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https://www.courtlistener.com/api/rest/v3/opinions/3426681/ | This is an action by appellee against appellant to recover a penalty for the violation of a municipal ordinance, in which a judgment was rendered *Page 133
in the city court for the sum of $50. Appellant appealed to the superior court but that court refused to assume jurisdiction, and, on motion of appellee, dismissed the appeal. Judgment was rendered against appellant for costs, and this appeal followed. The first question to be determined is one of jurisdiction. It is well settled that the right of appeal is wholly statutory, except where expressly secured by the Constitution. Hall v. 1. Kincaid (1917), 64 Ind. App. 103. The legislature has provided that appeals may be taken by either party from circuit and superior courts to the Supreme or Appellate Court, from all final judgments, with certain specified exceptions, among which we find the following: "No appeal shall hereafter be taken to the supreme or appellate court in any civil case where the amount in the controversy, exclusive of interest and costs, does not exceed $50, except as provided in section 8 of this act." § 1389 Burns 1914, Acts 1903 p. 280.
The action in the instant case has for its object the recovery of a penalty for the violation of a municipal ordinance, and hence is a civil case, controlled by the civil practice. 2. Ridge v. City of Crawfordsville (1892), 4 Ind. App. 513; City of Hammond v. New York, etc., R. Co. (1892),5 Ind. App. 526; Griffee v. Town of Summitville (1894),10 Ind. App. 332; City of Greensburg v. Cleveland, etc., R. Co.
(1899), 23 Ind. App. 141; Smith v. City of New Albany (1910),175 Ind. 279. By this appeal, appellant is seeking a reversal of a judgment of the superior court, in order that it may be required to assume jurisdiction of this action, and thereby be relieved from the payment of a judgment of the city court, through a trial of the same on appeal. As the judgment of the city court is not based on a demand which was, or could have been reduced by set-off or counter-claim, it is apparent *Page 134
that the amount in controversy, exclusive of interest and costs, does not exceed $50. Schultz v. Alter (1915),60 Ind. App. 245. None of the questions enumerated in said § 8, being § 1391 Burns 1914, Acts 1901 p. 585, are involved in this appeal.
No question involving appellant's personal liberty is presented, since the imprisonment, which might follow a failure to pay or replevy the judgment in question, would merely 3. serve as a means of coercing the payment of the same. 8 R.C.L. 53; Quigley v. City of Aurora (1875),50 Ind. 28; Town of North Manchester v. Oustal (1892), 132 Ind. 8. It thus appears that the only matter involved in this appeal is a money judgment of $50 and attending interest and costs, from which appellant may be fully relieved by payment thereof. For the reasons stated our right to assume jurisdiction of this appeal is clearly barred by the provisions of said § 1389 Burns 1914,supra.
Appeal dismissed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426683/ | This is an appeal from a judgment foreclosing a trust deed adjudged to be a mortgage, in which judgment the court found and decreed, among other things, that said mortgage secured the payment of $28,888 plus $2,000 attorney fees; that there was due and owing to appellees the said sums; and that said mortgage be foreclosed and the real estate therein described sold and the proceeds from the sale applied in the payment thereof. The cause was submitted to the court upon the second paragraph of complaint, to which appellants filed an answer in general denial and a second paragraph of payment. Appellants filed their motion for a new trial, which was overruled, and perfected this appeal. The only error assigned and presented is the ruling of the court on appellants' motion for a new trial. The causes therein set out are substantially: That the decision of the court is not sustained by sufficient evidence; that the decision of the court is contrary to law; and that the assessment of the amount of recovery is erroneous, being too large.
The only question presented by appellants in this appeal is the allowance of attorney fees of $2,000.
The trust deed sought to be foreclosed in this action was given to secure the payment of a series of bonds. The bonds contain no provision for attorney fees. The only provision relative to attorney fees is contained in the mortgage or trust deed, which provision is as follows:
"And in case of foreclosure of this Trust Deed, in any court of law or equity, a reasonable sum shall be allowed for the solicitors' and stenographers' fees of the complainant in such proceeding, *Page 402
and also all outlays for documentary evidence and the cost of a complete abstract of title to said premises, and for an examination of title for the purpose of such foreclosure; and in case of any other suit, or legal proceeding, wherein the said party of the second part, or the holder or holders of said bonds, shall be made a party thereto by reason of this deed, the reasonable fees and charges of the attorneys or solicitors of the party of the second part and of the legal holder or holders of said bonds, or of any of them, so made parties, for services in such suit or proceeding, shall be a further lien and charge upon the said premises, under this deed; and all such attorneys', solicitors' and stenographers' fees and other charges shall become so much additional indebtedness secured by this Trust Deed, and be paid out of the proceeds of the sale of said premises, or from rents, as other costs, if not paid by said party of the first part.
"And out of the proceeds of any sale, under foreclosure of this Trust Deed, shall be paid: First — All the costs of such suit or suits, advertising, sale and conveyance, including attorneys', solicitors', stenographers', trustees' fees, outlays for documentary evidence and cost of said abstract and examination of title."
Appellants contend that this provision does not authorize the allowance of reasonable attorney fees, except in case of foreclosure, and is, therefore, null and void under the statute, because it is not an unconditional agreement to pay attorney fees, citing in support thereof Section 19-1918 Burns 1933, § 13015.15 Baldwin's 1934. Said section reads as follows:
"Any and all agreements to pay attorney fees, depending upon any condition therein set forth, and made part of any bill of exchange, acceptance, draft, promissory note, or other written evidence of indebtedness, are hereby declared illegal and void: Provided, That nothing in this section shall be construed as applying to contracts made previous to the taking effect of this act."
It is clearly obvious that the instrument involved in this action is not a bill of exchange, acceptance, draft, or *Page 403
promissory note. Therefore, to make the above section of 1. the statute applicable, we would be compelled to hold that the instrument was in effect a written evidence ofindebtedness. The instrument sued upon was a mortgage given to secure the payment of certain indebtedness which appellants had obligated themselves to pay. There was no provision in the mortgage evidencing any of this original indebtedness, and, therefore, the instrument cannot be considered as written evidence of the indebtedness. The bonds themselves were the written evidence of indebtedness, and the mortgage was to secure the payment of these bonds. The provision in the mortgage providing for attorney fees cannot be considered as written evidence of an existing debt, but is only an obligation creating a subsequent liability on the mortgagors for services performed in the collection of the original indebtedness. Therefore, we hold that the above section of the statute is not applicable to the provisions in the instrument here involved.
Appellants further contend that there is no evidence or proof that the appellees became responsible for attorney fees; that there is no evidence or proof that the appellees 2, 3. expended any money therefor or that the same have been paid; that there is no evidence or proof that liability therefor to the appellees has been incurred as contemplated under said provision; and that the evidence is wholly insufficient to authorize an allowance of $2,000.
It appears on the face of the record that the appellees had employed counsel. The record shows that the appellees (plaintiffs below), by Call Call, their attorneys, filed the complaint, and it is signed by "Call Call, Attorney for Plaintiffs."
Witness Call testified "that this action was filed to foreclose said mortgage on September 26th, 1930, in the Lake Superior Court, Room Four; that thereafter an *Page 404
affidavit for change of venue was filed and the action was sent on a change of venue to the Circuit Court of Porter County, Indiana; that thereafter and on September 14th, 1932, upon a trial had, a decree was rendered here [Porter County]; that thereafter a motion for a new trial was overruled; that thereafter, because of a decision in the Appellate Court, the judgment rendered in this action was vacated by agreement."
Witness McGarvey testified in substance that he was an attorney at law and acquainted with the fair and reasonable fees allowed by courts in the foreclosures of mortgages; that $3,000 was a reasonable amount for attorney fees in the foreclosure of a mortgage involving $28,888, the foreclosure having been filed on September 26th, 1930, in the Lake Superior Court of Lake County, Ind., a change of venue taken to the Circuit Court of Porter County, Ind., trial in the Circuit Court of Porter County, Ind., and thereafter, because of a decision of the Appellate Court, the decree vacated and the case again retried on the 8th day of December, 1933.
It will be noted that the only fees which appellees sought to recover were for services rendered by their attorneys in the filing of the complaint and the proceedings in the presentation and trial of their cause. The proceedings in the cause, up until it was venued to the Porter Circuit Court where the last trial was had, are shown by the evidence, and the proceedings and services of the last trial were in the presence and knowledge of the court which determined the amount.
In view of the record, the foregoing evidence, and the fact that the services in the last trial of the cause were had in the presence of the court, and with its knowledge, we conclude that the court did not err in the allowance of attorney fees of $2,000.
Finding no reversible error, the judgment is affirmed.
Curtis, J., not participating. *Page 405 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426729/ | This action was brought by appellees to compel specific performance of a contract for the sale of real estate. The complaint was in two paragraphs. Demurrers to each paragraph were overruled. Trial resulted in a general finding and judgment for appellees.
Appellant assigns as error on appeal the overruling of its demurrers to the complaint and the overruling of its motion for a new trial. The specifications of the *Page 153
motion for a new trial are that the decision is not sustained by sufficient evidence and is contrary to law.
Appellant's demurrer to the first paragraph of complaint charges that the alleged contract has not been performed, is uncertain and violates the statute of frauds by not being in writing. This paragraph of complaint alleges that the appellant and appellees entered into a parol contract for the purchase of the involved real estate on August 18, 1945, by the terms of which appellees were to buy the real estate for a purchase price of $6500, to be paid $4000 cash, $1000 on January 2, 1946, and $1500 on January 2, 1947, the deferred payment to be evidenced by promissory notes; that appellees did pay the sum of $4000 on August 18, 1945, executed the two promissory notes, took possession of the premises, spent a substantial amount of money making valuable and lasting improvements and tendered the balance of the purchase money before bringing this action.
We see no merit in appellant's contention that the contract has not been performed. Appellees, according to the averments 1. of the complaint, fully performed their part of contract.
Appellant does not point out any uncertainty about the contract nor do we discover any.
As to the statute of frauds the rule is well settled that where a party to a parol real estate contract pays the purchase price, takes possession of the premises and makes valuable and lasting improvements the contract is taken out of the operation of the statute of frauds. O'Brien v. Knotts (1905), 165 Ind. 308, 75 N.E. 594; Bastin v. Crawford (1914), 180 Ind. 697, 103 N.E. 792.
The second paragraph of complaint is for the most part in the same language as the first with an added *Page 154
rhetorical paragraph stating that the appellant executed 2. and delivered to the appellees a written memorandum of the agreement and making the memorandum an exhibit. Appellant's demurrer to this paragraph of complaint attacks the memorandum as being insufficient to take the contract out of the operation of the statute of frauds. Assuming appellant to be correct in his contention the paragraph is still good for it contains the same allegations as the first paragraph as to payment of the purchase price, taking possession and making valuable and lasting improvements.
Under the specifications of its motion for a new trial appellant contends that the evidence does not disclose that the possession was taken pursuant to the contract and was exclusive. We cannot agree with appellant. We have examined the evidence carefully. No good purpose would be served in detailing it here. It is sufficient to say that it is ample to support a finding that the possession was taken pursuant to the contract and was exclusive. It is true that appellant kept some equipment in the building but that was by permission of appellees according to the evidence most favorable to appellees.
Appellant also contends under the specifications of its motion for a new trial that the memorandum referred to in the second paragraph of complaint which was introduced in evidence is not sufficient to take the contract out of the operation of the statute of frauds. However we need not give this contention consideration since the evidence showing payment of the purchase money, possession and the making of valuable and lasting improvements is sufficient to support the court's decision.
Under the specification that the decision is contrary to law appellant states, "The court, in decreeing specific *Page 155
performance, is limited to the contract the parties made." But at no place in its assignment of errors, in its motion for new trial or under its "Propositions, Points and Authorities" does appellant point out wherein the court's decree went beyond the contract of the parties.
We find no reversible error in the record. Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426751/ | The relator asserts that he is entitled to a writ of mandate against William H. Schannen, as judge of the Circuit Court of Allen County. The claim is that the relator filed a "refile" petition in the Allen Circuit Court requesting permission to again place on file a petition which he had filed and which, after the court had made an announcement denying the relief sought, was dismissed by his attorneys.
From the relator's petition, and papers attached thereto, we understand that the relator was, on June 19, 1946, in the Allen Circuit Court, convicted of the crime of sodomy; that subsequent thereto he filed a showing wherein he requested a writ of errorcoram nobis; that his attorneys dismissed said petition to avoid the result of an adverse ruling by the court; that later he filed what he termed a refile petition; and that no action has been taken on said refile petition.
In the refile petition relator requested that the Allen Circuit Court permit him to refile his petition for a writ of errorcoram nobis. It contained allegations that the affidavit on which he was tried did not aver that the act complained of had been committed in Allen *Page 472
County, Indiana; that petitioner was not capable of discerning such fault in the affidavit charging the crime; that he was innocent of the crime charged; and that he had a valid defense which his attorneys failed to make. What that defense was he has not set forth in any papers filed with this court.
On that showing the relator requests that we issue a writ of mandate against Judge William H. Schannen. No certified copies of pleadings, orders and entries have been filed. No showing of notice to the Attorney General of Indiana has been made, although we have held that such notice must be given in compliance with the statute. § 49-1937, Burns' 1933 (Supp.), as amended by the Acts of 1947, ch. 196, p. 638; State ex rel. Wadsworth v.Mead (1947), ante, p. 123, 73 N.E.2d 53, 55.
There is no need to request permission to refile a matter that has been dismissed. The relator could, without the approval of the court, again file the same or a similar petition by 1. sending or delivering the same to the clerk of the court with proper endorsement and directions.
The writ of mandate should not be granted under the few facts disclosed by the record before us. If the relator has any legal right or claim to further hearing before the Allen Circuit 2. Court which has been denied to him, he can secure the proper record and submit it in such form that this court may be properly advised in the matter. The State of Indiana employs a public defender at the expense of the taxpayers, whose duty requires him to give legal service to those inmates of our prisons who have a claim to redress and are unable to pay for such service, and his services and advice are available to this relator.
Because of the failure to cause notice to issue, and *Page 473
because the facts averred are insufficient to inform us of the claimed controversy with the judge of the Allen Circuit Court, the petition of the relator is dismissed.
NOTE. — Reported in 75 N.E.2d 898. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426752/ | This is an appeal from a judgment granting appellee an absolute divorce upon his complaint charging appellant with cruel and inhuman treatment, *Page 325
and denying appellant relief upon her cross-complaint in which she charged appellee with cruel and inhuman treatment and prayed for a decree of separation from bed and board for a period of two years and alimony in the sum of $3,000.00.
Errors assigned and relied upon for reversal are: (1) That the court erred in overruling appellant's written objections to the Hon. Floyd Murray presiding as special judge, which assignment is cause No. 1 of appellant's motion for a new trial; (2) that the court erred in overruling appellant's motion for a new trial; and (3) that the court erred in overruling appellant's motion in arrest of judgment.
It affirmatively appears from the record and appellant's brief that the judgment was rendered on October 16, 1944; that appellant's motion for a new trial was filed on October 28, 1944, and overruled on February 23, 1945; and that the motion in arrest of judgment was filed on February 23, 1945, and overruled on the same date.
Appellant, in her brief, concedes that a motion in arrest of judgment must precede the rendition of the judgment and cannot be considered if made after judgment is rendered. Smith and
1. Wife v. Dodds and Another, Administrators (1871), 35 Ind. 452; Watson's Practice and Forms, vol. 2, § 1907, p. 482, and authorities cited therein.
Notwithstanding the unbroken line of numerous decisions of the Supreme Court sustaining the above rule of law, appellant asks this court to overrule the Supreme Court and announce a new 2. rule of practice. This court is bound by the decisions of the Supreme Court and has no authority to overrule or disregard any decision of that court. Therefore, in view of the record in the instant case, we must hold *Page 326
that no question is presented for our consideration by appellant's third assignment of error, under which she attacks the sufficiency of appellee's complaint to state a cause of action for divorce.
It is well settled that the action of the trial court in sustaining or overruling an application for a change of venue from a judge, or objections to the appointment of a special 3. judge, must be assigned as a ground or reason for a new trial, and that such rulings present no question for review upon appeal when presented solely by an independent assignment of error. Scanlin v. Stewart (1894), 138 Ind. 574, 579, 37 N.E. 401; National Hame and Chain Co. v. Robertson (1930),90 Ind. App. 556, 559, 161 N.E. 851.
As heretofore stated, appellant's first assignment of error was also assigned as reason No. 1 in the motion for a new trial and because of this fact the question is properly presented for 4. our consideration under assignment of error No. 2. Other reasons assigned in the motion for a new trial are: (2) Error in denying appellant's motion for a finding in her favor made at the conclusion of the plaintiff's evidence; (3) that the finding and decision of the court is not sustained by sufficient evidence; and (4) the decision and finding is contrary to law.
The record discloses that on September 28, 1944, the appellant, who was the defendant in the trial court, filed an affidavit for a change of venue from the Hon. Joseph V. Stodola, Jr., the regular judge of the court wherein this cause of action had been instituted and was then pending. This motion was granted on the same date, and the court appointed Floyd R. Murray, a member in good standing at the bar of said court, to act and preside as special judge in said cause of action. The *Page 327
said Floyd R. Murray qualified and assumed jurisdiction as special judge in said cause on October 6, 1944. Thereupon the appellant filed her written objections to the appointment of said Floyd R. Murray as special judge in said cause, based upon the grounds that the regular judge of said court, from whom appellant had taken and been granted a change of venue, had assumed the right to name Floyd R. Murray as special judge instead of designating and submitting a list containing the names of three competent and disinterested persons from whom the special judge would be selected in the manner as provided in § 2-1409, Burns' 1933, § 207, Baldwin's 1934. Said objections were overruled and the cause proceeded to trial, finding, and judgment.
It is conceded by both appellant and appellee that ch. 85, Acts of 1937, being § 2-1430, Burns' 1933 (Supp.), wherein a list of names is certified by the Clerk of the Supreme Court for the selection of a special judge, is not involved in the consideration of the question presented by this appeal for the reason that the affidavit for a change of venue was not filed under and pursuant to said Act. This leaves for our consideration the following sections of the statutes applicable to the question presented for decision, to-wit: §§ 2-1401, 2-1402, and 2-1409, Burns' 1933, §§ 190, 193, and 207, Baldwin's 1934.
Section 2-1401, Burns' 1933, § 190 Baldwin's 1934, provides in part that: "The court, in term, or the judge thereof, in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing any one or more of the following causes: . . . Seventh. When either party shall make and file an affidavit of the bias, prejudice or interest of the judge before whom the said cause is pending." *Page 328
Appellant's application for a change of judge alleged facts conforming to the requirements of the above statute.
Section 2-1402, Burns' 1933, § 193, Baldwin's 1934, reads as follows:
"When any matter of a civil, statutory or equitable nature not triable by a jury, is pending, the judge before whom said cause is pending shall change the venue thereof upon the application of either party to such cause, made upon affidavit, of either party or his attorney, showing any one or more of the reasons named in the statutes of this state authorizing changes of venue from the judge in civil actions. And the presiding judge shall make an appointment of a special judge to hear such cause in the manner provided by law for changes of venue in civil actions."
It has been expressly held by this court in the case ofStyles v. Styles (1921), 76 Ind. App. 550, 132 N.E. 645, that § 2-1402, supra, is applicable and authorizes the 5. granting of a change of venue from the presiding judge of the court in actions for divorce.
It is the appellant's contention that, because of the following language contained in § 2-1402, supra, namely: "And the presiding judge shall make an appointment of a special judge to hear such cause in the manner provided by law for changes ofvenue in civil actions," (our italics), the regular judge was required to follow the provisions of § 2-1409, Burns' 1933, § 207 Baldwin's 1934, in the selection of a special judge. Said section reads as follows:
"Hereafter, whenever a change of venue is taken from the judge in any civil action pending in any circuit or superior court in this state, or in any case where the presiding judge is disqualified from any cause to try such cause, if the parties in such *Page 329
action shall agree, in open court, upon some judge or member of the bar of any court in this state to try such cause, it shall be the duty of the court to appoint such judge or attorney, so agreed upon, to try such cause. In the absence of such agreement, it shall be the duty of the court, within three (3) days, to nominate three (3) competent and disinterested persons, each of whom shall be an available judge or member of the bar of this state, to be submitted to the parties in the action, from which the plaintiff side and the defendant side, within two (2) days thereafter, may strike off one (1) of such names, each. The court shall thereupon appoint the person, or one (1) of the persons, who shall remain unchallenged, to preside as judge in said cause: Provided, That this act shall not apply to proceedings in divorce."
Appellant insists that said section is the only applicable statute providing a specific manner for the appointment of a special judge where a change of venue has been granted under § 2-1401 or § 2-1402, supra. Appellant concedes that § 2-1409,supra, contains the following language, to-wit: "Provided, That this act shall not apply to proceedings in divorce," but argues that notwithstanding said fact, the section is applicable in divorce actions, because of the absence of any other statute providing a manner for appointment of special judges in divorce actions.
Section 2-1401, Burns' 1933, § 190, Baldwin's 1934, was enacted in 1881 and is still in full force and effect. Prior to the enactment of § 2-1409, Burns' 1933, § 207, Baldwin's 1934, 6. in 1905, the presiding judge from whom a change of venue was taken pursuant to the provisions of § 2-1401, supra,
selected some competent and disinterested person to act as special judge in the cause wherein the change of venue had been taken. Such was, and has been, the exclusive manner provided by law for the selection of a special *Page 330
judge in divorce proceedings from 1881 until 1937, when ch. 85, Acts of 1937, § 2-1430, Burns' 1933 (Supp.), was enacted providing an additional manner for the selection of a special judge in divorce proceedings, provided the application was filed in conformity with the provisions of the Act, which was not done in the instant case.
It must be assumed that the Legislature had a reason for inserting the words, "provided, that this act shall not apply to proceedings in divorce," when it enacted § 2-1409, supra.
The language used is plain, definite, and unambiguous, and under the well-settled rule of statutory construction, the court must give the quoted language a literal interpretation 7-9. and hold that said proviso means exactly what it plainly says, to-wit: that said statute does not apply to proceedings in divorce. Pabst Brewing Co. v. Schuster (1914),55 Ind. App. 375, 103 N.E. 950; Cheney v. State, ex rel.
(1905), 165 Ind. 121, 74 N.E. 892; Rogers v. Calumet NationalBank (1938), 213 Ind. 576, 12 N.E.2d 261. Furthermore, we are mindful of the rule of construction which requires us to hold that it is the office and function of a "proviso" contained in a statute to limit and qualify the preceding language of the statute and not to enlarge the effect of the statute. Board ofCommissioners v. Millikan (1934), 207 Ind. 142, 151,190 N.E. 185; Hughes v. Yates (1923), 79 Ind. App. 247, 249, 135 N.E. 156; City of Gary v. Gary, etc., Cemetery Assn. (1917),186 Ind. 446, 452, 116 N.E. 741.
For the foregoing reasons we hold that in the instant proceeding the presiding judge had the power and authority, and it was his duty, to appoint a special judge under and 10. pursuant to the provisions of § 2-1401, supra, and that the appointment of *Page 331
Floyd R. Murray as special judge was made in the manner provided by law in proceedings for divorce. Appellant's objections to the special judge were properly overruled.
Referring to appellant's next contention that the court erred in denying a motion for a finding in her favor made at the conclusion of appellee's evidence, we find that the record 11. discloses that, after the court overruled said motion, appellant proceeded to present evidence in support of her answer to the complaint and in support of her cross-complaint for a limited divorce, and that appellant did not renew or refile a motion for a finding in her favor at the conclusion of all the evidence. It is well settled that a failure to refile such a motion at the conclusion of all the evidence is a waiver of any error in overruling a motion made at the close of the plaintiff's evidence, and no question is presented for review upon appeal.Indiana Insurance Co. v. Handlon (1940), 216 Ind. 442, 446,24 N.E.2d 1003; Long v. Archer (1943), 221 Ind. 186, 194,46 N.E.2d 818; Lewis v. Young (1932), 95 Ind. App. 152, 156, 180 N.E. 692.
Appellant's contention that the finding and decision of the court is not sustained by sufficient evidence and is contrary to law requires a review of the evidence. It is well settled 12-14 that this court cannot weigh conflicting evidence and, if there is any substantial evidence in the record to sustain the finding and decision of the trial court, the judgment must be affirmed. In this connection it must be borne in mind that the trial judge, as the trier of the facts, was not bound by the testimony of any single witness or any particular item of evidence. It was his exclusive province to judge and determine the credibility of witnesses, weigh the evidence, and determine which of the parties, *Page 332
if either of them, was entitled to a decree of divorce. The decision was in favor of the appellee. We have examined the record and find that the evidence is conflicting and that there is substantial evidence to sustain the finding and decision of the trial court. Upon appeal this court cannot substitute its judgment as to the weight of the evidence for that of the trial court.
We have given careful consideration to each of appellant's contentions and find no reversible error. The judgment is therefore affirmed.
NOTE. — Reported in 62 N.E.2d 876. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426755/ | The appellee brought this action to recover upon a life insurance policy issued upon the life of Dimple Lowanda Alexander in which he was named as beneficiary. The policy was issued without a medical *Page 219
examination, and the insured died within less than two years. The appellant answered, setting up what is alleged to be a material misrepresentation in the application as to the health of the insured. In the application the insured answered that she had never had tuberculosis or any disease of the lungs. It is alleged in the answer that she was afflicted with tuberculosis at the time of the application. There was judgment for the plaintiff.
There is substantial evidence that the insured had tuberculosis of the lungs upon the date of the application and the date of the issuing of the policy, and had been informed of the fact by her doctors. She died of tuberculosis.
The only question presented by the appeal is whether there is a substantial conflict in the evidence upon that subject; whether there is substantial evidence that she did not have tuberculosis of the lungs at the time of the application and the issuing of the policy.
The application for the policy was signed on the 25th day of April, 1933, and the policy was delivered on May 1st of that year. Dr. Conklin, a witness called by the appellee, testified that the insured died on February 3, 1935; that he treated her from September 13, 1933, until her death; that she had pulmonary tuberculosis on September 13, 1933; that his case history of her showed that she had not been well since the winter before, when she had the "so-called flu"; that when he took the history and went over the case, "as sick as she was," it was obvious that she had had tuberculosis for some time previous to September 13, 1933; for how long he could not say; and that she was entirely too sick at that time to say; that his examination on September 13th disclosed that she had been losing flesh over a period of time, and was weak and exhausted and tired easily. Dr. Bittner, called by the defense, testified that he saw the insured, first, on March 15, 1933, and treated her in her home at *Page 220
Paris, Illinois; that on that date she had a temperature of 102, had rattles in her chest, interruption in her breathing, a persistent cough, and coughed up sputum; that he had an analysis made at Springfield, of which he got a report on March 21, 1933, at which time he informed the insured that she had tuberculosis, and gave the report of the analysis from the State Board of Health of Illinois to her family; that he treated her during the period from March 15, 1933, until August, 1933; that she was suffering from tuberculosis the first time he saw her, and on April 25th and on May 1, 1933.
The evidence discloses that the father and mother of the insured, at whose home Dr. Bittner treated her, are living. They were not called as witnesses by either side, and Dr. Bittner's testimony, corroborated as it is by the testimony of Dr. Conklin, is not directly disputed. But the appellee points to the details of Dr. Bittner's testimony to the effect that, at the time of his treatment, she was not in a condition to come to his office, and that she was in bed when he treated her, and that he advised her not to go to Terre Haute because she needed rest and should be in bed, and to the testimony of the appellee, who lived at Terre Haute, Indiana, and at whose home the application for insurance was taken, and the members of his family, that the insured appeared to be in good health at the time of the application, except for a little cold, and their testimony that the insured came to their home at Terre Haute, the first time, in December, 1932, and was there the "bigger" part of January, went back home in February, came back to their home in March, and went between her home and theirs on various occasions until July, and that during the time she was at the Martin home she was not treated by a doctor, but helped with the housework and went about to dances and parties. A son of the appellee, who was engaged to be married to the insured, testified that she was at his *Page 221
father's home during part of the month of March, 1933. The appellee expressed the opinion that Dr. Bittner must have treated her in March, 1934, and not in March, 1933. But this is a mere opinion, since it is clearly disclosed that the Martins could not fix definite dates, and their testimony does not conflict with Dr. Bittner's, since it is conceded that the insured was in her own home in Illinois during part of the month of March, and at other times between that date and July, largely upon weekends. Dr. Bittner fixed definite dates from records, but the Martins did not, and Dr. Conklin's testimony supports Dr. Bittner's as to the treatments in 1933, since Dr. Conklin had the insured in charge during 1934, and testified that she, in his opinion, had had tuberculosis for some time prior to his being called in upon the case in September, 1933, four and a half months after the policy was delivered. Dr. Bittner was shown to be a disinterested witness. As we have pointed out, the parents of the insured, with whom she lived, and who would have known whether he called upon her in March, 1933, were not called by either side.
In Metropolitan Life Insurance Co. v. Wolford (1912),49 Ind. App. 392, 97 N.E. 444, and Western Southern Life Insurance Co. v. Ross, Adm'r (1930), 91 Ind. App. 552, 1. 171 N.E. 212, it is held, correctly we think, that the testimony of trained physicians, who examine and treat the patient, and testify that by their own examination they discovered a diseased condition, is not to be controverted by the opinion of a lay witness. A full examination of the testimony discloses that there is no positive testimony that the insured did not have tuberculosis at the time of the application, and there is the positive, unimpeached testimony of Dr. Bittner that she was so afflicted, and that he informed her of it, which is strongly corroborated by the testimony of Dr. Conklin, the appellee's witness. There is no *Page 222
clear or positive evidence to support the contention that Dr. Bittner could not have treated her upon the date fixed by him for the reason that she was not at her home in Paris, Illinois, but at Terre Haute, Indiana. There is no attempt on the part of the appellee's witnesses to fix dates. They testified from memory, giving only approximate dates, and all concede that she made visits back and forth during the period involved. It is argued that Dr. Bittner said the insured was in bed when he treated her, and this is true, but he did not testify that she was unable to leave her bed. He prescribed rest, and advised against her going to Terre Haute, but did not testify that she was physically unable to go. The evidence is readily reconciled. It may well be true that she was in bed, resting as he advised, when he treated her, but that she arose frequently, and went on numerous visits to her friends at Terre Haute.
In Continental Life Insurance Co. v. Yung (1888),113 Ind. 159, 161, 15 N.E. 220, 221, it is said: "Whenever it can be said that there is clear and convincing proof of an essential 2, 3. fact, contrary to the finding of the jury, and that the verdict is without any evidence fairly tending to sustain it, the verdict ought not to stand." There is clear and convincing proof that the insured was suffering from tuberculosis, and had been informed of the fact prior to the application for the policy, and that she continued to be afflicted with it until her death. There is no substantial evidence conflicting with this testimony. All of the evidence can be reconciled, so that all of the witnesses may be believed, upon the theory that Dr. Bittner treated the insured in March, 1933, and informed her that she had tuberculosis, and that she made the several visits to the Martins, concerning which they testified, returning between visits to her home in Illinois, where Dr. Bittner treated her, and found her confined to her bed for rest, as he had advised. There *Page 223
is therefore no substantial conflict in the evidence. The misrepresentation was material to the risk.
Judgment reversed, with instructions to sustain the appellant's motion for a new trial. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426756/ | This action is based on an indictment returned by the grand jury of Vanderburgh county, Indiana, in which the appellant Rolla Boyd, was indicted for unlawful transportation of intoxicating liquor in an automobile, under the transportation act of 1923. It is charged in the indictment that the appellant, on or about April 18, 1923, at said county, did then and there unlawfully and feloniously transport intoxicating *Page 57
liquor in a certain vehicle, to wit, an automobile, then and there being, etc.
A motion was made to quash the indictment, alleging that the facts stated in said indictment did not charge a public offense and that said indictment does not state the offense with sufficient certainty.
The questions presented by this motion to quash have been heretofore decided adversely to the contention of appellant. Volderauer v. State (1924), 195 Ind. 415, 143 N.E. 674; 1. Simpson v. State (1925), 195 Ind. 633, 146 N.E. 747; Frey v. State (1925), 196 Ind. 359, 147 N.E. 279;Eiler v. State (1925), 196 Ind. 562, 149 N.E. 62; Morgan v.State (1926), 197 Ind. 374, 151 N.E. 98. The court did not err in overruling appellant's motion to quash the indictment.
Appellant claims in his motion for a new trial that the finding of the court is not sustained by sufficient evidence and is contrary to law. Appellant says that the only evidence in support of the finding was procured by unlawful search of the automobile used by him, and he made a motion to suppress this evidence, but such motion was not ruled upon by the court, and when the evidence was offered upon the trial of the case, he objected to its introduction, but it was admitted over his objection and exception.
The evidence most favorable to the state is as follows: Sherman Hamsley testified for the state as follows: "I am a deputy sheriff and was such on April 18. I know defendant and saw him on April 18, about 7:30 o'clock, driving a taxi cab, alone, going up Third street toward Main street. I was in an automobile with John Detroy and we followed his automobile from Fifth and Chestnut and, at Fifth and Walnut, a colored man stepped out of the building there and he handed somebody in this cab a package with one hand and took a package in the other hand that looked like a sack. *Page 58
Then he drove off again and when he got between Vine and Sycamore and Division, I jumped out of my car and ran around to the side of the taxi cab, and I told him to stop, and I got on the side of the running board and he did stop. I had my gun drawn and picked up that jug of white mule sitting down there beside him in the front seat of the taxi cab on the floor. It contained white mule whisky, 110 proof, and is a graybased, brown-topped clay jug, with a broken handle, with one-gallon capacity. This occurred in Vanderburgh county, State of Indiana. Boyd is a married man living with his wife, and is an automobile mechanic. After his arrest, we got a search warrant and went down and searched his house but found no whisky. He stopped at my request, and after he stopped, I asked him to get out, and reached down and got the jug. It had a paper sack around it, and I didn't know what was in it. I had no warrant for the search of this automobile and no warrant for the arrest of Rolla Boyd. I got the jug out of the car before I put him under arrest. I arrested him first because he had no tail light. We didn't follow him because his tail light wasn't burning. I never have arrested a man for failing to have a tail light burning, but would have arrested him for that if I hadn't found the whisky. We followed Boyd because we thought he was hauling whisky, after we saw him exchange those packages at Fifth and Walnut."
John Detroy, testified as follows: "I met Sherman Hamsley with my automobile, April 18, 1923, early in the evening. We drove to Fifth and Walnut. A taxi cab drove up, and a colored man came out and passed something to the taxi cab and took something out of the taxi cab, and the taxi cab drove off, and I drove Hamsley up to the car and he got this jug out of the car. He got on the running board of the other car and *Page 59
found this jug in the front end of the car. The defendant was driving a Ford taxi cab alone. When Hamsley got on the running board, the defendant said, `I'll quit,' and when I found defendant didn't have any gun, I sat in the back seat with him and Hamsley drove the taxi cab over to the city lockup. The jug contained while mule whisky. The jug was wrapped in a paper sack. We had no warrant for the arrest of this man or the search of his car. The jug was introduced in evidence."
It is the law that where a felony has been or is being committed, and the peace officers have reasonable and probable cause to believe that a certain person was the offender, 2. then they would be justified in arresting him without a warrant. Doering v. State (1874), 49 Ind. 56, 19 Am. Rep. 669; Thomas v. State (1925), 196 Ind. 234, 146 N.E. 850;Murphy v. State (1926), 197 Ind. 360, 151 N.E. 97; Eiler v.State, supra; Carroll v. United States (1925), 267 U.S. 132, 45 Sup. Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790.
The offense for which the appellant was arrested in this instance was a felony and the question arising upon the evidence thus set out is whether the evidence is sufficient to 3-6. show that the officers searching the vehicle and arresting the appellant were justified upon a belief reasonably arising out of the circumstances known to the seizing officer that the automobile which was searched contained that which, by law, is subject to seizure and destruction. The arrest in this case was made after the automobile had been searched. And the cause for the arrest must have existed before the officers found anything as a result of the search. It is a general rule of law that an unlawful arrest cannot be the foundation of a lawful search, nor will the information obtained by an unlawful search alone, furnish the basis for a lawful arrest. *Page 60
Where the arrest or search is unlawful to begin with it is not made lawful by that which afterwards takes place. Batts v.State (1924), 194 Ind. 609, 144 N.E. 23; United States v.Slusser (1921), 270 Fed. 818; Cornelius, Search Seizure § 27, p. 90. The only reason appearing by this evidence for the arrest of appellant is because the deputy sheriff and his assistant believed that he was hauling whisky, and it appears from the evidence that this belief was founded upon the fact that they saw him exchange packages at Fifth and Walnut streets with a negro. The jug which was taken out of the appellant's car was introduced in evidence over his objection and exception. It appears that there were complaints coming into the sheriff's office, but there is no evidence tending to show what these complaints were about or whether they had any connection with the appellant or his arrest on this occasion.
After a full and careful consideration of the evidence set out in the record, we are convinced that the evidence fails to show probable cause for the search of appellant's automobile. Eiler
v. State, supra; Morgan v. State, supra.
The search was unlawful and in violation of appellant's rights under Art. 1, § 11, Constitution of Indiana, and the trial court erred in admitting the evidence resulting from such search.
Judgment reversed, with instructions to grant appellant's motion for a new trial. *Page 61 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426761/ | Action by appellee to recover from appellants money had and received in connection with a transaction concerning land of Edward and Kenneth Ogle who were joined with appellants as parties defendant. The action was begun by a complaint in a single paragraph, *Page 343
in which it is averred, among other things, that the defendants, appellants herein, had received the sum of $6,500, "which said sum was paid to said parties for and on behalf of this plaintiff, and to be delivered by said parties to this plaintiff." As parties defendant, appellants moved that appellee be ordered to make this averment of his complaint more specific, by setting forth the contract, if any, by which they were required to pay the money to appellee. This motion having been overruled, appellee filed three additional paragraphs of complaint, each of which alleged an express agreement on the part of appellants to pay the money to appellee. To the several paragraphs of complaint, an answer in denial was filed. On the trial, the court, at the request of the parties, found the facts specially, and stated its conclusions of law in favor of appellee; and judgment was so rendered.
Rulings of the court assigned as error are: (1) Overruling motion to make complaint more specific; and (2) overruling motion for new trial.
It will not be necessary to discuss at length the alleged error of the court in overruling the motion to make the first paragraph of complaint more specific. The motion might with propriety 1. have been sustained. However, it is apparent from the record that the rights of appellant have in no way suffered because of the action of the court in that regard. Under such circumstances, the error, if any, in overruling the motion is not a cause for reversal. Clawson v. Black (1923),80 Ind. App. 111, 138 N.E. 362; Terre Haute, etc., Traction Co. v.McDermott (1923), 82 Ind. App. 134, 144 N.E. 620.
On the trial, there was introduced by appellee a letter written by appellants' attorney to appellee's attorney, which 2, 3. letter purported to be an offer to pay a certain sum in settlement of the claim *Page 344
here in controversy. Appellants at the time made no objection to the admission of the evidence; nor is it contended that opportunity to object was for any reason denied to them. The letter having been read in evidence, appellants moved to strike it out. The motion was overruled by the court, and upon this ruling error is predicated. It has many times been held by the courts of appeal of this state that it is not error to refuse to strike out evidence admitted without objection. Scottish, etc.,Ins. Co. v. B.E. Linkenhelt Co. (1918), 70 Ind. App. 324, 121 N.E. 373; Spielman v. Herskovitz (1922),78 Ind. App. 131, 134 N.E. 909; Eckman v. Funderburg (1915), 183 Ind. 208, 108 N.E. 577; Cleveland, etc., R. Co. v. Wyant (1893),134 Ind. 681, 695, 34 N.E. 569. However, the action of the court in overruling the motion to strike out the evidence could in no event have been harmful to appellants, for it clearly appears that the facts which the letter tended to prove were established by other evidence which was uncontradicted, and to which there was no objection. Naugle v. State, ex rel. (1885),101 Ind. 284; Hauck v. Mishawaka, etc., Mfg. Co. (1901),26 Ind. App. 513, 60 N.E. 162.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4144426/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
APPROVEIFEB 2'7,1940
/tzLadA.7)sssss
ATTORWEY GliGRAL OB TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/3426742/ | In an opinion filed on March 20, 1944, and reported in114 Ind. App. 641, 53 N.E.2d 636, the judgment rendered in favor of the appellee Lacy on her cross-complaint was reversed by this Court, but *Page 79
without directions. It has now been made to appear that the trial court, though willing to proceed in accordance with the decision of this Court, has not done so because of its uncertainty as to the full import and effect of our mandate.
This Court retains jurisdiction of the original cause for the purpose of effectuating its mandate. Union Trust Co.,
1. etc. v. Curtis (1917), 186 Ind. 516, 116 N.E. 916.
The appellant in the appeal in this case, assigned as error the overruling of its motion for new trial. Being of the opinion that the trial court erred in not sustaining the motion and 2. granting a new trial, the judgment was reversed. Thus the cause was in effect ordered remanded with instructions to sustain appellant's motion for a new trial, and for further proceedings.
The trial court is therefore ordered to proceed accordingly.
NOTE. — Reported in 61 N.E.2d 85. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426743/ | This is an action brought by the appellee Tite, to recover on a policy of automobile insurance issued to him by the appellant, which policy covered loss suffered by reason of collision.
The company defended on the ground that Tite stated in his application for insurance that the automobile was titled in the name of the owner; the policy was issued in reliance upon the application; and the policy contained a warranty that Tite was the sole owner of the vehicle; whereas, in fact, one Ramsey actually owned the vehicle, and Tite had taken the title in his name only because Ramsey was a minor.
The court found the facts specially, stated conclusions *Page 254
of law favorable to Tite and rendered a judgment awarding him $360.
The certificate of title named Tite as owner, but whether he or Ramsey actually owned the car was disputed. The evidence was such that it would have supported a finding that Tite was actually the sole owner of the automobile. On the other hand it would have supported a finding that Ramsey was the sole owner thereof. The trial court found that Tite was the "legal title holder" of the automobile, but expressly stated that it was making no finding as to the equitable ownership thereof. The court's refusal to do so is explained by its first conclusion of law which says "That as a matter of law the ownership of the equitable title to the automobile is immaterial."
The trial court should find all material or controlling facts within the issues of a case where there is credible evidence on the subject. 53 Am. Jur., § 1134, p. 788; 64 C.J., 1, 2. Trial, § 1077, p. 1232. We cannot regard this as a case where a "failure" to find is equivalent to a finding against the party having the burden. The record before us clearly indicates the court would not make a finding on the issue of actual ownership, and it further indicates the court's reason for refusing to do so. We are not at liberty to close our eyes to the truth as brought home to us by the record.
The pleadings put the beneficial or equitable ownership of the vehicle directly in issue. There was much apparently credible evidence on the subject. The question, then, is whether such ownership of the vehicle was a controlling fact in this case. If so, the fact should have been found. No case directly in point has been cited.
A certificate of title to a motor vehicle is not conclusive proof of title in him who is therein designated *Page 255
as the owner. Nichols v. Bogda Motors Inc. (1948), 118 3. Ind. App. 156, 77 N.E.2d 905. It is evidence, but not conclusive evidence, of ownership. Meskiman v. Adams
(1925), 83 Ind. App. 447, 149 N.E. 93.
It is generally said that he is the owner of property who, in case of its destruction, must sustain the loss. 42 Am. Jur., § 37, p. 214. Ownership is sole when no other has any 4, 5. interest in the property as owner. Hudson Casualty Ins. Co. v. Garfinkel (1932), 111 N.J. Eq. 70,161 A. 195; Bardwell v. Commercial Union Assur. Co. (1933), 105 Vt. 106, 163 A. 633. There cannot be two different sole owners of the same property at the same time. Des Moines Ins. Co. v.Moon (1912), 33 Okla. 437, 126 P. 753.
In the application for insurance, Tite represented the car wastitled in the name of the owner. The title was in his name and he thus represented himself to be the owner. The 6, 7. statement that the subscriber (Tite) was the sole owner of the automobile appears on the face of the policy under the heading "Warranties." This latter statement was thus expressly made a warranty by the terms of the policy itself. A breach of a warranty in a policy of insurance furnishes grounds for avoiding the policy by the insurer. Phoenix InsuranceCompany v. Benton (1882), 87 Ind. 132; Baker et al. v. TheGerman Fire Insurance Company (1890), 124 Ind. 490, 24 N.E. 1041; National Live Stock Ins. Co. v. Owens (1916),63 Ind. App. 70, 113 N.E. 1024; Western Life Indemnity Co. v. Couch
(1919), 70 Ind. App. 684, 123 N.E. 11; see also 29 Am. Jur., § 529 et seq., p. 426; 32 C.J., Insurance, § 517, p. 1291.
As above stated, the evidence would have supported the appellant's assertion that although the certificate of title named Tite as the owner, he held the bare legal *Page 256
title to the automobile, and Ramsey actually owned the entire beneficial or equitable interest therein. The evidence would have justified a finding to that effect. In that situation Tite would not be the sole owner of the automobile, and there would be a breach of the warranty. Hudson Casualty Ins. Co. v. Garfinkel,supra; Des Moines Ins. Co. v. Moon, supra; Bardwell v.Commercial Union Assur. Co., supra. See also Hirsh v. Cityof New York (1924), 218 Mo. App. 673, 267 S.W. 51; Kimbal IceCo. v. Springfield Fire Marine Ins. Co. (1926), 100 W. Va. 728,132 S.E. 714.
We think the sole beneficial or equitable ownership of the automobile was a controlling fact in the case, and the trial court should have determined from the evidence and found as 8. a fact whether such ownership rested in Tite or Ramsey.
The appellee suggests a waiver on the part of the appellant, in that its representative knew the facts relating to ownership of the automobile. It is sufficient to say that no such issue 9. was presented by the pleadings; no finding having to do with such a situation was made; and no such fact was established by uncontradicted evidence so as to compel such a finding in favor of the appellee.
Judgment reversed and cause remanded with instructions to sustain appellant's motion for a new trial.
NOTE. — Reported in 85 N.E.2d 365. *Page 257 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426745/ | This is a prosecution by affidavit charging the appellant with the crime of selling obscene literature. The affidavit was drawn to charge a violation of § 2569 Burns 1926. The affidavit charged that *Page 706
the appellant on April 4, 1924, at Huntington county, in the State of Indiana, did unlawfully sell to one Sophronia Wannas an obscene, lewd, lascivious and licentious publication in the form of a pamphlet, to wit, a pamphlet bearing the name and title of, "Hot Dog, The Regular Fellows Monthly, price two bits," being then and there of the issue of the month of April 1924, Vol. 3, which printed matter of said pamphlet being then and there too lewd, lascivious and licentious to set out herein and to incumber the records of the court therewith.
The appellant moved to quash the affidavit for the following reasons: (1) The facts stated in the affidavit do not constitute a public offense; (2) the facts stated in the affidavit do not state the offense with sufficient certainty. Appellant also filed a motion to require the state to indicate the matter in the publication which it was claimed was obscene, lascivious and licentious. These motions were overruled and the appellant was tried upon a plea of not guilty. The trial was by a jury, which returned a verdict finding appellant guilty as charged in the affidavit and fixing his punishment, that he be fined in the sum of ten dollars and the costs of the prosecution.
A motion for a new trial was made and overruled and judgment was rendered on the verdict. From this judgment, appellant appeals and assigns as error that the court erred in overruling appellant's motion to quash the affidavit and that the court erred in overruling appellant's motion for a new trial.
The motion of the appellant to require the state to indicate the matter alleged to be obscene raises no question. 1. Hinshaw v. State (1919), 188 Ind. 447; Sherrick v. State (1906), 167 Ind. 345.
This affidavit is filed under the provisions of § 2569,supra. The affidavit is in the words of the statute and *Page 707
the obscene matter was sufficiently described as an 2. obscene, lewd, lascivious and licentious publication in the form of a pamphlet, to wit, a pamphlet bearing the name and title of "Hot Dog, The Regular Fellows Monthly, price two bits," being then and there of the issue of the month of April 1924, Vol. 3, the printed matter of said pamphlet being then and there too lewd, lascivious and licentious to set out herein and to incumber the records of the court therewith. It has been held that in framing an indictment under statutes substantially the same as this one, it was sufficient to use the language of the statute, describing the offense and alleging in the affidavit that the obscene matter is too gross and obscene to be spread upon the records of the court. People v. Seltzer (1924), 203 N Y Supp. 809, 122 N.Y. Misc. 329.
In People v. Girardin (1848), 1 Mich. 90, it was held, that in an indictment for publishing a bawdy and obscene paper, it is not necessary to set forth the obscene matter on which the people rely for a conviction.
In Commonwealth v. Holmes (1821), 17 Mass. 336, it is held that in an indictment for publishing an obscene book or print, it is sufficient to give a general description thereof, and to aver evil tendency, without copying the book, or minutely describing the print.
In Commonwealth v. Allison (1917), 227 Mass. 57, 116 N.E. 265, it is held that an indictment for distributing obscene pamphlets properly described the pamphlets by their titles accompanied by an allegation that they were too indecent to be spread upon the records, where the pamphlets were brief and their general character might be thought to be not inaptly indicated by their titles.
In People v. Kaufman (1897), 14 App. Div. (N.Y.) 305, 43 N Y Supp. 1046, it is held that the indictment need not set out the obscene matter and if it does not, *Page 708
it must state the matter is so gross as to be offensive to the court.
In McNair v. People (1878), 89 Ill. 441, it is held that if the matter is too gross and obscene to be spread on the records of the court it should be averred as an excuse for failing to set out the obscene matter.
The affidavit is sufficient to withstand the motion to quash.
It is specified in the motion for a new trial that the verdict of the jury is contrary to law and the verdict of the jury is not sustained by sufficient evidence.
The appellee contends that no question is presented on the action of the court in overruling the motion for a new trial because the bill of exceptions does not contain all the evidence given in the case. The appellant does not deny this assertion of the appellee. The appellant does not file any reply brief and an examination of the record shows that the appellee is correct in his claim that the record does not show that the bill of exceptions contains all the evidence given in the case. Ewbank's Manual (2d ed.) § 30a, says, if the exceptions relate to the evidence, it is necessary in almost every case that the judge's certificate should state that the bill contains all the evidence given in the case.
In McMurran v. Hannum (1916), 185 Ind. 326, 113 N.E. 238, it is held that the Supreme Court will not consider an assignment of error which requires a decision as to the sufficiency of the evidence to sustain the verdict unless all the evidence is contained in the record.
In Kleyla, ex rel., v. State (1887), 112 Ind. 146, 13 N.E. 255, and Brickley v. Weghorn (1880), 71 Ind. 497, it is held that testimony is not synonymous with evidence and a certificate that the bill of exceptions contains all the testimony in the case is not equivalent to saying it contains all the evidence in the case. See, also, § 2332 Burns 1926. *Page 709
We cannot consider the sufficiency of the evidence to sustain the verdict because there is no affirmative showing that the bill of exceptions contains all the evidence given in the case. 3. Great Council, etc., Red Men v. Green (1913), 52 Ind. App. 198, 100 N.E. 472.
No error being shown in the record, the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426747/ | This was an action by appellee to recover from appellant the sum of $1000 which appellee claims to have deposited with appellant as part of an alleged total deposit of $2900 in currency. Appellant's teller credited his account book with $2900. After the bank had closed, appellant's teller found his accounts short $1000, and claimed that he had made an error in the addition of the currency in appellee's deposit. The appellant through its agents then allowed appellee credit for only $1900 on the books of the bank. Appellee then *Page 475
brought this action to recover the $1000 alleged difference in the amount of the deposit.
The pleadings present one issue of fact; did the appellee deposit the sum of $2900 in currency on July 26, 1945?
The cause was tried to a jury, and the jury returned a verdict for appellee in the sum of $1000, and judgment was rendered on this verdict.
Error assigned is that the court erred in overruling appellant's motion for a new trial. The grounds for the motion for a new trial were, that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. Additional assignments of error in the motion for a new trial were that the court erred in admitting into evidence over appellant's objection and in overruling appellant's motion to strike out the testimony of two character witnesses for appellee, Earl F. Stone and Karl Baals. Both of these witnesses testified in rebuttal that appellee's reputation for truth and veracity and appellee's reputation for honesty and fair dealing in the community where he resides is good. The appellant also assigns error in the motion for a new trial in the giving of four instructions over the objections of appellant, and the refusal to give one instruction tendered by appellant.
Appellant contends that appellee's reputation was not in issue, and that it was improper and prejudicial to permit said two character witnesses to testify, because the only purpose of such testimony was to improperly strengthen appellee's testimony.
Appellee in answer to appellant's contention claims that his character had been put in issue, and that this testimony as to his general reputation was proper. Appellee insists that when appellant introduced evidence that appellee had deposited the sum of $2000 and the *Page 476
further additional sum of $1000 with separate tellers in another Fort Wayne bank on the day following the deposit in question; and when the president of the appellant bank in his testimony of a conversation with appellee, concerning the alleged deposit, made reference to a police investigation of the same, that reflections were cast upon the honesty, honor, and integrity of appellee, and thereby his character was brought in issue.
The question as to when evidence may be given of the good character of a party in a civil action is one that has been much discussed by text writers and jurists, and upon which there is considerable confusion. However, there are a few well settled general principles to be found in the adjudicated cases.
It is settled in this state that the evidence of the general reputation of a party is not admissible in a civil action unless his character is in issue. Church and Others v. 1. Drummond (1855), 7 Ind. 17; Gebhart v. Burkett
(1877), 57 Ind. 378; Elliott v. Russell (1883),92 Ind. 526, 531; Volker v. State ex rel. (1911), 177 Ind. 159, 167, 97 N.E. 422.
The general trend of American decisions adheres to the English rule that only in cases where the character is in issue can evidence of general reputation be given. Even, in such cases, it must be confined to the reputation of the party with special reference to the nature of the question in issue. Spurr v.United States (1898), 87 F. 701; Louisville N.R. Co. v.McClish (1902), 115 F. 268; First National Bank v. Blakeman
(1907), 19 Okla. 106, 91 P. 868.
It is well settled that a party in civil cases is not permitted to support his own testimony, nor that of *Page 477
his witnesses, by direct evidence of good character, but it 2. is also true where the character of a party is assailed, or put in issue, such evidence may be introduced. The difficulty arises in determining when such character is put in issue.
It is helpful, in this connection, to consider the cases in which our courts have permitted the admission of evidence of general reputation of a party in a civil action where it was determined that the character of such party was put in issue.
In Haymond v. Saucer (1882), 84 Ind. 3, the court, in an action for breach of promise to marry, on appeal, approved the action of the lower court in permitting appellee to offer evidence of her good character or reputation for chastity in rebuttal of the evidence offered by the appellant for the purpose of showing particular acts of unchastity.
In Jones v. Layman (1889), 123 Ind. 569, 24 N.E. 363, which was an action for breach of marriage contract, where the appellant testified to having heard various rumors and reports of acts of misconduct of appellee which were calculated to bring appellee into disrepute, the court held that appellee's character was in issue. The court in this case approved the ruling of the trial court in permitting appellee to introduce evidence of her good character for virtue, chastity, and honesty.
In Hilker v. Hilker (1899), 153 Ind. 425, 55 N.E. 81, which was an action for divorce, the plaintiff alleged and introduced evidence of particular acts of indiscretion by his wife with other men, and the court held that it was proper for the defendant to give evidence of her general reputation and character for chastity in the neighborhood where she resided. *Page 478
In the American Express Co. v. Patterson (1881),73 Ind. 430, which was an action for false imprisonment, the court quoted from Wharton on the Law of Evidence, Sec. 47, ". . . . . in actions for . . . . . false imprisonment, the defendant, to sustain the defense of probable cause, can not put the plaintiff's bad character in issue; though this proof may be offered in mitigation of damages." The court held that since the appellants had filed a special plea in mitigation of damages, setting out at great length and in detail the circumstances on which they claimed to have acted, in the belief of the plaintiff's guilt, and in support of this plea gave evidence at the trial, it was proper for appellee to introduce evidence of his general good character and of his general reputation for honesty and integrity.
In each of these decided cases, it was held that the character of the party seeking to offer evidence of good general reputation, in rebuttal, was in issue.
After careful consideration, we are unable to bring the facts of the instant case within the scope of any of the adjudicated cases where it has been held that a party's character has 3. been brought in issue.
Appellee's character was certainly not directly assailed, nor did the evidence show any particular acts of misconduct on the part of appellee, nor can we find any special circumstances whereby we could logically hold that appellee's character had been put in issue within the scope of American Express Co. v.Patterson, supra.
Part of the evidence which appellee claimed cast reflections upon his honesty, honor, and integrity, and thereby put his character in issue, consisted of exhibits showing later separate deposits of $1000 and $2000 to another Fort Wayne bank on the day following the *Page 479
deposit in question, and the testimony of the assistant vice-president of the other Fort Wayne bank of the making of such deposits with two separate tellers of such bank. This evidence was mainly corroborated by appellee's own statements. We cannot see how such evidence could be construed as an attack upon appellee's character. It does not show acts of misconduct, nor any special circumstances from which it could be held that appellee's character was in issue. The sole issue of fact was whether appellee deposited the sum of $2900 in appellant's bank on the day in question. The evidence showed that appellee had taken certain currency from a safety deposit box which he took to appellant's bank to make the deposit in question. If appellee had been questioned regarding the amount of currency he had in his hands as he left the bank after making the disputed deposit, it would have had a direct bearing on the fact in issue. To show, as was done here, the amount of currency he deposited later, would be no different in principle. Such evidence throws light on appellee's currency transactions, and it was related to the fact in issue, and we do not feel that this evidence put appellee's character in issue. To hold otherwise would establish a rule whereby a party's character would be put in issue by a mere showing of facts which would contradict such party's theory of the factual situation of a particular transaction. The decided cases do not go so far as to hold that proof of general reputation in rebuttal would be proper under such circumstances, nor do we feel it proper to so extend the rule. If such a rule were sanctioned, much of the time of the courts would be taken up with the attack and support of character witnesses, and it would result in a definite retrogression of trial procedure. *Page 480
The mere contradiction of the testimony of a party in a civil action does not permit the party contradicted to support his testimony by proof of his good character and general 4. reputation for truth and veracity. McCabe and Wife v. Platter (1843), 6 Blkf. 405; Miles v. Vanhorn (1861),17 Ind. 245; Presser v. The State (1881), 77 Ind. 274;Diffenderfer, Executrix v. Scott by Next Friend (1892),5 Ind. App. 243, 250, 32 N.E. 87; Louisville N.R. Co. v.McClish, supra.
The additional evidence which appellee claims put his character in issue was the testimony of appellee himself that Mr. McDonald, the president of appellant bank, stated in a 5, 6. conversation with appellee on the day following the deposit in question that, "if you (appellee) like just the same as scare me . . . . . I will get the police and get you arrested or something like that." McDonald testified that he suggested to appellee the incident might be a matter for the police to investigate. Mere insinuations derived from appellee's own testimony standing alone would not be sufficient to put appellee's character in issue. A party cannot put his own character in issue by his own testimony and then offer in rebuttal proof of general good character and reputation. Appellant's witness, McDonald's testimony that he suggested to appellee that the incident might be a matter for the police to investigate did not accuse the appellee of any wrong doing, and would be equally applicable to the conduct of appellant's teller.
We find nothing in the evidence herein which brings this case within the scope of any of the adjudicated cases where it has been held that a party's character has been brought in issue.
The court, therefore, erred in admitting into evidence, *Page 481
and in overruling appellant's motion to strike out the testimony of the two character witnesses for appellee who testified, in rebuttal, as to appellee's good general reputation for truth and veracity, and for honesty and fair dealing.
This testimony was liable to have had a great weight with the jury and to have caused them to give a greater weight to appellee's testimony than other witnesses, and to have improperly influenced their verdict.
The erroneous admission of character evidence is reversible error. Brann v. Campbell (1882), 86 Ind. 516; 7. Diffenderfer, Executrix v. Scott, by Next Friend, supra.
The appellant further predicates error upon the giving to the jury over defendant's objection of Instruction No. 6, 8. tendered by appellee, which instruction was as follows:
"I instruct you that under the law of this State, a pass book issued by a bank to its depositor is prima facie evidence of the matters therein and while in law it is nothing more than evidence of debt owing by the bank to the depositor and not conclusive in the first instance, it may become conclusive if unexplained. I further instruct you that if in this case you find, and that by a fair preponderance of the evidence, that the defendant bank made an entry in plaintiff's pass book of the deposit of $2,900.00 to his credit on July 26, 1945, such fact may be considered by you as evidence of debt owing by the defendant bank to the plaintiff depositor in that amount. Such evidence of indebtedness becomes conclusive unless the defendant explains, to your satisfaction, that the plaintiff did not make such deposit of $2,900.00 at the time the entry thereof was made in his pass book on July 26, 1945."
The last sentence of this instruction was clearly erroneous. The words used were unqualified as applied *Page 482
to the defendant's duty, and the use of the words "unless the defendant explains to your satisfaction" (our italics) was unfortunate and improper. This instruction placed the duty upon the defendant to furnish evidence, not upon a basis of the proper rules of law, but instead upon a basis of furnishing evidence to the personal satisfaction of the jurors. Such statement charged each juror to bring in a verdict according to his own particular whim of personal satisfaction. The instruction was, therefore, not only erroneous but harmful. Densmore v. State (1879),67 Ind. 306; Industrial Commission of Ohio v. Weaver (1933),127 Ohio St. 18, 186 N.E. 618.
The instruction was an erroneous statement of the duty of the defendant under the circumstances set forth in the first part of the instruction. The duty of the defendant under such circumstances was only a duty of going forward with the evidence.
The decision of this court cited by appellee in support of his contention that this instruction was proper, Ogle v. Barker
(1945), 116 Ind. App. 250, 63 N.E.2d 432, has been superseded by the decision of the Supreme Court in Ogle v. Barker
(1946), 224 Ind. 489, 68 N.E.2d 550.
For the same reasons the court also erred in giving to the jury Instruction No. 7 tendered by appellant. This instruction was mandatory in form and used the words, "if the defendant has not proved to your satisfaction (our italics) the inaccuracy of the entry made thereon." This instruction does not properly state the duty upon the defendant, which was the duty under such circumstances to go forward with the evidence.
Instruction No. 8, the giving of which is assigned as error by appellant, in substance, charged the jury that *Page 483
upon their finding by a fair preponderance of the evidence 9. of the entry having been made in plaintiff's pass book of $2,900 and the further finding that the defendant credited plaintiff's checking account with only $1,900 that the burden of proof to establish that only $1,900 was deposited by plaintiff was upon the defendant, and that such burden must be maintained by a preponderance of the evidence.
This instruction was clearly erroneous, and it was not cured by the giving of the general instruction as to burden of proof.
The rule with reference to burden of proof is a rule of procedure. The burden of proof was upon the appellee to establish by a fair preponderance of the evidence that he had made the deposit of $2,900. This burden did not shift and remained upon appellee throughout the trial. Upon the showing by a fair preponderance of the evidence, by appellee, of the entry having been made by appellant in appellee's pass book of the deposit of $2,900, and upon the finding that defendant had credited plaintiff's checking account with only $1,900, the duty that was then cast upon appellant was the duty to go forward with the evidence, or to present countervailing evidence. Such duty did not include a requirement that the defendant sustain the fact that the deposit was only $1,900 by a preponderance of the evidence. To so require, constituted an improper shifting of the burden of proof.
The instruction in question setting forth in substance that under the circumstances shown by the first part of this instruction that the defendant then had the burden of showing that only $1,900 was deposited by a preponderance of the evidence was erroneous. Young v. Miller (1896), 145 Ind. 652, 44 N.E. 757; North v. Jones (1912), 53 Ind. App. 203, 100 N.E. 84;Fuller *Page 484
v. Supreme Council, etc. (1916), 64 Ind. App. 49, 115 N.E. 372;Kaiser v. Happel (1941), 219 Ind. 28, 36 N.E.2d 784.
As stated by our Supreme Court in Young v. Miller, supra:
". . . A prima facie case, made by the plaintiff, must always stand unless its force is broken by the defendant's evidence; but the defendant is never required, under the general denial, to negative the truth of the plaintiff's prima facie case by a preponderance of the evidence. If, upon the whole evidence, the plaintiff does not have a preponderance, the defendant must recover. If the scales are equally balanced the plaintiff must fail. It is perfectly clear, therefore, that to break the force of a prima facie case it is not necessary that the contrary shall be established by a preponderance of the evidence, but that it is sufficient if, from the evidence pro and con, the plaintiff cannot be said to have a preponderance upon his side of the issue . . ."
Perlow v. Westminister Bank (1925), 46 R.I. 359,128 A. 193, was a case very similar to the case at bar, in which plaintiff sought to recover $200 which the plaintiff claimed to have deposited in the defendant bank, for which the defendant failed to give plaintiff credit. The Supreme Court of Rhode Island upheld the refusal of the justice to charge that upon the introduction of evidence by the plaintiff of the entries made in the deposit book the burden of proof passed to the defendant. The court stated, "the testimony of plaintiff's witnesses and the evidence of defendant's entries in the deposit book presented a case in the plaintiff's favor, which required the defendant to go forward with its defense. The burden of proof in the case did not shift, however, but remained on the plaintiff throughout the trial." *Page 485
To the same effect is the decision in Webster v. 10. Wachovia Bank and Trust Co. (1935), 208 N.C. 759, 182 S.E. 333.
The appellant also assigns error in the giving, over the objections of the defendant, to the jury Instruction No. 9 tendered by the plaintiff which was as follows:
"I instruct you that an entry in a pass book is prima facie evidence of the bank's obligation and when not explained becomes conclusive evidence of the bank's indebtedness. Therefore, if you find from all the evidence, and that by a fair preponderance thereof, that the defendant bank made an entry in plaintiff's pass book of $2,900.00, and you further find that defendant credited plaintiff's checking account with only $1,900.00, and you further find that the defendant has not satisfactorily explained its refusal to credit the account of the plaintiff, then your finding should be for the plaintiff."
This instruction placed an improper burden upon the defendant by the use of the words "satisfactorily explained" in such instruction. The defendant under the circumstances shown in such instruction had a duty to go forward with the evidence, but the defendant was not required to explain to the satisfaction of the jury that only $1,900 was deposited for the reasons heretofore set out in this opinion.
The appellant also predicates error on the refusal to give Instruction No. 3 tendered by the defendant. Such refusal was not error by reason of the fact that the substance of this 11. instruction was included within Instructions No. 1 and 2 tendered by appellee and given by the court.
The court erred in the overruling of appellant's motion for a new trial, and the judgment is hereby reversed with instructions to grant the motion of *Page 486
appellant for a new trial and for proceedings not inconsistent herewith.
NOTE. — Reported in 73 N.E.2d 366. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426786/ | On and prior to November 15, 1916, one Nelson T. Burroughs was the owner of more than 4,000 acres of land situated in the counties of Starke and Laporte, in the State of Indiana, and on said date, by his warranty deed conveyed said lands to the Southern Colonization Company, one of the appellants herein; on January 12, 1917, said Burroughs, his wife joining therein, by his deed of that date conveyed to the same grantee, an additional tract of land, (eighty acres) situated in Laporte county, Indiana, and which tract, as it would appear, though included in the contract of sale, had been inadvertently omitted from his said first deed.
In December, 1916, the Southern Colonization Company, finding it necessary to borrow money, executed its mortgage covering 4,000 acres of the land purchased by it from said Burroughs, to secure the payment of its note in the sum of seventy-five thousand ($75,000) dollars, due five years from date, with interest and attorney's fees, the interest being payable annually. This note and the mortgage securing the payment thereof was, by the Burroughs Land Company, the mortgagee *Page 628
and payee of said note, on December 27, 1917, duly assigned to the appellee herein.
The interest for the years ending December 27, 1919, and December 27, 1920, not having been paid, suit was filed to foreclose said mortgage, and the plaintiff, appellee, also asked that the said mortgage be reformed so as to include all of said lands which said mortgagor had acquired from said Burroughs, alleging the omission of said tract, conveyed by deed of January 12, 1917, alleging that the omission of said tract of land from said mortgage was by inadvertence and mistake.
Upon the trial of said cause, the court, on March 7, 1921, found that there was due the said plaintiff, for interest unpaid, the sum of nine thousand dollars; there was a judgment in favor of plaintiff for $9,660, and for the foreclosure of said mortgage, but there was no decree for a reformation of the same.
On October 7, 1921, the appellee herein filed a complaint for a new trial of said cause, alleging the discovery of new matter, newly-discovered evidence, since said judgment and decree was entered, which would entitle him to have said mortgage reformed as prayed for in his original complaint, and as reformed foreclosed upon all of said lands. To this complaint to review, the appellant filed a demurrer for want of facts, failure to show diligence to discover said testimony, which demurrer was overruled, and this ruling is the first alleged error presented on this appeal.
It was averred in said original complaint, and in said complaint for a new trial, that it was the agreement between the original parties, mortgagor and mortgagee, that said 1. mortgage was to include all lands acquired by said mortgagor from said Nelson T. Burroughs; that by inadvertence and mistake, a part of the lands so acquired was omitted from said *Page 629
mortgage; it was also averred in the complaint for a new trial that one of the officers of said mortgagor corporation, in an attempt to perpetrate a fraud upon both mortgagor and mortgagee, had caused said tract of land to be omitted from said mortgage to the end that he might, in fraud of the right of both of said parties to said mortgage, secure said lands to himself; that after said decree had been entered, and after the time for the filing of a motion for a new trial had expired, said officer of said company admitted and confessed his part in said matter and that said land had been omitted from said mortgage that he might convert said tract of land to his own use. It is urged that the said demurrer should have been sustained because the averments do not show that any diligence was used in the matter of trying to discover said alleged newly-discovered testimony. It will be noted that the alleged newly-discovered testimony was a confession, made by one of the parties whose interest was adverse to that of the appellee herein; and that said confession was not made until after the former trial, and until after the time for the filing of a motion for a new trial had passed. We think that it could hardly be expected or required of the appellee that, prior to the time of the expiration of his time for filing his motion for a new trial, he should have gone to the person in question and sought information from him concerning the facts involved in said newly-discovered testimony, and of said person's conduct and motive in relation thereto. As said in Partlow v.State (1924), 195 Ind. 164, 144 N.E. 661: "The fundamental principle of our jurisprudence that a final judgment shall forever put at rest the controversy involved in the litigation must not rest upon fraud practiced upon the court or falsities instead of, and in preference to, realities. The trial court, still retaining *Page 630
jurisdiction, may so act to give relief under such circumstances." We are of the opinion that the trial court did not err in overruling said demurrer.
An answer of general denial was filed to this complaint, and, pending a trial of the issues thus formed, a complaint was filed and another action commenced asking for the reformation of said mortgage and its foreclosure because of the failure of the mortgagor to pay said principal indebtedness. The issues in this case being closed, the two causes were, by order of the court, consolidated for trial and resulted in a decree reforming said mortgage, as prayed for in said complaint for a new trial, and also reforming said mortgage, and, as reformed, ordering a foreclosure upon all of said lands because of the failure to pay said principal indebtedness, the court finding that there was due on said mortgage, for principal, interest and attorney's fees, the sum of $100,691.96.
It is urged that the decision of the court that said mortgage should be reformed, and said judgment modified, is not sustained by sufficient evidence. In this contention, we cannot 2. concur. There is evidence that it was the express agreement between the original parties that the said mortgage should cover all the lands acquired from said Burroughs, and the evidence further strongly tends to show that said tract of land was omitted from said mortgage without the knowledge of either of the parties thereto, by one of the agents of the mortgagor, with the intention and hope of personal profit to himself. The evidence is abundant to sustain the decision of the court.
It is next urged that the motion for a new trial should have been sustained because of error in the assessment of the amount of the recovery. It appears that the trial court, in 3. finding the amount due, included therein the sum of $9,660, for which judgment *Page 631
had theretofore been rendered on March 7, 1921; this was error. That judgment was in full force and effect and should not have been included in the last judgment.
It is also urged that the trial court erred in overruling motion of appellant to modify said judgment, by striking therefrom that part reforming said mortgage. The judgment 4. followed the finding and there was no error in overruling said motion.
If the appellee shall enter a remittitur of said judgment in the sum of nine thousand six hundred sixty dollars, upon the judgment record of the Laporte Circuit Court in this cause, as of the date of said judgment, and file a certificate of the clerk of said court showing such remittitur to have been entered with the clerk of this court within thirty days, said judgment will be affirmed, otherwise it will be reversed at the costs of the appellee. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247110/ | Colin Lindsay, MagistrateJudge
This action involves plaintiff Live Nation Worldwide, Inc. ("Live Nation") and defendants Secura Insurance ("Secura), City Securities Insurance, LLC ("City Securities"), and ESG Security, Inc. ("ESG"). Before the Court are two motions: (1) Motion to Bifurcate and Stay Discovery on Bad Faith Claim (DN 22) filed by Secura; and (2) Motion to Bifurcate, Stay, and for Protective Order filed by ESG (DN 42).1 The Court will address both motions together.
I. BACKGROUND
This is an action concerning the rights of Live Nation under an insurance policy procured by City Securities for ESG and issued by Secura. It arises out of a July 16, 2013 concert at the Louisville Palace in Louisville, Kentucky. At the time of the concert, Live Nation operated the Louisville Palace and had contracted ESG to provide security services. According to Live Nation, pursuant to the terms of a vendor services agreement, ESG agreed to, among other things, name Live Nation as an additional insured on its insurance *1034policy. (DN 1 at 2-3 [Complaint].) Live Nation alleges that ESG placed its insurance for the applicable policy period through City Securities, and City Securities placed the coverage with Secura. (Id. at 3.)
On or about December 9, 2013, two concert-goers filed suit in Jefferson Circuit Court against Live Nation and ESG for injuries they allegedly sustained while at the July 16 concert. (Id. ) According to Live Nation, it notified Secura and requested defense and coverage for the claims brought against it in Jefferson Circuit Court. Live Nation alleges that Secura declined to provide Live Nation an unqualified defense and indemnity in the Jefferson Circuit Court action. (Id. at 3-4.) Live Nation avers that Secura asserts that the policy provided was excess to Live Nation's own coverage. (Id. ) Live Nation alternately claims that, if Secura is correct in its assertion, ESG breached the vendor services agreement by failing to obtain an insurance policy that included Live Nation as an additional insured. (Id. at 4.) Live Nation also asserts that, to the extent City Securities failed to place the proper coverage on Live Nation's behalf, it also has liability for negligence, and Secura is responsible for the negligence of its agent, City Securities. (Id. )
Live Nation has asserted the following claims: (1) Count I-Declaratory Judgment, declaring that Secura owes Live Nation a full defense and indemnity; (2) Count II-Bad Faith against Secura; (3) Count III-Breach of Contract against ESG; (4) Count IV-Negligence against Secura and City Securities. (Id. at 4-6.) According to a status report (DN 51) filed on December 1, 2017, the Jefferson Circuit Court action has been settled, and Live Nation and ESG have agreed to litigate their claims against one another in this lawsuit.
The Court notes that two dispositive motions (DNs 52, 53) were filed on December 8, 2017 by ESG and Secura, respectively. At this juncture, the undersigned sees no reason to alter its previous order (DN 48) denying the request for a stay of all discovery pending a ruling on the dispositive motions.
II. DISCUSSION
A. Motion to Bifurcate and Stay Discovery and Bad Faith Claims ("Motion to Bifurcate") (DN 22) by Secura
1. Parties' arguments
In the Motion to Bifurcate, Secura requests that the Court bifurcate Live Nation's bad-faith claim against it and stay discovery on that claim until final disposition of the underlying coverage claim. Secura argues, among other things, that doing so would promote judicial efficiency and convenience. Secura further argues that resolution of Live Nation's coverage claim against Secura may also be dispositive of Live Nation's claims against ESG and City Securities. Secura asserts that, if the Court concludes that the vendor services agreement did not contractually require ESG to provide liability coverage to Live Nation that would be primary to Live Nation's own coverage, then Secura does not have an obligation under its policy to cover Live Nation on a primary basis and the breach of contract claim against ESG will fail. Secura asserts that, similarly, if ESG was not obligated under the terms of the vendor services agreement to purchase liability insurance that covered Live Nation on a primary basis, Live Nation's negligence claim against City Securities will also fail. These factors, Secura asserts, weigh in favor of the Court granting its motion.
Live Nation argues, among other things, that bifurcation is inappropriate *1035because the facts supporting Live Nation's coverage, breach of contract, negligence, and bad-faith claims are inextricably intertwined. Live Nation argues that to properly prosecute these claims, discovery is required on defendants' communications regarding the coverage required under the vendor services agreement; defendants' positions once Live Nation tendered its defense and requested indemnity; and communications between and among the defendants related to the transactions underlying the placement of the policy and decision to deny coverage. Live Nations asserts that all of this evidence will be appropriate for trial of the claims, including the bad-faith claim.
Live Nation avers that Secura does not dispute that it owes Live Nation coverage, only the extent of that coverage. Live Nation therefore argues that even if the vendor services agreement did not clearly require Live Nation to be covered as an additional insured on a primary basis, then the vendor services agreement is ambiguous on that issue. According to Live Nation, this ambiguity raises the question of whether Live Nation and ESG reasonably expected that Secura would cover Live Nation as an additional insured on a primary basis. As part of this question, Live Nation asserts that Secura will have to explain why ESG and Live Nation would have entered into a vendor services agreement for security at an event venue to have primary coverage only extended to Live Nation for automobile liability. Live Nation further asserts that delving into the question of the reasonable expectations of the parties will raise issues concerning the communications among the parties to determine, among other things, whether Secura issued an insurance policy inconsistent with the wishes of ESG and what positions defendants took after Live Nation tendered its defense and sought indemnification and coverage. Live Nation also argues that judicial economy will not be served by bifurcation.
In reply, Secura argues, among other things, that Live Nation's coverage claim should be decided on a reading of the vendor services agreement, the relevant insurance policies, and the complaint in the Jefferson Circuit Court action. Secura also argues that, until the Court determines that any contract at issue is ambiguous, none of the discovery Live Nation seeks will be admissible as to the issue of coverage.
2. Analysis
An initial matter, the Court notes that the Court is not required to bifurcate the bad faith claim as Secura suggests. Rather, a court may bifurcate "one or more separate issues, claims, cross-claims, counter claims, or third party claims" in order to "avoid prejudice or to expedite and economize." Fed. R. Civ. P. 42(b). The decision to bifurcate lies within the sound discretion of the trial court. Smith v. Allstate Ins. Co. , 403 F.3d 401, 407 (6th Cir. 2005).
Courts frequently bifurcate claims addressing coverage and bad faith against insurance companies, as deciding the first claim may obviate the need to litigate the second. See, e.g., Graves v. Standard Ins. Co. , No. 3:14-CV-558-DJH, 2015 WL 2453156, at *3 (W.D. Ky. May 22, 2015) ; Galloway v. Nationwide Mut. Fire Ins. Co. , No. 3:09-CV-491-JDM, 2010 WL 3927815, at *1 (W.D. Ky. Oct. 5, 2010) ("In third-party and first-party cases alike, coverage issues commonly hinge on an issue of contract interpretation and are frequently, although not always, adjudicated on summary judgment motions. Limited discovery and adjudication of the threshold coverage dispute would, in the court's view, streamline adjudication-a conclusion reached without any view of the merits of the underlying coverage claim.").
*1036This is true even in first-party bad-faith claims. See, e.g., Brantley v. Safeco Ins. Co. of Am. , No. 1:11-CV-00054-R, 2011 WL 6012554, at *2 (W.D. Ky. Dec. 1, 2011) ("A brief review of the prevailing precedent indicates first-party bad faith claims are routinely separated from coverage issues.") (collecting cases). The question of bifurcation in these particular cases centers on whether resolution of a single claim would be dispositive of the entire case. Id.
Here, a declaration by the Court that Secura did not owe Live Nation a full defense and indemnification would likely foreclose the bad-faith claim against it. Even a declaration that Secura owed Live Nation something in between full defense and indemnification and no coverage at all may foreclose the bad faith claim against it. Furthermore, a declaration of the rights of Live Nation under Secura's policy may also shape the contours of the other claims asserted by Live Nation. Consequently, the undersigned finds that a bifurcation of the bad faith claim against Secura and stay of discovery with respect to same serves the interests of judicial economy in this matter.
Live Nation cites to Tharpe v. Illinois Nat. Ins. Co. , 199 F.R.D. 213, 214 (W.D. Ky. 2001), in support of its position that the bad faith claim should not be bifurcated. In Tharpe , a motorist brought an action against an insurance company for failure to pay basic reparations benefits-a chiropractic bill-in full. The insurance company took the position that the chiropractic bill was not reasonable. The insurance company moved for bifurcation of the contractual claim (the basic reparations benefits claim) from the extra-contractual claims (violations of unfair claims settlement practices and consumer protection acts) for purposes of discovery and trial. The district court noted that this was a first-party action case in which there was only one plaintiff and one defendant, and that all of the claims in the action related to the handling of the chiropractor's bill. The district court further noted that, under the Motor Vehicle Reparations Act, the insurance company was required to present some proof to controvert the rebuttable presumption that the chiropractor's bill was reasonable in amount and reasonably necessary. With respect to the claim for violation of the Unfair Claims Settlement Practices Act, the motorist was required to show, among other things, that the insurer lacked a reasonable basis in law or fact for denying the claim. In other words, the insurance company's defense of the claims would hinge on the same evidence-proof that the motorist's medical expenses were not reasonable and necessary. Thus, the district court concluded that the issues were inextricably intertwined and that the usual considerations which militated in favor of bifurcation were absent.
Tharpe does not help Live Nation in this instance. This is not a situation where a ruling on the coverage issue is inextricably tied to whether Secura denied Live Nation a full defense and indemnification in bad faith. The coverage issue will likely be decided on the basis of the nature of the covered event and language of the policy, a separate issue from Secura's conduct in denying the claim. The undersigned declines to go down the rabbit hole of "what ifs" with respect to what will happen to the other claims against the other defendants in this lawsuit should the Court rule a certain way with respect to the declaratory judgment count. For these purposes however, the undersigned notes that Tharpe is distinguishable in this respect as well.
B. Motion to Bifurcate, Stay, and for Protective Order (DN 42) filed by ESG
The Court has already addressed and denied in a separate order (DN 48) ESG's *1037request for a protective order contained in the Motion to Bifurcate, Stay, and for Protective Order. However, ESG also requests in the Motion to Bifurcate, Stay, and for Protective Order that the undersigned bifurcate and stay discovery on the bad-faith claim against Secura. ESG claims that permitting discovery on Live Nation's bad faith claim would unduly prejudice its defense of the underlying Jefferson Circuit Court lawsuit. ESG further asserts that the issues could potentially be confused if the bad-faith claim against Secura were adjudicated at the same time as the breach of contract claim against ESG.
Because the Court has already determined that the bad-faith claim against Secura should be bifurcated, it will deny this aspect of ESG's Motion to Bifurcate, Stay, and for Protective Order as moot. To the extent that ESG is also requesting a stay of all discovery pending a ruling on dispositive motions filed, or to be filed, by defendants, that request is denied.
III. CONCLUSION
Accordingly,
IT IS ORDERED that the Motion to Bifurcate (DN 22) is GRANTED. The bad faith claim asserted by Live Nation against Secura is bifurcated from the other claims in this matter for both discovery and trial purposes.
IT IS FURTHER ORDERED that the Motion to Bifurcate, Stay, and for Protective Order (DN 42) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the parties JOINTLY FILE a proposed discovery plan within fourteen (14) days of entry of this Order.
ESG's "motion" is contained in its response (DN 42) to Live Nation's Motion to Compel (DN 31), which is not before the Court. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4030751/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1297
In Re: DAVID LEWIS,
Petitioner.
On Petition for Writ of Mandamus.
(5:11-cr-00229-F-8; 5:14-cv-00374-F)
Submitted: August 2, 2016 Decided: September 1, 2016
Before MOTZ, KING, and WYNN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
David Lewis, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lewis petitions for a writ of mandamus, alleging that
the district court has unduly delayed in ruling on his 28 U.S.C.
§ 2255 (2012) motion. He seeks an order from this court
directing the district court to act. Our review of the district
court’s docket reveals that the court dismissed the § 2255
motion and dismissed as moot Lewis’ motion for adjudication of
the § 2255 motion by order dated July 18, 2016. Accordingly,
because the district court has recently ruled on Lewis’ motions,
we grant leave to proceed in forma pauperis and deny the
mandamus petition as moot. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
PETITION DENIED
2 | 01-03-2023 | 09-01-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426773/ | This action was filed by appellants, who are taxpayers of the town of Chesterfield, Indiana, against the auditor and treasurer of Madison County to enjoin the collection of taxes for the year 1930, due and payable in 1931. The case was submitted to the lower court for trial upon two paragraphs of complaint and answer in general denial to each paragraph; the first paragraph seeking to enjoin the auditor of Madison County from placing upon the tax duplicate a certain levy made by the board of trustees of the town of Chesterfield on October 27, 1930, called an emergency levy. Later another complaint was filed, denominated by appellants as a supplemental complaint, in which the treasurer of Madison County was made a party and in which it was alleged that the auditor had certified the tax levy and asked that the treasurer be enjoined from collecting the taxes certified to her by the auditor and that the auditor be compelled to correct the duplicates.
It seems that the trustees of the town of Chesterfield, at the proper time in September of 1930, fixed a levy for the town of Chesterfield of $1.01 per $100.00 valuation; that these appellants and some other taxpayers *Page 540
of the town appealed to the State Board of Tax Commissioners and had the levy reduced by the State Tax Board to $0.55 on $100.00 valuation. The ordinance making this $1.01 levy was never certified to the county treasurer of Madison County, but afterwards, on October 27, 1930, the board of trustees of the town of Chesterfield, claiming an emergency, fixed another levy in the sum of $1.42 per $100.00 valuation. This levy was duly certified to the auditor of the county and placed upon the tax duplicate. It was from this levy and these taxes, which were to be collected by the treasurer, that appellants sought relief. This was the only levy that was ever certified to the county auditor or that the treasurer attempted to collect.
On June 1, 1932, this court entered an order requiring the parties to show cause why the questions presented are not now moot, and why this appeal should not be dismissed. This order was returnable June 13, 1932.
On June 13 appellants filed return to this order, and in their return say: "Appellants are forced to admit that at this stage of affairs the court could not grant to them any injunctive relief that would avail them anything whatever. If there are no other questions finally and vitally affecting appellants' rights as taxpayers other than the right of appellants to injunctive relief, the appeal must be dismissed much as such procedure is to be deplored."
In the above statement appellants are correct. This levy was made for 1930 to be collected in 1931. The judgment of the lower court was rendered May 2, 1931, which was two or three days prior to the last day of time for payment of spring installment of taxes under this levy. The motion for new trial was duly filed and on the 16th day of May, 1931, was overruled by the lower court, and upon the same day an appeal was granted by the lower court to this court and an appeal *Page 541
bond was filed and approved by the court. The record was filed in this court on June 25, 1931.
It is true that appellants sought by motions for advancement to obtain an early decision of this case, but their reply briefs were filed November 6, 1931, which was after the second 1, 2. installment of taxes for 1930, payable in 1931, would become delinquent, so it is apparent that the relief sought here would not avail because the time for payment of the taxes without becoming delinquent had expired. It is also apparent, therefore, that the questions involved here are moot, and unless there is some question of general public interest involved in this appeal, the appeal should be dismissed.
We have examined the record and we do not believe that 3. there is any question of general public interest involved herein.
This court, speaking through Felt, J., in the case of Modlin
v. Board, etc. (1913), 55 Ind. App. 239, 103 N.E. 506, 507, said: "Where there is no question of general public interest involved and nothing is in dispute between the parties under the issues of the case on which the court could grant relief by any judgment it might render, jurisdiction will not be retained to determine merely an incidental question of costs. State, exrel., v. Boyd (1909), 172 Ind. 196, 87 N.E. 140, and cases cited; Manlove v. State (1899), 153 Ind. 80, 53 N.E. 385. Since the act sought to be enjoined has long since been consummated, if the judgment of the lower court should be reversed, no injunction could be legally issued. The question involved in this appeal, therefore, has become a moot question and the motion to dismiss the appeal should be sustained."
To like effect is the case of Bell v. Buescher BandInstrument Company (1930), 202 Ind. 12, 171 N.E. 377, 378. The Supreme Court of this state, through Gemmill, *Page 542
J., said: "This court will not decide mere moot questions, but will dismiss the appeal when it is made to appear that no actual controversy is involved. Ogborn v. City of Newcastle (1912),178 Ind. 161, 98 N.E. 869."
Regardless of the fact that the questions involved herein became moot through no fault of appellants, the fact remains that they are moot and reversal of the judgment herein would avail appellants nothing.
The appeal is dismissed at the costs of the appellants.
Kime, P.J., absent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426775/ | This is an appeal from an award denying appellant's application for compensation for the death of Alva W. Hunt (the husband of Julia E. and the father of the other appellants) which death was alleged to have been caused by reason of an accident arising out of and in the course of his employment by Gaseteria, Inc.
There were no special answers by the appellee. The parties stipulated that Hunt was in the employ of the appellee on December 31, 1936, the date of his death, that the appellants were his wife and children, wholly dependent upon him and with whom he was living at *Page 199
such time. The uncontradicted evidence showed the average weekly wage to have been $25.37 and that the death resulted from carbon monoxide poisoning received by accident.
The board found for the appellee and that the death "was not due to any accidental injury arising out of and in the course of his employment."
The statutory assignment that the award is contrary to law presents the question on this appeal which was properly perfected.
The uncontradicted evidence discloses that Hunt was hired as a maintenance man who had no specific hours or regular time for reporting to work. He could go to any of the numerous stations of appellee to do any work he thought necessary whenever he determined that the mechanical equipment needed attention. It was necessary for him to check all electrical equipment twice yearly and keep the plumbing of all the stations of appellant in working condition. Also to supervise the installation of all tank equipment. In addition he was subject to call day or night and responded to such calls when made.
It was also necessary for him to have the tools furnished by the company with him at all times. In order that he could transport such tools and himself, upon call or at such times as he might deem necessary, the company hired an automobile for his particular and sole use. The car was a necessity and he used it daily. The appellee, for some reason not disclosed, preferred to hire a car to purchasing one of its own.
They hired this particular car from Hunt. It is this fact that seems to have caused the difficulty in the interpretation of this matter below. For two days prior to his death he had been supervising the installation of new tanks at one of the appellee's stations. He customarily left his house at 7:30 A.M. The night before *Page 200
his death he determined, in the exercise of his discretion, that he should return to this particular new equipment installation job at an extraordinary early hour. He imparted this determination to an officer or employee of the appellee and to his wife.
On the morning of his death this hired man left his home and went to the hired car. He was discovered a short time later in the garage upon the property where he lived. His body was at the rear of the automobile with one of the large doors (necessary to the removal of the car) partly open and one closed. The motor of the machine was in operation. A small door in the garage was also open and the electric lights were not on. The appellee's tools were in the hired car. This is all the necessary material evidence.
It also appears that Hunt had told his wife it would be unnecessary for her to arise at 5:30 A.M. for the purpose of preparing his breakfast as he would secure breakfast across the street from his work. The appellee contends that this is important in that it shows that Hunt had not entered upon the discharge of his duties.
It is conclusive, as both parties contend, that from 1-3. such uncontradicted evidence the question here is one of law.
Hunt, in the exercise of his discretion (as supervisor of installation of new tanks) decided that such work necessitated his supervision at a particular hour. In pursuance of such determination the hired man went to the hired car, and began the process of delivering the hired car to the site of the day's work. He started the motor of the car which the master had hired for his convenience, and from that moment on he certainly was doing something to further his master's interest.
The master required the hired man to keep the hired car carrying the master's tools near by so that, in case an emergency arose or in case the supervisor (as he *Page 201
was that day) determined, the car would be available. Hunt was thus charged with the specific duty of taking the car the master had hired to the place where it would be available for further use. He was found dead at a place where it would be necessary for him to be in the performance of that duty. There is no intimation of suicide and the presumption is against it. Since Hunt determined his own hours it was within his usual hours of labor and he was benefiting his master in the direct line of his specific contractual employment.
The logical conclusion and the only one to be drawn is that the injury which caused Hunt's death arose out of and in the course of the employment. The following cases support this conclusion:Czuczko v. Golden Gary Co. of Ind. (1932), 94 Ind. App. 47,177 N.E. 466; Livers v. Graham Glass Co. (1932),95 Ind. App. 358, 177 N.E. 359; Lasear, Inc. v. Anderson (1934),99 Ind. App. 428, 192 N.E. 762; Fisher v. City of Decatur (1935),99 Ind. App. 667, 192 N.E. 844; Derleth v. Roach Seeber Co.
(1924), 227 Mich. 258, 198 N.W. 948, 36 A.L.R. 472.
The award of the Industrial Board is contrary to law and is accordingly reversed with instructions to enter an award in favor of the claimants. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3218020/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTIONS
Cause number: 01-14-00361-CR
Style: Blake Anthony Monakino v. The State of Texas
Date motions filed*: June 14 and 15, 2016
Type of motions: Letter-Motions to Remand and to Withdraw Appellate Attorney
Party filing motions: Pro Se Appellant
Document to be filed: N/A
Is appeal accelerated? No.
Ordered that motions are:
Granted
Denied
Dismissed (e.g., want of jurisdiction, moot)
Other: _____________________________________
Because appellant is represented by counsel, his pro se letter-motions to remand to the
trial court for time served, filed on June 14, 2016, and to withdraw his appellate
attorney, filed on June 15, 2016, are DISMISSED as moot. See Scheanette v. State,
144 S.W.3d 503, 505 n.2 (Tex. Crim. App. 2004) (no entitlement to hybrid
representation). Appellant is directed to communicate directly with his counsel,
Melissa Martin.
Judge’s signature: /s/ Evelyn V. Keyes
Acting individually
Date: June 28, 2016
November 7, 2008 Revision | 01-03-2023 | 06-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426784/ | Appellee recovered a judgment against appellant for $100 on account of a personal injury received August 11, 1920, and alleged to have been caused through the negligence of appellant. The injury arose *Page 235
out of and in the course of appellee's employment by the Allen A. Wilkinson Lumber Company. On September 13, 1920, appellee and his employer agreed that appellee was entitled to compensation for a named period, and amounting to $20.76 and that his medical and surgical expenses during the first thirty days after the injury were to be paid by the employer. On September 16, 1920, this agreement was filed with and approved by the Industrial Board. On September 13, 1920, appellee received from his employer a check for $20.76, signed by his employer's insurance carrier. When he received this check, he signed a receipt stating that it was received in settlement and satisfaction of all claims for compensation on account of said injury. Prior thereto, viz., on August 26, 1920, appellee consulted with an attorney for the purpose of collecting his claim against appellant for damages, and, on that day, his attorney wrote a letter to appellant demanding settlement of the claim.
Appellant contends that appellee, having collected compensation from his employer, cannot maintain this action for damages. Appellee contends that the circumstances under which he received the money from his employer were such as do not bar him from prosecuting this action.
Appellant complains of the action of the court in overruling its demurrer to the several paragraphs of reply, but since the same questions are presented by the specifications in the motion for a new trial, we proceed to a consideration of the action of the court in overruling that motion. The specifications in that motion are that the verdict is not sustained by sufficient evidence, that the verdict is contrary to law and that the court erred in giving certain instructions.
In addition to the facts hereinbefore stated, there is ample evidence to prove the following facts: On September 22, 1920, the lumber company, through its *Page 236
insurance carrier, paid the medical and surgical expenses occasioned by reason of the injury to appellee, the amount so paid being $12. When appellee signed the compensation agreement and accepted the check for $20.76, he did so with the understanding and belief that it would not interfere with his suit against appellant; that, at that time, he stated to Mr. Carter, the manager of the lumber company, that, if it interfered with such suit, he did not want it; that Mr. Carter at that time said that it did not satisfy the claim for damages against the railroad; that appellee at that time told Mr. Carter if he wanted to give him the money as a gift on his wages it would be all right, and that Mr. Carter said that was what he wanted to do and that appellee signed the agreement with that understanding. Neither appellee nor Mr. Carter knew whether such payment would or would not interfere with appellee's suit against the railroad.
Mr. Carter testified that when he gave appellee the check, he told appellee it released the lumber company from any other liability, and if he expected to get any more money he would have to go after the other parties; that on October 25, 1920, he and appellee had a talk about the latter paying back the $20.76, which he had received and that appellee said he had decided to return the money; that appellee then gave him a check for that amount and asked him to send it to the insurance company, which Mr. Carter promised to do; that appellee at that time said his lawyer had advised him to return the money and that he was acting on the advice of his lawyer.
Appellee testified that he did not know anything about the compensation act when he received the $20.76 from the lumber company; that, prior thereto, he had talked with his lawyer about a suit against the railroad company and accepted the $20.76 with the understanding *Page 237
and belief that it would not interfere with that suit; that Mr. Carter told him it was a gift; that he later learned the insurance carrier had paid the doctor, after which he offered to pay the doctor and asked the doctor to return the money he had theretofore received from the insurance carrier; that the doctor did not accept the money from him, and that he has kept enough money in the bank to cover the check which he gave to the lumber company. The evidence also shows that the check so given by appellee has never been cashed. There is some evidence that appellee requested the lumber company to hold this check, although this is denied by appellee. There is no evidence that the lumber company made any objection to receiving the check from appellee, or that it has ever returned or offered to return it to appellee.
Section 13 of the Workmen's Compensation Act, Acts 1919 p. 158, § 8020w Burns' Supp. 1921, reads as follows: "Whenever an injury or death, for which compensation is payable under this act, shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in case of death, at his or their option, may claim compensation from the employer or proceed at law against such other person to recover damages, or may proceed against both the employer and such other person at the same time, but he or they shall not collect from both; and if compensation is awarded and accepted under this act, the employer, having paid compensation or having become liable therefor, may collect in his own name or in the name of the injured employee or, in the case of death, in the name of his dependents, from the other person in whom legal liability for damages exists, the compensation paid or payable to the injured employee or his dependents." *Page 238
In passing upon the question of the rights of an injured employee as against an alleged negligent third person after such injured employee had collected compensation under the Workmen's Compensation Act, the Supreme Court, speaking by Judge Ewbank inPittsburgh, etc., R. Co. v. Parker (1921), 191 Ind. 686, 132 N.E. 372, 134 N.E. 890, 19 A.L.R. 751, said: "The great weight of authority holds that under the provision, as recited, the injured employee `shall not collect from both' the employer and a third person who caused his injury, and that an employer, `having paid compensation or having become liable therefor, may collect . . . the indemnity paid,' an employee, who petitioned for the review of an award made in his favor, and procured it to be fixed at a definite amount, payable in weekly installments, and thereafter, for many months, accepted from his employer and receipted for the weekly payments as they became due, surrendered whatever right he might have had to recover at common law from a third person whose negligence caused his injuries, damages in excess of the compensation awarded him." And continuing on page 696, the court said: "The meaning of the statute seems too plain to admit of any possible construction other than that when the injured workman goes so far as to `collect' from the employer under the Workmen's Compensation Law, he is forbidden also to recover an additional amount in an action at law against a third person whose negligence caused his injury."
On petition for rehearing, the court said: "The Indiana Statute expressly provides that the injured workman `shall not collect from both.' (Acts 1919 p. 158, § 13, supra.) Where the meaning of a statute is plain, the court must enforce it as it is written, and may not resort to an artificial construction to conform the law *Page 239
to what has been enacted in other states in wholly different language."
Whether appellee collected compensation from his employer within the meaning of the compensation act was under the issues a question of fact. If he did, this cause must be reversed, otherwise affirmed.
In Mingo v. Rhode Island Co. (1918), 41 R.I. 423,103 A. 965, the employee and employer entered into an agreement in accordance with the Workmen's Compensation Act, whereby the employer agreed to pay a certain sum for medical services and a named weekly compensation. This agreement was approved by the proper authority, and the amount so agreed on as compensation was paid, subject to an agreement between the employer and the employee that the latter should bring an action for damages against a third party whose negligence caused the injury, and that the employee should repay the employer all money received by him under the agreement out of the damages recovered from the third party. It was there held that the employee was not precluded from suing the negligent third party. The court, after a review of the English cases, in discussing a statute which provided that the employee shall not "receive both damages and compensation," said: "The employer is given the right of indemnity against the negligent third person, with the intention that the final payment for the damages suffered by the employee shall be made, not by the employer, but by the negligent third person who is responsible for the injury. The effect of the agreement in question is to accomplish this purpose of the statute and to aid the employer in securing the right of indemnity given to him by the statute. It is not the purpose of this statute to lessen or to change the liability of the negligent third person who is fully protected therein from a double liability, and in our opinion it was not the intention of the legislature to restrict the *Page 240
right of the employee to make and act upon such an agreement as the one in question, and we do not think that the mere approval by the court of the agreement, procured by the initiative of either employee or employer, should be construed as a bar to the employee's right of action against the person responsible for the injury."
The evidence in the instant case very clearly, and without conflict, shows that, within two weeks after his injury, appellee consulted a lawyer relative to his claim against appellant for damages, and that the lawyer, within that time, wrote a letter to appellant making a claim for damages. About two weeks later, appellee's employer and appellee entered into an agreement concerning the right of appellee to compensation. This agreement was reduced to writing, at which time appellee received from his employer a check of the insurance carrier for the full amount of the compensation agreed on. A few days later, the agreement was filed with and approved by the Industrial Board, and, a short time thereafter, the insurance carrier paid the doctor in full for the services rendered appellee on account of the injury. At the time appellee signed the agreement, and accepted the amount named therein, there was no agreement or understanding that the employer or its insurance carrier was to be reimbursed by appellee out of any damages he might recover from appellant.
Ordinarily, when an employer pays an injured employee the amount due under a compensation agreement which has been approved by the Industrial Board, the employee cannot prosecute an action against a third person for damages, but the employer may maintain an action against the wrongdoer to recover the amount he was required to pay the injured employee.
We have no doubt but that an employer may make a gift to an injured employee of the amount which he *Page 241
might be entitled to as compensation under the act, and 1. that the employee may accept such gift without in any wise affecting his right to maintain an action against some other person whose negligence caused the injury. Of course, appellee and his employer had a right to enter into an agreement concerning compensation, and to have the same approved by the Industrial Board without affecting appellee's right to sue for and collect damages from appellant.
In Kelly v. North British Ry. Co. (1915), 53 Scot. L.R. 53, a workman was injured through the negligence of the railway company. He received compensation from his employer under an agreement in writing that the receipt of compensation should be without prejudice, and with the understanding that he intended to take action against the railway company, and, if he recovered damages from the railway company, he should repay whatever compensation had been paid him. The court followed Wright v.Lindsay (1911), 49 Scot. L.R. 210, decided in 1911, where a similar agreement, partly in writing and partly oral, was held not to bar an action against the wrongdoer. It was held in each of these cases that the payments were made for the purpose of enabling the workman to tide over the time that must elapse before the action against the wrongdoer could be disposed of, and were not intended to be made by virtue of the compensation act.
In Aldin v. Stewart (1915), 53 Scot. L.R. 49, where the workman accepted payment under circumstances showing that he was aware the payments were being made under the Workmen's Compensation Act, he was denied the right to maintain an action for damages. The first receipt in that case stated that the money was received as compensation for the accident, while later receipts made no reference to compensation, the words *Page 242
"without prejudice" being added. The workman there was a minor and testified that he did not know he had an option of claiming compensation or prosecuting an action against the wrongdoer for damages. Under the facts, it was held the workman had recovered compensation and could not maintain the action for damages.
Under the Workmen's Compensation Act of England, the workman could take proceedings both against a third person to recover damages and against his employer for compensation, but 2. could not recover both damages and compensation. He had to elect before there was a recovery. Under our act, the workman may prosecute his action for damages to judgment, and he may also have his claim for compensation allowed, but he is prohibited from collecting both from the wrongdoer and from the employer. He must elect from which one he will collect. If he collects compensation, he cannot collect damages.
It is clear that neither appellee nor his employer understood or intended that the receipt by appellee of the $20.76 should bar him from collecting damages from appellant. That matter was 3. discussed at the time appellee accepted the check, which was before the agreement was approved by the Industrial Board. Appellee testified that the check was given to him as a gift. We do not overlook the fact that, at the time appellee received the check, he and his employer entered into an "agreement in regard to the compensation for the injury sustained" by appellee, and that there was attached to said check what was designated as a "compensation receipt," which recited that appellee had received of his employer the sum of $20.76, in "settlement and satisfaction of all claims for compensation or damages . . . on account of injuries suffered" by appellee August 11, 1920, while in the services of the lumber company. While this is a plain and unequivocal *Page 243
acknowledgment of a payment of compensation, and, in the absence of fraud or mistake, should be final and conclusive, the receipt is not contractual, in the sense that the statement that the money was received for compensation cannot be contradicted by proof that the same was received as a gift. The jury found that the money was paid to appellee as a gift, with the agreement and understanding that it should not and would not interfere with or prevent appellee from prosecuting an action against appellant for damages, and the evidence is sufficient to sustain that finding. Such an agreement is not prohibited, and appellant, under the circumstances, cannot object to the parties making the same.
It is not the purpose of the statute to protect a negligent third party by relieving him from any part of his liability. It does prevent the employee from collecting both compensation 4. and damages. It gives an employer who has paid compensation, or who has become liable therefor, the right to collect such compensation from the negligent third person. The employee may, if he has not accepted compensation from his employer, sue the negligent third person, and recover judgment for all damages occasioned by the negligent acts of such third person. If the employee should recover a judgment in such action, he has the option of collecting the judgment or proceeding against his employer for compensation. If he has also been awarded compensation, he must then elect which he will accept. If he accepts the compensation, his employer may then proceed against the negligent third person under the provisions of said § 13.
Under the pleadings and the evidence in the case at bar, the payment to appellee being a gift, there is no right of action by the lumber company or its insurance carrier for indemnity. 5. If appellant had so desired, by proper proceedings, it could have brought the lumber company and its insurance carrier in and required *Page 244
them to answer as to their interest. It would seem, however, that appellant is fully protected from the possibility of having to indemnify the employer or the insurance carrier. See Employers',etc., Liability Assurance Co. v. Indianapolis, etc., Trac. Co.
(1924), 195 Ind. 91, 144 N.E. 615.
We hold that the verdict is sustained by the evidence and is not contrary to law. What we have said disposes of the questions concerning the overruling of the demurrer to the several paragraphs of reply and the refusal to give instructions.
Finding no reversible error, the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247111/ | THOMAS L. LUDINGTON, United States District Judge
On May 25, 2017, the original Plaintiffs (including the first-named Plaintiff Andrei Fenner) filed a complaint against Defendant General Motors LLC ("GM"), Robert Bosch GmbH, and Robert Bosch LLC ("Bosch" and, collectively, the "Defendants"). ECF No. 1. The suit was assigned to United States District Judge George Caram Steeh. On July 25, 2017, Judge Steeh issued a stipulated proposed order which consolidated the Fenner class action with another class action (Carrie Mizell et al. v. General Motors LLC, et al., Case No. 17-11984) also pending before him at the time. ECF No. 16. Pursuant to that stipulated proposed order, the "caption for the Consolidated Action" was designated as *1046"IN RE DURAMAX DIESEL LITIGATION." Id. at 3. Also pursuant to that stipulated order, the Plaintiffs filed a consolidated amended complaint on August 4, 2017. ECF No. 18. On August 30, 2017, the consolidated case was reassigned because it is a companion case to Counts et al. v. General Motors , Case No. 1-16-cv-12541, which is currently in discovery. ECF No. 33.
At the deadline for responsive pleadings, Defendants filed two motions to dismiss the consolidated amended complaint. ECF Nos. 44, 45.1 Defendants advance many arguments, including that the Plaintiffs lack standing to sue, that Plaintiffs have failed to state a claim for affirmative misrepresentation, that any fraudulent concealment or omission claims should be dismissed or stayed, and that Plaintiffs have failed to state a Racketeering Influenced and Corrupt Organizations Act (RICO) claim, 18 U.S.C. § 1961 et seq. For the following reasons, the motions to dismiss will be denied.
I.
All well-pleaded factual allegations are assumed to be true at the pleading stage. The consolidated amended complaint names thirteen Plaintiffs residing in ten states.2 Each Plaintiff bought a Silverado or Sierra 2500 or 3500 diesel vehicle with a model year between 2011 and 2016. Con. Am. Compl. at 1, ECF No. 18. Some Plaintiffs bought new vehicles and others bought used vehicles, but each purchased their vehicle from an authorized GM dealer. See, e.g. , id. at 14. The vehicles which Plaintiffs identify all contain a "Duramax" diesel engine. Id. at 1. Plaintiffs' allegations center on the emissions reduction technology associated with that engine.
A.
According to Plaintiffs, GM represented the Duramax engine as providing both low emissions and high performance. Id.3 Plaintiffs (in unsourced quotations) contend that GM boasted that the Duramax engine constituted a " 'remarkable reduction of diesel emissions' " compared to the engine previously used in its Silverado and Sierra vehicles. Id. Those representations were false. Plaintiffs allege that
scientifically valid emissions testing has revealed that the Silverado and Sierra 2500 and 3500 models emit levels of NOx many times higher than (i) their gasoline counterparts, (ii) what a reasonable consumer would expect, (iii) what GM had advertised, (iv) the Environmental Protection Agency's maximum standards, and (v) the levels set for the vehicles to obtain a certificate of compliance that allows them to be sold in the United States.
Id.4
In other words, the Duramax engine does not actually combine high power and low *1047emissions as GM suggested: "[T]he vehicles' promised power, fuel economy, and efficiency is obtained only by turning off or turning down emissions controls when the software in these vehicles senses they are not in an emissions testing environment." Id. at 1-2.
The Duramax engine allegedly achieves this feat by employing "defeat devices." Id. at 2. As Plaintiffs define that term, "[a] defeat device means an auxiliary emissions control device that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use." Id. The Duramax engine allegedly contains three such devices. Defeat Device No. 1 "reduces or derates the emissions system when temperatures are above the emissions certification test range (86°F)." Id. at 3. Similarly, Defeat Device No. 2 "operates to reduce emissions control when temperatures are below the emissions certification low temperature range (68°F)." Id. The impact of these alleged devices is significant:
Testing reveals that at temperatures below 68°F (the lower limit of the certification test temperature), stop and go emissions are 2.1 times the emissions standard at 428 mg/mile (the standard is 200 mg/mile). At temperatures above 86°F, stop and go emissions are an average of 2.4 times the standard with some emissions as high as 5.8 times the standard.
Id.
The third defeat device "reduces the level of emissions controls after 200-500 seconds of steady speed operation in all temperature windows, causing emissions to increase on average of a factor of 4.5." Id. Plaintiffs estimate that "due to just the temperature-triggered defeat devices, the vehicles operate at 65-70% of their miles driven with emissions that are 2.1 to 5.8 times the standard." Id.5
Plaintiffs provide a technical explanation for how GM was able to leverage these devices to "obtain and market higher power and fuel efficiency from its engines while still passing the cold-start emissions certification tests." Id. at 4. Essentially, GM placed the "Selective Analytic Reduction (SCR) in front of the Diesel Particulate Filter (DPF)."6 Id. In doing so, GM increased the engine's power production and fuel efficiency. However, placing the SCR in front of the DPF also dramatically increased potential emissions, thus requiring the engine to "employ Active Regeneration (burning off collected soot at a high temperature) and other power- and efficiency-sapping exhaust *1048treatment measures." Id. Thus, the power and fuel-efficiency gains were lost because of the increased need for emissions reduction technology. GM's solution, according to the Plaintiffs, was the three defeat devices identified above.
B.
1.
Plaintiffs allege that, in developing this solution, "GM did not act alone." Id. at 10. Rather, Robert Bosch GmbH and Robert Bosch LLC "were active and knowing participants in the scheme to evade U.S. emissions requirements" and to develop, manufacture, and test the "electronic diesel control (EDC) that allowed GM to implement the defeat device." Id. The EDC in question, Bosch's EDC17, "is a good enabler for manufacturers to employ 'defeat devices' as it enables the software to detect conditions when emissions controls can be derated-i.e. , conditions outside of the emissions test cycle." Id. Importantly, "[a]lmost all of the vehicles found or alleged to have been manipulating emissions in the United States (Mercedes, FCA, Volkswagen, Audi, Porsche, Chevy Cruze) use a Bosch EDC17 device." Id.
According to a Bosch press release quoted by Plaintiffs, the EDC17 device controls " 'the precise timing and quantity of injection, exhaust gas recirculation, and manifold pressure regulation.' " Id. at 93. The device also " 'offers a large number of options such as the control of particulate filters or systems for reducing nitrogen oxides.' " Id. EDC17 is "run on complex, highly proprietary engine management software over which Bosch exerts near-total control." Id. at 94. Because the software "is typically locked to prevent customers, like GM, from making significant changes on their own," vehicle manufacturers must work closely with Bosch to implement EDC17 in a vehicle. Id.
According to Plaintiffs, "Bosch participated not just in the development of the defeat device, but also in the scheme to prevent U.S. regulators from uncovering the device's true functionality." Id. at 39. Additionally, "Bosch GmbH and Bosch LLC marketed 'clean diesel' in the United States and lobbied U.S. regulators to approve 'clean diesel,' another highly unusual activity for a mere supplier." Id. In short, Plaintiffs believe that "Bosch was a knowing and active participant in a massive, decade-long conspiracy with Volkswagen, Audi, Mercedes, GM, and others to defraud U.S. consumers, regulators, and diesel car purchasers or lessees." Id. at 40.
2.
In their complaint, Plaintiffs repeatedly reference allegedly similar conduct by other automobile manufacturers. Plaintiffs explain that, in recent years, "almost all of the major automobile manufacturers rushed to develop 'clean diesel' and promoted new diesel vehicles as environmentally friendly and clean." Id. at 5. Due in part to that marketing, a significant market for "clean diesel" vehicles developed: "[O]ver a million diesel vehicles were purchased between 2007 and 2016 in the United States and over ten million in Europe." Id. at 6. A number of those diesel vehicle manufacturers, however, have now been accused of installing "defeat devices" in their diesel vehicles. Id. For example, Volkswagen has pleaded guilty to criminal charges (and has settled civil class action claims) arising out of allegations that it purposefully evaded emission standards. Id. Fiat Chrysler Automobiles has also been accused of similar conduct. On January 12, 2017, the EPA "issued a Notice of Violation to FCA because it had cheated on its emissions certificates with respect to its Dodge Ram and Jeep Grand Cherokee vehicles, and on May 23, 2017, the United States filed a civil suit in the Eastern *1049District of Michigan alleging violations of the Clean Air Act." Id. at 6-7.
C.
Unlike gasoline engines, diesel engines "compress a mist of liquid fuel and air to very high temperatures and pressures, which causes the diesel to spontaneously combust." Id. at 46. When compared to gasoline engines, diesel engines produce greater amounts of "oxides of nitrogen (NOx), which includes a variety of nitrogen and oxygen chemical compounds that only form at high temperatures." Id. See also id. at 47. According to Plaintiffs,
NOx pollution contributes to nitrogen dioxide, particulate matter in the air, and reacts with sunlight in the atmosphere to form ozone. Exposure to these pollutants has been linked with serious health dangers, including asthma attacks and other respiratory illnesses serious enough to send people to the hospital. Ozone and particulate matter exposure have been associated with premature death due to respiratory-related or cardiovascular-related effects. Children, the elderly, and people with pre-existing respiratory illness are at acute risk of health effects from these pollutants. As a ground level pollutant, NO2, a common byproduct of NOx reduction systems using an oxidation catalyst, is highly toxic in comparison to nitric oxide (NO). If overall NOx levels are not sufficiently controlled, then concentrations of NO2 levels at ground level can be quite high, where they have adverse acute health effects.
Id.
Plaintiffs further allege that the EPA believes that NOx contributes to increases in the amount of acid rain, water quality deterioration, toxic chemicals, smog, nitric acid vapor, and global warming. Id. at 113-114.
D.
In the consolidated amended complaint, Plaintiffs repeatedly reference the pollution standards promulgated by the EPA and other entities. They allege that GM and Bosch conspired to conceal the defeat devices in the Duramax engine from the EPA and allege that, because of the defeat devices, the vehicles in question do not comply with emission pollution standards, despite being certified as conforming to those requirements. See, e.g. , id. at 97-99. But Plaintiffs also allege that "[t]his case is not based on these laws but on deception aimed at consumers." Id. at 5. Plaintiffs contend that "a vehicle's pollution footprint is a factor in a reasonable consumer's decision to purchase a vehicle" and that GM's actions demonstrate their understanding of that fact. As Plaintiffs explain, GM crafted a marketing campaign, "intended to reach the eyes of consumers, [which] promoted the Duramax engine as delivering 'low emissions' or having 'reduced NOx emissions.' GM was acutely aware of this due to the public perception that diesels are 'dirty.' " Id. at 60.
In the consolidated amended complaint, Plaintiffs quote, summarize, or reproduce approximately ten pages of GM advertising, press releases, and publications related to the emissions production and fuel economy of its diesel engines. See id. at 61-70. These advertisements and publications repeatedly emphasize that the Duramax engine " 'run[s] clean,' " delivers " 'low emissions,' " and is " 'friendlier to the environment.' " Notably, not one of the advertisements or publications which Plaintiffs reproduce in this section of the consolidated amended complaint references EPA standards or represents that the vehicle in question has been certified by the EPA.
Plaintiffs allege that the disparity between the way the Duramax engine was characterized as operating and the way in which its emissions reductions systems *1050were actually configured has resulted in financial harm to them and other consumers. See id. at 116 ("As a result of GM's unfair, deceptive, and/or fraudulent business practices, and its failure to disclose that under normal operating conditions the Polluting Vehicles are not "clean" diesels, emit more pollutants than do gasoline-powered vehicles, and emit more pollutants than permitted under federal and state laws, owners and/or lessees of the Polluting Vehicles have suffered losses.").
First, Plaintiffs allege that they "paid a premium of nearly $9,000 [because] GM charged more for its Duramax engine than a comparable gas car." Id. at 115. Because the Duramax engine did not reduce emissions to the level a reasonable consumer would have expected, Plaintiffs allege that they overpaid for the vehicle at the time of purchase. Id. at 117. Plaintiffs also identify other damages they have suffered:
Had Plaintiffs and Class members known of the higher emissions at the time they purchased or leased their Polluting Vehicles, they would not have purchased or leased those vehicles, or would have paid substantially less for the vehicles than they did. Moreover, when and if GM recalls the Polluting Vehicles and degrades the GM Clean Diesel engine performance and fuel efficiency in order to make the Polluting Vehicles compliant with EPA standards, Plaintiffs and Class members will be required to spend additional sums on fuel and will not obtain the performance characteristics of their vehicles when purchased. Moreover, Polluting Vehicles will necessarily be worth less in the marketplace because of their decrease in performance and efficiency and increased wear on their cars' engines.
Id. at 117.
E.
The consolidated amended complaint includes fifty-four counts. The first count alleges that the Defendants violated the RICO statute. The remaining fifty-three counts are state law claims predicated on the fraudulent concealment and consumer protection laws of forty-three different states. Thirty-three of the state law claims originate from states where no named Plaintiff resides.
II.
Defendants have moved for dismissal pursuant to Federal Rules of Civil Procedure 8(a), 9(b), 12(b)(1) and 12(b)(6). Rule 8(a)(2) mandates that pleadings, including complaints, must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. Rule 9(b) requires a party allege fraud or mistake to "state with particularity the circumstances constituting fraud or mistake." Id. Rule 9(b) also provides, however, that "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Id.
Rule 12(b)(1) provides the means by which a party may assert lack of subject-matter jurisdiction as a defense. "A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack)." Cartwright v. Garner , 751 F.3d 752, 759 (6th Cir. 2014) (citing United States v. Ritchie , 15 F.3d 592, 598 (6th Cir.1994) ). "A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter jurisdiction, and the court takes the allegations of the complaint as true for purposes of Rule 12(b)(1) analysis." Id. However, a "factual attack challenges the factual existence of subject matter jurisdiction." Id. In that case, "the district court has broad discretion over what evidence to consider and may look outside the pleadings to determine whether subject-matter jurisdiction *1051exists." Adkisson v. Jacobs Eng'g Grp., Inc. , 790 F.3d 641, 647 (6th Cir. 2015). Regardless, "the plaintiff bears the burden of proving that jurisdiction exists." DLX, Inc. v. Kentucky , 381 F.3d 511, 516 (6th Cir. 2004).
A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the allegations of facts therein as true. See Lambert v. Hartman , 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not provide "detailed factual allegations" to survive dismissal, but the "obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In essence, the pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face" and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal , 556 U.S. at 678-79, 129 S.Ct. 1937 (quotations and citation omitted).
III.
In the present motions to dismiss, Defendants argue that Plaintiffs lack standing to bring suit, that the consolidated amended complaint is impermissibly vague, that all of Plaintiffs' claims are preempted, that any surviving claims should be stayed, and that Plaintiffs have failed to state a cognizable RICO claim. Those arguments will be addressed in roughly that order. Before proceeding further, the Court must confirm its jurisdiction. After analyzing jurisdictional issues, the next question is whether the complaint is sufficiently clear and specific to comply with federal pleading requirements. The cognizability of Plaintiffs' claims involving the alleged misrepresentation, concealment, or omission of material facts is inextricably intertwined with the question of whether those claims are preempted and the related question of whether this suit should be stayed in favor of an EPA investigation. Accordingly, those questions will be considered together. Next, Defendants' arguments for dismissal of the RICO claim will be considered. Finally, the dispute over whether Plaintiffs lack standing to assert claims premised on the laws of states where no named Plaintiff resides will be addressed.
Both GM and Bosch have filed separate motions to dismiss. While the two motions travel similar ground (and refer to and rely upon each other), they also contain distinct arguments. An effort will be made to specifically identify which Defendant's arguments are being addressed and the impact of each conclusion on each Defendant. However, one of the disputes is whether the complaint is adequately specific in its allegations about which Defendant took what action. For that reason, some generalization will be inevitable.
A.
Federal courts have a duty to confirm subject matter jurisdiction in every case pending before them. Valinski v. Detroit Edison , 197 Fed.Appx. 403, 405 (6th Cir. 2006). Article III, § 2 of the U.S. Constitution limits federal court jurisdiction to "Cases" and "Controversies." The doctrine derived from Art. III, § 2 imposes the requirement of standing: federal jurisdiction exists only if the dispute is one "which [is] appropriately resolved through the judicial process."
*1052Whitmore v. Arkansas , 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). For standing to exist, three elements must be satisfied: injury in fact, causation, and redressability. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Injury in fact exists when the plaintiff has suffered "an invasion of a legally protected interest" that is both "concrete and particularized" and "actual or imminent," not "conjectural or hypothetical." Id. at 560, 112 S.Ct. 2130 (citations omitted). Causation exists if the injury is one "that fairly can be traced to the challenged action of the defendant." Simon v. E. Kentucky Welfare Rights Org. , 426 U.S. 26, 41, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). The redressability requirement is satisfied if the plaintiff's injury is "likely to be redressed by a favorable decision." Id. at 38, 96 S.Ct. 1917. Standing can exist even if the alleged injury "may be difficult to prove or measure." Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016).
Bosch argues that the Plaintiffs lack Article III standing because they have not identified an injury in fact which is traceable to the actions of Bosch. GM has not briefed the question of Article III standing, but has incorporated by reference Bosch's brief on the issue. See GM Mot. Dismiss at 16-17 n.18, ECF No. 45.7 Bosch identifies "two types of injuries (1) alleged overpayment for their vehicles...and (2) potential future injuries arising from potential diminished performance." Bosh Mot. Dismiss at 11. As regards the overpayment theory, Bosch argues that the injury cannot be fairly traced to Bosch's actions because Bosch did not advertise the vehicles to consumers, did not establish the price for the vehicles, and was not a party to any vehicle-purchase contracts. As regards the potential for diminished future performance, Bosch argues that this theory is unduly hypothetical and speculative.
1.
Plaintiffs' overpayment theory suffices to provide standing to sue GM, which manufactured the vehicles and authorized their sale. Accepting Plaintiffs' allegations as true, they paid a premium for a "clean diesel" vehicle which actually polluted at levels dramatically higher than a reasonable consumer would expect. In other words, they paid for a product which did not operate in the way they believed it did. Claims of overpayment, wherein a plaintiff paid a premium but did not receive the anticipated consideration, are cognizable injuries in fact. See Wuliger v. Manufacturers Life Ins. Co. , 567 F.3d 787, 794 (6th Cir. 2009). See also Danvers Motor Co. v. Ford Motor Co. , 432 F.3d 286, 293 (3d Cir. 2005) ("Monetary harm is a classic form of injury-in-fact."). That injury is traceable to GM's actions: GM developed the Duramax engine (including the alleged defeat devices), marketed its diesel vehicles as environmentally friendly, and set the MSRP for its diesel vehicles. There is, accordingly, a " 'traceable connection between the plaintiff's injury and the complained-of conduct of the defendant.' " Id. at 796 *1053(quoting Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). And financial damages are, of course, fully redressable by a favorable decision. Plaintiffs have standing to sue GM.
Bosch's connection to the alleged overpayment, however, is more attenuated. Bosch did not manufacture the Duramax engine, advertise vehicles containing that engine, or establish the MSRP. Accordingly, Bosch argues that any overpayment by Plaintiffs is attributable solely to GM's actions. That assertion mischaracterizes the allegations in the consolidated amended complaint. Plaintiffs allege that
Bosch participated not just in the development of the defeat device, but also in the scheme to prevent U.S. regulators from uncovering the device's true functionality. Moreover, Bosch's participation was not limited to engineering the defeat device (in a collaboration described as unusually close). Rather, Bosch GmbH and Bosch LLC marketed "clean diesel" in the United States and lobbied U.S. regulators to approve "clean diesel," another highly unusual activity for a mere supplier.
Con. Am. Compl. at 39.
In other words, "Bosch GmbH and Bosch LLC have enabled over 1.3 million vehicles to be on the road in the United States polluting at levels that exceed emissions standards and which use software that manipulate emissions controls in a manner not expected by a reasonable consumer." Id. at 40.
Bosch admits that it supplied components to the diesel vehicles in question, but argues that it did not market those vehicles or enter into any contractual relationships with any of the Plaintiffs. As stated, however, that is not entirely true. Plaintiffs allege that Bosch "marketed 'clean diesel' in the United States." Id. at 39. While the exact nature of that marketing is unclear, it is plausible that Bosch's efforts contributed to the market demand for "clean diesel" vehicles, generally, in the United States. See id. at 5-6. The premiums which Plaintiffs paid for vehicles with Duramax engines were a natural consequence of that market demand. Similarly, Plaintiffs allege that Bosch enabled GM to deceive consumers and thus contributed to the overpayment. Plaintiffs emphasize the close relationship between GM and Bosch, including the joint efforts to calibrate EDC17 for the Duramax engine. The allegations in the consolidated amended complaint, if true, clearly establish that Bosch developed the vehicle component which has caused Plaintiffs' injury, that Bosch was aware of the deception that component would inevitably contribute to, and that Bosch was aware that consumers would pay a premium for vehicle capabilities that the component would not deliver. In other words, Plaintiffs overpaid for their vehicles because Bosch worked closely with GM to install working defeat devices in the Duramax vehicles.
There can be no dispute that, compared to GM, Bosch has a more indirect relationship with United States consumers. But "[p]roximate causation is not a requirement of Article III standing." Lexmark Int'l, Inc. v. Static Control Components, Inc. , --- U.S. ----, 134 S.Ct. 1377, 1391 n.6, 188 L.Ed.2d 392 (2014). Indeed, "the causation requirement in standing is not focused on whether the defendant 'caused' the plaintiff's injury in the liability sense; the plaintiff need only allege 'injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.' " Wuliger , 567 F.3d at 796 (quoting Simon v. E. Ky. Welfare Rights Org. , 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ). Bosch may ultimately *1054prevail in its argument that it should not be held liable for Plaintiffs' overpayment, but Plaintiffs' allegation that Bosch was intimately involved in the creation of the component which caused the overpayment suffices to establish Article III standing.
None of the (noncontrolling) cases which Bosch cites in support of its argument compel a different result because each is legally or factually distinguishable. Bosch cites In re Schering Plough Corp. Intron/Temodar Consumer Class Action for the proposition that overpayment damages provide standing only if traceable to the actions of the defendant. 678 F.3d 235, 245 (3d Cir. 2012). In holding that the plaintiffs had not identified a causal relationship between the alleged misconduct (unlawful marketing practices) and the alleged injury (payment for ineffective drugs), the Third Circuit noted that the plaintiffs did not actually allege that they "ever paid for a Temodar or Intron-A prescription." Id. at 247. The plaintiffs did allege that they paid for Rebetol, but the Third Circuit explained that "[i]t is pure conjecture to conclude that because Schering's misconduct caused other doctors to write prescriptions for ineffective off-label uses for other products, Local 331 ended up paying for two prescriptions for Rebetol due to the same kind of misconduct." Id. at 248. Here, the causal connection is much clearer: Bosch worked with GM to develop the vehicle component which was the source of the overpayment by Plaintiffs. In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig. is similarly inapplicable. 826 F.Supp.2d 1180, 1191 (C.D. Cal. 2011) (dismissing claims against North American divisions of Toyota Motor Corporation because the complaint did not allege that the American advertisements were aired in other countries and thus did not identify a link between the defendants responsible for U.S. marketing and "the buying decisions of Toyota customers worldwide"). Bosch's involvement in the creation of a vehicle component which has caused financial harm to Plaintiffs has been clearly alleged.8 Between that involvement and Bosch's alleged marketing for "clean diesel," Plaintiffs have adequately alleged that their overpayment can be fairly traced to Bosch.
2.
Plaintiffs' allegations of overpayment are sufficient to enable them to advance their state law consumer protection and fraudulent concealment claims. Plaintiffs' other alleged damages (essentially that, if the existence of a defeat device is proven, the value of their vehicles will decrease) need not be considered for standing purposes. Defendants separately challenge Plaintiffs' standing to bring a RICO claim. That argument is based upon a statutory standing requirement, not Article III standards, and thus will be considered below.
B.
Defendants next challenge the form of the consolidated amended complaint. GM argues, first, that the entire complaint should be dismissed because it does not contain a "short and plain statement of the claim showing that the pleader is entitled to relief," as required by *1055Federal Rule of Civil Procedure 8(a). Second, GM (joined by Bosch) argues that all of Plaintiffs' state law claims which sound in fraud do not meet Federal Rule of Civil Procedure 9(b) specificity standards. Third, Bosch argues that Plaintiffs have engaged in impermissible group pleading. Each argument will be addressed in turn.
1.
Rule 8(a)(2) mandates that pleadings, including complaints, must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. However, federal pleading rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby, Miss. , --- U.S. ----, 135 S.Ct. 346, 346, 190 L.Ed.2d 309 (2014). The consolidated amended complaint spans 229 pages and contains 900 pages of exhibits. Defendants are correct that this complaint is lengthy, but this is not one of the extraordinarily rare scenarios where a complaint should be dismissed because of its length. Defendants fault the consolidated amended complaint for including "scores of paragraphs [related] to alleged misconduct involving Volkswagen, Audi, Porsche, Mercedes, and Fiat Chrysler." GM Mot. Dismiss at 12. These allegations are of limited relevance, but do provide context for Plaintiffs' remaining allegations. The undergirding purpose of Rule 8(a) is to ensure that the complaint provides notice. If the length and unnecessary complexity of the complaint obscures the true nature of the allegations and claims, dismissal may be appropriate. This is not such a case.
2.
Defendants also argue that Plaintiffs have failed to meet the heightened pleading standards of Rule 9(b) with respect to their allegations of fraud. The adequacy of Plaintiffs' fraud allegations are best resolved in conjunction with the analysis of whether Plaintiffs have stated a claim. However, one general point will be taken up separately.
The specificity required for allegations of affirmative misrepresentations is necessarily different than the specificity required for allegations of fraudulent omissions.9 The purpose of Rule 9(b) is to put defendants on notice of the nature of the claim. See Williams v. Duke Energy Int'l, Inc. , 681 F.3d 788, 803 (6th Cir. 2012) ("[I]t is a principle of basic fairness that a plaintiff should have an opportunity to flesh out her claim through evidence unturned in discovery. Rule 9(b) does not require omniscience; rather the Rule requires that the circumstances of the fraud be pled with enough specificity to put defendants on notice as to the nature of the claim." (internal citations omitted) ). "When it comes to claims of fraud by omission or fraudulent concealment, the plaintiff faces a slightly more relaxed pleading burden; the claim 'can succeed without the same level of specificity required by a normal fraud claim.' " Beck v. FCA US LLC , 273 F.Supp.3d 735, 751 (E.D. Mich. 2017) (quoting Baggett v. Hewlett-Packard Co. , 582 F.Supp.2d 1261, 1267 (C.D. Cal. 2007) ). The reasons for the disparate burden are straightforward. Fraudulent acts occur at a specific time, fraudulent omissions occur over a period of time. Fraudulent acts can be specifically described, but omissions are, by very definition, more amorphous.
As this Court explained in Counts , the Sixth Circuit has rejected the argument that it has the authority to "relax" the *1056Rule 9(b) particularity requirement. See Counts v. General Motors, LLC , 237 F.Supp.3d 572 (E.D. Mich. 2017) (citing United States v. Walgreen Co. , 846 F.3d 879, 880- 81 (6th Cir. 2017) ). That said, the Sixth Circuit has recognized that " 'particular' allegations of fraud may demand different things in different contexts." Walgreen , 846 F.3d at 881. Plaintiffs must allege their theory of fraudulent omissions with enough specificity to provide Defendants with fair notice of the claims. At the same time, in reviewing the consolidated amended complaint, "the difficulty of obtaining proprietary...information or pinpointing the point in time when a fraudulent omission occurred will be taken into account." Counts , 237 F.Supp.3d at 595.
3.
Bosch further argues that the Plaintiffs have engaged in impermissible group pleading. This argument is primarily focused on Plaintiffs' RICO claim. As discussed below, Plaintiffs have adequately alleged the prima facie elements of a RICO claim with sufficient specificity to put Defendants on notice of their alleged involvement in the enterprise. Bosch further objects to Plaintiffs' decision to define "Bosch" as including both Bosch LLC and Bosch Gmbh. Bosch contends that Plaintiffs' failure to distinguish between these two entities precludes Bosch from understanding exactly what its constituent entities are accused of.
When asserting claims of fraud, plaintiffs are not permitted to "generally assert all claims against all defendants." State Farm Mut. Auto. Ins. Co. v. Universal Health Grp., Inc. , No. 14-CV-10266, 2014 WL 5427170, at *3 (E.D. Mich. Oct. 24, 2014) (citing Hoover v. Langston Equip. Assocs., Inc. , 958 F.2d 742, 745 (6th Cir. 1992) ). But, at the same time, the Federal Rules of Civil Procedure are premised on the idea that pleadings should be simple and focused on providing notice. See Llewellyn-Jones v. Metro Prop. Grp., LLC , 22 F.Supp.3d 760, 780 (E.D. Mich. 2014). As discussed above, allegations of fraudulent concealment will inevitably be less specific than allegations of affirmative misrepresentation.
Plaintiffs allege that "[b]oth Bosch GmbH and Bosch LLC...operate under the umbrella of the Bosch Group." Con. Am. Compl. at 41. Members of both Bosch GmbH and Bosch LLC were involved in the alleged conspiracy here. Plaintiffs indicate that the "acts of individuals described in this Complaint have been associated with Bosch GmbH and Bosch LLC whenever possible." Id. But Plaintiffs further contend that those employees "often hold themselves out as working for 'Bosch.' " Id. at 42. In other words, identifying "which Bosch defendant" was involved in which particular actions cannot always be "ascertained with certainty." Id. Plaintiffs believe that discovery will alleviate this confusion. Id.
Given Plaintiffs' allegation that Bosch employees and constituent entities often blur the legal boundaries between Bosch subsidiaries, the allegations against the Bosch Defendants are sufficiently specific. Plaintiffs are proceeding primarily on a theory of fraudulent omissions, and Bosch's alleged role within that fraudulent scheme is clear. " Rule 9(b) is not to be read in isolation, but is to be interpreted in conjunction with Federal Rule of Civil Procedure 8." U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc. , 501 F.3d 493, 503 (6th Cir. 2007). "In a complex case, involving multiple actors and spanning a significant period of time, where there has been no opportunity for discovery, 'the specificity requirements of Rule 9(b) [should] be applied less stringently....It is a principle of basic fairness that a plaintiff should have an opportunity to flesh out her claim *1057through evidence unturned in discovery.' " State Farm Mut. Auto. Ins. Co. v. Pointe Physical Therapy, LLC , 107 F.Supp.3d 772, 788 (E.D. Mich. 2015) (quoting JAC Holding Enterprises, Inc. v. Atrium Capital Partners, LLC , 997 F.Supp.2d 710, 727 (E.D. Mich. 2014) ). This is one such case.
In other words, the Rule 9(b) requirements are not meant to be an insurmountable barrier. Although the precise identity of the subsidiary and/or employee which may have taken certain actions is unclear, that level of detail is unnecessary to put the Bosch Defendants on notice of the claims made against them. The consolidated amended complaint will not be dismissed without prejudice for engaging in group pleading.
IV.
Defendants seek dismissal of the state law claims. First, they argue that Plaintiffs have failed to state claims for affirmative misrepresentation. Second, Defendants argue that Plaintiffs' fraudulent omission claims should be dismissed or stayed. Specifically, Defendants assert that Plaintiffs' concealment or omission claims are preempted, have not been plausibly pled, and should be stayed under the primary jurisdiction doctrine. In response, Plaintiffs deny that they are advancing any fraud claims premised on affirmative misrepresentations. See Pl. Resp. GM Mot. Dismiss at 9-10 ("But Plaintiffs do not sue for common law fraud under state law for affirmative misrepresentations."). Rather, "Plaintiffs sue for omissions of material fact, fraudulent concealment, violation of state law consumer protection statutes, and violation of RICO." Id. at 10. Plaintiffs further challenge the assertion that the state consumer protection laws on which it relies incorporate only claims of "common law fraud": "The consumer protection statutes bar not only fraud but also deceptive, unfair, and unlawful conduct." Id. For similar reasons, Plaintiffs contend that GM's argument that Plaintiffs have failed to plead reliance on affirmative misrepresentations is irrelevant.
Plaintiffs acknowledge that the consolidated amended complaint includes an extended discussion of various advertisements and press releases which GM issued regarding vehicles equipped with the Duramax engine. Those allegations, Plaintiffs explain, are not meant to buttress affirmative misrepresentation claims. They are meant "to show that Defendants' omissions were material for purposes of claims under consumer protection statutes and RICO." Id. at 11. To repeat: "The relevance of those promises is GM's acknowledgement that low emissions are material...to a reasonable consumer." Id. at 12.
Given Plaintiffs' decision to disavow any affirmative misrepresentation claims, the remaining issues are whether Plaintiffs' state law claims are preempted by the Clean Air Act (CAA), whether Plaintiffs have plausibly pleaded fraudulent omission claims, and whether any plausibly pleaded fraudulent omission claims should be stayed pursuant to the primary jurisdiction doctrine. Each question will be addressed in turn.
A.
"Pre-emption may be either expressed or implied, and 'is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.' " Gade v. Nat'l Solid Wastes Mgmt. Ass'n , 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (quoting Jones v. Rath Packing Co. , 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977) ). In all preemption cases, and especially where "Congress has 'legislated...in a field in which the States have traditionally occupied,'...[courts] 'start with the assumption that the historic police powers of the *1058States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' " Medtronic, Inc. v. Lohr , 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quoting Rice v. Santa Fe Elevator Corp. , 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) ). "Environmental regulation is a field that the states have traditionally occupied." Merrick v. Diageo Americas Supply, Inc. , 805 F.3d 685, 694 (6th Cir. 2015). The same is true of consumer protection and advertising regulations. See In re Ford Fusion & C-Max Fuel Econ. Litig. , No. 13-MD-2450 KMK, 2015 WL 7018369, at *28 (S.D.N.Y. Nov. 12, 2015) ; Gilles v. Ford Motor Co. , 24 F.Supp.3d 1039, 1047 (D. Colo. 2014). Where the statute does not expressly preempt state law, preemption may be implied. The Supreme Court has recognized
two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Gade , 112 S.Ct. at 2389 (internal citations omitted).
Defendants' preemption arguments arise out of Section 209 of the CAA. That section, codified at 42 U.S.C. § 7543, reads as follows:
No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.
Id. at § 7543(a).
Section 7543 also specifies, however, that "[n]othing in this part shall preclude or deny to any State or political subdivision thereof the right otherwise to control, regulate, or restrict the use, operation, or movement of registered or licensed motor vehicles." Id. at § 7543(d).
1.
The initial question is whether Plaintiffs' suit (and the state law claims it is premised upon) represents an attempt to establish a "standard" relating to the control of emissions or involves "certification, inspection, or any other approval relating to the control of emissions." The Supreme Court has interpreted "standard" in § 7543(a) to mean "requirements such as numerical emission levels with which vehicles or engines must comply...or emission-control technology with which they must be equipped." Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist. , 541 U.S. 246, 253, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004). Plaintiffs are, of course, private citizens suing on their own behalf, not state governmental entities. But there is some authority to support the proposition that § 7543(a)'s language can reach even private causes of action for damages. See Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 521, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (finding that the federal cigarette statute, which forbade states from imposing additional "requirements" or "prohibitions" governing cigarette advertising, had broad preemptive effect and applied to both "positive enactments and common law" actions for damages) (internal citations omitted). See also *1059Jackson v. Gen. Motors Corp. , 770 F.Supp.2d 570, 575 (S.D.N.Y. 2011) ("The operative phrase in § 209(a) is 'adopt or attempt to enforce.' As a result, if state common law tort actions are examples of 'enforcement,' then such actions (assuming that they are 'related to' the control of emissions) are clearly preempted by § 209(a)."). Indeed, as the Cipollone Court recognized, "common-law damages actions...are premised on the existence of a legal duty, and it is difficult to say that such actions do not impose 'requirements or prohibitions.' " 505 U.S. at 522, 112 S.Ct. 2608.
Accordingly, if Plaintiffs' state law claims represent veiled attempts to establish a "standard relating to the control of emissions," they are expressly preempted. But Plaintiffs' suit is not a disguised attempt to impose a standard on GM by mandating maximum "numerical emission levels" for its diesel vehicles or requiring certain emission-control technology. Rather than imposing requirements regarding the type of emissions technology which GM must include in its vehicles, Plaintiffs' suit seeks compensation for GM's fraudulent concealment of the actual operation of the emissions technology in its diesel vehicles from consumers.
GM further argues that Plaintiffs' suit represents an attempt to require "disclosure" of "information regarding AECDs-a technology for the 'control of emissions'-before a car can be sold." GM Mot. Dismiss at 25. According to GM, the suit is thus preempted because this disclosure requirement constitutes a "straightforward effort to 'require certification, inspection, or any other approval relating to the control of emissions...as a condition precedent to the initial retail sale' of a new motor vehicle." Id. (quoting § 7543(a) ). Defendants have provided no authority for the proposition that private claims alleging violations of consumer protection laws are equivalent to a "certification, inspection, or...other approval" requirement. Such an interpretation would be incompatible with the plain meaning of the section. The ability to certify, inspect, or approve presupposes that the acting party has some authority to prevent the sale of a car if the vehicle fails to pass the certification test. Consumers cannot prevent a manufacturer from selling a particular vehicle, and so it appears impossible that consumers could impose any "condition precedent to the initial retail sale" of a vehicle.10 § 7543(a).
2.
GM nevertheless argues that the suit is preempted because Plaintiffs' claims "relate *1060to" the enforcement of EPA emission standards. GM's rationale can be summarized as follows. First, "Plaintiffs' non-disclosure claims rest exclusively on the presence of an 'illegal' 'defeat device.' " GM Mot. Dismiss at 19. Second, the alleged purpose of that "defeat device" is "to defeat EPA certification testing and evade federal emissions standards." Id. at 20. Third, "[a]ll of Plaintiffs' claims thus depend on and are based 'solely on' a showing that GM employed a 'defeat device' as defined by the EPA." Id. For that reason, all of Plaintiffs' claims are expressly preempted. Id.
This line of reasoning can be sustained only by selectively characterizing Plaintiffs' allegations and claims. But notwithstanding Defendants' understandable desire to reframe Plaintiffs' allegations in a light favorable to their preferred defenses, the Court cannot do the same. When considering "well-pleaded factual allegations," the Court must "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. In considering a motion to dismiss, the Court must "construe the complaint in a light most favorable" to the plaintiff. Lambert , 517 F.3d at 439.
GM customers could conceivably attempt to bring suit against GM and Bosch for noncompliance with EPA emission standards. And there can be no doubt that such a suit would be preempted. See Engine Mfrs. Ass'n , 541 U.S. at 255, 124 S.Ct. 1756.11 But construing this complaint in a light most favorable to Plaintiffs, Plaintiffs claims can be interpreted differently. A careful parsing of Defendants' syllogism reveals several mistaken premises.
i.
First, Defendants emphasize that Plaintiffs' claims "rest exclusively on the presence of an 'illegal' 'defeat device.' " GM Mot. Dismiss at 19. By that assertion, Defendants mean that the complaint "alleges only one type of defeat device, i.e. one whose purpose is to defeat EPA certification testing and evade federal emissions standards." Id. at 20. Thus, Defendants believe Plaintiffs' claims will require proof that the Duramax engine includes a " 'defeat device' as defined by the EPA ." Id. (emphasis added). That is not the definition given by Plaintiffs in the consolidated amended complaint. According to Plaintiffs, "[a] defeat device means an auxiliary emissions control device that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use." Con. Am. Compl. at 2.12
It is undoubtedly true that the consolidated amended complaint includes references to EPA standards, emissions testing, and Plaintiffs' belief that the vehicles at issue violate EPA regulations. See, e.g., id. at 2, 3, 6. But Plaintiffs can prevail on *1061their claims without proving the existence of a "defeat device" as that term is defined by the EPA. Plaintiffs' fraudulent concealment and consumer protection claims are premised on the following assertions:
A reasonable consumer would not expect their Silverado or Sierra vehicle to spew unmitigated NOx in this fashion while driving in the city or on the highway, nor would a reasonable consumer expect that fuel economy was achieved in part by turning off or derating the emission systems, nor would a reasonable consumer expect that if the emissions were as promised the advertised fuel economy and performance could not be achieved....GM never disclosed to consumers that the Polluting Vehicles may be "clean" diesels in very limited circumstances but are "dirty" diesels under most driving conditions. GM never disclosed to consumers that it programs its emissions systems to work only under certain conditions. GM never disclosed that it prioritizes engine power and profits over the environment. GM never disclosed that the Polluting Vehicles' emissions materially exceed the emissions from gasoline-powered vehicles, that the emissions exceed what a reasonable consumer would expect from a "low emissions" vehicle, and that the emissions materially exceed applicable emissions limits in real-world driving conditions.
Id. at 8, 9-10.
None of these allegations, with the exception of the very last phrase,13 will require proof that the Duramax engine contains a "defeat device" which violates EPA standards. To the contrary, Plaintiffs' fraudulent concealment and consumer protection claims are focused on whether Defendants fraudulently concealed information regarding the operation of the Duramax engine's emissions technology which would have been material to a reasonable consumer. Thus, Plaintiffs will be required to prove that the Duramax engine contains a component which "derates" emissions reduction technology and thus increases emissions to a level that a reasonable consumer would not anticipate and would consider material to his or her purchase decision. But Plaintiffs will not be required to prove that the engine component which is the source of the harm meets the EPA's definition of an illegal defeat device.14
ii.
Second, Defendants assert that Plaintiffs are asking the Court to "declare the EPA's existing compliance determination invalid-and any such effort is an affront to the EPA's exclusive jurisdiction." GM Mot. Dismiss at 22 (emphasis in *1062original). Just like Plaintiffs can prevail without demonstrating the existence of a "defeat device" that is illegal under EPA regulations, Plaintiffs can prevail without showing that the subject vehicles violate EPA regulations. The gravamen of their state law claims is that they purchased a vehicle which polluted at levels far greater than a reasonable consumer would expect. In other words, the vehicle operated differently than they expected. And, importantly, Plaintiffs allege that this disparity results from a nondisclosed vehicle component which is inherently deceptive: its alleged purpose is to surreptitiously permit dramatically higher emissions under certain conditions.
On their face, these allegations do not require proof of noncompliance with EPA regulations. In fact, it is conceivably possible that Defendants could simultaneously comply with EPA regulations while still concealing material information from consumers. Defendants' arguments to the contrary are premised on the assumption that consumers only care about compliance with emission standards, not the total level of emissions by a certain vehicle or the different levels of pollution emitted by competing vehicles. But that assumption cannot be true: the significant market for environmentally friendly vehicles-which are designed to emit pollution far below the regulatory maximums-directly contradicts that assertion. As noted above, the advertisements and press releases which GM issued regarding the Duramax engine and subject vehicles repeatedly emphasized the engine's low emissions, but never expressly referenced EPA regulations. In other words, GM's own conduct reveals an understanding that consumers believe emission levels are material to their purchasing decisions separate and apart from the regulatory maximum emission standards. Thus, the allegation that the subject vehicles do not comply with EPA regulations is consistent with Plaintiffs' theory of harm, but proof of noncompliance is not required.15
If Plaintiffs' claims were predicated on proving noncompliance with EPA regulations or with demonstrating that Defendants had defrauded the EPA, they would be preempted. See Jackson , 770 F.Supp.2d at 572 (finding state tort claims advanced by government employees to be preempted because the plaintiffs had abandoned all claims except those expressly based on proving violation of the CAA). Plaintiffs expressly deny that they assert those claims. See Con. Am. Compl. at 5; Pl. Resp. GM Mot. Dismiss at 17. Plaintiffs, not Defendants, are the masters of their complaint. See Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).
iii.
Defendants rely upon a number of cases to support their express preemption argument, but each are distinguishable. For example, Defendants cite a several cases where state governmental entities brought claims against vehicle manufacturers alleging unlawful levels of emissions. See In re Office of Attorney Gen. of State of New York , 269 A.D.2d 1, 11, 709 N.Y.S.2d 1 (2000) (finding the New York attorney general's suit to be preempted by the CAA because "the Attorney General [was] attempting to enforce [federal emission] standards"); In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig. , 264 F.Supp.3d 1040, 1052 (N.D. Cal. 2017) (finding Wyoming's suit to be preempted because Wyoming was attempting to enforce a state regulation which *1063prohibited "installing a defeat device in a vehicle prior to registration"). Such suits involved transparent attempts by state governmental entities to establish supplementary emission regulations or enforce existing regulations. Here, Plaintiffs are suing for consumer fraud premised on the allegation that Defendants did not disclose certain aspects of how the subject vehicles operated. The allegations involve the level of emissions, but do not require proof that federal emission regulations were violated.
Defendants also cite Jackson v. General Motors Corp. , 770 F.Supp.2d 570. Jackson involved government employees bringing suit alleging common law tort claims. Thus, Jackson did not involve an attempt by a state to create and enforce emission standards. But the Jackson plaintiffs were alleging "direct violations of EPA standards as a predicate for claims of personal injuries" Felix v. Volkswagen Grp. of Am., Inc. , No. A-0585-16T3, 2017 WL 3013080, at *5 (N.J. Super. Ct. App. Div. July 17, 2017) (distinguishing Jackson ). See also Jackson , 770 F.Supp.2d at 577 ("Plaintiffs' negligence claims regarding Defendants' compliance with CAA emissions standards" are "squarely" preempted).
In other words, Defendants rely upon cases where the claims depended upon direct proof of noncompliance with federal emission regulations. Plaintiffs, on the other hand, are bringing consumer protection and fraudulent concealment claims which do not require direct proof of noncompliance. None of the courts which have considered such claims have concluded that they are preempted. See Felix v. Volkswagen Grp. of Am., Inc. , No. A-0585-16T3, 2017 WL 3013080, at *6 (N.J. Super. Ct. App. Div. July 17, 2017) ("[T]he gravamen of plaintiffs' complaint centers on VW's alleged deceitful, fraudulent practices, and its alleged breach of a duty not to mislead consumers."); Counts v. Gen. Motors , LLC, 237 F.Supp.3d 572, 592 (E.D. Mich. 2017) (holding that "a suit by private consumers who allege that a vehicle manufacturer misrepresented the functionality and effectiveness of certain technology" is not preempted by the CAA); In re Volkswagen "Clean Diesel" Litigation , 2016 WL 5347198 at *6 (Va.Cir.Ct. 2016) ("Because Plaintiffs' fraud and VCPA claims are based on alleged misrepresentations that do not rely on or seek to enforce any emissions standards, and because they will not interfere with any significant CAA regulatory objective," they are not preempted.). See also In re Caterpillar, Inc., C13 & C15 Engine Prod. Liab. Litig. , No. 1:14-CV-3722 JBS-JS, 2015 WL 4591236, at *11 (D.N.J. July 29, 2015) ("Plaintiffs' claims which seek enforcement of express and implied warranties for defects in the Engines' emissions systems, as well as those based on consumer fraud and negligent design, are hardly comparable to efforts by state and local governments to adopt or enforce emissions standards or to require additional certifications or inspections prior to sale.").
3.
Because Plaintiffs' claims are not expressly preempted, the next question is whether they are implicitly preempted. As explained above, there are two types of implied preemption. The first, field preemption, occurs where federal regulations are so expansive that Congress has left no room for supplemental state regulation. Defendants do not advance a field preemption argument. And because the CAA includes a "savings clause" wherein Congress expressly confirms that states retain the ability to regulate "the use, operation, or movement" of motor vehicles, that decision was reasonable. § 7543(d). See also Geier v. Am. Honda Motor Co. , 529 U.S. 861, 868, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000).
*1064The second kind of implied preemption-conflict preemption-comes in two varieties. First, conflict preemption exists when compliance with both federal and state requirements is physically impossible. Gade , 505 U.S. at 98, 112 S.Ct. 2374. GM does not advance that argument. Second, conflict preemption exists when state law would operate as an obstacle to "the accomplishment and execution of the full purposes and objectives of Congress." Id. (internal citations omitted). GM argues that Plaintiffs' claims represent an obstacle to Congress's purpose and objectives in enacting the CAA.
Specifically, GM argues that "[t]o the extent that Plaintiffs' claims are based on GM's failure to publically disclose (or only partially disclose) specific aspects of its AECDs, these claims are preempted" because "the EPA has already decided what should and should not be disclosed to the public with respect to emissions controls" and thus "the EPA has decided that [this information] may remain confidential." GM Mot. Dismiss at 24-27.
The question raised by GM's argument is whether Congress intended the CAA (or EPA) to regulate the scope of vehicle manufacturer's disclosure obligations to consumers. GM has provided no legal authority to support the proposition that the CAA and/or the EPA is responsible for determining the extent to which vehicle manufacturers must disclose information about the emissions produced by their cars to consumers. The EPA is tasked with environmental protection, not consumer protection. Defendants have not provided "any basis to conclude, that a significant federal regulatory goal of the CAA is consumer protection from false advertising claims regarding emissions compliance, vehicle efficiency, or implementation of new emissions technology." In re Volkswagen "Clean Diesel" Litigation , 2016 WL 5347198 at *6. See also In re Caterpillar, Inc., C13 & C15 Engine Prod. Liab. Litig. , No. 1:14-CV-3722 JBS-JS, 2015 WL 4591236, at *11, *14 (D.N.J. July 29, 2015) (finding that consumer fraud and negligent design claims were not implicitly preempted by the CAA because the claims were not premised on proof that the engines were noncompliant with EPA standards).
It is undoubtedly true, as Defendants argue, that the EPA requires vehicle manufacturers to provide extensive disclosures to the EPA so that it may determine emissions compliance. And the EPA has further concluded that some of those disclosures will not be made public record by the agency. See, e.g. , EPA Class Determination 1-13, ECF No. 45, Ex. 2. Defendants reference a document produced by the EPA which explains that the EPA will not produce information under the Freedom of Information Act if the requested information involves confidential trade secrets. Id. at 2. GM appears to argue that because the EPA does not have a legal duty to disclose certain information to the public, GM does not have a duty to disclose that information to the public. Simply put, the EPA's duty to disclose information to the public is entirely untethered from GM's duty to disclose information to the public. The idea that the EPA's interpretation of its obligations under the Freedom of Information Act has any bearing on Defendants' obligations to disclose material information to consumers simply has no merit.16 There is no risk that Plaintiffs' claims will interfere or undermine the purposes and objectives of Congress in passing *1065the CAA, and so Plaintiffs' claims are not implicitly preempted.
B.
Defendants argue that, even if Plaintiffs' claims are not preempted, "Plaintiffs have not plausibly pled that there is any kind of 'defeat device' other than the kind used to defeat EPA regulations that would be material to a reasonable consumers." GM Mot. Dismiss at 28 (emphasis in original). In other words, "[w]hile it might plausibly be material to a reasonable consumer that [the level of emissions allegedly revealed by Plaintiffs' testing] does not comply with EPA regulations, it is not plausible that a reasonable consumer would care about those numbers outside the context of EPA regulations." Id.
This is an argument for a jury. In essence, GM is arguing that consumers care only about compliance with EPA regulations, as opposed to the true level of emissions. That assertion might be true for some consumers, but it cannot possibly be generally accepted as true as a matter of law. Plaintiffs allege that there is a significant consumer demand for environmentally friendly vehicles. See Con. Am. Compl. at 5. And that fact is common knowledge. Many of these vehicles, like the Toyota Prius, emit pollution far below the regulatory maximums. If consumers only cared about regulatory compliance and not the quantitative level of emissions, then vehicle manufacturers would focus their advertising on regulatory compliance, not environmental friendliness. But as already noted twice, Plaintiffs have summarized or reproduced over ten pages of GM advertisements and press releases where the company repeatedly touts the low emissions and environmentally friendly nature of the Duramax engine, but never expressly states that the engine complies with emission regulations. That fact goes without saying: all consumers naturally expect their vehicles to be compliant. Consumers who purposefully buy a "green" vehicle, then, must be (at least partially) basing their purchase decision on the technology in the vehicle which reduces emissions far below that maximum level. Plaintiffs allege that the subject vehicles operate with significant portions of its emissions reduction technology inactive for 65 to 70% of the miles driven. Id. at 3. It is very plausible that a consumer who bought a vehicle because it purportedly contained advanced emissions reduction technology would consider that fact to be material. Id. at 3.17
C.
Finally, Defendants argue that this case should be stayed pursuant to the primary jurisdiction doctrine in favor of an EPA investigation. "The doctrine of primary jurisdiction arises when a claim is properly cognizable in court but contains some issue within the special competence of an administrative agency." United States v. Haun , 124 F.3d 745, 749 (6th Cir. 1997). When the doctrine is invoked, the court proceedings are stayed so that the parties may refer the matter to the administrative agency. Id. However, the doctrine is not subject to a "ready formula" for application. Id. Relevant factors include *1066" 'the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions' " and " 'the expert and specialized knowledge of the agencies involved.' " In re Long Distance Telecommunications Litig. , 831 F.2d 627, 630 (6th Cir. 1987) (quoting United States v. Western Pacific Railroad Co. , 352 U.S. 59, 63-65, 77 S.Ct. 161, 164, 1 L.Ed.2d 126 (1956) ).
Neither factor supports a stay here. The Court has already explained why Plaintiffs' claims are not premised on proof that the Duramax engine involves an "illegal" defeat device or is noncompliant with EPA regulations. Accordingly, the factual questions raised by Plaintiffs' suit are only tangentially within the EPA's specialty. See In re Ford Fusion & C-Max Fuel Econ. Litig. , No. 13-MD-2450 KMK, 2015 WL 7018369, at *30 (S.D.N.Y. Nov. 12, 2015) ("While Defendant is correct that Plaintiffs' claims relate to the accuracy of EPA-estimated fuel economy (and perhaps suggest deficiencies in the current estimation formula), the question of whether the advertisements related to such information were misleading is a question conventionally left to the courts to answer."). Because the EPA has no regulatory responsibility regarding Defendants' disclosures to consumers, there is no risk of regulatory inconsistency. The EPA undoubtedly possesses specialized expertise regarding emissions testing and the operation of defeat devices. But, as this Court explained in Counts , "federal courts must frequently adjudicate disputes involving complicated technical claims, particularly in the field of products liability. Simply put, mere technical complexity is not a 'compelling and legitimate' reason for a federal court to decline jurisdiction." 237 F.Supp.3d at 593 (internal citations omitted).
Additionally, the primary jurisdiction doctrine should not be invoked if "no administrative forum is available." Haun , 124 F.3d at 750. The EPA has no authority to redress consumer grievances regarding the operation of emissions technology in vehicles it certifies, and thus Plaintiffs have no administrative forum for their claims. Similarly, the EPA has no authority to remedy Plaintiffs' alleged financial damages. See id. (noting that the "exclusive means" by which the government could "collect a monetary penalty" against the defendants was through a civil action in the district court). See also Counts , 237 F.Supp.3d at 593. The primary jurisdiction doctrine is inapplicable here.
V.
Defendants also seek dismissal of Plaintiffs' RICO claim, which is contained in the first count in the consolidated amended complaint. In Plaintiffs' words,
For many years now, the RICO Defendants have aggressively sought to increase the sales of Polluting Vehicles in an effort to bolster revenue, augment profits, and increase GM's share of the diesel truck market. Finding it impossible to achieve their goals lawfully, however, the RICO Defendants resorted instead to orchestrating a fraudulent scheme and conspiracy. In particular, the RICO Defendants, along with other entities and individuals, created and/or participated in the affairs of an illegal enterprise ("Clean Diesel Fraud Enterprise") whose direct purpose was to deceive the regulators and the public into believing the Polluting Vehicles were "clean" and "environmentally friendly."
Con. Am. Compl. at 128-29.
The Racketeer Influenced and Corrupt Organizations Act establishes bases for both criminal and civil suits. A RICO civil suit may be brought by "[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter." 18 U.S.C. § 1964(c). Section *10671962 provides that: "It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." Id. at § 1962(c). In other words, a party advancing a civil RICO claim must establish their right to sue and then further allege the following elements: " '(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.' " Heinrich v. Waiting Angels Adoption Servs., Inc. , 668 F.3d 393, 404 (6th Cir. 2012) (quoting Sedima, S.P.R.L. v. Imrex Co. , 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) ).
Defendants argue both that Plaintiffs have not established their standing to bring a civil RICO suit and also that Plaintiffs have not adequately alleged the prima facie elements of a RICO claim. GM additionally argues that the RICO claim is an improper attempt to enforce the provisions of the Clean Air Act ("CAA"), violations of which may be prosecuted exclusively pursuant the CAA.
A.
Plaintiffs may assert a RICO claim only if they can identify an injury to their "business or property by reason of a violation of section 1962." 18 U.S.C. § 1964(c). In so limiting the scope of RICO standing, Congress exhibited an intention to exclude "personal injury-that is, an injury 'to a person, such as a broken bone, a cut, or a bruise' or a 'bodily injury.' " Jackson v. Sedgwick Claims Mgmt. Servs., Inc. , 731 F.3d 556, 564 (6th Cir. 2013) (quoting Black's Law Dictionary 857 (9th ed. 2009) ). Similarly, a RICO injury must be concrete, not intangible or speculative. See Saro v. Brown, 11 Fed.Appx. 387, 389 (6th Cir. 2001). See also Fleischhauer v. Feltner , 879 F.2d 1290, 1299 (6th Cir. 1989) (explaining that RICO plaintiffs must identify a "reasonable and principled basis of recovery" which is "not based upon mere speculation and surmise"); Short v. Janssen Pharm., Inc. , No. 1:14-CV-1025, 2015 WL 2201713, at *3 (W.D. Mich. May 11, 2015) ("Short must, at a minimum, show some direct, pecuniary injury to his own pocket that is unrelated to the claimed personal injury.").
In Reiter v. Sonotone Corp. , the Supreme Court interpreted § 4 of the Clayton Act, which authorizes "[a]ny person who shall be injured in his business or property" by reason of an antitrust law violation to bring suit. 442 U.S. 330, 337, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979). The Supreme Court held that "where petitioner alleges a wrongful deprivation of her money because the price of the hearing aid she bought was artificially inflated by reason of respondents' anticompetitive conduct, she has alleged an injury in her 'property' under § 4." Id. at 342, 99 S.Ct. 2326. That holding did not involve the RICO statute, but the Sixth Circuit has held that " Reiter 's common-sense observation about § 4 applies with equal logical force to § 1964(c)." Jackson , 731 F.3d at 564.18
1.
Plaintiffs' alleged injury appears to be analogous: the price of the vehicles they bought was "artificially inflated by reason of [Defendants' fraudulent scheme]."
*1068Reiter , 442 U.S. at 342, 99 S.Ct. 2326. Defendants argue, however, that "this supposed 'injury' is purely speculative" and that other Courts have refused to recognize RICO injuries involving similar "overpayment" theories. GM Mot. Dismiss at 35.
Defendants argue that In re Bridgestone/Firestone, Inc. Tires Prod. Liab. Litig. supports their interpretation of the RICO injury requirement. 155 F.Supp.2d 1069, 1089 (S.D. Ind. 2001), rev'd on other grounds In re Bridgestone/Firestone, Inc. , 288 F.3d 1012 (7th Cir. 2002). In Bridgestone , the plaintiffs asserted a RICO claim against Bridgestone/Firestone Inc. arising out of an alleged defect in a particular brand of radial tires that caused "the Tires to have 'an unreasonably dangerous propensity to suffer complete or substantial tread separation.' " Id. at 1077 (quoting Complaint, ¶ 4). The plaintiffs alleged they sustained RICO injuries because they would be forced to "bear the financial loss associated with the cost of the replacing the Tires," their vehicles were less valuable because the safety risks of the tires was now known, and because consumers would have paid less for the Tires if the safety risks were known. Id. at 1089 (internal citations omitted). Importantly, the alleged injury was not that the plaintiffs had been forced to replace their tires, nor that the Plaintiffs had experienced actual tire failure, nor even that any plaintiff had "incurred an actual monetary loss as a result of...selling or attempting to sell" the tires. Id. at 1090.
The district court concluded that these alleged injuries were speculative and contingent on future events:
Plaintiffs' assertion of financial loss is grounded in the possibility of future events that may cause them to suffer the loss associated with the products they claim are defective or diminished in value: the tires that they have unilaterally replaced or may replace in the future may suffer tread separation; they may receive on trade-in or resale of their Explorers (or other vehicles equipped with the Tires) less than they would have received absent the alleged defects.
Id. at 1091.
In other words, "[t]he actual failure of the Tires...is a contingency upon which Plaintiffs' economic damages are dependent." Id. at 1092. The Bridgestone Court provided a guiding principle for determining if a cognizable RICO injury has been asserted: an injury arises "as a result of a purchase only where the diminished value of the plaintiff's property has actually been realized or when the alleged infirmity in the purchased property has otherwise tangibly manifested itself." Id. at 1094 (emphasis added).
In re: Gen. Motors LLC Ignition Switch Litig. is also instructive. No. 14-MC-2543 (JMF), 2016 WL 3920353, at *16 (S.D.N.Y. July 15, 2016). That multidistrict litigation involved allegations that GM had manufactured vehicles with a defective ignition switch. Id. at *1. The plaintiffs advanced a RICO claim. The district court described their theory of injury as a "benefit-of-the-bargain" defect theory and summarized it as follows: "Plaintiffs who purchased defective cars were injured when they purchased for x dollars a New GM car that contained a latent defect; had they known about the defect, they would have paid fewer than x dollars for the car (or not bought the car at all), because a car with a safety defect is worth less than a car without a safety defect." Id. at *7. The district court held that such a theory was insufficient to create RICO standing: " 'loss of value' or 'benefit of the bargain' damages 'are generally unavailable in RICO suits' and 'plainly' unavailable where (similar to the case here) a RICO claim 'sound[s] in fraud in the inducement.' " Id. at *16 *1069(quoting McLaughlin v. Am. Tobacco Co. , 522 F.3d 215, 228-29 (2d Cir. 2008) ).
McLaughlin addresses the distinction between out-of-pocket-losses (which are cognizable RICO injuries) and benefit-of-the-bargain and price impact damages theories, which are not (because both are expectation-based). That class action case centered on the allegation that the defendant tobacco companies had fraudulently marketed "light cigarettes" as healthier than "full-flavored" cigarettes. 522 F.3d at 220. The Second Circuit explained that, to "establish the requisite injury under civil RICO," the plaintiffs must show that they "paid more for light cigarettes than they would have but for defendants' misrepresentations." Id. at 227. The plaintiffs attempted to meet that burden by providing a "loss of value" model which purported "to measure the difference between the price plaintiffs paid for light cigarettes as represented by defendants and the (presumably lower) price they would have paid (but for defendants' misrepresentation) had they known the truth." Id. at 228.
The Second Circuit held that this expectation-based theory was essentially based on a "benefit-of-the-bargain" rationale and that such damages are generally unavailable in RICO suits. Id. The court emphasized that "Defendants' misrepresentation could in no way have reduced the value of the cigarettes that plaintiffs actually purchased; they simply could have induced plaintiffs to buy Lights instead of full-flavored cigarettes." Id. at 229. Additionally, there was "no reasonable means of calculating" such damages. Id. Doing so would require the court to "conceptualize the impossible-a healthy cigarette-and then to imagine what a consumer might have paid for such a thing." Id. The plaintiffs alternatively advanced a "price impact" theory based on a "multiple regression analysis" which plaintiffs suggested showed "the amount by which defendants would have had to reduce their prices to account for the concomitant reduced demand." Id. The Second Circuit likewise rejected that theory, explaining that "plaintiffs have not come forward with any meaningful means of estimating how the market has changed or might change in the future in response to fluctuations in the demand for light cigarettes." Id. The Second Circuit did acknowledge that some plaintiffs likely suffered "out-of-pocket" damages arising out of the misrepresentations, but held that "out-of-pocket losses cannot be shown by common evidence because they constitute an inherently individual inquiry: individual smokers would have incurred different losses depending on what they would have opted to do, but for defendants' misrepresentation." Id. at 228.
Several Sixth Circuit cases also provide guidance. In Hofstetter v. Fletcher , the RICO defendants "sold millions of dollars worth of insurance policies to scores of individual clients throughout the country by means of a fraudulent promotion whereby the defendants falsely represented that the potential investors could completely avoid payment of any future federal income taxes." 860 F.2d 1079, 1988 WL 107371 (6th Cir. 1988). That alleged injury-the payment for the insurance policy premised on representations that were demonstrably false at time of payment-was sufficient to establish RICO standing.
In contrast, the plaintiffs in Fleischhauer v. Feltner brought a RICO claim arising out of the defendants' sale of "non-theatrical rights to distribution of 23 full length feature motion pictures." 879 F.2d 1290, 1292 (6th Cir. 1989). The defendants allegedly knew that the films in question "were not marketable either because they were unauthorized copies or because unauthorized copies were readily available." Id. at 1294. The defendants marketed the movie rights as providing "both income *1070and tax advantage[s]," but also "advised interested parties that there was a significant chance that the purchaser would be audited by the Internal Revenue Service." Id. at 1293. The defendants argued that the plaintiffs' damages should be "confined to the amount appellees paid in down payments," but the jury awarded significantly more than that amount. On appeal, the Sixth Circuit held that "plaintiffs' damages should be limited to the amounts actually invested," and not "expectancy or 'benefit of the bargain' damages" based on purported lost profits or expenses arising out of IRS audits. Id. at 1300. The Sixth Circuit reasoned that "[t]here was ample warning about risks involved, particularly tax hazards, therefore expectancy damages are not recoverable under these circumstances." Id. See also id. (Although in some cases expectancy damages might be appropriate, clearly they are not in this case.").
2.
To summarize, courts have generally held that damages theories premised on the expectation of future value or profits are too speculative and contingent to establish injury for purposes of RICO. However, "courts have recognized expectation damages under RICO...where an agreement between the parties provided for a certain performance guarantee that the defendant had no intention of keeping." Ignition Switch Litigation , 2016 WL 3920353 at 17 (collecting several cases). And courts have similarly found that, when the financial injury occurred at the time of payment , a cognizable out of pocket loss has been sustained. See Bridgestone , 155 F.Supp.2d at 1094. For example, in Bailey v. Atl. Auto. Corp. , the RICO plaintiff advanced a cognizable injury because the defendants sold "former short term rental vehicles to consumers without disclosing the vehicles' history," resulting in the plaintiff being overcharged. 992 F.Supp.2d 560, 579 (D. Md. 2014). The district court distinguished cases, like Bridgestone , where the alleged overpayment damages were premised on the manifestation of some defect in the future: "Bailey contends that she suffered the claimed loss at the moment of purchase in reliance upon the false representation that she was not buying a former short-term rental vehicle." Id. at 581 (emphasis added).
There are a number of analogous cases. See In re Merrill Lynch Ltd. Partnerships Litig. , 154 F.3d 56, 59 (2d Cir. 1998) ("[I]nvestors allege that the partnerships were fraudulent at the outset because they could never achieve the promised objectives....[T]he investors sustained recoverable out-of-pocket losses when they invested; namely, the difference between the value of the security they were promised and the one they received which could not meet those objectives."); Ellis v. J.P. Morgan Chase & Co. , 950 F.Supp.2d 1062, 1086 (N.D. Cal. 2013) ("Plaintiffs allege they have paid marked-up fees and thus satisfy RICO standing. A consumer who has been overcharged can claim injury to property under RICO based on a wrongful deprivation of money, which is a form of property."); Stitt v. Citibank , N.A., 942 F.Supp.2d 944, 954 (N.D. Cal. 2013) (identifying a cognizable RICO injury when the plaintiffs were "overcharged" marked-up fees related to mortgage loan servicing even if the "total fees assessed fell within market range" because the plaintiffs alleged that they "would not have paid the fees but for Defendants' deception").
In other words, a distinction must be made between damages theories where the (ascertainable and reasonably quantifiable) overpayment occurred at the time of injury and speculative damages theories which are contingent on some future event, lost profit, or unanticipated future expense. Thus, a RICO plaintiff may recover *1071for money invested on the basis of misrepresentations, but not for loss of the profits which the plaintiffs expected to receive from that investment. See Fleischhauer , 879 F.2d at 1300. Likewise, a RICO plaintiff may recover for overpayment when they buy a used car after being told it was new, see Bailey , 992 F.Supp.2d at 579, but may not recover for overpayment simply because the tires they purchased may be defective, see Bridgestone , 155 F.Supp.2d at 1095. A RICO plaintiff may recover money paid pursuant to insurance policies that plaintiffs chose because "the defendants falsely represented that the potential investors could completely avoid payment of any future federal income taxes," see Hofstetter , 860 F.2d 1079, 1988 WL 107371, at *6, but cannot recover for loans granted to debtors based upon misrepresentations by the debtors because the plaintiffs would suffer damages only if the debtors defaulted (and because the amount of damages was speculative until the creditor's bargained for remedies were exhausted), see First Nationwide Bank v. Gelt Funding Corp. , 27 F.3d 763, 768 (2d Cir. 1994).
Plaintiffs allege both speculative and nonspeculative damages here. Some of Plaintiffs' alleged damages are clearly speculative. For example, they allege that "when and if GM recalls the Polluting Vehicles and degrades the GM Clean Diesel engine performance and fuel efficiency in order to make the Polluting Vehicles compliant with EPA standards, Plaintiffs and Class members will be required to spend additional sums on fuel and will not obtain the performance characteristics of their vehicles when purchased." Con. Am. Compl. at 117. Likewise, Plaintiffs allege that "Polluting Vehicles will necessarily be worth less in the marketplace because of their decrease in performance and efficiency and increased wear on their cars' engines." Id. Those damages are contingent on future, uncertain developments. Because those injuries may never occur and are thus currently unmeasurable, they cannot give rise to RICO standing. See Gelt Funding Corp. , 27 F.3d at 768 ("[A]s a general rule, a cause of action does not accrue under RICO until the amount of damages becomes clear and definite.").
Plaintiffs additionally allege that "[h]ad Plaintiffs and Class members known of the higher emissions at the time they purchased or leased their Polluting Vehicles, they would not have purchased or leased those vehicles, or would have paid substantially less for the vehicles than they did." Con. Am. Compl. at 117. This alleged injury straddles the line between speculative and concrete. Consumers weigh many factors in choosing a vehicle. While emissions are undoubtedly one such factor, the assertion that the unexpectedly high emissions would have been a material factor for all the Plaintiffs is questionable. Accepting all well-pleaded allegations as true, Plaintiffs have alleged that they would not have purchased the vehicles in question had they known of the true emissions level. Fair enough. But the contention that they "would have paid substantially less" appears to be premised on some approximation of what the new market value for the vehicles would have been. Determining what that decrease in value would have been seems hopelessly speculative. See McLaughlin , 522 F.3d at 229 ("We are asked to conceptualize the impossible-a healthy cigarette-and then to imagine what a consumer might have paid for such a thing.").
However, Plaintiffs' first alleged injury clearly suffices to create RICO standing. Plaintiffs contend that they "paid a premium of nearly $9,000, as GM charged more for its Duramax engine than a comparable gas car." Con. Am. Compl. at 115. Plaintiffs thus identify a specific payment attributable directly to the vehicle component at issue which they opted to purchase *1072on the basis of fraudulent conduct. This is cognizable out-of-pocket injury: "[T]he price of the [Duramax engine-equipped vehicle which Plaintiffs] bought was artificially inflated by reason of [Defendants' fraudulent] conduct." Reiter , 442 U.S. at 342, 99 S.Ct. 2326. See also Jackson , 731 F.3d at 564 ; Canyon Cty. v. Syngenta Seeds, Inc. , 519 F.3d 969, 976 (9th Cir. 2008). Accepting Plaintiffs' allegations as true, the fraud (and thus overcharge) occurred at the time the purchase was made . See Bailey , 992 F.Supp.2d at 579. Unlike in Bridgestone (where only some tires exhibited the defect), the alleged injury occurred every time a Duramax vehicle was purchased. The amount by which Plaintiffs overpaid is not contingent on a future occurrence or on the vagaries of the free market. It occurred and became determinable at the moment the Plaintiffs paid a premium for a vehicle component which did not work as had been represented. Plaintiffs experienced a financial property loss at that moment, which distinguishes the present case from others where the overpayment or diminution in value had not yet occurred. Compare Bridgestone , 155 F.Supp.2d at 1093 & n.26 ; Gelt , 27 F.3d at 769, with Bailey , 992 F.Supp.2d at 580-81. This is a cognizable RICO injury.
Admittedly, several cases appear to support the opposite conclusion. The Ignition Switch Litigation opinion does suggest that a plaintiff who purchases a defective car for more than they would have paid if they were aware of a defect does not state a RICO injury. 2016 WL 3920353 at *7. But the district court also recognized that "courts have recognized expectation damages under RICO...where an agreement between the parties provided for a certain performance guarantee that the defendant had no intention of keeping." Id. at *17. The district court distinguished the present claim because plaintiffs had "at best" alleged an implied promise that GM-brand vehicles would have "continuing resale value." Id. Resale value and brand devaluation theories are clearly speculative. But, here, GM allegedly sold Duramax vehicles, for a premium, which did not perform as a reasonable consumer would expect. In other words, Defendants had no intention of delivering the emissions performance which consumers expected.
More importantly, the Ignition Switch Litigation opinion relies heavily upon the Second Circuit's opinion in McLaughlin , but appears to overlook a crucial aspect of that opinion. In McLaughlin , the Second Circuit was reviewing a district court decision to certify a class action advancing a RICO claim. The court explained that "[o]nly by showing that plaintiffs paid more for light cigarettes than they would have but for defendants' misrepresentation can plaintiffs establish the requisite injury under civil RICO." McLaughlin v. Am. Tobacco Co. , 522 F.3d 215, 227 (2d Cir. 2008). The Second Circuit concluded that such out of pocket losses existed, but that they "cannot be shown by common evidence because they constitute an inherently individual inquiry: individual smokers would have incurred different losses depending on what they would have opted to do, but for defendants' misrepresentation." Id. at 228.19 The plaintiffs' alternative damages theories (which the Second Circuit rejected, providing the basis for the decision in the Ignition Switch Litigation ) were premised on market demand theories that, because of the confluence of factors involved, were too speculative to support a RICO claim. See id. at 226-28. Tri-State Express, Inc. v. Cummins Engine Co. , 2000 U.S. Dist. LEXIS 23564, despite its factual similarities to the present case, is *1073distinguishable for the same reason: those plaintiffs relied upon "only the potential for harm," while the present case involves Plaintiffs who paid a premium for a vehicle component which did not provide the benefits paid for. Id. at *18.
To the extent the rationale in Ignition Switch Litigation and Tri-State Express cannot be squared with the conclusion that Plaintiffs have alleged a RICO injury, the Court declines to follow their reasoning. Indeed, such a reading of those two cases appears to be incompatible with the Supreme Court's conclusions in Reiter and the Sixth Circuit's decision in Hofstetter .
B.
Bosch argues that, even if Plaintiffs' alleged injury is sufficient to confer standing to bring a RICO claim against GM, they have not alleged that their injuries were proximately caused by Bosch's conduct. The RICO proximate causation analysis is closely related to (even subsumed in) the statutory standing analysis. The Supreme Court has "held that a plaintiff's right to sue...required a showing that the defendant's violation not only was a 'but for' cause of his injury, but was the proximate cause as well." Holmes , 503 U.S. at 268, 112 S.Ct. 1311. The plaintiff must show "some direct relation between the injury asserted and the injurious conduct alleged." Id. Importantly, the causation inquiry must focus on the alleged link between the "predicate acts" and the asserted injury. Heinrich v. Waiting Angels Adoption Servs., Inc. , 668 F.3d 393, 405 (6th Cir. 2012). A purported link that is "too remote," "purely contingent," or "indirect" is insufficient to confer standing. Holmes , 503 U.S. at 271, 274, 112 S.Ct. 1311. According to the Supreme Court, " '[t]he general tendency of the law, in regard to damages at least, is not to go beyond the first step.' " Id. (quoting Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters , 459 U.S. 519, 534, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) ). An attenuated causation theory creates difficulties in apportioning damages between plaintiffs and attributing damages to defendants. See id. at 273, 112 S.Ct. 1311. A challenge to a RICO suit based on asserted lack of proximate causation, however, is often best resolved at summary judgment, not at the pleading stage. See Trollinger v. Tyson Foods, Inc. , 370 F.3d 602, 615 (6th Cir. 2004).
In Holmes , a "Securities Investor Protection Corporation" (SIPC) brought suit against defendants who allegedly "conspired in a stock-manipulation scheme." Id. at 261, 112 S.Ct. 1311. After the scheme was detected, stock prices plummeted and a number of broker-dealers were unable to meet their financial obligations to customers. The SIPC, accordingly, was required to advance nearly $13 million to cover the customer claims. The SIPC then brought a RICO claim against the defendants to recoup its losses. That relationship, according to the Supreme Court, was too attenuated to create standing: "the conspirators have allegedly injured these customers only insofar as the stock manipulation first injured the broker-dealers and left them without the wherewithal to pay customers' claims." Id. at 271, 112 S.Ct. 1311. In other words, "[t]he broker-dealers simply cannot pay their bills, and only that intervening insolvency connects the conspirators' acts to the losses suffered by the nonpurchasing customers and general creditors." Id.
In Hemi Grp., LLC v. City of New York, N.Y. , the Supreme Court rejected another RICO claim because the plaintiff's causal theory was even more attenuated than in Holmes . The City of New York advanced the following causal theory:
Hemi committed fraud by selling cigarettes to city residents and failing to submit the required customer information to the State. Without the reports *1074from Hemi, the State could not pass on the information to the City, even if it had been so inclined. Some of the customers legally obligated to pay the cigarette tax to the City failed to do so. Because the City did not receive the customer information, the City could not determine which customers had failed to pay the tax. The City thus could not pursue those customers for payment. The City thereby was injured in the amount of the portion of back taxes that were never collected.
559 U.S. 1, 9, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010).
The Supreme Court held that this relationship was too attenuated. The Court explained: "The City's theory thus requires that we extend RICO liability to situations where the defendant's fraud on the third party (the State) has made it easier for a fourth party (the taxpayer) to cause harm to the plaintiff (the City)." Id. at 11, 130 S.Ct. 983.20 In holding that this proximate causation theory was insufficient, the Supreme Court relied in part upon the fact that "[t]he State certainly is better situated than the City to seek recovery from Hemi." Id. at 12, 130 S.Ct. 983. In other words, when there are other, "better situated plaintiffs [which] have an incentive to sue," the "RICO 'direct relationship' requirement" may not be met. Id. at 11-12, 130 S.Ct. 983.
Plaintiffs allege that the direct relationship between Bosch's predicate acts and their injury is "plain-Bosch developed the defeat devices that are at the core of this litigation while knowing that GM would sell Affected Vehicles without revealing the existence of those devices to consumers or anyone else and that consumers would buy them." Pl. Res. Bosch Mot. Dismiss at 25. Bosch argues that this theory is insufficient for several reasons.
1.
First, Bosch contends that "Plaintiffs' alleged harms here are premised upon the 'premium' GM charged for the Subject Vehicles, which GM determined alone." Bosch Mot. Dismiss at 26. Because Bosch was not involved in the pricing decisions, Plaintiffs' injury stems from "separate actions carried out by separate parties." Hemi , 559 U.S. at 11, 130 S.Ct. 983 (emphasis omitted). All of the cases Bosch relies upon in support of this argument involve RICO claims where the injuries to Plaintiffs were at least partially attributable to the decisions of third-party entities who were not parties to the suit. See Longmont United Hosp. v. Saint Barnabas Corp. , 305 Fed.Appx. 892, 895 (3d Cir. 2009) (plaintiff hospital suing defendant hospital consortium for increased medicare expenses which were partially traceable to a non-party government agency's decisions regarding reimbursement amounts); Pillsbury, Madison & Sutro v. Lerner , 31 F.3d 924, 930 (9th Cir. 1994) (sub-leasing tenant suing owners of the building with whom it had no contract for their fraudulent scheme to increase the rent paid by the non-party sublessee). Here, the separate party which Bosch identifies is Bosch's alleged coconspirator. Bosch has provided no authority for the proposition that a RICO defendant may avoid liability simply by identifying a separate action by its codefendant which partially contributed to the plaintiff's injury (especially when, as here, the Plaintiffs allege that the RICO Defendants worked together to cause the *1075injury). Such an assertion is facially absurd.
Bosch does argue, correctly, that the proximate causation analysis must be conducted for each defendant in a RICO case. But, when a conspiracy is alleged, it is inevitable that not all of the RICO defendants will be directly involved in every action which injures the plaintiff.21 The mere fact that it may be possible to differentiate between the RICO defendants in terms of culpability does not necessarily prevent a finding that all defendants proximately caused the alleged injury. See Trollinger , 370 F.3d at 620 ("[P]laintiffs need not show that Tyson's conduct was the sole cause of their injury in order to establish proximate cause; they need show only that the conduct was a substantial cause.") (citing Schwartz v. Sun Co. , 276 F.3d 900, 904 (6th Cir.2002) ). This suit does not involve "derivative or passed-on harm": all entities which conceivably contributed to Plaintiffs' injuries have been joined as parties. Id. (citing Mendoza v. Zirkle Fruit Co. , 301 F.3d 1163 (9th Cir. 2002) ).
2.
Bosch next argues that its alleged conduct was not a substantial factor in causing Plaintiffs' injuries. Specifically, Bosch contends that "Plaintiffs' alleged injury was the result of a host of factors including GM's advertising campaign;...the 'premiums' GM charged based on consumer demand for certain features;...reputation of local dealers; market forces such as competition; and promotional discounts." Bosch Mot. Dismiss at 27. Bosch further argues that Plaintiffs' injuries might be "dependent on GM's ability to provide a fix, if necessary, for the Subject Vehicles." Id. And, finally, Bosch opines that "to the extent Plaintiffs claim that their injury resulted from their reliance on purportedly false ads by GM, that itself breaks any causal link to the Bosch Defendants." Id. at 28.
That final argument is clearly inconsistent with Sixth Circuit (and Supreme Court) precedent. As the Sixth Circuit has recently held, "[a]lthough civil RICO plaintiffs must establish proximate causation, they need not necessarily show that they relied on any misrepresentations." In re ClassicStar Mare Lease Litig. , 727 F.3d 473, 487 (6th Cir. 2013). Rather, "Plaintiffs need only show that the defendants' wrongful conduct was 'a substantial and foreseeable cause' of the injury and the relationship between the wrongful conduct and the injury is 'logical and not speculative.' " Id. (quoting Trollinger , 370 F.3d at 615 ). See also Wallace , 714 F.3d at 420 ("[T]he appropriate inquiry in this case is not whether Wallace actually relied on the allegedly inflated appraisal, but whether the fraudulent scheme furthered by that appraisal proximately caused his financial injuries.").
In Bridge v. Phoenix Bond & Indem. Co. , the Supreme Court addressed, in detail, the question of whether reliance is an element of a RICO cause of action. 553 U.S. 639, 647-659, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008). The Court explained: "Nothing on the face of the relevant statutory *1076provisions imposes such a requirement." Id. at 649, 128 S.Ct. 2131. Likewise, the Court dismissed the argument that "a plaintiff who brings [a RICO claim predicated on mail fraud] must show that it relied on the defendant's misrepresentations in order to establish the requisite element of causation." Id. at 653, 128 S.Ct. 2131. In Bridge , the Supreme Court repeatedly distinguished between common law fraud requirements and RICO-based mail fraud claims. The Supreme Court further explained that, even under general common law fraud principles, the law "does not say that only those who rely on the misrepresentation can suffer a legally cognizable injury." Id. at 656, 128 S.Ct. 2131. Rather, the common law "provides only that the plaintiff's loss must be a foreseeable result of someone's reliance on the misrepresentation." Id. (emphasis in original). In other words, a RICO plaintiff will typically be required to show that "someone relied on the defendant's misrepresentations," but does not need to prove first-party reliance. Id. at 658-59, 128 S.Ct. 2131 (emphasis in original).
In Bridge , the RICO defendants conspired to "fraudulently obtain[ ] a disproportionate share of [tax] liens by violating the Single, Simultaneous Bidder Rule at" Cook County tax lien auctions. Id. at 643, 128 S.Ct. 2131. The RICO plaintiffs alleged that this scheme "deprived them and other bidders of their fair share of liens and the attendant financial benefits." Id. at 644, 128 S.Ct. 2131. The defendants argued that "the alleged representations," their "attestations of compliance with the Single, Simultaneous Bidder Rule," were made to the county and not the plaintiffs. Id. at 648, 128 S.Ct. 2131. The Supreme Court held that the plaintiffs had identified a "sufficiently direct relationship between the defendant's wrongful conduct and the plaintiff's injury" because "[i]t was a foreseeable and natural consequence of petitioner's scheme to obtain more liens for themselves that no other bidders would obtain fewer liens." Id.
For similar reasons, Plaintiffs have plausibly alleged that Bosch's joint activities with GM were a substantial factor contributing to their injury. EDC17 is the means by which Plaintiffs were injured. According to Plaintiffs, Bosch "exerts near-total control" over the customization of EDC17, eliminating the possibility that GM programmed the functionality which enables use of defeat devices without Bosch's knowledge. See Con. Am. Compl. at 94-95. Plaintiffs thus plausibly allege that Bosch developed the vehicle component which has caused Plaintiffs' injury, that Bosch was aware of the deception that component would inevitably contribute to, and that Bosch was aware that consumers would pay a premium for vehicle capabilities that the component would not deliver.22
To repeat, Plaintiffs were financially injured when they paid a premium for a vehicle component which did not work as a reasonable consumer would have expected. GM and Bosch worked closely together to develop that component, and any injury which resulted was a "foreseeable and natural consequence" of their efforts. Bridge , 553 U.S. at 648, 128 S.Ct. 2131. While *1077GM's pricing decisions and market forces might have contributed to the level of damages which Plaintiffs sustained, they were not the source of the injury. Put another way, if the Duramax engine did not include the Bosch-developed EDC17, Plaintiffs would have suffered no injury, even though all the other independent factors Bosch identifies would still exist. Thus, Bosch's development of EDC17 was the but for cause of Plaintiffs' injuries.
It was also the proximate cause. "[P]roximate cause is not...the same thing as a sole cause." Cox v. Adm'r U.S. Steel & Carnegie , 17 F.3d 1386, 1399 (11th Cir.). A plaintiff can adequately allege proximate causation by plausibly asserting that the defendant's actions "increased the likelihood of injury." Wallace , 714 F.3d at 422. The causation analysis in this matter is complicated due to the confluence of potentially contributing factors to Plaintiffs' injury, but there can be no reasonable dispute that the development of EDC17 is a "fundamental part of the [injury] calculus." Id. The alleged connection between Bosch's development of that component and Plaintiffs' alleged overpayment is sufficiently direct, foreseeable, and logical to satisfy proximate causation requirements at the pleading stage. See id.
3.
Third, Bosch argues that "the difficulty of apportioning damages between Bosch LLC and GM creates the risk of double recovery." Bosch Mot. Dismiss at 28. It is true that the Supreme Court has identified the difficulties of apportioning treble damages among multiple dissimilarly situated plaintiffs as a factor to consider in conducting the proximate causation analysis. See Holmes , 503 U.S. at 273, 112 S.Ct. 1311. This concern was focused on the disparate damages suffered by different classes of plaintiffs (some with claims that are indirectly related to and derivative of the other class's claims). In other words, the Supreme Court's expressed concern was not with the difficulty of allocating the relative culpability of various RICO defendants, but with determining the proportion of the recovery which should be recoverable by directly injured plaintiffs as compared to indirectly injured plaintiffs. See also In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig. , No. MDL 2672 CRB, 2017 WL 4890594, at *9 (N.D. Cal. Oct. 30, 2017) ("Difficulty apportioning damages between defendants, however, is not a factor that is considered in the proximate cause analysis."); Koch v. Royal Wine Merchants, Ltd. , 907 F.Supp.2d 1332, 1343 (S.D. Fla. 2012). The proximate causation requirement operates as means to avoid that difficult determination. The Plaintiffs in this suit are all similarly situated. Accordingly, there is no difficult apportionment question and, relatedly, there is no risk of Defendants being subjected to multiple claims or multiple recoveries. Plaintiffs have plausibly alleged that Bosch's conduct proximately caused their injury.
C.
Defendants alternatively argue that, even if Plaintiffs have standing to bring a RICO claim, they have not alleged the prima facie elements of a RICO claim. The elements of a prima facie RICO claim are: " '(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.' " Heinrich , 668 F.3d at 404 (quoting Sedima, S.P.R.L. v. Imrex Co. , 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) ).
1.
Defendants argue that Plaintiffs have not adequately alleged either the existence of an enterprise or the required pattern of predicate acts. Bosch additionally argues that Plaintiffs have not plausibly alleged that Bosch participated in the "conduct" of *1078the alleged enterprise. The initial question is whether the Plaintiffs have adequately alleged the existence of an enterprise.
i.
In order to state a RICO claim, the Plaintiffs must plausibly allege the existence of an enterprise engaged in a pattern of racketeering activity. 18 U.S.C. § 1962(c). But the definition of "enterprise" for RICO purposes is exceedingly "broad." Boyle v. United States , 556 U.S. 938, 944, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009). The statute defines "enterprise" as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). "On its face, the definition appears to include both legitimate and illegitimate enterprises within its scope; it no more excludes criminal enterprises than it does legitimate ones." United States v. Turkette , 452 U.S. 576, 580-81, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). A RICO association-in-fact "must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose." Boyle , 556 U.S. at 946, 129 S.Ct. 2237.23
Bosch first argues that Plaintiffs have not plausibly alleged that Bosch and GM shared a "common purpose." Turkette , 452 U.S. at 583, 101 S.Ct. 2524. In the consolidated amended complaint, Plaintiffs allege that the Defendants "created and/or participated in the affairs of an illegal enterprise ('Clean Diesel Fraud Enterprise') whose direct purpose was to deceive the regulators and the public into believing the Polluting Vehicles were 'clean' and 'environmentally friendly.' " Con. Am. Compl. at 129. Later in the consolidated amended complaint, Plaintiffs provide further specificity:
GM, the Bosch defendants, and other entities and individuals associated for the common purpose of designing, manufacturing, distributing, testing, and selling the Polluting Vehicles through fraudulent COCs [certificates of compliance] and EOs [Executive Orders], false emissions tests, deceptive and misleading marketing and materials, and deriving profits and revenues from those activities. Each member of the Clean Diesel Fraud Enterprise shared in the bounty generated by the enterprise-i.e., by sharing the benefit derived from increased sales revenue generated by the scheme to defraud consumers and franchise dealers alike nationwide.
Id. at 132-133.
Bosch contends that these allegations do not specify a common purpose. First, Bosch notes that "Plaintiffs make no allegations that Bosch LLC played any role in obtaining the COCs and EOs for GM and the Subject Vehicles." Bosch Mot. Dismiss at 30. Bosch further characterizes the complaint as framing "generalized allegations concerning unspecified communications with regulators that fail to specify the who, what, when, and where of the alleged communications or any reason to believe they were truthful." Id. In fact, Bosch attempts to explain away all of Bosch's alleged involvement as being related only to the Volkswagen emissions scandal.
These arguments miss the point. Plaintiffs' essential theory is that Bosch and GM24 worked together to create an engine *1079component which accommodated the use of defeat devices. That component and the related defeat devices caused the Duramax engine to produce emissions at a level much higher than a reasonable consumer would expect. That identified common purpose-the Defendants agreed to create a component together which would not operate as consumers would expect-is sufficient. Bosch has not proffered, and the Court cannot conceive of, a reason why Plaintiffs must identify specific communications with regulators in order to allege a common purpose. Such communications may have been made and, indeed, may have furthered the Defendants' common purpose, but they are a secondary aspect of the alleged common purpose.
ii.
Second, Defendants argue that any alleged relationship between them is simply a routine business relationship which is insufficient to create RICO liability. "[S]imply conspiring to commit a fraud is not enough to trigger the Act if the parties are not organized in a fashion that would enable them to function as a racketeering organization for other purposes." VanDenBroeck v. CommonPoint Mortg. Co. , 210 F.3d 696, 699 (6th Cir. 2000), abrogated on other grounds in Bridge , 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012. The most probative question in determining whether a RICO enterprise exists is whether the enterprise has the "ability to exist apart from the pattern of wrongdoing." Id. (internal citations omitted). To state it differently, "[t]he 'enterprise' is not the 'pattern of racketeering activity'; it is an entity separate and apart from the pattern of activity in which it engages." Turkette , 452 U.S. at 583, 101 S.Ct. 2524. The Sixth Circuit has identified two important principles for determining whether an association with a corporation constitutes a RICO enterprise:
1) individual defendants are always distinct from corporate enterprises because they are legally distinct entities, even when those individuals own the corporations or act only on their behalf; and 2) corporate defendants are distinct from RICO enterprises when they are functionally separate, as when they perform different roles within the enterprise or use their separate legal incorporation to facilitate racketeering activity.
In re ClassicStar Mare Lease Litig. , 727 F.3d at 492.
Here, GM and Bosch are clearly different corporate entities and performed different roles within the enterprise. Their association thus satisfies the fundamental requirements of a RICO enterprise.
Defendants correctly argue that courts have overwhelming held that a "routine commercial relationship" is insufficient to form the basis for a RICO enterprise. The district court in Gomez v. Guthy-Renker, LLC has provided both an exhaustive exposition of the law and an example of the typical fact pattern which plaintiffs allege. No. EDCV1401425JGBKKX, 2015 WL 4270042, at *5 (C.D. Cal. July 13, 2015). The Gomez Court summarized the typical theory:
Some provider of services ("Provider") has a business client ("Business"). Completely unbeknownst to Provider, Business is conducting its affairs fraudulently. Someone ("Injured Party") is injured by Business's fraudulent practices and *1080wishes to seek compensation from Business.
Id.
"Despite the widespread consensus among courts that such routine business relationships are insufficient to impose RICO liability, there has been very little agreement among courts as to which particular RICO requirement fails under such circumstances." Id. at *9. Some courts, like the Second Circuit, require that "the common purpose of an association be fraudulent in order for it to constitute a RICO enterprise." Id. (citing First Capital Asset Mgmt., Inc. v. Satinwood, Inc. , 385 F.3d 159, 174 (2d Cir. 2004) ). Other courts have rejected RICO claims premised on routine services contracts "because the entities are actually pursuing their individual economic interests, rather than any shared purpose." Id. And still other courts have "noted the lack of organization and structure underlying a routine contractual relationship for the provision of services." Id. at *10.
The Gomez court discusses other rationales that various courts have promulgated when confronted with this issue, but all can be summarized as demonstrating "a remarkable uniformity [among federal courts] that RICO liability must be predicated on a relationship more substantial than a routine contract between a service provider and its client." Id. at *11. The alleged business relationship which the Defendants entered into here, however, is far from "routine." Defendants' assertion that Bosch has supplied a number of legitimate vehicle components to GM is, simply, irrelevant. Those contractual relationships are not part of the illegal enterprise which Plaintiffs allege existed.
Plaintiffs allege that Defendants participated in an enterprise with the purpose of defrauding consumers. They "associated for the common purpose of designing, manufacturing, distributing, testing, and selling the Polluting Vehicles through fraudulent COCs and EOs, false emissions tests, and deceptive and misleading marketing and materials, and deriving profits and revenues from those activities." Con. Am. Compl. at 132. The alleged course of conduct is inherently deceptive: Bosch and GM collaborated to create an engine which performed one way when being tested for emissions and another way when in normal use. See also In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig. , 2017 WL 4890594, at *15 ("Bosch's intent to defraud reasonably can be inferred from the scheme itself....No one to date in this multidistrict litigation has sought to justify, or explain a lawful purpose for, software that effectively turns a vehicle's emission systems on or off depending on whether the vehicle is undergoing emissions testing or being operated under normal driving conditions.").
In other words, Plaintiffs have plausibly alleged that both Bosch and GM were engaged in an enterprise with the manifest purpose of defrauding both regulators and consumers.25 The Defendants may have engaged in other, "routine" business transactions, but that is irrelevant. The Defendants may even have considered the alleged enterprise whereby they collaborated to configure the EDC17 for the Duramax engine to be a similar business relationship. But when the essential purpose of a particular business relationship is fraud, the related conduct is "not ordinary or normal business activities."
*1081Levine v. First Am. Title Ins. Co. , 682 F.Supp.2d 442, 461 (E.D. Pa. 2010). That fraudulent purpose is the distinction between the EDC17 collaboration and Bosch's previous transactions with GM, as well as the reason that the cases which Defendants cite are inapplicable. See In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig. , 2017 WL 4890594, at *15 (finding that a RICO enterprise existed and involving indistinguishable facts); Mitchell Tracey v. First Am. Title Ins. Co. , 935 F.Supp.2d 826, 844 (D. Md. 2013) ("[U]nlawful acts are not conducted in the ordinary course of business."); Robins v. Global Fitness Holdings, LLC , 838 F.Supp.2d 631, 652 (N.D. Ohio 2012) ("The RICO claims of all Plaintiffs fail because they have failed to allege an enterprise for the common purpose of committing bank and wire fraud."). A RICO enterprise does not exist where one company unknowingly aided another company in a fraudulent endeavor. But when both companies are aware of and contribute to the fraud, they cannot argue that they have a routine commercial relationship.26
Bosch alternatively argues that no RICO enterprise exists because Plaintiffs do not allege that Bosch "had any financial interest in the success of the purported enterprise other than its own compensation for performing the tasks for which it was hired." Bosch Mot. Dismiss at 32. Bosch cites Guaranteed Rate, Inc. v. Barr for that proposition. 912 F.Supp.2d 671, 687 (N.D. Ill. 2012). In Guaranteed Rate , the district court found that no RICO enterprise existed for several reasons, including because there was not "a single factual claim asserting the RICO Defendants had any interest in the outcome of the alleged scheme beyond their individual interests." Id. The court went on: "[T]here is no indication in the Amended Complaint that the RICO Defendants shared in the profits of the alleged enterprise as opposed to merely taking their own respective profits from their respective actions related to the scheme." Id. In Menzies v. Seyfarth Shaw LLP , however, the district court rejected the argument that Guaranteed Rate stood for the proposition that "RICO requires the enterprise members to share the profits of their illegal scheme." 197 F.Supp.3d 1076, 1095 (N.D. Ill. 2016). "There is no such requirement." Id.
The Court agrees. And, more importantly, Bosch's argument is factually suspect. Although GM's profits from sales of Duramax-equipped vehicles might be distinct from Bosch's profits for development and implementation of EDC17 in those vehicles, all Defendants clearly profited from the alleged scheme. EDC17 enabled GM to produce diesel vehicles with an apparent blend of high power, high fuel efficiency, and low emission levels. Because that combination was attractive to consumers, the scheme resulted in higher demand for GM's diesel vehicles, which in turn increased GM's demand for EDC17 devices. The scheme thus plausibly resulted both in higher sales of diesel vehicles for GM and higher sales of EDC17 for Bosch.
*10822.
The next question is whether Plaintiffs have alleged that the Defendants both engaged in a pattern of racketeering activity. Pursuant to § 1961(d), a " 'pattern of racketeering activity' requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity." Defendants argue, correctly, that Plaintiffs must allege that each Defendant engaged in two predicate acts of racketeering activity. See Kerrigan v. ViSalus, Inc. , 112 F.Supp.3d 580, 605 (E.D. Mich. 2015). See also Crest Const. II, Inc. v. Doe , 660 F.3d 346, 358 (8th Cir. 2011) ; Guaranteed Rate, Inc. v. Barr , 912 F.Supp.2d 671, 684 (N.D. Ill. 2012).
Here, Plaintiffs allege that Defendants engaged in multiple predicate acts of mail and wire fraud. To state a claim based on mail or wire fraud, the Plaintiffs must allege the following three elements: "(1) devising or intending to devise a scheme to defraud (or to perform specified fraudulent acts); (2) involving a use of the mails; and (3) for the purpose of executing the scheme or attempting to do so. United States v. Kennedy , 714 F.3d 951, 958 (6th Cir. 2013) (quoting United States v. Frost , 125 F.3d 346, 354 (6th Cir.1997) ).27 The Plaintiffs must allege that Defendants possessed the "specific intent to deceive or defraud." Frost , 125 F.3d at 354. The "scheme to defraud must involve 'misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension.' " Bender v. Southland Corp. , 749 F.2d 1205, 1216 (6th Cir. 1984) (quoting United States v. Van Dyke , 605 F.2d 220, 225 (6th Cir. 1979) ). The Plaintiffs need not show "actual reliance," but the Plaintiffs must demonstrate that the misrepresentations or omissions were "material." United States v. Daniel , 329 F.3d 480, 487 (6th Cir. 2003). Specific intent to defraud or deceive exists if "the defendant by material misrepresentations intends the victim to accept a substantial risk that otherwise would not have been taken." Id. at 488.
Importantly, "[a] defendant may commit mail fraud even if he personally has not used the mails." Frost , 125 F.3d at 354 (citing United States v. Griffith , 17 F.3d 865, 874 (6th Cir.1994) ). "A mail fraud conviction requires only a showing that the defendant acted with knowledge that use of the mails would follow in the ordinary course of business, or that a reasonable person would have foreseen use of the mails." Id. In other words, there is no requirement that the defendant have actually intended that the mails (or wire) be used. Id. And, further, " '[t]he mailings may be innocent or even legally necessary.' " Id. (quoting United States v. Oldfield , 859 F.2d 392, 400 (6th Cir. 1988) ). The use of the mails " 'need only be closely related to the scheme and reasonably foreseeable as a result of the defendant's actions.' " Id. (quoting Oldfield , 859 F.2d at 400 ).
"When pleading predicate acts of mail or wire fraud, in order to satisfy the heightened pleading requirements of Rule 9(b), a plaintiff must '(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.' " Heinrich , 668 F.3d at 404 (quoting Frank v. Dana Corp. , 547 F.3d 564, 570 (6th Cir. 2008) ).
*1083i.
GM argues, first, that Plaintiffs' allegations regarding GM's advertising campaign are insufficient to establish affirmative misrepresentations because all claims made in that campaign are nonactionable puffery. Plaintiffs contend that their "RICO claim does not require any proof of affirmative misrepresentations because the omission of material facts suffices to prove the predicate acts of mail or wire fraud." Pl. Resp. GM Mot. Dismiss at 10. That is correct. See Bender , 749 F.2d at 1216.
The more pertinent question, then, is whether Plaintiffs have adequately alleged fraudulent omissions. Defendants contend that Plaintiffs do not allege any fraudulent omissions "with the factual specificity mandated by Rule 9(b)." GM Mot. Dismiss at 40. But, as discussed earlier, allegations of omissions-as opposed to affirmative misrepresentations-will inevitably be less specific. Misrepresentations occur at a definite point in time, but omissions occur over periods of time. And, because misrepresentations involve action while omissions involve inaction, plaintiffs are less likely to uncover discrete evidence of omissions. See Beck , 273 F.Supp.3d at 751-52 (collecting cases). It must be remembered that the essential purpose of Rule 9(b) is to provide the defendants with adequate notice of the allegations so that they can defend against the claims.
When considered from that perspective, Plaintiffs' allegations of fraudulent conduct are clearly sufficient to apprise Defendants of the alleged fraudulent scheme. Defendants argue that Plaintiffs have not plausibly alleged that both GM and Bosch had specific intent to defraud consumers. But, as explained above, that intent can be inferred from the nature of the alleged conduct. The way in which EDC17 interacted with the Duramax engine is inherently deceptive. The alleged purpose of the device is to provide the perception of reduced emissions while avoiding the reality of reduced emissions. Defendants cannot reasonably argue that the deceptive nature of EDC17 was unanticipated or unintended, and even if they do, that argument could be resolved only by a jury. Plaintiffs have plausibly alleged that the purpose of EDC17 was deception, and so Defendants' protestations that it has an innocent and lawful purpose are noncognizable at the pleading stage.
Defendants also appear to argue that Plaintiffs have not plausibly alleged or specifically identified specific uses of the mail or wire which were fraudulent. But the Sixth Circuit has clearly held that a RICO claim can exist even if the mailings were "innocent" or "legally necessary." Frost , 125 F.3d at 354 (internal citations omitted). Additionally, the Supreme Court has held that "[m]ailings occurring after receipt of the goods obtained by fraud are within the statute if they 'were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place.' " United States v. Lane , 474 U.S. 438, 451-52, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (quoting United States v. Maze , 414 U.S. 395, 403, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974) ). See also United States v. Daniel , 329 F.3d 480, 489 (6th Cir. 2003). In other words, Plaintiffs do not bear the burden of pleading uses of the mail or wire that were fraudulent. They need only identify uses of the mail or wire which furthered the fraudulent scheme. Allegations that mailings by the Defendants aided in the concealment of the fraud are sufficient.
In making the argument that Plaintiffs must specifically allege fraudulent uses of the mail and wires, Defendants conflate several legal requirements. As described above, Plaintiffs bear the burden of alleging *1084that each Defendant committed two predicate acts of racketeering activity. Plaintiffs allege that Defendants engaged in wire and mail fraud. Wire and mail fraud require a scheme to defraud through fraudulent representation or omission and a use of the mail or wire to further that scheme. But a defendant can commit wire or mail fraud without actually having used the wire or mail to defraud. Rather, and as explained above, a defendant can be found culpable simply by entering into the scheme to defraud if a co-defendant's use of the mail or wire was reasonably foreseeable and closely related to the scheme. Thus, Bosch's repeated argument that Plaintiffs must specifically allege that Bosch used the mail or wire to defraud is, simply, wrong.
Plaintiffs have adequately alleged a number of uses of the mail and wire which furthered the fraudulent scheme. GM submitted applications to government regulators which affirmed that the vehicles complied with emission standards. Without those mailings and electronic communications, GM would have been unable to sell the vehicles. The applications and resulting certificates also increased the likelihood that consumers would perceive the Duramax vehicles as emitting pollution at a low level. And although Bosch may not have directly used the mail or wire to further the fraudulent scheme, GM's uses of the mail and wire were inevitable and thus reasonably foreseeable. Plaintiffs have not specifically alleged the date of the applications or the specific identity of the employee who prepared them, but Plaintiffs have alleged enough detail to put Defendants on notice of the alleged predicate acts.
Additionally, Plaintiffs have identified a number of advertisements made by GM which characterized the Duramax vehicles as having low emissions and as being friendly to the environment. See Con. Am. Compl. at 61-70. If Plaintiffs were relying on these advertisements as the basis for its claim of fraud, then Defendants' arguments regarding puffery and duty to disclose would become relevant. However, these representations do not constitute the fraudulent scheme; they merely further it. The level of emissions produced by a diesel engine was a material consideration for consumers purchasing a vehicle. GM's extensive advertising which emphasized the low emissions and environmentally-friendly nature of its "clean diesel" engine underscores its understanding of that fact. Thus, regardless of whether these advertisements would be actionable on their own, they were material to the scheme. The advertisements urged consumers to buy Duramax vehicles because they were environmentally friendly even though the Defendants had purposefully worked together to obfuscate the true level of emissions.
Plaintiffs have specifically identified a number of communications that were "reasonably calculated to deceive persons of ordinary prudence and comprehension." Bender , 749 F.2d at 1216. The communications themselves may not have been demonstrably fraudulent, but they were intended to increase the likelihood that consumers would purchase Duramax vehicles because they produced emissions at a low level, when in fact the true level of emissions was much higher. The nondisclosure of the true operation of the Duramax engine was material precisely because GM worked so hard to convince consumers that it was a "clean diesel" engine. The fact that the uses of the mail and wire which Plaintiffs identify may have been innocent or legally required is irrelevant. See Frost , 125 F.3d at 354. See also Schmuck , 489 U.S. at 712, 109 S.Ct. 1443 ("[A]lthough the registration-form mailings may not have contributed directly to the duping of either the retail dealers or the customers, they were necessary *1085to the passage of title, which in turn was essential to the perpetuation of Schmuck's scheme."). Plaintiffs have identified a number of predicate acts of mail or wire fraud with sufficient specificity to avoid dismissal.28
ii.
Bosch alternatively argues that Plaintiffs cannot rely on alleged omissions unless they can demonstrate that Bosch had an independent duty to disclose. Some noncontrolling cases do appear to support this proposition. See United States v. Skeddle , 940 F.Supp. 1146, 1149 (N.D. Ohio 1996) ("Because the "scheme to defraud of property or money" counts are based on what was not said (i.e., omissions), the defendants are culpable under this branch of the mail fraud statute only if the government proves the defendants had a duty to disclose their interest in the transactions."); Gould, Inc. v. Mitsui Min. & Smelting Co. , 750 F.Supp. 838, 843 (N.D. Ohio 1990) ("[T]here has been no attempt to delineate what facts were omitted or what duty defendants had to disclose information to Gould, which is necessary when one alleges a material omission."). See also United States v. Benny , 786 F.2d 1410, 1418 (9th Cir. 1986) ("[A] non-disclosure can only serve as a basis for a fraudulent scheme when there exists an independent duty that has been breached by the person so charged."); United States v. Rabbitt , 583 F.2d 1014, 1026 (8th Cir. 1978).
But other courts have squarely rejected this rationale. United States v. Colton , 231 F.3d 890, 901 (4th Cir. 2000) ("Concealment often is accompanied by an affirmative misrepresentation or a violation of an independent statutory or fiduciary disclosure duty, but neither is "essential" for actionable fraud."); United States v. Keplinger , 776 F.2d 678, 697 (7th Cir. 1985) ("It requires no extended discussion of authority to demonstrate that omissions or concealment of material information can constitute...fraud cognizable under the mail fraud statute, without proof of a duty to disclose the information pursuant to a specific statute or regulation."); United States v. Allen , 554 F.2d 398, 410 (10th Cir. 1977) (same).
Neither Plaintiffs nor Defendants have identified Sixth Circuit authority which expressly addresses this question. The Sixth Circuit has, however, repeatedly confirmed that concealment of material facts can constitute a fraudulent scheme sufficient to establish RICO liability. See, e.g., Daniel, 329 F.3d at 487 ; Dana Corp. v. Blue Cross & Blue Shield Mut. of N. Ohio , 900 F.2d 882, 885 (6th Cir. 1990) ; Am. Eagle Credit Corp. v. Gaskins , 920 F.2d 352, 354 (6th Cir. 1990) ; Bender , 749 F.2d at 1216. See also United States v. Chew , 497 Fed.Appx. 555, 563 (6th Cir. 2012) ("[I]n relation both to mail fraud and wire fraud, there is no technical or precise definition of an unlawful 'scheme to defraud.' The standard is a reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society.") (internal citations omitted); In re ClassicStar Mare Lease Litig. , 823 F.Supp.2d 599, 627 (E.D. Ky. 2011) ("A fraudulent scheme may be demonstrated by proof that it was reasonably calculated to deceive persons of ordinary prudence and comprehension, and communications of half-truths and concealment of material facts are both actionable."). Because, to the Court's knowledge, the Sixth Circuit has never articulated a duty to disclose *1086requirement, the Court declines to manufacture that requirement. The more recent and better reasoned cases from other circuits do not require a duty to disclose in order for fraudulent omissions to constitute a scheme to defraud.
And, importantly, "[a] false or fraudulent representation, within the meaning of 18 U.S.C. § 2314, may be made by statements of half truths or the concealment of material facts, as well as by affirmative statements or acts." United States v. O'Boyle , 680 F.2d 34, 36 (6th Cir. 1982). See also United States v. Kurlemann , 736 F.3d 439, 446 (6th Cir. 2013) ; United States v. Allen , 554 F.2d 398, 410 (10th Cir. 1977). Even if the representations made during the advertising campaign are nonactionable puffery, those representations also seem fundamentally inconsistent with Plaintiffs' allegation that the Duramax vehicles polluted at levels several multiples more than the legal limit. Con. Am. Compl. at 3. In other words, to the extent Defendants may have had no duty to disclose the operation of the Duramax engine's emissions technology in the abstract, a duty arose when they created the appearance that it was a "clean diesel" engine. See e.g. , Muncy v. InterCloud Sys., Inc. , 92 F.Supp.3d 621, 642 (E.D. Ky. 2015) (summarizing situations where a duty to disclose arises in the tort context).
3.
Finally, Bosch argues that Plaintiffs have not plausibly alleged that Bosch participated in the conduct of the RICO enterprise by directing the enterprise's affairs. Bosch similarly argues that Plaintiffs cannot join Bosch as a RICO Defendant by alleging that Bosch aided and abetted GM in violating the wire and mail fraud statutes. Finally, Bosch and GM both argue that Plaintiffs cannot maintain a RICO conspiracy claim if they do not allege a cognizable substantive RICO claim.
i.
In Reves v. Ernst & Young , the Supreme Court addressed the requirement that a RICO defendant "conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs." 507 U.S. 170, 179, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993) (quoting§ 1962(c) ). The Court explained:
Once we understand the word "conduct" to require some degree of direction and the word "participate" to require some part in that direction, the meaning of § 1962(c) comes into focus. In order to "participate, directly or indirectly, in the conduct of such enterprise's affairs," one must have some part in directing those affairs. Of course, the word "participate" makes clear that RICO liability is not limited to those with primary responsibility for the enterprise's affairs, just as the phrase "directly or indirectly" makes clear that RICO liability is not limited to those with a formal position in the enterprise, but some part in directing the enterprise's affairs is required.
Id.
"[L]iability [under § 1962(c) ] depends on showing that the defendants conducted or participated in the conduct of the "enterprise's affairs," not just their own affairs." Id. at 185, 113 S.Ct. 1163. "Although Reves does not explain what it means to have some part in directing the enterprise's affairs, subsequent decisions from our sister circuits have persuasively explained that it can be accomplished either by making decisions on behalf of the enterprise or by knowingly carrying them out." United States v. Fowler , 535 F.3d 408, 418 (6th Cir. 2008).
Bosch argues that Plaintiffs' allegations establish simply that Bosch "worked together with GM to design and implement software and that Bosch LLC participated in promoting clean diesel technology generally." Bosch Mot. Dismiss at 35. According *1087to Bosch, that is insufficient because "a RICO violation requires more than that a defendant had a business relationship with a putative RICO enterprise or...performed services for that enterprise." Id. (quoting Kerrigan , 112 F.Supp.3d at 603 (internal citations omitted) ).
This argument is simply a repackaging of Bosch's previous argument that no RICO enterprise has been alleged because the relationship between the Defendants was merely a routine business relationship. That argument was rejected above and carries no additional persuasive weight here. Plaintiffs allege that Bosch was an integral part of the operation of the enterprise because Bosch "locked out" EDC17 so that its customers could not make significant changes to the component. Rather, Bosch worked closely with its customers to customize EDC17. Plaintiffs' allegations characterize EDC17 as performing an inherently deceptive function. Thus, the operation of EDC17 is the apparent heart of the fraudulent enterprise and, because Bosch bears primary responsibility for programming EDC17, it "knowingly carried...out" core aspects of the alleged enterprise. Fowler , 535 F.3d at 418. See also Ouwinga v. Benistar 419 Plan Servs., Inc. , 694 F.3d 783, 793 (6th Cir. 2012) (" Fowler makes clear that knowingly carrying out the orders of the enterprise satisfies the "operation or management" test."). See also id. ("We recognize that although this analysis applies to all Defendants, the various Defendants acted in different capacities and those differences may ultimately impact the determination of whether a particular Defendant only participated in his own affairs. But that is a matter to be fleshed out in discovery and to be resolved through motion practice or by the jury.").29
ii.
Thus, Plaintiffs have adequately alleged the elements of a § 1962(c) substantive RICO claim against both GM and Bosch. Both Defendants argue that, to the extent Plaintiffs have not alleged a cognizable substantive RICO claim, they cannot maintain a § 1962(d) RICO conspiracy claim against the Defendants. The premise of that argument has been rejected, and so the RICO conspiracy claim will not be dismissed.
D.
Finally, GM argues that Plaintiffs' RICO claim must be dismissed because it is essentially an attempt to enforce the Clean Air Act via a civil suit. In support of that argument, GM cites three cases (none involving suits to enforce the CAA) where courts concluded that extensive regulatory schemes provided the exclusive remedies for violations of regulatory statutes and preventing the plaintiffs from invoking RICO to obtain treble damages. See Ayres v. Gen. Motors Corp. , 234 F.3d 514, 525 (11th Cir. 2000) (dismissing a RICO claim premised on non-compliance with the notification requirement of Section 210 of the Energy Reorganization Act because the regulatory statute provided the exclusive remedy for violations); Norman v. Niagara Mohawk Power Corp. , 873 F.2d 634, 637 (2d Cir. 1989) (also dismissing a RICO
*1088claim premised on violation of Section 210 of the Energy Reorganization Act because that section provides an exclusive remedy for violations and because the RICO claim did not involve "a collateral matter that is only peripherally related to the safety concerns implicit in section 210"); Gifford v. Meda , No. 09-CV-13486, 2010 WL 1875096, at *12 (E.D. Mich. May 10, 2010) (dismissing a RICO claim premised on "the misclassification of Plaintiffs as independent contractors for purposes of federal income and employment tax reporting" because that conduct was "unlawful only by virtue of the federal income tax laws").
This argument is largely coterminous with Defendants' argument, rejected above, that Plaintiffs' state law claims are preempted by the CAA. Plaintiffs' allegations are not dependent upon proof of violation of federal emission regulations. That said, Plaintiffs' allegations are confusing because they repeatedly allege that Defendants purposefully deceived government regulators about the true emission levels of the Duramax engine. Plaintiffs allege, however, that their suit is "not based on these laws but on deception aimed at consumers." Con. Am. Compl. at 5.
For largely the same reasons articulated while rejecting Defendants' argument that Plaintiffs' state law claims are preempted, Plaintiffs' RICO claim is not primarily premised on proof of violation of EPA regulations and thus is cognizable. The alleged common purpose at the heart of the RICO scheme is the deception of consumers. The alleged injury is overpayment by consumers. The identified predicate acts of mail and wire fraud involve communications to consumers. Admittedly, Plaintiffs also allege that the RICO Defendants intended to deceive regulators and made fraudulent mail and wire communications to regulators. But neither of those allegations are essential to Plaintiffs' RICO claim. Accordingly, they are best construed as "collateral matter[s]" that are "only peripherally related to the" regulatory concerns advanced by EPA regulations. Norman , 873 F.2d at 637. Plaintiffs' RICO claim is not an attempt to obtain a remedy which is exclusively within the purview of the EPA.
VI.
The final question is whether Plaintiffs should be permitted to proceed to discovery on state law claims advanced on behalf of unnamed, putative class members. Defendants argue that these claims should be dismissed because Plaintiffs do not have standing to advance claims on behalf of unnamed Plaintiffs prior to class certification. Plaintiffs argue that this analysis is best reserved until class certification because that determination will resolve the standing issue.
"Threshold individual standing is a prerequisite for all actions, including class actions." Fallick v. Nationwide Mut. Ins. Co. , 162 F.3d 410, 423 (6th Cir. 1998). "A potential class representative must demonstrate individual standing vis-as-vis the defendant; he cannot acquire such standing merely by virtue of bringing a class action." Id. The growing consensus, however, is that "class certification issues are...'logically antecedent' to Article III concerns," at least when the named plaintiffs possess Article III standing. See Ortiz v. Fibreboard Corp. , 527 U.S. 815, 831, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) ; Kaatz v. Hyland's Inc. , No. 16 CV 237 (VB), 2016 WL 3676697, at *4 (S.D.N.Y. July 6, 2016) ; Storey v. Attends Healthcare Prod., Inc. , No. 15-CV-13577, 2016 WL 3125210, at *3 (E.D. Mich. June 3, 2016) ; In re Auto. Parts Antitrust Litig. , 29 F.Supp.3d 982, 1000 (E.D. Mich. 2014). In other words, "where 'class certification is the source of the potential standing problems,' class certification should precede the standing inquiry."
*1089In re Digital Music Antitrust Litig. , 812 F.Supp.2d 390, 406 (S.D.N.Y. 2011) (quoting In re Grand Theft Auto Video Game Litig. , No. 06 MD 1739, 2006 WL 3039993, at *2 (S.D.N.Y. Oct. 25, 2006) ).
GM attempts to argue that the standing question would exist regardless of whether Plaintiffs filed their claims alone or as part of a putative class action. But GM does not explain why that is the case, and the Court cannot conceive of a reason. The named Plaintiffs have Article III standing and, if the class is certified, then those Plaintiffs will be able to advance state law claims on behalf of unnamed Plaintiffs. The question of whether the state law claims may be advanced on behalf of unnamed Plaintiffs, then, is indistinguishable from the Federal Rule of Civil Procedure 23 analysis. See Kaatz , 2016 WL 3676697, at *4 ("That standing inquiry is more appropriately addressed at the class certification stage when courts consider the commonality and typicality prerequisites of class actions."). The claims predicated on the law of states where no named Plaintiff lives will not be dismissed for lack of standing.
VII.
Accordingly, it is ORDERED that Defendants' motions to dismiss, ECF No. 44, 45, are DENIED.
It is further ORDERED that Plaintiffs' motion for leave to file a surreply, ECF No. 58, is DENIED as moot.
It is further ORDERED that Defendant GM's motion to file a surresponse, ECF No. 60, is DENIED as moot.
Prior to filing, GM and Bosch requested leave to submit briefs of 80 (and 60, respectively) pages in support of their motions to dismiss. ECF Nos. 35, 39. In response, the Court directed the Defendants to submit an outline of their anticipated briefs and suggested that judicial efficiency might be served by waiting to advance state-specific challenges to Plaintiffs' claims in a motion filed pursuant to Federal Rule of Civil Procedure 12(c). ECF No. 36. Defendants were amenable to the latter suggestion and, accordingly, the Court granted the parties leave to submit briefs of 50 pages (and reply briefs of 15 pages). ECF No. 42.
Those states are Arizona, Arkansas, California, Louisiana, Michigan, Nevada, New Jersey, New Mexico, Oregon, and Texas.
This purported achievement would be particularly noteworthy because diesel engines "have an inherent trade-off between power, fuel efficiency, and emissions: the greater the power and fuel efficiency, the dirtier and more harmful the emissions." Id. at 46.
In the consolidated amended complaint, Plaintiffs summarize, in detail, the testing they conducted on a 2013 Silverado 2500. Id. at 70-92.
Plaintiffs analogize these alleged devices to those which Volkswagen has recently pleaded guilty to including in their diesel vehicles and which other vehicle manufacturers have been accused of utilizing. See id. at 2.
The SCR converts oxides of nitrogen (a harmful pollutant produced by diesel engines) into nitrogen gas and water "by means of a reduction reaction." Id. at 50. The DPF traps and stores particulate matter (soot). Id. at 51. The DPF is "cleaned through a process known as regeneration." Id. "Passive regeneration" is a "continuously occurring process" which occurs whenever "the exhaust gas temperature is high enough to burn the particulate matter trapped by the filter." Id. "Active regeneration occurs only when the engine senses that the DPF needs to be cleaned as the DPF is approaching maximum capacity and generating too much exhaust backpressure." Id. In that scenario, "fuel is injected into the exhaust stream via the HCI to increase the exhaust gas temperature so that the particulate matter can be burned off at carbon's non-catalytic oxidation temperature." Id. Because fuel is being used for a purpose other than propulsion, "[a]ctive regeneration dramatically reduces fuel economy." Id.
This decision is puzzling because Bosch appears to admit in their briefing that Plaintiffs' "overpayment" theory is sufficient to establish standing to sue GM. Bosch focuses its argument on the assertion that any such overpayment is not attributable to Bosch's actions. See Bosch. Mot. Dismiss at 12, ECF No. 44 ("But Plaintiffs do not have standing to sue Bosch LLC-rather than GM-unless their injury "fairly can be traced" to the actions of Bosch LLC....Any overpayment based on artificially inflated market price cannot fairly be traced to the actions of Bosch LLC, which is not alleged to have advertised directly to consumers or have had any control over the price of the Subject Vehicles."). Nevertheless, because the Court has an independent obligation to confirm its own jurisdiction, Plaintiffs' standing to sue GM will be briefly addressed.
Bosch also argues that Plaintiffs' overpayment theory should be interpreted as essentially a "benefit-of-the-bargain" argument and suggests that such a theory is insufficient to establish standing because Bosch was not a party to any vehicle-purchase contracts with consumers. But a consumer can establish a concrete injury by alleging that he or she "received a product that failed to work for its intended purpose or was worth objectively less than what one could reasonably expect," regardless of whether the purchase was made pursuant to a contract. Koronthaly v. L'Oreal USA, Inc. , 374 Fed.Appx. 257, 259 (3d Cir. 2010).
Plaintiffs have expressly disclaimed any claims premised on affirmative misrepresentation (discussed below).
In further support of the contention that GM has publically disclosed the existence of AECDs which are present in the subject vehicles, GM points to a publically available document which purports to show that GM provided "AECD Descriptions" to the EPA. See GM Reply Br. at 5 & Ex. 5, ECF No. 57. Information from outside the pleadings cannot be considered at the pleading stage, with several limited exceptions. Tackett v. M & G Polymers, USA, L.L.C. , 561 F.3d 478, 487 (6th Cir. 2009). To the extent the identified document is a public record, courts may typically only take judicial notice of such records to recognize "the fact of the documents' existence, and not for the truth of the matters asserted therein." Passa v. City of Columbus , 123 Fed.Appx. 694, 697 (6th Cir. 2005). And even if this exhibit was considered now, it would not change the Court's analysis. The document suggests that AECD descriptions were provided to the EPA, but does not include those descriptions. In other words, the document does not appear to provide any evidence that the AECDs were themselves publically disclosed. Plaintiffs' claims are focused on allegedly inadequate disclosures to the public ; confidential disclosures to the EPA are irrelevant.
The relevance of the document purportedly submitted to the EPA is the primary subject of the parties' motions for leave to file surreplies. See ECF No. 58, 60. Because the document cannot be considered for the purpose it was submitted and would not change the Court's analysis even if reviewed, those motions will be denied as moot.
There are a number of potential theories which Plaintiffs could have conceivably advanced and which would have been squarely preempted. For example, if Plaintiffs were seeking damages based solely on Defendants' alleged violations of the CAA, their suit would be preempted. Likewise, if Plaintiffs' claims were "predicated on deceit against the EPA during new-vehicle certification," their claims would be preempted. In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig. , 264 F.Supp.3d 1040, 1054 (N.D. Cal. 2017).
The consolidated amended complaint also discusses the EPA's definition of a defeat device, but that definition is alleged in connection with allegations regarding the EPA's conclusion that Volkswagen's diesel vehicles violated the CAA. Id. at 6. In their briefing, Defendants repeatedly contend that allegations regarding the conduct of other diesel vehicle manufacturers is irrelevant, and so Defendants cannot reasonably point to these allegations when arguing that Plaintiffs' claims should be preempted.
And even this allegation is focused on consumer expectations about compliance, not the compliance itself. See In re Volkswagen "Clean Diesel" Litigation , 2016 WL 5347198 at *6 (Va.Cir.Ct. 2016) ("[A]lthough emissions compliance or lack thereof may be further proof of deceit, it is the deceit about compliance, rather than the need to enforce compliance, that is the gravamen of Plaintiffs' claims."). Admittedly, proving this allegation appears to require proof that EPA regulations have been violated. To the extent that it is true, a claim premised on solely that allegation would likely be preempted. But Plaintiffs advance numerous other theories of consumer harm which are not preempted.
Notwithstanding this fact, Plaintiffs (and the Court) frequently use the term "defeat device" as a short hand for the manner in which EDC17 allegedly uses several features to bypass or derate emissions reduction technologies in certain circumstances. That term has entered the common parlance, and so the fact that the EPA has also provided a legal definition for the term "defeat device" does not mean that every use of the term "defeat device" necessarily involves a reference to that regulatory definition.
In other words, proof that Defendants concealed material information from the EPA will almost certainly provide the factual predicate to sustain Plaintiffs' state law claims, but the inverse is not necessarily true.
GM's argument regarding implied preemption might have merit if "Plaintiffs' claims could be construed as alleging that AEDC disclosures to the government should have been made public," but as explained above Plaintiffs' claims are premised on Defendants' nondisclosures to consumers, not the EPA. GM. Mot. Dismiss at 27.
Bosch also argues that the state law claims brought against it should be dismissed because they are preempted. In so arguing, Bosch also attempts to argue that all of Plaintiffs' claims against them are expressly premised on Bosch's alleged efforts to evade United States emission requirements. But Plaintiffs are not advancing state law claims of that nature. To the extent Bosch argues that Plaintiffs have not stated any state law claims against them because they have not plausibly pleaded a connection between Bosch's conduct and the fraudulent concealment, that argument is best left for the (presumptive) motions by Defendants for judgment on the pleadings.
The Clayton Act included a civil-action provision which permitted private parties to sue for injuries arising out of antitrust law violations. The Supreme Court has "repeatedly observed...that Congress modeled § 1964(c) on the civil-action provision of the federal antitrust law." Holmes v. Sec. Inv'r Prot. Corp. , 503 U.S. 258, 267, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992).
Thus, even though the alleged RICO injury is sufficient to create standing, the nature of the alleged injury might prevent class certification.
And Chief Justice Robert's opinion (joined by three justices) took care to reject the argument advanced by three dissenting justices that "RICO's proximate cause requirement [should] turn on foreseeability, rather than on the existence of a sufficiently 'direct relationship' between the fraud and the harm." Id. at 12, 130 S.Ct. 983.
This is not the say, however, that Plaintiffs may advance a § 1962(c) RICO claim against Bosch without identifying specific predicate acts committed by Bosch. See Kerrigan v. ViSalus, Inc. , 112 F.Supp.3d 580, 605 (E.D. Mich. 2015) (collecting cases and distinguishing between § 1962(d) conspiracy claims and § 1962(c) substantive claims). That subtly different analysis will be conducted below, while determining whether Plaintiffs have alleged a prima facie RICO claim. As explained in that section, Plaintiffs have adequately alleged that Bosch committed predicate acts of mail and wire fraud even though Plaintiffs have not specifically alleged that Bosch personally used the mail or wire to further the fraudulent scheme.
Bosch's arguments conflate the distinction between (1) the requirement that Plaintiffs allege a causal link between their injury and the predicate acts and (2) the elements of mail and wire fraud. As discussed below, a party can be guilty of mail fraud even if they did not personally use the mail. The fact that GM, not Bosch, is the party who used the mail and wire to make representations to regulators and consumers is thus not determinative. See United States v. Stapleton , 293 F.3d 1111, 1117 (9th Cir. 2002) ("Because an essential element of these offenses is a fraudulent scheme, mail and wire fraud are treated like conspiracy in several respects.") (internal citations omitted).
The Defendants do not attempt to argue that the relationship which Plaintiffs allege existed between them was too short to give rise to a RICO association-in-fact. And Defendants decline to make that argument for good reason: Plaintiffs allege that Defendants' enterprise spanned years.
Plaintiffs allege that Bosch and GM conspired together. The additional allegation that Bosch also conspired in similar manner with Volkswagen is largely irrelevant. It is, at the very least, consistent with Plaintiffs' theory. Bosch's apparent belief that the alleged existence of a similar but separate agreement affirmatively establishes that no such agreement existed between Bosch and GM is unexplained. The Plaintiffs' well-pleaded allegations must be construed in their favor and accepted as true at this stage.
The nature of the common purpose distinguishes this case from others, like Shaw v. Nissan N. Am., Inc. , where the alleged purpose was to continue selling vehicles that (might have) contained defects. 220 F.Supp.3d 1046, 1054 (C.D. Cal. 2016). The common purpose here was to create, market, and sell a component and consequently an engine which was inherently deceptive.
The fact that two distinct companies (Bosch and GM) associated together for a common purpose is important. That fact distinguishes the present case from several which Defendants cite. See Ignition Switch Litig. , 2016 WL 3920353, at *12 (no enterprise because the only alleged members were GM and its agents); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig. , 826 F.Supp.2d 1180, 1185 (C.D. Cal. 2011) (no RICO enterprise because all defendants were subsidiaries of Toyota). It is axiomatic that a company cannot form a RICO enterprise with itself. But, of course, several companies can easily form a RICO enterprise. See United States v. Huber , 603 F.2d 387, 394 (2d Cir. 1979). See also In re ClassicStar Mare Lease Litig. , 727 F.3d at 493.
The Sixth Circuit has "interpreted the mail-fraud and wire-fraud statutes as having essentially the same elements, except for the use of the mails versus the wires." Kennedy , 714 F.3d at 958.
As the Kerrigan Court explained, when the RICO claim is premised on a concealment theory of fraud, the plaintiffs do not need to meet the Rule 9(b) heightened pleading standard when identifying the mailings. Rather, Plaintiffs need only "provide a detailed description of the fraudulent scheme and a clear explanation of each Defendant's alleged role in it." 112 F.Supp.3d at 607. Plaintiffs have done so here.
Bosch also argues that Plaintiffs cannot satisfy the predicate act requirement by alleging that Bosch "aided and abetted" GM in violating the mail and wire fraud statutes. As explained above, this argument conflates several legal requirements. Plaintiffs must allege that Bosch engaged in two predicate acts under the RICO statute. The alleged predicate acts, mail and wire fraud, can be committed without actually using the mail or wire. A charge of mail or wire fraud, then, bears a certain resemblance to conspiracy law. As explained above, Plaintiffs have plausibly alleged that Bosch committed predicate acts of mail and wire fraud. Thus, Plaintiffs' RICO theory does not rely upon "aiding or abetting" liability. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3426787/ | Appellant was convicted of assault and battery and fined $100 pursuant to the verdict of the jury.
Prosecution was begun in the city court of Fort Wayne. There was an appeal from a conviction to the circuit court. The prosecution was based upon an affidavit which, omitting the caption and signatures, is as follows:
"William Todd swears that George W. Hughes and Mattie C. Hughes, on the — day of August, A.D. 1936, at the County of Allen and in the State of Indiana, did then and there in a rude, insolent and angry manner unlawfully touch, beat and strike the person of one William Todd and Maud Todd. *Page 579
"Then and there being contrary to the form of the Statute in such case made and provided."
The first error assigned is upon the overruling of appellant's motion to quash the affidavit.
It is contended by appellant that the affidavit charges four separate offenses, i.e., a separate assault and battery by each of the defendants upon William Todd and upon Maud Todd. The jury was instructed, however, that to justify a conviction the evidence must show "that the defendant George W. Hughes committed an assault and battery upon the person of both of the Todds." Why a like instruction was not given in respect to Mattie C. Hughes does not appear. No reason is seen why a different rule should apply to her.
There are cases which hold that a criminal charge is not bad for duplicity because based upon an injury to two persons, if the injuries were caused by a single act of the defendant. 1. Among them are cases involving the cutting down and carrying away of growing trees from two tracts of land, the property of different persons, where the cutting was a single transaction; the larceny of money and other property, belonging in part to two different persons. Brogan v. State (1927),199 Ind. 203, 156 N.E. 515. It is said in Knopf v. State (1882),84 Ind. 316, 324: "When several acts relate to the same transaction, and together constitute but one offense, they may be charged in the same count, but not otherwise." In Commonwealth
v. O'Brien et al. (1871), 107 Mass. 208, there was an indictment charging an assault and battery upon two persons. The defendants asked an instruction to the effect that if the assault was upon one only the jury must acquit, but the trial judge refused to so instruct. It was held to be well settled that "a man who assaults two persons at the same time may be charged in a single count with the assault upon both as one breach of the *Page 580
peace," and that a conviction is supported by proof of an assault upon either, upon the theory that it is enough to prove so much of the indictment as shows that the defendant has committed the substantive crime therein specified, although he is not guilty of all that is charged against him. This is consistent with all of the cases, if it is assumed that the assault charged to have been committed upon the two was accomplished by a single act. The question of whether the indictment must show that it was a single act is not discussed. In Kenney v. State (1858), 5 R.I. 385, 387, the court had under consideration an indictment charging an assault upon two persons. In sustaining the indictment, the court said in reference to Rex v. Benfield (1760), 2 Burr. 983, 984: "The precise point decided in this case was, that an information charging a libel upon two might be supported; and if so, there seems to be no reason why the charge of an assault upon two may not, provided, which we are bound to presume upon such an application as this, the proof correspond with the charge." Concerning a similar indictment, the Supreme Court of Michigan, in People v. Ellsworth et al. (1892), 90 Mich. 442, 446, said: "It must be conceded that it would be possible for a person to commit murder, and kill more than one person, by one and the same act; for instance, by putting poison in an article of food used by several, or by shooting two persons by one discharge of a loaded gun. It would also be possible to make an assault with intent to do great bodily harm, less than the crime of murder, upon two persons at once, and by the same act or acts. In such case, it is admissible to inform against one or more persons for such assault upon two persons. . . . None of the testimony taken on the trial is returned in the record, and therefore we must presume that the evidence showed that the assault upon the two persons was one and the same transaction." In Woodford v. People of *Page 581 the State of New York (1875), 62 N.Y. 117, 127, 130, one person was indicted for burning a number of designated dwelling houses by a single act. It is said in the opinion: "For aught that appears in the indictment these houses were all in a block or row, and all connected together, and if not that they were so situated that the firing of one would naturally if not necessarily burn and destroy the others, or at all events that the fire was communicated to all from a single setting. They are charged to have been burned by a single act of firing and burning. A conviction upon separate indictments could not be had for each separate house, although an indictment may have been good for any one, and a conviction or acquittal upon such an indictment would be a bar to an indictment for burning any other house burned by the same act. These consequences must follow from the position that there was but one crime committed in respect to all the dwelling-houses, and that the respective counts charge but one crime." In the opinion, the case of Rex v. Benfield,supra, is interpreted as only justifying "an indictment for all the consequences of a single act." In Clem v. State (1873),42 Ind. 420, it is held that if a person assaults and kills two persons with a single shot, or with a single blow of an instrument, so that the injury to both results from one indivisible act, it is one offense against the state, and a conviction of having murdered one will bar a prosecution for the murder of the other. In Joslyn v. State (1891), 128 Ind. 160, 27 N.E. 492, the court considered an information in one count charging a larceny of the property of two persons. In holding the information bad for duplicity, the court recognized that there may be cases where the larceny of property belonging to different persons may constitute a single offense, "as, for instance, where it (the property) is all in one bundle or in one package, . . . as in such a case there is a single and indivisible *Page 582
act, and it may be a single crime." But the information did not allege facts showing that the property of both persons was stolen under circumstances which would show that it constituted but one act and one larceny. It is pointed out that every larceny is a trespass against the owner, and that, where there is a charge of a trespass against two, the implication is that the trespasses were separate and distinct, and that, there being no allegations of fact negativing this implication, the indictment was bad for duplicity. This case seems decisive of the questions here presented. It will be noted that some of the cases from foreign jurisdictions above referred to hold that an indictment is good charging crimes against two persons, upon the theory that the evidence might establish that the injuries were the result of a single act. The result under such a rule must be a trial in every case and a ruling that evidence is insufficient to sustain a conviction unless it shows that the resulting injuries were the result of one indivisible act. It would seem that the better rule is that laid down in the Joslyn case, which assumes prima facie that injuries to two persons are distinct offenses, and that, unless facts are alleged showing the injuries to be but a single offense, such a count will be held bad for duplicity. The Joslyn case seems to have established the rule as the law in this state, and no reason is seen for departing from it. The court erred in overruling the motion to quash.
An examination of the evidence discloses that the acts relied upon as establishing assault and battery upon the two persons named were separate and distinct. The defendants, husband 2. and wife, and those against whom the assault and battery is charged to have been committed, also husband and wife, engaged in a conflict concerning a fence. It began with an encounter between Mrs. Hughes and William Todd, in *Page 583
which blows seem to have been struck by both. George Hughes rushed to his wife's assistance, and engaged in a separate conflict with Todd, in which they clinched and fell to the ground. Todd called to his wife for assistance. Mrs. Todd testified that as she approached the scene, Mrs. Hughes struck her with a board from the fence, although Mrs. Hughes said she struck her with her fist. Afterwards, Mrs. Hughes approached her husband and Todd, where they were clinched upon the ground, and seems to have struck them both indiscriminately with a board. She said that her glasses were broken in the encounter with Todd and that she could not see. Her husband shouted for her not to hit him, and Todd says he was struck by the board. If the affidavit had alleged that the assault and battery upon each of the persons charged to have been injured was the result of a single act, so that it would be good under the rule laid down in the Joslyn case, the evidence referred to would not support it. If there had been four separate offenses charged, in four separate affidavits, i.e., that George Hughes was guilty of an assault and battery upon William Todd, that he was guilty of an assault and battery upon Maud Todd, and that Mattie C. Hughes was guilty of an assault and battery upon William Todd, and that she was guilty of an assault and battery upon Maud Todd, an acquittal upon one such affidavit, upon the evidence referred to, would not bar a prosecution upon the others, upon the theory that they were all but one offense; and it must be concluded, upon the reasoning of all the cases referred to, that the facts show separate offenses, if any.
The state contends that the bills of exceptions containing the evidence and the instructions are not in the record. It is asserted that: "To bring a bill of exceptions containing 3. the evidence into the record it must affirmatively appear from an order *Page 584
book entry that the bill of exceptions was presented to and approved by the judge and was filed with the clerk after such approval." Rogers v. State (1937), 211 Ind. 47,5 N.E.2d 509, 510, is relied upon to support this view. That case merely holds that it must appear by the record that the bill was filed with the clerk after it was signed by the judge; the record referred to being the transcript filed in this court. It is not required that an order book entry show that the bill was presented to and approved by the judge. It may be presented to and approved by the judge in vacation, and filed with the clerk in vacation, or filed in open court. The bills of exceptions disclose their presentation and approval by the judge, and that they were signed by the judge, and upon the same day there is an order book entry showing that they were filed in open court. InMartin v. State (1897), 148 Ind. 519, 47 N.E. 930, it is held that where the entry shows the filing of a bill of exceptions, and the bill so filed discloses that it was tendered to and signed by the judge on the same day, it is sufficient. The bills of exceptions are properly in the record.
Both of the Todds were witnesses. Upon cross-examination they were asked whether they had a damage suit pending against the defendants. An objection was sustained. This was error. 4, 5. Upon cross-examination it is proper to develop any fact which tends to show interest, bias, or prejudice upon the part of the witness. Interest, bias, or prejudice, or antagonism is entitled to be considered by the jury as affecting the credibility of a witness. It is true that trial courts have some discretion as to the extent of the cross-examination, but this discretion may be exercised in controlling the length to which subjects may be developed, and not the subject-matter that may be gone into.
The following instruction was given: "The court further instructs you that mere threats on the part of the *Page 585
complaining witness directed towards the defendants would not of themselves be sufficient to justify an attack by the defendants upon the complaining witness on the theory of self-defense. Before the defendants could be justified in assaulting the complaining witness, if you find beyond a reasonable doubt they did, upon the theory of self-defense, it was necessary that said defendants be violently assaulted, mere threats to assault or sportive or indifferent efforts at assault by the complaining witness not being sufficient." This instruction is said to have been given upon authority of Isabel v. State (1929),90 Ind. App. 131, 133, 166 N.E. 304, where it is said: "Criticism is made of the statement: `That, before a person may exercise the right of self-defense, he must first be violently assaulted.' It is admitted by the appellant that said instruction No. 8, as given by the court, was approved in the case of Smith v. State
(1895), 142 Ind. 288, 41 N.E. 595. . . ." But such an instruction was not approved in Smith v. State. We quote from the instruction there approved (p. 296): "Where a person being without fault, and is in a place where he has a right to be, so far as his assailant is concerned, is violently assaulted, he may, without retreating, repel force by force. . . ." There is a vast difference between saying that when one is violently assaulted he may defend himself, and saying he may not defend himself unless he is violently assaulted. The statement inIsabel v. State, supra, seems to have been made by the court under a misapprehension because of an admission by appellant concerning Smith v. State, which is not borne out by an examination of the case, and, for that reason, Isabel v.State should not be considered an authority upon the question.
The instruction is erroneous for several reasons. It is not necessary that a person be violently assaulted, or *Page 586
assaulted at all, before he has the right to defend 6, 7. himself. A person has a right to act on appearance, and if he believes, in good faith and upon reasonable grounds, from the facts and circumstances as they appear to him at the time, that he is about to be assaulted, he has a right, if it seems reasonably necessary to him at the time, to use such force as will protect him from the assault. The word "assault" implies force, and in one sense the term "violently" also implies force, but, in connection with the word "assault," which also implies force, it generally implies great force. One may defend himself against any assault. "Violently" may imply great or extreme force. A violent presumption is something more than a mere presumption; a violent storm, more than an ordinary storm; a violent attack, more than an ordinary attack. State v. Miller
(1926), 141 Wn. 104, 250 P. 645. In the first part of the instruction it is said that mere threats to assault are not sufficient to justify self-defense, and the last words of the instruction are, "mere threats to assault or sportive or indifferent efforts at assault by the complaining witness not being sufficient." It is true that threats of themselves are not sufficient, but a threat at a time when there is present ability to assault, and under circumstances which lead the defendant in good faith reasonably to believe that he is about to be assaulted and injured, is sufficient. If the word "indifferent" is used as synonymous with apathetic or heedless, unimportant or poorly executed, efforts at assault, the instruction is on dangerous ground. The defendant, under necessity of determining at once whether it was necessary to defend himself, had a right to act on appearances, and we know of no rule of law which distinguishes between a well and a poorly executed assault in determining the right to self-defense. The use of the word "sportive" at best may be highly misleading. As Webster defines it, it may *Page 587
mean frolicsome or playful, or it may also mean amorous, wanton, or lecherous. If the defendant at the time reasonably and honestly believed that she was in danger, she had a right to defend herself, and to use such force as seemed reasonably necessary for her protection, regardless of whether the jury should afterwards determine that she was violently assaulted, or that her assailant had no actual intention of assaulting her, and regardless of the motive or quality of the assault. The instruction as given is erroneous and prejudicial.
Judgment reversed, with instructions to sustain appellant's motion for a new trial, to permit appellant to withdraw her plea, and to sustain appellant's motion to quash the affidavit. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426788/ | Appellant was one of three defendants held to answer a joint indictment for murder in the Criminal Court of Marion County. While the others were on trial the court on appellant's motion ordered the venue as to him changed to Boone county, the order directing that a certified copy of the indictment, in lieu of the original, be delivered with the transcript to the clerk of the Boone Circuit Court. After a five-day jury trial with verdict of guilty appellant, for the first time, by motions in arrest of judgment and for a new trial raised the question, now before us, that without delivery of the original indictment to the court below it did not acquire jurisdiction. There is support for this contention *Page 678
in early Indiana cases. If they are sound they should be followed, otherwise overruled.
When an accused voluntarily appears or is held on warrant to answer an indictment or affidavit filed in a court which has the power to hear and determine his guilt of the kind of 1-3. offense with which he is charged, the court has jurisdiction. These elements of jurisdiction — subject matter and person — may not be waived. But the procedural steps by which jurisdiction is invoked are not themselves jurisdictional and, generally speaking, may be waived.
"Venue in its modern and municipal sense relates to and defines the particular county or territorial area within the State or district in which the cause or prosecution must be brought or tried. It commonly has to do with geographical subdivisions, relates to practice or procedure, may be waived, and does not refer to jurisdiction at all." Paige v. Sinclair
(1921), 237 Mass. 482, 130 N.E. 177. See also 67 C.J. 12.
The court seems not to have observed the distinction between jurisdiction and venue when the cases cited by appellant, and supplemented by our own research, were establishing the rule upon which appellant relies. The line of cases began in 1845 withDoty v. State (1845), 7 Blackf. 427, and stopped rather abruptly in 1883 with Keith v. State (1883), 90 Ind. 89, although in two comparatively recent cases, State v. Mabrey
(1927), 199 Ind. 276, 157 N.E. 97, and Tokacs v. State
(1930), 202 Ind. 259, 173 N.E. 453, there is language seeming to assume the validity of the rule. Intervening cases are listed chronologically as follows: Engleman v. State (1850),2 Ind. 91; Sawyer v. State (1860), 16 Ind. 93; Pulling v. State
(1861), 16 Ind. 458; Adell v. State (1870), 34 Ind. 543;Bailey v. State (1872), 39 Ind. 438; Fawcett v. State
(1880), 71 Ind. 590; Leslie *Page 679
v. State (1882), 83 Ind. 180; Duncan v. State (1882),84 Ind. 204; Powers v. State (1882), 87 Ind. 144; Bright v.State (1883), 90 Ind. 343. Not all of them apply the rule. In some it is recognized by way of dictum. In Bright v. State,supra, the court reached the unusual conclusion that the original affidavit for change of venue is not an original paper within the meaning of the change of venue statutes.
Doty v. State, supra, was decided at a time when the procedure on change of venue in a criminal case was governed by the 1824 statute applying to civil cases. See R.S. 1838, pp. 601-603. Then no transcript on change of venue was required. It was the clerk's duty
"to send forward the papers in said suit, by some meet person employed by such clerk to such court having jurisdiction in similar cases . . . and the court to which such papers are sent, shall be and is hereby vested with full power, authority and jurisdiction. . . ."
The court stated that there was nothing in the record to show that the indictment was ever filed in the court to which venue was transferred, and though there was a transcript (not required) containing a copy of the indictment the court lacked jurisdiction. If jurisdiction did not exist, of course the judgment was void. And there the court should have stopped but it seemed to think it necessary to assign as a further reason for reversing the judgment error in the charge to the jury.
The Doty case is the only pertinent authority cited in Sawyer
v. State, supra, decided after the 1852 Revision which contained procedural requirements applying only to criminal cases. These are found in 2 R.S. 1852, p. 371, §§ 78 and 79, and 2 Gavin Hord, p. 406. The sections have been amended in several respects but occupy the same relative positions in all subsequent *Page 680
revisions. See §§ 1771 and 1772, R.S. 1881, and §§ 9-1305 and 9-1306, Burns' 1942 Replacement. Most of the cases above cited were decided while either the 1852 or 1881 Revisions was in force. There has been no change in the following language in § 78, supra:
"The clerk must thereupon make a transcript of the proceedings and order of court, and having sealed up the same with the original papers, deliver them to the sheriff, who must without delay deposit them in the clerk's office of the proper county, and make his return accordingly."
This sentence was followed immediately by § 79, reading:
"The jurisdiction of the latter court is complete, and the cause must be docketed and stand for trial at the first term."
The proximity of these two sentences may have led the court to believe that strict compliance with the former was a condition precedent to the acquisition of jurisdiction. This, we think, was unnecessarily read into the statute. It is just as logical to believe that the legislative intent behind the words:
"The jurisdiction of the latter court is complete . . . .," was to make clear that the court to which the case was transferred should have as complete jurisdiction as the court from which it came. The legislature could not have been unmindful of the provisions in both the 1816 and 1851 Constitutions that
". . . the accused shall have the right to a public trial . . . in the county in which the offense shall have been committed. . . ." Art. I, § 13 of each Constitution.
and of the statutory provisions that the indictment must be returned in that county and that *Page 681
"Every criminal action must be tried in the county where instituted, except when otherwise provided. . . ." See 2 R.S. 1852, p. 370, § 75, and § 9-201, Burns' 1942 Replacement.
In view of these provisions, assurance that the court receiving the case on change of venue should have "complete" jurisdiction may have been thought necessary. Other than this proximity of the two sections the only reason which suggests itself to us, and it is not stressed in the cases, is the court's disposition during those years to treat statutory procedural requirements as mandatory and not directive.
Even while this rule was becoming established the court in several cases recognized that venue was procedural and that the statutory provisions might be waived. In Bosley v. Farquar
(1827), 2 Blackf. 61, the court said:
"In reviewing those proceedings, we cannot but perceive that the objection to the jurisdiction of the Washington Circuit Court comes too late. If the venue had not been regularly changed, or not changed at all, from Orange to Washington, this matter should have been rectified in the Washington
Circuit Court, before any other proceedings were had in the case. As no objection was then made, nor in fact made at any time in that Court, none can avail here."
Again in Burnham v. Hatfield (1838), 5 Blackf. 21, Judge Blackford said:
"This suit was commenced in Allen County, and removed by a change of venue to Huntington.
"There are some objections made to the form of the order for the change of venue, but they come too late. They were waived by pleading to the action in the Huntington Circuit Court." *Page 682
From Clark v. State (1853), 4 Ind. 268, we quote:
"It was competent for the Rush Circuit Court to grant a change of venue in the cause back to the Henry Circuit Court, upon a proper application. It did grant such change, and the defendant consented to it, and afterwards appeared in the cause in the latter Circuit Court. If there was anything irregular, therefore, in the manner of taking the change, it was waived by the defendants."
See also Wall v. State (1864), 23 Ind. 150, 155; App v.State (1883), 90 Ind. 73. In O'Brien v. State (1890),125 Ind. 38, 25 N.E. 137, the opinion discloses doubt of the necessity of filing the original papers and a belief that the failure so to file was an irregularity susceptible of correction and one that might be waived.
Soon thereafter came Burrell v. State (1891), 129 Ind. 290, 28 N.E. 699, wherein jurisdiction was questioned because of a defective transcript from the Jackson to the Orange Circuit Court. The court said:
"When the change of venue was granted and the cause ordered transferred to the Orange Circuit Court, it became the duty of the clerk of the Jackson Circuit Court to make and transmit a correct transcript, together with the files. Whenever he learned in any manner that he had forwarded an imperfect transcript, he had the right, and it was his duty, to correct his mistake, and thus comply fully with the order made. It is therefore not material whether the Orange Circuit Court was, or was not, authorized to make an order requiring him to do his duty. It is not denied that the last transcript is correct and complete.
"In our opinion, if the appellant was in a position to raise the question, it would not avail him. We think, however, he is precluded by the record from raising this point, even if there is any merit in it. The record of the Orange Circuit Court shows, as above stated, that on the 14th day of October, 1889, the cause was continued `by consent of the parties.' While the record does not otherwise *Page 683
affirmatively show that the appellant was in court at that time, it will be presumed that he was, as every legal presumption favors the action of the court. Welsh v. State, 126 Ind. 71.
"It will be presumed, therefore, that the accused voluntarily appeared in the Orange Circuit Court at that time and submitted himself to its jurisdiction, and consented to a continuance. At that time a transcript and the files were in fact on file in that court, and such appearance and agreement constitute a waiver of any mere technical informality in the transmission and certification of the papers."
The concurring opinion of Judge Martin in Stephenson v.Daly (1927), 200 Ind. 196, 205, 158 N.E. 289, 292, discloses the contention that because the clerk of the originating court had not signed the transcript the other court did not acquire jurisdiction. This was declared to be a "technical informality" which could be waived. See also Kirschbaum v. State (1925),196 Ind. 512, 149 N.E. 77.
Other than as above set forth we find no Indiana cases shedding light on the subject. We therefore turn to cases from other jurisdictions. It has been held in numerous cases, and we think it is the general rule, that the jurisdiction of the court of origin ceases when its order is made changing the venue. The order itself vests jurisdiction in the other court. State v.Hibbard (1907), 76 Kan. 376, 92 P. 304; Patterson v. State
(1937), 234 Ala. 342, 175 So. 371 (Cert. denied, 302 U.S. 733, 58 S. Ct. 121, 82 L. Ed. 567); State v. Marty (1925), 52 N.D. 478,203 N.W. 679; Ex Parte Lancaster (1921), 206 Ala. 60,89 So. 721, 18 A.L.R. 706; State v. Thomas (1923), 301 Mo. 603, 256 S.W. 1028; Webb v. State (1937), Tex.Crim. App.,106 S.W.2d 683; State v. Morgan (1920), 147 La. 205, 84 So. 589 (Cert. denied 253 U.S. 498, 40 S. Ct. 588, 64 L. Ed. 1032); Rooks
v. Marks (1942), 59 Ariz. 348, *Page 684 129 P.2d 303 (quoting from Brown v. Gilmor's Executors (1855),8 Md. 322, and Fisk v. Albany R. Co. (1870), 41 How. Prac. N Y 365), from the headnotes in the latter as follows:
"Where an order is made, changing the place of trial in a cause to another county, the change is effected at once. The transfer of papers is a subsequent clerical duty."
See also 22 C.J.S. Criminal Law, § 215, p. 340.
We are aware that there is authority in Indiana for the view that the jurisdiction of the second court is not invoked until a transcript is there filed. See Fawcett v. State, supra;
4. App v. State, supra; State v. Mabrey, supra; Stephenson v. Daly, supra. Frequently a problem arises, more particularly with reference to the power to make emergency interlocutory orders, as to which of the two courts has jurisdiction in the interval between the order of transfer and the filing of the transcript in the other court. We are not now concerned with this problem. Nor are we here dealing with a civil case where the cost of transcript must be paid before the clerk transmits the papers. See § 2-1406, Burns' 1933. There is no such provision in the statutes relating to change of venue in criminal cases. For present purposes it is sufficient to say that if the order itself does not change the venue, the filing of the transcript, even though defective, does invoke the jurisdiction of the court. Our inquiry is therefore confined to the question as to whether or not the presence of the original indictment in the court which tries the case is indispensable or its absence is an irregularity which like other irregularities in procedure on change of venue may be waived. All of the cases from other jurisdictions above cited sustain the latter conclusion. *Page 685
It appears in John, a slave v. State (1841), 2 Ala. 290, that there was a statutory right to a change of venue but that the procedure for completing the change was prescribed by a rule of the Supreme Court. The court said:
"The rule was not intended to apply to criminal cases, where more persons than one are indicted, when one only shall apply for a change of venue. In such a case, if the accused makes out a sufficient cause, he is entitled by statute, to a change of venue; but the original papers of right appertain to the Court, which retains jurisdiction over such of the accused, as do not desire, or cannot procure a change of venue. A transcript of the record, which must necessarily include a transcript of the indictment, as well as of all other original papers, is all which can regularly be transmitted to the Court, to which the venue is changed. The accused, who under such circumstances, asks for a change of venue, may be tried on such a transcript, and his consent, if that is to be considered as essential, will be infered from his application. If the practice was otherwise, the monstrous absurdity might result, that the prosecution against the others accused, might be terminated, or indefinitely delayed, by the measure of grace accorded the one, who sought elsewhere a trial which he might not obtain in an impartial manner in the county where the indictment was prefered.
"We do not mean to be understood that a prosecution must fail, if in such a case as this, the original papers instead of a transcript, are transmitted in consequence of an irregular order, such as we have noticed. The law of such a case can be determined when it shall arise."
In State v. Marty, supra, the North Dakota statute was said to have been adopted from California. Overruling the contention that the clerk's failure immediately to prepare and transmit a transcript prevented the acquisition of jurisdiction, the court quoted from *Page 686 People v. Suesser (1904), 142 Cal. 354, 358, 75 P. 1093, 1095:
"The statute provides that an order must be made `transferring the action,' and when such an order is legally made the court making it has no jurisdiction to proceed further in the cause, so long at least as that order remains unrevoked. The certified copies to be forwarded to the court to which the action has been transferred are but evidence of the order of transfer and of the proceedings in the court from which the transfer has been made. There is nothing in the statute which makes the furnishing of such evidence essential to the `jurisdiction' of the court to which the transfer is made. Just as in the matter of service of a summons or a notice of appeal, it is the fact of service rather than proof thereof that gives jurisdiction, so here it is the fact of the making of the order rather than the proof thereof that transfers jurisdiction."
In Gardner v. United States (1904), 5 Indian Territory Reports 150, 82 S.W. 704, the statute for removal required a
"full transcript of the records and proceedings in the cause including the order of removal, the petition therefor. . . ."
Not until his motion for new trial did the appellant raise the question that the transcript was insufficient because it did not contain a copy of the petition for removal. This the court said was too late.
The case of Jenkins v. Commonwealth (1915), 167 Ky. 544, 180 S.W. 961, 3 A.L.R. 1522, discloses that Kentucky has a statute applying to change of venue asked by a defendant that provides for certifying a copy of the indictment under a factual situation like that of the case at bar. It was contended that this *Page 687
did not apply when the application was made by the State. Answering this contention the court said:
"But in any event the last named section points out a common sense mode of procedure for the Commonwealth in such circumstances. . . ."
The important consideration in any criminal trial is that the defendant shall be fully informed of the charge upon which he is being tried and this may be accomplished by copy as well as by the original indictment. Missouri has the statutory requirement that only copies be transmitted on change of venue. In several cases in that state contention has been made that sending the original papers instead of the copies did not give jurisdiction to the court to which they were sent. Among them are State v.Rodman (1903), 173 Mo. 681, 73 S.W. 605, and State v.Morefield (1938), 342 Mo. 1059, 119 S.W.2d 315. In the case last cited the court said:
"The purpose of the statute, Section 3640, Revised Statutes 1929 (Mo. Stat. Ann., 3200), in requiring a clerk to transmit a certified copy of the proceedings, in a change of venue case, to the county where the case has been transferred, is to insure the court acquiring jurisdiction and the parties to the suit that the papers are authentic. The mere fact that the clerk certified to the original papers was an irregularity not fatal to the prosecution in the new jurisdiction. Neither does such an irregularity affect the jurisdiction of the court."
One of the most illuminating cases is J.J. Mayou, Mfg. Co. v.Consumers Oil Refining Co. (1944) [Wyo.], 146 P.2d 738, 151 A.L.R. 1243. It was a civil case but we can see no reason why in determination of the question of jurisdiction the same principles should not apply to civil and criminal cases. There is no sanctity or magic attaching to an original indictment *Page 688
that makes it different from an original complaint. Each is the initial pleading and no more.
Wyoming has a statute reading:
"The jurisdiction of the court to which the change is directed is complete upon the filing of original papers and transcript in the clerk's office in that court, and the cause must be docketed and stand for trial as if it had originated in that court." § 89-1109, Wyo. Rev. Stat. 1931.
It will be noted that there is more warrant in this statute than in our own for the implication that such filing is a condition precedent to the acquisition of jurisdiction. But in this case, as in the one before us, instead of the original papers certified copies were sent. The case was tried and no objection to jurisdiction was made before the appeal. After stating the facts and distinguishing two cases the court said:
"In the recent case in Myuskovich v. State,
Wyo. 141 P.2d 540, we discussed Section 20-433, Rev. St. 1931, reading that `jurisdiction over proceedings to compel support is vested in the district court of the county in which the alleged father is permanently or temporarily resident,' etc. We held that the jurisdiction here mentioned did not relate to the subject matter; that statutes relating to venue are procedural merely, and may be waived. The jurisdiction in the case at bar relates to the pleadings filed in a particular court. If the pleadings had been lost copies, including the certified copies of the Clerk of Weston County, could have been substituted. 49 C.J. 658. No jurisdiction of the subject matter would be involved in such case. Neither do we think it is involved in the case at bar, and that the defendant by going to trial waived the fact that the original pleadings were not sent to Crook County. A case direct in point is Granger v. Warrington, 3 Gilman, 299, 305, 8 Ill. 299, 305, where the court said:
"`The first assignment questions the correctness of the decision below, in refusing to dismiss the *Page 689
cause in Du Page, for the reason that the original papers had not been transmitted by the clerk of the Cook Circuit Court to the Du Page Court. The statute relative to a change of venue requires that the clerk shall transmit all papers filed in the cause and appertaining or forming part of the record. But can a party who has obtained a change of venue, taken several steps in the cause, consented to a continuance, and at a subsequent term went to trial without objection, make this motion? We think not. The declaration and other pleadings and proceedings in the cause must have been before the Du Page Court in some form, as all the proceedings of the Cook Court have been sent up in the record. If only copies were transmitted by the clerk of Cook to Du Page, it only amounted to an irregularity, which was waived by the defendant below appearing in Du Page and consenting to a continuance, and subsequently to a trial without objection.'
"See also Burrell v. State, 129 Ind. 290, 28 N.E. 699."
What is said in 49 C.J. 658 (referred to supra) about substitution of copies for original pleadings lost or destroyed, is expressly covered by § 9-905, Burns' 1942 Replacement, which applies not only to indictments lost or destroyed but to those mislaid or stolen. Every indictment must be recorded when returned, § 9-904, and so long as the record is extant, there is a copy available. It would make no difference if the original were mislaid before or after the change of venue. Either court could substitute a copy. Jurisdiction would not be affected if the original were lost, destroyed, mislaid or stolen. Its presence does not confer nor its absence destroy jurisdiction. If without it the Boone Circuit Court had no jurisdiction, by the same token its transfer to Boone County would have deprived the Criminal *Page 690
Court of Marion County of its jurisdiction to continue the trial of appellant's co-defendants. We cannot countenance a rule that would result in such an absurdity.
We conclude therefore that the Boone Circuit Court had jurisdiction and the procedural provision for transmission of the original indictment was waived by appellant's going to 5. trial upon the copy ordered sent by the Criminal Court of Marion County. All the Indiana cases above cited in conflict with this opinion are hereby overruled.
Appellant has one further contention, namely, that the certified copy of the indictment sent to Boone county lacked the signature of the foreman of the grand jury and therefore 6-8. was insufficient to confer jurisdiction. He cites in support thereof a number of cases holding that an original indictment unsigned by the foreman of the grand jury is bad on motion to quash. We have no quarrel with this rule but it is not applicable in the case at bar. It is provided by § 9-901, Burns' 1942 Replacement, that when found the indictment
"must also be indorsed by the foreman of the grand jury `A true bill,' and he must subscribe his name thereon as foreman."
The next section states that:
"As soon as the grand jury has returned an indictment into court, the judge must examine it; and if the foreman has neglected to indorse it `A true bill,' with his name signed thereto . . . the court must cause the foreman to indorse it . . . in the presence of the jury."
The certified copy of the indictment sent to Boone county is incorporated in the record before us and shows indorsement *Page 691
of the words "A true bill" with a line for signature, but no signature of the foreman. The record further shows, however, an order book entry in the Criminal Court of Marion County as follows:
"Come now the Grand Jurors of Marion County, Indiana, heretofore duly impaneled, sworn and instructed as by law provided, and return in open Court 19 bills of indictment, which are duly signed by Sherwood Blue, Prosecuting Attorney, and are each duly endorsed as true bills by James M. Atkinson, the Foreman of the Grand Jury. Said bills of indictment are now examined in open court, the amount of bail endorsed on each by the said Hon. William D. Bain, Judge, and they are now marked filed, and numbered as follows, to-wit:
"Cr. 1380 Cooper Leoon Bledsoe "FIRST "Albert McCauley McBride DEGREE "Kenneth Carroll" MURDER"
Where there is a variance between parts of the record it is the duty of this Court, if it can, to determine which part of the record is accurate and must be credited. It has been said that as between a transcript of the record made by the clerk and a bill of exceptions signed by the judge, the latter will be accepted because
"the bill of exceptions brings the facts distinctly to the attention of the judge who signs it." State
v. Flemons (1855), 6 Ind. 279.
While there is no bill of exceptions here involved, we do have on the one hand a record of an order book entry, presumed to have been signed by the judge (State v. Hanna [1882],84 Ind. 183), reciting that he examined the indictments and that they were properly indorsed by the prosecuting attorney and the foreman of the grand jury. On the other hand we have a copy of the indictment verified only as such copy by the signature of the clerk. As between the two it seems *Page 692
to us that we should credit the former rather than the latter and explain the discrepancy by the neglect of the clerk to make a true copy of the indorsements on the original indictment.
Appellant does not contend that the indictment was not properly indorsed, but only that the copy fails to show the indorsement. This was within his knowledge before the trial, but it was 9. not brought to the attention of the court until after verdict. The Boone Circuit Court, even after verdict, was not without the power to make inquiry concerning an alleged lack of indorsement on the original indictment. The order of the Criminal Court of Marion County directing that the certified copy be sent to Boone County was made December 11, 1944, and as shown therein was occasioned by the fact that appellant's co-defendants were then on trial on the original indictment. Appellant's trial in the Boone Circuit Court began February 14, 1945, and his motion for new trial was filed six days later. We see no reason why appellant, either before or after his trial, should not have raised the question in the Boone Circuit Court. In Burrell v.State, supra, appellant questioned the power of a court to which venue had been changed to order the clerk of the court from which it came to correct his transcript. It was deemed unnecessary to decide this question. In other jurisdictions this power has been recognized. See 22 C.J.S. Criminal Law, § 216 (d), p. 343. The court did say, however, as above quoted that it was the clerk's duty
"Whenever he learned in any manner that he had forwarded an imperfect transcript . . . to correct his mistake, and thus comply fully with the order made." *Page 693
If contention had been made in the Boone Circuit Court that the original indictment had never been indorsed, the judge or either of the parties might have brought to the attention of the clerk of the Criminal Court of Marion County the state of the record made by him and his duty in the premises, which would have resulted in the verification or refutation of the questioned fact. If the indorsement of the foreman is an indispensable requisite of jurisdiction and if in fact the original indictment was not indorsed, appellant's counsel would justly be subject to criticism for failure to bring to the attention of the trial court that fact even after verdict. We shall not accuse them of such neglect but rather will assume that the indictment was correctly indorsed as disclosed in the order book entry and was not correctly copied through the inadvertence of the clerk.
Appellant cites a case dealing with the question of severance. There is no such question in this case for it is apparent from the record that severance had taken place prior to the time when he filed his application for change of venue.
Both of appellant's contentions, and there are no others, go not to substance but to formalities that may be and after verdict will be deemed to have been waived. The Boone Circuit 10-12. Court had jurisdiction of the subject matter and of appellant's person. He was fully informed of the charges that he was required to meet. He was represented by counsel experienced in the practice of criminal law. They have not brought the evidence or instructions to this court and we must assume that the trial was without error, or at least such as might be reversible. As stated in Robinson v. State (1912),177 Ind. 263, 97 N.E. 929:
"It would be a reproach to the law to require a judgment to be held for naught, and the State put *Page 694
to the expense of another trial, for a defect which did not prejudice the substantial rights of appellant, and which he could have had corrected before trial if it in fact existed. This we are forbidden to do."
The judgment is affirmed.
Note. — Reported in 64 N.E.2d 160. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426790/ | On October 23, 1930, appellee and appellant entered into an agreement as to compensation for injury sustained on October 16, 1930, by appellee, while in employ of appellant as structural iron worker. Said agreement was approved on October 23, 1930, by the Industrial Board and provided that appellee "receive compensation at the rate of $16.50 per week during total orpartial disability not exceeding period fixed by law." Appellee was injured by a blow on the head, at the edge of the hair line over his left eye, by falling iron when a derrick collapsed. On October 27, 1930, appellee executed a receipt in final settlement of compensation, which provided that disability ceased on said day and that total disability existed for ten days for which he received *Page 612
$7.08. This receipt was filed with the Industrial Board on November 14, 1930, but was never approved.
On October 27, 1930, appellee went back to work for appellant and because of recurring headaches appellee was given easy work to do but nevertheless was compelled to take time off from work because of headaches and sometime in January, 1931, quit his job and thereafter only worked at intervals, due to the fact that he was troubled with headaches and because his right hand and arm would always be numb and gave him considerable trouble. It was necessary for him to flex and rub his arm and fingers to relieve the numbness.
On October 6, 1932, appellee filed his application on Form 14 before the Industrial Board for the review of award on account of change in conditions. This application contained two grounds which are as follows, to wit:
"1. That the disability of said employee on account of said injury has recurred since the date of said award, or had not in fact terminated at the date of the award.
"2. That the disability of said employee on account of said injury has increased since the date of said award, and has continued since said date."
On November 15, 1932, on hearing before single member of the Industrial Board an order was entered ordering appellant, among other things, to pay to appellee $16.50 a week beginning February 3, 1932, during appellee's total disability, not exceeding period allowed by law. Appellant, on November 23, 1932, filed application for review by the full board of the original award. The full board, upon review, made the same order as the single member of the board. It is from this award that appellant prosecutes its appeal, assigning as error that the "award is contrary to law."
In order to answer the question herein involved it *Page 613
devolves upon the court to construe that part of section 45 of the Workman's Compensation Act, section 9490, Burns Supp. 1929 (§ 16421, Baldwin's 1934), which reads as follows, to wit:
"The Board shall not make any such modification upon its own motion, nor shall any application therefor be filed by eitherparty, after the expiration of one year from the termination ofthe compensation period fixed in the original award, made eitherby an agreement or upon hearing. The board may, at any time, correct any clerical error or mistake of fact in any finding or award." (Our italics).
The appellant contends that: "This appeal presents the question as to whether or not the Industrial Board can award 1, 2. compensation to an injured employe on a finding that his temporary total disability has recurred when said finding affirmatively shows that the alleged recurrence of disability did not take place until the expiration of more than one year after the employee's original period of temporary disability has been terminated."
This question has been completely and positively answered in the case of Ft. Branch Coal Mining Company v. Farley (1921),76 Ind. App. 37, 131 N.E. 229. The facts in the Ft. Branch CoalMining Company v. Farley case, supra, and in the case at bar are as near parallel as it is possible to be in two cases.
The appellant in his reply brief attempts to distinguish the case at bar from the Ft. Branch Coal Mining Company v. Farley
case but we can see no distinguishing facts. It would extend this opinion unduly to do more than quote the language of that case, wherein Dausman, J., speaking for the court, said: "In cases like the one at bar the compensation period stated in the original award can terminate in one of two ways only: (1) By the lapse of the maximum time fixed by *Page 614
statute; or (2) by the actual (not apparent) permanent (not temporary) cessation of the total disability." Our interpretation of the court's meaning of "by the lapse of the maximum time fixed by statute" is that when five hundred weeks compensation had been paid and not merely the elapsing of five hundred weeks from the date of the original award and that as to the second that the termination can only come "by the actual (not apparent) permanent (not temporary) cessation of the total disability," when this has been found by the board either by the approval of a final receipt or by a specific finding. Ft. Branch Coal Mining Company v.Farley, supra; Adams v. Smith (1930), 91 Ind. App. 529,171 N.E. 882. In the case of Adams v. Smith, supra, the court said that the mere signing of a receipt is not enough to fix the date when total disability ends and the Ft. Branch Coal MiningCompany v. Farley case holds that even the filing of the receipt with the board is not sufficient. It is clearly apparent that in the present case where the receipt was filed but not approved by the board it is not sufficient.
Here the total disability apparently ceased temporarily. The finding of this board, here supported by ample evidence, is 3. conclusive that the total disability had not actually and permanently ceased.
The appellant suggests that this rule might have been changed in the case of Miles v. Indiana Service Corporation (1933),ante 400, 185 N.E. 461, but in distinguishing that case we need only call attention to the fact that the board there found as afact that the total disability had ceased. (Our italics).
The award of the full Industrial Board is affirmed with penalty of five (5%) per cent as allowed by statute.
Bridwell and Wood, JJ., dissent. *Page 615 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426792/ | Appellant Selwyn F. Husted, trustee under the last will and testament of Grace Sweeney Williams, deceased, brought an action in the Montgomery Circuit Court for construction of the will. He named the appellees Orville J. Sweeney and Genevieve Little, and appellant Moody Bible Institute of Chicago, as defendants.
The complaint alleged, in substance, that Grace Sweeney Williams died testate on the 16th day of June, 1938; that decedent's will (which is made a part of the complaint) was duly admitted to probate in the Montgomery Circuit Court on June 20, 1938; that Byron C. Sweeney mentioned in said will died prior to the death of testatrix; that Clinton A. Williams, her husband, elected to take by law, renouncing the will; that said Williams was, on the 22nd day of June, 1938, appointed administrator with the will annexed of said estate; that he filed his final report as such administrator on October 31, 1939 and that said report was approved by the court on November 29, 1939; that certain funds were to be placed in trust for the benefit of defendants Orville J. Sweeney and Genevieve Little; that appellant was appointed trustee and qualified on the 6th day of November, 1939 and that certain funds came into his hands as such trustee; that prior to his appointment as trustee but subsequent to the death of Grace Sweeney Williams, appellee Genevieve Little sustained an injury which, if it had occurred subsequent to the appointment of said trustee, would have been deemed by said trustee as such an emergency as is contemplated by clause three of the will, authorizing the use of the principal of the trust to provide care for said appellee; that said appellee arranged to have herself treated in the hospital and *Page 421
secured medical and nursing assistance, and was claiming the trustee should pay the debts so incurred by her; that the hospital, doctors and nurses who cared for her were demanding that such trustee pay for such services. The complaint further alleged that another beneficiary, appellee Orville J. Sweeney, had made demands that he be supported out of the trust funds and that the trustee had been requested to pay several bills incurred by Genevieve Little prior to his appointment as trustee. The trustee asked the court for instructions as to his liability relative to such claims.
The pertinent provision of the will of the testatrix is as follows:
"Item Three: All the balance of my personal property owned by me at my death, I will and bequeath as follows, to-wit: If I should leave a husband at my death I will and bequeath to him one-fourth of the property in this third item of my will, to be his absolute property without conditions. The other three-fourths of my personal property in this third item of my will, I will and bequeath to my two brothers and sister, to-wit: Orville J. Sweeney, Byron C. Sweeney and Genevieve Little in equal proportions, and if any of said three, brothers or sister should die prior to my death, then the portion going above to such one or ones so dying, I will to the survivor or survivors of said three, who may be living at my death. If I do not leave a husband at my death, then all the property in this item three of my will, I will to my said brothers and sister, and the survivor or survivors. The property so going under this item of my will to my brothers and sister or survivor of them, I will in trust to them, the same to be held by Dumont Kennedy of Crawfordsville, Indiana, as Trustee, and it is my will that he keep the cash, securities or bonds invested and pay the income to said brothers and sister or survivors or survivor of them in equal proportions, and I further will and give said Trustee power and authority in the event, that all of any of said brothers and sister, shall by reason *Page 422
of sickness or for any reason in the discretion of my said Trustee, pay to all or any such one needing the same, any portion of the principal in his hands as such trustee, even to the exhaustion of the said principal sum, and if in the opinion and discretion of my said trustee herein it becomes necessary to cash any bonds, securities or like property or to sell any personal property in this item three of my will, to make funds available as above from the principal sum herein for the uses set forth in this item, I hereby authorize and empower him to make such change of any of said property by cashing or selling the same."
The appellees Sweeney and Little (defendants) appeared in due course. Then George A. Collett and Hawthorne C. Wallace, surgeons who treated appellee Genevieve Little, asked leave to intervene and file answers, which leave was granted and these parties set up an answer to the effect that they were called upon by said Genevieve Little to render her services in treating a broken leg and asking that the trustee be directed to pay them the sum of $200 for the services rendered.
Montgomery County Culver Union Hospital asked leave to intervene, which was granted, and set up a claim for hospitalization of said Genevieve Little in the sum of $300.50.
Appellee Genevieve Little filed what she denominated a cross-complaint against the plaintiff and appellee Sweeney setting up the same facts as set out in appellants' complaint as to the injury and hospitalization she received, and asking that the trustee be ordered to make payment to George A. Collett, Hawthorne C. Wallace, Thomas L. Cooksey and Leota Tague for services rendered to said appellee, and requesting that the trustee be directed to turn over $750 to said appellee to be used by her for the payment of attorney fees.
Clinton A. Williams, surviving husband of Grace *Page 423
Sweeney Williams, filed his motion for right to intervene, which was granted, whereupon he filed an intervening petition setting up that after the death of his wife he had paid certain premiums on life insurance which his deceased wife had been carrying on the life of Genevieve Little in order to provide for the latter's burial. He asked that his expenditures in the amount of $75.00 be repaid to him by the trustee.
Appellee James J. Clements Company, filed a motion to intervene which was granted and it filed its intervening petition alleging it had furnished coal to Genevieve Little from December, 1938 to March, 1939, in the amount of $56.25, and asking that the trustee be required to pay said bill.
Appellee Orville J. Sweeney filed his answer to the complaint setting up the fact that he had frail health and did not have sufficient income to support himself and family; that he owed previously incurred debts of $250.00, and asking that the trustee be authorized to pay to said defendant $750.00 to discharge his debts and to provide himself with present necessary funds, and to provide him a further sum of $150 per month for life.
Said appellee Orville J. Sweeney at the same time filed an answer to the cross-complaint of Genevieve Little, setting up that he had no objection to the payment of the money demanded by her or her creditors provided the amount did not exceed 50% of the residue of the trust funds, and demanding an equal division of all funds and property in the trust.
Appellant Husted filed his motion to strike out the intervening petitions, which motion was overruled.
Subsequently, appellee Leota Tague, filed her motion to be made a party defendant, which was granted, and she filed an answer setting up services claimed to have *Page 424
been rendered Genevieve Little, and asking an allowance from the trustee of her claim for nursing services to said Genevieve Little in the sum of $252.00.
Appellant Moody Bible Institute of Chicago filed its answer to the complaint, admitting the allegations therein contained. It filed its answer to the cross-complaint of Genevieve Little, admitting the first rhetorical paragraph of said cross-complaint and said it had no knowledge as to all other matters alleged.
The cause was tried by the court and its judgment was as follows:
"IT IS THEREFORE ordered, adjudged, and decreed by the Court, that Selwyn F. Husted, Trustee under the Last Will and Testament of Grace Sweeney Williams, deceased, be ordered, authorized and directed to pay to Dr. Thomas L. Cooksey the sum of $116.25, to Leota Tague the sum of $252.00, to Montgomery County Culver Union Hospital the sum of $323.15, to Drs. George Collett and Hawthorne C. Wallace the sum of $200.00, to Clinton Williams the sum of $47.00, to J.J. Clements Company the sum of $56.25, and that the costs of this action be paid by the plaintiff.
"It is further ordered, adjudged and decreed by the Court that the trust fund established under the will of decedent, authorizes said Trustee to expend for the benefit of either one or both of said beneficiaries the entire fund if emergencies demand."
Appellants herein duly filed their motion for a new trial which was overruled.
The assignment of errors here is that the trial court erred, (1) in overruling the motion of the appellant Selwyn F. Husted, etc., to strike out and reject the intervening petitions of George A. Collett and Hawthorne C. Wallace, Montgomery County Culver Union *Page 425
Hospital, J.J. Clements Company, and Clinton A. Williams, and (2), the overruling of appellants' motion for a new trial.
The specifications in the motion for a new trial are as follows.
"1. 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 permitting each of the defendants Orville J. Sweeney and Genevieve Little, and the intervening parties, George A. Collett, Hawthorne C. Wallace, Leota Tague, J.J. Clements Co. (Benjamin H. Myers and Hazel Fern Myers), Montgomery County Culver Union Hospital and Clinton A. Williams to intervene and assert claims in the proceeding herein.
"4. The court erred in overruling the motion of the plaintiff to strike out and reject the intervening petitions of George A. Collett and Hawthorne C. Wallace, Montgomery County Culver Union Hospital, J.J. Clements Co. and Clinton A. Williams.
"4 1/2. The court erred in rendering judgment for Thomas L. Cooksey; and said judgment is contrary to law and is not supported by the evidence.
"5. The assessment of the amount of recovery is erroneous, being too large."
The first assignment of error and specifications 3, 4, 4 1/2 and 5 of the motion for a new trial, all relate to the rulings of the trial court in permitting the appellees Collett, Wallace, Tague, Clements Co., Montgomery County Culver Union Hospital and Clinton A. Williams to intervene in this action and present claims against the trustee.
By the terms of item three of the will the trustee was granted a discretion to pay any portion of the principal *Page 426
to either of said beneficiaries in the case of sickness or 1. for any other reason which said trustee deemed necessary. The complaint of the appellant Husted sought a legal determination of whether or not the authority granted the trustee under the terms of the will extended to the payment of debts incurred by the beneficiaries by reason of sickness occurring subsequent to the death of the testatrix but prior to the appointment of the trustee or for any other debts contracted by said beneficiaries before his appointment. The only proper parties for a determination of the issues raised were the beneficiaries under this item of the will, because only their rights and interests could or would be affected by the court's decision. They would have had the right to file pleadings against each other.
Appellees contend the provision of § 2-222, Burns' 1933 authorized their intervention in this action, and cite authorities to the effect that all parties having an 2, 3. interest in a controversy are proper parties and have a right to intervene. We are in complete accord with this principle, but we are unable to see what interest the intervening appellees have in the instant litigation. Certainly they had no contract with the trustee. The claims which they have attempted to assert here were claims against appellee Little and were contracted for prior to the appointment of appellant. Any claims that they might have had were against said appellee and not the trustee. Intervention under this statute will not be permitted to settle questions between the intervenor and the defendant to an action. Fischer v. Holmes (1890), 123 Ind. 525, 24 N.E. 377;Heaton v. Lynch, et al. (1894), 11 Ind. App. 408, 38 N.E. 224. *Page 427
"Upon a bill of this character, where the executors ask for the construction of the will, an attaching creditor is not a necessary party. In this suit in equity we cannot determine the rights of creditors of John W. Phelps to any part of the income payable to him by the terms of the will." Phelps v. Phelps
(1887), 143 Mass. 570, 10 N.E. 452.
Appellees further contend that "even if the intervenors were not proper parties, the defendant, Genevieve Little, filed pleading asking that the trustee be instructed to pay the 4. various persons for services rendered her and the matter was fairly tried and determined." We cannot agree with this contention of appellees. The pleading termed by the appellee Little a cross-complaint and filed herein presented precisely the same issue as was presented by the complaint. Therefore, it should have been disregarded by the court. Clark et al. v.Allen et al. (1920), 189 Ind. 601, 609, 123 N.E. 113.
The trial court by its judgment ordered and directed appellant Husted to pay certain specified amounts to various appellees. The provision of § 3-1104, Burns' 1933, under which this action 5. was commenced, does not contemplate coercive judgments. Brindley et al. v. Meara et al. (1935), 209 Ind. 144,198 N.E. 301.
As we have heretofore indicated, the provisions of the will under consideration vested a discretion in the trustee. The courts will not exercise the trustee's discretion for 6, 7. him. Bogert on Trusts Trustees, Vol. 3, § 559, p. 1787. Therefore we hold that the only question which the trial court could properly determine in the instant case was whether or not, under the terms of the will, the discretionary authority of the trustee extended to debts of the beneficiaries *Page 428
contracted prior to his appointment as such trustee. The trial court did not decide this question.
The trial court erred in permitting appellees Collett, Wallace, Williams, Clements Company, Tague, Cooksey and Montgomery County Culver Union Hospital to intervene.
Because of the conclusion we have reached, we do not deem it necessary to pass on other questions presented by this appeal.
The judgment of the Montgomery Circuit Court is reversed with instructions to sustain appellants' motion for a new trial and for further proceedings consistent with this opinion.
NOTE. — Reported in 48 N.E.2d 1004. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426793/ | This is an appeal from the Randolph circuit court wherein the appellee filed an action against the State, the State Highway Commission, the Director, certain named employees, and the contractor, in two paragraphs. The first paragraph asked for injunctive relief, and the second for an assessment of damages for the appropriation of ten feet of ground alleged to belong to the appellee. The trial court's finding, order, and judgment rest solely on the second paragraph of complaint which asked for damages for the taking of the ten foot strip of ground.
The second paragraph of complaint is as follows:
"`Plaintiff, Daniel Bragg, for his second paragraph of complaint complains of the defendants the State of Indiana, the State Highway Commission of the State of Indiana, and A.J. Wedeking, Jesse L. Murden, George E. Hershman and Robert B. Boren, members of the State Highway Commission of the State of Indiana as such members, and John D. Williams, Director of the State Highway Commission of the State of Indiana, as such director says: That the plaintiff is the owner in fee of the following described real estate situate in Randolph County, State of Indiana, to wit:
"`Sixty (60) acres off of the North side of the Northwest quarter of section twenty-eight (28), township twenty-one (21) north, range fourteen (14) east.
"`That in the year 1865 a public highway extended from Winchester, in Randolph County, Indiana, northward through Deerfield and thence northward to the Jay County line. That said public highway had existed as such for many years *Page 248
prior to 1865, the exact time being unknown to plaintiff and was the only public highway extending from Winchester through Deerfield to the county line. That said public highway had been and was established by user and varied in width between fences where fences existed, from approximately thirty feet to approximately forty feet. That said public highway was crooked following the higher ground, and being around low, wet places and swamps, but followed the general course and direction of said public highway above described as the Winchester and Portland or Winchester and Deerfield pike, but did not coincide therewith. That about the year 1865 to 1868, the exact time being unknown to plaintiff, an organization known as the Winchester and Deerfield Turnpike Company, under the law then in force, built a toll pike from Winchester through Deerfield to the Jay County line approximately forty feet wide from fence to fence and in so doing followed the general course and direction of said old road established by user as aforesaid, not conforming thereto however, but straightening said old road and taking out the crooks and bends of same for the most part and in places departing from said old road entirely, and in places widening it, the exact change in course and location being unknown to plaintiff. That thereafter about the year 1880 to 1885, the exact time being unknown to plaintiff said toll pike ceased to exist as such and became a part of the free gravel road system of Randolph County, and being the highway hereinbefore described as said Winchester and Portland or Winchester and Deerfield Pike, and so continued until taken over by defendant, State Highway Commission, and designated as State Highway Number 27 as hereinafter alleged.
"`That heretofore on the ____ day of ____, 19__, said State Highway Commission acting under and pursuant to the act of the General Assembly of the State of Indiana, creating said Commission approved March 10, 1919, and acts amendatory and supplemental thereto by appropriate action took over said highway and designated it as a part of the State Highway System of the State of Indiana, and that said State Highway Commission, acting under said Act, is engaged in improving *Page 249
that part of said highway located in said Randolph County, including the part thereof that extends along over plaintiff's real estate aforesaid by grading and hard surfacing and the construction of side ditches for drainage.
"`That heretofore on or about the ____ day of January, 1929, the defendant State Highway Commission and the said defendants, members of said commission and the defendant John D. Williams as director of said commission, claiming to act for and in behalf of and as representatives of the defendant State of Indiana, and as a part of the work of improving said public highway and without any proceeding first had to acquire the same in the name of the State of Indiana or otherwise and without the consent and over the objection and protest of plaintiff, wrongfully entered upon plaintiff's said lands and took and appropriated for and added to said public highway the following described part of plaintiff's said real estate to wit: A strip of ground lying immediately east of the east line of said public highway ten feet wide, east and west and the full width of plaintiff's said lands north and south.
"`That the said lands so owned by plaintiff is an improved farm and consists of sixty acres of cultivated and pasture lands which plaintiff has been using and occupying for farming and pasturing purposes for more than ten years last past. That plaintiff resides on said lands with his family, his residence and other buildings being located near the west end thereof. That along the east line of said highway plaintiff has owned and maintained a fence and a row of shade trees which defendants have destroyed in said appropriation of said strip of ground. That plaintiff's access to said premises has been by a driveway from said highway which access and driveway have been destroyed by said appropriation. That the said strip of ground so taken and appropriated by defendants was at the time it was so taken of the value of $300.00, and that plaintiff's remaining real estate has been damaged by said appropriation to the amount of $200.00.
"`Wherefore, the plaintiff asks the court that a writ of assessment of damages may issue herein *Page 250
that he may have his said damages assessed and awarded and for all other proper relief.'"
The appellants herein filed a plea to the jurisdiction, a motion to make more specific, and then a demurrer to each paragraph of complaint. Each motion was overruled and an answer of general denial was filed.
The errors relied upon for reversal are as follows:
(1) The court erred in overruling the plea to the jurisdiction;
(2, 3) that the Randolph circuit court had no jurisdiction of appellants or of the subject matter;
(4) the trial court erred in overruling the motion to make the complaint more specific;
(5) the trial court erred in overruling appellant's separate and several demurrer to each paragraph of the complaint;
(6) the court erred in overruling the appellant's separate and several exceptions to the appointment of appraisers.
It is the contention of appellee that in 1865, and for many years prior thereto, a public highway extended along the west end of his farm, being a highway from Winchester through Deerfield to the Jay county line; that said road had been established by user and that its width between fences was not uniform, being from 30 to 40 feet; that it was crooked, bending around low, wet places, and swamps, but that it followed the general direction of the subsequent Winchester and Deerfield, or Winchester and Portland Pike. That from 1865 to 1868 a toll road was built from Winchester through Deerfield, to the Jay county line, forty feet in width from fence to fence, following in a general way the old course of the road, but in places varying from it. That the toll road ceased about 1880 or 1885, and it became a part of the free gravel road system of Randolph county. The allegations of the complaint show *Page 251
that the State Highway Commission took over the road and appropriated a strip of ten feet of land off of the west end of appellee's farm without any legal steps to do so, and without paying anything therefor.
It is the position of appellants, that more than one hundred years ago the legislature passed an act authorizing the location of a road from Winchester to Ft. Wayne, 60 feet wide, and that the old road is the same as the new road, and that the center line of the old road was the same as the center line of the Winchester and Deerfield Pike, which was forty feet in width, and for this reason, the State had the right to take the extra ten feet on the east side of the road without any legal proceedings and without compensation.
For many years after the beginning of the State many acts were passed by the legislature authorizing the establishment of roads. An act was passed on January 11, 1823, (Laws of Indiana, 1823, ch. 28, § 1, p. 43.) appointing commissioners ". . . to view, locate and lay out a state road, in the nearest and best direction, and on the best ground, from the town of Lawrenceburg in Dearborn County to the town of Brookville in Franklin County, thence to the town of Connersville in Fayette County, thence to the town of Centreville in Wayne County, thence to the town of Winchester in Randolph County, and thence to Ft. Wayne in the county of Delaware. . . . which shall remain a permanent road sixty feet wide."
It is under the foregoing act that appellants claim the right to 60 feet of right of way which takes the 10-foot strip of appellee.
This case was tried in 1929. Daniel Bragg testified that he was 71 years of age; that he owned the farm in question since 1904, and had lived in Randolph County since 1862; that he first lived about three miles east of the Winchester and Deerfield Pike; that he *Page 252
knew the road before it was a toll road; that the farm is a mile north of Five Points, and three-fourths of a mile south of Deerfield, and that he remembers when toll houses were along the pike; that the first toll house he remembered was about 1870; that at that time it was a mud road and poles and logs were thrown across the road at places, so that travel could pass; that the road between Five Points and Deerfield is in the same place as when he first knew it; that the distance between the fences before they were torn down was forty feet, and that was his understanding of the width of the road when he bought the farm; that the fences torn down by appellants were not the same fences that he first knew; that the first fences were rail — the new fences were placed at about the same place as the old; that his fence was in line with other fences along the road; that he set out catalpa trees along his fence line on the outside. That when he first knew the road it was in woods and unfenced and of different widths. It was not straight and in places would be only wide enough to drive a wagon or sled in winter time and in the spring.
That before this controversy arose the road extended from Winchester through Deerfield to the county line and had side ditches which were inside of the forty feet fences; that the farmers cultivated up to the fences, and orchards were planted, and buildings located with reference thereto.
Calvin Barrett, age 79, testified that he lived most of his life near the road; that the road was not always in the same place; that there would be mud holes for fifty or sixty rods that were impassible; that the farthest point from the present line of the road would be from twenty, or fifty, or one hundred yards west of the present line; that the Toll Pike was built in 1868, or 1869, and was then straightened; that the mud road *Page 253
was not fenced to any extent; that his father had some fence along the road, but when they built the Pike, he had to set it back; that the Pike Road was made forty feet wide; that when the Pike Road was built there were some fences, but they had to be put back for the forty foot right of way.
David H. Gray, age 78, testified that his earliest recollection of the road was a corduroy; that it was not straight and was built of logs running twelve to eighteen inches, laid side by side cut in lengths of fourteen to sixteen feet; that when he first knew it there were few fences along the road and no regular width of the road.
Isaac Childers, age 73, testified he had known the road since 1865; that it was forty feet wide at that time and the fences about in line; that after the Pike was built and fences built and orchards were planted to the fence line and the premises improved with reference thereto.
John W. McCartney, age 71, testified that he had known the road since a boy; that his father was road supervisor; that it was never built any wider than forty feet since he knew it, and that the fences were forty feet apart and were on a line.
A few other witnesses testified, but their evidence is practically the same as that set out.
The evidence on the part of the appellants is documentary, which was introduced, evidently for the most part, to show that the old road extending north from Winchester was a state road opened under the Acts of 1820 and 1823.
The first exhibit was the petition to establish the pike road over the road in question filed before the Board of Commissioners of Randolph County on September 4, 1865. It refers to "the State road leading from Winchester to Portland." Exhibit 2, refers to an *Page 254
order recorded in the commissioners record in Jay county to clear the right of way on the Winchester and Ft. Wayne road to a width of 50 feet. Exhibit 3, refers to an order of the commissioners of Jay county on November 9, 1836, appointing David Baldwin, to superintend the three per cent fund appropriated to the use of state roads and bridges in Jay county. Exhibit 4, refers to an order of the board of county commissioners of Jay county, September 1, 1856, where a petition again speaks of "the State Road leading from Winchester to Portland." Exhibit 5, refers to a report of viewers on highway wherein it refers to "the Winchester and Deerfield State Road." Exhibit 6, refers to the minutes of the Wayne county board of commissioners, November, 1823, wherein "Elisha King is appointed supervisor on State Road leading to Fort Wayne from the S.E. corner of Caleb Lewis field to the Main Street in Centreville." Exhibit 7, is the order accepting the turnpike or toll road as a free gravel road on December 15, 1886. Exhibit 8, is the record of the commissioners of Randolph county showing a petition for the appointment of a "suitable person to view, mark, and locate a County Road commencing on the Centreville State Road and etc."
The first act relating to a road from Lawrenceburg to Winchester is found in the act of January 22, 1820, (Laws of Indiana 1820-1824) wherein commissioners were appointed "to view, locate and lay out, a permanent road, in the nearest direction, and on the best ground, from the town of Lawrenceburg, in the county of Dearborn, to the town of Brookville, in the County of Franklin, thence to the town of Connersville, in the County of Fayette, thence to the town of Waterloo, in Wayne County, thence to the town of Centreville, in Wayne County, thence to the town of Winchester in *Page 255
Randolph County." And under the 2nd section of the act it could not be more than seventy feet in width.
The next reference is found in the act of January 9, 1821, (Laws of Indiana 1821, ch. 8, p. 21, § 2) wherein commissioners were appointed ". . . to locate and mark the road heretofore established from the town of Lawrenceburg in the county of Dearborn to Winchester in the county of Randolph with the following variation from the former act, viz: from Brookville to pass through Fairfield and Dunlapsville in Franklin county and Brownsville in Fayette county, and to be extended from Winchester to Fort Wayne."
The next act concerning this road is found in the act of January 11, 1823, (Laws of Indiana 1826, p. 43) which has heretofore herein been set out.
By an act of January 24, 1831 (Laws of Indiana 1831, ch. 75, p. 122, § 1), William Scarce of Wayne county was appointed a commissioner ". . . to survey, mark and locate a state road from Richmond in said county, by Newport in said county, and thence on the best route, towards Winchester in Randolph County to the north line of Wayne county: that John James be appointed a commissioner to survey, mark and locate and continue said road, commencing at the same point on said north line, by Winchester in Randolph county, thence on the direction of Ft. Wayne to the north boundary of the county attached to Randolph county; and that John B. Hedges be appointed a commissioner to survey, mark and locate and continue the same commencing at the same point on said north line, to Ft. Wayne in Allen county."
It is provided in § 4 that the road be opened any width not exceeding forty feet.
In our judgment the last act, January 24, 1831, cited is very material to a proper solution of the question before us. More than one hundred years have passed *Page 256
since the different acts were passed; generations have come and gone and little has been left us to definitely tell the true story of the location of the highway in question. We will place ourselves, as nearly as possible in the position of those who passed the various acts and in doing this, what conclusion must we necessarily reach?
The first road (Act January 22, 1820) went to Winchester. The second act (January 9, 1821) provided for the marking and locating of the road heretofore established from Lawrenceburg to Winchester, with certain variations, and to be extended to Ft. Wayne. The third act of January 11, 1823, provided for the viewing, locating, and laying out of the road from Lawrenceburg to Brookville, thence to Connersville, thence to Centerville, thence to Winchester, and thence to Ft. Wayne. The fourth act of January 24, 1831, provided for a road from Richmond to Winchester and thence to Ft. Wayne and the width of the road was not to exceed forty feet.
The first two acts took the road to Winchester and the third act took it to Winchester and then to Ft. Wayne and the fourth act took it to Winchester and then to Ft. Wayne and limited it to forty feet. Although the act of 1823, and the act of 1831, start from different points, both acts took the road to Winchester. Is it reasonable to believe that two roads were intended to lead from Winchester to Ft. Wayne through an unbroken forest? Is it not more reasonable to believe that only one road was intended? There is no evidence to show that any road was actually laid out, or even surveyed under the provisions of either act. Just what happened is left, to a very large extent, to conjecture, but, reasoning from a common sense standpoint, we are lead to believe that we should rely upon the act of 1831, in taking the road from Winchester to Ft. Wayne, and *Page 257
under this act the width of the road was limited to not to exceed forty feet.
The highway authorized by the act of 1823, from Lawrenceburg to Ft. Wayne was evidently not opened under said act farther than Centreville. We think this statement is borne out by the acts of February 10, 1831, and the act of January 24, 1831. Centreville was located on the Cumberland or National road which road was authorized by an act of Congress on March 29, 1806. The act of February 10, 1831 (Laws of Indiana 1828-1831, p. 150.) was an act to establish a state road from Centreville to Winchester. If the road had been established and opened between these two points in 1823, why was the latter act passed? Is it not reasonable to believe that the road was never laid out and opened under the act of 1823, farther than Centreville then on the Cumberland road and then under the act of February 10, 1831, it was extended on to Winchester. The act of January 24, 1831, established the road from Richmond to Winchester and then to Ft. Wayne, as heretofore set out, and established the width at not exceeding forty feet. So it would appear that the road was never laid out and opened under the act of 1823 to Ft. Wayne, but was opened from Winchester to Ft. Wayne under the act of January 24, 1831. All of the exhibits introduced by the State can be reconciled with the foregoing explanation except possibly "Exhibit 2," which was an order to "cut the Ft. Wayne and Winchester road on the west side . . . and clear the fallen timber off the whole fifty feet." Even this order does not prove the contention of the appellants that the right of way was sixty feet, because it says the whole fifty feet, and, under this theory the State took five feet of ground belonging to the appellee. But we think this exhibit can also be reconciled with our theory of the case. It is true that the act of 1823, theoretically took *Page 258
the road from Lawrenceburg to Ft. Wayne and made the width sixty feet. The road, however, in our judgment, was never opened under said act farther than Centreville, and the later act of February 10, 1831, which superseded the former, extended the road from Centreville to Winchester, and the act of January 24, 1831, superseded the act of 1823, and extended the road from Winchester to Ft. Wayne and fixed the width at not more than forty feet. When the commissioners of Jay county in 1837 made the order to clear the right of way fifty feet it may have been that they were of the impression that the act of 1823 was in force, and were totally ignorant of the law of January 24, 1831. At most the order was void, and, moreover, there is no evidence whatever to show that any work was ever done under said order.
The evidence in the case confirms our theory of the case as we see it. There is no evidence to show that the road was ever more than forty feet in width. The evidence shows that the 1. fences were forty feet apart; that the land was cultivated up to the fences; that orchards were put out and premises planned with reference to the forty foot line; that from the beginning the road was understood to be forty feet wide and no one claimed the road to be of any greater width until the appellants made the claim that it was a sixty foot right of way.
The appellee alleged in his complaint that the road in question was established by user and the appellants insist that the appellee is bound by the allegation that he failed to 2. establish this proposition and therefore must fail in this action. We do not assent to this proposition. What difference does it make whether the road was established by user or by an act of the Legislature? If, by either method, the State has appropriated land belonging to appellee he is entitled *Page 259
to recover. And we think without question the state appropriated land belonging to appellee.
We do not think the court erred in its ruling upon the question of jurisdiction. Under §§ 7677, 7681, and 8292, Burns 1926, §§ 3-1702, 3-1717, Burns 1933, § 14062, Baldwin's 1934, in 3, 4. proceedings in the exercise of Eminent Domain, jurisdiction is in the county where the real estate is situate. Jurisdiction is in the county where the land is situate when the Highway Commission is the moving party and the same situation applies to the owner of the land when he is the moving party. Section 1550, Burns 1926, § 4-1501, Burns 1933, § 1617, Baldwin's 1934, does not apply as contended for by appellants. The complaint was sufficient and the demurrer was properly overruled.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426795/ | ON PETITION FOR REHEARING
In the course of the trial of this cause the appellants propounded the following question to one R.R. Naugle whom they had previously qualified as an expert medical witness: "Dr. Naugle, from your observations of Isaac Conner during the two years he ment to the hospital — two years before the time he went to the hospital and the facts that you learned concerning him and the facts that you testified to thus far in your testimony, did you then before he went to the hospital and do you now have an opinion and view as to what was his mental condition and what, if any, ailment he was suffering from?" The doctor answered that he had an opinion and thereupon he was asked, "What is that opinion?" To this question the appellee interposed the following objection: "To which we object for the reason that the witness can only express an opinion as to whether or not the decedent was of sound or unsound mind, and for the further reason that anything he might have learned professionally would be privileged." This objection was sustained by the trial court and because of such ruling we reversed the judgment herein for reasons fully set out in our written opinion. Ante, p. 173;76 N.E.2d 262.
The salient ground for a rehearing, presented by the appellees' petition, is to the effect that if a ruling can be sustained upon any theory, whether advanced at the time of such ruling 12-14. or not, it must stand and before a judgment can be reversed because of it the party appealing must show that such ruling was wrong upon any theory whatsoever. That such is the general rule there can be no doubt. Haas v. Cones Mfg.Co. (1900), 25 Ind. App. 469, 58 N.E. 499; Eckman *Page 186
v. Funderburg (1914), 183 Ind. 208, 108 N.E. 577. The appellees contend that their objection to the question here involved could properly have been sustained on the theory that it is double even though such objection was not advanced at the time of the court's ruling and therefore we cannot lawfully hold such ruling to be reversible error. The question is double, the appellees assert, because it calls for answers to two pertinent inquiries: (1) What was the testator's mental condition; and (2) with what ailment, if any, was he suffering? Our courts have held that it is error to overrule an objection to a question that is double in form where one part of the question assumes the existence of a disputed fact. Sullivan v. State (1928), 200 Ind. 43,161 N.E. 265. The general rule is stated in 70 C.J., Witnesses, § 672, in the following language: "Questions containing more than one proposition to which different answers might be given are improper." An examination of the cases in which this rule is applied reveals that either part of the objectionable question is improper or it calls for a categorical answer in a situation where one element of the question might be answered, "yes" and the other, "no." Questions concerning a witness' "reputation for truthfulness, honesty and fair dealing" have been held improper as presenting two separate issues to which different answers might be made. Brannon v. Gartman (Texas), 283 S.W. 817. The question here involved presents none of these difficulties. Its plain purport is to elicit the opinion of the witness as to the mental condition of the testator and what disease, if any, was responsible for it. It may be conceded that technically the question is double but its subject matter was vital to the appellants' case and they had the right to explore that subject in the manner *Page 187
chosen. The record indicates, beyond peradventure, that this right would have been denied to them even though each phase of the inquiry had been put to the witness in a separate question. Under such circumstances to write the error off on the theory that the ruling can be upheld for purely technical reasons can hardly be justified.
All other questions presented by the appellees' petition for a rehearing are fully discussed and decided in our former opinion and to the holdings there announced we still adhere.
Rehearing denied.
NOTE. — Reported in 77 N.E.2d 598. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426759/ | Complaint by Lewis Woolfolk, Charles M. and Mary E. Wachter, and Grandview Bank, against appellant on a fire insurance policy issued to Woolfolk as owner. Loss, if any, was made payable to the bank and C.M. Wachter, as mortgagees or trustees. From a judgment in favor of plaintiffs, the defendant appeals, presenting the correctness of the overruling of its demurrer to the second paragraph of reply of each of the plaintiff's several replies, and error in the conclusions of law.
The complaint alleges the issuance of the policy, loss by fire of the property insured, notice and proof of loss, that the Wachters held a vendor's lien on the real estate and that the bank held a mortgage on it, the policy being made a part of the complaint. *Page 448
Appellant's answer is in four paragraphs. The first paragraph is addressed to that part of the complaint relating to the claim of Woolfolk, and alleges that the policy in suit was originally issued on March 12, 1925, and that such original policy provided it might be renewed in consideration of the premium for the renewal term, and in case of renewal any increase of hazard should be made known to the insurer at the time of renewal or that policy should be void; that such policy was continued by renewal March 12, 1926; that the policy sued on was a renewal of the policy of March 12, 1925; that each of said policies contained provisions to the effect that the policy should be void if the interest of the insured was not correctly stated; if the interest of the insured was other than unconditional and sole ownership; and unless otherwise provided, it should be void, if, with the knowledge of the insured, foreclosure proceeding was commenced or any change other than by death of the insured took place. It was also alleged that when the policy was renewed the interest of the insured was not truly stated, in that the property had been sold by the sheriff to the Wachters and was not the property of Woolfolk, and for the further reason that part of the property insured, a McCray refrigerator, was not the property of the insured; that such changes of title were not known by the insurer. The second paragraph of answer was addressed to the part of the complaint relating to the claims of the bank and, after setting out the conditions under which the policy should be void, as alleged in the first paragraph, sets out an additional provision to the effect that if, with the consent of the insurer, an interest shall exist in favor of a mortgagee or any person having an interest in the subject of insurance other than the interest of the insured, the conditions theretofore mentioned should apply in the manner expressed in such provisions relating to such *Page 449
interest as shall be written upon or attached to the policy; that the original policy, as well as the renewal policy, was made payable to the bank as mortgagee or trustee and provided that the mortgagee should give the insurer notice of any foreclosure proceedings and of any change of ownership or increase of hazard coming to the knowledge of the mortgagee, and that a failure on the part of the mortgagee to comply with such provisions rendered the insurance void as to such mortgagee. It then alleged that when the policy was renewed, the interest of the insured was not truly stated, in that the property had been sold by the sheriff to the Wachters and was not the property of Woolfolk and that the McCray refrigerator was not his property; that after the issuance of the policy, the bank, with knowledge of the foreclosure proceeding of Wachters, did not notify the insurance company, and that a change of interest and title took place by reason of the sheriff's sale; that Joseph Forsyth and Bert Newman, who are shown by the complaint to have executed the policy as agents of appellant, were, at all the times mentioned, agents of the defendant and also officers of the bank by reason of which facts so alleged the policy was void as to the interest of the bank.
The third paragraph is in substance the same as the second, except that it relates to the claim of the Wachters, and omits all references to the bank and to Forsyth and Newman, and alleges that the policy is void as to the Wachters by reason of the failure to give notice of their foreclosure proceeding. The fourth paragraph is a general denial. Woolfolk and the bank filed separate replies. Wachter and Wachter filed a reply. The second paragraph of each reply is the same, and in substance is as follows: That appellant had notice of each and all of the alleged breaches of the policy alleged in the several paragraphs of answer, and before the time the policy in *Page 450
suit was issued, by and through the knowledge of the agents of appellant who wrote and procured the insurance and who, with such knowledge, received of and from Woolfolk the premium paid therefor by the insured and failed to cancel the insurance or to return or tender back to the insured the premium so paid by him, and that appellant thereby waived the conditions relating to each breach alleged in each of the paragraphs of answer. The third paragraph of reply was by the bank and the Wachters, and referring to the McCray refrigerator, alleged they had no knowledge concerning the ownership and insurance on it, and that if it were insured it was insured by Woolfolk without their knowledge.
The third paragraph of the reply of Woolfolk and the fourth paragraph of the reply of the bank and the Wachters are the same, and allege that the insurance company "had notice and knowledge of each and every one of said alleged breaches for a reasonable and seasonable time and more than ten days before the alleged fire and loss, and that defendant failed to and did not take any action in relation thereto, and thus elected to and did waive the conditions of said policy" of insurance as to each and every breach thereof alleged in the answer.
Appellant filed demurrers for want of facts to the second and third paragraphs of the reply of the bank, to paragraphs two and three of the reply of Woolfolk and to the second and third paragraphs of the reply of the Wachters. The action of the court in overruling each of these demurrers is assigned as error.
The first contention is that the court erred in overruling the demurrer to the second paragraph of each of the several paragraphs of reply. As heretofore stated, each of these paragraphs was to the effect that appellant had notice and knowledge, through its agents who procured the insurance and who wrote the policy and collected the premium therefor, of each and all the breaches *Page 451
set out in the answer and that, with such notice and knowledge, appellant failed to cancel the policy and to return or tender back to the insured the premium theretofore paid by him to appellant for the insurance, thereby waiving the alleged breaches.
Appellant says it makes no claim that it ever desired or attempted to cancel the policy in suit; that all it desires is to enforce the policy as written; that the policy in suit was a "renewal" policy and for that reason the risk had attached and it was under no obligation to refund any part of the premium in order to avoid the policy, although it had notice of the breach.
Our understanding of the rule is that where the risk has attached, and the policy thereafter becomes void, through the conduct of the insured, the latter is not entitled to a 1. return of the premium or any part thereof, but when the policy is void from the beginning so that the risk never attached, the premium must be tendered or returned to the insured. Marion, etc., Bed Co. v. Empire State Surety Co. (1913),52 Ind. App. 480, 100 N.E. 882.
It is also the well established law of this state that when a policy contains a provision that it shall be void if the interest of the insured is not truly stated therein, or, if the 2, 3. interest of the insured is other than "unconditional and sole ownership," such provision means voidable at the option of the insurer, and that to render it void, upon discovery of the facts by which liability may be avoided, the company must act with reasonable promptness, must notify the insured of its election to avoid the policy, tender back or offer to restore the unearned premium received, and upon failure to do so, it will be deemed to have waived the right to declare the policy void, and to have elected to treat it as a valid contract of insurance.Western Ins. Co. v. Ashby (1913), 53 Ind. App. 518, 102 N.E. 45; National *Page 452 Mutual Ins. Co. v. Bales (1923), 81 Ind. App. 302, 139 N.E. 703, 141 N.E. 481. And where the insurer has knowledge of facts, which would justify it in declaring the policy void, and after a loss occurs requires proof of loss and fails to give timely notice to the insured of its election to avoid the policy, it waives the right to defeat a recovery because of such fact.Replogle v. American Ins. Co. (1892), 132 Ind. 360, 31 N.E. 947; Western Ins. Co. v. Ashby, supra.
The policy in suit is dated March 12, 1926. It became effective as of that date. It superceded the policy dated March 12, 1925. The rights of the parties are to be measured and controlled 4. by the new policy. The insured did nothing after March 12, 1926, to increase the hazard. There was no change in title or ownership after that date.
Appellant, in its answer, alleges that the change in title and interest relied on to defeat a recovery took place in September, 1925; that the Wachters and the bank knew of the 5-7. foreclosure proceeding of the Wachters and the sale under the decree of foreclosure to the Wachters, and failed to notify appellant of such proceeding and sale. The reply alleges that appellant, through its agents who wrote the policy and who collected the premium, had notice and knowledge of the foreclosure proceeding and the sheriff's sale, at the time the policy in suit was issued. Appellant, by its demurrer, admits that it had such notice at the time the policy was issued and that it took no steps to avoid the policy before the loss. The fact that its agents were also officers of the bank is not sufficient to overcome the allegation of the reply that appellant had notice of the condition of the title when the policy in suit was issued. There was no error in overruling the demurrers.
The remaining question presented for our consideration relates to the correctness of the conclusions of law. *Page 453
The facts as found by the court are that: Appellant was organized under the laws of New Jersey doing a fire insurance business in Spencer County, with a local office at Grandview; that Forsyth and Newman were, at the time the policy in suit was issued, the general agents of appellant and engaged in soliciting insurance, signing and delivering policies, collecting premiums therefor and acting generally in the insurance business for appellant; that appellant, through said agents, on March 12, 1926, issued the policy sued on to Woolfolk, insuring him against loss by fire in the sum of $2,500, on a certain building and $500 on store and office fixtures therein, said policy being a renewal of a prior policy issued to Woolfolk, for which policies appellant was paid the full premium of $37.40 for each policy; that the policy in suit was endorsed "Loss, if any, payable to Grandview Bank and C.M. Wachter as mortgagee (or trustee) as such interest may appear;" that no written application was made for such policy; that no inquiries were made of him concerning the said property; and that it is not shown that any fraud was practiced or any concealment made in relation thereto, but that the transaction was in good faith by all the parties; that on March 24, 1926, while the policy was in force, the building and personal property insured were destroyed by fire; that notice and proof of loss were made as required by the policy; that Woolfolk had complied with all the requirements of the policy; that this suit was commenced February 1, 1927; that at the time of the insurance, Woolfolk was the owner of the building by deed from the Wachters, subject to a mortgage of $8,100, in favor of the bank and vendor's lien in favor of the Wachters for $1,300; that Woolfolk continued to be such owner until the fire and that he was also during all of said time the owner of the personal property insured; that before the fire, Woolfolk had purchased the refrigerator on a conditional-sale contract *Page 454
with title reserved in the seller, and that the purchase price had been paid in full before the fire; that the refrigerator was not named in, or covered by the policy and that mention by Woolfolk of same in his proof of loss was inadvertantly made in copying same from proof of loss made to another insurance company, under a policy in which the refrigerator was named, and that Woolfolk disclaimed any claim for same in this action; that the bank and the Wachters had no knowledge relating to the refrigerator until after the fire; that in 1924, the Wachters commenced suit to establish their vendor's lien, to have it decreed to be prior to the mortgage of the bank and to foreclose the same; that the court, in September, 1924, decreed the lien to be prior to the mortgage, and the same was foreclosed in January, 1925, and before the first policy was issued; that on September 5, 1925, the sheriff sold the real estate under that foreclosure to Charles M. Wachter for $1,455.42, who bid the same in to satisfy the lien, and received a sheriff's certificate, which was thereafter held and owned by the Wachters; that all of the facts relating to said action and sale were, on September 12, 1925, reported to, and were known to Forsyth, the then agent of appellant, who was requested that any endorsement in the insurance policy made in favor of the Wachters be made and kept to protect them in their right under the certificate of sale, which such agent agreed to do and he assured the attorney for Wachters that such endorsement would be so made; that appellant elected to and did waive all the alleged breaches; that Woolfolk remained the legal owner of the building with the right of redeeming it from the sale until September 5, 1926; that the building, at the time of fire, was worth $8,000; that the personal property was insured for $1,050, and the value of the personal property destroyed, including the refrigerator, was $500; that there is due and owing Wachter and Wachter, $1,079.20, as a first *Page 455
lien on the real estate described in the policy; that there was due and owing the Grandview Bank $1,713.96, as the second claim, and that all the plaintiff's had an insurable interest in the property and were entitled to recover because of their loss.
Upon these facts, the court stated as a conclusion of law, that the plaintiffs were entitled to recover $3,000 on the policy of insurance plus $341, as interest, to be applied as follows: $1,079.20, to Wachter and Wachter as first lien holders, and $1,713.96, to the bank as second lien holders and the balance to Lewis Woolfolk on his personal property insurance. The court undertook to state two other conclusions of law, but inasmuch as they are pure conclusions of facts and are covered by the facts found, they will not be given any consideration.
Appellant says the finding that Woolfolk was the owner of the property at the time the policy was issued, subject to the mortgage to the bank and a vendor's lien in favor of the 8. Wachters and that he continued to be the owner of the legal title thereof until the fire, is not sufficient without a finding that he owned a beneficial interest at the time of the loss. We can not agree with this contention. Woolfolk was named in the policy as the owner. The court found that he was the owner when the policy was issued and that he continued to be the owner of the legal title until the fire. This, without question, is a sufficient finding that he had a beneficial and insurable interest in the property at the time of the fire.
The next contention is that there is no finding that Woolfolk had performed all of the conditions of the policy on his part to be performed. Appellant evidently has overlooked the 9. seventh finding where the court finds that, after the fire, Woolfolk immediately gave notice to said company and its agents of said fire and loss, and on May 20 and 21, 1926, furnished *Page 456
appellant at its home office at Newark, New Jersey, duly verified proofs of loss, which were received by appellant and that "he complied with all requirements therein of said policy and defendant." There is no merit in this contention, and appellant has failed to point to any requirement of the policy which Woolfolk failed to perform.
Appellant next says there is no finding that the bank held a mortgage on the insured property at the time of the fire, or that the Wachters had a vendor's lien thereon at that time, and 10. insist that neither of said parties was entitled to a judgment. Insofar as the interest of the Wachters is concerned the court fully and specifically finds the facts in relation thereto and that such interest was held and owned by them until and at the time of the fire. Insofar as the interest of the bank is concerned, the court does find that when the policy was issued March 12, 1926, Woolfolk owned the building which was insured subject to a mortgage of $8,100 in favor of the bank. The court found there was due and owing the bank on its complaint $1,713.96, as a second claim on the real estate mentioned in the policy. The court did not specifically find that the mortgage of the bank continued to be in force as a lien on the real estate to the time of the fire, unless the facts actually found force this inference. The failure of the court to find that the lien of the bank continued to the time of the fire would not call for a reversal because of an erroneous conclusion. The court, in the first part of the conclusion of law of which complaint is made, states that the plaintiffs are entitled to recover $3,341, to be divided between Woolfolk, the bank and the Wachters as heretofore stated. If, as a matter of fact, the mortgage had been paid and released of record before the fire, that fact would not rebound to the interest of appellant. It would still be liable on the policy for the $3,341. Woolfolk, the *Page 457
Wachters and the bank are parties to this action and as they are bound by the decree of the court as to the distribution of the funds. Woolfolk and the Wachters are not complaining of the fact that the court directed that part of recovery should be paid to the bank. Appellant is not interested in the division of the funds. The court correctly concluded that there should be a recovery against appellant for $3,341, and if it be conceded that the court erred in concluding that the bank should be paid a part of the amount, it would not be a reversible error.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426796/ | The Treasurer of State has appealed from an order of the court administering the liquidation of the Citizens State Bank of Noblesville denying a petition for dividends.
The facts are stipulated and disclose that, on and prior to July 26, 1932, the bank in question was a public depository, and that the County of Hamilton and *Page 169
certain of the municipalities located therein had total funds on deposit, amounting, on July 26, 1932, to $169,917.56, to secure the repayment of which the said municipalities held security of various kinds; that on said date the bank was unable to liquidate its loans, and withdrawals were very heavy; that, with this condition existing, approximately 85 per cent of the creditors of the bank signed an agreement, the object of which was to permit the bank to continue as a going concern, and by the terms of which it was agreed that the depositors signing the agreement would withdraw not more than 25 per cent. of their deposit accounts in any one year for a period of four years. The municipalities in question were not parties to this agreement. The bank continued as a going concern until the 11th day of July, 1933, at which time the Department of Financial Institutions took possession for the purpose of liquidation. In the meantime the municipalities continued to deposit and draw against their checking accounts in the usual manner. Chapter 33 of the Acts of 1932, Sp. Sess. (Acts 1932, p. 141), commonly known as the Sinking Fund Law, became effective January 1, 1933. By the terms of that act, funds deposited prior to January 1, 1933, were treated as "old money," secured by the bonds or other security theretofore given by the banks under their depository contracts, and funds deposited in 1933 were treated as "new money," secured by the sinking fund. All withdrawals were made payable out of "old money" until such funds were exhausted. Subsequent to the first Monday in January, 1933, all of the "old money" on deposit to the credit of the various municipalities involved was withdrawn, and the bank asked for, and the municipalities surrendered to the bank, the collateral and securities held as security for such deposits. At the time the bank was closed for liquidation there was on deposit to the credit of the several municipalities *Page 170
a total of $47,591.24, all deposited subsequent to January 1, 1933.
It is provided by chapter 33 of the Acts of 1932, supra, that when a bank which is a public depository has gone into voluntary liquidation, the agent or person in charge of the liquidation shall certify the amount of the public deposits to the Attorney General and the Auditor of State, and that the several officers who have public deposits in the depository shall furnish the same officers with verified statements of the amount of the deposits; that thereupon the Attorney General and the Auditor of State shall ascertain and determine the amount of public deposits in the closed depository, and within thirty days after the closing of the depository or suspension of payment, send a copy of their decision as to the amount due by registered mail to the municipality or officer having the deposit, and to the person or agent in charge of the closed bank. It is provided that their decision shall be published in a newspaper of general circulation in the county where the bank is situated, under the heading "notice to depositors." It is provided that: "Such decision of the attorney-general and the auditor of state, in the event they agree, shall be final, and shall have the same force and effect as an order of court, except as to such depositors as within ten (10) days after publication of such notice to depositors make objections thereto in writing to the auditor of state. . . ." It is provided that if the Attorney General and Auditor of State do not within thirty days forward their decision to the person or agent in charge of the closed depository, or if objections are made within the ten days provided, the case shall be presented to the court having jurisdiction of the liquidation by the person or agent in charge of the depository, and that the amount of the deposit shall be determined by the court. It is further *Page 171
provided that whenever the decision of the Attorney General and Auditor shall become final, the Auditor of State shall issue a warrant upon the State Sinking Fund to the proper officer of the various municipalities for the amount of the claims so determined, and that the Treasurer of State shall thereupon be subrogated to the rights of the municipalities "to the extent that such State Sinking Fund shall have paid the loss, and shall share in the distribution of the assets of such closed depository on such basis ratably with other depositors."
It is stipulated that on August 22, 1933, the agent in charge of liquidation certified to the Attorney General and the Auditor of State that the public money on deposit in the depository amounted to $47,591.24, and that the treasurers of the several municipalities certified to the same fact; that the Attorney General and Auditor ascertained that the public deposits were in the same amount, and within thirty days sent a copy of their decision by registered mail to each municipality and to the agent in charge of liquidation, and that a copy of their decision was published in a newspaper in Hamilton County, as provided by statute, on September 14, 1933; that no depositors made objections within ten days after the publication of the notice; that thereupon the Auditor of State issued his warrants to the several municipalities involved, aggregating $47,591.24, and written assignments were taken from the municipalities of their claims against the bank.
On January 21, 1935, the liquidating agent of the bank filed with the Clerk of the Hamilton Circuit Court a list of the liabilities of said bank as shown by its books as of July 11, 1933, and recommended the allowance of claims of creditors upon the basis of the amounts therein shown to be due, and published notice to creditors that the report and recommendations were on file, *Page 172
and that objections to the allowance or disallowance of claims as recommended must be filed not later than April 15, 1935, pursuant to section 18-317 Burns' Ann. St. Supp. 1938 (§ 7779 Baldwin's Supp. 1937). Such list of liabilities showed amounts due the several municipalities involved aggregating $47,591.24.
On October 18, 1933, certain depositors who were parties to the agreement made on July 26, 1932, filed a petition with the court setting up the agreement above described, and alleging that, in violation of the terms of the agreement, the bank permitted certain depositors and creditors to withdraw large sums, and refused to permit certain other depositors and creditors to withdraw any part of the funds due them, and that they never have been paid any portion of their deposit; that at the time of the execution of such agreement the bank was insolvent and in failing condition, and so continued until it was closed; "that by reason of said acts of said bank as herein alleged a large number of its creditors, who joined in the execution of said moratorium agreement, withdrew large sums of money from said bank while these petitioners and their respective decedents (all signers of the agreement) received nothing from said bank." It is alleged that, "under such circumstances said several payments constituted unlawful preferences in favor of the creditors receiving such payments, and also operated to the disadvantage of these petitioners; that equity and good conscience requires that said creditors be now equalized." There was a prayer that the liabilities of the bank as of July 26, 1932, the date on which the agreement was signed, should be ascertained and determined, and distribution made of the assets "to these petitioners and other creditors similarly situated, before the payment of any dividends to those creditors of said bank who were permitted to withdraw from said *Page 173
bank a part of their funds while said bank was in such insolvent and failing condition." The court ordered that the liquidating agent file an analysis of the several deposits and liabilities of the bank at the time of closing, and the amount of withdrawals of the various deposits from July 26, 1932, until the bank closed. The Department of Financial Institutions filed demurrers and answers, and on the 23rd day of July, 1935, it was adjudged: "That the recommendations of the Special Representative as to the allowance of claims now on file in the office of the clerk of this court be not approved, but that said Special Representative and the Department of Financial Institutions of the State of Indiana are ordered and directed to set up all of the deposit accounts in said bank which were in said bank on the 26th day of July, 1932, as of said date and that the balances of the various depositors reflected by the books of said bank on said date be and are made the basis of distribution for the payment of dividends on said accounts. That those of said depositors who were able to and have withdrawn a part of their respective deposit accounts after the 26th day of July, 1932, be charged with the amount of such withdrawal before sharing in any distribution made to the depositors of said bank of this particular class."
In the instant case, the Department of Financial Institutions answered, setting up the facts respecting the petition of the creditors who had signed the so-called moratorium 1, 2. agreement, and the decree above referred to, and alleging that said decree and order of equalization was binding upon the Treasurer of State and the State Sinking Fund. Neither the State, nor the Treasurer of State, nor the local municipalities were made parties to the proceeding in which the decree was entered, nor did any of them have any notice of any proceeding for allowance or disallowance *Page 174
of claims other than the published notice by the liquidating agent above referred to. It is noted that the decree was entered on the 23rd day of July, 1935. The petition had been pending since the 18th day of October, 1933. The statutory notice of recommendation of claims for allowance or disallowance was dated January 21, 1935, and publication of the notice was on January 23, 1935, January 30, 1935, and February 6, 1935. Section 18-317 Burns' Ann. St. Supp. 1938 (§ 7779 Baldwin's Supp. 1937), under which the statement of liabilities and the recommendation for allowance or disallowance of claims was filed and the notice thereof was given, provides: "Any creditor who fails to appear and file his petition, as above provided, within the time fixed by the notice, or by an extension granted by the court, shall be forever barred from asserting any claim different from that recommended by the department, or from asserting any claim to priority, and from contesting or opposing the allowance, with or without priority, of any claim asserted by any creditor." InDept. of Fin. Insts. v. Union Bank Trust Co., Tr. (1937),212 Ind. 97, 104, 105, 106, 107, 8 N.E.2d 235, 238, 239, it was said: "This provision does not, as appellant contends, absolutely bar a claim if not filed within the prescribed time. It only bars one from: (a) asserting a claim different from that recommended by the department; (b) from asserting any claim to priority; and, (c) from contesting or opposing the allowance, with or without priority, of any claim asserted by any creditor." The last clause must be construed as referring to opposing the allowance of a claim asserted by any other creditor. And in further commenting upon the statutory provision, it is said: "The section of the Act in question is not a strict statute of limitations in our judgment and was not intended to be so by the legislature. It should be given a liberal construction to accomplish *Page 175
the purpose for which it was intended. The purpose of the Act was to provide a method for the equal distribution of the assets of an insolvent bank to all its creditors." The provision may be reasonably construed to mean that when a claim has been recommended for allowance upon a certain basis, the creditor is charged with knowledge of that fact, and, until he is notified to the contrary, may rely upon his claim being allowed upon that basis. If he is not satisfied with the recommendation of the liquidating officer, he may file his petition and have his claim determined by the court, and he need not give other creditors notice of his petition. If his claim is allowed for a larger amount or he is granted a preference which was not recommended, other creditors who did not appear and ask to be heard are barred as to his claim. We cannot believe that the Legislature intended that, after a creditor was notified that the books of the bank show that he is a creditor for an amount which he feels is correct, and that his claim has been recommended for allowance in that amount, the recommendation may be withdrawn or changed without notice to him, and that he is bound by the change, and, since we cannot construe the act as intending such a result, there is no necessity for going into the question of whether such a procedure would conform to the requirements of due process.
Long before the decree relied upon in the answer was entered, the determination of the amount due the various municipalities had been determined by the Attorney General and the Auditor 3. of State and the notice had been given. The Auditor of State had acted upon the determination and paid the municipalities the amounts involved, and the claims had been assigned to the Treasurer of State. The statute provides that the decision of the Attorney General and the Auditor of State as to the amount due "shall be final, and shall have *Page 176
the same force and effect as an order of court"; that when the treasurer has paid the municipalities out of the sinking fund, pursuant to the decision of the Attorney General and the Auditor of State, the treasurer shall be subrogated to the rights of the municipalities "to the extent that such state sinking fund shall have paid the loss, and shall share in the distribution of the assets of such closed depository on such basis. . . ." An order of court allowing a claim is a final judgment, and, by the terms of the statute, a determination of the amount due by the Attorney General and the Auditor of State is final and has the same force and effect as such a court order. Such an order an only be set aside or modified in a direct proceeding for that purpose. The petition of the creditors who signed the moratorium agreement did not seek to set aside the determination of the amount due the municipalities, and the decree did not undertake to set it aside or modify it. It must therefore be treated as finally fixing the amount due.
It is stipulated that the Department of Financial Institutions and the Attorney General had knowledge of the proceedings, and the decree entered by the Hamilton Circuit Court, and that the Treasurer of State had knowledge that an equalization had been made in conformity to the decree, and that the funds of the bank were being paid out according to the decree, but it cannot be seen that such knowledge is of any importance. Passing the question as to whether or not knowledge on the part of these officers or laches upon their part can be the basis of an estoppel against the state, and assuming that the state had knowledge of the proceeding and is bound thereby as any private individual would be, it must still be concluded that the state was not required to rush in to protect the decision having the force of a judgment by which its claim had been determined, and that, in the absence of any direct attack, *Page 177
the state was justified in treating the proceeding by the other creditors as affecting only creditors whose claims had not been adjudicated and determined.
The appellant therefore was not barred by the decree, but it must be concluded on the contrary that any right of the liquidating agency or of any creditor to dispute the amount and basis of the state's claim was effectively barred forever by the determination of the Attorney General and the Auditor of State once it had become final.
But if the question had been an open one, to be decided upon the merits, the moratorium agreement could not affect the state's right to recover. The municipalities were not parties to 4, 5. the agreement and had no power to enter into it. They were not general creditors. Their deposits were secured. The fact that, when all deposits made prior to 1933 had been paid, the collateral held as security by the municipalities was returned to the bank at its request, negatives the conclusion that there was any understanding or agreement between the municipalities and the bank that there should be no withdrawals by the municipality. Private depositors were free to agree among themselves that they would not withdraw their deposits, but neither they nor the bank could bind the municipalities not to withdraw their funds, nor create a condition by which the rights of the municipalities could be controlled or affected otherwise than if no such moratorium agreement had been entered into. It is noted that the decree of the court undertakes to fix the rights of creditors on the basis of their status on July 26, 1932. Presumably the signers of the moratorium agreement were unsecured depositors who had agreed among themselves as to what their mutual rights would be, but, upon the date in question, the municipalities held security for their deposits aggregating $51,377.06, which *Page 178
were afterwards surrendered to the bank and became part of its general assets available for the payment of claims of the signers of the agreement and creditors generally. Any decree in equity fixing the rights of the municipalities, as of July 26, 1932, as merely unsecured creditors, and without returning to them their collateral or its equivalent, would be erroneous even if they were bound by the agreement.
At the time the petition of the Treasurer of State was filed, the liquidating agent had paid 40 per cent. on general claims, but had paid to the Treasurer of State for the sinking fund only $710.97. The amount of the claim is $47,591.24, and the sinking fund is entitled to an order for the payment of 40 per cent. of its claim less $710.97, and that it participate ratably in all future dividends.
Judgment reversed, with instructions to enter judgment for the appellant as indicated.
Roll, J., absent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426765/ | DISSENTING OPINION
I concur in that part of the opinion allowing support for the two children in the custody of appellee. But there should be no doubt cast upon the duty of the court to make such allowance, even though the evidence should indicate that the wife and her relatives are able to support them. The duty of a father to support his children has been well expressed by Bridwell, J., inDenning v. Star Publishing Co. (1932), 94 Ind. App. 300, 307,180 N.E. 685, 687, thus:
"The duty of a father to provide for the maintenance of his minor children is a principle of natural law. The obligation of progenitors to support their offspring is universally acknowledged. To discharge this duty is a primal instinct of human nature. The duty is imposed by law at least as early as at the birth of a child and continues thereafter until legally terminated (authorities) . . .
"Children cannot be deprived of their natural rights of support by the dissensions of their parents; they are not parties thereto, and, if a husband, by his own misconduct, makes it possible for his wife to have the marriage bonds dissolved, he does not, by any judgment of divorce decree, *Page 266
relieve himself from his own duty of support. This duty remains unchanged." (authorities).
I approve this statement of the law as defining appellant's duty with respect to supporting his children during the pendency of the divorce action and thereafter. This duty is inherent in the relationship, father and child, and needs no precedent to justify its enforcement. The fact that appellee lives with and cares for the children in no way relieves appellant from his duty to support them. Since the mother is caring for them, it must be contemplated that she will eat with them and share in the comforts of the home in which they live. Considering the wealth, earning capacity and apparent social standing of the parties the allowance made for temporary support of the children is reasonable, and is not an abuse of discretion.
On the question of the allowance of attorneys' fees, evidence which the trial court could properly consider is as follows:
Appellant testified he lives at the Columbia Club in Indianapolis. He is co-owner with appellee of a home at 320 W. Second Street in Marion County upon which there is an unpaid mortgage of $10,000. Appellant is president and general manager of Radio Station W.F.B.M. Inc. and is a director of two incorporated radio stations in Michigan. He owns between 13% and 14% of the W.F.B.M. corporation. His salary in 1949 from W.F.B.M. was $15,000 a year paid semi-monthly; he received $5,000 a year from the Michigan radio corporations and $1,500 a year from Trevit Corporation. From his stock in W.F.B.M. in 1949 he received in dividends $5,062.50; a total yearly income of $26,562.50 for 1949. Since the divorce action was filed appellant has paid nothing for the care and support of appellee or the children. *Page 267
Appellee testified she owns 12 1/2% of W.F.B.M. stock. This stock is in the possession of her father who has loaned her approximately $8,000 thereon. She owns some stock in John W. Eshelman Inc. but was uncertain as to the exact amount. It, too, is in the possession of her father.
Appellee became a patient in a hospital at Philadelphia, Pennsylvania on February 15, 1949, and remained an "in" or "out" patient most of that year. Appellant paid her expenses there until March 19, 1949. After that she paid them herself out of her own money and money borrowed from her father and mother.
She expended of her own funds in the medical care and support of herself and children in 1949 more than $8,000.
She testified it takes approximately $740 to $750 a month to maintain the household, not including payments on the mortgage on the house. She paid $2,000 federal income tax in 1949. Her income in 1949 was $7,082.50 received in dividends from W.F.B.M. and John W. Eshelman Inc. At the date of trial she had $100 and she owed two grocery bills.
There is evidence in the record that a reasonable preliminary attorneys' fee would be $2,500.
It is an established rule in this jurisdiction that an appellate court will not weigh conflicting evidence to determine where the preponderance lies. That duty is wholly within the peculiar province of the trial jury and the trial court.Russell v. Drummond (1855), 6 Ind. 216, 218; HoosierChemical Works v. Brown (1929), 200 Ind. 535, 538,165 N.E. 323; Cottrell et al. v. Shadley (1881), 77 Ind. 348, 353;Gallimore et al. v. Blankenship et al. (1885), 99 Ind. 390, 391; Isler v. Bland (1889), 117 Ind. 457, 458, 20 N.E. 303;Crawford et al. v. Anderson (1891), 129 Ind. 117, 119, *Page 268
28 N.E. 314; Deal v. State (1895), 140 Ind. 354, 356, 358, 39 N.E. 930.
If there is some evidence more than a conjecture, or some inference naturally and logically flowing from the lawful evidence heard by the trial court, supporting each element essential to the finding and judgment or order rendered, this court will affirm. McCarty v. State (1891), 127 Ind. 223, 224, 26 N.E. 665, and cases cited; Davis, Exr. v. Babb
(1919), 190 Ind. 173, 179, 125 N.E. 403; Deal v. State
(1895), 140 Ind. 354, 359, 360, 39 N.E. 930, supra; Glick v.Hunter (1920), 190 Ind. 51, 53, 54, 129 N.E. 232; Rush v.Hunziker (1940), 216 Ind. 529, 536, 24 N.E.2d 931; Glover v.Parson (1937), 103 Ind. App. 561, 564, 9 N.E.2d 109; Town ofFrankton v. Closser (1939), 107 Ind. App. 193, 201,20 N.E.2d 216; Workman v. Workman (1943), 113 Ind. App. 245, 268,46 N.E.2d 718; Admire v. Brewer et al. (1942),112 Ind. App. 92, 97, 41 N.E.2d 662; Ashman v. Studebaker (1944),115 Ind. App. 73, 78, 56 N.E.2d 674.
The rule that this court will not weigh the evidence to determine where the preponderance may lie is applicable in the matter of appeals from interlocutory orders. Naylor et al. v.Sidener (1886), 106 Ind. 179, 185, 6 N.E. 345; Mead v. Burk
(1901), 156 Ind. 577, 582, 60 N.E. 338; Chicago, etc. R. Co. v.Kenney (1901), 159 Ind. 72, 81, 62 N.E. 26; Hammond TheatricalCo. v. Gregory et al. (1935), 208 Ind. 31, 45, 194 N.E. 631;Henderson v. Henderson (1887), 110 Ind. 316, 319, 11 N.E. 432.
Discussing and deciding this proposition in Henderson v.Henderson (1887), 110 Ind. 316, 319, 11 N.E. 432, supra, Howk J., for this court, said:
"The rule of this court that it will not weigh the evidence, nor reverse the judgment below upon what might seem to be the preponderance of the *Page 269
evidence, applies as well to appeals in chancery or divorce suits, as to appeals in other cases. This court will give the same respect to the finding of the trial court upon the evidence in a suit in equity, or a suit for divorce and alimony, that it has always given to the verdict of a jury or the finding of a court, in an action at law. Lake Erie, etc. R.W. Co. v. Griffin, 107 Ind. 464. Where, in a suit for divorce, the finding of the trial court rests upon conflicting evidence, or is sustained, on every material point, by legal evidence appearing in the record, the judgment will not be reversed on the weight of the evidence. In the case under consideration, the finding of the court below is sustained, and strongly sustained, we think, by the evidence brought before us, on every material point. In such a case, the finding of the court is not, and can not be, contrary to law.
"Appellant's counsel earnestly insist that the circuit court erred in its allowance of alimony to appellee, the amount thereof being too large, and in its allowance to her for attorneys' fees, and the costs and expenses of her suit herein, the amount of such allowance being also too large. . . . the allowances complained of are, of necessity, largely within the discretion of the trial court, `and the abuse of that discretion must be very clear indeed, to justify this court in interfering with its exercise.' Powell v. Powell, 53 Ind. 513; Conn
v. Conn, 57 Ind. 323; Eastes v. Eastes, 79 Ind. 363; Buckles v. Buckles, 81 Ind. 159; Logan v. Logan, 90 Ind. 107."
The Henderson case has been cited with approval in many cases in this state among which I note, Sellers v. Sellers (1895),141 Ind. 305, 307, 40 N.E. 699; McCue v. McCue (1898),149 Ind. 466, 470, 49 N.E. 382; Wise v. Wise (1909),43 Ind. App. 625, 626, 88 N.E. 309; Boggs v. Boggs (1910),45 Ind. App. 397, 398, 90 N.E. 1040; Ginter v. Ginter (1914),56 Ind. App. 98, 103, 104 N.E. 989; Argiroff v. Argiroff (1939),215 Ind. 297, 300, 19 N.E.2d 560; Admire v. *Page 270 Brewer (1942), 112 Ind. App. 92, 97, 41 N.E.2d 662; The LakeErie and Western Railway Company v. Griffin et al. (1886),107 Ind. 464, 473, 8 N.E. 451; Ashman v. Studebaker (1944),115 Ind. App. 73, 78, 56 N.E.2d 674.
Typical statements of the rule by the courts in the above cases are as follows:
"Besides, the evidence was conflicting . . .; and in such case it is well settled that the court will not weigh the evidence, whether the same is given by affidavits or otherwise." (authorities).
McCue v. McCue (1898), 149 Ind. 466, 470, 49 N.E. 382,supra.
"It will suffice for us to say, as we think we may safely do, that the evidence fairly tends to sustain the special findings of facts, on every material point. In such a case, as we have often decided, we will not disturb the findings of the trial court, nor reverse its judgment and decree, upon what might seem to be the weight of the evidence. The reasons for this rule of decision have been given so often, in our reported cases, that we need not repeat them here. We adhere tenaciously to this rule in all cases, whether at law or in equity." (authorities)
The Lake Erie Etc. Ry. Co. v. Griffin et al. (1886),107 Ind. 464, 473, 8 N.E. 450, supra.
"This court is not in as good position to decide who told the truth as was the court below. The question for decision here is: Is there any evidence to support the judgment? This court cannot weigh conflicting evidence in order to set aside the decision of the trial court." (authorities). "The same rule applies in suits in equity for divorce and alimony as in those tried by a jury in an action at law." (authority). "No public service would be subserved by a review of the evidence." (My italics).
Wise v. Wise (1909), 43 Ind. App. 625, 626, 88 N.E. 309,supra. *Page 271
"In a suit in equity, the Supreme Court is bound to give the same respect to the finding of the trial court that is given to the verdict of the jury or finding of a court in an action at law." (authorities).
Admire v. Brewer (1942), 112 Ind. App. 92, 97,41 N.E.2d 662, supra.
"The only question presented by the assignment of errors, and not waived, concern the sufficiency of the evidence to sustain the court's decision and the legality thereof.
"Our approach to this question is governed, of course, by the well-known and settled rule in Indiana, even in equity cases, that where the evidence in respect to matters in controversy consists partly of oral testimony the evidence will not be weighed and only such evidence as is favorable to the decision can be considered, and if there is any evidence whatever which supports the decision in its essential particulars, such decision must stand regardless of any evidence to the contrary."
(authorities)
"In cases of purely equitable cognizance the statute, § 2-3229 Burns' 1933 . . . permits an assignment of error that the judgment is clearly against the weight of the evidence and thereby requires courts of error to `carefully consider and weigh the evidence,' but the above cases and many others hold that this statute has no application to conflicting oral testimony." (authorities).
"This is the rule even when the evidence is documentary if the force and effect thereof depends in part on oral testimony." (authority). (My italics).
Ashman v. Studebaker (1944), 115 Ind. App. 73, 78,56 N.E.2d 674, supra.
As to the same proposition I quote from later cases as follows:
"Appellant's contention that the finding and decision of the court is not sustained by sufficient *Page 272
evidence and is contrary to law requires a review of the evidence.
"It is well settled that this court cannot weigh conflicting evidence and, if there is any substantial evidence in the record to sustain the finding and decision of the trial court, the judgment must be affirmed. In this connection it must be borne in mind that the trial judge, as the trier of the facts, was not bound by the testimony of any single witness or any particular item of evidence. It was his exclusive province to judge and determine the credibility of witnesses, weigh the evidence, . . . We have examined the record and find the evidence is conflicting and that there is substantial evidence to sustain the decision of the trial court. Upon appeal this court cannot substitute its judgment as to the weight of the evidence for that of the trial court."
(My italics).
McDaniels v. McDaniels (1945), 116 Ind. App. 322, 331,62 N.E.2d 876. See also Adkins v. Adkins (1947),117 Ind. App. 189, 194, 70 N.E.2d 750; Waid v. Waid (1946),117 Ind. App. 4, 8, 66 N.E.2d 907; Stinson v. Stinson (1947),117 Ind. App. 661, 662, 74 N.E.2d 745; Adams v. Adams (1947),117 Ind. App. 335, 337, 69 N.E.2d 632.
The rule governing the courts on the matter of granting allowances pendente lite in divorce cases is well stated by Cox, J. in Snider v. Snider (1913), 179 Ind. 583, 588, 590, 102 N.E. 32, pertinent parts of which are as follows:
"The right of alimony whether pendente lite or permanent is founded on the common law obligation of the husband to support his wife and was recognized in ecclesiastical law. Subject to certain conditions, the wife is, in suits for absolute divorce, whether she be plaintiff or defendant, entitled upon application to temporary alimony where no statute provides for it. And it may be awarded notwithstanding statutes which give her control of her *Page 273
separate property and the benefit of her own earnings, although such statutes materially lessen the force of the reason upon which it is granted, and in such case the allowance is not made so much as a matter of course. It must be made to appear as one of the essential conditions upon which the wife will be granted the allowance, that she has not sufficient means to provide for her own support adequately and to pay the expenses of properly preparing and prosecuting or defending the action. The ability of the husband to pay should also be made to appear." (authorities).
"Whether the necessity for the allowance exists, and the ability of the husband to pay, as well as the amount to be allowed is within the sound discretion of the trial court to determine upon the facts before it. This judicial discretion is, it is true, subject to review on appeal, but it will be interfered with only when a clear abuse of it by unfair and arbitrary action is shown." (authorities).
"Although the fact that the wife has some property is a matter to be considered by the court in determining whether an allowance shall be made, as well as the amount of it, still, if it is not sufficient properly to support her and at the same time afford her the means to secure her an efficient preparation of her case and a fair trial without exhausting her own resources, an allowance is within the discretion of the court. . . . The law does not contemplate that the husband shall be oppressed by the allowance, neither does it intend that where his means are ample the court shall weigh the amount awarded in `the scales of an apothecary.' The statute means and intends a sum sufficient to insure an efficient preparation and a fair trial. And what is sufficient for the wife to obtain these results the court, under all the facts and circumstances in each particular case, must determine.
"That an allowance of temporary alimony or suit money to a wife having some property or some credit is not necessarily an abuse of discretion on the part of the trial court has been decided by this court." (My italics). *Page 274
Notwithstanding the fact that substantially all the law in Indiana fully supports the action of the trial court in making the allowance for partial attorneys fees, the majority opinion ignores the law by which this court has always considered itself bound, and incorrectly gives the rule governing the trial court in making such allowances as that stated in Kenemer v.Kenemer (1866), 26 Ind. 330, 332, quoting from the majority opinion, thus:
"If the wife has either funds or credit sufficient for the purpose of her defense and her present support it is improper for the court to require the husband to furnish money for such purposes pending the litigation."
as the law governing this court on appeal. The statement as made by Ray, J. in the Kenemer case is thus:
"If she" the wife "had either funds or credit sufficient for her defense and her present support, it would have been improper for the court to require her husband to furnish money for such purpose, pending litigation."
In these words Ray, J. made it undisputably known that this is the rule for the government of the trial court only. Changing the verb from "would have been" to "is" in the quotation makes it appear that this is the rule governing this court on appeal. In fact it is the rule followed in the majority opinion. In the Kenemer case the trial court refused a temporary allowance, and this court did not weigh the evidence, and affirmed the trial court.
The majority opinion cites Snider v. Snider (1913),179 Ind. 583, supra, as supporting its right to weigh the evidence. Among other things, the opinion in that case at page 587 states thus: *Page 275
"It seems to be the contention of counsel for appellant that in a divorce action a trial court has authority to grant suit money or temporary alimony to the wife only when it is shown that she has neither means or credit with which properly to prepare her suit or defense for trial, and that when it appears she has some means or credit an allowance is an abuse of discretion which this court will review. Such is not the law either under our statute or the common law."
The learned judge then ably discussed the law, concluding at page 589, 590, thus:
"That an allowance of temporary alimony or suit money to a wife having some property or some credit is not necessarily an abuse of discretion on the part of the trial court has been decided by this court." (authorities).
"Counsel for appellant rely upon the case of Kenemer v. Kenemer (1866), 26 Ind. 330, as sustaining their contention for appellant in this case, but we think a careful consideration of what was there involved and decided shows that it does not."
So in this case we must say that neither the Kenemer nor Snider case supports the opinion. On the contrary they support this dissent.
In the case of Crowell v. Crowell (1942), 219 Ind. 472,39 N.E.2d 602, cited in the opinion, it was long believed that under Section 2-3229, Burns' 1946 Replacement, it was a duty of this and the appellate court to weigh the evidence on appeal in equity cases where the evidence was all documentary. State LifeInsurance Co. v. Cast (1937), 214 Ind. 17, 23, 13 N.E.2d 705;Parkison v. Thompson (1905), 164 Ind. 609, 618, 73 N.E. 109. In the Crowell case the only evidence heard by the trial court was the verified application of the wife for temporary allowance and attorneys fees, and the counter affidavit filed by the husband. It may be that under the above statute and cited cases *Page 276
this court inferred that it was in as good a position to weigh the evidence, as was the trial court. However, that theory has been fully exploded (Parkinson v. Thompson, 164 Ind. 609, 626, supra.) It, too, quoted the Kenemer case as authority for weighing the evidence. As before shown, the Kenemer case does not support that position and the Crowell case is wholly unsupported by authorities.
I think the rationale of all the Indiana cases on the subject is:
When a proper application has been made in a proper trial court in a pending divorce case for a temporary allowance to a wife for the expenses of the suit and attorneys fees agreeable with the first sentence of Section 3-1216, and upon a proper hearing, the court grants the petition and makes allowances agreeable with the petition and statute, and an appeal is taken from the interlocutory order so made, this court upon proper assignment of errors may review the evidence for the sole purpose of ascertaining whether there is some evidence or reasonable inferences to support the essential averments of the petition. If there is, the order must be affirmed. We cannot weigh the evidence. That is a duty solely for the trial court. We cannot substitute our judgment as to the weight of the evidence for that of the trial court. The error of the trial court must be so pronounced that it amounts to an error of law before this court may interfere. In other words there must be an entire absence of evidence to support some proposition essential to the validity of the order. In that event the order would be arbitrary, capricious or corrupt.
No such defect can be found in the order of the instant case. It should be affirmed in toto.
NOTE. — Reported in 91 N.E.2d 169. *Page 277 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3209499/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
New Hampshire Insurance Company, § No. 08-15-00173-CV
Sunsets West, Inc. and R. M. Personnel,
Inc., § Appeal from the
Appellants, § County Court at Law No. 3
v. § of El Paso County, Texas
Luis Alberto Rodriguez, § (TC# 2007-5339)
Appellee. §
§
ORDER
The Court GRANTS the Appellant R. M. Personnel, Inc.’s second motion for extension
of time within which to file the reply brief until June 1, 2016. NO FURTHER MOTIONS FOR
EXTENSION OF TIME TO FILE THE REPLY BRIEF OF APPELLANT R. M. PERSONNEL,
INC. WILL BE CONSIDERED BY THIS COURT.
It is further ORDERED that the Hon. David Campbell, attorney for Appellant R. M.
Personnel, Inc., prepare the reply brief of Appellant R. M. Personnel, Inc. and forward the same
to this Court on or before June 1, 2016.
IT IS SO ORDERED this 31st day of May, 2016.
PER CURIAM
Before McClure, C.J., Rodriguez and Hughes, JJ. | 01-03-2023 | 06-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4058662/ | Fourth Court of Appeals
San Antonio, Texas
December 4, 2015
No. 04-15-00638-CV
IN THE INTEREST OF A.M.M., A CHILD,
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-00193
Honorable Dick Alcala, Judge Presiding
ORDER
The appellant’s second motion for extension of time to file brief is hereby GRANTED.
Time is extended to December 7, 2015.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of December, 2015.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4058667/ | OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
FILE COPY
P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
7/1/2015 COA Case No. 01-13-01072-CR
PALUMBO, LAWAN Tr. Ct. No. 1868453 PD-0656-15
On this day, this Court has granted the Appellant’s motion for an extension of time
in which to file the Petition for Discretionary Review. The time to file the petition
has been extended to Monday, August 17, 2015. NO FURTHER EXTENSIONS
WILL BE ENTERTAINED. NOTE: Petition for Discretionary Review must be filed
with the Court of Criminal Appeals.
Abel Acosta, Clerk
1ST COURT OF APPEALS CLERK
CHRISTOPHER A. PRINE
301 FANNIN
HOUSTON, TX 77002-7006
* DELIVERED VIA E-MAIL * | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426809/ | The complaint in one paragraph was filed in the office of the clerk, January 11, 1930, and by endorsement thereon appellant fixed the 24th day of January, 1930, as the day for appellee to appear. Summons was issued by the clerk accordingly. It was regularly delivered to the sheriff of Vanderburgh County, January 11, 1930, and later on the same day was delivered back *Page 269
to the clerk with a sheriff's return of "not found." Appellant, on the 19th day of April, 1930, caused a second or alias summons to be issued, returnable May 5, 1930. This summons was duly served on appellee April 21, 1930, and due return made showing personal service. Appellee filed an answer in abatement charging that the suit was filed in the December, 1929, term, and that the summons which was served in the next subsequent or March, 1930, term was too late because the suit was no longer a pending action after March 1, 1930, which was the last day of the December term.
The facts were found specially and conclusions of law stated thereon. The facts found by the court were in substance as stated above and in addition thereto the court found the following facts:
That no complaint has been filed by the plaintiff in this cause except the original complaint filed on the 11th day of January, 1930, and said complaint has not been amended or attempted to be amended and has not been refiled in this cause or in the office of the Clerk of this Court.
That no service was ever had on the defendant in this action by means of summons, or by attachment, or by publication, or in any other manner excepting only that the sheriff of Vanderburgh County, on April 21, 1930, read to the defendant the same summons dated April 19, 1930. No request was made by the plaintiff, by its attorneys or otherwise for the issuance of any process or notice of any sort whatsoever in this cause before the 19th day of April, 1930, excepting only that the plaintiff by its attorney, Edward E. Meyer, by endorsement on the complaint herein, on the 11th day of January, 1930, requested the issuance on that day of the summons which was in fact issued on that day returnable January 24, 1930. *Page 270
Upon the above and foregoing findings of fact, the court states its conclusions of law as follows, to-wit:
"The law is with the defendant and the defendant is entitled to have the action herein abated.
"Upon the termination of the December, 1929, term of this court on the 1st day of March, 1930, the action which was begun by the plaintiff by the filing of its complaint herein on January 11, 1930, terminated and was at an end and this cause was not pending as a cause in this court on the 19th day of April, 1930, when the plaintiff procured the issuance of an alleged summons herein directed against the defendant, which by its terms purported to require the defendant to appear herein on the 5th day of May, 1930.
"This cause having ceased to be a pending cause, when the alleged summons was issued on the 19th day of April, 1930, this action should be abated and the defendant is entitled to a judgment and decree herein abating this action."
The appellant at the time excepted to each of the foregoing conclusions of law and the court then rendered judgment, that this action abate and the defendant recover her costs herein.
The appellant filed a motion for a new trial for the following reasons:
(1) That the decision of the court is not sustained by sufficient evidence; and
(2) The decision of the court is contrary to law.
Said motion for a new trial was overruled by the court, to which ruling of the court the appellant at the time excepted and said ruling is assigned as error herein.
2 R.S. 1852, page 5, being section 1394 Burns 1926, is as follows:
"If, at the end of the term of any court, any matters pending therein are undetermined, the same shall stand continued until the next term." Under this section it has *Page 271
been held that all proceedings are continued by operation 1. of law by adjournment of court without order of continuance. Black v. Thompson (1886), 107 Ind. 162, 7 N.E. 184; Osborn v. Sutton (1886), 108 Ind. 443, 9 N.E. 410.
Acts 1881, Special Session, Page 240, being Section 332, Burns 1926, provides: "A civil action shall be commenced by filing in the office of the clerk a complaint, and causing a summons 2. to issue thereon; the action shall be deemed to be commenced from the time of the issuance of the summons." This section of the statute has been construed to mean that the action is deemed to be commenced when the summons has been issued by the clerk and placed in the hands of the sheriff for service.Alexandria Gas Co. v. Irish (1899), 152 Ind. 535, 53 N.E. 762; Marshall v. Matson (1908), 171 Ind. 238, p. 244, 86 N.E. 339.
Section 575, Burns 1926, provides: "If at any time after the filing of the complaint, it shall be found that any party to the action has not been properly notified, the plaintiff may file with the clerk or indorse on the complaint a written request for such notice to be given, naming therein the day of the pending or subsequent term on which such party is required to appear to the action, and summons shall be issued or publication made accordingly in the proper case as above provided."
If alias process is issued, it has been held that the action is commenced from the issuance of the first process. St. Louis A. T.R.R. v. Shelton (1893), 57 Ark. 459, 21 S.W. 876. The 3. suit was not begun by issuing the alias summons, but by filing the complaint and issuing the summons in the first instance. The first summons was issued within the period of limitations prescribed for such suits. The cause was therefore not barred. To the same effect see Swisher v. Williams
(1834), Wright (Ohio) 754; Flint v. Powell *Page 272
(1899), 13 Colo. App. 425, 72 P. 60; Needham v. Salt LakeCity (1891), 7 Utah 319, 26 P. 920; Bracken v. McAlvey
(1891), 83 Iowa 421, 49 N.W. 1022; Hampe v. Schaffer (1889),76 Iowa 563, 41 N.W. 315; Collins v. Bane (1872), 34 Iowa 385; Ewell v. Chicago N.W.R. Co. (1886), (C.C.A.) 29 Fed. 57; Kelley v. Harrison (1892), 69 Miss. 856, 12 So. 261;McGrath v. St. Louis K.C. C.R.R. Co. (1895), 128 Mo. 1, 30 S.W. 329; South Missouri Lumber Co. v. Wright (1892), 114 Mo. 326, 21 S.W. 811.
In Ontario Bank v. Rathburn (1838), 19 Wend. (N.Y.) 291, a capias sent out and returned non est inventus continued down by regular continuances on a continuance roll to the term when the process issued upon which the defendant was arrested saves the attaching of the statute of limitations, and it seems that no length of time between the first and last process destroys the effect of such a proceeding: In the above case 17 years elapsed between the issuing of the two writs. Exactly the same holding is in Fuller v. Dempster (1887), (Pa.), six years intervened. 8 Sad. 546, 11 A. 670, citing three Pennsylvania cases.
The appellee herein relies upon the cases of Geisen v.Karol (1928), 86 Ind. App. 653, 159 N.E. 469, and State exrel. v. Eacret (1928), 86 Ind. App. 662, 159 N.E. 473, but the questions presented in this appeal are not involved in either of the above cases and are not decisive of the question.
The statute in this case governing the matters involved herein is so clear and unambiguous that a further discussion is not necessary.
The judgment is reversed with instructions to restate the conclusions of law in harmony with this opinion and render judgment for the appellant on the plea in abatement. *Page 273 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426810/ | The appellants have filed a petition for rehearing in this cause. In our opinion of June 29, 1933, we held that the special praecipe to the clerk of the Porter Circuit Court was not 1. sufficient to authorize that official to include in the transcript and certify as a part thereof on appeal to this court, the seconded amended supplemental cross-complaint of the appellee, Gary Land Company, and because of its absence from the record, could not consider this appeal on its merits and affirmed the judgment of the lower court.1 We have again reviewed the authorities cited to this point by both the appellant and appellee, as well as other authorities, including the case ofSmith v. Switzer (1933), 205 Ind. 404, 186 N.E. 764, just recently decided by our Supreme Court, and conclude that the pleading in question is properly in the record. The petition for rehearing is therefore granted.
The appellee Gary Land Company contends that the appellants did not save exceptions to the conclusions of law at the time they were filed, and that therefore no question is presented for 2. our consideration. This contention is without merit. The record shows that upon January 7, 1931, the court signed and filed its conclusions of law, after which on the same day, some of the cross-defendants to the cross-complaint of appellee Gary Land Company dismissed certain pleadings theretofore filed by them. Then, upon the same day, and immediately *Page 647
following the entry of dismissal of these pleadings, is the following entry: "The court having had this cause under advisement, now signs and files its conclusions of law from one to eight, both inclusive, herein as follows." Then follow the conclusions of law. Immediately thereafter and on the same day, the record shows that the appellants William P. Patterson, Clarence V. Shields, Earl Rowley, Lemuel Darrow and Everett G. Ballard excepted separately and severally to certain designated conclusions of law. This was sufficient to comply with the requirements of our code.
Appellee Gary Land Company next contends that this cause should be affirmed because of appellant's failure to comply with the rules of this court in the preparation of their brief. This contention is likewise without merit. Appellant's briefs are prepared in compliance with the rules of this court.
This action was originally commenced June 6, 1920, by the appellee Bertha A. Manlove as a suit to partition real estate. One Frank B. Pattee, to whose interest the appellee Gary Land Company became successor, by conveyance on August 31, 1929, was made one of the parties defendant to the action, and on April 29, 1921, filed a cross-complaint in three paragraphs. Bertha A. Manlove dismissed her complaint for partition April 21, 1930.
The cause was tried upon issues tendered by the amended cross-complaint, together with supplemental cross-complaints filed by the appellee Gary Land Company, answers filed thereto by the appellants and the co-appellees of the Gary Land Company, and a reply by the Gary Land Company, to the paragraphs of answer alleging affirmative matter. Also, upon issues tendered by the cross-complaint of the appellant William P. Patterson and answer in general denial filed thereto by the appellee Gary Land Company.
These pleadings are long and involved. No question as *Page 648
to their sufficiency is presented by the record. Inasmuch as the cause was tried to the court without a jury, who upon request of the appellee Gary Land Company made and filed a special finding of facts, and stated conclusions of law thereon, we do not think it necessary to set out the pleadings or their substance. It is sufficient to state that the appellee, Gary Land Company, sought to quiet its title to certain real estate, basing its right to maintain such action upon several tax deeds issued to its immediate grantor, Frank B. Pattee, and, in the event such deeds should not be sufficient to vest title to the real estate in it, that a lien be declared thereon in its favor for the taxes thus paid, including penalties, interest and costs as provided by law. This complaint was answered by general denial and three affirmative paragraphs of answer. The affirmative paragraphs alleged facts upon the theory of estoppel, because of an agreement existing between the cross-defendants and Frank B. Pattee; invalidity of the tax deeds to convey title to or a lien upon the real estate, because of irregularities attending the various tax sales and issuing of the tax deeds; and the four-year statute of limitation because of failure to issue the tax deeds within four years from date of the tax sale. To these affirmative paragraphs of answer the Gary Land Company filed a reply in general denial and one affirmative paragraph of reply. The affirmative paragraph rested upon the theory of laches on behalf of the cross-defendants. The appellant William P. Patterson by his cross-complaint sought to quiet his title to a portion of the tract of real estate involved, as against the appellee Gary Land Company, basing his right upon a title alleged to be derived from the owner of the entire tract of real estate. This pleading was answered by a general denial.
There was no motion for a new trial filed. The evidence is not in the record.
The special finding of facts, briefly summarized, disclose: *Page 649
that previous to 1908, Winchester W. Hall and Rosa M.B. Hitt claimed to be the record owners, and were named as owners on the assessor's book, tax duplicates, and delinquent land and lot records of Lake County, Indiana, of 88.76 acres of land, described as all that part of fractional section thirty-one, township thirty-seven north, range seven west, lying north and west of lot one in said section, being all of the land lying south of Lake Michigan, north and west of the Grand Calumet River and north of what is known as the Indian Boundary Line; its location can perhaps be better understood by explaining that the land in question is a rather narrow strip, located upon the south shore of Lake Michigan, extending approximately one mile in length from the Grand Calumet River on the east to the east boundary line of the property of the United States Steel Corporation on the west, and varying in width north and south from Lake Michigan, 650 to 1200 feet, to said Indian boundary line on the south; the surface of the land is and always has been composed of sand, inclined to drift and shift with the wind; very little top soil or vegetation covers the surface; it has never produced crops of any kind nor has it been farmed; a few small poplar trees and brush appear over the tract; this condition has prevailed as long as men forty or fifty years of age can remember; a beach from fifty to one hundred feet in width, bordering the lake, extends along the entire north side; back of this beach are barren sand hills; there are no fences on the land and none have been erected in the last fifty years, except a fence on the east line, erected by the Gary Park Board; a township road was constructed across the land from north to south in 1896; sidewalks were constructed on each side of this highway a portion of the distance across the land, but by whom does not appear; there are no other substantial improvements; the city of Gary was founded in 1906; since its organization it has had a *Page 650
marked and continuous growth, until at the time of the trial of this cause its population was 100,000; in 1920 the east boundary line of the city of Gary was extended so this land is now located within the city limits; in 1912 the value of the land did not exceed $700 per acre, the value at the time of the trial of this cause was placed at from $3,500 to $5,000 per acre; its value has been highly speculative because of the nature of the land, its location, and the fact that its title and possession have been involved in litigation for many years; in 1908, Drusilla Carr, claiming to be its owner by reason of adverse possession under color of title, brought suit against Winchester W. Hall and Rosa M.B. Hitt to quiet her title thereto; this litigation was waged continuously between the parties in one form or another, until April 9, 1929, when our Supreme Court rendered a decision finally quieting title in the land in Drusilla Carr; neither the appellee Gary Land Company nor Frank B. Pattee, its grantor, were ever parties in any capacity to any of this litigation; prior to August 17, 1916, Drusilla Carr conveyed undivided interests in the land to the appellee Daniel E. Kelly, Henry Warrum and Bertha A. Manlove, also, to the appellant Everett G. Ballard and one Albert C. Carver, who, on January 27, 1928, conveyed his interest in the land to the appellant William P. Patterson; previous to 1924 Drusilla Carr conveyed undivided portions of the land to some of the cross-defendants to the cross-complaint of appellee Gary Land Company but to whom does not appear; the special findings do not show that any of these deeds were ever placed on record; on August 6, 1926, Drusilla Carr conveyed an undivided interest in a portion of the land to the appellants Lemuel Darrow, Earl Rowley and Clarence V. Shields; this deed was placed on record; Drusilla Carr and the parties claiming under her had been in possession of the land since the institution *Page 651
of the suit by her in 1908, to quiet title thereto; neither the appellee, Gary Land Company, nor its grantor, Frank B. Pattee, have ever been in possession of any of the land; in November, 1924, Drusilla Carr, Henry Warrum, and Everett G. Ballard, as plaintiffs, instituted a suit in partition against Bertha A. Manlove, Daniel E. Kelly and Albert C. Carver as defendants; partition of the land was made and separately specifically described parcels of the entire tract were deeded to each of the parties to the partition suit by a commissioner; these deeds were recorded in the recorder's office; in 1910 the entire tract of land was assessed for taxes, an undivided half interest was assessed in the name of Hall and an undivided half interest in the name of Hitt; the same land was assessed in the same manner in the year 1911; Hitt's share of the taxes for these years went delinquent; at the tax sale on February 12, 1912, Frank B. Pattee bid in Hitt's undivided half interest in seven acres out of the 88.76 acre tract for Hitt's delinquent taxes on her undivided half interest in the whole tract of land; the 1911 taxes on Hall's undivided half of the entire tract of land went delinquent; in the assessor's book for the year 1912, the entire tract of land appeared in the name of Hall and Hitt and there was nothing to indicate that they owned undivided interests therein; the same facts appeared in the tax duplicate for that year, and the tax for the year 1912, payable in 1913, was entered upon the tax duplicate against the entire tract of 88.76 acres and not against undivided interests therein; at the tax sale on February 10, 1913, Frank B. Pattee bid in Hall's undivided half interest in twenty acres, for his delinquent taxes on the entire tract of 88.76 acres; at the tax sale on February 9, 1914, Frank B. Pattee bid in Hitt's undivided half interest in forty acres out of the northwest corner of the 88.76 acre tract, except *Page 652
seven acres out of the northwest corner of the forty acre tract, for taxes which Hitt had permitted to go delinquent and which taxes were assessed against the whole tract of 88.76 acres; at the tax sale on February 8, 1915, Frank B. Pattee bid in Hall's undivided half interest in forty acres out of the 88.76 acres for taxes permitted to go delinquent, which were assessed in the year 1913 against the entire tract of 88.76 acres, and for the year 1914 against 81.76 acres of the entire tract of land, and at the same sale Frank B. Pattee bid in Hall's undivided half of seven acres out of the northwest corner of the 88.76 acre tract for taxes permitted to go delinquent against said seven acre tract; Hitt permitted her taxes for the year 1914, assessed against her undivided one-half of 81.76 acres of the tract, and taxes for the year 1915, assessed against her undivided half of 61.76 acres in the entire tract, to go delinquent; at the tax sale on February 14, 1916, Frank B. Pattee bid in 61.76 acres out of the entire tract of 88.76 acres for Hitt's delinquent taxes; Hall permitted his half of the taxes assessed against a tract of 61.76 acres; also, a tract of seven acres, all contained within the tract of 88.76 acres, to go delinquent; Hitt permitted her half of the taxes assessed against a tract of twenty acres contained within the tract of 88.76 acres to go delinquent; at the tax sale held on February 12, 1917, Frank B. Pattee bid in Hall's undivided half interest in 21.76 acres, also, seven acres, also, forty acres, for the taxes of 1915 and 1916 which had gone delinquent; at the same sale Frank B. Pattee bid in Hitt's undivided half interest in twenty acres for the taxes of 1915 and 1916 which had gone delinquent; within a period of two and a half years after each of the above sales was held, Frank B. Pattee surrendered the certificate of sale issued to him at the time of each respective tax sale, to the county auditor, who executed and delivered a tax *Page 653
deed purporting to convey to Pattee the tract or tracts of land therein described, which deeds were all duly executed and entered of record; in no instance did the description of the land set out in the deed correspond with the description in the certificate of sale, but each tract of land described in each of the tax deeds was located within or described the entire tract of 88.76 acres; neither Frank B. Pattee or the Gary Land Company caused a deed to be executed and placed on record, after any of these various tax sales describing the lands as described in the respective tax sale certificates; Frank B. Pattee paid $1.25 for making and executing each tax deed above referred to and such other expense as was incident thereto; the county auditor did not comply with the provisions of Secs. 10354-10355, Burns 1914, Acts 1891, p. 199, in any of the tax sales above referred to; six different tax deeds were issued to Frank B. Pattee by the county auditor, purporting to convey parts of the 88.76 acres of land to him, they were all in the form prescribed by statute; Frank B. Pattee paid the taxes upon the tracts of land covered by the respective tax deeds, which in the aggregate included the entire tract of 88.76 acres here in controversy, each and every year after receiving said deeds as above related, until the fall of 1921, after which time, the Gary Land Company paid the taxes to and including October 28, 1929, when the last payment was made, so far as disclosed by the record; tax receipts were issued for the payment of these taxes, showing the municipal corporations, where the land was situated, and notwithstanding certain technical errors and defects contained in the descriptions in certain of said receipts, the payment of taxes was made in each instance upon the whole or portions of the land in controversy; during the entire period of fifty-four years, from 1876 to the date of the trial of this cause, neither Drusilla Carr, nor any of the *Page 654
other cross-defendants to the cross-complaint of the appellee Gary Land Company ever redeemed or paid any of the taxes upon the 88.76 acres of land, except in February, 1917, Daniel E. Kelly and Bertha A. Manlove redeemed an undivided one-sixth and an undivided one-twelfth interest respectively, in the land sold for delinquent taxes in February, 1915; taxes began to go delinquent in the year 1910 and subsequent thereto; after that time, all the taxes assessed and levied against the land were paid and discharged by Frank B. Pattee and the Gary Land Company, except small amounts paid by Kelly and Manlove on one occasion for redemption as above stated; there was no legal impediment to prevent Drusilla Carr nor the other cross-defendants from paying the taxes; all the cross-defendants knew at all times that the taxes were going delinquent; that said tract of land was being sold at tax sales and tax certificates and deeds were being issued thereon; that the taxes on the land were being paid by Frank B. Pattee or the Gary Land Company; Frank B. Pattee did not at any time agree with any of the cross-defendants to the cross-complaint of the Gary Land Company, nor any one purporting to represent them, that he would pay the taxes while litigation concerning the title to the land was in progress between Drusilla Carr and Hall and Hitt, and that when such litigation was terminated, he would convey the lands to her and the other cross-defendants upon the payment to him of the amount which might be due him as the holder of the statutory liens; no one of the cross-defendants at any time tendered any money for redemption of the land or any portion thereof from said tax sales or otherwise; neither did they or any of them at any time compute the amount they claimed to be due Frank B. Pattee, as the holder of tax liens upon the land and offer to pay that amount of money or any amount of money to him; *Page 655
nor did they ever pay any money into court in this action; the court also found the various sums that Frank B. Pattee and the Gary Land Company had paid as taxes at different times with the penalties attached thereto; the entire tract of land in controversy appeared upon the tax duplicates in the names of Hall and Hitt, some of the time designating them as owning an undivided half interest therein, and on other occasions not indicating the interest of either of them in the land, except, that after Frank B. Pattee had bid in some portions of said entire tract of land at tax sales and had received deeds from the auditor purporting to convey such portions to him, they appeared in his name upon the tax duplicates and he was assessed for and paid the taxes upon such tracts of land; the special finding of facts does not show that Drusilla Carr nor any of the other cross-defendants to the cross-complaint of appellee Gary Land Company ever, at any time, had any portion of the land in controversy transferred to their names upon the records in the auditor's office, nor that any portion or portions of said land appeared in their name or names upon the tax duplicates, or were assessed for taxes in their names at any tax sale, the land was sold in either the name of Hall or Hitt, never in the name or names of any of the cross-defendants. On October 10, 1930, the appellee Gary Land Company filed a supplemental cross-complaint suggesting the death of the cross-defendant Drusilla Carr, testate, on or about September 14, 1930, and asking that certain of her named devisees be substituted as cross-defendants. This substitution was made as requested.
Upon its special finding of facts the court concluded the law to be as follows:
"1. The Court concluded as a matter of law that the cross-defendants to the amended cross-complaint, and supplemental cross-complaint of Gary Land Company, *Page 656
namely: Henry Warrum, Daniel E. Kelly, Bertha A. Manlove, Everett G. Ballard, William P. Patterson, Lemuel Darrow, Earl Rowley, Clarence V. Shields, Edward F. Carr, William R. Carr, Fred William Carr, Henry R. Carr, Clara Buckingham, and Nettie Nelles, are the owners, in fee simple, of respective interests in the entire tract of real estate here in controversy, which interests in the aggregate comprise the entire fee simple title in and to said real estate, subject to the lien rights of cross-complainant, Gary Land Company, as hereinafter set out.
"2. The Court concludes as a matter of law that said owners, named in conclusion number one, are, by reason of such interest as owners, entitled to contest and litigate the validity of the respective tax deeds under which cross-complainant Gary Land Company, is claiming title to said real estate.
"3. The court concludes as a matter of law that each of the respective tax deeds under which cross-complainant, Gary Land Company, claims title is invalid as a conveyance of and fails to convey the fee simple title to any of the real estate therein described.
"4. The court concludes as a matter of law that the respective tax deeds under which cross-complainant, Gary Land Company, is claiming title to and rights in the real estate here in controversy were and are of sufficient validity to transfer to the purchaser the lien of the state for taxes and charges for which such sales were made and to vest in the holder of said tax deeds the lien of all taxes including amounts paid at the respective tax sales and taxes thereafter paid and redemptions thereafter made under said deeds.
"5. The court concludes as a matter of law that cross-complainant, Gary Land Company, is the owner and holder of said tax lien rights which are a valid subsisting lien upon the real estate here in controversy in *Page 657
the aggregate sum of $59,053.23 upon the date of signing and filing the special finding of facts herein, to-wit: September 13, 1930, and the costs of this action.
"6. The court concludes as a matter of law that all or any or more of said owners so named in the first conclusion of law herein shall be given the right to pay off and discharge said lien by paying in at the Clerk's Office of this court the amount of said lien with six per cent per annum interest on said sum from September 13, 1930, to the date of payment, at any time within one hundred and twenty days from the date of judgment herein for the cross-complainant, Gary Land Company.
"7. The court concludes as a matter of law that in default of payment of said lien within the time, of and as provided in the sixth conclusion of law that the equity and right of redemption of all cross-defendants to the amended cross-complaint of Gary Land Company and all persons claiming under them, shall be foreclosed and said real estate, here in controversy, ordered sold as provided by law to make the amount of said claims.
"8. The court concludes as a matter of law that cross-complainant, William P. Patterson, is the owner in fee simple of the real estate described in the first paragraph of his cross-complaint, filed herein on September 12, 1929, and that his title be quieted as against the cross-defendant Gary Land Company, but subject to its rights under its tax liens as heretofore set out."
The appellee Gary Land Company excepted to each conclusion of law separately and severally. The appellants William P. Patterson and Everett G. Ballard excepted to the first, fourth, fifth, sixth, seventh, and eighth conclusions of law separately and severally. The appellants Lemuel Darrow, Earl Rowley and Clarence V. Shields, and the appellees Daniel E. Kelly, Henry Warrum and Bertha A. Manlove excepted to the first, *Page 658
fourth, fifth, sixth, and seventh conclusions of law separately and severally.
The appellants Lemuel Darrow, Earl Rowley, Clarence V. Shields, Edward E. Carr, Fred William Carr, Henry R. Carr, Everett G. Ballard, and William P. Patterson filed a motion for a 3. venire de novo. This motion was overruled. Judgment was entered in accordance with the conclusions of law. From this judgment, William P. Patterson, Clarence V. Shields, Earl Rowley, Lemuel Darrow, Everett G. Ballard, Edward F. Carr, Fred William Carr, and Henry R. Carr appeal to this court, assigning as error for reversal, that the court erred in its first, fourth, fifth, sixth, seventh, and eighth conclusions of law and in overruling their motion for a venire de novo. The appellants Edward F. Carr, Fred William Carr, and Henry R. Carr did not except to any of the conclusions of law, so that so far as any errors for reversal are predicated upon the conclusions of law, they have no standing in this court.
The appellants have waived any error predicated upon the overruling of their motion for a venire de novo because of their failure to set it out as one of the errors relied 4. upon for reversal, or to discuss it under propositions, points and authorities in their brief. The appellee Gary Land Company has filed cross-errors, assigning as cause for reversal that the court erred in each of its conclusions of law from number one to number eight, inclusive.
The appellants who properly excepted to the conclusions of law contend that the judgment should be reversed: First, because the taxing officers in each and every instance sold an undivided half interest to pay taxes on land assessed as a whole, except in one instance when undivided half interests were assessed separately to different persons, without authority of law, that a *Page 659
deed issued for an undivided half interest in land is void and does not carry with it a lien to the purchaser for the amount of the tax and penalties paid, and for taxes thereafter paid, they being voluntarily paid inasmuch as the deeds were void. Second, because the court erred in declaring a lien on lands of appellants located in the east part of the 88.76 acre tract of land for taxes on land sold in the west end thereof, and in charging up taxes levied and assessed against separate tracts in the west end of the 88.76 acres, while appellant's lands were neither sold or taxes levied against them, they being in the east end of the tract, assuming that the sales were sufficient to convey the liens; that the statute of limitations had not run, and that subsequent payments of taxes were not voluntary. Third, because the description of lands assessed and sold as shown by the special finding, are so indefinite and imperfect, it is impossible to locate any lands whatever, and there is no finding of fact or extrinsic evidence identifying the lands. Fourth, because the purchaser at tax sales of portions of the whole tract did not take out tax deeds within four years after certificates of sale were issued so the statute of limitations has run against the liens of such sales, and payments of taxes made thereafter on the tracts purchased were voluntary payments creating no lien. Fifth, because the court erred in declaring a lien on the entire tract of land for amounts of tax sales had on undivided interests in portions of the entire tract less than the whole, and for taxes subsequently paid with interest and penalties, assuming that the sales were sufficient to transfer liens which were barred by the statute of limitations, that the subsequent payment of taxes were not voluntarily paid and the lands on which they could be paid were identified.
In its brief in support of its assignment of cross-errors, the appellee Gary Land Company says: that it *Page 660
assigns cross-errors, not for the purpose of reversing the judgment, but for the purpose of having the judgment affirmed, upon the theory that some erroneous rulings in appellant's favor nullify the effect of the errors of which they complain. The premise for this contention is, that there are no facts found sufficient to sustain the ultimate fact, that the appellants had any right, title or interest in the land in controversy, that they, as disclosed by the special finding of facts, were mere intruders and trespassers upon the land and therefore had no standing as defendants to its cross-complaint, to assail the prima facie title vested in it by the various tax deeds.
The exceptions to the conclusions of law admitted for the purpose of the exceptions only, that the facts upon which the conclusions were based had been fully and correctly 5-7. found, limited, however, to the facts found within the issues formed by the pleadings. The appellants did not question the truth of the facts contained in the special finding by filing a motion for a new trial. 2 Watson's Works Practice, sec. 1609, and authorities there cited. It is also the law sustained by a long and unbroken line of authorities that the special finding of facts must contain all the fects necessary to entitle the party to a recovery, in whose favor the conclusions of law are found. And on appeal all facts not embraced within the special finding will be deemed as not proven by the party having the burden of the issue, and the failure to find a fact essential to recovery will be regarded as a finding against the party having the burden of proving the same. Watson's Works Practice, sec. 1594.
The parties to this appeal agree that the tax deeds executed and delivered to Frank B. Pattee by the auditor of Lake County were not sufficient to vest in him the fee simple title to the tracts of land which he had *Page 661
purchased at the several tax sales. The questions then which require consideration are: (1) Were the tax deeds and the steps preceding their execution sufficient to transfer to the purchaser at the tax sales the lien of the state on the tract or tracts of land against which the taxes were assessed? (2) If the liens were transferred, did the trial court err in holding that they attached to the entire 88.76 acres of land and foreclosing such liens against the same? (3) Had the statute of limitations run, thereby precluding the right of foreclosure on behalf of the Gary Land Company? We will consider these questions together.
All of the proceedings leading up to and including the tax sales and the deeds executed thereafter were had under the tax law of 1891, Acts 1891, p. 199, and amendments thereto, adopted previous to 1919, so that law and its amendments control in the determination of this case. Many of the provisions of the tax law of 1891, supra, or their substance composed a part of the tax law of this state, prior to the passage of that act, and much of the tax law as it existed before the passage of the act of 1919, Acts 1919, p. 198, was included in that act. The various provisions of our tax law, as they have existed for many years, without substantial change, have frequently been construed by our courts.
In the case of State ex rel. MacKenzie v. Casteel (1887),110 Ind. 174, 11 N.E. 219, our Supreme Court in a very exhaustive and learned opinion set forth the rule followed by the courts in construing statutes in this language (p. 183): "The cardinal rule in the construction of statutes is to discover and give effect to the intention of the Legislature. The construction adopted will give effect to the intention of the law-making power, and will not subordinate it to an isolated clause. It will give effect to the leading and controlling purpose of the statute, rather than bend to particular sentences or clauses, *Page 662
and this, as all the authorities agree, is the great object of judicial interpretation." This case also contains a discussion and explanation of the purpose and policy of the tax laws of this state, which has been adhered to ever since its pronouncement.
The necessity of setting out all the various sections of the statutes or their substance, which may have some potency in a solution of the questions confronting us in the instant case does not exist. In the case of Travelers Insurance Co. v. Martin
(1891), 131 Ind. 155, 158, 30 N.E. 1071, the court said: "The sections of the statute relating to and governing the question presented in this case are so fully set out, discussed and construed in the decisions which we have cited, that no good purpose can be subserved by again setting them out, and adding additional views in support of the construction placed upon them. We regard the decisions as harmonious and have no disposition to depart from the construction placed upon the statute in such decisions, and we are only called upon in this case to apply the principles laid down in the decisions cited."
In this same case, the court, in commenting upon the aim and purpose of our statutes relating to the levying and collection of taxes and duties resting upon land owners in relation thereto, said (p. 158): "It was the intention of the law in relation to the assessment and collection of taxes, that there should be an incentive on the part of property owners to pay their taxes, and upon a failure so to do, that a penalty should attach which they would be compelled to pay, and there has been a growing tendency to fix with more certainty the lien upon the property, and to remove all technicalities by which the property-owner might defeat a recovery for the taxes and penalties assessable against his property as its proportion of the revenue necessary to carry on the affairs of the government. With this view the *Page 663
statute was enacted providing, that, if the purchaser failed, for any cause, in his right to recover in an action to quiet his title, he should in the same action, without liability for costs or amendment of pleadings, or an adjustment of the issues, recover a judgment for the amount of the taxes paid by him, together with penalties, and have a lien declared and foreclosed. Every land-owner knows that he is liable for taxes upon his land, and that it should be assessed and entered upon the books of the auditor and treasurer of the county. It is his duty to look after the assessment of his property and see if the assessment is regular, and his land properly entered upon the books and pay the lawful taxes when due, instead of seeking some method by which he can, by reason of a technically defective description, avoid the payment of his just portion of the expense of a government in which he is equally interested with others. The rule established and fixed by the many decisions of this court that the lien will hold if the purchaser can show what property was intended to be taxed is but a salutary and just one."
While the appellants vigorously contend that the taxing officers of Lake County had no authority to levy taxes against or sell an undivided half interest in the land in question, 8. for the satisfaction of delinquent taxes, and that therefore the sales were void, and that the lien of the state was not transferred to the purchaser at the tax sale, in the argument accompanying their brief, counsel for appellants say, they are frank to admit that they have found no Indiana case directly in point. This court, after a thorough and exhaustive search of our decisions, has not discovered that facts similar to those here involved have heretofore been considered by our courts of last resort. We must therefore look to the tax laws of our state in force at the time the transactions in question occurred as construed *Page 664
by our courts and to the authorities of other states (which we recognize are influenced by local statutes) for assistance. When we do that the inevitable conclusion is reached, that the assessment and sale of the land in the manner adopted by the taxing officers, though it may have been irregular, and did not convey the fee simple title of the land to the purchaser, was not void, and that, therefore, a lien for the taxes paid passed to the purchaser when the tax deeds were executed. Sec. 10170, 10187-8, 10272, 10319, 10343-4, 10346-7, 10359-60, 10364, 10366, 10368-75, 10379-80, 10387-8, 10390, 10392-5, Burns 1914.
The principles of law announced in Travelers' Insurance Co.
v. Martin, supra, heretofore quoted, apply with much force to the facts in this case.
In the case of Noble v. City of Indianapolis (1861),16 Ind. 506, where land was assessed in the name of "Noah Noble's Heirs," the court quoted with approval from Robinson v. Garr
(1857), 6 Cal. 273, as follows (p. 510): "The plaintiffs are the best judges of their own title, and must determine, at their own risk, whether it is worth paying taxes on, or not; that they cannot assert the ownership of the land, and deny the legal consequences of such right, applies with peculiar force to this case. The appellants are either the owners of the land, or they are not. If they are the owners, they must pay taxes, and cannot complain; and if they are not the owners, they have no interest in the matter, and cannot complain. In either case, therefore, they have no right to complain." And this was a suit instituted by "Noble's Heirs" to enjoin a sale for taxes, on the ground, alone, that the assessment to "Noble's Heirs" was void. The injunction was denied. For other cases in harmony with this opinion, see Sloan v. Sewell (1881), 81 Ind. 180; Morrison
v. Jacoby (1888), 114 Ind. 84, 14 N.E. 546; Jones v. Foley
(1889), 121 Ind. 180, 22 N.E. 987. *Page 665
The case of Jenkins v. Rice (1882), 84 Ind. 342, was an action to quiet title to real estate under a tax title, or in case the tax sale was found to be irregular, to enforce the lien allowed by the statute. The lien was foreclosed. It was alleged in the complaint that the land "had been duly assessed and properly charged on the tax duplicate in the name of Jenkins' heirs, with taxes for the year 1873 and former years, amounting," etc. Contention was made that the complaint was not sufficient because it failed to show, quoting (p. 344): ". . . `whether the land was owned by the defendants as tenants in common, or as joint tenants: nor what was the interest of each'; and, assuming that the defendants must be regarded as equal owners as tenants in common, counsel insist that the undivided share of each was liable only for its own proportion of the tax, and no more, that, under the assessment law, each person's land must be separately taxed; and that, to make the complaint good, it should be shown that defendants received the title by descent, devise or by deed from one possessed of the entire title, and that the delinquent taxes of 1873 and prior years, for which the sale was made, originated from one common source against the entire tract." After quoting sec. 6321, Statutes 1881, which was sec. 10187,supra, which provides for the method of listing undivided real estate, the court said (p. 345): "While there seems to be and to have been no specific provision, to the same effect, in reference to lands held by tenants in common, whose title was derived otherwise than by descent or devise, where the proper transfers of record had not been made, yet there is a practical necessity for application substantially of the same rule; and the various provisions of the tax law, considered together, shows that such was the legislative intention. . . .
"Consistently with all these provisions, in cases where *Page 666
the proper transfers have not been made, it would be impracticable to administer the law and to enforce the payment of taxes upon the rule contended for by counsel; and even if the proper transfers have been made, and yet, through the neglect or mistake of the officers, parcels of property are assessed and taxed in the wrong name, as entireties, in disregard of theseparate rights of tenants in common, or of the respectiveowners, of whatever character of interest or ownership, therights of the public are not diminished; and the purchaser, ifthe tax sale be invalid, is subrogated to the lien of the State,which he may enforce by obtaining a decree of foreclosure." (Our italics.)
In Eads v. Rutherford (1888), 114 Ind. 273, 16 N.E. 587, the land was entered on the tax ruplicate for taxation in the name of "Burkett Ead's heirs"; the court, in reversing the case and holding that the appellant was entitled to foreclose his lien, said (p. 273): "The taxes were not invalidated by the method in which the owner's name was entered on the duplicate. An error in listing the taxes does not destroy the lien or relieve the owner from paying them. Persons who own land are chargeable with knowledge that it is liable to taxation; and if they neglect to pay what they know it is their duty to pay, they cannot escape liability on the ground of some error or inaccuracy in naming the owners; at all events, not upon such an inaccuracy as that shown by the complaint.
"It may, perhaps, be true that, under our statute, the appellant might have elected to pay the taxes on his undivided half of the land, but he was not bound to pursue this course. He had a right to pay all the taxes and prevent a sale of any part of the land. Taking all the sections of the statute together, the reasonable construction is, that one to whom land descends jointly with other heirs may either pay the taxes due on his *Page 667
undivided interest in the land or he may pay all the taxes and enforce contribution. Either this construction must be adopted, or many clear provisions of the statute be overthrown."
The following cases from other jurisdictions, in construing their tax laws, hold that an undivided interest in a tract of land can be assessed and sold for taxes. Halbouer v. Cuenin
(1909), 45 Colo. 507, 101 P. 763; Jenswald v. Doran (1889), 77 Ia. 692, 42 N.W. 465; Payne v. Danley (1857), 18 Ark. 441;Sheafe v. Wait (1858), 30 Vt. 735; Ronkendorff v. Taylor
(1830), 29 U.S. 348, 7 L. Ed. 882. In support of their contention, appellants have cited and relied upon Corbin v. Inslee
(1880), 24 Kan. 154, decided by a divided court; Curtiss v.Sheffield (1913), 213 Mass. 239, 100 N.E. 365; and Toothman
v. Courtney (1907), 62 W. Va. 167, 58 S.E. 915. In no one of these cases did the court hold that the lien for taxes did not attach to the land or was lost to the purchaser at a tax sale. In the Toothman case, supra, a decree was entered by the lower court, setting aside a tax deed and conveying an undivided interest in land. Upon appeal, the court held (p. 185), that while such a deed was irregular and could be set aside, that the plaintiff's bill was fatally defective, for, "it does not tender the tax sale purchase money and taxes subsequently paid, in obedience to the statutory requirement in such case, nor does it aver the plaintiff's readiness and willingness to reimburse the purchaser, nor does the decree in any way secure to the defendant his right of reimbursement. For this reason, the decree will have to be reversed and the cause remanded with leave to the plaintiff to amend his bill in this respect. (Citing authorities.) The court below, deeming the assessment, sale and deed fraudulent and void, held reimbursement not necessary. We do not concur in this view. It was an *Page 668
irregular and defective assessment and sale, not cured by the statute."
It was the evident intent of the legislature not to permit the evasion and non-payment of taxes, because of the matter of form in the proceedings, not affecting the merits of the case, 9. for by sec. 10395, supra, it is declared in part as follows: "No general or specific tax authorized by the laws of this state, and which shall be assessed on any property in any township, city or town within this state by any officer authorized to make assessments or which if made by another person or may be adopted by such officer as his act shall be held to be illegal or invalid for want of any matter of form in any proceedings not affecting the merits of the case, and which shall not prejudice the rights of the party assessed. And all taxes assessed upon any property in this state shall be presumed to be legally assessed until the contrary is affirmatively shown."
By the provisions of sec. 10380, supra, which is sec. 14327, Burns 1926, § 64-2404, Burns 1933, a tax deed is prima facie evidence of the regularity of the sale of the premises 10. described in the deed, and of the regularity of all prior proceedings, and prima facie evidence of a good and valid title in fee simple in the grantee in said deed, and, if the description of the land in a tax deed is too indefinite to convey title, the purchaser is entitled to a lien upon the land for the taxes paid, interest and penalty legally due thereon at time of sale with interest, together with all subsequent taxes paid with interest. Sec. 10388, supra, which is sec. 14335, Burns 1926, § 64-2412, Burns 1933; Reed v. Earhart (1882), 88 Ind. 159;Locke v. Catlett et al. (1884), 96 Ind. 291; Peckham v.Millikan (1885), 99 Ind. 352; Scott v. Millikan (1885),104 Ind. 75, 3 N.E. 647; Armstrong v. Hufty (1901), 156 Ind. 606, 55 N.E. 443, *Page 669
60 N.E. 1080; Green v. McGrew (1904), 35 Ind. App. 104, 72 N.E. 1049, 73 N.E. 832; Sansberry v. Cornelius (1924),82 Ind. App. 156, 145 N.E. 521; Demoney v. Board, etc. (1929),91 Ind. App. 365, 169 N.E. 67; Sloan v. Sewell, supra; State exrel. MacKenzie v. Casteel, supra.
The appellants argue with much force that the court erred in foreclosing all the tax liens against the entire tract of land. An application of the law to the facts as found by the 11. court does not sustain them in this contention. Sec. 10344, supra, provides: "All the property, both real and personal, situated in any county, shall be liable for the payment of all taxes, penalties, interest and costs charged to the owner thereof in such county, and no partial payment of any such taxes, penalties, interest or costs shall discharge or release any part or portion of such property until the whole is paid; which lien shall in nowise be affected or destroyed by any sale or transfer of any such personal property, and shall attach on the first day of March, annually, for the taxes of such year." Gable v.Seiben (1894), 137 Ind. 155, 36 N.E. 844.
Our Supreme Court, in construing this section of the tax law in the case of Beard v. Allen (1894), 141 Ind. 243, 248, 39 N.E. 665, 40 N.E. 654, said: "It appears from the provision of the tax law cited that this lien is made perpetual for all taxes due from the owner, and that all property owned by the tax debtor, both real and personal, situated in any county, is made liable for the payment of all taxes charged to him or her. As said by this court in Justice v. City of Logansport, 101 Ind. 326: `It would have been difficult, if not impossible, for (the law makers) to have employed stronger words.' The liability thus incurred ceases only with payment."
In the case of Jenkins v. Rice, supra, complaint similar to that of appellants was interposed to the foreclosure *Page 670
of a tax lien. The Supreme Court disposed of it in the following language (p. 345): "In the proceeding to foreclose in such case, the most which would seem permissible to the defendants would be to show by answer their separate respective interests, and so procure an apportionment of the liability. In the absence of proper transfers, the state, by its officers, is not bound or able to know the rights of such owners. (Citing authority.) And the purchaser at the sale, seeking to enforce a lien only, and not claiming a valid title under his purchase, can reasonably be required to do no more than recognize such rights, when pleaded and proved by those who assert them. The lien of the state, and consequently the purchaser's subrogation do not depend upon the assessment being made in the name of the owner." The appellants did not discharge this burden.
In Peckham v. Millikan, supra, appellant sought to set aside a sale of his land for taxes and to quiet his title thereto. The appellant had not paid or offered to pay the taxes. In passing upon the sufficiency of the second paragraph of complaint to state a cause of action, the court said (p. 355): "This paragraph was, as it seems to us, radically defective, because it fails to show that these taxes were paid or tender of payment made before suit brought, or that these taxes were not a lien upon the land.
"This is an application to a court of equity to remove a cloud from the appellant's title, and it is well settled that so long as any of the taxes legally due remain unpaid, such court will not aid a party unless he offers to pay the taxes due."
In the case under consideration, the appellants are seeking to invoke the converse of this rule, that is, they, as defendants to the cross-complaint of the Gary Land Company, want the court to declare the lien for taxes void or hold that the lien was not transferred to the *Page 671
purchaser at the tax sale, thus clearing the land from the effect of the lien, and giving to them equitable relief, without in any way doing or offering to do equity themselves.
The taxes became a lien upon the land on the first day of March each year. Sec. 10343, supra. From this provision of the statute and other provisions heretofore cited, this tax lien is made perpetual for all taxes due from the owners of the land, all property owned by the tax debtors, both real and personal, situated in any county, is made liable for the taxes charged to him or her. The only way to escape this liability is by payment of the tax. Beard v. Allen, supra. The appellants have not discharged the duties imposed upon them by the rules of equity which must be recognized in this case.
The appellants cannot avail themselves of the four year statute of limitations. The court found that in each instance Frank B. Pattee surrendered the certificate of sale issued to him 12. within less than four years from the date of its issuance and caused a tax deed to be executed and placed on record in Lake County, as required by the law. This was sufficient to transfer the lien for taxes to the grantee in the deed. See authorities heretofore cited.
During the entire period of fifty-four years, from 1876 to the date of the trial of this cause, neither Drusilla Carr nor any of the cross-defendants to the cross-complaint of the Gary 13, 14. Land Company, nor any one on behalf of any of them, ever paid, redeemed or tendered any of the taxes upon the tract of land, or any part thereof, except the amounts paid by the appellees Kelly and Manlove, who, so far as the record shows, are content with the judgment of the lower court. No legal impediment ever prevented Drusilla Carr or the other cross-defendants from paying the taxes. They began to go delinquent in 1910 and continuously *Page 672
thereafter, and from that time, continuously to the date of the trial of this cause, all the taxes assessed against the land were paid and discharged by Frank B. Pattee or the Gary Land Company. During all these years, the land never appeared upon the tax records, nor was it assessed in the name of Drusilla Carr nor any of her immediate or remote grantees. No effort was ever made by any of them to have the tax records corrected if they were wrong. Appellants were charged with knowledge of all these facts. They do not assert that the land was not subject to taxation, that the taxes were wrongfully assessed or that they had ever paid or offered to pay them. If the appellants were the owners of the land, it was just and right that they should pay the taxes assessed against it. The land was sold for delinquent taxes, it was shown by the purchaser, and the court found what land was intended to be taxed, definitely describing the same, and that it was not redeemed. There is no reason disclosed by the finding of facts why the lien should not attach and be foreclosed, in fact quite the contrary appears. The appellants, without discharging any of the burdens which the law imposes upon them, are endeavoring to evade the payment of the taxes by invoking technicalities which the law does not recognize nor the courts encourage.
Finding no error, the judgment is affirmed.
Curtis, J., not participating.
1 Appellees' contention was that the praecipe for the "Order book entry of April 21, 1930, before Hon. Albert B. Chipman, Special Judge," was insufficient to include the amended supplemental cross-complaint, although it was filed on that date. — REPORTER. *Page 673 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4083146/ | SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
771
CAF 13-00652
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.
IN THE MATTER OF TIMOTHY SEIFERT,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
NATALIE PASTWICK, RESPONDENT-APPELLANT.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR RESPONDENT-APPELLANT.
JON STERN, ROCHESTER, FOR PETITIONER-RESPONDENT.
MARY ANNE CONNELL, ATTORNEY FOR THE CHILD, BUFFALO.
Appeal from an order of the Family Court, Erie County (Kevin M.
Carter, J.), entered April 1, 2013 in a proceeding pursuant to Family
Court Act article 6. The order, among other things, awarded
petitioner sole custody of the subject child.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Erie County, for a new hearing in accordance
with the following Memorandum: In this proceeding pursuant to Family
Court Act article 6, respondent mother appeals from an order that,
among other things, awarded petitioner father sole custody of the
parties’ child. We agree with the mother that she was denied her
right to counsel. The mother was entitled to representation based
upon her status as a respondent in a Family Court Act article 6
proceeding and a person alleged to be in willful violation of a court
order, and Family Court’s inquiry concerning her decision to proceed
pro se was insufficient to enable the court to determine whether she
knowingly, intelligently and voluntarily waived her right to counsel
(see § 262 [a]; Matter of Hassig v Hassig, 34 AD3d 1089, 1091; see
also Matter of Storelli v Storelli, 101 AD3d 1787, 1788). We
therefore reverse the order and remit the matter to Family Court for a
new hearing (see Storelli, 101 AD3d at 1788). In light of our
determination, we do not reach the mother’s remaining contentions.
Entered: June 20, 2014 Frances E. Cafarell
Clerk of the Court | 01-03-2023 | 10-07-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426811/ | Appellants were the owners of certain real estate in South Bend, Indiana, located at 125 South Michigan Street in said city, upon which real estate was located a store building. The appellee, Mayerfield, was the owner of an unexpired leasehold under a written lease for a term of 25 years, which lease had been previously assigned to him by an original lessee.
The lease provided that in case the premises should be rendered unfit for occupancy, by reason of fire or other casualty, the appellant would at once, or as soon thereafter as the same could be done, rebuild or repair such portion of said building at appellant's expense and that the rent on said premises should be rebated during such period as the said premises might be so unfit for occupancy.
On April 20, 1920, the appellee, Mayerfield, sublet said premises by instrument in writing to the appellee, Paul C. Kuehn, for a term of years from August 1, 1921, until December 30, 1930. The original lease was executed in 1905, at which time there was no building code ordinance in the city of South Bend. In the year 1922, the Common Council of said city enacted an ordinance known as the "Building Code" which zoned the city into fireproof limits, and regulated the type and kind of buildings therein. The ordinance requires a permit to be obtained from the building commissioner before erecting, constructing, or repairing any buildings and prohibits the repairing of any existing buildings damaged more than 60% by fire and other causes, within the fire limits. The building in question was in the fireproof limits as defined by the ordinance, and was not of fireproof construction. *Page 603
On the first day of February, 1926, the building was damaged by fire. The result of the fire culminated in this action. The appellee, Adolph R. Mayerfield, filed a complaint against the appellants to recover damages for breach of the lease and eviction.
The complaint is in the usual form. The lease is set out in full and contains the covenant to rebuild or repair as above set out. It alleges that on March 27th, 1926, appellants proceeded to tear down the said building on said premises leased to this plaintiff, and to render the same untenantable and to eject and oust this plaintiff from said premises and the subtenants of this plaintiff and to oust this plaintiff and his subtenants from their and each of their rights and interests in and to said premises, as tenants, and following up their said design of destroying said building by total destruction and demolition thereof, and erected in the place and stead of said building a new three story and basement store building wholly without right and over the protests of this plaintiff. That appellants have rented said real estate to another and third party, thereby completely ousting this plaintiff from the possession of said premises and destroying his right to the possession and his interests therein. Wherefore plaintiff demands judgment against said defendants in the sum of $40,000.
Appellee, Paul C. Kuehn, intervened and filed a cross-complaint in which he alleges that he was in possession of the premises in question under a sublease from appellee, Mayerfield; that the said Poledors have, since the first day of February, 1926, failed and refused to carry out the terms of said lease and sublease in this that they failed and refused to repair and rebuild the buildings on said premises after a fire which occurred on the 1st day of February, 1926, and which fire partially destroyed the buildings occupied by cross-complainant in his business and in which the same was conducted *Page 604
at said premises; that they razed and removed all the buildings from said premises after said fire and thereafter built a new structure which has been finished and suitable for occupancy since the __ day of ____, 1926, but that on the 26th day of March, 1926, and at all times since said date, they have entered upon said premises and unlawfully detained the possession thereof from this cross-complainant to his damage in the sum of $26,000, for which the said Kuehn demanded judgment.
The appellants filed separate answers in general denial to the complaint and the cross-complaint, and also severally filed a second paragraph of answer to the same wherein it is alleged in substance that on March 27th, 1922, the common council of the city of South Bend, duly and legally enacted an ordinance, being ordinance No. 2243, known and designated as the Building Code of the city of South Bend, Indiana, which ordinance regulated and regulates all matters concerning or pertaining to the construction, alteration, repair or additions to, remodeling, use or occupancy of buildings or their parts, and structures of every nature in the city of South Bend, Indiana, providing for the condemnation and stoppage of the use thereof, and regulating the same, creating the offices of Building Commissioner, Assistant Building Commissioner, City Electrician and providing for the office of Building Department, repealing all former ordinances conflicting therewith.
That Section 23 of said code provided among other things: "Before proceeding with the erection, construction, remodeling, alteration, repair and removal of any building or other structure, or the heating apparatus, electrical wiring, elevators, signs or bill boards, a permit therefor shall be obtained by the owners, lessee or person having the contract to do the same, from the Building Commissioner. The application for permit *Page 605
shall be made in writing upon the printed forms furnished by the Department, shall be issued in the name of the owner or lessee and the contractor, if any, and it shall not be transferable." Section 867 provides: "Any person, firm or corporation or agent or employe who shall violate any provision of this code shall be subject, upon conviction thereof, to a fine of not to exceed $100 for such offense, and upon failure to pay, may be imprisoned until such fine and costs are paid, not exceeding thirty days. The continued violation of any provision shall constitute a separate offense for each and every day such violation of any provision hereof may continue."
The appellants filed their written application in the building department with the building commissioner of the city of South Bend for permission to repair and rebuild said building, said written application being filed pursuant to and in conformity with said building code, a copy of which is set out in the complaint.
That on March 25, 1926, Dalton Moomaw, building commissioner of the city of South Bend, and the city of South Bend refused to grant or issue to appellants or anyone else a permit to rebuild, repair or restore said building, and refused to allow appellants or anyone else to rebuild, repair or restore said building in any manner whatsoever. To this second paragraph of answer the appellees each filed separate replies in general denial. The case was then tried upon the issues thus formed.
The uncontradicted evidence shows that soon after the fire, appellee, Mayerfield, gave his check to appellants for the February rent, which check appellants returned and notified said Mayerfield that the damages to the building had not as yet been ascertained and that the appellants might not be able to repair and restore said building within the terms of the building code. On *Page 606
the 5th day of February, 1926, appellants filed their written application with the building commissioners of the city of South Bend in conformity with said building code for permission to repair and restore said building. Thereupon the building commissioner took the matter under advisement and called for certain data before ruling upon the same, which was furnished by the appellants and on the 25th of March, 1926, the building commissioner of South Bend notified the appellants in writing that a permit to repair and restore said building was refused under the provisions of the building code of South Bend. The evidence as to the terms of the lease and the building code ordinance is not in dispute and is in substance as alleged in the pleadings.
There was no appeal from the decision of the building commissioner.
On Saturday, March 27, 1926, in the forenoon, appellants began tearing down said building and on said day removed the roof; thereupon on said day and after said roof had been removed, appellee, Mayerfield, filed his complaint for injunction to prevent appellants from tearing down said building and thereupon appellee, Paul C. Kuehn, intervened in said injunction suit and filed his cross-complaint praying for an injunction. After the filing of said suit for injunction, nothing further was done in the way of tearing down and removing said building for a period of six weeks. No bond for temporary restraining order having been filed, appellants after said period of six weeks, removed said building, and erected a new, modern building on said premises of fireproof construction, as required by the building code, of different design and construction, and leased said premises to other parties. The action for injunction was dismissed.
Thereafter appellee, Adolph R. Mayerfield, brought this action for damages for breach of lease and eviction *Page 607
and said appellee, Paul C. Kuehn, intervened in said action and filed his cross-complaint asking for damages against appellants for eviction. There was a trial, finding and judgment for appellees.
The appellants filed a motion for a new trial on the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law, which motion was by the court overruled, and which ruling of the court is assigned as error in this appeal.
The appellants contend that it was impossible for the appellants to rebuild without the permission of the building commissioner, and, whereas: the building commissioner refused to permit the rebuilding of the building, the appellants were thereby excused from further compliance with the terms of the lease as to rebuilding.
It appears that soon after the fire occurred, the appellants and appellees employed legal counsel, and we find that the parties followed the advice of their respective attorneys in their dealings with each other.
When the appellee, Mayerfield, sent appellants a check for the rent for February, 1926, the appellants returned the same with a letter that stated: "The extent to which the building has been destroyed by fire cannot be ascertained at this time. It may develop that we will be unable to rebuild or repair this building under the laws and ordinances governing the rebuilding of buildings on this location. If it should develop that we could not rebuild this building as it was, this would work a cancellation of the lease, and we can only determine this in connection with the proper authorities and expert advice as to the extent of the destruction. As soon as we are able to determine the true state of affairs, we shall confer with you as to what can be done."
In answer to the above letter appellee, Mayerfield, writes to appellants Poledors, that under the lease, "It *Page 608
is your duty to proceed at once or as soon as can be reasonably done to rebuild this building or make such repairs as are necessitated by reason of the fire; and I now and hereby notify you to proceed with all reasonable diligence with such rebuilding or repairs as the case may be and I shall hold you responsible for any loss which may accrue to me by reason of your failure to comply with the foregoing provisions of the lease."
On February 13, 1926, the appellee, Kuehn, was given copies of all the correspondence between Poledors and Mayerfield, and Kuehn writes a letter to Mayerfield and Poledors in which he says, "I hereby demand of Adolph R. Mayerfield and Messrs. Poledor Brothers to immediately repair or rebuild the building covered by said lease, for my use and occupancy, in order to conduct my business of retailing shoes, shoe findings and hosiery."
Appellee Mayerfield testified that he did not know Poledors were having difficulty in getting a permit, but Mr. Poledor and he met on the street and Poledor said, "Well, what am I going to do, the city won't give me a permit?"
The appellee, Kuehn, testified that he read the letter from Poledors to Mayerfield, but that he was not interested in the building codes of South Bend. His words are, "If Mr. Hammerschmidt (my attorney) mentioned to me the possibility of the city refusing any permit, I was not interested. I thought my lease covered that."
Neither in the pleadings nor in the testimony of Mayerfield or Kuehn is the legality or regularity of the action of the building commissioner questioned. They rely solely upon the terms of the lease in reference to repairing and rebuilding and are demanding a compliance with the terms of the lease, notwithstanding the refusal of the building commissioner to grant the permit. We, therefore, have a condition of facts, where the appellees were demanding that the appellants go *Page 609
upon the premises and repair or rebuild notwithstanding any ordinance to the contrary.
On the other hand, the appellants contend that the lease is at an end because of the ordinance and therefore the appellees cannot complain because of appellant's reentering and rebuilding according to and in compliance with the ordinance.
As early as 1811, we find the law stated in the case ofBayless v. Pettyplace, 7 Mass. 325, as follows: "No principle of law is better known and established than that where 1, 2. one makes a contract to do a possible and lawful act at a future time and before that time, it becomes impossible by the act of God, or the law, the obligation is saved." This case arose out of a contract to deliver sugar. An embargo prevented the fulfillment of the contract and compliance therewith was thereby excused.
The case of Monica Borough v. Monica Street Railway Co.,
247 Penn. 242, 247, states, "The law never exacts the performance of a contract where the performance would involve violation of law." The case arose out of a contract where a railway company was excused from the performance of the conditions of a bond to build a railroad by a certain date by reason of the fact that all the boroughs through which it was chartered to build its line had not consented to the construction of the road.
The law in New York is as follows: "The rule is well established that where performance is rendered impossible by an act of the law, non-performance is excused." Kingsley v. Cityof Brooklyn, 78 N.Y. 200; Shellington v. Howland, 53 N.Y. 371; Heine v. Meyer, 61 N.Y. 171; Niblow v. Brinsee, 1 Keys 478; Hanover Bldg. Co. v. Jacobs, 138 N.Y. Supp. 369.
In the case of Heine v. Meyer, supra, work was commenced *Page 610
on an old wall under a contract to rebuild the same when it was discovered the wall curved and was out of plumb and the superintendent of buildings in consequence thereof ordered the discontinuance of the work; held, that the contract was discharged from performance and the contractor was entitled to collect at the contract price for the work done, citing Jones
v. Judd, 4 N.Y. 412; People v. Bartlett, 3 Hill 570;Mounsey v. Drake, 10 N.Y. 27.
In the case of School District No. 16 v. Howard,5 Neb. 340, 98 N.W. 666, the Board of Health closed the school and it was held that the contract with the school teacher was thereby discharged.
It was held in the case of Cordez v. Miller, 39 Mich. 581, that a covenant in the lease of a wooden building, binding the landlord to rebuild in the case it was burned, was released by the passage of a municipal ordinance prohibiting the erection of wooden buildings. The opinion is by Cooley, J., who says, "Cordez covenanted to rebuild, if destroyed by fire, the building he leased; but did not covenant that if not allowed to rebuild, that he would put up another on the same plan, of more substantial and presumably more costly material. Had the exact contingency which has since happened been in the minds of the parties at the time, it is scarcely conceivable that the lessor would have consented to put up a brick building in place of the one leased and to receive for it the same rent the wood building brought him, when its probable rental value would be considerably greater and its costs presumably more."
Cases of this kind are similar to cases where a lease provided for the letting of buildings for saloon purposes was terminated by subsequent statutes making the sale of liquor invalid. Uniformly held that it put an end to the lease. Heart v. EastTenn. Brewing Co., 113 S.W. 364. *Page 611
The case of Jameison v. Indiana Natural Gas and Oil Co.
(1891), 128 Ind. 555, 28 N.E. 76, was a case where the company entered into an agreement to transport natural gas to Chicago, and it was impossible to transport it to the point at a pressure which did not exceed 325 pounds to the square inch. The complaint sets out the act of the General Assembly of the State of Indiana of March 4, 1891, which contained a provision which prohibited this company from transporting gas through its pipe lines at more than its natural flow or pressure or more than at a pressure of 300 pounds to the square inch, or from using any artificial device to increase or maintain the flow of the gas. Judge Elliott, speaking for the court, said that the act was the proper exercise of the police power of the State of Indiana, and it follows as a matter of course that the company was excused from fulfilling its contract.
In the case of Burgett v. Loeb (1908), 43 Ind. App. 657, 88 N.E. 346, it is held, where the performance of a contract becomes impossible by a change in the law, the promisor is discharged.
We are of the opinion that the refusal of the building commissioner to grant a permit relieved the appellants from the obligation to rebuild.
It is contended by the appellants in this case that as between the original lessor and the sublessee there is no privity of contract or estate, therefore the sublessee did not 3. acquire, by virtue of the sublease, any rights to any of the covenants or agreements of the lessor contained in the original lease. This point we need not decide, but for reference see Powell v. Jones (1912), 50 Ind. App. 493, 98 N.E. 646; but having decided that it is impossible for the appellants in this case to comply with the covenants in the lease, it follows as a logical result that the original lessee, not being able to confer upon the sublessee any greater *Page 612
rights than he himself possesses, the subtenant's rights are measured by those of the original tenant, and the cancellation of the lease by operation of law as to one cancels as to both.Bruder v. Geisler, 47 Misc. 370, 94 N.Y. Supp. p. 2;Shannon v. Grindstaff, 11 Wash. 536, 40 P. 123; Guschner
v. West Lake (Wash.), 86 P. 948.
Under the issues formed by the appellant's affirmative answers and the replies in general denial filed thereto and the uncontradicted evidence given in support of said answers, the decision of the court is contrary to law. Judgment reversed.
McMahan, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426812/ | PETITION FOR REHEARING.
The appellee in this case earnestly contends that this court erred in the original opinion in matters that we shall again review.
It is certain that the destruction of the building by fire would have put an end to the lease except for the clause covenanting to rebuild, for it has been held in the case ofMetzger v. Conley, 82 Ind. App. 520, in a case where a theater building was almost completely destroyed by fire a short time before a lease therefor was to take effect, the owner was not bound to rebuild and repair the same and put it in condition for use as a theater for the reason that the lease was discharged by the destruction of the building.
So in this case the appellant would not, as a matter of law, have been required to rebuild except for the covenant in the lease requiring him to rebuild.
The ordinance and the refusal of the building commissioner to grant the permit prevented his compliance with the terms of his contract; therefore we were justified in holding that the lease was at an end.
Suppose the appellant had done nothing after the refusal *Page 613
of the building inspector to grant the permit; suppose he had not taken possession and put up the building that he did; Would he have been liable? Certainly not. If he had not been liable in the one case, he is not liable in the other.
In our opinion we cited some cases where leases were terminated by the enactment of laws prohibiting the sale of intoxicating liquors where the premises had been rented for that purpose before the enactment of the prohibition law.
The law in that regard is well stated in the case of Schaub
v. Wright, 79 Ind. App. 56. This case has been cited with approval in other states.
The appellee contends that in the granting of a building permit, the commissioner has no discretion. That it is simply a matter of form. With this contention we cannot agree. To 4. hold otherwise would be to nullify the building ordinances of South Bend, and the laws of the state granting the powers to the city to enact such an ordinance. The ordinance was valid. The complaint in this case is not based upon any grounds showing that the appellees were denied or prevented from receiving all the benefits. The appellant is not charged with collusion or with fraud. The demand is, live up to the contract, ordinance or no ordinance — permit or no permit. Rebuild is the demand and no alternative.
Wood, Landlord and Tenant, Sec. 316. If one covenants to do a thing which is lawful and a statute comes in and hinders him from doing it the covenant is repealed. See also McAdam, on 5. Landlord and Tenant (1910), p. 1329; Beebe v. Johnson,
19 Wend. 500; People v. Bartlett, 3 Hill. 570; Jones
v. Judd, 4 N.Y. 412; Regan v. Fosdeck, 19 Misc. 489;Young v. Leary, 135 N.Y. 569.
Without extending this discussion to an undue length, *Page 614
we desire to cite the following cases: Crowley v. NorthernPac. Ry. Co., 41 L.R.A.N.S. 559, was a case where a carrier contracted to give annual passes in consideration of a grant of land, was held not liable for damages for refusal of further passes before the expiration of the contract period in obedience to a statute making the giving of passes illegal.
In Knoxville v. Bird, 12 Lea. 121, 47 Am. Rep. 326, where it was contended that the passage of an ordinance by a city, forbidding the erection of wooden buildings within fire districts impaired the obligation of a contract existing prior to the passage of such ordinance, between a landowner and a contractor to erect a wooden building, it was held that there was nothing in the objection, and the court quoted from Vol. 2, page 674, Parsons on Contracts, as follows: "If one agrees to do a thing which is lawful for him to do, and it becomes unlawful by an act of the legislature, the act avoids the promise; and so if one agrees not to do that which he may lawfully abstain from doing but a subsequent act requires him to do it, this act also avoids the promise."
And a like result was reached in Binz v. National SupplyCo. (Tex. Civ. App.), 105 S.W. 543, where a contract was made for the construction of an oil plant and an ordinance was subsequently passed prohibiting the completion of the plant.
And where a tenement house is leased "to, to be used and occupied for the purpose of a place of amusement for the exhibition of moving pictures and for no other purposes whatsoever," and the licensing of such shows in tenement houses is subsequently prohibited by an ordinance the lessee is discharged from his obligation to pay rent accruing after the passage of such statute. Adler v. Miles, 69 Misc. 601, 126 N Y Supp. 135.
Petition for rehearing denied. Wood, J., dissents. *Page 615 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426822/ | Harold Dinsmore, by his next friend, recovered judgment in the Marion Superior Court, in the sum of $4,000 for alleged injuries sustained by him on account of the negligence of the appellant. The complaint, in substance, alleges that the appellant is a foreign corporation engaged in operating shows for public entertainment, to which the public and appellee were invited upon the payment of an admission fee; that appellant *Page 618
provided seating capacity and accommodation to all persons entering its show by the erection of bleacher seats in numerous rows, elevated each above the previous, the bleacher seats resting upon devices which sustained the weight of people attending said show; that in September, 1923, the appellant publicly invited the appellee and the general public to witness a performance of its show, which the appellee did, after the payment of an admission fee; that appellee, upon entering said show, took a seat upon said bleachers, with a large number of other persons; that appellee carelessly and negligently permitted the bleachers to be overloaded, in that they were not constructed of sufficient strength and durability to sustain the weight of a large number of people; that by reason of the overloading of the bleachers and the negligent construction thereof, the said bleachers collapsed, thereby severely injuring Dinsmore, in that the bones of his right arm were broken, shattered and bruised and otherwise injured. Answer by general denial.
Evidence tends to prove the following facts: That, in the year 1923, the Indiana Board of Agriculture entered into a contract with Rubin and Cherry Shows, Incorporated, appellant herein, whereby said appellant agreed to present its attraction on the Indiana State Fair Grounds from September 3 to 8. Appellant, by the terms of said contract, agreed to furnish a band, all shows, acts and paid attractions; also poster paper, ticket boxes, ticket sellers, and tickets; also agreed to provide a promoter one week in advance of the show. The Indiana Board of Agriculture agreed to furnish appellant a suitable location for the show upon the State Fair Grounds, all licenses and taxes required by law to operate said shows and concessions, water, electric lights, ticket takers and police protection. Appellant was to pay the Board of Agriculture thirty per cent. of the gross receipts, settlement to be made at the end of *Page 619
each day's business. One of the attractions or shows given by appellant pursuant to its contract with the board of agriculture was the show of Peejay Ringens. In March, 1923, Peejay Ringens and appellant entered into a contract in writing whereby Peejay Ringens agreed to associate himself with appellant for the season of 1923 and to play all territory in the United States and Canada contracted for by appellant and to show only under the supervision of appellant and to furnish his show complete, with the exception of the wagon front, which was to be provided by appellant. Peejay Ringens agreed to abide by and conform with all the rules and regulations governing appellant. Ringens was to pay appellant fifty per cent. of the gross receipts, settlement to be made at the close of the business each day. Appellant further agreed to furnish location for the shows of said Ringens, all licenses required by law, tickets and ticket takers and to haul all paraphernalia of Ringens to and from the car, used in and around the show. Ringens was to hire, manage and pay all salaries to all parties connected with his show. Ringens agreed to protect appellant and save it harmless from any and all lawsuits and damages that might arise from the injury of any spectator or persons attending any of the exhibitions given by the said Ringens. The appellant, pursuant to its contract with the Indiana Board of Agriculture, brought its aggregation of shows to the State Fair Grounds, and one of said shows was that of Ringens, which occupied a place on the State Fair Grounds designated by appellant and called "Midway." All of the attractions and shows of appellant, including the show of Ringens, were constructed and made ready under the general supervision of the superintendent of construction in the employ of appellant. Appellant's construction superintendent inspected all shows to see that the seats were properly constructed. He also inspected *Page 620
the show of said Ringens each day. He had authority, when he found anything wrong, to correct the same, and his opinion and judgment controlled. On the day of the injury to appellant, he inspected the seats of Ringens about twelve o'clock and found water standing on the ground near and about the jacks which supported the seats to a depth of about five inches. He found some of the blocks under the jacks loose and replaced them himself and gave directions to two men in the employ of Ringens to watch the water and see that the blocks did not wash out. The collapse of the seats which caused the injury to appellee was brought about by the water loosening the blocks supporting the jacks and thus, in turn, the jacks moved out of place and permitted the whole seating arrangement to fall. The evidence also tends to prove that appellant, through its agents, adjusted all matters with all of its attractions, including Ringens, such as where the tickets were sold to persons who did not get to a show or where clothing was damaged.
Appellant's counsel, in his brief, says "we here and now admit the liability of P.J. Ringens to appellee." In other words, the negligent construction of the bleacher seats and the collapse thereof causing injury to appellee need not be discussed.
It was the duty of appellant to use reasonable care to see that the bleacher seats in all of its shows, including that of Ringens, were so constructed and maintained as not to risk 1. doing injury to anyone attending the aggregation of shows which appellant was exhibiting pursuant to its contract with the Indiana State Board of Agriculture. Conradt v.Clauve (1884), 93 Ind. 476, 47 Am. Rep. 388; Plaskett v.Benton-Warren, etc., Soc. (1909), 45 Ind. App. 358, 89 N.E. 968; Scott v. University of Michigan Athletic Assn. (1908),132 Mich. 684, 116 N.W. 624, 17 L.R.A. (N.S.) 234; Carlin v. *Page 621 Smith (1925), 148 Md. 524, 130 A. 340, 44 A.L.R. 193, 204;Texas State Fair v. Brittain (1902), 118 Fed. 713, 56 C.C.A. 499.
The appellant retained the general supervision and control over the side show called Ringens, participated in the receipts, made daily examination of the bleacher seats in said sideshow, 2. and had the authority to cause any changes to be made in the construction of the same it deemed necessary, and it cannot be relieved of its duty to exercise reasonable care to have and keep the premises reasonably safe to all persons invited to said show on the ground that Ringens occupied to it the relation of an independent contractor. Turgeon v. ConnecticutCo. (1911), 84 Conn. 538, 80 A. 714; Adams v. Schneider
(1919), 71 Ind. App. 249, 124 N.E. 718; Wodnik v. Luna ParkAmusement Co. (1912), 69 Wash. 638, 125 P. 941, 42 L.R.A. (N.S.) 1070; Hartman v. State Fair Assn. (1915), 134 Tenn. 149, 183 S.W. 733, Ann. Cas. 1917D 931; Babicz v. RiverviewPark Co. (1912), 256 Ill. 24, 99 N.E. 860.
In the case of Adams v. Schneider, supra, the court said: "It is a fundamental principle that one who owns or controls a place of public entertainment is charged with the affirmative, positive obligation to know that such place is safe for public use, and he impliedly warrants such place to be safe for the purpose for which it is designed. He is required to use care and diligence to keep the place safe for those in attendance and, failing to do so, he may be held liable for injuries occasioned by his neglect. His want of knowledge of defective conditions which by the exercise of reasonable care he might have discovered will not excuse him, nor will the fact that an independent contractor intervened in the preparation for or conduct of the entertainment. Those who accept the invitation to attend and who have paid the admission fee have a right to assume that a safe *Page 622
place has been prepared for them and it is not to be expected of them that they make an inspection of the surroundings for the purpose of determining whether or not they are safe."
The principle of law as announced by this court quoted above, although often applied in a case where an association conducting a fair is held liable to its patrons for an injury 3. occasioned by a defect in the apparatus employed by a concessionary, applies with equal force to a general concessionary "who himself sublets privileges to sub-concessionaries taking as compensation a percentage of the gross receipts of the latter," where, as in this case, appellant retained the general supervision and control of all its shows, including Ringens, exercising such control in the manner as hereinbefore set forth.
In the case of Hartman v. State Fair Assn., supra, the court said: "Kennedy, as concessionary, held the sole right or exclusive privilege of bringing and operating amusements on the fairgrounds. We think it cannot be maintained, in any event, that his status as regards liability was higher than that of the usual fair association which, as the owner of exhibition grounds, grants a concession directly to the operator of such amusement."
The jury, by its verdict, found that appellant had control and supervision of the show in which appellee was interested, and that appellant had failed to use reasonable care to keep 4. the premises in a safe condition; there being evidence on each of the above propositions, this court will not disturb the verdict of the jury.
Appellant says that the court erred in refusing to give instructions Nos. 1, 2 and 3 tendered by appellant. Each of said instructions proceeds upon the theory that the contract 5. entered into by and between appellant and Ringens created the relation of an *Page 623
independent contractor, and consequently appellant is not liable. Applying the doctrine in cases heretofore cited, we hold that, under the evidence in this case, appellant cannot relieve itself of liability on the theory that Ringens was an independent contractor. See Turgeon v. Connecticut Co., supra; Hollis v.Merchants Association (1907), 205 Mo. 508, 103 S.W. 32, 14 L.R.A. (N.S.) 284; Thornton v. Maine State Agricultural Soc.
(1902), 97 Me. 108, 53 A. 978.
Appellant also contends that the court erred in giving instruction No. 12. The court in this instruction told the jury that certain facts brought about the relationship of an 6. independent contractor and certain other facts constituted the relationship of master and servant. Whether the instruction is subject to criticism is immaterial. The appellant was not harmed in the giving of said instruction. The evidence in this cause shows that appellant had such control over the Ringens show as to make it liable to appellee.
The cause was fairly tried and determined in the court below. Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426824/ | This action is an information in the nature of quo warranto brought by the appellant as relator on November 17, 1948. The appellee, who was named as respondent, appeared and filed answer and his counter information. Upon the trial the Court found against the appellant upon his complaint or information, and for the appellee upon his counter information; that the appellant be ousted from the office of county commissioner for the First Commissioner District of Vanderburgh County, Indiana, and that appellee was entitled to the possession of said office. Upon this finding, judgment was entered, and it is from this judgment that this appeal was taken. No question is raised as to the pleadings and the case was tried upon an agreed statement of facts.
The material facts as they appear upon the record are in substance as follows: that at the general election held in Vanderburgh County, Indiana, in November, 1946, *Page 566
one Charles P. Schreck was duly elected to the office of county commissioner for the First County Commissioner District of Vanderburgh County for the term of three years, commencing on the 1st day of January, 1948; that before qualifying for said office to which he had been elected, and before taking the oath of office thereto, the said Charles P. Schreck died; that this appellant was duly elected commissioner for the First County Commissioner District of said county at the general election held in November, 1944, for a term of three years beginning on the 1st day of January, 1945, and ending January 1, 1948, and duly qualified as commissioner and assumed the duties of the office on the 1st day of January, 1945, and held the office and discharged and performed the duties of commissioner in said office until the 1st day of January, 1949; that from the 1st day of January, 1949, until this time appellant has refused to surrender the office as commissioner and has asserted and maintained his right to occupy the office and to discharge the duties thereof during the full term for which Charles P. Schreck was elected; that at the general election held on November 2, 1948, the name of the appellee, Edward H. Kinkle, appeared on the ballots and voting machines as a candidate for the office of county commissioner for said First District and that the board of canvassers declared appellee to have been elected to the office and certified his election to the clerk of the Vanderburgh Circuit Court; that the official notice of the election, insofar as the same appertains to the office of county commissioner of Vanderburgh County for the election on the 2nd day of November, 1948, stated that among the other officers to be elected at that time there would be a county commissioner elected for each of the First, Second and Third County Commissioner Districts; that after said election *Page 567
the clerk of the Vanderburgh Circuit Court signed and delivered to the appellee a certificate of election to the office of county commissioner for the First District; that the appellee thereupon subscribed his official oath and demanded that he be recognized as the duly elected and qualified commissioner for the First Commissioner District; that the appellant has at all times refused to vacate the office of county commissioner or to surrender the same to the appellee, and has insisted upon his right to fill the unexpired term for which Charles P. Schreck was elected by virtue of appellant's election to the office at the November Election in 1944; that the election on November 2, 1948, was the regular and proper time to elect the commissioners from both the Second and Third Commissioners Districts of said county and that, but for the death of the said Charles P. Schreck, the commissioner for the First Commissioner District would not have been elected until the regular election in 1950; that the term of office for the commissioner elected for the Second District began on January 1, 1949, and the term of office for commissioner elected for the Third District begins on the 1st day of January, 1950; that the appellee is asserting claim to said office solely by reason of his election at the November, 1948, Election.
The appellant, by his motion for a new trial and by his assignment of error, has properly presented the questions hereinafter discussed and decided.
The appellant argues that there was a vacancy in the term of office on account of the facts herein, which should have been filled by the commissioners in office. In support of this argument he relies upon § 26-601, Burns' 1948 Replacement; Acts of 1945, ch. 261, § 1, p. 1189, which reads as follows:
"Whenever a vacancy shall occur in the office of commissioner; or whenever a commissioner who has *Page 568
qualified shall die or resign before the commencement of the term for which he was elected and no general election will occur between the time of such death or resignation and the beginning of such term, the commissioners in office at any time after the occurrence of such death or resignation so producing such vacancy or prospective vacancy, wherein such vacancy or prospective vacancy in the office of commissioner shall occur for any reason, shall elect some qualified elector to fill such vacancy or prospective vacancy, from and after the time of commencement of such term, who shall serve for the remainder of the term, or for the entire term as the case may be, for which the person so dying or resigning was originally elected or appointed."
Under the facts in this case there was no vacancy in office at the time that the appellee was elected. Kimberlin v. The Stateex rel. Tow (1891), 130 Ind. 120, 29 N.E. 773; State ex rel. Culbert v. Linkhauer (1895), 142 Ind. 94, 41 N.E. 325; 1. State v. Karger (1948), 226 Ind. 48, 77 N.E.2d 746; The State ex rel. Harrison v. Menaugh et al. (1898),151 Ind. 260, 51 N.E. 117, 51 N.E. 357. Although appellant admits this to be the fact, he attempts to distinguish between the vacancy in office and the vacancy in the term of office and relies principally upon Parcel v. The State ex rel. Lowrey
(1886), 110 Ind. 122, 11 N.E. 4. It is our opinion that this case does hold that where, as here, a party is holding over after his legal statutory term of office has expired, under and by virtue of Art. 15, § 3 of the Indiana Constitution, there is a vacancy in the term which may be filled under a statute which provides for the filling of office due to a vacancy. We are unable to reconcile this case with subsequent cases of this court. Particularly see Kimberlin v. The State ex rel. Tow, supra;State ex rel. Culbert v. Linkhauer, supra.
In the absence of a vacancy said § 26-601, Burns' 1948 *Page 569
Replacement, can have no application as it only empowers the commissioners in office to fill a vacancy.
Appellee's sole contention in support of the judgment of the trial court is that he was lawfully elected to fill an unexpired term by virtue of Acts of 1945, ch. 208, § 187, p. 680; § 29-4801, Burns' 1933 (1947 Supp.). This section reads as follows:
"A general election shall be held on the first Tuesday after the first Monday in November in even-numbered years, at which election, all existing vacancies in office, and all offices the terms of which shall have expired or which will expire before the next general election thereafter, shall be filled, unless otherwise provided by law." (Our Italics)
The foregoing section of our statutes which was enacted in 1945, superseded and took the place of the Acts of 1881 (Spec. Sess.), ch. 47, § 1, p. 482 which is § 29-701, Burns' 1933, which reads as follows:
"A general election shall be held on the first Tuesday after the first Monday in November in the year 1882, and biennially thereafter on the same day, at which election, all existing vacancies in office, and all offices the terms of which will expire before the next general election thereafter, shall be filled, unless otherwise provided by law."
It will be noted that by the 1945 Act, above set out, there was added to the section adopted in 1881, the italicized words "which shall have expired or which." We must conclude that by the 2. adding of these words to the 1945 statute the legislature intended to add something to the then existing statute, and that the only thing that could have been intended was that at such general election not only the offices whose term should expire before the next general election should be filled, but, also, all offices the term of which *Page 570
had expired prior to such biennial election then being held, and, also, that the "terms" referred to were intended to be definite terms of office fixed by the Constitution or statute.
In regard to this section we approve of what has been said heretofore by our attorney general, as follows:
"It seems obvious that the `terms' referred to in the foregoing provision were intended to be the definite terms of office fixed by the Constitution or by statute for the various offices, rather than the indefinite or defeasible terms represented by the fixed terms plus a possible `holding over' under the provisions of Article 15, Clause 3 of the Constitution, supra." Opinions of the Attorney General of Indiana, 1936, pp. 9, 11.
It will be noted that on page sixteen of this same opinion will also be found the following language:
"In my opinion the Legislature intended such provision to apply to all offices where the incumbent's fixed term had expired prior to such biennial election, as well as to those which would expire between such election ensuing thereafter."
At the time this opinion was rendered, said § 29-701, Burns' 1933, was in force. If there was any doubt as to the validity of this last quoted portion of the opinion at the time the same was rendered, it would seem to us that it has been eliminated by said § 29-4801, Burns' 1933 (1947 Supp.) which, as we have seen, specifically provides that the election shall be had for all offices, the terms of which shall have expired at the time of such election. It is altogether probable that this insertion was made in the 1945 Act to clear up any such doubt.
It is our opinion, therefore, that the appellee was properly elected on November 2, 1948, for the unexpired portion of the term. *Page 571
In passing, we desire to point out that, from the facts in this case, appellant, at the time he brought this action, was in possession of the office and had not surrendered the same 3. to the appellee. Under these circumstances the appellant had no right to bring this action. An information in the nature of quo warranto will not lie against one who merely lays claim to the office and has never been admitted thereto. 51 C.J., Quo Warranto, § 15, p. 318; 44 Am. Jur., Quo Warranto, § 26, p. 105; State v. Raisler (1907), 133 Wis. 672, 114 N.W. 118;Harris v. Boggess (1925), 113 Okla. 60, 238 P. 477; State
v. Lechner (1925), 187 Wis. 405, 204 N.W. 478.
For the reasons heretofore stated, it is our opinion that the trial court was correct in finding against appellant on his information and that it properly found for the appellee on his counter information.
The judgment, therefore, is affirmed.
NOTE. — Reported in 86 N.E.2d 677. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426825/ | Jessie G. James died testate on February 12, 1931, and her husband, Hedley V. James, filed objections to the probating of her will dated June 21, 1930, on the grounds that (1) it was unduly executed and (2) that it was made in violation of an executed contract, which contract had never been revoked and was still in full force.
Afterwards Hedley V. James filed a complaint to resist such probate, in which it was alleged that said will of June 21, 1930, had been executed by Jessie G. James in violation of an agreement whereunder on May 26, 1919, said Hedley V. James and said Jessie G. James executed mutual wills, each of the same, being the consideration for the execution of the other, by which each of said parties devised and bequeathed to the other all of his (or her) property and estate of any and every kind, both real and personal; that said Hedley V. James had performed his part of said contract by keeping his said will of May 26, 1919, in force until after the death of his said wife on February 12, 1931, while said *Page 259
Jessie G. James had not performed her part of said contract, but had, without the knowledge or consent of her said husband, violated the same by destroying her said will of May 29, 1919, and by executing her said will of June 21, 1930.
After this proceeding had been commenced Mr. James died testate, leaving all of his estate to Harry W. James, who was also named as executor. By order of court Harry W. James, personally, and as executor, was substituted as plaintiff.
Prior to the death of Hedley V. James he had filed another paragraph of complaint which he denominated third paragraph of complaint, but by order of court it was corrected and called a second paragraph of complaint. In addition to the averments contained in the first paragraph the second paragraph averred that Jessie G. James at the time of her death owned certain real and personal property, specifically described, and that by virtue of her said will of 1919, considered as a contract, all of said property and estate, real and personal, owned by said decedent, at the time of her death, became and was the property of her husband. The complaint contained a prayer that appellants be adjudged to have no right, title, or interest in or to the said property or to any part thereof.
To the complaint appellants filed an answer in abatement to the effect that there was a defect of parties for the reason that Hedley V. James, executor of the last will and testament of Jessie G. James, was not a party defendant, to which appellee demurred on the grounds that the answer did not state facts sufficient to abate the action stated in the complaint. The court sustained the demurrer to the plea in abatement. Appellants then filed a demurrer to the complaint alleging in such demurrer a misjoinder of causes of action; that each paragraph of complaint failed to state facts sufficient *Page 260
to constitute a cause of action and that the complaint failed to state facts sufficient to constitute a valid objection to the probate of a will. The demurrer was overruled and appellants then filed a motion to strike out parts of the complaint, which motion was overruled and the court ordered that the record as to the paragraphs of complaint filed be corrected as heretofore set out.
Afterwards and before the trial appellants filed their motion asking the court to separate from the other issues in the case the issue as to whether or not specific performance was entitled to be had of the contract between Hedley V. James and Jessie G. James as consummated by their wills of May 26, 1919. This motion was sustained and trial was had on the single issue of the parol agreement and its legal effect.
After the trial the court entered the following finding and judgment:
"The court having had this cause under advisement and being sufficiently advised in the premises now finds for the plaintiffs upon their complaint. That all the averments of the complaint as amended are true and proven. That the plaintiffs are entitled to specific performance of the contract between Hedley V. James and Jessie G. James as consummated by the last will and testament of said Jessie G. James under date of May 26, 1919, and the last will and testament of said Hedley V. James of the 26th day of May, 1919, all as alleged in the complaint. That pursuant to said contract and said wills the said Hedley V. James as beneficiary and devisee under the last will and testament of said Jessie G. James, dated May 26, 1919, and as surviving husband of said Jessie G. James, deceased, is entitled to all the property of said Jessie G. James, both real and personal, and of every kind and description, owned by the said Jessie G. James at the time of her death. That the title of said Hedley V. James as *Page 261
surviving husband and devisee under the last will and testament of said Jessie G. James, dated May 26, 1919, as aforesaid, and of all persons claiming by, under and through said Hedley V. James, now deceased, be quieted and forever set at rest as to any pretended claims of the defendants herein, or either of them to said property, real or personal. That the defendants take nothing by their answers herein, and that plaintiffs recover their costs herein made and taxed at $ ________"
Appellants motion for a new trial contained the grounds that: (1) the court erred in sustaining the plaintiff's demurrer to said defendants' answer in abatement herein; (2) the court erred in overruling said defendants' demurrer to plaintiff's complaint; (3) the court erred in overruling said defendants' motion to strike out a portion of plaintiff's complaint; (4) the decision of the court is not sustained by sufficient evidence; and (5) the decision of the court is contrary to law.
The overruling of this motion for new trial is assigned as error here.
There is no question presented to this court for decision here with regard to assignments 1, 2, and 3 contained in the motion for a new trial, as rulings of the court below, upon 1. demurrers to pleadings and motions in reference to the same are not proper grounds for a new trial in a motion therefor. Glendy v. Lanning (1879), 68 Ind. 142; Huber Mfg.Co. v. Blessing (1912), 51 Ind. App. 89, 99 N.E. 132; Decker
v. Mahoney (1917), 64 Ind. App. 500, 116 N.E. 57; Haugh v.Haywood (1919), 69 Ind. App. 286, 121 N.E. 671. And since they are not proper assignments in a motion for a new trial, the assignment of error on appeal that the court erred in overruling the motion for a new trial does not present any question on such assignments. Such rulings must be presented by independent *Page 262
assignments in the assignment of errors filed with the transcript if they are to be considered by this court.
Assignments 4 and 5 of the motion for a new trial, relied upon by appellant for a reversal herein require a consideration of the evidence. Appellants' brief fails to contain a condensed 2. recital of the evidence in narrative form so as to present the substance clearly and concisely as required by clause 5 of rule 21 of the rules of the Supreme and Appellate Court of Indiana. Appellees' brief states, and the transcript discloses, that appellants' brief has omitted a condensed recital, in narrative form, of some testimony of witnesses and also evidence which consisted of written documents made a part of the depositions, of two other witnesses, which were admitted and read in evidence. Part of these written documents consisted of exhibits of bank accounts in the name of Jessie G. James, Hedley V. James, and in the joint names of both of them, over a period of years, and the balance consisted of memorandum of stock purchases by Jessie G. James. As to the latter evidence no mention thereof is made in appellants' brief and as to the bank account exhibits appellants attempt to tell this court what such evidence proves. Appellees, in their brief, as to the latter evidence, did not supply the omissions, but have directed the attention of the court to where in the transcript such evidence may be found.
As above noted the court found "for the plaintiffs upon their complaint. That all the averments of the complaint as amended are true and proven." (Our italics.) One of the averments of the complaint is that "in reliance upon said agreement and arrangement, and upon the execution of said will in pursuance thereto, (Hedley V. James) gave to said Jessie G. James of his own property and earnings property, real and personal, *Page 263
of the value of more than five thousand dollars ($5,000.00), which property, she owned at the time of her death," etc. One of the issues on the trial was as to the truth of the averment above quoted. Appellees in their brief state, and it is not denied by the appellants, that such omitted evidence was offered in support of that averment, which the court found to be true. We must assume that the court took all of the evidence introduced in this case into consideration when he made his finding and entered judgment thereon and unless all of the evidence, in narrative form or in substance, is in the briefs we can not determine any question depending on a consideration of the evidence.
Appellants do not deny that this evidence is omitted but say that in the event they have omitted any part of the evidence that it is the duty of appellees to supply the omitted parts. 3, 4. In this contention appellants are mistaken as it is not the duty of appellees to supply the omissions in appellants' brief, but appellees have the right to assume that the rule above mentioned, which requires an appellant to set out a condensed recital of the evidence, in narrative form, will be uniformly enforced by the court. Webster v. Bligh (1912),50 Ind. App. 56, 98 N.E. 73; Sanders-Egbert v. Getts (1923),80 Ind. App. 328, 149 N.E. 9; Martindale et al. v. Corbin
(1924), 82 Ind. App. 324, 145 N.E. 926; Humphreys v. PleasurePark Co. (1933), 97 Ind. App. 592, 187 N.E. 682. Appellants can not omit from such condensed recital evidence which they deem irrelevant. Humphreys v. Pleasure Park Co., supra.
With the above evidence omitted entirely from appellants' brief, such brief, according to clause 5 of rule 21, supra, is not sufficient to present for decision, by this court, the question of the sufficiency of the evidence to sustain the finding of the court below. *Page 264
When a consideration of all of the evidence is required to determine the question on appeal a party appealing can not entirely omit from the condensed recital of the evidence, 5. as required by the rule, exhibits admitted in evidence by attempting to tell this court what the evidence proves and say, "An analysis of this testimony shows that the various purchases of stock made by Mrs. James were paid for with money drawn from her personal funds," and when such exhibits are admitted in evidence but are omitted from a condensed recital, in narrative form, of the evidence, we can not say that there has been a sufficient compliance with the above rule.
The appellants assert that the decision of the court is contrary to law but in their brief they only set forth abstract propositions of law with no application to the case at bar, 6. and from such abstract statements we are unable to determine that the decision is contrary to law.
For the foregoing reasons the judgment of the DeKalb Circuit Court is in all things affirmed and it is so ordered. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426826/ | The sole question presented by this appeal is the correctness of the ruling of the trial court in sustaining appellee's demurrer to appellant's amended complaint in two paragraphs.
The first paragraph of complaint alleges that on November 29, 1932, appellee, in an action then pending in the Morgan Circuit Court wherein appellee was plaintiff and appellant was defendant, took judgment and decree of foreclosure against appellant on a note and mortgage executed by appellant to Mooresville State Bank and by it assigned to appellee; that a receiver was appointed in said action who took possession of the real estate covered by the mortgage and collected certain rents and profits for the benefit of appellee. It alleges that appellee never did own or have any right in and to the mortgage and note because appellee received them as a result of an ultra vires contract; *Page 145
and that the question of ultra vires was not raised either in the pleadings or in any facts presented to obtain the decree of foreclosure.
The second paragraph alleges the same facts as the first except that it says that the note and mortgage were transferred and assigned to appellee from the Mooresville State Bank, a banking institution, at a time when it was insolvent and such transfer was in violation of statute. (§ 3866, Burns' R.S. 1926.)
In support of the action of the trial court appellee says, that the question of the ownership of the note and mortgage was one properly presentable to the Morgan Circuit Court in the foreclosure proceedings; that the judgment of the Morgan Circuit Court is therefore res adjudicata as to that question; and that this action is a collateral attack upon the judgment of that court.
It seems quite clear to us that the question of the ownership of the note and mortgage was before the Morgan Circuit Court in the foreclosure proceedings. If appellant had any defense 1. arising out of any illegality in the assignment and transfer of the involved note and mortgage such defense should have been there presented. The judgment of the Morgan Circuit Court determined that appellee was the owner of the note and mortgage there sued on and appellant herein cannot attack that judgment collaterally. Olds v. Hitzemann (1942),220 Ind. 300, 42 N.E.2d 35; Castor v. Gary Lumber Company
(1942), 220 Ind. 260, 41 N.E.2d 945.
Appellant insists, however, that "the instant action is not a collateral attack upon a judgment or decree even though same may appear regular on its face for the reason that the amended complaint charges that the appellee secured an assignment of the note and mortgage *Page 146
in contravention of a statute, which is stronger than a charge of fraud or collusion."
Appellant overlooks the fact that the fraud which may be the basis of an attack upon a judgment without being a collateral attack is fraud in the procurement of the judgment. 2. Olds v. Hitzemann, supra. In the instant case the illegality which appellant charges is not in theprocurement of the judgment but in the procurement of thesubject-matter of the action. The case of Mercantile Comm.Bank v. Southwestern, etc., Corp. (1931), 93 Ind. App. 313,169 N.E. 91, 171 N.E. 310, cited and relied upon by appellant is of no assistance to him. It involves collusion in the procurement of the judgment.
The demurrer was properly sustained.
Other propositions are presented by appellee in support of the trial court's action, but it is not necessary that we consider them.
Judgment affirmed.
NOTE. — Reported in 47 N.E.2d 156. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426866/ | Appellant was convicted in the city court of the city of Gary on an affidavit charging a violation of the liquor laws of our state in this, to wit, that appellant unlawfully possessed, sold, bartered, exchanged, etc., intoxicating liquor. An appeal was taken by appellant to the criminal court of Lake county. Trial by jury resulted in a verdict of guilty. The court rendered judgment on the verdict. The only error relied upon for reversal is that the court erred in overruling appellant's motion for a new trial. *Page 488
At the threshold of our consideration of the assigned error, the Attorney-General, on behalf of the appellee, lays down the proposition that appellant's brief does not specifically 1-4. point out any error committed by the trial court; consequently no question is properly presented for review. The motion for new trial contains eleven causes or reasons: (1) The verdict is contrary to law; (2) the verdict is not sustained by sufficient evidence; (3) to (10), inclusive, are predicated upon the admission or refusal to admit certain evidence; and (11) the misconduct of two of the jurors during the trial. Causes 1 and 2 are not mentioned by appellant in his "Points and Authorities," and they are thereby waived. Knapp v.State (1907), 168 Ind. 153, 79 N.E. 1076; Pattison v. GrantTrust, etc., Co., Admr. (1924), 195 Ind. 313, 144 N.E. 26;Land v. State (1926), 198 Ind. 342, 151 N.E. 823; Briese v.State (1926), 198 Ind. 643, 154 N.E. 2. Causes 3 to 10, inclusive, are not presented because it does not appear by appellant's brief that, by the admission and refusal of the evidence complained of, the court committed any error. Cause 11 fails for the reason that appellant reserved no exception at the trial and, further, there is no showing that appellant's rights were prejudiced. See Coleman v. State (1887), 111 Ind. 563, 13 N.E. 100; Woodward v. State (1926), 198 Ind. 70,152 N.E. 277.
Appellant's points 1, 2, 3, 4, 5 and 6 are probably intended to support alleged errors in the admission or exclusion of evidence, but appear as either abstract statements of law or 5. conclusions, and are not in any manner applied to the assignment of error or subdivision thereof, and cannot be considered on appeal. Weidenhammer v. State (1913),181 Ind. 349, 103 N.E. 413; Dampier v. State (1924), 194 Ind. 646, 114 N.E. 241; Moore v. State (1927), 199 Ind. 578, 159 N.E. 154. *Page 489
If it could be said that the admission of evidence over objection was before us, the burden was upon appellant to show that he was probably injured in some material respect, 6, 7. and this he has failed to do. Newbauer v. State
(1928), 200 Ind. 118, 161 N.E. 826; Wolfe v. State
(1928), 200 Ind. 557, 159 N.E. 545. And, if admission or exclusion of evidence is relied upon, appellant's brief must point out the place in the record where the questions, answers thereto, and ruling of the court thereon, may be found, and this does not appear to have been done. Land v. State, supra.
Point 7 related to the misconduct of the jurors, and has already been discussed. Point 8 is directed to the exclusion of evidence, to wit, the transcript of the trial of appellant 8. in the city court. The appellant gives no reason to support his point, and cites no authority. We call attention, as applicable to this point to Staub v. State (1919),188 Ind. 683, 125 N.E. 399, and authorities there cited.
In the instant case, a learned judge in the city court, after hearing the evidence, pronounced the appellant guilty; thereafter twelve of his peers, as jurors, came to the same conclusion; next, a learned judge reviewed the whole case when appellant presented his motion for new trial and pronounced judgment; although not called upon to do so, we have reviewed the evidence and find it ample to support conviction. Surely appellant has had his day in court and his liberty will, by affirmance of this judgment, be taken away only by due process of law.
Judgment affirmed. *Page 490 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444383/ | Affirming in part, reversing in part.
Four cases, Idalee Richardson v. Frank J. Hoback, Mitzi Frances Blanton v. Frank J. Hoback, Frank J. Hoback v. Idalee Richardson, and Christine Hoback v. Idalee Richardson, arose out of the same accident and were tried together. At the trial, the verdict of the jury was to "dismiss the claims of all parties." It was adjudged by the court that "Idalee Richardson, Mitzi Frances Blanton, Frank J. Hoback, and Christine Hoback, recover nothing by their petitions against the defendants, Frank J. Hoback, and Idalee Richardson," but that each party pay its individual costs. Idalee Richardson and Mitzi Frances Blanton appealed.
For Mrs. Richardson and Mrs. Blanton the testimony is: On a late afternoon of February 12, 1947, Mrs. Richardson was driving her Chrysler Sedan south on Fifth Street in Louisville. She approached Zane Street very slowly — 18 or 20 miles an hour; when she was a "little way from Zane Street" — about 50 feet — she saw a car stop on Zane Street; he came to a dead stop there; when she "got right close * * * about 20 feet from him, he jumped out, the car jumped out right in my path;" she was driving on the west, or her right side of Fifth Street; the lights on her car were burning as she proceeded out Fifth; after the collision, before she lost consciousness, she turned her lights off and also the ignition key; she was in bed and then on crutches for about six months. At the time of the trial Mrs. Blanton was with her husband, an Army Officer in Germany. Her deposition was taken; her testimony was substantially the same as Mrs. Richardson's. She was thrown *Page 576
against the windshield and back against the seat; she suffered broken teeth, cuts and bruises, injury to her right wrist and arm, and to her back.
Robert D. O'Brien, Civil Engineer, filed a map of the Fifth and Zane Street intersection. Fifth Street — 36 feet wide — runs north and south; Zane Street — 30 feet wide — comes into Fifth from the west, making a "T" intersection at Fifth. Officers Allgood and Humphrey were called by radio at 5:52 p. m. They went to Fifth and Zane Street, the scene of the accident; found two automobiles in the intersection; a 1937 Packard belonging to Frank J. Hoback, and a 1946 Chrysler belonging to Idalee Richardson; the Chrysler was headed south; the Packard was headed to the northeast; there were skid marks of the Chrysler approximately 18 feet; the Packard had "sideway" slide marks about 2 feet; it was dark; the street was dry; the weather clear. Neither car had lights burning when the officers arrived. The damage to the Chrysler was to the entire front — grill, hood, radiator and windshield; the damage to the Packard was to the left front fender, body, wheel, hood and door.
The testimony for Hoback is: He was driving east on Zane; came to a full stop at Fifth; his lights were on; it was dark; he started to go out from Zane Street to turn left in Fifth; as he did, Mrs. Richardson came south on Fifth at a good rate of speed; she had no lights; be heard her "brakes squeal" a car's length before her car hit his; he was a little less than halfway out in Fifth; there was no automobile approaching from the north or south that he could see; he drove into Fifth some 5 to 7 miles an hour; his car was pushed sideways 4 or 5 feet by the impact; he could have seen her coming if her lights had been burning; the first he knew she was coming, he heard the brakes squeal and then the cars hit; he didn't see Mrs. Richardson's car before he started to make the left turn; there is a grocery store at the northwest intersection; he had no vision beyond the car parked at the grocery store; he didn't stop after he started into Fifth until he was hit; he lives one-half block from the place of the accident; he always stopped as he approached Fifth Street because "there is not a whole lot of vision either way."
Mrs. Hoback was shaken up; her knee was injured *Page 577
and she had some fractured ribs. Dr. Belton treated her. She says she saw the Richardson car "about a car's length of the corner where we made the northeasterly turn. * * * She came up out of nowhere, you might say. If she had had her lights on I would have seen her."
The court gave instructions which we believe were substantially correct as to Mrs. Richardson and Mr. Hoback. But the court gave instructions Nos. 6 and 7(E) as follows:
"6. If you believe from the evidence that Hoback was negligent and also believe from the evidence that Mrs. Richardson was negligent and that the negligence of the one concurred with the negligence of the other to produce the collision when it would not have occurred, but for the negligence of both, then no one can recover against the other."
"7(E). If you reach your verdict under the 6th instruction and find that both Hoback and Mrs. Richardson were negligent and that their joint negligence caused the accident and injuries, then your verdict will be to dismiss the claims of all parties, that is, of Mrs. Richardson and Mrs. Blanton against Hoback and of Hoback and Mrs. Hoback against Mrs. Richardson."
Mrs. Blanton was a guest in the Richardson car. Mrs. Blanton was not shown to be guilty of any negligence. The negligence of the driver, Mrs. Richardson, was not imputable to her guest. Clearly, instructions Nos. 6 and 7(E) were erroneous so far as they were applicable to her, and, because of that error, her case must be reversed for a new trial with proper instructions as to her. All other questions are reserved. Frank J. Hoback did not prosecute any cross appeal. Mrs. Hoback, who is not a party appellee to this appeal, has filed motion for a cross appeal. Her motion was erroneously sustained by an order of this court, which order is now set aside and held for naught, without prejudice, however, to her right to prosecute a separate appeal. See, Civil Code of Practice, Section 755, and cases annotated thereunder.
The case of Idalee Richardson v. Frank J. Hoback is affirmed; the case of Mitzi Frances Blanton v. Hoback is reversed. *Page 578 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4286604/ | Order Michigan Supreme Court
Lansing, Michigan
June 19, 2018 Stephen J. Markman,
Chief Justice
Brian K. Zahra
Bridget M. McCormack
157965 (14) David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement,
Justices
TYRONE WILLIAMS,
Plaintiff-Appellant,
v SC: 157965
COA: 342856
ST. LOUIS CORRECTIONAL FACILITY
WARDEN,
Defendant-Appellee.
_______________________________________/
On order of the Chief Justice, the motion to waive fees is considered and it is
DENIED because MCL 600.2963 requires that a prisoner pursuing a civil action be liable
for filing fees.
Appellant is not required to pay an initial partial fee. However, for an appeal to be
filed, within 21 days of the date of this order, appellant shall submit a copy of this
order and refile the copy of the pleadings returned with this order. By doing this,
appellant becomes responsible to pay the $375.00 filing fee. Failure to comply with this
order shall result in the appeal not being filed in this Court.
If appellant timely refiles the pleadings, monthly payments shall be made to the
Department of Corrections in the amount of 50 percent of the deposits made to
appellant’s account until the payments equal the balance due of $375.00. This amount
shall then be remitted to this Court.
Pursuant to MCL 600.2963(8), appellant shall not file a new civil action or appeal
in this Court until the entry fee in this case is paid in full.
The Clerk of the Court shall furnish two copies of this order to appellant and
return a copy of appellant’s pleadings with this order.
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.
June 19, 2018
izm
Clerk | 01-03-2023 | 06-21-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4030793/ | ATTORNEY GRIEVANCE IN THE COURT OF
COMMISSION OF MARYLAND. APPEALS OF MARYLAND
Misc. Docket AG, No. 66
Petitioner, September Term 2015
V.
KEITH ERIC TIMMONS IN THE CIRCUIT COURT
FOR BALTIMORE CITY
Res s ondent. Case No. 24-C-16-000925 AG
ORDER
Upon consideration of the Joint Petition filed herein pursuant to Maryland Rule 19-736,
and in light of Respondent's acknowledgement that he has violated Maryland Lawyer's Rules of
Professional Conduct 1.4(a) and 5.3(a), it is this 1st day of September , 2016,
ORDERED, that Respondent, Keith Eric Timmons, be and he is -hereby
suspended from the practice of law in the State of Maryland for thirty (30) days, for violating
Maryland Lawyers' Rules of Professional Conduct 1.4(a) and 5.3(a); and it is further,
ORDERED, that said suspension shall be effective on October 3,2016; and it is further,
ORDERED, that, on the effective date of this Order, the Clerk of this
Court shall remove the name of Keith Eric Timmons from the register of attorneys in
the Court and certify that fact to the Client Protection Fund of the Bar of Maryland and all
Clerks of all judicial tribunals in this State in accordance with Maryland Rule 19-742(a) and
issue notice of such action in accordance with Maryland Rule 19-761(b).
/s/ Mary Ellen Barbera
Chief Judge | 01-03-2023 | 09-01-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4068594/ | ACCEPTED
14-13-00779
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
6/24/2015 4:01:17 PM
CHRISTOPHER PRINE
CLERK
NO.14-13-00779-CV
FILED IN
IN THE 14th COURT OF APPEALS
HOUSTON, TEXAS
COURT OF APPEALS 6/24/2015 4:01:17 PM
CHRISTOPHER A. PRINE
FOR THE FOURTEENTH DISTRICT OF TEXAS AT HOUSTON Clerk
JEFF OLLEY AND ALL OCCUPANTS in possession of room 313 of the hotel commonly
known as the extended stay America - Houston - Katy Freeway/Energy Corridor
APPELLANTS
V.
HVM, L.L.C., in its capacity as manager of the hotel commonly known as the
Extended Stay America - Houston - Katy Freeway/Energy Corridor
APPELLEE
NOTICE OF CHANGE OF LAW FIRM/ADDRESS FOR APPELLEE’S COUNSEL
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellee, HVM, L.L.C., in its capacity as manager of the hotel commonly
known as the Extended Stay America-Houston-Katy Freeway/Energy Corridor, and files this
Notice of Change of Address to advise the Court and all parties of record that the law firm for
Appellee’s attorney Kelly Franklin Bagnall has changed. Effective immediately, the contact
information is as follows:
Kelly Franklin Bagnall
Holland & Knight
200 Crescent Court, Suite 1600
Dallas, Texas 75201
(214) 984-9462 – Telephone
(214) 984-9500 – Facsimile
[email protected]
NOTICE OF CHANGE OF LAW FIRM/ADDRESS FOR APPELLEE’S COUNSEL PAGE 1
Respectfully submitted,
/s/ Kelly Franklin Bagnall
Kelly Franklin Bagnall
State Bar No. 07375800
[email protected]
HOLLAND & KNIGHT
200 Crescent Court, suite 1600
Dallas, Texas 75201
(214) 984-9462
(214) 984-9500 (fax)
ATTORNEY FOR APPELLEE
CERTIFICATE OF SERVICE
I certify that a true copy of the above was served on the following individual in accordance
with Texas Rule of Civil Procedure 21a on the _____ day of June, 2015.
Jeff Olley
P.O. Box 431602
Houston, Texas 77243
/s/ Kelly Franklin Bagnall
Kelly Franklin Bagnall
NOTICE OF CHANGE OF LAW FIRM/ADDRESS FOR APPELLEE’S COUNSEL PAGE 2 | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426937/ | This appeal is from a judgment decreeing to appellee specific performance of a contract for the purchase of a certain two-story store, apartment and theatre building in East Chicago, Lake county, Indiana, and the two lots upon which it is built. The appeal is based upon the findings of fact and conclusions of law stated below, and the assignments of error present only the question as to whether the court erred in its conclusions of law.
The complaint was in one paragraph and answered by a general denial. The facts as alleged in the complaint and found by the court are substantially as follows: Appellee and appellants, who are husband and wife, are all residents of Indiana Harbor, a part of East Chicago, Indiana. On March 24, 1923, appellants leased to appellee in writing the theatre on the ground floor of the building for a period of three years from April 1, 1923, to March 31, 1926, for a rental of $400 per month. The building was owned by appellants and, in addition to the moving picture theatre, included certain stores on the main floor and flats above. The lease described the property as follows:
"The theatre on the ground floor of the two story brick building, situated on Lot 9 and the northeasterly 25 feet of Lot 10, in Block 69, in Indiana Harbor," etc.
The lease contained clauses giving appellee the option to purchase as follows: "It is further agreed, by and between the parties hereto, that at the end of three (3) years, on April 1st, 1926, or any time prior thereto, that *Page 487
said first parties will sell, and second party may purchase, the above described property for the sum of $65,000 and that if purchased by said second party, first parties will give a good and sufficient warranty deed to said second party, free and clear of all encumbrances or liens, and an abstract down to date showing merchantable title.
"It is further agreed, that if said second party, purchases said property as above specified, that first parties will allow as a credit upon said purchase price of said property, the sum of $50 per month, for each month's rent that second party has paid under this lease, plus the sum of $600.
"It is further agreed that if said second party purchases said property as above specified, that first parties will take back a first mortgage of $50,000 as part of the purchase price of said property. Said mortgage shall run for five years and bear 7% interest, payable semi-annually, and that second party will pay to first party as a consideration for accepting said mortgage, a commission of 3%, and second parties agree to pay to first parties on said mortgage, the sum of $5,000 at the end of the first year and $5,000 at the end of the second year."
Appellee went into possession of the theatre April 1, 1923, and has continued in possession until this time. On August 13, 1924, appellee exercised the option to purchase, paid appellants $1,000 on the purchase price and executed with appellants the following receipt and memorandum:
"Indiana Harbor, Indiana, "August 13, 1924.
"Received of Michael E. Kozacik, Jr., the sum of $1,000 deposit on purchase of Lot Nine (9) and the Northeasterly 25 feet of Lot Ten (10) in Block 69, Original Town of Indiana Harbor, and all buildings thereon and *Page 488
better known as 3433-35 Michigan Avenue, Columbia Theatre Building. Purchase price being $65,000 on which WE agree to accept a $50,000 first mortgage as per agreement entered into March 24, 1923, and balance of $14,000 to be paid when title is found merchantable and Warranty Deed is delivered.
"It being understood that eight months of taxes for year 1924 are to be paid by ourselves. Insurance on buildings to be pro-rated and we also to receive a fair value for coal now in building.
"That said Michael E. Kozacik, Jr., to pay $1,500 commission for said loan as per agreement of March 24, 1923, and is also allowed a deduction for 17 months rental at $50 per month plus $600 as per said agreement which amounts to $1,450.
"It being agreed and understood that if title to said property is merchantable this deal is to be completed on or before September 15, 1924.
"George Walcis, "Zuzi Walcis, "Above agreement accepted. By Michael Kozacik, Jr.,"
Prior to August 13, appellee had talked with representatives of the Calumet Tobacco Company concerning the sale of the property by him to the tobacco company, after he should acquire the same by purchase from appellants. A few days after August 13, appellee accepted a deposit from the tobacco company for the purchase of the property and gave his memorandum receipt therefor. Shortly after August 13, appellants delivered their abstract to appellee for examination. He had it continued to August 13 and delivered the same to Mr. Perry Chapin, an attorney acting for the tobacco company, for examination, who submitted a written opinion on September 4. The opinion shows that the *Page 489
title was in appellants, but not merchantable, pointing out numerous defects which we do not need to set out.
For the purpose of making the title merchantable, appellant George Walcis was called to Mr. Chapin's office in Hammond shortly after September 4. There followed various meetings at Chapin's office between appellant George Walcis, Chapin and John Manta, a business associate and representative of appellee, at which meetings were discussed the steps necessary to clear the title of the objections. These conferences extended over the period from September 4, until sometime in the month of December, 1924. A guaranty policy, guaranteeing the title had been issued to appellants by the Chicago Title and Trust Company, January 31, 1918, and appellants took the position that, because of this policy, the title was merchantable, and that no steps were required to make it good, hence would take none; but this policy contained certain exceptions to the guaranty, some of which, to say the least, were meritorious, and appellee was compelled to take steps to remove them. During the time these steps were being taken to perfect the title, and until January 3, 1925, the abstract was in the hands of one or the other of the attorneys or of Mr. Manta, agent of appellee, it being in their hands for use in connection with removing the objections to the title. On January 3, 1925, appellant George Walcis obtained possession of the abstract, giving his receipt reciting that he received it of appellee, "it being understood this abstract to be delivered when it will be needed by the said Michael E. Kozacik, Jr." At that time, he said he was purchasing a home and required the abstract for a temporary loan. The title was satisfactory to appellee early in January, 1925, and before January 5, he made several efforts to see appellant George Walcis, but did not see him. On *Page 490
January 6, appellee received a letter from appellants' lawyers to the effect that as there has been an unreasonable delay since September 15, 1924, in the completion of the option agreement, they were directed to return the $1,000 paid on August 13, 1924, and telling him to consider the matter closed.
After further correspondence, and appellants declining to close the deal, this action for specific performance followed, resulting in the foregoing findings, conclusions and judgment for specific performance in favor of appellee.
It is the law, as appellant contends, that special findings of fact should not contain mere recitals of evidence nor should they contain conclusions of law. Stalcup v. Dixon (1893), 1, 2. 136 Ind. 9, 35 N.E. 987; Johnson v. Citizens Trust Co., Rec. (1922), 78 Ind. App. 487, 136 N.E. 49;Farmers Trust Co. v. Sprowl, Admx. (1920), 72 Ind. App. 564, 126 N.E. 81. But we do not agree with appellants' contention that the special findings are objectionable because they contain either evidentiary recitals or conclusions of law. Parts of the special findings complained of are clearly statements of ultimate facts and, as such, are properly included in the findings. So much of the special findings as undertakes to determine the amount that was due from appellee to appellants is but the result of a computation based upon the preceding findings, and, as such, becomes an ultimate fact and not a conclusion of law. The case is readily distinguished, in this regard, from the case of Smith
v. Wells (1919), 72 Ind. App. 29, 122 N.E. 334, 123 N.E. 644, relied on by appellants. In Baldwin v. Heil (1900),155 Ind. 682, 58 N.E. 200, the amount due appellant had to be determined by computation, and the court found: "That the amount due Baldwin at that time with 10% interest and attorney's fees was $500." And the court said: "The *Page 491
finding complained of must be regarded as a finding of fact, and not a conclusion of law. The balance due on the notes at a given date was a fact depending upon the original amount of the notes, the rate of interest, and the sum of the payments. Whether the appellee, Daniel Heil, was liable to pay the amount found due was a conclusion of law."
Appellants next contend that whatever may be concluded concerning the deals between appellee and appellant George Walcis, it is clear that, in the absence of a finding of 3. fact sufficient to bind appellant Zuzi Walcis, a decree of specific performance may not be entered against appellant George for the reason that he cannot convey an undivided or segregated portion of his tenancy by entirety. Appellants state the law, if there were an absence of finding of fact sufficient to bind appellant Zuzi Walcis, but we do not so interpret the findings. Both the lease, with its option to purchase executed on March 24, 1923, and the agreement of August 13, 1924, which was supplementary to the original agreement, not independent thereof, and which must be construed therewith, together with a breach of the contract by appellants was sufficient to bind both of them in this action.
Appellants say that it affirmatively appears that appellee has an adequate remedy at law by a suit for damages, calling attention to the fact that appellee had entered into a 4-6. contract of sale with the Calumet Tobacco Company, and that the difference between what appellee was to pay for the property and the amount which he was to receive from his purchaser would fix the measure of damages. But there is nothing in the special findings to show upon what terms appellee had agreed to sell the property involved to the Calumet Tobacco Company. It does not appear as to whether the parties have continued to treat the contract *Page 492
as still in effect, nor that appellee had agreed to sell for a definite amount under such circumstances that his damages could be ascertained. Further, conceding that there was a valid and enforceable contract between appellee and the Calumet Tobacco Company, it does not appear by the special findings that the amount of damages suffered by the Calumet Tobacco Company, and which it would have a right to recover against appellee would be ascertainable under the facts as found. Even if such damages were ascertainable, still it is not the law that, because of such fact, resort must be had to the remedy at law rather than to equity for the enforcement of specific performance. As is stated in 36 Cyc 552: "It is as much a matter of course for courts of equity to decree a specific performance of a contract for the conveyance of real estate which is in its nature unobjectionable as it is for courts of law to give damages for its breach." To the same effect see, 25 R.C.L. 271; Clark v. Cagle (1914),141 Ga. 703, 82 S.E. 21, L.R.A. 1915A 317.
By the instrument of August 13, 1924, appellee exercised the option which he had taken along with the lease executed on March 24, 1923, it being provided in such instrument that final 7-9. payment should be made when the title was found merchantable and a warranty deed delivered, with a further provision that if the title to the property was merchantable, the deal should be completed on or before Sept. 15, 1924. But, as appears by the findings, the title was found not to be merchantable so that the deal could be closed on September 15, 1924, and it appears that appellee, in order to complete the deal, not only with appellants, but with the Calumet Tobacco Company as well, through the direction of the attorneys of the Calumet company, took divers steps by way of completing the title and making it merchantable and, to this end, had repeated *Page 493
conferences with appellant George Walcis. Under such circumstances, it cannot be said that time was of the essence of contract. Clearly, it was contemplated that if the title was not merchantable, a reasonable time after September 15 would be allowed to make it so. Both parties acted upon this construction of the contract, meeting from time to time as aforesaid and discussing the merchantability of the title. This fact, taken along with the fact that appellee's lease did not expire until March 31, 1926, and that he had all of the time covered by his lease within which to exercise his option, we have to say that there was no unreasonable delay that justified a forfeiture of appellee's right to exercise his option and complete the purchase of the property. Appellants having refused to perform their contract, there was no necessity of a tender of the amount due them after such refusal. Other questions are presented by appellants, but we regard them as insubstantial, and we do not discuss them. The court did not err in its conclusions of law.
The judgment is affirmed.
Dausman, J., absent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426968/ | Suit by appellee against appellant and others, not parties on appeal, to quiet title to certain real estate located in the city of Elkhart. Appellant sought by answer and cross-complaint to establish certain liens based upon tax sale certificates issued to it for delinquent street paving and sewer assessments.
On the trial of the cause, the court, at the request of appellant, found the facts specially. Briefly stated, the facts found are as follows: On May 27, 1919, the city of Elkhart, through its proper officers, let a contract for the paving of Edwardsburg avenue, a street of the city abutting the real estate in controversy; the assessment levied against the lot for the improvement not having been paid when due, the lot was, on July 19, 1924, sold to appellant to satisfy the assessment lien, appellant receiving a tax-sale certificate; likewise, on April 14, 1922, the city of Elkhart let a contract for the construction of a sewer in Michigan street, another street abutting on the lot in question; the sewer was constructed and an assessment levied against the lot for that improvement; the assessment having become delinquent, the lot was, on April 3, 1923, sold to Frank J. Miller, who was also given a tax-sale certificate which he assigned to appellant; thereafter, the general taxes levied against the real estate for the years 1922 and 1923 not having been paid when due, the lot was, on February 11, 1924, sold *Page 572
to satisfy such taxes, the sale being made to Wilbur F. Hughes, appellee herein, to whom was issued a tax-sale certificate; there was no redemption from this tax sale, and on June 21, 1926, the county auditor executed and delivered to appellee a tax deed for the lot; on July 12, 1924, the owner of the record title to the real estate conveyed to appellee by quitclaim deed any interest he might have had therein; that neither the assessments for improvements nor the taxes for which the real estate was sold at the tax sale were at any time paid other than by the sale of the real estate at the tax sales; and that each of the tax sales and all of the proceedings prior thereto were held and conducted in accordance with the laws of the state of Indiana then in force.
The court stated its conclusions of law to the effect that the law was with appellee on the issues formed by the complaint and answers thereto, and against appellant on his cross-complaint; that appellee was entitled to have his title quieted, and rendered judgment accordingly.
The one question presented by this appeal is: Did the tax deed executed and delivered to appellee by the county auditor vest in him the title to the real estate free of any claim of appellant as holder of the tax-sale certificates previously issued upon sale of the real estate for delinquent street and sewer assessments?
Section 283 of the Tax Act of 1919 (Acts 1919 p. 198, § 14325 Burns 1926) provides:
"If no person shall redeem the lands sold for taxes within two years from the date, at the expiration thereof and on production of the certificate of purchase, . . . the auditor of the county in which the sale of such lands took place shall execute to the purchaser, his heirs or assigns, in the name of the state, a conveyance of the real estate so sold, which shall vest in the grantee an absolute estate in fee simple, subject, however, to all the claims *Page 573
which the state may have thereon for taxes or liens or incumbrances."
It is the earnest contention of appellant that his claims, as owner of the tax-sale certificates issued upon sale of the real estate to satisfy the delinquent street and sewer assessments, are "liens and incumbrances in favor of the state," within the meaning of the above statute, and that appellee's tax title is subject thereto. We do not concur in that view. If it could be said that the street and sewer assessments levied by the city of Elkhart are liens in favor of the state, a question we do not decide, it does not follow that the tax certificates are such liens.
The court found specially that the tax sales instituted to collect the delinquent assessments were in all things in accordance with the law; if so, the sales were valid, and 1. the lien in each case was satisfied. Burkhart v. Millikan (1921), 76 Ind. App. 480, 130 N.E. 837. Appellant became the owner, not of the liens, but of the tax-sale certificates which, when issued, evidenced the sum paid by appellant, or the sum to be returned to him if the real estate should be redeemed; if there was no redemption, then each certificate carried with it the right to a tax deed and the right to redeem from the sale of the real estate to satisfy delinquent general taxes. If the tax sales had not been conducted in accordance with the law, then the assessment liens would, of course, have remained unsatisfied. See Dixon v. Thompson
(1912), 52 Ind. App. 560, 98 N.E. 738. As authority to the contrary, appellant cites City of Indianapolis v. City BondCo. (1908), 42 Ind. App. 470, 84 N.E. 20. In that case, the city of Indianapolis, the immediate grantee of Carrie H. Latta, did not plead the tax deed as a defense to the City Bond Company's cross-complaint for foreclosure of the improvement lien; that being true, it necessarily follows that what the court *Page 574
said as to the assessment lien not being extinguished by the tax deed, and that the statute which declares that a tax deed shall vest in the grantee an absolute estate in fee simple, "defines the quality of the estate and does not release it from valid incumbrances," is mere dictum. Moreover, this statement of the court does not meet our approval.
We hold that the tax-sale certificates issued upon the sales of the real estate for delinquent street and sewer assessments were not liens and incumbrances in favor of the state, and that 2. the court did not err in its conclusions of law.
Affirmed.
Dausman, J., absent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426837/ | This is an original action asking us in effect to mandate the respondent to strike out, vacate and expunge from the record each and every ruling and order, including decree of divorce, judgment for alimony, and order to pay money for support of children, entered in an action for divorce brought by relator's wife against him.
Relator's wife filed her action for divorce against relator in the Vanderburgh Probate Court, summons was issued and served upon the relator as defendant in the divorce proceeding, appearance was entered by relator's attorney, the venue of the action was changed to the Gibson Circuit Court on the application of relator, the case was set for trial, but on the appointed day neither the relator nor his attorney appeared. The prosecuting attorney appeared for the State, trial was had and decree of divorce was entered, together with alimony judgment, and order was made that relator pay for the support of children and a stipulated sum as fee for his wife's attorney. This was done on March 6, 1947, and on April 15, 1947, relator filed in the Gibson Circuit Court his petition to strike, vacate and expunge from the record all the proceedings, orders and judgment theretofore entered in said case and to dismiss same. This motion was overruled by respondent Judge on May 20, 1947, and this original action was thereupon filed in this court.
At the time the original complaint was filed in the divorce proceeding there was also filed by plaintiff her affidavit of residence and occupation required by statute. The sufficiency of this affidavit is not questioned. The complaint itself, however, does not allege any residence *Page 285
of the plaintiff, and it is relator's contention that the respondent court was without jurisdiction in the divorce action for the sole reason that the petition for divorce did not allege the period of residence required by statute to entitle plaintiff to a divorce.
Section 3-1203, Burns' 1946 Replacement provides that divorces may be decreed on petition by any person who at the time of filing such petition is and shall have been a bona fide
resident of the State for one year previous to such filing and abona fide resident of the county at the time of and for at least six months immediately preceding such filing, and the statute provides that these facts of residence shall be proven by petitioner to the satisfaction of the court by at least two resident householders of the State. The same statute provides that the person shall file with his petition an affidavit sworn to by himself, in which he shall state the length of time he has been a resident of the State and particularly the place in which he has resided for the year last past.
It will be observed that the first part of the statute stipulates residence requirements which shall be proved at the trial, and the second sentence provides that an affidavit 1. of residence shall be filed with the clerk of the court when the divorce action is commenced. There is no statutory requirement that the facts of residence shall be pleaded, although, of course, these facts should be averred in the complaint. Miller v. Miller (1914), 55 Ind. App. 644, 648, 104 N.E. 588; Powell v. Powell (1876), 53 Ind. 513, 516. Good pleading would require it even though the statute does not make such averments in the complaint mandatory, as it does proof of such facts by two householders and the affidavit of residence.
Beginning with the case of Smith v. Smith (1916),185 Ind. 75, 113 N.E. 296, it was held by this court *Page 286
that a good affidavit of residence is jurisdictional in 2-4. divorce actions, and that without such affidavit, the court is without authority to entertain such proceedings. However, in the case of Klepfer v. Klepfer (1933),204 Ind. 301, 304, 173 N.E. 232, 183 N.E. 797, the doctrine of Smith v.Smith with reference to the jurisdictional necessity of a good affidavit of residence was repudiated and that case and those cases following it were in substance and effect overruled in that respect. The rule now is that while the filing of affidavit of residence in an action for divorce is mandatory and failure to file such is grounds for reversal, it is no longer held that in the absence of a good affidavit of residence the court is without jurisdiction. Klepfer v. Klepfer, supra; Moss v. Moss
(1935), 209 Ind. 12, 15, 197 N.E. 894; Evans v. Evans (1939),107 Ind. App. 127, 23 N.E.2d 270; Kleppe v. Kleppe (1937),103 Ind. App. 405, 408, 8 N.E.2d 93. If the mandatory language of the statute with reference to affidavit of residence does not make the filing of such affidavit jurisdictional, then certainly the language of the statute simply stipulating residence requirements does not make the pleading of such facts of residence jurisdictional. It is true that a person is not entitled to a divorce in Indiana unless he be a resident of Indiana for the period named in the statute and without such allegations the complaint would not be good against demurrer, but failing to demur the insufficiency could be cured by the evidence. There is no allegation in the petition for mandate that there was no evidence at the trial of the divorce case of the necessary residence in the manner required by statute, or that in fact the plaintiff in the divorce action had not been a resident of Indiana for the period prescribed by the statute, and in absence of such allegation we may indulge the presumption *Page 287
that there was such evidence. Evans v. Evans, supra, at page 133.
Relator cites the case of Hetherington v. Hetherington
(1928), 200 Ind. 56, 160 N.E. 345. In that case it is stated that, "A petition for a divorce stating one or more of the statutory grounds therefor, without a showing of residence in compliance with the statute (Sec. 1097 Burns' 1926) is insufficient to give the court jurisdiction of the subject matter of the action." In that case, however, the question involved was the affidavit of residence and not the contents of the complaint, and all of the cases cited to support the quoted language were cases which involved only the affidavit of residence and none of which involved the sufficiency of the complaint or the failure of the complaint to contain allegations of residence. It is obvious from the context that the court did not intend to hold, and did not hold, that a petition for divorce must contain allegations of residence in order for the court to have jurisdiction where a proper affidavit of residence as required by the statute has been filed.
We hold in the case before us that the failure of the plaintiff in the divorce case to allege in her complaint the statutory facts of residence did not deprive the court of jurisdiction. Such failure would have made the complaint insufficient on demurrer, and if there had been no proof of such residence, such failure could have been presented by a motion for a new trial and when brought to this court upon appeal would have been grounds for reversal.
Mandate denied.
NOTE. — Reported in 73 N.E.2d 767. *Page 288 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426839/ | This is an action brought by the appellees against the appellant for specific performance of a contract for the purchase of real estate. There was a finding and judgment of the court for the appellee, Robert Kirkley, and against the appellee, Ira Kirkley, and against the appellant. Judgment was rendered on the finding of the court providing that appellee, Robert Kirkley, should pay to the Clerk of the Court the sum of $415 on or before fifteen days from the date of the judgment, and that the appellant was ordered by the court to execute to the appellee, Robert Kirkley, as grantee, a good and sufficient warranty deed for the real estate described in the complaint. A commissioner was appointed to convey said real estate to the appellee, Robert Kirkley, on the failure of the appellant to comply with the judgment to execute a deed for said real estate to appellee.
The appellant filed a motion for a new trial which was overruled and this appeal followed.
The single error assigned for reversal is that the court erred in overruling appellant's motion for a new trial. Appellant's motion for a new trial was based on the ground that the decision and finding of the court is not sustained by sufficient evidence and is contrary to law.
In support of his motion for a new trial, the appellant contends that the appellees failed to comply with the terms of the contract for the sale of real estate in that they failed to make a proper tender of money due under said contract and failed to comply *Page 613
with the provisions of the contract with reference to the payment of taxes.
The written contract between appellant and appellees, which was rather loosely drawn, provided that the appellees were to have possession of the property in question. In addition to the 1. requirement for the payment of $15 per month rent, the agreement provided that the appellees were to make monthly payments on the purchase price of the property in so large an amount as they could make. The agreement recited that the purchase price of the property was $500, but upon the back side of the contract was a notation indicating that the purchase price was $1250. This conflict in the evidence was resolved in favor of appellee to the effect that the purchase price was $500, and we cannot, on this appeal, set aside such determination of the amount of the purchase price by the trial court. By the terms of the contract, the buyer agreed to keep the taxes and insurance paid up during the life of the agreement.
There was evidence in the record from which the court could have properly found that the appellee, Robert Kirkley, prior to the filing of his complaint, in the presence of one Frank Gentry, a Justice of the Peace, and one Floyd Hall, made a cash tender to the appellant in the amount of $370 which was the balance due on purchase payments under the agreement as found by the court, and a $45 cashier's check for the rent due under said contract.
The complaint of appellees alleged that they are still ready and willing to pay the purchase money and now bring the same into court for the use of the appellant. The appellee, Robert Kirkley, testified at the trial that he was "ready right now to pay the balance due for rent and the purchase price of the real estate." *Page 614
In his briefs, the appellant asserts that the finding and judgment of the court should have been for the appellant, in that although the complaint alleges there was a payment of money due into court, the evidence does not show such payment. Appellant asserts the doctrine of strict legal tender that it was necessary for appellee, in order to keep his tender good, to pay such money into court for the use and benefit of appellant, and that bringing the money into court for a party's use is not sufficient.
There is a clear distinction between the doctrine of strict legal tender which requires that in order to keep a tender good, the money must be paid into court for the use and benefit of the party entitled to such tender, as set forth in the cases cited by appellant. Phoenix Ins. Co. v. Overman (1899),21 Ind. App. 516, 52 N.E. 771; State Life Ins. Co. v. Pletcher (1922),78 Ind. App. 128, 134 N.E. 876; Sofnas v. John Hancock Mut. LifeIns. Co. (1939), 107 Ind. App. 539, 21 N.E.2d 425, and the rule relating to equitable tender which is required in an action for specific performance.
The appellee prior to the bringing of his suit made a valid cash tender of the balance due on the purchase price. He alleged in his complaint a readiness and willingness to pay the 2. balance of such purchase money, and that he brought the same into court for the use of appellee. He testified at the trial that he was "ready right now" to pay the balance due for rent and the purchase price of the real estate. Such tender was clearly valid as an equitable tender, and it is sufficient under such circumstances if the money is paid into court when it is so ordered by the court. In the instant case, the court has ordered the payment of this sum into court within 15 days. In compliance with this order, the appellee would be entitled *Page 615
in law and equity to his deed. Fall v. Hazelrigg (1874),45 Ind. 576; Bowen v. Gerhold (1903), 32 Ind. App. 614, 70 N.E. 546; 52 Am. Jur., Tender, § 32, p. 237.
The appellant further urges that appellee is not entitled to specific performance of his contract on the ground that he has not complied with the terms of such contract as to the payment of taxes. The appellant testified that he paid the taxes after the time had expired to pay taxes, but the tax receipts were not in evidence, nor was there any indication in the record of the amount of taxes paid by appellant. The appellee testified that he had gone to pay the taxes at the County Treasurer's office in Daviess County and had the money with him to pay the taxes, but discovered that they were already paid.
The appellant vendor at the time of the tender of the balance due him on the contract made the statement that he would not sign the deed, that the property was worth $1,250 and that he could get that for it, and he stated he figured the buyer owed him $1,100 at the time this tender was made. The court found that the total purchase price was $500, on the basis of the specific statement of such sum as the purchase price on the face of the contract.
If a vendor objects to a tender at the time it is made on a specific ground, he waives possible objections to it on other grounds. Cape Fear Lumber Co. v. Small (1910), 84 S.C. 3. 434, 66 S.E. 880; Kastens v. Ruland (1923), 94 N.J. Eq. 451, 120 A. 21; Jaeger v. Shea (1917), 130 Md. 1,99 A. 954; Boston, etc., Ry. Co. v. Rose (1907),194 Mass. 142, 80 N.E. 498; Rankin v. Rankin (1905), 216 Ill. 132, 74 N.E. 763; Monson v. Bragdon (1895), 159 Ill. 61, 42 N.E. 383. *Page 616
In the case at bar the objections which were made to the tender, as shown from the testimony at the time it was made and the objections made by the appellant at the time of the 4. trial, show that he refused to accept this tender because of an alleged discrepancy which he claimed to be the balance due for principal on the contract. Therefore, by reason of the fact that the appellant stated his specific objections to the tender and such objections did not include any claim for alleged unpaid taxes, he waived his objections to such tender on such grounds. The lower court therefore properly found for the appellee on this issue of the case.
The decision and finding of the court was sustained by sufficient evidence, and was not contrary to law. We find no reversible error, and the judgment is, therefore, affirmed.
NOTE. — Reported in 82 N.E.2d 530. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3209534/ | Motion DENIED and Order filed June 3, 2016.
In The
Fourteenth Court of Appeals
____________
NO. 14-16-00433-CV
____________
IN RE JOYCE M. HUTCHERSON, RUDOLPH J. PUSOK AND JIMMIE R.
PUSOK, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1059926
ORDER
On May 31, 2016, relators Joyce M. Hutcherson, Rudolph J. Pusok and
Jimmie R. Pusok, filed a petition for writ of mandamus in this court. Relators ask
this court to order the Honorable Roberta Lloyd, Judge of the County Civil Court at
Law No. 4, in Harris County, Texas, to vacate her order dated April 25, 2016, entered
1
in trial court number 1059926, styled Harris County v. Joyce M. Hutcherson, et. al.
denying relators’ motion to enforce a Rule 11 scheduling agreement. Relators
requested the trial court to strike the “Second Amended Original Petition in
Condemnation” filed on March 25, 2016, as untimely under the agreement. Relators
claim the respondent abused her discretion by issuing this order and not striking the
amended petition.
The court requests Harris County, the real party-in-interest, to file a response
to the petition for writ of mandamus on or before June 17, 2016. See Tex. R. App.
P. 52.4.
Relators’ petition for writ of mandamus also includes a motion for temporary
relief in which relators ask this court to stay proceedings in the trial court pending a
decision on the petition. See Tex. R. App. P. 52.8(b), 52.10. We DENY relators’
motion because relators have not shown that they sought a stay of the summary
judgment proceeding or any other proceeding from the trial court and that the trial
court denied such relief.
PER CURIAM
Panel consists of Chief Justice Frost and Justices McCally and Brown.
2 | 01-03-2023 | 06-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426841/ | The appellee, Warrior Petroleum Company, Inc., was incorporated in 1937, and at no time since its incorporation has it had a sufficient number of employees to bring it within the Unemployment Compensation Law, ch. 125, Acts of 1937, p. 705. On March 1, 1938, practically all of the stock in the said corporation was acquired by J.E. Fehsenfeld, Sr., the majority stockholder and president of the Crystal Flash Petroleum Corporation. Both corporations were organized to deal, generally, in petroleum products. After the purchase of said stock the said Fehsenfeld and his wife served as officers and as directors of the two corporations, constituting a majority of the board of directors of each corporation. In February of 1940, said Fehsenfeld acquired, for himself and his wife, all except eight shares of the remaining capital stock of the Crystal Flash Petroleum Corporation and thereafter his wife did not serve on the board of directors of said corporation.
There was testimony to the effect that the appellee corporation and the Crystal Flash Petroleum Corporation were never operated jointly or as one unit, but "were two entirely separate operations"; that appellee was engaged in marketing petroleum solvents; that no petroleum solvents were handled by the Crystal Flash Petroleum Corporation; that the business of each corporation was at a different address; that each company "did its own purchasing direct from the producers"; that there were no more transactions between the companies *Page 182
than there would be between competitive companies; that each corporation was managed separately and had separate meetings of its stockholders and board of directors; that there was no interchange of employees between the corporations; and that Fred Wright and D.B. McFarland had the active management of the business of the appellee and neither of these men had anything to do with the active management of the Crystal Flash Petroleum Corporation.
On the theory that the two corporations were "owned or controlled" by the same interests, within the meaning of § 2 (g) (4) of the Unemployment Compensation Act, ch. 125, Acts of 1937, p. 705, the appellee was required to pay and did pay, under protest, contributions, pursuant to the provisions of said Act, for the years 1938, 1939 and to June 30, 1940. This was an action brought by the appellee under § 52-1514 (b) (9), Burns' 1933 (Supp.), § 10168-61 (4), Baldwin's Supp. 1937, to recover the payments so made.
This action involves the interpretation of paragraph (g) (4) of § 2 of the Acts of 1937, supra, which reads as follows:
"Any employing unit which together with one or more other employing units, is owned or controlled (by legally enforcible means or otherwise) directly or indirectly by the same interests, or which owns or controls one or more other employing units (by legally enforcible means or otherwise), and which, if treated as a single unit with such other employing units or interests, or both, would be an employer under paragraph (1) of this subsection;".
This particular provision of the Unemployment Compensation Law, as amended in 1939, ch. 121, Acts of 1939, p. 585, was interpreted by this court in Benner-Coryell Lumber Co. v. Ind.U.C. Board (1940), *Page 183 218 Ind. 20, 31, 29 N.E.2d 776. In that case we held that "control of a corporation must be regarded as something more than that remote control that arises out of the fact that a majority of the holders of its voting stock may dictate who its directors shall be." We were there considering the case of two lumber companies, each engaged in the retail lumber business, located in different counties, with a majority of the stock of each company owned by the same individual. The facts there were recited in an answer filed by the Unemployment Compensation Board. A demurrer to the answer was sustained and the question was presented to us on the ruling on said demurrer. We there indicated that if such a definition of employer was to be interpreted to include two employing units, whose control by the same interests was shown only by the fact that the majority of their voting stock was owned by the same interests, the provision would be unconstitutional as being a bad classification. Both before and since that opinion was written similar provisions of the unemployment compensation laws of other states have been considered by other courts which have arrived at different interpretations of such provisions. None of such cases presented exactly the same facts.
The most recent decision which has come to our attention on this question is Kellogg et al. v. Murphy et al. (1942), 349 Mo. 1165, 1178, 164 S.W.2d 285. The court there was considering an unincorporated general printing business conducted under the name Kellogg-Baxter Printing Co., which business was owned and operated by an individual in the same establishment in which a corporation, seventy per cent of the capital stock of which was owned by the same individual, was engaged in the business of composing, publishing and circulating a weekly society newspaper. The publishing *Page 184
company owned no printing machinery and its newspaper was printed on the presses of the Printing Company under a contract and for pay.
That case arose on a review by the Circuit Court of the decision of the Missouri Unemployment Commission awarding benefits to an employee of the publishing company. The court, after reviewing and distinguishing many of the cases which had interpreted similar affiliate clauses said: "There can be no doubt that the ultimate criterion under subsection (h) 1, 4 (affiliate clause), is substantial unification of two or more businesses by actual joint control."
While most of the cases on the question of the interpretation of such affiliate clauses have decided, under the particular facts involved, that the employing units being considered did constitute a single "employer" within the meaning of the act, we find that in most of the cases so holding there was evidence of substantial unification under actual joint control such as having the businesses conducted on the same premises and from the same office or the intermingling of employees and the gratuitous exchange of services, and in some of the cases there was evidence tending to show attempted evasion of the law. All of the cases recognize that the purpose of such a clause is to prevent circumvention of the law by dividing a business having the required number of employees into smaller units each having less than the required number.
In Kellogg v. Murphy, supra, the commission was contending that the two employing units need have nothing in common except the fact that they were either owned or controlled by the same individual or interest. The Missouri court refused to approve such a broad and unrestricted formula but agreed that proof of majority ownership or control of two separate businesses *Page 185
would sometimes be sufficient to support an inference of unified control, depending upon the history, location and nature of the two businesses. The court held that the two businesses there being considered did constitute a single unit under the provisions of the affiliate clause, but the court pointed out that it was reviewing a finding of the Unemployment Commission and that under the statute of that state the Commission's findings of fact were binding upon the court when supported by competent evidence. § 9432 (i), R.S. 1939, Missouri R.S.A. § 9432 (i).
In the instant case the question is presented to us on the sufficiency of the evidence to sustain the decision of the trial court. We agree that in order for two businesses to 1-3. constitute one employing unit under the terms of the affiliate clause of our Unemployment Compensation Law, there must be substantial unification of two businesses resulting from actual joint control. In the instant case the trial court, expressly given original jurisdiction to try the action by § 52-1514 (b) (9), Burns' 1933 (Supp.), found that the two businesses here involved did not constitute a single employer within the meaning of said Act. In view of the evidence, we cannot say, as a matter of law, that the two businesses were "owned or controlled" by the same interests within the meaning of the affiliate clause. It is true that one individual owned a majority of the stock in each corporation. It is also true that during most of the time involved he and other members of his family constituted a majority of the board of directors of each of the corporations. On the other hand it is also true that these two corporations were organized separately and there was no intimation of attempted tax evasion by the method of operation. There was evidence that while the appellee company was engaged *Page 186
in marketing petroleum solvents the other company did not and could not, with its facilities, handle petroleum solvents; that the two businesses were located at different addresses and operated independently, the appellee company being managed by two men who had no connection with the Crystal Flash Petroleum Corporation; that each company did its own purchasing directly from the producers; and that there was no interchange of employees between the two companies. There was also evidence that for approximately all of the time in question the actions and authority of the said J.E. Fehsenfeld, Sr., in the Crystal Flash Petroleum Corporation were being contested by a stockholder owning almost as many shares of the stock as were owned by Fehsenfeld. Considering the evidence most favorable to the appellee and all reasonable inferences which might be drawn therefrom, we cannot say that the decision of the trial court was not supported by sufficient evidence or that it was contrary to law.
The judgment is affirmed.
NOTE. — Reported in 46 N.E.2d 827. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426855/ | Appellant filed his complaint herein against the City of Lawrenceburg, Indiana, to collect salary alleged to be due him, totaling $600.00, under the Acts of 1931, ch. 161, p. 404. To this complaint appellee answered in general denial. Trial was had and the court found for appellee and entered judgment that appellant take nothing by his complaint and appellee recover costs. Appellant's motion for new trial containing the grounds that the decision of the court was not sustained by sufficient evidence and was contrary to law was overruled and this appeal followed, the error assigned being the overruling of the motion for new trial.
All the evidence herein was stipulated with leave retained to introduce further evidence but none was introduced upon trial and the pertinent facts are as follows: Appellant was duly elected as County Treasurer of Dearborn County, Indiana, and thereafter qualified for such office and entered upon the duties thereof on the first day of January, 1931, and ever since has been and still is the duly elected, qualified and acting county treasurer thereof. That the city of Lawrenceburg is a municipal corporation of the fifth class duly organized and existing under and by virtue of the laws of the State of Indiana. That appellant, by virtue of his said office, and pursuant to the duties thereof, received the tax duplicates from Bruce McLeaster as County Auditor of said county, and which said duplicate when so received by said Treasurer showed the amount of city taxes due the said city from each individual taxpayer in said city, and which said tax duplicates had been so prepared by McLeaster as county auditor during the year 1930 for the collection of tax payable in 1931; that thereafter during said year this appellant collected said taxes for said city as shown by said tax duplicates, and deposited said tax collections with other *Page 705
monies in public depositories as by law required; that he performed the same services during the years 1931, 1932, 1933 and 1934 to date hereof; that on November 23, 1933, he presented and filed with the common council of the city of Lawrenceburg his verified claim for salary, wherein he claimed from said city the sum of $600.00 as and for salary for the collection of said city taxes as treasurer of said county for the year 1931 and 1932; that thereafter said city council wholly rejected said claim and refused and still refuses to pay any part thereof; that said city has paid nothing whatever to appellant by reason of the acts and services performed by him as such county treasurer since the appellant herein became such.
The same question presented here is presented in the case ofBruce McLeaster v. Lawrenceburg (1938), ante 572, 12 N.E.2d 389, and on authority of that case the judgment herein is reversed with instructions to grant appellant's motion for a new trial.
Bridwell, J., Wood, J., and Dudine, P.J., concur in result.
*Page 1 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426867/ | Relator filed his amended complaint in two paragraphs in the court below.
In paragraph I he avers in substance as follows: That he was born May 10, 1880. That he accepted the *Page 193
provisions and privileges of Chapter 256 of the Acts of the General Assembly of Indiana 1921, known as the Indiana State Teachers' Retirement Fund Law, on July 1, 1927; and thereafter accepted the provisions of: Chapter 328, Acts of 1945, December 26, 1946; Chapter 353, Acts of 1947, June 21, 1948; Chapter 130, Acts of 1949, June 10, 1949.
That he entered into a teaching contract with the Board of School Commissioners of the City of Indianapolis September 1, 1916, and has taught school under teaching contracts for the School City of Indianapolis continuously since, to and including the school year 1948-1949. That as a part of such continuous service he taught for five years immediately prior to the passage of Chapter 97, Acts of 1927, and immediately thereafter, entered into contract for further teaching service with such board, and thereby became a permanent teacher, vested with an indefinite contract and right to a definite contract. That such indefinite contract never has been cancelled, and is now in full force and effect.
That the indefinite contract is evidenced by annual written contracts, all within the knowledge of defendants. A copy of the annual written contract for the year 1948-1949 is attached marked "Exhibit A."
That no attempt has been made by defendants to cancel relator's indefinite contract. That on May 25, 1949, a written notice of termination of employment was mailed to relator by Virgil Stinebaugh, Superintendent of Schools of Indianapolis, a copy of which is attached and marked "Exhibit B."
Relator has demanded a definite contract and teaching contract for the school year 1949-1950. That ever since May 1, 1949 and now relator is ready, willing, able, properly licensed and in all ways qualified to teach, to receive a contract and an assignment for a teaching *Page 194
position and has offered his services to the time of filing this complaint. That defendants have failed, refused and neglected to give relator a contract and assignment to teach in the School City of Indianapolis for the school year 1949-1950. That relator's compensation for the year 1949-1950 under the salary schedule adopted would be $4800 and relator has been damaged by reason of the facts alleged in the sum of $6,000.
Prayer that a mandate issue commanding defendants to enter into a definite contract with relator to teach in the School City of Indianapolis for the school year 1949-1950, or in lieu thereof that relator recover damages in the sum of $6000 and all other proper relief.
In paragraph II of complaint relator makes similar averments as in paragraph I except he does not claim that he now has an indefinite contract with defendants that is now in full force and effect. On the contrary he avers that he entered into a written contract with the defendants to teach in the public schools of the City of Indianapolis for the school year 1948-1949, ending June 30, 1949, for an agreed sum, and that said contract was duly performed by each of the parties. A copy of the contract is attached marked "Exhibit A." That by virtue of his contract with defendants for the school year 1948-1949 and its performance relator became a teacher in the public schools of the city and entitled to all the rights and privileges granted to a public school teacher not possessing the rights of permanent teacher as defined in Chapter 97 of the Acts of 1927 and acts amendatory thereof. That relator was not notified by the School City of Indianapolis on or before May 1, 1949, in writing delivered in person or mailed to him at his last and usual known address by registered mail, that his contract would not be renewed for the succeeding year. That *Page 195
relator did not deliver or mail by registered mail to the Board of School Commissioners of the City of Indianapolis his written resignation as a teacher in the schools of the School City of Indianapolis; nor was relator's contract for the school year 1948-1949 superseded by another contract between the parties.
That relator is entitled to have his 1948-1949 contract to teach renewed and continued in full force and effect for the school year 1949-1950 on the same terms and for the same wages plus any increase as provided by Chapter 101 of the Acts of 1907, and acts amendatory thereof, known as the Teachers' Minimum Wage Law, plus any increase due as provided by any salary schedule adopted by the School City of Indianapolis, effective for the school year 1949-1950.
Relator then avers his qualification and willingness to teach, the refusal of defendants to give him a contract to do so; that his compensation as a teacher under the salary schedule as adopted for the school year 1949-1950 is $4800, and he is injured in sum of $6000 by reason of defendants' refusal to give him a teaching contract for such year.
Prayer for mandate against defendants commanding them to enter into a definite contract with relator for school year 1949-1950 or in lieu thereof that he recover damages of $6000 and all proper relief.
A general demurrer filed to the first paragraph of amended complaint was sustained. Relator elected to stand thereon, refused to plead further, and judgment was rendered against him.
For the alleged error in sustaining this demurrer, appellee files cross-error herein.
A general demurrer filed to the second paragraph of amended complaint was overruled, defendants refused to plead further, elected to stand on their demurrer, *Page 196
and judgment was rendered against them thereon. From this judgment the appeal is taken.
By the assignment of cross-error we are required to determine the sufficiency of paragraph I of the amended complaint and by the appeal we are required to determine the sufficiency of paragraph II of the amended complaint.
With respect to the first paragraph of amended complaint it will be noted that relator became a permanent teacher with an indefinite contract of appellant school corporation upon the execution of his teacher contract for the school year 1927-1928 agreeable with § 1, ch. 97, Acts of 1927, page 259 (Section 28-4307, Burns' 1948 Replacement without the 1933 amendment contained therein). In 1933 Sec. 1 was amended so far as applicable to this case thus:
". . . Such an indefinite contract shall remain in force until such permanent teacher shall have reached the age of sixty-six years unless succeeded by a new contract signed by both parties or unless it shall be cancelled as provided in section 2 of this act. . . ." Acts of 1933, Ch. 116, § 1, p. 716.
By Section 2 of the Act, (§ 28-4308, Burns' 1948 Replacement) the school corporation may cancel the indefinite contract, after notice and hearing, for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teaching positions or other good and just cause, but may not cancel it for political or personal reasons. Under this statute, if the teacher should become incapacitated by reason of old age, sickness in body or mind, or for any other good and just cause the school corporation may cancel the indefinite contract. No question is presented as to a cancellation of the contract under Section 2 of the Act, there being no such cancellation. *Page 197
It is contended that the 1933 amendment above noted does not apply to relator's status as a permanent teacher with an indefinite contract which became effective with the execution of his definite written contract with appellant to teach for the school year 1927-1928.
Among the powers denied to states are the following:
"[1] No state shall . . . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility." (Our italics). U.S. Constitution, Art. 1, § 10.
Art. 1, § 24 of the Indiana Constitution provides:
"No ex post facto law, or law impairing the obligation of contracts, shall ever be passed." (Our italics).
The obligations of a valid contract are protected by both the State and Federal Constitutions. Heath v. Fennig (1942), 219 Ind. 629, 632, 40 N.E.2d 329; State ex rel. Cunningham v. 1. Helms et al. (1893), 136 Ind. 122, 133, 35 N.E. 893, and cases cited; Edward v. Jagers et al. (1862),19 Ind. 407, 413; Johnson v. The Board of Commissioners of RandolphCounty (1894), 140 Ind. 152, 157, 39 N.E. 311.
"If a contract is valid when executed, which contemplates the lapse of several years before all its terms are carried out, it must be held to remain valid and enforceable to the end, under the laws in force at the time of its execution, no matter what changes the law has undergone in the lifetime of the contract." Security Savings, etc. Assn. v. Elbert
(1899), 153 Ind. 198, 204, 54 N.E. 753; State ex rel. Cunningham v. Helms et al. (1893), 136 Ind. 122, 133, 35 N.E. 893, supra; Bowlby v. Kline
(1902), 28 Ind. App. 659, 662, 63 N.E. 723. *Page 198
There can be no question that in Indiana the status of permanent teacher with an indefinite contract is based wholly upon contract and when this status was created by a contract 2. under Section 1, Ch. 97, page 259, Acts of 1927, as in the instant case, it cannot be impaired by future legislation except in a proper exercise of the police power of the state. This is conceded by the parties, and appellants insist that that part of the amendment of 1933, heretofore copied in this opinion is but a valid exercise of the police power of the state and that it applies to permanent teachers with indefinite contracts whose rights became established prior to the enactment of the statute. This requires that we determine whether the amendment noted is an exercise of police power by the state, or merely a limitation on the power to contract in futuro. If the former it will apply to relator's rights as a permanent teacher with an indefinite contract; if the latter it will not apply.
We recognize the impossibility of fully defining the police powers of a state. 11 Am. Jur., Constitutional Law, § 246, p. 970; 16 C.J.S., Constitutional Law, § 175, Cl. b, p. 541; 12 3. C.J., Constitutional Law, § 416, p. 908. Reasonable limits of this power have been stated thus:
"Police power is the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society. As applied to the powers of the states of the American Union, the term is also used to denote those inherent governmental powers, which, under the federal system established by the constitution of the United States, are reserved to the several states." 16 C.J.S., Constitutional Law, § 174, p. 537. *Page 199
We adopt the above statement as a reasonable rule by which to test the involved 1933 amendment to the Indiana Permanent Teachers Law of 1927 with respect to those teachers whose permanent status became fixed under the 1927 statute.
Does the involved amendment have a tendency to promote either the order, safety, health, morals or general welfare of society? Appellant does not contend that it promotes the order, 4. safety, morals or health of society, but that it does promote its general welfare. The reason for this contention as given by appellant is that "the termination of indefinite contracts at age 66 has a reasonable basis in that reasonable men may conclude that teachers past that age are, as a group, less well qualified to teach in the public schools than are younger teachers." This is a true statement of the law applicable when considering the reasonableness of a classification for the purpose of legislation. State v. Griffin (1948),226 Ind. 279, 79 N.E.2d 537, 541, and authorities there cited. But that question is not before us in this case. The only question before us is, does the involved amendment as an exercise of the police power of the state promote public order, safety, health, morals or the general welfare so that it may affect and impair a contract that became effective nearly six years before the amendment was enacted? A careful examination of the amendment fails to disclose that it has any relation to promoting public order, safety, health, morals or the general welfare so as to make it a permissible exercise of the police power by the state. Our courts have consistently held that the methods or means used to protect public order, health, morals, safety or welfare must have some reasonable relation to the end in view. Kirtley v.State (1949), *Page 200 227 Ind. 175, 84 N.E.2d 712, 715; Weisenberger v. State (1931),202 Ind. 424, 428, 429, 175 N.E. 238; Blue v. Beach et al.
(1900), 155 Ind. 121, 131, 56 N.E. 89, 93, 50 L.R.A. 64, 80 Am. St. Rep. 195; State Board of Barber Examiners v. Cloud
(1942), 220 Ind. 552, 562, et seq., 44 N.E.2d 972; State exrel. Anderson v. Brand, Trustee (1937), 303 U.S. 95, 109, 82 L. Ed. 685, 695.
We do not think it was the intent of the legislature in enacting this amendment to exercise the state's police power. On the contrary it intended to change the contract rights of 5-7. all persons thereafter becoming "permanent teachers with indefinite contracts," by limiting the enforceable period of the indefinite contract until such permanent teacher reached the age of sixty-six years, that, of course it had a right to do.State ex rel. Anderson v. Brand, Trustee (1937), 303 U.S. 95, 109, 82 L. Ed. 685, 695, supra. But this statute would not affect the rights of persons who by contract had become permanent teachers with an indefinite contract in 1927, agreeable with the law enacted that year. (Acts of 1927, § 1, ch. 97, p. 259).State ex rel. Anderson v. Brand, Trustee, 303 U.S. 95, 104, 82 L. Ed. 685, 692, supra. This court has heretofore held that the state may make a contract that certain conditions stated shall continue in force for a definite period of time without interference on the part of the state. "By such a contract the state abdicates and relinquishes its power to prescribe conditions, or to regulate practices . . ., as the case may be, so far as the other party to the contract is concerned, to the extent evidenced by the express terms of the contract and for the period specified therein. During that period of time the state can not exercise its power to change conditions . . . to the detriment of the other party to the contract, without the consent *Page 201
of such other contracting party. Any effort on the part of the state to do so would be ineffective, for the reason that such action would have the effect to impair the obligations of contract within the meaning of Art. 1, § 10 of the federal Constitution." (authorities). Of course, the state may never abdicate or contract away its right and duty to exercise its police powers. Central Union Tel. Co. v. Indianapolis Tel.Co. (1919), 189 Ind. 210, 220, 126 N.E. 628; Greensburg WaterCo. v. Lewis (1920), 189 Ind. 439, 452, 128 N.E. 103; City ofWashington v. Public Service Commission (1921), 190 Ind. 105, 109, 129 N.E. 401; Connersville, etc. Co. v. City ofConnersville (1930), 95 Ind. App. 234, 248, 173 N.E. 641;Downing et al. v. The Indiana State Board of Agriculture
(1891), 129 Ind. 443, 28 N.E. 123, 28 N.E. 614.
Moreover this court has declared that the Teachers' Tenure Act in question is based upon the public policy of protecting the educational interests of the state and that the act should 8. be construed liberally to effect its general purpose since it is legislation in which the public at large is interested. State ex rel. Clark v. Stout, Trustee (1933),206 Ind. 58, 64, 187 N.E. 267; School City of Lafayette v.Highley (1938), 213 Ind. 369, 376, 12 N.E.2d 927; The Boardof Commissioners of Vigo County v. Davis et al. (1894),136 Ind. 503, 511, 36 N.E. 141.
Appellant insists that a similar question has been presented and determined against appellee's position in the following cases. Campbell v. Aldrich (1938), 159 Or. 208, 79 P.2d 257;Malone v. Hayden (1938), 329 Pa. St. 213, 197 A. 344;Taylor v. Board (1939), 31 Cal. App. 2d 734, 89 P.2d 148;Groves v. Board (1937), 367 Ill. 91, 10 N.E.2d 403;Morrison v. Board (1941), 237 Wis. 483, 297 N.W. 383. *Page 202
However, the opinions of the cases cited from Oregon, California, Illinois and Wisconsin are clear in stating that in each of those states teacher tenure status is wholly statutory and not contractual. In this they are each clearly distinguished from teacher tenure status in Indiana. In Indiana teacher tenure is wholly contractual. State ex rel. Anderson v. Brand,Trustee, 303 U.S. 95, 101, 82 L. Ed. 685, 691, supra; The Cityof Crawfordsville v. Hays (1873), 42 Ind. 200, 210;Charlestown School Twp. v. Hay (1881), 74 Ind. 127; HarrisonSchool Township v. McGregor (1884), 96 Ind. 185; Kiefer v.Troy School Township of Perry County (1885), 102 Ind. 279, 1 N.E. 560; Sparta School Township of Dearborn County v.Mendell (1894), 138 Ind. 188, 37 N.E. 604; The School City ofLafayette v. Bloom (1897), 17 Ind. App. 461, 46 N.E. 1016;Henry School Tp. v. Meredith (1904), 32 Ind. App. 607, 70 N.E. 393; Gregg School Township v. Hinshaw (1921),76 Ind. App. 503, 132 N.E. 586, 17 A.L.R. 1222.
The decision in Malone v. Hayden (1938), 329 Pa. St. 213,197 A. 344, was determined largely upon the proposition that the relation between the teacher and his employer school board was only a qualified contractual status, subject to determination of its operation by subsequent statutory changes. (Page 228). It was there held that the legislature had expressly recognized the qualified nature of the teacher's contract by the enactment of certain statutes which became a part of the contract sued upon, and that such statutes are broad enough to include future amendments, and indicate the intention of the parties to submit their relationship to legislative change. This rule cannot apply here for as before stated, in Indiana teachers' tenure is wholly contractual. State ex rel. Anderson v. Brand, Trustee,303 U.S. 95, 101, 82 L. Ed. 685, 691, supra. *Page 203
Relator's complaint affirmatively avers that he accepted the terms of paragraph (d), § 2, ch. 328, p. 1514, Acts of 1945, December 26, 1946; and further shows that he accepted the 9. 1947 amendment thereof, paragraph (d), § 1, ch, 353, page 1415, Acts of 1947, June 21, 1948; and the 1949 amendment thereof paragraph (d), § 1, ch. 130, page 348, Acts of 1949, June 10, 1949; (§ 28-4506, Burns' 1948 Replacement [1949 Supp.]) which provides as follows:
". . . Every teacher who is employed to teach in the public schools of this state and who avails himself of and accepts the provisions and privileges of this act or any act of which this act is amendatory, shall, by virtue of such acceptance, agree that (1) after July 1, 1950, when such teacher shall have attained the full age of sixty-six (66) years, he shall not be employed to teach and shall not be eligible to continue to teach in any of the public schools of any school corporation of this state, and (2) that such teacher will be ineligible to enter into any contract with any school corporation to teach in any of the public schools thereof. If any person who is employed to teach in the public schools of any school corporation shall attain the full age of sixty-six (66) years prior to the expiration of any school year for which he has been employed to teach, such person shall be eligible to complete such school year notwithstanding the fact that he has attained the full page of sixty-six (66) years prior to the expiration of such school year."
By the acceptance of the terms of these various provisions, relator agreed that he should be ineligible to further employment as a teacher after July 1, 1950, thereby giving up all his rights as a permanent teacher with an indefinite contract, after that date. But his right to employment as a permanent teacher with an indefinite contract was expressly tolled by the several *Page 204
statutes successively to July 1, 1947; July 1, 1949 and July 1, 1950. Relator, therefore, was entitled to employment by appellants as a permanent teacher with an indefinite contract for the school year 1949-1950, and it was error to sustain the demurrer to the first paragraph of his complaint.
As before noted in paragraph 2 of his complaint, relator bases his claim to re-employment for the school year 1949-1950, upon the alleged fact that he was regularly employed by appellants for the school year 1948-1949 and performed his contract faithfully for that school year. That he was not notified in writing by appellants on or before May 1, 1949; that his contract would not be renewed for the succeeding year; that he did not resign as a teacher; and his 1948-1949 contract was not superseded by another contract all as provided by Section 28-4321, Burns' 1948 Replacement (Acts of 1939, ch. 77, § 1, p. 457; Acts of 1941, ch. 130, § 1, p. 369). He avers and claims his right to re-employment by virtue of that statute, because of said facts. In this paragraph he makes no claims as a permanent teacher with an indefinite contract. The theory of this paragraph is, therefore, clear.
In this jurisdiction the rule is that where a plaintiff has a single right of recovery that may rest upon one ground or another, according to the facts to be shown by the 10. evidence, and he cannot safely foretell the precise nature and limits of the defendant's liability to be developed upon the trial, he may state his right of action variously in different paragraphs and go to trial on all of them, and recover only on such paragraph or paragraphs as the evidence will warrant. Inconsistent causes of action may be found in separate paragraphs. 1 Watson's Rev., Works' Practice Forms, § 468; 1 Lowe's Rev., Works' Indiana *Page 205 Practice 487, § 13.65; Snyder v. Snyder (1865),25 Ind. 399, 401; McMasters v. Cohen (1854), 5 Ind. 174; Stearns v.Dubois (1876), 55 Ind. 257, 260, 261; Knickerbocker Ice Co.
v. Gray (1908), 171 Ind. 395, 402, 84 N.E. 341; Caviness v.Rushton, Admr. (1885), 101 Ind. 500, 503; § 2-301, Burns' 1946 Replacement.
The second paragraph of amended complaint states facts 11. sufficient to constitute a cause of action upon the theory it is presented.
The judgment rendered on the second paragraph of amended complaint is, therefore, affirmed.
For the reasons given the judgment rendered on the first paragraph of amended complaint is reversed with instructions to overrule the demurrer to that paragraph.
Young, J., absent.
Emmert, J., concurs in results.
NOTE. — Reported in 91 N.E.2d 349. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247112/ | Paul L. Maloney, United States District Judge
Plaintiffs are four women who allege they were sexually harassed or assaulted by other students while they were students at Michigan State University (MSU). Each plaintiff alleges she reported the assault to the MSU, which did not adequately respond. Plaintiffs assert claims for violations of Title IX and Michigan's Elliott-Larsen Civil Rights Act (ELCRA). Through § 1983, Plaintiffs also assert claims for violations of their constitutional rights to Due Process and Equal Protection.1 Defendants filed a motion to dismiss. (ECF No. 28.) The Court held a hearing on the motion.
The motion will be granted in part and denied in part. Plaintiffs have conceded several of the claims, including the violations of Due Process and violations of the ELCRA. The Title IX claim brought by Jane Roe 2 will be dismissed, as the allegations in the complaint do not establish deliberate indifference. Plaintiffs' Equal Protection claim against MSU Board of Trustees has been withdrawn, and the motion will be granted for the Equal Protection claims against Defendants Simon and Youatt. The complaint does not allege sufficient facts to show how those individuals violated the constitutional rights of any of the plaintiffs.
I.
At the outset, the Court must clarify the individual defendants in this case. In the caption for the initial complaint, Plaintiffs named the Michigan State University Board of Trustees (Trustees); Lou Anna Simon, the president of the university; and Denise Maybank, the vice president of student affairs. With leave of the Court, Plaintiffs filed an amended complaint, which is the controlling pleading. (ECF No. 25.) Plaintiffs did not alter the caption, *1097but did add defendants. In the "Parties and Jurisdiction" portion of the complaint, Plaintiffs named Trustees (Compl. ¶ 1), Maybank (id. ¶ 2), and Simon (id. ¶ 3). As a defendant, Plaintiffs added June Pierce Youatt, the acting Provost, or the Provost and Executive Vice President for Academic Affairs. (Id. ¶ 4.) Plaintiffs also added Paulette Granberry Russell, who at "all times relevant was MSU's appointed Title IX Coordinator." (Id. ¶ 5.) Plaintiffs have not requested any additional summonses since their initial complaint was filed. Defendants Youatt and Russell made appearances in this lawsuit when the motion to dismiss was filed on their behalf.
In the portion of the complaint where Plaintiffs identify and outline their causes of action, Plaintiffs list the defendants against which each claim is brought as part of the heading and also identify the defendants within the claim itself. Count 1 is Plaintiffs' claim for violations of Title IX, and is brought against Defendant Trustees only. (Compl. PageID.257-58.) Count 3 is Plaintiffs' claim for violations of the ELCRA, and is brought against Defendant Trustees only. (Id. PageID. 359-60.)
The confusion about the individual defendants arises in Count 2, Plaintiffs' constitutional claims. (Compl. PageID.258-59.) Plaintiffs name as the defendants for this count the Trustees, Maybank, Simon and Youatt. Plaintiffs also name as a defendant Amanda Garcia-Williams. In paragraph 32 of the complaint, Plaintiffs identify Garcia-Williams as MSU's Title IX Coordinator, the same position held by Russell "at all times relevant." Then, in paragraph 84, Plaintiffs describe Russell as the Senior Advisor to the President for Diversity and as the Director of the Office of Inclusion and Intercultural Initiatives. Plaintiffs also describe Russell as Garcia-Williams's supervisor. (Id. ¶ 84.) Garcia-Williams is mentioned in the factual allegations for each of the individual plaintiff's claims.
Based on this brief summary, the Court reaches two conclusions. First, Plaintiffs have not asserted a claim against Defendant Paulette Russell. Plaintiffs do not identify Russell as a defendant for any of their counts.2 There is no claim for which Russell must file an answer. The confusion about Russell's title does not affect this conclusion. Second, Garcia-Williams is not currently a named defendant in this lawsuit. Plaintiffs did not identify Garcia-Williams as a defendant in the "Parties and Jurisdiction" portion of their complaint. Plaintiffs have never requested a summons for Garcia-Williams. Garcia-Williams has not made an appearance in this lawsuit. This Court does not currently have personal jurisdiction over Garcia-Williams.
II.
Defendant filed a motion to dismiss, relying on Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under the notice pleading requirements, a complaint must contain a short and plain statement of the claim showing how the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2) ; see Thompson v. Bank of America, N.A. , 773 F.3d 741, 750 (6th Cir. 2014) (holding that to survive a Rule 12(b)(6) motion, the complaint "must comply with the pleading requirements of Rule 8(a)."). The complaint need not contain detailed factual allegations, but it must include more than labels, conclusions, and formulaic recitations of *1098the elements of a cause of action. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A defendant bringing a motion to dismiss for failure to state a claim under Rule 12(b)(6) tests whether a cognizable claim has been pled in the complaint. Scheid v. Fanny Farmer Candy Shops, Inc. , 859 F.2d 434, 436 (6th Cir. 1988).
To survive a motion to dismiss, "[t]he complaint must 'contain either direct or inferential allegations respecting all material elements necessary for recovery under a viable legal theory.' " Kreipke v. Wayne State Univ. , 807 F.3d 768, 774 (6th Cir. 2015) (citation omitted). The plaintiff must provide sufficient factual allegations that, if accepted as true, are sufficient to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. And the claim for relief must be plausible on its face. Id. at 570, 127 S.Ct. 1955. "A claim is plausible on its face if the 'plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' " Ctr. for Bio-Ethical Reform, Inc. v. Napolitano , 648 F.3d 365, 369 (6th Cir. 2011) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted). When considering a motion to dismiss, a court must accept as true all factual allegations, but need not accept any legal conclusions. Ctr. for Bio-Ethical Reform, 648 F.3d at 369. Naked assertions without further factual enhancement, formulaic recitations of the elements of a cause of action, and mere labels and conclusions will be insufficient for a pleading to state a plausible claim. SFS Check, LLC v. First Bank of Delaware , 774 F.3d 351, 355 (6th Cir. 2014) (citations omitted).
III.
For this motion, all well-pled factual allegations are assumed to be true. Plaintiffs describe the events giving rise to the claims brought by all four students.
A. Plaintiff Kollaritsch
John Doe attempted to rape Plaintiff Kollaritsch in his dormitory room in October 2011. (Compl. ¶ 28.) On October 15, John Doe sexually assaulted Kollaritsch in the stands at an MSU football game. (Id. ¶ 29). Kollaritsch reported the assaults to the MSU Police on January 30, 2012. (Id. ¶ 30.) On February 3, Kollaritsch met with Garcia-Williams to formally commence an investigation against John Doe by MSU. (Id. ¶ 32.) While the investigation was occurring, MSU did not restrict John Doe or accommodate Kollaritsch so that she would not encounter John Doe. (Id. ¶ 33.) Sometime in August, some 200 days later, Kollaritsch received the Investigation Report from MSU. (Id. ¶ 37.) The report concluded that John Doe violated the MSU Sexual Harassment Policy, but did not identify the specific policies or provisions that were violated. (Id. ¶ 39.) The report did not conclude that John Doe sexually assaulted Kollaritsch. John Doe accepted responsibility (id. ¶ 41), and, on November 13, 2012, was placed on probationary status, and was issued a no-contact order (id. ¶ 44). Garcia-Williams did not inform Kollaritsch that she had a right to appeal the sanction. (Id. ¶ 45.)
John Doe thereafter violated the no-contact order and began stalking, harassing, and otherwise intimidating Kollaritsch. (Compl. ¶¶ 47-48.) After reporting his conduct in February, on March 11, 2013, Kollaritsch filed a formal complaint with MSU about John Doe's retaliatory harassment. (Id. 50 and 53.) On March 13, Kollaritsch sought a Personal Protection Order against John Doe in the East Lansing District Court, which was issued the next *1099day. (Id. ¶ 55.) In May 2013, Garcia-Williams issued a report concluding that John Doe had not retaliated against Kollaritsch and had not further violated MSU's Code of Conduct. (Id. ¶ 58.) Kollaritsch was not informed that she could appeal the conclusions. (Id. ¶ 59.) Between June and August, Kollaritsch pressed the matter with MSU, complaining that the investigation was inadequate. (Id. ¶¶ 60-65.)
B. Plaintiff Jane Roe 1
John Doe 2 sexually assaulted Jane Roe 1 in November 2013. (Compl. ¶ 70.) The assault occurred on the MSU campus. (Id. ) Jane Roe 1 "immediately" reported the assault to the MSU Police and also went to Sparrow Clinton Hospital to have a Sexual Assault Nurse Examiner (SANE) perform an exam. (Id. ¶ 72.) In February 2014, Jane Roe 1 filed a formal complaint with Garcia-Williams, who promised to interview two witnesses before Spring Break. (Id. ¶ 73.) Jane Roe 1 contacted Garcia-Williams in March and April. (Id. ¶¶ 73 and 74.) Both times she was told that MSU was waiting for the SANE report. (Id. ) In late April and again in May, Jane Roe 1's mother contacted MSU. (Id. ¶ 75 and 76.) Both times she was told that MSU was still waiting for the SANE report. (Id. ) In April, the mother was told that John Doe 2 had not yet been interviewed. (Id. ¶ 75.) After the telephone call in May, the mother called Sparrow Hospital and was told that the SANE report had been sent to MSU on March 14, 2014. (Id. ¶ 27.)
Jane Roe 1's mother made several attempts over the next few months to speak with Garcia-Williams and her supervisor, Defendant Russell, with varying success. (Compl. ¶¶ 77-85.) In November, MSU informed Jane Roe 1 that it had completed its investigation and that the report was available for Jane Roe 1 to pick up. (Id. ¶ 86.) Jane Roe 1 did not respond. (Id. ) On December 15, 2014, Garcia-Williams emailed Jane Roe 1 and informed her that MSU had concluded there was insufficient evidence to find that John Doe 2 violated MSU's Sexual Harassment Policy. (Id. ¶ 87.)
C. Plaintiff Jane Roe 2
John Doe 3 sexually assaulted Jane Roe 2 on August 23, 2013. (Compl. ¶ 92.) Jane Roe 2 reported her assault on August 26. (Id. ¶ 93.) Garcia-Williams interviewed John Doe 3 on September 3. (Id. ¶ 94.) On December 10, 2013 MSU issued a report finding John Doe 3 violated MSU's Student Code of Conduct. (Id. ¶ 95.) John Doe 3 was expelled on January 29, 2014, after a hearing. (Id. ¶ 96.) John Doe 3 appealed his suspension, which was upheld by Defendant Maybank. (Id. ¶ 97.)
While the investigation and appeals occurred, John Doe 3 was able to complete the semester, and he subsequently transferred to another school. (Compl. ¶ 104.) John Doe 3 was allowed to remain on campus throughout the investigation and appeal, subject to a personal protection order. (Id. ¶ 105.) Nevertheless, Jane Roe 2 did encounter John Doe 3 on at least one occasion. (Id. ¶ 106.) On May 5, 2014, MSU contacted Jane Roe 2 to let her know that John Doe 3 received permission to return to campus on May 10 to attend a graduation ceremony. (Id. ¶ 98.) Jane Roe 2 was not consulted about the decision. (Id. ¶ 99.)
D. Plaintiff Gross
Plaintiff Shayna Gross was an acquaintance of, and was friendly with, John Doe. (Compl. ¶ 139.) In February 2013, John Doe invited Gross to hang out at the Kappa Sigma fraternity house. (Id. ¶ 140.) Gross made clear to John Doe that they would be hanging out only as friends. (Id. ) Gross and a friend went together to the fraternity house that night, where John Doe served Gross alcoholic drinks. (Id. ¶ 141.) Gross can only remember flashes of the evening. (Id. ¶ 142.) The next morning, *1100John Doe informed Gross that they had sex in the fraternity house, in her dorm room, and also in his dorm room. (Id. ) Approximately one year later, Gross reported the sexual assault to MSU on February 12, 2014. (Id. ¶ 144.) Gross contacted Garcia-Williams multiple times for status updates about the investigation, and never received a timely response. (Id. ¶ 146.) MSU completed the investigation on October 14, 2014, concluding that John Doe had sexually assaulted Gross. (Id. ¶ 147.) A hearing occurred in January 2015, and John Doe was expelled in February. (Id. ¶¶ 150-51.)
John Doe filed two appeals. His first appeal was denied on March 2, 2015, by MSU's appellate board. (Compl. ¶ 153.) After he filed a second appeal, Defendant Maybank informed Gross that MSU's conclusions would be set aside and that an outside law firm would be hired to conduct a new investigation. (Id. ¶ 155.) The law firm issued a report on May 13, 2015. (Id. ¶ 157.) The report concluded that John Doe and Gross had sexual relations that night, but could not conclude that the relations were non-consensual. (Id. ) Gross appealed the decision, which was denied. (Id. ¶¶ 159-60.) Throughout the investigation and appeals, John Doe was allowed to remain on campus, without restrictions. (Id. ¶¶ 149 and 161.)
For each plaintiff, Plaintiffs allege Defendants' reactions to victims' reports were inadequate, leaving each plaintiff vulnerable on campus and causing deprivation of her educational opportunities. (Comp. ¶¶ 66-68 Kollaritsch; ¶¶ 89-91 Jane Roe 1; ¶¶ 107-09 Jane Roe 2; ¶¶ 163-65 Gross.)
IV.
Defendants argue Plaintiffs' Title IX claim should be dismissed. Defendants argue Plaintiffs have not pleaded sufficient facts to show deliberate indifference by the institution, MSU. Defendants also argue that complaint does not established how each plaintiff suffered harassment as the result of deliberate indifference.
Title IX prohibits sex discrimination in education programs that receive federal funding. "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." 20 U.S.C. § 1681(a). Title IX is enforceable through a private right of action. Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 281, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (citing Cannon v. Univ. of Chicago , 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) ). For a Title IX claim, the plaintiff must plead facts demonstrating deliberate indifference by the recipient of federal funding. Id. at 290, 118 S.Ct. 1989. Deliberate indifference occurs when the recipient's response to known acts of sexual harassment, or lack thereof, "is clearly unreasonable in light of the known circumstances." Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Ed. , 526 U.S. 629, 648, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) ; see Williams ex rel. Hart v. Paint Valley Local Sch. Dist. , 400 F.3d 360, 367-68 (6th Cir. 2005). Deliberate indifference does not occur through a collection of sloppy, or even reckless oversights; it arises from obvious indifference to sexual harassment. See Doe v. Claiborne Cty., Tennessee , 103 F.3d 495, 508 (6th Cir. 1996). The standard for deliberate indifference is a "high bar," and is not a "mere reasonableness" standard. Stiles ex rel. D.S. v. Grainger Cty., Tennessee , 819 F.3d 834, 848 (6th Cir. 2016). Title IX does not require recipients of federal funding to purge their institutions of actionable sexual harassment and does not require the institutions to undertake any particular disciplinary sanctions. Id. And, Title IX does not give the victim a *1101right to demand a particular remedy to the harassment. Id. Under the deliberate indifference standard, courts should not second-guess an institution's disciplinary decisions. Id. (citing Davis , 526 U.S. at 648, 119 S.Ct. 1661 ).
Gebser involved sexual harassment of a high school student by a teacher. The issue was whether the school district could be held liable for damages. The Supreme Court explained the notice requirement and the necessary response by officials. Where the plaintiff's claim does not involve an official policy, "we hold that a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails to adequately respond." Gebser , 524 U.S. at 290, 118 S.Ct. 1989. The response must amount to deliberate indifference to discrimination. Id.
The following year, the Supreme Court revisited Title IX in Davis . The case was brought on behalf of a fifth-grade girl who had been sexually harassed by another student in her class. The Court considered whether the school board could be held liable for peer harassment. The Court held recipients of federal funding may be held liable under Title IX only when (1) they are deliberately indifferent to sexual harassment, (2) of which they have actual knowledge, (3) that is so severe, pervasive, and objectively offensive that it deprives the victims of access to the educational opportunities or benefits provided by the school. Davis , 526 U.S. at 660, 119 S.Ct. 1661 ; see Pahssen v. Merrill Cmty. Sch. Dist. , 668 F.3d 356, 362 (6th Cir. 2012). The funding recipient's deliberate indifference must cause the deprivation of educational opportunities and benefits. Davis , 526 U.S. at 645, 119 S.Ct. 1661. Liability for deliberate indifference arises in circumstances where the funding recipient "exercises substantial control over both the harasser and the context in which the known harassment occurs. Only then can the recipient be said to 'expose' its students to harassment or 'cause' them to undergo it 'under' the recipient's programs." Id.
The institution's response to knowledge of sexual harassment must be reasonable in light of the known circumstances. Vance v. Spencer Cty. Pub. Sch. Dist. , 231 F.3d 253, 261 (6th Cir. 2000) ; see Davis , 526 U.S. at 648, 119 S.Ct. 1661 (explaining that deliberate indifference arises only when the funding recipient's "response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances."). The promptness of the institution's response, or lack thereof, may be a consideration in determining the reasonableness of the response. See Bruneau ex rel. Schofield v. South Kortright Cent. Sch. Dist. , 163 F.3d 749, 761 (2d Cir. 1998) (finding no error in the jury instructions for a Title IX case when the court declined to instruct the jury that the school district had to take "prompt" remedial action, reasoning that, implicit in the concept of an appropriate response was that the response must be prompt) abrogated on other grounds by Fitzgerald v. Barnstable Sch. Comm. , 555 U.S. 246, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009).
Emphasizing the actual knowledge element of a Title IX claim, courts have rejected use of agency and negligence principles. The Davis Court summarized the holding in Gebser : agency principles cannot be used to impute liability to the district for misconduct by its teachers. Davis , 526 U.S. at 642, 119 S.Ct. 1661. Davis also held that the "should have known" standard for negligence actions did not apply, the institution must have actual knowledge of the harassment. Id. ; Pahssen , 668 F.3d at 365 *1102("Negligence, however, does not establish deliberate indifference.").
A. Plaintiff Kollaritsch
The facts alleged in the complaint are sufficient to state a plausible Title IX claim based on MSU's response to Kollaritsch's circumstances.
Defendants do not challenge their knowledge of the alleged sexual harassment. Plaintiffs allege Kollaritsch reported the assaults to MSU police, MSU's Office of Inclusion, and to an official with MSU, Garcia-Williams, for the purpose of starting an investigation. (Compl. ¶¶ 30-32.)
Plaintiffs' allegations are sufficient to plead the deliberate indifference element. Taken as true, the allegations establish that Defendants' response was unreasonable in light of the known circumstances. MSU's investigation took more than six months. During the investigation, MSU did not put in place any accommodations to prevent Kollaritsch from encountering her harasser. The final report did not accurately describe the allege assaults and Kollaritsch was not informed of her right to appeal the sanctions that were imposed.
A no-contact order was imposed on John Doe as part of the sanctions against him. He then violated the no-contact order on at least nine occasions, which Kollaritsch reported to MSU. MSU did not provide any interim safety measures after Kollaritsch reported the violations of the no-contact order. Kollaritsch was not permitted to be involved in the retaliation investigation, no hearing was held, and when MSU concluded its investigation, Kollaritsch was again was not informed of her ability to file an appeal.
Finally, Plaintiffs have alleged sufficient facts to show that MSU's deliberate indifference deprived Kollaritsch of educational opportunities. Here, the Court focuses on what occurred after Kollaritsch made her initial report. Because she feared for her safety, Kollaritsch took leaves of absence from MSU and did not take classes. (Compl. ¶ 66.)
B. Plaintiff Jane Roe 1
The facts alleged in the complaint are sufficient to state a plausible Title IX claim based on MSU's response to Jane Roe 1's circumstances.
Defendants do not challenge their knowledge of the alleged sexual assault of Jane Roe 1. Plaintiffs allege Jane Roe 1 reported the assault to the MSU Police and to appropriate MSU officials. (Compl. ¶¶ 71-72.)
Plaintiffs' allegations are sufficient to plead the deliberate indifference element. Taken as true, the allegations show that Defendants' response was unreasonable in light of the known circumstances. The investigation took approximately nine months. The explanations for the delay provided by the investigator appear questionable. Jane Roe 1 and her mother had to reach out to the investigators every few weeks to check on the status of the investigation. The Court infers that John Doe 2 remained on campus, at least for a portion of the semester.3 (Compl. ¶¶ 75 and 90.)
Plaintiffs' allegations are sufficient to show that MSU's deliberate indifference deprived Jane Roe 1 of educational opportunities. Taken as true, the inadequate manner in which MSU conducted its investigation *1103created a situation where Jane Roe 1 did not feel safe on campus and avoided it at night, and led her to be absent or late to classes.
C. Plaintiff Jane Roe 2
The facts alleged in the complaint do not state a plausible Title IX claim against Defendants based on Jane Roe 2's circumstances.
Defendants do not challenge their knowledge of the alleged sexual assault of Jane Roe 2. Plaintiffs allege Jane Roe 1 reported the assault to appropriate MSU officials. (Compl. ¶ 93.)
Taken as true, the complaint does not allege facts establishing that MSU's actions were deliberately indifferent. The investigation took approximately six months. During the investigation, John Doe 3 was subject to a personal protection order granted to Jane Roe 2. Plaintiffs do allege that Jane Roe 2 did encounter her assailant once during the investigation, but provide no context or description of the encounter. Plaintiffs do not allege that Jane Roe 3 suffered any additional harassment after she made her initial report. John Doe 3 was ultimately expelled. After he was expelled, MSU allowed him to return once to attend a graduation ceremony. And, MSU warned Jane Roe 2 that John Doe was allowed to be there.
Finally, taking the allegations in the complaint as true, Jane Roe 2 has not alleged sufficient facts to show that she was deprived of educational opportunities because of MSU's deliberate indifference. She has not alleged facts to show that MSU's response to her report caused the drop in her grades, or her decision to stop playing rugby, or any of the other events alleged in the complaint.
D. Plaintiff Gross
The facts alleged in the complaint state a plausible Title IX claim against Defendants based on Gross's circumstances.
Defendants do not challenge their knowledge of the alleged sexual assault of Gross's circumstances. Plaintiffs allege Gross reported the assaults to appropriate MSU officials. (Compl. ¶ 144.)
Taking the allegations in the complaint as true, Plaintiffs have alleged sufficient facts to establish that MSU's response to Gross's report was unreasonable in light of known circumstances. This was at least the second time MSU had to investigate John Doe; MSU had already investigated John Doe for the allegations made by Kollaritsch.4 The initial investigation, hearing, and appeals took more than one year to complete. Although the final decision was initially upheld after an appeal, John Doe's expulsion was subsequently set aside and second investigation was permitted. Throughout the investigation, John Doe remained on campus, although the complaint does not allege whether John Doe was subject to any restrictions on his contact with Gross.
Taking the allegations in the complaint as true, Plaintiffs have established that Gross was deprived of educational opportunities because of MSU's deliberate indifference. Because of the manner in which MSU investigated her report, she stopped participating in extra-curricular activities. Because of the stress caused by the investigation, Gross had problems in classes and had to seek accommodations from professors.
*1104E. Claims Arising from the DCL, the Resolution Agreement, and a Policy of Inaction
To the extent Plaintiffs' Title IX claims rely on standards identified in the DCL, in the Resolution Agreement, or by a policy of inaction, those claims must be dismissed. In various parts of the complaint, Plaintiffs assert that MSU's investigations violated standards identified in the DCL or in MSU's own policies, as reflected in the Resolution Agreement. In their response to the motion, Plaintiffs argue their Title IX claims can be based on a policy of inaction in response to known risks of sexual harassment.
An institution's failure to follow published procedures will not necessarily establish deliberate indifference. Courts have generally not allowed plaintiffs to show deliberate indifference when a university does not follow the guidance suggested by the Department of Education's Dear Colleague Letter. See Butters v. James Madison Univ. , 208 F.Supp.3d 745, 757-58 (W.D. Va. 2016) (collecting cases). The reasoning in those cases is persuasive. The DCL states that it is a standard for administrative enforcement for cases where plaintiffs are seeking injunctive relief. Id. The standard contained in the DCL is a negligence standard, not a deliberate indifference standard. See id.
The failure of a school to follow its own policies and regulations, standing alone, does not establish deliberate indifference. Sanches v. Carrollton-Farmers Indep. Sch. Dist. , 647 F.3d 156, 169 (5th Cir. 2011) (quoting Gebser , 524 U.S. at 291-92, 118 S.Ct. 1989 ); see, e.g., Oden v. Northern Marianas Coll. , 440 F.3d 1085, 1089 (9th Cir. 2006) (failing to follow school policy to hold a hearing within 30 days, where the hearing did not occur for 9 months, was not deliberate indifference because the victim, at least in part, caused the delay). The Resolution Agreement issued in August 2015, after the events giving rise to each of the plaintiff's claims. MSU could not be deliberately indifferent to guidelines identified in the Resolution Agreement when the document did not exist when the underlying investigations were occurring.
Finally, in their response brief, Plaintiffs assert a theory of deliberate indifference based on a policy of inaction by MSU in light of known risks of sexual harassment, borrowing the theory from municipal liability cases. See Simpson v. Univ. of Colorado Boulder , 500 F.3d 1170, 1178-79 (10th Cir. 2007) (involving a university policy for hosting potential student athletes that created circumstances where sexual assaults occurred and the administration had been warned by the district attorney). The Sixth Circuit has not published any opinion adopting a policy of inaction theory, although at least one district court within this circuit found the reasoning in Simpson persuasive. See Doe v. Univ. of Tennessee , 186 F.Supp.3d 788, 804-05 (M.D. Tenn. 2016).
Plaintiffs have not pled facts sufficient to support a policy of inaction theory of deliberate indifference for a Title IX claim. Plaintiffs focus on MSU's alleged failure to publish and distribute information about its sexual harassment policies and procedures. Gebser rejected this avenue for showing discrimination under Title IX. In Gebser , the Court rejected the argument that a failure to promulgate and publicize an effective policy and grievance procedure for sexual harassment, as required by the Department of Education's regulations, would constitute a Title IX deliberate indifference claim. 524 U.S. at 291-92, 118 S.Ct. 1989. And, the circumstances in Simpson and Doe v. University of Tennessee are distinct from the circumstances at MSU. In Simpson and Doe , the institutions created the circumstances where the *1105sexual assaults occurred. Plaintiffs here have not identified an official policy of MSU that created situations where sexual harassment or sexual assaults had occurred in the past, and where the risk had been ignored.
V.
In their motion, Defendants argue that the complaint fails to allege facts sufficient to state a claim for violations of the Due Process Clause.
In their response, Plaintiffs voluntarily dismiss their Due Process claims. (ECF No. 39 Pl. Resp. at 22 n.8 PageID.438.) Plaintiffs have not identified any authority which would permit them to withdraw a claim without prejudice after Defendants filed a motion to dismiss. See, e.g., Fed. R. Civ. P. 41(a)(1)(A) (permitting voluntary dismissal of actions by a plaintiff if the dismissal occurs before the opposing party files an answer or motion for summary judgment). Plaintiffs did not file an amended complaint removing their Due Process claims. See Fed. R. Civ. P. 15(a)(1). Because Defendants have moved to dismiss Plaintiffs' Due Process claims, and because Plaintiffs have not responded to that portion of the motion, Defendants' motion to dismiss the Due Process claims will be granted.
VI.
Defendants also argue that the complaint fails to allege facts sufficient to state a claim for violations of the Equal Protection Clause.
Claims for violations of constitutional rights may be brought under 42 U.S.C. § 1983. To state a § 1983 claim and avoid dismissal under Rule 12(b)(6), a plaintiff must plead facts to support two elements: (1) there was the deprivation of a right secured by the United States Constitution, and (2) that the deprivation was caused by a person acting under color of state law. Wittstock v. Mark A. Van Sile, Inc. , 330 F.3d 899, 902 (6th Cir. 2003). "[T]he existence of a constitutional right must be the threshold determination in any section 1983 claim[.]" Claiborne Cty., 103 F.3d at 509. The Sixth Circuit has "consistently held that damage claims against government officials arising from alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right." Lanman v. Hinson , 529 F.3d 673, 684 (6th Cir. 2008) (italics in original). "Allegations of respondeat superior do not sustain a § 1983 claim against state employees in their individual capacities, meaning that officials are personally liable for damages under that statute 'only for their own unconstitutional behavior.' " Colvin v. Caruso , 605 F.3d 282, 292 (6th Cir. 2010) (quoting Leach v. Shelby Cty. Sheriff , 891 F.2d 1241, 1246 (6th Cir. 1989) ).
To state an Equal Protection claim under § 1983, the plaintiff must allege facts establishing that he or she was a victim of intentional and purposeful discrimination. Weberg v. Franks , 229 F.3d 514, 522 (6th Cir. 2000) (collecting cases); see Washington v. Davis , 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (discussing race discrimination claims brought under the Fourteenth Amendment's Equal Protection Clause). "The Sixth Circuit recognizes two methods of proving an equal protection violation based on a school official's response to peer to peer harassment: (1) disparate treatment of one class of students who complain about bullying as compared to other classes of students, and (2) deliberate indifference to discriminatory peer harassment." Stiles , 819 F.3d at 851-52 (citing Shively v. Green Local Sch. Dist. Bd. of Educ. , 579 Fed.Appx. 348, 356-57 (6th Cir. 2014) and *1106Williams v. Port Huron Sch. Dist. , 455 Fed.Appx. 612, 618 (6th Cir. 2012) ). The required discriminatory intent for an equal protection claim may be established by showing that school officials were deliberately indifferent to allegations of peer harassment. Port Huron , 455 Fed.Appx. at 618.
The deliberate indifference claim for a § 1983 equal protection claim is "substantially the same" as the deliberate indifference standard used in Title IX cases. Stiles , 819 F.3d at 852 (quoting Paint Valley Local Sch. Dist. , 400 F.3d at 369 ). To state a deliberate indifference claim under the Equal Protection clause, the plaintiff must allege facts showing she was subjected to discriminatory peer harassment. Id. (collecting cases). The plaintiff must then allege facts establishing that school officials responded to the discriminatory peer harassment with deliberate indifference. Id.
A. Intentional Discrimination
Defendants' argue that Plaintiffs did not allege intentional discrimination because of their status as members of a protected group. Defendants' motion overlooks Sixth Circuit precedent which permits a plaintiff to show an Equal Protection violation through deliberate indifference to reports of peer sexual harassment. Binding authority allows a plaintiff to establish an Equal Protection claim by showing "either that the defendants intentionally discriminated or acted with deliberate indifference." Stiles , 819 F.3d at 852 (quoting Shively , 579 Fed.Appx. at 357 ). For their Equal Protection claim, Plaintiffs' rely on the alternative theory, each individual defendant's conduct amounted to deliberate indifference.
B. Deliberate Indifference
An individual defendant who is a government official may not be held liable under § 1983 under a theory of respondeat superior. Each individual must have acted in an unconstitutional manner. Plaintiffs have to show that each individual defendant demonstrated deliberate indifference to the peer harassment that occurred after the sexual assaults.
1. Defendant Simon
Plaintiffs have not alleged sufficient facts to show that Simon was deliberately indifferent. Simon's involvement is mentioned only in paragraphs 103 and 148 of the complaint.5 None of those paragraphs allege facts suggesting deliberate indifference. Paragraph 103 provides background for Jane Roe 2's claim. Simon is alleged to have said that it was a mistake to allow John Doe 3 to return to campus. Plaintiffs have not alleged that Simon made the decision to allow John Doe 3 to return to campus. Plaintiffs have not alleged that Simon participated in the investigation. Paragraph 148 provides background information for Gross's claim. In that paragraph Plaintiffs allege that Gross emailed Simon to express concerns about how MSU handled the investigation. This allegation does not establish that Simon participated in the investigation.
2. Defendant Youatt
Plaintiffs have not alleged sufficient facts to show that Youatt was deliberately indifferent. Youatt is mentioned in only two paragraphs in the complaint.6 In *1107paragraph 4, Youatt is named as a defendant and her job duties are described. In paragraph 173, Youatt is identified as one of the defendants to Count 2. The complaint contains no allegations about any action taken by Youatt. The complaint does not allege that Youatt had knowledge of any of the events giving rise to any of the claims brought by Plaintiffs.
3. Defendant Maybank
Plaintiffs have alleged sufficient facts for an Equal Protection claim against Defendant Maybank for her deliberate indifference to Gross's report, but not for deliberate indifference to either Kollaritsch's report or Jane Roe 2's report. Maybank is mentioned in paragraphs 64 and 65 (Kollaritsch background), 97 and 102 (Jane Roe 2 background), and 155 (Gross background).
For the Equal Protection claim brought by Gross, Plaintiffs have alleged sufficient facts to show that Maybank was deliberately indifferent. In paragraph 155, Plaintiffs allege, in November 2015, Maybank informed Gross that the initial investigation and conclusion would be disregarded and a new investigation would be opened into Gross's allegations against John Doe, which would be conducted by outside counsel. At least in the complaint, no explanation for this decision is provided. Assuming the allegations in the complaint to be true, including the allegation that John Doe sexually assaulted Gross three times and that the initial appeal was denied, this decision was unreasonable under the circumstances as a response to Gross's allegation of a sexual assault.
For the Equal Protection claim brought by Kollaritsch against Maybank, Plaintiffs have not alleged sufficient facts to show deliberate indifference. Kollaritsch contends she met with Maybank in August 2013 and told Maybank she did not feel safe on campus. Two weeks later, Maybank emailed Kollaritsch, "effectively refused to do anything," and told Kollaritsch to contact MSU Police. The meeting occurred after John Doe had been disciplined, after Kollartisch's retaliation complaint and been resolved, and after Kollaritsch's appeal was denied. These allegations do not show deliberate indifference; Maybank's response was not clearly unreasonable under the circumstances. The investigation and appeals process had been completed, and Maybank was relying on those proceedings. The Court will not second guess Maybank's decision.
For the Equal Protection claim brought by Jane Roe 2 against Maybank, Plaintiffs have not alleged sufficient facts to show deliberate indifference. In paragraph 97, Plaintiffs allege as Maybank upheld the expulsion of John Doe 3. This allegation cannot be the basis of a claim for deliberate indifference. Plaintiffs' claim must arise from the decision to allow John Doe 3 on campus for a graduation ceremony, the allegation in paragraph 107. It is not clear if Maybank made the decision to allow John Doe 3 on campus, or if Maybank denied Jane Roe 2's appeal of that decision. Neither decision amounts to deliberate indifference. MSU alerted Jane Roe 2 that John Doe 3 had been given leave to be on campus. Jane Roe 2 does not allege that she encountered John Doe 3 during this brief window.
VII.
Defendants assert that they are immune from Plaintiffs' constitutional claims. Defendants assert that MSU Trustees are immune under the Eleventh Amendment. Defendants assert that the individual defendants are entitled to qualified immunity.
*1108A. MSU Trustees
MSU Trustees are immune under the Eleventh Amendment from Plaintiffs' constitutional claims. In their response, Plaintiffs concede that "Defendant Regents" are an arm of the state and are immune from liability. (ECF No. 39 Pl. Resp. at 23 n.9 PageID.439.) Accordingly, the constitutional claims brought against Defendant MSU Trustees will be dismissed.
B. Qualified Immunity
Because Plaintiffs have withdrawn their Due Process claims, the Court considers only the Equal Protection claims.
"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or 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). Qualified immunity is a legal question for the court to resolve. Everson v. Leis , 556 F.3d 484, 494 (6th Cir. 2009) (citing Elder v. Holloway , 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994) ). When resolving a governmental employee's assertion of qualified immunity, the court determines (1) whether the facts the plaintiff has alleged or shown establishes the violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of the incident. Stoudemire v. Michigan Dep't of Corr. , 705 F.3d 560, 567 (6th Cir. 2013) (citing Pearson v. Callahan 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ).
Once the qualified immunity defense is raised, the plaintiff bears the burden of demonstrating both that the challenged conduct violates a constitutional or statutory right and that the right was so clearly established at the time that " 'every reasonable officer would have understood that what he [was] doing violate[d] that right.' " T.S. v. Doe , 742 F.3d 632, 635 (6th Cir. 2014) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects 'all but the plainly incompetent or those who knowingly violate the law.' " al-Kidd , 563 U.S. at 743, 131 S.Ct. 2074 (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ).
In determining whether a law is clearly established, ordinarily this Court looks to decisions of the Supreme Court and the Sixth Circuit. Carver v. City of Cincinnati , 474 F.3d 283, 287 (6th Cir. 2007) ; see Wilson v. Layne , 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). If controlling authority does not clearly establish the law, this Court may consider other circuit authority. Andrews v. Hickman Cty., Tennessee , 700 F.3d 845, 853 (6th Cir. 2012). Although a prior case need not be directly on point, "existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd , 563 U.S. at 741, 131 S.Ct. 2074. The clearly established prong will depend "substantially" on the level of generality at which the legal rule is identified. Anderson v. Creighton , 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The right must be clearly established in a particularized sense, and not at a general or abstract sense. Id. at 640, 107 S.Ct. 3034. "This standard requires the courts to examine the asserted right at a relatively high level of specificity and on a fact-specific, case-by-case basis." Bletz v. Gribble , 641 F.3d 743, 750 (6th Cir. 2011) (edits omitted) (quoting Cope v. Heltsley , 128 F.3d 452, 458-59 (6th Cir. 1997) ).
*1109The Court has already considered whether the allegations in the complaint establish that the individual defendants' conduct constituted deliberate indifference for an Equal Protection claim. For Defendants Simon and Youatt, the allegations were insufficient to establish deliberate indifference. Because the allegations do not establish an Equal Protection violation, their requests for qualified immunity are moot. See Adams v. City of Auburn Hills , 336 F.3d 515, 520 (6th Cir. 2003) ; Ahlers v. Schebil , 188 F.3d 365, 374 (6th Cir. 1999) ; Mays v. City of Dayton , 134 F.3d 809, 815 (6th Cir. 1998).
Defendant Maybank is not entitled to qualified immunity for the Equal Protection claim brought by Gross. Plaintiffs have established that the relevant rights were clearly established by 2012. By 1999, education administrators would have known that deliberate indifference to claims of peer harassment violates Title IX. See Davis , 526 U.S. at 648, 119 S.Ct. 1661. In 2012, before any of these incidents occurred, the Sixth Circuit issued its opinion in Williams v. Port Huron School District . Although that case involved racial discrimination, the panel addressed a claim that individual government officials may violate a plaintiff's Equal Protection claim through deliberate indifference to claims of peer harassment. The defendants raised qualified immunity as a defense, and the court found that each defendant was not deliberately indifferent. The court then declined to determine whether the right was clearly established. Port Huron , 455 Fed.Appx. at 620. And, in August 2014, in Shively v. Green Local School District Board of Education , the court denied a claim for qualified immunity, finding that the "equal protection right to be free from student-on-student discrimination is well-established." 579 Fed.Appx. at 358. The Shively panel cited Williams , a 1999 published case from the Tenth Circuit, and a 2003 published case from the Ninth circuit. Id. The Williams and Shively opinions confirm that Plaintiffs' Equal Protection right was clearly established at the time of these incidents.
VIII.
Defendants assert Plaintiffs' ELCRA claims are barred by the Eleventh Amendment. In their response, Plaintiffs' concede that their ELCRA claims are improper and voluntarily dismiss the claims. (ECF No. 39 Pl. Resp. at 1 n.1 PageID.417.) The Court grants Defendants' motion for the ELCRA claims for the same reasons the Court grants Defendants' motion for the Due Process claims.
IX.
Defendants have demonstrated that some of Plaintiffs' claims cannot survive a motion to dismiss. Because Plaintiffs have conceded their Due Process claims, their ECLRA claims, and their claim against the Trustees for Equal Protection, those claims will dismissed. Jane Roe 2's Title IX claim must be dismissed because the complaint does not allege facts to show that MSU's response to her report was deliberately indifferent or that she was deprived of educational opportunities as the result of deliberate indifference. Plaintiffs' Title IX claims based on the DCL, the Resolution Agreement, and a policy of inaction in response to known dangers are dismissed. The DCL does not set forth standards that can be used for a Title IX claim and the Resolution Agreement was not issued when these events occurred. Plaintiffs have not alleged facts to support a claim based on a policy of inaction in response to known dangers, as that theory has been described in other Title IX opinions. The Equal Protection claims brought against Simon and Youatt are dismissed. The complaint does not plead sufficient facts to show either defendant acted with *1110deliberate indifference. For the same reason, the Equal Protection claims brought by Kollaritsch and Jane Roe 2 against Maybank are dismissed. Because the law was clearly established at the time, Defendant Maybank's request for qualified immunity for the Equal Protection claim is denied. The following claims are not dismissed: (1) Kollartich's Title IX claim against MSU Trustees, (2) Jane Roe 1's Title IX claim against MSU Trustees, (3) Gross's Title IX claim against MSU Trustees, and (4) Gross's Equal Protection claim against Maybank.
ORDER
For the reasons provided in the accompanying Opinion, Defendants' motion to dismiss (ECF No. 28) is GRANTED IN PART and DENIED IN PART.
The following claims are DISMISSED with prejudice: (1) Plaintiffs' Due Process claims, (2) Plaintiffs' ELCRA claims, (3) Plaintiffs' Equal Protection claim against Defendant Trustees, (4) Jane Roe 2's Title IX claim against Defendant Trustees, (5) Plaintiffs' Title IX claims arising from the DCL, the Resolution Agreement, and MSU Trustee's policy of inaction, (6) Plaintiffs' Equal Protection claims against Defendant Simon, (7) Plaintiffs' Equal Protection claims against Defendant Youatt, (8) Plaintiff Kollaritsch's Equal Protection claim against Defendant Maybank, and (9) Plaintiff Jane Roe 2's Equal Protection Claim against Defendant Maybank.
Also, Defendant Maybank's request for qualified immunity is DENIED.
IT IS SO ORDERED.
Plaintiffs also asserted a claim for negligence against a campus fraternity and the national chapter. Those claims, and the campus fraternity national chapter, have been dismissed. (ECF No. 48.)
Russell is mentioned only in paragraphs 5, 84 and 85. Paragraphs 5 and 84 contain conflicting descriptions of Russell's role at MSU. At best, paragraphs 84 and 85 allege that Russell was a bad supervisor. Plaintiffs allege that the mother of Jane Roe 1 complained to Russell about the manner in which the investigation of her daughter's complaint was handled and Russell did not look into the matter or call the mother back.
Defendants cite paragraph 75 for the proposition that "John Doe 2 was no longer enrolled at MSU by the time that she made her report, and never returned." (Def. Br. at 16 PageID.300.) The relevant portion of paragraph 75 does not support Defendants' proposition. It states "[f]or the first time, she did mention that John Doe 2 had withdrawn from MSU for the time being." (Compl. ¶ 27.) Jane Roe 1 filed her report on February 25. Paragraph 75 discusses a conversation in late April.
Plaintiffs allege John Doe also assaulted a female member of the Reserve Officer's Training Corps (ROTC). (Compl. ¶¶ 136 and 144.) Plaintiffs do not allege, however, that MSU was aware of the assault against the ROTC member.
Not including a caption or heading, the Court cannot find where Plaintiffs even write Simon's name in their response to the motion to dismiss, let alone describe any conduct or inaction that might provide a basis for a claim against Simon.
Similar to the lack of information about Simon the Plaintiffs' response to the motion, Youatt's name does not appear in the brief, outside of the caption or heading. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4327672/ | C-Track E-Filing
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https://www.courtlistener.com/api/rest/v3/opinions/3486204/ | This is an appeal from an order of the Baltimore City Court affirming a decision and resolution of the Board of Zoning Appeals of Baltimore City.
Sometime previous to January 1, 1931, and not before the year 1929, Charles F. Knox, the appellant, became a squatter on the lot known as No. 4403 Alhambra Avenue, Baltimore, belonging to a Mr. McColgan, and on January 1, 1931, rented the lot from Mr. McColgan at the rate of $10 per month. This lot is in a residential use D area district under Zoning Ordinance 1247 approved on March 30, 1931. A public playground of the city of Baltimore is located in front of this lot and the lot is surrounded by a residential use district. Mr. Knox was engaged in the wrecking and hauling business and dumped in a large ravine on this lot cinders and old mortar obtained from cleaning bricks and filled up the ravine on the lot principally with mortar and bricks. Paragraph 8 of Zoning Ordinance No. 1247, supra, prohibits in a residential use district storage yards for building or structural materials or equipment and yards for the display, storage or sale of motor vehicles or merchandise as well as business or *Page 90
garage uses. Private garages are permitted by Paragraph 3 of the Zoning Ordinance. In 1936, he purchased the lot from Mr. McColgan under a ninety-nine year lease and on November 9, 1936, he filed an application for a permit to erect one dwelling and one garage twenty-four feet by twenty-five feet on this lot and a permit therefore was issued on November 24th of that year. The garage was built but he did not build the dwelling. He said that he was misled by the Building Engineer's office as to the best method of getting a garage on the lot, that he was told there that if he wanted to get something quick, to make application for a dwelling and garage and he could immediately get a permit and start construction. He admitted that he intended to build a dwelling house for his son-in-law. He immediately started and built the garage but could not raise the money to build the dwelling house.
In February, 1939, the appellant filed an application with the Board of Zoning Appeals, "To construct an addition for tool storage and to continue to use lot for storage of building materials and trucks at 4403 Alhambra Avenue." The addition was to be ten by twenty-four feet. On February 28th, after a public hearing, the Board found that a non-conforming use had been established and approved the application. Paragraph 39 of Ordinance 1247, supra, provides, "that permits obtained by reason of a variance or special exception by the Board of Zoning Appeals, shall be exercised by the grantee therein named within six months from the date of the final action which made the permit valid." The applicant did not construct the addition for tool storage within six months and therefore the permit became null and void.
The addition for a tool house not having been erected within six months, in November 1939, an appeal was filed by Mr. Knox with the Board of Zoning Appeals to construct a tool house and garage at 4403 Alhambra Avenue the size to be seventy-two feet by thirty-six feet six inches. After a hearing before the Board of Zoning Appeals *Page 91
on that application, which was a much more thorough hearing than the previous one, the Board of Zoning Appeals on January 2, 1940, found that, "The weight of the evidence seems to sustain the conclusion that no non-conforming use has been established." The permit was refused and no appeal was taken from that action.
On September 4, 1940, an appeal was filed by Mr. Knox from the decision of the Building Engineer to the Board of Zoning Appeals "To construct an addition and to continue the use of the lot and the garage thereon for the storage of building material and trucks. The addition was to be twenty-four feet by twelve feet. At the hearing, Mr. Knox withdrew the part of the application relating to the right to store building materials. After a hearing before the Board of Zoning Appeals on September 19, 1940, a resolution was filed by that Board reiterating that no non-conforming use had been established and that, "at this time no facts were presented sufficient to warrant approval of a concrete block addition twenty-four feet by twelve feet to be used as a tool house. Therefore, the Board sustains the action of the Building Engineer in disapproving the permit." An appeal was taken by Mr. Knox from this resolution to the Baltimore City Court, against the Mayor and City Council of Baltimore and the Board of Zoning Appeals, and was heard by that court without intervention of a jury. A motion was filed by the Board of Zoning Appeals reciting that under the decision in the case of Board ofZoning Appeals v. Albert McKinney, 174 Md. 551, 199 A. 540, 117A.L.R. 207, that the said Board of Zoning Appeals has no right to litigate in the Baltimore City Court appeals of this nature. On the 24th day of May 1941, the Baltimore City Court passed an order that the decision and resolution of the Board of Zoning Appeals of Baltimore City dated September 19, 1940, be affirmed, and granted the petition to dismiss the appeal as to the Board of Zoning Appeals. An appeal is taken to this court by Charles F. Knox from that order. The use requested by this permit is a non-conforming *Page 92
use. Paragraph 11 of Ordinance 1247, supra, provides in part "nothing contained in this ordinance shall be construed to prevent the continuance of any use which now legally exists."
Appellant contends that the resolution passed by the Board of Zoning Appeals on February 28, 1939, holding that a non-conforming use existed at the time of the passage of the Zoning Ordinance on March 30, 1931, was res judicata as to whether the appellant had a non-conforming use in the lot in question and cites as his authority the case of Board of Zoning Appeals v. McKinney, supra. In that case the Board of Zoning Appeals notified the counsel for both parties that the application for the permit had been refused and the Board passed such a resolution at its meeting and entered it on its minutes. After this action of the Board, another attorney entered the case and asked if "the action of the Board had been sent out," and asked the Board to hold it up. The Board decided to reconsider the case which it did when the application was approved and the permit granted. This Court held in that case that the Board of Zoning Appeals had no right to reopen and reconsider the case. The facts in the instant case are very different, for in this case, the permit granted on February 28, 1939, expired and other applications for permits were made. The first permit became null, void, and non-existent by reason of appellant's failure to exercise it within the six months period. The case was not reopened but entirely new cases instituted. In Mayor and CityCouncil v. Linthicum, 170 Md. 245, 183 A. 531, an application for a permit was refused and later a second application was made for the same use which was refused and an appeal was prosecuted to the Baltimore City Court and the action of the Board of Zoning Appeals affirmed and at that time no appeal was allowed to this court. A third application for the same use was made, it being conceded that there had been no change either in the proposal, the use, neighborhood conditions, nor in the relevant ordinances. The Baltimore City Court on the third application *Page 93
reversed the action of the Board of Zoning Appeals and an appeal was taken from that action to this court. Chief Judge Bond said in that case at pages 247 and 248 of 170 Md., at page 532 of 183 A.: "`An existing, final judgment or decree rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, upon matters with its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue in the first suit.' Christopher v. Sisk, 133 Md. 48, 51,104 A. 355, 356; Emmert v. Middlekauff, 118 Md. 399, 404, 84 A. 540." The Board of Zoning Appeals not being a court of competentjurisdiction or judicial tribunal, it cannot be held that the resolution passed by that Board on February 28, 1939, was resjudicata as to whether appellant had a non-conforming use in the lot in question.
Appellee contends that if a non-conforming use existed that appellant lost the use by a change to a higher classification and that he abandoned the alleged non-conforming use. Paragraph 11 of Ordinance 1247, supra, provides in part, "A non-conforming use may be changed to a use of the same classification or to a use of a higher classification. A non-conforming use, if changed to a use of a higher classification, may not thereafter be changed to a use of a lower classification." Appellant admits that in 1936 he applied for a permit to build a dwelling and garage on the lot in question. As hereinbefore stated, he claimed that he was misled by the Building Engineer's office when he applied for this permit. Judge Offutt said in the case of Landay v. Board ofZoning Appeals, 173 Md. 460, at page 469, 196 A. 293, at page 297, 114 A.L.R. 984: "Abandonment in law depends upon the concurrence of two, and only two, factors; one an intention to abandon or relinquish; and two, some overt act, or some failure to act, which carries the implication that the owner neither claims nor retains any interest in the subject-matter of the abandonment." As to the intention of appellant and some other act on his part, he admits *Page 94
that he applied for the permit and obtained it, that he built the garage and the reason he did not build the dwelling house was because he could not finance it. He contends, however, that he never ceased storing building material and trucks on the lot.
As hereinbefore set forth, the Board of Zoning Appeals on February 28th found that non-conforming use on this lot was in existence on March 20, 1931. By its hearings on January 2, 1940 and on September 19, 1940, the Board found that a non-conforming use did not exist on this lot on March 30, 1931. Appellant being in the business of tearing down old buildings and saving the brick and other materials from thest buildings, claims that previous to March 30, 1931, he used the lot for storage of these materials. One witness testified that appellant had used the lot since 1930 for the storage of brick and cinders. A woman, from whom appellant had been renting a lot for the purpose of cleaning bricks which lot adjoins the one in question, testified that appellant had used the lot since the fall of 1930 for storing building materials and trucks. Another witness testified that material was placed on the lot in 1930. The former owner, Mr. McColgan, also testified that material was stored on the lot before 1931. It is definitely established that appellant had rented the lot since January 1, 1931. On the other hand, however, testimony was presented by protesting neighbors who testified that the lot was not in use for the storage of trucks or building materials previous to March 30, 1931, or during the year 1931. Without repeating all of the testimony, it must be concluded that Mr. Knox dumped cinders, old bricks, and mortar obtained from cleaning bricks on the adjoining lot, in the ravine on the lot in question thereby filling it in, but it cannot be concluded that the lot was used for storage of building materials and trucks previous to the passage of the Zoning Ordinance on March 30, 1931. When asked the condition of the lot prior to the time he purchased it, appellant replied, "It was just a ravine. The front of it was about two feet below street level." He further said that *Page 95
he filled it up principally with mortar and brick. A Mr. Brooks, the Zoning Engineer, testified that the Sanford Atlas Map, prior to March 30, 1931, shows the lot to be a vacant piece of land. It must be concluded therefore that the decision of the Board of Zoning Appeals and of the Baltimore City Court that a non-conforming use did not exist on the lot in question on March 30, 1931 must be affirmed.
Finally, assuming that a non-conforming use existed as to this lot at the time of the passage of the Zoning Ordinance on March 30, 1931, the granting of the permit in question would be an extension of this alleged non-conforming use. Paragraphs 12 (b), 32 (j) or 33 of the Zoning Ordinance had not been amended at the time of the hearing and resolution passed by the Board of Zoning Appeals. Chief Judge Bond said in the case of Chayt v. ZoningAppeals Board, 177 Md. 426, at pages 434, 435 and 436,9 A.2d 747, at page 750, in speaking of Zoning Ordinance 1247, supra: "It has made allowance for the continuance of non-conforming uses of land found in 1931; it has not left such uses open to expansion as businesses might render expansion desirable. On the contrary it has restricted them. Even expansion to another portion of a non-conforming building is made subject to a condition. `A non-conforming use may not be extended, except as hereinafter provided, but the extension of a use to any portion of a building, which building is now arranged or designed for such non-conforming use, shall not be deemed to be an extension of a non-conforming use.' Par. 11. And by par. 12(b) the Board of Zoning Appeals has been given power to permit in its discretion `a use of the same classification necessary or incidental to a non-conforming use now existing in a first commercial or in a residential district within fifty feet from such existing non-conforming use, provided such fifty foot measurement shall not extend across a street.' * * * Wisely or unwisely, in the zoning of the area as a residential area, the use was restricted; land held for future use was not excepted. The court does not understand it *Page 96
to be argued that stopping the expansion of non-conforming uses is an unreasonable, arbitrary, or oppressive exercise of governmental power. Lipsitz v. Parr, 164 Md. 222, 234,164 A. 743. Decisions on the subject in other jurisdictions appear to support the views here expressed, some of them going farther in restricting expansion of non-conforming uses than it is necessary for the purposes of this case. * * * The power given to the Board of Zoning Appeals to make exceptions is found in paragraphs 32 and 33, and has been held to violate the constitution in its breadth. Jack Lewis, Inc. v. Mayor and City Council,164 Md. 146, 164 A. 220; Sugar v. North Baltimore M.E. Church,164 Md. 487, 165 A. 703. And the ordinance could not be construed to intend the fullest possible breadth of the words, for if the Board might make exceptions without limit, the carefully framed provisions of the law would have no value. The contention discussed in the briefs is that power may still be validly implied from the provision in paragraph 32 (j), which restrains the making of exceptions to cases in which no hazards from fire or disease are created by it, or the public health, security or morals are not menaced. The court cannot find any power open to implication in that section, for it is merely one to restrain power given elsewhere; and it is that power given elsewhere that has been found excessive and invalid. But in this case it seems unnecessary to say more than that could not consistently with the purpose of the ordinance sanction the expansion of a non-conforming use to such an extent as has been planned. The power refers to less radical adjustments." Further in the instant case, at a hearing, after public notice given, where the Board of Zoning Appeals heard all the parties and their counsel, considered the case on its merits, the director of the Department of Public Recreation for Baltimore City, testified that the building of this garage for the storage of trucks was a hazard to the children playing on the City Playground directly across from the lot in question. He said, "The point I would like to make — there will be two entrances *Page 97
to the playground on Alhambra Avenue that will be opposite the area that is proposed for the extension of the garage, and the Recreation Department would not want to see any additional hazard created because this unpaved street without a sidewalk will be used by the children and others to come into the playground." Some of the neighbors in this residential district testified that the trucks made much noise, shook the houses, tore down hedges, and were a disturbance to this residential district and further that the dust and dirt from cleaning of bricks was very objectionable. It appears that the building of this extension to the garage, an extension of an alleged non-conforming use, would be a hazard to the public welfare, security and health of this residential district. Therefore, the order passed by the Baltimore City Court on May 24, 1941, sustaining the Board of Zoning Appeals in refusing the permit, was proper. In view of the decision of this Court in the case of Board of Zoning Appeals v.Albert McKinney, supra, that the Board of Zoning Appeals has no right to litigate in the Baltimore City Court, that court was correct in granting the petition to dismiss the appeal as to the Board of Zoning Appeals.
Order affirmed, costs to be paid by the appellant.
SLOAN and MARBURY, JJ., concur in the result. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486206/ | The plaintiff in a suit for damages for personal injuries appeals from a judgment for the defendant, entered on a verdict of a jury upon evidence on behalf of both parties and instructions by the court. Twenty-two exceptions were taken to rulings by the court on the admission of evidence, and one to rulings on prayers for instructions. The rulings on admission of evidence have all been examined in the light of the *Page 472
arguments, but found to present no reversible error; and as they have involved no questions of general importance, and no retrial will be had in the case, it is deemed undesirable to include a discussion of them in the opinion. The discussion will be confined to rulings on prayers for instructions to the jury.
Damico, a resident of Baltimore, on a visit to friends in Annapolis, left the house of his friends to take a train at what is called the Short Line Station, to leave for Baltimore at 9.40 P.M. He allowed himself little time, and reached the station close to the time of departure. According to evidence on behalf of the defendant, he reached it after his train had left, and attempted to enter instead cars not in service, but being shifted in the yard. On the details of the accident, in which he was injured, the testimony is in conflict.
The plaintiff's contention on the facts, on which he grounds a right of recovery for negligence of the defendant's agents, is that when he entered the station he saw two lighted cars standing on the track beside the platform, as if about to leave, that there was no dispatcher or other railway employee standing on or about the platform to direct him, and, assuming from the appearance of the cars before him that this was his train, he proceeded to mount the steps of one car, heard a voice, which he thought came from the forward part of the car, calling out that this was not the train he wanted, turned to get off, but was thrown off by a sudden starting of the car, without warning, and fell partly under the wheels. This was the effect of most of the evidence on behalf of the plaintiff. There was, however, some contradiction in his evidence; boys who had accompanied him to the station testified that, as the car was moving slowly off, the plaintiff was standing on the steps waving good-bye, and one boy, Frank Ristiano, said that then "it seemed as though he was aware he was on the wrong car and it looked like he jumped off," that he tried to get off. At that time another car or train was seen moving away about two hundred yards out of the station. The witnesses for the plaintiff agreed that, as they were about to enter *Page 473
the station, the plaintiff and those with him heard a whistle blown. And some of his companions urged the plaintiff to hurry for fear of missing his car.
The defendant's witnesses testified that the 9.40 P.M. train left on time, when no further passengers were in sight, and had no accident. The cars which the plaintiff tried to take stood beside the platform nearly opposite the station, out of service for the night, with a light in only the forward car, with no passengers, and no employees of the company about except two car shifters, one on the front platform of the forward car, as they started, and one standing on the bumpers between the two cars. The one who had stood on the bumpers testified that he looked out and found that there was nobody else in sight except two men standing at the end of the platform talking, seemingly not moving at all. The cars did not blow a whistle until they were out in the yard. The car shifters knew nothing of the accident until told of it later. A taxicab driver testified that he saw the plaintiff running around the corner of the station after the 9.40 train had gone, and that he, the taxicab driver, called to the plaintiff that the train had gone. A physician and a nurse, called by the defendant, testified that the plaintiff, after his removal to the hospital at Annapolis, stated to them that he had tried to catch the car as it was leaving the station, jumped on it, and fell underneath the car.
On this conflicting evidence the plaintiff prayed two instructions, and both prayers were granted, while the defendant prayed sixteen, and six of these were granted. The plaintiff filed special exceptions to the granting of an eleventh prayer of the defendant's, and these exceptions were overruled. In the argument, objections were pressed on behalf of the appellant only to the granting of the defendant's fourth and eleventh prayers, and to the overruling of the special exceptions to the latter. And we see no error in other rulings on prayers.
On the fourth prayer, the court instructed the jury "that a carrier of passengers is not an insurer of their safety, and *Page 474
for a mere accident unmixed with negligence, no action will lie, even though an injury has been done, and if the jury shall find from the evidence that there was no negligence on the part of the defendant, its agents and employees, then their verdict must be for the defendant." And the objections to this instruction are that it is too general and abstract for proper use in any case, and upon the facts in this particular case gives an inadequate and misleading guide to the jury. To these objections it seems to the court to be a sufficient answer that exactly the same instruction was held correct in the case of United Rwys. Co. v.Dean, 117 Md. 686, 691, 702, a suit by a passenger, and that it was substantially the same as instructions granted in the earlier cases of Balto. O.R. Co. v. Worthington, 21 Md. 275, 282, andStockton v. Frey, 4 Gill, 406, 416. It is, indeed, an instruction commonly given in suits by passengers. And we do not consider it too general and abstract to be a proper guide to the jury in this particular case. It is no more general than the many instructions given to define negligence for the jury. CentralRy. Co. v. Smith, 74 Md. 212, 217. And see fourth instruction granted for the plaintiff in Balto. O.R. Co. v. State, use ofHauer, 60 Md. 449, 452, 465. No error is found, therefore, in the granting of the defendant's fourth prayer in this case.
The instruction given the jury in the granting of the eleventh prayer of the defendant was that, if the jury should find from the evidence "that the plaintiff attempted to enter upon the car of the defendant when the said car was then in motion, and that the car was then being shifted and not in passenger service, and if the jury shall further find that the plaintiff knew, or by use of reasonable care could have known, that the said car was not then in passenger service, that the jury is instructed that the plaintiff did not become and was not a passenger, and consequently the only duty owing to the plaintiff by the defendant or its agent was to use ordinary care to avoid injuring him, after the defendant's agents knew, or by the exercise of reasonable care, should have known of the plaintiff's peril, and if the jury find that the defendant *Page 475
and its agents used such care as a reasonably prudent man would have used under similar circumstances to avoid injuring the plaintiff, then their verdict must be for the defendant."
This is intended as an instruction on the degree of care required of the defendant, and is not to be confused with an instruction on contributory negligence. It concerns the measure of the defendant's duty, and what is termed primary negligence, to be settled before the question of contributory negligence is taken up. Compare Payne v. Springfield Street Ry. Co.,203 Mass. 425. And it instructs, upon principles applied in many suits against carriers, that a man attempting to enter, while it is in motion, a car not in passenger service, and one which he knows or by the exercise of ordinary care could know is not in service, does not then stand in the relation of a passenger, entitled to the exercise of the highest degree of care by the company's agents, but stands at best only in the position of a licensee, entitled to the care to be exercised toward licensees.Rhoades v. Boston Elevated Ry. Co., 232 Mass. 361; Trapnell v.Hines, 268 Fed. 504. Special exceptions were filed to this prayer because of a lack of evidence to support the findings of fact which it supposed the jury might make, that the plaintiff attempted to enter upon the car when it was in motion, and that the plaintiff then knew or by the exercise of care could have known that the car was not in passenger service. Special exception was taken also to the conclusion that the plaintiff would not, under the facts stated, be a passenger, but that was only a statement of the legal relation and measure of duty, and not of a fact to be found by the jury, and there would be no place for a special exception to this conclusion as well as those to the facts from which it was to be drawn. In the opinion of this court there was sufficient evidence for the findings of fact in the testimony of the plaintiff's statement in the hospital that he tried to catch the car as it was leaving the station, in that of the car shifters that when they started the cars there was no one on the platform except two men standing at the end of it, and in their testimony that only *Page 476
the forward car of the two thus moving from the plaintiff was lighted, that all doors were closed except the front door of the forward car, and that there were no passengers in the cars, and no employees of the company about them except the two car shifters, one on the front platform of the forward car, and one standing on the bumpers between the cars, or in a closed vestibule next to it, that the time was after 9:40 P.M., and there were cars in sight departing from the station, about two hundred yards out. The special exceptions for lack of any evidence on these points were therefore properly overruled.
It is unquestionably true, speaking generally, that, while in the station for the purpose of taking a train, the plaintiff was in the position of a passenger in that he was entitled to the exercise of the highest degree of care by the carrier for his safety there. But the carrier is not held by the law to provide this extraordinary care in any situation which an intending passenger may create after he comes on the premises. If the carrier in fulfilment of its duty provides a safe and proper course for such persons to pursue, and they unexpectedly pursue other courses, they may put themselves outside the undertaking of the carrier. Wash. B. A.R. Co. v. State, use of Goodwin,140 Md. 115, 119. When a train is held at a stop awaiting passengers, there is a clear provision for taking on passengers, and an invitation to passengers to enter, and the higher degree of care is appropriate. But when the time for starting has arrived, and the train moves off, the invitation to enter is no longer held out. The train has ceased, and properly ceased, to make provision for entry of passengers at that station. "In legal contemplation the invitation of the railroad company to its passengers to board its trains, is withdrawn the very instant the train begins to move." 2 White, Personal Injuries on Railroads,
sec. 783. "If a person gets on a moving train after it has started, he is `outside of any implied invitation' on the part of the carrier, and does not at once acquire the rights of a passenger." Beale, 19 Harvard Law Review, 254. A person is not a passenger "who gets upon a railway train after *Page 477
it has started and falls off before he gets to a place of safety inside." 3 Thompson, Negligence, sec. 2636. In each of the cases of Chaffee v. Old Colony R. Co., 17 R.I. 658, and Weeksv. New Orleans etc. R. Co. 40 La. Ann. 800, it was held that one who, after his train had started, proceeded over a track which had to be crossed to take it, and was struck by another train on that track then moving, was not in the position of a passenger, entitled to the degree of care appropriate to that relation. And compare Wash. B. A.R. Co. v. State, use of Goodwin, supra. In Palmer v. Willamette Co., 88 Oregon, 322, it was held that an intending passenger who delayed on a promise of the conductor to wait a minute if the minute was not too long, and who was injured while trying to catch the train after the conductor had started, was not in the position of a passenger. "When, therefore," said the court, "defendant started its train from the depot it withdrew its invitation to board the train." In May v.Chic. B. Q.R. Co., 284 Mo. 508, the court, replying to an argument against an instruction given to a jury, said: "If plaintiff had been belated, a possibility contrary to the hypothesis of the instruction, and had attempted to board the train at the very second of its starting, after it had stood at the station during an interval long enough for every person who intended to take passage to do so by acting with due diligence, it may be that she would not have occupied the status of passenger, for the reason that the implied agreement of the company to receive her as such would have expired." And seeKentucky Highlands Co. v. Creal, 166 Ky. 469; Ohio Miss. Co.v. Allender, 59 Ill. App. 620; and note L.R.A. 1916B 832. This has been the conclusion in cases in which it was a train intended for passengers, and on which passengers were invited to enter at the proper time and in the proper manner, that had been started off. Much more clearly would the same result follow when the moving cars were not intended for passengers at all, and no invitation to board had been given. To repeat, the instruction given here was for a finding by the jury that the plaintiff was attempting to *Page 478
take a train not in service, and one which he knew or by the exercise of care could have known was not in service.
The case of Balto. Traction Co. v. State, use of Ringgold,78 Md. 409, referred to in argument, differed from the present one in presenting no question of interruption of the relation of carrier and passenger in a station. The court there had to deal with only a question of the beginning of the relation, whereas here the question is one of interruption of it. The statement in the opinion in the Ringgold case, page 427, that "the street was in no sense a passenger station for the safety of which the company is responsible," cannot be taken as a holding that, if the deceased had been improperly entering the car at a station, the preceding relation of carrier and passenger would have required of the company, even in a situation thus created, the higher degree of care due to passengers. The sentence quoted was taken from Booth, Street Railway Law, 445, on the duty of a carrier to keep its platforms and approaches in a safe condition. And the cases cited by this court on the statement were cases of injuries to persons who had been passengers, but had left the cars and were injured while walking away, one by another car and one by horses being brought around at the end of the line.
The defendant's eleventh prayer seems to the court, for the reasons here stated, to have been correctly granted in the case.
And no error being found in the rulings excepted to, the judgment will be affirmed.
Judgment affirmed, with costs to the appellee. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486210/ | This is an appeal from a decree of Circuit Court No. 2 of Baltimore City, enjoining the appellant corporation from conducting an electric lighting business within the limits of Baltimore City. The decree also required the appellant to remove, from the streets and highways of the City, the poles, wires and other apparatus which had been used in connection with such business.
The bill of complaint in the case alleged that the plaintiff was a municipal corporation, having full power and control over the streets, highways, lanes and alleys within its corporate limits, and that the defendant was a corporation, created by the State of Delaware, engaged in the business of *Page 308
transmitting and supplying electric power by means of wires or cables. That the defendant was never granted, by the State of Maryland or the City of Baltimore, the right to conduct its business within the limits of the City, nor had it any franchise or right to place any of its wires, cables or poles in, on or over any of the public or private streets, highways, lanes or alleys of the city.
It is further alleged that, notwithstanding the facts mentioned, the defendant wrongfully and illegally placed and is now maintaining certain of its wires, cables and poles in, on and over streets, highways, lanes and alleys, which are public highway within the limits and under the control of the city and particularly on and over certain named streets one of which, Frederick Road or Avenue, is a turnpike road, and is by means thereof distributing its electric current to its customers not only without legal authority but in direct violation of law.
The defendant answered the bill admitting most of its allegations, including the one that it had never been granted the right either by the State of Maryland or the City of Baltimore to conduct its business within the limits of the city, but denying the averment that it had no power or right to place its wires, poles or cables within the city limits, and insisting that the only public street on which its poles or wires were placed was Wilkins avenue, and that all of the other streets mentioned in the bill, including the Frederick road, were private and not public ones and that it had obtained the right to use that road for the purposes of its business from the Frederick Turnpike Company. The answer also asserted that the defendant having been incorporated under the laws of Delaware for the purpose of conducting, within the State of Maryland and City of Baltimore, the business of generating and furnishing electricity and having complied with all of the laws of this State in reference to forming corporations and having erected its poles and strung its wires on private roads and property in accordance with the regulations of the Inspector of Buildings of the city, it had *Page 309
the right to conduct its business as it was doing and should not be subjected to interruption by the plaintiff in the manner attempted by the bill of complaint.
The case having been heard on bill and answer and on oral statement of facts made by counsel in open Court the learned Judge below passed a decree, in conformity with the prayer of the bill, from which this appeal was taken.
The bill only charges the defendant with conducting an electric power business, but as the Court below found as a fact that it was conducting an electric light business within the limits and upon the highways of Baltimore City, and the appeal was argued before us on that basis both orally and upon the briefs, we shall assume such to have been the fact. It was also conceded that the streets occupied by the plaintiff's poles and wires, other than Wilkins avenue and the Frederick road were private streets, and that the plaintiff did not begin its operations in the city until the year 1904.
There is practically no dispute as to the facts of the case, the questions presented by the record being legal ones. The first one is whether a foreign corporaton authorized by its charter to conduct an electric light and power business in Baltimore City can use the streets and highways of the city for that purpose without having first obtained a right or franchise to do so from either the city or the State of Maryland. The second question is whether the streets and avenues mentioned in the bill are streets or highways of the city within the meaning of the Acts of Assembly hereinafter mentioned. The third question is whether the city has the right to raise by a bill in equity the issue of the plaintiff's power to conduct its business, as it is now doing, and obtain relief by injunction.
Sec. 366 of Art. 23 of the Code of 1904, requires all corporations incorporated or to be incorporated under sec. 28 of that Article, which it is conceded includes electric light and power companies, to "obtain a special grant from the General Assembly of Maryland and also the assent and approval of the Mayor and City Council of Baltimore before *Page 310
using the streets or highways of Baltimore City, either the surface or the ground beneath the same." By sec. 6 of the Baltimore City charter power is conferred on the Mayor and City Council to regulate the use of the streets and sidewalks for electric light and other wires and poles and to prohibit their erection or compel their removal, and by secs. 8, 10 and 11 the power is conferred on them to grant and to regulate the exercise of franchises in or relating to the city's highways, streets, wharves, etc. Sec. 37 prescribes the method of fixing the compensation, to be paid for the franchise, before it can be granted. These laws have been fully considered by us, in the light of the general principles of law relating to municipal government, in the cases of Edison Co. v. Hooper, 85 Md. 110, 113-114; C. P. Tel. Co. v. City, 89 Md. 682, 722; Purnell
v. McLane, 98 Md. 589 and Brown v. Md. Tel. Co.,101 Md. 574, 580. In those cases it was determined that neither domestic corporations nor natural persons could construct or maintain their lines in the streets or highways of Baltimore City without the city's consent or a franchise therefor obtained from it.
The comity exhibited by the several American States toward each other secures to a corporation created by any one of them almost the same use of its chartered powers and privileges in the territory of the others which it enjoys in the one that created it. That comity, however is always extended to foreign corporations by the domestic State in such manner as to do no violence to its own policy or injury to its own citizens, and the foreign corporation will not be permitted to exercise any powers or conduct any occupation forbidden to a domestic corporation by the laws or policy of the State. Those limitations upon the principle of comity are not only inherently just and reasonable but they are well supported by authority. 19 Cyc., 1222-5; 13A. E. Encycl., 837-842, and cases there cited. They have recently been incorporated into the statute law of this State by section 66 of Chapter 240 of the Acts of 1908, which provides that: "No foreign corporation shall engage or continue in any kind of business in *Page 311
this State, the transaction of which by domestic corporations is not permitted by the laws thereof." * * *
The application of the law thus laid down to the case before us compels us to hold that the appellant, being confessedly without any grant from the State of Maryland or the City of Baltimore of the right to conduct its business within the city, is not entitled to place or maintain any poles, wires or cables in its public streets or highways.
It is conceded by both parties that, of the streets of the city occupied by the plaintiff's poles and wires, Wilkins avenue is a public street of the city and the others are private streets with the exception of the Frederick road; so that upon this branch of the case the issue is narrowed down to the question whether that road, which is the main artery and thoroughfare used by the appellant for its poles and wires is a street or highway of thecity within the meaning of the statutes to which we have referred when interpreted in accordance with the legal principles properly applicable thereto.
That a turnpike road is a highway in the ordinary acceptation of that term may almost be said to be a matter of common knowledge. The very purpose for which they are created is to afford safe and convenient ways for public travel. That turnpikes are also highways in contemplation of law is well settled.Bouvier's Law Dictionary, Vol. 1, page 947; 29 Encycl. ofLaw, page 3. In Covington Louisville Turnpike Road v.Sandford, 164 U.S. 578, it was said by the Supreme Court of the United States: "Turnpike roads established by a corporation under authority of law are public highways and the right to exact tolls from those using them comes from the State creating the corporation." In Ulman v. The Charles St. Avenue Co.,83 Md. 144-5, this Court held that the owners of land abutting on that avenue, which was a turnpike road constructed by a corporation under authority from the Legislature like the Frederick road, could not acquire title by adverse possession to any portion of the bed of the avenue because it was a public road or highway. *Page 312
The Frederick road being a turnpike is also a highway and in our opinion the portion of it lying within the limits of Baltimore City is a "highway of Baltimore City" within the meaning of the statutes to which we have referred in this opinion. The preposition "of" used in that connection is not to be understood as descriptive of or relating to title or ownership, but as indicating location and municipal jurisdiction, and the expression "streets or highways of Baltimore City" should be held to embrace streets or roads within the limits of that city which are currently traversed without objection by its citizens in pursuit of business or pleasure, whether the municipality has or has not acquired the legal title to the land lying under them. In other words the provisions of the statutes to which we have referred were obviously intended to relate not to the title but to the use of the streets and highways to which they refer. Leaving out of view the policy strongly advocated in recent times on economic grounds of authorizing large municipalities to grant exclusive franchises for the supply of such public utilities as water, gas and electric light and power, the danger to the public of the presence of wires charged with deadly currents in, on or over the thoroughfares used by the public may well have influenced the Legislature to require from persons or corporations authorized to conduct an electric light or power business, to first obtain the assent and approval of Baltimore City before erecting poles or stringing wires upon any of the avenues of travel therein.
We have no doubt of the right of the City to invoke, as it has done in this case, the aid of a Court of Equity to restrain by injunction the unlawful continuance by the appellant of its use of the streets and highways of the city. The statutes to which we have referred not only make the obtaining of the consent or permission of the city a condition precedent to using them for the purposes of an electric light business but they also authorize the municipality to charge a fair price for all franchises granted by it for the use of its streets. It has therefore a direct and especial pecuniary interest in *Page 313
preventing the unlawful use of its streets by the appellant. Its position in that respect is analogous to that of taxpayers seeking to enjoin the violation of a statute or ordinance which would result in an increased rate of taxation or the levy upon them of especial assessments. We have uniformly held that persons whose rights are thus injuriously affected are entitled to the aid of Courts of Equity by injunction to avert the threatened injury. Baltimore v. Gill, 31 Md. 395; Baltimore v.Radecke, 49 Md. 231-2; St. Mary's Ind. School v. Brown etal., 45 Md. 310; Page v. Baltimore, 34 Md. 546; B. D.P.Ry. Co. v. Pumphrey, 74 Md. 104; Bennett v. Baltimore,106 Md. 495-6.
The decree appealed from must be affirmed.
Decree affirmed with costs. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486211/ | The plaintiff, A. Weiskittel Son Company, a corporation organized about 1907 under the laws of Delaware, with its operations in Baltimore, was engaged in the business *Page 308
of manufacturing gas ranges, soil pipe, and enamel ware. At the time of incorporation it was a partnership owned by Anton and Harry C. Weiskittel, who had inherited the business from their father, Anton Weiskittel, who entered into, about 1850, a business which, in the course of time, assumed considerable proportions. The sons of Anton went along, prospering together, until February, 1925, when Anton, son of the founder, died, leaving a will whereby he left one-fourth of his interest in the corporation (about one-half) to his sons Herbert L. Weiskittel and Francis A. Weiskittel and the remaining three-fourths to the sons in trust for his wife and two daughters. Almost immediately, when the business was about at its peak, discord arose, resulting in a bill for receivership being filed by the sons of Anton, without any foundation, except an emotional one which needs no discussion here. The upshot of all the contention was that an auction was held, attended only by Harry C. Weiskittle, his sons, Harry C. Weiskittel, Jr., and Anton K. Weiskittel, on one side, and his nephews, Herbert L. Weiskittel and Francis A. Weiskittel, on the other side. The bidding resulted in the purchase by the nephews, sons of Anton, deceased, of the interest in the corporation of Harry C. Weiskittel, for $376,000. It was openly asserted by both sides that, in the event of the purchase by either, the other would go into the same line of business as that theretofore carried on by the old concern. So there was no sale of good will; on the contrary, the inheritance of ill will and bitterness, which Anton unintentionally left behind him.
After so selling their interest in the plaintiff corporation, Harry C. Weiskittel and his sons formed a corporation under the name of "Harry C. Weiskittel Company, Incorporated," which began at once to erect a plant on the Philadelphia Road, in Baltimore, for the manufacture of gas ranges and soil pipe, entered into active competition with the old company, and made its first shipment of goods on August 20th, 1931. The old company, on July 11th, 1932, filed its bill of complaint, amended December 20th, 1932, against Harry C. Weiskittel Company, Incorporated, and *Page 309
Harry C. Weiskittel and his sons, praying: (1) That the defendants be enjoined from making "misrepresentations either express or implied whereby and wherefrom prospective customers might be led to believe that the gas ranges manufactured by the defendant corporation are manufactured by the plaintiff" which manufactures "Fire King" ranges: (2) that they be restrained from use of the name of "Harry C. Weiskittel Co., Inc.," without some descriptive text explaining that said company is not the manufacturer of "Fire King" gas ranges nor are any of its products the products of the plaintiff company, and from employing the name "Weiskittel" as any part of a corporate firm name, located in Baltimore, Md., in the manufacture of products similar to those manufactured by the plaintiff; (3) for an injunction pending the suit; (4) an accounting "of all profits made on gas ranges so fraudulently sold"; (5) a money decree; (6) general relief.
The defendants answered the bill, and demurred by way of answer to the amendment, but no action appears to have been taken on the demurrer, and, as the hearing and decision were on the merits, we can only so consider the case here.
The plaintiff makes a soil pipe under the name "Master Hub"; the defendant corporation one under the name "Star Hub," which is purchased from another concern, but as no complaint is made of the name of the soil pipe it is not in the case except as the product of "Weiskittel."
The gas range of the plaintiff, and its principal product, is known under the trade-name "Fire King." The range made by the defendant corporation is sold to the trade under the name "Real Host," and in addition it makes ranges for its customers under any name ordered, none of the names so used to date resembling in name the plaintiff's product. It, therefore, requires no argument or discussion to say that there is nothing unfair in the use made by the defendants in the brand or name of their respective gas ranges.
The whole controversy then revolves around the use *Page 310
made by the personal defendants of their surname, "Weiskittel," in the charter of their corporation and in the conduct of its business. It is conceded by the defendants that if they misrepresented their products as the plaintiff's, such conduct would be a fraud on the plaintiff which could be restrained. This would be just as true if the use of the word "Weiskittel" had that effect. The proof of fraud may be actual or constructive. The right of a corporation to the exclusive use of its corporate name is a common law right, and equity will "prohibit another from using a name so similar to the corporate name as to be calculated to deceive the public." Drive It Yourself Co. v.North, 148 Md. 609, 614, 130 A. 57. It is not necessary to await the demonstration of confusion by actual experience, as the fraud may be so transparent as to be apparent to any observer. Burtonv. Taxicab Company, 156 Md. 183, 185, 143 A. 799.
The incidents of actual confusion which arose between August 20th, 1931, and the 5th day of January, 1934, the day the hearing began, are so infrequent and trifling as compared with the number of transactions of either party as to require little, if any, comment. In nearly two and a half years there had been thirty-six letters addressed to the defendant intended for the plaintiff. In 2,529 calls on the plaintiff for service on or repairs to gas ranges over a period of fourteen months, it was found, when the plaintiff's employees called in answer to such requests, that twenty-three were on "Real Host" ranges made by defendants. There was confusion in only five or six accounts with customers, one of whom was a customer of both companies. Hecht Co. v. Rosenberg,165 Md. 116, 166 A. 440.
With such facts as illustrations of actual confusion of the two businesses, let us see what the proof of constructive fraud is, and how far it may be calculated to mislead and deceive the public into believing it may be buying the products of the defendant when it intends to patronize the plaintiff, which after all is the test of fraud, in order to be the foundation of such a proceeding as this is. Here, *Page 311
however, if there is any fraud it must be in the secondary meaning of the word "Weiskittel," in association with and as denoting the products made by the plaintiff. In other words, when the customer thinks of gas ranges, of whatever name, does he think of "Weiskittel" or is he attracted by the name "Fire King," "Real Host," "Oriole," or some other brand? Does the merchandise sell itself, or does it require salesmanship?
On its organization the defendant company published in the Baltimore Sun the following announcement:
"Announcement
"Harry C. Weiskittel, Sr.
"Anton K. Weiskittel and
"Harry C. Weiskittel, Jr., are no longer connected with A. Weiskittel Son Co.
"A new corporation, Harry C. Weiskittel Co., Inc. has been organized to manufacture a new and modern line of Gas Ranges, Cast Iron Soil Pipe and Fittings and other Plumbing Fixtures.
"We take this opportunity to thank the trade and public for the many past personal favors and the new company hopes to merit your future confidence and patronage.
"Harry C. Weiskittel Co., Inc."
On their correspondence they pasted a sticker, reading as follows:
"IMPORTANT
"We have no connection with any other company. Be careful to address your orders to
"Harry C. Weiskittel Co., Inc., "4901 Philadelphia Road, Baltimore, Maryland. "Telephone Broadway 0600."
On the bottom of its letterheads this is printed:
"NOTICE: — We have no connection with any other company. Be careful in addressing your mail."
These notices or warnings were offered by the defendants *Page 312
as evidence of their efforts to advise the public that they were going into and were in business on their own account, and to avoid any confusion of their business with that of the plaintiff, into which they had been born and to which up to that time they had devoted their energies and which was the only business they knew. On the other hand, it might be said they had cashed in all the efforts of themselves and their forebears, and the account was closed, and that the credit was on the other side, paid for in cash. Such a condition as has here developed is ordinarily averted by agreement or purchase of good will, and unless so done, the seller or one retiring may enter the same line of business provided he meets the requirements of fair competition. It evidently was on the theory that Harry C. Weiskittel, Sr., could not use his experience with the old company as an inducement to the public to deal with him in his new enterprise, that the plaintiff offered in evidence a folder advertising the products of the defendant company which contained the following:
"Harry C. Weiskittel Co. Inc.
"4601-4901 Philadelphia Road, Baltimore, Md.
"This folder shows actual photographs of our new up-to-date line of Real Host Gas Ranges, designed and built by the Pioneer Gas Range Manufacturer.
"Harry C. Weiskittel."
On this phase of the case what Justice Holmes said in the celebrated Hall Safe case (Herring-Hall-Marvin Safe Co. v.Hall's Safe Co.) 208 U.S. 554, 28 S.Ct. 350, 351, 52 L.Ed. 617, 620, is peculiarly applicable, and that is: "The advantage which it would have had, and to which the petitioner has succeeded, is that of having been first and alone for so long in the field. Some of the Halls might have left it and set up for themselves. They might have competed with it, they might have called attention to the fact that they were the sons of the man who started the business, they might have claimed their due share, if any, of the merit in making Hall's safes what they were. Whitev. Trowbridge, 216 Pa. 11, 18, 22, 64 A. 862. But they *Page 313
would have been at the disadvantage that some names and phrases, otherwise truthful and natural to use, would convey to the public the notion that they were continuing the business done by the company, or that they were in some privity with the established manufacture of safes which the public already knew and liked. To convey that notion would be a fraud, and would have to be stopped. Therefore, such names and phrases could be used only if so explained that they would not deceive."
Harry C. Weiskittel has not gone as far as the invading Halls in exploiting his former experience and business connections, and, by way of advertising in four newspapers of Baltimore, and in two trade papers, eleven publications or news items in all, has fully met the test of the Hall decision, where, farther on in the opinion, it is said: "With such explanations the defendants may use the Halls' name, and, if it likes, may show that they are sons of the first Hall and brought up in their business by him, and otherwise may state the facts."
The question then is as to the right of the defendants to use the name "Weiskittel" as part of the defendant company's corporate name, and whether this surname has so ear-marked the plaintiff's products as to make its use by another engaged in the same line of business a fraud on the public which works injury to the plaintiff. In other words, does it enable the defendants to palm off their goods on the public as the goods of the plaintiff. It is the public that must be deceived.
It has been settled over and over that there is no exclusive right in any one to the use of a surname, but at the same time it cannot be used to perpetrate a fraud and steal another's trade.
The rule as stated by Justice Brown in the "Brown's Iron Bitters" case (Brown Chemical Co. v. Meyer) 139 U.S. 540, 11 S.Ct. 625, 627, 35 L.Ed. 247, after the citation of authorities in cases where relief was granted, is: "These cases obviously apply only where the defendant adds to his own name imitations of the plaintiff's labels, boxes, or packages, and thereby induces the public *Page 314
to believe that his goods are those of the plaintiff. A man's name is his own property, and he has the same right to its use and enjoyment as he has to that of any other species of property." Or, as said by Justice White in the Singer Sewing Machine case (Singer Sewing Machine Co. v. June Mfg. Co.)163 U.S. 169, 16 S.Ct. 1002, 1009, 41 L.Ed. 118: "Although `every one has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name, in such case the inconvenience or loss to which those having a common right are subjected is damnum absque injuria. But although he may thus use his name, 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 article produced by them, and thus produce injury to the other beyond that which results from the similarity of name.'" 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. 171.
Just two years ago, this term, we had practically the same question before this court in Neubert v. Neubert, 163 Md. 172,161 A. 16, 17. An oyster packer had built up and carried on for years a business successful largely because of the reputation made for "Neubert's Oysters." Another business, carried on for years under the name "Castle Packing Company," changed its name to "Neubert Bros.," with the result that the same complaint as here was made. The defendants in that case had not only failed, but refused, to take any measures to advise the public that it had no connection with any other business of the same or similar name. The case came up on demurrer, after a temporary injunction had been granted "against the use by the defendants of the name `Neubert' in any advertisement, label, price list, or other literature in their oyster business, without accompanying it by the statement: `This firm has no connection with the original firm of Chas. Neubert Co., oyster packers of Baltimore.'" *Page 315
In affirming that order this court in conclusion said: "The provision in the order for the explanatory statement to be made by the defendants in their use of the trade-name is substantially in accordance with forms prescribed in" the federal cases there cited.
The plaintiff here contends that its products have been so signalized or branded by the name "Weiskittel" as to make its use by the defendants the perpetration of a fraud.
The plaintiff offered in evidence a catalogue and a folder from which it plainly appears that "Fire King" gas stoves and ranges are featured by name. They are not only advertised and exploited, but they are trademarked by that name as well. The name "Fire King" is so conspicuously placed on the front of every range in both catalogue and folder that the most casual observer could not fail to see it. No other words appear on them or in combination with them. If the name "Weiskittel" is on these ranges, it must be in some inconspicuous place. The plaintiff is at such pains to publicize its ranges under the trade-name "Fire King," that its business is built up around it, rather than by the exploitation of the name of the maker. So evidently the manufacturer's policy has been rather to acquire whatever prestige it has from its product, than to fasten its identity on the product, as did Hall, Singer, Baker, Knabe, Chickering, Waterman and others whose products were known by the names of the manufacturers.
There is no evidence in this record that the defendants have done any act on their part to fool the public into the belief that their goods are the goods of the plaintiff with no imitation of any name or brand of the plaintiff's products. All they have done is to build a factory which produces two lines of goods which make them rivals and competitors for business of the same kind made by a corporation containing the same surname as that of the plaintiff, which was also the surname of the personal defendants and owners of the stock of the defendant corporation. It would have been another case if, as so frequently *Page 316
has happened in these unfair competition cases, they had appropriated a name. If that had been the case the purpose would have been so manifest as to have revealed the fraud without any other evidence. The measures the defendants took to disclaim any connection with the plaintiff's business, to meet the requirements of the rules laid down by this and other courts, as herein cited, indicate that they took advice of capable counsel as to what course they should pursue in launching and carrying on their business, so as to avoid public misunderstanding or actual confusion. The chancellor was right in denying the injunction, and for the reasons which we have adopted.
Decree affirmed, with costs. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486212/ | This is an appeal from an order of the Baltimore City Court, affirming an assessment made for the year 1928, by the State Tax Commission of Maryland, of the capital stock of the appellant, the Baltimore and Philadelphia Steamboat Company, a Maryland corporation.
The State Tax Commission assessed appellant's stock at the rate of $30 per share, making a total assessment of $422,100 prior to deduction of assessed value of its Maryland real estate. The aggregate assessment for the preceding year 1927, at the rate of $23.50 a share, was $330,645. The assessed value of the stock, therefore, for the year 1928, was $91,455 in excess of its aggregate assessment for 1927. Its par value at $20 per share was $281,400.
A protest was promptly made by the company to the State Tax Commission, in which it contended that the increase in the assessed value of the stock was wrongfully made, as there was nothing to justify such increase in its value. The company, as it stated, had, the previous year, failed to pay any dividends and had suffered loss of revenue, and though it had added to its fleet a large new steamer, the John Cadwalader, of over 500 dead weight tons, it was largely built on borrowed money, and the earnings of the company, due to her operation, had not been increased thereby. In addition thereto, it was contended by the appellant that said steamer was "exempt from all taxation in this state, for state or local purposes," under article 81, section 9, of the Code of Public General Laws of this State, which reads as follows:
"All vessels of over five hundred (500) deadweight tons registered at any port in this state and owned by an American citizen, partnership or association, or by any corporation incorporated under the laws of the State of Maryland, regularly engaged in foreign or coastwise commerce, between any port *Page 281
in the State of Maryland as the port of origin and terminus of their respective voyages and any other port or ports beyond the limits of the Chesapeake Bay and its tributaries, are exempted from all taxation in this state for state or local purposes; and, in ascertaining or determining the aggregate value and the taxable value of shares of the capital stock of any corporation incorporated under the laws of this state, in the manner provided in section 166 of this article, the value of such vessel property owned by any such corporation shall be excluded, anything in said section 166 to the contrary notwithstanding, until and including December 31st, 1935."
A hearing was had upon the protest of the appellant, whereupon the State Tax Commission rendered its finding, "that said vessel is regularly engaged in commerce between a port in the State of Maryland, to wit: The port of Baltimore, as the port of origin and terminus of its respective voyages and a port beyond the limits of the Chesapeake Bay and its tributaries, to wit: the ports of Philadelphia and Chester, Pennsylvania, situated on the Delaware River, and that, in making its voyages between these points, it traverses the Patapsco River, Chesapeake Bay, Elk River, Back Creek, the Chesapeake and Delaware Canal and the Delaware River," and "that at no place during its voyages between the points of origin and terminus does it touch on the sea coast and at no time is it engaged in foreign or coastwise commerce."
An appeal was taken to the Baltimore City Court from such finding. A motion was filed in that court, by the Attorney General of the State, asking that the appeal be dismissed on the ground that "there is no right of appeal prescribed by law in cases of this character." This motion was overruled and we think properly so. The first reference to this question is found inFidelity Trust Co. v. Gorman, 134 Md. 338, where it is said: "The appeal to the court below, and the present appeal were taken under sections 239 and 245 of Vol. 3, article 81 of the Code, as enacted by the Act of 1914, ch. 841, and no question appears to have been made in the lower court, and none has been made in this court, as to the right *Page 282
of appeal under those sections from the action of the commission in assessing the shares of stock of a corporation, as distinguished from appeals from the decisions of the commission when reviewing the action of the county commissioners of the counties or the Appeal Tax Court of Baltimore City. Without stopping to consider how far that question has been disposed of in the cases of M. C. Hyattsville v. C. P. Tel. Co.,131 Md. 589, and Mayor, etc., of Baltimore v. German American F.Ins. Co., 103 A. 980, and assuming that the sections referred to authorize an appeal to the Baltimore City Court in cases like the present, the question to be determined here is whether the petition of the appellant in the lower court and the record of proceedings before the commission presented any question reviewable by that court."
Since the decision in that case, there have been a number of cases heard by this court on appeal from the lower court to which an appeal had been taken from the action of the State Tax Commission in assessing the shares of stock of corporations as in this case. State Tax Commission v. Eureka Life Insurance Co.,150 Md. 380; Schluderberg Co. v. Baltimore, 151 Md. 603;Industrial Corporation v. State Tax Commission, 134 Md. 379. In the last of these cases, the expression is used "further appeals have been taken by the corporation to this court, as permitted by sections 239 and 245 of article 81 of the Code." With this recognition of the right of appeal in these cases, we are not now disposed to put any construction upon the statute at variance with such established practice and the views expressed in the cases above cited.
The remaining question to be decided is whether the John Cadwalader, the steamer in question, is regularly engaged in foreign or coastwise commerce. It is needless to say that she was not engaged in foreign commerce. Therefore, we are left to determine whether she was engaged in coastwise commerce.
The meaning of the term "coastwise commerce," as defined by lexicons or dictionaries, differs from the meaning given to it by the courts, both federal and state, when called upon to construe statutes in which the term is used. We must, *Page 283
therefore, determine whether we shall accept the definition of the lexicographers, or that of the courts, in construing or interpreting the statute in question. When there is nothing in the statute indicating that it was the intention of the Legislature that the definition of the term, as given by the dictionaries, should be applied in construing the statute, it would seem that the definition of the courts and not the definition of lexicographers should be accepted, and it may, we think, be assumed that the Legislature in such case intended that the term should be given the meaning universally given to it by the courts in construing or interpreting statutes in which it is used.
In Ravesies v. United States, 37 Fed. 447, which was an appeal from the District Court, it was said, in reversing the decision of that court: "The error assigned in the case, and the only matter presented to this court for decision, is whether the words, `any vessel engaged in the coastwise trade,' * * * include vessels engaged in the carrying trade on navigable rivers, or is to be limited to vessels engaged in the carrying trade along the sea-coast. The district judge held, and gave judgment accordingly, that `coastwise trade' means trade or intercourse carried on by sea between two ports or places belonging to the same country, and does not include trade carried on on the navigable rivers. I am inclined to the opinion that this interpretation is too narrow. In the statutes of the United States relating to commerce, navigation, and revenue, the words `coasting trade' and `coastwise trade' are used synonymously. See Act April 14, 1874 (Rev. St., secs. 2513, 4358); 16 Op. Atty.Gen. 247. In the case of Gibbons v. Ogden, 9 Wheat. 214, it is said by Chief Justice Marshall, in giving the opinion of the court: `The coasting trade is a term well understood. The law has defined it, and all know its meaning perfectly. The act describes with great minuteness the various operations of a vessel engaged in it, and it cannot, we think, be doubted that a voyage from New Jersey to New York is one of those operations.'" *Page 284
In the case of United States v. The James Morrison, 26 Fed. Cas., page 581, the court said: "The `coasting trade' is a part of the commerce among the several states; and it is not the less a part of that commerce, because the vessel navigates only from port to port, in the same state, up and down a navigable river of the United States, and never goes beyond the state boundary."
In the case of San Francisco v. California Steam NavigationCo., 10 Cal. 504, the action brought was to recover of defendants a sum of money for harbor dues in the City and County of San Francisco, imposed upon its vessels plying between San Francisco and Sacramento, and San Francisco and Stockton. Defendants demurred to the complaint and the demurrer was overruled and judgment entered for plaintiffs, and from that judgment an appeal was taken. The court on appeal said:
"The acts relied on by respondent impose these dues on all vessels plying coastwise and entering the harbor of San Francisco; and the only question raised on the record is, whether the defendants' vessels are embraced by this definition.
"The terms `plying coastwise,' in this connection, and the `coasting trade,' have a settled meaning. They were intended to indicate vessels engaged in the domestic trade, or plying between port and port in the United States, as contradistinguished from those vessels engaged in the foreign trade, or plying between a port of the United States and a port of a foreign country. This is evident from the various regulations of commerce made by the acts of Congress and otherwise, and the numerous decisions of supreme courts of the Union and of the several states. (SeeBenedict's Admiralty, 131, 123, 28, 35; 1 U.S. Stat. atLarge, 55; Ib., 94; Ib., 305; 3 Ib., 492; 5 Ib., 304; see also 1 Wendell, 557; Blackwell v. Walker; Gibbons v.Ogden, 9 Wheat., 1.)."
The opinion then quotes from Livingston v. Steamboat Co., 3 Cow. (N.Y.) 477, in which the court, giving a definition of the words `coasting trade,' said: "According to the definition of the coasting trade, as extracted from the Act of Congress *Page 285
of February 18, 1793, it means commercial intercourse carried on between different districts in different states, between different districts in the same state, and between different places in the same district, on the sea coast or on a navigable river. Agreeably to the definition a voyage in a vessel of suitable tonnage from New York to Albany is as much a coasting voyage as from Boston to Plymouth or New Bedford. In both, thetermini are in the same state, and within the navigable waters of the United States; though in one the navigation is upon a river; in the other on the ocean. * * * In corroboration of this construction is the fact that all vessels employed in navigating the river take a coasting license."
As said by counsel for appellant in his brief: "It is plainly evident that the Legislature thoroughly understood what it was doing, because in the very same sentence in which the words `foreign' and `coastwise' appear, there is added the limitation that the exemption is not intended for traffic confined to the Chesapeake Bay and tributaries. How can it possibly be contended that if the General Assembly only had in mind traffic passing along the seacoast on the Atlantic Ocean, they would have found it necessary to specify that steamers plying only within the limits of the Chesapeake Bay and its tributaries were excluded? This clearly demonstrates that they use the term `coastwise' in its commercial or maritime sense as defining the class of water-borne commerce that included the Bay traffic as well as that which goes outside the Capes to other domestic ports."
It may also be said that to hold that it was the intention of the Legislature to extend the exemption from taxation to steamers passing out of the capes into the ocean in their voyages to ports within or without the state, and not to grant exemption from taxation to steamers passing through the canal in their voyages to ports without the state, would be creating a distinction not based upon logic or reason. Or, in other words, we think it would be unreasonable and illogical to hold that it was the intention of the Legislature that a steamer of the size mentioned, trading between the ports *Page 286
of Baltimore and Philadelphia, which in its voyage passes out of the Patapsco River into the Chesapeake Bay and then southward
in the bay to the capes and into the ocean and thence up the coast and the Delaware River to Philadelphia, would be exempt from taxation, while a steamer of the same tonnage trading between the same ports, which in its voyage passes out of the Patapsco River into the Chesapeake Bay and northward in the bay to the Chesapeake Delaware Canal and through the canal to the Delaware River and thence to Philadelphia would not be entitled to such exemption from taxation, when the object and purpose of the statute, it would seem, is to induce American owners of steamers, of the class mentioned, to register in a Maryland port.
The court below, we think, was in error in holding that the steamer John Cadwalder was not exempt from taxation under the statute in question, and we reach this conclusion after a full consideration of the well established principle that tax exemptions are to be strictly construed.
The order appealed from, sustaining the assessment of the State Tax Commission of Maryland against the appellant company, will be reversed and the cause remanded that the assessment may be corrected conformably with the views here expressed.
Order reversed, and cause remanded. *Page 287 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486213/ | This is an appeal from a decree of Circuit Court No. 2 of Baltimore City, granting unto Edna Gernand Hilbert, the appellee, a divorce a mensa et thoro from her husband, George Albert Hilbert.
On February 5th, 1934, a bill of complaint was filed by the appellee praying for a divorce a mensa et thoro, and *Page 366
for permanent alimony, alimony pendente lite, and counsel fees, and for an accounting for such personal property, belonging to her, as the defendant has in his actual or constructive possession, and for general relief.
Edna Gernand Hilbert and George Albert Hilbert were married October 27th, 1925. They lived together in Baltimore City until July 15th, 1933, when the complainant left her husband because of alleged cruelties. There were no children born to them, but Mr. Hilbert had a son by a previous marriage, about seventeen years of age, who resided with them. Mrs. Hilbert had been previously married.
In her bill of complaint, in substance, the plaintiff alleges that her conduct towards the plaintiff has always been faithful, affectionate, and chaste, and that her entire behavior has been above reproach; that the defendant, with the intention of breaking their marital relations, had, for a long time prior to July 15th, 1933, conducted himself towards the plaintiff in such a manner that she, through fear of bodily harm and physical violence, was forced to leave him, and that this separation occurred on or about July 15th, 1933; and "that among other things the conduct of the defendant towards the plaintiff consisted of threatening and abusive language, threats of physical violence and actual physical violence, to such an extent as to cause the plaintiff to be fearful and apprehensive of her own safety." She further alleges that the conduct of the defendant towards her constitutes an abandonment and desertion of her by the defendant and is deliberate and final, and the separation of the parties is beyond any reasonable expectation of reconciliation. There are other allegations in the bill concerning property rights, and a statement of the financial ability of the defendant.
In his answer the defendant specifically denies acts of cruelty, undertakes to explain his ownership of the property, and his income; alleges that the plaintiff left him without just cause or provocation. He charges that he has invited his wife to return to him and that she has refused to do so, and on the 17th day of October, 1927, and *Page 367
prior to their marriage, the parties entered into an agreement with respect to their property, providing "that if unhappy differences should arise between the parties resulting in a separation, no claim or demand shall be asserted or attempted to be asserted by either against the other for alimony, counsel fees or the like."
Testimony in the case was taken in open court. On the 24th of September, 1934, a decree was passed granting a divorce a mensaet thoro to Edna Gernand Hilbert from her husband and ordering the defendant to pay her twenty-five dollars per week as alimony. The property rights and counsel fees were held for further consideration. From said decree, this appeal was taken.
The marriage of the parties did not prove to be happy. After the first six or twelve months, serious differences arose between them, and for a number of years these differences became more frequent, culminating into tirades of abuse, and then into acts of cruelty and oppression, in which numerous assaults were made by the defendant upon the plaintiff, extending over a long period, all of which is charged by the complainant and all of which is substantially and satisfactorily corroborated by a number of witnesses.
To review in detail that part of the testimony relating to these numerous assaults, tirades of abuse, and serious difficulties which extended down to the time of a trip to Florida, and after Mr. Hilbert's return from Florida and Chicago to the time of the actual separation, would serve no good purpose.
The facts in this case divide themselves into two classes, those which occurred prior to and during a trip to Florida and to the Century of Progress at Chicago, and those that occurred after Mr. Hilbert's return to Baltimore from these trips, and down to the time of their separation.
There is no testimony in the case as to the actual striking or beating of the complainant between the time of Mr. Hilbert's return to their home and the time she left him, although there is testimony with corroboration as to his *Page 368
tirades of abuse, violence of conduct, and threats during this period. There is no doubt that the treatment received by Mrs. Hilbert prior to his starting upon his trip to Florida, which lasted some three and a half months, would have justified her in leaving their home and seeking a divorce. The important questions in this case, which require consideration, arose while Mr. Hilbert was on his trip to Florida and Chicago, and after he had returned home, and before the separation. In this connection there are two questions of importance:
First. The effect upon this litigation of the numerous letters of encouragement, hope, and affection written by the complainant to the defendant during his absence in Florida and elsewhere.
Second. Whether the demeanor and actions of the defendant towards the complainant, after he had returned home, taken in connection with all the facts in the case, justified the complainant in leaving him, and bringing this suit.
Considering these questions in their order, the record shows that, during Mr. Hilbert's absence of approximately four months Mrs. Hilbert wrote about thirty-six letters to him. Three and a half months were spent in Florida and about two weeks in Chicago and elsewhere. All of these letters contained many expressions of endearment, hope for their future happiness and welfare together, assurances of helpfulness, and a willingness to make sacrifices upon her part. In general terms, this describes the character of the numerous and lengthy letters sent to him while he was away from home. The contention is made that such letters are inconsistent with the facts as testified to by Mrs. Hilbert. It is contended by the defendant that no person who had received at the hands of another such brutal and cruel treatment as she claims she had experienced could possibly entertain such feelings of devotion, and give expression to such sentiments, as were contained in her letters, and that the conclusion is that no such cruelties had in fact ever been inflicted upon her. *Page 369
Mrs. Hilbert's answer to this contention is that she was doing everything in her power to bring about a satisfactory state of affairs in their home when he returned, and to give him all possible encouragement and help to accomplish this. Such was the purport of her testimony. A question by counsel, and an answer by Mrs. Hilbert, describes this situation fairly and comprehensively: "Q. If Mr. Hilbert treated you in the manner you have described prior to his leaving for Florida why did you write him such perfectly splendid letters as these letters are? A. Before Mr. Hilbert left, for several days he was very, very sweet and kind to me. He begged and pleaded with me to forget, to excuse all the different things he had done; said he would go to Florida and take care of himself, he would not drink; that while he was gone I could look for a little house in the country that I had always wanted; he was going to come back and our lives would be — were going to be what I hoped it would be. So when he left for Florida, I gave him every bit of encouragement that I could possibly give him, and Mr. Sherwood, you yourself know I wanted to take my own money to pay the bills that were outstanding, so he would come back and there would be nothing in the world to upset him."
Corroborating, explaining, and amplifying this testimony, it appears that, shortly before Mr. Hilbert went to Florida, there was a conference held, at which were present Mr. Carman, Mrs. Hilbert's attorney, Mr. Sherwood, Mr. Hilbert's attorney, and Mr. and Mrs. Hilbert. At that conference the situation of the parties, both as to property and as to their domestic relations, was discussed and considered. Mr. Hilbert's testimony as to the subjects covered at this meeting was at variance to that of Mrs. Hilbert, but he finally admitted, when closely questioned by the chancellor, that their marital relations were considered. Mrs. Hilbert testified that they were discussed, and Mr. Hilbert admitted at that time that he had struck her. This statement upon the part of Mrs. Hilbert was not denied by any one. Mrs. Hilbert testified, *Page 370
"After that conference it was decided on a divorce." Then Mr. Hilbert begged and pleaded with her not to do this, and he decided to go to Florida for a rest and vacation. He told her he would take care of himself and come back and things would be entirely different. To this she seems to have assented, and to aid and encourage him she declares she wrote the letters and hopefully awaited his return, and the fulfillment of his promises. Her conduct seems to have been impelled by a sincere desire to re-establish their home upon a less pretentious plan, with the renewed purpose of going forward in life in a better and happier course. This explanation, we think, is a sufficient answer to the contention of the defendant that no person who had been treated so cruelly as Mrs. Hilbert claims to have been treated could have written such letters to the person charged with such cruelty. In the failure of the Park Bank, of which Mr. Hilbert was a director, he had passed through a most severe strain. Mrs. Hilbert recognized this and the letters show a desire to encourage and to be helpful to him, and in that behalf her attitude was commendable, and indicates her desire to live with him and not to be separated from him, and her leaving the home must have been actuated by serious and compelling causes.
The law favors condonation and forgiveness, because these are the means by which people may be reunited or deterred from separation and resorting to the courts in cases such as this, and Mrs. Hilbert should not be penalized for doing that which is favored by the law, and the presumption of good faith should be accorded to her. Fisher v. Fisher, 93 Md. 298, 303, 48 A. 833, and cases cited.
The second matter, as above indicated, which should have special consideration in this case is the question: Did the conduct of Mr. Hilbert, after his return from Florida and the Century of Progress, justify her in leaving him and seeking the relief prayed for in the bill? Mrs. Hilbert's course of action in forgiving and condoning the past offenses of her husband, and his direct promises *Page 371
of reformation, immediately before he went to Florida, and her letters to him while he was away from home, certainly raise a presumption that she hoped and expected that his promises would be fulfilled upon his return. The forgiveness, and forbearance to sue, which he requested of her and which she gave, were based upon these promises. This is not questioned in the evidence.
Mr. Hilbert remained in Florida three and a half months. It might be inferred that this was ample time for him to regain his health and strength, and to form a definite purpose of fulfilling his promises to his wife, and to fulfill those obligations to her that the law placed upon him in consideration of her forgiveness, and to create a desire to return to his home in Baltimore. Instead of this, he asked her to meet him in Washington, which she did, and from there they went to Virginia to visit relatives. During this visit his conduct towards her was agreeable and pleasing, but while in Virginia he concluded that he would like to go to the Century of Progress and attend to some business in that section of the country; therefore he and his son, who had been with him in Florida, took the car and set out for Chicago, Mrs. Hilbert returning to Baltimore by train. He stayed about two and a half weeks. She never heard a word from him, although she continued to write letters of endearment and hopefulness to him.
He returned home without advising her when he was coming, and she states that he met her with tirades of abuse, which continued over a period of eight days. Five of these tirades, as she testified, happened within that period and he resumed his old habit of drinking. He called her all manner of names, threw things at her, got drunk a good bit, and drove her to distraction. This is the purport of her testimony. At that time her health was not good. Dr. Galvin was attending her. In consequence of this treatment she states she was "simply physically and mentally worn down and could not stand any more." She does not charge him, during this time, with actually striking her, as he had often done in the past. *Page 372
It seems that immediately upon his return, Mr. Hilbert did exactly those things he had promised not to do. Instead of taking up life in a better spirit, and pursuing a different course toward his wife, he resumed that conduct which in the past had preceded or accompanied his acts of violence towards her.
Mrs. Hilbert recognized this situation immediately, and had a right to infer that his conduct would be the forerunner of those acts of repression and cruelty which previously had been inflicted upon her. We think it was not her duty or obligation to remain longer with him, and to await a recurrence of those cruelties which she had formerly experienced. His promises, both expressed by him and implied by law, when she forgave him before he went to Florida, were broken; therefore his acts of cruelty in the past were, by operation of the law, revived, and may be taken as a part of the evidence in this case in determining her right to relief.
This conclusion is supported by authorities in this state and elsewhere. "Condonation is forgiveness, with an implied condition that the injury shall not be repeated, and that the party shall be treated with conjugal kindness; and on breach of this condition the right to remedy for former injuries revives."Fisher v. Fisher, 93 Md. 298, 301, 48 A. 833, 834, and numerous cited authorities; 2 Greenleaf on Evidence, sec. 53.
The doctrine is well established that a lesser offense, or a failure to observe and practice conjugal kindness, will serve to revive more serious offenses that have been condoned; a revival of misconduct does not depend upon a repetition of like or more serious offenses; for example, misconduct constituting a just cause for separation will revive a condoned cause for absolute divorce. Cruelty is a breach of the implied condition of condonation and will revive the charge of adultery. Fisher v.Fisher, supra, and citations. It is held that acts in themselves not sufficient to support or justify the granting of a divorce may be sufficient as a waiver of the condonation and to revive the alleged offense. In 2 Bishop on Marriage, Divorce *Page 373 and Separation, sec. 308, it is said: "All condonation, especially implied, is upon the condition that the offense shall not be repeated, and likewise that continually afterwards the party forgiven shall treat the other with conjugal kindness, whereupon the breach of the condition revives the original right of divorce."
In the case of Johnson v. Johnson, 14 Wend. (N.Y.) 637, where the husband's adultery had been condoned by his wife, the condonation was destroyed by the husband's subsequent neglect to attend to her comfort, by insulting her by opprobrious epithets, and by pursuing a course of conduct towards her calculated to wound her feelings, although no subsequent adultery or even acts of violence are charged.
In Robbins v. Robbins, 100 Mass. 150, it was said that when the wife had condoned the husband's cruelty by cohabiting with him after it was inflicted, but the husband, very shortly after the condonation of his past, for six weeks refused to speak to her, though living in the same house, the condoned cruelty was revived. The court said that such evidence of persistent unkindness and ill temper warranted the wife and the court in inferring that his smothering anger would break out again into acts of cruelty. This doctrine is cited with approval in the case of Fisher v. Fisher, supra.
It follows that the conduct of Mr. Hilbert, after he returned from Florida, may not in itself be sufficient to constitute grounds for divorce, but nevertheless is sufficient to revive his former actions and misconduct, which had been condoned, and which do constitute sufficient grounds for divorce a mensa et thoro. His want of conjugal kindness, as evidenced by his abuse, threats, his throwing things at her, intoxication, and tirades of abuse, simply wore her down mentally and physically, so "that she could stand it no longer." Her physical condition, the result of this misconduct, has corroboration in the testimony of Dr. Galvin and Mrs. Sauerwein. The acts of cruelty having been revived after his return from his visit to Florida and Chicago, it is upon these earlier cruelties *Page 374
that a right to a divorce is founded. Without going into extended detail, a review of these facts and of their corroboration should be given.
As is usual in such cases, the appellant denied acts of cruelty, but the testimony is that upon numerous occasions he struck her, and these acts extended over a long period of time. The results of such brutalities were bruises over various parts of her body. Her face, her limbs, and her body, at one time or another, showed distinctive marks of brutality. It has been testified that as a result of these acts she was nervous and in a terrified condition. Mrs. Crusse, a nurse, cared for her several times. Her sister, Mrs. Packard, testified that she had seen Mr. Hilbert strike and beat her on the stairs at their home. Mr. Norris corroborates some of these incidents, as does Mrs. Packard. On two occasions police were called by Mrs. Hilbert for her protection, and a number of times she was compelled to leave home for refuge with her own people. There were threats of violence to her, and upon one occasion he told Mrs. Sauerwein he would break her damn face. This is corroborative of the testimony that previous to this statement her face had shown marks of violence. His cruelties, as set forth in the record, and as corroborated by a number of witnesses, and by Mrs. Hilbert's condition after these outbreaks of passion and violence upon the part of Mr. Hilbert, are clearly indicative of the conduct of Mr. Hilbert towards his wife. The testimony of the defendant was brief and inconclusive. His evidence does not carry satisfactory force and effect. But two witnesses, Gertrude Hall, a servant in the family, and Mr. Hilbert's son by a former wife, were called by the defense. Mrs. Hilbert had testified that Gertrude Hall and the son had seen Mr. Hilbert strike her. Mrs. Hilbert is not supported in this, but the boy did say he had seen his father assume a threatening attitude towards his wife, and he had remonstrated with him, telling him he could not strike her in his presence. Gertrude Hall told Mrs. Hilbert (at least she did not deny telling her when she was on the stand) that she did not want to *Page 375
testify for Mrs. Hilbert because she was afraid she would lose her position. She had a mother who was ill, and a blind father, dependent upon her. She had every incentive to protect her employer as much as possible. She had every commendable reason to desire to retain her position. The helplessness and dependency of a sick mother and a blind father, both of whom were doubtless advancing in years, were the strongest influences in shaping her testimony. The other corroborating witness, the young son, was to be pitied, and the court below suggested that he be not further examined, after testifying, as above recited, and that he had found his father under the influence of liquor at a hotel after he had disappeared for several days. Obviously, testimony of this character cannot be accredited with very much force. It seems that the appellee has fully met the requirements as to corroboration, and has also discharged her burden of proof in a most substantial and conclusive manner.
The parties to this suit undertook to enter into the antenuptial contract to which reference has been made, by the terms of which it is provided, in paragraph five: "In the event that unhappy differences should arise between the parties hereto, resulting in a separation between the parties, no claim or demand shall be asserted or attempted to be asserted by either party hereto as against the other for alimony, counsel fees or the like," etc. The appellant did not press this question in the Court of Appeals, or, it seems, in the lower court, and suffice it to say such contracts are held to be void as against public policy, and, as this contract has not been asserted as a defense, it requires no further consideration.
For the above stated reasons, it is the opinion of this court that the decree from which this appeal was taken should be affirmed.
Decree affirmed, with costs to the appellee in this and thelower court. *Page 376 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486215/ | On the 6th of September, 1908, Miss Maggie V. Hugg, of Baltimore City, died, leaving a last will and testament, and a codicil thereto, by which she disposed of her entire estate, consisting of real and personal property, valued, according to the statement of counsel, at about $800,000.00. The will contains numerous items of bequests and devises to relatives and friends and for charitable purposes, amounting to considerable over $100,000.00, and the rest and residue of the testatrix's estate is devised and bequeathed to her cousin, William S. Thomas, of Baltimore City.
The testatrix left as her only next of kin and heirs at law the following first cousins on the side of her mother, viz: Mrs. Mary C. Tarbert and her brothers and sisters, J. William Strobel, Albert P. Strobel, Edgar R. Strobel, Mrs. Barbara S. Winks, Mrs. Helen S. Jacobs and Mrs. Nellie E. Clair, representing one branch of the family, and Mrs. *Page 415
Azalia Thomas, mother of William S. Thomas, representing another branch, and a number of second cousins on the side of her father. Counsel for the appellants and appellees agree that if Miss Hugg had died intestate her first cousins on her mother's side would have taken each one-eighth of her personal estate, and that her real estate, valued at about $200,000.00, would have passed to her second cousins on the part of her father.
Caveats were filed to the will and codicil by J. William Strobel, one of the maternal first cousins, and by William S. Hugg and others, her paternal second cousins, and issues were sent to the Superior Court of Baltimore City for trial. The case came to trial on the 27th of October, 1909, and on the following day, according to the docket entries, "on account of sickness of a juror the jury was discharged and the case passed." Thereafter, on the 22nd day of December, 1909, William S. Thomas, the caveatee and the residuary legatee and devisee and executor under the will, and the first cousins of the testatrix on her mother's side entered into the following agreement:
"This Agreement, Made this 22nd day of December, in the year one thousand, nine hundred and nine, by and between William S. Thomas, party of the first part, and J. Wm. Strobel and R. Lee Strobel, his wife; Albert P. Strobel and Harriet G. Strobel, his wife; Edgar R. Strobel and Mary G. Strobel, his wife; Barbara S. Winks and William M. Winks, her husband; Mary C. Tarbert and Upton H. Tarbert, her husband; Helen S. Jacobs and Horace L. Jacobs, her husband, and Nellie E. Clair and Lamuel Clair, her husband, parties of the second part:
"Whereas, the parties of the second part are contesting the validity of the papers offered for probate as the last will and testament and the codicil thereto of Maggie V. Hugg.
"And whereas, The party of the first part does declare that the said paper writing offered for probate *Page 416
as the last will and testament and codicil of Maggie V. Hugg are valid in every respect.
"And whereas, The party of the first part is residuary legatee, devisee and executor under said papers, and all of the parties hereto are desirous of terminating any and all litigation in regard to the validity of said papers and of agreeing upon the terms of a division of her estate in any event.
"Now, therefore, in consideration of the mutual promises and agreements each made with the other, and as accord and satisfaction of their differences regarding the disposition of the property of the late Maggie V. Hugg, deceased, the parties hereto agree as follows:
"1. That all of the parties hereto will co-operate in having the validity of said will and codicil of Maggie V. Hugg and all legacies and devises therein made, sustained and confirmed in every particular, and especially the legacy and devise made to William S. Thomas and Thornton Rollins, trustees, of the sum of fifty thousand dollars ($50,000), and the farm at or near Sykesville, in Howard and Carroll Counties, Maryland, and the legacies and other devise made to Zaidee T. Thomas (the devise being of a house and lot known as No. 1302 Eutaw Place, Baltimore, Maryland), all of which said William S. Thomas, as residuary legatee, will confirm by appropriate deeds.
"2. The party of the first part is to be allowed by the Orphans' Court of Baltimore City and paid the usual commissions as administrator pendente lite,
and upon the confirmation of the will and codicil, Albert P. Strobel shall be joined with the party of the first part in letters of administration d.b.n.c.t.a., to be granted to them, and commissions shall be allowed and paid as the Orphans' Court may think proper, provided that the total both for administration pendente lite and d.b.n.c.t.a. shall be the sum of twelve thousand dollars ($12,000), and any amount above this be waived; and the said commissions shall be so *Page 417
allowed that Albert P. Strobel shall be paid twenty-five hundred dollars ($2,500) net as his portion of the commissions, and William S. Thomas will receive the balance for his services for acting as administrator.
"3. It is further agreed, That William S. Thomas and Albert P. Strobel will be appointed administrators d.b.n. of the estate of any of the deceased brothers and sisters of the late Maggie V. Hugg where administration is necessary, and that the costs thereof will be charged to the general estate and paid thereout before the distribution herein made.
"4. The party of the first part shall be allowed in the accounts to be passed in the estate of Maggie V. Hugg, deceased, all moneys paid out by him in settlement of any debts due by the deceased or contracted or paid out by him in burial or other expenses, and shall also be allowed such sums as have been contracted or paid out by him or for which he would be liable as administrator, whether contracted, paid, or the liability arises in connection with the real or personal estate of the deceased; he shall also be paid commissions for acting with Thornton Rollins as trustee of the real estate as may be allowed by order of the court for services already performed or to be performed, the court expenses and counsel fee to be fixed by court; there shall also be paid out of the estate the court costs in the courts of Baltimore City incurred in connection with the said estate.
"5. The party of the first part is authorized to negotiate the best settlement possible with all the Hugg heirs on the paternal side, and is to turn over to them such an amount of money or such property of the estate as may be necessary in his judgment to effect a full settlement with them; such money or property to be charged one-half against the party of the first part and one-half against the parties of the second part in making the final division of the estate hereinafter set forth, or in his judgment he may contest the caveats filed to the said will and codicil. *Page 418
"6. After making all the payments hereinbefore mentioned, and excluding the property mentioned in said will and codicil, the balance of the estate passing to the party of the first part under the residuary clause, if the will be sustained, or if not then in any event is to be divided one-half to the party of the first part and one-fourteenth each to J. William Strobel, Albert P. Strobel, Edgar R. Strobel, Barbara S. Winks, Mary C. Tarbert, Helen S. Jacobs and Nellie C. Clair, parties of the second part.
"7. In the event of a failure to effect a settlement with other claimants not parties hereto, it is understood that such failure shall not in any way affect the settlement hereby agreed upon between the parties hereto, and in such case whether, as a result of a contest with such other claimants, the said will and codicil be sustained or held invalid, in either case out of the amount received by any of the parties hereto, whether as legatee or as heir-at-law or next of kin, as the case may be, the same distribution and settlement shall be made between the parties hereto as agreed upon, upon the assumption that the will shall be sustained, the settlement in such event so made with the party of the first part to be considered as including the interest of Azalia H. Thomas, with whom the party of the first part will make settlement out of one-half of said estate transferred to him.
"8. It is agreed that for purposes of the adjustment to be made between the parties hereto, the estate of Maggie V. Hugg, deceased, shall be construed as including all property of every kind, real or personal, of which she was seized or possessed, or to which she was entitled, including all property of every kind to which the said Maggie V. Hugg, deceased, became in any way entitled by or through her deceased brothers and sisters, whether reduced to legal title and possession by her in her lifetime or not, especially including all property in which the said Maggie V. Hugg had a life interest, with undisposed remainder *Page 419
or reversion in the heirs of her mother, or any of her ancestors or collateral relations, whether the said remainder or reversion be vested in the said Maggie V. Hugg so as technically to pass under her will or not.
"9. It is further understood and agreed that the parties of the second part do hereby jointly and severally agree to indemnify and save harmless the said party of the first part, his heirs, personal representatives and assigns to the extent of the net value of the estate transferred or passed to them by the said William S. Thomas against one-half the amount of any claims or demands that may be made upon him or them from any source, as residuary devisee or legatee under said will and codicil of the late Maggie V. Hugg, and do jointly and severally agree to unite with him in the defense of any such claim or demands and bear one-half the expense of resisting the same.
"10. In the event that any of the bequests under the said will should not be accepted, then the same are to be treated as part of the residuary estate.
"11. It is agreed that the parties hereto shall pay their respective counsel for all fees and expenses incurred in their behalf up to the time of the signing of this agreement.
"In testimony whereof, The parties hereto have hereunto signed and sealed this agreement the day and year first above written.
J. Wm. Strobel. (Seal) Albert C. Strobel, (Seal) Attys. for Brothers and Sisters. Wm. S. Thomas. (Seal)."
On the day the above agreement was executed, a jury was impanelled in the Superior Court of Baltimore City and rendered a verdict sustaining the will and codicil. The record was sent to the Orphans' Court, and on the following day, December 23rd, 1909, the Orphans' Court admitted the will and codicil to probate, and at the request of William S. *Page 420
Thomas, made in pursuance of said agreement, letters of administration c.t.a. were granted to him and Albert P. Strobel. It also appears from the bill, answer and record in this case that William S. Thomas, in pursuance of the agreement, settled with all the paternal heirs of Miss Hugg, who, in consideration of the payment to them of the aggregate sum of fifty thousand dollars, conveyed and assigned to him by deed all their interest in the estate of the testatrix; that all of the legacies provided in the will were paid, and all the property devised and bequeathed, except the property devised in paragraphs 16 and 17 of the will, was disposed of as therein provided, and the entire balance of the estate, including the proceeds of sale of the two properties referred to in paragraphs 16 and 17 of the will, which the devisees refused to accept because of certain conditions attached to the devises, was distributed by the administrators, in accordance with the terms of said agreement, one-half thereof to Mrs. Tarbert and her brothers and sisters and the other half to William S. Thomas.
One of the items of the will, and the one to which this controversy relates, is as follows:
"Item No. 14 — I give and devise unto Thornton Rollins and William S. Thomas as trustee and the survivor of them, the heirs, administrators and assigns of the survivors the farm in the State of Maryland located in Howard and Carroll Counties and formerly belonging to my brother Marion, also the sum of fifty thousand dollars, in special confidence nevertheless, and to, for and upon the following uses and purposes, to wit: In trust to use the income arising therefrom after investing the same, in creating and maintaining in Howard County a home for orphan children, the said home to be known as the `Hugg Home,' in memory of my sisters and brothers, and with full power to them and their successors in the trust to regulate the institution in every way possible, and also with full power to change the investments in which any of the trust funds may be invested, provided the same is *Page 421
reinvested on the same trusts as are herein declared, without it being obligatory in the purchaser or purchasers to see to the application of the proceeds of the purchase money. In memory of my deceased brothers and sisters."
In August, 1915, Mrs. Mary C. Tarbert and her husband filed a bill of complaint in the Circuit Court No. 2 of Baltimore City against William S. Thomas and Thornton Rollins, trustees, William S. Thomas individually, the administrators c.t.a., the other maternal first cousins, the paternal second cousins and the unknown heirs of the testatrix, in which they allege, in addition to the matters we have stated, that the devise and bequest mentioned in paragraph 14 of the will are "wholly void and of no effect," and that under the terms of the agreement of December 22d 1909, the plaintiff, Mrs. Tarbert, and her brothers and sisters are entitled to a one-half interest in the farm and to one-half of the $50,000.00 mentioned in said paragraph of the will; that Thornton Rollins and William S. Thomas, trustees, "have made no attempt, by forming a corporation or otherwise, to carry out whatever may have been the intention of the testatrix as provided in said paragraph 14, or attempted to establish the home for orphan children therein referred to, but said named trustees have limited their acts to the collection of income from the property devised and bequeathed and the payment of the taxes on the same." The eleventh paragraph of the bill is as follows:
"That, as hereinbefore stated, while your Orators charge and aver that the devise and bequest provided for in paragraph 14 of the last will and testament of the said Maggie V. Hugg are void and of no effect and, while it appears that the income from the fund therein provided for is wholly inadequate to support a charitable institution, yet, as hereinafter shown, your Orators desire this court's determination as to whether said alleged trust should in some manner be carried out and performed, and your Orators are unwilling *Page 422
further to allow the said questions to remain undetermined, and either desire to have said trust fully performed or to have the one-half part of the property, the subject of said alleged trust, delivered to them under and by virtue of said agreement of December 23, 1909."
The bill prays (1) that the will, and particularly the 14th paragraph thereof, and the agreement of December 22d 1909, be construed, and that a decree be passed determining the parties entitled to the property mentioned in said paragraph of the will, and (2) "Should this Court determine that the said paragraph 14 of the last will and testament of Maggie V. Hugg, deceased, is valid, or that the same should be in some manner made effective, and should the said Thornton Rollins, one of the trustees named therein, desire to retire from his said trusteeship, then that a decree may be passed determining the objects and purposes of said trust and the manner in which the same shall be administered and appointing one of your oratrix, Mary C. Tarbert's, brothers trustee in the place and stead of the said Thornton Rollins."
The brothers and sisters of Mrs. Tarbert answered the bill admitting the allegations thereof, and three of the paternal second cousins of the testatrix answered neither admitting nor denying the averments in regard to the validity of the devise and bequest in question. The record does not show whether the bill was answered by the other heirs at law of the testatrix, or by Thornton Rollins, trustee, but William S. Thomas, in his own right and as trustee, filed an answer in which he denies that the devise and bequest in paragraph 14 are void, and alleges that in view of the agreement of December 22d 1909, the plaintiffs have no right or standing in a court of equity to attack said devise and legacy. He further alleges that a small portion of the money received by the trustees under the clause referred to has been used in making necessary improvements on the farm, and that the balance has been invested by the trustees and the interest allowed to accumulate; *Page 423
that he has always been ready, willing and anxious to carry out the wishes of the testatrix as expressed in said paragraph, but that the trustees have not yet founded the home for orphan children because of the difficulty of determining the best method of effectuating the intention of the testatrix, and whether the bequest was sufficient to enable them to establish and maintain the home; that after careful investigation and consideration he had concluded that the best course to pursue would be to form a corporation, to be known as the "Maggie V. Hugg Home for Orphan Children," with power to conduct a home of the kind mentioned in the will, and to convey and assign the property mentioned in said paragraph to said corporation; that the devise and bequest would be sufficient to enable such a corporation to carry out to some extent at least the desire and wishes of the testatrix.
Testimony was taken in open Court, and after argument of counsel, the Court below passed the decree dismissing the bill from which this appeal was taken.
Having set out the 14th paragraph of the will and the agreement of December 22d 1909, and having stated generally the other provisions of the will, it is not necessary to refer to the other evidence in the case, most of which has no bearing upon the question involved, further than to say that it shows that the trust property and funds have been carefully preserved by the trustees, and that Mr. Thomas disclaims any interest therein other than that of a trustee ready and anxious to carry out the wishes of the testatrix and to devote the property to the trust provided for in her will.
The theory upon which the bill was filed, and the contention of the appellants in this Court is that the devise and bequest are void, that a void trust can not be made valid by agreement, and that under the agreement of December 22d 1909, the plaintiff, Mrs. Tarbert, and her brothers and sisters are entitled to one-half of the trust property. *Page 424
It is conceded that if the devise and bequest in question are void, the $50,000.00 mentioned in paragraph 14, under the terms of the will, which was admitted to probate, fell into the residue of the estate and passed under the residuary clause to William S. Thomas, while the real estate vested in the paternal second cousins of the testatrix as her heirs at law. Dulany v.Middleton, 72 Md. 67; Rizer v. Perry, 58 Md. 112. It must also be conceded that in order to maintain a bill of this kind the plaintiffs must allege and show their interest in the subject of the suit, or right to the thing demanded. Miller's Eq.Proc., sec. 98 and notes; Sellman v. Sellman, 63 Md. 520;Hamilton v. Traber, 78 Md. 26; 39 Cyc. 90. In order to meet this requirement the appellants rely upon the agreement of December 22d 1909. When we turn to the agreement we find that the plaintiffs, and the brothers and sisters of Mrs. Tarbert, in consideration of the share of the estate they were to receive, and which they did subsequently receive from the administratorsc.t.a., expressly agreed in paragraph 1 that they would co-operate in having the validity of the will and codicil, and all legacies and devises therein made sustained and confirmed in every particular, "and especially the legacy and devise made to William S. Thomas and Thornton Rollins, trustees, of the sum of fifty thousand dollars ($50,000.00), and the farm at or near Sykesville, in Howard and Carroll Counties, Maryland." After providing for the payment of commissions to the administrators, costs and expenses of administration, debts of the deceased and the amount agreed upon in settlement with the paternal heirs of Miss Hugg, the agreement, in paragraph 6, then provides: "After making all the payments hereinbefore mentioned, and excluding the property mentioned in said will and codicil, the balance of the estate passing to the party of the first part under the residuary clause if the will be sustained, or if not then in any event is to be divided one-half to the party of the first part and one-fourteenth each to J. William Strobel, Albert P. Strobel, *Page 425
Edgar R. Strobel, Barbara S. Winks, Mary C. Tarbert, Helen S. Jacobs and Nellie C. Clair, parties of the second part." In paragraph 10 the parties further agreed that: "In the event that any of the bequests under the said will should not be accepted, then the same are to be treated as a part of the residue of the estate."
It is clear from this reference to the terms of the agreement that the parties thereto never intended the plaintiff, Mrs. Tarbert, and her brothers and sisters to have any interest in the property mentioned in paragraph 14 of the will. In the agreement as to what should constitute the residue of the estate, in which the plaintiff was to share, "the property mentioned in said will and codicil" is expressly excluded, and it was only in case a bequest was not accepted that the amount or subject of the bequest was to become a part of the residue of the estate and subject to the division agreed upon.
The $50,000.00 mentioned in paragraph 14 of the will was paid to and accepted by the trustees, and the farm was conveyed to William S. Thomas, one of the trustees, in pursuance of the agreement between him and the paternal heirs of the testatrix.
It is urged on behalf of the appellants that the agreement, when properly construed, means that the plaintiff, Mrs. Tarbert, and her brothers and sisters were to receive one-half of the residue of the estate, after the settlement with the paternal heirs and the payment of the costs, debts, etc. But, as we have seen, the residue thus provided for was not to include the property mentioned in the several bequests and devises in the will, except in a case where the bequest or devise was not accepted, and that the parties to the agreement never intended the plaintiff to receive any part of the property mentioned in the 14th paragraph of the will is further evidenced by their agreement, in paragraph 1, to "co-operate" in having the validity of the legacy and devise "sustained and confirmed in every particular." This construction of the agreement can not be met by the suggestion that *Page 426
the parties thereto never intended that William S. Thomas should hold the property mentioned in paragraph 14 in his own right. It was incumbent upon the plaintiff to show their interest in the subject of the suit. Moreover the record shows that the $50,000.00 is now held by the two trustees, and Mr. Thomas disclaims all interest in the property except as trustee.
It follows from what has been said that the plaintiffs have failed to show that they have an interest in the subject of the suit, or their right to maintain the bill for the purpose of having the devise and bequest declared void. But apart from this view, the plaintiffs in consideration of the share of the estate which Mrs. Tarbert was to receive, agreed to "co-operate" with the other party to the agreement "in having the validity of" the devise and legacy in question "sustained and confirmed." Having made this agreement, and having participated in the distribution of the estate accordingly, the plaintiffs can have no standing in a Court of equity to repudiate their obligation and attach the validity of the devise and bequest. It is said in 39 Cyc. 90: "In general the validity of a trust may be questioned only by one who will be entitled to some interest in the property in case the trust is declared invalid, and then only when he is not estopped. Consequently strangers to the trust have no right to attack it. * * * The creator of a trust and his heirs may under some circumstances be estopped from questioning the validity of the trust. * * * Beneficiaries are also prohibited from claiming under the trust and at the same time asserting that it is invalid." In the case of Long v. Long, 62 Md. 33, the Court said: "It would certainly be against equity and conscience to allow them (the plaintiffs) to receive the money and also to recover the land for which the money was paid. That could not, upon any principle, be allowed. Having made their election to receive the money, they must be taken to have ratified the sale by which the money was, in part, produced. And that the sale was originally void, as to them, *Page 427
can make no difference; for it is now perfectly well settled that sales either voidable or void may be ratified by the acts of the parties in interest. They may be ratified, either directly, or by a course of conduct which will estop the party from denying their validity; and especially so in a Court of equity." The same principle is recognized in In re Richards' Trust Estate,97 Md. 608, where a bill was filed to set aside a deed of trust and where the Court held that the parties had ratified the trust, CHIEF JUDGE McSHERRY saying: "In the face of these emphatic acts of ratification it would be useless to further consider or discuss the averment of mistake."
As the plaintiffs have no standing in a Court of equity to have the devise and bequest in the 14th paragraph of the will declared void, and are estopped by their agreement from attacking the same, it is not necessary for the Court in this case to pass upon the validity of said trust. And as they did not create the trust, are not the beneficiaries of the trust, and are not charged with the execution of any part of it, and have no interest in the trust property, there is no ground upon which they can ask a Court of equity to assume jurisdiction of the trust, or invoke the jurisdiction of the Court for the appointment of a trustee in the place and stead of one of the trustees appointed by the will who may desire to retire from and resign the trust. The record in this case does not disclose an application by either of the trustees appointed by the will to be relieved of his trust, and sec. 245 of Art. 16 of the Code expressly provides how a trustee who has accepted a trust may be released and discharged from its further execution.
For the reasons stated, the decree of the Court below dismissing the bill of complaint must be affirmed.
Decree affirmed, with costs. *Page 428 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486252/ | The appellant sued the appellees for an alleged breach of a contract, but a verdict was rendered for the appellees under instructions of the Court, and this appeal is from the judgment entered thereon. The sale was by Henry Zoller Co., merchandise brokers, and the following memorandum was made:
"Baltimore, Md., June 19, 1913.
"Sold for account of the Hazel Hill Canning Co., Inc., Fredericksburg, Va., to Messrs. Roberts Bros., Balto., Md., 5,000 Cases Standard No. 3 Tomatoes, `Merry Mill' Brand, at 80c. per dozen f.o.b. Fredericksburg, Va., 1913 Packing, to be shipped during the packing season. Usual six months' guarantee against leaks and swells. Goods guaranteed to conform with the National Pure Food Law, June 30th, 1906. Buyers to have the privilege of using their own labels, being allowed 90c. per 1,000 for same and Buyers' labels to be put on free of cost to Buyers.
"Terms: Cash, less 1 1/2%, 10 days.
"Ship await instructions."
That was accepted by Roberts Brothers and signed by the brokers. Three exceptions were taken to the rulings on the evidence and a fourth to the granting of two prayers, that the plaintiff was not entitled to recover — the only material difference between them being that the first did not refer to the pleadings, while the second did. We will first determine whether they were properly granted.
J.J. Fisher, the secretary of the plaintiff, testified that the "packing season begins about August and ends about latter part of October. As goods are packed we allow from two to four weeks to develop swells or leaks, after which they label the goods and put them in cases; that the Hazel Hill Canning Company proceeded to comply with said contract and received instructions in regard to it from the defendants." On September 10th, 1913, Roberts Brothers wrote to the Canning Company: "We are shipping you today by boat *Page 308
to Fredericksburg, Va., labels to label up our purchase of tomatoes." That was acknowledged by a letter dated the next day, in which the Canning Company said: "We would appreciate it if you would be good enough to give us shipping instructions." On September 13th, Roberts Brothers wrote to the Canning Company: "We are sending you today instructions for three cars which amounts to 1,800 cases. You will kindly ship these out and by the time that you get them out you will kindly ask us for more instructions, and we will supply you with them * * * We are sending you more labels today by the boat." The instructions enclosed in that letter were as follows:
"Please ship via M.D. V. Ry. Co. c.o. M. M.T. Co., at Balto., c.o. Kanawha Des., c.o. Vandalia to Hulman Co., Terre Haute, Ind., Big `R' Brand. Consign from Roberts Bros., 1,800 cases Big `R' Brand 3 lb. Tomatoes. Ship these in three cars of 600cs. in each car. Be sure and follow the above instructions to the letter.
"Contract No. ____ Roberts Brothers.
"Important — Mail Bill of Lading to this office promptly."
On September 15th, the Canning Company acknowledged receipt of the shipping instructions, and said: "Kindly give us a little fuller instructions, as we are at a loss to understand just how we can manage to ship in three cars of 600 cs. each car, when the shipment is to go part way by boat." To that Roberts Brothers replied on September 16th:
"Yours received and noted. You can just put 600 cases on the steamer which makes a minimum car, and let them come along, or you can put two 600-case lots aboard and make out the B-ls as you would to ship them by the car, showing the consignee and destination, but you will kindly not break either one of these lots, you must (send) 600 cases in each shipment. You can ship one, two or three cars at the same time aboard the boat, if you see proper, but you want separate *Page 309
B-ls and the consignee and destination on each one of the 600 case lots."
Mr. Fisher testified that after receiving the shipping instructions he shipped 600 cases of tomatoes and he identified the bill of lading which was offered in evidence, "and is a straight bill of lading — original — not negotiable, issued at Fredericksburg, Va., on September 26th, 1913, by the Maryland, Delaware and Virginia Railway Company, showing the receipt of 600 cases of Big `R' Brand tomatoes No. 3 from Roberts Brothers, to be delivered to Hulman Company, Terre Haute, Indiana. Route M.D. V. Ry. Co., c.o. M. M.T. Co., at Baltimore, c.o. Kanawha Des., c.o. Vandalia." It was signed Roberts Brothers, Shipper, per Henry Warden, and also by the agent of the carrier.
On September 26th the Canning Company wrote to Roberts Brothers, stating that following their instructions they had forwarded that day the tomatoes, and added: "Being much in need of funds, we have today made a draft on you for the amount, less 1 1/2% ten days, and have attached Bill of Lading to the draft, with instructions for the latter to be delivered to you upon the acceptance of the draft." The draft was for $945.60, payable ten days after sight to the order of Planters National Bank, bill of lading attached. On the back of it, when offered in evidence, were the words: "Goods not purchased under these terms. Writing," signed Roberts Bros. It was admitted that the amount of the draft was for the contract selling price of the 600 cases, less the 1 1/2% provided for in the contract, but did not allow the 90 cents per thousand for the labels. On September 26th, Roberts Brothers wrote the Canning Company, acknowledging its letter of that date, and added: "We have returned the draft together with the B-L owing to the fact that the goods were not purchased upon these terms. We don't have to buy goods draft attached to B-L."
On September 27th the Canning Company replied as follows: *Page 310
"We have your favor of the 26th instant, returning our draft not accepted by you. The explanation in your letter is not that noted on the draft. That in your letter may be correct, that you do not have to purchase goods with draft attached to bill of lading, but that noted on the draft is not correct. The goods were purchased under these exact terms. Our contract calls for cash in ten days, or a discount of 1 1/2% at any time within ten days. We have exercised our option to take the cash at 1 1/2 per cent. Such being the case, and your refusal being a repudiation of your contract, we have wired the M.D. V. Ry. Co. as follows: `Hold subject to our order 600 cases canned tomatoes shipped Roberts Bros. by Henry Warden, Fredericksburg, to Hulman Co., Terre Haute, Ind."
On September 30th, the Canning Company also wrote as follows: "Enclosed please find the original Bill of Lading for 600 cases of Big R Brand No. 3 tomatoes shipped to Hulman Co., Terre Haute, Indiana." Mr. Fisher testified that the bill of lading enclosed in that letter was the one offered in evidence, and was then unrestricted. He then identified the following letter from Roberts Brothers to his company, dated September 30th, 1913:
"Referring to the car of tomatoes that you shipped on our contract, we note that you shipped the same draft attached to B-L. As the goods were not bought this way, therefore we did not honor the draft.
"We further note that you say that you wired the Md. D. V. Rwy. to hold subject to your order 600 cases canned tomatoes shipped to Roberts Bros. by Henry Warden, to Hulman Co., Terre Haute, Ind. This matter is entirely up to you. We suppose that you have refused to ship Hulman Co., Terre Haute, Ind., as per our instructions, so you will kindly return the shipping instructions that we gave you, please, as these people are in a hurry for the goods and we have sent the same down to one of our other factories *Page 311
for shipment. So you will kindly make no further shipments, as we note that you have cancelled the contract."
On October 2nd, Roberts Brothers wrote:
"Yours received with enclosed B-L covering car of tomatoes that you shipped for our account to Hulman
Co., Terre Haute, Ind. We are compelled to return this as we have made other arrangements for shipping these goods. You did not ship the goods according to contract. From the tone of your letter we considered the contract cancelled and we have already confirmed the cancellation. We are sorry that you treated us this way. So we herewith return you your B-L as we can not use the goods."
On October 3rd the Canning Company returned the bill of lading to Roberts Brothers, and stated that:
"Until it developed from correspondence that you thought the terms of payment were different from what we took them to be, your refusal to honor our draft left us no alternative but to stop the goods in transit until it could be definitely ascertained what the trouble was with the draft. We yielded our views as to terms, accepting your interpretation of that portion of the Sale Memorandum and promptly released the goods that had been shipped. We therefore have to insist upon your making payment. These goods have gone forward on your order, labelled and stenciled according to your directions. We have a considerable portion of the balance of the quantity called for by the contract labeled and stenciled under your instructions. These facts sufficiently answer your suggestion that we are repudiating our contract. These goods go forward on what you have now explained as your construction of the terms of payment." *Page 312
So far as appears from the record, that letter gave the appellees the first information that the appellant had "released the goods," and that they had gone forward, although according to the evidence that had been done on September 29th. The subsequent correspondence shows that the Canning Company was demanding performance of the contract and that Roberts Brothers claimed that the company had treated the contract as at an end, and they had affirmed its cancellation.
It is clear that the Canning Company had no authority under the contract to require Roberts Brothers to accept the draft as a condition precedent to obtaining possession of the bill of lading. There is no such provision in the contract, and there is nothing in the record to show, either that such had been the course of dealing between the parties or that there was such a custom, when the terms were such as those in this case. The shipping directions sent on September 13 included: "Important. Mail Bill of Lading to this office promptly." In its letter of September 15 asking for fuller instructions no suggestion was made that that would not be done, and it was not until it had sent the bill of lading with the draft attached that the appellees had notice of such intention. In Lawder Co. v.Mackie Grocery Co. 97 Md. 1, the sale was of "seven hundred (700) cases, two pound, Quail Tomatoes, at fifty-two and one-half cents per dozen. Terms, cash, less one and one-half per cent." We held that that could not be construed to mean that such a credit as the custom of trade allowed was given, and if cash was paid that a discount of one and one-half per cent. would be made, but that the parties having agreed that the terms should be "cash," "they then agreed upon the discount, which was doubtless allowed by reason of the cash payment being agreed upon."
In this case the contract reads, "Terms, Cash less 1 1/2% 10 days." The meaning undoubtedly was that payment within ten days from delivery should be treated as cash, and such *Page 313
payment entitled the buyer to the discount of one and one-half per cent. The parties did not agree that a draft should be attached to the bill of lading and that the latter should not be delivered until the draft was accepted. It might put a buyer to great inconvenience, or cause him considerable loss, if the seller without authority from the buyer could read that into the contract. The seller might be under contract to deliver the goods by a certain time to his vendee, and might be absent from home for a considerable part of the ten days, leaving behind him no one who was authorized to accept a draft, as a draft and acceptance had not been agreed upon or contemplated. If the seller intends to require the buyer to accept a draft, it is easy to so state in the contract if the buyer is willing, and if he is not willing such a contract will not be made by him.
In addition to what we have said, the draft was for more than was due. By the contract, the buyers were to be allowed 90 cents per thousand for labels used on the cans and furnished by them. As there were two dozen cans in a case and there were 600 cases in the shipment, there were 14,400 labels — for which the appellees were entitled to a credit of 90 cents a thousand, amounting to $12.96. The draft was for that much more than was due. That is not denied, but the secretary of the Canning Company testified that he did not deduct it, "as he thought that could be deducted on later shipments." That is not a large sum of money when considered in connection with a deal of 5,000 cases, but the appellant had no right to demand it and hold up the possession of the bill of lading until the draft was accepted, although the secretary knew it was for more than was due — even if he and the president did not know that they had no right to require the acceptance of a draft for the correct amount, which judging from their actions they did know. They stated in their letter of September 26 not that "in accordance with our contract" "we have today made a draft on you for the amount," etc., but "being much in need of funds we have *Page 314
today made a draft," etc., and after they found the position they had put the company in they endeavored to revive the contract and were willing to accept the appellees' construction of it.
So there can be no doubt that the appellees were under no obligation to accept the draft in order to get the bill of lading, and the appellant had no right to impose that condition. If that were all, it might be argued that it would not be sufficient to authorize the appellees to treat the contract as rescinded or broken, but when the appellees, by letter of the same date as the one from the appellant notifying them of the shipment and of the draft, acknowledged its receipt and said: "We have returned the draft together with the B-L owing to the fact that the goods were not purchased upon these terms. We don't have to buy goods draft attached to B-L," and returned the draft with the endorsement mentioned above, the appellant wrote the letter of September 27th quoted above. It will be seen from it that the appellant not only asserted its right to require the acceptance of the draft, but telegraphed to the railway company to hold the tomatoes subject to its order, because, as it stated in the letter, the refusal of the appellees to accept was a repudiation of the contract. That letter is not in harmony with the one of October 3rd to Roberts Brothers in which the secretary wrote, "your refusal to honor our draft left us no alternative but to stop the goods in transit until it could be definitely ascertained what the trouble was with the draft." The proper course to have pursued was to inquire of the appellees, if they did not know, the cause of the refusal to accept when the draft was returned, but instead of doing that the President and Secretary of the company went to Baltimore on Monday, the 29th, and ordered the goods to be released, but did not even call upon the appellees, much less inquire of them why the draft was not accepted or notify them that they had released the goods. On that day while in Baltimore they had *Page 315
the tomatoes forwarded to the address given by the appellees by the instructions of September 13th, and on September 30th they enclosed to the appellees the original bill of lading. On that day the appellees wrote to the Canning Company the letter quoted above. Those letters of September 30th apparently crossed each other, and on October 2nd the appellees wrote, returning the bill of lading and stating that they had made other arrangements for shipping the goods, and added: "You did not ship the goods according to contract. From the tone of your letter we considered the contract cancelled, and we have already confirmed the cancellation" — referring, as we understand, to their letter of September 30th.
The appellant treated the refusal of the appellees to accept the draft "as a repudiation of your contract," and for that reason wired the railway company to hold the tomatoes subject to their order. Although by the contract they were to be delivered at Fredericksburg, and the appellees were named as the consignors in the bill of lading, the appellant assumed control of them at Baltimore, had them shipped to Hulman Co., at Terre Haute, and sold them to that firm "at 75c. per dozen, less Baltimore rate of freight." When that sale was made or how the appellant got possession of them, if the bill of lading sent to the appellees was still outstanding, is not explained. The appellant had no right to interfere with the shipment by the appellees to Hulman
Co., and under all the circumstances which we have stated we are of the opinion that the appellees had the right to rescind the contract when they did, and the subsequent attempt of the appellant to revive it, or correct its error, by sending the bill of lading without a draft attached, did not have the effect of giving it new life.
The contract in this case did not provide that the goods were to be delivered "by stated instalments which are to be separately paid for," and hence it is unnecessary to discuss section 66 of Article 83 (Uniform Sales Act), but if it had *Page 316
so provided, or can be so construed, the circumstances of this case justified the appellees in treating the contract as rescinded or cancelled, of which they gave the appellant prompt notice. If the construction put on it by the appellant was applicable to the shipment of the 600 cases, it was applicable to the 5,000 cases, and as the appellant treated the refusal of the appellees to accept a draft as a repudiation of the contract, and hence took control of the tomatoes, which they had held in Baltimore, there would seem to be no doubt that the appellees had the right to treat the whole contract as rescinded. InEnterprise Mfg. Co. v. Oppenheim, 114 Md. 368, this Court, through JUDGE PEARCE, said: "In Norrington v. Wright,115 U.S. 188, recognized as a leading case in this country, the Supreme Court held that in a contract for the sale and purchase of 5,000 tons of iron rails, with subsidiary provision for shipments in different months, and for payment upon each delivery, the seller's failure to ship the required quantity the first month gives the buyer the same right to rescind the whole contract that he would have had if it had been agreed all the goods should have been delivered at once, and that case has been approved and followed in Salmon v. Boykin, 66 Md. 550, and in later cases in this Court."
It was said that the principle involved had been recognized and applied in McGrath v. Gegner, 77 Md. 331; Baltimore City v.Schaub, 96 Md. 534, and Webster v. Moore, 108 Md. 595. JUDGE PEARCE also said: "It is quite clear upon principle that there can be no valid distinction between the exercise of the right of rescission by the vendor for the failure of the vendee to pay for an instalment delivered, and the exercise of the same right by the vendee upon failure of the vendor to deliver an instalment of goods conforming to the article described in the contract."
Again he said: "This doctrine is applicable to failure in delivery of, or payment for, any instalment under the contract, whether the first, or any later one, the rights of the *Page 317
parties being the same as to any unperformed part of the contract, as if that part had been the whole contract. ClevelandRolling Mills v. Rhodes, 121 U.S. 264; Pakas v.Hollingshead, 184 N.Y. 111; 3 L.R.A., N.S., 1042."
Even if there was error in any of the first three rulings, it could not affect our conclusion as to the right of the appellant to recover, and it is not necessary therefore to further prolong this opinion by discussing those exceptions. Being of the opinion that the Court was right in withdrawing the case from the jury, we will affirm the judgment.
Judgment affirmed, the appellant to pay the costs. *Page 318 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486289/ | The bill in this case was filed by the complainants for the enforcement of certain mechanics' liens held by them and others against Henry Hensel, the owner, and J. Edmund Eckstine, the builder, of five houses situate in Baltimore County. Hensel in his answer admits he is the owner of the houses, but denies that the complainants or the defendants claiming to be lienors, have any lien and that "whatever claim they may have had has been long since paid and settled." Eckstine in his answer admits he was the contractor and builder of the houses "at the time said goods was furnished as mentioned in the bill and says that all of said mechanics' lien claims as therein stated have been fully paid and satisfied." A very large amount of evidence appears in the record. We have gone through it with much care and patience. We cannot undertake now to present an analysis of it, but will content ourselves by announcing without argument or discussion the conclusions of fact that appear to us to be sustained by a preponderance of the proof. Much was said at the argument and upon the briefs, upon the alleged admission of Hensel and Eckstine in their respective answers and the effect upon the proof required to establish the allegations of the bill. But we do not refer more particularly to that for the reason that it seemed to be conceded by all parties that Hensel and Eckstine were respectively the owner and builder of the houses, *Page 732
and after a proper consideration of all the testimony, that the materials and labor set forth in the respective liens were furnished and delivered as therein set forth. It therefore is proper for us to consider the several claims and determine as to their validity; which we now proceed to do.
1st. As to the claim of Pearson Co. The last item was delivered October 9th, 1899, the claim was filed 17th January, 1900, and the notice of intention to claim a lien was served on Hensel on the 6th of November, 1899. It is contended that there was no contract verbal or written under which the materials were furnished and that the claim is not effective as to materials delivered more than thirty days before the service of the notice. The proof shows that there was an understanding between Eckstine, and Pearson Co., that the latter should furnish such hardware as would be needed in the construction of the houses, and it also appears that the several items of the account were furnished continuously and at short intervals as the materials were wanted at the building. Under these circumstances it must be presumed that they were furnished in accordance with the understanding originally existing between the parties, and it is therefore from the last item in the account that the notice, and the time within which to take the lien must date. Trustees of the German Luth.Ch., c., v. Heise Co., 44 Md. 469.
The notice of the intention to claim a lien, is sufficiently explicit. It notifies in writing Henry C. Hensel, the owner, of the lienors' intention to claim the lien, and that is all that the law requires. Code, Art. 63, § 11.
It is true that the notice is addressed to other persons, as well as to Hensel, but it was also addressed to Hensel and served on him within the time limited by law. The lien claim states explicitly that Henry C. Hensel is the "owner or reputed owner," and this is sufficient. Reindollar v. Flickinger, 59 Md. 471. This lien must be sustained.
2nd. As to the claim of The Walbrook Coal Supply Co. The last item was furnished on 24th August; lien claim was filed 25th November. Notice of intention served on Hensel *Page 733
23rd October, within the sixty days required by the statute. The materials were furnished continuously, almost day by day, from July 18th until 24th August following. They were furnished in pursuance of an understanding made in the "early part of July," between the parties that the company should "furnish the material required of the kind shown in the bill to the five houses on Woodland Avenue, and the prices were fixed at different times thereafter." There was some evidence tending to contradict this, but we think the weight of proof sustains it. It is contended that because of the fact that the prices were fixed at different times that it cannot be considered that the materials were furnished under the same contract, and therefore the right to take the lien must date from the time of furnishing the different parcels and not from the last item in the account; and MarylandBrick Co. v. Dunkerly, 85 Md. 199, is cited to maintain that position. But in that case there was no understanding from the commencement, and the items objected to were for a different purpose than that for which the other items were supplied. Here the materials were furnished under the original understanding and for the same purpose, that is for use in constructing the houses. In Boarman v. Clark, 89 Md. 432, it was apparent that the work was done under "distinct contracts." In Phillips onMechanics Lien, sec. 229, it is said: "When work or material is done or furnished, all going to the same general purpose, as the building of a house or any of its parts, though such work be done or ordered at different times, yet if the several parts form an entire whole, or are so connected together as to show that the parties had it in contemplation that the whole should form but one, and not distinct matters of settlement, the whole account must be treated as a unit, or as being but a single contract." So in a case where there was an agreement for furnishing material for use in constructing a building and during the period the plaintiff was furnishing material the contractor agreed with the plaintiff for certain specified materials to be furnished for the same purpose at an agreed price, it was held that the latter having been furnished for the same purposes *Page 734
and during the time the other materials were being furnished, so far as concerned "the construction and application of the lien law, the furnishing of all the materials may properly be deemed to have been substantially continuing and undistinguishable, rather than as independent transactions." State Door Sash Co. v. Norwegian-Danish, c., 45 Minn. 255. And to the same effect is Miller v. Batchelder, 117 Mass. 179; Costello v. Dale,
3 N.Y. Sup. Ct. 493, affirmed 1 Hun. 489. This case is not like that in Boarman v. Clark, 89 Md. 432, where there were two separate and distinct contracts; "the dwelling was erected under one contract and the outhouses under others." Watts v.Whittington, 48 Md. 356. German Lutheran Church v. Heise Co. (supra.) This claim must be sustained.
3 and 4. As to the claims of John J. Duffy and Singer Co. Of these the learned Court below says, "two of these lien claims, to-wit, the claims of Singer Co. and John J. Duffy were conceded to be valid." The appellant having made this concession it cannot be now withdrawn. In Fersner v. Bradley,87 Md. 490, where the Judge of the lower Court stated in his opinion which appeared in the record, that "no objection was made" c., it was contended in this Court there had been a misapprehension on the part of that Court, but it was held here that if there was in fact, application should have been made to correct the alleged error, and this not having been done, the Court must be governed by the statement of the Judge as it appeared in his opinion. These claims must therefore be sustained.
5 and 6. As to the claim of James H. Warthen. The evidence of Mr. Warthen is that the understanding with Eckstine was to "plaster the houses." The houses were finished on the 7th day of September and the notice of intention was served on the 2nd of November. This claim is therefore a lien as to the plastering which also includes the pointing. The sand and lime seem to have been furnished in the latter part of August or first day of September more than sixty days before the notice was served, and inasmuch as it was furnished *Page 735
under a separate and distinct agreement, it cannot be included in the lien. The claim must be held valid as to the charges for plastering and pointing but not as to the lime.
7. As to the claim of the Baltimore Cooperage Company. The notice of intention was sufficient in form and seems to have been served on Hensel within the period designated by the statute. This claim is sustained.
8. As to the claim of the National Mantel Tile Co. We do not think the time of serving the notice of an intention to claim the lien on Hensel has been sufficiently shown. The statute demands that it shall be served within sixty days after furnishing the materials. Sec. 11, Art. 63, Code. The materials were delivered on the 19th day of September The notice was left with Mr. Hensel's wife on the 18th of November following. There is no proof that Hensel ever received this notice. It was attempted to supply this defect, by the evidence of Mr. Bernard. The substance of his testimony was that "Mr. Eckstine said that the serving of the notice was admitted, and Senator Lindsay" (counsel of Hensel) "said the only question was, whether we had furnished `our material within sixty days of serving the notice.'" It is immaterial what Eckstine said; nothing he could say outside the presence of Hensel could bind the latter, and Hensel being the owner was the person on whom the notice had to be served. Nor does Mr. Lindsay, as his counsel, make any admission; on the contrary he states that the question as to the lien of The Tile Company was whether the notice had been served within the sixty days This is certainly no admission as to the time of service. It was shown that the notice was tacked on one of the houses. But there is no proof that "on account of absence or other causes" personal service could not have been made. This is necessary before the claimant can rely upon placing the notice on the building as the equivalent of a personal notice. This claim must therefore be rejected.
9th. As to the claim of Edward L. Kaufman Co. The materials were furnished under one contract. The evidence is that in the early part of August, 1899, the firm agreed with *Page 736
Eckstine to furnish all the paint, glass, varnishes, c., for the five houses, and these materials were delivered beginning the 8th of August, continuously, from day to day until the 11th October. The notice of intention does not seem to have been served on the owner either by personal service or otherwise. There was a notice addressed to John H. Hensel placed on one of the houses, but whether Henry C. Hensel who was named in the claim as owner ever saw it or if he did knew that it was intended for him, noes not appear in the proof. There is abundant evidence in the record tending to show that by the exercise of reasonable diligence, Henry C. Hensel could have been found and personally served with the notice. But if it was in fact necessary to place the notice on the house, it should have been addressed to the person for whom it was intended. It was not so done. Thomas v. Barber,10 Md. 380; Kenly v. The Sisters of Charity, 63 Md. 306;Kelly v. Laws, 109 Mass. 395; Hays v. Tryon, 2 Miles (Penn.) 203. This claim must be rejected.
10th. As to the claim of Myohl Luken. The principal question here is, was the material furnished under one entire and continuous contract, or under separate and distinct contracts? There was much evidence respecting this, but it will only be necessary to refer now to the testimony of Mr. August Luken, a member of the firm. As he states the original contract, it was to furnish, not such lumber as might be needed for the construction of the houses but a specific quantity, contained on a list, a copy of which is in the record. The firm agreed to furnish the builder with those specified quantities for the sum of $1,487.45. Subsequently the builder purchased more lumber, not by virtue of the original agreement, but as he needed it. The lumber furnished in addition to the kinds and quantities included in that list was as much under a separate contract as was the lumber furnished by the firm to Eckstine for other work that the latter was then conducting. There was no testimony in the record that affects the nature of the transaction as we have stated it. It also appears from the evidence and from the account filed with the claim, that all the lumber mentioned in the list, had been delivered before *Page 737
the 22nd of July. Of the delivery on the 2nd day of September, that being the last, Mr. Luken states that it was delivered, not by virtue of any understanding entered into before the beginning of the work, but because it "was ordered either that day or previous to that." So that this case is clearly within the rulings in Trustees of the German Luth. Church v. Heise Co. (supra), where it was held that when the materials are furnished under separate distinct contracts, the right to take the lien must date from the time of furnishing the different parcels of material and not from the last item. And this rule will prevail "if the materials are furnished under distinct contracts, though to be used for the same purpose, or by the contractor in executing one and the same contract with the owner." Watts v. Whittington, 48 Md. 356. If it be conceded, as claimed by the claimants, that the notice of intention to claim the lien was legally served on Hensel, such service was not made certainly until the 31st day of October or the time when the notice bears date. No delivery prior therefore to September can be included in the lien. We should add however that we think there was no sufficient service on Hensel, for reasons that have already been applied to other claims in this proceeding, and need not now be repeated. This claim must be rejected.
The decree of the lower Court allows interest from the date of the last item in the accounts. In Trustees of the German Lut.Church v. Heise Co. (supra), it was said "inasmuch as the lien, became a claim of record, enforceable without stay or condition, interest should be allowed from the time of filing the lien claim for record," and a failure to observe this rule entitles the appellants to a reversal of the decree in that respect. For these reasons the decree of the lower Court will be reversed, and the cause remanded for a new decree in conformity with the views herein expressed.
Decree reversed, the costs in this Court to be paid by theappellees, the costs below to abide the final decree, and thecause remanded for a new decree, in conformity to the viewsherein expressed.
(Decided March 6th, 1902.) *Page 738 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3209556/ | m-!6
ELECTRONIC RECORD
COA # 03-13-00585-CR OFFENSE: 0.06
Trent Kendall Stanley v. The State
STYLE: ofTexas COUNTY: Hays
COA DISPOSITION: AFFIRMED TRIAL COURT: County Court at Law No. 1
DATE: 8/14/15 Publish: NO TC CASE #: 094017
IN THE COURT OF CRIMINAL APPEALS
Trent Kendall Stanley v. The State of
STYLE: Texas CCA#: n*Mfe
APPELLANTS Petition CCA Disposition:
FOR DISCRETIONARY REVIEW IN CCA IS: DATE:
JUDGE:
DATE: SIGNED: PC:_
?:
JUDGE Sz PUBLISH: DNP:
MOTION FOR
REHEARING IN CCA IS:
JUDGE:
ELECTRONIC RECORD | 01-03-2023 | 06-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4014598/ | [Cite as Viars v. Ironton, 2016-Ohio-4912.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
RONNIE VIARS, ET AL, : Case No. 16CA8
Plaintiffs-Appellants, :
v. : DECISION AND
JUDGMENT ENTRY
IRONTON AND LAWRENCE :
COUNTY AREA COMMUNITY
ACTION ORGANIZATION, : RELEASED: 7/6/2016
Defendant-Appellee. :
APPEARANCES:
Ronnie A. Viars, Kitts Hill, Ohio, pro se appellant.
Richard F. Bentley, Bentley Law Firm, LLC and Curtis B. Anderson, Edwards, Klein,
Anderson & Shope, PLLC, Ironton, Ohio for appellee.
Harsha, J.
{¶1} Ronnie and Dreama Viars filed a pro se complaint against the Ironton and
Lawrence County Area Community Action Organization (the “Organization”) alleging
that the Organization trespassed upon their property and removed a tree situated along
a stream bank. The Viars alleged that the Organization’s removal of the tree altered the
stream dynamics, causing damage to their property. The trial court granted summary
judgment in favor of the Organization.
{¶2} In this pro se appeal Ronnie Viars asserts that the trial court erroneously
granted summary judgment for the Organization because: (1) the trial court did not
apply the relevant statutory provisions correctly, (2) there were disputed material facts,
(3) the trial court failed to construe the evidence in his favor, (4) the trial court failed to
hold an evidentiary hearing, and (5) the trial court did not address all the counts of his
Lawrence App. No. 16CA8 2
complaint. However, the Organization presented undisputed evidence that (1) Viars did
not own the property where the tree had grown, (2) the removal of the tree from the
stream and the temporary placement of the stump on the opposite stream bank did not
cause Viars’s erosion damage, and (3) the Organization performed its work within the
scope of its permit and used reasonable care. Because the trial court correctly granted
summary judgment to the Organization, we overrule Viars’s third, seventh, eighth, ninth,
and tenth assignments of error.
{¶3} Next, Viars claims that the trial court violated his state and federal rights to
a jury trial when it granted summary judgment. Because summary judgment is a proper
procedural mechanism for disposing of claims totally lacking a factual basis, the trial
court did not violate Viars’s right to a jury trial. We overrule Viars’s first and second
assignments of error.
{¶4} Viars also claims that the trial court erred when it denied his partial motion
for summary judgment on counts three and four of his amended complaint. However,
because summary judgment in the Organization’s favor was appropriate on those
counts, that precluded a judgment in his favor. The fourth and fifth assignments of error
are meritless and we overrule them.
{¶5} Finally, Viars asserts that the trial court erred when it reassigned the case
to another judge, who showed favoritism. However, the trial court stated on the record
that the reassignment was based on docket congestion, which is an appropriate basis
for reassignment. And, only the Supreme Court of Ohio has jurisdiction to consider
disqualification for bias or favoritism. Finally, Viars cites to no evidence of any judicial
prejudice or bias that would merit reversal of the trial court’s decision. Thus, we overrule
Lawrence App. No. 16CA8 3
Viars’s sixth and eleventh assignments of error and affirm the judgment of the trial court.
I. FACTS
{¶6} The Organization operates a stream maintenance program under a permit
from the Lawrence Soil and Water Conservation District. The Organization clears log
jams and accumulated flood debris that might restrict the flow of water and cause
further flood damage.
{¶7} In 2012 the Organization was working on Symmes Creek. Viars and the
Mootzes, neighbors opposite Viars on Symmes Creek, gave the Organization a
temporary easement, together with the right of ingress and egress, to clear log jams and
debris from Symmes Creek along their properties. The Organization removed a large
tree that had fallen into the creek nine months earlier after a storm uprooted it and blew
it over. Because the large size of the tree, its stump, and root ball made removing it
difficult, after the Organization removed this debris from the stream, it temporarily
placed the stump and root ball on the Mootzes’ bank until it could safely remove them.
{¶8} According to Viars the fallen tree had provided a natural “tree kicker” and
helped prevent erosion on his property.1 Viars testified that to use the tree as a “kicker”
he simply left it undisturbed where it fell – he did not take any affirmative steps to angle
or move the tree or to secure it with cable or roping after it fell, nor did he cut limbs or
attach brush or evergreen fill. Viars testified that the tree, which lay entirely across the
creek and up onto the bank on the opposite side, stayed in its location until the
Organization removed it. Viars documented the fallen tree’s location with photographs,
1 According to materials Viars attached to his Amended Complaint, a tree kicker is a cut tree that is
placed at a 30 to 40 degree angle to the bank and is secured with cable to an anchor tree growing along
the bank. Additional brush or evergreens should be tied together in bunches and cabled to the kicker tree.
Lawrence App. No. 16CA8 4
which matched those of the Organization. Viars also testified that he measured the
distance from the tree to the creek-side corner of his house as approximately 195 feet.
Viars contends that the Organization caused additional damage to his property as a
result of temporarily placing the stump and root ball on the Mootzes’ stream bank.
{¶9} The Viars filed a pro se complaint that alleged the Organization: Count 1 -
trespassed on his land without his consent; Count 2 - recklessly cut and removed a tree
from his property in violation of R.C. 901.51; Count 3 – violated his riparian rights by
acting recklessly with regard to his property and safety; Count 4 – intentionally
interfered with his riparian rights by placing his property in the stream; Count 5 –
negligently caused damage by failing to correct a known problem; and Count 6 –
intentionally violated its duty of care to him in such a reckless way that it was done
intentionally, with malice, and with total disregard to his rights or safety.
{¶10} Viars filed a partial motion for summary judgment on Counts 3 and 4,
stating that these counts were based on the Organization’s placement of the stump and
root ball on the Mootzes’ stream bank. He claimed that the placement of the stump
within the banks of Symmes Creek was an absolute nuisance or nuisance per se, and
alternatively, it was a qualified nuisance because placing the stump in an unnatural
place caused an alteration of the water course and changed the stream dynamics. Viars
included his affidavit and an affidavit of his neighbor, John Brumfield, in which both of
them state that the stump was left on the stream bank opposite Viars’s property for a
year and it caused noticeable erosion damage.
{¶11} The Organization opposed Viars’s motion by arguing that its stream
maintenance program did not qualify as the type of abnormally dangerous activity that
Lawrence App. No. 16CA8 5
would be an absolute nuisance under the law. They also asserted that the removal of
the tree from the stream and the placement of the stump on the bank was done with
reasonable care and in accordance with the permit granted by the Lawrence Soil and
Water Conservation District. The Organization included an affidavit of the Director of
the Stream Maintenance Program and a letter to Viars from the Conservation District’s
Floodplain Administrator that explained a licensed professional engineer would need to
perform a hydrologic and hydrodynamic study to determine if the removal of the tree
caused erosion damage to Viars’s property. It further asserted that Viars had existing
erosion damage prior to the tree removal and that he had made previous attempts to
stabilize his bank in the same area.
{¶12} The trial court denied Viars’s motion.
{¶13} Later at his deposition Viars testified that he lives in a floodplain and has
experienced numerous flooding since he purchased the property in 2003. He testified
that his property and the interior of his house flooded in 2004. In 2006 or 2007 he added
eight to ten 30-ton truck loads of limestone rock to his creek bank in an attempt to stop
erosion. Since adding limestone to the bank, his property and house have flooded two
more times – in March 2010 and in June 2015.
{¶14} Viars testified that his trespass claim against the Organization was based
upon its removal of the fallen tree outside the 90-day period granted by the temporary
easement. He testified that the tree removal occurred in mid-August after the expiration
of his temporary easement. He acknowledged that none of the tree removal activity
occurred on his property because the organization worked from the Mootzes’ property.
However, he alleges that the tree itself was on his property and the Organization
Lawrence App. No. 16CA8 6
trespassed upon his property when workers pulled the tree from his side to the Mootzes’
bank to remove it.
{¶15} Viars testified that his reckless tree cutting claim was based on the
Organization’s cutting and removing the fallen tree from his property and that the
remaining four counts of his complaint were based on the erosion damage he alleged
was caused by the removal of the tree and its temporary placement on the Mootzes’
stream bank.
{¶16} Viars testified that he had never had his property surveyed nor had he had
any engineering or hydrological studies done to determine if the Organization’s actions
caused property erosion damage.
{¶17} The Organization filed a summary judgment motion, attaching the affidavit
and survey of a registered surveyor, Jeffrey Eastham. As part of the survey he prepared
a plat. Based on this work Eastham concluded Viars did not own the property where the
tree had fallen. Instead, the survey showed that the fallen tree was located north of
Viars’s property boundary.
{¶18} The Organization also submitted the affidavit and report of licensed
engineer, Paul Amburgey. He determined that, in his professional engineering opinion,
the removal of the tree from Symmes Creek and the temporary placement of the
stump/root ball on the opposite creek bank did not cause damage to Viars’s property.
{¶19} The Organization argued that it was entitled to summary judgment
because Viars did not own the land the fallen tree was on, so his trespass claim and his
reckless cutting and removing a tree must fail. And, because the Organization’s
removal of the tree and temporary placement of the stump and root ball did not cause
Lawrence App. No. 16CA8 7
damage to Viars’s property, his claims for nuisance, violations of his riparian rights,
negligent failure to correct a known problem, and actual malice entitling him to punitive
damages must also fail.
{¶20} Viars opposed the motion, claiming that there were “issues” with the
Eastham survey, but he did not submit any expert testimony contesting Eastham’s
survey or Amburgey’s erosion study. Instead, he submitted a copy of his property deed
and the Eastham survey with presumably his own handwritten notations pointing our
purported flaws or omissions with the survey. Viars also argued that Amburgey’s
conclusions were wrong and not based on sufficient information. But he did not submit
any engineering reports or other expert evidence of his own to show a causal
connection between the tree removal and temporary stump placement and his alleged
property erosion damage. Although Viars personally disagreed with the survey and the
erosion study, he did not file a professional survey or erosion analysis that discredited
them.
{¶21} He did file a separate motion to strike Eastham’s survey and Amburgey’s
erosion study on the ground that they were “inaccurate and incomplete and not
adequate for this case”, but he provided no rationale or evidentiary support for the
motion.
{¶22} The Organization filed a reply that argued Viars presented no admissible
evidence, he merely repeated the allegations from his complaint, and he is not
personally qualified to testify as a professional surveyor or engineer.
{¶23} The trial court denied Viars’s motion to strike and granted the
Organization’s summary judgment motion.
Lawrence App. No. 16CA8 8
II. ASSIGNMENTS OF ERROR
{¶24} Viars assigns the following eleven errors for our review:
I. THE TRIAL COURT ERRED WHEN [IT] DEPRIVED THE PLAINTIFF-
APPELLANT OF HIS “SUBSTANTIAL RIGHT” GUARANTEED BY THE
UNITED STATES CONSTITUTION ARTICLE 3, SECTION 2 AND THE
6TH AMENDMENTS [SIC] “THE RIGHT TO A TRIAL BY JURY.”
II. THE TRIAL COURT ERRED WHEN IT DEPRIVED THE PLAINTIFF-
APPELLANT OF HIS “SUBSTANTIAL RIGHT” GUARANTEED BY
ARTICLE 1, SECTION 5 OF THE OHIO STATES [SIC] CONSTITUTION,
THE RIGHT TO A TRIAL BY JURY.
III. THE TRIAL COURT ERRED WHEN IT FAILED TO INVOLVE THE
PROPER AUTHORITIES OF WHICH THE ALLEGED VIOLATIONS OF
STATE STATUES [SIC], CODE, AND FEDERAL, STATE AND LOCAL
ORDINANCE STEM FROM DEPRIVING HIM OF EQUAL PROTECTION
OF THE LAW.
IV. THE TRIAL COURT ERRED WHEN IT OVERRULED THE PLAINTIFFS-
APPELLANT MOTION FOR PARTIAL SUMMARY JUDGMENT.
V. THE TRIAL COURT ERRED WHEN IT OVERRULED THE PLAINTIFFS-
APPELLANT MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO
ESTABLISHING THE FACTS THAT ARE AND ARE NOT IN DISPUTE
TOGETHER WITH THE LAWS INVOLVED WITH THE CASE AT THE
TIME.
VI. THE TRIAL COURT ERRED WHEN IT BROUGHT IN ANOTHER JUDGE
TO THE CASE AND HE FAILED TO FAMILIARIZE HIMSELF WITH ALL
THE ISSUES OF THIS CASE.
VII. THE TRIAL COURT ERRED WHEN [IT] GRANTED DEFENDANT-
APPELLEE’S MOTION FOR SUMMARY JUDGMENT ON ALL COUNTS
AS GENUINE ISSUES OF FACTS ARE IN DISPUTE.
VIII. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
JUDGMENT ON ALL COUNTS FOR IT FAILED TO CONSTRUE THE
EVIDENCE MOST STRONGLY IN FAVOR OF THE PLAINTIFF-
APPELLANT THE NONMOVING PARTY.
IX. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS-
APPELLEE’S SUMMARY JUDGMENT MOTION ON ALL COUNTS
WITHOUT HAVING SOME TYPE OF A [SIC] EVIDENTIARY HEARING
AND FINDING OF FACTS ON EACH CAUSE OF ACTION.
Lawrence App. No. 16CA8 9
X. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS-
APPELLEE’S MOTION FOR SUMMARY JUDGMENT MOTION [SIC] ON
ALL COUNTS IS A MISCARRIAGE OF JUSTICE THAT DEPRIVED
PLAINTIFF-APPELLANT A SUBSTANTIAL RIGHT.
XI. THE TRIAL COURT ERRED BY THE IRREGULARITIES IN THE
RECORD AND PROCEEDINGS.
III. LAW AND ANALYSIS
{¶25} Viars is acting pro se in this appeal, as he has throughout the lawsuit.
Because we prefer to review a case on its merits rather than dismiss it due to
procedural technicalities, we give considerable leniency to pro se litigants. In re Estate
of Pallay, 4th Dist. Washington No. 05CA45, 2006–Ohio–3528, ¶ 10; Robb v.
Smallwood, 165 Ohio App. 3d 385, 2005–Ohio–5863, 846 N.E.2d 878, ¶ 5 (4th Dist.);
“Limits do exist, however. Leniency does not mean that we are required ‘to find
substance where none exists, to advance an argument for a pro se litigant or to address
issues not properly raised.’ ” State v. Headlee, 4th Dist. Washington No. 08CA6, 2009–
Ohio–873, ¶ 6, quoting State v. Nayar, 4th Dist. Lawrence No. 07CA6, 2007–Ohio–
6092, ¶ 28. We consider a pro se litigant's appellate brief if it contains some cognizable
assignment of error. Coleman v. Davis, 4th Dist. Jackson No. 10CA5, 2011–Ohio–506,
¶ 14 (considering pro se appellant’s brief because it had “some semblance of
compliance” with appellate rules).
{¶26} Here, Viars has identified some cognizable assignments of error and he
labels different sections such as “Statement of Facts” and “Argument” for each of the
assignments of error. However, the brief does not comply with App.R. 16(3) – (7) and
many of his arguments are vague, which makes our task more difficult than need be. He
Lawrence App. No. 16CA8 10
does not make references to the place in the record where the errors have allegedly
occurred, nor does he make references to the parts of the record on which he relies for
his arguments.
{¶27} For purposes of our analysis, we group Viars’s assignments of error into
four main categories and address several at once. State v. Thompson, 4th Dist.
Washington App. No. 13CA41, 2014-Ohio-4665, ¶ 10 (“the appellate court has the
option to address two or more assignments of error at once”).
A. Errors in Granting Summary Judgment Motion
(Third, Seventh, Eighth, Ninth, and Tenth Assignments of Error)
1. Standard of Review
{¶28} Appellate review of a summary judgment decision is de novo, governed by
the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St. 3d 199, 2013-Ohio-
3020, 992 N.E.2d 1126, ¶ 19. Summary judgment is appropriate if the party moving for
summary judgment establishes that (1) there is no genuine issue of material fact, (2) the
moving party is entitled to judgment as a matter of law, and (3) reasonable minds can
come to but one conclusion, which is adverse to the party against whom the motion is
made. Civ.R. 56; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St. 3d 39,
2011-Ohio-2266, 950 N.E.2d 157, ¶ 24; Chase Home Finance, LLC v. Dunlap, 4th Dist.
Ross No. 13CA3409, 2014-Ohio-3484, ¶ 26.
{¶29} The moving party has the initial burden of informing the trial court of the
basis for the motion by pointing to summary judgment evidence and identifying the parts
of the record that demonstrate the absence of a genuine issue of material fact on the
pertinent claims. Dresher v. Burt, 75 Ohio St. 3d 280, 293, 662 N.E.2d 264 (1996);
Lawrence App. No. 16CA8 11
Chase Home Finance at ¶ 27. Once the moving party meets this initial burden, the non-
moving party has the reciprocal burden under Civ.R. 56(E) to set forth specific facts
showing that there is a genuine issue remaining for trial. Dresher at 293.
2. Third Assignment of Error
{¶30} In his third assignment of error Viars argues that the trial court erred when
it failed to find the Organization liable under R.C. 901.51 for recklessly cutting and
removing the fallen tree. He also cites Lawrence County Special Purpose Flood
Damage Reduction Resolution 4.9(C) and R.C. 6105.133 but does not provide a
reasoned argument concerning the relevance of these provisions to his assignment of
error. “If an argument exists that can support [an] assignment of error, it is not this
court's duty to root it out. * * * It is not the function of this court to construct a foundation
for [an appellant's] claims [.]” (Citations omitted.) (Alterations sic.), Coleman v. Davis,
Jackson App. No. 10CA5, 2011–Ohio–506, at ¶ 13. In other words, “[i]t is not * * * our
duty to create an argument where none is made.” Deutsche Bank Natl. Trust Co. v.
Taylor, 9th Dist. Summit App. No. 25281, 2011–Ohio–435, ¶ 7. Thus, we will only
consider the trial court’s failure to find the Organization liable under R.C. 901.51.
Because this third assignment of error challenges the trial court’s grant of summary
judgment to the Organization on count 2 of his complaint, we will address it along with
Viars’s other challenges to the trial court’s grant of summary judgment.
{¶31} Viars claimed that the Organization violated R.C. 901.51 when it removed
the fallen tree from the creek. R.C. 901.51 governs injuries to vines, bushes, trees, or
crops and requires Viars to prove he owned the land the fallen tree was on:
Lawrence App. No. 16CA8 12
No person, without privilege to do so, shall recklessly cut down, destroy,
girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop
standing or growing on the land of another or upon public land.
In addition to the penalty provided in section 901.99 of the Revised Code,
whoever violates this section is liable in treble damages for the injury caused.
{¶32} Both Viars and the Organization introduced photographs of the location of
the fallen tree. Based on the photographs and Viars’s deposition testimony, there was
no factual dispute concerning the location of the fallen tree along the creek bank. Viars
testified that he measured out the distance from the fallen tree to the corner of his
house and the distance was approximately 195 feet. Viars introduced a copy of his
property deed that contained a legal description of his property boundaries but he did
not present a professional survey and he testified that he had never had a survey
performed.
{¶33} The Organization introduced Eastham’s survey, which he performed
based on the legal description of Viars’s deed. Based upon the survey Eastham
concluded the fallen tree was located north of Viars’s property boundary, not on his
property. Amburgey also reviewed the Eastham survey and photographs and visited the
site and determined that the tree was located approximately 175 feet from Viars’s
residence and about 60 feet north of Viars’s property line.
{¶34} The trial court did not err in finding in the Organization’s favor on Viars’s
claim under R.C. 901.51 because all of the evidence shows that the tree was never on
Viars’s property. Viars himself testified that the tree was about 195 feet from his
residence, which would place the fallen tree even farther north than Eastham’s survey
and Amburgey’s measurements, and about 80 feet north of Viars’s property line.
Although Viars argued that there were genuine issues of material fact about his northern
Lawrence App. No. 16CA8 13
property line based upon what he argued were missing “marks,” he did not hire a
professional surveyor to survey his property and presented no alternative northern
boundary line for the trial court’s consideration.
{¶35} The trial court properly relied upon the Organization’s survey to determine
the boundary lines of Viars’s property. See Robinson v. Armstrong, 5th Dist. Guernsey
App. No. 03CA12, 2004-Ohio-1463, ¶ 39 (the trial court cannot make boundary line
determinations based upon the legal description in the deed appellants submitted where
appellants did not submit a professional boundary line survey of their property: “Without
a survey to support their argument regarding the location of the old boundary fence, the
only evidence the trial court had to rely upon was the survey submitted by appellees.”).
Because the indisputable evidence shows that Viars does not own the property where
the tree was growing or had fallen, the trial court properly granted the Organization’s
summary judgment motion on Viars’s reckless tree cutting claim under R.C. 901.51.
{¶36} We overrule Viars’s third assignment of error.
3. Seventh and Tenth Assignments of Error
{¶37} In his seventh and tenth assignments of error, Viars claims that the trial
court erred when it granted summary judgment on all counts of his complaint because
genuine issues of material fact are in dispute and the trial court did not address all the
elements of each of his counts.
{¶38} As we previously determined in analyzing Viars’s third assignment of
error, the trial court properly granted summary judgment on count 2, reckless tree
cutting.
Lawrence App. No. 16CA8 14
{¶39} Likewise, the trial court properly granted summary judgment to the
Organization on Viars’s claim for trespass, count 1. The essential elements necessary
to state a cause of action in trespass are: (1) an unauthorized intentional act, and (2)
entry upon land in the possession of another. Brown v. Scioto Cty. Bd. of Commrs., 87
Ohio App. 3d 704, 716, 622 N.E.2d 1153 (4th Dist.1993). Viars acknowledged that the
Organization conducted all of its tree removal activity from Mootzes’ property, but he
based his trespass claim on his belief that the tree had fallen on his property. However,
the Organization established the undisputed fact that the fallen tree was not on Viars’s
property. Because Viars did not own the property where the tree lay, the Organization is
entitled to summary judgment on Viars’s trespass claim.
{¶40} Counts 3 and 4 are based upon Viars’s claims that the Organization
violated his riparian rights. In his motion for partial summary judgment he explained that
those counts were claims for private nuisance based upon the erosion damage the
Organization caused by removing the tree from the steam and temporarily placing its
stump on Mootzes’ bank. A private or “qualified nuisance” is premised upon negligence.
It consists of a lawful act that is so negligently or carelessly done as to have created an
unreasonable risk of harm, which in due course results in injury to another. Brown v.
Scioto Cty. Bd. of Commrs. at 713. Because the Organization presented undisputed
expert testimony that these actions did not cause Viars’s erosion damage, there was no
“injury” to Viars’s property and the trial court granted summary judgment to the
Organization on counts 3 and 4.
{¶41} The Organization submitted an affidavit and report of their expert
Amburgey, who testified that he is a registered professional engineer employed by E.L.
Lawrence App. No. 16CA8 15
Robinson Engineering. Amburgey testified that he conducted an inspection of Viars’s
property, the Symmes Creek area, Eastham’s survey, photographs, the Special Flood
Hazard Area Development Permit issued to the Organization, relevant flood plain maps,
and related flood insurance study documents. Based on his review of the materials and
his engineering education and experience, Amburgey determined in his professional
opinion that the removal of the fallen tree from the creek bank and the temporary
placement of the tree trunk and root nest on the Mootzes’ creek bank did not cause any
damage to Viars’s property. The Organization introduced Amburgey’s affidavit, expert
report and supporting documentation in support of its summary judgment motion.
{¶42} Viars criticized Amburgey’s testimony as “nothing more than a bought and
paid for opinion to try to make facts in the record without any studies at all to base his
opinion on.” However, Viars did not retain an engineer or provide the court with any
expert evidence to support his claim that the Organization damaged his property when
they removed the tree or when they placed the stump on Mootzes’ creek bank. In
support of his earlier motion for partial summary judgment, Viars submitted his own
affidavit and that of his neighbor, John Brumfield, in which both stated that the removal
of the tree and the placement of the stump caused erosion damage to Viars’s property.
However, Viars and Brumfield did not testify to having any education or training that
would qualify either of them as experts on erosion causation.
{¶43} Expert testimony is required to establish general causation and specific
causation in cases involving flooding and soil erosion because the determination
involves a scientific inquiry into matters beyond the knowledge or experience possessed
by lay persons. “Flooding issues are very complex matters and therefore, generally,
Lawrence App. No. 16CA8 16
require the use of expert testimony to prove the cause and frequency of flooding.” State
ex rel. Post v. Speck, 3rd Dist. Mercer No. 10-2006-001, 2006-Ohio-6339, ¶ 61; see
generally Terry v. Caputo, 115 Ohio St. 3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 16
(2007) (“Establishing general causation and specific causation in cases involving
exposure to mold or other toxic substances involves a scientific inquiry, and thus
causation must be established by the testimony of a medical expert.”). Although Viars
and Brumfield may testify as lay persons about the existence of erosion damage, i.e.
that it occurred, they provided no basis to establish themselves as experts to give
testimony about the cause of that erosion. See Speck, supra, ¶ 62 (Emphasis added.)
(“While the cause of the flooding is a complex factual issue that must be proven through
expert witnesses, the existence of flooding can certainly be proven through the
testimony of the landowners and photographs.”). Before a witness can testify as an
expert, Evidence Rule 702(B) requires that the witness have “specialized knowledge,
skill, experience, training, or education regarding the subject matter of the testimony.”
Because neither Viars nor Brumfield qualify as experts on erosion, the trial court did not
err in disregarding their affidavit testimony concerning the causation of Viars’s property
erosion. Valentine v. PPG Industries, Inc., 4th Dist. No. 03CA17, 158 Ohio App. 3d 615,
2004-Ohio-4521, 821 N.E.2d 580, ¶ 21, aff'd sub nom. Valentine v. Conrad, 110 Ohio
St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 21 (expert testimony must comply with
Evid.R. 702 to be admissible during summary judgment proceedings).
{¶44} Viars acknowledged that many years prior to the Organization’s actions,
he had existing erosion damage on his property. He had made several attempts to
prevent further erosion by adding eight to ten 30-ton truck loads of limestone rock to his
Lawrence App. No. 16CA8 17
creek bank in 2006 or 2007. Amburgey also noted longstanding stream bank erosion
damage and evidence of previous erosion mitigation efforts such as heavy wire fencing
and dumped rock and concrete block fragments. Thus, there is no dispute that erosion
damage on Viars’s property exists and had existed for a long time. The question is
causation. Here the Organization presented expert testimony that its removal of the
fallen tree and temporary placement of the stump on Mootzes’ bank did not cause
Vairs’s erosion damage. Viars presented no expert testimony to refute Amburgey or to
establish a genuine issue of material fact concerning the causation of his erosion
damage. There is no admissible evidence in the record that the Organization caused
Viars to suffer property damage when it removed the fallen tree and placed the stump
and root ball on Mootzes’ creek bank. The trial court did not err when it granted
summary judgment for the Organization on counts 3 and 4.
{¶45} Count 5 alleges that the Organization acted negligently in carrying out its
stream maintenance duties; Count 6 alleges Viars is entitled to punitive damages
because the alleged negligent acts were in fact carried out in such a reckless manner
that it constituted actual malice. A successful negligence action requires a plaintiff to
establish that (1) the defendant owed the plaintiff a duty of care; (2) the defendant
breached the duty of care; and (3) as a direct and proximate result of the defendant's
breach, the plaintiff suffered injury. If a defendant points to evidence illustrating that the
plaintiff will be unable to prove any one of the foregoing elements, and if the plaintiff fails
to respond as Civ.R.56 provides, the defendant is entitled to judgment as a matter of
law. Martin v. Lambert, 4th Dist. No. 12CA7, 2014-Ohio-715, 8 N.E.3d 1024, ¶ 15,
appeal not allowed, 139 Ohio St. 3d 1471, 2014-Ohio-3012, 11 N.E.3d 1193, ¶ 15. To
Lawrence App. No. 16CA8 18
show actual malice, which is necessary for an award of punitive damages, the plaintiff
must show (1) that state of mind under which a person's conduct is characterized by
hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety
of other persons that has a great probability of causing substantial harm. Preston v.
Murty, 32 Ohio St. 3d 334, 336, 512 N.E.2d 1174 (1987).
{¶46} The trial court granted the Organization summary judgment on these
claims based upon the evidence that the Organization acted both within the scope of
the easements and within the scope of the Lawrence Soil and Water Conservation
District permit to perform stream clean up. The trial court concluded that Viars had the
burden to produce evidence to support his claims that the Organization violated its duty
of care and that it acted with actual malice; however Viars failed to meet this burden to
produce any evidence to support these claims.
{¶47} The Director of Stream Maintenance for the Organization provided
affidavit testimony that the fallen tree was lying in the stream and required removal to
prevent jams and future flooding. Due to the size of the stump and root ball, immediate
removal was not possible, thus temporary placement of it on the Mootzes’ stream bank
was necessary for the safety of the employees. Administrative findings made by the
Floodplain Administrator for the Lawrence Soil and Water Conservation District
concluded that the Organization had not violated the permit by removing the fallen tree
from the creek.
{¶48} Viars argued that a letter from the Lawrence County Commissioners to the
Organization raised material facts about whether the Organization “did no wrong” under
the permit. In the letter the Commissioners asked the Organization to re-evaluate
Lawrence App. No. 16CA8 19
Viars’s request to have the tree stump placed back into its prior location, add materials
to stabilize the bank, pay for the cost of the removed fallen tree, and reimburse Viars for
any damages, and to report the conclusion of the re-evaluation back to them within two
weeks.
{¶49} The letter contains no statements of fact about the work performed under
the permit or any other possible wrongdoing on the part of the Organization. We can
find no evidence in the record that the Organization’s removal of the fallen tree or stump
placement violated the permit, was reckless, was done with intentional malice, or
otherwise violated a duty of care. And, as noted previously, Viars failed to establish that
the Organization’s actions caused any injury to his property. The trial court correctly
granted the Organization’s summary judgment motion on Counts 5 and 6 of Viars’s
amended complaint.
{¶50} We overrule Viars’s seventh and tenth assignments of error.
4. Eighth Assignment of Error
{¶51} Viars argues in his eighth assignment of error that the trial court did not
construe the evidence most strongly in his favor. In support he states that the trial court
“turned a blind eye” to his evidence, but he cites to no specific evidence in the record to
support this assignment of error. Under App.R. 12(A)(2), we may disregard an
assignment of error presented for review if the party raising it fails to identify in the
record the error on which the assignment of error is based. In its decision and judgment
entry the trial court correctly stated the legal standard that “the nonmoving party is
entitled to have the evidence most strongly construed in their favor.” In our de novo
Lawrence App. No. 16CA8 20
review of the record, we find nothing to indicate the trial court failed to apply this
standard. We overrule Viars’s eighth assignment of error.
5. Ninth Assignment of Error
{¶52} In his ninth assignment of error Viars claims the trial court erred when it
failed to hold an evidentiary hearing. A trial court is not required to hold an evidentiary
hearing or oral argument on motions for summary judgment. See Civ.R. 56. “Although
Civ.R. 56 makes reference to a hearing, the rule does not require an oral hearing on
every motion for summary judgment. Rather, the hearing contemplated by Civ.R. 56
may involve as little as the submission of memoranda and evidentiary materials for the
court's consideration.” (Citations omitted.) Barstow v. Waller, 4th Dist. Hocking No.
04CA5, 2004-Ohio-5746, ¶ 51; “Ohio appellate courts ‘uniformly agree that a trial court
is not required to schedule an oral hearing on every motion for summary judgment.’”
U.S. Bank Natl. Assn. v. Wigle, 7th Dist. Mahoning No. 13 MA 32, 2015-Ohio-2324, ¶
13. Therefore, we overrule Viars’s ninth assignment of error.
B. Right to a Trial by Jury
(Assignments of Error One and Two)
{¶53} Viars’s first and second assignments of error are meritless as a result of
our disposition of the third, seventh and tenth assignments of error, so we summarily
overrule them. See App.R.12(A)(1)(c). Because summary judgment was appropriate, he
had no right to a jury trial:
[T]he right to a jury trial is only enforceable where there are factual issues
to be tried. Accordingly, the proper granting of a motion for summary
judgment does not abridge an individual's constitutional right to a jury trial.
Since we have found that the granting of the defendants' motions for
summary judgment was proper, we conclude that appellants were not
deprived of their right to a trial by jury. (Citations omitted.)
Lawrence App. No. 16CA8 21
Barstow at ¶ 53.
C. Errors in Denying Viars’s Partial Motion for Summary Judgment
(Assignments of Error Four and Five)
{¶54} In his fourth and fifth assignments of error Viars argues that the trial court
erred in denying his partial motion for summary judgment on counts 3 and 4. Because
we find that the trial court correctly granted the Organization summary judgment in its
favor on counts 3 and 4 it follows that Viars was not entitled to summary judgment on
those counts. Viars’s fourth and fifth assignments of error are meritless and overrruled.
See App.R.12(A)(1)(c).
D. The Case Reassignment and Alleged Favoritism
(Assignments of Error Six and Eleven)
{¶55} In his sixth assignment of error Viars claims that the trial court erred when
it assigned the case to another judge with a “friendship” to the Organization. In his
eleventh assignment of error, Viars claims “irregularities” in the record and “showing
favor” towards the Organization.
{¶56} To the extent Viars argues that there was an error based upon the case
reassignment, his argument fails. A case can be transferred to another judge due to
docket congestion. Silverman v. American Income Life Ins. Co. of Indianapolis, 10th
Dist. Franklin App. Nos. 01AP338, 01AP339, 2001-Ohio-8890, *14 (“Appropriate
reasons for reassignment include absence of the assigned judge or docket congestion
for the assigned judge”). The transcript from the status conference held on October 27,
2015, shows that the trial court advised the parties that the trial docket for the upcoming
months was full and he may request to have another judge take over the case. Viars did
not object.
Lawrence App. No. 16CA8 22
{¶57} To the extent Viars argues that the trial judge should be disqualified
because of judicial bias or favoritism, we have no jurisdiction to consider his claim.
Cooke v. Bowen, 4th Dist. Scioto No. 12CA3497, 2013-Ohio-4771, ¶ 9-11. “Judicial bias
is ‘a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the
litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of
the judge, as contradistinguished from an open state of mind which will be governed by
law and the facts.’ ” Id. quoting State v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128, 767
N.E.2d 166, ¶ 34. R.C. 2701.03 provides the exclusive means by which a litigant can
assert that a common pleas judge is biased or prejudiced and requires an affidavit of
prejudice to be filed with the Supreme Court of Ohio. A court of appeals lacks “authority
to pass upon disqualification or to void the judgment of the trial court upon that basis.”
Beer v. Griffith, 54 Ohio St. 2d 440, 441–442, 377 N.E.2d 775 (1978).
{¶58} To the extent Viars argues that the judge acted unfairly or with a prejudice
against him, he fails to cite to any evidence in the record. “Trial judges are ‘presumed
not to be biased or prejudiced, and the party alleging bias or prejudice must set forth
evidence to overcome the presumption of integrity.’” Rick’s Foreign Exchange Co. v.
Greenlee, 2d Dist. Montgomery No. 26096, 2014-Ohio-4505, ¶ 28. “The appearance of
bias or prejudice must be compelling to overcome these presumptions.” Id.; In re
Jorgensen, 5th Dist. No. 07-CA-96, 2008-Ohio-2967, ¶ 245-246; see generally State v.
Dean, 127 Ohio St. 3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 2 (If the record indicates
that the trial was affected by judicial bias, the remedy is a new trial). Viars argues that
“the court was either maneuvered by trickery . . . or tried to hide the issues from being
adjudicated showing favor for Defendant-Appellee,” but he does not cite any evidence in
Lawrence App. No. 16CA8 23
the record to support his claim. Upon reviewing the record we find no evidence of any
judicial bias or prejudice to overcome the presumption of judicial integrity.
{¶59} We overrule Viars’s sixth and eleventh assignments of error.
IV. CONCLUSION
{¶60} The trial court properly entered summary judgment for the Organization on
all the claims in Viars’s amended complaint because there was no genuine issue of
material fact and the Organization was entitled to judgment as a matter of law. Because
the trial court properly granted summary judgment in the Organization’s favor on all of
Viars’s claims, Viars’s right to a jury trial was not violated, nor was he entitled to
summary judgment in his favor on any of the claims. There was no evidence that the
reassignment of the case to another judge was irregular; we do not have jurisdiction to
review any claims of judicial bias.
JUDGMENT AFFIRMED.
Lawrence App. No. 16CA8 24
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk. | 01-03-2023 | 07-11-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486421/ | Georgia Gelston Jones, a resident of Baltimore City, died on July 24th, 1928, leaving a duly executed will which was executed on December 28th, 1897, and which devised and *Page 160
bequeathed her property. The administration of her estate was substantially accomplished, with the exception of several disputed claims, and certain devises and bequests about which there was controversy. In order to obtain a construction of the will and to make the distribution under the control and with the guidance of a court of equity, the executor filed a bill of complaint, and from the ensuing decree certain of her next of kin and the Home for Incurables of Baltimore City, a devisee and legatee, have severally appealed. These appeals present a number of questions with reference to the validity of gifts to the Maryland Bible Society, to the "Home for Incurables for Men" in Baltimore, Md.; to the "Home for Incurables for Women in Baltimore," Md.; and to the "Invalid Fund for Disabled Ministers" in the care of the Trustees of the General Assembly of the Presbyterian Church in the United States (popularly known as the Southern Presbyterian Church). In order to avoid repetition, there will be no general statement of the problems presented, which can be grouped advantageously with respect to the separate beneficiaries.
1. By the fourth item of her will the testatrix devised and bequeathed to the Maryland Bible Society the sum of $1,000 and a ground rent of $27 yearly "to be applied to the uses of the said corporation as a `memorial' of my father." After her death the executor found a certificate for $1,000 of Baltimore City Dock Improvement 4 per cent. stock, due 1961, which the testatrix had issued on June 18th, 1913, to herself for life and at her death to the Maryland Bible Society. There is no evidence of any act or declaration by the testatrix from which it could be inferred that the subsequent gift of stock was intended to be a satisfaction or payment in whole or in part of the legacy of $1,000. The mere fact that the gift of stock was subject to the life estate of the donor, and that its face value was the same in amount as the legacy of $1,000, is insufficient to raise a presumption of ademption or satisfaction, although the party takes both the gift and the legacy at the death of the testatrix. Loyola College v.Dugan, 137 Md. 545, 550, 113 A. 81; Gallagher *Page 161 v. Martin, 102 Md. 115, 62 A. 247; Miller on Construction ofWills, secs. 144, 145; 2 Pomeroy's Eq. Juris. (4th Ed.), sec. 562.
2. In addition to this gift, the Maryland Bible Society was made the beneficiary of valuable gifts of land and money by the fifth, nineteenth, and twentieth items of the will. The gift under the nineteenth item of the will is of one-half of the residuary estate upon the death of a life tenant without issue surviving at the time of her death. As this contingency has happened and as, by the twentieth item of the will, the society is given an additional one twenty-fourth of the residuary estate, thirteen twenty-fourths of the entire residuary estate was attempted to be given to the society.
The contention is made by the next of kin that every one of the gifts to the Maryland Bible Society must fail and fall to the next of kin on the ground that intestacy results because the corporate existence of the Maryland Bible Society is at an end; but if the society be a subsisting corporate entity, then the gifts of the thirteen twenty-fourths part of the residuary estate are voidable, since they would increase the income of the society to more than the yearly statutory limitation of $10,000; and a court of equity will not lend its aid to enforce what the state may avoid and thereby create an intestacy as to the gifts mentioned.
The Maryland State Bible Society was incorporated by the General Assembly of Maryland, by chapter 290 of the Acts of 1842-43, and its corporate life was limited to thirty years. It was given the capacity "to hold by deed, bequest, and devise any interest, estate or property, real, personal or mixed in possession or expectancy and also to use, sell, mortgage, lease, transfer or convey all or any part of said property; provided, that the clear annual income of said estate, interest and property shall not exceed the sum of ten thousand dollars." The Legislature reserved the right to alter or amend the act of incorporation at pleasure. Sections 1-4.
By chapter 148 of the Acts of the General Assembly of 1872, entitled "A supplement to an Act entitled `An Act to *Page 162
incorporate the Maryland State Bible Society, passed at December session, eighteen hundred and forty-two, chapter two hundred and ninety, and to change the name of said corporation to The Maryland Bible Society,'" it was enacted "that the corporate franchises granted by the said Act of Assembly, entitled an Act to incorporate the Maryland State Bible Society, passed at December session, eighteen hundred and forty-two, chapter two hundred and ninety, be and the same are hereby continued and re-enacted without any limitation as to the duration of said corporation, subject to the provisions of this Act; and that the name of the said corporation be * * * changed to The Maryland Bible Society," and that the provision with respect to the clear annual income be continued. The Legislature further declared that it reserved the right to alter, amend, or repeal the new as well as the original act at any time.
The next of kin assert that the Maryland Bible Society has no legal corporate existence; and, so, it is incapable of taking any gift. In support of this position, they rely upon the two provisions of article 3, section 29, of the Maryland Constitution: (A) That every law shall embrace but one subject and that shall be described in its title; and (B) that no law, or section of law, shall be revived or amended by reference to its title or section only.
A. The one subject-matter of chapter 148 of the Acts of 1872 was the charter of the Maryland State Bible Society, which had been granted by the General Assembly by chapter 290 of the acts passed at the December session, 1842. This charter was about to expire as its existence was limited to a period of thirty years, and the act was consequently introduced for the prevention of the end of the corporate existence through the passage of time, by enlarging the duration of its corporate existence in perpetuity; and to permit it to exercise its corporate powers under a slightly different corporate name, but subject to the same provisions with respect to the limitation of the clear annual income to $10,000, and the reservation to the Legislature of the right to alter, amend, or repeal both acts. The natural and obvious meaning of *Page 163
the term "supplement to an act," in the title to a pending legislative bill to amend a subsisting statute, is that something is to be incorporated in the statute by way of addition, completion, or extension, so as to supply a deficiency or meet a want. Century Dictionary, "Supplement"; 37 Cyc. 605. So, the perpetual extension by statute of the life of a corporation, with a similar continuation of its corporate powers, as the period of its existence was about to end, is clearly within the purview of a supplemental act, since it added perpetual duration to a subsisting charter.
While the prolongation of the corporate existence was indispensable to a continuance of corporate power or function, a change in the corporate name is a nominal matter; and, therefore, when the proposed law was introduced, it affected the charter in matters of substance and of form. The title reflected this twofold object, since it is composed of two clauses, which respectively refer to a supplement to the charter and to an alteration in the corporate name. As has been seen, these are distinct, but not conflicting, provisions, which relate to the same general subject-matter. Furthermore, the second clause does not limit the scope of the first clause, with which it is conjunctively connected as an additional and co-ordinate clause. So, the language and grammatical form of the title advised the legislators not only that the proposed enactment would supply the original charter with complementary provisions which it lacked or needed and with an alteration in the corporate name, but also that the change in name was in addition to, and not among, the supplementary amendments contemplated. The body of the act was within the contemplation of the title, and wholly dealt with the powers of the corporation, so the statute has but one general subject which is fairly disclosed by its title, and, therefore, in this respect, the requirements of section 29 of article 3 of the Constitution is fulfilled. 1 Lewis' Sutherland on StatutoryConstruction (1904), sec. 131; County Commrs. of WorcesterCounty v. School Commrs., 113 Md. 305, 309, 77 A 605; Phinneyv. Sheppard etc. Hospital, 88 Md. 633, 42 A 58; Brown v. Md.Telephone *Page 164 Co., 101 Md. 574, 579, 580, 61 A. 338; Gans v. Carter Aiken, 77 Md. 1, 25 A. 663; Dinneen v. Rider, 152 Md. 343,357, 358, 136 A. 754.
In Drennen v. Banks, 80 Md. 310, 315, 30 A. 655, and inSmith v. Standard Oil Co., 149 Md. 61, 67, 130 A. 181, the particular second clause of the title was not a co-ordinate of the first clause but qualified and limited the scope of the general first clause, and therefore was misleading as to the intent to include other subject-matter in the enactment. In the first case, the statute was upheld because the legislation was within the limits of both the general and qualifying and dependent second clause, and the act was no broader than either clause of its title. Drennen v. Banks, 80 Md. 315-320, 30 A. 655. But in the second case, the act was declared void because the legislation went beyond the subject limited by the restrictive second clause, as is illustrated by the case cited in support of Section 140 of 1 Lewis' Sutherland on StatutoryConstruction (2d Ed.).
B. The second point is based upon another clause of section 29 of article 3 of the Constitution of Maryland, which ordains that "no law, or section of law, shall be revived or amended by reference to its title or section only." This provision relates to the body of the statute and not to its title, and must be read in connection with these subsequent parts of section 29: "And it shall be the duty of the General Assembly, in amending any article or section of the Code of Laws of this State, to enact the same as the said article or section would read when amended. And whenever the General Assembly shall enact any Public General Law, not amendatory of any section or article in the said Code, it shall be the duty of the General Assembly to enact the same, in articles and sections, in the same manner as the Code is arranged, and to provide for the publication of all additions and alterations which may be made to the said Code." See DorchesterCounty Commrs. v. Meekins, 50 Md. 28, 45; Anderson v. Baker,23 Md. 531, 570, 585. There are no other provisions with respect to the form the body of an enactment must assume; and as these refer exclusively to amendments *Page 165
of any article or section of the Code, and to enactments of any public general law that are not amendatory of any such article or section, the quoted requirements have no application to the instant case, because the statute in question is neither an amendment of the Code nor a public general law, but merely an amendment of the charter of a private corporation. See Const.of 1864, art. 3, sec. 28; Const. of 1851, art. 3, sec 17. And since the cases, Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9;Stewart v. Commrs. of Hale County, 82 Ala. 209, 2 So. 270;State v. Hubbard, 148 Ala. 391, 41 So. 903; Board of FireCommrs. v. Trenton, 53 N.J. Law, 566, 22 A. 731; Board ofPenitentiary Commrs. v. Spencer, 159 Ky. 255, 166 S.W. 1017;People v. Greer College, 302 Ill. 538, 135 N.E. 80; People v.Crossley, 261 Ill. 78, 103 N.E. 537, 544; Beale v. Pankey,107 Va. 215, 57 S.E. 661; Portland v. Stock, 2 Or. 69; Copeland v.Pirie, 26 Wash. 481, 67 P. 277; Appeal of Barrett, 116 Pa. 486,10 A. 36; Seay v. Laurel etc. Co., 110 Miss. 834,71 So. 9; In re Lovett (D.C. Illinois) 2 F.2d 307; Moore v.Tunica County, 143 Miss. 821, 107 So. 659; Smails v. White,4 Neb. 353, are decisions of courts which were controlled by constitutions severally prescribing that the amendatory statute must set out at length the act so amended, they do not support the position of the next of kin.
It follows that there is neither a mandatory nor a directory constitutional provision which requires that the revival or amendment of the charter of a private corporation must set out in full the whole charter or such sections as are so finally revived or amended. The question here then is: Was chapter 290 of the Acts of 1842-43, creating a private corporation, revived or amended by reference to its title or section only? There are but few decisions which relate to this clause. In Davis v. State
(1854), 7 Md. 151, 158, the court held that there could be a repeal of a statute by implication where there was a subsequent inconsistent enactment, although the Constitution then read "no law or section of law shall be revived, amended, or repealed by reference to its title or section *Page 166
only." Const. 1851, art. 3, sec. 17 In Dorchester CountyCommrs. v. Meekins (1878), 50 Md. 28, the decision was that the imposition of the duty upon the General Assembly to enact public laws in articles and sections was merely directory; and that the present Constitution had omitted the words "or repealed," and there was no longer any restriction upon the Legislature with respect to the repeal of laws by reference to their titles alone. Pages 44, 45 of 50 Md.; Redmond v. State, 155 Md. 13, 17,141 A. 383. And in Barron v. Smith (1908), 108 Md. 317, 70 A. 225, it was determined that a provision in the Code of Public General Laws may be repealed, so far as it relates to a territorial division of the state, by a statute making reference in its title to the article and section of the Code; and such statute is not in conflict with the portion of article 3, section 29, of the Constitution now under construction.
These last cited cases are all instances in which the constitutional requirement was considered in connection with a public law, and the combined effort of counsel and bench has not found a decision of this court in which the precise point here involved was determined. In the solution of the problem, the fact that there is no constitutional mandate with respect to the form of an enactment reviving or amending a private law, except that it be not revived or amended by reference to its title or section only, leaves, with this single restriction, absolute freedom in the formulation of the body of the statute. It is clear that the expression of the legislative intent must go beyond the enacting words and the repetition either of the title or of the title and the designation of the particular section by reference. It is also clear that the requirement that the enactment shall be of a certain form and manner in designated instances, exempts all different legislation from the operation of these particular constitutional provisions. So, what is necessary to gratify the clause in question, when applied to a law reviving or amending a private statute or one of its sections, lies between the necessity of going beyond a mere reference to its title or section, and *Page 167
the privilege of enacting the law or section without setting it forth as it would read as amended, and in articles and in sections as the Code of Public General Laws is arranged. Within the limits bounded by these two extremes, a private act is constitutional unless it exemplify the legislative mischief the constitutional mandate was designed to correct. Although expressed in decisions in which public laws were involved, this court has summarized the evils, and stated the purpose of the inclusion of this clause in the Constitution, in Davis v.State, 7 Md. 151, 159, and Barron v. Smith, 108 Md. 317, 326,327, 70 A. 225. From these decisions it would appear that the mischief to be corrected was the insertion of additional provisions in the body of the law, the striking out of phrases, clauses, sentences, or paragraphs, and the change, addition, or omission of words by mere reference to the place in the old law where the modification should be introduced, so that the former law would have to be examined and the two compared in order to understand the effect of the proposed legislation. In these illustrations, or in case there should be a revival of a law by reference to the title, the assemblymen would have to make an examination of the state of the law proposed to be amended and determine its effect, without having the law in its ultimate and certain form presented for their convenient consideration. The resulting confusion, which would be greatly increased in the event of other amendment, would make it difficult for the legislators to comprehend the pending bill, and for the public to know definitely the law of the subject. In addition, the confusion and uncertainty which arise from the proposed legislation not being submitted in its complete and contemplated form would afford greater opportunity for mistake, for the perpetration of wrong, and for the passage of undesirable, ill-advised, and corrupt measures. Sutherland on StatutoryConstruction, sec. 131; Cooley's Constitutional Limitations
(8th Ed.), pp. 313-319.
If the projected special or private legislation should be clear and comprehensible from its language, and its effect *Page 168
upon the subsisting law of which it is a revival or an amendment should be obvious, it is manifest, from the terms employed, that both the letter and the spirit of the clause of the Constitution would be gratified and the mischief remedied. So, if the reviving or amendatory act is complete in itself, or shall identify in terms the law to be affected, and shall explicitly embody the change in the existing law that will be accomplished by the new legislation, then no one reading the law is either misled as to the intent, or not apprised of the result of the new statute, which would, therefore, be neither within the letter nor the spirit of the constitutional prohibition.
In the present case the preamble to the act of 1872 may be resorted to for the purpose of obtaining information with respect to the provisions of the original charter. Chesapeake OhioCanal Co. v. Balto. O.R.R., 4 G. J. 1, 90; Levin v. Hewes,118 Md. 624, 634, 86 A. 233. By this preamble the intent to amend the specific charter is made clear, as well as the corporation's name, the limitation of its corporate life to thirty years, and the immediate necessity that the corporate franchises granted by the act should be continued in order that the beneficent purposes of the corporation be prolonged. The body of the enactment discloses the legislative intent to be: (A) The extension in time of a temporary corporate life to one in perpetuity without any alteration in the corporate powers ;and (B) the change of the old name of the "Maryland State Bible Society" to that of the "Maryland Bible Society," subject to the provisions (a) that the clear annual income of the corporate property shall not exceed the sum of $10,000, and that all suits shall be brought in the name of the president of the Maryland Bible Society; and (b) that the Legislature reserves the right to alter, amend, or repeal the new, as well as the original, at any time. See Phinney v.Sheppard Hospital, 88 Md. 633, 637, 42 A. 58; Const., art. 3, sec. 48; Hodges v. Railway Co., 58 Md. 603, 620, 621; Acts of 1870, chs. 6, 38, 127, 145, 149, 227; Acts of 1872, chs. 5, 6, 41, 129, 142; Acts of 1874, chs. 4, *Page 169
74, 110, 111, 138, 192, 249, 316, similarly removing or extending time limit of corporate duration.
From the preceding statement of its form and content, it is conclusive that the act here assailed is neither within the letter nor the general purpose and policy of section 29 of article 3 of the Constitution.
C. The charter of the society authorizes it to hold by deed, bequest, or devise any interest in realty or personalty, and "to use, sell, mortgage, lease, transfer or convey all or any part of said property; provided, that the clear annual income of such estate, interest and property shall not exceed the sum of ten thousand dollars." Acts of 1842-43, ch. 290, sec. 2, 1872, ch. 118, sec. 3.
The sanction and consent of the Legislature to the gifts made by the testatrix to the society were given by Acts 1929, ch. 554, at page 1337. See Basshor v. Dressel, 34 Md. 503, 510, 511;Koch v. North Ave. Rwy. Co., 75 Md. 222, 225-226, 23 A. 463;Munich Co. v. United Surety Co., 113 Md. 203, 224-225,77 A. 579. The property, however, if it should thus pass to the society, would yield a clear yearly income in excess of $10,000, provided the gift be put or kept in the form of an investment. So, the next of kin maintain that the corporation has no power to hold the gift and, therefore, cannot take it and, consequently, that a court of equity will not decree that the gift be delivered to the corporation, since it would be a nugatory act to put the corporation in possession of what it cannot keep within the law of its being.
The vice of this argument lies in its assumptions of fact. The limitation imposed by the statute is not upon the quantity or value of the corporate property, but upon its aggregate net yearly yield to the corporation, which may be predicted, but never ascertained until the end of year. Moreover, for its corporate purposes, the corporation may use, sell, mortgage, lease, transfer, or convey all or any part of this property at any time during any of the these successive periods of twelve months. The "promoting of the circulation of the Holy Scriptures, without note or comment," is a vast *Page 170
design which is not limited in language nor in hemisphere, but is consistent with the expenditure of large capital sums in a single year. Hence the corporate assets at the close of a fiscal year may be much less than at the beginning, and the clear income so greatly affected by the corporate use made of the corporate property during the yearly period that, no matter how large the acquisition of property may have been throughout the year, at its close the net income of the aggregate assets would not exceed the sum prescribed by the statute. It follows that the statute contemplates, at the end of every year of corporate life, the computation of all income received upon all the corporate property which has at any time been held throughout that year; and that any excess of clear corporate income from all corporate assets is then determinable by such periodic calculations.
The position of the next of kin would require the test of the power to take depend upon the potential income of the particular gift at the time of its delivery, despite the fact there might never be any income received by the corporation, by reason of either a failure of dividends or of other expected yield, or of the application of the gift to corporate purposes. In other words, the argument of the next of kin is that, notwithstanding the corporation can lawfully use and expend, as quickly as requisite, the entire sum of the benefaction for any corporate purpose, the mere possibility that the gift may assume the form of an investment, which shall be suffered to continue for a period of one year, during which the clear income thereof shall be over $10,000, is sufficient to make the gift voidable. In order to accede to this construction, the operation of the provision under review is made to turn upon the probable, although essentially contingent and conjectural, earning capacity for the next succeeding year of the gift, at the time of its acquisition by the corporation, instead of upon the income of all corporate assets as definitely established at the end of the normal fiscal year of the corporation. Not only must an ascertained fact at the end of a year be abandoned for an assumption, at the beginning *Page 171
of that period, of what that fact may be at the termination of the year, but this assumption also exacts the arbitrary rejection of the possibility of the exercise of any corporate power other than keeping the gift intact as a capital investment, although the animating purpose of the corporate enterprise is not the accumulation of invested funds nor the earning of financial profit, but the diffusion of the Holy Scriptures through a wide circulation among all the nations of the earth. From these considerations it is apparent that the test of the corporate power to have and to hold the property of which it is the owner is at those recurring annual periods when the clear income of all its property for the preceding year is determined. By limiting to a fixed amount the net annual income of the corporation from all its property, the statute effectively restrained within definite limits the accumulation of productive capital assets in the corporation. The distinguishing feature of the limitation is that it is measured by a periodic net income, which is derived from all the corporate property and is fixed in its greatest amount, but which may remain, notwithstanding large productive benefactions, within the prescribed bounds, by the conversion and consumption, at any time and to any extent, of the corporate property in the prosecution of the pious purpose for which the corporation was created.
Consequently, on reason and authority, the gift in question passes to the Maryland Bible Society; and, should the clear yearly income from all corporate property be increased to an amount in excess of the charter limitations, the State, and not the next of kin, may then complain. By this construction the intention of the Legislature, as manifested by the provision in question and the context, is gratified, and the rule for this jurisdiction, stated in Hanson v. Little Sisters, 79 Md. 434,439, 440, 32 A. 1052; In re Stickney's Will, 85 Md. 79,104-107, 36 A. 654; Waters v. Order Holy Cross, 155 Md. 146,154, 142 A. 297; Jones v. Habersham, 107 U.S. 174, 187,2 S. Ct. 336, 27 L. Ed. 401; Id., 3 Woods, 443, 13 Fed. Cas., page 957, No. 7465, is enforced. *Page 172
To exceed a limit in the holding of property, whether measured in terms of value or income, is not a private wrong but a violation of a policy or mandate of the State with consequences which the State alone may redress.
The cases last cited are precedents against the points made by the next of kin on this phase of the case. The doctrine of this forum, that the acquisition and holding of property by a corporation in excess of a charter limitation cannot be questioned by a private person, but the State alone may assert the voidable nature of the acquisition or holding, in a direct proceeding begun for that purpose, is announced and applied in instances (a) where the statutory restriction is expressed in language similar to that used in the will at bar; (b) where the gift attacked itself exceeds in amount or income the charter limitation, instead of becoming violative of the inhibition when added to the property already owned by the corporation; and (c) where personalty was the kind of property involved and the personal representative of the testator had not assented to the gift. Jones v. Habersham, 107 U.S. 174, 187, 2 S. Ct. 336,27 L. Ed. 401; Hanson v. Little Sisters, 79 Md. 434, 439,32 A. 1052; In re Stickney's Will, 85 Md. 79, 104, 36 A. 654; Watersv. Order of Holy Cross, 155 Md. 146, 154, 142 A. 297.
The last point rests upon the erroneous conception that the legatee has no title to his bequest until the executor has made a distribution to the residuary legatee of his portion of the residuary estate. Drovers' etc. Bank v. Hughes, 83 Md. 355,361, 34 A. 1012. This view is too narrow, as it ignores the distinction between a legal and an equitable title, and between property which is vested in interest but not in possession, and property which is vested both in interest and possession. A residuary bequest is a general and not a specific legacy, as the residuary legatee takes the rest and residue of the personal estate after the payment of all costs and expenses of administration, of the debts and charges against the estate, and of all other legacies having priority under the will. Miller'sConstruction of Wills, secs. 58, 131; Miller v. *Page 173 Weber, 126 Md. 658, 663, 664, 95 A. 962. At the death of the testator the legal title to all the personalty devolves upon the executor for the purpose of administration in due course and according to the terms of the will, and, in order to protect him against liability for the testator's debts to the extent of the assets in his possession, no legatee could acquire a complete title to his bequest without the assent of the executor to the delivery of the legacy. So, while the legal estate in the personalty passing under the residuary clause of the will was vested in the executor from the time of the death of the testatrix, and would not ordinarily pass from the executor to the residuary legatee, so as to give the legatee the right to maintain an acton at law for the bequest, before the executor had signified his assent by making a distribution of the residue of the esate, yet until, by this distribution, the residuary bequest became fixed in kind or sum and the title absolute and complete, the inchoate or beneficial title in the residue, although uncertain in amount or kind, was concurrently vested in interest in the residuary legatee, or his assignee or personal representative. Drovers' etc. Bank v. Hughes, 83 Md. 355, 360,361, 34 A. 1012; Rockwell v. Young, 60 Md. 563, 566; Schaeferv. Spear, 148 Md. 620, 627, 129 A. 898; Sloan v. Sloan,117 Md. 141, 150, 151, 83 A. 38; Cream v. McMahon, 106 Md. 507,519-522, 68 A. 265; Bagby's Executors and Administrators (2d Ed.) sec. 42; Woerner on Law of Administration (3d Ed.), sec. 453; Schouler on Wills etc. (6th Ed.), sec. 3071; Williams onExecutors, vol. 2, 1225, 1226 (star); Roper on Legacies, vol. 1, 844 (star).
The consent of the executor creates no new title, and that of the residuary legatee is derived through the will, and generally perfected or completed by administration in the orphans' court and a distribution; but where the validity of a devise or bequest is the inquiry for determination, or where the proper settlement of an estate is rendered difficult and complicated by the true construction of the will and by the uncertainty of who are the next of kin and parties in interest, *Page 174
recourse may be had to equity, which will assume jurisdiction to superintend the administration of assets, and to decree distribution among the legatees and distributees without reference to the assent of the executor to the legacy. Fenby v.Johnson, 21 Md. 106, 116, 119; Myers v. Forbes, 74 Md. 355,360, 363, 22 A. 410; Davis v. Clabaugh, 30 Md. 508, 510, 511;Ege v. Hering, 108 Md. 391, 412, 415, 70 A. 221; Reilly v.Union Protestant Infirmary, 87 Md. 664, 666, 40 A. 894; Myersv. Safe Deposit Co., 73 Md. 413, 427, 428, 21 A. 58; Myers v.Kooke, 146 Md. 471, 473, 474, 126 A. 710.
So, by bringing the construction of the will and the further administration and the distribution of the estate under the jurisdiction, supervision, and direction of chancery, the assent of the executor, the party complainant to the cause, to the several legacies, is implicit in whatever the chancellor may decree with respect to these legacies. The equitable title to the shares is now in the society, and its title will be complete with the passage of a decree determining and distributing its share.Supra; Jones v. Habersham, 107 U.S. 174, 2 S. Ct. 336,27 L. Ed. 401; Id., 3 Woods, 443, 13 Fed. Cas., page 957, No. 7465; In reStickney's Will, 85 Md. 79, 98, 36 A. 654, 35 L.R.A. 693, 60 Am. St. Rep. 308; Waters v. Order of Holy Cross, 155 Md. 146,142 A. 297.
As a result of these conclusions, the several gifts to the Maryland Bible Society are valid.
II. In disposing of a one-half of the residue of her estate, the testatrix separated it for testamentary purposes in twelve equal parts, and disposed of two of these undivided interests in these terms: "To the `Home for Incurables for Men' in Baltimore, Maryland, one of said twelve equal portions or shares; To the `Home for Incurables for Women in Baltimore,' Maryland, one of said twelve equal portions or shares."
The testatrix wrote the will, and her punctuation and capitalization appear from the text to be so free, arbitrary, and variable as to afford no reliable guide to her meaning. *Page 175
A striking illustration of this characteristic occurs in an earlier item of her will, where she exercised a contingent power of appointment by giving a fourth part of the subject matter to the "Home for Incurables for Men" and another fourth to the "Home for Incurables for Women," without any other description. It will be observed that, although she employed quotation marks, she omitted from the second name the last two words which were inclosed within quotation marks in the item of the will to be construed. Under such circumstances, the meaning will not be controlled by punctuation or capitalization, if the itention of the testatrix can otherwise be ascertained. The discovery of a testamentary design may be added, but not defeated, by punctuation or capitalization. Black v. Herring, 79 Md. 146,149, 28 A. 1063; Olivet v. Whitworth, 82 Md. 258, 277,33 A. 723; Miller v. Weber, 126 Md. 658, 663, 95 A. 962; Ewing v.Burnet, 11 Pet. 41, 9 L. Ed. 624; Miller on Construction ofWills, sec. 20, p. 78; State v. Warfield, 139 Md. 74, 77,114 A. 835.
If the quotation marks be disregarded, the two names are identical with the exception of for Men in the one and forWomen in the second. The context of the will makes it plain that the names were each intended to designate a corporate body. However, neither at the time of the making of the will nor since has there been any corporation in Baltimore nor in this state whose corporate title corresponded to either of the two given in the will. It is indispensable to the validity of every testamentary disposition that there be not only a definite subject of disposition but a definite object of the testator's bounty. There is admittedly no uncertainty with reference to the subject, but the next of kin insists there is no certain object in either gift because no such corporations exist. While it is true there is no corporation whose title literally agrees with that of the beneficiary of either gift, yet a misnomer will not defeat a devise or legacy if the identity of the beneficiary is otherwise sufficiently certain. As is admirably stated inMiller's Construction of Wills, sec. 51: "The name is simply descriptive of the legatee. The name *Page 176
is no more the legatee than is the name of an individual the individual himself. It is the identity of the individual, natural or artificial, that is material, not the name, for this name is simply one of the means by which the identity is ascer tained. The identity being established, the name is of no importance." And, so, in the case of a corporation, provided the corporation intended is made apparent. If it is the testator's intention that a particular corporation should take the gift, and if that intention sufficiently appear from the language of the will, when read in connection with the situation of the testator at the time the will was written, then the real legatee or devisee is ascertained and will take, notwithstanding the inaccuracy with which the corporation has been named. The effect of holding a legacy or devise void because of a misnomer of the beneficiary is to divert the gift from the object of the testator's bounty and to bestow it upon those whom the testator intended should not receive it, so the court will endeavor to preserve the intention of the testator, as made known by the words of the will and the circumstances which attended the testator at its execution.Miller's Construction of Wills, sec. 52, 10, 13. There are many illustrations of this rule in the reports, as, for example,Reilly v. Union Protestant Infirmary, 87 Md. 664, 666,40 A. 894; Doan v. Ascension Parish, 103 Md. 662, 665, 64 A. 314;Woman's Soc. v. Mitchell, 93 Md. 199, 202-205, 48 A. 737;Holloway v. Mission Helpers, 119 Md. 667, 671-672, 87 A. 269;Board of Foreign Missions v. Shoemaker, 133 Md. 594, 599,105 A. 748; Gardner v. McNeal, 117 Md. 27, 32-33, 82 A. 988.
When the testatrix made the will she was a spinster with wealth. She lived in Baltimore and wrote the will in her own handwriting, and the words of the immediate clause under consideration declare a testamentary intention to aid by gift in securing and maintaining a home for a general class which is composed of those diseased persons who are incurably afflicted. Her language, also, made clear that in this charity she desired her benefaction to be devoted equally to the relief of men and women, because she devised and *Page 177
bequeathed the same portion of her estate for each sex. It is further manifest from the four corners of the will that she intended and believed that an existing corporation was the object of her bounty and the selected legal entity through which her charity should be accomplished. This is plain because, in the preceding item 16 of her will, she exercised a contingent power of appointment of a trust fund by giving a fourth to each of two corporations, and then a fourth to the "Home for Incurables for Men," and the last fourth to the "Home for Incurables for Women," and concluded the appointment with the explanatory sentence: "The property so given to the said corporations to be applied in each instance by the recipient to its corporate purposes." The definite terms of this sentence are not modified by any portion of the will, so it is indisputable that the testatrix intended a corporation to take each gift, but the words are not inconsistent with the two gifts for a home for the incurables being intended for a corporate entity whose function was to secure and maintain a home for the incurables of both sexes.
Having been informed by the words of the document of the testator's testamentary design, the circumstances under which she wrote clarify her meaning and make certain the object of her two gifts. When the testatrix was in the course of forming her plan for the will, she knew that, under the name of Home for Incurables of Baltimore City there was a charitable corporation engaged in providing a home for incurables. This institution was incorporated in 1883 for the "creation and maintenance of a hospital or asylum in and near the City of Baltimore," with its principal office in Baltimore. It was a corporation without capital stock or shareholders, and depended upon charitable contributions for its support. Although both sexes were within the scope of its relief, the corporation, notwithstanding a continuous intention had never been able financially to receive men as inmates to its home. At the time of writing the will, and for more than twenty years afterward, there was no institution in Baltimore or within the State of Maryland that provided *Page 178
a home for incurables except the Home for Incurables of Bailtimore City.
When the testatrix expressly discloses in her will that it is a subsisting corporation which is the object of each of her gifts, and that this corporation is located in the city of her own residence, and there is, at the execution of her will, in the whole state but one existing legal entity whose corporate functions embrace and can fulfill the benevolent purpose of the testatrix and, so, answer the descriptive terms of her will, it is certain beyond reasonable denial that this single corporation, which was known to her when she wrote the will, is the one intended by the testatrix. It is not incompatible with this construction that there are two subjects of disposition, since a plurality of legacy or devise to one legatee or devisee is not an anomaly. The words of each gift would be identical if for Men, in one, and for Women, in the other, were left out, and this elimination would leave no question as to the identity of the beneficiary in each gift. When the testatrix sat down to write her will, without aid of counsel, it would be unreasonable to hold her to technical accuracy, and the interpolation of the words for Men and for Women in the title, together with the division of the share given to the corporation into two parts, was obviously to indicate the writer's desire that the legatee and devisee would use one-half for men and one-half for women in providing a home for the incurable. If the words were capable of a twofold construction, and one would defeat and the other effectuate the testator's object, the court is bound to choose the construction which would prevent an intestacy.
Since the property was given to the corporation for such uses or application as are within the scope of its corporate purposes, and there was no intention on the part of the testatrix to create a trust, the gifts cannot be declared void on the ground that they were in trust for indefinite purposes or in conflict with the rule against perpetuities. Hanson v. Little Sisters,79 Md. 434, 436, 32 A. 1052; Trinity Church v. Baker, 91 Md. 539,46 A. 1020; Waters v. Order of Holy Cross, 155 Md. 146, 151,142 A. 297; Ege v. Hering, *Page 179 108 Md. 391, 70 A. 221; Board of Foreign Missions v. Shoemaker,133 Md. 594, 105 A. 748; Peter v. Carter, 70 Md. 139, 16 A. 450;Halsey v. Convention, 75 Md. 275, 281, 23 A. 781; Baltzell v.Church Home, 110 Md. 244, 271, 73 A. 151; Miller's Constructionof Wills, sec. 164, p. 439.
The chancellor held the legacy and devise to the Home for Incurables for Men was void, but sustained the legacy and devise to the Home for Incurables for Women. In failing to decree both gifts valid he was in error.
III. The remaining questions arise on these further provisions of item 20:
"To the `Invalid Fund for Disabled Ministers' in the care of the trustees of the General Assembly of the Presbyterian Church in the United States (popularly known as the Southern Presbyterian Church) one of said twelve equal portions or shares; To the trustees of the General Assembly of the Presbyterian Church (popularly known as the Southern Presbyterian Church) one of said twelve equal portions or shares, and I suggest that the same or the proceeds thereof be applied by the said General Assembly to the Home Missions Work in its charge."
The next of kin do not question the validity of the second gift but the first is challenged as void.
The corporation known as the Trustees of the General Assembly of the Presbyterian Church in the United States was incorporated by the State of North Carolina in 1866 (Private Laws of North Carolina, Acts of 1866, ch. 30). It was granted full capacity to take and hold all forms of property, whether acquired by gift, purchase, devise, or bequest. Its broad powers and functions were further enlarged by the passage of an amendment in 1872 (Laws of North Carolina, Acts of 1871-72, ch. 87) that enabled the corporation to undertake and carry on works for the relief of invalid ministers and the widows and children of deceased ministers, and all other benevolent objects of the church. From that time until the death of the testatrix on July 24th, 1928, the only pertinent changes in this corporate charter were made in July, 1925, by an amendment removing all limitations *Page 180
upon the property which could be held, and lengthening the corporate name by an addition which made the title read: Trustees of the General Assembly of the Presbyterian Church in the United States and the Presbyterian Foundation, Incorporated.
When the will was made, in December, 1897, one of its corporate purposes was the relief of invalid or disabled ministers, or the undertaking of any other benevolence with reference to this class. So, the gift was well within the corporate capacity to acquire. The difficulty arises because of the manner of making the gift. It is not made direct to the corporation or to any unincorporated agency of the corporation, for the purpose of carrying on certain corporate functions of the corporation, but is to a fund which is used for a specific corporate function. And the gift is to a corporate fund which is in care of the legal entity to take the title of all the corporate property and to use, hold, and administer this property for its several corporate functions. The language is plain enough to show that the testatrix must necessarily have intended the absolute title to pass to the corporation to use the gift thus acquired as a portion of an existing fund then in its hands for a specific corporate purpose. Where the intention of the testatrix is so evident, a mere inartificiality in expression will not be permitted to divert a clear testamentary purpose into an intestacy. Miller's Construction of Wills, secs. 164, 165, pp. 434-445; Littig v. Hance, 81 Md. 416, 424-426, 32 A. 343;Holloway v. Mission Helpers, 119 Md. 667, 671-672, 87 A. 269;Board of Foreign Missions v. Shoemaker, 133 Md. 594, 599, 601,105 A. 748; Mather v. Knight, 143 Md. 612, 614, 123 A. 109;Waters v. Order of Holy Cross, 155 Md. 152, 142 A. 297; Reillyv. Union Protestant Infirmary, 87 Md. 664, 40 A. 894. In the present instance there was no intention to create a trust, so no trust for uncertain beneficiaries is created, and this gift to a religious corporation for its corporate purposes is not invalid, although the beneficiaries of the corporation are uncertain.Supra; Eutaw Place Church v. Shively, 67 Md. 493, 10 A. 244;Peter v Carter, 70 Md. 139 16 A. 450; *Page 181 Halsey v. Convention, 75 Md. 275, 23 A. 781; Hanson v. LittleSisters, 79 Md. 434, 32 A. 1052; Bennett v. Humane ImpartialSociety, 91 Md. 10, 45 A. 888; Baltzell v. Church Home,110 Md. 244, 271, 272, 73 A. 151; Doan v. Ascension Parish,103 Md. 662, 664, 64 A. 314; Ege v. Hering, 108 Md. 391, 413, 417, 418,70 A. 221; Gray v. Orphans' Home, 128 Md. 592, 601-602,98 A. 202; Conner v. Trinity Church, 129 Md. 360, 363-365, 99 A. 547;Rydzewski v. Grace Church, 145 Md. 531, 536, 537, 125 A. 717.
It follows that the chancellor rightly held and decreed that the legacy and devise here discussed passed under the will to the Trustees of the General Assembly of the Presbyterian Church in the United States according to its present amended corporate name.
For error in declaring the gift to the Home for Incurables for Men in Baltimore, Md., void, the decree must be reversed, but in other respects the decree is affirmed.
Decree affirmed in part and reversed in part, and causeremanded for further proceedings in conformity with thisdecision; the costs of this appeal to be paid out of theresiduary fund. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486424/ | The appeal in this case is from an order or decree of the Orphans' Court of Montgomery County overruling the motion of the appellants asking that issues be framed and sent to the Circuit Court for said county for trial, and dismissing their caveat. The facts of the case are substantially as follows:
On the 7th day of February, 1911, upon the application of Jane B. Bradley, the alleged will and codicil of her deceased husband, Henry Bradley, was admitted to probate and letters testamentary thereon were issued to her. She qualified as such executrix and took possession of his real *Page 647
and personal estate, amounting in value to about one hundred thousand dollars, all of which passed to her under the terms of the alleged will.
On May 9th, 1911, the appellants, a brother, sister, and two nephews, sons of a deceased sister Henry Bradley, deceased, heirs and next of kin of Henry Bradley, deceased, filed a caveat to the said alleged will and codicil, alleging, among other things, first, a want of testamentary capacity in the said Henry Bradley at the time of the execution of the alleged will and codicil, and, second, that the said alleged will and codicil were procured by undue influence and coercion practiced and exercised upon him by the said Jane B. Bradley; and in their petition they prayed that issues be framed and sent to a court of law for trial.
On the 14th day of June thereafter Jane B. Bradley filed a plea to the caveat, alleging therein that the Orphans' Court was without jurisdiction to decide the questions raised by the caveat, and that she has filed her bill in the Equity Court for Montgomery County, asking it to take jurisdiction of such questions and to enjoin the Orphans' Court in the further prosecution of the caveat, and in her plea asked the Orphans' Court to defer action upon the caveat until the Equity Court had acted upon her bill. This request of the caveatee was granted by an order of Court passed on July 25th following, deferring further action upon the caveat.
Jane B. Bradley, in her bill filed in the Equity Court for Montgomery County, to which we have referred, alleged, among other things, in support of her allegation that the Orphans' Court was without jurisdiction to hear and determine the questions involved in the caveat; that she in 1904, upon the oft repeated and urgent solicitation of Henry Bradley, consented to marry him; the day, however, at such time was not fixed. That he, in advance of any definite agreement as to when the marriage should take place, and in furtherance of his desire to marry her, executed what is termed in the bill an antenuptial agreement, by which he agreed and *Page 648
promised, in the event of such marriage, that she should have in lieu of other interests in his property as a result of such marriage, the sum of thirty thousand dollars and a house and lot in Rockville, Md. On the 14th day of September, 1904, Bradley, with a marriage license "which he had caused to be issued without her knowledge but in anticipation of her consent," went to her home and exhibited to her the antenuptial agreement as well as a paper purporting to be his last will and testament, the one involved in these proceedings, by which he devised and bequeathed unto her all his property and estate, conditional, however, upon their marriage. Moved by these inducements, she agreed to marry him then and there. This she did, and they continued to live together as man and wife until his death, in January, 1911. Both the agreement and will, pursuant to their agreement, were delivered to her prior to the marriage. The agreement was afterwards recorded. And subsequently, on the 15th day of December, 1910, he executed a codicil to said will, which stated that the marriage had taken place, and it in effect ratified and confirmed the antenuptial contract and will previously executed and delivered to her.
In her bill she avers that these negotiations or transactions between them constituted a binding contract and agreement by which she, on her part, was to marry him, and he, in the event of their marriage, was to deliver to her the antenuptial settlement and will, the latter to remain unrevoked and in full force and effect; and that the contract on her part was performed by her marriage to him, and that the contract on his part was performed by the delivery and recording of the antenuptial agreement and by the execution and delivery of the said last will and testament to her, and by the death of the deceased leaving his last will and testament unrevoked.
Following these allegations, the bill then charged that the institution of the proceedings in the Orphans' Court were an attempt to commit a fraud upon her, because the property *Page 649
devised and bequeathed to her was not a gift of the deceased by the will, but was the performance by him of a solemn and binding contract and agreement made and entered into with her in consideration of her marriage to him, which contract and agreement she on her part had fully performed; and then charged that the Orphans' Court was without jurisdiction to determine the rights of the parties under said contract, and that she would not be able to assert her rights thereunder in said Court, and that it would be a fraud upon her to allow the proceedings under the caveat to continue, as she would thereby be deprived of the means of defending her rights and be subjected to irreparable loss, etc.
To this bill the caveators, defendants thereto, demurred, and the Court sustained their demurrer and dismissed the bill. Upon appeal to this Court the order sustaining the demurrer and dismissing the bill was affirmed.
The Court in that case said, speaking through JUDGE THOMAS:
"We think it clear that the jurisdiction to take probate of wills conferred by the provisions of the Code upon Orphans' Courts of this State is an exclusive jurisdiction, and a Court of Equity has no power to determine whether a will shall be admitted to probate or to revoke an order of the Orphans' Court admitting a will to probate.
"In this case the will in question was admitted to probate and letters testamentary were granted by the Orphans' Court before the caveat was filed, and such action of the Orphans' Court can not be revoked or reviewed by a Court of Equity. McDaniel v.McDaniel, 86 Md. 625; Stanley v. Safe Deposit Co.,87 Md. 450.
"The Code confers upon the Orphans' Court ample authority to hear and determine caveats filed after a will has been admitted to probate, and to revoke letters previously granted, and the Orphans' Court of Montgomery County is clothed by statute with full power to determine the questions raised by the petition of the appellees and to grant the relief prayed *Page 650
by them. Even if it be conceded that the averment of the bill, that the appellant performed the contract relied on, is a complete defense to the objection that the deceased was not capable of making a will, and that where that is the only objection to a will a Court of Equity should intervene in order to give effect to such a defense, in the case at bar there areother charges against the will to which the defense relied on is not a sufficient answer, which a Court of Equity is without jurisdiction to decide for the purpose of determining whether the will in question should be admitted to probate or whether the order of the Orphans' Court admitting it to probate should be revoked, and which, if the injunction was granted, would remain undisposed of. * * * Here, in addition to the allegation that the deceased was of unsound mind, the petitioners rely upon the charge that the alleged will was produced by undue influence, which, as we have said, is not sufficiently met by the defense upon which the appellant relies as ground for an injunction."
The case was decided in this Court on February 28th, 1912, and on June 24th thereafter the caveatee answered the caveat denying its allegations, and upon the same day also filed in the Orphans' Court a petition alleging therein practically the same facts as are found in the bill of complaint which we have hereinbefore fully stated, and upon which facts she charges that, "The paper writing which is described in these proceedings as the last will and testament of the said Henry Bradley, was in fact converted into an inherent, essential and inseparable part of an irrevocable agreement between the said Henry Bradley and this defendant," and that if the caveators desired to vacate and set aside said agreement for any of the causes named in the caveat, "the proper forum * * * is not a probate Court, which has no jurisdiction with reference to such questions so far as they affect or relate to contracts, but to a Court of Equity, which alone has jurisdiction in the premises." *Page 651
The petition then further alleges that the paper writing described as the last will and testament of the said Henry Bradley, deceased (containing this language: "I give, devise and bequeath all my estate of every nature whatsoever and wheresoever situate unto Jane B. Cromwell, absolutely and in fee simple, conditional, however, upon a marriage being consummated between me and the said Jane B. Cromwell, in which event this will, so far as it relates to the provisions herein made in favor of the said Jane B. Cromwell (the same having been made as an additional consideration of her agreement to become and becoming my wife) shall be irrevocable"), "is irrevocable and unchangeable and does not possess that ambulatory and revocable character which is the essential and distinguishing characteristic of a true last will and testament, is not a will but a contract, and therefore does not fall within the purview of sections Nos. 342, 343, 344, 345, 346, 348, 349 and 355 of Article 93 of the Code of Public General Laws, the provisions of which relate solely to valid and revocable wills." The petition then asks that the caveat be dismissed.
A demurrer filed to this petition was overruled, and the caveators, by order of Court, were required to answer the petition, which they did, admitting most of the facts therein alleged, but denying the legal correctness of the conclusions based upon those facts as stated by the petitioner. To this answer a replication was filed, and again the caveators filed their motion asking the Court to frame issues to be sent to the Circuit Court for trial on the issues joined on the caveat and answer thereto.
At this stage of the proceedings the caveatee offered evidence in support of the allegations of the petition, but the Court by its order refused to admit this evidence, on the ground of a want of jurisdiction to consider it, and in the same order overruled the motion of the caveators that issues be sent to the Circuit Court for trial, and dismissed the *Page 652
caveat. It is from this order dismissing the caveat that this appeal is taken.
The Orphans' Court in its order overruling the caveators' demurrer to the petition of the caveatee asking that the caveat be dismissed, stated that "from an inspection of said will and other facts admitted by the demurrer that the same was made in execution of a contract, and not a will subject to caveat." This was after the will had been admitted to probate by the Court and while the order probating it was still in full force and effect.
Section 338 of Article 93 of Bagby's Code provides that: "The Orphans' Courts, and in their recess the registers of wills, in this State are authorized to take the probate of any will, testament or codicil." The authority or jurisdiction conferred by this statute upon the Orphans' Courts or the register of wills in the recess of their respective Courts, is, as we have repeatedly said, an exclusive jurisdiction, but in the exercise of it they are limited to the probate of wills, testaments and codicils. They are not authorized by it to take probate of any paper writing not of such testamentary character.
What is meant by the term "probate" and the effect to be given to it is clearly defined and stated in 40 Cyc. page 1223, where it says that the term probate "when properly defined and strictly used, relates to proving and establishing a will before the officer or tribunal having jurisdiction to determine its validity, and, as then used, it includes not only the evidence presented to the Court, but also the judicial determination by the Court on that evidence that the instrument is what it purports to be. A proceeding to probate a will is one in rem,
calling for the exercise of judicial, rather than the ministerial, powers of that Court." "The probate of a will not only involves the testamentary capacity of the testator, his residence within the jurisdiction and the sufficiency of the execution of the will, but also the fact that the instrument probated is testamentary in character." 40 Cyc. *Page 653
page 1372. "And like any other judgment of a competent jurisdiction it is conclusive until reversed or set aside according to law." 23 A. E. Ency. (N. Ed.) page 132."
The paper writings in this case having the form and verbiage of a will and codicil and executed as such, were presented to the Court for probate by Jane B. Bradley, the widow of the deceased. In presenting it she stated, under oath, that she did "not know of any will or codicil of Henry Bradley other than the above instrument of writing," and after taking the affidavits of the witnesses thereto made in the usual form, the Court passed its order admitting it to probate "as the true and genuine last will and testament and codicil of Henry Bradley, deceased." This was the judicial determination of the Court made in the exercise of the exclusive jurisdiction conferred upon it by statute, which, as we have said, is conclusive until reversed or set aside according to law. This judgment of the Court still stands, and no effort or attempt has been made to revoke it except by the caveat, which under the order of the Court appealed from was dismissed.
Upon the probate of the will, letters testamentary were granted to the appellee, Jane B. Bradley, and she took possession of both the real and personal property of the deceased and continues to hold it. Until the will was probated no letters testamentary could have been issued thereon, and therefore by reason of such probate the appellee was enabled to avail herself of the advantages and benefits accruing to her therefrom in respect to the property and estate of the deceased. In acquiring these advantages and benefits, the paper writings were treated by her and by the Orphans' Court as the will and codicil of the deceased; but now it is contended by her that these paper writings constitute a contract and that they should not be considered as a will and codicil in the sense that they are subject to caveat, and suggests that the only remedy open to those who seek to caveat the will and codicil for the reasons stated in the caveat, is by bill in equity to annul and vacate said paper writings. *Page 654
We can not adopt this view of the appellee. The Orphans' Court, in admitting to probate the said alleged will and codicil, acted within its jurisdiction, and its determination in respect thereto is conclusive until reversed on appeal or set aside by its order, and so long as the probate remains unrevoked the said alleged will and codicil is in our opinion subject to caveat within the time allowed by law.
This is not an appeal from the action of the Orphans' Court in admitting the alleged will and codicil to probate, but is from an order dismissing the petition of the caveators asking that issues be framed, upon the questions therein presented, and sent to the Court of law for trial. Upon this appeal we can not, upon the question presented by the appellee, review the action of the Orphans' Court in admitting to probate the alleged will and codicil. Whether the paper writings form and constitute a contract between Henry Bradley and his widow, Jane Bradley, or are the will and codicil of Henry Bradley, deceased, is not before us for our determination.
If it should be determined in the caveat proceeding that the deceased left no valid or effective will, the rights of the appellee to proceed in a Court of Equity to establish a valid and binding contract between her and her deceased husband, by which he was to provide for her by will, would not be defeated thereby.
In our opinion, it was the duty of the Orphans' Court in this case to make up and transmit issues to a court of law, as prayed in the petition of the caveators, and they erred in their refusal to do so. Price v. Taylor, 21 Md. 363; Keene v. Corse,80 Md. 20; Sumwalt v. Sumwalt, 52 Md. 338. Therefore, the order of the Court below should be reversed and the case remanded that the Court may act in conformity with the views herein expressed.
Order reversed, cause remanded, with costs to the appellants. *Page 655 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486322/ | This appeal is from an order of the Circuit Court for Anne Arundel County sustaining an exception to a sale of a parcel of land in that county made by the appellant, Raymond S. Williams, trustee under a deed of trust for the benefit of creditors from Charles L. Solley. The exception was filed by the appellees, Josiah C. Armiger and James S. Armiger, co-partners, trading as J.C. Armiger and Brother, who purchased the property from the appellant at a public sale, and is based upon an alleged defect in the title of Charles L. Solley, who claims under two deeds, one dated September 3rd, 1896, and the other dated the 4th of October, 1909.
By the first of these deeds Sarah Ann Solley, "in consideration of natural love and affection and the sum of five dollars," granted and conveyed the property therein described and containing about one hundred and fourteen acres of land to George H. Solley, "his heirs and assigns, * * * in trust for the sole and separate use and benefit of Mary W. Johnson, wife of William C. Johnson, for and during the period of her natural life and no longer, so that she, during the period of her natural life, may be permitted and suffered to have, hold, use, occupy and possess the aforesaid parcel of ground with all the rights, appurtenances and rents, issues and profits thereof to receive, take and apply to her separate use and benefit, her receipts alone being good and sufficient acquittances and discharges for all such rents, issues and *Page 225
profits; so that the said parcel of ground shall not at any time or in any manner be liable for any debts of her present or any future husband, and from and after the death of the said Mary W. Johnson, then in trust for all and every the children the said Mary W. Johnson now has or the child or children she may hereafter have, and their executors, administrators and assigns, as tenants in common equally, the issue of any deceased child of said Mary W. Johnson, if any such issue there should be, to take the part or proportion only to which the parent of such issue if living would be entitled."
By the second deed Mary W. Johnson and William C. Johnson, her husband, Stella S. Thornton and Arthur Thornton, her husband, James A. Johnson and Emma Johnson, his wife, George W. Johnson and Annie M. Johnson, his wife, Harry M. Johnson and Amanda R. Johnson, his wife, conveyed "all their right, title, interest and estate in and to" said parcel of land to Charles L. Solley, who, on the 16th of October, 1914, conveyed it to the appellant, in trust for the benefit of his creditors.
It appears from the agreed statement of facts that Mary W. Johnson, who at the date of the sale made by the appellant was a widow and sixty-eight years of age, "had only five children," viz: Stella S. Thornton, James A. Johnson, Harry M. Johnson, George W. Johnson "and a deceased child who died in infancy, unmarried and without issue"; that Stella S. Thornton died "leaving no children"; "that there are no other children of Mary W. Johnson, * * * nor descendants of any deceased child of Mary W. Johnson," and that George H. Solley died in April, 1914, leaving heirs, all of whom are "now of full age and reside in the State of Maryland."
The appellant contends that the deed from Sarah Ann Solley, under the Rule in Shelley's Case and the Statute of Uses, conveyed to Mary W. Johnson the legal estate in fee simple, and that the deed from Mary W. Johnson and others operated to vest the same title in Charles L. Solley, while the contention of the appellees is that the deed from Sarah Ann Solley conveyed to the trustee the legal title, and to *Page 226
Mary M. Johnson only an equitable life estate, with contingent remainders to her children.
The rule relied on by the appellant (which has been abrogated by the Act of 1912, Ch. 144, as to instruments executed after the 31st of May of that year) is, "that when the ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately, to his heirs, in fee or in tail, the heirs are words of limitation of the estate, and not words of purchase." Or as stated in Preston on Estates and adopted by CHANCELLOR KENT, "When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate."
The construction given to the words "heirs" or "heirs of the body" imputes to the grantor an intention to use them in their legal sense, and they are regarded as conclusive evidence of the intent of the grantor notwithstanding it may be contrary to the real intention. One of the exceptions to this rule is that where the grantor or testator annexes to the word "heirs" other words indicating that he intended to use the term in a qualified sense, as a designation of certain individuals, and that they and not the ancestor were to be the points or termini from which the succession to the estate was to take its start, then the word "heir" is to be treated as a word of purchase. For instance it is said that the words "heirs now living," "children," "issues," etc., are words of limitation or purchase according to the manifest intention of the grantor. Ware v. Richardson,3 Md. 505; Handy v. McKim, 64 Md. 560. *Page 227
While the word heirs, in the absence of some qualifying expression annexed to it, is under the rule treated as a word of limitation, the word "children" also has a well-recognized meaning, and unless the context clearly shows it to be otherwise intended, it signifies immediate offspring, and is a word ofpurchase and not a word of limitation. Stump v. Jordan,54 Md. 619; Reilly v. Bristow, 105 Md. 326.
In Stump v. Jordan, supra, JUDGE MILLER said: "The devise after the life estate, is not to the `heirs,' nor to the `issue,' but to the `children' of the life tenant, if she have any. In its ordinary and popular signification the word `children' means immediate offspring, and such in general is its legal construction. It is a word of purchase and not of limitation,
unless the context clearly shows it to be otherwise intended. The cases in which it has a broader signification, and where it has been held synonymous with `heirs' or `issue' or `descendants,' are well illustrated by the resolutions in Wild's Case, 6 Co. 17. In that case, says LORD COKE, `it was resolved for good law that if A. devises his lands to B. and his children or issues, and he hath not any issue at the time of the devise, the same is an estate-tail; for the intent of the testator is manifest and certain that his children or issue should take, and as immediate devisees they can not take because they are not rerum natura,
and by way of remainder they can not take, for that was not his intent, for the gift is immediate, therefore such words shall be taken as words of limitation, scilicet as much as children or issue of his body.' In such a case there is no difficulty in discovering the plain intent or discerning the reason why the word `children' should have the same effect as the word `heirs.' The distinction between the case put and one like this, is clearly stated by the other resolution in the same case, which is this: `But it was resolved that if a man, as in the case at bar, devises land to husband and wife, and after their decease to their children or the remainder to their children, in this case although they have not any child at the time, yet every child *Page 228
which they shall have after, may take by way of remainder, according to the rule of law; for his intent appears that their children should not take immediately, but after the decease of the husband and wife.'" After referring to the argument that the succeeding words of the testator, "in the event, however, of her death without lawful issue, I give and bequeath the said land to my next kindred by law," had the effect of enlarging the meaning of the word "children" previously used, from a word of purchase
to a word of limitation, and, therefore to give the first taker an estate tail, JUDGE MILLER said further: "But to this we cannot yield our assent. In the devise after the life estate the testator has used the most appropriate word, and the one usually adopted in order to avoid the operation of the rule in Shelley'sCase, and to enable the children to take as purchasers, and prevent the ancestor from depriving them of the estate by alienation." In the case of Reilly v. Bristow, supra, the limitation over was in the following words: "To go and be divided between the children the lawful heirs of my aforesaid children." After referring to the argument of the appellees' counsel that the words lawful heirs explained and enlarged the preceding word, children, JUDGE PEARCE said: "Where, as here, there are two possible constructions, one of which would enlarge and the other would restrict the meaning of the word children, we think the spirit of our decisions requires us to adopt the restrictive construction which will give effect to the natural and primary meaning of the word, rather than the arbitrary meaning placed upon it by an artificial rule of law." In the case of Hall v.Gradwohl, 113 Md. 293, where the will provided that after the death of the life tenant the property should be equally divided "among her children or heirs" the Court held that the words "children or heirs" were words of purchase, and JUDGE BURKE, referring to the contention that the rule in Shelley's Case
applied, said: "By that construction her `children or legal heirs' would take nothing under the will, and the whole portion which the testator *Page 229
intended his daughter to take for life would be taken by her absolutely. Such a construction, which has neither reason, policy, justice, nor equity to support it, can only be sustained by giving the words `legal heirs,' which are superadded to the word children, the arbitrary meaning placed upon them `by an artificial rule of law.'"
In the case at bar the deed provides that after the death of Mrs. Johnson the property is to be held in trust "for all and every the children the said Mary W. Johnson now has or the children she may hereafter have, * * * the issue of any deceased child of said Mary W. Johnson, if any such issue there should be, to take the part or proportion only to which the parent of such issue if living would be entitled." Here the word heirs is not used, and there is nothing in the context to suggest that the grantor intended the words "child or children" to have any other than their ordinary meaning. To treat these words as words of limitation would be contrary to the manifest purpose of the grantor to convey to Mrs. Johnson only a life estate in the property, and the remainder to her children and their issue.
The case of Cook v. Councilman, 109 Md. 622, on which the appellant relies, is very different. There the limitation over in default of children was to the heirs of the devisee of the life estate, and JUDGE BRISCOE said: "But in the case of the devise we are now considering the word `heirs' is used as well as the word `children,' and that word is strictly a word of limitation. The ultimate gift over to the heirs of Councilman in default of children indicates a general intent that the estate should descend to his heirs and operates to enlarge the effect of the word `children' antecedently used." As we have said, the deed in this case contains no words that can operate to enlarge the effect of the word `children.' On the contrary, the terms employed are those usually adopted to avoid the rule inShelley's Case, and to enable the children of the life tenant to take the remainder as purchasers. The intent to make them,
and not their mother, "the root of succession from which future takers should come" is clear, and there *Page 230
is no rule of law or of construction that can deprive them of the estate. In this view of the case it is not necessary to determine whether the life estate of Mrs. Johnson was converted by the Statute of Uses unto a legal estate, or whether the rule enforced in Handy v. McKim, supra, still applies in this State.
Having determined that Mrs. Johnson has only a life estate in the property, the next question to be considered is, Did her children by uniting in the deed convey to Charles L. Solley the remainder in fee simple?
In the case of Stump v. Jordan, supra, where the property was devised to Catherine J. Edie for life, and "at her death * * * to her children if she have any," JUDGE MILLER said: "If therefore the clause had stopped with the devise `to her children, if any she have,' it is beyond doubt that in this State, since the Act of 1825, Ch. 119, the mother would have taken a life estate, and any child or children she might have had, would have taken a remainder in fee. It is well settled that where a life estate is carved out with a gift over to the children of the life tenant, or the children of any other person, such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution, and in cases falling under this rule, the children if any, living at the death of the testator, take an immediately vested interest in their shares, subject to the diminution of those shares (i.e., to their being divested pro tanto) as the number of objects is augmented by future births during the life of the tenant for life, and consequently on the death of any of the children during the life of the tenant for life, their shares, (if their interests therein are transmissible) devolve to their respective representatives." In the case of Cox v. Handy, 78 Md. 108, the testator devised certain property to his wife for life and directed that after her death it should be divided "amongst my children, share and share alike, the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled," and *Page 231
JUDGE BRYAN, after stating that it was "settled that where a particular estate is given, and there is a gift over to children, this gift will embrace the children living at the death of the testator, and all who may subsequently come into existence before the period of distribution," and after reviewing many decisions bearing upon the question, said: "In view of these authorities, we think that we are justified in holding that a share of the property vested in each of the children of William W. Handy (the testator) who survived him, but if any such child should leave children at his death his share was divested in favor of his children; and that it was not divested by the death of the child in the lifetime of the tenant for life without leaving children. * * * In Engel's Case (Engel v. State, use of Geiger,65 Md. 539,) the Court said that it was unmistakably clear that the testator intended to substitute the child of the legatee who might die, in the place of the parent." In disposing of a motion for reargument JUDGE BRYAN said further: "A share of the property vested in each of the children who were living at the time of his (testator's) death, and if any child died before the period of distribution leaving children, they were substituted in his place; his share, however, was not divested if he left no children, but it went to his representatives." In that case the Court also held that the children of a child who died before the testator took their parent's share. The statements of JUDGE BRYAN were quoted with approval in the case of Hoover v. Smith,96 Md. 393. In the case of In re Roger's Trust Estate, 97 Md. 675, the will directed the executor to convert the entire estate into money, and after paying debts, etc., to transfer what remained to a trustee to invest the same and pay the interest thereon to the testator's wife during her life, and after her death to divide the securities and interest amongst the testator's children, and provided that "in said division, the child or children of a deceased parent, if there be such, are to take in equal proportion, the share to which that deceased parent would have been entitled had he or she lived at the time of said division." The widow of *Page 232
the testator released all her interest in the trust fund, and his children filed a bill to procure a division of the fund on the ground that in consequence of the release an acceleration of the remainder had resulted, and that they were entitled to a division of the trust estate. This Court, in affirming the decree of the lower Court dismissing the bill, said: "By the terms of the will, it seems to be clear that his children took vested interests in the estate in equal proportions defeasible as to the share of any one of them upon his or her death in the lifetime of the widow; and in this event the share of the person so dying would become vested in his or her children. Cox v. Handy, 78 Md. 108. The period at which the division among the remaindermen is to take place as fixed by the will, is after the death of Mrs. Rogers; and if at that time, one of the children is deceased leaving a child or children then living, such child or children must be substituted in his place; but if the child so dying leaves no children, his share is not divested but goes to his personal representatives. Cox v. Handy, 78 Md. 125. We do not understand that the appellants by their counsel, dispute these conclusions. With this construction of the will it is impossible to ascertain with precision the person or persons who will be entitled to take at the period of the death of Mrs. Rogers the life tenant. That event is yet in the future, and it is not possible to determine who may be entitled when it shall arrive. The testator desired that his estate should pass to all his children share and share alike, but if any one of them is deceased at the period of his wife's death, the children or child of such deceased child shall take; and if there be no such child or children, inasmuch as the estate vested in the deceased child would not become divested by death, his share would go to his legal representatives. So that, it seems clear that if the estate be divided at the present time while Mrs. Rogers is still living the result might ensue that the several portions of the estate will finally become vested in persons other than those contemplated by the testator, and in direct contravention of his will." *Page 233
Now the deed in question provides that "from and after" the death of Mrs. Johnson the property is to be held in trust "for all and every the children" she "now has or the child or children she may hereafter have, * * * the issue of any deceased child * * * if any such issue there should be, to take the part or proportion only to which the parent of such issue if living would be entitled," and unless the words "from and after" show that the grantor intended to postpone the vesting of the remainder until the death of Mrs. Johnson, the case falls clearly within the rule referred to, and upon the execution and delivery of the deed, each of the children of Mrs. Johnson then living took a vested interest in the property. The share of each child was liable to be diminished in order to include any child Mrs. Johnson might thereafter have, and the interest of each child was subject to be divested only by his or her death, during the lifetime of Mrs. Johnson, leaving issue, who by the terms of the grant, take the share "to which the parent of such issue if living would be entitled."
There are cases holding that words like the words "from and immediately after" the death of the life tenant express the intention of the testator or grantor to defer the vesting of the remainder until that period. Larmour v. Rich, 71 Md. 369;Poultney v. Tiffany, 112 Md. 630. But here the words "from and after" are followed by an express grant to the children Mrs. Johnson "now has," which show that the grantor intended each of the children of Mrs. Johnson living at the time the deed was executed and delivered to take a vested remainder, subject to be divested only by his or her death, leaving issue, during the lifetime of Mrs. Johnson, and that the words "from and after" refer merely to the time of enjoyment of the estate.
With this construction of the deed it is impossible to ascertain with certainty the persons who will be entitled to take the property at the death of Mrs. Johnson, and while the deed in question operated to transfer the interest and estate *Page 234
of the children who united therein provided they survive their mother or die during her lifetime without leaving issue, it cannot effect the interest or share of any child who may die during the lifetime of Mrs. Johnson, the life tenant, leavingissue.
The deed in this case does not differ in any material respect from the deeds construed in Ware v. Richardson, supra, andHandy v. McKim, supra, and following the ruling in those cases, the remaindermen in the case at bar, by force of the Statute of Uses, take legal estates. See also Merritt v.Disney, 48 Md. 344; Hooper v. Felgner, 80 Md. 262; Graham
v. Whitridge, 99 Md. 248, and 39 Cyc. 219.
The agreed statement of facts does not state when the child referred to as "a deceased child who died in infancy, without issue," died. If said child died after the deed from Mrs. Johnson and others was executed, his or her interest in the property did not pass by that deed, but vested in his or her heirs at law.
In addition to the defects pointed out, the title of Charles L. Solley and his assignee is subject to the further uncertainty, referred to by the Court below, arising out of the fact that Mrs. Johnson is still living. The Court cannot say that she will not have other children to take vested interests in the property. Inre Ricard's Trust Estate, 97 Md. 608.
For the reasons stated the decree of the Court below sustaining the exception to the sale made by the appellant must be affirmed.
Decree affirmed, with costs to the appellees. *Page 235 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4053969/ | ACCEPTED
01-15-00147-CV
NVM
NESBIT T, FIRST COURT OF APPEALS
HOUSTON, TEXAS
VASSAR & 4/9/2015 1:58:37 PM
CHRISTOPHER PRINE
MCCOWN , L.L.P. CLERK
a t t o r n e y s | c o u n s e l o r s
15851 DALLAS PARKWAY, SUITE 800, ADDISON, TEXAS 75001
PHONE: 972.371.2411 FAX: 972.371.2410 W EB:
FILED IN WWW.NVMLAW.COM
1st COURT OF APPEALS
W RITER’S DIRECT DIAL: 972.371.2419
HOUSTON, TEXAS
W RITER’S EMAIL: [email protected]
4/9/2015 1:58:37 PM
CHRISTOPHER A. PRINE
April 9, 2015 Clerk
Via E-Filing
Christopher A. Prine
Clerk, First Court of Appeals
First Court of Appeals
201 Fannin Street
Houston, Texas 77002-2066
Re: Case No. 01-15-00147-CV; Metropolitan Insurance and Annuity
Company and Metropolitan Life Insurance Company v. Peachtree
Settlement Funding, LLC; in the First Court of Appeals
Dear Mr. Prine:
This firm and the undersigned represent Peachtree Settlement Funding, LLC
in the above-referenced appeal. Please forward me a copy of the Clerk’s Record
prepared for the appeal at the address set forth above. Please contact me via
telephone at 972-371-2419 so that I may provide you with the firm’s FedEx
Number to cover the cost of shipping for the Clerk’s Record.
If you have any questions or concerns please do not hesitate to give me a call
at the phone number listed above. Thank you.
Sincerely,
/s/ Patrick P. Sicotte
Patrick P. Sicotte
Clerk of the Court
April 9, 2015
Page 2
cc: Via U.S. Mail and
E-Mail
Patrick Larkin
The Larkin Law Firm, P.C.
11200 Broadway, Suite 2705
Pearland, Texas 77584
Via U.S. Mail and
E-Mail
Stephen R. Harris
Drinker Biddle & Reath LLP
One Logan Square, Suite 200
Philadelphia, PA 19103
Via U.S. Mail
S. Swain
3303 Quarry Place Lane
Katy, Texas 77493 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4048343/ | IHk-lS
COA# 08-13-00111-CR OFFENSE: 31.03
Benjamin James Patterson
AKA Benjamin James Talton
AKA Benjamin J. Talton v. The
STYLE: State of Texas COUNTY: Hood
COA DISPOSITION: AFFIRMED TRIAL COURT: 355th District Court
DATE: 1/14/15 Publish: NO TC CASE #: CR12031
IN THE COURT OF CRIMINAL APPEALS
ELECTRONIC RECORD
Benjamin James Patterson AKA
Benjamin James Talton AKA
Benjamin J. Talton v. The State
STYLE: of Texas CCA#: IT© -IS
?RO SB Petition CCA Disposition:
FOR DISCRETIONARY REVIEW IN CCA IS: DATE:
JUDGE:
DATE: OSlM)/^OfS SIGNED: PC:
JUDGE: PIM ZL^^c-. PUBLISH: DNP:
MOTION FOR
REHEARING IN CCA IS:
JUDGE: | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486259/ | Appellee, the Havre de Grace Banking and Trust Company, a body corporate, filed a bill of complaint in the Circuit Court for Harford County against Pauline Miller and the Citizens National Bank of Havre de Grace, a body corporate, appellants here, making substantially the following allegations.
On December 28, 1932, it obtained a judgment against one A. Hamlin Carver in the amount of $479.26 with costs, the judgment to bear interest until paid. At the time this judgment was obtained, the said A. Hamlin Carver owned two pieces of real estate in the city of Havre de Grace. On April 8, 1940, Carver conveyed these properties to the Citizens National Bank of Havre de Grace, one of the appellants here, without satisfying this judgment. On July 13, 1943, a writ of scire facias was issued at the order of the appellee to renew this judgment for a period of twelve additional years, and the proceedings were duly completed. On April 19, 1945, a writ of fieri facias was issued on the judgment and a levy was made on the real estate hereinbefore mentioned. Subsequently appellee's counsel was approached by Pauline Miller and by representatives of the Citizens National Bank of Havre de Grace and various conferences were held for the purpose of settlement of appellee's judgment. Finally an agreement was reached whereby the judgment was to be settled and satisfied by the Citizens National Bank of Havre de Grace paying to appellee the sum of $300 previously paid it by Pauline Miller in part payment for one of the lots, and by Pauline Miller paying appellee an additional sum of $300.
On May 23, 1945, counsel representing Pauline Miller advised appellee's counsel by letter that the settlement heretofore agreed upon could not be carried through because two small judgments totaling about $75 had been *Page 681
found against A. Hamlin Carver, and further because in the renewal of the judgment against A. Hamlin Carver appellee failed to make either of the appellants parties as terre tenants, and that therefore a motion would be filed to quash the aforesaidfieri facias proceedings. Upon receipt of the letter dated May 23, 1945, appellee's counsel communicated with Pauline Miller's counsel by telephone and these two counsel reached an agreement whereby the appellee was to accept $479.26 and costs in the amount of $19.25 and the judgment was to be satisfied. This agreement was evidenced by a letter written on May 24, 1945, by counsel for appellee to counsel for Pauline Miller, one of the appellants, and filed as Exhibit "C". The letter was not addressed to the other appellant, the Citizens National Bank of Havre de Grace, but contained the following statement, "I naturally assume that you will arrange with the representative of the Citizens National Bank to have the executed Deed at the above referred to meeting so that th matter can be concluded when we meet." The bill alleges "that it will be noted by reference to complainant's Exhibits `A', `B', and `C' that no complaint whatsoever was made by the Citizens National Bank of Havre de Grace as to the settlement, they being willing to pay the money which they had on deposit to the credit of Pauline Miller to your complainant in consideration of the settlement of the judgment of your complainant versus A. Hamlin Carver heretofore mentioned, and in further consideration of the release of any claim which your complainant had on the real estate heretofore mentioned * * *."
An appointment was made by appellee's counsel with Pauline Miller's counsel to consummate the transaction at a certain time and place and Pauline Miller came to the appointed place at the appointed time and stated that she was ready and prepared to carry through her part of the settlement. Although the appellee has always been ready, willing, an able to carry out the agreement evidenced by its letter of May 24, 1945, the appellee is advised that the Citizens National Bank of Havre de Grace *Page 682
is unwilling to comply with the terms and conditions of the agreement.
The bill prayed that the agreement made on May 22, 1945, as amended by the further agreement made on May 24, 1945, be specifically enforced and that the Citizens National Bank of Havre de Grace be required to pay to the appellee the funds it had on hand to the credit of Pauline Miller, and that Pauline Miller be required to pay unto appellee the difference between the amount paid by the Citizens National Bank of Havre de Grace and the amount of the judgment and costs, waiving any interest, namely, $214.89, as agreed to by counsel for Pauline Miller and accepted by Pauline Miller. The prayer also asked for further relief.
Seperate demurrers were filed by each of the appellants to this bill of complaint. On August 29, 1945, the Chancellor sustained the demurrers and made the statement, "Bill does not lie at this time. Should the Complaint show loss later, then will consider on the facts presented. Bill retained."
Subsequently, on January 2, 1946, the appellee filed in this case a petition in the nature of a supplemental bill in which was recited the filing of the original bill of complaint, the filing of the demurrers, and the order of the Chancellor on the demurrers. Further, that Pauline Miller, one of the appellants, filed a motion to quash the writ of fieri facias. Further, the Court (in law) on or about the 6th day of December, 1945, granted the motion of the appellant Pauline Miller. Further, "That at the hearing on the motion of Pauline Miller held on or about the 29th day of November, 1945, it was proven that Pauline Miller, one of the Defendants in the above entitled matter, had on deposit with Citizens, the other Defendant in the above entitled matter, the sum of $299.50, and it was further proven that the said sum had been deposited by the Defendant, Pauline Miller, with the Defendant, Citizens, for the purpose of purchasing the property described in Paragraph 2, Sub-Paragraph (a) of the bill of complaint in this matter." It further alleged that the appellee had *Page 683
sustained a loss by the quashing of the writ of fieri facias
and asked the Chancellor, in accordance with the ruling made on the 29th day of August, 1945, that it should be paid the sum of $299.50 heretofore referred to.
The petition prayed the passage of an order directing the appellants to pay the sum of $299.50 and that appellants comply with such orders as may be passed. Separate demurrers were filed by each of the appellants to this so-called petition.
The following order was then passed by the Chancellor, "* * * said Demurrers having been heard and overruled on the 13th day of February, 1946, with leave granted to the Defendants to further answer within ten days from the 13th day of February, 1946, and no answers having been filed it is this 1st day of March, 1946, ordered by the Circuit Court for Harford County (in Equity) that the Defendants, the Citizens National Bank, a Body Corporate, be and it is hereby Ordered to pay to The Havre de Grace Banking and Trust Company, a Body Corporate, the sum of $299.50, and that the Defendant, Pauline Miller, be and she is hereby ordered to consent to the payment of the aforesaid sum, and further, that the Defendants pay the costs of this proceeding." From that order the appellants appeal.
The order from which the appeal was taken had no reference to either the original or supplemental bill. Although money was ordered to be paid in settlement of an uncollectable lien, there was no direction that the lien be released upon payment.
The order should be reversed for many reasons.
The original bill of complaint does not allege a binding agreement on the part of the appellant, the Citizens National Bank of Havre de Grace. According to the allegations of the bill the alleged agreement of May 22, 1945, was superseded by the alleged agreement of May 24, 1945. According to the allegations of the bill as shown by exhibit "C", being the letter of May 24, 1945, from the solicitor for appellee to the solicitor for Pauline Miller, the appellant, the Citizens National Bank of Havre de Grace, *Page 684
was not a party to this agreement. Only an assumption was made by appellee's counsel that the arrangements would be satisfactory to the Citizens National Bank of Havre de Grace. Any information to that effect came from the counsel for the other appellant, Pauline Miller. This letter does not show that the Citizens National Bank of Havre de Grace made any agreement through its counsel or other representative to turn over the money on deposit to the credit of Pauline Miller, to appellee. In order for the appellant, Citizens National Bank of Havre de Grace to be bound by the agreement it must, of course, have been a party and entered into the agreement. According to the allegations of the bill and the exhibits the appellant, Citizens National Bank of Havre de Grace did not enter into this alleged agreement of May 24, 1945, and is therefore not bound thereby. The petition, in the form of a supplemental bill, in no way alleges an enforceable agreement on the part of the Citizens National Bank of Havre de Grace.
The original and the supplemental bills allege agreements on the part of Pauline Miller to pay a judgment on which a lien had been obtained on property being purchased by her. Before the transaction was completed the lien was stricken out against the property being purchased by Pauline Miller. This was not a judgment against her personally. Therefore there was no consideration to support the agreement of Pauline Miller. It is alleged that this agreement was made for the purpose of releasing the lien of the judgment held by appellee. As the appellee's lien against this property was stricken out, it had no lien against the property and there was an utter failure of consideration for the promise of the appellant Pauline Miller, even if such a promise had been established. According to the allegations, this case was nothing more than an attempt to enforce an agreement to compromise an uncollectable lien. Ecker v. Bohn, 45 Md. 278;Smith v. Easton, 54 Md. 138, 147, 148, 39 Am. Rep, 355. Obviously, as the money had been deposited with the appellant, Citizens National Bank of Havre de Grace, by *Page 685
the appellant Pauline Miller, the Citizens Bank could not pay the money without the consent of Pauline Miller, and as there was no consideration to Pauline Miller, her consent to the payment could not be compelled and therefore the Citizens Bank could not pay the money to the appellee, as ordered by the Chancellor.
A court of equity may retain a bill of complaint for a time in order to give the parties an opportunity to have the legal question decided at law. Miller's Equity Procedure, Section 258, Page 322. In this case, as above set forth, the Chancellor sustained the demurrers to the original bill but retained the bill. It is provided by General Equity Rule No. 19, "If upon hearing, any demurrer shall be allowed, the Court may, in its discretion, upon motion of the plaintiff, allow him to amend the bill upon such terms as it shall deem to be reasonable." No motion was made by the complainant to amend the bill and no order obtained. Therefore, the action of the Chancellor in sustaining the demurrers was a final order and put that bill out of court. The Chancellor could not at the same time sustain the demurrers to the whole bill and still retain it.
In this case the only thing before this Court is the petition in the nature of a supplemental bill. After the original bill was retained, the supplemental bill recites that it was decided at law that the appellee had no legal right against the property in question under the judgment, and the supplenmental bill was nothing more than an attempt, after losing the case at law, to collect in equity a lien on specific property after the lien at law had been stricken out as to that property. It was therefore an attempt in equity to collect a lien on a judgment which had been stricken out at law. The lien, having been stricken out at law, there was no further remedy for appellee on that judgment against the property being sold. The Chancellor had no authority to make any order as to either appellant and the order must therefore be reversed.
Order reversed and bill of complaint dismissed, with costs tothe appellants. *Page 686 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486260/ | The bill of complaint in this case was filed in the Circuit *Page 435
Court for Washington County by the appellee against the appellant to procure a rescission of a sale of certain real estate made by the appellant to the Maryland Beneficial Association of Washington County. The sale was made in October, 1890, and the bill was filed in August, 1895. In January, 1895, the Beneficial Association made a deed of trust for the benefit of its creditors to the appellee, who was authorized to file the bill by anex-parte order of the Court under whose supervision he was administering the trusts of the deed.
It appears from the record that the appellant, in the legitimate exercise of its corporate powers, undertook to lay out in town lots and expose for sale a tract of land owned by it lying in the suburbs of Hagerstown. At a public sale of these lots the Beneficial Association purchased seven of them at an aggregate price of $1,085; payable one-third cash and the balance in one and two years. The lots were paid for by the Beneficial Association according to the terms of sale, and on October 24th, 1892, they were conveyed to it by a deed which it placed on record a few days thereafter.
The bill of complaint sets up title to the lots in the appellee as trustee under the deed of trust from the Beneficial Association, and relies upon two grounds for the relief for which it prays. These grounds are, first, a want of power in the association to purchase and hold the lots, and secondly, that their purchase was the result of a fraudulent combination between the directors of the two corporations. In amplification of the second ground the bill avers that two of the directors were common to both corporations, that the Beneficial Association was insolvent to the knowledge of the appellant when the purchase was made, and that the purchase was not made for the bona fide
purpose of investment, but as a speculation. The prayer of the bill is that the appellant may be required to repay the price paid to it for the seven lots, with interest, upon receiving a conveyance of the lots. *Page 436
The appellant answered the bill neither admitting nor denying the want of capacity in the Beneficial Association to purchase the lots, denying any knowledge of its insolvency, and emphatically denying the allegations of fraud set up in the bill, and insisting that the sale was made in perfect good faith by the appellant.
The appellee, to support the allegations of the bill, introduced the testimony of two witnesses, Forbes and Barrick, of whom the former was president of the Beneficial Association and the latter was its general agent. These witnesses not only failed to prove the charges of fraud contained in the bill, but testified in substance that the lots were bought for investment by the association in pursuance of a previous agreement or understanding arrived at by its directors at a conference at which they were all present, and that no action had been taken by the appellant to induce or procure the purchase of the lots by the association. No acts or conduct were proven on the part of any of the directors of either corporation from which a fraudulent purpose could be fairly inferred. Two of the directors were shown to be common to both corporations but that fact alone, while it inclines us to look carefully into their conduct, does not afford ground of legal presumption of illegality or unfairness in transactions between the two corporations. Booth
v. Robinson et al., 55 Md. 441. The lots were sold at public sale and there is no testimony impeaching the fairness of the sale.
Nor does the record show that the Beneficial Association was insolvent at the time of the purchase. The only testimony on the subject of its financial condition at that time is that of the witness Forbes, who says that although the association had been in business for but a short time (less than one year), it already had 1,400 members, and was in receipt of an income over and above all expenses of from $40 to $100 per week and had $700 out on mortgage and had no debts. The evidence on this subject is incomplete, but it neither proves nor indicates insolvency. *Page 437
The purchase of these lots may have been unwise or indiscreet, but we find no evidence in the record sufficient to sustain the charges that it was the result of a fraudulent combination between the directors of the two corporations, or that the sale was not fair and bona fide on the part of the appellant.
We now come to the contention of the appellee that the purchase of the lots of ground was not within the corporate power of the Beneficial Association. The appellee's brief was prepared, and his argument in this Court was made upon the theory that the purchase of the lots was ultra vires the corporation and was for that reason altogether void, but the bill of complaint is drawn upon a different theory. It does not allege or assume a total want of capacity on the part of the association to purchase or hold real estate or even that the conveyance of the seven lots in question did not operate to vest the title to them in the association. The bill assumes that the title did pass to the association, for it distinctly avers that, under the deed of trust from that body to the appellee, "the title to the said lots became vested in the said Martin L. Keedy, trustee," and the prayer for relief is not that the purchase should be declaredultra vires or void, but it is for a reconveyance of the land to the appellant and a repayment by it of the purchase money. The allegations touching the incapacity of the association are simply that the lots were purchased not for investment but for speculation, and that their purchase was incompatible with the purposes for which it was incorporated, and in fraud and derogation of the rights of its policy holders.
If, however, we assume, for the purposes of this opinion, that the scheme and allegations of the bill are in strict accord with the argument and contention of the appellee's counsel we do not think the case presents any such incapacity on the part of the Beneficial Association to purchase the land in question, as can be availed of by the appellee to maintain the present proceeding. *Page 438
It appears from the record that this association was incorporated in February, 1890, for the purposes indicated by its title, by filing a certificate of incorporation under the provisions of Article 23 of the Code. The certificate is in the usual form and contains no recital or enumeration of the powers to be exercised by the corporation but simply refers in that connection to the provisions of the Code of Public General Laws. Under sec. 53, of Art. 23, of the Code, this association, in common with all others formed under the provisions of that Article, had power to acquire by purchase and to hold any real or personal property necessary to enable it to carry on the operations or fulfil the purposes named in its certificate of incorporation.
The Beneficial Association thus having by law the capacity to purchase and hold real estate under some circumstances, and having purchased the lots of ground in controversy and taken a conveyance of them, the question remains whether, in the absence of fraud, the appellee as its assignee is entited to maintain the present bill upon the mere ground that the association exceeded its powers in making the particular purchase. The weight of authority is plainly against the right of the appellee to do so.
It has been repeatedly held in Maryland and elsewhere that when a corporation has by its charter or by general statute power to hold land for some purposes or to a limited extent, its right to take and hold any particular parcel of land, is a matter solely between the corporation and the State and can be called in question only in a direct proceeding instituted by the State for that purpose. Cowell v. Colorado Springs Co., 100 U.S. 55;Hamsher v. Hamsher, 132 Ill. 273; Heironimus v. Sweeney,83 Md. 160; Hanson v. Little Sisters of the Poor, 79 Md. 441;In re Stickney's Will, 85 Md. 107
The doctrine that, even where a corporation has no power to take or hold real estate, a deed made to it is not void but voidable, and that only at the suit of the State, has found strong support. Union Nat. Bk. v. Matthews, 98 U.S. 263; *Page 439 Reynolds v. First Nat. Bank, 112 U.S. 405; Fritts v.Pullman Co., 132 U.S. 282.
The appellee having failed to show a state of facts entitling him to the relief prayed for in his bill upon the ground of fraud practiced upon the Beneficial Association in the sale to it of the seven lots of ground, and not being entitled to raise in this proceeding the question of the capacity of the association to purchase the lots, it follows that the decree appealed from must be reversed and his bill dismissed.
Decree reversed with costs and bill dismissed.
(Decided June 15th, 1900.) | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3209707/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1170V
Filed: February 25, 2016
Unpublished
****************************
AUDREY M. ABBOTT, *
*
Petitioner, * Ruling on Entitlement; Concession;
V. * Influenza;
* Shoulder Injury (“SIRVA”);
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
****************************
Daniel Pfeifer, Pfeifer, Morgan & Stesiak, South Bend, IN, for petitioner.
Robert Coleman, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT 1
Dorsey, Chief Special Master:
On October 9, 2015, Petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 [the
“Vaccine Act” or “Program”]. Petitioner alleges that she experienced a left shoulder
injury following administration of her October 24, 2012 influenza vaccination. Petition at
1-2. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
On February 24, 2016, respondent filed her Rule 4(c) report in which she
concedes that petitioner is entitled to compensation in this case. Respondent’s Rule
4(c) Report at 1. Specifically, respondent “opines that petitioner’s alleged injury is
consistent with a shoulder injury related to vaccine administration (SIRVA) . . . [and]
further agrees that petitioner’s SIRVA was caused-in-fact by the influenza vaccination
administered in her left arm on October 24, 2012.” Id. at 5. Respondent further agrees
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012)(Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
that no other cause for petitioner’s injury has been identified, that the statutory six
month sequela requirement has been satisfied, and that petitioner has satisfied all legal
prerequisites for compensation under the Act. Id.
In view of respondent’s concession and the evidence before me, the
undersigned finds that petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master | 01-03-2023 | 06-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4048356/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
MICHAEL DEWAYNE ANDERSON, No. 08-15-00237-CR
§
Appellant, Appeal from the
§
v. 282nd District Court
§
THE STATE OF TEXAS, of Dallas County, Texas
§
State. (TC# F-1423772-S)
§
§
ORDER
The Court GRANTS the Appellant’s third motion for extension of time to file the brief
'
until January 27, 2016. NO FURTHER MOTIONS FOR EXTENSION OF TIME TO FILE THE
'
APPELLANT’S BRIEF WILL BE CONSIDERED BY THIS COURT.
It is further ORDERED that the Hon. Lawrence B. Mitchell, the Appellant’s Attorney,
prepare the Appellant’s brief and forward the same to this Court on or before January 27, 2016.
IT IS SO ORDERED this 30th day of December, 2015.
PER CURIAM
Before McClure, C.J., Rodriguez, and Hughes, JJ. | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4048362/ | PD-0290-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
May 28, 2015
Transmitted 5/27/2015 5:07:36 PM
Accepted 5/28/2015 7:49:05 AM
CAUSE NO. PD – 0290-15 ABEL ACOSTA
CLERK
STATE OF TEXAS § IN THE DISTRICT COURT
§
vs. §
§
John Dennis Clayton Anthony § BAILEY COUNTY, TEXAS
APPEARANCE OF COUNSEL
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes Troy Bollinger and hereby files this appearance as attorney of record for
John Dennis Clayton Anthony. Troy Bollinger was appointed as attorney of record in this cause
as shown in attached “Order for Substitution of Counsel”.
Respectfully submitted,
Troy Bollinger
LANEY & BOLLINGER
600 Ash Street
Plainview, TX 79072
Tel: (806) 293-2618
Fax: (806) 293-8802
/s/ Troy Bollinger
By:
Troy Bollinger
[email protected]
State Bar No. 24025819
Attorney for John Dennis Clayton Anthony | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426899/ | This was an action brought by the appellee, Metodi Velkoff, against the appellants to quiet his title to Lot No. 8 in the replat of the plat of Rosedale, a village which is located on the southwest shore of Lake James in Steuben County, Indiana. *Page 327
The complaint of appellee alleged, "that he is the owner of the following described real estate in Steuben County and State of Indiana, to-wit: Lot # 8 in the Plat of the Re-plat of Rosedale located in the northwest quarter of section 4, township 37 north range 13 east and more particularly described as follows: . . ." The complaint set forth that the defendants were claiming an interest in said land adverse to plaintiff's title and that the claim of defendants was unfounded and without right and was a cloud upon the plaintiff's title. The prayer was to quiet title as against any and all claims of defendants.
The appellants filed an answer in general denial to this complaint; and the appellants Arthur M. Jersey and Corrine Jersey filed a cross-complaint against the appellee and their codefendants to enjoin the appellee from interfering with or obstructing the use of a right of way or alley which was alleged to exist along the north part of such Lot No. 8 in the plat of the replat of Rosedale.
The issues made upon the complaint and the cross-complaint were submitted to the court for trial and it made a special finding of facts and stated its conclusions of law thereon. These required a judgment for appellee on his complaint and against the two appellants upon their cross-complaint. The appellants, on appeal, first attack the sufficiency of the evidence to sustain the finding of the trial court.
For an understanding of the legal questions presented for determination, we set forth the following facts taken from the record:
In 1915, one Joseph Rose was the owner of certain real estate located upon the southwest shore of Lake James in Steuben County, Indiana, and on March 20, 1915, he made and acknowledged a plat thereof which *Page 328
he designated by the name of Rosedale. This plat, on March 24, 1915, was duly recorded in Plat Book 2 at page 54 of the records in the office of the recorder of Steuben County, Indiana. The plat consisted of eleven (11) lots numbered from one (1) to eleven (11), both inclusive, and each of a uniform width of fifty (50) feet, but varying in depth. These lots extended west from the southwest shore of the lake to a highway twenty (20) feet wide which was platted adjoining the west boundaries thereof.
In the summer of 1922, Mary E. Metzgar was the owner of the legal title to Lot No. 8 as shown on such plat, and Otis D. Wickerd and his wife, Opal E. Wickerd, were the owners of the legal title to Lots Nos. 7, 9, 10, and 11. Herman H. Hilker owned some interest in the lots where the legal title was in Otis D. Wickerd and wife, but the nature and character of such interest does not appear. During the summer of such year, Mary E. Metzgar, Otis D. Wickerd, Opal E. Wickerd, and Herman H. Hilker orally agreed that a replat of such lots be made. Such replat was prepared by two civil engineers, and on August 12, 1922, it was acknowledged by each of such owners. The statement on such plat is as follows:
"The attached map of the replat of Rosedale is a map of such replat as surveyed and executed by me on the 10th day of July 1922, and is located in the northwest fractional quarter of section 4 in township thirty seven north, range thirteen east in Steuben County, State of Indiana, the north west corner of lot No. 11 being 46.4 feet south east of the northwest corner of the old plat of Rosedale as shown by the respective maps as recorded, the dimensions and lines of the lots of said plat being designated by figures placed along the boundary lines of the lots, and the lots being renumbered to correspond with the changed boundaries. *Page 329
"Witness my hand this 12th day of August, 1922.
"Otis D. Wickerd Herman H. Hilker "Opal E. Wickerd Mary E. Metzgar"
Then follows an acknowledgement by each person before a notary public in which they acknowledge the execution of the foregoing and attached replat of Lots Nos. 7, 8, 9, 10, and 11, of the plat of the village of Rosedale. This replat was duly recorded in Plat Book 2 of the records in the office of the recorder of Steuben County, Indiana, on September 6, 1922. By this replat the width of each of the included lots at the west end thereof was reduced from 50 feet to 43.6 feet, but at a point approximately 100 feet east from such west end, the width of each lot was increased from 50 feet to 61.5 feet, and the width of each became greater as each approached the shore of the lake. It is apparent that it was the intention of the lot owners to reduce the width at the west end of the lots, but to increase it where the same abutted upon the lake shore. It is also apparent that this change in the boundary lines of the lots would result in the adding to Lot No. 8, then owned by Mary E. Metzgar, certain land from Lots Nos. 7 and 9 which adjoined on the south and north thereof; also, certain land that was in Lot No. 8 previous to the replatting was taken therefrom and added to the adjoining Lots Nos. 7 and 9. After the replat was made and signed by Mary E. Metzgar, but without her knowledge and before the recording thereof, some unknown person altered the prepared plat so that it appeared that there was an alley 10 feet wide extending along the north side of Lot No. 8 as it appeared on the replat.
No deeds were exchanged between the different owners of such lots in connection with this replatting, and the appellants are contending that the oral agreement and the replatting of these particular lots was not *Page 330
effective to make Mary E. Metzgar the owner of Lot No. 8 as shown upon the replat; that the only portion thereof she owned so that she could convey by deed was the portion thereof that appeared upon the original plat.
The trial court, evidently from the oral agreement of the adjoining landowners and the making and recording of such replat, determined as a fact that Mary E. Metzgar was the owner of Lot No. 8 of the plat of the replat of Rosedale from August 12, 1922, to April 21, 1925. On the latter date she conveyed by warranty deed to Edward C. Kolb, "Lot numbered eight (8) in the Recordedplat of Rosedale, the same plat being a part of the northwest fractional quarter of Section four (4) in township thirty-seven (37) north range thirteen (13) east in said county and State."
The trial court, basing its determination upon the deed containing such a description, found as a fact that Edward C. Kolb was the owner of Lot No. 8 of the plat of the replat of Rosedale from April 21, 1925 to June 5, 1936. On June 5, 1936, Edward C. Kolb and wife conveyed to the appellee, by warranty deed; their deed contained the same description as was contained in the deed from Mary E. Metzgar to Edward C. Kolb, and the trial court upon the evidence thereof found as a fact that the appellee, "became the owner in fee simple of lot number eight (8) of the Plat of the Re-plat of Rose Dale on June 5, 1936 and is now and has been the owner in fee simple since that time of said lot number eight (8)."
Two legal questions that are presented for determination are as follows:
1. Was the oral agreement entered into between the adjoining landowners who owned Lots Nos. 7, 8, and 9 in the replatted territory, followed by the making and recording of such replat, legally sufficient to change *Page 331
the boundary lines of Lot No. 8 owned by Mary E. Metzgar in the original plat so that immediately following the making and acknowledgement of such replat she became the owner of all of Lot No. 8 as shown upon such replat so that she could convey the same by warranty deed to Edward C. Kolb, and he could convey the same by warranty deed to appellee, and appellee could obtain a title thereby that he could quiet by his action herein?
2. Was the description, "Lot No. 8 in the recorded plat of Rosedale," sufficient to pass title to "Lot No. 8 in the recorded plat of the replat of Rosedale"?
It is a rule of law so well established that it has become axiomatic, that in suits to quiet title, the plaintiff must recover, if at all, on the strength of his own title. The 1. evidence must show title in the plaintiff; it is not sufficient that it show that the adverse claimant is without title. Cozy Home Realty Co. v. Ralston, Rec. (1938),214 Ind. 149, 14 N.E.2d 917; Willard v. Bringolf (1936),103 Ind. App. 16, 28, 5 N.E.2d 315.
In this particular action the complaint of plaintiff specifically described the real estate that was within the boundaries of Lot No. 8 as replatted. The only allegation 2. concerning the nature of the title of appellee therein was an allegation that he was "the owner" of the particular real estate. The complaint does not allege that he was the owner in fee simple nor does it allege that he was the owner of the equitable title. In an action to quiet title, where the plaintiff specifically describes the title upon which he relies, his recovery must be upon the title as laid. Ault v. Miller
(1932), 203 Ind. 487, 181 N.E. 35; Danforth v. Meeks (1911),176 Ind. 400, 96 N.E. 153; *Page 332 Kozanjieff v. Petroff (1939), 215 Ind. 286, 19 N.E.2d 563, 122 A.L.R. 479.
It is provided by statute that: "Conveyances of land or of any interest therein, shall be by deed in writing, subscribed, sealed and duly acknowledged by the grantor or by his attorney, except bona fide leases for a term not exceeding three (3) years." § 56-103, Burns 1933.
In order that an instrument purporting to convey title to land or an interest or estate in land may be valid as a deed and operative to pass such title to or interest in land, it 3, 4. is essential that there be a grantor, a grantee, and a thing granted, and that it convey a present interest or estate. It is further necessary that the instrument be signed by the grantor, or some one whom he directs to sign for him, or his authorized agent, be attested and acknowledged in conformity to the local statutory requirements, and delivered by the grantor to the grantee or to some one in his behalf and accepted by the grantee. 16 Am. Jur., Deeds, § 20, p. 448.
In the case of Hummelman v. Mounts (1882), 87 Ind. 178, 179, in discussing the sufficiency of a particular written instrument to effect a conveyance of land, the Supreme Court says:
"It is no doubt true that an instrument purporting to be a deed will be effectual if it contains in any part apt words of conveyance. . . . While it is true that if in any part of the instrument apt words of conveyance are used the instrument will be treated as a deed, it is also true that if no such words can be found in any part it will be deemed utterly devoid of force."
A deed must contain words of grant, release, or transfer, showing intent to actually transfer grantor's *Page 333
interest in order to pass title and be valid. Legout v. 5. Price (1925), 318 Ill. 425, 149 N.E. 427. See, also, Pierson v. Doe (1850), 2 Ind. 123; Davis v. Davis
(1873), 43 Ind. 561; Murrer v. Murrer (1939),106 Ind. App. 304, 19 N.E.2d 494.
But appellee contends that the oral agreement for the replatting of a portion of the recorded plat and the signing of the replat by the adjoining landowners was legally effective to pass title to Mary E. Metzgar of the additional real estate that came within the boundaries of Lot No. 8 as replatted, under the principles of law applicable to the establishment of boundary lines by adjoining landowners. He in particular relies upon the case of Adams v. Betz (1906), 167 Ind. 161, 169, 78 N.E. 649, where the Supreme Court says:
"As a general rule, it is affirmed by the authorities that where owners of adjoining premises establish by agreement a boundary or dividing line between their lands, take and hold possession of their respective tracts, and improve the same in accordance with such division, each party in the absence of fraud, will thereafter be estopped from asserting that the line so agreed upon and established is not the true boundary line, although the period of time which has elapsed since such line was established and possession taken is less than the statutory period of limitation. 1 Cyc. Law and Proc., 1036; 5 Cyc. Law and Proc., 930-935; St. Bede College v. Weber (1897), 168 Ill. 324, 48 N.E. 165; Tate v. Foshee (1889), 117 Ind. 322; Pitcher v. Dove (1885), 99 Ind. 175, and authorities cited; Meyers v. Johnson (1860), 15 Ind. 261. The general rule recognized by the authorities is that a boundary line located under such circumstances, in the absence of fraud, becomes binding on the owners establishing it; not on the principle that the title to the lands can be passed by parol, but for the reason that such owners have agreed permanently upon the limits of their respective premises, and have acted in respect to such line, and *Page 334
have been controlled thereby, and, therefore, will not thereafter be permitted to repudiate their acts."
In the particular case from which we quote and where the above stated principle was applied, there was dispute or uncertainty between the adjoining landowners as to the proper location 6. of the boundary line. It is a well-established rule, that one of the requisites necessary to the establishment of a boundary line other than the true boundary line, between adjoining landowners, by oral agreement, in the absence of adverse possession or estoppel, is that the location of the true boundary sought to be thus established is or has been uncertain and in dispute. Robinson v. Gaylord (1930), 182 Ark. 849,33 S.W.2d 710; Roberts v. Brae (1936), 5 Cal. 2d 356,54 P.2d 698; Jones v. Scott (1924), 314 Ill. 118, 145 N.E. 378; Peterson v. Hollis (1913), 90 Kan. 655, 136 P. 258;Moran v. Choate (1934), 253 Ky. 470, 69 S.W.2d 994;Blank v. Ambs (1932), 260 Mich. 589, 245 N.W. 525; Barnes
v. Allison (1901), 166 Mo. 96, 65 S.W. 781. For additional citations in above and other states see annotation in 69 A.L.R. 1443 and in 113 A.L.R. 425.
The reason usually given by the courts in denying the effectiveness of a parol agreement for the establishment of a boundary line where the same is neither disputed, 7. indefinite or uncertain, is that such an agreement is within the statute of frauds. In the case of Lewis v.Ogram (1906), 149 Cal. 505, 508, 87 P. 60, 10 L.R.A. (N.S.) 610, 117 Am. St. Rep. 151, the court, in discussing an agreement which purported to fix a boundary between adjoining parcels of land, said:
"Such an agreement, necessarily, is not valid for any other purpose than that of settling an uncertainty *Page 335
in regard to the common boundary. If adjoining owners agree on a division line, knowing that it is not the true line, and with a purpose of thereby transferring from one of them to the other a body of land which they know his true line does not embrace, the agreement will not be enforced. Such a transaction would not constitute an adjustment of uncertainties or doubts as to the line, but would be an attempt to convey or release land from one to the other. Land cannot be conveyed by the devise of moving fences or changing the marks or monuments which define its limits. If an agreement having for its real object the transfer of the land, but relating by its terms solely to the boundary line, and made with knowledge that the true line is elsewhere than at the place fixed, is oral, it would be void, being an attempt to transfer land without writing."
Logically, the same result must follow if instead of an oral agreement we have a written agreement which is insufficient under the laws of the particular state, where the real estate is located, to pass title.
We know of no precedent where adjoining owners of real estate have successfully exchanged portions of their respective holdings by the making and recording of a plat instead of by 8, 9. executing deeds of conveyance. The statutory method of conveying real estate is by deed of conveyance. It is true that a parol partition of land which has been consummated by severance of the lands, and by the parties to the agreement taking possession, is valid and will be enforced. Murray v.Murray (1916), 62 Ind. App. 132, 112 N.E. 835; Wright,Administrator v. Jones (1886), 105 Ind. 17, 4 N.E. 281. But where there is no tenancy in common or community of interest in the property it cannot be partitioned. Anderson School Township
v. Milroy Lodge F. A.M., No. 139 (1891), 130 Ind. 108, 29 N.E. 411, 30 Am. St. Rep. 206. *Page 336
While it may seem harsh, in this particular instance, to hold noneffective the acts of the owners of the particular lots in causing the replat to be made and the boundaries thereof 10. to be changed, in view of the fact, that as far as the record shows, such replatting was mutually agreeable and all of the adjoining owners acquiesced therein, we do not have here involved a case where the principles of equitable estoppel can be applied. The case was not tried upon that theory in the court below. No facts were found concerning the taking of possession, the making of improvements or acquiescence in an agreed boundary line, which matters would have had force in determining whether an estoppel arose. The appellee herein, by his proof, relied upon the establishment of a legal title and the trial court found that he became the owner in fee simple of the real estate described in his complaint upon the date that he received the deed therefor from Edward C. Kolb and wife.
The trial court also found that Mary E. Metzgar was the owner of Lot No. 8 of the plat of the replat of Rosedale from August 12, 1922 to April 21, 1925. It was on the latter date that she deeded the same to Edward C. Kolb. This particular finding means that the trial court found that Mary E. Metzgar became the owner of Lot No. 8 in the replat of Rosedale, not because she had taken possession thereof and had made improvements thereon, or had occupied to the new lines fixed by such replat, but that she became the owner thereof immediately following the signing and acknowledgement of the replat. In other words, the legal effect of the finding of facts by the trial court is that the replatting by the landowners was legally effective to convey real estate so that after the making and acknowledgement of such replat, the landowners owned *Page 337
all the real estate in their particular lots as the same were designated upon the replat. We are not holding that it was not possible for Mary E. Metzgar and her immediate and remote grantees to become the owner of Lot No. 8 as shown upon the replat of Rosedale without the execution of deeds of conveyance by adjoining landowners.
No question is here presented concerning acquiescence in an agreed boundary line for a long period of time or for the time fixed by the statute of limitations, nor is any question presented concerning the fixing of the boundary lines of the lots by agreement followed by occupation and use, and the making of improvements under such conditions and circumstances, that an estoppel has arisen. Such was the situation in Tate v. Foshee
(1889), 117 Ind. 322, 20 N.E. 241, to which appellee has called our attention. It does not appear from the opinion of the court in such case whether there was any dispute, doubt, or uncertainty between the adjoining landowners as to the lines of their respective lots, which they agreed to rectify and straighten. Nor do we believe that the court held or intended to hold that there could be a valid parol partition of real estate by adjoining landowners where there was no tenancy in common or community of interest. The same judge that wrote the opinion in Tate v.Foshee, supra, also wrote the opinion in Anderson SchoolTownship v. Milroy Lodge F. A.M., No. 139, supra, in which he says at p. 108: "As each party owns its part of the property in severalty, it is legally impossible that partition can be awarded, for there is no community of interest."
We grant that in our examination of the authorities we have found no case in Indiana which particularly discusses the question of whether a boundary line, *Page 338
other than the true boundary line, may be permanently and irrevocably established by the parol agreement of the adjoining owners, in the absence of adverse possession or estoppel, where there is no doubt, dispute, or uncertainty concerning the location of the true boundary line. But, seemingly, without conflict, the decisions in other jurisdictions set forth the existence of dispute, doubt, or uncertainty as one of the requisites for the establishment of boundary lines in such cases. For a discussion of authorities we call attention to the following annotations: 69 A.L.R. 1430; 113 A.L.R. 421.
We hold that the evidence is insufficient to sustain the finding of the trial court, that appellee was the owner in fee simple of Lot No. 8 in the replat of the plat of Rosedale.
We have carefully considered the evidence that was introduced upon the issues made upon the cross-complaint and we are of the opinion that it was sufficient to sustain the special 11. finding of the court in as far as it determined the facts upon such issues. The appellants do not attack the sufficiency of the finding to sustain the conclusion of law in favor of the appellee, upon the cross-complaint. One of the civil engineers who drew the replat of Rosedale testified that all the lines, printing, and figures upon the replat when it was completed, but before the signing thereof, were in green ink; but the evidence showed that the alley which cross-complainants alleged existed along the north part of Lot No. 8, was marked upon such replat in black ink and with different lettering. The evidence also showed that this alley was not drawn to scale while the original plat was. Mary E. Metzgar testified that there was no provision for an alley across Lot No. 8 when she signed the replat. The court in its *Page 339
special finding found that there had been an alteration of the replat by some unknown person after the execution but before the recording thereof, and that, by such alteration, words, figures, and a line were inserted thereon to show the existence of an alley 10 feet wide off the north side of such Lot No. 8, and that this alteration was made without the knowledge or consent of Mary E. Metzgar.
Any erasure, interlineation, or change, however material, which is made in and upon an instrument by a stranger to it, who is acting without privity or the consent of the parties 12. interested therein, is a mere spoliation, as distinguished from an alteration, and is in legal contemplation wholly immaterial and ineffective to give to the instrument any other or different meaning or operation from that which attached to it before such change was effected. Such a change cannot enlarge the obligations of the parties thereto, nor, at least where its original terms are still ascertainable, effect the right of the parties to enforce the instrument as it was originally written; and a recovery is allowed thereon the same as if no change had occurred in it. 3 C.J.S., Alteration of Instruments, § 53, p. 969; Piersol v. Grimes (1868), 30 Ind. 129; John v.Hatfield (1882), 84 Ind. 75, 82; Wright, Rec. v. O'Brien
(1918), 67 Ind. App. 521, 119 N.E. 469; Hageman v. Fetty
(1937), 103 Ind. App. 291, 7 N.E.2d 518.
In the case of John v. Hatfield, supra, the Supreme Court held that the insertion in a deed of an additional name after that of the grantee, without her consent, fraud or negligence, and after its execution, but before its unauthorized recording, did not deprive the grantee or her heirs of title under the unaltered deed, or confer any title whatever upon the person whose name was so *Page 340
inserted or his innocent remote grantee. The court said: "There is no reason why the appellees should suffer ill consequences from void acts rather than the appellant, with whom they are equally innocent."
The evidence was such that the trial court could find that the replat was altered or changed so as to show the existence of an alley extending along the north part of Lot No. 8 after Mary E. Metzgar had signed and acknowledged such plat, and that such alteration or change was made without the knowledge, fraud or negligence of Mary E. Metzgar.
Under the rules of law heretofore set forth, this alteration was a mere spoliation which did not affect Mary E. Metzgar or the rights of her immediate or remote grantees, nor could the 13. cross-complaint establish the existence of an alley growing out of such void act. The record does not validate an invalid instrument. New England Bond Mortgage Co. v.Brock (1930), 270 Mass. 107, 169 N.E. 803, 68 A.L.R. 371.
It seems to us that the position assumed by appellants concerning the action upon the complaint and the action upon the cross-complaint is somewhat inconsistent. In the action upon the complaint they contend that appellee never became the owner of Lot No. 8 as shown upon the replat and that the replatting was not legally effective to establish boundary lines between adjoining lot owners. In the action upon the cross-complaint they contend that the replatting was effective to establish an alley that is drawn with reference to the north boundary line of Lot No. 8 as replatted; and they further contend that the appellee became the owner of such lot with knowledge that it was burdened with an alley 10 feet wide along the north side thereof.
We hold that the trial court did not err in its fourth *Page 341
conclusion of law and that the evidence was sufficient to sustain its finding of fact in as far as such finding bore upon the issues made upon the cross-complaint.
On October 9, 1937, and more than fifteen years after the replat of Rosedale was recorded, the surveyor of Steuben County entered upon the record of such replat, where it 14, 15. appeared on the plat book in the office of the recorder of such county, his certificate which recites, among other things, that he made his legal survey of the replat and, "that no provision was made for any alley in the replat and that no alley exists." When the appellee offered to introduce as evidence the page of the plat book showing such replat, the appellants objected to that portion which purported to be the certificate of such surveyor, and they urge here that the trial court erred in admitting it. Granting that such certificate of the county surveyor was not competent evidence to establish the nonexistence of the alley, we do not believe that the appellants show reversible error growing out of the introduction of the same into evidence. Other evidence established, without contradiction, the nonexistence of this alley when the replat was signed and acknowledged by Mary E. Metzgar, and this certificate was merely cumulative evidence. The admission of improper evidence is harmless when the fact thereby sought to be shown is clearly established by other evidence which is competent. Keener SchoolTownship v. Eudaly (1932), 93 Ind. App. 627, 639,175 N.E. 363; Indianapolis St. R. Co. v. Schmidt (1904), 163 Ind. 360, 71 N.E. 201.
When Mary E. Metzgar was testifying as a witness, she 16. was asked the following question concerning the replat when she signed it:
Q. "Was there any provision for an alley across Lot 8 at that time?" *Page 342
She answered, "No." Appellants are objecting to the action of the trial court in permitting such question and answer upon the ground that the question called for a conclusion. We think the question called for a fact.
Appellants also object because the trial court permitted the appellee to testify orally that he was the owner of certain real estate that was described in the question. The real estate 17. included in the question was the real estate described in his complaint. The question of title to real estate was here at issue and whether the appellee was the owner of the real estate described in his complaint was one of the ultimate matters to be determined by the trial court from all the evidentiary facts. We are of the opinion that such a question propounded to a witness under such circumstances calls for a conclusion and should not be permitted by the trial court. 20 Am. Jur., Evidence, § 772, p. 644; Kirkpatrick v. Clark (1890),132 Ill. 342, 24 N.E. 71, 8 L.R.A. 511.
The witness, Don Gilbert, the county surveyor of Steuben 18. County, was asked the following question concerning a survey of the replat made by him:
Q. "I will ask you, Mr. Gilbert, if you found an alley?"
He answered, "No." Appellants claim that the trial court erred by permitting such question over their objection because it called for a conclusion. We think this question called for a fact and not a conclusion.
The judgment is reversed in as far as it determines the issues made upon the complaint of appellee, but affirmed in as far as it determines the issues made upon the cross-complaint of Arthur M. Jersey and Corrine Jersey, and cause is remanded to the trial court with *Page 343
directions to grant the appellants a new trial as to the issues made upon the complaint, but not as to the issues made upon the cross-complaint, and for further proceedings not inconsistent with this opinion.
NOTE. — Reported in 41 N.E.2d 686. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426938/ | This is an appeal from judgment rendered upon the verdict of a jury in a condemnation proceeding. The preliminary proceeding for condemnation was filed June 11, 1929, in the Spencer Circuit Court. Notice was given and upon hearing an order of condemnation was entered and appraisers were appointed and required to report on July 20, 1929. The appraisers duly filed their report awarding damages to appellee in the sum of $825.00. On July 24, 1929, appellant filed exceptions to the report on the grounds that the award was excessive; that the value fixed for the strip appropriated was too high; and that the appraisers failed to consider the enhancement in value and benefits which would result to appellee's other lands by reason of the construction of the highway in question and by reason of the appropriation of the strip taken. On September 3, 1929, appellees filed answer in general denial to the exceptions. On September 18th the cause was venued to the Warrick Circuit Court and on October 4th, 1929, appellees filed exceptions to the appraisers' report on the ground that the award was too low and that the appraisers did not properly consider all the damages which would be sustained by appellees. On December 28, 1929, the appellant moved to dismiss its exceptions to the report and moved to dismiss the exceptions filed by appellees. The trial court sustained the motion to dismiss appellant's exceptions but overruled appellant's motion to dismiss appellee's exceptions. To the latter ruling appellant excepted. The trial court proceeded to try the cause upon the exceptions filed by appellees and verdict was returned fixing damages in the sum of $1,400.00. Appellant's motion in arrest of judgment was overruled and appellant excepted.
The sole question involved in this appeal is whether the trial court had the right to proceed with the trial *Page 337
and render judgment on the appellee's exceptions after appellant had dismissed its exceptions by leave of court, appellees' exceptions having been filed more than 10 days after the filing of the report by the appraisers.
Appellant contends that the only jurisdiction ever had by the trial court of any appeal from the report of the appraisers on the question of damages was acquired by the filing of appellant's exceptions within 10 days after the filing of said report; that upon the dismissal of appellant's exceptions the trial court ceased to have jurisdiction of an appeal from the report; that no jurisdiction of such an appeal was acquired by virtue of appellees' exceptions for the reason that they were not filed within the statutory period of 10 days after the filing of said appraisers' report.
In support of the action of the trial court, appellees contend that "when the appellant appealed the case to the circuit court, the cause stood for further proceedings and issues on that appeal, and for trial and judgment as in civil actions, and that the court, notwithstanding appellees' exceptions, could make such further orders and render such findings as may seem just and right to the Court on said appeal;" that "when one party in the proceedings for the condemnation of lands under the eminent domain statute files his exceptions within the time prescribed by law, in ten days, this gives to the other party the right to file its exceptions at any time while the matter is pending on appeal."
Appellees cite The Midland Ry. Co. v. Smith (1890),125 Ind. 509, 25 N.E. 153, as authority for the foregoing propositions. The Midland Ry. Co. case relied upon the authority and reasoning of McMahon v. Cincinnati, etc., R. Co. (1854),5 Ind. 413 and Swinney v. Ft. Wayne, etc., R.R. Co. (1877),59 Ind. 205.
The statute under which the proceedings in the Swinney case were brought contained the provision, as *Page 338
does § 7686, Burns Ann. Ind. St. 1926, Acts 1905, ch. 48, p. 59, § 8, that the award may be reviewed by exceptions filed within ten days after the filing of such award. The provision contained in the act authorizing assessment of damages by a sheriff's jury to the effect that issues of law and fact may be made up and tried and proceedings had as in other actions (§ 697, Code of Civil Procedure, 2 R.S. 1876, p. 285), is not unlike the language of § 7686, supra: ". . . the cause shall further proceed to issue, trial and judgment as in civil actions; the court may make such further orders, and render such finding and judgment as may seem just. . . ." But § 99 of the Code of Civil Procedure (2 R.S. 1876, p. 82), to which the court there gave effect, contained the following:
"The court may also in its discretion allow a party to file his pleadings after the time limited therefore."
The foregoing provision of the Civil Code was eliminated in 1921 (Acts 1921, p. 227, ch. 115, § 423, Burns Ann. Ind. St. 1926), and there is no express statutory authority "to 1, 2. allow a party to file his pleadings after the time limited therefor." A trial court may in its discretion extend time for filing pleadings when the fixing of the time is within the discretion of the court. But a trial court can not extend the time when the time is fixed by statute. This is especially true when the time limited constitutes an element of a right or privilege which is being asserted in a pleading in a special statutory proceeding. In Bartlett v. Manor (1897),146 Ind. 621, 45 N.E. 1060, the rule involved is stated as follows:
"However, it is fully established that when a right is given and the procedure for its enforcement is provided by a special statute, the procedure so provided excludes resort to another or different procedure. Harrison Nat. Bank v. Culbertson
(1897), 147 Ind. 611, 45 N.E. 657, 47 N.E. 13; *Page 339 Edgerton v. Huntington School Twp. (1890), 126 Ind. 261, 26 N.E. 156; Ryan v. Ray (1886), 105 Ind. 101, 4 N.E. 214; Storms v. Stevens (1885), 104 Ind. 46, 3 N.E. 401; Fisher v. Tuller, 122 Ind. 31, 23 N.E. 523."
Either party to a condemnation proceeding has the privilege of filing written exceptions to the assessment of damages within ten days after the filing of the appraisers' report. It is 3-5. clear that neither party can file exceptions after the expiration of the ten days if neither party has filed within the ten days. It is also clear that if one party files within the ten-day period and does not dismiss his exceptions that it would not be prejudicial error to allow the other party to file exceptions after the time limited. This follows from the judicial holding that the filing of exceptions by either party brings before the court the whole question of allowable damages; and, consequently, the issues would not be enlarged by a filing of exceptions by the second party. Toledo, etc., Ry. Co. v.Wilson (1909), 44 Ind. App. 213, 81 N.E. 508, 88 N.E. 864. That was the actual situation in the case of Midland Ry. Co. v.Smith, supra. But we do not think that any legal effect can be given to the filing of exceptions after the expiration of the ten-day period and if the party who has filed in time dismisses his exceptions there is no issue as to damages before the court. If our Civil Code still contained the clause of § 99, supra,
authorizing a trial court "in its discretion" to "allow a party to file his pleadings after the time limited therefor" such provision would have to be considered in applying that part of the condemnation statute which provides that after the filing of exceptions within ten days "the cause shall further proceed to issue, trial and judgment as in civil actions." If the clause of § 99 were in the present code we would be compelled to hold that the trial court, in its discretion, could permit the filing of exceptions by *Page 340
either party after the expiration of ten days even though neither party had filed within ten days after the filing of the appraisers' report. But in the absence of the clause, proceeding "to issue, trial and judgment as in civil actions" does not include the filing of pleadings after the time expressly limited by statute.
We conclude that the filing by appellee of exceptions to the appraisers' report after the expiration of ten days after such report was filed was a nullity, that the jurisdiction of the trial court to try the issue of damages rested entirely upon the exceptions of appellant; and that when the trial court sustained appellant's motion to dismiss its exceptions the trial court had no power to proceed further in the trial. It was error to overrule appellant's motion to dismiss appellees' exceptions to the report of the appraisers.
The judgment of the Warrick Circuit Court is reversed and the trial court is directed to sustain appellant's motion to dismiss appellees' exceptions to the report of the appraisers. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486414/ | The appellant was indicted for unlawfully practicing medicine and surgery, in the State of Maryland, without being registered as a physician or surgeon in the Registry of Physicians and Surgeons.
The question presented by the appeal is the validity of the Acts of 1892, ch. 296, 1894, ch. 217 and 1896, ch. 194; all of which are incorporated in Mr. Poe's Supplement to the Code as Article 43, secs. 39 to 63, sub-title Practitioners of Medicine. These statutes are the final results of a series of successive enactments, which have created a well-defined system for the regulation of the practice of medicine in the State. Inasmuch as extended reference was made to them in the case of Manger v.The Board of State Medical Examiners, decided at the present term, ante p. 658, we need refer here, to only so much of the system now in force, as is required for a proper consideration of the questions involved in this appeal.
The Acts provide for two boards of examiners; one to be appointed by the Medical and Chirurgical Faculty of the State of Maryland, the other by the Maryland State Homeopathic Medical Society. Each of these boards is empowered to grant licenses to practice medicine in the State, and no one is allowed so to practice unless he has *Page 739
first obtained such license. The 49th section of the Article contains an exception to this general rule, by the provision that the sub-title shall not apply "to commissioned surgeons of the United States Army, Navy or Marine Hospital Service, to physicians or surgeons in actual consultation from other States, or to persons temporarily practicing under the supervision of an actual medical preceptor." It is contended on the part of the appellant that these exemptions from the burden of obtaining a license to practice is an unjust and unreasonable discrimination between persons engaging in the medical business or profession, and that its effect is to render the whole Act invalid as being in contravention of the Fourteenth Amendment of the Constitution of the United States. It is not questioned, as indeed it could not be, that the State under the police power has authority to pass such reasonable laws for the protection of the health, morals and safety of the public as its Legislature, in the exercise of its discretion, may deem necessary and proper. But the contention is that the provisions of the section by which the exemptions from licensing are declared are not just and reasonable and bear no proper relation to the objects sought to be accomplished; and the argument is that while a certain class of physicians are not required to register, it is an infringement of the principle of equality to require registration of others who do not belong to the favored class. This objection, therefore, amounts to no more than to affirm that the classification made by the statutes is purely arbitrary; for all the authorities agree that if a classification be just and reasonable and bears a proper relation to the subject-matter of the Act, no objection to its validity can be raised. The Fourteenth Amendment was not intended to restrain the Legislature from such reasonable provisions as are necessary for the protection of the public health, and in doing this conditions may exist that make it most essential to impose upon some persons greater burdens than upon others not similarly situated. "The great purpose of the amendment is to exclude everything *Page 740
that is arbitrary and capricious in legislation affecting the rights of the citizen." Dent v. The State of W. Virginia,129 U.S. 114-124; Broadbelt v. State, 89 Md. 579; State ofMaryland v. Knowles (decided Feb. 15th, 1900), ante p. 646;Singer v. The State, 72 Md. 464; Barbier v. Connolly,113 U.S. 27; Mugler v. Kansas, 123 U.S. 623; Yick Wo. v.Hopkins, 118 U.S. 356.
Here the purpose of the Acts in question was the protection of the public from the consequences of ignorance and incapacity in the practice of medicine and surgery. As a means of effecting this they exact from the persons proposing to engage in the business a certain degree of skill and learning, to be evidenced by a certificate upon which the public may rely. If the conditions surrounding all persons who desired to practice were alike, there could be no differences made as to the terms upon which a certificate could be obtained. But if there are differences as to conditions and situations, by which it becomes reasonable that greater precautions are required in some cases than in others, classes may be formed by which certificates can be granted to some without examination, and by which others may be exempted altogether from the burden of being registered. But these classes must be created upon considerations only that are promotive of the public interests; and if they are so created, they do not constitute an unlawful discrimination and do not impair the "equal right which all can claim in the enforcement of the laws". The case of The State of N.H. v. Pennoyer, 65 N.H. 113, 5 L.R.A. 709, relied upon by the appellant to sustain his contention, is nowise in conflict with what has just been said. In that case the Act was pronounced invalid because the exemption from the burden of obtaining a license was made to depend, "not on integrity, education and medical skill, but upon a continuous dwelling in one place for a certain time." Such a discrimination was undoubtedly arbitrary and founded upon no reason having relation to the subject. It had no regard to competency or to any material difference of situation, and *Page 741
if maintainable, no reason could be assigned why "a monopoly of the business might not be given" to favored physicians. But that cannot be said of the provisions of the section and the law, now being considered. Those to whom the provisions of the Acts do not apply are, 1st, commissioned surgeons of the U.S. Army and Navy, and Marine Hospital; 2nd, physicians and surgeons in actual consultation from other states; and 3rd, persons temporarily practicing under the supervision of an actual medical preceptor.
The reasons for these exemptions from the operation of the Act are apparent and are entirely of a public character. The competency of the first class is assured by the exactions required of them before they could become commissioned in the service of the United States as physicians or surgeons. So also physicans in a Marine Hospital are selected for their special adaptation and skill for that work. There could be no public reason therefore that these medical officers should be required, for the protection of the public, to be registered. Nor can any reason, having in view the public protection, be assigned for requiring certificates of the remaining classes. Neither of these classes can be said to be practitioners within this State. The physcian from another State, "in actual consultation," has co-operating with him a registered physician. To require him to license as for general practice, would have no other effect than occasionally to deprive the patient and the local physician of the benefits of the advice of some of the most eminent and skillful gentlemen in the profession. Moreover, as to both the second and third classes the public are fully protected from the incompetency of the foreign physician and the student by the presence and supervision and restraints of the certified physicians of the State. This section therefore cannot be objected to as in any respect arbitrary or unreasonable, or as in any manner creating any unjust discrimination.
Another objection raised, is that these Acts commit the execution of the law to "a body corporate not an officer or agent of the government." *Page 742
One of the bodies charged with the duty of appointing one of the Boards of Medical Examiners, is the Medical and Chirurgical Faculty of the State of Maryland. It was incorporated in 1798, and by the 105th chapter of the Acts of that year, it was clothed with authority to elect twelve persons to be styled "The Medical Board of Examiners for the State of Maryland," whose duty it was to grant licenses to persons qualified to practice medicine and surgery. In referring to the power thus conferred upon the Medical and Chirurgical Faculty, this Court in The Regents'case, 9 G. J. 388 et seq, said, that "a corporation may be private, and yet the Act or charter of incorporation contain provisions of a purely public character introduced solely for the public good and as a general police regulation of the State." The Court cites as instances, the English statutes creating the College of Physicians in London and founding "The College of Barbers and Surgeons." It then proceeds; "The Legislature possesses power to regulate the internal police of the State * * * and having regard to the health and lives of the citizens of the State, to adopt from time to time such wholesome regulations as may be deemed best calculated to guard against the evils and mischiefs attendant upon the practice of physic and surgery by ignorant and incompetent persons. That the Legislature might at any time, without the intervention of a corporation, have provided for the organization of a board or boards for the examination of persons applying for admission to practice physic or surgery and imposed a penalty upon any who should practice without having first obtained a license from such board and afterward from time to time have adopted other means more or less efficient for the promotion of the desired end, or, whether wisely or not have removed the restriction altogether, is a proposition not to be questioned." The Court further proceeds to observe that the Legislature, with the object of encouraging the acquisition of knowledge and of shielding the community from the pernicious effects of the ignorance of unskillful pretenders, had authorized the *Page 743
Medical and Chirurgical Faculty, "as it had the right to do," to appoint a board of examiners who should examine and issue licenses, as a means of effecting the end in view, and who, "for that purpose may be considered as agents or officers of the State." In the Slaughter House cases, 83 U.S. 36 to 130, where it was contended that the Legislature had exceeded its power in creating a private corporation for the special purpose of maintaining the Slaughter House for the City of New Orleans, the Court said: "If this statute had imposed on the City of New Orleans precisely the same duties, accompanied by the same privileges which it has on the corporation which it created, it is believed that no question would have been raised as to its constitutionality: * * * Why cannot the Legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on a municipal corporation already existing. That wherever a Legislature has the right to accomplish a certain result and that result is best obtained by means of a corporation, it has the right to create such a corporation and to endow it with powers necessary to effect the desired and lawful purpose, seems hardly to admit of debate."
Nor does the method of the appointment of the Medical Boards affect the validity of the law. Section 10 of Article 2 of the Constitution of the State, confers upon the Governor the authority "to nominate and by and with the advice and consent of the Senate, appoint" all civil and military officers, whose appointment or election is not therein otherwise provided for; "unless a different mode of appointment be prescribed by the law creating the office." This provision simply means, as was said inDavis v. The State, 7 Md. 161, "that the Governor shall have the power to fill all offices in the State, whether created by the Constitution or by Act of Assembly, unless otherwise provided by the one or the other. When, therefore, the Legislature has created an office by Act of Assembly, the Legislature can designate by whom, and in what manner the person who is to fill the office shall be appointed." *Page 744
Some comment was made upon the effect of the 61st section, but inasmuch as that was fully considered and passed upon in Manger
v. The Board of Medical Examiners, decided by this Court at the present term, ante p. 658, we need only to refer to that case. We have now considered all the questions that were pressed upon us at the hearing or are contained in the briefs of the respective counsel. We may add to what has already been said, however, that we find nothing in any of these statutes that is obnoxious to constitutional objection. Laws similar to those regulating the practice of medicine or of surgery and of many trades have frequently been under consideration in this and other courts, and have been maintained as valid enactments. We refer to some of the cases, to which many more could be added. Dent v.West Va., 129 U.S. 114; Wilkins v. State, 113 Ind. 514;State v. Knowles, ante p. 646, and cases there cited; Exparte Frager, 54 Cal. 94; Ex parte McNulty, 77 Cal. 164; IowaMed. As. v. Schrader, 87 Iowa 659; State v. Broadbelt,89 Md. 579, and other cases already cited above.
Finding no error the judgment will be affirmed.
Judgment affirmed.
(Decided March 21st, 1900). | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486416/ | Upon the evidence in this case, we agree with the conclusion of the court below that there is not sufficient ground for the relief to which the bill of complaint is particularly directed. There is, however, a measure of redress to which the plaintiff, in our judgment, is entitled under the prayer in the bill for general relief.
The specific purpose of the suit is to compel the performance, by the defendant administrator, of an alleged agreement of the decedent, Benjamin G. Foster, with the plaintiff, Mary M. Cossen, to devise and bequeath to her all of the property subject to his disposition at the time of his death. It is averred in the bill that such an agreement was made by both Mr. Foster and his wife, who predeceased him, and that it in terms applied to the estate which they held as tenants by the entirety. The agreement is alleged to have been made in consideration of services rendered by the plaintiff to Mrs. Foster before her marriage, and continued for the benefit of herself and her husband after that event. There is adequate testimony that Mr. Foster desired and intended to make a will in favor of the plaintiff, and was prevented from *Page 397
doing so only by illness which terminated fatally about six weeks after the death of his wife. But the evidence fails to prove satisfactorily that he had agreed with the plaintiff to make such a will.
It appears from the record that about the year 1898 the plaintiff went to live with a Miss Phillips and her niece, Laura Gimper (afterwards Mrs. Foster), who resided and conducted a small store on North High Street in Baltimore. After the death of Miss Phillips in 1916, the plaintiff and Miss Gimper continued to live together until the death of the latter in June, 1934. The plaintiff assisted in the management of the store and in the care of the home on North High Street until 1921, and also helped to conduct a store opened by Miss Gimper in 1919 at Chester and Hoffman Streets. In 1921 they acquired, under a deed to them jointly, a dwelling at 2600 Preston Street, in which thereafter they made their home, and where Mr. Foster came to live after his marriage to Miss Gimper in 1928. The household work, including provision for boarders, in the Preston Street home, was largely performed by the plaintiff, while Miss Gimper was employed elsewhere, for several years prior to her marriage. From 1898 until the time of her death she had the benefit of the plaintiff's constant association and service.
It was testified that Miss Gimper said before her marriage: "What we have belongs to Mary (the plaintiff) and I. We have both earned it and it belongs to us and at the death of either of us, whoever survives gets it." After her marriage she said, according to testimony in the record: "There will be no difference in the agreement that Mary and I had. Mr. Foster and I have decided that on the death of either of us the survivor is to make a will that Mary will get what we have left." One of the witnesses, upon being informed by Miss Gimper of her approaching marriage to Mr. Foster, asked: "Laura, how does that affect Miss Mary," and she replied: "It will not affect her at all because we have an agreement that whoever lives the longest will leave everything to Miss *Page 398
Mary." A statement quoted in the testimony as having been made by Mr. Foster in the interval between his wife's death and burial was as follows: "Clinton, the day after the funeral I want you to go down to the trust company, I want to make a will. I want to make Mary beneficiary, I want to leave her what we have just as we have always agreed to do. Just think of her at her age being thrown out in the world without anybody to take care of her."
From the testimony it may be concluded that in consideration of the plaintiff's long and continuing services, and in acknowledgment of a jointly earned property interest, Miss Gimper agreed to make a testamentary disposition of her estate for the plaintiff's benefit. Consistently with such an understanding the conveyance of the Preston Street property was procured to be made to them as joint tenants. There was other real estate, held in Miss Gimper's name alone and valued at approximately $1,100, the title to a part of which was converted after her marriage into a tenancy by the entireties in herself and her husband. The whole of her husband's estate, consisting of certain bank and building association accounts at the time of his death, had also been placed in their joint names. It is uncertain from the record whether the funds credited to those accounts, aggregating $9,089.22, included money which the wife may have contributed.
The evidence strongly tends to prove an intention by Mr. Foster to gratify his wife's desire that the plaintiff should be the beneficiary of their estates under the will of the surviving spouse, and that he agreed with his wife to fulfill that purpose. But, unless he made an agreement to that effect with the plaintiff, the present suit is not maintainable so far as his original estate is concerned. In order to be specifically enforceable, the agreement must be clearly and definitely proved as alleged in the bill of complaint. Lorenzo v. Ottaviano,167 Md. 138, 173 A. 17, 179 A. 536; Neal v. Hamilton, 159 Md. 447,150 A. 867; Soho v. Wimbrough, 145 Md. 498, 125 A. 767. The *Page 399
testimony does not satisfy that requirement with respect to the alleged agreement between the plaintiff and the defendant's intestate. The statements attributed to him by the witnesses do not explicitly indicate any agreement between him and the plaintiff, and admit of the interpretation that he was referring to an agreement into which he and his wife had entered. That would not be a sufficient basis for such a decree as the bill specifically proposes.
But under the prayer for general relief the plaintiff is entitled to equitable protection of the interest intended to be secured to her by Mrs. Foster's agreement to make a will under which the plaintiff, if surviving, should receive the entire estate which they had jointly earned. There is sufficient proof that there was such an agreement, to the knowledge of Mrs. Foster's husband, and that the plaintiff's services were rendered in reliance upon its future performance. Upon the facts thus proved, it may justly be held, in accordance with a principle heretofore approved by this court, that the property so agreed to be devised and bequeathed to the plaintiff was impressed with a trust effective as to the promisor's husband and enforceable against his heirs and personal representatives. White v.Winchester, 124 Md. 518, 522, 92 A. 1057; Lorenzo v. Ottaviano,supra.
It was doubtless Mrs. Foster's belief that the fulfillment of her promise to the plaintiff was assured by the subsequent agreement between herself and her husband that the survivor would make a will exclusively in the plaintiff's favor. The effort by the surviving husband during his last illness to have his will prepared for execution was frustrated by his lapse into unconsciousness.
It appearing, as in Neal v. Hamilton, supra, that the plaintiff's services were of such a character that they could not be valued, and compensation for them awarded, with reasonable accuracy, in an action at law, our conclusion, upon the authority of that and other cases cited in this opinion, is that a trust should be decreed to exist and to be enforced for the plaintiff's benefit with respect *Page 400
to the property owned by Mrs. Foster at the time of her marriage or acquired by her subsequently as her separate estate.
The decree appealed from will be affirmed in so far as it refused specific enforcement of the plaintiff's alleged agreement with Mr. Foster, but it will be reversed as to the dismissal of the bill of complaint, and the cause will be remanded for a decree in conformity with this opinion, after opportunity has been afforded for further proof upon the question whether the bank and building association accounts credited to Mr. Foster and his wife jointly included any funds which she had individually owned.
Decree affirmed in part and reversed in part, and causeremanded for further proceedings in conformity with this opinion,the costs to be paid by the appellee as administrator. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486417/ | The amended bill of complaint of Robert W. Dunlop against C. Ford Seeley alleged a partnership was formed on or about July 22d 1924, between the plaintiff and the defendant, and that the partnership continued until March 1st, 1926, when it was terminated, the plaintiff having faithfully performed his part of the contract. The other allegations were that the business of the partnership was to deal in the certificates of beneficial interest of the Chapman Self Locking Nut Company and other securities; and that the profits, less expenses, were to be divided equally; that, shortly *Page 381
after the termination of the partnership, the plaintiff discovered that the defendant had not accounted for all the net profits, and that by reason thereof a large sum of money was due from the defendant to the plaintiff, who had thereupon made a demand upon the defendant for an accounting, and an opportunity to inspect an account book or ledger in which were entered all the details of the partnership accounts, transactions, and business, but the defendant had refused to account and to permit the plaintiff to have access to the account book or ledger since March 1st, 1926, although the same was subsequently in the exclusive possession of the defendant. The bill of complaint, also, avers that upon the defendant's refusal the plaintiff brought an action at law against the defendant, in which the aforesaid partnership agreement was set out, as was the full performance by the plaintiff, the aforesaid breach by the defendant, and a claim for damages of $15,000; and that the parties were at issue on the defendant's two general issue pleas and a third plea of set-off. The bill then concludes with the allegation that the account book or ledger will show a large sum of money due the plaintiff by the defendant, and that the defendant's set-off is unfounded, but that an inspection of said account book or ledger is absolutely necessary to enable the plaintiff to prepare his case against the defendant and to disprove the set-off, and that, therefore, the plaintiff cannot safely proceed with the trial of his action at law without an examination of the account book or ledger.
The original prayer was (1) that the defendant make a full and true discovery of the number of certificates of beneficial interest of the Chapman Self Locking Nut Company bought, sold, or otherwise traded in by the partnership, together with the names of persons from and to whom the same were bought and sold, and that the defendant be required to account fully for one-half of the net profits derived from such transaction; (2) that the defendant be required to deposit the account book or ledger with the clerk of the equity court for such a reasonable length of time to enable the plaintiff to examine the same so as to enable him to prepare *Page 382
his case against the defendant; (3) that the plaintiff have such other and further relief as his case may require. The bill of complaint was later amended to include a prayer that the defendant be decreed to pay to the plaintiff all sums of money due to him on account of said partnership transactions.
The pleadings which followed that need be considered are first a demurrer, and then the amended answer, since the demurrer was overruled, and the cause submitted for decree upon bill and answer.
Under proper circumstances, equity will entertain a bill for discovery alone, but its jurisdiction is now but seldom invoked, since the various statutory provisions in actions at law, and the moulding of equitable procedure so as to search the conscience of the defendant through answer and interrogatory, and thereby to enforce the discovery of the facts within his knowledge or competency, are generally sufficient. While a bill of discovery is an ancillary proceeding which does not pray for relief and terminates with a proper answer, yet the bill may be for both discovery and relief. Miller's Equity, secs. 737-741. In the instant case, the parties and the chancellor apparently regarded this bill of complaint as one for discovery, but the nature of a bill is determined by its allegations and the relief asked.Miller's Equity Proc., secs. 103, 175; Ridgely v. Bond,18 Md. 433, 450; Witthers v. Denmead, 22 Md. 135, 145;Billingslea v. Baldwin, 23 Md. 85, 107. The sufficiency of the bill must, therefore, depend upon the tenor of its averments and object, when considered in connection with established principles of equity; and the ruling on demurrer will be accordingly determined.
Here the facts alleged show a partnership, its termination, a later discovery by one partner that the other has received and not accounted to him for a large amount of the profits, a retention by such partner of a firm book containing a record of the partnership affairs, and a refusal of the delinquent partner, not only to permit the other member of the partnership to have access to this book, but also to account to him for his share of the net profits. The demurrer admits *Page 383
the truth of these accusations, which are clear and material violations of the partnership contract, and the rights thereby created; and give to the aggrieved partner a right to discovery and relief in equity. Code, art. 73A, secs. 18(a), 19, 20, 21, 22, 38, 40, 43.
Equity will always intervene to prevent one partner from keeping or concealing the partnership books so that they cannot be inspected by his copartner; and this is true in a suit for the purpose of having an account taken after a partnership has been dissolved. One partner, no more than another, may be excluded from the examination of the books of the firm. It is, furthermore, a gross form of misconduct for one partner secretly and fraudulently to appropriate common net profits to his sole benefit; and equity is peculiarly adapted for the correction of such breaches of the articles of partnership whenever they are discovered. Burns v. Heise, 101 Md. 163, 166; Code, art. 73A, secs. 18 (a), (e), 19, 20, 21 (1), 22, 30, 37, 43.
An action at law is alleged by the bill to have been brought by the plaintiff against the defendant to recover damages for the breach of the partnership contract, but, because of the alleged failure of the defendant to account for net profits, which he had covinously appropriated, and the consequent necessity for an account to be taken of the partnership business, this circumstance affords no ground to prevent the bill from being entertained. As a general rule, an action at law between partners to obtain damages for a breach of a contract of partnership does not lie; and there are no facts stated in the bill that show any theory upon which the action at law could be sustained.
It is a uniform rule that, aside from an action of account, one partner may not sue his copartner at law, unless the cause of action was so distinct from the partnership accounts as not to involve their consideration, or the amount recovered would be wholly the separate property of the plaintiff. 2 Lindley onPartnership, star paging 564, 567, 569; 1 Poe, Pl. Pr., sec. 318, p. 264; Kennedy v. McFadon, 3 H. J. 194; Causten v.Burke, 2 H. G. 295; Morgart v. Smouse, *Page 384 103 Md. 463, 468-469, 112 Md. 615, 619, 620; Wiley v. Wiley,115 Md. 646, 657; Tomlinson v. Dille, 147 Md. 161, 164. The proceedings are in a court of equity, unless the accounts had all been taken, and the final net balance payable to a particular partner had been made certain, and the balance clearly ought to be paid at once. This is the general rule now in England, and in the various jurisdictions of this country, but, in Maryland, it is subject to the qualification that the common law action of account or account render, though seldom employed, has not fallen into complete disuse and is rescued by statute from obsolescence.Wilhelm v. Caylor, 32 Md. 151; Code, art. 57, sec. 1; Wisnerv. Wilhelm, 48 Md. 1, 12-15; Code, art. 26, sec. 9, as amended by Acts 1888, ch. 447, providing for a trial by jury; Lynn v.Cumberland, 77 Md. 449, 457-459; Himmel v. Levenstein,132 Md. 317, 329; 1 Poe, Pl. Pr., secs. 51, 318, 320; Code, art. 73A, sec. 43; Bullen Leake, Precedents of Pleading (3rd Ed. 1868), p. 229.
In an action of account, there was first the preliminary judgment of quod computet, a commission of audita was issued referring the account to auditors, who would go over the account item by item, and examine the parties, but had no authority to pass upon controverted items so as to carry on a continuous investigation, but were obliged to refer each disputed item to the court or a jury as a distinct issue of law or fact; and if, after the investigation had been made and the account taken, it was found that the balance was against the plaintiff, no judgment therefor could be entered and no payment could be enforced.Bispham's Principles of Equity (8th Ed.), sec. 481; 1 Harris'Entries (1801), pp. 108-111; 2 Id., pp. 73-74, 181-182, 661-662, 301-304; Wisner v. Wilhelm, 48 Md. 1. This incomplete and unsatisfactory common law remedy has fallen into almost complete disuse because of the superiority of the relief afforded in equity, where discovery may be had and the cause referred to a master, who has power to examine the parties and their witnesses under oath, to compel the production of books and documents, to pass upon the disputed items, and to state the *Page 385
account, subject, however, in all particulars to the revision or other action of the chancellor upon the coming in of the report.Bispham's Principles of Equity (8th Ed.), secs. 482, 484;Adams' Equity, 225; Miller's Equity, secs. 225 and notes, 228, 311, 535, 555, 556.
It follows that the bill of complaint for discovery and relief in the present case was not subject to demurrer, and the demurrer was rightfully overruled. The amended answer of the defendant denied all the material allegations of the bill in its final form and set forth as his defense a partnership with the plaintiff under a different agreement; its termination on the day alleged by the bill of complaint; an audit of the partnership accounts that showed the plaintiff had withdrawn so much money from the copartnership as to leave the plaintiff indebted to the defendant in a large sum of money; and that this indebtedness was known to the plaintiff at the time of the termination of their partnership, as during the partnership relation he had had, at all times, access to the accounts of the partnership. The defendant concluded his answer with a petition that the court, if it had equitable jurisdiction, should enter a decree in the cause against the plaintiff in the amount he was indebted to the defendant. If these allegations be true, the plaintiff is not entitled to a decree against the defendant. While the answer avers an indebtedness from the plaintiff to the defendant at the close of their copartnership affairs, the answer fails to show that there was a formal stated account wherein the parties had settled an account, and a balance had been struck. The defendant, however, does state facts and conduct on the part of the plaintiff which are not consistent with his present demand, but the inferences to be drawn from these facts and circumstances may be disproved, and, so, an account of the partnership affairs should be taken. Bispham's Principles of Equity, sec. 485.
The cause was submitted on bill and answer, which admits all the allegations of the answer except the uncontroverted averments of the bill of complaint. Manor Coal Co. v. Beckman, *Page 386 151 Md. 102, 110, 111. In addition to a denial of all the equities of the bill, the answer reveals that the action at law begun by the plaintiff against the defendant was on the common counts and a seventh special count. There was a demurrer to this special count, which was overruled, and then a plea of set-off. Issue was thereupon joined, but, before trial, the pending bill was filed. The pleadings are not set out with sufficient particularity to comment upon them, but there is nothing to indicate the action was in account or account render. As noted by Bispham: "The jurisdiction in equity depending not so much on the absence of the common law remedy as upon its inadequacy, its exercise is a matter in the discretion of the court; in other words, the court will take upon itself to say whether the common law remedy is, under the circumstances of the case, and in view of the conduct of the party, sufficient for the purposes of justice, or whether the interference of the court of chancery may be properly called for and beneficially applied." Section 484.
The dispute between the partners as to the true state of their partnership affairs, the conflicting nature of the cross-demands of the copartners, the charge of a fraudulent concealment of profit, and the necessity for a discovery and an accounting before a settlement can be made of the partnership business, make a court of equity the proper jurisdiction for the rights of the parties to be ascertained and decreed. Supra. Miller's Equity,
secs. 721, 258; Grove v. Fresh, 9 G. J. 280, 296; Snell'sEquity (15th Ed.), 504-508. See Hill v. Pinder, 150 Md. 397, 414. The order passed by the chancellor was merely for discovery. He should have retained the bill for a discovery and an account in equity, and the cause will be remanded for that purpose.
Decree reversed, with costs, and cause remanded, for furtherproceedings in conformity with this opinion. *Page 387 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4314111/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGER ADRIANO-LOZANO, No. 16-73631
Petitioner, Agency No. A088-659-562
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Roger Adriano-Lozano, native and citizen of Peru, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
In denying his claims for asylum and withholding of removal, the BIA
concluded Adriano-Lozano failed to establish a nexus between the harm he fears
and a protected ground, and that he failed to establish past persecution or an
objectively reasonable well-founded fear of future persecution. As to CAT relief,
the BIA concluded that the IJ properly treated Adriano-Lozano’s CAT claim as
withdrawn or waived. In his opening brief, Adriano-Lozano does not make any
arguments challenging these dispositive determinations. See Corro-Barragan v.
Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening
brief resulted in waiver).
PETITION FOR REVIEW DENIED.
2 16-73631 | 01-03-2023 | 09-20-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3486263/ | Exceptions to the mortgage sale in this case were sustained on the ground that the affidavit required by law in reference to the mortgage tax was defective. The mortgage was dated December 30, 1904. It was executed by Charles A. Williams and conveyed to Henry A. Weldy certain real estate in Carroll County to secure a balance of $4,000.00 owing on the purchase price of the property. At that time it was provided *Page 613
by statute that any person lending money secured by mortgage on property in Carroll County, or his agent or attorney, in addition to the usual oath or affirmation as to the consideration, should take an oath or make an affirmation to be endorsed on the mortgage, to the effect that the mortgagee had not required the mortgagor, his agent or attorney, or any person for the mortgagor, to pay the tax levied upon the interest covenanted to be paid, in advance, nor would he require any tax levied thereon to be paid by the mortgagor, or any person for him, during the existence of the mortgage (Code, Art. 21, Secs. 32, 33, 35; Art. 81, § 190). No such affidavit had been made or endorsed on the mortgage when it was filed for record several days after its execution. The omission being discovered, an affidavit as to the mortgage tax was endorsed on the original mortgage, and it was then refiled for record. This occurred within a few weeks after its first registration. But the affidavit thus supplied was made by an agent of the mortgagee, who appears to have sworn that he, the agent, had not required and would not require the mortgagor to pay the tax, instead of giving such assurance as to the mortgagee.
Immediately after the execution and delivery of the mortgage it was assigned by the mortgagee to the Title Guaranty and Trust Company. The assignment was endorsed on the mortgage and was recorded with it on January 4, 1905. The statute referred to made it the duty of the assignee corporation, its agent or attorney, to make an affidavit, like the one we have described, in regard to the payment of the mortgage tax, and to have it recorded with the assignment. This affidavit was also omitted when the mortgage and assignment were originally recorded. An affidavit as to the tax was subsequently made by an agent of the assignee and was endorsed on the mortgage when it was filed for record the second time. The form of the latter affidavit is similar to the one made by the mortgagee's agent, and the same objection is raised as to its sufficiency. *Page 614
By subsequent assignments, with accompanying affidavits, which are free of the objection made to the earlier ones, the mortgage was transferred by the Title Guaranty and Trust Company to Henry C. Shirley and William W. Shirley, and by them to John C. Tolson, who proceeded on November 30, 1917, to exercise the power of sale which the mortgage conferred upon the mortgagee or his assignees. The purchasers objected to the ratification of the sale, alleging that the title proposed to be conveyed was not good and marketable. From the order sustaining their objection on the ground we have stated the assignee of the mortgage has appealed.
However deficient the mortgage and first assignment may have been with respect to the omission or informality of the tax affidavits, they were completely validated, prior to the exercise of the power of sale, by the curative Act of 1914, Chapter 421, codified as Section 89A of Article 21 of the Code of Public General Laws, which enacted, in part, that "any mortgage or assignment of mortgage defectively sworn to or not sworn to at all" was thereby made valid "to all intents and purposes, as if said mortgage or assignment of mortgage had been in such matters in full conformity with the law in force at the time of such execution; provided that any such mortgage or assignment of mortgage is in other respects legal and valid"; and provided further that nothing in the Act should affect the rights of anybona fide purchaser or creditor who became such prior to the date of its passage. It does not appear from the record that there are in fact any creditors or purchasers who might assert claims against the mortgaged property, and the indications are all to the contrary. The original mortgagor conveyed away the equity of redemption by deed of the same date as the mortgage, and as these instruments were executed thirteen years before the sale under the mortgage, any creditors of the mortgagor would have been barred by limitations. The conveyance of the equity of redemption was expressly made subject to the mortgage executed on the same day. If there were any creditors of the grantee, their rights, as against his title, *Page 615
would be subordinate to the mortgage which the deed to him distinctly recognized. There accordingly appears to be no reasonable ground of apprehension as to the existence of any creditors or purchasers who could be in a position to disturb the title proposed to be conveyed in this proceeding. In the absence of any proof or even allegation that there are existing interests which may jeopardize the title, the Court would not be justified in conjecturing such a possibility and invalidating the sale on that ground. Hammer v. Westphal, 120 Md. 15; Eden St.Building Assoc. v. Lusby, 116 Md. 173.
It is argued that the refiling of the mortgage for record, with the endorsements of the tax affidavits, a month after it was first recorded, should cause it to be treated as a new instrument, and since a mortgage sale passes to the purchaser only such title as the mortgagor had at the time of the recording of the mortgage (Code, Art. 66, § 11), and inasmuch as the mortgagor had divested himself of the equity of redemption by deed executed a month previously, there was in reality no title upon which the mortgage sale could operate. This theory cannot be accepted. While the mortgage was twice recorded, its identity was never changed. As first recorded, without the tax affidavit, it was good as between the parties (Code, Art. 21, § 32). It effectually transferred the title so far as they were concerned. The sole purpose of refiling it for registration with the affidavit attached was to comply with the statutory requirement and thus give notice of the mortgage to the public. The mortgage foreclosed is the only one ever given to secure the debt which is sought to be collected out of the proceeds of the sale now in dispute. It is the mortgage to which the deed of the same date conveying the mortgagor's equity referred, and which the grantee in that deed assumed and apparently considered valid, as the principal of the mortgage debt was reduced and the interest was paid during thirteen years and until a short time before the foreclosure. *Page 616
One other objection to the sale was urged on appeal. In the tax affidavits to each of the assignments of the mortgage it is certified that the affiant "made oath on the Holy Evangely of Almighty God and in due form of law." When these affidavits were taken the oath in reference to the mortgage tax, which was required to be in due form of law, would properly have to be made in the form prescribed by Sections 9 and 10 of Article 1 of the Code, and not on the Holy Evangely of Almighty God. But as the certificate states in each instance that the oath was made in due form of law, the reference to the other and unnecessary form may be regarded as surplusage and as not vitiating the affidavits. Certainly the sale ought not to be set aside on that account.
The objections to the mortgage sale not being sustainable, in our opinion, the order appealed from must be reversed and the cause remanded to the end that the sale may be ratified.
Order reversed, with costs, and cause remanded. *Page 617 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486266/ | Charles H. McFrederick and Effie M. McFrederick were married on April 14th, 1915, and lived together, without having any children, until they separated in August, 1924, because of their marital differences. They entered into an agreement under seal on August 25th, 1924, which adjusted their respective property rights and bound the husband to pay the wife the weekly sum of $12.50 for her maintenance and support so long as they should live apart. The agreement concluded with the declaration that it should not prejudice the rights of either party, if grounds should exist for a divorce.
The husband and wife continued to live apart, and on April 2d 1929, the husband began proceedings to obtain an absolute divorce on the ground of adultery, and a release from any further obligation under the agreement. The wife answered with a denial of the material allegations and filed a cross-bill charging cruelty, abandonment, and adultery, and praying for temporary and permanent alimony, counsel fees, and general relief. The reply of the husband to the cross-bill was a complete denial of any wrongful conduct, and an averment that they had separated by agreement. After the parties were at issue, testimony was taken before *Page 93
the chancellor, who dismissed the complaint of the wife and granted the husband a divorce a vinculo matrimonii, and released the husband from all further obligations under the contract. The appeal is by the wife from the decree.
There is no question of abandonment in this case, as the couple separated by common consent. 1 Bishop on Marriage and Divorce
(2nd Ed.), sec. 1282. Nor is there any collusion in connection with the pending questions, as both deny what the other charges, and contest every point. The testimony is conflicting, and before either spouse may have relief he or she must establish by the clear proponderance of the testimony the infidelity of the other. In meeting this burden of proof, the carnal act must be duly shown by clear, positive, and satisfactory evidence, with due regard, however, to the peculiarity of the offense, since adultery is usually an act done under cover of darkness and secrecy and in which the parties are seldom surprised. These circumstances are pointed out in Bishop on Marriage andDivorce, and attention is called to the facts that the evidence of time and place is often indistinct and that the proof is generally circumstantial. Volume 2, secs. 1350-1351, 1354. With these principles of proof in mind, the record has been read and pondered, and a conclusion formed.
The court is in agreement with the chancellor that the wife was guilty of adultery. Her paramour testified to their intimacy and their frequent criminal intercourse. She admitted a long-continued association but denied all wrongful conduct, and the testimony disclosed that their present relations are unfriendly because of her action to recover money which she had loaned the corespondent. After giving due consideration to these circumstances and the fact that the principal witness is a paramour, the opportunities are shown to have been so numerous, and the testimony of the man is so specific and unartificial, and so corroborated by disinterested witnesses in many of its material particulars, and not contradicted in others which were susceptible of refutation if untrue, that the wife's infidelity is clearly established. *Page 94
The husband admitted he knew the married woman with whom he was said to have had criminal intercourse, and the woman was franker in disclosing a friendly association; but they both denied their relations ever were illicit. Mrs. McFrederick observed her husband's familiarity with the woman and their seeking each other's company and evident enjoyment of each other's exclusive society. This conduct was noticed by the woman's husband, who testified it was of frequent occurrence, and that his wife would leave her home at night and be gone for an hour or more, and because of his suspicions he followed her and discovered she went to the home of McFrederick, who was there. Other witnesses testified to McFrederick's lascivious fondling of women and of the co-respondent, so that an adulterous inclination of both was established. These acts and the disposition of the principals are not of themselves sufficient to establish adultery, but they are of weight in considering the credibility of a witness who testifies to the commission of the carnal act. In the case at bar, the testimony is that the accused pair were members of the same church, and the man sang in the choir and was active in entertainments of the church, which furnished them occasions to meet, as the woman lived in the same block in which the church stood. A member of the choir testified that, while searching for a place to hold an assignation, he accidentally discovered McFrederick and the woman in the case committing adultery one night in an abandoned choir loft of the church, while a rehearsal for an entertainment was being held in the basement of the church. This eye-witness stated that an arc light opposite a church window supplied enough light to enable him to recognize the pair, and that he later saw them come out of the loft.
The witness is a nephew of Mrs. McFrederick, but he did not reveal his knowledge to her on his own initiative. He told the husband of the woman on the occasion of a casual conversation what had happened some years after it had occurred, and this husband, who left his wife but did not institute a suit for divorce because of lack of means, told Mrs. McFrederick, who sought the witness and then obtained the *Page 95
information a few months before the pending proceedings were begun. The nephew had played for the church choir and this required him to be present at the rehearsals, and his testimony was apparently not animated by any prejudice, enmity, or ill will, and it is by no means inherently incredible. In fact, it is in character with the proven inclination of the accused and the independent evidence which indicated, without of itself establishing, a criminal attachment between the parties.
Both McFrederick and the alleged particeps criminis were married at the time the offense was committed, and both were then the subjects of suspicion of infidelity by their respective spouses; and both had shown a partiality for each other's sole company and, according to several witnesses, had been surprised in lustful familiarities. Their regular meetings at the choir rehearsals and the unused choir loft afforded an opportunity and a place, with a minimum risk of scandal or detection, not to be obtained at the home of either or elsewhere. With the will of each to commit the act concurring with the opportunity, the testimony of the eye-witness to their guilt cannot be rejected as incredible or untrue, in view of the other incriminatory circumstances. Miller v. Miller, 140 Md. 60, 63, 66,116 A. 840.
So, both husband and wife, the complaining parties in the original and cross-bills, were guilty of adultery, and neither shall have relief. 2 Bishop on Marriage and Divorce (2nd Ed.), sec. 360. For this reason the decree of the chancellor should have dismissed both bills and have left the articles of separation of the parties intact. Fisher v. Fisher, 93 Md. 298,300, 48 A. 833; Newbold v. Newbold, 133 Md. 170, 174-175,104 A. 366; Spear v. Spear, 158 Md. 672, 149 A. 468.
Decree reversed in part and affirmed in part, and billdismissed, with costs to be paid by the appellee. *Page 96 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3209700/ | FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 6, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-8115
(D.C. No. 2:14-CR-00101-SWS-5)
ROYCE E. MORITZ, (D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
_________________________________
Defendant, Royce E. Moritz pleaded guilty to conspiring to possess with intent
to distribute methamphetamine and to conspiring to launder money. The district court
sentenced Moritz to 120 months’ imprisonment, followed by five years of supervised
release. This appeal concerns Moritz’s challenge to a special condition of his
supervised release prohibiting him from using or possessing either alcohol or
*
After examining the briefs and appellate record, this panel has unanimously
determined to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). Defendant’s Unopposed
Motion to Submit Case for Decision on the Briefs is granted and the case is submitted
without oral argument. This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
intoxicants. In view of Moritz’s addiction history, and recognizing that district courts
have broad discretion in this area, we affirm.
BACKGROUND
In his “Unopposed Motion for Modification of Supervised Release
Conditions” (Motion), Moritz asked the district court to strike this special condition
of supervised release:
The defendant shall refrain from any use or possession of alcohol and/or
other intoxicants including over the counter medications used contrary
to the recommended dosage, or the intentional inhalation of any
substance, prescribed or otherwise, without the permission of the U.S.
Probation officer. Additionally, the defendant shall not enter
establishments whose primary income is derived from the sale of
alcohol.
R. vol. 2 at 19. The district court denied Moritz’s motion because the “condition is
needed given [Moritz’s] prior alcohol abuse problems.” R. vol. 1 at 58.
As support for finding that Moritz had abused alcohol, the district court relied
on information contained in the Presentence Report (PSR), including Moritz himself
acknowledging that he is an alcoholic. In addition, the PSR described Moritz’s two
DUI convictions. The PSR also detailed Moritz’s history of methamphetamine and
marijuana abuse. Included were Moritz’s convictions for possessing marijuana and a
controlled substance. Based on Moritz’s history of drug abuse, the district court
recommended placement in the Bureau of Prisons Residential Drug Abuse Program
(RDAP).
On appeal, Moritz first argues the district court abused its discretion by
imposing this special condition of supervised release. He argues that the special
2
condition is unnecessary given the other conditions of his supervised release. Second,
Moritz argues the special condition is unreasonably broad and vague because it could
potentially prohibit his possession and use of legal household products.
STANDARD OF REVIEW
We review the district court’s denial of defendant’s Motion for an abuse of
discretion. United States v. Lonjose, 663 F.3d 1292, 1302 (10th Cir. 2011); United
States v. Pugliese, 960 F.2d 913, 915 (10th Cir. 1992). A district court abuses its
discretion when it renders a judgment that is “arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Landers, 564 F.3d 1217, 1224 (10th Cir.
2009) (quoting United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)).
We give substantial deference to the district court’s sentence. Landers, 897 F.3d at
1224.
DISCUSSION
For two reasons, the district court did not abuse its discretion by denying
Moritz’s motion to modify the special conditions. First, the district court’s denial
wasn’t arbitrary, capricious, whimsical, or manifestly unreasonable. Second, the
prohibition on intoxicants isn’t unreasonably vague or broad. See United States v.
Munoz, 812 F.3d 809, 815 (10th Cir. 2016) (holding that the terms intoxicants and
alcohol were not unreasonably vague). Exercising jurisdiction under 28 U.S.C. §
1291, we affirm the district court’s denial of Moritz’s Motion.
3
1. The district court acted within its discretion by refusing to modify the
special condition.
District courts have broad discretion to impose special conditions of
supervised release. United States v. Bear, 769 F.3d 1221, 1226 (10th Cir. 2014). “The
limits of that discretion are prescribed by 18 U.S.C. § 3583(d).” Id. That section
requires that conditions
(1) be reasonably related to the nature and circumstances of the offense,
the defendant’s history and character, the deterrence of the criminal
conduct, the protection of the public from future crimes of the
defendant, or the defendant’s educational, vocational, medical, or other
correctional needs; (2) involve no greater deprivation of liberty than is
reasonably necessary to achieve the purpose of deterring criminal
activity, protecting the public, and promoting the defendant’s
rehabilitation; and (3) be consistent with any pertinent policy statements
issued by the Sentencing Commission.
Id.
Here, applying § 3583(d), the district court justified the special condition by
citing to Moritz’s character and his history of alcohol abuse. Continuing to follow the
factors the statute requires heeded, the court concluded that the special condition was
needed to protect the public and promote Moritz’s rehabilitation. Finally, the court
didn’t conclude (and Moritz doesn’t argue otherwise) that the special provision is
inconsistent with any pertinent policy statements issued by the Sentencing
Commission.
Since the district court based its decision on its individualized assessment of
Moritz, its decision wasn’t arbitrary, capricious, whimsical, or manifestly
4
unreasonable. Therefore, the district court acted within its discretion in denying
Moritz’s motion to modify this special condition.
2. The special condition is not vague or overly broad.
Moritz argues that this special condition is vague and overly broad because it
could prohibit his use and possession of ordinary household products containing
alcohol, including dishwasher detergent, hand sanitizer, toothpaste, and aftershave.
Along this same line, Moritz argues that nothing explains why he needs to obtain a
probation officer’s approval before purchasing or using these household items.
In United States v. Munoz, 812 F.3d at 815, we addressed a challenge to a
similar special condition, and we affirmed the district court’s special condition.
There, the special condition required that the “defendant must refrain from the use
and possession of alcohol and other forms of intoxicants.” Id. at 814. The defendant
argued that the words alcohol and intoxicants “are vague because they could include
over-the-counter medications, vanilla extract, rubbing alcohol, coffee, cigarettes,
sugar, and chocolate.” Id. at 815. We rejected this argument, observing that “no
federal appeals court has invalidated a supervised release condition prohibiting the
consumption of alcohol or intoxicants.”1 Id. We concluded that “[w]ith the gloss of
common sense, the condition was not too vague.” Id.
1
Other courts frequently impose this condition and courts have routinely
upheld nearly identical special conditions. See e.g. United States v. Mason, 626 Fed.
Appx. 473, 474-75 (5th Cir. 2015) (unpublished) (affirming district courts imposition
of restriction prohibiting “use of alcohol and all other intoxicants”.); United States v.
Schave, 186 F.3d 839, 842-43 (7th Cir. 1999) (“While a restriction simply on
excessive use of alcohol may have been sufficient to achieve these aims, we cannot
5
As in Munoz, we must use common sense to guide our interpretation of
supervised release conditions. 812 F.3d at 815; see United States v. Mike, 632 F.3d
686, 701 (10th Cir. 2011) (opting for a “commonsense” interpretation of release
conditions over an interpretation that is “overly technical”). When common sense is
applied to the special condition, the prohibition on possession or use of alcohol or
other intoxicants isn’t unreasonably vague or overly broad. Thus, we reject Moritz’s
challenges to this special condition.
CONCLUSION
The district court acted within its discretion when it denied Moritz’s motion
for modification of supervised release conditions. We affirm the district court’s Order
denying modification of the conditions of supervised release.
Entered for the Court
Gregory A. Phillips
Circuit Judge
conclude that the district court, on the facts before it, abused its discretion in
concluding that an additional restriction banning all alcohol use was reasonably
necessary.”).
6 | 01-03-2023 | 06-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3209606/ | Abatement Order filed June 2, 2016
In The
Fourteenth Court of Appeals
____________
NO. 14-16-00126-CV
____________
CINDY MICHELLE JOHNSON, NICOLE MICHELLE LEE AND VICKIE
JOHNSON ROBINSON AKA VICKIE MARIE JOHNSON, Appellants
V.
FALLON CARLIN, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2015-00062
ABATEMENT ORDER
Notice was filed on May 14, 2016 that appellant, Cindy Johnson, is in
bankruptcy. Tex. R. App. P. 8.1. According to the notice, on April 4, 2016, Johnson
petitioned for voluntary bankruptcy protection in the United States Bankruptcy
Court for the Eastern District of Texas under case number 16-40603. A bankruptcy
suspends the appeal from the date when the bankruptcy petition is filed until the
appellate court reinstates the appeal in accordance with federal law. Tex. R. App. P.
8.2. Accordingly, we ORDER the appeal abated.
When a case has been suspended by a bankruptcy filing, a party may move
the appellate court to reinstate the appeal if permitted by federal law or the
bankruptcy court. Tex. R. App. P. 8.3. If the bankruptcy court has lifted or terminated
the stay, a certified copy of the order must be attached to the motion. Id. A party
filing a motion to reinstate shall specify what further action, if any, is required from
this court when the appeal is reinstated. See Tex. R. App. P. 10.1(a).
For administrative purposes only, and without surrendering jurisdiction, the
appeal is abated and treated as a closed case until further order of this court.
PER CURIAM | 01-03-2023 | 06-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4047416/ | FILE COPY
CAUSE NO. 12-14-00210-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BOBBIE DEWAYNE GRUBBS, } APPEALED FROM 273RD DISTRICT COURT
APPELLANT
V. } IN AND FOR
THE STATE OF TEXAS, } SHELBY COUNTY, TEXAS
APPELLEE
ORDER
Appellant is represented by Mr. William S. Shires, appointed counsel. Pursuant to TEX. R. APP.
P. 38.8(b), counsel was notified on April 28, 2015, that his brief was due and was given until May 15,
2015, to file a brief or otherwise explain the delay. No satisfactory response has been received.
Pursuant to TEX. R. APP. P. 38.8(b)(3), it is ORDERED that Honorable Charles R. Mitchell,
Judge of the 273rd District Court of Shelby County, Texas, shall immediately conduct a hearing to
determine (1) whether the appellant still desires to prosecute his appeal; (2) whether the appellant is
indigent and either needs counsel appointed, or appellant’s counsel has abandoned the appeal; or (3) if
the appellant is not indigent, whether a brief has not been completed because retained counsel has either
abandoned the appeal or because appellant has failed to make necessary arrangements for filing a brief;
and (4) when appellant’s counsel anticipates that the appellant’s brief, if a brief is to be filed, will be
completed.
It is FURTHER ORDERED that the judge shall (1) make appropriate findings as to the above
set forth issues and (2) cause a record of the proceedings to be prepared.
It is ADDITIONALLY ORDERED that once findings are made as to the above set forth issues,
if appellant is indigent, the judge shall (1) take such measures as may be necessary to assure appellant’s
effective representation, which may include the appointment of new counsel and (2) make
recommendations to this Court regarding a proper filing date for the appellant’s brief.
FILE COPY
It is FINALLY ORDERED that the supplemental clerk’s record (including any orders and
findings) and the reporter’s record of said hearing be filed with the Clerk of this Court on or before
June 12, 2015.
WITNESS the Honorable James T. Worthen, Chief Justice, Court of Appeals, 12th Court of
Appeals District, Tyler, Texas.
GIVEN UNDER MY HAND AND SEAL OF OFFICE at Tyler, Texas this 2nd day of June
2015, A.D.
Respectfully yours,
CATHY S. LUSK, CLERK
By: ______________________________
Katrina McClenny, Chief Deputy Clerk | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427053/ | The appellant was charged with assault and battery with intent to kill. He was tried by the court, found guilty, and sentenced to the Indiana State Prison for a period of not less than one (1) nor more than ten (10) years.
The only error properly assigned is that the court erred in overruling appellant's motion for a new trial. The reasons properly assigned for a new trial are:
(1) The finding of the court is contrary to law.
(2) The finding of the court is not sustained by sufficient evidence.
The evidence shows that the appellant, at the time in question, was in the beer and restaurant business on Madison Avenue in the City of Indianapolis; that one *Page 104
Alfred G. Mueller sold or claimed to have sold appellant some light fixtures; that on or about the 29th day of October, 1933, the said Mueller, in company with two other men, went to the appellant's place of business about two o'clock in the morning and bought some beer, and, while drinking the beer, Mueller began talking to the appellant about the light fixtures, and told the appellant if he didn't want to keep them he would come out the next week and get them. The appellant asked Mueller how much the bill was, and Mueller said $20.00. The appellant told his wife to get $20.00 and throw it down on the floor, which she did. Appellant told Mueller to pick it up, and Mueller replied that he didn't do business that way and told appellant if he would put it on the counter he would give him a receipt for it. Appellant's wife picked the money up and started to put it on the counter when the appellant began shooting at Mueller. It appears from the evidence that Mueller was shot in the hand, finger, and chest. It is uncertain how many shots were fired, but all the witnesses testified there were at least two. Mueller was taken to the city hospital and remained there eleven days.
A man by the name of Piper came with Mueller to the appellant's place of business and was drinking with him. It appears that Piper went into the kitchen where appellant's wife was, and she ordered him out, and a few words were passed between the parties as to this incident. The appellant testified that when Mueller and Piper came in his place, Piper said: "We come here, we have got to have $20.00 and he had better pay off," and that Mueller pointed to the lights and said they were his. The appellant claimed that he had bought the light fixtures from Mueller's brother who had been a partner of appellant. After some conversation concerning the $20.00 passed between appellant and Mueller, the appellant claimed that Mueller walked over close to him, *Page 105
and he told him, "Don't take another step" — that he took another step, and then appellant shot Mueller. The appellant claimed that Mueller had a gun and that he shot in self defense. There is no evidence at all that Mueller had a gun and no evidence that he made any effort to do any harm to the appellant. There is no evidence that the appellant was in danger of bodily harm when he fired the shots at Mueller.
An intent to kill need not be proved by positive evidence, but it may be inferred from the circumstances of the case. It may be inferred from the deliberate use of a deadly weapon in a 1. manner calculated to produce death. Walke v. State
(1893), 136 Ind. 663, 36 N.E. 356.
In the case of Larkin v. State (1904), 163 Ind. 375, 71 N.E. 959, this court said (p. 378):
"Where an assault and battery is committed with a deadly weapon which is deliberately used in such a manner as to be reasonably calculated to take or destroy life, the intent to kill may be inferred as a fact from the act itself."
In the instant case the appellant used a deadly weapon in a deliberate manner as to be reasonably calculated to take and destroy life, and, under all the evidence it shows an 2, 3. intent on the part of the appellant to take the life of Mueller. And when the evidence, with all the legitimate and reasonable inferences which the court was warranted in drawing therefrom is considered, it can not be said that there is such an absence of evidence as to leave the finding of the court unsupported upon any material point or fact. The fact that the evidence in a particular case upon which the finding and judgment of the lower court rests may be said to be weak or unsatisfactory is not available on appeal to this court. Larkin v. State,supra.
We find no reversible error.
Judgment affirmed. *Page 106 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426943/ | Appellant was charged by indictment with having made out and presented for allowance to the board of public works of the city of Evansville, Indiana, a certain false and fraudulent claim in violation of § 2945 Burns 1926, Acts 1905 p. 584, § 685. A motion by appellant to quash the indictment was denied and a proper exception was reserved. Appellant filed his plea in abatement, to which the court sustained a demurrer, with exceptions to appellant. A motion and affidavit for a change of venue from Vanderburgh County was filed by appellant, and the State filed counter-affidavits. The court denied the change of venue, to which ruling of the court, the appellant excepted. There was a plea of not guilty, a trial by jury, and a verdict returned finding appellant guilty as charged in the indictment. A motion for a new trial was overruled, with exceptions. Thereupon, the court rendered judgment that appellant pay a fine to the State of Indiana in the sum of $10, and that he be imprisoned in the Indiana State Prison for a period of not less than two years, nor more than 14 years, and that he pay the costs and charges therein.
Appellant prosecutes his appeal to this court and predicates error upon (1) the overruling of his motion to quash the indictment; (2) in sustaining the demurrer of the State of Indiana to appellant's plea in abatement; (3) in overruling appellant's motion for a change of venue from Vanderburgh County, and (4) in overruling appellant's motion for a new trial.
The indictment is in one count and the charging part reads as follows: "The grand jurors for the County of Vanderburgh and State of Indiana, upon their oaths, present and charge that George Pontarelli, on or about the 14th day of October, A.D. 1925, at said county and state, did then and there make and enter into with the City of Evansville, an incorporated city of the second class in said county and state, said city acting by and *Page 150
through its Board of Public Works, a certain contract in writing, by the terms of which said contract the said George Pontarelli covenanted and agreed to furnish all labor, materials, tools, machinery and equipment, and to construct and fully complete a certain sewer known and designated therein as the Howard Roosa sewer, in said City of Evansville, according to improvement resolution No. 1-1925 of said Board of Public Works adopted on the 12th day of August, 1925, and according to the plans, profile and specifications for said work which had theretofore been prepared and adopted by said Board of Public Works of said city to govern the construction of said sewer; that by the terms of said written contract the said City of Evansville, by and through its said Board of Public Works, contracted and agreed to compensate and pay the said George Pontarelli for the construction of said sewer;
"That thereafter, and before this presentment, the exact date of which is to these grand jurors unknown, the said George Pontarelli began the construction of said Howard Roosa sewer in said City of Evansville, Indiana, under and by virtue of the terms and provisions of said written contract hereinbefore referred to; that during the month of June, A.D. 1927, the exact day of said month being to these grand jurors unknown, the said George Pontarelli quit the construction of the said sewer under the terms, conditions and provisions of said written contract, and the said George Pontarelli then and there refused to complete the said sewer for the compensation fixed and agreed upon in said above-described written contract, and the said George Pontarelli reported to the said Board of Public Works of said City of Evansville, aforesaid, that quicksand and soil in the nature of quicksand had been encountered by him, the said George Pontarelli, in the construction of said sewer, and that he, the said George Pontarelli, would *Page 151
not continue with the construction of said sewer under and by virtue of the terms and provisions of said written contract above referred to, and that he would not continue with the construction of and complete said sewer unless the City of Evansville, by and through its Board of Public Works, modified said above-described written contract for the construction of said sewer, and in said modification make provision for additional compensation to him, the said George Pontarelli, for extra construction, labor and materials which were necessary for the construction of said sewer in, along and through said quicksand and soil in the nature of quicksand, which said extra construction, labor and materials he, the said George Pontarelli, then and there represented were necessary to construct said sewer in, upon, along and through said quicksand and soil in the nature of quicksand which the said George Pontarelli then and there represented existed along the route of said Howard Roosa sewer as described in said plans, profile and specifications for said work, and which additional compensation the said George Pontarelli then and there represented was not provided for in said written contract for the construction of said sewer, and was made necessary by reason of certain obstructions encountered in the construction of said sewer, to wit, said quicksand and soil in the nature of quicksand, which said obstruction could not reasonably have been foreseen before the construction of said sewer was begun; that at the time of the said representations by the said George Pontarelli to said Board of Public Works, as aforesaid, there remained to be constructed approximately twenty-nine hundred (2900) feet of said sewer upon and along Crown avenue, in said City of Evansville, and the said George Pontarelli represented that said quicksand and soil in the nature of quicksand existed upon and along said Crown avenue in said City of Evansville; *Page 152
"That thereafter, to wit, on or about the 1st day of July, A.D. 1927, the said George Pontarelli and the said City of Evansville aforesaid, acting by and through its said Board of Public Works, to which the said George Pontarelli assented, modified the original written contract for the construction of said Howard Roosa sewer which had theretofore been entered into by and between the said George Pontarelli and the said City of Evansville on or about the 14th day of October, A.D. 1925, as hereinbefore alleged, and the said City of Evansville did then and there covenant and agree with the said George Pontarelli that for five hundred (500) lineal feet of said sewer theretofore constructed by said contractor, wherein quicksand conditions had been encountered and additional construction had been used by said George Pontarelli, and for twenty-five hundred fifty (2550) lineal feet of the remaining twenty-nine hundred (2900) feet of said sewer not yet constructed, making in all three thousand fifty (3,050) lineal feet, said City of Evansville would pay unto the said contractor, George Pontarelli, in addition to the contract price set out and agreed upon in said original written contract for the construction of said sewer the following sums of money, to wit:
"Seventy-one dollars eighteen cents ($71.18) per lineal foot for each lineal foot of said three thousand fifty (3,050) lineal feet wherein the said George Pontarelli constructed said sewer upon a concrete mat twelve (12) feet in width, one (1) foot in thickness, and backed by concrete three (3) feet in thickness at each outer edge, said concrete mat to be constructed by the use of steel sheet piling and constructed in accordance with the plans and specifications theretofore adopted by the said Board of Public Works, which said plans and specifications were furnished to the said George Pontarelli; and
"Seventy-four dollars ninety-eight cents ($74.98) per *Page 153
lineal foot for each lineal foot of said three thousand fifty (3,050) lineal feet wherein the said George Pontarelli constructed a wood piling foundation to support said sewer, said wood piling foundation to be constructed by said George Pontarelli by the use of steel sheet piling and in accordance with the plans and specifications adopted by said Board of Public Works, which said plans and specifications were furnished to said George Pontarelli;
"That thereafter, to wit, on or about the 1st day of July, A.D. 1927, the said contractor, George Pontarelli, resumed the construction of said Howard Roosa sewer under the provisions of said original written contract for the construction of said sewer, as modified by the passage and adoption of said resolution making provision for additional compensation to be paid said contractor, George Pontarelli, by said city for said extra construction, labor and materials, to be used and employed by said George Pontarelli in constructing said sewer upon, along and through said three thousand fifty (3,050) lineal feet of quicksand and soil in the nature of quicksand, and the said George Pontarelli in all things recognized the validity of said resolution as modifying said original written contract for the construction of said Howard Roosa sewer;
"That thereafter, to wit, on or about the 23rd day of April, A.D. 1928, at said Vanderburgh County, State of Indiana, the said George Pontarelli did then and there unlawfully, feloniously, knowingly and designedly, with intent to cheat and defraud the said City of Evansville, aforesaid, and for the purpose of procuring the allowance thereof make out, present, demand and request the allowance of a certain false and fraudulent claim, which said false and fraudulent claim was by the said George Pontarelli then and there presented to the said Board of Public Works of said City of Evansville, State of *Page 154
Indiana, for the purpose of procuring the allowance thereof, and which said false and fraudulent claim was a claim against said City of Evansville and in favor of the said George Pontarelli, as contractor, for the construction of said Howard Roosa sewer, and which said claim specified, among other items, that said City of Evansville was indebted to the said George Pontarelli in accordance with the terms and provisions of said modified contract for the construction of said Howard Roosa sewer, for the construction of the concrete mat as provided for in the plans and specifications adopted by said Board of Public Works for a foundation and support for said sewer in, upon, along and through the quicksand and soil in the nature of quicksand conditions encountered by said contractor in the construction of said sewer in the sum of two hundred seventeen thousand ninety-nine dollars ($217,099), which said sum of two hundred seventeen thousand ninety-nine dollars ($217,099) was in said false and fraudulent claim set out and described as follows: Five hundred feet quicksand, at $71.18 per lineal foot, $35,590; 2,550 feet quicksand, at $71.18 per lineal foot, $181,509; that the said George Pontarelli, in presenting said false and fraudulent claim, as aforesaid, did then and there claim that said sum of two hundred seventeen thousand ninety-nine dollars ($217,099) was justly due and unpaid and owing from said City of Evansville aforesaid to said George Pontarelli for and on account of the construction of said concrete mat foundation and support under said Howard Roosa sewer upon and along Crown Avenue in said City of Evansville, as provided for in said modified contract, which said concrete mat foundation and support for said sewer the said George Pontarelli then and there claimed he had constructed for three thousand fifty (3,050) lineal feet; that in support of said claim the said George Pontarelli did then and there file with said Board of *Page 155
Public Works of said City his voluntary affidavit in writing, which said affidavit is as follows, to wit:
"`State of Indiana, ss. "`County of Vanderburgh.
"`George Pontarelli, being first duly sworn, upon his oath says that he is the contractor for the construction of the Howard Roosa sewer in the City of Evansville, Indiana, under a contract between him and the City of Evansville, Indiana, dated on or about October 28, 1925; that he, the said contractor, has done and performed all work under said contract, as heretofore modified, in accordance with the plans and specifications, also as heretofore modified; that upon the completion of said modified contract, as aforesaid, this affiant personally has carefully gone over said work and he is satisfied that every item thereof is complete, and that all defects that appeared therein have been made good; that all machinery and appliances have been properly tested; that all surplus material, refuse, dirt and rubbish has been cleaned up and removed, and that the whole work is in a finished, satisfactory, neat and tidy condition, and is ready in all respects for acceptance by the City of Evansville, Indiana, and that all bills for materials and labor in connection with said work have been fully paid or satisfactorily secured.
"`(Signed) George Pontarelli.
"`Subscribed and sworn to before me this 23rd day of April, 1928.
"`(Signed) Adolph Decker, Notary Public.
"`My commission expires November 3, 1928.'
"That the said George Pontarelli had not constructed said concrete mat foundation and support for the said Howard Roosa sewer as provided for in the plans and specifications adopted by said Board of Public Works for the construction thereof for a distance of three thousand fifty (3,050) lineal feet of said sewer, and the said *Page 156
George Pontarelli, at the time of filing said false and fraudulent claim and said affidavit in support thereof, as aforesaid, then and there well knew that he had not constructed said concrete mat foundation and support for said sewer for said distance of three thousand fifty (3,050) lineal feet; that the said George Pontarelli had, in fact, not constructed said concrete mat foundation and support for said sewer according to the plans and specifications thereof for said three thousand fifty (3,050) lineal feet, but had only constructed said concrete mat foundation and support for said sewer for a distance much shorter than the three thousand fifty (3,050) lineal feet; the number of lineal feet of said construction stated in said false and fraudulent claim, the exact number of lineal feet of said concrete mat foundation and support for said sewer that had, in fact, been constructed by said George Pontarelli, under the terms and conditions of said modified contract therefor and in accordance with the plans and specifications therefor, is to the grand jurors unknown; that the amount of money due, if any, to the said George Pontarelli from said City of Evansville, aforesaid, for concrete mat foundation and support, which the said George Pontarelli had constructed under the provisions of said modified contract therefor and in accordance with the plans and specifications therefor, was very much less than said sum of two hundred seventeen thousand ninety-nine dollars ($217,099.00), the amount stated in said false and fraudulent claim, the exact amount of money which was due and owing to said George Pontarelli from said City of Evansville, on account thereof is to the grand jurors unknown, and that said George Pontarelli, at the time he presented said false and fraudulent claim and said affidavit in support thereof, as aforesaid, then and there well knew that the said City of Evansville was not then and there indebted to him on account of the construction *Page 157
of concrete mat foundation and support for said sewer in said sum of two hundred seventeen thousand ninety-nine dollars ($217,099.00), the amount stated in said false and fraudulent claim, but was indebted on account thereof, if at all, in a very much less amount than said sum as stated in said false and fraudulent claim," etc.
Appellant's first assignment of error is the court's ruling on his motion to quash the indictment, and makes the point that the indictment shows on its face that the contract, the 1, 2. subject of the alleged false claim, was between the city of Evansville, and the defendant, for the construction of a public sewer, and that there is no allegation of fact in the indictment to show that any part of the cost of the sewer was, under such contract, to be paid out of the treasury of said city. We cannot agree with appellant upon this point. The allegations of the indictment state that the contract for the construction of the sewer was between the city of Evansville and the defendant, and that the city of Evansville agreed to pay the defendant, in addition to the contract price, certain sums of money for certain work. We do not think it necessary for the indictment to show in what manner and under what conditions the city of Evansville would be liable to the defendant contractor for the construction of the sewer. It is not necessary for the indictment to specifically allege that all or any part of the cost of constructing the sewer is to be paid out of the city treasury, if it is a condition precedent to the obtaining of the money that a claim be presented to the proper city officials, and that they take some action before compensation for the work could be obtained. We will give further notice to the point when we come to considering the sufficiency of the evidence.
Appellant's second assignment of error calls in question *Page 158
the action of the court in sustaining a demurrer to his plea in abatement. Appellant's plea in abatement challenges the 3. personal qualifications of three members of the grand jury that returned the indictment. The plea in abatement alleges that three of the grand jurors, naming them, were owners of property that were assessed for the construction of the Howard Roosa sewer, and, for that reason, they were not disinterested and, therefore, not qualified jurors, being biased and prejudiced.
The qualifications for a grand juror are defined by our statute, § 1833 Burns 1926, and there is no contention that the three jurors complained of did not possess the statutory requisites. Appellant did not challenge the array of the grand jury before they were sworn. It has been decided by this court that there is no statutory right to challenge by plea in abatement, individual grand jurors for favor after the return of an indictment. Williams v. State (1919), 188 Ind. 283, 123 N.E. 209; § 2127 Burns 1926.
The fact that three of the grand jurors owned real estate located in the assessed area of the Howard Roosa sewer that would be assessed for the construction of said sewer would not of 4. itself disqualify them for grand jury service so as to afford reasons for a plea in abatement, based upon that ground. State v. Krug (1895), 12 Wash. 288, 41 P. 126;Commonwealth v. Brown (1888), 147 Mass. 585, 18 N.E. 587, 1 L.R.A. 620, 9 Am. St. 736; Phillips v. State (1859),29 Ga. 105; People v. Bennett (1867), 37 N.Y. 117, 93 Am. Dec. 551.
Appellant's third assignment of error relates to the overruling of his verified motion for a change of venue from Vanderburgh County. This motion and affidavit were based upon alleged bias and prejudice of the citizens of Vanderburgh County, excited by the wide publicity given the returning of the indictment against this *Page 159
defendant and others who were indicted for offences connected with and growing out of the construction of the Howard Roosa sewer, and the unfavorable comment by said newspapers. The State filed counter affidavits of citizens of said county to the effect that they had a wide acquaintance with the citizenship of said county and that they believed the defendant could have a fair trial in Vanderburgh County.
In all cases not punishable by death, the granting of a motion for a change of venue on account of bias and prejudice existing in the county is within the discretion of the trial court. 5. § 2239 Burns 1926. And, unless it affirmatively appears that the trial court abused its discretion, its actions thereon will not be disturbed on appeal. Leach v. State
(1912), 177 Ind. 234, 97 N.E. 792; Hinkle v. State (1910),174 Ind. 276, 278, 91 N.E. 1090. We have read the articles published by the newspapers as set forth in the record, and the other matters contained in appellant's motion for a change of venue, and we find nothing therein whereby we should conclude that the court abused its discretion in overruling appellant's motion for a change of venue from the county.
Appellant's fourth assignment of error is the overruling of his motion for a new trial, which contains 129 separate causes. The last two reasons assigned in his motion for a new trial are: (1) The verdict of the jury is contrary to law, and (2) the verdict of the jury is not sustained by sufficient evidence. By these alleged errors, appellant contends that there is no evidence that appellant made out or presented a false claim to the board of public works of the city of Evansville as charged in the indictment.
The evidence on this point as shown by the record shows that appellant was awarded the contract for the construction of what was known as "the Howard Roosa *Page 160
sewer," located in the city of Evansville, in October, 1925, and that thereafter, appellant began the work of constructing said sewer and continued work thereunder until June, 1927, when he quit and refused to proceed further with the construction of said sewer for the consideration agreed upon in said original contract. Appellant reported to the board of public works of the city of Evansville that he had encountered quicksand and soil in the nature of quicksand, along Crown Avenue, and that it would require considerable more labor, materials and expense on account of said condition than was anticipated by the original plans, which showed the subsoil to be of blue clay, and upon which he based his bid, and that the contract should be modified to meet the new condition and that extra compensation should be awarded him. The board of public works of said city employed the firm of Black and Veatch, consulting engineers, located at Kansas City, to assist them in the solution of the problem of constructing said sewer through the quicksand area which had been encountered. Said engineers inspected the quicksand area and made a lengthy report to the board of public works, and suggested in said report, among other things, two methods of construction, and itemized the cost of each. One was to construct a concrete mat some 12 feet wide and one foot thick upon which to lay the sewer barrel, and the other was to use wood piling, and lay a wood platform upon which the sewer barrel would be laid. The estimated cost of the concrete mat construction was $71.18 per lineal foot, and for wood piling construction $74.98 per lineal foot. After this report was made by said firm of consulting engineers, the board of public works of said city, on July 1, 1927, passed a resolution modifying the original contract, and therein, among other things, they provided as follows: "Whereas it is agreed by and between the City of Evansville acting by and through *Page 161
this Board, and the contractor, George Pontarelli, said agreement being now consented to at this a regular meeting of the board that the additional cost for constructing the sewer through such quicksand conditions, over and above the amount fixed in the existing contract shall be seventy-one and 18/100 dollars ($71.18) per lineal foot for three thousand fifty (3,050) feet where the so-called concrete mat construction is used, and seventy-four and 98/100 dollars ($74.98) per lineal foot over and above the amount fixed in the contract where piling is used, meaning hereby that it is agreed by the said city and said contractor that the above set out prices shall apply.
"BE IT THEREFORE RESOLVED that this board finds that certain quicksand conditions exist which were not shown on the plans and profile upon which the said contractor estimated his bid and which will materially increase the cost of the work. That for the five hundred feet (500) heretofore completed by the contractor (wherein quicksand conditions were found) and for twenty-five hundred fifty (2,550) feet of the remaining twenty-nine hundred (2,900) feet of sewer not yet constructed, making in all three thousand fifty (3,050) feet, there be paid by said city in accordance with the law applicable for such payment unto the said contractor, George Pontarelli, in addition to the contract price, the sum of seventy-one and 18/100 dollars ($71.18) per lineal foot, provided, however, that if in said twenty-five hundred fifty (2,550) feet of work not yet completed it shall become necessary in the opinion of the City Engineer and the inspector that piling be used, that for the actual lineal feet where such piling is used, the additional amount per foot to be paid the said contractor shall be seventy-four and 98/100 dollars ($74.98) per foot instead of seventy-one and 18/100 dollars *Page 162
($71.18) per foot, the said contractor shall perform services in the manner and method and with the materials as provided by Black and Veatch as applicable thereto, all as shown in their said written report."
That, after the original contract was modified by the above resolution, the appellant proceeded with the work and completed the construction of said sewer. The work was completed in the fall of 1927. The record discloses that the appellant, in constructing said sewer, was required to do much work that was not provided for in the detailed plans and specifications, and, as the result of extra work and materials used, a controversy developed between the city of Evansville and appellant as to the amount due said appellant on account of constructing said sewer. In February, 1928, the city of Evansville appointed three reputable lawyers of said city to assist the city attorney in determining the amount due said appellant on account of the construction of said sewer.
Soon after the appointment of said lawyers, they proceeded to examine the city records relating to the construction of said sewer and consulted the city engineer, the engineer in charge of the construction of said sewer, and other city officials who had knowledge of the work done and, from such information thus obtained, said lawyers made out an itemized statement of the amount they thought was due said appellant. After this statement was completed, the lawyers representing the city, including the city attorney, met with certain lawyers representing appellant, at which conference the various items were discussed. The itemized statement prepared by the representatives of said city was not exhibited to appellant or the lawyers representing him. The twenty-ninth item of this itemized statement is as follows: No. 29. Quicksand 3,050 feet at $71.18 per lineal foot, $217,099. The total amount due the appellant on account *Page 163
of constructing said sewer, as shown by this statement, and which the city of Evansville was willing to agree was due appellant, and which the city proposed to pay, amounted to $950,929.30 less $200,000 cash paid appellant during the progress of said work; leaving a balance due of $750,929.30. This itemized statement is shown in the record by State's Exhibit No. 59, and bears date of April 13, 1928. The evidence shows that the lawyers for the city and the lawyers representing appellant had at least six conferences for the purpose of reaching an agreement as to the amount due said appellant. The last of these conferences was on April 21, 1928, and appellant, together with his lawyers, was present at this conference. Appellant and the lawyers representing him had at this conference an itemized list of the items they were contending were due appellant. This instrument is shown in the record as State's Exhibit No. 41, and is similar in form to the one prepared by the representatives of the city. Said Exhibit No. 41 is the instrument relied upon by the State as being the false and fraudulent claim made out and presented to the board of public works of the city of Evansville for the purpose of procuring the allowance thereof. The evidence shows that it was used by the lawyers representing appellant at this conference in the same manner, and served the same purpose as the itemized statement prepared and used by the representatives of the city at the various conferences. The itemized statement, so prepared and used by appellant and his lawyers at this last conference, and which the State contends is the claim filed with the city, was not verified nor signed by appellant or by any one for or on his behalf. The total amount due appellant on account of constructing the Howard Roosa sewer as shown by this itemized statement so prepared by appellant was $1,123,984.39, less $200,000 theretofore paid appellant upon estimates made by the city engineer *Page 164
during the progress of the work. The said itemized statement prepared and used by appellant and his lawyers at the conference held on April 21, 1928, like the statement prepared by the city, contained, among many items, the following item: "500 feet quicksand — $71.18 per lineal foot, $35,590.00, 2,550 feet quicksand — $71.18 per lineal foot, $181,509.00."
The evidence shows, without contradiction, that while these items (meaning the cost for constructing the concrete mat through the quicksand area) appeared on the itemized statements prepared by both the city and appellant, yet there was no controversy about this particular item. At the first conference between the representatives of the city and the attorneys representing the appellant on April 13, 1928, the compromise offer made by the city of $950,929.30 contained this item in full. The controversy between the city and appellant was at all times concerning other items of expense and materials for extra work. The evidence further shows by State's Exhibits Nos. 19 to 29, inclusive, which are copies of partial estimates made by August Pfafflin, city engineer, and copies of the resolution of the board of public works of the city of Evansville issuing certificates to appellant for various sums based upon the estimates filed with said board by the city engineer, that the city engineer had reported to the board of public works the completion of 3,050 feet of quicksand at $71.18 per lineal foot, $217,099, and that the city had issued certificates to appellant upon the estimate made and filed by the city engineer, before any controversy arose between the city and appellant over what was due appellant for constructing the Howard Roosa sewer.
The record discloses that a compromise agreement was reached by the attorneys representing the board of public works of the city of Evansville and the appellant and the attorney representing him at the conference of April *Page 165
21, 1928. The total amount finally agreed upon on that date as the amount due appellant was $991,186 less the $200,000 theretofore paid appellant, leaving a balance due appellant of $791,186. On the next day, Sunday, April 22, 1928, one of the attorneys for the city wrote a letter to the board of public works informing such board of said compromise agreement, and he also prepared a resolution to be adopted by the board of public works, which resolution so prepared embodied an itemized statement of the various items and amounts, including the item for quicksand construction in the sum of $299,017, which had been agreed upon as due appellant. This resolution, together with the letter from the attorney who prepared the resolution, also the affidavit of appellant to the effect that the work of constructing the Howard Roosa sewer had been completed, was received by the board of public works on Monday, April 23, 1928, and said resolution was adopted as prepared by said attorney. An examination of the itemized statement of the amount due appellant, as agreed upon and as embodied in the final resolution, shows that the concessions made by the city and appellant related to various items, such as sewer pipe, various kinds of connections, amount and cost of different kind of material used, the number of square yards of pavement made, etc., and that no change whatever was made in the quicksand item. While the transcript of the evidence is quite voluminous, yet the above is, in substance, the evidence introduced and necessary to consider for a determination of the questions involved.
This prosecution is based upon an alleged violation of the provisions of § 2945 Burns 1926, which, after eliminating certain parts thereof not pertinent to this prosecution, may be read as follows: "Whoever, knowing the same to be false or fraudulent, makes out or presents for payment, or certifies as correct to . . . the board *Page 166
of commissioners or other officer of any county, or to the treasurer, or other accounting officer of any city or town, . . . any claim, . . . or other evidence of indebtedness, false or fraudulent, for the purpose of procuring the allowance of the same, or an order for the payment thereof, out of the treasury of said . . . county . . . city or town . . . shall, on conviction, be imprisoned," etc.
Appellant contends that the verdict is not sustained by sufficient evidence, because the indictment charged, in effect, that appellant made out and presented a false claim, in 6. that he represented that said city was indebted to him in a certain amount for the construction of a "concrete mat," for a certain number of feet therein stated, whereas the proof shows that the alleged claim was not for constructing a concrete mat, but was itemized in the alleged claim as "quicksand." There is no merit in this contention. The item which is alleged to be false, and itemized by appellant in his alleged claim for $217,099 on account of quicksand for a distance of 3,050 feet, was fully understood by all the parties to be the same item, as compensation for the concrete mat, as required by the modified contract. The proof on this point supported the allegation of the indictment.
Appellant argues in his brief that the contract between the city of Evansville and himself, as modified by the resolution adopted by the board of public works of said city under 7, 8. date of July 1, 1927, mentioned above, did not require him to construct 2,550 feet of concrete mat before he was entitled to receive $181,509. It should be stated here that, at the time appellant reported encountering the quicksand condition to the board of public works, he had constructed the sewer for a distance of 500 feet through said quicksand *Page 167
area, for which the city allowed him as additional compensation therefor the sum of $35,590, being at the rate of $71.18 per lineal foot. To this appellant was clearly entitled. Appellant construes the contract as modified to mean that he was entitled to said $181,509 extra compensation regardless of the number of feet of concrete mat laid by him in the construction of said sewer through said quicksand area, and that he was at liberty to adopt any method of supporting said sewer barrel he saw fit, provided such construction resulted in a substantial sewer. The contract as modified is contained in the resolution of the board of public works, adopted on July 1, 1927, and was introduced in evidence as State's Exhibit No. 18. A portion of said resolution is quoted, supra. The last part of said resolution contains a copy of a letter purported to have been signed by two members of the board of public works, and attested by the city clerk, addressed to appellant, which letter reads as follows:
"Mr. George Pontarelli, City.
"Dear Sir:
"In compliance with the requirements of section 30 of the specifications under which you are constructing the Howard-Roosa sewer, you are hereby advised to proceed with the work of construction, the additional cost of which will be paid you in accordance with the terms of the copy of the enclosed resolution. The original of this resolution is properly on record of the records of this Board.
"For five hundred feet you have already constructed and wherein you found quicksand conditions, and for twenty-five hundred and fifty feet yet to be constructed, making a total of three thousand and fifty feet, you will receive as additional compensation over that provided for in your existing contract, the sum of seventy-one and 18/100 dollars ($71.18) per lineal foot where concrete *Page 168
mat construction is followed, or seventy-four and 98/100 ($74.98) per lineal foot where piling is used.
"Very truly yours,
"Jos. Healey "S.S. Baertich
"Members of the Board of Public Works.
"Attest: S.W. Klein, Clerk."
This letter is indicative of what the city thought the modified contract required of the contractor before he would be entitled to receive the extra compensation. A careful reading of the modified contract could lead to no other conclusion. It would be a strained construction to adopt appellant's construction of this contract. The modified contract states "that the additional cost for constructing the sewer through such quicksand condition, over and above the amount fixed in the existing contract shall be seventy-one and 18/100 dollars ($71.18) per lineal foot for three thousand and fifty (3,050) feet where the so-calledconcrete mat construction is used, and seventy-four and 98/100 dollars ($74.98) per lineal foot over and above the amount fixed in the contract where piling is used, meaning hereby that it is agreed by the said city and said contractor that the above set out prices shall apply." (Our italics.) The one purpose of the city and appellant in entering into this modified agreement was to compensate appellant for the extra expense of constructing a concrete mat or wood piling foundation occasioned by the quicksand condition. It had been determined by the city, with the assistance of a consulting engineer, furnished by the firm of Black and Veatch, that one or both of the two methods of construction mentioned in the modified contract might be used to furnish support for the sewer barrel where quicksand condition was found to exist, one method was by constructing a concrete mat and the other was by wood piling. The price per lineal *Page 169
foot for each was fixed, and we must assume the parties meant just what they said, namely, that the contractor should receive as extra compensation the sum of "seventy-one and 18/100 dollars ($71.18) per lineal foot where the so-called concrete matconstruction was used." (Our italics.) This, it seems to us, is plain and unambiguous language, and not subject to any rule of construction. Ketcham v. Brazil Block Coal Co. (1883),88 Ind. 515, 529; Morris v. Thomas (1877), 57 Ind. 316, 322.
The evidence does not disclose how many feet of concrete mat was constructed by appellant through said quicksand area, but the evidence does show that he did not construct 2,550 feet. The evidence shows that he received compensation to the extent of $181,509 as though he had in fact constructed a concrete mat the entire distance of 2,550 feet as provided in the modified contract.
Another question for our consideration is: Does the evidence show that appellant ever made out or presented a claim to the board of public works of the city of Evansville for the $181,509, which was in excess of what he was justly entitled to receive?
This statute above quoted, and upon which this prosecution is based, contemplates the presentation of a claim or other evidence of indebtedness to the officers named in the statute. 9, 10. It is true that, if appellant made out and presented to the officers named in the statute a claim for $181,509, the same need not be formal, nor need it be verified, UnitedStates v. Dumas (1923), 288 Fed. 247; State v. Barrette
(1924), 124 Atl. (R.I.) 657. Appellee has cited no authority, and we have been unable to find any, where a conviction was upheld unless there was an actual presentation or filing of an instrument with the proper officer or officers.
The statutes of this state point out the ways payment *Page 170
for the construction of a sewer are to be made. §§ 10569-10571 Burns 1926. These statutes do not contemplate the filing of a claim by the contractor. The making out of partial estimates and the issuing of certificates of indebtedness are altogether in the hands of the city officials. The statutes make no provision for any action on the part of the contractor, except to request the issuance of certificates, which requests may be oral. The city engineer makes a report to the board of public works of the amount of work completed; and, upon this report, the action of the board of works is based, and certificates issued for the proper amount found due the contractor. § 10571 Burns 1926.
In all the cases we have been able to find bearing upon the question here at issue, there was a statute requiring the filing or presenting to the proper officials of a claim as a condition precedent to the allowance thereof, and there was, in fact, such an instrument filed in all of said cases. § 2945 Burns 1926.State v. Kelley (1921), 27 N.M. 412, 202 P. 524, 21 A.L.R. 156; Brunaugh v. State (1910), 173 Ind. 483, 90 N.E. 1019;Wilson v. State (1901), 156 Ind. 631, 59 N.E. 380, 60 N.E. 1086; Kurzrok v. United States (1924), 1 F.2d 209;United States v. Dumas, supra; Sprague v. City of Astoria
(1921), 100 Or. 298, 195 P. 789. In the present case, there is no such statute. There was no claim or bill made out or presented by this appellant to the board of public works of the city of Evansville for allowance, unless it can be said to be the itemized statement prepared by appellant or his attorneys, which was to be and was used at the conference held on April 21, 1928. It is not shown by the evidence that this statement was ever filed with or presented by appellant or anyone else to the board of public works of the city of Evansville.
The final action of the board of public works was *Page 171
based upon an entirely different instrument, if indeed it could be said that the action of the board of public works was 11-13. based upon any instrument at all. By § 10569 Burns 1926, the provisions of § 10442 Burns 1926, are made applicable to the payment for sewer construction, and, by this statute, it is the completion of the work that forms the basis for the action of the board of public works, and not any instrument which might be filed by the contractor. The board of public works is given no authority to entertain, allow or order the payment of any claim which might be filed by a contractor for the construction of a sewer. Section 11090 Burns 1926 provides how a claim should be filed and allowed, and provides a penalty for a violation thereof. It is clear that appellant in this case did not follow or attempt to follow the provisions of this statute. In determining whether the action of the defendant, which the State contends constitutes the crime of presenting a false claim comes within the provision of the statute, we must remember the rule of strict construction applies to criminal statutes, and the acts complained of must fall within the letter as well as within the spirit of the law. State v. Lowry andLewis v. State (1906), 166 Ind. 372, 77 N.E. 728, 4 L.R.A. (N.S.) 528, 9 Ann. Cas. 350; United States v. Wiltberger
(1820), 5 Wheat. 76, 95, 5 L. Ed. 37. The rule has been stated as follows: "The rule of strict construction `requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. To determine that a case is within the intention of a statute, its language must authorize the court to say so; but it is not admissible to carry the principle that a case which is within the mischief of a statute is within its provisions, so far as to punish a crime not specified in the *Page 172
statute, because it is of equal atrocity or of a kindred character with those which are enumerated.'" State v. Lowrey,supra. The resolution adopted by the board of public works on April 23, 1928, and which contained an itemized list of the various amounts due appellant, was dictated and prepared by the attorneys for the city. The only paper prepared by or on behalf of appellant that was ever filed with or presented to the board of public works of the city of Evansville, as disclosed by the record in this case, was an affidavit by appellant which was to the effect that the work had been completed according to contract; and it is not contended by the State that this affidavit is a claim within the meaning of the statute under which appellant is being prosecuted. We think it would be extending the scope of said § 2945 Burns 1926 too far to hold that the statement prepared by appellant and used by his attorneys at the conference held on April 21, 1928, and marked as State's Exhibit No. 41, constituted "the making out or presenting" to the board of public works a false and fraudulent claim. Brunaugh v. State, supra; Wilson v. State, supra.
Inasmuch as the evidence fails to show that appellant made out or presented a claim to the board of public works of the city of Evansville, Indiana, for the sum of $217,099, or for $181,509, or any other sum as charged in the indictment, we, therefore, hold that the verdict is not sustained by sufficient evidence, and is contrary to law.
Appellant discusses many other alleged errors relating to the admission and exclusion of certain evidence, and the giving and refusal of certain instructions to the jury. Having reached the conclusion above announced, it is not necessary to discuss the other alleged errors.
Judgment reversed, with instructions to the lower court to sustain appellant's motion for a new trial. *Page 173 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3426945/ | Appellant was engaged in the retail business, selling casings, tires, tubes, and automobile accessories in the city of Gary, Indiana. In 1931 he and appellee entered into a written agreement whereby appellant agreed to purchase all his requirements of casings, tires, tubes, and other automobile accessories from appellee upon the terms and conditions set out in the contract. Later a supplemental contract was entered into, whereby the original contract was in some respects changed and modified, and also provided that appellee would extend to appellant "continuous credit" in the sum of $1,500.00. This "continuous credit" agreement also provided that the, "Dealer agrees to pay to Company forwith upon the termination or abrogation of this agreement all sums then owing Company including said sum owing as A Continuous Credit either in cash or by return of saleable Kelly merchandise acceptable to the Company." Appellee and appellant operated under this agreement until 1934, when a new agreement was executed as of January 2, 1934. This new contract was also modified by a subsequent agreement, called "Continuous Credit" agreement, by the terms of which appellee extended appellant a "Continuous Credit" of $2,000.00. Appellant purchased all his requirements as provided in the contract, from appellee, until May 24, 1934, on which date he notified appellee that he had cancelled his contract. No question is presented with reference to the cancellation. It appears that appellant paid appellee for all merchandise purchased under the new contract except the $2,000.00 "continuous credit." Appellant offered to return merchandise in satisfaction of this credit, but appellee refused to accept the return of merchandise, and demanded payment in cash. The new contract dated January 2, 1934, did not contain a provision for the return of merchandise upon the abrogation or cancellation of the contract, as was contained in *Page 190
the supplemental "continuous credit" agreement attached to the original contract executed in 1931. Appellant refused to pay appellee the $2,000.00 due and this action followed to recover the same. Appellant filed answer in general denial and a cross-complaint. The following excerpt from the cross-complaint makes clear appellant's position.
"Defendant further says that prior to the execution of the agreements mentioned herein this plaintiff and defendant were doing business under an agreement substantially the same as the agreement set forth herein and which agreement was dated April 21st, 1932, modified by a supplementary contract dated October 15th, 1932, this last mentioned agreement provided among other things, as follows:
`Dealer agrees to pay to Company forthwith upon the termination or abrogation of this Agreement, all sums then owing Company, including said sum owing as a Continuous Credit, either in cash, or by return of saleable Kelly merchandise acceptable to the Company;'
"Said contract further providing among other things, as follows:
`and should dealer for any reason fail to comply with said conditions, the total amount then owing Company, including the sum which otherwise might remain owing as said continuous Credit, automatically shall become immediately due and payable, in cash, or by return of saleable Kelly merchandise acceptable to the Company.' . . .
"Defendant further says that at the time of the execution of the contract as shown by plaintiff's Exhibit `A' and `B' and defendant's Exhibit `C,' this defendant asked said plaintiff whether said provision relative to the return of merchandise had been incorporated therein and was assured by said plaintiff that said agreement did provide for the return of merchandise held under Continuous Credit Agreement and this defendant relying on the representation of said plaintiff and accepted *Page 191
said contract without further examination to determine that such was the fact; that through inadvertence or through the deliberate misrepresentation of the plaintiff said agreement as shown by plaintiff's Exhibit `B' did not contain provisions relative to the return of merchandise as shown herein provided by prior agreements; that said written contract as set forth in plaintiff's Exhibit `A' and `B' and defendant's Exhibit `C' should be modified and amended to include provisions relative to the return of merchandise as contained in their agreements dated September 21st, 1932, and October 15th, 1932, as hereinabove set forth.
"Defendant further says that on May 23rd, 1934, this defendant advised the plaintiff herein of his desire to cancel the contract existing between the parties and asking them that he be advised where to ship said merchandise covered by the Continuous Credit Agreement as shown by plaintiff's Exhibit `B' in accordance with their agreement and was later advised by the plaintiff that they would refuse to accept said shipment of merchandise; that by reason of said refusal by this plaintiff to accept said merchandise this defendant has been required to store and keep said merchandise for and on behalf of the plaintiff herein to his damage in the sum of $500.00; that this defendant stands willing to turn over to the plaintiff all merchandise of the plaintiff he has stored which is covered by the Continuous Credit Agreement mentioned in plaintiff's Exhibit `A'."
The cause was submitted to the court for hearing and judgment without the intervention of a jury. The court found in favor of appellee on its complaint in the sum of $2,000.00, and against defendant on his cross-complaint. Judgment was entered accordingly. Appellant's motion for a new trial was overruled, and error is predicated upon the overruling of the motion for a new trial. Other errors are assigned which will be noted later.
In appellant's motion for a new trial he states as grounds therefor, the exclusion of certain offered evidence. *Page 192
We need not set out all the evidence excluded, as each of 1. the courts rulings were predicated upon the same rule of law. Appellant offered to prove an oral conversation between himself and a representative of appellee company to the effect that before he (appellant) signed the new contract, dated January 2, 1934, he asked the representative of the appellee company if the new contract contained the provision as to the return of merchandise, the same as was in the old contract; and that the representative of appellee company told him that it did. The question put to appellant and the offer to prove are as follows:
Q. "What was said by you and what was said by anyone representing the Company at that time immediately before the execution of the contract as shown by Plaintiff's Exhibit 1 and 2?"
Offer to Prove. "I said I insist upon having the right to return merchandise under said Agreement and that the same provisions that were contained in our former agreement be put in this new agreement. Has that been done?" To which the representative of the Company, Mr. Youngkranz replied: "You are protected in this contract with the same provisions as were contained in the old and under it you will have the right to return merchandise called for by said continuous credit agreement."
Appellant offered to prove the provision with reference to the return of the merchandise contained in the supplemental Continuous Credit agreement attached to the original contract hereinabove set out but this offer was rejected. The above offered evidence was rejected on the theory that appellant was bound by the terms of the contract as signed, and the offered evidence tended to vary and modify the terms of a written contract.
We think the offered evidence was rightly refused. The rule which we consider as controlling in this case is aptly stated by Pomeroy, Eq. Jurisp. (2d ed.), § 892, as follows: *Page 193
"As a generalization from the authorities, the various conditions of fact and circumstance with respect to the question how far a party is justified in relying upon the representation made to him may be reduced to the four following cases, in the first three of which the party is not, while in the fourth he is, justified in relying upon the statements which are offered as inducements for him to enter upon certain conduct: (1) When, before entering into the contract or other transaction, he actually resorts to the proper means of ascertaining the truth and verifying the statement. (2) When, having the opportunity to make such examination, he is charged with the knowledge which he necessarily would have obtained if he had prosecuted it with diligence. (3) When the representation is concerning generalities equally within the knowledge or the means of acquiring knowledge possessed by both parties. (4) But when the representation is concerning facts of which the party making it has, or is supposed to have knowledge, and the other party has no such advantage, and the circumstances are not those described in the first or second case, then it will be presumed that he relied upon this statement; he is justified in doing so."
In Wood v. Wack (1903), 31 Ind. App. 252, 256, 67 N.E. 562, the court said:
"It is a fundamental principle that a man is bound to use ordinary care and diligence to guard against fraud and imposition, and that, if he fails to do so, he can not obtain relief from the courts. Codfelter
v. Hulett, 72 Ind. 137, 144, and cases cited. It appears from the averments of the answer that the relation of appellant and appellee were not such as to justify the existence of trust and confidence. Appellee was an intelligent man — a man of affairs. It is not alleged that the agreement in question was not read to him, nor that he did not have an opportunity of reading it, before affixing his signature thereto. He had had no business, and no previous acquaintance, with appellant. The means of information as to the nature and contents of the agreement were within his immediate *Page 194
reach, and he neglected to avail himself of them, when it was clearly his duty to do so. To hold that, under the circumstances, he was excused from so doing, would be dangerous precedent."
In American Insurance Company v. McWhorter (1881),78 Ind. 136, 138, the court quotes with approval from Seeright v.Fletcher (1843), 6 Blackf. 380, as follows:
"It does not appear that the defendant was deceived by the representations made to him, or if he was, it is manifest that it was the consequence of his own folly. If the defendant were an illiterate man, and the bond had been misread to him, he not being able to detect the imposition, the case would have been different. But it appears that he signed the bond without reading it himself, or hearing it read, and with all the means of knowing the truth in his power, reposed a blind confidence in representations not calculated to deceive a man of ordinary prudence and circumspection. In such a case the law affords no relief."
In Ray v. Baker et al. (1905), 165 Ind. 74, 74 N.E. 619, we have a different statement of fact. In this case the execution of the note was secured by fraud. Baker was very illiterate, unable to speak or write the English language, unacquainted with the transactions of business matters, and was wholly ignorant of the meaning of legal terms and proceedings, while on the other hand Junkens (who secured the execution of the note) was one who had had much experience in business, and was a man of pronounced business ability, and had transacted much business with Baker. The facts showed that Baker was justified under all the circumstances in placing confidence in Junkens. In other words, there existed a confidential relationship which distinguishes it from the present case. Here there was no contention that any relationship of trust or confidence existed between the parties. It appears that appellant was a business man of experience. No showing is attempted to be made that any trick or artifice was *Page 195
practiced to prevent appellant from reading the contract for himself. He had the contract in his possession and the fact that he did not read it and discover its contents for himself, was clearly the result of his own carelessness and blind folly. Under such circumstances he cannot obtain relief from the hands of the court. We think the law on this point is so well settled that further citations are not necessary. We therefore hold that the court did not err in excluding the offered evidence.
It appears that before trial appellee had submitted nineteen written interrogatories to appellant which were answered. At the trial appellee offered the first seven questions and answers in evidence and they were admitted. Appellant afterwards offered the remaining questions and answers in evidence and interrogatories, and Nos. 8, 10, 12, 13, 14, 18, and 19 were excluded. After appellant had filed his motion for a new trial appellee filed consent that the court might consider the excluded questions and answers in passing upon appellant's motion for a new trial. The court in passing upon appellant's motion for a new trial considered the excluded interrogatories and the answers thereto, the same as though they had been admitted as evidence. Appellant says this is error.
The questions and answers excluded are as follows:
"8. Q. Did you cancel your continuous credit agreement with the plaintiff, and if so, when?
A. Yes, about May, 1933, I believe.
10. Q. Was this indebtedness owing by you to the plaintiff at the time you gave notice of the cancellation of such contract in the sum of $2,000.00?
A. I did not owe them anything.
12. Q. Have you ever paid any money to the plaintiff herein on account of the debt you owed to the plaintiff at the time you cancelled such contracts?
A. I owed them nothing at time I cancelled contract.
13. Q. Were there any other written contracts *Page 196
existing between you and the plaintiff in this cause on May 24, 1934, other than the sales agreement of January 2, 1934, modification agreement attached thereto and dated March 5, 1934, and February 12, 1934, and the continuous credit agreement dated January 2, 1934, copies of all of which are set out as Exhibits to plaintiff's complaint in this cause and marked `Exhibits "A" and "B".'
A. Yes, there were prior agreements.
14. Q. If your answer that there were other contracts existing between you and the plaintiff on May 24, 1934, set out the terms and conditions of such additional contracts.
A. They agreed to let me return merchandise and the agreement dated Jan. 2, 1934, should have been so worded.
18. Q. Did you ever store any tires for the credit of the plaintiff herein as your attorney indicated you would in his letter of June 12, 1934, to the plaintiff herein and if so, where were said tires stored and where are such tires now?
A. Yes, Indiana Auto Supply Company, West 5th Avenue, Gary, Indiana, and 528 Carolina St., Gary, Indiana.
19. Q. If you answer that such tires were stored as asked in the previous question, then state the quantity and sizes of the tires so stored.
A. Inventory attached hereto."
While the procedure followed is irregular to say the least, yet it clearly appears that appellant was in no way harmed by the procedure followed. The questions and answers had they been 2. admitted could in no way change the result of the trial in view of the position taken by the court as to the law governing the controverted questions presented. We do not think there was reversible error in the action taken by the court.
The contract sued upon contains the following provision:
"In case of a decline in Company's established dealers' prices during the term of this continuous credit, the price protection to the Dealer, as provided *Page 197
in paragraph 2 hereof, shall extend to the Dealer's entire inventory of Kelly Springfield stock on hand and unsold at the date of such price decline, it being understood that Company's credit memorandum rebating the Dealer for the difference in price shall be applied toward the reduction of this Continuous Credit.
"In the case of an increase in Company's established dealers' prices during the term of this Continuous Credit, the Company shall reinvoice to the Dealer's current stock on hand representing said Continuous Credit, to the Extent of $2,000.00 in value at Dealer's former buying price, it being understood that this Continuous Credit shall thereupon be increased by the amount of Company's invoice billing such difference in value."
Appellant contends that by the above provision of the contract the appellee had the right to either lower or raise the price of the merchandise after it had been delivered to appellant, 3. and for that reason the merchandise was not sold to appellant but was merely a consignment. It will be noted that nowhere in the contract was there any reservation of title to the property reserved in appellee. Appellant was free to sell or dispose of the goods received from appellee, at any price he chose, or in any manner he desired without regard to appellee. Appellee had no control over appellant's selling price or manner of sale, and under the contract appellant had obligated himself to pay for the merchandise received from appellee, regardless of whether he had resold it or not. These are "earmarks" of a sales agreement and are inconsistent with the theory of a consignment agreement. John Deer Plow Co. v. Mowry (1915), 222 Fed. 1;Peoria Mfg. Co. v. Lyons (1894), 153 Ill. 427, 38 N.E. 661;Whitman Agricultural Co. v. Hornbrook (1899),24 Ind. App. 255, 55 N.E. 502.
We do not think the above quoted provision in the contract, whereby appellee would have the right to *Page 198
protect itself against a rise in prices or to give appellant the benefit of a decline in price would have the effect of relieving appellant from paying for merchandise shipped by appellee and accepted by appellant under the contract.
We find no reversible error. Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3431241/ | On September 3, 1931, plaintiff, as the owner and holder of a note and mortgage of $31,000 against the real estate in question, commenced an action thereon for judgment, decree of foreclosure, and receivership to collect rents. A judgment for the full amount and decree of foreclosure was entered and the property ordered sold. The property sold for $2,500 less than the amount due, leaving a deficiency judgment of $2,500 against James D. Andrews and Olive R. Andrews, makers of the note and mortgage.
The mortgage contained a receivership clause, and pledged the rents and profits of the real estate for the payment of the principal amount.
In the petition of foreclosure, plaintiff asked for a lien against the rents and profits and for the appointment of a receiver to take possession and collect the same.
The note and mortgage were executed and duly recorded as a real estate mortgage in the latter part of 1926, but not as a chattel mortgage.
In 1928, and prior to the commencement of the foreclosure proceedings, the defendants, James D. Andrews and his wife, leased the property in question to their son, Dean Andrews, who was unmarried and lived with his parents on the property in question, both before and after the acquiring of the lease.
The lessee, in consideration of said lease, agreed in writing to maintain his parents in comfort during the remainder of their lives, *Page 1051
furnish them a home, and pay them, in addition, such additional sums of money as they might request.
[1] I. The lessee Dean Andrews claimed the right to possession. The plaintiff contended there was no lease, and claimed it was entitled to the appointment of a receiver to take possession of the real estate. The difficulty with plaintiff's contention is that in its petition it not only conceded, but claimed, that the son was in possession under a lease. The defendant Dean Andrews also claimed right to possession under his lease.
In view of these concessions by both parties, the plaintiff cannot be heard to say there was no lease, or that it had no notice of a tenancy on the part of said Dean Andrews.
[2] The real estate was sold under foreclosure on November 25, 1931, and the period of redemption has now expired. Therefore, a receiver cannot now take possession. This part of the prayer of plaintiff's petition has now become moot, and therefore no possession can be ordered given to a receiver at this time.
[3] II. Both parties claim that the defendant, Dean Andrews, was a tenant in possession under a lease. As the lease was executed before the commencement of foreclosure proceedings, the mortgagee would not be entitled to any of the rents paid prior to the commencement of this action. The law is well settled that the holder of a mortgage containing a pledge for rents and receivership has a lien on unpaid rents from the commencement of the proceedings, and is entitled to any rents still due and accruing thereafter. While the evidence does not show the exact amount of rents unpaid during that period because of the character of the consideration, it does show that the consideration or rents from the commencement of these proceedings until the expiration of the redemption period have not all been paid. The plaintiff would therefore be entitled to the appointment of a receiver for the collection of the value of such consideration, whatever it may be.
The order of the lower court, so far as it refused to order possession of the real estate in a receiver, is affirmed. That part of the order refusing the appointment of a receiver for the collection of rents due is reversed.
As the appointment of a receiver would involve unnecessary expense in additional litigation, it is hereby ordered that this case be remanded to the lower court, with leave to the plaintiff to prove *Page 1052
up the amount of unpaid rent due after the filing of the foreclosure and receivership proceedings to and including the year 1932. — Affirmed in part; reversed in part.
All Justices concur except EVANS, J., who dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444427/ | Affirming.
The question presented is whether a common carrier of passengers by motorbus, operating between fixed termini, both intrastate and interstate, under certificates issued by the Interstate Commerce Commission and the Division of Motor Transportation of Kentucky, and complying with the statutes relating to such operations, is required to register its busses with a county court clerk under the provisions of Section 2739g-2a et seq. of the Statutes. The circuit court adjudged that the appellee, Dixie Traction Company, which operates a system of busses in Kenton, Campbell and Boone Counties, Kentucky, and into Cincinnati, does not have to comply with those statutes. The county clerk of Kenton County challenges the correctness of that declaratory judgment. The Attorney General, representing the appellant, submits *Page 337
that its effect is to deprive the public of the protection of the police regulations afforded by the registration of motorcars with the county clerk and to exempt the owners from the payment of the 3 percent sales or use tax imposed on every motor vehicle by Section 4281i-2 of the Statutes.
Frequent changes in the statutes relating to motorcars have created confusion, and the lack of related codification makes interpretation and application difficult. A detailed consideration of the growth of the law and the development of regulation of motor vehicles appears necessary to a solution of the question presented.
The first act, Chapter 122, Acts of 1904, relating to motorcars only prescribed a maximum speed of 15 miles an hour and provided protection for frightened horses. The next act, Chapter 81, Acts of 1910, modified the regulations and provided for the registration of motorcars with the Secretary of State, who issued a metal disc, not over two inches in diameter, containing the registration number, which was to be affixed to the car. There was a further revision in 1914 (Chapter 69), and an amendment in 1918 (Chapter 27). Then came an elaborate revision in 1920, which is the basis and continues as a part of the current Statutes, designated as Chapter 88b, Section 2739g-1 et seq. For the first time an owner was required to register his machine with and pay the fees to the county court clerk of his county as the agent of the State Tax Commission. For the first time also a distinction was made between passenger cars and trucks. A car primarily designed for carrying passengers and having provisions for not more than seven persons was classified as a passenger automobile and all others as trucks. Different fees were provided for the two classes, those for trucks being graduated. In 1922 the Act of 020 was amended so as to require the registration to be with the circuit court clerk instead of the county court clerk. Acts of 1922, Chapters 49 and 87. Further amendments by Chapters 79 and 80 of the Acts of 1924 have no relation to the present question; nor do Chapters 77 and 78 of the Acts of 1924, except to place the registration back with the county clerk. Chapter 81, Acts of 1924, is material. It recognized the business of transporting passengers for compensation by motor vehicles over regular routes or between fixed termini and established its regulation by the State Highway Commission. *Page 338
Certain fees were required to be paid for such motor vehicles and business "in addition to the fees now required to be paid to the county clerk or other proper officer under the law for issuing automobile licenses in procuring licenses." Section 26.
In 1926 there were several amendments. Our case is not affected by Chapters 109, 110, 113 or 114; but Chapter 111 recognized three classes of motor vehicles, namely: (1) passenger cars; (2) those "engaged in hauling passengers for hire," and (3) trucks. The Act changed registration fees for trucks and established regulations concerning weight and width of automobiles and other features not material here. Chapter 112 of the Acts of 1926 repealed, amended and re-enacted Chapter 81 of the Acts of 1924, which regulated the transportation of passengers for hire. It required the payment of substantial fees, based upon carrying capacity and $10 for a tag or plate to be issued by the Commissioner of Motor Transportation and carried on each such motor vehicle. Section 28 of the Act, which is now Section 2739j-28, Statutes, is as follows:
"On a motor transportation company operating between fixed termini or over a regular route complying with the provisions of this act and paying all of the above fees, all local, municipal and state license fees now in force shall cease to be operative as to them and shall also be in lieu of fee now paid to the county clerk for license plates, except the municipalities and other local subdivisions may make reasonable local police and traffic regulations subject to any and all state traffic regulations within their boundary, not inconsistent with the provisions of this act."
This 1926 Act declared all conflicting laws to he repealed and, as we have stated, expressly repealed Chapter 81 of the Acts of 1924, which dealt with the same subject and contained the express provision that the fees therein prescribed were additional to those provided by the Act of 1920, as amended, which required the registration of automobiles of all kinds with the various county court clerks. Here then is a comprehensive code taxing, regulating and fully dealing with a class of motor vehicles not specifically described or recognized as different from trucks in the Act of 1920 and its various amendments, all of which dealt with private motor vehicles *Page 339
generally. There is another act of the same session, Chapter 111, Acts of 1926, which, as above stated, specifically dealt with trucks. It recognized motor vehicles hauling passengers for hire as in a different class.
In 1928, Chapter 109 authorized the issuance of certificates of convenience and necessity for the transportation of persons for hire in interstate commerce and for the regulation of that class of transportation under the authority of and in accordance with the provisions of the laws of the United States.
In 1930 there were a number of changes made in the law relating to motor vehicles, but only Chapter 75 amending Chapter 112 of the Acts of 1926 and Chapter 78 have any relation. The latter act added to the provisions of the 1926 Act requiring as conditions to the issuance of licenses and license plates by the Commissioner of Motor Transportation that there be filed with him a list of drivers employed by the carriers and bond securing payment for any judgment for damages which might be procured against the owner of the vehicles covered thereby. Chapter 75 added provisions as to the operation of motorcars engaged in the transportation of persons for hire and changed the fees which were payable under the 1926 Act.
In 1932, of the several acts relating, to motor vehicles, only two have any relation here. Chapter 101 changed the fees payable for each motorcar used primarily for the transportation of persons for hire. Chapter 104, without express amendment of any existing law, made extensive provisions for further regulation of the transportation of persons and property for hire on the highways of the state. This act accentuates the distinction which had been theretofore drawn between motor vehicles used by common carriers and automobiles used privately and definitely required to be registered with county clerks. It subjects the former to more definite and direct control by the State Tax Commission.
In 1934, Chapter 101 reduced license and registration fees for ordinary passenger cars, and Chapter 102 changed the fees for trucks. Chapter 103 amended Chapter 104, Acts of 1932, by levying an excise tax based upon mileage of cars used for the transportation of persons for hire. It likewise changed existing registration *Page 340
fees and licenses based upon seating capacity. Chapter 107 amended the statute with reference to the duties of county clerks concerning the registration of automobiles with and the collection of fees and the issuance of plates by them, but made no reference whatever to vehicles required to be registered with the Commissioner of Motor Vehicles. Chapter 19 of the 1934 Extraordinary Session of the legislature again changed the registration fees for ordinary passenger cars and in addition imposed on every motor vehicle, subject to license in the state, a tax equal to 3 percent of the retail sales price. Chapter 20 again recognized the difference between trucks and automobiles mentioned in Section 2739g-2 of the Statutes (ordinary automobiles) and those engaged in hauling passengers for hire. It changed the registration fees for trucks and imposed the 3 percent sales tax on them.
In 1936, Chapter 64 modified the statute relating to the operation of motorcars carrying passengers for hire. Chapter 65 again changed registration fees for ordinary passenger automobiles, and Chapter 66 did away with all such fees and licenses except $4.50 registration fee and 50 cents for the clerk for ordinary passenger cars, and $2 for each motorcycle. Other acts are not material.
In 1938 there was additional legislation relating to the operation of motorcars, licenses and fees and the protection of patrons by requiring insurance indemnity from common carriers required to be registered with and licensed by the director of motor transportation. In 1940 only changes were made in the fees for trucks and for busses and trucks used in religious work. In making these changes there was an express exception of motor vehicles engaged in hauling passengers for hire as being of a different classification.
Throughout this maze of amendments and new enactments there stands out clearly, beginning with 1926, a different treatment of motor vehicles used by common carriers for transportation of passengers between fixed temini. Though there has never been a specific statement that such automobiles do not have to be registered with the county clerks as was originally required, that portion of the statute was clearly repealed by the numerous conflicting acts. As pointed out, beginning with 1926 those vehicles have been definitely regarded independently *Page 341
of ordinary passenger cars and of trucks. It is conceded by the Attorney General that the provisions of Section 2739o-5, Kentucky Statutes Supplement 1939, exempt the owner of buses from the payment of taxes and fees required when it registers them. It seems to us that the relief from the payment of those fees, including, that which the county clerk would receive for his services, and the issuance of licenses and license plates by the Commissioner of Motor Vehicles, together with the vast development of this mode of transportation, with the interchange of busses over different routes in different counties, all establish that it was not the intention of the legislature that such busses or vehicles be registered with any county clerk under the terms of Section 2739g-2a. The exacting control of common carriers of passengers by motor vehicle has been substituted for the police regulation embraced in the requirement of registration with and issuance of plates by the several county clerks.
But the method of registration with the Commissioner of Motor Transportation, and resulting identification by tags issued by that officer, cannot have the effect of exempting such vehicles from the payment of the usage tax prescribed by Section 42S1i-1 et seq., of the Statutes, since the reference in Section 42S1i-2 to registration with County Clerks merely states the time of payment, and registration with the Commissioner of Motor Vehicles would by implication be the time of payment on busses registered with him.
The judgment being in accord with these views, it is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4030877/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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IN THE INTEREST No. 08-16-00147-CV
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OF A.L.P. AND G.J.P., Appeal from the
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CHILDREN. 78th District Court
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of Wichita County, Texas
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(TC# 184,275-B)
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MEMORANDUM OPINION
Appellant has filed a pro se notice of nonsuit stating that he no longer wishes to pursue
the appeal. We have construed the notice as a voluntary motion to dismiss the appeal pursuant to
Rule 42.1. See TEX.R.APP.P. 42.1(a)(1). We grant the motion and dismiss the appeal. Costs of
the appeal are taxed against Appellant. See TEX.R.APP.P. 42.1(d).
STEVEN L. HUGHES, Justice
August 31, 2016
Before McClure, C.J., Rodriguez, and Hughes, JJ. | 01-03-2023 | 09-02-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486279/ | Mary Dallas, a child two years old at the time of the accident, was run over and injured by a bakery truck as it was being backed away from its parked position on the wrong side of a street or road in the outskirts of Baltimore City. By her father and next friend she sued the driver, John Diegal, and the owner, Capital Bakeries, Inc., for damages on the ground of the driver's alleged negligence, and obtained a verdict of $1,200 from a jury in the Superior Court of Baltimore City. The trial judge granted the defendants' motion for judgment n.o.v, and it is from this judgment that the plaintiff has appealed.
The facts of the case are undisputed. The above named driver of the truck while on his assigned route about 11 o'clock on the morning of July 8, 1942, "pulled over" to the left or wrong side of the road adjacent to the sidewalk leading to the front porch of appellant's home. The mother of the infant made some purchases from him and then started toward her front door. As she did so she heard a scream and, turning around, saw him "pick Mary up in back of his truck." She did not see the child at any time while she was conversing with, or purchasing articles from, the bakeryman and "had no idea that Mary was away from the rear of the house," where she had been playing with her little brother under the care of a thirteen year old cousin, William A. Dallas. William saw the truck when it drove up in front of the house and kept on playing with the boy. The next thing he knew Mary was gone. When he went to look for her *Page 374
he saw the truck driver pick her up at the rear of the truck, toward the middle of the road. There were no eyewitnesses to the accident and none who saw her even leave the yard. The testimony of Diegal, corroborated by that of his helper, Frank J. Plunkett, was that "there was nothing in sight and no one around" when the former started to move the truck away from the Dallas home, although they both looked to see that the way was clear.
On this record of facts it is claimed for appellant that there was, at least, "slight evidence" of negligence sufficient to have warranted submission of the case to the jury and, particularly, to have defeated the motion for judgment n.o.v. The two facts singled out as the basis for this contention are: (1) Parking on the wrong side of the street facing on-coming traffic — admittedly a violation of the statute, and (2) moving from such position in reverse — described as an "irregular" operation. It is not suggested that there is any evidence in the record indicating that the parked position of the truck or its reverse movement caused the accident.
The law is clear and explicit as to both of these points and is adverse to the appellant. It is the universally accepted rule that mere violation of a statute or ordinance will not support recovery in a negligence case unless it be further shown by legally sufficient evidence that the alleged negligence was the proximate cause of the injuries. That rule has been repeatedly stated by this Court and is in conformity with the recognized law on the subject in other jurisdictions as well.
The early case of Philadelphia, W. B.R. Co. v. Stebbing,62 Md. 504, 517, expresses the principle in these words: "It must appear that the negligent breach of the duty imposed by the ordinance was the direct and proximate cause of the injury complained of, and that such injury would not have occurred but for the violation of that duty." This has been reaffirmed in a number of cases since then, and only recently in Buczkowski v.Canton R. Co., 181 Md. 377, 379, 380, 30 A.2d 257, 258, in *Page 375
which the rule is thus summarized: "It has been frequently decided by this court that the violation of a statute will not support an action for damages on account of an injury sustained, unless such violation is the proximate cause of the injury."
Other cases directly in point are: Gloyd v. Wills,180 Md. 161, 23 A.2d 665; People's Service Drug Stores, Inc. v.Somerville, 161 Md. 662, 665, 158 A. 12, 80 A.L.R. 449; GreerTransportation Co. v. Knight, 157 Md. 528, 146 A. 851; Hopper,McGaw Co. v. Kelly, 145 Md. 161, 125 A. 779; City ofHagerstown v. Foltz, 133 Md. 52, 104 A. 267; Gittings v.Schenuit, 122 Md. 282, 90 A. 51; Chamberlain v. Riddle, 1944,155 Pa. Super. 507, 38 A.2d 521; Ferranti v. Capital TransitCo., D.C. Mun. App. 1944, 38 A.2d 116. See also Shaw v.Wilcox, Mo. App., 224 S.W. 58, where it was held that defendant was not negligent, per se, in being on the left side of the street where his purpose in going there was to stop at a house.
The universality of the rule is indicated by the statement of it, supported by cases from various jurisdictions, inBlashfield's Cyclopedia of Automobile Law and Practice, Perm. Ed., Vol. 4, Sec. 2591, as follows:
"The fact that, while the driver of a motor vehicle is violating a statute or ordinance, relating to the rules of the road, or use of the street by motor vehicles, injuries are inflicted or sustained in the operation of such vehicle, does not create a cause of action for the injuries inflicted, or preclude recovery for an injury sustained, unless such violation is the proximate cause of the injury."
"Whether the violation, at the time of the injury sustained or inflicted in the operation of a motor vehicle, of an ordinance or statute regulating traffic on the highway, is regarded as negligence per se, or otherwise, is immaterial in the application of the above rule, as there is the same necessity for the application of the doctrine of proximate cause in an action based on the violation of a statute as in the ordinary negligence case involving no violation of a statute." *Page 376
Still further emphasizing the necessity of establishing a casual connection between the injuries and the alleged negligence in a given case, the language used in the "Restatement of the Law" — Torts (Negligence), Sec. 431, is conclusive: "While the casual relation between the actor's conduct and the other's harm is, in theory, immaterial until the actor's negligence is established, in practice, courts often consider the causation question without inquiring into the negligence problem. This they do when the negligence of the actor is doubtful but when they are clearly of the opinion that the actor's conduct cannot be regarded as a substantial cause of the other's harm, so that even were the actor negligent he could not be held responsible."
As to the conduct of the driver, Diegal, the undisputed testimony shows that both he and his helper looked to see the conditions in and about the truck before he started it in motion. He was not chargeable with any further duty. "A driver of a truck is under no legal obligation to make a search around and under his car `lest a child too young for discretion and undirected by parents has tucked herself away in an obscure place, beyond the casual and convenient notice of the driver'." Williams v. Cohn,
1926, 201 Iowa 1121, 206 N.W. 823, 825.
The only other point made by the appellant is that the backward, or reverse, motion of the truck was an "irregular" operation of it which, coupled with the other undisputed fact that the motor vehicle was parked in violation of the statute, was sufficient evidence from which a jury could have found that there was actionable negligence on the part of the truck driver. We find no support whatever for this contention. Not only is there nothing unlawful in the mere act of backing a motor vehicle but it has been expressly pointed out by this Court that in a case of this character there is no distinction between the respective rights of motorists and pedestrians by reason of the direction in which the traffic is moving. Universal Credit Co.v. Merryman, 173 Md. 256, 195 A. 689. Under any circumstances, it is essential *Page 377
that the causal connection between the alleged negligence and the accident be established. As the facts shown by the record in the instant case fail to meet this requirement, the trial judge was clearly correct in granting the judgment n.o.v.
Judgment affirmed, with costs. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486292/ | This is an appeal from a decree against defendants Messick in favor of plaintiffs, Smith, for $7742.89 and in favor of defendant Baker for $2045.78, and for enforcement of mechanics' liens for these amounts against a dwelling house built for defendants, for which Baker furnished the heating and plumbing. The question at issue is how much the Messicks owe for the house.
Plaintiffs contend that the house was built on a time and material basis; the Messicks that it was built under a written contract, dated August 12, 1946, between Frederick S. Messick and plaintiffs, for all the work and materials described in the specifications [including heating *Page 664
and plumbing] for $6850, payable within thirty days after completion, and that he thereafter agreed to pay $1000 for extra work, a total of $7850. Messick has paid $2519.14 to plaintiffs and $423.53 to Baker and has tendered plaintiffs the balance of $4907.33 [less $32.53, because of a clerical error not now disputed]. The Messicks say that plaintiffs must pay Baker. On a time and material basis, the gross amount payable was $12,731.34 ($10,262.03 to plaintiffs and $2,469.31 to Baker), of which $9,788.67 (the aggregate amount of the decree) is unpaid.
Messick was a discharged veteran. As such, he was entitled to make application for "priorities assistance" in purchasing materials for building a house for his own occupancy. Priorities Regulation 33, as amended June 14, 1946, par. (b)(1); C.F.R. § 1946 Supplement, Title 32, sec. 944.54. On the prescribed Form C.P.A. 4386, he made such application, dated July 24, 1946, and priority was "assigned" to him by the Federal Housing Administration under date September 5, 1946. A proposed sales price was required to be stated, "to be applicable in the event of any future sale of the house." The proposed maximum sales price could not exceed $10,000. N.H.A. Regulations 90-1, effective April 12, 1946; C.F.R. Title 24, secs. 707.1-707.2. In Messick's application the blank "maximum proposed sales price" was originally filled in, by typewriter, "$8500", which by pen was cancelled and "$7750" substituted. The photostat in the transcript does not show whether this modification was noted in red. Below Messick's signature and above the signature of the F.H.A. agent is a notation, presumably by rubber stamp, "The beginning of any construction approved under this application will constitute acceptance by the applicant of the modifications noted in red in his application. Otherwise the approval of this application is void." On Form 4386 the applicant certifies "that the facts herein set forth are true and correct to the best of my knowledge and belief" and "that I will construct * * * the dwelling units, described *Page 665
in this application in accordance with the description given, and that I will comply with the provisions of Priorities Regulation 33, including, wherever applicable, the requirements with respect to preferences for veterans and to sales prices, costs and rents." Form 4386 contains the statement: "Section 35 (A) of the United States Criminal Code, 18 U.S.C. § 80 [1948 Revised Criminal Code, 18 U.S.C.A. § 1001], makes it a criminal offense to make a willfully false statement or representation to any department or agency of the United States as to any matter within its jurisdiction."
Plaintiffs say that in June, 1946 the Messicks showed them plans for a house and asked approximately how much it would cost to build and were told approximately $7000. On July 24, 1946 Lee Smith signed an application for, and obtained, a building permit; in the application the "Estimated Cost" stated was "$7000." Work was started in July. Lee Smith testified that: On August 12th Messick "had a form letter from the agency that approved these priorities", which said, in effect, "Your application for priority has not been approved for the following reasons", and had a check opposite a paragraph to the effect that the application for priority had not been approved because no contract accompanied the application for priority. Messick asked him whether he would sign some sort of a paper to satisfy this requirement. He told Messick he would, but they would still reaffirm their agreement, "there would be no contract on the job, it would be time and material". He took a blank form of contract and made it out, typed it, it was signed by Messick and him, and presumably was sent by Messick to Baltimore in response to the letter. Where he got the figure of $6850 in the contract, "I really don't know". One of the things the federal administrator was interested in, he should say, was the price the house was going to cost. The whole purpose in filing the contract was to get a priority so that he could build the house. His statement in the contract that he agreed to build the house for $6850 was not true; in that it represents *Page 666
an agreement to build the house for $6850, it is false; he would not say it is a fraud.
Oscar Smith, the father, testifies that he knew he couldn't have bought the material unless he had had these priorities.
Messick flatly contradicts the Smiths. He testifies, in effect, that the contract of August 12, 1946 was a real contract, executed at Lee Smith's request, and that Smith said he was going to put it at $6850 "to protect himself" by an increase of $300 over a previously agreed price of $6200 plus an extra $350. He also testifies that Smith "was doing all the negotiation with the people in Baltimore to get the priorities, although it was being mailed to me because I was the owner".
Two questions are presented: 1. Was the real contract the written contract of August 12, 1946 or an oral contract on a time and material basis? 2. If the latter, are plaintiffs barred from recovery because of their participation in the false representation by which the priorities necessary for performance of the contract were obtained?
1. The first question is one of veracity. It might naturally be supposed that the written contract was honest and genuine and was not a false representation made to obtain priorities. However, the lower court saw and heard the witnesses and reached the opposite conclusion. We cannot say that this conclusion was clearly wrong. On the contrary, without reviewing the evidence, we may say that the court's conclusion is supported by circumstances, especially by Messick's conduct in paying a bill on account, on a time and material basis, after checking it and correcting an error of $1, and also paying two similar bills of Baker. Subject to consideration of the second question, we may assume, as the lower court held, "that parol testimony may be admitted to show that what purports to be a written contract between the parties was never intended, in fact, by said parties to be a contract. Southern [Street-Railway] Advertising Co.v. Metropole [Shoe Mfg.] Co., 91 Md. 61 [46 A. 513]; Birely Sons v. Dodson, 107 Md. 229 [68 A. 488]." *Page 667
2. Messick contends that, on this view of the facts, plaintiffs are barred from relief in equity because they do not come into court with clean hands. On this question the lower court says, quoting Thomas v. Klemm, 185 Md. 136, 142, 43 A.2d 193, that the clean hands maxim "closes the doors of a court of equity to any person who has violated any of the fundamental principles of equity relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant", but also quotes from the same opinion, "It is an accepted rule that if the alleged wrongful conduct of a complainant appears not to have injured the defendant, the maxim cannot be successfully invoked.First National Bank of Catonsville v. Carter, 132 Md. 218
[103 A. 463]; * * *", and then concludes, "We cannot see how the defendant, Messick, has been injured by the signing of the alleged contract. Evidently, it was the means by which the necessary priorities were secured and the house completed to the benefit and advantage of Messick." If this is a correct application of the sentence last quoted from Thomas v. Klemm,
then Schaeffer v. Sterling, 176 Md. 553, 6 A.2d 254 (cited inThomas v. Klemm), was wrongly decided, since the bank — and its depositors — by receipt of money obtained by duress by the directors from the parents of the cashier-embezzler, manifestly were not injured, but were benefited. If this doctrine is a correct application of the policy underlying price control legislation and other prohibitory legislation, then the courts are open to every bootlegger or "black market" dealer (if any) who may give credit to his customers, for collection of their unpaid accounts.
In the first two of five Thomas M. Cooley Lectures at the University of Michigan in April, 1949, on "Some Problems in Equity", Professor Chafee discusses at length "Coming into Equity with Clean Hands." 47 Michigan Law Review 877-906, 1065-1096. He traces the history of the maxim to its first statement in its present form in 1787 by Chief Baron Eyre in Dering v. Earl ofWinchelsea, 1 Cox Eq. 318 and farther back *Page 668
to "its appearance in quite different language" in 1728 in "Maxims of Equity" by Francis. He quotes from Francis a footnote, "The iniquity must be done to the defendant himself", which he characterizes as "especially repudiating the modern doctrine", but which foreshadows the sentence in Thomas v. Klemm on which plaintiffs rely and similar statements in other jurisdictions. At the beginning of the first lecture Professor Chafee in advance sums up his conclusions by saying that he proposes "to show that the clean hands doctrine does not definitely govern anything, that it is a rather recent growth, that it ought not to be called a maxim of equity because it is by no means confined to equity, that its supposed unity is very tenuous and it is really a bundle of rules relating to quite diverse subjects, that in so far as it is a principle it is not very helpful but it is at times capable of causing considerable harm." 47 Michigan Law Review 878.
We have no occasion to pursue the details of Professor Chafee's interesting iconoclastic discussion, which is revolutionary in classification and nomenclature, not in application, of legal principles. In Thomas v. Klemm, supra, and also in FirstNational Bank v. Carter, supra, the court found no fraud on the part of the plaintiff and therefore no occasion to apply either the clean hands maxim, as broadly stated in Thomas v. Klemm, or the qualification as to injury to the defendant. The instant case is not within the qualification but is within the clean hands maxim eo nomine or the underlying principle under some better name (e.g., ex dolo malo non oritur actio), and illustrates Professor Chafee's statement that the maxim "ought not to be called a maxim of equity because it is by no means confined to equity." When a plaintiff's wrongful conduct is not contrary to law or public policy, he is not barred unless it injures the defendant. "Equity does not demand that its suitors shall have led blameless lives." Loughran v. Loughran, 292 U.S. 216, 229, 54 S.Ct. 684, 689, 78 L.Ed. 1219; Meeks v. Meeks, 189 Md. 80, 87, 54 A.2d 334, 337. *Page 669
A builder who sues to enforce a mechanics' lien or foreclose a mortgage is not barred because he beats his wife or in some unrelated matter has cheated the Government out of taxes. But when plaintiff and defendant have participated in fraudulent or illegal conduct, contrary to law or public policy or in fraud of the law itself, and are in pari delicto, plaintiff cannot maintain suit — at law or in equity — directly arising out of the misconduct. Holman v. Johnston, 1 Cowp. 341, 343; Roman v.Mali, 42 Md. 513, 561-562; Oscanyan v. Arms Co., 103 U.S. 261, 267, 26 L.Ed. 539.
When a transaction involves violation of a statute the clean hands maxim — or the maxim ex dolo malo — is not applied if, by application of the maxim, the legislative purpose would not be furthered, but would be hindered or thwarted. Frost Co. v.Coeur D'Alene Mines Corp., 312 U.S. 38, 43, 61 S.Ct. 414, 85 L.Ed. 500. When the plaintiff is one of a class for whose protection or benefit the statute was enacted, he may be regarded as not in pari delicto. The legislative purpose of price control legislation and veterans' legislation is to protect the public against inflation and waste and to protect and benefit veterans in obtaining low-price housing. Under the Emergency Price Control Act, 50 U.S.C.A. Appendix, § 901 et seq.,
recovery or restitution of the excessive — and unlawful — portion of prices or rents paid is permitted both by express statutory provision, (Lambros v. Brown, 184 Md. 350, 41 A.2d 78,) and also by broad construction of more general provisions, in the light of the purposes of the act. Porter v. Warner Holding Co.,328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332. Veterans' legislation reflects the general purposes of price control legislation and the special purpose of protecting and helping veterans. Cf.Heinicke v. Parr, 6 Cir., 168 F.2d 194; Keele v. Holt, 5 Cir.,171 F.2d 480; Elmers v. Shapiro, Cal.App., 205 P.2d 1052, 1060. In the instant case plaintiffs say the purpose of the price limitations in the application for priorities was to prevent profiteering by veterans. If it be assumed that this was *Page 670
one of the purposes, it is none the less clear that the primary purpose of the limitation upon sale by the veteran was the same as the purpose of the limitation upon sale to a veteran by a builder, viz., to prevent inflation and waste and to help the veteran and protect him from extortion — and from his own extravagance. Naturally the governmental agency would ask to see the contract whether for a fixed price or on a cost-plus basis. It is incredible that the agency would approve an application, for a house which would or probably might cost $12,000 or $13,000, on an application which named a maximum price of $7,750 and could not have named more than $10,000.
Interpretation or application of the terms or underlying purpose of federal statutes, or regulations under them, is a federal question. Awotin v. Atlas Exchange Nat. Bank, 295 U.S. 209, 213-214, 55 S.Ct. 674, 79 L.Ed. 1395; Deitrick v.Greaney, 309 U.S. 190, 200-201, 60 S.Ct. 480, 84 L.Ed. 694;Frost Co. v. Coeur D'Alene Mines Corp., 312 U.S. 38, 40, 61 S.Ct. 414, 85 L.Ed. 500. To permit plaintiffs to recover on a contract performed by means of priorities obtained by false representation, in which plaintiffs actively participated, would be contrary to the true interpretation and application of the controlling federal legislation and regulations. We are not called upon to say whether, if Messick had paid the price now demanded, he could have maintained suit to recover any part of what he had paid.
The evidence does not show participation by Baker in false representation. The decree as to Baker should be affirmed, payable out of the $4874.80 tendered. Messick does not dispute payment of the amount tendered — or the $32.53 omitted by mistake in making the tender. In exceptional cases it has been held that by estoppel one may be required to perform a written contract which he signed with the understanding that it should not be binding but that it should be falsely represented to a public official as a binding contract. Thus estoppel effects a virtual specific performance of the false representation. *Page 671 Deitrick v. Greaney, 309 U.S. 190, 196-197, 60 S.Ct. 480, 84 L.Ed. 694; New v. Page, 144 Md. 606, 610-611, 125 A. 403. The primary purpose of price legislation and veterans' legislation is compliance and restitution. There should be a decree for plaintiffs for $4,907.33, the corrected amount of the tender, less $2,045.78, the amount of Baker's decree.
Decree affirmed in part and reversed in part, with costs, andcause remanded for passage of a decree in accordance with thisopinion.
MEMORANDUM ON MOTION FOR REARGUMENT
PER CURIAM:
Plaintiffs ask a reargument or a modification of the opinion to permit them to recover on a time and material basis for extra work not covered by the written contract and, therefore, (they contend) not tainted by the false representation of the written contract as genuine. In permitting plaintiffs to make their representation good, instead of losing even the compensation tendered by defendants, we made a somewhat novel, though we think sound, application by analogy of principles applied in somewhat different cases. Assuming, without deciding, that the principle applied should be carried as far as plaintiffs now ask, the evidence is quite inadequate to support any larger recovery than we have allowed. We do not think that at this stage a wrongdoer, at least in pari delicto if not in majore delicto, should be given a further opportunity to retry the case on a theory not suggested at the trial below.
Motion overruled. *Page 672 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486293/ | J. Edward Crane, the appellee, on the 30th day of January, 1915, filed a bill in the Circuit Court for Baltimore County, in equity, against Ruth Alma Crane, his wife, the appellant, for a divorce a vinculo matrimonii, on the ground of adultery, and for the care and custody of the two infant children.
By the third, fourth and fifth paragraphs of the bill it is averred:
3rd: That ever since the marriage the plaintiff has always been a kind, faithful and affectionate husband, and his conduct above reproach.
4th: That Ruth Alma Crane, his wife, the defendant, has at divers times, between January the 1st, 1914, and the filing of this bill, committed adultery with one Edgar H. Paxson, Jr., and with divers other men whose names are to the plaintiff unknown; and
5th: That the plaintiff has not lived or cohabited with his wife since he has discovered the adulteries.
On the 8th of February, 1915, the defendant answered the bill, denying the material allegations set out therein and charging that the averments in paragraph four of the bill were false and untrue, because her conduct towards her husband had always been kind, chaste and above reproach.
The case was heard upon bill, answer and proof, and from a decree dated the 9th of June, 1915, granting an absolute divorce to the husband, and the custody of the minor children, the wife has appealed.
Subsequently, on the 29th of October, 1915, the husband, J. Edward Crane, entered an appeal from the order of Court, dated October 1st, 1915, directing the payment of certain counsel fees, by the husband, and the cost of the preparation of the record, on the wife's appeal, to this Court, and alimony to the wife during the continuance of this litigation.
The controlling question on the first appeal, is whether the testimony, as disclosed by the record, sustains and supports, *Page 216
the charge of adultery, as alleged in the plaintiff's bill.
The rules of law to be applied in determining cases of this character have been repeatedly announced by the decisions of this Court and can admit of no controversy. They will be found clearly stated and adopted in a number of well considered cases; seeKremelberg v. Kremelberg, 52 Md. 553; Shufeldt v.Shufeldt, 86 Md. 529; Rasch v. Rasch, 105 Md. 504; Robins
v. Robins, 121 Md. 695; Marshall v. Marshall, 122 Md. 694, and Thiess v. Thiess, 124 Md. 296.
The proof in the case at bar is voluminous and as usual in such cases, a large part of it is conflicting and contradictory, but we are compelled to hold, after a careful and deliberate consideration of all the testimony in the record before us, that the charge of adultery against the wife has been satisfactorily and conclusively established, and the husband is entitled to the relief sought by the bill.
It appears, that the parties to the controversy were married on December 19th, 1909, in Wilmington, Delaware, and lived together as husband and wife, until on or about the 19th of December, 1914. The issue of the marriage, are two children, Francis Earl, age three years, and Joseph Edward, age four years, both of whom are now living.
The bill charges adulterous intercourse between the defendant and the co-respondent, Edgar H. Paxson, Jr., between the first day of January, 1914, and the time of the filing of the bill.
The basis of the charge and the guilt of the defendant, rests upon the established fact, that she left Baltimore on December 10th, 1914, in company with the co-respondent Edgar H. Paxson, Jr., on the steamer Middlesex, running from Baltimore to Fredericksburg, Virginia, occupying the same state-room No. 2, known as the "bridal chamber," from Thursday until Saturday when they left the boat, and registered at the Princess Ann Hotel, as E.H. Hamilton and wife, Leesburg, Virginia, as appears from the hotel register of Saturday, December 12th, 1914. They were assigned to *Page 217
the same bed-room, in the hotel, and passed as man and wife, both on the steamer and while at the hotel.
If the testimony presented upon the part of the appellee supports the facts, as thus stated, it is impossible to reconcile it with the innocence of the defendant, and there can be no question as to the correctness of the conclusion reached by the Court below as to her guilt.
It will be seen, that the identification of the wife and Paxson, as the persons who occupied the state-room on the steamer for two days and nights under the names of E.H. Hamilton and wife, is positive and certain.
The stewardess and the waiter, Bundy, employed on the steamer, identified Mrs. Crane, at her house, and in the Court room, during the trial, as the woman who occupied the state-room with the man, who was registered on the boat, as E.H. Hamilton and wife.
Mr. Reamy, the manager of the hotel, in Fredericksburg, is positive and certain that the picture of Mrs. Crane, is the picture of the woman, who on December 12th, registered at the hotel as the wife of E.H. Hamilton, and they were assigned to room No. 307, of the hotel.
The witness Ashby, the clerk at the hotel testified that he is absolutely certain that the pictures of Mrs. Crane and Paxson, are the pictures of the persons who registered at the hotel on December 12th, 1914, as E.H. Hamilton and wife and they went to their room, as soon as he registered. He talked with Hamilton and they were supposed to be a bridal couple.
The signature of Paxson to a lease offered in evidence is not disputed and the handwriting thereon is the same as that on the registry of the steamboat company and the hotel register, at Fredericksburg.
The identification of the defendant and Paxson, as the persons who were on the steamer and at the hotel, in Fredericksburg, Va., on the occasions named, is not only conclusively established by the testimony of disinterested witnesses, *Page 218
who testified in the case, but by other facts and circumstances contained in the record.
Besides this, the testimony of the husband, is strongly corroborated by that of the witness Rettberg, and by the testimony of his brother Francis J. Crane, who was present, at certain interviews between the husband and wife. The absence of the wife from home, on Thursday and returning on Saturday, was shown by the two domestics, Bessie Warfield and Stella Johnson, and by other evidence in the case.
The defense on the part of the wife, was an attempt to show, that she remained at home, upon the dates named, and the household consisted of her mother, the children, her mother's brother and herself. She testified that her husband was not at home and the servants were also absent from the house on the days she is alleged to have been on the steamer and at Fredericksburg, in company with Paxson, the co-respondent.
There is no real corroboration of her defense, except the testimony of her mother and uncle, and this is in direct conflict with her own admissions and the other testimony in the case.
The co-respondent Paxson, was not called as a witness and his absence in no way explained or accounted for. It is stated that he had lived about two years next door to the plaintiff at Catonsville, Md., but had disappeared and his whereabouts were unknown to the plaintiff.
The attempted corroboration of the theory of her defense by the "shoe exhibit," and the testimony of the witness Schier, as to her presence in Baltimore, on the 11th of December, 1914, is too uncertain and inconclusive, to be of any probative force, in the face of the convincing evidence opposed to it.
There is no sufficient evidence to sustain the counter-charge of infidelity or such cruelty of treatment on the part of the husband that would constitute a bar to the relief now prayed.
For the reasons stated we concur in the conclusion reached *Page 219
by the learned Judge below, that the testimony in this case clearly leads to the conclusion of the guilt of the defendant and its decree of the 9th of June, 1915, will be affirmed.
The second appeal is from an order of Court, granting the wife's petition, for counsel fees, alimony pending her appeal to this Court, and for the costs to be taxed and charged for the preparation and printing of the record and the brief, on her appeal to this Court.
As the appellee has complied with the order in every respect, it would seem that the question here presented is practically an academic one, and of no avail.
The rule, as to the power and jurisdiction of the Court to allow counsel fees, costs and alimony to the wife, in cases of this kind, has been recognized by this Court.
In Outlaw v. Outlaw (appeal by the wife), 122 Md. 695, this Court said: "It is well established by the decisions of this Court, that the trial Court had jurisdiction to hear and pass upon the petition of the plaintiff in which she asked for counsel fees and costs incident to her appeal to this Court." SeeChappell v. Chappell, 86 Md. 536; Hayward v. Hayward, 77 Md. XII; Rohrback v. Rohrback, 75 Md. 318, and Buckner v.Buckner, 118 Md. 265.
In Chappell v. Chappell, supra, it is said: "There can be no doubt whatever that a Court of Equity has power to allow alimony to a wife pending a suit for divorce; nor can its authority to require the husband to pay her counsel fees and the costs of the proceeding be disputed. These are not now open questions in Maryland. The amount allowed is regulated by the circumstances of each case and is usually said to rest in the Chancellor's sound discretion."
In Rohrback v. Rohrback, supra, JUDGE ROBINSON, in delivering the opinion of the Court, said: "And it is well settled that alimony may be allowed to the wife on application by her, after an appeal from an order or decree dismissing a bill in divorce proceedings. This was decided in Jones v. Jones,
L.R., 2 Pro. Div. 337. In that case, an application was made by the wife for alimony after an appeal *Page 220
had been taken by her from an order dismissing her petition for a judicial separation; and MELLOR, J., said: `As regards alimony under such circumstances as the present, so long as the wife continues a wife, there is no real reason why she should not have alimony, and it is due to her until on the petition there is a final decision against her.' And it is further said, the Court still had jurisdiction of the parties, and having jurisdiction, it had the power to determine the question as to the right of the wife to an allowance for counsel fees and costs."
In Buckner v. Buckner, supra, the cases in this and other jurisdictions are carefully reviewed, and it is said the rule announced in these cases has been uniformly followed in this State, and the fact that an appeal has been taken does not affect the power of the Court to make the allowance.
In Coles v. Coles, 2 Md. Chancery, 342, the Court said: "The general rule is clear and undisputed, that the wife, in these cases, is a privileged suitor, and that the Court, without inquiring into the merits, and whether she be plaintiff or defendant, will allow her alimony, pendente lite, and a sum for carrying on the suit. The rule is believed to be almost universal, to allow a destitute wife, who has been abandoned, or is living apart from her husband, temporary alimony, and the means of prosecuting or defending a suit for divorce, and this without any inquiry whatever, into the merits. Many of the cases establishing the rule, and explanatory of the reasons upon which it rests, were referred to in Daiger v. Daiger, recently decided by this Court."
This seems to be the undoubted practice in this State and in most of the States of this country; see 2 Bishop on Marriage Divorce, sec. 392, and 2 Nelson on Divorce Separation, sec. 860.
It follows, therefore, as the order on this appeal is free from objection it also be affirmed.
Orders on both appeals affirmed, the costs in this Court andin the Court below to be paid by J. Edward Crane. *Page 221 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486295/ | Appellee was engaged in conducting an agency for the collection of mercantile claims, and needed the services of an attorney at law. He apparently controlled the listing of the name of an attorney for the Baltimore area, in two publications of nation-wide circulation among forwarders of mercantile claims. In September, 1930, he entered into an agreement with appellant, a lawyer, whereby appellant would render legal services to appellee and appellee would procure the listing of appellant's name as an attorney at law in the two publications. The annual expense of maintaining the listing of appellant's name in the publications was to be borne equally by the parties, and the commission earned from the collection of claims received through the listing of the appellant's name in these publications was to be equally divided. Appellee secured the listing of the appellant's name in the publications, paid one half of the annual expense thereof, and the agreement continued in force and effect for over ten years. During this period, and as a part of the agreement, appellant turned over to appellee the claims he received, and appellee endeavored to collect same. In the event he was not successful in collecting a claim he returned same to the appellant, who instituted suit thereon and conducted the legal proceedings to a conclusion. The listing in one of these publications was discontinued, but, at the time, it was agreed if the listing was renewed the original arrangement as to the same would automatically revive. Later on the listing was renewed. *Page 610
This arrangement was profitable and appellee states his share of the profits over the years approximated $1,200.00 annually. He charges, in the month of July, 1941, the appellant breached this agreement by refusing: 1. To allow him to pay one half of the annual expense of the listing of appellant's name in the publications; 2. To pay him one half of the annual profits of the venture, and 3. To turn over to him any accounts for collection, although he is and has always been ready, willing and able to perform all of his duties and obligations under the agreement. He states that appellant has refused to permit him to participate in any way in this business, or to "account to him for such amounts as are properly due" to him "since July, 1941."
On August 21, 1944 (more than three years after July, 1941) appellee filed his bill of complaint against the appellant in the Circuit Court of Baltimore City. Its material allegations have been narrated above. He prays that appellant answer the bill and "discover under oath the income he has received since July, 1941, for all claims that have come into the hands of said respondent (appellant) by reason of respondent's name being inserted in the" two publications "to the present time," and for general relief.
The appellant demurred to the bill, and from an order of the Chancellor overruling the demurrer, with leave to answer in thirty days, this appeal was taken. The appellant assigns several reasons in support of his demurrer, the second thereof being as follows: "That under the allegations of said bill of complaint, the alleged arrangement was terminated over three years prior to the filing of the bill of complaint." As we are of opinion this reason is conclusive on demurrer, it will not be necessary to consider the other matters which appellant contends support the demurrer.
It is apparent from the allegations of the bill that appellee does not claim there is any money due him from appellant prior to July, 1941. At that time appellant completely severed his business relations with appellee regarding *Page 611
the collection of mercantile claims. For more than three years appellee did nothing at all to redress the alleged breach of the arrangement or contract set up in his bill of complaint. And in his bill he sets up no reason or excuse whatever for the delay. It is an equitable principle that mere delay will not bar the prosecution of a right, unless it appears that the delay "works a disadvantage to the party against whom relief is sought." Curtisv. Baptist Union Assn., 176 Md. 430, 435, 5 A.2d 836, 839. On the other hand, if the remedy sought in equity is analogous to a remedy cognizable at law, and the statute of limitations prescribes a time within which the legal action must be instituted, equity will follow the law and bar the action. If this were not so a litigant could circumvent the statute by by-passing the law courts and bring his case in equity. This principle has been decided by this Court, and for years has been the settled law of this State.
An action of account is cognizable at law.
Pleading Practice, Poe (Tiffany's Ed.), Vol. 1, Secs. 51, 318, 320; Wisner v. Wilhelm, 48 Md. 1; Flack v. Gosnell,76 Md. 88, 24 A. 414; Seeley v. Dunlop, 157 Md. 384, 146 A. 271;Johnson Higgins v. Simpson, 165 Md. 83, 87, 166 A. 617.
Article 26, § 9, Flack's Code, 1939, is as follows:
"In all actions brought in any court founded on account, or on which it may be necessary to examine and determine on accounts between the parties, the court may order the accounts and dealings between the parties to be audited and stated by an auditor or auditors to be appointed by such court, and there shall be the same proceedings thereon as in courts of equity upon bills for an account, reserving to the parties, however, the right to a jury trial if demanded."
Article 57, § 1 of the Code aforesaid, provides:
"All actions of account * * * shall be commenced * * * within three years from the time the cause of action accrued." *Page 612
In Wilhelm v. Caylor, 32 Md. 151 (side page 155), Judge Alvey, speaking for this Court, said:
"By the statute law of this State, Act of 1715, Ch. 23 (I Code, Art. 57, § 1), the common law action of account is not only recognized as an existing remedy, but is required to be brought, by express limitation, within three years from the time the cause of action accrued. This being the limitation to the right to have an account taken in an action at law, the question is, whether the same or a different period applies to the analogous proceeding for the same thing in equity; or, in other words, whether it be in the power of the party seeking an account, to avoid the operation of the statute by simply electing to proceed in one form rather than another. We think the statute cannot be so evaded, and that it is equally a bar to a bill for an account in equity as it is to an action of account at law."
In Barnhart et al. v. Western Maryland Railway Co., decided June 11, 1942, by the Circuit Court of Appeals, Fourth Circuit,128 F.2d 709, at page 715, that Court quoted from Judge Alvey's opinion in the case referred to as follows:
"But, instead of its being a legal demand and the subject of an action of account at law, suppose the appellant's right to an account to be only equitable, and for which no other remedy exists but a bill in chancery, is he in any better position in reference to the defence of the Statute of Limitations? Clearly not. In such case, the statute applies strictly by analogy, and bars equally as if the demand was purely legal. The bill in equity is an analogous proceeding to an action of account, and there is no reason why one proceeding should be barred and not the other. They are both equally within the reason and policy of the statute."
"Equity follows the law in applying, according to the facts in each case, the proper period of limitations." Jones v. Burgess,176 Md. 270-277, 4 A.2d 473, 476; Nimmo v. Blick, 128 Md. 326,97 A. 636. *Page 613
The Statute of Limitations, in cases where it applies, can be raised by demurrer as a defense to a bill in equity. Nimmo v.Blick, supra; Belt v. Bowie, 65 Md. 350 (side page 355),4 A. 295; Campbell v. Burnett, 120 Md. 214, 87 A. 894; Syester v.Brewer, 27 Md. 288 (side page 319).
We have not discussed the legality or the ethics of the arrangement between the attorney (appellant) and appellee. It has not been necessary to decide those matters. However, we do not want to be understood as approving the arrangement between a lawyer and a layman who operates a collection agency such as existed in this case.
Order reversed and bill of complaint dismissed, with costs toappellant. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486296/ | This is an appeal from an order of the Circuit Court of Baltimore City enjoining the Mayor and City Council of Baltimore, the Highways Engineer, and the American Sugar Refining Company, and each of them, their respective officers, employees, agents and servants, from changing the grade of Clement Street in said city during these proceedings, and until the further order of court.
This preliminary injunction was granted on the following amended bill of complaint of Charles J. Dobler, the appellee, filed August 9th, 1921:
"AMENDED BILL OF COMPLAINT.
"In the Circuit Court of Baltimore City.
"Charles J. Dobler, Plaintiff, vs. Mayor and City Council of Baltimore, a Corporation; August E. Christhilf, Highways Engineer, and American Sugar Refining Company, Defendants.
"Amended Bill of Complaint Filed Pursuant to the Order of this Court of August 2d 1921.
"To the Honorable the Judge of said Court —
"Your orator, complaining, says:
"First: That he is a resident and taxpayer of Baltimore City, and is the owner of the unimproved fee simple lot in Baltimore City, described as follows:
"Beginning for the same on the northeast side of Fort Avenue at the distance of 275 feet 6 inches southeasterly *Page 636
from the corner formed by the intersection of the southeast side of Woodall Street (formerly Allen Street) and the northeast side of Fort Avenue, and at the southeast side of a house on the lot adjoining the land now being described on the northeast, said place of beginning being the division line between lots 8 and 9 on Plat of Confiscated British Property at Whetstone Point, and running thence southeasterly, binding on the northeast side of Fort Avenue, 315 feet 5 inches to the southernmost outline of the property of the grantor and to the northwest side of a house on the lot adjoining on the southeast; thence northeastearly at right angles to Fort Avenue 466 feet to Clement Street; thence northeasterly on Clement Street 315 feet 5 inches to the northeasternmost outline of lot No. 9, and thence southwesterly 466 feet to the beginning.
"That the said lot was conveyed to him by Sidney Turner Dyer et al., by deed dated April 1st, 1920, and recorded among the Land Records of Baltimore City in Liber S.C.L. No. 3563, folio 455, and is a large and valuable piece of property.
"A certified copy of the said deed is hereto attached, as part hereof, marked `Plaintiff's Exhibit No. 1.'
"Second: That Clement Street is a public street of the Mayor and City Council, bounding your orator's said lot on the north, and runs parallel with Fort Avenue, and is the first street to the north thereof; that your orator's said lot has a frontage on Clement Street of three hundred and fifteen feet and five inches. That the present grade of Clement Street where it bounds your orator's lot was established on or about October 14th, 1909. Plat of plaintiff's said lot is hereto attached as part hereof, marked `Plaintiff's Exhibit No. 2.'
"Third: That the defendant, August E. Christhilf, is the Highways Engineer of Baltimore City, and is charged, among other matters, with the duty of letting such contracts and performing such work as may be necessary in connection with the change of grade *Page 637
of streets as established by the city surveyor. The defendant, the American Sugar Refining Company, has constructed a large and valuable plant near that part of Clement Street which will be affected by the proposed change of grade and is now engaged in carrying out an extensive scheme of improvements. Upon information and belief, plaintiff avers that the proposed change in the grade of Clement Street is a part of the said scheme of improvements being carried out by the defendant, the American Sugar Refining Company, and plaintiff avers further, that the proposed improvement is for the sole benefit and advantage of the said American Sugar Refining Company, and that it is not a public improvement, and that if carried out it will involve the use of public funds for a private purpose.
"Fourth: Your orator further avers, upon information and belief, that the said proposed regrading of Clement Street is to be made pursuant to an agreement between the defendants, the Mayor and City Council of Baltimore and the American Sugar Refining Company, having for its purpose the lowering of the grade of Clement Street in such a manner so that convenient approaches may be made into the plant of said defendant, the American Sugar Refining Company, from the so called Belt Railroad of the defendant, the Mayor and City Council of Baltimore, by means of railroad tracks to be laid in the bed of Clement Street, to the end that cars of the Western Maryland Railroad Company and the Pennsylvania Railroad Company may have access to said plant of the American Sugar Refining Company. That your orator is advised and alleges, upon information and belief, that after the bed of Clement Street had been lowered as aforesaid, it is the intention to lay railroad tracks in said bed of Clement Street, and that said understanding or agreement was entered into with utter disregard of the rights of your orator or of the irreparable damage that would thereby be done on the lot of your orator. *Page 638
"Fifth: Your orator alleges that the effect of the proposed change of grade, if carried out, would be to lower the present grade of Clement Street by an average perpendicular distance of approximately twenty feet throughout that part of Clement Street which bounds your orator's said lot, leaving the whole of said lot an average height of twenty feet above the proposed bed of said street, and thus destroy your orator's rights of ingress to and egress from the said property; that your orator will thereby be deprived of the use of said property by the defendants; that in order to make his lot conform to the proposed new grade and to permit the development of said lot in an advantageous manner, your orator will be compelled to pay in the neighborhood of fifty thousand dollars ($50,000.00), or a sum representing approximately the entire value of said lot as it now is or will be after the completion of the proposed regrading; that your orator will thus be deprived of his property without due process of law and without compensation having been paid, tendered or secured therefor as provided by the Constitution of the State of Maryland and the Constitution of the United States of America.
"Sixth: And your orator further alleges and avers that he will thus be deprived of his said property for a private and not for a public purpose, and that the defendant, the Mayor and City Council of Baltimore, has no right to take private property for a private purpose.
"Seventh: Your orator is advised and avers that the Mayor and City Council, in changing the grade of Clement Street as aforesaid, is proceeding under sections 41, 42, 43 and 47 of article 35 of the Baltimore City Code of 1906, and that said sections were repealed, re-enacted and changed by the provisions of chapter 32 of the Acts of the General Assembly of Maryland, 1912, and that the said defendant is not proceeding in accordance with the provisions of said chapter 32 of the acts of 1912, and that the proceedings *Page 639
now being taken are therefore without warrant or justification in law, but are null and void.
"Eighth: That even though said sections 41, 42, 43 and 47 of article 35 of the Baltimore City Code, have not been repealed, as hereinbefore alleged, but are still in full force and effect, nevertheless your orator is advised and therefore alleges that the said sections are not appropriate and do not apply to the case of your orator as hereinbefore alleged. The acts about to be done will result in the destruction of ingress to and egress from your orator's property, and therefore amount to the taking thereof, and that the defendant, the Mayor and City Council of Baltimore, in undertaking to act as aforesaid under such sections, is acting without warrant of law and its said action is illegal and void.
"Ninth: Your orator further alleges that the defendants have arranged with contractors for the doing of the work involved in said regrading, and that machinery and tools are already on the location of the said work, and that said work is about to be begun, and your orator further alleges that this complete preparation has already for some time been made, although the City Surveyor of Baltimore established the proposed regrading only on the 27th day of July, 1921.
"Tenth: That irreparable loss and damage will be inflicted upon your orator by the proposed re-establishment and change of the grade of Clement Street, for which he has no adequate remedy at law, and he will be remediless in the premises unless this honorable court intervenes, and by its writ of injunction restrains the defendants from the unlawful re-establishment and change of the grade of Clement Street as proposed.
"Wherefore, your orator prays that this honorable court will issue its writ of injunction directed to the said defendants, the Mayor and City Council of Baltimore; August E. Christhilf, Highways Engineer, and the American Sugar Refining Company, enjoining them, and each of them, their respective officers, employees, agents and servants, from taking any steps *Page 640
to go upon your orator's premises, and from taking any action or proceedings whatever looking to the re-establishing or changing the grade of Clement Street as proposed, and that your orator may have such other and further relief as he may be entitled to receive.
"And as in duty, etc.,
"Charles Lee Merriken, "Frank, Emory Beeuwkes, "Solicitors for Plaintiff."
The Mayor and City Council of Baltimore, one of the defendants, filed its answer on August 13th, 1921, and at once entered an appeal from the order granting the preliminary injunction. On such an appeal the answer cannot be considered, and it is therefore unnecessary to set it out.
The contention arising under paragraphs seven and eight of the bill were abandoned by appellee in his brief and oral argument. The remaining questions are:
First — Is the averment of the bill, that "the proposed improvement is for the sole benefit and advantage of the said American Sugar Refining Company and that it is not a public improvement and that if carried out, it will involve the use of public funds for a private purpose," sufficient as a basis for an injunction?
Second — Do the injuries which appellee alleges he would suffer from the regrading as contemplated, amount to a taking of his property?
They will be considered in the order stated. The averment quoted in No. 1 follows immediately, and as a part of the same sentence, the words "upon information and belief, plaintiff avers that the proposed change in the grade of Clement Street is a part of the said scheme of improvements being carried out by the defendant, the American Sugar Refining Company, and plaintiff avers further that." Taking the entire sentence together it is difficult to impute to the latter part or to the entire sentence the character of definiteness *Page 641
necessary in an application for injunction, or to escape the conviction that it is at best merely a conclusion of the plaintiff based on information the source of which is not disclosed. At any rate no facts or circumstances are given to enable the court to reach its own conclusion. The application therefore must fail so far as it depends upon that averment.Miller's Equity, sec. 581; Adams v. Michael, 38 Md. 123;Johnson v. Lippert, 96 Md. 584; Johnston v. Glenn,40 Md. 200; Tifel v. Jenkins, 95 Md. 667; Lamm v. Burrel,69 Md. 274; Sprigg v. West. Un. Tel. Co., 46 Md. 74, 75.
It is unnecessary to refer to the averment in paragraph four of the amended bill further than to say that it is made entirely upon information and belief, without stating the source thereof, and is for that reason, if no other, insufficient.
The second proposition presents greater difficulties. In the fifth paragraph of the bill it is alleged that the effect of the proposed change in grade would be to lower the present grade of Clement Street by an average perpendicular distance of approximately twenty feet throughout that part of Clement Street which bounds plaintiff's lot, leaving the whole of said lot an average height of twenty feet above the proposed bed of said street, and thus destroy plaintiff's rights of ingress and egress; that plaintiff will thereby be deprived of the use of said property; that in order to make his lot conform to the proposed new grade and to permit the development of said lot in an advantageous manner, plaintiff will be compelled to pay in the neighborhood of $50,000, or a sum representing approximately the entire value of said lot as it now is or will be after the completion of the proposed regrading; that plaintiff will thus be deprived of his property without due process of law and without compensation having been paid, tendered or secured therefor, as provided by the Constitution of the State of Maryland and the Constitution of the United States of America.
It will be observed, however, from the first paragraph of the bill, that the greatest effect that can be given to the allegation *Page 642
in the fifth paragraph is that plaintiff will be deprived of ingress from and egress to Clement Street, except at an expense which would amount to the entire value of the lot, because in the first paragraph of the bill it is shown that the lot on one side fronts on Fort Avenue 315 feet 5 inches, the frontage on that street being exactly the same in distance as on Clement Street. It will be observed further from said first paragraph that the lot in question is unimproved, and it does not appear that any plans have been made for dividing or developing it, or that it is susceptible, on the Clement Street end, to development for residential purposes. If any inference can be properly drawn from the environment as disclosed by the bill, it would seem to indicate that the natural development of the portion of the lot which fronts on Clement Street would be for factory purposes, whether that street remains as at present or is regraded as proposed.
There are no facts alleged in the bill as distinguished from the opinion of the plaintiff, tending to show that, if found desirable, there could not be an advantageous development of the Clement Street end of the lot without the expense of lowering its grade to meet the proposed grade of that street. It is certainly conceivable that the difficulty could be overcome by basement and elevator construction. Besides we see nothing to prevent the approach to any buildings that might be constructed at that end by way of a cross street or streets leading from Fort Avenue. The above observations illustrate the difficulty we would find ourselves in on the allegations of facts, even if the case could be decided by the determination of the question whether or not the proposed regrading would destroy the value of the lot so far as its value depended upon its location on Clement Street.
But on all the facts alleged in the bill, this case must be decided apart from any consideration of the effect of the proposed regrading upon the value of the lot by reason of its location on said street, there being no physical taking of property alleged, and no destruction of plaintiff's easement in the *Page 643
use of said street. The controlling facts in the case are as follows:
1. There is no physical taking of any part of the lot.
2. There is no destruction of plaintiff's easement in the use of the street.
3. There are no improvements erected on the lot on Clement Street, the reasonable use and enjoyment of which would bedestroyed by the proposed regarding.
4. There is a wide front of the lot on another street, so that ingress to and egress from the lot does not depend upon convenient access to Clement Street.
In the case of Mayor and City Council of Cumberland v.Willison, 50 Md., at page 148, a leading case in Maryland, it was said: "* * * It has been decided by a great preponderance of authority that municipal corporations, acting under authority conferred by the Legislature to make and repair, or to grade, level and improve streets, if they exercise reasonable care and skill in the performance of the work resolved upon, are not answerable to the adjoining owner whose lands are not actually taken, for consequential damages to his premises, even though in grading and leveling the street a portion of the adjoining lot in consequence of the removal of its natural support falls into the highway, and the same immunity exists if the street be embanked or raised so as to cut off, or render difficult the access to the adjacent property, and this too, although the grade of the street had been before established and the adjoining property owner had erected buildings or made improvements with reference to such grade. Property thus injured is not in the constitutional sensetaken for public use. This doctrine was long since announced, after the most careful consideration, by courts of the highest authority, and by judges of great eminence and learning.Collender v. Marsh, 1 Pick. 418; Radcliff v. Brooklyn, 4 Comst. 195; O'Connor v. Pittsburg, 18 Pa. St. 187. It was also approved by the Supreme Court in the leading cases ofGoszler v. Georgetown, 6 Wheat. 595, *Page 644
and Smith v. Washington, 20 How. 135. These authorities have been since followed and adopted by the decisions of almost every State of the Union where the question has arisen, and in fact to such an extent that even the citation of the cases has become burdensome and superfluous. It is true that the Supreme Court of Ohio, in a series of decisions, has adopted a different doctrine and extended the liability of municipal corporations in such cases beyond the limits assigned to it elsewhere. By these decisions such corporations are held liable for consequential injuries which result from the exercise of their lawful powers upon the ground that if an act, though legal and lawfully executed, be done for the good of all to the injury of one individual, the injury should in justice and good morals be shared by all. But this doctrine has not only been rejected by the authorities to which we have referred, but the court which announces it admits it to be in direct conflict with the decisions both in England and America. Crawford v. Village ofDelaware, 7 Ohio St. 459. So far, therefore, as injury to the private owner consists in leaving his property above or below the grade of a street, so as to cut off or render difficult the access thereto, and so far as its value or its convenient and comfortable enjoyment may be impaired in consequence of such grading or change thereof from time to time, the law seems to be will settled."
The general principle announced in the above case has been followed and approved in this State in all the cases since, down to the present time, in which that question has been involved, and unquestionably the great weight of later decisions elsewhere sustains it. See O'Brien v. Balto. Belt R.R. Co., 74 Md. 375;Green v. City Suburban R.R., 78 Md. 304; B. O.R.R. Co. v. Kane, 124 Md. 231; Baltimore v. Bregenzer, 125 Md. 78;B. O.R.R. v. Kahl, 124 Md. 299; De Lauder v. BaltimoreCounty, 94 Md. 7; Walters v. B. O.R.R. Co., 120 Md. 644;Sanderson v. Baltimore City, 135 Md. 509. *Page 645
But it is thought by appellee that the above mentioned doctrine, which continued unimpaired in this State for so many years, was materially modified by the decisions in the three last mentioned cases.
In the De Lauder Case, supra, which was a suit for damages for the destruction of the use of a private right of way, the County Commissioners of Baltimore County raised the bed of a public road, extending across the plaintiff's right of way, three or four feet, and along this embankment within the limits of the public road placed guard rails, which covered the entire entrance to plaintiff's right of way, so that it could not be used even if graded up to the level of the embankment. JUDGE PEARCE, delivering the opinion of this Court, said: "The injury inflicted upon Mrs. De Lauder is not the rendering the use of her right of way inconvenient or expensive, but it is the destruction of its use, and its destruction is a taking in as just a sense as the appropriation of a gravel bank for the repair of a public road would be a taking." "If the guard rail had been omitted from the east side of the road, or if it had been so placed as to still permit ingress or egress to and from the private road, the expense incurred in grading the private road up to the increased heighth of the public road, would have been consequential damages."
In the present case there is no bar to access; it is simply a question of expense.
Walters v. B. O.R.R. Co., supra, was an action at law to recover damages for injuries arising from structures erected in the bed of Hamburg Street immediately in front of, and within a few inches of, plaintiff's residence, and extending upward so as "to effectually bar (as said by JUDGE STOCKBRIDGE in the opinion of this Court) all ingress to and egress from the premises, unless by means of a ladder from the second floor window to the newly constructed footway. The light and air were shut off from the first floor of the premises, thereby rendering that portion of the dwelling damp and uninhabitable." *Page 646
The facts of that case clearly distinguish it from the case at bar, and it expressly recognizes the general principle.
Sanderson v. Baltimore City, supra, was a suit for damages for destroying plaintiff's right of ingress to and egress from her home by excavating the beds of the streets, from whichalone she had access to her property, to a depth of from fifteen to thirty feet, leaving the property inaccessible to pedestrians except by a steep flight of steps, and absolutely inaccessible to vehicles of every description.
The above facts practically destroyed plaintiff's home and amounted to a taking.
There are no such facts in the present case. It is significant that JUDGE BURKE, who wrote the opinion in the Sanderson Case,
said, in delivering the opinion of this Court in Baltimore v.Bregenzer, supra: "It is proper to say, in view of certain remarks of counsel at the hearing, that the court does not understand that it announced a new legal principle in theWalters Case, or that it impaired in the slightest degree the settled principles of law upon the subject it was dealing with. It merely applied these principles to the facts of that case."
We do not find anything in the alleged facts of the case before us to take it out of, or to require a modification of, the principle announced in the case of Cumberland v. Willison,
and the long line of later cases referred to, or to entitle the appellee to a restraining order. We must therefore reverse the decree appealed from.
Order reversed and bill dismissed, with costs to appellant. *Page 647 | 01-03-2023 | 07-05-2016 |