sign this paper which proved to be a deed for all her interests presently or after acquired in the real estate so inherited by her and her brother and sister from their mother; that she did not know the character and effect of the document she executed and did not intend to convey any of the real estate to appellant by the instrument, and that the same was obtained through misunderstanding on the part of the appellee and through fraud on the part of the appellant. The fourth paragraph of complaint, after setting out the allegations alleged in the second paragraph thereof, attempts to allege that there was fraud on the part of the appellant in inducing her to execute said document dated November 22, 1943, but wholly fails to show what appellant did which constituted fraud upon the appellee. This paragraph also prays that said deed be set aside and that her title be quieted against the appellant. Neither paragraph of this complaint was tested by demurrer. The appellant filed answer to each paragraph. As no questions are raised as to the propriety of these answers or the admission of proof under the same, it will not be necessary to detail the matters alleged in them. It is admitted that appellee's mother had died intestate prior to any of the transactions complained of by appellee in her complaint and that she, her brother and sister were the sole heirs of the deceased and as such, each was the owner of an undivided one-third of the real estate left by the mother, and that at the time of the execution of the first purported deed dated April 2, 1941, each continued to be the owner of the portion so inherited by him or her. It is also admitted that appellee, at the time the purported deed from her sister *Page 556 was executed paid to her sister a cash consideration therefor. Appellee's evidence was to the effect that appellee was to be named as grantee in said deed executed by her sister and that the name of the appellant was inserted by the scrivener as grantee without her knowledge or consent or without any consideration being paid by the appellant or by anyone on his behalf and that she discovered said mistake shortly before the bringing of this action. Further, that appellee had never intended to execute said deed of November 22, 1943, but that she signed the same through the inducement of the attorney who prepared the same, that the same was a paper which would "avoid the payment of any inheritance tax" and that neither she nor her husband read or knew of the import thereof; and that she had no intention of conveying any of her real estate to the appellant by this paper. The evidence offered by the appellant was to the effect that he had lived with the mother of appellee, his grandmother, for several years prior to her death and had taken care of her during said time and had farmed the real estate involved herein; that he had done so pursuant to an oral agreement with his mother which provided that in return for his so doing she would, at the death of her mother, obtain the interest of her sister in said real estate and convey that along with her interest to the appellant and that the two deeds in question were made in conformity with and to carry out this agreement; all of which was denied by the appellee. Upon this evidence the court rendered judgment which, insofar as it is pertinent to this case reads as follows: "That said deed bearing date of April 2d 1941, whereby Maud B. Hardesty and John S. Hardesty, *Page 557 her husband, purport to have conveyed to defendant, Myron E. Culp, an undivided one-third (1/3) interest in and to said real estate, be, and the same is hereby set aside and decreed to be null and void and of no effect. "It is further hereby considered and adjudged that the quit-claim deed bearing date of November 22d 1943, whereby the plaintiff, Chloe M. Burkle, purports to convey to the defendant Myron E. Culp, all of her then interest in and to said real estate and any subsequently acquired interest therein, be, and is hereby reformed to convey to said defendant, only an undivided one-third (1/3) interest in and to said real estate and not any interest therein acquired by plaintiff subsequent to said date. "It is further hereby considered and adjudged that the plaintiff's title to an undivided one-third (1/3) interest in and to all of said real estate is hereby quieted in her and defendant is hereby adjudged to have no right, title or interest in or to her undivided one-third (1/3) interest in said real estate. "It is further hereby adjudged and decreed that defendant's title be and is hereby quieted to an undivided one-third (1/3) interest in and to said real estate and that the plaintiff is adjudged and decreed to have no right, title or interest in his said undivided one-third (1/3) interest." Appellant by proper assignment contends that the foregoing decision is contrary to law and with this we agree. Whether or not there was sufficient evidence to show the absence of negligence on the part of the appellee in executing the deed of November 22, 1943, we need not decide. If, by the first part of this judgment it was meant to be decided that the deed of April 2, 1941, was actually void and of no effect, then the legal title to the third interest therein attempted to be conveyed clearly continued to reside in the grantors. If, however, it was *Page 558 therein meant to be decided that the deed was void and of no effect only insofar as the appellant was concerned, and that by that deed the appellee became the owner, in equity perhaps, of that one-third interest, the appellee was, on the date she executed the quit claim deed to the appellant, the owner of a two-thirds interest in the real estate. It would seem to us that the judgment in its entirety leans in the latter direction and requires us to indulge that assumption for the purpose of deciding the other feature of the case. There was no evidence upon which the court could reform the deed of November 22, 1943. Under appellee's evidence this instrument was not a valid conveyance. Appellant's evidence on the other hand was that the same was a conveyance of the entire interest of the appellee. There is nothing in the evidence produced by either party from which an inference could be drawn that there was an intention to convey any interest other or less than the amount said instrument purported to convey. There was no middle ground. The instrument was a valid conveyance operating to transfer all of appellee's interest in the property or it was not valid and operated to convey nothing. It thus appears that not only is the first portion of the judgment vague and uncertain but the latter part is clearly not supported by any evidence and is, therefore, erroneous. It is not sufficient to say that no appeal will lie in this case because the party who suffered a loss is not complaining. We can account for this judgment only on the theory that the trial court was trying to "split the difference." For the errors appearing, and because upon an examination of the entire record it seems apparent that the *Page 559 ends of justice require that the cause be tried anew, the judgment is reversed and the cause remanded with instructions to sustain appellant's motion for new trial. NOTE. — Reported in 69 N.E.2d 169.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426763/

This is an original action seeking a writ prohibiting the respondents from attempting to exercise jurisdiction over the property of the Madison Insurance Company. There is a cross-petition by Harold K. Bachelder, Receiver for said company, appointed by the respondent court, seeking a writ prohibiting the petitioner and the Putnam circuit court from exercising any jurisdiction over the property of the Madison Insurance Company. The facts are as follows: On Saturday, the 17th day of March, 1934, in the afternoon, one Alvah P. Warman filed his complaint in the Marion superior court, Room 2, against the Madison Insurance Company alleging that he is a creditor, and alleging facts showing that the defendant was in imminent danger of insolvency, and asking for the appointment of a receiver. A summons was issued on the same day. The return shows the summons was served by reading to Harry C. Baldwin, general agent of the company, there being no officer of the company found in Marion county, on March 20, which was Tuesday. On Monday, March 19, Warman filed a verified petition in the above action asking for the appointment of a receiver for the defendant pending the hearing upon his complaint, and the court caused notice of a hearing upon said petition to be issued, fixing the 31st day of March, at 10:30 o'clock A.M., as the time for the hearing on said petition. This notice was served upon Harry C. Baldwin, by the sheriff of Marion county, on March 20. On Monday, the 19th day of March, 1934, an action was *Page 76 begun in the Putnam circuit court seeking the appointment of a receiver. An officer of the company appeared to said action and consented to the appointment, and the petitioner herein was appointed receiver by the Putnam circuit court on the 19th day of March, 1934. The Madison Insurance Company maintained no office, and had no officer or agent, in Putnam county at the time the action was begun and the receiver was appointed by the Putnam circuit court. It did maintain an office and had an agent in Marion county at the time the action in the Marion superior court, Room 2, was commenced, and service was had upon said agent. The Madison Insurance Company appeared in the Marion superior court, Room 2, in the case of Alvah P. Warman v.Madison Insurance Company, and filed a plea in abatement seeking to abate the action of Alvah P. Warman by reason of the appointment of a receiver for the defendant by the Putnam circuit court on the 19th day of March. On March 31 the superior court of Marion County, Room 2, heard evidence and appointed Harold K. Bachelder as Receiver for the Madison Insurance Company. Both receivers qualified, and the receiver appointed by the Putnam circuit court first acquired possession of the property of the insurance company. The only question presented is, Which of the courts of admittedly equal and concurrent jurisdiction acquired jurisdiction, and which receiver is entitled to 1-4. possession of the property of the insurance company? It is settled beyond controversy that, as between courts of equal concurrent jurisdiction, in actions for the appointment of a receiver, that court which first acquires jurisdiction shall have dominion over the subject matter. There is much apparent contrariety of opinion as to when the jurisdiction of the first court does, in fact, attach so as to give it exclusive control of the property. It is said in 7 R.C.L., § 106, p. 1069: *Page 77 "Some authorities lay down the rule that it attaches when invoked by the filing of the bill; others that it is determined by the priority of service, and others by the priority of appointing a receiver." Many cases have been cited from Federal jurisdictions, but we feel that there may be in those opinions certain considerations affecting the conflict in jurisdiction between state and federal courts, by reason of which perhaps they are not the best guide in the solution of the problem presented. A similar question was discussed by this court in the case ofColeman v. Callon (1916), 184 Ind. 204, 206, 110 N.E. 979. In that case a suit was commenced for the appointment of a receiver in the superior court of Marion county, on February 9, 1915, and on the same day a summons and notice that a petition for a receiver would be heard by that court on February 11th, were issued and served. On February 10th a second paragraph of complaint, asking for the appointment of a receiver, was filed in an action already pending against the same defendant in the circuit court of Marion county. Service was had upon the defendant, and a receiver was appointed by the circuit court upon the same day, February 10th. On February 11th, pursuant to the notice referred to, a receiver was appointed by the superior court. Deciding the case, this court said: "It is conceded that both courts had authority to appoint a receiver and the question narrows down to the proposition which court had first taken jurisdiction of the matter of the appointment of a receiver. There is no question but that where two tribunals possess concurrent and complete jurisdiction of a subject-matter, and the one before which proceedings are first instituted and which thus acquires jurisdiction of the subject has the jurisdiction to the exclusion of all other tribunals. (Authorities.) . . . The superior court took jurisdiction in this matter on February 9 when it ordered notice to the envelope company, and it was complete on service of this notice upon the company; *Page 78 all this occurred prior to the filing of the amended second paragraph of complaint in the case in the circuit court, and all of which the envelope company had notice before it appeared to the petition in the circuit court on February 10, at five o'clock. The jurisdiction of the superior court as to the appointment of a receiver had been invoked on February 9, 1915; that of the circuit court not until the next day. Where the jurisdiction of a concurrent court has been invoked, it is the duty of that court to retain such jurisdiction and proceed to final hearing and disposition of the matter in hand and its jurisdiction cannot be ousted by the action of any other court of concurrent jurisdiction." It will be noted that the opinion holds that the superior court took jurisdiction when it ordered notice to the envelope company, and, although it adds that the jurisdiction was complete on service of the notice on the company, this can only mean that it thus acquired jurisdiction of the person. But it is significant that the opinion further says that, where the jurisdiction of aconcurrent court has been invoked, it is the duty of that court to retain such jurisdiction. The decision of the case clearly was not made to depend upon the time of the appointment of the receiver or upon possession of the property of the defendant by a receiver, but entirely upon the question of the time of acquiring jurisdiction of the actions for the appointment of a receiver, and, while it is said that the superior court took jurisdiction when it ordered notice to the envelope company, the court concludes by saying that the jurisdiction of the superior court had been first invoked, and that, where the jurisdiction of a concurrent court has been invoked, it is the duty of that court to retain such jurisdiction. Webster defines the word "invoke" as "to call on for aid or protection; to invite earnestly or solemnly, as in prayer; to solicit or demand by invocation; as, to invoke the Supreme Being, or to invoke His aid." It *Page 79 would seem that the jurisdiction of a court is invoked when an action is begun by the filing of a complaint and the issuing of a summons. These steps invest the court with jurisdiction in a proper case to issue restraining orders without notice, to issue notices concerning the appointment of receivers pendente lite, and, under our statute, upon a proper showing, a receiver may be appointed at any time after the filing of a complaint and the issuing of summons, without notice, and such an appointment might have been made in this case by the superior court of Marion county upon a proper showing. It can hardly be said that a court has not acquired jurisdiction of an action, or the subject matter of an action, or jurisdiction to appoint a receiver, when, upon a proper showing and without further notice to the defendant, a receiver might have been appointed. It is true that courts are not jealous of their jurisdiction, and that the solemn administration of justice requires that they shall not indulge in undignified and unseemly haste in the serving of writs and notices in order to protect their jurisdiction, one from another. In cases seeking the appointment of receivers it is not the courts, but either the parties plaintiff seeking the appointment of a receiver, or the defendant for whom the receiver is sought, who precipitate jurisdictional controversies in an effort to procure some fancied advantage by the appointment of a receiver in a jurisdiction of their own choosing. Facts are alleged in both actions authorizing the appointment of a receiver, and by appearing in the Putnam circuit court, through its officer, and consenting to the appointment 5, 6. of a receiver, the Madison Insurance Company concedes the necessity for a receiver in the interest of creditors. Why a creditor should go to the county seat of Putnam county, where the defendant company had no officer or agent, or *Page 80 office, or place of business, in order to seek the appointment of a receiver, and why at the same time an officer of the defendant company should also make his appearance in Putnam county and consent to the appointment of a receiver when an action was already pending in Marion county, where the defendant company did maintain an office and did have an agent, seeking the same relief, is not explained, nor is it explained why, after consenting to the appointment of a receiver in Putnam county, the company the next day appeared in the superior court of Marion county seeking to abate the action there brought asking the same relief. If after an action has been brought invoking the jurisdiction of a court of competent jurisdiction, and pending the decorous and orderly service of process, the defendant may rush to another jurisdiction and consent to a judgment granting the same relief asked in the first action, and thus prevent the first court from exercising the jurisdiction which the first action invoked, the way is open for a most unseemly jockeying on the part of defendants for a voice in naming the receiver. The interests of all parties may be preserved, and all parties might be heard, in the first action. The relief sought, the appointment of a receiver, is for the benefit of all. The more orderly manner of procedure is to permit the court whose jurisdiction is first invoked to deal with the question in the orderly and ordinary course of events, and to permit its receiver when appointed to function. If in the interim, and without notice of the prior proceeding, another court has presumed to act, its orders should be set aside upon a showing that a court of concurrent jurisdiction whose action was previously invoked had acted. Such a procedure injures no one, for courts have no interest in entertaining jurisdiction of actions except to render relief to the parties, and, since both court and receiver act in the *Page 81 interest of all parties, no injury is done the creditor who brought the second action. It may be that if the receiver appointed in the second action has done something toward conserving the trust property, which is of benefit to the trust estate, his expenses in so doing, and the costs of the action in which he was appointed, and compensation for his services, should be allowed as part of the expense of administration. But if it should appear that the second action had no other purpose than to influence the selection of the person who was to act as receiver, no such allowance should be made. In this case it appears that the action was begun in the Marion superior court in good faith; that summons was promptly issued and served within a reasonable time. There is no suggestion that the action was not pressed toward service, and to effect the remedy sought, with reasonable promptness. In such a case we are of the opinion that the ends of justice will be fully subserved, and much apparent unseemly controversy between courts will be avoided, by adhering to the rule that, where the jurisdiction of a concurrent court has been invoked by the filing of an action asking the appointment of a receiver and the issuing of summons, its jurisdiction cannot be ousted by the action of any other court of concurrent jurisdiction. The petition of Clinton H. Givan, Receiver, is denied, and the cross-petition of Harold K. Bachelder, Receiver, is sustained; and it is ordered that the circuit court of Putnam county, and Hon. Wilbur S. Donner, judge of said court, and Clinton H. Givan, Receiver of the Madison Insurance Company, under appointment of the Putnam circuit court, are prohibited from exercising any jurisdiction over the property of the Madison Insurance Company, or interfering with the jurisdiction of the Marion Superior Court, Room 2, and its receiver, over said property; and Clinton H. Givan, Receiver, is *Page 82 ordered to deliver to Harold K. Bachelder, Receiver, any property of said company which may be in his possession.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/7247109/

KAREN K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY A plot of land known as Tract 46 in Pike County, Kentucky has valuable coal and two owners who cannot agree on how it should be used. One cotenant, Pike-Letcher *1017Land Company ("PLLC"), has conveyed the right to enter and surface mine coal to its affiliate Premier Elkhorn Coal LLC. The other cotenant, M.L. Johnson Family Properties, LLC, has not consented to mining. Over Johnson LLC's objection, Kentucky has granted Elkhorn a right of entry to surface mine Tract 46. Johnson LLC challenged that decision before the Secretary of the Interior and now seeks review of the administrative decision that permitted Elkhorn to commence mining operations. For the reasons discussed below, the Court affirms the Secretary's decision. I. Statutory and Regulatory Framework Coal companies must comply with certain minimum requirements before mining a surface estate. Those requirements are set forth in the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"). 30 U.S.C. § 1201 et seq. SMCRA's regulatory requirements are primarily implemented through a permitting regime. 30 U.SC. § 1256(a) ("[N]o person shall engage in or carry out on lands within a State any surface coal mining operations unless such person has first obtained a permit issued by such State pursuant to an approved State program or by the Secretary pursuant to a Federal program ...."). As § 1256(a) suggests, regulatory power under SMCRA is not solely vested in the federal government. Instead, states which "wish[ ] to assume exclusive jurisdiction over the regulation of surface coal mining" are invited to submit to the Secretary a state program "which demonstrates that such State has the capability of carrying out the provisions of this chapter and meeting its purposes." 30 U.S.C. § 1253(a). This system of "cooperative federalism" sets SMCRA as a national floor for regulation of surface mining, but permits state's to develop more demanding regulatory regimes. Kentuckians for the Commonwealth v. U.S. Army Corps of Eng'rs , 746 F.3d 698 (6th Cir. 2014) (citing Hodel v. Va. Surface Mining & Reclamation Ass'n , 452 U.S. 264, 289, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) ). Once a state submits and receives approval of its state program, SMCRA's grant of "exclusive jurisdiction" means that state law, not federal law, governs surface mining within the state. See Bragg v. W. Va. Coal Ass'n , 248 F.3d 275, 295 (4th Cir. 2001) ; see also In re Permanent Surface Min. Regulation Litig , 653 F.2d 514, 519 (D.C. Cir. 1981) (en banc) ("[I]t is with an approved state law and with state regulations consistent with the Secretary's that surface mine operators must comply. Administrative and judicial appeals of permit decisions are matters of state jurisdiction in which the Secretary plays no role.") (internal citations omitted). SMCRA's grant of exclusive jurisdiction to state regulatory authorities contains an important exception. The Office of Surface Mining Reclamation and Enforcement ("OSMRE") retains authority to conduct a federal inspection of an existing mine if (i) there is reason to believe a permitee is in violation of a state program requirement or permit condition, (ii) OSMRE has provided notice of the suspected violation to the state, and (iii) the state fails to take corrective action or show good cause for the failure within ten days.1 30 U.S.C. § 1271(a)(1). If, after conducting an inspection, OSMRE determines that a permitee is in violation of a program requirement or permit condition, and that violation "creates an imminent danger to the health or safety of the public, *1018or is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources," the Secretary must "immediately order a cessation of surface coal mining" operations. Id. § 1271(a)(2).2 A cessation order may only remain in effect until OSMRE "determines that the condition, practice, or violation has been abated, or until modified, vacated, or terminated by [OSMRE]." Id. ; see 30 C.F.R. § 843.11(f). Kentucky received the Secretary's approval of its state program in May 1982 and the Kentucky Department of Natural Resources and Environmental Protection was deemed the Commonwealth's regulatory authority for surface coal mining. 30 C.F.R. § 917.10 ; see generally Ky. Rev. Stat. Ch. 350; 405 Ky. Admin. Reg. Ch. 1-30. Kentucky's permitting requirements largely mirror those set forth in the federal statute and implementing regulations. See Ky. Rev. Stat. 350.060 ; 405 Ky. Admin. Regs. 8:001 et seq. Having had its state program approved, changes to Kentucky law or regulations that "affect the implementation, administration, or enforcement of the approved State program" cannot "take effect for purposes of a State program until approved as an amendment" by the Secretary. 30 C.F.R. § 732.17(b), (g). SMCRA sets forth the minimum national requirements for establishing a valid right of entry in order to receive surface mining permit approval: No permit or revision application shall be approved unless the application affirmatively demonstrates ... that- (6) in cases where the private mineral estate has been severed from the private surface estate, the applicant has submitted to the regulatory authority- (A) the written consent of the surface owner to the extraction of coal by surface mining methods; or (B) a conveyance that expressly grants or reserves the right to extract the coal by surface mining methods; or (C) if the conveyance does not expressly grant the right to extract coal by surface mining methods, the surface-subsurface legal relationship shall be determined in accordance with State law: Provided , That nothing in this chapter shall be construed to authorize the regulatory authority to adjudicate property rights disputes. 30 U.S.C. § 1260(b)(6)(A)-(C). SMCRA's implementing regulation is substantively identical to the statutory language, but is restated to require the applicant to submit documentation that establishes a right to entry under each provision. 30 C.F.R. § 778.15.3 Kentucky's analogous regulation is also restated in terms of the documentation requirements for an application. 405 Ky. Admin. Regs. 8:030 Sec. 4(1)-(3) (2014).4 Most pertinent, subsection (C) requires *1019the following documentation for severed estates: If the conveyance does not expressly grant the right to extract the coal by surface mining methods, a copy of the original instrument of severance upon which the applicant bases his right to extract coal by surface mining methods and documentation that under applicable state law, the applicant has the legal authority to extract the coal by those methods. 405 Ky. Admin. Regs. 8:030 Sec. 4(2)(c). The burden to establish compliance with these right of entry provisions falls squarely on the permit applicant. 30 U.S.C. § 1260(a) ("The applicant for a permit, or revision of a permit, shall have the burden of establishing that his application is in compliance with all the requirements of the applicable State or Federal program."). II. Factual and Procedural Background The mineral and surface estates of Tract 46 in Pike County, Kentucky have been severed since the early 1900s. The mineral estate is owned by PLLC. The surface estate, which consists of approximately 450 acres, was previously owned by M.L. Johnson, who left an undivided interest to each of his eight heirs. Two of the heirs conveyed their interests to PLLC, while five transferred theirs to Johnson LLC. By fall 2014, the surface estate was owned collectively by Johnson LLC (62.5%), PLLC (25%), and the eighth heir (12.5%) as tenants in common.5 PLLC entered into an Original Right of Entry Agreement in 1995, and an Amended Right of Entry Agreement in 2013 with its affiliate Elkhorn, granting it the right to enter and conduct surface mining operations. Johnson LLC has not consented to surface mining on Tract 46. The Kentucky Cabinet first issued Elkhorn a permit for surface mining operations on Tract 46 in 2003. Elkhorn subsequently sought approval of Amendment # 1 to increase the number of acres covered by the permit.6 The Cabinet determined that Elkhorn had demonstrated a right of entry based upon the consent of PLLC and the holding of the Kentucky Court of Appeals in Johnson v. Envtl. & Pub. Prot. Cabinet , 289 S.W.3d 216 (Ky. Ct. App. 2009). Certain Johnson heirs initially challenged Amendment # 1 in Kentucky's Office of Administrative Hearings on the basis that not all cotenants consented to surface mining, but the heirs ultimately dismissed that appeal with prejudice. Instead, Johnson LLC initiated a citizen suit pursuant to 30 U.S.C. § 1270(a) in this Court. That suit sought an injunction to compel the Secretary to inspect Elkhorn's permit, alleging the Cabinet's permit approval violated 30 U.S.C. § 1260(b)(6)(A) because Elkhorn did not have the written consent of all surface cotenants, and a preliminary injunction to stop surface mining operations on Tract 46. Compl., M.L. Johnson Family Properties, LLC v. Jewell , No. 14-CV-78-ART, ECF No. 1 (E.D. Ky. 2014). While Johnson LLC's citizen suit was pending, the Cabinet approved Minor Revision # 1, updating the surface ownership information for Tract 46, and Minor Revision # 2, finding that the application contained sufficient documentation to satisfy the right of entry requirements of 405 Ky. Admin. Regs. 8:030 Sec. 4(2)(c) and *102030 U.SC. § 1260(b)(6)(C). On June 13, 2014, then District Judge Amul Thapar issued a preliminary injunction order in the citizen suit, finding that Johnson LLC had demonstrated a likelihood of success on the merits that 30 U.S.C. § 1260(b)(6)(A) required the consent of all surface owners. M.L. Johnson Family Properties, LLC v. Jewell (Johnson I ), 27 F.Supp.3d 767, 773 (E.D. Ky), vacated as moot , No. 14-5867, Order, ECF No. 29-2 (6th Cir. Oct. 31, 2014). In compliance with the preliminary injunction, OSMRE conducted a federal inspection of Elkhorn's permit and, applying this Court's interpretation of 30 U.S.C. § 1260(b)(6)(A), found that Elkhorn's permit was non-compliant because Johnson LLC did not consent to mining. Elkhorn's alternative claim that its permit was valid under 30 U.S.C. § 1260(b)(6)(C), as approved by Minor Revision # 2, was rejected as procedurally flawed due to the lack of adequate notice and opportunity to object. OSMRE concluded that Elkhorn lacked a valid permit and issued a cessation order. Seeking to abate the cessation order, Elkhorn submitted (1) copies of the original severance, deed which did not expressly grant the right to surface mine, (2) chain of title documents, and (3) the Original and Amended Right of Entry Agreements. Elkhorn's application also cited to the Kentucky Court of Appeals decision in Johnson , 289 S.W.3d 216, holding that consent of one cotenant could satisfy the right of entry requirement. The Cabinet approved Minor Revision # 3. Johnson LLC filed an objection with the Cabinet to the proposed revision, but did not pursue a state administrative appeal. OSMRE determined that Minor Revision # 3 abated the violations and moved to terminate the cessation order. The Hearings Division issued a decision upholding the issuance of the cessation order and granting OSMRE's motion to terminate the order. Premier Elkhorn v. OSMRE , NX-2014-01-R Consolidated (Dec. 19, 2014). Following an unsuccessful appeal to the Interior Board of Land Appeals ("IBLA") by Johnson LLC, OSMRE's Lexington Field Office issued the termination order. Johnson LLC filed an application for review of that order with the Hearings Division, which was heard by Administrative Law Judge ("ALJ") Harry C. Sweitzer. On October 30, 2015, the ALJ issued a decision upholding OSMRE's termination of the cessation order. Johnson LLC now appeals from that decision and has filed a motion for summary judgment. (DE 46). Defendant Ryan Zinke, Secretary of the Interior, and Defendant-Intervenor Elkhorn have filed responses in opposition and cross-motions for summary judgement. (DE 62, DE 63). All parties have filed replies (DE 68, DE 71, DE 75) and this matter is now ripe for a decision. III. Standard of Review Johnson LLC seeks review of the ALJ's decision under SMCRA, 30 U.S.C. § 1276(a)(2), and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702 - 703. Because there are no factual disputes, this matter is appropriate for disposition on summary judgment. Fed. R. Civ. P. 56(a). ("The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."). SMCRA limits this Court's review to whether the Secretary's action was arbitrary, capricious, or otherwise inconsistent with law. 30 U.S.C. 1276(a)(2) ; see Drummond Coal Co. v. Hodel , 796 F.2d 503, 504 n.1 (D.C. Cir. 1986) ("With an exception not here relevant, Section 1276(a)(2) of the SMCRA incorporates the arbitrary and capricious standard of review set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982)."). *1021This Court reviews questions of law de novo , but, in doing so, "deference may be owed where the agency is reasonably interpreting the statutes it is charged with administering." R/T/ 182, LLC v. F.A.A. , 519 F.3d 307, 309 (6th Cir. 2008). If a statute is silent or ambiguous with respect to a specific issue, this Court must uphold the agency's interpretation if it is "based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). An agency's interpretation of its own regulations are also owed deference by a reviewing court. Auer v. Robbins , 519 U.S. 452, 461-62, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). IV. Analysis Johnson LLC brings a number of challenges to the ALJ's decision upholding termination of the cessation order and allowing Elkhorn to surface mine Tract 46 pursuant to Minor Revision # 3. For the reasons set forth below, the Court finds that the ALJ's decision was not arbitrary or capricious. A. Elkhorn has a valid right of entry based on Kentucky cotenancy law OSMRE terminated the cessation order that blocked Elkhorn's mining of Tract 46 after the Kentucky Cabinet determined that Eklhorn had established a right of entry under 30 U.S.C. § 1260(b)(6)(C). That decision was upheld by an ALJ, who found that SMCRA and the analogous Kentucky regulations permitted consideration of all relevant state law, including the law of cotenancy. Johnson LLC argues that subsection (C) of § 1260(b)(6), and its implementing regulations, are narrower, allowing the regulatory authority to consider only law interpreting the original severance instrument. As explained below, Johnson LLC's construction of the statute is mistaken. Both U.S.C. § 1260(b)(6)(C) and 405 KAR 8:030 Sec. 4(2)(c) permit consideration of all applicable state law, including Kentucky cotenancy law. 1. SMCRA unambiguously permits a right of entry to be determined based on all relevant state law Determining whether SMCRA, and Kentucky's analogous regulation, grant Elkhorn a right of entry requires untangling the meaning of "the surface-subsurface legal relationship shall be determined in accordance with State law." 30 U.S.C. 1260(b)(6)(C). To do so, the Court must turn to the familiar two-step Chevron framework. 467 U.S. 837, 104 S.Ct. 2778. Chevron obliges the Court to first ask whether "Congress has directly spoken to the precise question at issue." Id. at 843, 104 S.Ct. 2778. If the statute is silent or ambiguous on the issue, the Court turns to step two and asks whether the agency's interpretation is "a permissible construction of the statute." Id. At Chevron step one, as with any matter of statutory interpretation, the analysis begins with the text itself. If the statutory language is "unambiguous and the 'statutory scheme is coherent and consistent' " our inquiry ends. Robinson v. Shell Oil Co. , 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (quoting United States v. Ron Pair Enterprises, Inc. , 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) ). The right of entry provision requires the surface-subsurface relationship to be "determined in accordance with State law." 30 U.S.C. 1260(b)(6)(C). The use of "state law" in this provision is clear: all state law that is relevant to determining the surface-subsurface relationship may be considered. Congress, could have easily chosen to specify a limited type or subject matter of relevant state law. They chose not to. Instead, they left "state law" unmodified. That phrase, standing alone, indicates *1022a clear and unambiguous intent to encompass all forms of state law. Johnson LLC argues that the text, purpose, and legislative history of the statute compel the Court to adopt its narrow reading of "state law." It claims the phrase "surface-subsurface relationship" limits the applicable state law to law interpreting the severance instrument. Johnson LLC puts forth three textual arguments in support of this construction. First, it argues that any ambiguity in subsection (C)'s operative clause is resolved by its prefatory clause, which, it contends, limits subsection (C)'s applicability to instances where the "conveyance does not expressly grant the right to extract coal by surface mining methods." 30 U.S.C. § 1260(b)(6)(C). While a prefatory clause "may ... resolve an ambiguity in the operative clause" its function is clarifying and it cannot "limit or expand the scope of the operative clause." District of Columbia v. Heller , 554 U.S. 570, 577, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Subsection C's prefatory clause does not alter the meaning of "surface-subsurface legal relationship" in the operative clause. Instead, its role is to state the purpose of subsection (C) in the statute as an alternative method for establishing a right of entry where subsection (B) does not apply because the conveyance does not expressly grant a right of entry.7 Johnson LLC's second textual argument is that subsection (B) and (C), when harmonized, support its narrow reading of subsection (C). It frames subsection (B) as applying where the conveyance instrument is explicit in granting or denying the right of entry and subsection (C) as specifying the choice of law when the instrument is not explicit. Johnson LLC's framing of the subsections as operating in parallel is correct. But this parallelism does not narrow the meaning of "state law" in subsection (C) as Johnson LLC claims. While a permitee will only rely on subsection (C) when there is no consent by the surface owner and the conveyance is not explicit, it does not follow that subsection (C) limits state law to the law interpreting the conveyance instrument. Instead, the permitee may invoke state law to demonstrate that either his right of entry is implicit in the conveyance or that some other right of entry exists, such as a right under cotenancy law. Johnson LLC's third textual argument relies on § 1260(b)(6)'s prefatory clause, which limits the subsections applicability to "cases where the private mineral estate has been severed from the private surface estate." 30 U.S.C. 1260(b)(6). This argument, like its first textual argument, seeks to imbue the prefatory clause with a limiting function that goes beyond its proper role. The function of § 1260(b)(6)'s prefatory clause is to make the subsection applicable in instances where there has been a severance, not to limit the scope of the operative clause of subsection (C). Finally, all of Johnson LLC's textual arguments are weakened by the expectation of "a 'clear and manifest' statement from Congress to authorize an unprecedented *1023intrusion into traditional state authority." Rapanos v. United States , 547 U.S. 715, 738, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (citing BFP v. Resolution Trust Corp. , 511 U.S. 531, 544, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) ). Johnson LLC's narrow reading of "state law," as its counsel stated at oral arguments, would mean that SMCRA overrides state property law. But subsection (C) does the opposite of overriding state law. Consistent with SMCRA's cooperative federalism scheme, it instructs the regulatory authority to look to state law where the conveyance does not provide an explicit right of entry. Had Congress intended to displace state cotenancy law, it could have clearly done so by adding limiting language before "state law." Because it choose not to, SMCRA should not be interpreted as preempting common law rights of entry. See United States v. Bass , 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) ("[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance."). Johnson LLC also claims that the broad reading adopted by the ALJ frustrates the fundamental purpose of SMCRA. In enacting SMCRA, Congress identified thirteen purposes. 30 U.S.C. § 1202. In support of its narrow construction, Johnson LLC points to the statutes second enumerated purpose of "assur[ing] that the rights of surface landowners and other persons with a legal interest in the land or appurtenances thereto are fully protected from [surface coal mining] operations." 30 U.S.C. § 1202(b). But neither the ALJ's broad interpretation nor Johnson LLC's narrow interpretation of state law differ in the amount of protection provided for "the rights of surface landowners." If state property law does not provide the surface owner a right to be free from mining operations, SMCRA's purpose is not frustrated. That is the case here. As discussed below, under Kentucky cotenancy law, Johnson LLC has no right as a cotenant to be free from surface mining operations where another cotenant has consented to surface mining. Johnson LLC may have an interest in preventing surface mining on Tract 46, but that is not equivalent to a right to be free from surface mining. Finally, Johnson LLC turns to the lengthy legislative history of SMCRA in support of its narrow construction of § 1260(b)(6)(C). In its view, the legislative history reveals that subsection (C) was the result of a compromise between a full service owner consent requirement and a regime in which the right of entry was left entirely to state law. It primarily relies on a colloquy between Ohio Representative John Seiberling and House Committee on Interior and Insular Affairs Chairman Representative Morris Udall. In that colloquy, Representative Seiberling, who had offered the amendment that would become § 1260(b)(6) and only reluctantly agreed to include subsection (C), stated that he understood that subsection to "require a showing that there is a deed or other instrument of conveyance and that, under the applicable State law, it is construed to authorize surface mining." 123 Cong. Rec. 24419, 24424. Jul. 21, 1977. Chairman Udall stated that this interpretation of subsection C was correct. Id. While the colloquy between Representative Seiberling and Chairman Udall is convincing evidence that those representatives understood subsection (C) to apply narrowly, it does not warrant the Court adopting that construction for two reasons. First, as explained above, the text of subsection (C) is clear: the phrase "state law," without limiting language, clearly applies broadly to include all forms of state law. The Court may "not resort to legislative history to cloud a statutory text that is clear." Ratzlaf v. United States , 510 U.S. 135, 147, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) ; see *1024United States v. Cain , 583 F.3d 408, 418-19 (6th Cir. 2009) (" '[T]he statements of individual legislators ... during the course of the enactment process' may not 'expand[ ] or contract [ ]' legislation when 'the statutory text adopted by both Houses of Congress and submitted to the President' is 'unambiguous.' ") (quoting W. Va. Univ. Hosps., Inc. v. Casey , 499 U.S. 83, 98-99, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) ). Accordingly, legislative history is not relevant to the Court's interpretation of § 1260(b)(6)(C). Second, even if the Court were to consider SMCRA's legislative history to be relevant, the colloquy relied on by Johnson LLC is not the most probative legislative history available on the issue. Instead, the House and Senate Conference Committee Report provides a better guide as to Congressional intent. See Schmitt v. City of Detroit , 395 F.3d 327, 330 n.2 (6th Cir. 2005) (noting that, when resorting to legislative history, courts should not go beyond committee reports). While the House bill required landowner consent for surface mining, expressly or through the conveyance, the Senate bill contained no such consent requirement. The Conference Report explained that § 1260(b)(6) sought to resolve the matter by: [P]roviding that in those cases in which there is no written consent of the surface owner or no express coverage of the right to mine coal by surface methods in the relevant legal instruments that (1) the determination of whether or not the private mineral estate owner or a successor-in-interest has the right to mine the coal by surface methods shall be made in accordance with applicable state law H.R. Rep. No. 95-493, at 106 (1977) (Conf. Rep.) (emphasis added). Like the text of the statute itself, the Conference Report does not place any limit on the type or subject matter of applicable state law. The Conference Report goes on to state that, in such cases, "the applicant would be able to furnish the regulatory authority with any appropriate evidence of its right to engage in surface mining." Id. (emphasis added) While the Report indicates that such evidence would "includ[e] the original severance instrument and legal authority under applicable State law that the language in such instrument gives it the right to mine coal," id. , that example is not exhaustive. See Include , Black's Law Dictionary (10th ed. 2014) ("The participle including typically indicates a partial list."); Gaffney v. Riverboat Servs. of Ind., Inc. , 451 F.3d 424, 436-37 (7th Cir. 2006) ("Use of the term 'including,' followed by a list ... does not purport to limit ...."); see also Trs. of Laborers Pension Tr. Fund-Detroit & Vicinity v. Metallizers of Mid-America, Inc. , No. 13-14874, 2014 WL 4059864, at *4 (E.D. Mich. Aug. 14, 2014) (determining that the word "including" in a collective bargaining agreement indicated a partial list). Thus, the most persuasive legislative history supports the plain meaning of the statutory text: state law in § 1260(b)(6)(C) includes all relevant state law and is not limited to law interpreting the conveyance instrument.8 *10252. Kentucky's regulatory analogue is substantively identical to SMCRA Compliance with SMCRA alone is not enough for Elkhorn to establish a right of entry. Under SMCRA's "cooperative federalism" regime, Elkhorn's permit must also comply with Kentucky's regulations. When Kentucky Cabinet approved Elkhorn's permit application, the text of the Kentucky regulation provided that, "if the conveyance does not expressly grant the right to extract the coal by surface mining methods," the application must contain: [A] copy of the original instrument of severance upon which the applicant bases his right to extract coal by surface mining methods and documentation that under applicable state law the applicant has the legal authority to extract the coal by those methods. 405 Ky. Admin. Regs. 8:030 Sec. 4(2)(c). Elkhorn submitted the severance deed, which did not provide a right to surface mine, and the right of entry agreements executed by PLLC. Johnson LLC argues that the Kentucky Cabinet's approval of Elkhorn's application, and the Secretary's subsequent ratification of that decision, was inconsistent with 405 Ky. Admin. Regs. 8:030 Sec. 4(2)(c). It reads the first clause of Kentucky's regulation as requiring that the severance instrument provide the right of entry. At first glance, this argument has textual merit. The federal regulation that implements 30 U.S.C. § 1260(b)(6)(C) more closely mirrors the statute, requiring only "documentation that under applicable State law, the applicant has the legal authority to extract the coal." 30 C.F.R. § 778.15(b)(3). The addition of the first clause in the Kentucky regulation, therefore, seems to suggest that Kentucky sought to require the severance instrument to provide the right of entry. Looking closer, however, reveals that the Kentucky regulation, while textually different, is substantively identical to SMCRA and the federal regulation. It merely imposes an additional procedural requirement that the applicant submit the severance instrument. First, Johnson LLC's reading would make the second clause of the Kentucky regulation mere surplusage. If the original severance instrument must be the basis for the right of entry, then there is no need to provide "documentation" of the right of entry under state law as required by the second clause. Second, the state regulation, like its federal counterparts, does not contain express limiting language on what state law is "applicable." Third, OSMRE has consistently interpreted the regulation as being "substantively identical to the Federal rule." 59 Fed. Reg. 27235, 27236 (May 26, 1994) (Director's finding # 4). And, most importantly, the Kentucky regulation could not, under Kentucky law, be more stringent than the federal law or regulation. While Kentucky law provides administrative agencies with the power to promulgate implementing regulations when required by federal law, it requires that those "administrative regulations shall be no more stringent than the federal law or regulations." *1026Ky. Rev. Stat. § 13A.120(1)(a). The Kentucky legislature has explicitly applied that prohibition to regulations implementing SMCRA. Ky. Rev. Stat. § 350.028(5) ("Administrative regulations shall be no more stringent than required by [SMCRA]."); see also Ky. Rev. Stat. § 350.465(2) ("The implementation of this section shall contain procedures similar to [SMCRA], and shall require surface coal mining operation performance standards no more stringent than provided for in that act."); Laurel Mountain Res v. Ky., Energy & Env't Cabinet , 360 S.W.3d 791, 799 (Ky. App. 2012) (declaring a Kentucky regulatory provision more stringent than SMCRA null, void, and unenforceable). Accordingly, for these reasons, the Kentucky Cabinet and ALJ were correct to interpret 30 C.F.R. § 778.15(b)(3) as substantively identical to 30 U.S.C. § 1260(b)(6)(C) and to find that Elkhorn satisfied the regulation through submission of Minor Revision # 3. 3. Kentucky state law permits a cotenant to consent to surface mining Having determined that 30 U.S.C. § 1260(b)(6)(C) applies broadly to allow a right of entry on the basis of any type of state law, the question becomes whether Kentucky law gives Elkhorn a right of entry to surface mine Tract 46. The Kentucky Cabinet approved Elkhorn's permit on the basis that Kentucky cotenancy law allows a single cotenant to consent to surface mining over the objection of other tenants in common. That decision was consistent with clearly established Kentucky law. The Kentucky Court of Appeals held that "a cotenant had the right to begin strip mining operations on the subject property despite objections from another cotenant." Johnson v. Envtl. & Pub. Prot. Cabinet , 289 S.W.3d at 220. That decision was based on the common law principle of cotenancy law, followed by Kentucky, that a "cotenant may use and enjoy a common estate in real property in the same manner as if he or she were the sole owner." Id. at 219 (citing York v. Warren Oil & Gas Co. , 191 Ky. 157, 229 S.W. 114 (1921) ); see Taylor v. Bradford , 244 S.W.2d 482, 484 (Ky. 1951) ("[A] tenant in common without the consent of his cotenant, has the right to develop and operate the common property for oil and gas and for that purpose may drill wells and erect necessary plants.") (quoting Prairie Oil & Gas Co. v. Allen , 2 F.2d 566, 571 (8th Cir. 1924) ); New Domain Oil & Gas Co. v. McKinney , 188 Ky. 183, 221 S.W. 245, 250 (Ky. Ct. App. 1920) ("The right of one cotenant to himself occupy and operate the joint property also prevails in the case of a joint ownership in minerals."). The decision also concluded that Kentucky's Broad Form Deed Amendment, Ky. Const. § 19 (2), "did not change in any fundamental way the long-standing law of cotenancy." Johnson v. Envt. & Pub. Prot. Cabinet , 289 S.W.3d at 221. Where, as here, a right of entry is based on the consent of a cotenant, "it is the terms of the lease itself that give [the claimant] the right to mine coal on the property in question, not an application of a broad form deed." Id. Johnson LLC does not claim that Johnson v. Envtl. & Pub. Prot. Cabinet is distinguishable. Instead, it argues that the decision was wrongly decided and that this Court should not rely on it as a state law basis for determining whether a right to conduct surface mining exists. This argument fails for two reasons. First, it cannot be arbitrary or capricious for the ALJ to have relied on a state appellate court decision interpreting the state law at issue. Federal courts frequently construe state law by applying decisions of state courts. See, e.g. , Erie R.R. Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (requiring federal courts to apply state law in diversity of citizenship cases); *1027Meridian Mut. Ins. Co. v. Kellman , 197 F.3d 1178, 1181 (6th Cir. 1999) ("In construing questions of state law, the federal court must apply state law in accordance with the controlling decisions of the highest court of the state. If the state's highest court has not addressed the issue, the federal court must attempt to ascertain how that court would rule if it were faced with the issue. The Court may use the decisional law of the state's lower courts ... in making this determination.") (internal citations omitted). It is not arbitrary or capricious for an administrative agency to do the same. Second, Congress has plainly manifested an intent, consistent with SMCRA's cooperative federalism regime, to incorporate state law into 30 U.S.C. § 1260(b)(6)(C). This Court is not in a position to overrule the Kentucky Court of Appeals decision in Johnson v. Envtl. & Pub. Prot. Cabinet nor should it apply its own interpretation of Kentucky law. The Kentucky Court of Appeals issued a thorough opinion reconciling Kentucky's common law of cotenancy with the state's Broad Form Deed Amendment. Property law is traditionally within the domain of states. See Barnhill v. Johnson , 503 U.S. 393, 398, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992) ("In the absence of any controlling federal law, "property" and "interests in property" are creatures of state law.") (quoting McKenzie v. Irving Tr. Co. , 323 U.S. 365, 370, 65 S.Ct. 405, 89 L.Ed. 305 (1945) ). If Johnson LLC disagrees with Kentucky Court of Appeal's interpretation of state property law, the proper forum to correct that decision is the Kentucky Supreme Court, not a federal administrative agency or federal district court. See Hall v. Callahan , 727 F.3d 450, 453 (6th Cir. 2013) ("Federal district courts do not stand as appellate courts for decisions of state courts.") (citing Rooker v. Fidelity Trust Co. , 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) ). B. Neither the Kentucky Cabinet nor the Secretary adjudicated a property rights dispute SMCRA, and its Kentucky analogue, contains an important limitation on when the regulatory authority may issue a permit under 30 U.S.C. § 1260(b)(6)(C). SMCRA states "[t]hat nothing in this chapter shall be construed to authorize the regulatory authority to adjudicate property rights disputes." Id. ; see 405 Ky. Admin. Regs. 8:030 § 4(3) ("Nothing in this section shall be construed to authorize the cabinet to adjudicate property rights disputes.") Johnson LLC argues that, in contravention of this proviso, the Kentucky Cabinet approved Minor Revision # 3 and OSMRE terminated the cessation order. It claims that the ongoing dispute over whether Premier Elkhorn had a right to enter Tract 46 to extract coal by surface mining methods constituted a property rights dispute. Because of the existence of this dispute, it interprets SMCRA as placing the burden on Elkhorn to obtain a final and unappealable resolution of the dispute before the regulatory authority could approve the application. This is an incorrect reading of the statute. Neither the Kentucky Cabinet nor OSMRE adjudicated a property rights dispute. First, Johnson LLC's position that a final and unappealable judicial determination was required before a permit could be issued is unsupported by the text of SMCRA. In prohibiting adjudication of property rights disputes, the proviso's text contains nothing that suggests a final and unappealable judicial determination concerning an applicant's property rights is required. Finding little support in the text of subsection (C), Johnson LLC again turns to the legislative history. The Conference Committee Report provided that: [I]n those cases in which there is no written consent of the surface owner or *1028no express coverage of the right to mine coal by surface methods in the relevant legal instruments that (1) the determination of whether or not the private mineral estate owner or a successor-in-interest has the right to mine the coal by surface methods shall be made in accordance with applicable state law, and (2) jurisdiction to make that determination under applicable State law shall remain in the body-most probably the State courts-given that jurisdiction by the state in question. H.R. Rep. No. 95-493, at 106. A requirement of a final and unappealable judicial determination does not follow from this language. When the Cabinet made the prima facie determination that Elkhorn had a right of entry it relied on the decision in Johnson v. Envtl. & Pub. Prot. Cabinet. Jurisdiction to make the decision of whether a right of entry existed remained, as intended by Congress, in Kentucky state court. Second, the dispute between Johnson LLC, Elkhorn, and the Secretary does not concern which parties have "a right to specific property, whether tangible or intangible." Property Right , Black's Law Dictionary , (10th ed. 2014). Instead, the dispute primarily concerns the scope of the phrase "state law" in Subsection (C). Once the regulatory authorities correctly determined that SMCRA encompasses all relevant state law, Kentucky state law provided a clear answer as to whether cotenancy law or the Broad Form Deed Amendment applied. The only dispute before the regulatory authorities concerned the proper interpretation of SMCRA and its analogous regulation. It did not require any analysis or consideration of property law. Johnson LLC also argues that the citizen suit it filed in this Court was a property dispute, and its pendency required the regulatory authority to refrain from determining if Elkhorn had a right of entry to surface mine. For similar reasons, this argument fails. SMCRA's citizen suit provision authorizes any adversely affected person to bring a civil action against the Secretary to "compel compliance ... where there is alleged a failure of the Secretary ... to perform any act or duty under this chapter which is not discretionary." 30 U.S.C. § 1270(a)(2). Johnson LLC's complaint alleged that Elkhorn's permit applications did not contain certain information required by SMCRA. While the allegations in Johnson LLC's citizen suit may touch on property rights concerns, it is not a property rights dispute. Johnson LLC's citizen suit primarily challenges the Cabinet's construction of 30 U.S.C. § 1260(b)(6)(A). Like this case, the citizen suit concerns the proper interpretation of SMCRA's right of entry provisions, not state property law. Johnson LLC argues that case law and administrative decisions supports its position that Kentucky and the Secretary adjudicated a property rights dispute. Those cases, however, are distinguishable. In Ky. So. Coal Corp v. Ky. Energy & Env't Cabinet , 396 S.W.3d 804 (2013), the Kentucky Supreme Court held that a bona fide property rights dispute existed where the lease issued for surface mining had expired. The Kentucky Supreme Court affirmed the intermediate court of appeal's ruling that "[t]he burden is on the permit applicant to resolve such issues prior to applying for, or obtaining, a permit. Absent a valid lease, deed, contract with the owners of the real estate, or judgment from a court of competent jurisdiction, the Cabinet has no basis for finding ... a legal right to mine this property." Ky. So. Coal Corp v. Ky. Energy and Env't Cabinet , No. 2008-CA-002229-MR, 2009 WL 4723197, at *4 (Ky. Ct. App. Dec. 11, 2009). Here, however, Elkhorn has a right of entry agreement with PLLC. There is no dispute as to the validity of that agreement. *1029And because Johnson v. Envtl. & Pub. Prot. Cabinet clearly states that consent of one cotenant creates a right of entry to surface mine, Elkhorn was not required to obtain a favorable court judgement prior to approval of its application. The regulatory authority could rely on the valid right of entry agreement and the clearly established Kentucky law in determining the surface-subsurface legal relationship. Johnson LLC also points to IBLA's decision in Marion Taylor , 125 I.B.L.A. 271 (1993), vacated , Coal-Mac, Inc. v. Babbitt , Case No. 7:93-cv-00117-JMH, ECF No. 48 (E.D. Ky. Aug. 9, 1995). In Taylor , IBLA found that a property rights dispute existed because there was a pending state court action over whether a reservation of mineral rights in a deed allowed for surface mining. Id. at 276 ("Litigation was then pending ... to decide whether the reservation in the December 1971 deed ... actually permitted him to authorize another to mine the subject land by surface means."). This constituted a property rights dispute because the disagreement concerned the interpretation of the phrase "mining rights" in the deed. In contrast, there is no controversy in this case as to what rights ML Johnson's heirs assigned to PLLC or what right PLLC intended to convey to Elkhorn in the right of entry agreement. Other cases in which Courts and IBLA have addressed the meaning of property rights have interpreted the phrase narrowly. In an order issued by Judge William O. Bertelsman, this Court interpreted subsection (C)'s proviso to mean "only that the regulatory agency would not have power to determine whether any given conveyance had been obtained by fraud, whether the consent obtained was signed by the proper heirs to a particular tract of land, whether there was a boundary line or other dispute concerning the realty' description, and other such individualized matters." Akers v. Baldwin , No. 84-88, Findings of Fact and Conclusions of Law and Order, at 11-12 (E.D. Ky. Feb. 28, 1985) (finding that construing a deed in light of state law did not constitute adjudication of a property rights dispute); see also Akers v. Bradley , No. 84-88, Op., Order and J., at 2 (E.D. Ky. June 20, 1988) ("[T]he state defendants are obligated to make a bona fide, prima facie determination whether the language of the legal instrument is construed under state law to authorize surface mining."). The Secretary has consistently interpreted "property rights dispute" as limited to the types of actions identified by the Court in Akers. See 64 Fed. Reg. 70,766 (Dec. 17, 1999) (interpreting SMCRA as not "requiring deferral of a decision if there is only a mere allegation of a property rights dispute" in reliance on Akers );9 Foster E. Sword , 138 IBLA 74, 81 (Feb. 3, 1997). The Kentucky Court of Appeals, IBLA, and the Kentucky Cabinet have all identified disputes of the type described in Akers as property disputes. See Johnson v. Envtl. & Pub. Prot. Cabinet , 289 S.W.3d 216, 222 (holding that an "adjudication of claims of waste or property damage among cotenants" was a property rights dispute); Foster E. Sword , 138 IBLA 74, 81 (Feb. 3, 1997) (refusing to compel a permitee to conduct a survey to locate private property lines because it constituted a property rights dispute); Paul F. Kuhn , 120 IBLA 1, 9 (July 3, 1991) (describing a dispute over property boundaries in a permit application as a property rights dispute); *1030Benny Campbell v. Envtl. & Pub. Prot. Cabinet , 2008 WL 2582652, at *9 (Ky. Envtl. & Pub. Prot. Cabinet, June 2, 2008) ("[C]ontentions regarding whether the deed is valid or its legal import are basically a property dispute.").10 None of these cases resemble the challenges brought before the Secretary or in Johnson LLC's citizen suit. And Johnson LLC has not identified any judicial or agency decision in which a dispute similar to its own was deemed a property rights dispute. Finally, Johnson LLC's position presents two practical problems for resolution of this case. First, Johnson LLC argues that the issues raised before the Secretary and in its citizen suit are property rights disputes that should be adjudicated by a Kentucky state court. But those disputes primarily concern the interpretation of SMCRA, not state property law. The final authority on the interpretation of SMCRA are the federal courts. If the Court were to require Elkhorn to obtain a state court judgment, that decision would merely provide an interpretation of SMCRA subject to ultimate review in federal court. In contrast, if the dispute were a bona fide property dispute, such as whether Elkhorn's right of entry agreement was valid, Kentucky state courts would provide the final determination. Second, if this Court sent Elkhorn to state court to obtain a declaratory judgment, Kentucky's lower state courts would be bound by the decision in Johnson v. Envtl. & Pub. Prot. Cabinet , and would return to the regulatory authority with a final judicial determination that applies Kentucky state law identically to the prima facie determination made by the Kentucky Cabinet and Secretary. Thus, a requirement of a final and unappealable judicial determination does nothing except delay the resolution of this litigation. C. Reclamation Advisory Memorandum # 159 did not modify state law The Kentucky Cabinet relied on Reclamation Advisory Memorandum ("RAM") # 159 in approving Minor Revision # 3. RAM # 159 was issued in response to Judge Thapar's order in Johnson I granting Johnson LLC a preliminary injunction. RAM # 159 stated, as a result of the Court's order, that "the Cabinet intends to find [ 405 Ky Admin. Regs.] 8:030 Sec. 4(2)(c) satisfied if the additional documentation consists of the consent of less than all the cotenants because state case law has so held." Kentucky Energy and Environment Cabinet Department for Natural Resources, Reclamation Advisory Memorandum (RAM) # 159 (June 27, 2014). The Cabinet did not seek approval from the Secretary before issuing RAM # 159 or applying it to Minor Revision # 3. Johnson LLC argues that RAM # 159 constitutes a significant change to Kentucky's approved regulatory program and, because it was not approved by the Secretary, approval of Minor Revision # 3 violated 30 C.F.R. § 732.15(g). In his written decision, the ALJ rejected this argument, finding that "while RAM # 159 expressed an intention to follow a different right of entry subsection in response to the District Court's findings, the document did not purport to change existing State law. Consequently, RAM # 159 did not violate the *1031amendment procedures under 30 C.F.R. § 732.17." (Administrative Record ("AR") 1171). The Secretary's decision is correct-RAM # 159 constituted a guidance document that did not modify the Kentucky state program and is therefore exempt from SMCRA's formal amendment process. A RAM is intended to be "an open correspondence from the commissioner of the Department for Natural Resources (DNR) to operators and other interested persons, that provides information related to DNR's surface mining regulatory program." Reclamation Advisory Memoranda , Division of Mine Permits, http://minepermits.ky.gov/Pages/RAMs.aspx (last visited Mar. 21, 2018). As such, RAM # 159 merely "establish[es] guidelines" for how the Cabinet will evaluate right of entry permits. RAM # 159, at 1. It does not bind the regulatory authority, but rather seeks "cooperation in submitting the necessary documentation" from permit applicants. RAM # 159, at 3. Because RAM # 159 is a guidance document, it lacks the force of law and could not change Kentucky laws or regulations. Instead, RAM # 159 resembles an interpretative rule or general statement of policy that, under the Administrative Procedure Act, are "issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers" and "do not have the force and effect of law and are not accorded that weight in the adjudicatory process." Perez v. Mortgage Bankers Ass'n , --- U.S. ----, 135 S.Ct. 1199, 1203-04, 191 L.Ed.2d 186 (2015) (internal quotation marks omitted) (quoting Shalala v. Guernsey Memorial Hosp. , 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995) ); see S. Forest Watch, Inc. v. Jewell , 817 F.3d 965, 972 (6th Cir. 2016) ("Internal operating manuals ... do not carry the force of law, bind the agency, or confer rights.") (quoting Reich v. Manganas , 70 F.3d 434, 437 (6th Cir. 1995) ). Johnson LLC contends that, while RAM # 159 did not itself purport to modify Kentucky's approved program, approval of Minor Revision # 3 pursuant to RAM # 159 did affect an unapproved change to Kentucky's state program. It claims that RAM # 159 rewrote 405 Ky Admin. Regs. 8:030 Sec. 4(2)(c) to require that applicants submit only "copies of the original severance documents and documentation to demonstrate that under Kentucky state law it has the right to mine by those methods," RAM # 159, at 2, and removed the requirement that the applicant base its right to extract coal on the severance instrument. This argument misses the mark. Johnson LLC is correct that the text of Kentucky's subsection (C) and RAM # 159's interpretation of that language differ. But, as explained above, 405 Ky. Admin. Regs. 8:030 Sec. 4(2)(c) does not require applicants to base their right of entry on the severance instrument. It only requires applicants to submit the original severance instrument. Thus, RAM # 159, and its application to Minor Revision # 3, was consistent with 405 Ky. Admin. Regs. 8:030 Sec. 4(2)(c) and did not constitute an unauthorized amendment to the state regulatory program. D. Elkhorn's failure to disclose pending litigation was harmless error SMCRA requires that each permit applicant file a statement of whether the applicant's right of entry to surface mine "is the subject of pending court litigation." 30 U.S.C. § 1257(b)(9) ; see also 405 Ky. Admin. Regs. 8:030 Sec. 4(1). An application may only be approved if the regulatory authority finds that "the permit application is accurate and complete and that all requirements of the Act and the State or Federal program have been complied with." 30 U.S.C. § 1260(b)(1) ; see also Ky. Rev. Stat. 350.060(2). When Elkhorn submitted its permit application to commence *1032surface mining on Tract 46, Johnson LLC's citizen suit was, and still is, pending before this Court. In its permit application, however, Elkhorn answered "N/A" to item 9.8, which asks: "Are any rights to enter and mine the area, as claimed by the applicant, subject to any pending litigation?" (AR 0825-1642). Johnson LLC argues that Elkhorn's failure to disclose the pending citizen suit made its application noncompliant with 30 U.S.C. § 1257(b)(9) and that, as a result, Kentucky had a non-discretionary duty to withhold the permit under 30 U.S.C. § 1260(b)(1). Elkhorn's omission, however, constitutes harmless error. The requirement that permit applicants disclose pending litigation serves the purpose of assisting the regulatory authority from improperly adjudicating a property rights dispute. The ALJ found, and Johnson LLC concedes, that "all parties, including the Kentucky Cabinet, were well-aware of the prior District Court proceedings ...." (AR 1326). Thus, the Kentucky Cabinet and the Secretary had the opportunity to consider whether Johnson LLC's citizen suit constituted a property rights dispute. The APA instructs this Court, in conducting its review of the Secretary's decision, that "due account shall be taken of the rule of prejudicial error." 5 U.S.C. § 706 ; see Sierra Club v. Slater , 120 F.3d 623, 637 (6th Cir. 1997) ("[A] harmless-error rule [applies] to APA cases, such that a mistake that has no bearing on the ultimate decision or causes no prejudice shall not be the basis for reversing an agency's determination.") (citing Blackman v. Busey , 938 F.2d 659, 664 (6th Cir. 1991) ). Because the regulatory authorities were aware of the pending litigation, Johnson LLC has not shown that Elkhorn's violation of 30 U.S.C. § 1257(b)(9) was prejudicial. Therefore, that violation cannot serve as a basis to invalidate the decision. V. Conclusion Because the ALJ's decision upholding OSMRE's termination of the cessation order was not arbitrary or capricious, the Court hereby ORDERS : 1. Plaintiff Johnson LLC's Motion for Summary Judgment (DE 46) is DENIED ; 2. the decision of the United States Department of the Interior Office of Hearings and Appeals, (AR 1149-1177), is AFFIRMED ; 3. Defendant Secretary of the Interior Ryan Zinke's Cross-Motion for Summary Judgment (DE 62) is GRANTED ; 4. Defendant-Intervenor Premier Elkhorn Coal LLC's Cross-Motion for Summary Judgment (DE 63) is GRANTED ; and 5. a judgment consistent with this Opinion and Order will be entered contemporaneously. The ten day notification period is waived if "the person informing the Secretary provides adequate proof that an imminent danger of significant environmental harm exists and that the State has failed to take appropriate action." 30 U.S.C. § 1271(a)(1). If there is a violation that does not meet the standard for imminent danger to the public or significant imminent environmental harm, OSMRE must instead provide the operator a notice of the violation and a reasonable time for abatement. 30 U.S.C. § 1271(a)(3). For example, 30 U.S.C. § 1260(b)(6)(c) is restated as: "If the conveyance does not expressly grant the right to extract the coal by surface mining methods, documentation that under applicable State law, the applicant has the legal authority to extract the coal by those methods." 30 C.F.R. § 778.15(b)(3). Kentucky has since amended this regulatory provision and it now more closely mirrors the federal regulation. See 405 Ky. Admin. Regs. 8:030 Sec. 4 (2017); 80 Fed. Reg. 33,456 (June 12, 2015). When OSMRE issued the Termination Order it relied upon the 2014 regulatory provision. The ALJ also applied the 2014 version in his written decision. All citations to the regulation in this opinion refer to the 2014 version unless otherwise stated. While the administrative review process was ongoing, the eighth heir sold her 12.5% share of the surface estate to Elkhorn. Today, Elkhorn owns 37.5% of the surface estate. Elkhorn's original permit authorized mining on a total of 370.8 acres, only 6 of which are within Tract 46. Amendment # 1 added 179.6 acres to the permit area, including 61 acres within Tract 46. In its reply brief, Johnson LLC raises the argument that its construction of subsection (C) is analogous to the Supreme Court's interpretation of "retirement funds" in 11 U.S.C. § 522. Clark v. Rameker , --- U.S. ----, 134 S.Ct. 2242, 189 L.Ed.2d 157 (2014). In that bankruptcy case, the Court found that the debtor's preferred construction would render a substantial portion of the text superfluous and inconsistent and that Congress could have achieved that result through a simpler wording. Id. at 2248. Clark is inapposite. The Court in Clark based its holding primarily on the ordinary meaning of "retirement funds," which was consistent with the creditors construction. Id. at 2247. Here, the ordinary meaning of state law-all relevant state law-is consistent with Elkhorn's construction of subsection (C), not Johnson LLC's narrower interpretation. Alternatively, even if this Court were to find that Johnson LLC's arguments create an ambiguity as to the scope of "state law" in § 1260(b)(6)(C), this Court "may not substitute its own construction of a statutory provision for a reasonable interpretation made by the ... agency." Chevron , 467 U.S. at 844, 104 S.Ct. 2778. For the reasons discussed above, the ALJ's construction is reasonable and would also be affirmed under Chevron step two. Johnson LLC argues that Chevron should not apply because the Secretary has no expertise on when deference should be given to state law. It cites Pak v. Reno , 196 F.3d 666 (6th Cir. 1999), for the proposition there is no delegation where the issue does not involve agency expertise. Id. at 675 n.10. That argument is unavailing for two reasons. First, in Pak , the Sixth Circuit noted only the uncertainty about the application of Chevron to pure questions of statutory interpretation. It did not hold that Chevron does not apply. Id. ("It is uncertain whether Chevron applies in this case, even if there had been an absence of an expression of congressional intent."). The reason the court did not to defer to the agency interpretation was because Congressional intent on the issue was clear. Id. at 675 ("[W]e do not believe that there is an absence of an expression of congressional intent in this case. Accordingly, deference to the Attorney General's opinion is not warranted with respect to this issue."). Second, the court in Pak only suggested that determining a statute's temporal reach may not require agency expertise. Id. The ALJ's decision here concerned which state law applies under SMCRA, not SMCRA's temporal reach. This interpretation took place in OSMRE's Valid Existing Rights ("VER") rulemaking context and it is therefore not binding on the agency in this matter. The VER preamble is merely evidence of the consistency of OSMRE's interpretation of "property rights dispute." In a footnote, Johnson LLC suggests that, under the presumption of consistent usage, the use of "property title disputes" in 30 U.S.C. § 1257 may indicate that Congress intended "property rights" in 30 U.S.C. § 1260(b)(6)(C) to be broader. But the primary definition of "title" is "the union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself." Title , Black's Law Dictionary , (10th ed. 2014). Thus, the best reading of SMCRA is that "property rights dispute" and "property title disputes" are synonymous.

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/3216352/

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: June 23, 2016 521620 ________________________________ In the Matter of the Claim of DANIEL O'BRIEN, Appellant, v THE CAREY CENTER FOR GLOBAL MEMORANDUM AND ORDER GOOD et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent. ________________________________ Calendar Date: June 2, 2016 Before: McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ. __________ Martin Harding & Mazzotti, LLP, Albany (Crystle A. Watts of counsel), for appellant. Stockton Barker & Mead, LLP, Troy (John B. Paniccia of counsel), for The Carey Center for Global Good and another, respondents. __________ Lynch, J. Appeal from a decision of the Workers' Compensation Board, filed January 22, 2015, which, among other things, denied claimant's request to amend his claim to include postconcussion syndrome. Following a work-related accident wherein claimant slipped and fell on ice, claimant established a workers' compensation claim for injuries to his head, back and neck. Based upon  -2- 521620 claimant's protracted recovery and continued medical treatment, claimant sought to amend his claim to include, among other things, a concussion and postconcussion syndrome. By decision dated March 13, 2014, a Workers' Compensation Law Judge (hereinafter WCLJ) credited the medical reports and testimony of Patrick Hughes, a neurologist, finding, as is relevant to this appeal, no postconcussion syndrome. The WCLJ amended the claim to include a mild concussion and found that claimant exhibits a moderate 50% partial disability, but denied any further relief. Upon review of the record, the Workers' Compensation Board affirmed the WCLJ's decision and this appeal by claimant ensued. We must reverse. "The resolution of conflicting medical evidence lies within the province of the Board, but the opinions relied upon must themselves constitute substantial evidence to support the Board's decision" (Matter of Dingman v Town of Lake Luzerne, 94 AD3d 1287, 1287-1288 [2012] [citations omitted]). Here, the Board relied on medical reports and testimony of Hughes wherein he opined that claimant did not suffer from postconcussion syndrome. Nevertheless, Hughes submitted an addendum report that states that claimant "sustained a mild head injury followed by a post concussion syndrome causally related to his work injury." As there is an inherent contradiction in the medical reports submitted by Hughes, they cannot constitute substantial evidence to support the Board's decision (see id.; Matter of Waldheim v Hudson Sheet Metal, Inc., 78 AD3d 1335, 1336 [2010]). McCarthy, J.P., Garry, Devine and Aarons, JJ., concur.  -3- 521620 ORDERED that the decision is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision. ENTER: Robert D. Mayberger Clerk of the Court

01-03-2023

06-23-2016

https://www.courtlistener.com/api/rest/v3/opinions/4319781/

People v Sessing (2018 NY Slip Op 06771) People v Sessing 2018 NY Slip Op 06771 Decided on October 10, 2018 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on October 10, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department JOHN M. LEVENTHAL, J.P. LEONARD B. AUSTIN JEFFREY A. COHEN BETSY BARROS, JJ. 2018-09728 (Ind. No. 680/95) [*1]The People of the State of New York, plaintiff, vClaude Sessing, defendant. Ryanne G. Konan, Wappingers Falls, NY, for defendant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jodi L. Mandel, and Julian Joiris of counsel), for plaintiff. DECISION & ORDER Application by the defendant for a writ of error coram nobis seeking leave to file a late notice of appeal from a judgment of the Supreme Court, Kings County, rendered March 21, 1995. ORDERED that the application is denied. The defendant has not established his entitlement to the relief requested (see People v Syville, 15 NY3d 391). LEVENTHAL, J.P., AUSTIN, COHEN and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

01-03-2023

10-11-2018

https://www.courtlistener.com/api/rest/v3/opinions/4050740/

PD-0728-15 NO. ••• . . IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN, TEXAS RECEIVED IN APPEALS JOSE DIAZ PEREZ JUN26 2Cb Petitioner, v. FILED IN COURT OF CRIMINAL APPEALS THE STATE OF.TEXAS JUN 26 2015 Ahfil Arnsta nierk ON PETITION FOR DISCRETIONARY REVIEW FROM THE TWELFTH COURT OF APPEALS, COA#12-14-00116-CR, TRIAL COURT.THE SECOND JUDICIAL DIS TRICT, CHEROKEE COUNTY, TEXAS NO.18373. MOTION FOR.EXTENSION OF.TIME TO FILE THE PETITION FOR DISCRETION ARY-REVIEW Petitioner's conviction was affirmed on May 29, 2015. Appellate Counsel has informed Petitioner, that he will withdraw from the appeal. Petitioner requires time to attempt to retain private counsel, or to research and prepare and file a pro se PDR. In these regards,.Petitioner respectfully request an extension up to and including August 29, 2015 to file his PDR with this Court. RESPECTFULLY SUBMITTED June 9. 2015 CERTIFICATE OF SERVICE I hereby certify that I mailed a true and correct copy of the fore going to the Cherokee County District Attorney> West 6th Street, Rusk, Texas 75785 via U.S. mail. June 9, 2015

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/3208639/

Filed Washington State Court of Appeals Division Two June 1, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 47207-4-II Respondent, v. DOUGLAS MARK CORREA, UNPUBLISHED OPINION Appellant. JOHANSON, P.J. — Douglas Mark Correa appeals his motor vehicle theft jury conviction and the imposition of legal financial obligations (LFOs). He argues that (1) the charging document is constitutionally deficient, (2) the trial court abused its discretion by limiting his cross- examination of the victim, and (3) the trial court improperly imposed LFOs for witness fees and costs on appeal. Finding no error, we affirm his conviction and the trial LFOs, but decline to impose appellate costs. FACTS Correa knew James Cushman through a mutual friend, Nikia Brown. On July 11, 2014, Correa asked to borrow Cushman’s motorcycle. Cushman agreed, provided that Correa return the motorcycle that evening. Correa did not return the motorcycle or answer Cushman’s calls over the next two days. On July 13, Cushman reported the theft to police. Cushman also searched for the motorcycle. When he saw a man driving it out of a trailer park, he called the police. The No. 47207-4-II police stopped the driver, Robert Stanfill, who said Correa had let him borrow the motorcycle. The police arrested Correa. The State’s charging document read, COUNT 1 - THEFT OF MOTOR VEHICLE, RCW 9A.56.065(1), RCW 9A.56.020(1)(a) - CLASS B FELONY: In that the defendant, DOUGLAS MARK CORREA, in the State of Washington, on or about July 11, 2014, did wrongfully obtain or exert unauthorized control over the motor vehicle of another, with intent to deprive said person of such motor vehicle. Clerk’s Papers (CP) at 6. Correa did not challenge the charging document nor did he request a bill of particulars. The State’s probable cause declaration, filed the day before the charging document, stated that the stolen motorcycle was a Kawasaki ZX600 and that Cushman was the legal owner who reported the theft on July 13 in Lacey, Washington. Cushman, Stanfill, and the arresting officer testified at trial. Cushman testified that Correa asked to borrow the motorcycle to go to the grocery store and Cushman reluctantly agreed if Correa would be back in 45 minutes. After calling Correa numerous times over the next two days, Cushman realized that Correa may have stolen the motorcycle. Stanfill testified that Correa told him he had borrowed the motorcycle for three days and allowed Stanfill to use the motorcycle. The arresting officer testified that after she read Correa his Miranda1 rights, Correa said that Cushman owed him money and he was just teaching Cushman a lesson, but planned to return the motorcycle. On cross-examination, defense counsel asked Cushman if he borrowed money from Correa in the past. The trial court sustained the State’s relevancy objection. Defense counsel argued that 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2 No. 47207-4-II Cushman’s borrowing and repaying Correa late was relevant to show that Correa did not intend to steal the motorcycle, but intended to return the motorcycle late to show Cushman how it felt to be deprived of something for longer than agreed. The State argued that Cushman’s testimony about the money was irrelevant because the crime charged required only proof of intent to deprive Cushman of the motorcycle rather than intent to permanently deprive. The trial court sustained the objection, but also stated it would not prevent Correa from putting on his defense. Correa testified and called Brown as a witness. Brown testified that Correa loaned Cushman money and though Cushman promised to repay that day, he did not do so for three or four days. Correa testified that he knew Cushman expected him to bring the motorcycle “right back,” but that he planned to keep the motorcycle for three days because that is how long Cushman took to pay back the money. Correa explained that he wanted to teach Cushman a lesson and planned to return the motorcycle on the night the police came. The jury found Correa guilty of motor vehicle theft. The trial court sentenced him to six months incarceration and imposed $800.00 in mandatory LFOs. At sentencing, defense counsel noted that Correa had worked sporadically for the past year, that his annual net income was about $1,800 and that in light of his six-month sentence, Correa would need to move and to leave his job. In addition, the judgment and sentence states, “An award of costs on appeal against the defendant may be added to the total legal financial obligations. RCW 10.73.160.” CP at 66. The trial court also signed a cost bill which certified the amount incurred in witness fees. These witness costs were not included in the judgment and sentence. The trial court entered an order of indigency on February 11, 2015, finding Correa unable to pay for the expense of appeal. Correa appeals. 3 No. 47207-4-II ANALYSIS I. CHARGING DOCUMENT IS CONSTITUTIONALLY SUFFICIENT Correa argues that the charging document is constitutionally deficient because it does not identify the stolen vehicle’s owner, the vehicle type, or where in Washington the theft occurred. He argues that without these facts, the charging document does not provide notice of the conduct that is alleged to constitute a crime and does not protect his double jeopardy rights. We disagree. We review constitutional challenges to the sufficiency of a charging document de novo. State v. Williams, 162 Wash. 2d 177, 182, 170 P.3d 30 (2007). A defendant has a right under our state and federal constitutions to be informed of the criminal charge against him. State v. McCarty, 140 Wash. 2d 420, 424-25, 998 P.2d 296 (2000). A charging document satisfies this constitutional principle only if it states all of the essential elements of the crime charged, both statutory and nonstatutory. State v. Kjorsvik, 117 Wash. 2d 93, 97, 812 P.2d 86 (1991). The goals of this rule are to give notice to the defendant of the nature of the crime he must defend against and to protect the defendant’s double jeopardy rights by allowing them to plead the first judgment as a bar to a future prosecution for the same offense. Kjorsvik, 117 Wash. 2d at 101; State v. Leach, 113 Wash. 2d 679, 698, 782 P.2d 552 (1989). In reviewing allegations of double jeopardy, a court may review the entire record to establish what was before the court for a prior conviction. State v. Mutch, 171 Wash. 2d 646, 664, 254 P.3d 803 (2011). Where the defendant challenges the charging document for the first time on appeal, we liberally construe it in favor of validity. Kjorsvik, 117 Wash. 2d at 105. The test under this liberal construction rule is (1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was 4 No. 47207-4-II nonetheless actually prejudiced by the inartful language which caused a lack of notice? Kjorsvik, 117 Wash. 2d at 105-06. It is sufficient to charge in the language of a statute if the statute defines the offense with reasonable certainty. State v. Noltie, 116 Wash. 2d 831, 840, 809 P.2d 190 (1991). A defendant is not prejudiced if he received notice of the charge against him and could thus adequately prepare his defense. Williams, 162 Wash. 2d at 186. To evaluate prejudice, we may look outside the charging document to see if other circumstances of the charging process reasonably informed the defendant in a timely manner of the nature of the charges. Williams, 162 Wash. 2d at 186. Theft of a motor vehicle is governed by RCW 9A.56.065 and states, “(1) A person is guilty of theft of a motor vehicle if he or she commits theft of a motor vehicle.” Theft means “[t]o wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services.” RCW 9A.56.020(1)(a). Here, Correa did not challenge the charging document at trial. So we liberally construe the charging document on its face in favor of validity. Kjorsvik, 117 Wash. 2d at 106. The charging document said that Correa, “in the State of Washington, on or about July 11, 2014, did wrongfully obtain or exert unauthorized control over the motor vehicle of another, with intent to deprive said person of such motor vehicle.” CP at 6. A comparison of the language of the charging document with the language of the statute demonstrates that the charging document did charge all of the elements of the crime of theft of a motor vehicle. RCW 9A.56.065, .020(1)(a). Although Correa argues that the charging document is deficient because it does not state who owned the motor vehicle, the vehicle type, or where in Washington this occurred, none of the 5 No. 47207-4-II many cases Correa relies on say that these facts are essential elemental facts of the crime of motor vehicle theft.2 Nor does there appear to be any common law authority for the proposition that these details are essential factual elements for the crime of motor vehicle theft. Thus, the necessary facts that Correa wrongfully exerted unauthorized control of a motor vehicle of another with intent to deprive said person of the vehicle appears in the charging document. Kjorsvik, 117 Wash. 2d at 105-06. Next, in order to evaluate whether Correa was nonetheless prejudiced, we look outside of the charging document to see if other circumstances reasonably informed Correa of the nature of the charge. Williams, 162 Wash. 2d at 186. Here, the State’s declaration of probable cause, filed one day before the charging document, said that the stolen vehicle was a Kawasaki ZX600 motorcycle, Cushman owned it, and the theft occurred in Lacey, Washington. Thus, the probable cause declaration reasonably informed Correa in a timely manner of the specific nature of the charges. Williams, 162 Wash. 2d at 186. Correa was not prejudiced by the inartful lack of specificity in the charging document. Kjorsvik, 117 Wash. 2d at 105-06. Finally, Correa’s argument that the charging document was deficient to protect his double jeopardy right to be able to defend against future prosecutions for the same offense is without merit. In reviewing allegations of double jeopardy, a court may review the entire record to establish what was before the court for previous convictions. Mutch, 171 Wash. 2d at 664. Thus, if the State charged Correa with the same offense in the future, a reviewing court could consider the 2 See City of Seattle v. Termain, 124 Wash. App. 798, 800, 805-06, 103 P.3d 209 (2004); State v. Greathouse, 113 Wash. App. 889, 900, 56 P.3d 569 (2002); State v. Winings, 126 Wash. App. 75, 84, 107 P.3d 141 (2005); State v. Franks, 105 Wash. App. 950, 959, 22 P.3d 269 (2001). 6 No. 47207-4-II entire trial record, which would provide Correa with a complete double jeopardy defense. Thus, because Correa was timely and reasonably notified of the nature of the crime charged and his double jeopardy rights are protected, we hold that the charging document was not constitutionally deficient. II. CROSS-EXAMINATION WAS PROPERLY LIMITED Correa argues that he was denied his right to present a complete defense and his right to confront witnesses when the court sustained a relevance objection, thereby limiting Cushman’s cross-examination.3 Specifically, Correa argues that Cushman’s testimony was relevant to show that Correa did not possess the required intent to deprive Cushman of the motorcycle because Correa intended to keep the motorcycle for only a short duration. We disagree. Typically, we review a claim of a denial of the right to present a defense de novo. State v. Jones, 168 Wash. 2d 713, 719, 230 P.3d 576 (2010). We review a trial court’s decision to limit cross- examination for abuse of discretion. State v. Aguirre, 168 Wash. 2d 350, 361-62, 229 P.3d 669 (2010). Because we conclude that the limit on cross-examination merely restricted the scope of cross-examination rather than preventing Correa’s defense, we review the trial court’s decision to limit Cushman’s cross-examination for abuse of discretion. Aguirre, 168 Wash. 2d at 361-62. A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Rafay, 167 Wash. 2d 644, 655, 222 P.3d 86 (2009). Cross-examination is limited by general considerations of relevance. See ER 401, 403; State v. Darden, 145 Wash. 2d 612, 621, 41 P.3d 1189 (2002). Relevant evidence is any evidence 3 Correa makes no argument regarding his confrontation rights, thus we do not address this issue. 7 No. 47207-4-II having any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. ER 401. Theft of a motor vehicle requires proof that a person wrongfully obtained or exerted control over the property of another with intent to deprive him of such property. RCW 9A.56.065, .020(1)(a). Wrongfully obtain or exert unauthorized control means to take the property or services of another. RCW 9A.56.010(22)(a). Deprive means “‘to take away’” or “‘to take something away from.’” State v. Cuthbert, 154 Wash. App. 318, 338, 225 P.3d 407 (2010) (quoting WEBSTER’S THIRD INTERNATIONAL DICTIONARY 606 (2002)). Exceeding the scope of permission given to use an item can be theft. See State v. Clark, 96 Wash. 2d 686, 687-91, 638 P.2d 572 (1982) (holding that where Clark had his friend’s permission to borrow his friend’s car for one day to run errands, but instead took the car to another State where it was located a month later, the correct charge was not taking a vehicle without permission—joy riding—under RCW 9A.56.070(1), but motor vehicle theft under RCW 9A.56.020(1)(a)). First, Correa was not denied his right to present evidence that he did not intend to deprive Cushman of the motorcycle, but that he actually intended to teach him a lesson following a late loan repayment. Brown testified that Correa loaned Cushman $40 or $50 and though Cushman promised to repay that day, he did not do so for three or four days. Correa himself testified that he kept the motorcycle for three days because that is how long Cushman took to pay back the money. And the arresting officer testified that Correa told her the same thing: that Cushman owed Correa money and Correa was just teaching Cushman a lesson, but planned to return the motorcycle. 8 No. 47207-4-II Second, Cushman’s testimony about the past loan was not relevant and thus Correa’s cross- examination on this point was properly limited. Correa cites to State v. Walker for the proposition that duration of a taking is pertinent to the “‘intent to deprive’” element. 75 Wash. App. 101, 107- 08, 879 P.2d 957 (1994). But Walker does not support the conclusion that Cushman’s testimony was relevant. Walker states that motor vehicle theft does not require proof of intent to permanently deprive and also proscribes the continued unauthorized use of an automobile beyond an initial unauthorized use. 75 Wash. App. at 107-08. Here, Cushman authorized Correa to use his motorcycle for only one evening and believed Correa would be back in 45 minutes. Yet Correa told police that he intended to keep the motorcycle for three days; he testified that he knew Cushman expected the motorcycle back the same day it was borrowed; Correa allowed Stanfill to borrow it without Cushman’s permission; Stanfill testified that Correa told him he borrowed the motorcycle for three days; and Correa did not answer his phone when Cushman called to get the motorcycle back. This evidence showed that Correa intended to engage in the continued unauthorized use of the motorcycle for at least three days beyond the authorized use of one evening. Walker, 75 Wash. App. at 107-08; RCW 9A.56.010(22). Whether or not Correa’s intent was to teach Cushman a lesson and return the motorcycle after three days is irrelevant because the statute requires only a showing of intent to deprive for a continued period of unauthorized use. Walker, 75 Wash. App. at 107-08. Thus, we hold that Correa was not denied his right to present a defense and that the trial court did not abuse its discretion by limiting Cushman’s cross-examination. 9 No. 47207-4-II III. IMPOSITION OF LEGAL FINANCIAL OBLIGATIONS Correa argues that the trial court erroneously imposed appellate costs without making the required inquiry into his ability to pay these LFOs.4 We disagree. Correa argues that because his judgment and sentence contains a statement that appellate costs may be imposed, the trial court actually imposed appellate costs. We disagree because the judgment and sentence merely advised Correa that appellate costs may be imposed, not that appellate costs were imposed. However, we take this opportunity to address appellate costs. Former RCW 10.73.160(1) (1995) vests the appellate court with discretion to award appellate costs. Under RAP 14.2, that discretion may be exercised in a decision terminating review. We presume a party remains indigent “throughout the review” unless the trial court finds otherwise. RAP 15.2(f). Here, at sentencing, defense counsel noted that Correa had worked sporadically, that his annual net income was about $1,800, and that in light of his six-month sentence, Correa would need to move and to leave his job. In addition, the trial court entered an order of indigency for this appeal on February 11, 2015. In light of this evidence, we exercise our discretion and decline to impose appellate costs. 4 Correa also argues witness costs were improperly imposed, but in his reply brief, Correa concedes that the witness costs were not actually imposed. Thus, we address the witness costs no further. 10 No. 47207-4-II We affirm the conviction and sentence. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. JOHANSON, P.J. We concur: LEE, J. SUTTON, J. 11

01-03-2023

06-01-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426533/

Appellant, the plaintiff below, sought to recover damages for pain and mental anguish alleged to have resulted from personal injuries incurred while in the employ of appellee and "while acting in the scope and in furtherance of his employment." The complaint, by first paragraph, declared upon negligence on the part of appellee founded upon its failure to provide a safety device for an overhead traveling chain hoist which left its track and dropped upon appellant, fracturing his skull. The second paragraph of complaint differed from the first only in the respect that it charged the omission to provide such safety device to have been "wanton and wilful conduct" on the part of appellee. It was further alleged in the complaint that the injuries suffered by appellant were not the result of an "accident" so as to be compensable under the terms of the Workmen's Compensation Act by reason of the fact that same were not the result of a mishap or untoward event not expected or designed but were proximately caused by unlawful acts and omissions of appellee amounting to negligence and wanton and wilful conduct, the appellee at all times having knowledge that the operation of said chain hoist without such *Page 428 safety device constituted a condition of such unusual peril that injuries of the kind, and in the manner, received by appellant could have been reasonably anticipated, the appellant being at all times without such knowledge. To each paragraph of complaint appellee addressed demurrer for want of facts and jurisdiction on the grounds set up in the supporting memoranda they being that the facts alleged in the complaint showed that appellant sustained an injury which arose out of and in the course of his employment, his exclusive remedy under such circumstances being under the Workmen's Compensation Act. Appellee's demurrers were sustained whereupon appellant refused to plead further and the cause reaches us with error assigned to the court below predicated upon the sustaining of the demurrers. There being no showing that appellant had elected not to accept the provisions of the Workmen's Compensation Act he is presumed to have accepted same and therefore is subject to its 1. provisions. § 40-1202, Burns' 1940 Replacement (Supp.). "The term `accident' as employed in the act has been defined by this court many times as meaning `an unlooked for mishap, an untoward event which is not expected or designed.'" 2. American Maize Products Co. v. Nichiporchik (1940), 108 Ind. App. 502, 29 N.E.2d 801. In determining whether the elements of expectation or design must be absent from the standpoint of the injured person or from that of his employer, or both, we have as our sole guide in this jurisdiction the case of Furst Kerber Cut Stone Co. v. Mayo (1925), 82 Ind. App. 363, 144 N.E. 857, wherein it was enunciated: *Page 429 "The word `accident' in Section 2 of the Workmen's Compensation Act is used in its popular sense, and means any mishap or untoward event not expected and which was not designed by the one who suffered the injury or death." (Italics ours) With this definition in mind, therefore, it is obvious that appellant, by pleading lack of knowledge of "said unguarded and unsafe condition of said hoist or lift" has divested 3. himself of the elements of expectation or design and it must be said that the cause of his injury was an "accident" within the purview and intent of the Workmen's Compensation Act. Section 6 of the Workmen's Compensation Act (§ 40-1206 Burns' 1940 Replacement) provides: "The rights and remedies herein granted to an employee subject to this act on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death." Appellant having been injured by an "accident," therefore, must seek his remedy within the boundaries of the Workmen's Compensation Act. (See In re Bowers et al. (1917),65 Ind. App. 128, 132, 116 N.E. 842; Kingan Co. Ltd. v. Ossam (1921),75 Ind. App. 548, 121 N.E. 289). Affirmed. NOTE. — Reported in 59 N.E.2d 364. *Page 430

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426534/

On March 18, 1947, relator shot and killed his stepmother, and on the following day an affidavit was filed in the Juvenile Court of Marion County wherein relator was charged with being a delinquent child by reason of said killing. He was at the time in his 15th year. He was released to his father by the Judge of the Juvenile Court. On the following day, the Prosecuting Attorney for the 19th Judicial Circuit of the State of Indiana caused an affidavit to be filed in the Municipal Court of Marion County, wherein relator was charged with the premeditated murder of his stepmother for which the penalty is death or life imprisonment. A warrant for his arrest was issued upon said affidavit and relator was arrested and taken before the respondent judge, who heard evidence at the conclusion of which relator's counsel made an oral motion for the discharge of relator, which respondent judge took under advisement and placed relator in the custody of the sheriff and continued the case until March 25, 1947. Prior to that date, relator *Page 25 filed his petition herein for a writ prohibiting the respondent judge from continuing the detention and confinement of the relator in the custody of the sheriff and from interfering with or obstructing the order of the Juvenile Court releasing relator to his father and from exercising any further jurisdiction of the relator and further asking that said respondent judge be mandated to order release of relator from the Marion County Jail and from the custody of the sheriff and to transfer said cause to the Juvenile Court. A temporary writ was issued by this court. We are not confronted in this case with any consideration of the soundness of the philosophy or purpose or wisdom of the Indiana statutes having to do with the handling of delinquents under the age of 18 years. Such considerations are for the Legislature. Our sole concern is with the construction of those statutes, and relevant statutes with reference to the Municipal Court of Marion County, and determination of the conflicting claims to jurisdiction by the Juvenile Court and the Municipal Court under such statutes and the facts before us. We start with the thought that the ordinary rules of criminal law and procedure are applicable to a 14 year old boy, unless the Legislature has declared otherwise, and the only statutes 1. called to our attention as being pertinent or providing special law or procedure for juvenile offenders are chapters 347 and 356 of the Acts of 1945. §§ 9-3101 et seq. and 9-3224 et seq., Burns' 1942 Replacement (Supp.). Chapter 347 creates juvenile courts in Marion and other counties in Indiana and defines their powers and jurisdiction. Section 3 thereof [§ 9-3103, Burns' 1942 Replacement (Supp.)] reads as follows: *Page 26 "The juvenile courts created by this Act shall have original exclusive jurisdiction . . . in all cases of delinquent . . . children as defined by law." (Our italics.) Chapter 356 of the Acts of 1945 defines delinquent children and fixes procedure where they are concerned, and § 4 thereof [§ 9-3204, Burns' 1942 Replacement (Supp.)], so far as material to this case, defines a delinquent child as any boy or girl "under the full age of 18 years, who . . . commits an act which, if committed by an adult, would be a crime not punishable by death or life imprisonment." Section 13 of the Act provides that if a charge of a criminal nature is made against a boy or girl under the age of 18 years in any other court than the juvenile court such case shall be transferred to the juvenile court, excepting, however, cases wherein children are charged with violation of law, which, if committed by an adult, would be a capital offense. So we find the jurisdiction of the juvenile court, for the purposes of the case, limited to delinquent children as defined by law, and we find that the words "delinquent children," 2. as defined by the act, do not include a child who has committed an act which, if committed by an adult, would be a crime punishable by death or life imprisonment. And § 13 of ch. 356 of the Acts of 1945, [§ 9-3213, Burns' 1942 Replacement (Supp.)] provides that where such an offense is charged the provisions for removal to juvenile courts are inoperative, thereby leaving the prosecution of persons under the age of 18 years charged with such offenses to the courts which would have jurisdiction thereof and to the procedure which would prevail if there were no juvenile court act. *Page 27 We do not believe it was the intent of the Legislature, as disclosed by the language used in the statutes referred to, to give the juvenile court jurisdiction of juveniles charged 3. with premeditated murder. It seems to us, therefore, that under the facts in this case the juvenile court was without jurisdiction. People v. Murch (1934), 263 N.Y. 285, 189 N.E. 220, is in accord with this conclusion. Relator further contends that the Municipal Court of Marion County is without jurisdiction as a committing magistrate in felony cases. With this we can not agree. The Act of 1925, 4. which created the municipal court, § 4-2502, Burns' 1946 Replacement, in defining its jurisdiction says: "Second, said court shall have the same jurisdiction of crimes and offenses as is now or may hereafter be by law vested in city courts in cities of the first class, . . ." Section 4-2401, Burns' 1946 Replacement, puts the judicial power of every city of the first class in a city court and by § 4-2402, id., provides that the city judge "shall have and exercise within the county in which said city is located the powers and jurisdiction . . . conferred upon justices of the peace in all cases of crimes and misdemeanors . . ." A justice of the peace, when a defendant is charged with a felony, has the power and jurisdiction to serve as a committing magistrate and place the defendant under bond to appear at the next term of the criminal or circuit court of such county. § 9-711, Burns' 1942 Replacement. It appears, therefore, that the jurisdiction given the Municipal Court over crimes and offenses really derives from justices of the peace who are committing magistrates. The act creating the Municipal Court of Marion County was amended in 1943, and as so amended provides *Page 28 that procedure and practice in such court in all cases involving violation of criminal statutes, shall be governed by those provisions of the Act of 1939, ch. 164, relating to the jurisdiction and powers and to the procedure and practice prescribed for magistrates courts. The Act of 1939, §§ 4-3801 et seq., 1946 Replacement, creating magistrates courts in Marion County, Indiana, provides by § 4 thereof that such courts "shall have and exercise within the county the powers and jurisdiction now or hereafter conferred upon or exercised by the justices of the peace in all cases of crimes and misdemeanors." So again there is vested in the Municipal Court of Marion County the powers and jurisdiction of a justice of the peace who traditionally and by statute is a committing magistrate. Any justice of the peace or city judge, and, by virtue of the statutes above referred to, any judge of the Municipal Court of Marion County, on complaint made on oath before him, charging any person with the commission of any felony or misdemeanor, shall issue his warrant for the arrest of such person, and cause him to be brought, forthwith, before him for examination or trial. § 9-701, Burns' 1942 Replacement. When the offense charged is a felony, the accused if probable cause to believe him guilty be established, shall be recognized to appear at the next term of the criminal or circuit court of the county. § 9-711, Burns' 1942 Replacement. It seems to us, therefore, and we hold that the Municipal Court of Marion County has the jurisdiction and power to act as a committing magistrate in felony cases and, that being true, 5. the Prosecuting Attorney was within established practice in filing an affidavit for the purpose of holding relator *Page 29 for grand jury action, and when that affidavit was filed, even though relator's guilt could not be finally determined in that court, he stood charged with first degree murder and the first step in the process of bringing him to trial would be taken there. Under the juvenile court statute, when so charged, there was no duty upon the municipal court to transfer the case to the juvenile court, notwithstanding the age of the relator. Relator also refers to § 22 of the 1945 juvenile act, which says that no child under 18 years of age shall be detained in any prison, jail or lockup. Relator contends that this broad 6. language prohibits his incarceration in jail even though he is not a delinquent child under the definition of the act. The title to the juvenile act is "AN ACT defining delinquent, dependent and neglected children, giving juvenile courts jurisdiction thereon, and providing a lawful method of procedure concerning said children, . . . specifying places for their temporary and permanent detention, . . ." (Our italics.) The statute has to do with delinquent children and their detention. The detention in jail which is prohibited by § 22 is the detention of children who are subject to the act and not to those properly held by other courts. Without considering what the law should be but looking only to the statute as it was passed by the Legislature, we do not think the Juvenile Court had jurisdiction of this case after a charge of first degree murder was filed in the Municipal Court. We believe that the Municipal Court had the jurisdiction of a committing magistrate to bind relator over to the Criminal Court as it would any other person similarly charged, and could commit him to the custody of the sheriff of Marion County pending further action. *Page 30 The temporary writ heretofore issued herein should be and is vacated and a permanent writ is denied. NOTE. — Reported in 72 N.E.2d 357.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4306217/

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-2856 _____________________________ RENALDO DIMITRI REEVES, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________ Petition for Belated Appeal—Original Jurisdiction. August 22, 2018 PER CURIAM. The petition for belated appeal is denied on the merits. ROBERTS, KELSEY, and WINSOR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Renaldo Dimitri Reeves, pro se, Petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent. 2

01-03-2023

08-22-2018

https://www.courtlistener.com/api/rest/v3/opinions/3426538/

This is an appeal from the award of the Industrial Board, in a proceeding brought by appellant for compensation under the Workmen's Compensation law for an injury which appellant claims to have received while in the employ of appellee on December 21, 1925, which resulted in strangulated hernia. The evidence was first heard by one member of the Industrial Board who, after hearing the same, found that appellant was employed by appellee at an average weekly wage in excess of $24, and that, on or about said date, appellant became disabled; that said disability was due to a strangulation of a pre-existing hernia; that said hernia was not the result of an accident sustained on said date while appellant was in the employ of appellee, and an order was entered that appellant take nothing. On May 19, 1926, on the application of appellant, the full Industrial Board reviewed the cause and entered a finding similar to the one made by the one member, except that said full board found that said hernia and strangulation were not the result of any accident sustained on December 21, 1925, while in the employ of appellee, and made an award that appellant take nothing. Appellant testified, in substance, that on December 21, 1925, while loading coal, he had a pretty good sized chunk and turned to his left side to throw it into the car and that it pinched him in the side and he had to sit down. Pains in the region of the groin struck him and he had to take a little rest. After five minutes he commenced work again and couldn't do anything more and went home. His wife came after him in the car and took him home, where he fell on the floor and stayed until the doctor came. The doctor told him that he would have to be operated on right away and he was that same evening for rupture. He testified he didn't know he had a rupture before, but he was wearing a cross belt around the abdomen which we assume *Page 349 was a truss. Dr. Zinc, the physician who was called to treat appellant, testified that he found appellant suffering with pain in his right side and lying on the floor; that he got him to crawl over and helped him on to the davenport and examined him and found a strangulated hernia in the right side and tried to reduce it. Failing in this, he called appellee's physician, and appellant was taken to the hospital and operated on. It was the opinion of the doctor that the strangulation was of recent origin. The operation was successful in relieving the condition. The doctor testified on re-examination that the fact that appellant experienced a pain in the act of lifting a chunk of coal indicated that it was at this time that the injury occurred, that being when the appellant first noticed the lump and the place became so large. Dr. Garrish, called by appellee, testified that he saw him in the evening about 7 or 8 o'clock of the day that he claimed to have sustained a hernia, and he found on the examination a strangulated hernia; that appellant gave evidence of great pain and showed evidence of being under the influence of an opiate, with a protrusion of the inguinal region; that appellant gave a history that he had felt some pain in handling a rock or chunk of coal about 10 o'clock that day. From all the evidence, including the above, it is apparent that the Industrial Board was justified in finding that the hernia did not result from an accident on December 21, 1925, but from the evidence as above set out and which was uncontradicted, it is clear to the court that there was a strangulation of the hernia on that day resulting from the handling of the big chunk of coal. It is to be observed that the one member of the board found that the disability was due to a strangulation of a pre-existing hernia, while the full board found, not that neither the hernia nor the strangulation was the result of an accident on December 21, 1925, but *Page 350 that said hernia and strangulation were not the result of an accident on that date, which would be a correct finding if either the hernia or the strangulation was not caused by said accident. A strangulation resulting from an accident which was so serious as to require a surgical operation to reduce it certainly is such an injury as should come within the scope of compensation law. The case of Puritan Bed Spring Co. v. Wolfe (1918),68 Ind. App. 330, 120 N.E. 417, is closely in point on the question here involved. Award reversed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4310890/

Order entered September 6, 2018 In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00744-CV LUCILA M. SAAVEDRA, ET AL., Appellants V. U.S. BANK, N.A. SUCCESSOR TRUSTEE TO LASALLE BANK NATIONAL ASSOCIATION ON BEHALF OF THE HOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES I TRUST 2004-HW11, ASSET-BACKED CERTIFICATES SERIES 2004-HE11, BY AND THROUGH ITS SERVICER IN FACT, SELECT PORTFOLIO SERVICING, INC., Appellee On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-12077 ORDER Before the Court is the September 5, 2018 request of court reporter Vielica Dobbins for an extension of time to file the reporter’s record. We GRANT the request and extend the time to September 27, 2018. /s/ ADA BROWN JUSTICE

01-03-2023

09-10-2018

https://www.courtlistener.com/api/rest/v3/opinions/3426540/

The appellant was found guilty by the court, without a jury, on the first of three (3) counts of an affidavit. The charges were (1) incest upon the appellant's daughter; (2) the rape of said female, and (3) incest, in which the female was alleged to have been the stepdaughter of the appellant. There was an acquittal on the second and third counts. The second count charged that the female was thirteen years of age when the alleged offense was committed, and the undisputed evidence disclosed that she was the appellant's daughter and was fourteen years old at the time of the trial. In view of the relationship of the parties the acquittal on the third count is, therefore, readily understood. The appellant urges that there is a fatal inconsistency in the finding of guilty on the charge of incest and the acquittal on the charge of rape. It is urged that the judgment cannot stand because manifestly the appellant was guilty of both offenses or neither. This conclusion is based upon the fact that sexual intercourse *Page 450 is an essential element of incest and that such a relationship with a female under the age of sixteen years constitutes rape. §§ 10-4206, 10-4201, Burns' 1942 Replacement, § 2577, Baldwin's 1934, § 2421-1, Baldwin's Supp. 1941. Our attention is directed to the case of People v. Andursky (1925), 75 Cal.App. 16, 241 P. 591. That case lends support to the appellant's view and others might be cited to like effect, but we do not consider this line of decisions to be in harmony with the weight of authority or the precedents of this jurisdiction. The better rule appears to be that declared by Mr. 1. Justice Holmes in Dunn v. United States (1932), 284 U.S. 390, 76 L.Ed. 356, 52 S.Ct. 189, 80 A.L.R. 161, where it was declared: "Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. . . . Where the offenses are separately charged in the counts of a single indictment the same rule must hold. . . . "That the verdict may have been the result of a compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters." The Dunn case cites with approval Steckler v. United States (C.C.A.2d), 7 F.2d 59, 60, where it was said: "The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." It may be noted that the appellant's conviction of incest carried a maximum penalty of imprisonment for *Page 451 not less than two nor more than twenty-one years (§ 10-4206, Burns' 1942 Replacement), while the statute defining the crime of rape, in force when the alleged offense was committed, imposed a minimum penalty of imprisonment for not less than five nor more than twenty-one years. § 10-4201, Burns' 1933. This may explain, though it would not justify, the appellant's acquittal of rape. The case of Sichick v. State (1929), 89 Ind. App. 132, 135, 136, 166 N.E. 14, 15, decided when the Appellate Court had jurisdiction of certain appeals arising out of criminal 2. cases, is precisely in point. The concluding words of that opinion are as follows: "A review of the evidence discloses the appellant guilty of maintaining a nuisance; also the evidence would have sustained a conviction of the offense charged in either the first or second count or both of them. The jury, for some unaccountable reason, found the defendant guilty on the third count and was silent as to the other counts. The appellant is in no position to complain. The verdict was more favorable than he had a right to expect under the evidence. No technical deduction should be allowed to defeat the ends of justice. The verdict was not inconsistent or repugnant and was supported by convincing evidence." Numerous claims of error are asserted with respect to the admission and exclusion of evidence. These propositions may not be considered on account of the appellant's complete 3. failure to comply with the recognized procedure. The assignments of the motion for a new trial relating to the admissibility of evidence did not set out the questions, objections, answers, and rulings or the substance thereof.Brown v. State (1939), 216 Ind. 106, 23 N.E.2d 267;Deming Hotel Co. v. Sisson (1940), 216 Ind. 587, *Page 452 24 N.E.2d 912; Wise v. Curdes (1942), 219 Ind. 606, 40 N.E.2d 122. During the trial the court called the attention of the defendant (appellant) to the fact that he had entered no plea to the first and second counts of the affidavit. When this was 4. done the defendant's counsel replied that: "He went to trial on the entire affidavit, which would include counts one and two." A statute of this State provides that: "Any conviction shall not be invalidated by failure of the record to show an arraignment and plea or either of them, unless the record shall show that the defendant before the trial objected to entering upon the trial for lack of such arraignment or plea." § 9-1201, Burns' 1942 Replacement, § 2211, Baldwin's 1934. Since the passage of this statute failure to arraign the defendant and have a plea entered is not ground for reversal, unless the defendant made objection to going to trial without an arraignment or plea. Rogers v. State (1937), 211 Ind. 47,5 N.E.2d 509. When the evidence, including that to which the appellant unsuccessfully objected, is considered the decision is amply supported by the proof. Judgment is affirmed. NOTE. — Reported in 48 N.E.2d 56.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4260843/

J. S12034/18 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JORDAN ALEXANDER SCHRAUGER, : No. 1475 MDA 2017 : Appellant : Appeal from the Judgment of Sentence, August 14, 2017, in the Court of Common Pleas of Berks County Criminal Division at No. CP-06-CR-0002888-2016 BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 03, 2018 Jordan Alexander Schrauger appeals from the August 14, 2017 judgment of sentence of 5 to 10 years’ imprisonment imposed plus 5 years’ probation following his convictions in a jury trial of aggravated assault, simple assault, false imprisonment, recklessly endangering another person, and harassment.1 The Court of Common Pleas of Berks County determined that the simple assault, recklessly endangering another person, and harassment merged into the aggravated assault conviction. After careful review, we affirm. The trial court summarized the relevant facts, as follows: 1 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2903, 2705, and 2709(a)(1), respectively. J. S12034/18 On June 5, 2016, Elizabeth Beaulac had an altercation with her fiancé, [appellant], who physically assaulted her. They were out drinking and when they got home, [appellant] wanted to have sex with Ms. Beaulac. She said no. [Appellant] slapped her with an open hand across the back of the head. While Ms. Beaulac was trying to get away from [appellant], he grabbed her hair and pulled her back onto the bed. He then kept her confined to the bedroom for up to a half an hour [sic], during which time Ms. Beaulac asked him to let her go. [Appellant] eventually relented and let her out of the bedroom. When she got into the living room, she tried to leave the apartment, but [appellant] stopped her and put his hands over her face and nose until she was unable to breathe. He released her but he then punched her about six times in the right eye causing a laceration under her eye, a lump, and a contusion. At some point[,] he stopped and called 911. [Appellant] then fled the apartment. When the police arrived, Ms. Beaulac gave a short account of what happened to Officer Hoppes and then she was taken to the hospital by her father. Trial court opinion, 11/16/17 at 2. At sentencing, appellant moved for extraordinary relief and sought acquittal for aggravated assault. The trial court denied the motion and sentenced appellant. On August 24, 2017, appellant filed a post-sentence motion that the trial court denied on August 28, 2017. Appellant filed a notice of appeal on September 21, 2017. On October 24, 2017, the trial court ordered appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant complied with the order on November 9, 2017. On November 20, 2017, the trial court filed its opinion pursuant to Pa.R.A.P. 1925(a). -2- J. S12034/18 Appellant raises the following issues for this court’s review: A. Whether the evidence presented at trial was insufficient to support a guilty verdict on the F-1 Aggravated Assault charge, where the Commonwealth, when proceeding on the theory that [a]ppellant attempted to cause serious bodily injury to Elizabeth Beaulac, failed to establish, beyond a reasonable doubt, that [a]ppellant engaged in conduct that constituted a substantial step toward causing serious bodily injury and that [a]ppellant had specific intent to cause serious bodily injury to Ms. Beaulac[?] B. Whether the [trial] [c]ourt erred by not granting a new trial on the basis that the guilty verdict F-1 Aggravated Assault charge was contrary to the weight of the evidence presented at trial, where Ms. Beaulac’s testimony was inconsistent and incredible, as she testified to several significant aspects of the incident at the time of trial, but failed to report them when speaking to the police, and she also testified that she was hit with a closed fist at least 6 times, with most blows to the right eye, but the injuries were limited to a laceration under her eye and bruising[?] Appellant’s brief at 7. Appellant’s first issue challenges to the sufficiency of the evidence presented by the Commonwealth. In reviewing the sufficiency of the evidence, we view all evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable [the fact-finder] to find every element of the crime beyond a reasonable doubt. This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to a -3- J. S12034/18 crime beyond a reasonable doubt. Although a conviction must be based on “more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.” Moreover, when reviewing the sufficiency of the evidence, the Court may not substitute its judgment for that of the fact finder; if the record contains support for the convictions, they may not be disturbed. Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal denied, 89 A.3d 661 (Pa. 2014) (citations omitted). Moreover, when applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact, while passing upon the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence. Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011) (citations omitted), appeal dismissed, 54 A.3d 22 (Pa. 2012). The Crimes Code defines aggravated assault as when a person “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. -4- J. S12034/18 The parties and the trial court all agree that Elizabeth Beaulac (“Beaulac”) did not suffer serious bodily injuries. A lack of serious injuries sustained by a victim, however, does not necessarily preclude the Commonwealth from charging a defendant with aggravated assault and being able to present sufficient evidence to warrant a conviction. “Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury.” Commonwealth v. Alexander, 383 A.2d 887, 889 (Pa. 1978); see also Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super. 2012) (“Where the victim does not suffer serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding of an attempt to cause such injury.”).2 In order to determine intent, the Alexander court established a totality of the circumstances test. Some of the factors that may be considered include (1) whether there was a disparity in size and strength between the defendant and the victim; (2) whether the defendant would have escalated the attack had he or she not been otherwise restrained; (3) whether the defendant was in possession of a weapon; and (4) whether 2 “A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” Alexander, 383 A.2d at 889, quoting 18 Pa.C.S.A. § 901(a). -5- J. S12034/18 the defendant made any statements indicative of his or her intent to “inflict further injury upon the victim.” Alexander, 383 A.2d at 889; see also Commonwealth v. Matthew, 909 A.2d 1254, 1259 (Pa. 2006) (reaffirming the Alexander test); In order to determine whether appellant acted with the intent to inflict serious bodily injury upon the victim, we shall consider the circumstances of the attack. First, the evidence of record established that appellant was much larger than Beaulac. Beaulac testified that appellant was “a lot bigger than me.” (Notes of testimony, 8/8/17 at 54).3 Appellant escalated the attack because he initially used force by pushing Beaulac back on a bed to keep her from leaving the room they occupied, later he moved on to suffocating and punching Beaulac. (Id. at 52-56). In fact, when appellant covered Beaulac’s nose and mouth so that she could not breathe, Beaulac “thought that was it.” (Id. at 54.) Appellant did not stop the onslaught until Beaulac was bleeding profusely and said, “You broke my face; what did you do?” (Id. at 56.) After considering the totality of the circumstances, we determine that the Commonwealth presented sufficient evidence to support appellant’s conviction of aggravated assault. 3In the Police Criminal Complaint, appellant is listed at 5 feet 11 inches and 240 pounds. -6- J. S12034/18 Appellant next contends that the guilty verdict on the aggravated assault charge was contrary to the weight of the evidence. [T]he weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact . . . thus, we may only reverse the lower court’s verdict if it is so contrary to the evidence as to shock one’s sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence . . . rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Commonwealth v. Kim, 888 A.2d 847, 851 (Pa.Super. 2005) (citations and quotations omitted). A motion for a new trial based on a challenge to the weight of the evidence concedes the evidence was sufficient to support the verdict. Commonwealth v. Davis, 799 A.2d 860, 865 (Pa.Super. 2002). Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007). Here, appellant argues that the verdict was contrary to the weight of the evidence because Beaulac’s testimony was inconsistent and incredible as she testified to several significant aspects of the incident at the time of trial but failed to report them when speaking to the police and she also testified that she was hit with a closed fist at least six times, with most blows to the right eye, but the injuries were limited to a laceration and bruising. -7- J. S12034/18 Appellant invites us to assess witness credibility and reweigh the evidence to convince us to reach a different result than the jury reached. We decline to do so. The jury, as fact-finder, had the duty to determine the credibility of the testimony and the evidence at trial. Commonwealth v. Talbert, 129 A.3d at 536 (Pa.Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016). Appellate courts cannot and do not substitute their judgment for that of the fact-finder. Our review of the record supports our conclusion that the trial court properly exercised its discretion in denying appellant’s weight claim. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/3/2018 -8-

01-03-2023

04-04-2018

https://www.courtlistener.com/api/rest/v3/opinions/4042642/

NUMBER 13-15-00444-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN RE MELVIN CARTER On Petition for Writ of Mandamus. MEMORANDUM OPINION Before Justices Garza, Benavides, and Longoria Memorandum Opinion Per Curiam1 On September 24, 2015, Melvin Carter, proceeding pro se, filed a petition for writ of mandamus seeking to compel the Board of Pardons and Paroles for the State of Texas to provide relator with a written statement specifying the reasons for denying relator’s release on parole. See TEX. GOV’T CODE ANN. § 508.1411 (West, Westlaw through 2015 R.S.); see also Ex parte Phillips, No. WR-82,437-01, 2014 WL 7189084, at *1 (Tex. Crim. App. Dec. 17, 2014) (per curiam order, not designated for publication) (requesting briefing 1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). on whether Board of Pardons and Paroles’ written notice of its decision not to release an applicant violates due process). We dismiss the petition for writ of mandamus for lack of jurisdiction. I. STANDARD OF REVIEW To be entitled to mandamus relief, relator must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).2 If relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. See id. It is the relator’s burden to properly request and show entitlement to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”). In addition to other requirements, the relator must include a statement of facts supported by citations to “competent evidence included in the appendix or record,” and must also provide “a clear and concise argument for the 2 Relator contends that this “is not a criminal law matter, therefore this court has original jurisdiction of this action and has authority to issue a writ of mandamus.” However, criminal law matters encompass, “at a minimum,” all legal issues arising directly out of a criminal prosecution. Lanford v. Fourteenth Ct. of Apps., 847 S.W.2d 581, 585 n. 3 (Tex. Crim. App. 1993); see Armstrong v. State, 340 S.W.3d 759, 765 (Tex. Crim. App. 2011); Smith v. Flack, 728 S.W.2d 784, 788 (Tex. Crim. App. 1987). Further, disputes which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or incident to a criminal prosecution, are criminal law matters. Armstrong, 340 S.W.3d at 765; Curry v. Wilson, 853 S.W.2d 40, 43 (Tex. Crim. App. 1993). An issue may comprise a criminal law matter even if elements of civil law must be addressed to resolve the issue. See Armstrong, 340 S.W.3d at 765; State ex rel. Holmes v. Honorable Ct. of Apps. for Third Dist., 885 S.W.2d 389 (Tex. Crim. App. 1994). 2 contentions made, with appropriate citations to authorities and to the appendix or record.” See generally TEX. R. APP. P. 52.3. The relator must also file an appendix and record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record); see also Walker, 827 S.W.2d at 837; In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). In this regard, relator has failed to provide this Court with a record or appendix supporting his request for mandamus relief. Moreover, the petition for writ of mandamus itself fails to specify the crime for which relator was convicted, the court in which he was convicted, or the identity of the real party in interest herein. II. JURISDICTION Article V, Section 6 of the Texas Constitution specifies the appellate jurisdiction of the courts of appeals, and states that the courts of appeals “shall have such other jurisdiction, original and appellate, as may be prescribed by law.” TEX. CONST. art. V, § 6. As an appellate court, this Court’s original jurisdiction is governed by section 22.221 of the Texas Government Code. See TEX. GOV’T CODE ANN. § 22.221 (West, Westlaw through 2015 R.S.); see also In re Cook, 394 S.W.3d 668, 671 (Tex. App.—Tyler 2012, orig. proceeding). Section 22.221 expressly limits the mandamus jurisdiction of the courts of appeals to: (1) writs against a district court judge or a county court judge in the court of appeals’ district; and (2) all writs necessary to enforce the court of appeals’ jurisdiction. TEX. GOV’T CODE ANN. § 22.221. Relator’s petition seeks mandamus relief against the Board of Pardons and Paroles for the State of Texas. However, this Court does not have jurisdiction to issue a 3 writ against the Board of Pardons and Paroles. See id.; see also In re Fowler, No. 14-15- 00712-CR, 2015 WL 5092623, at *1 (Tex. App.—Houston [14th Dist.] Aug. 27, 2015, orig. proceeding) (per curiam mem. op., not designated for publication). Further, relator has not shown that issuance of a writ compelling the requested relief is necessary to enforce our jurisdiction. See TEX. GOV’T CODE ANN. § 22.221; In re Richardson, 327 S.W.3d 848, 851 (Tex. App.—Fort Worth 2010, orig. proceeding); In re Phillips, 296 S.W.3d 682, 684 (Tex. App.—El Paso 2009, orig. proceeding); In re Washington, 7 S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding). III. CONCLUSION The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that relator has not established this Court’s jurisdiction over the relief sought. Accordingly, the petition for writ of mandamus is DISMISSED. PER CURIAM Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 28th day of September, 2015. 4

01-03-2023

09-28-2016

https://www.courtlistener.com/api/rest/v3/opinions/3208640/

Filed Washington State Court of Appeals Division Two June 1, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 47839-1-II Respondent, v. ANTHONY TRAUMAYNE LAFROMBOIS, UNPUBLISHED OPINION Appellant. WORSWICK, J. — Anthony LaFrombois appeals his sentence following his guilty plea to second degree assault, drive-by shooting, and first degree robbery. He argues, and the State concedes, that the sentencing court erred by miscalculating his offender score and imposing an exceptional sentence based on the erroneously calculated offender score. We accept the State’s concession. LaFrombois, in a supplemental brief, argues the trial court erred by not considering his ability to pay before imposing legal financial obligations (LFOs), and further seeks waiver of appellate costs. We vacate LaFrombois’s sentence and remand for resentencing and for the trial court to consider LaFrombois’s ability to pay LFOs. FACTS LaFrombois pleaded guilty to one count each of second degree assault, drive-by shooting, and first degree robbery. In calculating LaFrombois’s offender score, the sentencing court appears to have included points to reflect that LaFrombois had been on community custody at the time his current offenses were committed. The record does not establish that LaFrombois was on community custody at the time. No. 47839-1-II After totaling the prior offenses and the current offenses, the sentencing court calculated LaFrombois’s offender score at 13, and then determined that an exceptional sentence was appropriate under RCW 9.94A.535(2)(c) to avoid some of LaFrombois’s current offenses going unpunished. LaFrombois argues, and the State concedes, that LaFrombois’s offender score is less than 13.1 ANALYSIS LaFrombois argues, and the State concedes, that his exceptional sentence was based on an erroneously calculated offender score. We agree. Sentencing errors resulting in unlawful sentences may be raised for the first time on appeal. State v. Bahl, 164 Wash. 2d 739, 744, 193 P.3d 678 (2008). We review offender score calculations de novo. State v. Moeurn, 170 Wash. 2d 169, 172, 240 P.3d 1158 (2010). The sentencing court acts without statutory authority when imposing a sentence based on a miscalculated offender score. In re Pers. Restraint of Johnson, 131 Wash. 2d 558, 568, 933 P.2d 1019 (1997). The sentencing court calculated LaFrombois’s offender score at 13, based in part on its finding that LaFrombois was on community custody at the time of his current offenses. Based on this score, the court imposed an exceptional sentence above the standard range. LaFrombois asserts that he was not on community custody at that time. And the State concedes that it is not able to establish that LaFrombois was on community custody and, therefore, that an additional point was erroneously included in the calculation of his prior offenses. Because the record is insufficient to determine whether LaFrombois was on 1 The parties do not agree on what LaFrombois’s correct offender score is. We leave it to the sentencing court to correctly determine LaFrombois’s correct offender score at the resentencing. 2 No. 47839-1-II community custody, we remand for the sentencing court to determine whether LaFrombois was on community custody at the time he committed the current offenses. We hold that the sentencing court erred in calculating LaFrombois’s offender score and basing its imposition of an exceptional sentence on that offender score. Accordingly, we vacate LaFrombois’s sentence. We remand for resentencing consistent with this opinion. At resentencing the trial court must consider LaFrombois’s ability to pay LFOs.2 A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, the opinion shall be filed for public record in accordance with RCW 2.06.040. Worswick, J. We concur: Maxa, A.C.J. Melnick, J. 2 Because the State has not substantially prevailed in this appeal, we do not address the issue of appellate costs. 3

01-03-2023

06-01-2016