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https://www.courtlistener.com/api/rest/v3/opinions/3486410/

The bill in this case was filed on August 6th, 1923, in the Circuit Court for Montgomery County, by the appellee against her husband, the appellant, praying for separate maintenance and support, temporary alimony, and counsel fees. It alleges that the parties were married in June, 1892; *Page 634 that three children were born to the marriage, all of whom are of full age; that although the conduct of the plaintiff toward her husband has always been kind and affectionate and above reproach, her husband without any just cause or reason abandoned and deserted her, and has declared his intention to live with her no longer; that such desertion has continued uninterruptedly since at least the spring of 1921; that the annual income of the plaintiff amounts to approximately $300 a year, represented by the net rentals derived from improved real estate owned by her in Washington, D.C.; that said real estate is worth about $8,000 and is subject to a mortgage of $4,000; that the plaintiff has expended all the rest of her estate derived from her father in the education of the children, improvements of the Kensington home, the title to which is held by the defendant, and in her maintenance and support, the defendant having contributed nothing towards her support since October, 1920; that the defendant is the owner of eighteen or nineteen houses in the city of Washington, which he acquired from his father, and which were in the year 1902 valued at $50,000; that since that time the said property has greatly increased in value; that in addition to the city property the defendant is the owner of ten acres with improvements located in Kensington, Montgomery County, of the value of $15,000; that the net income derived by the defendant will amount to between $400 and $600 per month. On August 6th, 1923, the court passed an order nisi upon the defendant to show cause why he should not be required to pay to the plaintiff such sum or sums of money as may be ordered as alimony pendente lite, together with a reasonable sum of money as counsel fee for her solicitor. Subsequently the defendant filed an answer denying the allegations of the bill, and filed a cross-bill praying for an absolute divorce on the ground of desertion of him by the appellee. Shortly thereafter the appellee answered the cross-bill, denying all of its material allegations, particularly denying her desertion of the appellant, and alleging to the contrary that her *Page 635 husband deserted her on the day named in her bill of complaint in the manner therein set forth. Testimony as to the financial condition of the parties was taken, and on February 2d 1924, the court found that the net annual income of the appellant was a sum between $1,800, as claimed by him, and $3,500, as claimed by the appellee, and passed an order requiring the payment of $80 per month as alimony pendente lite, and $150 counsel fee. Thereafter testimony was taken in open court, and the chancellor found that the allegations of the plaintiff were sustained by the evidence, and on the 16th day of August, 1926, passed a decree that the defendant, James Frank Wilson, pay the plaintiff, Clara Ray Wilson, the sum of $87.50 per month for permanent alimony, accounting from the 8th day of August, 1926, subject to the further order of the court, and that the defendant pay the costs of the proceedings. From this decree an appeal was entered on September 14th, 1926. Shortly thereafter the appellee filed a petition reciting that an appeal had been taken, and praying for such sum of money to employ counsel to defend said appeal as to the court might seem right and proper in the premises. After an order nisi on this petition, and answer thereto, a hearing was had on the question as to the proper allowance of the fee, the court thereafter passing an order allowing the sum of $250 as a suitable counsel fee for defending the appeal from the final decree of the lower court. From this order there was also an appeal taken. The law controlling cases of this description is so well settled, and has been so many times repeated by this Court, that it would be superfluous to discuss it at length. It is enough to say that when the allegations of a bill are sufficient to support either a divorce a mensa et thoro or a vinculo matrimonii, they are sufficient to support a bill for alimony alone. Outlawv. Outlaw, 118 Md. 502; Hood v. Hood, 138 Md. 360; Polley v.Polley, 128 Md. 63; Hoffhines v. Hoffhines, 146 Md. 350. The allegations of the bill of complaint in this case charge desertion of the wife by the husband, which constitutes a ground for divorce a mensa et *Page 636 thoro, and, therefore, if substantiated by proof, is sufficient to support a decree for permanent alimony. The chancellor awarded permanent alimony of $87.50 per month, subject to the future order of the court. Much testimony was taken before the chancellor as to the property and income of the defendant, resulting at the time of the final decree in a finding by the chancellor that the defendant's net cash income was between $2,500 and $3,000 a year, and that, in addition, he had the benefit of the property at Kensington, Montgomery County, valued at $15,000, from which he could derive an annual net income of $500. The testimony fully substantiates this finding, and, further, that the income is derived, not from the personal exertions of the defendant, but from rentals of real estate, the value of which is variously testified to be from $100,000 to $125,000, the assessed value of the real estate in Washington City being $66,000. The defendant has no one but his wife dependent upon him, the three children born to the marriage being three daughters, all grown and married. The wife has a small income from property inherited by her from her father, the net amount of which is approximately $300. Under such conditions, we are of the opinion that the sum of $1,050, approximately one-third of the husband's net income, is a reasonable and just allowance. The remaining question upon which the decision in this case must depend is the allegation of the wife that the appellant deserted her and failed to provide for her support and maintenance. The answer to this question requires an examination of the testimony to ascertain whether there has been such desertion as the law recognizes as a ground for divorce, without which there can be no valid decree for maintenance and support. The testimony of the appellee as to desertion is clear and convincing, and it is corroborated by every witness who testified upon this point, with the single exception of the appellant. In respect to his testimony, we find no serious contradiction of the appellee on the essential circumstances constituting desertion; and in practically every instance *Page 637 where his testimony is directed to a fact testified by the appellee, it corroborates her statement. The testimony is that the husband is now sixty-six years old and his wife sixty-four; that they were married in 1892, and there have been born to the marriage three daughters, all adults and married; that during the wedding trip the husband laid down certain rules as a course of conduct to be followed by his wife, among which were, that she was never to go in his pockets, was never to open any of his letters, was not to engage in conversation after they retired to their bedroom for the night, and that he was to have one night a week for recreation. The above is indicative of the attitude of the appellant at the beginning of his married life, and it is testified by the wife, and not denied, that she lived up to the conditions imposed. That after the marriage the parties lived in the District of Columbia in property furnished by the appellant's father, and which he afterwards inherited. This continued until 1908, when they moved to Kensington, Montgomery County. That shortly after their marriage, and while they were living in Washington, the appellant occupied a separate room, saying, "he felt he could not attend to his work unless he had a room and bed to himself." That from the marriage until 1918 the appellant would frequently, with no explained reason, cease speaking to his wife for periods of from two days to two weeks. That on June 3rd, 1918, he stopped speaking, and since that time has never communicated in any way with his wife. Shortly after that date he began staying away from his home at Kensington, gradually ceasing to take his meals and finally never going there until the family were in bed, and leaving about six o'clock in the morning. That from time to time one or more of the appellee's sisters and brothers stayed at the Kensington home, always upon the invitation of the appellant and with his approbation and consent. That the appellee's sister Elma and brother Gordon lived at the home from June, 1918, until October, 1920, paying board and assisting in the housework, and running the farm of ten acres. That in October, *Page 638 1920, the brother, expecting to get married, and the sister being about to leave, and no preparation being made for the winter, in respect to fuel and other matters, and at which time the appellant was spending eighteen hours a day away from home and having no communication with his wife and furnishing nothing for her support, she was compelled to leave the home and go to a sister in the District of Columbia. Before leaving, she wrote the following letters: "Kensington, Maryland, "August 12th, 1920. "My Dear Frank: "As Elma is arranging to go to town this fall, and Gordon does not expect to stay here — and after my experience last winter, I cannot remain here alone. I see no plan but to stay with Elma during the winter months. Of course, this place will remain my home, and I will have to have a stated income, if you feel you cannot discuss this with me, I am willing to do so with any business man we may agree upon. Naturally, any place I may be will be considered your home also. I hope you will consider this and let me know your wishes. "I am, as ever, "Clara R. Wilson." "Kensington, Maryland, "September 22, 1920. "My Dear Frank: "Gordon and Elma will take apartments from Annie for the winter — other plans having failed. This house will have to be closed on account of fuel and no one to stay with me. I can go to Annie's also and a room for you. It will be necessary for me to have a monthly income for my expenses and Anna's. I shall try to stay here as long as the weather permits or until Gordon leaves. I have tried to let you know as far ahead as I can in case you have any plans. Of *Page 639 course, I expect to return here some time in April. I can only take your silence for consent. "As ever, "Clara R. Wilson." "Kensington, Maryland, "October 21st, 1920. "My Dear Frank: "Your silence tells me you agreed to my letter of September 22 — you have offered no plan for my care. I shall stay where I can, making Annie's my temporary home for the present, as I am too nervous to remain alone. You have not spoken to me since June 3rd, 1918, and I do not know why. * * * I owe the Kensington Bank $250.00 borrowed last January for Virginia's wedding. I have made an effort to keep up a standard of living suitable to your position, with no financial help from you — beyond necessary household expenses since we came to Kensington. I now ask you for the first time to allow me an income. I am glad your health has become so much better; I hear constantly of how well you look. I have had the house locked as well as I can, also the outside. I shall come here every few days to look after things and hope you will arrange to live more comfortably than you do here sleeping only a few hours at night. Will you attend to turning off the water, lights and telephone or shall I? If I do not hear from you I shall do so, for I cannot live here before April, and then only with companionship and help. I will gladly take counsel with you at any time. My life has been my family and household, and to be divided is a great sorrow to me. I have given this my constant thought and can see no other way. It will always remain with you to decide the future, by direct communication with me. "As ever, "Clara." After leaving, she continued to communicate by letter at intervals of a week or two, and frequently visit the home in *Page 640 Kensington, up to the time she found it locked and barred against her entrance. In January, 1921, the appellee visited the appellant's stepmother in Florida, first notifying him of that intention and her purpose to return in April, 1921. The appellee continued to write letters of similar import to those herein set forth until April, 1923. Not receiving any reply or communication of any description from her husband, and not receiving anything for support or maintenance, her bill of complaint was filed in August, 1923. The testimony covers over two hundred pages, with substantially no dispute as to its correctness. While we have carefully examined the whole of it, that above cited is a substantial resume on the question of desertion. It shows clearly such desertion as the law recognizes as a valid ground for divorce. Buckner v. Buckner, 118 Md. 101; Etheridge v.Etheridge, 120 Md. 11; Walker v. Walker, 125 Md. 649; Polleyv. Polley, supra; Klein v. Klein, 146 Md. 27. We therefore concur in the learned chancellor's view on this point. While, as stated, the appellant virtually concedes the desertion, he contends that the wife's conduct was such as to compel him to leave home and refuse to support her, constituting, in law, desertion of him by her. We find no force whatever in this contention. There is no evidence of any refusal on the part of the wife of the husband's marital rights; but he contends that in according him these rights she was cold and indifferent, and neglected to exhibit that degree of demonstrative affection which he craved. The law of this state does not recognize this as being a ground for divorce, or as justifying a husband's desertion of and refusal to maintain and support his wife. Applications for divorce are all too frequent, the grounds in many cases being of the most unsubstantial nature. This is a growing evil, and unless the courts require full and strict proof of the recognized causes of divorce, they will become even more prevalent. This record discloses an unusual and unfortunate situation. Husband and wife, persons of high standing, refinement and culture, nearly sixty-five years old, married more than thirty years, *Page 641 rearing three daughters to maturity and marriage, in their declining years, for no legal cause but simply from slight real or fancied grievances, now come into court, with the attendant publicity, and the chancellor is compelled to require the husband to make suitable provision from his ample means for the support of his wife. The court reserved control over the decree for alimony; and it is to be hoped that the parties may yet effect a reconciliation which would remedy this pitiable condition. Decree affirmed, with costs to the appellee.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486420/

This is an appeal from a decree dismissing the bill of complaint of the appellant for specific performance of a contract of purchase of wharf property on the Sassafras River at Fredericktown in Cecil County. The history of the transaction, briefly, is as follows: The appellees, Charles P. Boyd and H.M. Coale, residents of the State of Pennsylvania, were members of a yachting club called "Tockwogh Club," and desired to purchase for the uses of the members of said club suitable property on the Sassafras River. Mr. Coale testified that he and a group of his friends were looking for a location; that he had anchored frequently in *Page 271 the neighborhood of Fredericktown and Georgetown, and, during the course of time, had seen the Tolchester Company property; that he telephoned Mr. Hudson, president of the Tolchester Beach Improvement Company, and asked him if the property was for lease; that he said it was not, but they would sell it for $10,000; that witness asked him what approximate acreage was there; that he said, an acre and a half; that witness drove to Chestertown, one or two days later, and on the way stopped off and looked at the property and wrote to Mr. Hudson on February 4th, 1929, immediately following that trip, and requested him to send witness "a sketch or blue-print showing just how the one and a half acre property is bounded"; that witness also asked for an appointment some time during the week of February 11th to discuss the matter in person. The witness admitted he knew, before signing the contract, that there wasn't an acre and a half in the property. On February 7th, Hudson replied, and inclosed "a rough sketch of our Fredericktown wharf property." In that letter he informed Coale that there were several parties "negotiating for the property and we think it a fair price we are asking for it, situated as it is close to the State Road." The "rough sketch" was a copy made by Hudson from a drawing that was furnished the company at the time it purchased the property. This sketch indicated a frontage of 183 feet on the county road leading from Cecilton to Georgetown, a depth, at about the centre, of 150 feet, and, at the end next to the state road bridge connecting Kent and Cecil Counties, a frontage of 50 feet. If the drawing had been to scale it would have indicated a frontage of about 50 feet at the southwesterly end next to the Standard Oil property. But it did not purport to be accurate, but only a "rough sketch." After the receipt of this sketch, Boyd and Coale called at Hudson's office. The date of this interview was February 11th. Boyd testified that on this occasion Hudson told him the property contained about an acre and a half, "and he said it ran, roughly speaking, 383 feet from the bridge along the road. *Page 272 describing that you turn off to the right from the main road, and that was about all he told me about the property excepting there was sufficient water for a dock." "We told Mr. Hudson that we wanted the property for a yacht club and we would have to have a suitable — sufficient ground to build garages and enlarge the dock and any other buildings we might find necessary to put on." On cross-examination, Boyd admitted that he knew the property they were buying from the Tolchester Company began at the bridge and came down toward the Standard Oil Company; that before the first interview with Hudson he and Coale went on the property, saw the wharf buildings and the Standard Oil Company property; that they saw the land and walked over it; that he had a survey made of it on March 4th, and then figured out the contents, and found it contained less than half an acre; that nothing was said about this to Hudson or the company, after finding it out, until April 11th; that in this period, between March 4th and April 11th, application was made by witness and his associates to the War Department for permission to erect piers and other improvements, to which was attached a plan for the docks. In passing, it should be noted that these plans were made and sent for approval to the War Department after full knowledge by the applicants of the shortage due to the encroachment by the state road bridge on the property of the Tolchester Company. At the interview of February 11th, Boyd and Coale were told by Hudson that it would be necessary for them to act promptly if they wanted the property, as there were other parties interested in buying it. Notice of acceptance was promptly given by the appellee, and, in a day or two, a letter was sent with a check for $500 on account of purchase money, and there followed promptly a form of agreement prepared by counsel for appellees, in which the property was described: "All that certain lot or piece of ground with buildings and improvements thereon erected, situate on the south side of the Fredericktown-Maryland Road on the west side of the Sassafras River in Cecil County, *Page 273 Maryland, extending at right angles to the said Fredericktown-Maryland Road about three hundred and eighty-three (383) feet along a public highway at right angles to the said Fredericktown-Maryland Road and extending from said road to the low water mark of the Sassafras River together with the wharf of the said party of the first part and all riparian rights, a complete description to be made by a survey of the said property before settlement. * * *" On receipt of this form of agreement, Hudson had a different form prepared, in which the description of the property was by metes and bounds, and the distances were given in perches instead of feet, the description being the same as in the deed by which the Tolchester Company took title. This agreement was sent to Boyd by Hudson, with a letter stating that the writer thought it would be "better for you than the one that you sent me as it covers all the property that the company holds at Fredericktown, Md.," and giving reference to the title deed of the company. This agreement was executed by all the parties as of February 13th, 1929. In this agreement, the line along the Cecilton-Frederick Road was given as 22-8/10 perches. This, of course, is 376-2/10 feet, whereas the rough sketch furnished by Hudson indicated 383 feet; and "about 383 feet" was called for in the form of agreement tendered by the appellees. On March 4th appellees had a survey made of the property. This survey showed only 352-3/10 feet, in said line, which is accounted for by the fact that, after the company acquired the property, the state road bridge encroached upon it. This encroachment varies from about 24 feet at the Cecilton Road to 40 feet at the shore line. In other respects, the survey agrees with the description in the agreement. After this, survey plans for piers were submitted by appellees to the War Department for approval. On hearing of the proposed plans, some fishermen living at Fredericktown filed objections with the County Commissioners of Cecil County on the ground that the proposed piers would cut off access from the water to the shore on the company's *Page 274 property, where fishermen had been accustomed to landing, and the commissioners filed a protest with the War Department. On April 11th, two days before the expiration of the sixty days allowed in the agreement for the payment of the balance of the purchase money, Boyd, accompanied by a Mr. Collins, commodore of the yacht club, called at Hudson's office. Hudson called Mr. Chapman, the company's attorney, over the 'phone and requested him to come to the office. There is some discrepancy between the testimony of Hudson and Chapman on the one side, and Boyd and Collins on the other, as to just what occurred at that interview. But we are satisfied from all the testimony of the following facts: (1) That at that time plans had been made and blue-prints prepared by appellees and submitted to the War Department based on the measurements of the appellees' surveyor, which showed that there were only 352-3/10 feet along the Cecilton-Georgetown Road, and that the shore line was about forty feet less than as described in the agreement. (2) That neither at that interview, nor at any time prior thereto, was there the slightest intimation by appellees of an intention to abandon the contract on account of any difference between the contents of the property as indicated by the "rough sketch" or described in the contract, and the contents shown by the survey, and that there was then no such intention. (3) That, if at that time there was any serious question in the minds of appellees about the suitability of the property for their purposes, it was caused by the protest which had been made by the county commissioners. (4) That, notwithstanding this protest, appellees gave every indication of their intention to take the property, and requested the president of the company to accept a mortgage for part of the purchase money, asking for a few days delay for the final settlement. Undoubtedly the description of the 352-3/10 feet line was erroneously given in the agreement as 22-8/10 perches (376-2/10 feet), and, at the time of signing the agreement, *Page 275 appellees did not know that about 24 feet of this line and about 40 feet of the shore line were occupied by the bridge. It is also true that the description in the agreement gives the distances in perches and not in feet. This circumstance is dwelt upon by appellees as misleading. But it is incredible that intelligent business men, such as appellees evidently are, were so misled. At any rate, they must be taken to have known what the agreement they signed clearly disclosed. After the interview of April 11th, nothing was heard by appellant from appellees until the following letter of F.A. Moorshead of April 29th to the Tolchester Company was received: "Gentlemen: "Mr. Charles P. Boyd has referred to me for attention your letter of the 20th inst., in regard to the purchase of wharf property at Fredericktown, Maryland. Mr. Boyd and Mr. Coale entered into the agreement with your company for purchase of this property on representations made by your company as to the size of the property and the water front rights that you owned. Upon investigation, my clients found that unknown to you, forty feet of the property had been taken off for State Road purposes and there existed claims of right to use the beach for a public landing for the inhabitants of Fredericktown. These people employed counsel and objected to the construction of piers, etc. My clients are not buying a law suit and I have advised them that they are under no obligation to proceed with the purchase of this property and that your Company is not in a position to deliver what the agreement calls for and that they are entitled to the return of the down money. Will you please send a check for $500 to the order of Charles P. Boyd and H.M. Coale. "Very truly yours, "F.A. Moorshead." This was the first intimation given the appellant of an intention by the appellees to abandon the contract, and it came *Page 276 sixteen days after the time agreed upon for final settlement, and fifty-six days after appellees had full knowledge of the contents of the property. Hudson wrote Boyd on April 20th, and wired him on April 26th, demanding settlement. Almost immediately after signing the agreement appellees removed from the premises the "For Sale" sign which appellant had set up, and posted a notice that the "Tockwogh Club" had bought the property and would occupy the same. This notice remained on the property until after the attempt by appellees to repudiate the contract. On or about April 17th, before there was any intimation of an intention to withdraw from their agreement, appellees entered into negotiations for the lease of another property in the neighborhood, which was soon thereafter acquired. We have no doubt that plaintiff is entitled to the relief prayed. It is not seriously contended that the alleged representation before the contract was signed (which was denied and not clearly established), that the property contained about an acre and a half, is material in this case. If it were so contended a sufficient answer would be: (1) One of appellees admitted that it was apparent to him from a view of the property, before the contract was signed, that it contained no such acreage; (2) both of appellees were on the property and saw just what it was, and observed its well-defined boundaries; (3) it is apparent from the description in the contract that the parties could not have been misled in this respect. The real and only serious complaint could be: (1) As to the shortage in the property actually described in the contract; (2) as to the claim involved in the protest of the county commissioners. When some part even within the bounds of the land contracted to be sold cannot be conveyed by the vendor, from some cause not involving mala fides on his part, if such part is of small importance, or is immaterial to the purchaser's enjoyment of that which may be conveyed to him, the vendor may insist on performance with compensation to the purchaser, or a proportionate abatement from the agreed price. But this cannot be done where the part is a considerable *Page 277 portion of the entire subject-matter, or is material to the enjoyment of the other part. Miller's Equity Proc., p. 803;Foley v. Crow, 37 Md. 51; Keating v. Price, 58 Md. 532;Reigart v. Fisher, 149 Md. 336, 131 A. 568. The general rule in such case of misrepresentation, where the sale can be enforced, is that the vendee shall have what the vendor can give, with an abatement for so much as the quantity falls short of the representation. Marbury v. Stonestreet, 1 Md. 147; Kent v.Carcaud, 17 Md. 291; Reigart v. Fisher, supra. In Reigart v. Fisher, supra, the contract was enforced, although the shortage was about two acres out of a total of seven; whereas in Keating v. Price, supra, the court refused a decree for specific performance, although the shortage was only about a quarter of an acre in a total of twenty acres. These two cases well illustrate the proper application of the principle. In the former we found that the misrepresentation as to quantity did not so far affect the attractiveness of the place that it could reasonably be supposed that, but for such misrepresentation, the contract would not have been made; whereas in the latter the court found that the quarter of an acre, the title to which was not in the vendor, was a part of a small piece of land which was the inducing cause of the purchase of the whole, as shown not only by the purpose for which it was to be used, but also by the manifest good faith in which the purchase was immediately repudiated on the discovery that title could not be given. Measured by this test, it is obvious to us that the position of appellees in regard to the shortage caused by the encroachment of the bridge is untenable. Their whole conduct, as above narrated, negatives the idea that they regarded this shortage as material, or of so much importance that the contract would not have been made if they had known of this error in the description. They not only did not promptly suggest, on discovering the shortage, that it was material and ask to be released, but both of them testified that they would have taken the property except for the protest of the county commissioners. As late as the interview of April 11th, which was thirty-eight days *Page 278 after the survey made at their instance revealed the discrepancy, their only concern was about said protest. It remains to consider this protest and claim of landing privilege as affecting the ability of the appellant to give an unincumbered title. The contention of appellees, as stated in their brief, is that a strip of land within the lines of the property described in the contract, for a distance of about sixty feet along the shore, "is public property, because (1) it is within the lines of the forty foot roadway purchased by the county for a road, or (2) even though some land might now exist between the forty foot roadway and the water, it was originally the bed of the river and is land made by the county." The evidence offered by appellees fails to sustain the contention that the road as laid down extends to the edge of the water, or that the land between the road and the water was originally the bed of the river. But even if that had been proved, it would be immaterial. The road was acquired by the process of condemnation, and the county acquired an easement only, which carried with it no riparian rights. Whatever filling in between the road and the water the commissioners may have done, for the protection of the road from washing, accrued to the owner of the fee, and the riparian rights of the owner existing at the time the road was condemned continued in the owner unimpaired. Recognizing the force of the decisions in Thomas v.Ford, 63 Md. 346, and O'Brecht v. State, 145 Md. 176,125 A. 539, appellees say they make no contention that a right of way to the water over appellant's land has been acquired by prescription. It is equally certain that no right to a landing can be acquired by long-continued use. See last-cited cases. In our opinion, appellees failed to show any reasonable doubt as to the validity of appellant's title, or "one sufficient to cause the chancellor to hesitate whether the purchaser should be obliged to complete the contract of sale." Levy v. IroquoisBuilding Co., 80 Md. 300, 30 A. 707, 708. Our conclusion is that appellant is entitled to a decree requiring appellees to pay the balance of purchase money less a *Page 279 proportionate abatement for the shortage in the property described in the contract, with interest from April 13th, 1929. A fair abatement, we think, would be $910, or about one-eleventh of the purchase money, which is about the relation the average width (32 feet) of the strip cut off by the bridge bears to the 376.2 feet line along the forty feet road, as described in the contract. Decree reversed, and cause remanded, in order that a decreemay be passed in accordance with this opinion, with costs toappellant.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486422/

The principal question involved in this appeal is, whether Chapter 503 of the Acts of 1912, which was approved April 8th, 1912, is repealed by Chapter 847 of the Acts of 1912, which was approved April 15th, 1912. The prior Act directs the Police Commissioners of Baltimore City to pay sergeants, assigned by them to do clerical work at police headquarters, not exceeding eight, the sum of thirty dollars a week, instead of twenty-two dollars per week, the pay of sergeants provided for in section 745 of Article 4 of the Code of Public Local Laws. The latter Act repeals, and re-enacts with amendments, section 745 of Article 4 of the Code of Public Local Laws. Its provisions cover the whole police force of the city; providing for the appointment of the members, their numbers and salaries. The provisions in regard to sergeants are as follows: "Said police force shall consist * * * of such number of sergeants as the Board of Police Commissioners in their judgment may deem necessary. * * * The members of the police force shall receive the following salaries, payable every two weeks * * * each sergeant twenty-two dollars per week." *Page 405 This Act does not expressly repeal Chapter 503, but by the second section thereof provides, "that all laws and parts of laws inconsistent with this Act are hereby repealed, otherwise to remain in full force and effect." The appellee, a sergeant assigned to do clerical work at headquarters, brought suit to recover from the city a balance he claimed was due him on account of salary. He claims that he was entitled to a weekly salary of thirty dollars, under Chapter 503, and that the City had paid him only twenty-two dollars under Chapter 847. The appellant asked the Court below to rule as a matter of law that Chapter 503 was repealed by Chapter 847. This the Court refused, and the judgment being against the City it brought this appeal. The appellant's contention is that the two Acts are inconsistent, and that the latter repeals the former. It is not open to question that courts will hold a law to be repealed by a subsequent law, without any express clause of repeal, where the two provisions are so repugnant that they can not stand together. If, however, they can stand together, there is no repeal by implication — Webb v. Ridgely, 38 Md. 364. And in State v. Yewell, 63 Md. 121, this Court quoted with approval from United States v. Tynen, 11 Wallace, 92: "When there are two Acts on the same subject, the rule is to give effect to both, if possible; but if the two are repugnant in any of their provisions, the latter Act, without any repealing clause, operates, to the extent of the repugnancy, as a repeal of the first." It is equally well settled that repeal of a former by a subsequent statute is not favored by the courts, and if by a reasonable construction the two Acts can be made to stand together they will be harmonized. It is only when two Acts are repugnant and plainly inconsistent, that the later repeals the earlier. Yunger v. State, 78 Md. 575; Mining Co. v. C. andP.R.R., 81 Md. 35; Prince George's Co. v. Laurel,51 Md. 457; School Com. v. Henkel, 117 Md. 97. *Page 406 Now let us look at the two Acts to determine whether their provisions are so repugnant and inconsistent that they can not be fairly harmonized. The Act dealing with the police force of Baltimore prior to the enactment of Chapter 847, Acts of 1912, was section 745 of Article 4 of the Code of Public Local Laws, and had been enacted by Chapter 234 of the Acts of 1908. So far as sergeants were concerned, this Act provided a salary for all sergeants of twenty-two dollars per week. By Chapter 503, Acts of 1912, a qualification was made, giving sergeants, detailed for clerical work to headquarters, a salary of thirty dollars. The effect of this Act was the same as an amendment to section 745. Subsequently Chapter 847 was approved, whereby Chapter 234, Acts of 1908, was repealed and re-enacted so that "each sergeant" was to receive twenty-two dollars per week. There was no provision whatever made for any sergeant detailed for clerical work. We then have two Acts dealing with the same subject, the earlier providing thirty dollars per week for some sergeants, the later providing twenty-two dollars per week for all. Can we give full effect to each of these Acts so that each may stand? If we give full effect to Chapter 503, certain sergeants will receive thirty dollars a week; and if we give the same effect and operation to Chapter 847 each sergeant on the entire force can receive but twenty-two dollars. Therefore, the only method by which they both can stand would be to say, that the prior Act limits the effect of the later, and thus permit Chapter 503 to stand at its full effect, and Chapter 847 to stand, except in so far as it is limited and modified by Chapter 503. In other words, we would be reading into the later Act an exception that was not there. If that had been the intention of the Legislature, they surely would have provided for sergeants doing clerical work, just as they did further on in Chapter 847 for patrolmen doing clerical work. We are therefore of the opinion that Chapter 503 is so repugnant and inconsistent with the provisions of Chapter *Page 407 847, relating to sergeants, that the two can not stand together, and that therefore Chapter 503 must fall. It was contended for the appellee that because Chapter 847 was a substantial re-enactment, so far as it related to sergeants, of the provisions of Chapter 234, Acts of 1908, the operation of the latter continued uninterruptedly. It is a fact that the one is almost the exact reproduction of the other, but the difficulty in applying that principle arises from the fact that the very provision which they endeavor to revive is omitted from the new law, and the old law was only re-enacted as it stood prior to the passage of Chapter 503. Therefore, if the old law allowed only twenty-two dollars a week, its exact re-enactment could not allow any more than originally. Because we think there was error in refusing the prayer of the appellant in asking the Court to declare Chapter 503, Acts of 1912, repealed by Chapter 847, Acts of 1912, the judgment will be reversed without a new trial. Judgment reversed without a new trial, with costs toappellant. *Page 408

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/7247113/

ROBERT J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE A custodial defendant in Ingham County smuggled a shank into a courtroom and assaulted the prosecutor with it. The courthouse security cameras recorded the entire incident. Judge Aquilina had access to the recording because of her position with the court, and she decided to let a journalist view and copy the recording. Sheriff Wriggelsworth did not like seeing the courthouse recording in the public domain and directed Defendant Buckland to investigate what happened. The investigation ultimately led to a request for criminal charges against Judge Aquilina, but the prosecutor assigned (from another County) declined to authorize a warrant. Judge Aquilina brings this action against the now-retired Sheriff and Detective Buckland, claiming that the investigation was retaliation for her providing a journalist, and ultimately the public, with access to the courthouse tape. A robust First Amendment necessarily protects citizens who speak from retaliation by public officials. But when the speaker is a public employee, and the subject of the speech is part of the employee's official duties, other crucial interests come into play and limit the otherwise applicable protection of the First Amendment. Judge Aquilina addressed a policy issue of courthouse security. It was naturally within the scope of her public duties. Moreover, the way she chose to speak-by leaking a courthouse video available to her only because she worked for the Court-obviously involved her public position. Under the Supreme Court's decision in Garcetti , that is not the kind of speech that supports a First Amendment retaliation claim, any more than it would if the speaker had been an entry level courthouse employee, and the alleged retaliator had been the Clerk of Court who fired the employee for the leak. 1. FACTUAL AND PROCEDURAL BACKGROUND There is little dispute regarding the key facts of the case.1 Plaintiff Aquilina is an elected judicial officer in the 30th Circuit Court of Ingham County, Michigan. At the time of the events that underlie this lawsuit, *1113Defendant Wriggelsworth was the elected Sheriff of Ingham County, and Defendant Buckland was a deputy sheriff in the Ingham County Sheriff's Office. (ECF No. 1, PageID.1.)2 Defendant Wriggelsworth's responsibilities as Sheriff encompassed responsibility for court security. Plaintiff states that she and some of her fellow judges were dissatisfied with the security provided at the courthouse. She states that the court administration scheduled a meeting with a security consultant for August 2, 2016, to address security concerns. (ECF No. 54, PageID.435-439.) On August 2, 2016, a defendant in the courtroom of a different judge in the 30th Circuit Court of Ingham County became unruly, produced a shank from his sleeve, and charged at the prosecutors. (ECF No. 1, PageID.2.) Officers subdued the defendant. (ECF No. 54, PageID.440.) A courtroom security camera recorded the altercation from start to finish. (Id. ) The next day, a Lansing State Journal reporter came to Plaintiff's chambers and asked Plaintiff for permission to record the security video by using his own recording device to capture a playback of the incident on her judicial assistant's computer monitor. (ECF No. 1, PageID.2.) Plaintiff gave him permission to do so. (Id. , PageID.3.) The following day, August 4, 2016, Defendant Wriggelsworth received a call from the Lansing State Journal reporter who had made the recording. (Id. ) Defendant Wriggelsworth started an investigation of the release of the video as early as August 4, 2016. Sergeant Harris assigned Defendant Buckland to the investigation on August 9, 2016. (Id. , PageID.441.)3 Sgt. Harris and Defendant Buckland contacted the prosecutor's office the same day. (Id. ) On August 14, 2016, Defendant Buckland notified Plaintiff that he was investigating the release of the recording. (ECF No. 1, PageID.3.) Plaintiff asked him what crime he was investigating, but he did not respond to the question. (Id. ) Defendant Buckland also interviewed members of Plaintiff's staff, one of whom asked Defendant Buckland what crime he was investigating. (Id. ) Defendant Buckland described the offense as "obstructing justice." (ECF No. 54, PageID.441.) Defendant Buckland does not recall whether he told others that the purpose of the investigation was "criminal, internal, or on behalf of the court." (Id. ) In late August 2016, Defendants Wriggelsworth and Buckland sought a warrant for criminal charges against Plaintiff in connection with her release of the video. A few weeks later, on September 22, 2016, charges against the defendant who had launched the courtroom attack became public. The charges included, among other things, terrorism. (Id. at PageID.442.) The same day, news outlets reported that Defendant Wriggelsworth was seeking criminal charges against Plaintiff. Plaintiff was anxious about the investigation and possibility of criminal charges. Her belief that Defendant Wriggelsworth held animosity toward her magnified her anxiety. (Id. ) Plaintiff arranged for the care of her elderly mother and three minor children to ensure that they would not see her arrested, should an arrest take place. (Id. ) Her children expressed concern to her about the possibility of arrest. (Id. ) Ultimately, the State did not bring charges against Plaintiff. No arrest transpired. Plaintiff states that she has had to recuse herself from certain cases and has experienced embarrassment due to the investigation. (Id. ) Plaintiff filed this lawsuit on September 23, 2017, bringing a section *11141983 claim of First Amendment retaliation and a state law claim of invasion of privacy-false light. Plaintiff premises both claims on what she describes as a baseless criminal investigation undertaken in retaliation for her release of the video. Defendants move for summary judgment. (ECF No. 34). 2. LEGAL STANDARDS Summary Judgment is appropriate where there are no genuine issues as to material fact and the moving party is entitled to judgment as a matter of law. Jones v. Potter , 488 F.3d 397, 402 (6th Cir. 2007) ; FED. R. CIV. P. 56(a). A genuine issue as to material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the Court draws all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The ultimate question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson , 477 U.S. at 251-52, 106 S.Ct. 2505. "A government official sued under section 1983 is entitled to qualified immunity unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Carroll v. Carman , --- U.S. ----, 135 S.Ct. 348, 350, 190 L.Ed.2d 311 (2014) ; see Taylor v. Barkes , --- U.S. ----, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) ; Lane v. Franks , --- U.S. ----, 134 S.Ct. 2369, 2381, 189 L.Ed.2d 312 (2014). The first prong of qualified immunity analysis is whether the plaintiff has alleged facts showing that each defendant's conduct violated a constitutional or statutory right. Pearson v. Callahan , 555 U.S. 223, 235-37, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The second prong is whether the right was "clearly established" at the time of the defendant's alleged misconduct. Id. Trial courts may exercise their sound discretion in deciding which of the two prongs to address first. Id. 3. DISCUSSION A prima facie case of First Amendment retaliation requires Plaintiff to show that (1) she engaged in constitutionally protected speech; (2) Defendants subjected her to an adverse action; and (3) the protected speech was a substantial or motivating factor for the adverse action. Nair v. Oakland County Community Mental Health Authority , 443 F.3d 469, 477-78 (6th Cir. 2006). To establish the first prong of the prima facie case, Plaintiff must show that the speech at issue-the release of the video to the journalist-is entitled to First Amendment protection. The Supreme Court's Garcetti decision and its progeny determine whether she has done so. See Garcetti v. Ceballos , 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In Garcetti, the Supreme Court recognized that "when a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedoms." 547 U.S. at 418, 126 S.Ct. 1951. A Government employee retains First Amendment protections for some types of speech, but the employee's First Amendment rights must be balanced against the Government's right as an employer to "promot[e] the efficiency of the public services it performs through its employees." Id. at 417, 126 S.Ct. 1951 (quoting Pickering v. Board of Ed. of Tp. High Sch. Dist. 205, Will Cty. , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ). Garcetti establishes that "when public employees *1115make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 422, 126 S.Ct. 1951. Under Garcetti , a government employee is entitled to First Amendment protection only where the employee speaks "as a citizen" on "matters of public concern." Id. at 417, 421, 126 S.Ct. 1951 ; Weisbarth v. Geauga Park Dist. , 499 F.3d 538, 542 (6th Cir. 2007). Accordingly, to establish the first prong of the prima facie case, Plaintiff must show that in releasing the video she was speaking as a citizen on a matter of public concern. No one disputes that courthouse security is a matter of public concern. The issue is whether Plaintiff was speaking as a citizen.4 Whether an employee speaks "as a citizen" is a question of law for the Court. Omokehinde v. Detroit Bd. of Ed. , 563 F.Supp.2d 717, 724 (E.D. Mich. 2008) ; Davis v. Cook Cty. , 534 F.3d 650, 653 (7th Cir. 2008) ; cf. Nair , 443 F.3d at 478. In making the determination, the Sixth Circuit looks to the content, audience, setting, and impetus for the employee's speech. See Weisbarth , 499 F.3d at 545-46 ; see also Haynes v. City of Circleville , 474 F.3d 357, 362 (6th Cir. 2008). The Court finds that Plaintiff's release of the video falls within the scope of her official responsibilities, and is not speech "as a citizen." Plaintiff had access to the video only by virtue of her official position. The Lansing State Journal reporter came to Plaintiff's judicial chambers to request permission to view the footage and make his own recording. Plaintiff had the ability to grant or deny his request only because of her official position. The reporter viewed the footage on court equipment used by Plaintiff and her staff to conduct court business. No one other than court employees had access to the video. Plaintiff did not speak "as a citizen" when she released the video; she spoke as a government official. Under Garcetti and its progeny, as a matter of law, Plaintiff's speech falls outside constitutional protection. Little more would need to be said if the case involved simply a supervisor and an employee, as in Garcetti . This case involves two elected individuals-co-equal "apex players" who report to the citizens, not each other. The same basic analysis still applies, as cases have found repeatedly. In Shields v. Charter Twp. of Comstock , 617 F.Supp.2d 606 (2009), the plaintiff, a member of a Township Board claimed that other members of the Board unconstitutionally suppressed his speech during a Board meeting. The Court rejected the claim, observing that plaintiff's suit "alleges that his fellow board members injured him by doing precisely what elected board members are supposed to do: namely, argue with each other over policy issues, form majority coalitions, vote on substantive and procedural issues, and be held politically-not judicially-accountable by the voters." Shields , 617 F.Supp.2d at 612. Similarly, in Hogan v. Township of Haddon , No. 04-2036(JBS), 2006 WL 3490353 (D. N.J. Dec. 1, 2006), the court held that an elected official received no First Amendment protection when she spoke as part of her official duties. In Hartman v. Register , No. 1:06-cv-33, 2007 WL 915193, *7 (S.D. Ohio March 26, 2007), the court likewise found that "the distinction between the plaintiff in Garcetti and a public *1116official, in this case Plaintiff, is inconsequential." Even before the Garcetti decision, the Sixth Circuit in Zilich v. Longo , 34 F.3d 359 (6th Cir. 1994), rejected a former city council member's claim that his fellow city council members retaliated against him for speech he made during his tenure on the city council. The court observed that a "legislative body does not violate the First Amendment when some members cast their votes in opposition to other members out of political spite or for partisan, political or ideological reasons." Id. at 363. In the Court's view, it is especially important to ensure that the speech of a public official does not become a predicate for a retaliation claim against another public official. Citizens elect public officials to speak on issues of public concern, and both citizens and elected officials know that such speech triggers opposition from other public officials. For elected officials to clash in the course of performing their official duties is a natural part of the public policy process. And clashes between elected officials should normally be resolved by the ballot box, not in a courtroom. That is particularly true when the elected contenders are State or local officials, and the courtroom is federal. The Court emphasizes the limited nature of its decision in this case. The Court's ruling does not mean that a public official may abuse his or her office as long as the target is another public official. In this case, for example, if the prosecutor had authorized charges and Defendants arrested Plaintiff without probable cause, a Fourth Amendment civil rights action would be available. Moreover, the Court's decision on Plaintiff's First Amendment claim has no bearing on her state law claim for invasion of privacy-false light, which addresses a different kind of harm. A state court should have the opportunity to consider the merits of the Plaintiff's state law claim. The Court declines to exercise supplemental jurisdiction over that claim. See 28 U.S.C. § 367(c)(3). All the Court is deciding here is that Garcetti removes Plaintiff's speech as a public official from the otherwise applicable protections against retaliation for speech. 4. CONCLUSION For these reasons, the Court concludes that Defendants are entitled to summary judgment in their favor on Plaintiff's section 1983 claim of First Amendment retaliation, and declines to exercise supplemental jurisdiction over Plaintiff's state law claim. ACCORDINGLY, IT IS ORDERED : 1. Defendants' Motion to Dismiss or for Summary Judgment (ECF No. 34) is GRANTED as to Plaintiff's section 1983 First Amendment retaliation claim and is DISMISSED without prejudice in all other respects. 2. Plaintiff's state law claim for false light-invasion of privacy is DISMISSED WITHOUT PREJUDICE . 3. Defendants' Motion to Adjourn Dates (ECF No. 66) is DISMISSED AS MOOT . To the extent the parties disagree about the factual background, the Court accepts Plaintiff's version as true for the sole purpose of considering the merits of Defendants' motion. Defendant Wriggelsworth has since retired, completing his last full term in office on December 31, 2016. (ECF No. 54, PageID.435.) Sergeant Harris is not a party in this case. The Sixth Circuit has been careful to note that the requirement that the employee "speak as a citizen" is separate and distinct from the requirement that the employee's speech "address matters of public concern." See Weisbarth , 499 F.3d at 545-46 (noting that Garcetti affects only the "speak as a citizen" requirement of the First Amendment analysis).

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7247114/

James G. Carr, Sr., U.S. District Judge ORDER This is an indemnification case. Plaintiff Autumn Lee Tangas is a former Franchise Bureau Consultant (FBC) for defendant International House of Pancakes, LLC (IHOP). *1120In September, 2011, the Federal Bureau of Investigation raided five IHOP restaurants run by a franchisee, Tarek Elkafrawi, whose operations Tangas oversaw. As IHOP began investigating the Elkafrawi affair, Tangas cooperated with her employer. But when it became clear that she, too, was a target of the criminal probe, she declined, on her lawyer's advice, IHOP's request to participate in an internal interview. Concluding that her refusal to cooperate with the investigation violated IHOP's code of conduct, IHOP fired Tangas. Three months later, a federal grand injury indicted Elkafrawi, Tangas, and sixteen others on charges of money laundering, conspiracy to harbor aliens, and mail fraud. The indictment alleged that Elkafrawi was engaged in a wide-ranging scheme to underreport sales figures, defraud the Ohio Bureau of Workers Compensation, and employ illegal aliens. As to Tangas, the indictment alleged that she used her position as Elkafrawi's FBC to shield his wrongdoing from corporate scrutiny. In May, 2014, after Tangas incurred more than $130,000 in legal fees, federal prosecutors dismissed the charges against her without prejudice. Tangas asked IHOP to indemnify her, but the company, citing the allegations in the criminal case, refused. Tangas then filed this suit against IHOP and its parent company, DineEquity, Inc. Tangas alleges that IHOP's LLC agreement and DineEquity's corporate bylaws obligate the defendants to indemnify her for the attorney's fees she incurred in the criminal case. Jurisdiction is proper under 28 U.S.C. § 1332(a)(1). (Doc. 18 at ¶¶ 2-4). Pending are the parties' counter-motions for summary judgment. (Docs. 37, 46). For the following reasons, I grant the defendants' motion and deny Tangas's motion. Background Before 2007, the IHOP Corporation franchised individual IHOP restaurants. (Doc. 37-2 at 1, ¶ 2). In 2007, "the IHOP Corporation bought Applebee's. As part of that transaction, DineEquity Inc. was formed as the parent company owning both IHOP and Applebee's Restaurants LLC." (Id. ). DineEquity and IHOP are separate entities, but DineEquity provides "human resources and legal support" to its subsidiary. (Id. at 2, ¶ 3) Tangas began working for IHOP in 1991; in 2003, she became an FBC. In that position, Tangas acted as a liaison between IHOP corporate and the franchisees who operated restaurants in her territory, which included parts of Ohio, Michigan, Kentucky, and Pennsylvania. Tangas helped franchisees boost sales and ensured that they adhered to IHOP operating standards. A. Tangas and Elkafrawi Among the franchisees whom Tangas oversaw was Tarek Elkafrawi, also known as "Terry Elk." Elkafrawi operated four IHOP restaurants in the Toledo, Ohio, area, one each in Findlay, Ohio, and Lima, Ohio, as well as restaurants in other states. (Doc. 46-1 at 3; Doc. 46-2 at ¶ 8). Tangas met Elkafrawi sometime in the late 1990s or early 2000s, but her interactions with him were minimal. (Doc. 46-2 at ¶ 8). After their working relationship intensified, Tangas concluded that Elkafrawi had a "poor business structure and weak management skills." (Id. at ¶ 9). She also believed that his restaurants had problems with "cleanliness, customer complaints, poor sales, and high management turnover." (Id. at ¶ 11). Tangas eventually became so concerned with Elkafrawi's performance that she "questioned whether he was under-reporting sales." (Id. at ¶ 12). She discussed her *1121concerns with her supervisor, Mark Brower, but he and IHOP corporate ignored them. (Id. at ¶¶ 11-12, 15). Tangas nevertheless maintained a good relationship with Elkafrawi, but she denied they were "friends." (Id. at ¶ 16). However, Tangas's domestic partner, Lisa Ross, was friends with Elkafrawi. (Id. at ¶ 17; Doc. 46-3 at ¶ 5). Ross had met Elkafrawi in 1998, before she knew Tangas. (Doc. 46-3 at ¶ 4). After Tangas and Ross moved to Toledo in 2003, Ross spent a good deal of time with Elkafrawi, who lived in Evansville, Indiana, but often came to Toledo for business. (Id. at ¶ 5). In 2004, and without informing Tangas, Ross loaned Elkafrawi $50,000 from her and Tangas's joint bank account. (Doc. 46-3 at ¶¶ 7-8). There is conflicting evidence as to the true purpose of this transaction. Ross claimed that it was purely a loan to help a friend in financial distress. (Id. at ¶¶ 7-8). Tangas maintained that Elkafrawi had "pulled a fast one" on Ross by telling her "she could make a good profit by investing in" his IHOP restaurant in Holland, Ohio. (Doc. 37-2 at 70). Elkafrawi told the FBI that Tangas decided to invest in his restaurant, and that "Ross' name was used as a cover." (Id. at 43). Donna Harriott, a manager of two of Elkafrawi's restaurants, alleged that Tangas told her she "had invested approximately $50,000 in Elkafrawi's Airport Highway restaurant," and that, in return, "Ross was put on the [restaurant's] health insurance plan." (Doc. 37-6 at 1). According to Ross, when she told Tangas about the loan, Tangas became "extremely upset" because she "felt that the loan" created a "conflict of interest in her role as Terry's FBC." (Doc. 46-3 at ¶ 9; see also Doc. 46-2 at ¶ 17). Under IHOP's Code of Conduct, a conflict of interest arises when an IHOP employee has "a personal interest in a...franchisee of the company." (Doc. 37-2 at 19). The Code requires that any conflict be "disclose[d]...to [a] supervisor." (Id. ). At Tangas's urging, Ross asked Elkafrawi to return the money. When, several months later, he did so, he included $8,000 in interest (though Ross returned that money). (Doc. 46-3 at ¶ 9). It is undisputed that Tangas did not disclose these events to IHOP or her supervisor. (Doc. 46-2 at ¶ 18). According to Tangas, she did not believe "that it was a violation of any company policy" because she "never considered it to be an 'investment' in Elk's restaurants." (Id. ). But Tangas acknowledged that the transaction "ran contrary to her role as FBC and could be perceived to be unethical." (Doc. 18 at ¶ 25). B. Federal Investigation In September, 2011, the Federal Bureau of Investigation raided Elkafrawi's home and IHOP franchises. (Doc. 37-2 at ¶ 5). The raid was part of the FBI's inquiry into apparently widespread criminal activity at his restaurants, including employing and harboring illegal aliens, money laundering, and fraud. When Tangas learned of the raid, she asked a representative from either DineEquity's or IHOP's legal team what to do if the FBI wanted to speak with her; the representative told her "to cooperate and talk to the FBI." (Doc. 46-2 at ¶ 19). On September 26, FBI agents questioned Tangas at her home about "Elk's employees and hiring practices." (Id. at ¶ 20). Tangas explained that she had "no involvement with or access to Elk's hiring practices or 'back office' operations." (Id. ). She also told them Elkafrawi had financial problems. (Id. ). It was in this context that Tangas revealed Ross's loan to Elkafrawi and her own failure to report it to IHOP. (Id. ). *1122At the close of the interview, which, according to Tangas, had grown "more and more accusatory," Tangas had the impression that the agents "believed [she] had done something wrong or was not telling them what they wanted to hear." (Id. at ¶ 21). C. IHOP's Internal Investigation IHOP opened its own investigation after the raid. (Doc. 37-2 at 2-3, ¶ 8). Christine Son, DineEquity's in-house counsel, testified that "IHOP did not know if the company itself might be a target of the FBI's investigation or a victim of potential wrongdoing." (Id. ). Son spoke with Tangas by phone on September 26, shortly after Tangas had spoken to the FBI. (Id. ¶ 9). She told Tangas that she represented only IHOP. (Id. ). According to Tangas, Son asked her to relate everything she had discussed with the FBI. Tangas told her that the agents had asked her not to discuss her interview with anyone, but Son instructed her that, as an IHOP employee, Tangas had "no choice" but to disclose everything. Fearing for her job, Tangas did so. (Doc. 46-2 at ¶ 22). In October, 2011, Tangas hired a criminal defense attorney, Ralph Meczyk, to represent her. (Id. at ¶ 23; Doc. 37-3 at 122). In February, 2012, Son asked Tangas to participate in an interview at IHOP headquarters in California. (Doc. 37-2 at 3, ¶ 10). It was Tangas's understanding that FBI agents would be present (Doc. 37-3 at 153), but Tangas later learned this was not the case. (Doc. 46-2 at ¶ 24). As Son explained, the FBI "had no role whatsoever in this interview request," which "related solely to IHOP's own internal investigation of the Elkafrawi operations." (Doc. 37-2 at 2, ¶ 10). Tangas told Son that she wanted her attorney present, and Son indicated this was acceptable. (Doc. 37-2 at 3, ¶ 11). But when Son contacted Meczyk to schedule the interview, he declared in an email that Tangas would refuse to answer further questions: We have been informed by the United States Attorneys [sic ] Office that Ms. Tangas is the subject of a Federal Criminal Investigation. As such, she will be invoking her 5th Amendment Rights in response to any questions posed to her in any collateral matters. (Doc. 37-2 at 7). Son responded that Tangas was obligated "to cooperate with the Company in investigating any alleged violations" of IHOP's Global Code of Conduct. (Id. at 8). According to the Code of Conduct, which Son attached to her email to Meczyk, IHOP employees "are expected to cooperate in the investigation of any alleged violation if requested to do so." (Id. at 30). Son advised Meczyk that, if Tangas "refuses to comply in assisting the Company investigate the matter at hand, we will be forced to terminate her employment." (Id. at 8). In a February 29 email response, Meczyk wrote that he "view[ed] this as a retaliatory discharge to Ms. Tangas invoking her 5th amendment right not to testify in this matter. She will not be answering any questions." (Id. at 32). IHOP fired Tangas on March 2 for violating the Code of Conduct and refusing to participate in the interview. (Doc. 37-2 at 4, ¶ 16). D. The Indictment In May, 2012, a federal grand jury indicted Elkafrawi, Tangas, and sixteen others on charges arising from Elkafrawi's operation of his IHOP franchises. (Doc. 16-1). *1123The sixty-four-count indictment charged Tangas with one count of money laundering, one count of conspiring to harbor illegal aliens, and four counts of mail fraud. (Id. at 6, 26-30). As to Tangas, the indictment essentially alleged that she had used her position as an FBC to shield Elkafrawi's criminal activities from IHOP corporate. (Id. at 10-11, ¶ 33). To support this charge of collusion, the indictment homed in on the $50,000 payment to Elkafrawi. According to the indictment, this payment helped Elkafrawi purchase an additional IHOP restaurant to extend the reach of his fraudulent operations. (Id. at 11, ¶¶ 34-35). In exchange for the money, Elkafrawi agreed that Ross "would receive health benefits and paychecks[.]" (Id. at ¶ 34). Thereafter, Tangas deposited a $5,000 check drawn on one of Elkafrawi's IHOP's accounts "as a partial return on her sub rosa investment in the Findlay IHOP." (Id. at ¶ 37). The indictment further charged that Tangas "failed to inform IHOP Corporate of her financial relationship with either [Ross] or Elkafrawi." (Id. at ¶ 39). The upshot of Tangas's activities, the indictment concluded, was that Elkafrawi was effectively "shielded from IHOP corporate scrutiny." (Id. at ¶ 45). The criminal case against Tangas proceeded for more than two years until, on May 28, 2014, the U.S. Attorney's Office dismissed the charges without prejudice. (Doc. 18 at ¶ 34). Tangas incurred more than $130,000 in legal fees. (Doc. 18 at ¶ 48). E. Indemnification DineEquity's corporate bylaws and IHOP's LLC agreement authorize each entity to indemnify its directors, officers, employees, and agents. Under DineEquity's bylaws, the corporation: shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. (Doc. 37-2 at 94). IHOP's LLC agreement provides that: the Company shall indemnify and hold harmless each Covered Person from and against any and all losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil criminal administrative or investigative ("Claims"), in which the Covered Person may be involved, or threatened to be involved as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of the Company or its property, business or affairs. A Covered Person shall not be entitled to indemnification under this Section 8.2 with respect to (i) any Claim with respect to which such Covered Person has engaged *1124in fraud, willful misconduct, bad faith or gross negligence[.] (Id. at 101). Sometime before Tangas filed this lawsuit, in August, 2015, she demanded that IHOP pay the legal fees she had incurred defending the criminal action. (Doc. 45-1 at 51-52). IHOP denied the request in light of "the allegations in the indictment and supported by the evidence in the government interviews." (Doc. 45-1 at 65). Before IHOP made that decision, "the FBI provided part of its investigatory file to IHOP." (Doc. 37-2 at 4. ¶ 17). F. Litigation Tangas filed this suit in the Lucas County, Ohio, Common Pleas Court. (Doc. 1-1). Her complaint raised claims for: 1) wrongful termination in violation of Ohio's public policy favoring the right to consult with counsel; and 2) indemnification, under Ohio law, for the attorney's fees she incurred in the criminal case. (Doc. 1-1). After removing the case to this court on the basis of diversity jurisdiction (Doc. 1 at ¶¶ 9-13), defendants moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6). I denied the motion as to the wrongful-termination claim, finding that Tangas had plausibly alleged that IHOP fired her "for refusing to speak with the FBI and retaining her own counsel." Tangas v. Int'l House of Pancakes LLC , 2016 WL 614006, *3 (N.D. Ohio). But I granted the motion, without prejudice, as to the indemnification claim, given that Delaware law, rather than Ohio law, appeared to supply the applicable rule of decision. Id. at *4. Tangas filed an amended complaint in April, 2016, which pleaded the indemnification claim as arising under Delaware law. (Doc. 18). Following a period of discovery, and the filing of the parties' counter-motions for summary judgment, the case is now ripe for decision.1 Standard of Review Summary judgment is appropriate under Fed. R. Civ. P. 56 where the opposing party fails to show the existence of an essential element for which that party bears the burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant must initially show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Once the movant meets that burden, the "burden shifts to the nonmoving party [to] set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56"requires the nonmoving party to go beyond the [unverified] pleadings" and submit admissible evidence supporting its position. Celotex , supra , 477 U.S. at 324, 106 S.Ct. 2548. I accept the non-movant's evidence as true and construe all evidence in its favor. Eastman Kodak Co. v. Image Tech. Servs., Inc. , 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). "Where, as here, parties have filed cross-motions for summary judgment, the Court grants or denies each motion for summary judgment on its own merit, applying the standards described in Fed. R. Civ. P. 56." Williams v. Ohio Dep't of Rehab. & Corrs. , 2018 WL 500167, *1 (S.D. Ohio). Discussion The parties' counter-motions raise identical issues: 1) whether Tangas has a right to indemnification under the DineEquity bylaws; and 2) whether Tangas has a right *1125to indemnification under IHOP's LLC agreement.2 A. Indemnification under DineEquity's Bylaws DineEquity must indemnify a person who is or may be a party to any suit "by reason of the fact that [s]he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise[.]" (Doc. 37-2 at 94). To qualify for indemnification, Tangas must show that she was either "a director or officer" of DineEquity or "serving at the request of [DineEquity] as a[n]...employee...of another corporation"-i.e., that DineEquity requested her to serve as an FBC for IHOP. But even viewing the record in the light most favorable to Tangas, there is no evidence that would permit a reasonable jury to find that DineEquity must indemnify Tangas. 1. Tangas Was Not an Officer or Director, Nor Did She Serve at the Request of DineEquity First, it is undisputed that Tangas was not a DineEquity officer or director. Second, as a matter of Delaware law, an employee of a subsidiary company serves "at the request of" its parent company only when the parent company appoints the employee to a specific position. VonFeldt v. Stifel Fin. Corp. , 714 A.2d 79, 85 (Del. 1998) ("where a 100% stockholder elects a director to the board of a subsidiary, that director thereafter serves the subsidiary 'at the request' of the stockholder" and is entitled to indemnification by the stockholder); Zaman v. Amedeo Holdings, Inc. , 2008 WL 2168397, *19 (Del. Ch.) (where Jeffri, who was the sole owner of parent and subsidiary entities, asked the Derbyshires, who were lawyers, "to serve as his agents for all of his entities," the Derbyshires served "at the requests of the subsidiaries above them"). Tangas has offered no evidence that DineEquity-whether in writing, orally, or otherwise-asked or directed her to serve as an FBC for IHOP. Instead, the undisputed evidence establishes that Tangas was, and always had been, an IHOP employee serving as an FBC at IHOP's request. 2. Tangas Was an Employee of IHOP, Not DineEquity Tangas acknowledged in her declaration in support of summary judgment that she was "hired by...[IHOP]...on July 29, 1991." (Doc. 46-2 at 2, ¶ 3). Tangas also conceded that, after the corporate restructuring in which DineEquity emerged as IHOP's parent company, she "continued to be an employee of IHOP." (Id. ; see also Doc. 45-1 at 20). To be sure, Tangas "considered [herself] to be an employee of DineEquity" (Doc. 46-2 at 2, ¶ 3), but such a belief, without evidence of an employment relationship between DineEquity and Tangas, does not create a genuine factual dispute. Guba v. Huron Cnty., Ohio , 695 Fed.Appx. 98, 105 (6th Cir. 2017) (plaintiff's testimony that she believed a county agency failed to remit certain child-support payments made by her ex-husband was insufficient to permit *1126a jury to find that the agency had in fact failed to remit those payments). Furthermore, the record establishes that IHOP paid Tangas's salary and issued her W-2 forms. (Doc. 37-2 at 2, ¶ 4). At all relevant times, moreover, Tangas's direct supervisors were "always IHOP, or IHOP Inc., employees." (Id. ). In contrast, there is no evidence that DineEquity ever controlled or directed her work as an FBC. (Id. ). Tangas nevertheless contends that she was a DineEquity employee because: 1) she received "a twenty-year service award with DineEquity's name on it"; 2) DineEquity's legal department, in consultation with its HR department, decided to fire her; and 3) DineEquity's reason for firing her was that she violated its, rather than IHOP's, code of conduct. (Doc. 46-1 at 25). None of this evidence permits a reasonable finding that Tangas was a DineEquity employee. First, Tangas's service award, which commemorated her two decades of "dedicated and loyal service," also displayed an IHOP logo. (Doc. 46-2 at 12). On its face, moreover, the award is silent as to whether IHOP or DineEquity employed Tangas. Only through speculation, then, could a jury find that the service award is evidence that DineEquity was Tangas's employer. Arendale v. City of Memphis , 519 F.3d 587, 605 (6th Cir. 2008) (plaintiff "cannot rely on conjecture or conclusory accusations" to defeat summary judgment). Second, the record does not support Tangas's assertion that it was DineEquity's legal team that fired her. It is undisputed that DineEquity is IHOP's parent company, and that it provides "shared services," including "legal support," to its subsidiary. (Doc. 37-2 at 2, ¶ 3). But Son testified without contradiction that she acted in her capacity as IHOP's counsel when she investigated the Elkafrawi matter and fired Tangas. (Doc. 37-2 at 3, ¶¶ 8-9). Indeed, Tangas agreed that, in their discussions, Son "made it clear that [Son] only represented IHOP." (Doc. 46-2 at ¶ 22). Third, though denominated "DineEquity, Inc. Global Code of Conduct," the Code of Conduct at issue applied to "[a]ll officers and team members of DineEquity, Inc., [IHOP], Applebee's [ ] and all of the affiliates and subsidiaries of those companies." (Doc. 37-2 at 10). It is therefore incorrect to say that DineEquity fired Tangas for violating only DineEquity's Code of Conduct, for what violated that Code necessarily violated IHOP's Code of Conduct. Given the undisputed evidence that DineEquity never requested that Tangas work as an FBC, as well as the evidence establishing that IHOP hired, paid, supervised, and issued W-2 forms to Tangas, there is simply no basis for a jury to conclude that DineEquity must indemnify Tangas. 3. Delaware's Mandatory-Indemnification Law Does Not Apply to Tangas Finally, Tangas contends that a provision of Delaware corporate law requires DineEquity to indemnify her because she was successful in defending the criminal case. (Doc. 46-1 at 24-25). At one time, Delaware law required corporations to indemnify any director, officer, employee, or agent who was "successful on the merits or otherwise in defense of any action." Green v. Westcap Corp. of Del. , 492 A.2d 260, 262 (Del. Super. 1985). Now, however, the mandatory duty to indemnify applies only to officers and directors. See 8 Del. C. § 145(c) (if a "present or former officer or director" is successful in litigation, "such person shall *1127be indemnified against expenses (including attorney's fees) actually and reasonably incurred by such person"). Because Tangas was not an officer or director of any company, let alone of DineEquity, the mandatory-indemnification provision does not apply to her. B. Indemnification under IHOP's LLC Agreement Under its operating agreement, IHOP "shall indemnify" a "Covered Person" against "any and all...expenses...arising from any and all...suits or proceedings, civil, criminal, administrative or investigative...in which the Covered Person may be involved, or threatened to be involved... as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of the Company or its property, business or affairs." (Doc. 37-2 at 101). "Covered Persons" include "the Member [i.e., DineEquity], any officers, directors, stockholders, partners, employees, affiliates, representatives, or agents of any of the Member," or "any officer, employee, representative, or agent of the Company [i.e., IHOP]." (Id. ). The LLC agreement relieves IHOP of its duty to indemnify a "Covered Person" "with respect to...any Claim with respect to which such Covered Person has engaged in fraud, willful misconduct, bad faith or gross negligence[.]" (Id. ). 1. Parties' Arguments Defendants seek summary judgment on three grounds. They first argue that the indemnification provision covers only those expenses that current, as opposed to former, IHOP employees incur. (Doc. 37-1 at 22). Defendants concede that Tangas "was a 'Covered Person' when she was an IHOP employee" and became a target of the federal investigation, but contend that "her status as a 'Covered Person' ended upon termination." (Id. ). This is so, defendants maintain, because the indemnification provision applies only to "Covered Persons" who are "involved, or threatened to be involved," in a proceeding. Next, defendants argue that Tangas's indemnification rights did not continue after IHOP fired her. Defendants acknowledge that Delaware corporate law sets a default rule that indemnification rights continue after a person ceases to be an employee, see 8 Del. C. § 145(j), but they argue, correctly, that no such default exists for LLCs. Because IHOP's LLC agreement does not specify that indemnification rights continue after a firing, defendants maintain it does not cover Tangas's post-termination expenses. Finally, defendants argue that, even if IHOP were obligated to indemnify Tangas, her fraud and willful misconduct relieved IHOP of that obligation. According to the defense, Tangas engaged in fraud when she failed to report the conflict of interest that arose when Ross loaned $50,000 to Elkafrawi. Defendants also maintain that Tangas committed willful misconduct by refusing to participate in an interview during IHOP's investigation. Tangas contends that she is entitled to summary judgment because the LLC agreement created a contingent right to indemnification that vested when she became a target of the federal investigation-"threatened to be involved as a party," in the contractual language-and that this right continued after her firing. She also disputes IHOP's claim that she engaged in fraud and willful misconduct. Tangas argues that there is no evidence that she engaged in the wrongdoing alleged in the federal indictment. She also contends her refusal to participate in the interview was not willful, given that circumstances-namely, the pending criminal *1128investigation-all but compelled her not to participate. Finally, Tangas asserts that any alleged misconduct was not "with respect to" the criminal case, and thus provides no basis for denying indemnification. 2. The LLC Agreement Does Not Obligate IHOP to Indemnify Tangas for Her Post-Firing Expenses "In Delaware, limited liability companies are creatures of contract, designed to afford the maximum amount of freedom of contract, private ordering and flexibility to the parties involved." Fillip v. Centerstone Linen Servs., LLC , 2014 WL 793123, *3 (Del. Ch.). Insofar as indemnification is concerned, Delaware law leaves it to each LLC to decide whether and to what extent it will indemnify its members, officers, and employees. According to 6 Del. C. § 18-108 : subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever. The parties agree that Tangas was a "Covered Person" until March 2, 2012, when she lost her job, and that, setting aside the issue of fraud and bad faith, Tangas would be entitled to indemnification for expenses she incurred until March 2. The critical dispute is whether Tangas is entitled to indemnification for expenses she incurred after her firing, which represent the vast majority of the damages she seeks. The LLC agreement extends indemnification rights only to "Covered Persons"-including employees like Tangas-who "may be involved," or are "threatened to be involved," in a criminal proceeding. (Doc. 37-2 at 101). This language requires the presence of a "Covered Person" in a proceeding, or that a "Covered Person" be "threatened to be involved" in such a proceeding. It contrasts, rather starkly, with the language of DineEquity's bylaws, which extends indemnification rights to any person who is a party to a proceeding "by reason of the fact that he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation[.]" (Doc. 37-2 at 94) (emphasis supplied). Such language clearly contemplates that a former employee may be entitled to indemnification. Tangas does not offer a convincing interpretation of the indemnification clause that would cover her post-termination expenses. Rather, she argues that, by failing to specify that the indemnification clause does not exclude former employees, IHOP implicitly agreed to cover the expenses of its former employees. This argument lacks merit because it has no logical endpoint. There are many categories of people whom the LLC agreement does not define as "Covered Persons"; under Tangas's interpretation, all such categories of persons could claim indemnification. Case law suggests, moreover, that, absent language in a corporate governing document that refers to "current or former" employees, Delaware courts will interpret a term like "employee" as referring to current employees only. Cf. Charney v. American Apparel, Inc. , 2015 WL 5313769, *15 (Del. Ch.) ("When the words 'officers' and 'directors' are not qualified by the adjective 'former' (or a similar adjective), Delaware courts have interpreted those words to current officers and current directors."). *1129Tangas also contends that her right to indemnification vested when she became a target of the federal probe, and that defendants could not strip her of that right by firing her or otherwise.3 But Tangas points to no language in the LLC agreement that obligates IHOP to cover the expenses she incurred when she was no longer a "Covered Person." See Fillip , supra , 2014 WL 793123 at *3 ("duties or obligations must be found in the LLC Agreement or some other contract"). All the operating agreement obliges IHOP to do is indemnify a "Covered Person" who is involved in, or is threatened to be involved in, a proceeding. What's more, the operating agreement, taken as a whole, suggests that IHOP never intended to extend indemnification rights to former employees like Tangas, even if that person became entitled to indemnification while still a "Covered Person." Section 8.3 of the operating agreement is titled "Amendments to this Article," and it limits IHOP's ability to strip "Covered Persons" of their existing indemnification rights. The section provides that: [a]ny repeal or modification of [the indemnification article] shall not adversely affect any such right of such Covered Person pursuant to this [indemnification article], including the right to indemnification...existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification. (Doc. 37-2 at 102). This language forbids IHOP from retroactively stripping a "Covered Person" of her existing indemnification rights. In contrast, there is no prohibition on IHOP's discontinuing indemnification once a person ceases to be a "Covered Person." Indeed, the indemnification clause essentially gives IHOP permission to do so by cabining the company's indemnification duties to current employees only. Finally, some Delaware cases have recognized that a contingent right to indemnification may vest when an indemnifiable event occurs. E.g. , Branin v. Stein Roe Investment Counsel, LLC , 2015 WL 4710321, *3 (Del. Ch.) ("Branin's contingent right to indemnification vested on November 22, 2002, when [a lawsuit was filed against him]"); Salaman v. Nat'l Media Corp. , 1992 WL 808095, *6 (Del. Super.) ("Salaman's right to advancement and indemnification is a vested contract right which cannot be unilaterally terminated. Once an Indemnified Event occurred, the contract rights vested."). But it is impossible to read these cases as announcing a free-standing right to vested indemnification for any and all current and former employees of a limited liability company. Rather, each case turns on its own facts and the relevant contractual language, and I must read them in light of the preeminent rule of freedom of contract. The issue in Branin , for example, was whether the defendant LLC had to indemnify Branin for expenses he incurred when his former employer sued him. Branin v. Stein Roe Investment Counsel, LLC , 2014 WL 2961084, *1-2 (Del. Ch.). Defendant's LLC agreement clearly entitled Branin to such indemnification, but after the suit began defendant amended its operating agreement to relieve itself of its duty to indemnify Branin. Id. at *3. The Chancery Court held that Branin's right to indemnification under the original LLC agreement vested when his former employer sued him, and that the amendment could not unilaterally rescind that right. Id. at *8. *1130Branin simply did not address the issue that this case presents: whether a fired employee remains entitled to indemnification even after her firing, when she is no longer a "Covered Person." Finally, to the extent any indemnification right might have "vested" in this case, it was a right to indemnification while Tangas was a "Covered Person" and involved, or threatened to be involved, in a proceeding. Nothing in Delaware law prohibited IHOP from so limiting its indemnification duties, and nothing in the LLC agreement requires IHOP to indemnify a former employee whom it had fired. Accordingly, no reasonable jury could find that Tangas was entitled to indemnification under the IHOP LLC agreement. 3. Tangas's Fraud and Willful Misconduct Relieved IHOP of Any Duty to Indemnify Tangas Even assuming, arguendo , that IHOP's operating agreement required it to indemnify Tangas, the undisputed evidence establishes that IHOP reasonably declined to do so because her conduct "with respect to" the criminal case amounted to "fraud, willful misconduct, bad faith or gross negligence." (Doc. 37-2 at 101). a. Business Judgment Rule The parties' summary-judgment briefs proceeded on the assumption that the key issue was whether, on de novo review of the record, a rational jury could find that Tangas engaged in fraud or willful misconduct. That is, the parties appeared to assume the jury would owe no deference to the defendants' determination that Tangas's conduct disqualified her from receiving indemnification. Questioning that assumption, I asked the parties to address whether "it would be appropriate for a rational finder of fact to defer in some way to defendants' finding that Tangas engaged in fraudulent behavior[.]" (Doc. 52 at 4). By way of illustration, I noted that, in the employment-discrimination context, "[c]ourts may not second-guess the business judgment of an employer but must instead determine whether the employer gave an honest explanation of its behavior." (Id. at 3-4) (internal quotation marks omitted). In their supplemental brief, defendants argue that Delaware's business judgment rule protects their decision not to indemnify Tangas. (Doc. 53 at 5, 9-12). Tangas contends that, because the LLC agreement clearly entitles her to indemnification, the business judgment rule cannot protect defendants from failing to do so. (Doc. 56 at 8-11). "It is well settled under the Delaware business judgment rule that, in making a business decision, the directors of a corporation are presumed to act on an informed basis, in good faith, and in the honest belief that the action taken is in the best interest of the company." Minnesota Invco of RSA No. 7, Inc. v. Midwest Wireless Holdings LLC , 903 A.2d 786, 797 (Del. Ch. 2006). To invoke this rule, which also applies to LLCs, an LLC's members or a corporation's directors "have a duty to inform themselves, prior to making a business decision, of all material information reasonably available to them." Id. Having considered the parties' supplemental filings, I reject Tangas's contention that the business judgment rule is inapplicable. As discussed, Tangas's entitlement to indemnification depends on whether: 1) the right to indemnification she enjoyed before her firing continued after IHOP fired her; and 2) her conduct amounted to fraud or willful misconduct. Tangas is correct that the former issue is a pure legal issue that I must decide de novo: the contract either provides for post-termination *1131indemnification or it does not. But the latter question is not a pure question of contract interpretation; indeed, both sides agree that the contract forbids indemnification if Tangas engaged in fraud or willful misconduct with respect to the claims at issue in the criminal matter. Because IHOP has the power to deny indemnification in those circumstances, Tangas is-contrary to statements in her brief-"ask[ing] this Court to second guess the propriety of an action that IHOP had the authority to take." (Doc. 56 at 9). Accordingly, Tangas must demonstrate that the evidence would permit a jury to find that IHOP's refusal to indemnify her was not the product of reasoned, well-informed decision-making. b. IHOP Reasonably Determined Tangas Engaged in Fraud The undisputed evidence permits only one conclusion: IHOP made a reasonable decision to deny indemnification after investigating the situation and concluding that Tangas engaged in fraud. First, there is no dispute that Ross gave Elkafrawi $50,000, that Tangas learned of this transaction shortly after the fact, and that she never reported it to IHOP. Likewise, IHOP's Code of Conduct encouraged employees to avoid conflicts of interest, and obligated them to report them when they arose. Whether it was a loan or an investment, the payment to Elkafrawi created a conflict for Tangas. If it were an investment, then she had the proverbial "skin in the game" and would have lost her ability to report objectively on Elkafrawi's franchises. If the payment were merely a loan, and by virtue of Tangas's failure to report it, there was a risk that Elkafrawi could hold the transaction over Tangas's head, thereby imperiling her integrity as an FBC for IHOP. Such an undisclosed conflict of interest will support a fraud finding under Delaware law, particularly where there is, as there was here, a duty to disclose. In re Am. Bus. Fin. Servs., Inc. , 362 B.R. 135, 143 (Bankr. D. Del. 2007). Second, there is no dispute that, by the time defendants denied Tangas's request for indemnification, they possessed FBI reports documenting its investigation into Elkafrawi's and Tangas's alleged wrongdoing. (Doc. 37-2 at 4-5, ¶¶ 17-18). IHOP therefore knew not only that Tangas had failed to report a conflict of interest, but also that there was considerable evidence, at least in quantitative terms, that Tangas was part of Elkafrawi's conspiracy. Third, although IHOP also knew that Tangas denied any criminal wrongdoing, defendants were not obligated to accept her assurances to that effect. There is simply no merit to Tangas's argument that IHOP lacked an adequate basis to conclude that her conduct amounted to fraud. (Doc. 46-1 at 11-14) (criticizing alleged unreliability of evidence that led to Tangas's indictment). Finally, there is no reasonable dispute that Tangas's conduct occurred "with respect to" the criminal case. As the indictment itself establishes, the criminal case against Tangas depended on her alleged financial entanglement with Elkafrawi. In the "Manner and Means" section of the indictment charging Tangas with conspiracy, and under the header "Collusion with the FBC," the grand jury charged that Elkafrawi enlisted Tangas "to minimize the likelihood that IHOP Corporate would question the weekly net sales figures underreported by" Elkafrawi's franchises. (Doc. 16-1 at ¶ 33). More specifically, the indictment alleged that Ross's alleged loan was, in fact, "an undocumented investment" by Tangas into one of Elk's restaurants, and that Ross received health insurance and a paycheck *1132in return. (Id. at ¶ 34). According to the indictment: Prior to the December 18, 2003, purchase of the Findlay IHOP by Tarek Elkafrawi, Autumn Lee Tangas had informed Tarek Elkafrawi that IHOP Corporate needed to find a suitable purchaser for the Findlay IHOP. Autumn Lee Tangas knew that Tarek Elkafrawi did not have the financial ability to purchase the franchise at that time, but that she, herself, did. However, Autumn Lee Tangas knew that, because of her position as FBC, she was precluded by IHOP Corporate from investing in any franchise . * * * Autumn Lee Tangas failed to inform IHOP Corporate of her financial relationship with either [Ross] or Tarek Elkafrawi. (Id. at ¶ 35) (emphasis supplied; some internal all-capitalizations omitted). While Tangas's conflict of interest and her concealment of it were not elements of the charges against her, her resulting financial entanglement with Elkafrawi explained why Tangas would have participated in the conspiracy. Accordingly, no reasonable jury could find that IHOP failed to undertake an adequate investigation and make a reasoned decision that Tangas's fraudulent conduct "with respect to" the criminal case extinguished any right to indemnification. c. IHOP Reasonably Decided that Tangas's Refusal to Be Interviewed Was Willful Misconduct Finally, a reasonable jury could only conclude that Tangas engaged in willful misconduct when she refused to participate in an internal IHOP interview. Delaware case law establishes that an employee's knowing violation of an employee code of conduct amounts to willful misconduct. See Avon Prods., Inc. v. Wilson , 513 A.2d 1315, 1317 (Del. 1986) (defendant's violation of "company policy by leaving work early without authorization" "serve[d] to establish willful or wanton misconduct" and justified his firing). Here, it is undisputed that IHOP's Code of Conduct required Tangas to cooperate with the company's investigation into the Elkafrawi case. (Doc. 37-2 at 30). It is also undisputed that IHOP's investigation concerned the same subject matter as the criminal case: Elkafrawi's criminal activities at the IHOP restaurants that Tangas was partly responsible for overseeing. Accordingly, there is no genuine dispute that defendants made a reasoned business judgment not to indemnify Tangas on the ground that her refusal to participate in the interview was willful misconduct "with respect to" the criminal case. Conclusion It is, therefore, ORDERED THAT: 1. Defendants' motion for summary judgment (Doc. 37) be, and the same hereby is, granted; and 2. Tangas's cross-motion for summary judgment (Doc. 46) be, and the same hereby is, denied. So ordered. Tangas's cross-motion does not oppose defendants' request for summary judgment on the wrongful-termination claim. (Doc. 46-1 at 2). Accordingly, defendants are entitled to summary judgment on that claim. Defendants also argue that Tangas's motion is untimely under the Local Rules, but I decline to deny the motion on this ground. In entering the scheduling order in this case, I neglected to follow my usual practice of setting, concurrently with the deadline for plaintiff to oppose the defense motion, a deadline for her to file a counter motion. Given that oversight, untimeliness is no basis for denying plaintiff's motion. At my direction, the parties filed supplemental briefs on this issue and several others. The court thanks the parties for their valuable submissions.

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/3486339/

This is an appeal from a judgment rendered against the appellant in favor of the appellee for causing the Sumwalt Ice and Coal Company to break a contract between it and the appellee, by which the former had agreed to furnish the latter with ice. As the first question to be considered is a demurrer to the declaration, which was overruled, we will state the material allegations made in it. It is alleged that the plaintiff was engaged in the dairy business in June, 1906, and required a large quantity of ice, during the spring and summer months; that, in order to meet its requirements, it entered into a contract with the Sumwalt Company, whereby that company contracted to deliver to the plaintiff, and the plaintiff agreed to buy from it, an amount not exceeding twenty tons of ice each day from the date of the contract until the completion of the plaintiff's plant then in course of construction, at the price of $5 per ton, delivered; that, at the time, the Sumwalt Company was purchasing ice in large quantities from the defendant, which was engaged in the manufacture of ice; that the defendant, learning of the contract between the plaintiff and the Sumwalt Company, notified the latter that it would refuse to deliver any ice whatever to it, unless it refrained from delivering ice to the plaintiff; that said Sumwalt Company being compelled by the exigencies of its business to secure ice from the defendant, and being alarmed by the threat of the defendant, broke its said contract with the plaintiff and advised it that, because of the action of the defendant, it could not carry out its contract with the plaintiff; that thereby the plaintiff was compelled to purchase ice directly from the defendant at a price considerably greater, and on terms considerably less advantageous to it, than it was enjoying under its contract with the Sumwalt Company. It is further alleged that the action of the defendant in causing the Sumwalt Company to break its contract with the plaintiff "was with the desire and intention on the part of the defendant of injuring the plaintiff and of obtaining a benefit for itself, that said action was deliberate and malicious, and *Page 559 inspired by the wish and purpose to force the plaintiff to buy ice directly from the defendant at a larger price, in larger quantities and for a longer period, than were required of the plaintiff under the terms of its aforesaid contract with the Sumwalt Ice and Coal Company. By which unlawful and malicious action on the part of the defendant the plaintiff has been greatly damaged." There is a great conflict between Judges and law-writers as to how far there is a remedy for interference with contract relations, and it would be a useless task to undertake to reconcile them. They quite generally agree in their conclusions when the relation of master and servant exists, but even then reach the same point by different routes. Lumley v. Gye, 2 E. B. 216, is the leading case on the subject. Prior to the dissenting opinion delivered by JUSTICE COLERIDGE in that case, it seems to have been assumed that the action for enticing servants was a common law action, but in that opinion he asserted, and with his marked ability undertook to establish, that such was not the case and that it was founded on theStatute of Laborers, 23 Edw. 3, and that both on principle and authority was limited by it. But however that may be, that statute was never in force in this State and could not have been applicable to conditions here, and the right to such action has always been regarded as a part of the common law. JUSTICE COLERIDGE also undertook to show that the general rule of the English law in respect to breaches of contracts was to confine its remedies by action to the contracting parties, but while it may be conceded that, as a rule, such actions had been confined to those parties, it does not follow that the right of action in third parties did not exist. In Lumley v. Gye, there was a demurrer to each of the three counts in the declaration, and it was held by JUDGES WIGHTMAN, ERLE and CROMPTON, quoting from the syllabus, that "the counts were all good, and that an action lies for maliciously procuring a breach of contract to give exclusive personal services for a time certain, equally whether the employment has commenced or is only in fieri, provided the procurement be during the *Page 560 subsistence of the contract, and produces damage; and that, to sustain such an action, it is not necessary that the employer and employed should stand in the strict relation of master and servant. Semble, by the same Judges, that the action will lie for the malicious procurement of the breach of any contract, though not for personal services, if by the procurement damage was intended to result and did result to the plaintiff." In Ensor v. Bolgiano, 67 Md. 190, Mr. Ensor, an attorney, sued the defendant, alleging that, with malice towards the plaintiff, he induced one Allen to compromise his case against a turnpike company in which the defendant had stock, and to break his contract with the plaintiff to pay him a contingent fee. This Court disposed of the case on the ground that there was no legally sufficient evidence to support the action, and declined to express any opinion on the law as laid down in Lumley v.Gye — although JUDGES YELLOTT and BRYAN filed dissenting opinions in which they approved of the doctrine announced in that case. In Lucke's case, 77 Md. 396, it was held that where an employee, who was performing the duties of his position to the entire satisfaction of his employers, was discharged in consequence of a threat from a labor organization that if he was longer retained, it would be compelled to notify all labor organizations of the city that the business house of the employers was a non-union one, and thus subject them to a great loss, such interference was wrongful and an action would lie against the labor organization by the employee, for the damage he sustained in consequence of such discharge. The evidence showed that the employee was to continue in the employ of his employers as long as his work was satisfactory, but they reserved the right to discharge him at the end of any week. A member of the firm testified that they would not have discharged him except for the objections by the appellee. This Court quoted with approval fromBenton v. Pratt, 2 Wendell, 385, that "Where a contract would have been fulfilled but for the false and fraudulent representations of a third person, an action will lie against such person, although the contract *Page 561 could not have been enforced by action." It also quoted at length from Chipley v. Atkinson, 23 Fla. 206, which said neither the fact that the term of service interrupted was not for a fixed period, nor that there was a right of action against the person induced or influenced to terminate the service, or to refuse to perform his agreement, was of itself "a bar to an action against the third person maliciously and wantonly procuring the termination of, or a refusal to perform, the agreement. It is the legal right of the party to such agreement to terminate or refuse to perform it, and in doing so he violates no right of the other party to it; but so long as the former is willing and ready to perform it, it is not the legal right, but is a wrong on the part of a third party maliciously and wantonly to procure the former to terminate or refuse to perform it." The Court also quoted fromBowen v. Hall, L.R. 6 Q.B.D. 338, which we will refer to later. It said that the Lucke case and that of Lumley v. Gye, "widely differ in important facts, and there is but small analogy in the principles of law properly applicable in each case," but it will be observed that it announced principles which are analogous to those sought to be applied in this case. It distinctly held that an action by an employee would lie against a third person, who maliciously and wantonly procured the termination of the arrangement between the employer and employee, which was not for a definite period, and the facts show that Lucke was not a mere menial servant but a skilled "first class customs cutter." Some material distinctions between that case and the one before us are apparent, but it does go one step further than the cases usually found in the books, in which the relation of master and servant or employer and employee is in any way involved, and there was not, as here, a binding contract between the parties. Generally speaking such suits have been by the master for the enticement of his servant, while the Lucke case was by an employee against a third person for causing his discharge by the employer, and it is difficult to see why, upon principle, a party to a contract should be confined *Page 562 to an action against the other party for a breach of it, when a third party has been the deliberate cause of the breach, for his own selfish or malicious purposes. To say that he has his remedy against the other contracting party is in many cases offering a mere shadow for substance, for oftentimes he may have his trouble for his pay, as the other party to the contract may be financially irresponsible. Why should a labor organization, which has the right to organize and act for the protection and benefit of its members, so long as it does not infringe upon the rights of others, be responsible for causing the discharge of one who it believes interferes with the interests of its members by being so employed, while an employer of labor can maliciously and wantonly, or for his own selfish purposes, cripple another employer with impunity? If the Clothing Cutters and Trimmers Assembly was liable for causing the New York Clothing House to discharge Lucke why should not some importer, or wholesale dealer, have been liable to that house if he had procured some other importer, or dealer, with whom it had a contract, and upon whom it was dependent to secure such goods, to break his contract with that house, and thereby force it to deal on disadvantageous terms with the procurer? Such distinction, based on the technical ground that the relation of master and servant exists in the one case and not in the other, would be well calculated to impress laborers with the belief that the law discriminates between labor and capital — making the one responsible but not the other. Trusts and combinations of capital have ruined many while hiding behind means apparently lawful, but if they cannot be reached when it is shown that they have maliciously and wantonly, or for their own selfish purposes, not only prevented others from making contracts, but compelled contractors to break their contracts, then indeed is the law helpless. Yet that is just what the theory of the appellant, if adopted, might lead to, and it should not be adopted unless clearly within well established principles of law. And when we are called upon to determine that question, we are not to be governed entirely by the lack or scarcity *Page 563 of precedents furnishing a remedy. Principles of law ought not to be stretched beyond reason and justice, but they ought not unnecessarily to be so contracted as to allow them to be made use of as instruments of oppression. This Court quoted in Lucke's case from Winsmore v.Greenbank, Willes Rep. 581, where it was said, "special action on the case was introduced for the reason that the law will never suffer an injury and a damage without a remedy." In Bottomly v.Bottomly, 80 Md. 162, JUDGE BRYAN stated that, "where it is said that when the plaintiff has a right he must have a remedy, if he is injured in the enjoyment of it; it must necessarily be understood that the injury must be an act which is unlawful in itself, or that it is rendered unlawful by the circumstances under which it is committed." And in speaking of Lucke's case he said, "We held that the conduct of the defendant was malicious and unlawful, and that it gave the plaintiff a good cause of action. It was a scheme to accomplish an unlawful result by unlawful means." So in Gore v. Condon, 87 Md. 368, after stating the facts fully, JUDGE BRISCOE, in delivering the opinion of the Court, said: "The question then is, whether the conduct of the defendant under the circumstances stated in this case constituted such a wrongful act, as will give rise to an action for damages." In that case the plaintiff was the owner of some houses and lots, and the defendant obtained a mortgage thereon from a person he knew was not the owner, and although knowing that the mortgage was fraudulent and void, caused the tenants of the property to cease paying their rents to the plaintiff, and advertised the property for sale under an ex parte decree of foreclosure on the mortgage, which was afterwards vacated by a Court of equity, The tenants moved away and the plaintiff lost the rents. It was held that "if a man knows that certain property is not his but another's, and that his apparent title to the same was acquired by fraud and is void, then his intermeddling with such property to the damage of the real owner is an unlawful act for *Page 564 which an action lies." It was also said, "The right to maintain the action can also be sustained, upon the doctrine that a man who induces one of two parties to a contract to break it, intending thereby to injure the other or to obtain a benefit for himself, does the other an actionable wrong" — citing Lucke'scase, Angle v. Chicago c. Ry., 151 U.S. 14, Lumley v. Gye,Bowen v. Hall, supra, and Walker v. Cromn, 107 Mass. 555. It cannot be denied that it is unlawful for a party to a contract to break it, unless, of course, he has sufficient ground for doing so, and therefore when a third party procures or induces him to do so, he is causing him to do an unlawful act, which is itself unlawful, and the law ought to afford a remedy to the injured party. In the appendix to 87 Md. there is a note on Gore v.Condon, by Mr. Brantly, which considered at length the subject of interference with contracts, etc., with his usual clearness. Some of the questions discussed in that note are not involved in this case — for example, the distinction made by some authorities between preventing a contract being made and causing one already made to be broken. This declaration distinctly alleges that a contract had been made, and that the defendant caused the Sumwalt Company to break it, and there is testimony tending to sustain those allegations. In Lucke's case it was held that the defendant was liable although there was no contract in force, requiring the employers to continue his employment, but that part of the decision relied on the discharge, connected with the fact that he would have been continued but for the threats and action of the defendant. In addition to the authorities cited in Gore v.Condon, supra, there are many others in which it has been held that procuring a breach of an existing contract is actionable. InPerkins v. Pendleton, 90 Me. 166 (S.C. 38A. 96), the Court cited with approval Lumley v. Gye, and Bowen v. Hall. After quoting at length from the latter it said: "The doctrine of these cases has been very generally adopted, and the cases themselves very frequently cited, by the Courts of this country," citing a number of them, and added, "In view of these *Page 565 authorities and others, which it is not necessary to refer to, it must be conceded that for a person to wrongfully — that is, by the employment of unlawful or improper means — induce a third party to break a contract with the plaintiff, whereby injury will naturally and probably, and does in fact, ensue to the plaintiff, is actionable; and the rule applies both upon principle and authority as well as to cases where the employer breaks his contract as where it is broken by the employee; in fact it is not confined to contracts of employment." The Court cited Walker v.Cronin, Chipley v. Atkinson, Lucke's case, Raycroft v.Tayntor, 68 Vt. 219, and others. See also Jones v. Stanley,76 N.C. 355. The English cases have for the most part sustained Lumley v.Gye. In Bowen v. Hall, supra, JUDGE BRETT and LORD CHANCELLOR SELBORNE delivered opinions affirming Lumley v.Gye, LORD COLERIDGE, C.J., dissenting. JUDGE BRETT said that the decision of the majority in that case held that, "wherever a man does an act which in law and in fact is a wrongful act, and such an act as may, as a natural and probable consequence of it, produce injury to another, and which in the particular case does produce such an injury, an action on the case will lie." And again he said: "Merely to persuade a person to break his contract may not be wrongful in law or fact, as in the second case put by COLERIDGE, J. But if the persuasion be used for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues from it. We think that it cannot be doubted that a malicious act, such as is above described, is a wrongful act in law and in fact." In Allan v. Flood (1898) A.C. 1, a conclusion was reached which is not in accord with Lucke's case, but Lumley v. Gye, was not overruled, although commented on in the opinions filed. In Quinn v. Leathem [1901], A.C. 495, LORD MACNAGHTEN, in referring to Lumley v. Gye, said, "Speaking for myself, I have no hesitation in saying that I think the decision *Page 566 was right, not on the ground of malicious intention — that was not I think the gist of action — but on the ground that a violation of legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognized by law if there be no sufficient justification for the interference." LORD LINDLEY also expressed the same views. In South Wales Miners Federation v.Glamoyan Coal Co. [1905], A.C. 239, it was held that, "Procuring a breach of contract is an actionable wrong unless there be justification for interfering with the legal right," andLumley v. Gye, was cited with approval by LORD LINDLEY, while in the other opinions it was not questioned. It would seem therefore that Lumley v. Gye, has never been overruled in England, but is the leading case on this general subject. It has been adopted or cited with approval in a number of cases in this country, including Gore v. Condon. It is not altogether easy to lay down general rules as established by the cases but some principles are quite well settled by them. It may be safely said that if wrongful or unlawful means are employed to induce the breach of a contract, and injury ensues, the party so causing the breach is liable in an action of tort. While lawful competition must be sustained and encouraged by the law, it is not lawful, in order to procure the benefit for himself, for one to wrongfully force a party to an existing contract to break it, and a threat to do an act which would seriously cripple, if not ruin, such party, unless he does break it, is equivalent to force, as that term is used in this connection. We say "wrongfully" force, because the procurer would not be liable if he had the right to compel the party to break his contract. For example, if the contract between the Knickerbocker Company and the Sumwalt Company, prohibited the latter from selling ice to any customer of the former and the Gardiner Company was a customer within the meaning of the contract, it would not necessarily be wrongful for the Knickerbocker Company to refuse to deliver ice to the Sumwalt Company for the Gardiner Company. In other words it has the right to protect its own contracts, and merely *Page 567 because its action in that respect would result in the Sumwalt Company not being able to furnish the Gardiner Company would not make the Knickerbocker Company liable to the latter, but if the object of Knickerbocker Company was merely to procure the trade of the Gardiner Company, and for that purpose threatened to refuse to furnish the Sumwalt Company with ice unless it violated its contract with the Gardiner Company, although there was no contract between the Knickerbocker Company and the Sumwalt Company, which prohibited the latter from selling to the Gardiner Company, then the Knickerbocker Company would be liable to the Gardiner Company for injury sustained by it for breach of the contract by the Sumwalt Company so procured. That is an illustration of what is meant in the South Wales MinersFederation case, supra, where it is said that "Procuring a breach of contract is an actionable wrong, unless there be justification for interfering with the legal right." Again the mere fact that a party acts from a bad motive or maliciously does not necessarily make him liable. If he has the right to act, his motive in acting cannot of itself make his act wrongful, but if he had no right to procure a breach of contract and resorts to unlawful means in doing so, he is liable to the injured party. We say "unlawful means" because a party may be the means of causing a contract to be broken, and still not be liable. To illustrate, A may advertise his goods for sale at such a low rate as to result in a breach of contract by B, who was under contract with C, to buy at a higher price, but that would not make A liable to C, or to make the illustration more apt, if the Knickerbocker Company had simply refused to furnish the Sumwalt Company with ice the Gardiner Company would not for that reason alone have a remedy against the Knickerbocker Company. Such action would not necessarily be unlawful or wrongful, but if the Knickerbocker Company refused to furnish the Sumwalt Company if it furnished the Gardiner Company, although it knew it was under contract to do so, in order to get the business of the Gardiner Company for itself on its own terms, then *Page 568 it was unlawful to thus interfere with the contract between the Sumwalt Company and the Gardiner Company. So without further pursuing that branch of the case we are of the opinion that the demurrer was properly overruled, as the declaration stated an actionable wrong, even if there had been no express allegation of malice. The first prayer of the plaintiff sets forth the facts practically as alleged in the nar., although it does not in terms submit the question whether the defendant acted maliciously. It did however require the jury to find that "the object of the defendant in so notifying the Sumwalt Company was to benefit itself at the expense of the plaintiff by compelling the plaintiff to buy from the defendant directly, at a price greater than paid the Sumwalt Company and not through the medium of the Sumwalt Company." Such an act is in accordance with the principles announced in Gore v. Condon, "an actionable wrong." Although many of the cases speak of the act as being maliciously done, it would seem to be clear that express malice is not necessary if the act is wrongful and unjustifiable. InWalker v. Cronin, 107 Mass. 555, which was before the Court on a demurrer to the declaration, there was no allegation of malice, and that Court held that the declaration was sufficient. It is true that the Court said that intentional and willful acts, calculated to cause damage to the plaintiffs in their lawful business, done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendant, constitute malice, and in Bowen v. Hall, it was said by BRETT, J., that such an act as alleged in this declaration is a malicious act. See also Perkins v. Pendleton,supra; Bixby v. Dunlap, 56 N.H. 456. We do not think the special exceptions to it can be sustained, and we find no error in granting this prayer. The second prayer of the plaintiff presents some difficulty. After authorizing the jury to award such damages as would compensate the plaintiff for pecuniary loss if it found for the plaintiff it goes on to say, "and if they shall further find and believe that the defendant acted maliciously, that is to say, *Page 569 with a wanton disregard of all the plaintiff's rights, then they are at liberty to award such additional amount by way of exemplary damages as the circumstances in their judgment require to prevent the repetition of such conduct on the part of the defendant in the future." In a suit between the parties to a contract the general rule is that whether it be an action ex contractu, or an action of tort, founded on the breach of the contract, the measure of damages is the same and under the control of the Court. B. O.R.R. Co. v. Pumphry, 59 Md. 390; Same v. Carr,71 Md. 135; Webster v. Woolford, 81 Md. 329; Thompson v.Clemens, 96 Md. 207. But it was said in Carr's case, which was an action of tort for wrongfully refusing to admit plaintiff to the car of the defendant, although he had a ticket, that, "In cases of this character, the jury can only give such damages as were the immediate consequences naturally resulting from the act complained of, with the right to allow exemplary damages for any malice, or the use of any unnecessary force, in the commission of the wrong alleged." And in Webster v. Woolford the right to exemplary damages in some cases founded on contract was recognized. But the difficulty is that there is no evidence of malice in this case, unless it be such as some of the cases speak of — that the intention to benefit the defendant, or to injure the plaintiff, is to be treated as evidence of malice. But we have found no case in which exemplary damages were allowed for malice implied from such facts. The facts stated in the first prayer are in our judgment sufficient to entitle the plaintiff to recover, but we do not think they authorize recovery of exemplary damages, and there was not sufficient evidence outside of those facts to authorize the submission of this prayer. We do not mean to say there may not be such damages in cases of this character, for if, for example, there was evidence tending to show that the defendant had caused the contract to be broken for the sole purpose, and with the deliberate intention of wrongfully injuring the plaintiff, exemplary damages might be recovered, but when the object was merely to benefit itself, although the *Page 570 plaintiff would be thereby injured, there would be no more reason for allowing such damages than there would be in a suit by one party to a contract against the other for breach of it. Unless there was injury to the plaintiff by the act of the defendant, no action would lie, and therefore such action must be based on injury. We have found no case which would sustain the recovery of exemplary damages under such facts as are disclosed by the record, and do not think they ought to be allowed and there being a special exception to this prayer, raising the question, it ought to have been sustained, and the prayer should not have been granted. It follows from what we have already said that the defendant's first prayer — that there was no legally sufficient evidence to entitle the plaintiff to recover — was properly rejected. The defendant's second and third prayers can be considered together. They rely on a provision in a contract between the Knickerbocker Company and the Sumwalt Company that the latter "will not, directly or indirectly, sell to or interfere with the customers or trade of the said" Knickerbocker Company. Both of them were faulty because they submitted to the jury the construction of the contract. As the contract was in writing it was for the Court, and not the jury, to construe it, but beyond that we do not think there was any evidence to show that the appellee was a customer within the meaning of the contract. It is true it had purchased some ice from the appellant, but before it made the arrangements with the Sumwalt Company it had been notified by the Knickerbocker Company that it would not furnish the ice unless the plaintiff purchased all it needed from that company, which it was not willing to agree to, until it was forced to do so. The appellant can scarcely claim that when the contract of June 30th was made, there was already an existing contract between it and the appellee. The defendant's fourth prayer is disposed of by what we have said about the plaintiff's second. It should have been granted. This brings us to the exceptions to testimony. The first exception was to the admission of a receipted bill signed by *Page 571 the Sumwalt Company for ice sold to the Gardiner Company on June 30th, 1906. We find no error in that ruling. Part of plaintiff's case was that it had a contract with the Sumwalt Company and this bill, identified by the treasurer and manager of the plaintiff, was some evidence tending to sustain that theory. In the first bill of exceptions the evidence of Mr. Wilbourn, superintendent of the Gardiner Company, in reference to a telephone conversation with the Knickerbocker Company was admitted, subject to exception. He called up the company and inquired who was there and the party at the 'phone said the Knickerbocker Ice Company. He did not recognize the voice of the person talking. The man at the 'phone stated the price of the ice, said they had plenty of it and would let the plaintiff have it provided it gave them all its trade. The plaintiff got five or six loads that day (June 29), and all the orders were by telephone. He had his talks with the same person and in each case he got all the ice he ordered. The ninth exception was to the refusal to strike out that evidence. In Murphy v. Jack, 142 N.Y. 215, which was an application to vacate an attachment, which had been issued on an affidavit made on information over the telephone, the Court said: "There would be no objection to the information having been conveyed through the medium of the telephone, if it had been made to appear that the affiant was acquainted with the plaintiff and recognized his voice; or if it had appeared, in some satisfactory way, that he knew it was the plaintiff who was speaking with him." In Wolfe v. Mo. Pac. R. Co., 97 Mo. Ap. 473; S.C., 3 L.R.A. 539, it was held that a conversation by telephone between a witness and another person in the private office of a party is not inadmissibe because the witness does not identify the voice of the other person as that of the party or his clerk. BARCLAY, J., said: "When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conversations so held are as admissible in evidence as personal interviews *Page 572 by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business therein carried on." See also Mo. Pac. Ry. Co. v. Heidenheimer, 82 Tex. 201; S.C.17 S.W. 608; Gen. Hospital Soc. v. N.H. Rendering Co.,79 Conn. 581; S.C. 65 A. 1065; Kan. City Star Co. v. Standard WarehouseCo., 99 S.W. 765 (Mo.); Godair v. Ham. Nat. Bank, 225 Ill. 572; S.C., 80 N.E. 407; Jones on Ev., sec. 210; Wigmore onEv., sec. 2155. The latter says, "No one has ever contended that if the person first calling up is the very one to be identified, his mere purporting to be A is sufficient, any more than the mere purporting signature of A to a letter would be sufficient (ante, sec. 2148). The only case practically presented therefore is that of B's calling up A and being answered by a person purporting to be A. There is much to be said for the circumstantial trustworthiness of mercantile custom (ante, sec. 95), by which, in average experience, the numbers in the telephone directory do correspond to the stated names and addresses, and the operators do call up the correct number, and the person called does in fact answer. These circumstances suffice for some reliance in mercantile affairs; and it would seem safe enough to treat them in law as at least sufficient evidence to go to the jury, just as testimony based on prices — current is received (ante, sec. 719). This view has received some judicial support." The author then goes on to consider the case where the anti-phonal speaker does not purport to be aparticular person, but merely some member of the office staff authorized to make a contract or an admission, and added: "On the principle above suggested (though not with the same force) mercantile experience may well suffice, by which customarily the person who is in fact summoned to the telephone and proceeds to conduct the negotiation is prima facie a person authorized to do so, precisely as a person receiving money at the cashier's desk is presumably authorized to do so. Upon this point there is little judicial inclination to take the liberal view." There have since been other decisions, such as those cited above, which do adopt that view, and we think correctly. *Page 573 As it is a character of evidence that might be used improperly, Courts should be careful in the application of the rule. In this case we have no difficulty in sustaining the rulings of the lower Court. The second bill of exceptions shows that that evidence was offered subject to exception — the expression of the Judge that "I will observe the same ruling that I made before" could have no other meaning when it is considered in the connection in which it is used. As there was subsequently no motion to strike it out there is nothing for us to rule upon. Basshor Co. v.Forbes, 36 Md. 154; Flach's case, 88 Md. 368. The third and fourth relate to the contract between the Sumwalt Company and the appellee. There was no question about the identification of the parties who used the telephone in those instances, and the parties themselves were on the stand. Nor can there be any doubt about the admissibility of the evidence in the fifth, sixth, seventh and eighth bills of exception. The ninth contains the motion to strike out the evidence of Charles G. Wilbourn, but we think that is clearly admissible under the rule announced in Wolfe v. Mo. Pac. Ry. Co., supra, which is sustained by the other authorities cited. The only part of it that there could be any question about was when he spoke of being called up later in the afternoon, but that was wholly immaterial, as he simply told him that he had not taken the matter of the contract up with Mr. Gardiner. We would, however, have no difficulty about that if we treated it as properly before us, as Mr. Wilbourn testified that it was the same voice as that of the person with whom he had the previous conversations, and as that party was the one through whom the ice was ordered of the Knickerbocker Company, which was delivered, it was sufficient evidence of being someone authorized to act for that Company. It follows from what we have said that the judgment must be reversed for error in granting the plaintiff's second prayer and rejecting the defendant's fourth. Judgment reversed and new trial awarded, the appellee to paythe costs. *Page 574

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486340/

The appeal in this case is from a decree of the Circuit Court of Baltimore City, directing the Trustees of the *Page 202 Sheppard and Enoch Pratt Hospital, a body corporate (appellant), to execute and deliver to Swift Company, a body corporate (appellee), an original lease for ninety-nine years, renewable forever, in accordance with a covenant contained in a sublease for ninety-eight years, renewable forever, upon a parcel of ground located at the northwest corner of Pratt and Howard Streets, in the City of Baltimore; the said decree further declaring that when executed and delivered in conformity therewith, such new lease shall be redeemable, after five years, in accordance with the provisions of sections 94 and 95 of article 21 of the Annotated Code of Maryland. The entire parcel of ground above mentioned consists of two lots, which for the purposes of this opinion will be hereinafter designated as lot A and lot B, respectively. Lot B is located at the intersection of the two streets and fronts thirty feet and three inches on Pratt street, with a depth of sixty-seven feet and six inches on Howard Street; and lot A, lying to the west of Lot B and adjacent thereto, has a frontage of forty-four feet on Pratt Street and a depth of sixty-seven feet and six inches. The following stipulations are found in the record: (a) That the ground is rectangular in formation with a frontage of seventy-four feet and three inches on Pratt Street, and a depth of sixty-seven feet and six inches on Howard Street, to the north side of a four foot alley, running in a westerly direction from Howard Street and parallel with Pratt Street; (b) that Moses Sheppard, at the time of the probate of his will in 1857, owned the leasehold interest in both of said lots; (c) that with respect to lot A, the leasehold interest was subject to the payment of an annual ground rent of eleven pounds sterling by virtue of an original ninety-nine year lease, renewable forever, and with respect to lot B, the leasehold interest was subject to an annual ground rent of one-half penny sterling by virtue of an original ninety-nine year lease, renewable forever; (d) that by his will, dated January 16th, 1855, and duly probated and recorded in the office of the Register of Wills of Baltimore City, Moses Sheppard bequeathed *Page 203 his interest in both of said lots to the Trustees of the Sheppard Asylum, incorporated by Act of the Legislature of 1853, chapter 274; the name of said corporation being subsequently, by chapter 17 of the Acts of 1898, changed to the Trustees of the Sheppard and Enoch Pratt Hospital; and (e) that on July 9th, 1866, the Trustees of the Sheppard Asylum by sublease, duly executed and recorded, subleased both of the above lots as one parcel to Lewis Konze, his executors, administrators and assigns, for ninety-eight years, renewable forever, at an annual rental of four hundred and eighty dollars, payable in equal semi-annual installments. It is shown that the above sublease contained the usual covenant as to the right of the lessor to re-enter and repossess the premises upon the failure of the lessee to pay the rent; a covenant of the lessee to pay the same together with all taxes, assessments and public dues, and a covenant for the peaceable and quiet possession of the premises. In addition to the aforegoing, the said indenture contained the following alternative covenants on the part of the sublessor, in event the conditions of the sublease were fully complied with by the sublessee; the same to become effective at the option of the sublessee, that is to say: (1) That "at any time or times hereafter during the continuance of this present demise on the request and at the risk and charge of the (sublessee) upon paying or tendering in payment the sum of ten dollars as a fine therefor, (the sublessor) shall and will make and execute and deliver * * * a new lease of the above demised ground and premises for ninety-eight years to commence and take effect from and at the end of the term for which the same are above demised, subject to the same rent and under the like covenants, clauses and agreements as are herein mentioned so that this present demise may be renewable and renewed forever;" and (2) "That if (the sublessor) shall at any time hereafter acquire the fee simple of and in the ground and premises above described and hereby demised and subleased that then, the (fee simple owner) shall and will accept of a surrender of the *Page 204 above demised premises from (the sublessee) and execute and deliver to (the sublessee) a new lease of the above demised premises for ninety-nine years, renewable forever, subject to the same rent of four hundred and eighty dollars reserved by these presents payable as aforesaid." It is further conceded that subsequently, by deeds dated, respectively, February 5th, 1879, and June 13th, 1903, duly executed and recorded, the Trustees of the Sheppard Asylum, sublessor, acquired the reversion under the original lease as to that part of said entire lot of ground designated as lot A, and, accordingly, the appellant has, since the execution of said deeds, owned the same in fee. Furthermore the stipulation sets forth that on December 31st, 1881, the original lease upon that part of the entire lot of ground designated as lot B, was renewed for ninety-nine years by lease duly executed and recorded; and that no change in the record title of the appellant has since occurred, in so far as the latter parcel of ground is concerned, except that for more than twenty consecutive years the one-half penny sterling rent reserved under the original and renewal lease thereon has not been demanded and has not been paid. Through mesne assignments the appellee, Swift Company, on June 5th, 1905, acquired the subleasehold interests in the entire parcel of ground, as originally created by the sublease of July 9th, 1866, between the appellant and the said Lewis Konze. Swift Company subsequently executed a mortgage upon its said leasehold interest to certain trustees named therein, who are also parties plaintiff in this suit. The bill of complaint, after alleging that the sublessor is now possessed of the reversion in both of the above designated lots, a demand as of October 14th, 1938, upon the sublessor by the sub-lessee for a new ninety-nine year lease renewable forever upon the entire parcel of ground at the annual rental of four hundred and eighty dollars, payable in equal semi-annual installments, and the refusal of the sublessor to comply with said demand, prays that the provision of the original sublease be specifically enforced, and that the *Page 205 sublessor be directed to execute and deliver to the sublessee a new ninety-nine year lease embracing the terms and conditions set forth in said second alternative covenant. Upon the aforegoing facts, it is submitted that by operation of law the appellant has acquired the reversion in the remaining part of said ground designated as lot B, because for more than twenty consecutive years the latter rental has not been demanded or paid. And the appellee, Swift Company, relies upon section 27 of article 53 of Code of Public General Laws in support of the latter contention, which section provides as follows: "Whenever there has been no demand or payment for more than twenty consecutive years of any specific rent reserved out of a particular lot or any part of a particular lot under any form of lease, such rent shall be conclusively presumed to have been extinguished and the landlord shall not thereafter set up any claim thereto or to the reversion in the lot out of which it issued or have right to institute any suit, action or proceeding whatsoever to recover said rent on said lot, * * * provided, however, * * * that no retroactive effect shall be given * * * and the period of limitations herein prescribed shall begin to run only from April 8th, 1884." As successor to all rights under the sublease of the original sublessess, the appellee, Swift Company, has elected to exercise the second alternative covenant embraced therein, and upon the surrender of the premises, require the specific performance thereof; to wit, the execution and delivery to it of a new lease for ninety-nine years, renewable forever, subject to an annual ground rental of four hundred and eighty dollars; and because of statutes enacted in this state since the original sublease of July 9th, 1866, was executed, it becomes important to refer to the same for the purposes of this case. The first of said statutes is chapter 502 of the Acts of 1884, now codified as section 27 of article 53 of the Code, to which reference has above been made, and the second is chapter 207 of the Acts of 1900, now codified as *Page 206 section 95 of article 21 of the Code, which provides as follows: "All rents reserved by leases or subleases of land hereinafter made in this state for a longer period than fifteen years shall be redeemable at any time after expiration of five years from the date such leases or subleases, at the option of the tenants, after a notice of one month to the landlord, for a sum of money equal to the capitalization of the rent reserved at a rate not exceeding six per centum." It may be added that the latter legislation liberalizes redemptory provisions with reference to leases and subleases, as first enacted by chapter 485 of the Acts of 1884, and chapter 395 of the Acts of 1888, now codified as section 94 of article 21 of the Code. In view of the aforegoing legislation it is urged by the appellant that it ought not now to be required to perform that which it covenanted by its sublease of July 9th, 1866, to perform, because at the time the sublease was created, leases were irredeemable in this state, whereas, at this time, a new ninety-nine year lease, for which the appellee contends in accordance with the second alternative covenant embodied in the original sublease, might be construed to be redeemable by virtue of the enactment of the legislation to which we have referred. It is further contended by the appellant: (a) that the rights of the parties or their assigns to a lease or sublease must be interpreted in the light of the law as it existed at the time the sublease was made, it being conceded that in 1866 the title to the fee simple or reversionary estate could not then have been acquired by operation of law through the non-payment, for a period of more than twenty consecutive years, of the rent reserved in the original sublease; (b) that the appellee, subtenant, is prevented from specifically enforcing such rights as it may have had under the covenant of the sublease because of laches on its part; and, (c) that if, because of the covenant in the sublease, the appellant is required to execute a new lease, such new lease would spring out of the covenant embraced in the sublease of 1866, should not *Page 207 be construed as a new and independent transaction, and would, therefore, not be affected by sections 94 and 95 of article 21 of the Code. These defenses will now be considered. It will be recalled that, as to that part of the demised parcel of ground, designated as lot A, the appellant by its own act acquired the reversionary estate therein, and, although it did not, by actual grant or devise to it, acquire the reversion in lot B, the remaining part of the entire demised parcel, it is stipulated and admitted that the half penny rent reserved thereon has not been demanded or paid for over twenty consecutive years. While not a word of precise significance, the word "acquire" as used in the instant sublease, does not restrict the sublessor to the acquisition of the fee simple interest in the demised premises, to that of grant or devise. It may and does contemplate the gain or acquisition of the same in any other lawful manner. With respect to lot B, the record definitely shows that since prior to 1881, neither demand nor payment of the half penny annual rent thereon has been made; and that since June 13th, 1903, on which date the fee in the remaining lot was fully acquired by it, the appellant has held absolute and exclusive control and dominion over the property. No matter how acquired, an interest in land, having those incidents, is an estate in fee simple. Tiffany on Real Property, sec. 20; Arnd v. Lerch,162 Md. 318, 159 A. 587. In Safe Deposit Co. v. Marburg, 110 Md. 410, 72 A. 839, 841, this court, speaking through the late Chief Judge Boyd, said: "Although the law will not ordinarily permit a tenant in possession to dispute his landlord's title, circumstances may arise and conditions exist, which require a change of the common law rule, and such was doubtless the opinion of the Legislature when it passed the act of 1884. When it did pass a law which prescribed the character of evidence which would be sufficient to show an adverse holding by a tenant, when such evidence is produced there can be no reason why such adverse holding of the tenant should not be given the same effect *Page 208 as is given to other adverse possessions. The effect of adverse possession is thus stated in 1 Am. Eng. Encyc. of Law, 883: `By adverse possession of land for the statutory period of limitation the adverse holder acquires a title in fee simple, which is as perfect as a title by deed. Its legal effect is, not only to bar the remedy of the owner of the paper title, but to divest his estate, and vest it in the party holding adversely for the required period of time, so that he may maintain an action of ejectment for the recovery of the land even as against the holder of such paper title who has ousted him.' * * * So, without pursuing that question further, there can be no doubt that the running of the statute may not only affect the remedy of the holder of the paper title, but may extinguish his title, vest title in fee in the adverse holder; and the constitutionality of statutes having such result is no longer an open question. The effect of the act of 1884 is to vest the title of the former landlord in the tenant when it is shown that no rent has been demanded or paid for the statutory period, and, when that is done, the tenant's rights are similar to those vested in one holding by adverse possession under the statute of James I." SeeRegents v. Trustees of Calvary Church, 104 Md. 635, 65 A. 398;Lewis v. Kinnaird, 104 Md. 653, 65 A. 365; Silberstein v.Epstein, 146 Md. 254, 126 A. 74; Hamburger v. Finkel,148 Md. 275, 129 A. 289; Rosenthal v. Traub, 155 Md. 167, 141 A. 558;Arnd v. Lerch, supra. The conclusion, therefore, is inevitable, that by virtue of its acquirement of the full reversionary interest in lot A of the demised premises, by the deeds to it under dates of February 5th, 1879, and June 13th, 1903, respectively, and by operation of law resulting from the passage of chapter 502 of the Acts of 1884, Code, art. 53, sec. 27, the appellant has been the owner of the fee simple interest in the entire parcel of ground, as embraced in its original sublease to Lewis Konze under date of July 9th, 1866, since June 13th, 1903. *Page 209 Notwithstanding the current status of its title, however, the appellant submits that it should not be required to specifically perform the covenant now under consideration, upon the theory that a new lease for ninety-nine years, renewable forever, or a lease for a longer period than fifteen years now executed in this State, will automatically become subject to the provisions of sections 94 and 95 of article 21 of the Code. In other words, it is suggested that, if specific performance is granted as prayed, under the existing state of the law, the appellee, Swift Company, may after the lapse of five years redeem the proposed new lease and terminate its tenancy. Moreover, it is submitted that such redemption, in effect, would enure to the financial benefit of the appellee, and correspondingly result in financial loss to the appellant; and contravene the constitutional provision against the impairment of the obligations of a contract. It should be borne in mind that none of the legislation, designed to prohibit the creation of irredeemable leases or subleases in this state, in any manner affected the irredeemable provisions of leases or subleases in existence at the time of the passage of chapter 485 of the Acts of 1884; which, as has been seen, was the first of the successive measures enacted to that end. The indicated legislation was prospective and not retrospective in its character and effect. It did not prohibit the execution of subsequent leases or subleases for a longer period than fifteen years, but what it did was to subject them to the redemption provisions indicated in the respective acts, in the discretion of the lessee. It may be added that leases for less than fifteen years mean leases without a covenant for renewal, and which are intended by the parties to the contract to end at the expiration of fifteen years or a less period of time.Stewart v. Gorter, 70 Md. 242, 243, 16 A. 644. Primarily, the inquiry in the instant case is whether the appellant may be decreed to specifically perform that which it obviously covenanted to perform, and in the light of the facts before us, with due consideration of the *Page 210 law as it now obtains, we have no hesitancy in holding that a decree for the specific performance of the covenant embodied in the sublease of 1866, as prayed in the bill of complaint, should be granted. Specifically that is the only relief prayed. And were it not for the fact that the decree before us goes further and anticipates what may or may not happen, namely, a request by the appellee to redeem such new lease after the expiration of the period of five years, it would be unnecessary to prolong this opinion. However, in view of a provision, in the decree of the learned chancellor who heard the case below, to the effect that the new lease when executed will be subject to redemption under the provisions of sections 94 and 95 of article 21, we have decided to indicate our views upon that phase of the decree, because in this latter respect we are not in accord with the chancellor's views. In the early case of Flook v. Hunting, 76 Md. 178, 24 A. 670, a lease executed in March, 1864, for a term of ninety-nine years, renewable forever, contained a covenant that the lessor, his heirs and assigns, at such time when the lot of ground described in the lease should be improved by the lessee, his executors, administrators and assigns, by the erection thereon of dwelling houses of specified dimensions, the lessor would, at the request and proper cost of the lessee, execute and deliver to the lessee a separate lease for each house so built, with its lot of ground; thereby so apportioning and dividing the entire rent reserved that each lot into which the whole should be so sub-divided should be liable and bound solely for its own rent, which should be a fair proportion of the whole. It was there contended that new leases upon the separate lots, executed and delivered after the passage of chapter 395 of the Acts of 1888, in accordance with the above covenant in the original lease, executed prior to the passage of the act, were redeemable upon request of the lessee. The lower court so held. But this court, in reversing that ruling, said: "As the original lease was made long prior to the act of 1888, it cannot be affected *Page 211 by any of its provisions. This lease very distinctly created an irredeemable ground rent of $700 a year. A redeemable rent, of course, would be of much less value. * * * Nothing is said about changing the character of the rent so as to make it redeemable, and therefore less valuable. * * * These separate leases are to be considered in connection with the covenant in the original lease, authorizing and requiring them to be made. By virtue of this covenant, they spring out of the original lease, and are virtually separate portions into which it is required to be divided. They cannot be considered as new and independent transactions, originating at the time they are to be executed. * * * These renewals will be founded on the considerations which sustain the first lease, and are really but continuations of it. They derive their existence from it, and, unless the obligation of a contract may be violated, they must continue to be made, with all the covenants of the first lease embodied in them."Maulsby v. Page, 105 Md. 24, 65 A. 818. We are not unmindful that, in the above case, the covenant enforced grew out of an original lease as distinguished from a sublease, as in the instant case, and that a new lease under the covenant now under consideration will possess the characteristics of an original lease between an original lessor and an original lessee, instead of a renewal of a sublease between a sublessor and a sublessee. But when it is recalled that at the time the sublease before us was executed the right of redemption in a lessee as against a lessor, in the absence of a contract to that effect, was not available to the lessee, the latter's right of redemption against the landlord was no stronger than that of a sublessee, as against a sublessor. The appellee, Swift Company, in the instant case, has exercised an option embodied in the form of a covenant in a sublease. To that extent, at least, it must base its right to a new lease upon the sublease under which it now holds the leasehold interest in the demised premises. Its claim to a new lease must, and does, spring from the covenant in the sublease under which it asserts that claim, *Page 212 and the new lease to which it is entitled should give effect to the intention of the parties to the contract upon which it relies. 12 Am. Jur. secs. 226 and 227; 8 R.C.L. pp. 1037, 1038 and 1046; Weinbeck v. Dahms, 134 Md. 464, 107 A. 12. Our conclusion, therefore, is that the chancellor erred in directing that the new lease decreed to be executed be redeemable. To the contrary, the new lease, in conformity with the provisions of the sublease by virtue of which it will be executed, for the reasons stated will be irredeemable. It may be stated that we have not considered the effect which the question of laches may have had on the instant case, if the same had not been decided on other grounds. Decree affirmed in part and reversed in part, and causeremanded, to the end that a decree may be passed in accordancewith the opinion of this court, with costs to the appellant.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3209674/

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Target Construction, Inc. ) ASBCA No. 58811 ) Under Contract No. W912EE-10-C-0028 ) APPEARANCES FOR THE APPELLANT: S. Leo Arnold, Esq. Matthew W. Willis, Esq. Ashley, Ashley & Arnold Dyersburg, TN APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney John M. Breland, Esq. Walker D. Moller, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Vicksburg ORDER OF DISMISSAL The parties have filed a joint motion to dismiss with prejudice stating that the matters in dispute have been resolved. Accordingly, this appeal is dismissed with prejudice. Dated: 25 May 2016 )Y) ,,~l"J II t'Lc~~/l~ MICHAEL N. O'CONNELL Administrative Judge Armed Services Board of Contract Appeals I certify that the foregoing is a true copy of the Order of Dismissal of the Armed Services Board of Contract Appeals in ASBCA No. 58811, Appeal of Target Construction, Inc., rendered in conformance with the Board's Charter. Dated: JEFFREY D. GARDIN Recorder, Armed Services Board of Contract Appeals 2

01-03-2023

06-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426984/

Action by appellee to recover on a dual policy of insurance issued by appellant insuring the lives of appellee and her husband, John Bartlett. A complaint in one paragraph was filed May 15, 1922, alleging that appellant in September, 1913, in consideration of the payment of $6.68 payable on the first day of each calendar month, issued the policy sued on, wherein it agreed to pay appellee, upon proper proof of the death of John Bartlett, the sum of $2,000; that all the monthly premiums were paid up to and including the premium due March 1, 1922; that John Bartlett died in March, 1922, at a time when the policy was in force and that appellee and her husband had performed all the conditions of the policy required of them. The policy, a copy of which was made a part of the complaint, *Page 595 granted thirty days' grace for payment of every premium after the first year and contained a provision to the effect that notice of each and every payment due or to become due on account of the policy was given and accepted by the delivery and acceptance of the policy and that any further notice was waived. It also provided that if the policy lapsed for non-payment of premiums, it might be reinstated within three months thereafter, upon satisfactory evidence of the insurability of both of the insured parties and the payment of all premiums then due and unpaid with interest. Appellant filed answer in three paragraphs. The first was a general denial. The second alleged that the policy had lapsed on account of the failure to pay the premiums for January, February and March, 1922, and was not in force when the insured died. The third, after alleging the execution of the policy, alleged that it provided for a grace of thirty days for the payment of premiums, during which time the insurance should continue in force, and, except as otherwise provided, a failure to pay a premium when due rendered the policy void. It also alleged that a premium became due and payable January 1, 1922, and another February 1, 1922, which was more than thirty days prior to the death of insured; that neither of said premiums had been paid prior to the death of the insured and that, by reason thereof, the policy had lapsed and was not in force when Bartlett died. Appellee replied in four paragraphs. The first was a denial. The second admitted that, under the terms of the policy, a premium of $6.68 became due the first day of each month, but alleged that for a period of two years next after the issuance of such policy, appellant retained an agent at West Baden to collect the premiums on such policy, during which time, appellee and *Page 596 her husband paid the premium to such agent on the first of each month, that in 1915, appellant agreed if appellee and her husband would send the premiums when due to appellant's office in Chicago, Illinois, appellant would give them a discount of ten cents on each monthly premium, thereby making the monthly premium $6.58 instead of $6.68, and that thereafter, appellee and her husband, on the first day of each month, or within the thirty days' grace, paid monthly premiums by checks, drafts or money orders, which appellant accepted and applied on such premiums. The third alleged that on February 4, 1922, she remitted to appellant by draft the premium due January 1, 1922; that on March 13, 1922, she sent appellant two drafts in payment of the premiums falling due February 1 and March 1, and that appellant accepted each of said drafts and retained the same without cashing them until after the death of John Bartlett, on March 19, 1922, when appellant, on learning of the death of John Bartlett, returned said drafts to appellee without having cashed the same. The fourth admitted the execution of the policy, that the premiums were due and payable on the first day of each month, that the policy provided for a grace of thirty days for payment and that non-payment of a premium when due or within the period of grace rendered the policy void. It then alleged that down to March 19, 1922, the date when John Bartlett died, each and all monthly premiums had been remitted to and accepted by appellant; that appellee sent drafts to appellant in payment of the premiums due January 1, February 1, and March 1, 1922, at the times alleged in third paragraph of reply; that on February 6, she received notice from appellant that the policy had lapsed by reason of failure to pay the premium due January 1, on that day *Page 597 or within thirty days thereafter, and that the policy could be revived on condition appellee and her husband would sign and execute an application for that purpose; that, upon receiving from appellant a blank for that purpose, she signed such application and also, under an arrangement with her husband, she signed his name to such application and thereafter mailed the same to appellant, who accepted and retained the same without any objection until March 18, 1922, when appellant informed her by letter that John Bartlett would have to submit to a medical examination before the policy would be revived; that she did not receive said letter until after the death of her husband, which took place March 19, 1922, and that, by reason of such facts, appellant was estopped from claiming the policy had lapsed. Later, a second paragraph of complaint was filed, alleging that in April, 1912, the American Life Annuity Company, hereafter referred to as the "American company," on application of appellee and her husband, issued to them a dual joint policy of life insurance; that on May 21, 1913, a contract of re-insurance was entered into by appellant with a representative of said American company, a copy of said contract being made a part of the complaint; that on September 19, 1913, appellant applied to appellee and her husband to make application to appellant for a dual policy of life insurance and to accept such policy in lieu of the policy theretofore issued by the American company; that appellee and her husband were ignorant of the fact that the reinsurance contract had been entered into and did not know the terms thereof; that appellant represented to them that the only way they could maintain any insurance in respect to the American policy was for them to surrender that policy and make application for and receive a policy from appellant; that appellant would issue *Page 598 but one form of policy and that there was no other method by which they could maintain any part of said insurance and that appellee and her husband, believing said representations, acted upon them and made application for and accepted the policy sued on. A copy of such application and policy issued by appellant were made a part of the complaint. It was also alleged that appellee and her husband performed all the conditions required of them, and that Bartlett died March 19, 1922, and demanding judgment. The contract of appellant to take over and reinsure the risks of the American company recites that, on May 14, 1913, the Vanderburgh Circuit Court appointed a receiver for the American company; that this receiver, after qualifying, filed a petition for leave to sell the business of such company; that such leave was granted and thereafter the receiver filed his report showing he had entered into a contract with appellant, subject to the approval of the court, for the sale and transfer of the business of the American company to appellant. This contract had theretofore been submitted to and approved by the commissioner of insurance, and on May 21, 1913, was approved by the judge of said court. It recites that appellant "does hereby reinsure and accept as its members upon the terms and to the extent as hereinafter provided, all of the contributing members" of the American company in good standing and, "who shall accept and assent to this contract in the manner hereinafter provided, and who shall pay respectively to the Western company the requisite premiums for the continuation and maintenance of their insurance protection from and after the date this agreement goes into effect in the way and manner and to the amount as hereinafter provided." It also provided that members of the American company holding dual life policies could, *Page 599 at their option, continue to pay appellant the same premium as theretofore paid the American company and be thereafter insured against death, and no other contingency, in appellant company for an amount not exceeding the sum to be paid by the American policies as the premiums paid by such members to appellant would purchase according to a table of rates attached to the contract. It also provided that, upon making written application therefor, any member of the American company should, if the member's policy was then in force, upon the surrender of the American policy, receive, free of expense and without further examination, the Whole Life Non-Participating Policy, or the Cooperative Dual Life Policy of appellant company if the members held a joint policy on two lives. A copy of the policy to be issued by appellant was attached to and made a part of said contract between said receiver and appellant. It also provided that appellant should proceed with diligence to substitute its policies in lieu of the policies theretofore issued by the American company in order that each member of the American company reinsured might be "advised intelligently in plain words and figures in the policy substituted" of the exact amount payable under the new policy issued by appellant, and appellant agreed to issue its rider of assumption in accordance with the contract and mail the same to each member of the American company reinsured, which rider of assumption should be deemed accepted by each member who continued his policy in force under the terms of the reinsurance contract. A form of such rider was also attached to and made a part of the contract. This contract further provided that the receiver, in consideration of the good will of said American company, should receive from appellant twenty-five per cent. *Page 600 of all premiums received by appellant during the first year after the approval of the contract; that a cash payment of a premium by the holder of a policy in the American company to appellant for the maintenance of his policy under the provision of the contract should be regarded as conclusive evidence of the acceptance of and assent to the agreement between the receiver and appellant, and that appellant should not be liable to or accountable to members or policyholders of the American company until they had made one premium payment to appellant company. To this paragraph of complaint, appellant filed an answer in three paragraphs, in substance, the same as the answer theretofore filed to the first paragraph of complaint. A reply in four paragraphs was filed to the second and third paragraphs of answer to the second paragraph of complaint. The first paragraph of this reply was a general denial. The second alleged that during the life of the policy sued on, appellant collected premiums monthly, part of said premiums being collected by an agent who collected such premiums both before and after the same were due, and before and after the expiration of the thirty days of grace; that such collecting agent informed appellee it was not necessary that the premiums should be paid before or during the period of grace, but that it would be all right to pay them after the expiration of such period; that appellee and her husband acted upon such statement and, during the term of the policy sued on, did at times make payments after the expiration of the thirty days' grace provided for in the policy and that, by reason of said instructions and their reliance thereon, they failed to make payment of the premiums due January 1, and February 1, 1922, until after the thirty days of grace had expired. *Page 601 The third alleged that appellant had, at all times prior to January 1, 1922, given appellee and her husband a written notice when each monthly premium was due, said notice being given about fifteen days before the premiums became due; that they paid all premiums due to and including December 1, 1921, but that appellant failed to give them any notice of the premiums payable January 1, February 1, and March 1, 1922, and by reason of their reliance on such notices and the failure of appellant to send or deliver said notices, they failed to pay the premiums due January 1, and February 1, 1922, within the thirty-day period of grace. By the fourth paragraph of reply, appellee, after alleging the premiums were to be paid on the first of each calendar month and the allowance of a thirty-day period of grace in which to make such payment, alleged that the premium due January 1, 1922, was not paid until February 4, 1922, at which time, appellee was informed by letter that an application for reinstatement must be executed by her and her husband, that such application was executed by her and her husband and by them returned to appellant on said day, with the amount of the premium for January, which premium appellant retained without giving her or her husband notice thereof; that appellee waited until March 8, 1922, in order to receive appellant's decision as to reinstatement and, upon said last named day, she forwarded to appellant the premium for February and March, 1922. A trial by jury resulted in a verdict and judgment for appellee in the sum of $2,090. A motion for a new trial being overruled, appellant appeals, assigning as error the overruling of its motion for a new trial. The specifications in the motion for a new trial are that the verdict is contrary to law; that it is not sustained by sufficient evidence, that the court erred in *Page 602 admitting and excluding certain evidence, and in giving and refusing to give certain instructions. The first contention of appellant is that the verdict is contrary to law. Appellee, in opposition to this contention, insists that under § 8998 Burns 1926, § 4753 Burns 1914, 1, 2. Acts 1897 p. 318, § 15, appellant, as a reinsuring company, is bound by all the provisions of the policy of insurance issued by the American company, it being claimed that under the provisions of that policy, the insured had a period of two months' grace for the payment of premiums, during which the policy remained in full force and during which time the insured could pay the premiums as a matter of right. In support of this contention, appellee cites and relies upon Federal Life Ins.Co. v. Kerr (1909), 173 Ind. 613; Federal Life Ins. Co. v.Petty (1912), 177 Ind. 256; Federal Life Ins. Co. v. Weedon,Admr. (1918), 68 Ind. App. 529; and Federal Life Ins. Co. v.Risinger (1910), 46 Ind. App. 146. Section 8998, supra, is § 15 of an act concerning the organization and regulation of corporations doing insurance business on the assessment plan. But there is no allegation in any of the pleadings that the American company was organized under that act or that it was doing business on the assessment plan, nor is there any evidence to that effect. In each of the cases cited by appellee, the complaint alleged the issuance of the original contract of insurance, the entering into the reinsurance contract by the two insurance companies and the subsequent issuance of a policy of insurance by the reinsuring company, the original policy of insurance and the policy issued by the reinsuring company being made a part of the complaint in each case. It was alleged and proved in each of the cases cited that the companies issuing the original policies of insurance were organized *Page 603 under the above mentioned statute, were doing an insurance business on the assessment plan and that the contract whereby the Federal company agreed to reinsure was entered into under § 8998,supra. In the instant case, the only policy of insurance sued on and made a part of the complaint is the policy issued by appellant. The second paragraph of complaint, in addition to making the policy issued by appellant a part of the complaint, refers to and makes the contract between the receiver of the American company and appellant a part of the complaint. Appellant, under this agreement, did not take over all of the assets of the original company as did the Federal company in each of the above cited cases. Here the only thing which passed to appellant was the good will of the American company. All the other property of the latter company was retained by the receiver. The contract in the instant case was made by the receiver, under the authority and approval of the court. It was a contract of sale and reinsurance, made by the court, through the receiver, and not by the American company in its corporate capacity. There is nothing in the record in the instant case showing that the policy issued by appellant is not identical in form with the policy issued by the American company. The policy issued by the latter company was not introduced in evidence and we do not know what its provisions were. It is clear that neither of the authorities cited, nor § 8998, supra, is applicable to the facts as disclosed by the record in this case. The premiums on the policy issued by appellant and sued on were, by the terms thereof, due and payable on the first day of each month, subject to a provision giving the insured 3, 4. thirty days for the payment of every premium after the first year. The policy expressly provided that if any premium was not paid when due, the policy thereupon should cease *Page 604 and determine. It also provided that if the policy lapsed for non-payment of a premium, it might be reinstated within three months thereafter upon satisfactory evidence being furnished appellant of the insurability of both parties insured and upon payment of all premiums then due and unpaid with interest. Prior to July 1, 1920, all premiums were paid when due or within the thirty-day period of grace. The premium due July 1, 1920, was not paid when due or within this period. On August 4, 1920, appellee mailed a check to appellant in payment of the premium due July 1. On August 6, 1920, appellant acknowledged receipt of the check, and notified appellee that it could not accept the same for the reason that the policy had lapsed because of the failure to pay within the grace period. Applications for revival of the policy were made out at that time, one purporting to be signed by appellee and one by John Bartlett. It appearing that the one purporting to be signed by John Bartlett was not signed by him, but that appellee had signed his name thereto, it was not approved, and later one was properly signed by him and all premiums then due being paid, the applications were approved and the policy reinstated September 9, 1920. Thereafter, appellee paid all premiums, up to and including the one due December 1, 1921, when due or within the thirty-day period of grace. No attempt was made to pay the premium due January 1, 1922, prior to February 4, 1922. Appellant, as before stated, refused to accept the check mailed February 4, and notified appellee that the check received could not be accepted because the policy had lapsed by reason of failure to pay within the grace period, and mailed blank forms to appellee to be signed by her and her husband for the revival of the policy. March 13, 1922, appellee, without having made application for revival, sent two drafts to appellant for the premiums due February 1, *Page 605 and March 1. On March 15, appellant acknowledged receipt of these drafts and again wrote appellee that the policy had lapsed and could only be reinstated upon the execution by her and her husband of the applications which had theretofore been mailed to her. On March 17, appellee returned an application for revival signed "Ellen and John Bartlett." It appearing that this application had not been signed by John Bartlett, appellant refused to approve the same, and sent appellee another blank application, with directions to have the same signed by her husband. The policy provided that in case it lapsed for non-payment of premium, and either of the insured was over fifty years of age, the application for revival should be accompanied by the certificate of a physician showing the insurability and good health of such person. Bartlett being at this time more than fifty years of age, appellee was also notified that the application would have to be supported by the certificate of a physician. This was never done, and on March 19, 1922, John Bartlett, without having made an application for the revival of the policy, died at Culver, Indiana, where he was then living. Appellee and her husband had not been living together for more than a year before his death, and, at the time of his death and for several months prior thereto, she had an action for divorce pending against him and had not seen him since December, 1920. Prior to December, 1921, appellant, about the fifteenth of each month, mailed appellee a notice that the premium on the policy would be due the first of the next month. There was evidence that such a notice was mailed to appellee about the middle of December, 1921, but appellee denied having received such notice. Under these facts, it is clear that the policy in question had lapsed by reason of the failure to pay the premium due January 1, within the period of grace, and was not in force when the insured *Page 606 died, unless appellant was estopped from claiming a forfeiture by reason of its failure to notify appellee that such premium would be due January 1, 1922. It is to be remembered that the policy sued on expressly provides that the premiums should be paid on the first day of each and every month, or within the thirty-day period of grace, and that the non-payment of a premium when due or within the period of grace rendered the policy void. The policy also contained the stipulation that notice of each and every payment due, or to become due, was given and accepted by the delivery and acceptance of the policy. In other words, the parties contracted and agreed that the delivery and acceptance of the policy containing the statement as to when the premiums should be due and payable constituted notice to appellee and her husband and that notice was expressly waived. The policy issued by appellant had been in force and effect about eight years, during which time, appellee paid the premiums each month. She makes no claim that she did not know the amount of the monthly premiums or when they were due. She makes no contention that the amount or date of the payment had escaped her memory. Appellee calls attention to § 9036 Burns 1926, § 4622a Burns 1914, Acts 1909 p. 251, which provides that no policy of life insurance shall be issued or delivered in this state 5, 6. unless it shall provide that the policy shall participate in the surplus of the company and that the policyholder shall have the right to have current dividends paid in cash or to elect to take any other dividend option in the policy, and requiring the policy to contain paid-up and extended options upon surrender, or available upon default of premium payment. In this connection, appellee says, where a company fixes a monthly level-rate premium and makes it obligatory to pay the same upon a whole *Page 607 life non-participating policy, there must, of necessity, be a reserve in favor of the insured at all periods in their expectancies, which, under said section of the statute, must be applied in payment of premiums in case of default in the payment of a premium so as to prevent a forfeiture of the policy. While the policy sued on provides for a fixed monthly premium, it also provides that if the premium so fixed is not sufficient to meet the requirements of the policy, the company reserved the right, in compliance with the law, to call for the difference necessary to meet such requirements and to fix the time for the payment thereof. This clearly indicates that the policy was issued by a company doing business on the assessment plan. See § 8989 Burns 1926, § 4744 Burns 1914, Acts 1897 p. 322, § 6. Section 9036,supra, is not applicable to a company doing business on the assessment plan. See, also, § 8950 Burns 1926, § 4706 Burns 1914, Acts 1899 p. 30, § 29, as amended by Acts 1909 p. 251, § 4. The contract between appellant and the American company contained a copy of the policy which appellant would issue to appellee and her husband upon their application. The form of policy which was made a part of that contract was submitted to and approved by the commissioner of insurance and was thereafter approved by the court. It did not contain a table showing the loan values and the cash, paid-up and extended insurance options referred to in said § 9036, supra, which is strong evidence that the insurance department and the court did not believe this section of the statute was applicable to the policy sued on. It was error to overrule appellant's objection to the question asked Miss Ryan concerning the amount of surplus appellant had on hand December 31, 1921. There is no evidence that the policy held by appellee was of a class entitled to share in any surplus, or that the premiums paid on this policy were sufficient to create *Page 608 any surplus. This policy was issued by a company doing business on the assessment plan and was not the kind of policy referred to in § 9036, supra. Having held, as we do, that appellee's complaint and right of action is based upon the contract or policy of insurance issued by appellant and that the provisions contained in the policy issued by the American company 7-11. have nothing to do with the liability of appellant, all the evidence relating to the provisions of the American policy was improperly admitted. Appellee, over appellant's objection, was permitted to testify concerning statements made to her by the agent of appellant when soliciting appellee and her husband to make application for the policy in suit. For instance, she testified that the American company did not furnish her with a copy of the contract between the receiver of that company and the Western company, that she did not have an attorney to represent her in the proceedings wherein the receiver was appointed; that when the agent of the Western company came to get her application for a policy in that company, he told her she would have to take the policy in the Western company or get nothing as the American company was bankrupt. The only effect of this evidence was to mislead, confuse and prejudice the jury. Appellee makes no claim that this agent made any false or untruthful statement to her or that she was misled by anything he said to her. The American company was in the hands of a receiver. It was no longer a going concern and was not in position where it could give any protection on the policy which it had issued to appellee and her husband. There is no claim that it had power or authority, after the appointment of the receiver, to continue in the insurance business, or that it had authority to solicit new insurance, or to collect premiums thereafter falling due *Page 609 on policies theretofore issued. The receiver does not appear to have been authorized to continue the business, or to issue policies. He was simply an officer of the court appointed for the purpose of converting the assets of the company into cash in order to arrange and adjust its business so as to effect a final settlement of the affairs of the company preparatory to its final dissolution. See Ensworth v. National Life Assn. (1909),81 Conn. 592, 71 A. 791. The court, without doubt, had the power to authorize the receiver to execute the reinsurance contract. No policyholder of the American company was affected by it unless and until he exercised the option given him to accept its provisions. Appellant incurred no liability to the policyholders of the American company until they accepted the rights given them under that contract. When appellee and her husband accepted the provisions of the contract by exercising the option given them, and received a new policy from appellant, the rights and liabilities of appellant and appellee were measured by the provisions of that contract and of the policy issued by appellant and which is the foundation of appellee's complaint herein.Lester v. Wright (1917), 147 Ga. 242, 93 S.E. 408. As heretofore stated, the policy issued by the American company is not made a part of the pleadings and was not introduced in evidence. Appellant did not, by the contract with the receiver of the American company, assume the obligations of the policies of insurance issued by said company. It only agreed to do so in the event the policyholders of said company became privy to such contract by assenting thereto and agreeing and contracting with appellant as stipulated in such contract. Lucas v. PittsburghLife, etc., Co. (1923), 137 Va. 255, 119 S.E. 109. As was held in Northwestern Nat. Life Ins. Co. v. Gray *Page 610 (1908), 161 Fed. 488, the contract between the receiver and appellant could not and did not obligate any of the policyholders of the American company to accept contracts of reinsurance from appellant. Whether they should do so, or whether they should resort to other remedies for securing relief occasioned by the breach, if any, of their contract with the American company was optional with them. See Lovell v. St.Louis Mutual Life Ins. Co. (1884), 111 U.S. 264, 4 Sup. Ct. 390, 28 L.Ed. 423. In the absence of a statute requiring a reinsuring company to assume all the obligations and conditions contained in the policy of the company reinsured, and in the absence of such a provision in the contract of reinsurance, we know of no authority holding that a reinsuring company is bound by the provisions of the policies issued by the company whose policies are reinsured. The measure of a reinsuring company's liability under such circumstances is measured by the contract of reinsurance and the policies thereafter issued by it. This is not a case where the reinsuring company purchased all the assets of another company and, in consideration therefor, agreed to reinsure all risks and assume all the liabilities of the company whose assets and business were taken over by the reinsuring company. The court, through the receiver, made it possible for appellee to receive a policy of insurance from the Western company without having to submit to a medical examination. In order to do this, the contract between the receiver and the Western company called for and required that appellee and her husband should make application to the Western company showing them to be holders of a policy, to contract to pay the Western company and thereafter be insured against death for such amount as the premium so paid would purchase according to a certain table attached to the contract and *Page 611 approved by the court. Appellant's objection to this evidence should have been sustained. Appellee next contends the evidence is sufficient to sustain a finding that she made a double payment of the premiums due and payable January 1, 1917 and January 1, 1919. Assuming for 12. the present that appellee is correct in her statement that the burden was upon appellant to prove non-payment, we will pass to a consideration of the claim of double payment of the premiums for the two months mentioned. Anna M. Ryan, secretary of appellant company, produced the record kept by appellant of all payments made by appellee and her husband to the Western company. Miss Ryan testified that this record was correct and that it showed the amount of and date when each and every premium on the policy in question had been paid. This record shows that the premium for January 1, 1917, was paid December 14, 1916, that the one for February was paid January 10, 1917, and that the one for March was paid January 30, 1917. It shows the premium for December was paid December 4, 1918, that the one for January, 1919, was paid December 17, 1918, and that the one for February, 1919, was paid January 22, 1919. It shows the payment of each and every other premium, to and including the one for December, 1921, was made prior to the time when due, or within the thirty days of grace, except the premiums payable July 1 and August 1, 1920, neither of which was paid until September 9, 1920, which was the date when the application for revival or reinstatement of the policy was approved. This record gives appellee credit for all payments made, or claimed to have been made, by her and shows no double payment of any premium. She makes no claim in her testimony that this record fails to give her credit for all payments made by her. On August 4, 1920, appellee mailed a check or draft to appellant for the purpose *Page 612 of paying the premium due July 1, 1920; this was received by appellant August 6, and on that day, appellant wrote appellee a letter acknowledging receipt of the draft and stating that it could not accept the same for the reason that the policy had lapsed for non-payment of the July premium within the grace period, and, in that connection, sent appellee blank applications for revival of the policy, with directions that she and her husband execute and return them with a remittance for the August premium which was then due and payable. On August 16, appellee sent appellant a check for $13.16 in payment of the premiums due August 1, and September 1, 1920. On August 17, appellant acknowledged the receipt of the check and notified appellee that it could not accept the same, that appellee and her husband would have to make application for revival on forms enclosed, as stated in the letter of August 6, with the further direction that if the applications for revival were approved, the policy would be reinstated and receipts forwarded, but if for any reason the applications were not approved, the check and drafts would all be returned to appellee. Following this letter, appellee signed her name to one of the applications and signed her husband's name to another and sent them to appellant. They were not approved, as both of them had been signed by appellee and neither of them had been signed by John Bartlett. A third application signed by John Barlett was sent appellant September 6, 1920, and three days later, the applications for revival were approved, the policy reinstated and credit given for the remittances theretofore made. In these applications, appellee and her husband each conceded and admitted that, owing to default in the payment of a premium, the policy had lapsed. No claim was made at that time that there had been any double payment of premiums for January, 1917 and 1919. There is a little confusion *Page 613 in the record relative to the receipts sent by appellant to appellee for the premiums due in January and February, 1917, and 1919, but when the whole evidence is given consideration, it is perfectly clear that the confusion arises from clerical errors and are not sufficient to sustain a finding that there had been any double payment of premiums. Appellee in her testimony does not make any claim of double payment. The only reasonable inference to be drawn from the evidence is that appellee has been given credit for every payment made on the policy and that there was no double payment. Appellee next contends that appellant, having from month to month after the issuance of the policy regularly sent her notice of the due date of each monthly premium, is estopped to claim a forfeiture of the policy because of its failure to give her notice that a premium was due January 1, 1922. As heretofore stated, appellee, for nearly eight years, had been making monthly payment of premiums on the policy. She knew when each premium was due and payable and knew the exact amount she was required to pay the first day of each month. She makes no claim to the contrary. The only evidence bearing upon this question is her statement in rebuttal to the effect that she always waited until the notice came, and then went to the bank and sent the amount of the premium to appellant at once. In New York Life Ins. Co. v. Lahr (1922), 192 Ind. 613, 137 N.E. 673, cited by appellee, the reply alleged failure to give notice according to custom, that neither appellee nor his bookkeeper whose business it was to look after and pay the premiums knew of said premiums, or that the same had not been paid, or that there was anything due from appellee until several years thereafter, when he was informed by the company that the policy had lapsed for failure to pay the premium. The opinion of the court, as modified on petition *Page 614 for a rehearing, ignores the contention that the insurance company was estopped to claim a forfeiture by reason of its custom of giving notice of the time when premiums were payable, and affirmed the judgment on the theory that the act of the insurance company in making an entry on its books showing extended insurance constituted a recognition of the validity and continued existence of the policy, and did not operate as an exercise of the company's option to terminate it. Supreme Council, etc., v. Grove (1911), 176 Ind. 356, 36 L.R.A. (N.S.) 913, was an action by appellee to recover on a certificate of membership in a fraternal insurance association wherein the association agreed to pay a certain sum in case appellee arrived at a stated age, was unable to earn a livelihood and was destitute of support. The real controversy was as to whether the appellee was destitute of support. Under the by-laws of the association, two regular assessments were due and payable before the first and fifteenth of each month unless said dates fell on Sunday or on a holiday, in which event, they were payable the first business day thereafter. No notice was required of these regular assessments, but notice of special assessments was required to be given by a bulletin of information, which, among other things, stated the date of the coming due date of other than regular assessments. Failure to pay on or before the date so fixed suspended the member. In 1905, this by-law was amended so as to require members to pay on every second Monday an assessment called a "regular assessment." No notice of these regular assessments was required, but the secretary was required, on or before the first of each month, to mail to each member a bulletin of information which should include a list of all deaths and disability benefits of members for the previous months and "such other information as may be determined by the *Page 615 supply committee on a form approved by them." A form was approved by this committee which included a formal notice of the dates when all regular and special assessments were payable in each year. The last bulletin received by the appellee in that case, under the heading "Assessments Due and Payable in 1908," contained a statement giving the date on which each second Monday in 1908 fell, and in which April 13, was noted as being the day on which assessment No. 589 fell due. In the same bulletin was a formal notice of the preceding regular assessments Nos. 586, 587, 588, with notice that they must be paid on or before March 2, March 16, and March 30. There was no proof that any of these assessments was or was not an extra assessment, but it had been the fixed custom of the committee for many years to give the dates when the regular assessments had to be paid to prevent forfeiture. That suit was commenced in June, 1907, and appellee continued to pay all dues and assessments up to an assessment of seven dollars and forty-four cents that fell due April 13, 1908, which he did not pay, but of which he testified no notice had been given him. The trial of the cause began April 14, 1908, and, on the morning of that day, appellee tendered the amount of the assessment to the collector, which was refused. He then brought it into court for the use of the association. Without any evidence as to whether the assessment in question was a regular assessment, other than the fact that it was payable on the second Monday of the month, the court said: "But as forfeitures are not favored, appellant's custom of giving notice of the time regular assessments are due was a waiver of the right of forfeiture for non-payment, without the giving of such notice. Where notice of an assessment is required by the by-laws of the society to be given, there can be no forfeiture on that ground, unless notice is given. *Page 616 * * * Nor should a forfeiture be permitted, where, during a long term of years — here the full term of membership — it has been the uniform custom of the society to give notice. Its own acts should estop it. * * * There are a few cases involving annual premiums, where it had been customary to give notice, and the failure to do so has been held not to waive the forfeiture. In case of monthly assessments, it is of course only a difference in degree, but where a uniform custom has been so long and unbrokenly followed, as here, covering the entire period of membership of over twenty years, and where, without notice, there is a prompt offer to pay, it is a more just rule to deny forfeiture upon the ground of waiver." Appellee also cites Joyce, Insurance (2d ed.) § 1332, where the author says: "If a life insurance company has been in the practice of notifying the insured of the time when the premiums will fall due, and of the amount, and the custom has been so uniform and so reasonably long in continuance as to induce the insured to believe that a clause for forfeiture for non-payment will not be insisted on, but that notice will precede the insistence upon the forfeiture, and the insured is in consequence put off his guard, such notice must be given, and, if not given no advantage can be taken of such default in payment which it has thus encouraged, for the insured is entitled to expect the customary notification; and to mislead the insured by not giving such notice, and then insist upon a strict compliance with the conditions of forfeiture, constitutes under such circumstances, a fraud upon the insured which the courts have refused in numerous cases to countenance." Many authorities are cited by the author in support of the above statement. One of the authorities cited being FranklinLife Ins. Co. v. Sefton, Admr. (1876), 53 Ind. 380, where the plaintiff, over the objection of *Page 617 the defendant, was permitted to prove that it was the custom of the defendant to receive payment of premiums after they were due. This was held error, the court saying: "The custom or usage of the company could not be set up to control the terms of the contract between the parties." The trial court had instructed the jury that the act of the agent in accepting payment of a premium "after the day it was due, in the absence of fraud, would bind the company without any subsequent ratification by the company." The policy provided that agents had authority to receive premiums when due, but that they had no authority in any case, to make, alter or discharge contracts. It was held the agent had no authority to accept the premium after it became due and that the instruction was erroneous. The cause was reversed because of said error. This case, as we read and understand it, is not in point and does not support the proposition laid down by the author. This fact led us to carefully examine the cases cited by Joyce in support of the text. In Grant v. Alabama Gold Life Ins. Co. (1885), 76 Ga. 575, the court, adhering "to the spirit of the Georgia Code," held that an insurance company might be estopped from declaring a policy forfeited by failure to give a customary notice, saying: "* * * yet the insured must act with reasonable diligence, and six months' delay to pay a premium for want of notice appears to us so unreasonable as to show a purpose to abandon the policy and let it lapse; and if the jury should decide that such was reasonable, the court should not permit the verdict to stand. Two or three months in a policy of annual premiums, a month or six weeks in semi-annual premiums, is time enough for one who has his life insured, though notice does not come to him from the company according to usage, to bestir himself to ascertain why the notice has not come, and *Page 618 not to do so within such reasonable time, without some overpowering providential cause, ought to conclude him." In Brooklyn Life Ins. Co. v. Bledsoe (1875), 52 Ala. 538, the agent who delivered the policy collected the first premium and died without making a report to the company. A few weeks before the second annual premium became due, the insured wrote the company asking an extension of time and offering to give his note with interest. He was then informed that the policy stood on the books of the company as having been canceled because of non-payment of the first premium. About ten months later, the insured died without paying or offering to pay the second premium. The cancellation of the policy was held erroneous and without right, but the cause was reversed on the ground that the evidence did not show any act on the part of the insurance company preventing performance on the part of the insured and that the non-payment was without excuse, the court saying: "It is an elementary principle, that the performance of conditions precedent may be waived, or, if the party, whose responsibility is to arise on their performance, by any act of his prevents performance, the opposite party is excused from a strict compliance. He must, however, prevent performance — he must be the proximate, not the remote cause. * * *." Helme v. Philadelphia Life Ins. Co. (1869), 61 Pa. 107, 100 Am. Dec. 621, has been materially weakened by Smith v. Nat.Life Ins. Co. (1883), 103 Pa. St. 177, 49 Am. Rep. 121, where the court, in speaking of the contention that the failure of the insurer to send the customary notice excused the insured's default, said: "By the terms of the contract it was certainly the duty of the assured to pay on the day stipulated whether he received notice or not; he knew, or was bound to know, the several dates at which the premiums were due, and *Page 619 his neglect to pay was at his own peril; the company was under no obligation to give the notice: Thompson v. Insurance Co., 14 Otto 252. Assuming, however, that the assured may have been misled by the company's course of business, there can be no apology or excuse for two years' neglect upon that ground; such a default could not be traced to the misleading effect of the company's uniform practice in sending notices." In Insurance Co. v. Pottker (1878), 33 Ohio St. 459, 31 Am. Rep. 555, when the policy was delivered by the agent, he agreed to give notice when each annual premium became due and to collect same at the residence of the insured. This plan of collecting premiums was carried out from the time the policy was issued in 1868 to 1872. The insured was ready, willing and able to pay the premium due in October, 1873, but no one came as usual to receive it and no notice had been given to pay otherwise than in the usual manner. A few days after the premium was due, the insured saw the agent who had theretofore collected the premiums and inquired why he had not called for the premium. On being informed by the agent that he had resigned because the company had marked a number of undesirable risks and had directed him not to call on the parties so marked or to give them notice as formerly, the insured sent the amount of the premium then due to the company. The company refused to accept the premium thus sent on the ground that the policy had been forfeited. It was there held that the insured had the right to show what had been the uniform custom in regard to the payment of the premiums and that "no right of forfeiture could arise from a default procured by such disreputable strategy." In Southern Life Ins. Co. v. McCain (1877), 96 U.S. 84, 24 L.Ed. 653, the premium was paid to one who had theretofore been an agent of the company and to *Page 620 whom premiums had been paid. The question related to the effect of a payment made to the former agent by a policyholder who had not been advised of the change of agency and the failure of the company, after being informed by the former agent of the receipt of the premium, to notify the insured of the revocation of the authority of the former agent to receive the premium. Globe Mut.Life Ins. Co. v. Wolff (1877), 95 U.S. 326, 24 L.Ed. 387, involved the effect of a payment to an agent after due date of premium. In New York Life Ins. Co. v. Eggleston (1877), 96 U.S. 572, 24 L.Ed. 481, the insured had been paying the premiums to different agents as designated by the insurer in notices theretofore given. The insured, having received no notice to whom to pay the last premium, and the due date having passed, telegraphed to one of the agents to whom former payments had been made, asking to whom payment should be made, and, on receiving a reply telling him to pay a certain agent who held the receipts, tendered payment to such agent, who refused to accept the same in the absence of a certificate of health. The insured was sick when the tender was made and died soon thereafter. Mayer v. Mutual Life Ins. Co. (1874), 38 Iowa 304, 18 Am. Rep. 34, was apparently overruled in Mandego v. CentennialMut. Life Assn. (1884), 64 Iowa 134, 17 N.W. 656, where it was held that the failure to send notice as was customary would not constitute a waiver of the condition of the policy relating to forfeiture because of non-payment of premiums. On petition for rehearing, it was insisted that the decision was in conflict withPhoenix Ins. Co. v. Doster (1882), 106 U.S. 30, 1 Sup. Ct. 18, 27 L.Ed. 65. In disposing of this contention, the court said: "In that case, the controversy was in relation to the annual assessments, which, we believe, are required to be paid by a day certain, *Page 621 but the assured does not know the amount required. It is not the same every year, and the assured does not know the amount he is entitled to as dividends due, which he has the right to deduct from the amount payable under the policy. Now, if the company sees proper to delay sending such notices, and induces the assured to believe a forfeiture will not be insisted upon, we can readily see why it should not be permitted to insist upon a forfeiture. We have no such case. As is said in the opinion, the amount due was payable at a day certain, and the amount was fixed and known. The sending of the notice was purely a voluntary act." In many of the cases cited by Joyce, the insurer was estopped from declaring the policy forfeited on account of having theretofore accepted payment after the due date, no question involving failure to give notice being involved. In others, the insured was entitled to apply dividends on the premiums, in consequence of which he could not pay until he had notice from the insurer of the amount to pay. The authorities are hopelessly divided on the question as to whether forfeiture will lie where the insurer has failed to give the customary notice. It is doubtless true that where the amount of the premium is variable and cannot be known by the insured, and can only be determined by conditions wholly within the knowledge of 13. the insurer, the giving of notice is necessary before there can be a forfeiture for failure to pay a premium when due. Leonhard v. Provident Savings, etc., Soc. (1904), 130 Fed. 287; Phoenix Ins. Co. v. Doster, supra; Mutual LifeAssn. v. Hamlin (1891), 139 U.S. 297, 11 Sup. Ct. 61, 35 L. Ed. 167; Hannum v. Waddill (1896), 153 Mo. 161, 36 S.W. 616;Manhattan Life Ins. Co. v. Smith (1886), 44 Ohio St. 156, 5 N.E. 417, 58 Am. Rep. 806. *Page 622 In Manhattan Life Ins. Co. v. Smith, supra, the court applied the rule stated, saying: "The case is to be distinguished from one where the premium is a fixed amount; and from a case, slightly differing, where, though there may be dividends which the policyholder, at his option, may have applied on the premium, there is no agreement and uniform practice that the dividends are to be deducted each year from the premium and the balance only paid to the company. It may, probably, be safely conceded that in either of the two supposed cases the assured would have no right to depend upon a notice from the company, not even if the company had ordinarily sent such notice. For the very life of successful life insurance depends upon prompt payment of premiums, and their business would be thrown into utter confusion if companies had no means of protecting themselves by forfeiture for non-payment of premiums. But, while this is true, the contract is nevertheless an entire one of assurance for life, and the payment of the premiums, after the first, is not a condition precedent, but a condition subsequent, and the parties may deal in such way between each other as to estop the company from insisting upon a forfeiture where it would be inequitable for a forfeiture to be declared." In addition to the authorities cited by Joyce, we have made a careful study of all other cases which we have been able to find and which might be helpful, and we call attention to the following: In Thompson v. Insurance Co. (1881), 104 U.S. 252, 26 L.Ed. 765, the court held it was no excuse for non-payment of a life insurance premium that the company failed to give notice, as was their custom, it not being obligatory under the policy. The court in that case, discussing a reply setting up usage on the part of the company of giving notice of the day of payment, and the reliance of the *Page 623 insured upon having notice, said: "This is no excuse for non-payment. The assured knew, or was bound to know, when his premiums became due. * * * The reason why the insurance company gives notice to its members of the time of payment of premiums is to aid their memory and to stimulate them to prompt payment. The company is under no obligation to give such notice, and assumes no responsibility by giving it. The duty of the assured to pay at the day is the same, whether notice be given or not. Banks often give notice to their customers of the approaching maturity of their promissory notes or bills of exchange; but they are not obliged to give such notice, and their neglect to do it would furnish no excuse for non-payment at the day." This statement was quoted with approval by our supreme court in Continental LifeIns. Co. v. Dorman (1890), 125 Ind. 189. In Gasser's Exrx. v. Michigan Mut. Life Ins. Co. (1924),201 Ky. 659, 258 S.W. 102, in discussing the effect of a failure to pay a premium when due where there was only a 14. reasonable delay in making the payment, resulting wholly from the failure of the insurer to give notice according to its previous custom, the court after calling attention to the fact that the case under consideration was not that kind of a case, said: "He knew from his policy that its life depended on his paying the annual premiums September 16 of each year. He paid these premiums for fifteen years, and so necessarily knew about the premiums and when they were payable. His course after he obtained the loan of $229.15 on his policy warranted the company in assuming that notice to him would be futile; his conduct clearly indicated a purpose not to continue the insurance; for, if not, he had no right to remain silent so long. The failure to receive notice from the company should have apprised him, if he wished to continue *Page 624 his insurance, to pay what he owed or arrange it with the company. He could not indefinitely remain silent and take no action under the circumstance." Citing 1 Cooley, Brief on the Law of Insurance, p. 2281, where it is said: "In the case of ordinary life insurance, where the policy fixes definitely the amount of the premiums and the time of payment, the insurance company is under no obligation to give the insured notice of the amount and maturity of the premiums accruing on the policy, unless there is an express or implied agreement that notice shall be given or a statute requiring notice." And continuing, the court says: "The weight of authority seems to be to the effect that an obligation to give notice of the maturity of insurance premiums cannot be imposed by mere custom." Citing Thompson v. Insurance Co.,supra; Gaterman v. American Life Ins. Co. (1876), 1 Mo. App. 300; Grant v. Alabama Gold Life Ins. Co., supra. For other cases holding that usage to give notice is a favor only and does not waive the right to insist on a forfeiture for non-payment, see Union Central Life Ins. Co. v. Chowning (1894),8 Tex. Civ. App. 455, 28 S.W. 117; Haydel v. Mutual Reserve, etc.,Assn. (1900), 104 Fed. 718; Morey v. New York Life Ins. Co. (1873), 17 Fed. Cas. No. 9795, 2 Woods 663; Redmond v.Canadian Mutual Aid Assn. (1890), 18 Ont. App. 335; Campbell v. National Life Ins. Co. (1874), 24 Upper Canada Common Pleas 133. In Yoe v. Benjamin C. Howard, etc., Assn. (1885),63 Md. 86, the court, in speaking of a thirty-day period of grace, said: "The thirty days' grace was for his [the insured's] convenience and accommodation; and though he had the full period of thirty days within which he could make payment, yet if he thought proper to defer payment to the last hour of that period, the delay was at his own risk, and not that of the association. Here the full thirty days had expired without payment and *Page 625 the party died two days thereafter; and that being the case, he was not a member when he died, having by his default lost his membership and all the benefits appertaining thereto." Our Supreme Court, in Supreme Council, etc., v. Grove,supra, seemingly has approved the rule denying forfeiture where there has been a uniform custom of giving notice of 15, 16. the time when premiums are due, and where there has been a failure to give such notice, and there has been a prompt offer to pay. But in such cases, the act of the company in failing to give notice must be the proximate cause of the failure to pay. Brooklyn Life Ins. Co. v. Bledsoe, supra. And when the insured seeks to be relieved from a forfeiture for non-payment of premiums, on the ground of failure to give the customary notice, he must bestir himself and pay or offer to pay within a reasonable time. A failure to act within a reasonable time, without some providential cause, ought to conclude him.Grant v. Alabama Gold Life Ins. Co., supra. In the usual course of events, appellee would have received a notice about the middle of December, 1921, that the next premium would be due and payable the first of January, and about 17. the middle of January, she would have received a notice that another premium would be due February 1. She knew, without any notice, that a premium was due January 1, and that another was due February 1. She also knew the exact amount of each of them. With full knowledge of the due date and the amount of the premiums, the only effect of a notice would have been to jog her memory. Assuming, however, that each month prior to December, 1921, appellee had waited until she received notice of the premium falling due the first of the next month, such fact would not relieve her from the *Page 626 duty of acting. When the notice of the January premium did not reach her until after the notice of the February premium ordinarily would have reached her, ordinary prudence most certainly required her to take notice of such failure and to hasten to ascertain why the notice had failed to arrive at the proper time. Knowing a premium was due January 1, she knew that, by the terms of the policy, the premium must be paid when due or within thirty days thereafter. If, as was held in the Georgia case, two or three months, where the premiums are payable yearly, a month or six weeks, where they are payable semi-annually, are reasonable times within which to pay, the thirty-day period of grace in the instant case should, as a matter of law, be held a reasonable time within which to pay, since the purpose of granting grace is to relieve the insured from possible default within that time in the payment of premiums when due. The fact that an insured, with the knowledge possessed by appellee, allows six weeks to pass by after failing to receive the customary monthly notice, and also allows the time for paying two premiums to pass, without any excuse for so doing other than that she had theretofore waited until the receipt of notice, should not be sufficient to relieve her from the failure to pay within time, when there is no claim that she did not know the amount of the premiums and when they were due and payable. Such a failure can result only from negligence. Conceding the law to be as contended for by appellee, she had the burden of proving that her failure to pay the premium of January 1, 1922, on that day or within a reasonable time 18. thereafter, was the proximate result of the failure of appellant to give the customary notice. She also had the burden of proving that she offered to pay within a reasonable time after January 1, 1922. *Page 627 Considering the evidence most favorable to appellee, it shows she entered into a contract requiring her to pay a fixed premium on the first day of each month; that, by such contract, 19. she agreed that notice of the time when the payments should be made was given and accepted by the acceptance of the policy and that any other notice was waived; that she paid these monthly installments for a period of eight years; that notwithstanding appellant was not required to give her notice of the due date of the premiums, it had given notice each month, except that it failed in December, 1921, to give notice of the premium due January 1, 1922; that the contract provided for a grace of thirty days; that she, without any excuse for not paying within the period of grace other than that she had always waited until she received the notice. This, in our judgment, is not sufficient to discharge the burden of proving that her failure to pay within the period of grace was the proximate result of the failure of appellant to give the customary notice, and to relieve her from the responsibility of her own neglect. Where a party knows the amount of the premium, knows when it is due, and where there is no question as to whom it should be paid, we fail to see how a failure to receive notice from the insurer stating when the premium is due can be said to be the proximate cause of the insured's failure to pay within the thirty-day period of grace. "Courts have always set their faces against an insurance company which, having received its premiums, has sought by technical defenses to avoid payment, and in like manner should they set their faces against an effort to exact payment from an insurance company when the premiums have been deliberately left unpaid." Mutual Life Ins. Co. v. Hill (1904), 193 U.S. 551, 48 L.Ed. 788. The verdict, in our judgment, is contrary to law. *Page 628 Appellant complains of instruction No. 1, given by the court on its own motion. By this instruction, the court informed the jurors that they were the exclusive judges of the facts 20. proved and of the weight and credit to be given to the testimony of each witness; that in arriving at the weight and credit of the witnesses, they had the right to take in consideration their actions and demeanor while on the witness stand, their willingness or unwillingness to testify, their means of knowing the things about which they testified, the reasonableness or unreasonableness of their testimony and from "these facts determine what has been proved." Appellant objects to the italicized expression and says it permitted the jury to consider matters outside of and beyond the evidence. While the instruction is not a model, it is not subject to the objection urged against it. Instruction No. 5, given at the request of appellee, was to the effect that if the jury found appellee had paid the premiums due January, 1917, and January, 1919, twice, there could be no 21. forfeiture of the policy for failure to pay the premiums due January 1, and February 1, 1922. When the policy lapsed in 1920, because of non-payment, appellee made no claim that she theretofore had made any double payment. She testified that she paid all of the premiums which were paid; that on August 16, 1920, she mailed appellant a check for the premiums due August 1, and September 1, 1920. A letter signed "John Ellen Bartlett," doubtless written by appellee, was mailed to appellant August 16, 1920, enclosing a check for the premiums for August and September, in which appellee stated she had gotten behind in her payments because of sickness. Appellee and her husband, at that time, in their applications for reinstatement of the policy, admitted the policy had lapsed because of non-payment *Page 629 of premiums. In view of the evidence showing that the policy had lapsed in 1920, and had thereafter been reinstated on application of appellee and her husband, when there was no claim of any double payment of premiums, and no claim of error at that time, and when there was no claim by appellee in her testimony or in the testimony of any other witness that she made any double payments, it is clear there was no evidence to warrant the giving of this instruction or to sustain a finding that there had been any double payment of premiums. Instruction No. 6, given at the request of appellee, told the jury that if appellant sent notices each month during the life of the policy and that such notices contained directions that they should be returned with the payment of the premiums, it might find that appellant was estopped from claiming the policy was forfeited by reason of the non-payment of the premiums for January and February, 1922, if it found that notices of the January and February premiums were not sent and were not received by appellee and that she relied upon the sending of such notices for the payment of the premiums due on the policy. The evidence, without conflict, shows that all payments on the policy up to and including the installments for September, 1914, were made to an agent who called on appellee each month and collected the monthly premiums and gave appellee a receipt. Some of these receipts were introduced in evidence. There was no reference in any of them to any notice. There is nothing in any of them to indicate that any notice had been given or that any notice was to be returned with the payment of the premiums. The only notice introduced in evidence was a notice from appellant stating that the firstmonthly premium on the policy would be due September 1, 1913, and which contained a statement that that notice should be returned *Page 630 with the remittance. No other notice is to be found in the record. Neither is there any evidence that any of the other notices mailed or given to appellee contained any such statement. The record is absolutely silent as to the contents of all notices other than the one given in September, 1913. Appellee makes no claim that she was under the impression that it was necessary for her to receive a notice before she could pay the monthly installments or that she labored under the belief that it was necessary for her to return the notice when she made her remittance. Appellant, however, has not objected to this instruction on the ground that it is not supported by the evidence, but since the cause must be reversed for other reasons, we deem it advisable to call attention to the condition of the evidence as to the provision of the notices referred to in the instruction, so as to avoid error in case of another trial. Appellant also insists that this instruction is in conflict with instructions seven, eight and sixteen given at its request. Instruction No. 7 after calling attention to the provision 22. in the policy to the effect that notice of each and every payment on the policy was given and accepted by the delivery and acceptance of the policy and that any further notice was waived, told the jury that, if it found that appellant, up to and including the month of December, 1921, regularly delivered to appellee a notice of the due date of each premium prior to the due date, but failed to give such notice of the premium due January 1 and February 1, 1922, such facts alone would not excuse the insured from paying the premiums within the thirty-day period of grace, and that such failure would not estop appellant from insisting that the policy had lapsed. By the eighth instruction, the jury was told that appellant was not required to give notice of any premium to become due, and that the failure to give notice of the *Page 631 premiums due January 1 and February 1, 1922, did not excuse the insured from their failure to pay such premiums when due or within thirty days thereafter. The sixteenth instruction told the jury that the provision of the policy referred to in the seventh instruction did not require appellant to give notice and did not excuse appellee from the payment of the premiums when due or within thirty days thereafter. Appellant's defense, as disclosed by its answer, was that the premium due January 1, 1922, was not paid when due or within the period of grace. Appellee, in reply, sought to avoid the defense set up in the answer by alleging a custom of giving notice during the life of the policy up to and including November, 1921, of the fact that a premium was due the first of the next month and that it failed to give notice in December, 1921, of the premium falling due January 1, 1922. There was no claim in the pleadings that appellant was estopped by reason of any statement in the notice that such notice should be returned with the remittance as was referred to in the sixth instruction given at the request of appellee. The last instruction was not within the issues and should not have been given. We fail to see how the jury could have returned a verdict for appellee if it had followed said instructions Nos. 7, 8 and 16, unless it was misled and confused by the giving of said instruction No. 6, which was not within the issues, or by said instruction No. 5, the giving of which was not justifiable under the evidence. Appellant also insists that the court erred in refusing to give an instruction directing the jury to return a verdict in its favor. Since the cause has to be reversed for other reasons, we do not deem it necessary to pass upon this contention, as the evidence on another trial may be materially different from that given on the first trial. *Page 632 The judgment is reversed, with directions to sustain the motion for a new trial and for further proceedings consistent with this opinion. Nichols, J., concurs in results.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3177375/

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as ShadoArt Prods., Inc. v. Testa, Slip Opinion No. 2016-Ohio-511.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2016-OHIO-511 SHADOART PRODUCTIONS, INC., ET AL., APPELLANTS, v. TESTA, TAX COMMR., ET AL., APPELLEES. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as ShadoArt Prods., Inc. v. Testa, Slip Opinion No. 2016-Ohio-511.] Taxation—R.C. 5715.27—R.C. 5709.12 and 5709.121—Real-property-tax exemption—Thirty-year lessee can file an application to exempt leased property—Property is not exempt when applicant has no charitable purpose and property does not belong to a charitable institution. (No. 2014-1823—Submitted October 13, 2015—Decided February 16, 2016.) APPEAL from the Board of Tax Appeals, No. 2012-2591. _______________________ Per Curiam. {¶ 1} This real-property-tax exemption case turns on the relationship between R.C. 5715.27, which authorizes the filing of exemption applications and specifies who has standing to file one, and R.C. 5709.12 and 5709.121, which articulate the SUPREME COURT OF OHIO substantive requirements for public-use and charitable-use exemptions. In 2008, the General Assembly amended R.C. 5715.27 to expand the class of entities that may submit applications for various real-property-tax exemptions. 2008 Sub.H.B. 160. {¶ 2} At issue here is 30,000 square feet of commercial space in Columbus. The property is owned by a for-profit corporation, appellant 503 South Front Street L.P., and is being leased for a term of 30 years to appellant ShadoArt Productions, Inc. (“ShadoArt”), a nonprofit organization under 26 U.S.C. 501(c)(3) (“501(c)(3)”). In 2011, ShadoArt filed an application for exemption under R.C. 5709.12 and 5709.121. The commissioner denied the request, and the Board of Tax Appeals (“BTA”) affirmed. {¶ 3} ShadoArt appeals, arguing that because R.C. 5715.27 authorizes it to file an application for exemption, it is also entitled to receive an exemption under R.C. 5709.12 and 5709.121. For the reasons explained below, we reject ShadoArt’s argument and affirm the BTA’s decision. FACTS The property, its ownership, and its use {¶ 4} The Worly Building is a 51,362-square-foot structure located in the Brewery District of Columbus. The building is owned by 503 South Front Street, a corporation that leases the space to several tenants for profit. {¶ 5} In November 2010, 503 South Front Street entered an agreement to lease 29,741 square feet—58 percent—of the Worly Building to ShadoArt, d.b.a. Shadowbox, for a 30-year term, with a purchase option. ShadoArt is contractually obligated to pay all real property taxes associated with its space. {¶ 6} ShadoArt modified the space to include a theater, a kitchen, a bistro area where live performances occur and people queue for main-stage shows, and office space. 2 January Term, 2016 Application for exemption {¶ 7} On April 1, 2011, ShadoArt filed an application requesting a charitable-use exemption from Ohio’s real-property tax for tax year 2011. See R.C. 5709.12 and 5709.121. ShadoArt listed 503 South Front Street as a co-applicant. {¶ 8} On June 15, 2012, the tax commissioner issued a final determination denying the exemption because the property was owned by a for-profit entity. BTA proceedings {¶ 9} ShadoArt appealed to the BTA, which held a hearing on March 17, 2014. {¶ 10} The commissioner and ShadoArt entered five stipulations:  503 South Front Street is a for-profit limited partnership organized under the laws of Ohio.  503 South Front Street owns the property at issue in this case.  The property at issue is a commercial building leased for profit to various tenants. ShadoArt is the largest tenant, with space customized for its operations and productions. ShadoArt is a nonprofit 501(c)(3) organization.  503 South Front Street is the owner and landlord of the property and receives rental income from the property from tenants including ShadoArt. 503 South Front Street has no charitable purpose.  The exhibits introduced by ShadoArt are true and accurate copies of authentic documents. {¶ 11} ShadoArt presented three witnesses, who were cross-examined by the tax commissioner. The tax commissioner did not present any witnesses. {¶ 12} First, William Conner, the president and chief executive officer of the Columbus Association for the Performing Arts (“CAPA”), testified that CAPA 3 SUPREME COURT OF OHIO is a nonprofit organization that owns or operates nine central Ohio theaters. However, Shadowbox operates independently of CAPA. Both organizations are members of the Columbus Cultural Leadership Consortium, a group of nonprofit organizations in Central Ohio. According to Conner, CAPA’s building, which houses the Ohio Theatre, is exempt from property taxation. {¶ 13} Next, Stev Guyer, a co-founder and the executive director of ShadoArt, testified about the company’s mission. Shadowbox strives to provide original artistic programming for a broad audience and features sketch comedy, musical performances, theater, dance, and mixed-genre shows. To this end, Shadowbox regularly collaborates with other local arts organizations, such as the Columbus Museum of Art, Opera Columbus, and BalletMet Columbus. {¶ 14} Guyer described Shadowbox’s significant growth since its creation in 1988. According to Guyer, Shadowbox’s downtown location has allowed the company to more effectively interact with the community and to present a greater variety of productions. {¶ 15} ShadoArt has been recognized as a nonprofit 501(c)(3) organization since 1991. Guyer explained that it operates on an earned-income basis, rather than relying primarily on grants for funding. He estimated that 60 percent of Shadowbox’s income is generated from ticket sales, 38 percent from food and beverage sales, and 2 percent from donations. Free tickets are available for most of Shadowbox’s performances. {¶ 16} ShadoArt also presented testimony from Stacie Boord, Shadowbox’s director of community relations and director of education. Boord described Shadowbox’s relationship with the community, including its charitable contributions and sponsorship of charitable events. She also testified about the company’s extensive educational programming, including partnerships with local schools to provide arts education. 4 January Term, 2016 {¶ 17} Finally, ShadoArt introduced 96 exhibits. These documents include detailed information about the company’s operations, shows, collaborations, educational efforts, and charitable endeavors. They also include financial information about ShadoArt, proof of its 501(c)(3) status, and copies of its federal tax returns for 2010, 2011, and 2012. {¶ 18} On September 25, 2014, the BTA affirmed the commissioner’s denial of exemption. BTA No. 2012-2591, 2014 WL 5148348 (Sept. 25, 2014). In its decision, the BTA explained that ShadoArt did have standing to file an application for exemption under R.C. 5715.27. Id. at *2, citing Columbus City School Dist. Bd. of Edn. v. Wilkins, 106 Ohio St. 3d 200, 2005-Ohio-4556, 833 N.E.2d 726. However, “the applicable exemption statutes, in this case R.C. 5709.12 and R.C. 5709.121, still control a determination of whether the property itself is entitled to exemption.” Id. Accordingly, the BTA held that regardless of ShadoArt’s use of the property, an exemption was not appropriate here: the property “belonged to” 503 South Front Street, see R.C. 5709.121, and 503 South Front Street’s use— renting the space—was purely for profit, see R.C. 5709.12. Id. at *3. ANALYSIS {¶ 19} On appeal, ShadoArt asserts two propositions of law: Proposition of Law No. 1: The Ohio Revised Code, § 5715.27, confers standing on ShadoArt, as a long-term lessee, to seek a real-property tax exemption. Proposition of Law No. 2: The real property leased by ShadoArt is property exempt from taxation under R.C. 5709.12. The subject property is exempt because it “belongs to” ShadoArt, ShadoArt makes “exclusive charitable use” of the property under R.C. 5709.121, and ShadoArt is a charitable or educational institution. 5 SUPREME COURT OF OHIO Burdens and standard of review {¶ 20} This court reviews a BTA decision only to determine whether it is “reasonable and lawful.” R.C. 5717.04; Satullo v. Wilkins, 111 Ohio St. 3d 399, 2006-Ohio-5856, 856 N.E.2d 954, ¶ 14. We defer to the BTA’s factual findings, including determinations of a property’s value, Cuyahoga Cty. Bd. of Revision v. Fodor, 15 Ohio St. 2d 52, 239 N.E.2d 25 (1968), syllabus, as long as they are supported by reliable and probative evidence in the record, Satullo at ¶ 14. By contrast, we review the BTA’s legal determinations de novo. Crown Communication, Inc. v. Testa, 136 Ohio St. 3d 209, 2013-Ohio-3126, 992 N.E.2d 1135, ¶ 16. {¶ 21} In reviewing a BTA decision to grant or deny an exemption, we must be mindful that tax-exemption statutes are strictly construed under Ohio law. See Cincinnati Community Kollel v. Testa, 135 Ohio St. 3d 219, 2013-Ohio-396, 985 N.E.2d 1236, ¶ 17. Thus, ShadoArt bore “the burden of proof * * * to show that the property is entitled to exemption.” R.C. 5715.271; see also Anderson/Maltbie Partnership v. Levin, 127 Ohio St. 3d 178, 2010-Ohio-4904, 937 N.E.2d 547, ¶ 16, quoting Ares, Inc. v. Limbach, 51 Ohio St. 3d 102, 104, 554 N.E.2d 1310 (1990) (“the onus is on the taxpayer to show that the language of the statute ‘clearly express[es] the exemption’ in relation to the facts of the claim”). The scope of R.C. 5715.27 R.C. 5715.27 sets forth general exemption-application procedures, and since 2008, it has permitted certain long-term lessees to file applications for exemption {¶ 22} R.C. 5715.27 “is a general statute applicable to applications for exemption.” Pump House Ministries v. Levin, 5th Dist. Ashland No. 13-COA-036, 2014-Ohio-1590, ¶ 13. It “sets forth the requirements for filing an application for exemption,” id., such as who may file an application and when and who may contest 6 January Term, 2016 an exemption and how. See Strongsville Bd. of Edn. v. Zaino, 92 Ohio St. 3d 488, 489, 751 N.E.2d 996 (2001) (describing the mechanics of former R.C. 5715.27(A) through (D)). {¶ 23} Prior to 2008, R.C. 5715.27 did not specify that a lessee could file an exemption application. Beginning in 1982, R.C. 5715.27 limited the class of those who could file applications to the owners of property. See Am.Sub.S.B. No. 262, 139 Ohio Laws, Pt. I, 711, 713. In 2004, we held that “owner,” as used in R.C. Chapter 5715, “refers only to a legal title holder of the real property for which a tax exemption is sought.” (Emphasis added.) Performing Arts School of Metro. Toledo, Inc. v. Wilkins, 104 Ohio St. 3d 284, 2004-Ohio-6389, 819 N.E.2d 649, ¶ 13. In Performing Arts School, a community school appealed the commissioner’s denial of its application for exemption under R.C. 5709.07, the public-schoolhouse exemption. Id. at ¶ 5, reversing B.T.A. No. 2001-J-977, 2002 Ohio Tax Lexis 2627 (Dec. 20, 2002). This court held that because the school was “a lessee rather than * * * a titleholder of the subject property,” it could not file an application under R.C. 5715.27. Id. at ¶ 6, 15. {¶ 24} In the wake of the Performing Arts School decision, the General Assembly amended R.C. 5715.27(A) to allow certain nontitleholders to apply for an exemption of property. See Pump House at ¶ 16. {¶ 25} As amended, R.C. 5715.27(A) states: (1) Except as provided in division (A)(2) of this section and in section 3735.67 of the Revised Code, the owner, a vendee in possession under a purchase agreement or a land contract, the beneficiary of a trust, or a lessee for an initial term of not less than thirty years of any property may file an application with the tax commissioner, on forms prescribed by the commissioner, requesting that such property be exempted from taxation and that taxes, 7 SUPREME COURT OF OHIO interest, and penalties be remitted as provided in division (C) of section 5713.08 of the Revised Code. {¶ 26} Thus, a 30-year lessee—such as ShadoArt—can file an application to exempt leased property under R.C. 5715.27(A)(1). The 2008 amendment of R.C. 5715.27 did not alter the substantive requirements for any specific exemption under R.C. Chapter 5709 {¶ 27} ShadoArt contends that when the General Assembly amended R.C. 5715.27 to expand the class of entities who can file an exemption application, it simultaneously expanded the exemptions available under R.C. 5709.12 and 5709.121. ShadoArt reasons that if it has standing to file an application under R.C. 5715.27, then it also must have some underlying legal right to exemption; otherwise, the 2008 amendment would be meaningless. {¶ 28} Contrary to ShadoArt’s claims, the amendment to R.C. 5715.27 did not alter the scope of the charitable-use exemption set forth in R.C. 5709.12 and 5709.121. As explained above, the requirements in R.C. 5715.27 apply to applicants seeking a variety of real-property-tax exemptions. But the General Assembly’s 2008 amendment of that provision did not alter the underlying substantive requirements for obtaining any of those exemptions, including the charitable-use exemption. {¶ 29} The General Assembly’s decision to allow long-term lessees to file exemption applications is reasonable because numerous statutes permit exemptions for property that has been leased. For example,  R.C. 5709.08 exempts certain property put to public use, even when “leased or otherwise operated by a private party”;  R.C. 5709.081 exempts certain public recreational facilities used for athletic fields, even if they are leased; and 8 January Term, 2016  R.C. 5709.084 exempts certain convention centers and arenas “regardless of whether the property is leased to * * * a person other than the city.” {¶ 30} The charitable-use exemption itself may apply even when the property is subject to a long-term lease. As explained below, under R.C. 5709.121, property may be exempt for charitable purposes even if the owner is leasing the property, provided that both the lessor and the lessee are charitable institutions. See R.C. 5709.121(A)(1)(b). Thus, in some situations, there is good reason to allow a lessee to file an application for exemption under R.C. 5709.12 and 5709.121. {¶ 31} In short, contrary to ShadoArt’s claims, the General Assembly did not expressly or implicitly modify the charitable-use exemption when it authorized additional filers under R.C. 5715.27(A)(1). In light of this conclusion, ShadoArt’s claim for exemption turns on whether it satisfies the well-established requirements set forth in R.C. 5709.12 and 5709.121. Application of the charitable-use exemption {¶ 32} In its second proposition of law, ShadoArt argues that the subject property is exempt under R.C. 5709.12 because it belongs to ShadoArt, ShadoArt is a charitable or educational institution, and ShadoArt makes exclusive charitable use of the property under R.C. 5709.121. We will consider separately the application of R.C. 5709.12 and 5709.121. Exemption is not warranted under R.C. 5709.12(B) because the property belongs to 503 South Front Street, which uses it for profit {¶ 33} R.C. 5709.12(B) states that “[r]eal and tangible personal property belonging to institutions that is used exclusively for charitable purposes shall be exempt from taxation.” {¶ 34} ShadoArt’s exemption claim turns on whether the leased space belongs to it. We have long held that “belonging to,” as used in R.C. 5709.12, means “owned by.” In 1876, the court explained that “[t]he word ‘belonging’ is 9 SUPREME COURT OF OHIO used in the same sense throughout” the clause defining the charitable-use exemption, “and, as there used, means ownership.” Humphries v. Little Sisters of the Poor, 29 Ohio St. 201, 207 (1876). Possessing a leasehold interest, even under a long-term lease, is not ownership. See, e.g., Toledo v. Jenkins, 143 Ohio St. 141, 158-159, 54 N.E.2d 656 (1944); Evans Invest. Co. v. Limbach, 51 Ohio App. 3d 104, 106, 554 N.E.2d 941 (10th Dist.1988). {¶ 35} Nevertheless, ShadoArt urges us to reconsider the meaning of “belonging to.” ShadoArt reasons that the phrase “belonging to” is much broader than “owned by” and suggests that the General Assembly indicated its preference for this broader interpretation when it amended R.C. 2715.27. But, as explained above, the 2008 amendment to R.C. 2715.27 changed only who may file an application for exemption; it did not alter the requirements for qualifying for any exemption or this court’s interpretation of those requirements. {¶ 36} Moreover, there is good reason to reject ShadoArt’s proposed definition of “belonging to.” If property belongs to a long-term lessee under R.C. 5709.12, then R.C. 5709.121 would be unnecessary. R.C. 5709.121 expands the definition of “used exclusively for charitable purposes” in R.C. 5709.12 to cover situations in which ownership and use do not coincide. If an organization is charitable and leases property to another organization that uses it for charitable purposes, then the property may be exempt under R.C. 5709.121. The existence of this provision alone proves that property does not belong to a long-term lessee under R.C. 5709.12. Moreover, the principle that exemption provisions are strictly construed calls for adopting the more, rather than the less, restrictive construction of “belonging to.” {¶ 37} For these reasons, the property belongs to 503 South Front Street, not ShadoArt. 503 South Front Street’s exemption claim then turns on whether its use of the property is charitable. See Northeast Ohio Psych. Inst. v. Levin, 121 Ohio St.3d 292, 2009-Ohio-583, 903 N.E.2d 1188, ¶ 11 (“under the general exemption 10 January Term, 2016 for ‘exclusive charitable use’ of property set forth at R.C. 5709.12(B), it is the owner’s use of the property, not a lessee’s use that determines whether the property should be exempted” [emphasis sic]). {¶ 38} The record here clearly indicates that, as the parties stipulated, 503 South Front Street has no charitable purpose. It is a private, for-profit company that “is using th[e] property for leasing.” Northeast Ohio Psych. Inst. at ¶ 11; see also Highland Park Owners, 71 Ohio St. 3d at 406-407, 644 N.E.2d 284 (as a general matter, “a private profit-making venture does not use property exclusively for charitable purposes”). Thus, the property is not exempt under R.C. 5709.12(B). Exemption is not warranted under R.C. 5709.121 because the property does not belong to a charitable institution {¶ 39} In light of the above holding, the property in question “must qualify [for an exemption], if at all, under R.C. 5709.121.” Northeast Ohio Psych. Inst. at ¶ 12. {¶ 40} R.C. 5709.121(A) states that if property “belong[s] to a charitable or educational institution,” then it “shall be considered as used exclusively for charitable or public purposes by such institution” if it meets one of several requirements. (Emphasis added.) {¶ 41} R.C. 5709.121 “does not itself grant any exemption.” First Baptist Church of Milford, Inc. v. Wilkins, 110 Ohio St. 3d 496, 2006-Ohio-4966, 854 N.E.2d 494, ¶ 16. Instead, it “refines” R.C. 5709.12 by broadening the meaning of the phrase “used exclusively for charitable purposes” in that provision. Id.; see also Dialysis Clinic, Inc. v. Levin, 127 Ohio St. 3d 215, 2010-Ohio-5071, 938 N.E.2d 329, ¶ 24. Historically, the charitable-use exemption was not available when a property owner “had leased the property to another, even if that lessee was using the property for charitable purposes.” Dialysis Clinic at ¶ 23. But the General Assembly enacted R.C. 5709.121 to address that precise situation: It “expand[ed] the charitable-use exemption to encompass (among other situations) the situation 11 SUPREME COURT OF OHIO in which an entity that qualifies as a ‘charitable institution’ itself leases property to another charitable institution for charitable purposes.” Northeast Ohio Psych. Inst., 121 Ohio St. 3d 292, 2009-Ohio-583, 903 N.E.2d 1188, at ¶ 12; see also Dialysis Clinic at ¶ 22 (when the property owner is a “charitable or educational” institution, R.C. 5709.121 “link[s] certain property uses” to R.C. 5709.12(B)’s exclusive- charitable use exemption”). {¶ 42} R.C. 5709.121 “applies only to property ‘belonging to’ i.e., owned by, a charitable or educational institution, or the state or a political subdivision.” (Emphasis sic.) Highland Park Owners, 71 Ohio St. 3d at 406, 644 N.E.2d 284; see also First Baptist Church, 110 Ohio St. 3d 496, 2006-Ohio-4966, 854 N.E.2d 494, at ¶ 15, quoting White Cross Hosp. Assn. v. Bd. of Tax Appeals, 38 Ohio St. 2d 199, 203, 311 N.E.2d 862 (1974) (Stern, J., concurring) (the provision “ ‘has no application to noncharitable institutions seeking tax exemption under R.C. 5709.12’ ”). Thus, “an entity that leases property to another must establish its charitable status based on the range of its own activities and may not rely upon the activities of a particular lessee.” (Emphasis sic.) Northeast Ohio Psych. Inst. at ¶ 14. {¶ 43} As discussed above, 503 South Front Street owns the subject property and leases it to ShadoArt for profit. Because 503 South Front Street does not purport to have any charitable purpose, the property cannot qualify for exemption under R.C. 5709.121. CONCLUSION {¶ 44} For these reasons, we affirm the BTA’s decision. Judgment accordingly. O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ., concur. _________________ 12 January Term, 2016 Laura MacGregor Comek; and Crabbe, Brown & James, L.L.P., Larry H. James, and Andrew G. Douglas, for appellants. Michael DeWine, Attorney General, and Daniel W. Fausey and Raina M. Nahra, Assistant Attorneys General, for appellee Joseph W. Testa. Rich & Gillis Law Group, L.L.C., Mark H. Gillis, Kelley A. Gorry, and Karol Fox, for appellee Columbus City Schools. _________________ 13

01-03-2023

02-16-2016

https://www.courtlistener.com/api/rest/v3/opinions/3209668/

Case: 15-15486 Date Filed: 06/06/2016 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-15486 Non-Argument Calendar ________________________ D.C. Docket No. 1:01-cr-00396-FAM-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HUBERT GILBERT, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (June 6, 2016) Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges. PER CURIAM: Hubert Gilbert appeals the denial of his motion to reduce his sentence. 18 Case: 15-15486 Date Filed: 06/06/2016 Page: 2 of 5 U.S.C. § 3582(c)(2). Gilbert requested a reduction based on Amendment 782 to the Sentencing Guidelines. We affirm. Gilbert pleaded guilty to one count of conspiring to possess with intent to distribute marijuana and five kilograms or more of cocaine, 21 U.S.C. §§ 841(b)(1)(A)(ii), 841(b)(1)(D), 846, one count of conspiring to obstruct, delay, or affect commerce by robbery, 18 U.S.C. § 1951(a), two counts of using, carrying, brandishing, or possessing a firearm during a crime of violence or drug trafficking crime, id. § 924(c), and one count of carjacking, id. § 2119. Gilbert’s presentence investigation report described his involvement in three home invasion robberies that targeted homes of known drug dealers. During the first robbery, Gilbert waited in the getaway car as his coconspirators pried open the door of the home, held the homeowner’s wife and children at gunpoint while demanding money and drugs, pistol-whipped the wife until she divulged the location of $4,000 in cash, threatened to kill the wife until the children disclosed the whereabouts of a hidden compartment containing valuables, and then ransacked the house after locking the victims in a closet. Later, Gilbert and his cohorts broke into a second home and threatened to kill a female occupant unless she cooperated, but the cohorts were forced to flee after one of them was shot by another occupant. During the third robbery, Gilbert and his cohorts entered the home wielding guns, pistol-whipped and drug the occupants through the home demanding money and jewelry, bound 2 Case: 15-15486 Date Filed: 06/06/2016 Page: 3 of 5 the occupants with duct tape, and stole $2,724 in cash, jewelry and two vehicles valued around $11,000, and about eight pounds of marijuana. Over the course of two sentencing hearings, the district court found that Gilbert had a criminal history of IV, his first robbery involved 5 to 15 kilograms of cocaine and resulted in a base offense level of 32, he had a managerial role in the conspiracy, and he knew or should have known that his victims were vulnerable. Based on Gilbert’s total offense level of 38, the district court calculated a sentencing range between 324 and 405 months of imprisonment. The district court sentenced Gilbert to concurrent sentences of 324 months for his conspiracy to distribute drugs, 240 months for conspiring to affect commerce, and 180 months for carjacking. The district court also imposed sentences of 240 months and 60 months for Gilbert’s two firearm offenses, with the instruction that they run consecutively to each other and to his sentence for conspiring to distribute drugs. Gilbert moved for a reduction of his sentence under Amendment 782. The government acknowledged that the amendment applied to Gilbert and reduced his base offense level to 36, which was then increased by one level for his multiple offenses, see U.S.S.G. § 3D1.4. But the government opposed any reduction of Gilbert’s sentence based on the statutory sentencing factors, which required consideration of his involvement in the planning and selection of the robbery victims, the violent nature of the robberies, his criminal history, and the record of 3 Case: 15-15486 Date Filed: 06/06/2016 Page: 4 of 5 his escalating criminal behavior. See 18 U.S.C. § 3553(a). The district court appointed counsel for Gilbert, who argued for a 32-month reduction in his sentence because that would not create any concerns for the safety of the public and would reflect his efforts to improve his mental health, life skills, and education while in prison. We review the denial of a motion to reduce a sentence for abuse of discretion. United States v. Jules, 595 F.3d 1239, 1241 (11th Cir. 2010). A district court may reduce a term of imprisonment when the defendant’s guideline range is lowered by the Sentencing Commission. 18 U.S.C. § 3582(c). After the district court recalculates the sentence under the amended guidelines, it must decide, in the light of the statutory sentencing factors, id. § 3553(a), “whether, in its discretion, it will elect to impose the newly calculated sentence under the amended guidelines or retain the original sentence.” United States v. Bravo, 203 F.3d 778, 780–81 (11th Cir. 2000). The district court did not abuse its discretion when it denied Gilbert’s motion. The district court determined that Gilbert was eligible for a reduction. But upon consideration of Gilbert’s motion and the parties’ arguments, the district court decided to retain Gilbert’s sentence of 324 months. That sentence, the district court reasonably determined, was warranted “in view of the violent nature of the three home invasion robberies during which [Gilbert and his cohorts] used and 4 Case: 15-15486 Date Filed: 06/06/2016 Page: 5 of 5 carried firearms.” See 18 U.S.C. § 3553(a). The district court was not required to address or explain the weight that it assigned each individual sentencing factor in its order denying Gilbert’s motion. See United States v. Brown, 104 F.3d 1254, 1256 (11th Cir. 1997). We AFFIRM the denial of Gilbert’s motion to reduce. 5

01-03-2023

06-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427079/

In her complaint the appellee alleged among other things, that heretofore, in the DeKalb Circuit Court, the Garrett State Bank brought an action to foreclose a mortgage on real estate, in which action the appellant, the appellee and others were parties defendant. That the appellant filed a cross-complaint in the foreclosure action, but that the appellee was not made a party defendant to the cross-complaint, was not served with any summons to appear thereto, and did *Page 307 not so appear. The complaint further alleged that the court made no finding against the appellee on said cross-complaint and rendered no judgment thereon against her, but that the Clerk of the court erroneously entered in the judgment docket a record of a personal judgment against her, and in favor of the appellant, in the sum of $582. She demanded that the record so erroneously made, be cancelled and stricken out. The court found the facts specially, stated conclusions of law thereon, and rendered a judgment which, although not carefully worded, may fairly be construed to extend the relief demanded. The record discloses that in the court below, the appellant asked and was granted ninety days within which to file all bills of exceptions, but the certificate of the Judge to the 1, 2. bill of exceptions containing the evidence recites that it was presented by the appellee rather than by the appellant and the appellant is not shown to have presented any. The appellee insists that this bill is not in the record because not presented by the appellant. The rules of the Supreme Court, 1943 Revision, do not require a party to obtain time for the filing of bills of exceptions, nor do they require that such bills, to be incorporated in a transcript on appeal, must have been presented and filed by the party appealing. Rule 2-3 provides that: "Every bill of exceptions tendered prior to the filing of the transcript in the appellate tribunal shall, if correct, be signed by the judge and filed with the clerk, which filing may be evidenced by an order book entry or the clerk's certificate." The bill of exceptions in this case was certified by the trial court to be full, true and complete, and it was filed with the clerk as evidenced by the clerk's certificate. It is, therefore, a part of the record in this case. The appellant's objection would *Page 308 have been unavailing even before the adoption of the present rules. Benefiel v. Aughe (1884), 93 Ind. 401. The appellant excepted to each conclusion of law, but assigns error only in the overruling of his motion for new trial. The motion specifies that (1) the decision is not sustained by 3. sufficient evidence and (2) is contrary to law. The question thus presented is stated by Judge Curtis inCentral Pharmacal Co. v. Salb (1939), 106 Ind. App. 495,13 N.E.2d 875, as follows: "By the two causes or grounds of the motion for a new trial which are above mentioned, the appellant is entitled first, to have this court determine whether or not the special finding of fact in the instant case contains a finding which is essential to the decision the court made which is not supported by any evidence and which cannot be supplied by any reasonable inferences from the evidence. Secondly, the appellant is entitled to have this court determine whether or not the undisputed evidence establishes a controlling fact within the issues which is not found, but which if found would necessitate different conclusions of law and a different judgment based thereon." (Our italics.) The appellant insists that the findings of fact are in many particulars not supported by the evidence, and an examination of the record sustains that contention. To entitle her to 4. relief, the appellee first relied upon the proposition that the court acquired no jurisdiction of her person in connection with the cross-complaint. Although the court found that such jurisdiction had not been obtained, the evidence indicates that she was made a party defendant to the cross-complaint and was served with summons on the original complaint. None of the pleadings in the foreclosure case were introduced in evidence, and so it does not appear whether it was necessary that the *Page 309 appellee be served with summons in connection with the cross-complaint. Neither does the evidence disclose whether a summons was or was not served upon her in connection with the cross-complaint, or whether she did or did not appear thereto. In addition to the jurisdictional question just considered, the appellee relied for recovery upon the proposition that although no finding was made and no judgment was rendered against her on the cross-complaint, the clerk nevertheless entered a record of a personal judgment against her in the judgment docket, thus casting a cloud upon her title to lands not involved in the foreclosure proceedings. To be entitled to that relief she would, of course, have to show that such an erroneous entry was actually made. The evidence does not disclose that the clerk ever made any entry of any kind, right or wrong, in the judgment docket. We can not presume that the clerk failed to perform his duty, or 5. that he performed it erroneously. It may be that the court undertook to take judicial notice of the records and proceedings in the foreclosure case, which was tried in the same court, and partially based his findings thereon. This the court had no right to do. 20 Am. Jur., § 87, p. 105; Fletcher, etc.,Trust Co. v. American State Bank (1925), 196 Ind. 118,147 N.E. 524. Other questions suggest themselves but we have discussed only those presented. Since findings of fact which are essential to the decision of the court are not supported by any evidence or inferences reasonably to be drawn therefrom, the judgment is reversed 6. and cause remanded with instruction to sustain appellant's motion for new trial. NOTE. — Reported in 64 N.E.2d 41. *Page 310

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4047422/

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § MICHAEL DANIEL CUCUTA, No. 08-15-00028-CR § Appellant, Appeal from the § v. 213th District Court § THE STATE OF TEXAS, of Tarrant County, Texas § State. (TC# 1371063R) § § ORDER The Court GRANTS the State’s third motion for extension of time to file the brief until ' December 16, 2015. NO FURTHER MOTIONS FOR EXTENSION OF TIME TO FILE THE ' STATE’S BRIEF WILL BE CONSIDERED BY THIS COURT. It is further ORDERED that the Hon. David L. Richards, the State’s Attorney, prepare the State’s brief and forward the same to this Court on or before December 16, 2015. IT IS SO ORDERED this 17th day of November, 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/3426985/

ON PETITION FOR REHEARING. Appellee, in support of her petition for rehearing, assails the original opinion and our statements therein that the only policy sued on was the policy issued by the Western company, and that the American policy not being introduced in evidence, we did not know the provisions thereof. On page four of her original brief, after setting out the application to the Western company for a policy under the terms of the reinsurance contract, appellee said that the 23. policy sued on was issued upon said application, thus indicating her understanding at that time. She now, for the first time, insists that the policy sued on in the second paragraph of complaint was the policy issued by the American company. An examination of the record conclusively shows that appellee, as well as appellant and the trial court understood that both paragraphs of complaint were founded upon the Western policy. Appellant, in its second and third paragraphs of answer to first paragraph of complaint, alleged a default of more than thirty days in the payment of premiums. Appellee, in her reply to this answer, alleged that, by the terms of the policy sued on, she had thirty days' grace in which to pay the premiums and set out the clause of the policy giving thirty days' grace. Later, she filed a second paragraph of complaint, and in the second paragraph of her reply to the answer to the second paragraph of complaint, she sought to avoid the failure to pay the premiums within "the thirty days of grace given for the payment of each monthly premium," by alleging *Page 633 certain facts which she claimed estopped appellant from insisting upon a forfeiture because of her failure to pay within the thirty-day period. In the third paragraph of reply, she alleged that, "by the terms of the policy herein sued upon premiums weredue on the first of each month and that a period of grace ofthirty days was given in which to pay said premiums" (our italics) and conceded that the premiums due January 1, and February 1, were not paid within the "period of grace prescribed in the said policy." In the fourth paragraph of reply, she also alleged that, "by the terms of the policy sued upon payment of premiums were required to be made on the first day of each calendar month and that a period of thirty days' grace was provided within which to make said payment of premiums," and she sought to avoid forfeiture because of her failure to pay within the thirty-day period, by reason of the fact that she sent a check to appellant February 4, in payment of the premium due January 1, and that appellant had retained the check so sent. If any further proof is needed to show that appellee, appellant and the trial court understood that the only policy sued on was the Western policy, we might look at the instructions given at the request of the parties. In instruction No. 1, given at the request of appellee, the jury was informed that the complaint was in two paragraphs to recover on account of "a policy of insurance"; that she and her husband had surrendered the American policy and procured "the policy sued upon in this action"; that appellant had by answer alleged a failure to pay the premiums within the thirty-day period of grace as required by the policy and that appellee in her reply had alleged facts to avoid forfeiture by reason of her failure to pay the premiums within the thirty-day period. In instructions Nos. 5, 6 and 7, given at her request, she refers to "the policy" sued on. The court, *Page 634 at the request of appellant, instructed the jury that "the policy sued" on contained the express condition that a "grace period of thirty days" was granted for payment of premiums, and that a failure to pay a premium within such time rendered "the policy of insurance in suit" void, and that if appellee had failed to pay within the thirty-day period, she could not recover, unless appellant had waived or was estopped from treating the policy as void. Instruction No. 3, given at request of appellant, told the jury that the policy sued on contained a provision giving thirty days' grace within which to pay the premiums, and, in at least ten other instructions, the jury's attention was called to the thirty-day period of grace in the policy, and in two instructions, the court directly told the jury that if it found the American policy had been surrendered and "the policy in suit" executed by the Western company, appellee's rights were governed by the Western policy. Appellee tendered no instruction wherein it was claimed she had the right, under the provisions of the American policy, to a grace period of sixty days, and no reference to a claim that she had a right to pay within sixty days was made in any instruction given by the court. Appellee, appellant and the court, having adopted the theory that the Western policy was the only policy sued on, that theory will be adopted and adhered to on appeal. In her original brief herein, appellee made the statement that the American policy issued to her and her husband contained a provision giving them a grace period of two months for the payment of premiums. No reference was made to the page of the record where such evidence could be found. In her brief on rehearing, she says that a "skeleton copy" of the American policy issued to her and her husband was introduced in evidence, and gives the page of the record where she *Page 635 says such alleged copy can be found. An examination of the record shows that the reinsurance contract between the receiver of the American company and appellant, and certain exhibits which were referred to in the contract and made a part thereof were introduced in evidence. Following these exhibits, appear what seem to be "skeleton" forms of two insurance policies. These forms are not mentioned in the reinsurance contract and are not made a part thereof by reference or otherwise. The reinsurance contract makes reference to exhibits A, B, C, D and E, and makes them a part thereof. The "skeleton" forms referred to are not a part of the reinsurance contract, and there is nothing in the record to show they were or were not introduced in evidence, or that neither of them was or purported to be a copy of the original policy issued by the American company to appellee and her husband. Exhibit B, which is filed with and made a part of the second paragraph of appellee's complaint, is alleged to be a copy of the reinsurance contract. The so-called "skeleton" forms do not there appear as a part of that contract, or as a part of the complaint, and notwithstanding the statement of appellant's counsel that these "skeleton" forms are certified to by the commissioner of insurance, the record does not so show. The certificate of the insurance commissioner precedes the copy of the contract and makes no reference to the alleged copies of the American policy. In order to verify the correctness of our position, we have examined the original reinsurance contract on file in the office of the insurance commissioner and we find the copy thereof which is made a part of the second paragraph of complaint is an exact copy of the original, and that the alleged skeleton forms are not attached to or made a part of the contract. Appellee concedes that the policy sued on in the first paragraph of complaint is the Western policy, and in *Page 636 the second paragraph of her complaint, she alleges that she and her husband made application to appellant for a policy of insurance, and that, "in accordance with said application, the said defendant executed to the plaintiff and said John Bartlett, the policy of insurance sued upon, (our italics) a copy of which is attached hereto, and made a part hereof and marked Exhibit `A' and attached to the first paragraph of this complaint." Exhibit "A," thus referred to as the policy sued on, is a copy of the Western company policy. We adhere to the statement in the principal opinion that the only policy sued on is the policy issued by appellant; that there is nothing in the record showing that such policy is not identical in form with the American policy; that the policy issued by the American company was not introduced in evidence, and that we do not know what its provisions were. Other reasons are urged in support of the petition for a rehearing, but they are based upon a mistaken idea of the facts as disclosed by the record, and we do not deem it necessary to further extend this opinion by discussing them, although we have given each of them painstaking consideration. Petition for rehearing denied.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3426949/

This is an appeal from a declaratory judgment of the trial court which adjudicated that § 9 of the Indiana Retail Instalment Sales Act, as amended by Ch. 238 of the 1947 Acts (§ 58-909, Burns' 1943 Replacement [1947 Supp.]), "is unconstitutional and void in that it deprives plaintiff [appellee General Finance Corporation] of liberty and property without due process of law and unlawfully burdens interstate commerce." The evidence consisted of stipulations, documentary evidence, and the testimony of three witnesses, and there is no dispute as to the facts, but only as to the law as applied to the facts. The complaint was for a declaratory judgment and injunction. The evidence reveals that the appellee is a corporation organized under the laws of the State of Michigan, with its principal office at Detroit, and it has been duly admitted, qualified and authorized to transact business as a foreign corporation in the State of Indiana. Since February 26, 1944, it has been licensed by the Department of Financial Institutions to purchase retail instalment contracts as defined in the Retail Instalment Sales Act (§ 58-901 et seq., Burns' 1943 Replacement; ch. 231, Acts of 1935), and on June 26, 1946, it was again licensed "to purchase retail instalment contracts from retail sellers and/or to loan money to retail sellers on the security of retail instalment contracts . . . from July 1, 1946, until such license and the authorization thereunder is surrendered, revoked or suspended. . . ." The corporation is licensed to and does business in approximately eighteen states and maintains offices in Chicago. Its net worth is $9,000,000 with a borrowing capacity of three times its net worth, or $27,000,000. Its annual gross business throughout the United States totals $400,000,000 of which the annual volume of business in Indiana is *Page 379 $10,000,000. It maintains an Indiana office where it buys retail instalment sales contracts. At the time the action was commenced it had an agreement with the Harris Trust and Savings Bank of Chicago, Illinois, and the Mercantile-Commerce Bank and Trust Company of St. Louis, Missouri, to sell and assign to them without recourse retail instalment sales contracts purchased in Indiana. The Indiana contracts were transmitted to the corporation's Chicago office for the assignment and delivery to the Harris Trust and Savings Bank, which also serviced the purchases made by the Mercantile-Commerce Bank and Trust Company of St. Louis. These two banks were the only institutions available to the corporation for sale without recourse of instalment sales contracts in the large volume required by it. The corporation also had a standing arrangement with the First National Bank of Chicago, Illinois, to pledge large amounts of such contracts with it as trustee for approximately seventy-five banks located in approximately twenty states, only one of which is licensed under the Indiana Retail Instalment Sales Act, as security for separate loans made to the appellee by such banks. It was stipulated that because of the large quantity of credit and working capital the corporation was required to employ in its business, its business in Indiana would be seriously impaired without being able to assign or pledge the contracts in which it dealt. None of the out of state banks has ever engaged in the business of purchasing retail contracts from retail sellers, or making loans to retail sellers in Indiana on the security of such contracts, and prior to the bringing of this action each of the three named banks advised the appellee it was unwilling to become a licensee under *Page 380 the Indiana Act. However, under protest the Harris Trust and Savings Bank of Chicago and the Mercantile-Commerce Bank and Trust Company of St. Louis did obtain a license from the Department of Financial Institutions in order to protect the validity of the contracts pending the outcome of this litigation. The First National Bank of Chicago never obtained such a license. At the time this action for declaratory judgment was commenced, Ch. 238 of the 1947 Acts, which amended § 9 of the Act, had not become effective, although it had been approved by the Governor March 12, 1947. It contained no emergency clause, and the exact time it would become effective was uncertain. It did become effective on August 20, 1947, the day the evidence was concluded upon the trial. A declaratory judgment action will lie to determine the rights under a statute even though the act is not yet in effect. Anderson, Declaratory Judgments, p. 192, § 68; 16 Am. 1-3. Jur. 301, § 27. The amendment was certain to take effect, and when it did become effective it would substantially impair the valuable property rights of the appellee. We cannot presume that, in the absence of adjudication declaring its invalidity, the Department of Financial Institutions would not take steps to enforce its provisions. It was stipulated that there was "a good faith controversy" existing between the appellee and appellants as to the validity of § 9 of the Act as amended. The complaint alleged the appellants were contending that § 9 as amended was "in all respects valid" and will "render unlawful the sales and pledges of the contracts to persons, firms and corporations either within or without the state of Indiana not licensed under the act" and that "a good faith controversy exists between the plaintiff *Page 381 and defendants as to the interpretation and validity" of said section. The finding of the trial court was that the facts alleged in the complaint were true. The appellee had a present substantial interest in the relief sought, and there was in existence a real and material controversy which should be decided in order to safeguard the appellee's rights. Zoercher v.Agler (1930), 202 Ind. 214, 172 N.E. 186, 907, 70 A.L.R. 1232. The fact that the court did not grant the injunction gives no cause for complaint to the appellants. The judgment decided the issues in controversy. "The idea that it is necessary for one branch of the government forcibly to restrain or punish another branch or instrument of the government, in order to achieve respect for the declared law, is anomalous. In a recent case [Tirrell v. Johnston, Attorney-General (1934), 86 N.H. 530,171 A. 641, 642], Chief Justice Peaslee for the New Hampshire Supreme Court in refusing to enjoin the attorney-general from criminally prosecuting the plaintiff for purported violation of a tax statute, but in approving the substitution of a prayer for a declaratory judgment, remarked: "`When the law is settled it will be obeyed. It is therefore immaterial whether the proper proceeding is an application for a restraining order or a petition for a declaratory judgment. A final interpretation of the law in either form of proceeding would be binding upon these parties.' The simplest way is the best way to bring to judicial determination the challenged validity of governmental action allegedly violating individual rights; and experience has shown that the declaratory judgment serves that purpose admirably . . ." Borchard, Declaratory Judgments 967 (2d Ed.). *Page 382 The fact that the appellee had a license under the Act does not estop it from attacking the constitutionality of the amendment. The enactment constituted an invasion of appellee's 4-6. liberty and property rights and there was in substance a threat of enforcement of the unconstitutional provisions.Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114, 54 A.L.R. 1016; Savage v. Jones (1912),225 U.S. 501, 56 L. Ed. 1182, 32 S. Ct. 715; Power Mfg. Co. v.Saunders (1927), 274 U.S. 490, 71 L. Ed. 1165, 47 S. Ct. 678;Commonwealth of Pennsylvania v. State of West Virginia (1923), 262 U.S. 553, 67 L. Ed. 1117, 43 S. Ct. 658, 32 A.L.R. 300. The penalties for noncompliance were severe, since if the provisions were enforced no suit could be brought upon the contract by any assignee or purchaser under § 9, and a wilful violation of the provisions of the Act under § 29 (§ 58-929, Burns' 1943 Replacement) was made a penal offense, punishable by fine of not more than $1,000 or imprisonment of not more than one year, or both. Compliance with such coercive provisions does not constitute a waiver of the right to contest the constitutionality of the Act. 11 Am. Jur. 771, § 124; Union Pacific R. Co. v.Public Service Com. of Missouri (1918), 248 U.S. 67, 63 L. Ed. 131, 39 S. Ct. 24; Cargill Co. v. State of Minnesota (1901),180 U.S. 452, 45 L. Ed. 619, 21 S. Ct. 423. An examination of all the provisions of the Retail Instalment Sales Act (Ch. 231 of the 1935 Acts, § 58-901 et seq., Burns' 1943 Replacement) reveals that, among other objects, it 7-9. seeks to prevent fraud and promote competition among licensees who might purchase such contracts from retail sellers. The prevention of fraud is a legitimate exercise of the police powers of the state. Dent v. State of W. Va. *Page 383 (1889), 129 U.S. 114, 32 L. Ed. 623, 9 S. Ct. 231; Savage v.Jones (1912), 225 U.S. 501, 56 L. Ed. 1182, 32 S. Ct. 715,supra; 11 Am. Jur. 1027, § 273; 12 C.J. 920, § 429; 16 C.J.S. 555, § 187; Hammer v. State (1909), 173 Ind. 199, 89 N.E. 850, 140 Am. St. Rep. 248, 24 L.R.A. (N.S.) 795, 21 Ann. Cas. 1034; State v. Martin (1923), 193 Ind. 120, 139 N.E. 282, 26 A.L.R. 1386. The promotion of competition by prohibiting monopolistic practices is likewise a valid exercise of the police power. German Alliance Ins. Co. v. Hale (1911), 219 U.S. 307, 55 L. Ed. 229, 31 S. Ct. 246; Knight Jillson Co. v. Miller (1909), 172 Ind. 27, 87 N.E. 823; 36 Am. Jur. 595, § 120; 12 C.J. 927, § 438; 41 C.J. 118, 119, § 81. See also United States v.General Motors Corp. (1941), 121 F.2d 376. But it is not every exercise of police power by the state which is valid either under the Commerce Clause or the due process clause of the Federal Constitution or under §§ 1 and 23 of 10. Article 1 of the Constitution of Indiana, nor does the determination by the legislative department as to what is a proper exercise of police power prevent a review of the question by the courts. Baldwin v. Seelig (1935),294 U.S. 511, 79 L. Ed. 1032, 55 S. Ct. 497; Kansas City S.R. Co. v.Kaw Valley Drainage Dist. (1914), 233 U.S. 75, 58 L. Ed. 857, 34 S. Ct. 564; Morgan v. Commonwealth of Virginia (1946),328 U.S. 373, 90 L. Ed. 1317, 66 S. Ct. 1050, 165 A.L.R. 574;Southern Pacific Co. v. Arizona (1945), 325 U.S. 761, 89 L. Ed. 1915, 65 S. Ct. 1515; Truax v. Raich (1915), 239 U.S. 33, 60 L. Ed. 131, 36 S. Ct. 7; Buchanan v. Warley (1917), 245 U.S. 60, 62 L. Ed. 149, 38 S. Ct. 16; Department of Ins. v.Schoonover (1947), 225 Ind. 187, 72 N.E.2d 747; State Bd. ofBarber Examiners v. Cloud (1942), 220 Ind. 552,44 N.E.2d 972; Weisenberger v. State *Page 384 (1931), 202 Ind. 424, 175 N.E. 238; Blue v. Beach (1900),155 Ind. 121, 56 N.E. 89, 50 L.R.A. 64, 80 Am. St. Rep. 195. The trial court in reviewing such legislative determination found that § 9 as amended did deprive the appellee of liberty and property without due process of law, and was an unlawful burden upon interstate commerce. There are no cross-errors assigned, so the constitutional issues presented on appeal are limited to due process and interstate commerce. There is nothing immoral, noxious or unlawful per se in the execution of retail instalment sales contracts, nor in engaging in the business of selling goods by such method, nor in 11-14. selling, buying, or pledging such contracts. "Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 42 L. Ed. 780, 790, 18 S. Ct. 383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land. 1 Cooley'sBlackstone's Commentaries 127." Buchanan v. Warley (1917),245 U.S. 69, 74, 62 L. Ed. 150, 161, 38 S. Ct. 16, supra. "Valid contracts are property, whether the obligor be a private individual, a municipality, a State or the United States."Lynch v. United States (1934), 292 U.S. 571, 579, 78 L. Ed. 1434, 1440, 54 S. Ct. 840. Section 9 of the Act as amended by Chapter 238 of the 1947 Acts (§ 58-909, Burns' 1943 Replacement [1947 Supp.]), in part provides, "No retail instalment contract shall be sold, assigned or transferred to any person other than a licensee under this act or a retail seller who was a party to the retail instalment sale from which such retail instalment contract originated *Page 385 and no suit shall be brought thereon by any assignee or purchaser in violation of this provision." Section 11 of the Act (§ 58-911, Burns' 1943 Replacement), prohibits persons from purchasing retail instalment contracts from retail sellers, or, unless a bank or trust company, from making loans to a retail seller doing business in this state on the security of retail instalment contracts, unless the Department of Financial Institutions has licensed such business activities. Before the amendment of § 9, the appellee was free to sell or pledge such contracts in other states.1 The prohibitions in the present law prevent the appellee from assigning or pledging its own property in another state. The prohibition of a right to contract within another state 15-17 concerning the property of a person within the state, is a denial of due process of law. Allgeyer v.Louisiana (1897), 165 U.S. 578, 591, 592, 41 L. Ed. 832, 836, 17 S. Ct. 427, 432. In this case the State of Louisiana sought to prohibit making an insurance contract in the State of New York on property located in Louisiana. The United States Supreme Court said: "In the privilege of pursuing an ordinary calling or trade and of acquiring, holding, and selling property must be embraced the right to make all proper contracts in relation thereto, and although it may be conceded that this right to contract in relation to persons or property or to do business within the *Page 386 jurisdiction of the state may be regulated and sometimes prohibited when the contracts or business conflict with the policy of the state as contained in the statutes, yet the power does not and cannot extend to prohibiting the citizen from making contracts of the nature involved in this case outside of the limits and jurisdiction of the state, and which are also to be performed outside of such jurisdiction; nor can the state legally prohibit its citizens from doing such an act as writing this letter of notification, even though the property which is the subject of the insurance may at the time when such insurance attaches be within the limits of the state. The mere fact that a citizen may be within the limits of a particular state does not prevent his making a contract outside its limits while he himself remains within it, Milliken v. Pratt, 125 Mass. 374 [28 Am. Rep. 241]; Tildon v. Blair, 88 U.S. 21 Wall. 241 [22:632] . . ." No state by legislation may project its powers and authority beyond its own borders. New York, L.E. W.R. Co. v.Commonwealth of Pennsylvania (1894), 153 U.S. 628, 38 L. Ed. 846, 14 S. Ct. 952; Fidelity Deposit Co. v. Tafoya (1926),270 U.S. 426, 70 L. Ed. 664, 46 S. Ct. 331; Baldwin v. Seelig (1935), 294 U.S. 511, 79 L. Ed. 1032, 55 S. Ct. 497, supra;McLeod v. Dilworth Co. (1944), 322 U.S. 327, 88 L. Ed. 1304, 64 S. Ct. 1023; Pennoyer v. Neff (1878), 95 U.S. 714, 24 L. Ed. 565; Allgeyer v. Louisiana (1897), 165 U.S. 578, 41 L. Ed. 832, 17 S. Ct. 427, supra. The facts in this appeal involve more than an incidental extra-territorial effect on contracts to be performed within Indiana. Section 9 of the Act as applied to out of state assignments and pledges is an unreasonable and arbitrary attempt to extend jurisdiction beyond the state under the police power in order to remedy evils which would be prevented adequately under the existing rights of regulation, inspection and report, or, if needed, by other legislative provisions which would have no extra-territorial *Page 387 force. It logically follows that amended § 9 does deprive the appellee of liberty and property without due process of law under the Fourteenth Amendment. In considering what is interstate commerce the courts are not bound by any frozen concept. As stated by Mr. Justice Holmes in Swift Co. v. United States (1905), 196 U.S. 18-21. 375, 398, 49 L. Ed. 518, 525, 25 S. Ct. 276, ". . . commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business." Intangibles, such as contracts, may be instruments of interstate commerce. United States v. SoutheasternUnderwriters Assn. (1944), 322 U.S. 533, 88 L. Ed. 1440, 64 S. Ct. 1162; United States v. General Motors Corp. (1941), 121 F.2d 376. The fact that the appellee in its regular course of business transmitted the Indiana contracts to its Chicago office for delivery to the Chicago banks did not change the interstate character of the commerce. Binderup v. Pathe Exch. (1923),263 U.S. 291, 68 L. Ed. 308, 44 S. Ct. 96; Swift Co. v.United States, supra; Gross Income Tax Division v. Quick (1948), 226 Ind. 338, 78 N.E.2d 871; Gross Income Tax Division v. Strauss (1948), 226 Ind. 329, 79 N.E.2d 103. The Commerce Clause, "by its own force created an area of trade free from interference by the States. . . A State is also precluded from taking any action which may fairly be deemed to have the effect of impeding the free flow of trade between States." Freeman v.Hewit (1946), 329 U.S. 249, 252, 91 L. Ed. 265, 271, 272, 67 S. Ct. 274, 276. Even the police power of the state may not be used to place substantial or undue burdens, either direct or indirect, upon interstate commerce. Southern Pacific Co. v. Arizona (1945), 325 U.S. 761, 89 L. Ed. 1915, 65 S. Ct. 1515, Supra;Morgan v. Commonwealth *Page 388 of Virginia (1946), 328 U.S. 373, 90 L. Ed. 1317, 66 S. Ct. 1050, 165 A.L.R. 574, supra; Baldwin v. Seelig (1935),294 U.S. 511, 79 L. Ed. 1032, 55 S. Ct. 497, supra; Kansas City S.R. Co. v. Kaw Valley Drainage Dist. (1914), 233 U.S. 75, 58 L. Ed. 857, 34 S. Ct. 564, supra; Furst v. Brewster (1931), 282 U.S. 493, 75 L. Ed. 478, 51 S. Ct. 295. The general purposes of the Act in preventing fraud and monopolies must be accomplished by reasonable means, and the provisions of the Act, as far as intrastate commerce 22, 23. extended, for the regulation and examination of the original licensees who purchased instalment contracts from the retail sellers were valid. But it is quite different for the legislature to say that after a licensee has purchased a contract pursuant to his license, which gives the Department of Financial Institutions the right to inspect his required records, and obtain reports to insure compliance with the Act, that this licensee then is prohibited from selling or pledging his property to any person except another licensee. The facts in this case show that the market for assignment without recourse and pledges in large volume was restricted to out of state purchasers and pledgees, who asserted Indiana has no right to regulate their businesses. It seems to us that the purposes of the Act could be fully accomplished without any attempt to extend the police power of Indiana into other states. The inevitable result of amended § 9, if it should be held valid as to interstate commerce, would be to restrict the market for contract sales or credit to Indiana in direct violation of the Commerce Clause, which was intended by the Forefathers to prohibit such clogging of the stream of interstate commerce. Judgment affirmed. NOTE. — Reported in 86 N.E.2d 444. 1 Section 9, before amendment, provided: "Except as in this section otherwise provided, every retail instalment contract shall be assignable and the interest therein transferable to any person or persons. No retail seller may sell, assign and transfer any retail instalment contract to any person other than a licensee under this act. Any retail instalment contract which is or has been owned by a licensee may be enforced and collected by the holder thereof according to its lawful terms." § 58-909, Burns' 1943 Replacement, (Acts 1935), ch. 231, § 9, p. 1206). *Page 389

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427016/

The undisputed facts out of which this appeal arises are as follows: On August 12, 1930, Franklin M. Teeters, Amanda Teeters, appellant herein, and Raymond M. Clark, an appellee, executed and delivered their promissory note to the appellee City National Bank of Auburn for $700, due 90 days after date. The makers of the note were principals so far as the bank was concerned, but as between them Amanda Teeters and Raymond M. Clark were, under the undisputed evidence, sureties for Franklin M. Teeters. Franklin M. and Amanda Teeters were husband and wife. He died November 3, 1930, insolvent, the note being then due and unpaid. The widow collected $1,000 in life insurance, out of which she paid funeral and other expenses, leaving her a balance of $515.62, which she had on deposit with the appellee bank in a savings account. Thereafter, on June 21, 1933, the bank credited said deposit on said note, without notice to Amanda Teeters, leaving a balance due on said note of $184.38, for which the bank sued her and the co-maker Clark on March 20, 1934. Appellant filed an answer and a cross-complaint, alleging that the bank had no right to credit her savings account on the note referred to; that at the time the note was so credited, she was a resident *Page 501 householder of the State of Indiana, entitled to a householder's exemption in the sum of $1,000, and that she had less than that amount of property, taking said savings deposit into account. She asked for judgment on her cross-complaint for the amount of her said savings deposit. There was a trial, finding and judgment for the appellee bank and against the appellant on all the issues. A motion for a new trial assigned that the decision of the trial court was contrary to law and not sustained by sufficient evidence. A new trial was denied and this appeal follows. The appellant claims the cause ought to be reversed on two grounds: (1) Because the bank had no right to set off her individual deposit against the note in question, for the reason that there was no such mutuality of interest between the bank and the makers of the note in respect to her individual deposit as would authorize such a transaction; and (2) because the householders' exemption statutes of the state precluded the bank from crediting the note with the appellant's deposit. Both of these propositions are fully presented and discussed in the briefs of the parties. That a bank may ordinarily charge a borrower's deposit with a due note is not to be questioned. The right existed at common law and is now clearly recognized by statute in the 1-4. Negotiable Instruments Act. Section 19-618 Burns' Ann. St. 1933, § 12904 Baldwin's 1934. The basis of the right, whether viewed from the standpoint of the common law or of the statute, is the same. It finds its justification in the doctrine of set-off, that is, the right which exists between two persons, each of whom, under an independent contract, express or implied, owes an ascertained amount to the other, to set off their mutual debts by way of deduction, so that in an action brought for the larger debt, the residue only, after such deduction, may *Page 502 be recovered. State v. Beach (1897), 147 Ind. 74, 90, 46 N.E. 145; 9 C.J.S., p. 616, note 64. It is familiar law, however, that mutuality is essential to the validity of a set-off, and that, in order that one demand may be set off against another, both must mutually exist between the same parties. Proctor v. Cole (1886), 104 Ind. 373, 3 N.E. 106, 4 N.E. 303. Accordingly, it is settled that a bank can claim no lien upon the deposit of one partner, made on his separate account, in order to apply it on a debt due from the firm, nor can the joint and several note of three persons be paid out of the individual deposit of one, unless he be the principal and the others sureties, or unless it becomes necessary in order to do complete equity or avoid irremediable injustice. Lamb, Receiver v. Morris (1889),118 Ind. 179, 20 N.E. 746. "When a note payable at a bank is signed by three persons, one of whom has an account at the bank, it may well be said that the bank has no power to transfer money deposited by one of the makers to the payment of the note without the depositor's consent." Bedford Bank v. Acoam (1890),125 Ind. 584, 588, 25 N.E. 713. The appellee bank contends, however, that the rules which we have just stated are not applicable, in view of § 192 of our Negotiable Instruments Act (§ 19-1803 Burns 1933, § 13010 Baldwin's 1934), which, by its terms, renders the appellant primarily liable for the payment of the obligation sued upon, it being asserted that since she was primarily liable thereon to the bank, the right to apply her individual deposit can not be denied. The authorities found in other jurisdictions are not in harmony on this subject, and some of them sustain appellees' contention. However, in the case of Sefton v. Hargett (1888),113 Ind. 592, 595, 15 N.E. 513, this court, through Mitchell, C.J., said with respect to who is to be considered the principal debtor and who is a surety as regards the right of set-off: *Page 503 "The principal defendant must be construed to mean the person who, according to the relations actually existing between the makers of the note, at the time of the commencement of the suit, sustains the character of principal debtor, or the one then primarily liable for the debt, and in respect of whom the other defendants might, in a proper proceeding, be declared sureties. Suretyship is a fact collateral to the contract, and is ordinarily no part of the contract itself. It is immaterial in what form the relation of principal and surety is established, or whether the creditor was or was not contracted with in that relation. The relation is fixed by the arrangement and equities between the debtors, and may or may not be known to the creditor . . . "It depends upon the relations existing between the makers of the note, and is determined by inquiring who received the consideration of the contract, or who, according to the arrangements actually made and existing among themselves, ought to pay the debt." Ruling precedents of long standing involving such important matters as negotiable instruments, and the rights and liabilities of the parties contracting under or in respect thereto, 5, 6. touch many transactions of great importance among men, and courts ought to be reluctant to disturb them. This court is therefore disposed to follow the rule just quoted, as affording a safe and logical basis of determining, in a case like the one before us, whether there existed such mutuality as would authorize the payee to apply said maker's individual deposit toward the payment of a note executed by three persons, one of whom was, as between them, a stipulated surety, and the other merely the wife of the person who negotiated the loan and received the proceeds thereof. Beyond that we are not called upon to apply the case of Sefton v. Hargett, supra, to the present Negotiable Instruments Act. *Page 504 In determining whether mutuality exists between the parties with regard to a particular transaction, it is proper and necessary to take into account their reciprocal rights and 7. obligations. Looking to the situation that would have arisen had appellant sued the appellee bank for her deposit, and had the bank then sought to set off the note herein sued on against its liability, we have a proper perspective of the mutual rights of the parties. In Miles v. Bossert,Receiver (1930), 92 Ind. App. 10, 173 N.E. 656, it was held that a depositor was entitled to set off his claim against his own indebtedness to an insolvent bank. But in Wolcott, Receiver v.Pierre (1935), 100 Ind. App. 16, 188 N.E. 596, in which this court denied a transfer and refused to reconsider its action in so doing, it was also held that lack of mutuality prevented the application of a partnership deposit to the individual debt of one of the partners to the bank. We do not find in this case any basis to warrant the conclusion that as between appellant and appellee bank there existed such mutuality with respect to the note sued on and 8, 9. appellant's individual deposit as would justify application of the doctrine of set-off herein considered. If set-off would not have been allowed in a proper case, appellant was entitled to recoup the proceeds of her deposit by cross-complaint in an action for the balance due on the note. The decision of the trial court is therefore contrary to law and must be reversed. It is not necessary for us to consider or pass upon the other alleged error, namely, that appellant's deposit was protected under the resident householder's exemption statute. Reversed, with directions to sustain appellant's motion for a new trial and for further proceedings not inconsistent herewith. *Page 505

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/7247115/

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE This is an action for recision and breach of contract brought by Paul A. Iannello ("Iannello") against American General Life Insurance Company ("American General"). American General has filed a Motion for Summary Judgment (Doc. No. 33), that motion has been fully briefed by the parties *1134(Doc. Nos. 33-7, 37-4 & 39). Summary judgment will be denied. I. American General's Motion for Summary Judgment is based upon the following undisputed facts1 : 1. For more than two decades, Iannello has owned and/or operated several businesses, most recently serving as the Chief Executive Officer of Torq-Comm., Inc. He has entered into several contracts on behalf of his companies, and understands that agreements govern the terms of a relationship between two parties. 2. Over the years, Iannello has invested in businesses, mutual funds, and the stock market. He also sold term life insurance for two years early in his career. 3. An application was submitted by Iannello on January 23, 2015 for a life insurance policy issued by American General. The initial premium was listed $250,000, and Iannello paid that amount. 4. Immediately above the signature line, the application form provided: I agree that no agent of the Company [American General]....has authority to waive any answer or otherwise modify this application or bind the Company in any way by making any promise or representation which is not set out in writing in this application. (Doc. No. 33-2 at 68). 5. Iannello received policy illustrations from American General. Iannello signed one policy illustration dated April 13, 2015, and his "bitmap" signature (which he agrees has the same effect as an actual signature) appears on a policy illustration dated March 10, 2015. Both provided: BY SIGNING THIS FORM, YOU ACKNOWLEDGE THAT YOU HAVE READ (OR HAVE HAD READ TO YOU), UNDERSTAND, AND AGREE TO THE FOLLOWING STATEMENTS: 1. Life Insurance is not an investment. I am purchasing an Indexed Universal Life Insurance Policy because I have a long term need for permanent life insurance. (Doc. No. 33-3 at 40). 6. The April 13, 2015 policy illustration indicates that, at the end of the first year, the cash surrender value of the policy would be $135,884, and Iannello admits that, had he reviewed the illustration, he would have realized that this was the cash surrender value. 7. Iannello received a policy issued May 20, 2015 from American General. The first page of the policy states that it is an "Individual Fixed Index Interest Flexible Premium Adjustable Life Insurance Policy." That page also provides the following "NOTICE OF RIGHT TO EXAMINE POLICY": You may return this Policy within twenty days after delivery if You are not satisfied with it for any reason. This Policy may be returned to Us or the agent through whom it was purchased. Upon surrender of this Policy within the twenty day period, it will be void from the beginning, and We will refund any premium paid. (Doc. No. 33-2 at 2). 8. Iannello concedes that he could have reviewed the policy, that if he did not like the terms of the policy he could *1135have returned it, and that the cash surrender value of the policy would be less than the $250,000 he paid. 9. Iannello decided to surrender the policy to American General, albeit long after the grace period for return. American General, in turn, paid him $138,887.81 as a result of the surrender of the policy. II. As noted at the outset, Iannello seeks recision of his contract with American General. "Rescission, of course, involves the avoidance, or setting aside, of a transaction," Mills v. Brown, 568 S.W.2d 100, 102 (Tenn. 1978), and "fraudulent misrepresentation can be a ground for the rescission of a contract," Green v. YMCA of Memphis, 2015 WL 6736705, at *4 (Tenn. Ct. App. Nov. 4, 2015) (citation omitted). To warrant recision of the contract, "the alleged misrepresentation: (1) must have been a representation as to an existing fact; (2) must have been false; (3) must have been relied upon; and (4) must have been so material that it determined the conduct of the parties seeking relief." Atkins v. Kirkpatrick, 823 S.W.2d 547, 552 (Tenn. Ct. App. 1991) (citing, Dozier v. Hawthorne Development Co., 37 Tenn.App. 279, 262 S.W.2d 705, 709 (1953) ). As also noted, Iannello alleges that American General breached its contract with him. To prove this claim, Iannello "must prove the existence of a valid and enforceable contract, a deficiency in the performance amounting to a breach, and damages caused by the breach." Fed. Ins. Co. v. Winters, 354 S.W.3d 287, 291 (Tenn. 2011) (citing ARC LifeMed, Inc. v. AMC-Tenn., Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) ). The undisputed facts on which American General relies certainly support its Motion for Summary Judgment. The problem, however, is that those are not the only facts in the record. Moreover, American General misconstrues the nature of Iannello's claim. While Iannello agrees that he sought and received a life insurance policy, he claims that was not the bargain he struck with American General or its agent. Rather, the issuance of a life insurance policy allegedly was a bonus, and only a small part of the overall deal. These contentions are based upon the following facts: 1. After the sale of the intellectual property of a business partly owned by him, Iannello sought to invest for his retirement. Towards that end, and at the suggestion of a colleague, Iannello contacted Shannon Insurance Group, Inc. ("Shannon"), an agent of American General. 2. Iannello was told by the colleague that Shannon could provide a high-yielding, annuity style "investment product," and Iannello told Shannon about his desire for such a product when they met. Shannon agreed to provide Iannello with a high-yielding "investment product" that would give him tax-free income with a guaranteed three percent rate of return. Shannon also told Iannello that he would periodically receive account statements showing the growth of his investment, and that he could cancel the investment at any time without penalty. 3. Shannon also told Iannello that the "investment product" also included life insurance. While Iannello told Shannon that he did not need additional life insurance, he agreed to purchase such insurance because he believed that the insurance was an additional benefit associated with the "investment product," and that he could not get the "investment product" without it. Accordingly, Iannello cooperated in the submission of a life insurance application, and signed the same. *11364. Iannello paid American General $250,000 for the "investment product" that had been discussed with Shannon. Thereafter, Iannello received in the mail a notebook containing what he thought was his agreed-upon "investment product," but, in fact, was a life insurance policy. Over the next several months, Iannello reached out to both Shannon and American General seeking an explanation and answers regarding his investment account. 5. Even though Iannello understood that the "investment product" had a life insurance component, he did not agree that there would be "any intrusion whatever upon the corpus of [his] investment. In fact, he was told that if he ever felt unable to continue to contribute to his investment, he could simply and cancel it and have his money refunded." Thus, he was "startled to determine" that his "original $250,000 investment had a cash value of only approximately three-fifths that amount." (Doc. No. 38, Iannello Affidavit ¶¶ 3-13; Doc. No. 37-1, Iannello Statement of Facts ¶¶ 2-5). III. Under the Federal Rules of Civil Procedure, summary judgment should be granted only if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A dispute of material fact is genuine so long as 'the evidence is such that a reasonable jury could return a verdict for the non-moving party.' " Tyson v. Sterling Rental, Inc., 836 F.3d 571, 576 (6th Cir. 2016) ; (quoting Ford v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir. 2002) ). In determining whether there is a genuine dispute of material fact, the evidence and the inferences to be drawn therefrom are construed in favor of the non-movant. Siding & Insulation Co. v. Alco Vending, Inc., 822 F.3d 886, 891 (6th Cir. 2016) ; Cass v. City of Dayton, 770 F.3d 368, 373 (6th Cir. 2014). Applying the appropriate standard, there are a bevy of disputed facts precluding summary judgment. Chief among them is whether Iannello agreed to simply pay for, and receive, a life insurance policy, or whether the agreement he reached with American General (or its agent) was that he would receive an investment product guaranteeing a yearly return and the right to cancel without penalty in exchange for the payment of $250,000, coupled with a life insurance policy perk. This dispute alone raises jury questions regarding the recision claim. Specifically, whether Shannon, as an agent of American General, made false representations about what Iannello was getting into, and whether those representation were such that he decided to go ahead with the "investment product," not knowing that he was being duped. It also raises a jury question about the breach of contract claim, specifically whether the policy he received, weeks after he made the $250,000 payment, was the actual agreement contemplated by the parties. In arriving at the conclusion that the jury will have to sort out the facts, the Court has considered American General's response to Iannello's arguments and the affidavit he submitted in support thereof. The Court is unpersuaded by American General's arguments seeking judgment as a matter of law. American General first argues that, even though Iannello did not receive the actual policy until after money had exchanged hands, Iannello knew exactly what he was getting into because he was provided with policy illustrations. This argument, however, ignores that (1) Iannello claims not to have seen some of the illustrations, and (2) those that he did receive were presented *1137during meetings with Shannon where he was also presented with charts and other data showing what the return on his investment would look like. It also ignores that Iannello never claimed that he was not going to receive a life insurance policy, only that the policy was a mere byproduct of the purchase of the "investment product." Thus, reliance on a case like Cirzoveto v. AIG Annuity Ins. Co., 625 F.Supp.2d 623, 629 (W.D. Tenn. 2009), for the proposition that it is not reasonable or justifiable to rely on "oral misrepresentations that squarely contradict the terms" of a contract is misplaced when there is a disagreement as to what exactly constituted the agreement between the parties. Also misplaced is reliance on cases like Moore v. Progressive Sav. Bank, 2000 WL 420675, at *4 (6th Cir. April 10, 2000), for the proposition that "one having the ability and opportunity to inform himself of the contents of a writing before he executes it will not be allowed to avoid it by showing that he was ignorant of its contents or that he failed to read it" where the party is not contemporaneously provided the contract. American General also argues that Iannello conceded in his deposition that the entire agreement between the parties was the insurance policy. It relies upon the following exchange between Iannello and defense counsel: Q. [D]o you understand this document to represent the entire agreement you had with American General? A. Yes, sir. (Doc. No. 37-2, Iannello Depo. at 151). American General also relies on the following exchange between Iannello and his own counsel: Q. ... You were asked whether that was your entire agreement with American General, and you said, yes. I just wanted to clarify whether you think you have any other agreement with American General other than what may be contained in that policy-that life insurance policy? Or what did you mean by that? A. That's the only thing that I have that represents the plan that I purchased that's my agreement. (Id. at 186-87). However, the last exchange was immediately followed with the following clarification: Q. Does it reflect- A. It doesn't reflect what I wanted, which is what spunned [sic] all of my questions. Q. I guess I'm going to focus on the word "agreement" then. Did you agree that everything in that document is what you were purchasing? A. No, sir. That, I can tell you, no. (Id. at 187). Thus, it remains an open question whether the insurance policy was, in fact, the entire agreement between the parties. Next, American General argues that Iannello cannot show that Shannon was its agent and that "the only evidence before the Court actually demonstrates that [Shannon] did not have this authority." (Doc. No. 39 at 6). This argument is premised on the policy application language that nobody had the "authority...to bind [American General] in any way by making any promise or representation which is not set out in writing in this application." (Id. at 7). Again, however, this presupposes that the agreement between the parties was confined to the insurance policy, something the parties dispute. As for proof that Shannon was American General's agent, Iannello testified in his deposition that he was told by Tammy Shannon that "she represented this corporation [American General] that could provide me this kind of tax-free income for my retirement," and that "she represented them and she sold their product." (Doc. *1138No. 37-2, Iannello Depo. at 60-61). Her statements to Iannello would be hearsay, except for the fact that they allegedly were "made by a person whom the party authorized to make a statement on the subject," or were "made by the party's agent...on a matter within the scope of that relationship while it existed[.]" Fed. R. Evid. 801(d) (2)(A) & (C). Finally, American General argues that the Court should disregard Iannello's "self serving affidavit" because it contradicts his deposition testimony. (Doc. No. 39 at 9). As an example, it point out that, in his affidavit Iannello stated that he had no desire to buy a life insurance policy, but he answered "yes" in his deposition to the question "that's what you represented to American General, that you wanted to buy life insurance?" (Doc. No. 37-2, Iannello Depo. at 183). Affidavits by their very nature tend to be self-serving. "[I]ndeed, it would be odd for a party to submit an affidavit that was not self-serving in the sense that it provides support for [their] claim." Barahona-Cardona v. Holder, 417 Fed.Appx. 397, 399, n.1 (5th Cir. 2011) ; see United States v. Shumway, 199 F.3d 1093, 1103 (9th Cir. 1999) (observing that the "affidavit was of course 'self-serving,'...otherwise there would be not point in submitting it"). Regardless, affidavits can be considered unless they directly contradict prior deposition testimony, Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006), or (under the "sham affidavit doctrine") are injected into the proceedings merely to avoid summary judgment, France v. Lucas, 836 F.3d 612, 622 (6th Cir. 2016). Here, Iannello did in fact testify that he made certain representations by submitting the application, but during that same colloquy he also testified that what he wanted was an "investment product," and the life insurance policy was an "added benefit" or "add-on benefit." ( (Doc. No. 37-2, Iannello Depo., at 181-183). This appears to have been Iannello's position throughout this litigation, and he repeatedly made this position clear during his deposition. V. When all is said and done, the record presents a jury question on the issue of whether Iannello receive exactly what he wanted and then got buyer's remorse, or whether he was the victim of a shell game orchestrated by Shannon as an agent of American General. Accordingly, American General's Motion for Summary Judgment will be denied. An appropriate Order will enter. The following facts are drawn primarily from American General's Statement of Material Facts and Iannello's responses thereto. (Doc. No. 37-1). Specific quotations from documents referenced in the filings are cited separately as indicated in the body of the factual recitation that follows.

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/4047814/

JUDGMENT Court of Appeals First District of Texas NO. 01-14-00211-CV CROWN COMMUNICATION LLC D/B/A CROWN COMM LLC, Appellant V. T10 UNISON SITE MANAGEMENT LLC AND THE ESTATE OF CHARLOTTE MCGREW, Appellees Appeal from the 25th District Court of Colorado County (Tr. Ct. No. 23350) After due consideration, the Court grants the motion to dismiss this appeal filed by the appellant, Crown Communication LLC. It is therefore CONSIDERED, ADJUDGED, and ORDERED that the appeal be dismissed. It is further ORDERED that appellant pay all costs incurred by reason of this appeal. It is further ORDERED that this decision be certified below for observance. Judgment rendered February 3, 2015. Judgment rendered by panel consisting of Chief Justices Radack and Justices Bland and Huddle.

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/4047816/

ACCEPTED 03-14-00660-CV 4063509 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/6/2015 6:23:43 PM JEFFREY D. KYLE CLERK FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/6/2015 6:23:43 PM February 6, 2015 JEFFREY D. KYLE Clerk via fax on (512) 463-1685 Jeffrey D. Kyle, Clerk Third Court of Appeals Price Daniel Sr. Building 209 West 14th St., Room 101 Austin, Texas 78701 Re: No. 03-14-00660-CV, Zgabay v. NBRC Property Owners Assoc. Dear Mr. Kyle: Per your letter of February 6, 2015, I intend to appear for oral argument before the Court in this case on March 25, 2015. Very truly yours, J. Patrick Sutton cc: Wade Crosnoe

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427003/

The appellant was convicted for contempt and sentenced to jail for failing to comply with the order of court, wherein he had been directed to pay ten dollars ($10.00) per week until the sum of two thousand five hundred forty-one dollars ($2,541.00) was paid. This order grew out of a divorce action which was commenced in 1927 and wherein the court granted the custody of two minor children first to the wife of appellant and later to the appellee. As a part of the original order appellant was to pay eight dollars ($8.00) per week but this was reduced to six dollars ($6.00) in 1929 and remained at that figure until March 27, 1943. At this later date the appellant was in arrears the sum of two thousand five hundred forty-one dollars ($2,541.00), and the court on petition of appellant relieved him of future payments, but ordered him to make up the arrearage by paying ten dollars ($10.00) per week, and upon his failure to comply with the order, the court adjudged him guilty of contempt and sentenced him to jail in an effort to coerce compliance therewith. After the conviction and sentence, and within thirty days, appellant filed a motion for a new trial upon the grounds that the evidence was insufficient and that the decision was contrary to law. The first of these grounds has been abandoned by the appellant, but he complains because the court sustained a demurrer to a petition to set aside the order of March 27, 1943. He now claims that this was error because he was not informed of the action of the court so that he could be present in person and by counsel, and for the further reason that the court lacked jurisdiction. A proceeding in contempt is sui generis and summary in character. Kernodle v. Cason (1865), *Page 446 25 Ind. 362. It is the proper method to coerce a defendant to 1-3. comply with the orders of court in a divorce action. Kerr v. Kerr (1924), 194 Ind. 140, 141 N.E. 305. The motion for a new trial filed in the contempt action could not relate back and call into question the action of the court at a prior term, wherein the court relieved appellant of further support payments but ordered compliance with the prior order. In the contempt proceeding the controversy was whether or not appellant had complied with the order of March 27, 1943. The conviction and commitment were solely for the purpose of 4, 5. coercing the appellant to comply with the order. The object of the punishment was to secure respect for the court and its orders, and not to adjudicate private controversies. Proctor v. Cole (1886), 104 Ind. 373, 4 N.E. 303; Ginn v. Ginn (1941), 108 Ind. App. 553, 31 N.E.2d 65. No claim is made that he complied with the order in whole or in part. The action of the court in finding appellant guilty of contempt and in sentencing him to jail until he complied with the order was not contrary to law. The motion to set aside the judgment was filed in the April term of court while the judgment was entered at the February term. This motion was informal and insufficient under § 6. 2-1068, Burns' 1933 (Supp.), § 173, Baldwin's Supp. 1941. No notice was given; the defense was not set out; and if the court erred in sustaining the demurrer, the appellant has not taken the proper steps to present the question here. He did not refuse to plead further and no judgment was entered thereon. While in argument the appellant claims that the judgment should have been set aside, in order to permit its entry as of a date which would permit a seasonable *Page 447 appeal, he did not offer to file such motion in the lower court, and in fact when the demurrer was sustained, he took no further steps in that branch of the case, but answered the citation in contempt. It seems to us that the entry of March 27, 1943, was in no sense a judgment in an original or new cause of action. It was an order in a continuing cause to which the appellant had been 7. a party since 1927. The statute which controls matters of the kind here involved was considered in Manners v.State (1936), 210 Ind. 648, 5 N.E.2d 300, and there this court in referring to this section of the statute, which is § 3-1219, Burns' 1933, § 928, Baldwin's 1934, says: "Under this statute the court has complete jurisdiction to provide for the support and custody of minor children, and it is well settled that the jurisdiction continues during the minority of the children, and that the decree may be changed or modified. It is also well established that the court has power to enforce its orders for support by contempt proceedings." The court below seemed to recognize that the appellant had failed to comply with its order for a long period of time, and when relieving the appellant from the payment of future 8. support money, the court in the same entry and as part thereof, made a total of the amount of the arrearage, and instead of ordering payment in a lump sum, ordered that it might be paid in installments. This action of the court was within its sound discretion. The case of Zirkle v. Zirkle (1930),202 Ind. 129, 172 N.E. 192, may have been the model used by the lower court. No reversible error is shown, and the judgment of the Clark Circuit Court is affirmed. NOTE. — Reported in 54 N.E.2d 261. *Page 448

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427010/

The relator, Cohen, filed his complaint in mandate, alleging that he was a stockholder in the Indianapolis Street Railway Company, to require the appellant company and its secretary, Joseph A. McGowan, to permit the relator to make an inspection of the stock books and stock records of the appellant company and to make extracts from such books and records and to make a list of stockholders. The defendants answered by a general denial, and upon the issue thus raised trial was had by the court, resulting in a finding for the plaintiff and judgment "that the plaintiff, in person, be permitted to take a list of the stockholders from the stock records of the defendant at such time and place as will not materially interfere with the general operation of the business of the defendants." The defendant, Indianapolis Street Railway Company, filed its separate motion for a new trial assigning as causes therefor that the decision of the court is not sustained by sufficient evidence and that it is contrary to law. The motion was overruled and this appeal taken, the action of the court in overruling appellant's motion for a new trial being the sole error assigned. The uncontradicted evidence established the following: Appellee Cohen, a bond broker, bought in 1926, and owned at the time of the trial, 20 shares of the preferred stock in appellant company; there was an accumulation of unpaid dividends on the stock; appellee "wanted to know who the other stockholders were . . . so he could go around and talk to them and see what could be done about the situation." In July, 1928, appellee wrote a letter to the secretary of the company asking to make an examination of the books for the purpose of getting a list of stockholders, and, at the request of the secretary, went to his office, but the *Page 537 secretary refused to permit him to take off a list. Thereafter, in September, 1928, pursuant to a written demand to be permitted to examine and take extracts from the stock books of the company, appellant company, through its counsel, Mr. Latta, allowed appellee's agent only to examine and make extracts of that sheet of the stock book covering the relator's stock and refused to permit him to inspect any other sheets unless the relator could show "an interest in any stock other than that which stood in his name." The appellee's stock certificate provided that "holders of the shares of preferred and common capital stock of the company shall have equal voting powers share for share except as the voting power of the shares of common capital stock is limited in the articles of association of the company." This action was then brought. In support of its contention that the court erred in overruling the motion for new trial, appellant urges, under Points and Authorities, that "a mandate will only issue to enforce the 1. performance of an act specifically enjoined by law. It does not issue to enforce a contract obligation." The foregoing is unquestionably a correct and accurate statement of the law and is supported by our statute authorizing actions of mandate and numerous court decisions based 2. thereon. The pertinent section of the statute is as follows: "The action for mandate may be prosecuted against any inferior tribunal, corporation, public or corporate officer or person to compel the performance of any act which the law specifically enjoins, or any duty resulting from any office, trust or station." § 1245 Burns 1926, Acts 1881 (Spec. Sess.) p. 379, as amended, Acts 1911 p. 541. It is clear that the jurisdiction of the Marion County Superior Court in actions of mandate is limited to enforcing performance of actsspecifically enjoined by law *Page 538 or of duties resulting from some "office trust or station"; and if, as appellant assumes, this action was to enforce a contract obligation of the defendant to pay dividends, the finding and judgment of the trial court were clearly erroneous. But we see no merit in the contention that this was an action to enforce a contract obligation; on the other hand it seems obvious that the relator was seeking to compel the performance of a duty enjoined upon defendant by a statute which required the defendant corporation to keep a book "containing the names of stockholders thereof," the statute also containing the following provisions: ". . . which book shall, at all business hours of the company, be subject to the inspection of creditors, stockholders, or their representatives, who shall be permitted to take extracts from the same." § 4940 Burns 1926, 1 R.S. 1852 p. 239. "Any company failing to keep the book to make the entries required, or to exhibit the same as directed in the preceding section, shall forfeit to the injured party a penalty of fifty dollars for every such instance of refusal or failure, and all damages resulting therefrom, and, in addition, shall pay to the State of Indiana the sum of fifty dollars for every day of such failure, to be sued for and recovered in the name of the state by the prosecuting attorney of the district or county in which such corporation is situate; and, when recovered, shall be paid into the treasury of the proper county for the use of common schools." § 4941 Burns 1926, 1 R.S. 1852 p. 239. The prayer of relator was "that said defendants be required and compelled to permit the relator to make an inspection of said stock book and stock records and to make extracts from said books and records and a list of said stockholders, and all other proper relief," and the judgment of the court was that "the plaintiff, in person, be permitted to take a list of the stockholders from the stock records of the defendant at such time and place as *Page 539 will not materially interfere with the general operation of the business of the defendants, and that the defendants pay the costs," etc. It is true that relator's complaint alleged that the defendant corporation had failed to pay dividends on preferred stock owned by relator, but there is no suggestion in the complaint or in the relief granted that the action for mandate was to enforce in any way any duty of the corporation connected with a declaration of, or payment of, dividends. Indeed the relator rests his right to obtain a list of stockholders simply upon his status as a stockholder. We think that he was entitled, as a matter of right, as a stockholder, to inspect the records and to copy a list of stockholders from the record. The statute makes it mandatory on the corporation to keep such a record, and expressly requires that such record "shall, at all business hours of the company, be subject to the inspection of creditors, stockholders, or their representatives, who shall be permitted to take extracts from the same." The statute imposed upon the defendant a general legal duty to permit any stockholder to inspect the stock record and to copy a list of his fellow stockholders, and the relator established his clear legal right to the performance of this duty by his complaint and the undisputed evidence. Whether the motive of the relator might have had legal significance is not material, since there is no evidence that he was actuated by an improper motive. In fact, appellant's condensed recital of the testimony, which is as follows, discloses a proper purpose: "He has preferred stock and there was five or six years accumulated dividends, and the company hadn't paid any dividends and witness wanted to know who the other stockholders were who were associated with him so he could go around and talk to them and see what could be done about the present situation, and perhaps do something to start getting dividends from the *Page 540 stock. Witness thought we might change the management. He wanted to get dividends on the stock. Lots of times under poor management they don't earn anything where under good management they would be earning dividends. He wanted to go around and get the stockholders together. Not necessarily to make trouble." (Appellant's brief, p. 12.) In People v. Eadie (1892), 63 Hun. (N.Y.) 320, 18 N.Y. Supp. 53; Id., 133 N.Y. 573, 30 N.E. 1147, the New York Court of Appeals sustained a mandamus granted to enable the applicant to ascertain who were stockholders in order to canvass their votes for an election. The case of William Coale Development Co. v. Kennedy (1930), 121 Ohio St. 582, 170 N.E. 434, involved the right of stockholders to inspect and take copies of books, records, etc. It was contended in that case "that no such inspection in any event could rightfully be demanded by any stockholder, unless such demand were accompanied by a full showing that such inspection was not desired for `unreasonable or improper purposes.'" The statute involved provided that books, lists of shareholders, etc., should be open to the inspection "of every shareholder at all reasonable times save and except for unreasonable or improper purposes." We quote with approval the following statement in the opinion of the court: "When the stockholder is asking the right to inspect the corporate books, records, papers, and documents, or the corporate property, such request is attended by a presumption of good faith and honesty of purpose until the contrary is made to appear by evidence produced by the officers or agents who are seeking to defeat such inspection. The burden of proof on this question should not be borne by the stockholder but should be borne by agents or officers objecting to the inspection." *Page 541 In view of § 4940 Burns, supra, we hold that relator was not required to allege or prove a proper purpose; and that he was entitled to the relief prayed for upon his showing that 3, 4. he was a stockholder of the defendant company and that he had requested permission to examine the stock records and to make a list of stockholders, and that such request had been refused.1 If the refusal was legally justifiable it was for the defendant to show the justification. "The shareholder is not required to show any reason or occasion rendering an examination opportune and proper, or a definite or legitimate purpose. The custodian of the books and papers cannot question or inquire into his motives and purposes. If he has reason to believe that they are improper or illegitimate, and refuses the inspection on this ground, he assumes the burden to prove them such. If it be said this construction of the statute places it in the power of a single shareholder to greatly injure and impede the business, the answer is, the legislature regarded *Page 542 his interests in the successful promotion of the objects of the corporation a sufficient protection against unnecessary or injurious interference. The statute is founded on the principle that the shareholders have a right to be fully informed as to the condition of the corporation, the manner in which its affairs are conducted, and how the capital to which they have contributed is employed and managed." Foster v. White (1888), 86 Ala. 467, 6 So. 88. Appellant urges that the relator was not entitled to relief in an action for mandate, for the reason that § 4941 Burns, supra, authorizes the recovery of a penalty by a stockholder for a 5. refusal to permit the examination of a stock book and that, consequently, this latter remedy "is a specific remedy provided by the statute itself and is exclusive of the remedy of mandate." If the statute had created a special procedure for the purpose of enabling a stockholder to obtain a list of stockholders this procedure would supersede the general action of mandate for such purpose. This was the situation in the case ofThe Louisville, etc., R. Co. v. State, ex rel. (1865),25 Ind. 177, 87 Am. Dec. 358. In that case an action of mandate was brought to compel the officers of a corporation to furnish a statement for purposes of taxation and relief was refused on the ground that a statute provided that on failure of the officers to furnish the statement the auditor of the county should proceed to make it. The purpose of the statute was to provide a more direct and effective method of obtaining the statement than was possible by the more general mandamus proceeding; but in the instant case it is apparent that the relief by way of penalty or damages is not equivalent to the relief furnished by an action of mandate, and in the absence of an express indication in the act itself we cannot assume that the General Assembly intended to abrogate the long recognized practice *Page 543 of allowing mandatory relief. The effect of § 4940, supra, is to create a primary right in stockholders of corporations to inspect the stock record and to obtain a list of stockholders; while under the mandate statute a stockholder has a remedial right which affords restorative redress; and § 4941, supra, creates for stockholders a remedial right which affords compensatory redress. We believe § 4941, supra, providing for an entirely different type of redress from that available under an action of mandate, should not be construed to supersede mandatory relief; and we hold that the relator's right to relief under the statute authorizing actions of mandate was not impaired by § 4941, supra, authorizing the recovery of a penalty and damages. Appellant points out that relator is a holder of preferred stock and insists that the relator cannot be said to have a clear legal right to inspect the stock record until this court 6. decides whether stockholder as used in § 4940, supra, includes a holder of preferred stock; and the appellant further urges that relator should adjudicate this question in some other action. We think the determination of this question is not a matter for a separate adjudication but is simply a matter of construing the term "stockholder." The term is not restricted and we must assume that it has its usual meaning, and such meaning includes holders of preferred stock as well as of common stock. Section 4940, supra, gives the right to inspect the stock book to all stockholders as a general, unrestricted class. We conclude that the decision of the trial court was sustained by sufficient evidence and was not contrary to law; that the trial court did not err in overruling appellant's motion for a new trial. Judgment affirmed. 1 In the instant appeal we are concerned only with the right of a stockholder to inspect the stock record — "a book . . . containing the names of the stockholders thereof." The statute applicable to this case did not purport to cover all records of a corporation. This was pointed out in Hegewald Co. v. State, exrel. (1925), 196 Ind. 600, 149 N.E. 170, 43 A.L.R. 775, in which case this court held that a stockholder's right to examine books other than the stock book was still governed by the common-law rules. The present Indiana statute covers records generally: "Each corporation shall keep correct and complete books of account and minutes of the proceedings of its shareholders and directors; and shall keep at its principal office an original or a duplicate stock register or transfer book, or, in case such corporation employs a stock registrar or transfer agent in this or any other state, a complete and accurate shareholders' list giving the names and addresses of all shareholders and the number and classes of shares held by each. All such books, records and lists of a corporation shall be open to inspection and examination during the usual business hours for all proper purposes by every shareholder of the corporation, or his duly authorized agent or attorney." § 4832 Burns Supp. 1929, Acts 1929, p. 725. *Page 544

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427076/

This is an appeal from a judgment in favor of the appellee in an action based upon an accident insurance policy, issued to the appellee by the appellant. The appellant filed a motion to strike out the amended complaint, which motion was overruled, and this ruling is the first error assigned on appeal. The appellant then addressed a demurrer to the amended complaint, and this demurrer was overruled. This ruling is the second error assigned on appeal. An answer in four paragraphs was then filed by the appellant, and the cause was submitted to the court for trial without a jury. The court made and filed a special finding of facts and stated its conclusions of law thereon. Exceptions were taken to each conclusion of law, and each of these conclusions is assigned as error in this court. No motion for new trial was filed by the appellant. The facts, as found by the court, disclose that on September 28, 1931, the appellant issued to the appellee its policy of insurance, by the terms of which the appellee was insured against disability resulting from injuries received by accidental means. This policy provided that it would pay the appellee indemnity at the rate of $100.00 per month for total disability resulting from such injuries for a period of not exceeding 36 consecutive months from the date of disability. *Page 521 The court further found that on October 15, 1931, and while said policy of insurance was in full force and effect, the appellee sustained personal injuries, as a result of an accident, by which he was wholly disabled. The appellant denied any liability under terms of its policy, and on January 12, 1933, the appellee filed a complaint in the Wabash Circuit Court against the appellant to recover the amounts due him under the terms of the policy for such disabling injuries. This case was tried by the court on the 24th day of February, 1933, and the court found that the appellee was entitled to recover on the policy of insurance sued upon the sum of $1,612.50, for the period from October 15, 1931 to February 24, 1933, the date of said trial. Judgment was accordingly entered for this amount. The appellant appealed from this judgment to the Appellate Court of Indiana, which judgment was affirmed by the Appellate Court of Indiana, and a petition for rehearing was denied by said court on June 4, 1936. Petition to transfer was denied by the Supreme Court on September 30, 1936. The facts thus far recited are not in controversy. In order to better understand the contentions here made, we think it advisable to set out verbatim the court's findings Nos. 8 and 9. "(8) The court further finds that in March, 1933, plaintiff's attorney had a conversation with defendant's attorney, one Mr. Coulter, and with the president of the defendant company, one Mr. Scholer, and that plaintiff's attorney asked the said Mr. Coulter and Mr. Scholer if the defendant corporation would pay the future monthly indemnity as it became due each month under the said contract of insurance, and that the said Mr. Coulter, in the presence and hearing of the said Mr. Scholer, replied that the defendant did not consider itself liable to plaintiff under said policy of insurance, and that if the said Wabash Circuit Court rendered *Page 522 judgment against it, the same would be appealed and would be reversed on appeal. Mr. Coulter further said to plaintiff's attorney, in the presence and hearing of Mr. Scholer that said defendant did not believe there was any liability under said contract of insurance and that the American Income Insurance Company, defendant therein, was denying all liability under said contract of insurance. "(9) The court further finds that in October, 1933, the plaintiff's attorney had another conversation with the said Mr. Coulter, attorney for the said American Income Insurance Company, and with the said Mr. Scholer, president of said company, in which said plaintiff's attorney told Mr. Scholer and Mr. Coulter that the plaintiff could bring an action on said policy of insurance every month as each future instalment became due and the said Mr. Coulter in the presence and hearing of the said Mr. Scholer, requested the plaintiff's attorney not to bring another action on the said contract of insurance as any further actions would be unfair and vexatious and that the present action then pending, that is, cause number 4980 in the Wabash Circuit Court, would settle all liability existing between the parties, and the said Mr. Coulter, in the presence and hearing of the said Mr. Scholer, further told plaintiff's attorney that his company, the American Income Insurance Company, defendant therein, was denying all liability under said contract of insurance and that the suit then pending would settle all liability between the plaintiff and the defendant and that the defendant was appealing the decision of the Wabash Circuit Court and that if it lost the decision on appeal it would then pay the entire amount that would be due under said policy of insurance, including future installments, and that if plaintiff won the suit then pending, that is, cause number 4980 in the Wabash Circuit Court, the defendant company would pay the entire amount of insurance when that litigation was ended." The court further found that the appellant relied upon these statements and representations set forth in findings Nos. 8 and 9, and further found that the appellant *Page 523 failed to pay the appellee the monthly indemnity of $100.00 due each month from and after February 24, 1933, in violation of its agreement as set forth in findings Nos. 8 and 9, although the appellee was wholly disabled, as a result of said injury from said date until the time of trial. The court further found that the appellant, by its representations and requests, as set forth in findings Nos. 8 and 9, waived its right to require the appellee to submit monthly statements of his physical condition, and waived the necessity to make monthly claims for indemnity as provided in said policy of insurance. The court found that none of the monthly indemnity that was due from February 23, 1933, until October 15, 1934, has been paid and that the appellee has performed all the conditions and obligations imposed upon him by the terms of the policy, except such as have been waived by the appellant. The court further found that on October 16, 1936, the appellee filed a complaint in the Wabash Circuit Court demanding payment of the amount due under said policy for the period between February 23, 1933, and October 15, 1934. This cause was continued from time to time and tried on November 16, 1937. On December 31, 1937, and before judgment was rendered, the appellee dismissed this cause of action, and on the same day, the appellee filed this complaint on the same policy by which recovery for the same period of time is sought. Upon these facts, the court concluded the law to be as follows: "1. That plaintiff has done and performed all the terms and conditions of the policy of insurance, which is the basis of this action, except such terms and conditions as have been waived by defendant. "2. That the law is with the plaintiff herein and he is entitled to recover on the policy in suit from the defendant in this action the monthly indemnity of One Hundred Dollars ($100.00) per *Page 524 month for the period of time beginning February 24, 1933, and ending October 15, 1934, together with interest on each of said installments from the date the same became due, and that the total of said monthly indemnity plaintiff is entitled to recover herein amounts to the sum of Nineteen Hundred Seventy Dollars ($1,970.00) and interest on each of said monthly indemnity amounts to the sum of Seven Hundred Sixteen Dollars and Fourteen Cents ($716.14), and that plaintiff is entitled to recover the total sum of Twenty-six Hundred and Eighty-six Dollars and Fourteen Cents ($2,686.14). "3. That plaintiff is entitled to recover of and from the defendant his costs and charges herein laid out and expended." To each of these conclusions, the appellant excepted. Judgment was rendered thereon, and it is from this judgment that this appeal has been taken. The appellant first contends that the court erred in overruling the motion to strike out the amended complaint as a sham pleading. In support of this contention, the appellant insists that, by the filing of the second suit, on the 16th day of October, 1936, to recover the amounts due from February 23, 1933, to October 15, 1934, it is made to affirmatively appear that the appellee did not rely upon the representations and promises made, as pleaded in the present amended complaint. In other words, the appellant contends that by filing this second suit within the period of time granted by the policy, and the voluntary dismissal of the same, the appellee cannot now truthfully say that he relied on the promises made him by the appellant, to the effect that the claim would be paid without further litigation, if the case then in court should be finally affirmed. The record does not disclose the allegations contained in this second complaint which was filed and dismissed. *Page 525 Whether the appellee in that complaint alleged the same 1. facts which appear in the present complaint is not disclosed. In his second complaint, the appellee was not required to allege and prove facts constituting a waiver of the time limitation fixed in the policy for bringing suit, for the reason that such suit was filed well within the time allowed. The fact that he did not need to assert facts constituting a waiver in that action does not, in our opinion, prevent him from so doing now. There is nothing inconsistent in the two positions. This court, therefore, cannot say that the allegations in the amended complaint, to the effect that the appellee relied on the representations and promises made to pay the appellee's 2, 3. claim without further litigation, if the suit then pending on appeal should be affirmed, were false statements. At any rate, it has been frequently held by the courts of this State that "the action of the court in overruling a motion to strike out a part or all of a pleading does not constitute reversible error even though such action be erroneous." Lindley v. Sink (1940), 218 Ind. 1, 6, 30 N.E.2d 456. The court, accordingly, committed no reversible error in overruling the appellant's motion to reject the appellee's amended complaint. The appellant next contends that the court erred in overruling the appellant's demurrer to the appellee's amended complaint. Under this assignment of error, the appellant contends that the amended complaint fails to state facts sufficient to constitute a cause of action. It is the appellant's contention, that there is no allegation in the amended complaint showing that the appellee complied with the terms and conditions of the policy and performed all the conditions on his *Page 526 part, which were required of him as conditions precedent to his right of recovery. One of these conditions required that the appellee should make monthly claims for indemnity. The policy as sued on also required that, "affirmative proof of loss must be furnished to the company at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the company is liable." Without discussing specifically the allegations of the complaint by which the appellee sought to show full performance on his part of all conditions required that had not been 4. waived by the appellant, we deem it sufficient to say that the facts specifically found are within the issues made by the pleadings; and, therefore, any action of the court in overruling the demurrer to the complaint becomes harmless, even though it be erroneous, if the conclusions of law stated thereon are valid. New Albany Trust Company v. Nadorff (1940),108 Ind. App. 229, 27 N.E.2d 116. We may, therefore, pass to a consideration of the finding of facts and the conclusions of law stated thereon. The record discloses that no motion for new trial was filed by the 5. appellant, and only the conclusions of law are challenged. Since the appellant only excepts to the conclusions of law, it, by so doing, admits that the facts are correctly and fully found, limited, however, to the facts found within the issues formed by the pleadings. Old First Natl. Bank Trust Co. v.Snouffer (1934), 99 Ind. App. 325, 192 N.E. 369; Moore v.Millar (1934), 98 Ind. App. 69, 187 N.E. 351; Shedd v.Northern Indiana Public Service Co. (1934), 206 Ind. 35,188 N.E. 322. Taking the factual structure then, as it is shown by the finding of facts, the question presented is whether *Page 527 or not such facts are sufficient to sustain the conclusions of law as heretofore set out. The complaint alleged, and the court found the fact to be, that the appellant had issued to the appellee its policy of insurance, by the terms of which the appellee was insured against disability resulting from injuries received by accidental means. Under this policy, the appellant agreed to pay the appellee indemnity, at the rate of $100.00 per month during total disability, for a period not exceeding 36 consecutive months. The complaint alleged, and the court found the fact to be, that the appellee sustained an injury as a result of an accident, on the 15th day of October, 1931, while said policy was in full force and effect, which resulted in the appellee's disablement. The appellant denied all liability under this policy, and a suit was filed to enforce payment. The appellant continued to deny liability after the trial of this first claim, and 6, 7. while this case was pending on appeal, made the statements which appear in the court's findings of fact Nos. 8 and 9, heretofore repeated. Under these facts, it is our opinion that the appellant has waived the policy requirements, as to the furnishing of physicians statements, proofs of loss, and notice of claim for the remainder of the compensation period. "The principle is old and thoroughly established that when a party repudiates a contract and denies liability under it, the performance of conditions precedent, such as notice, demand, tender and the like, are waived on the ground that the law will not require a thing to be done which the party entitled has excused, or given notice that it will be unavailing." OhioFarmers Ins. Co. v. Vogel (1906), 166 Ind. 239, 76 N.E. 977. The court found as a fact that the appellant herein not only denied all liability under the terms of the *Page 528 policy as manifested in the first suit, which was affirmed by this court in the case of American Income Ins. Co. v.Kindlesparker (1936), 102 Ind. App. 445, 200 N.E. 432, but the court also found as a fact that the appellee promised to pay all liability under this policy, if the case then pending before this court was affirmed, and requested that the appellee refrain from filing additional actions on this policy. With such conduct on the part of the appellee, as is disclosed by these facts, it appears obvious that the appellant has waived any right to demand now that it be furnished with proofs of loss, and that it be sued within the time fixed by the terms of the policy. As this court has said, "appellant having denied liability, appellee was not required thereafter to submit proofs of loss and appellant may not now be heard to object that such proofs were not filed." Nat. Fire Ins. Co. v. Crooker (1926),84 Ind. App. 643, 151 N.E. 734. It is apparent to us that the appellant was not misled or deceived as to the nature and character of appellee's claim. It was deprived of no defense, by virtue of the appellee's 8. conduct. The appellant has contested the appellee's claim for disability payments under this policy from the time of his original injury to the present. While his claim for the first half of the disability period was being contested in the courts, the appellant asked appellee to refrain from bringing further suits, and promised to pay all liability under this policy, if the case should be decided against it. By this agreement to pay, the appellant has waived further proofs of loss, and by the request not to bring suit on the additional claims, the appellant waived the provision of the policy, as to the time in which such suit should be brought. Continental Casualty Co. v. Hunt (1913), 53 Ind. App. 657, 101 N.E. 519. These *Page 529 rights, having been waived by the appellant, are gone forever; and the appellant cannot now assert these rights as a defense to this action. Farmers, etc., Assn. v. Mason (1917),65 Ind. App. 66, 116 N.E. 852; Illinois Live Stock Ins. Co. v. Baker (1894), 153 Ill. 240, 38 N.E. 627. The appellant insists that since the complaint failed to contain any allegation of full performance on the part of the appellee, as authorized by § 2-1039, Burns' 1933, the 9, 10 court is outside the issues in its finding of fact No. 17. We cannot agree with this contention. The complaint alleged with particularity the things done by both parties touching the presentation of appellee's claim. These facts are sufficient to constitute a cause of action, and show a waiver of all conditions not alleged to have been performed. This is all that the appellee was required to do. Korbly v. Loomis (1909),172 Ind. 352, 88 N.E. 698; Collins v. Amiss (1903), 159 Ind. 593, 65 N.E. 906. The court was, accordingly, within the issues formed by the pleadings when it found, by its special finding No. 17, that the appellee "has performed all of the conditions and obligations imposed upon him by the terms of the policy sued upon herein, excepting such as have been waived by the defendant." While finding of fact No. 17 is, in effect, a conclusion of law, it is predicated upon the things said and done by the parties to this litigation, as specifically set forth by the court in other findings of fact. The court having stated the facts in writing, finding No. 17 is more properly a conclusion of law to be drawn therefrom. Ryan v. Evans (1925), 195 Ind. 570, 145 N.E. 6. But since finding No. 17 is almost identical with conclusion of law No. 1, its proper classification becomes immaterial here. *Page 530 The appellant contends that the facts, as found, are not sufficiently specific to enable the court to render judgment thereon. The appellant contends that the policy of 11, 12. insurance should have been included in the special findings of fact, which, appellant contends, was not done. The court, in its special findings of fact, recited generally the terms and conditions of the policy and referred to this policy in the following language: "Which policy has been marked Exhibit 11 and introduced in evidence in this cause and is hereby made a part of this finding of facts by reference." Since this policy is a written instrument, upon which the suit is founded, it is not necessarily improper to set out the written instrument in the special findings of fact. It is the office of a special finding of fact, however, to recite the ultimate facts of which the written instrument is evidence. Daily v. Smith (1918),66 Ind. App. 393, 118 N.E. 312. It is our opinion that the policy in suit was properly made a part of the special findings of fact by reference thereto, without setting it out in full, since such instrument is 13. already a part of the record as an exhibit to the complaint. Watson's Rev. of Works Practice, Vol. 2, § 1596. Miller v. Wayne, etc., Building Loan Assn. (1904),32 Ind. App. 480, 70 N.E. 180. It is our opinion, therefore, that the facts found by the court are sufficiently definite and certain to support the court's conclusions of law thereon. The court was not in error in its conclusions of law upon the facts found. No reversible error having been shown, the judgment of the trial court is affirmed. Judgment affirmed. NOTE. — Reported in 37 N.E.2d 304. *Page 531

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427099/

This prosecution is based upon § 1, ch. 250 of the acts of 1921. See Acts 1921 p. 736. The prosecution was commenced by affidavit in one count in which it is charged that "on or about the 17th day of January, 1923, in the county of Crawford, State of Indiana, Ben Hanger, late of said county and state, did then and there possess intoxicating liquor for the purpose of sale, barter, exchange, to give away, furnish and otherwise dispose of." The appellant waived arraignment and entered a plea of not guilty and the case proceeded to trial before a *Page 722 jury. The jury returned a verdict of guilty as follows: We, the jury, find the defendant guilty and assess his punishment at a fine of $200 and that he be imprisoned in the county jail for a period of 180 days. After a motion for a new trial had been made and overruled, judgment was rendered on the verdict, and from such judgment this appeal is taken. The only error assigned is that the court erred in overruling appellant's motion for a new trial. The only specifications in that assignment of error are: (1) The verdict is not sustained by sufficient evidence; (2) the verdict is contrary to law. The appellant alleges that the verdict is contrary to law because it is not sustained by sufficient evidence. At the time that it was charged that this offense was committed, the mere possession of intoxicating liquor was not an offense. Crabbs v.State (1923), 193 Ind. 248, 139 N.E. 180. So the offense charged in this affidavit is that the appellant did then and there possess intoxicating liquor for the purpose of sale, barter, exchange, to give away, furnish or otherwise dispose of it. The only evidence of the amount or quantity of the whisky possessed is the statement of the appellant himself. He says that, on the day of his arrest, he started out with a man to look at some walnut trees and before starting out put a bottle in his pocket which contained something near one-half pint of white corn whisky, which he had for his own use on account of sickness. He said that what was in the bottle was all the whisky he had. He said he bought it for sickness. The doctor told him to use it. That, when he had a cold, he would take a little when he would go out or take a little when he was out in the cold. There is no evidence to show that he had any other whisky, either on his place or about his person, except what he had in his pocket in a bottle. The officers said it was down deep in his pocket. *Page 723 It appears that the town marshal of Marengo, on January 17, 1923, started out from Marengo with three deputies and a search warrant to search the premises, farm and buildings of Hanger's place. That when they came within about one or two hundred yards from appellant's house, appellant was seen walking toward the town of Marengo and another man was with him. The marshal stopped appellant on the public highway and told him he was under arrest. That the marshal had no warrant for the arrest of appellant, but did have a search warrant to search his premises, farm, and buildings. When the marshal told the appellant he was under arrest he, the marshal, had a pistol in his hand. When appellant was told that he was under arrest, he did not submit to such arrest, but was overcome by the marshal and his deputies. During the fight or scuffle that occurred, the appellant purposely broke a bottle in his pocket, which is claimed to have contained white mule whisky. Hanger was handcuffed after he broke the bottle. They then took the appellant to his place and searched around but didn't find anything. There was some evidence to the effect that eighteen months prior to this, ten persons went to search Hanger's place and that they found some bottles and caps and some raisins and some rather large jugs down in the barn. A witness testified that the jugs mentioned in such evidence were on his land. He says he doesn't know who put the jugs on his land. That he thinks that the appellant came back from Lawrence county about two years ago. The marshal testified that two years ago next December, he saw Hanger and another fellow come up along the side of a car and he went up a little piece and he looked over just as he gave this fellow a bottle and the fellow gave him money and this fellow got a little full afterwards. On cross examination, the marshal said he didn't know what was in the bottle that Hanger *Page 724 gave to the other man in December, 1921. There is evidence to the effect that these officers saw a stove and still, between a quarter and a half mile of Hanger's house, south and east of Marengo, but the still and stove were not on Mr. Hanger's place. In support of the contention that the evidence is sufficient to sustain the verdict, the state cites, Hall v. State (1923),193 Ind. 355, 139 N.E. 588; Chaney v. State (1923),193 Ind. 533, 141 N.E. 223; Peto v. State (1922), 193 Ind. 103, 136 N.E. 556; Stankiewoecz v. State (1924), 194 Ind. 246, 142 N.E. 615. In Hall v. State, supra, a prosecution for keeping intoxicating liquor with intent to dispose of the same, evidence that disclosed in defendant's residence a large tank in the cellar, several barrels and five gallon jugs, the former with dregs of mash therein, a sack of corks, sacks of cracked corn and rye meal, several stoves and burners therefor, tools, soldering iron coils, charcoal and bottles of whisky, all carefully protected by padlocks, was held sufficient to sustain the charge. In Chaney v. State, supra, in a prosecution for violation of the Prohibition Law, evidence that the accused purchased nine bottles of intoxicating liquors and, with the bottles in his possession, visited several acquaintances, and, when arrested several hours later, he had only seven bottles and two or three empty cartons in his possession, was held sufficient to sustain a conviction for keeping liquors with "intent to sell, . . . give away, furnish or otherwise dispose of it." In Peto v. State, supra, evidence that the appellant was found behind the bar of a soft drink place with a bottle of whisky and a whisky glass under her apron was prima facie evidence of her intent to sell or otherwise unlawfully dispose of such whisky. In Stankiewoecz v. State, supra, the court held that testimony of three witnesses that liquor was moonshine *Page 725 whisky, that they smelled it and were familiar with the smell of moonshine whisky and that appellant's wife was behind the bar with a glass jar of the liquor, that she ran out with it, dropped it without breaking it, spilled part of it, and then tried to kick the jar, is sufficient to support an inference that the liquor was intoxicating without an analysis test or testing. The facts in these cases are so different from the facts in the case at bar that they furnish no precedent applicable. The state contends that the fact that one attempts in the presence of the officers to destroy the contents of a bottle is prima facie evidence that the contents are intoxicating 1. and that it is possessed for an unlawful purpose, citing People v. McCourtney (1922), 220 Mich. 550. The Michigan case is based upon a statute, Public Acts of Michigan, 1919, Act. No. 53, § 28, which is as follows: "If fluids are poured out, secreted, or otherwise destroyed by the owner of the premises or occupant, or by any tenant, assistant or other person, when the premises are searched or to be searched, or by any person in whose custody such fluid may be, manifestly for the purpose of preventing their seizure by officers authorized to make such search and seizure, such fluid shall be held to beprima facie intoxicating liquor and unlawfully possessed." As it shows upon its face, this statute was passed in aid of the execution of search warrants. The purpose of it was the same as the purpose of ch. 4, § 29 of Acts 1917 p. 29, and clearly applies to the conduct of a person or persons in possession of the premises which are being searched by authority of a search warrant, and cannot be construed to apply to the facts in the instant case. Two essential facts alleged in the affidavit are that appellant had intoxicating liquor in his possession and *Page 726 that he had it with the intent to sell, barter, exchange, 2. give away, furnish or otherwise dispose of it unlawfully. The evidence is undisputed that he had about one-half pint of white corn whisky or some kind of whisky in his overcoat pocket when he was walking along the highway toward Marengo, when he was arrested. There was no evidence that he had any other whisky in his possession, either on his person or about his farm or anywhere else. The officers searched the premises and found no intoxicating liquor of any kind. In order to secure a conviction, it became necessary on the part of the state to prove the unlawful intent alleged in the affidavit. The quantity of liquor shown to have been in the possession of appellant at the time precludes the presumption that he had it with the intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same. See Acts 1917, ch. 4, § 35. We find nothing in the evidence which shows or tends to show any intent to unlawfully dispose of said liquor as alleged in the affidavit. The verdict is not supported by sufficient evidence and is contrary to law. Howard v. State (1923), 193 Ind. 599, 141 N.E. 341; Thompson v. State (1925), 196 Ind. 229, 147 3. N.E. 778; Marsh v. State (1926), 197 Ind. 251, 150 N.E. 773; Chappell v. State (1926), 197 Ind. 272,150 N.E. 769. Judgment reversed, with instructions to sustain appellant's motion for a new trial.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427025/

This action was by a complaint in one paragraph in which the appellant seeks to recover a judgment for $12,500.00, being a part of the sum of $52,500.00 deposited in escrow by appellant in appellee bank and alleged by appellant to have been disbursed by appellee without authority. The appellee filed an answer in general denial. The case was submitted to the court without intervention of a jury and upon request the court made a special finding of facts and stated conclusions of law thereon. The appellant excepted to each conclusion of law. Appellant also filed a motion for new trial which was overruled by the court, and now prosecutes this appeal assigning as error that the court erred *Page 518 (1) in its first conclusion of law; (2) in its second conclusion of law; and (3) in overruling the appellant's motion for a new trial. The appellant, in its brief, does not state any propositions of law or cite any points and authorities in support of its third assignment of error, that the court erred in overruling 1. appellant's motion for new trial. By failing to present such error the appellants have waived it under Clause 5 of Rule 21 of the rules of this court. The other two assigned errors will be treated together. They present a single question, that is whether the special finding of facts support the conclusions of law stated by the court. On December 6, 1930, the appellant sent to the appellee bank by one Joseph E. Bauer a certified check in the sum of $52,500.00. Upon the back of the check was endorsed the following: "to 2. be deposited in escrow and disbursed in accordance with letter of instructions attached hereto." No letter of instruction was attached to the check. On December 8, 1930, and before appellee bank received the check, the said appellee received a telegram from the attorney for the appellant in New York City, which read as follows: "You are authorized to distribute fifty-two thousand five hundred dollars delivered to you by J.E. Bauer in accordance with his instructions." After the receipt of such telegram by appellee bank, J.E. Bauer, Wallace B. Pardoe, and another person subsequently introduced to the officers of appellee as H.F. Newlans came to the bank shortly before closing hours. At that time Joseph E. Bauer told the officers of the bank to disburse the money in accordance with Mr. Pardoe's instructions Mr. Pardoe then, in the presence of Mr. Bauer, told the officers of the bank to pay $40,000.00 *Page 519 out of the proceeds of the check to the Shell Petroleum Corporation and to pay the balance, or $12,500.00, to the person introduced as H.F. Newlans, who was also present. Some days later, after the check was cleared, the proceeds of the check were paid out by the appellee bank as instructed in that conversation. The appellant contends that under the facts as stated, the money was not disbursed by appellee bank in accordance with the terms of the telegram of December 8, 1930. That such money was not disbursed in accordance with the instructions of Joseph E. Bauer but that the money was paid out on the instructions of Mr. Pardoe. That Bauer was a special agent and could not appoint a sub-agent and in so doing exceeded his authority. We agree with the general statement of law in appellant's brief that "no rule of law of agency is better settled than that where an agent has authority to do a particular thing, he must do it himself. He cannot, unless specially authorized, or in pursuance of some usage, delegate his authority to another," but we cannot agree that the facts as found by the court bring this case squarely within the rule. The court, after finding all of the facts set out above, in his special finding No. 18, found as an ultimate fact that the money "was disbursed by it (appellee bank) in accordance with the directions given to it by the said J.E. Bauer, as named in the telegram, mentioned in finding number 10, and by Wallace B. Pardoe, as directed by the said J.E. Bauer." Joseph E. Bauer was present and heard Pardoe direct the disbursement. If he had directed that all the money be given to Pardoe, this controversy could not have arisen or if Bauer himself had said to pay $40,000.00 to the Shell Petroleum Corporation and $12,500.00 to H.F. Newlans there would be no contention on the part of *Page 520 the appellant that the disbursement had not been made according to instructions. We do not agree that J.E. Bauer appointed Pardoe as his sub-agent. In our opinion the whole matter was one transaction. Bauer was present and acquiesced. Had the officers of the bank simply asked Bauer if those were his instructions and he had replied in the affirmative, there could be no contention, and we are unable to draw any different conclusion from Bauer's silence and failure to protest. It must also be observed that appellant raises no question about the disbursement of the $40,000.00 to the Shell Petroleum Corporation in payment for certain oil properties, the contract for which was in escrow with appellee bank, which disbursement was directed at the same time and in the same manner. We find no error in the conclusions of law as stated by the trial court upon the special finding of facts.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427029/

This is an appeal from a judgment of the Dubois Circuit Court awarding the appellee a divorce from the appellant and awarding the appellant alimony in the sum of $350. The appellant assigns as error for reversal, the overruling of her motion for a new trial, which alleged as grounds therefor: that the decision of the court is not sustained by sufficient evidence; that the decision of the court is contrary to law; that the court abused its discretion in awarding but $350 alimony to appellant; and for newly discovered evidence. We are met at the threshold of a consideration of this appeal with the contention of appellee that no question is presented for consideration, because of the failure of the appellant to comply with the rules of this court in the preparation of her brief. An examination of appellant's original and reply briefs sustains appellee's contention. In order to properly determine the merits of each of appellant's causes for a new trial, it would require an examination of the evidence submitted upon the trial of the cause in the lower court. *Page 496 Paragraph five of rule twenty-one of this court provides that, "if the insufficiency of the evidence to sustain the . . . finding in fact or law is assigned, the statement shall 1-3. contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely." Likewise when the discretion of the court is questioned in the allowance of alimony or in refusing to grant a new trial for newly discovered testimony, it is necessary that a resume of the evidence be set out in the brief in order to enable the court to determine whether there has been an abuse of discretion as alleged without being required to resort to the record for that purpose. 2 Watson's Works Practice, sec. 2018, p. 575. The only evidence referred to in that part of appellant's brief devoted to a condensed recital of the evidence is that given by the appellant and appellee. This however is not a condensed recital of the evidence of these two witnesses, but consists only of conclusions drawn from their evidence. The record shows that nine other witnesses testified, and that three exhibits were admitted and read in evidence. Appellant's recital of the evidence is completely silent regarding the testimony of these nine witnesses and the contents of the three exhibits. The appellee has not seen fit to supply these deficiencies by setting out a condensed recital of the omitted evidence in his brief. "He has a right to assume that the rule requiring appellant to set out the evidence in narrative form will be uniformly enforced."McNeil v. Russell (1932), 96 Ind. App. 428, 185 N.E. 383, and authorities there cited; Humphrey v. Pleasure Park, etc., Co. (1933), 97 Ind. App. 592, 187 N.E. 682. In that portion of her brief devoted to "Propositions and Authorities," appellant has failed to comply with the rules of this court, in that she has not set out the causes relied 4. upon for a new trial, numbered as in the motion. Under this portion of her brief *Page 497 appellant also sets out many abstract propositions of law but makes no specific application thereof to any of the causes assigned for a new trial. The rules of the Supreme Court and this court when adopted and published, have the same force and effect as law, and are binding alike upon the courts and litigants before them. Humphrey 5. v. Pleasure Park, etc., Co., supra. Appellee insists that we abide by and enforce the rules adopted by this court for the preparation of briefs. We agree with this insistence. For failure of appellant to comply with the rules of court in the preparation of her brief, no question is presented for our consideration. Judgment affirmed. Dudine, J. not participating.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427071/

Appellant was charged by indictment with the felony of transporting intoxicating liquor in an automobile in Marion County, State of Indiana, by count one, as defined in § 7, Chap. 48, Acts of 1925, § 2720 Burns 1926, and with the crime that he did manufacture, possess, transport, sell, barter, exchange, give away, furnish and otherwise dispose of intoxicating liquor to persons to the grand jury unknown, by count two, as defined by § 4, Chap. 48, Acts 1925, § 2717 Burns 1926. The case was tried by the court, which resulted in a finding that appellant was guilty as charged in count one of the indictment. Appellant appeals from the judgment upon the finding and assigns as error the action of the court overruling his motion for a new trial. The question presented for decision on this appeal is founded upon causes one and two in the motion for a new trial: (1) that the finding of the court is not sustained by sufficient evidence, and (2) that the finding of the court is contrary to law. The finding of the court is based upon the evidence that two police officers, after having arrested appellant and another person with him, found ten gallons of "alcohol" in the automobile which they had been driving. The sole and only evidence of the contents of the six cans found in the automobile was that it was "alcohol." *Page 232 The only point made by appellant under the causes for a new trial was, that because there is no evidence to prove what kind of "alcohol" was being transported, there is a failure of proof for the reason that the court does not judicially know that "alcohol" is such a liquor that is reasonably likely or intended to be used as a beverage; and for the further reason under this point that alcohol has many legitimate and legal uses and purposes which, according to common knowledge, does not bring the article which contains alcohol within the act which prohibits transportation of "intoxicating liquor"; and the further reason that the statute prohibits only the transportation of such intoxicating liquor that is reasonably likely intended to be used for beverage purposes; and that, "if the alcohol testified about and referred to in this case was wood alcohol, or denatured alcohol, then it is not such a liquid that comes within the meaning of the law, but is a poison." And further, that, "if the alcohol mentioned in the testimony was pure grain alcohol, then it is not an article or liquid that comes within the meaning of the law; but is neither potable, wholesome, or drinkable, but is a violent irritant." Appellant asserts that the court cannot take judicial knowledge that alcohol is such a liquor or liquid that is reasonably likely or intended to be used as a beverage. The court, in considering the evidence, also takes into consideration a matter of common knowledge which has a close relationship to the evidence. The court took into consideration in this case, as a matter of common knowledge, that alcohol is an 1, 2. intoxicating liquor without the necessity of having affirmative proof that such liquor was intoxicating. It has heretofore been decided by this court that alcohol is an intoxicating liquor within the meaning of §§ 2 and 7 of 3. Chap. 48, Acts 1925, page 144, §§ 2715 and 2720 Burns 1926, which decision is a *Page 233 complete answer to appellant's question under the assignment of error. Hall v. State (1928), 200 Ind. 149, 162 N.E. 51;Barker v. State (1930), 201 Ind. 465, 169 N.E. 842. Upon the authority of the cases cited, it is held that overruling appellant's motion for a new trial was not error. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427073/

Appellant's relators brought this action against the treasurer, auditor and board of commissioners of Decatur county, Indiana, asking a writ of mandamus to compel the issuance and sale of bonds of the county to pay for the construction of a certain highway improvement. A demurrer to the complaint for alleged want of facts sufficient to constitute a cause of action was sustained, and relators excepted. Sustaining this demurrer is the only error assigned. The complaint, after alleging the official position held by the different defendants and facts showing the relators' right to sue, alleged facts to the following effect, in substance: That upon proper petition and due notice, the board of commissioners of Decatur county, Indiana, by due and lawful action, as recited, ordered that a certain highway improvement should be constructed according to plans, profile and specifications which had been duly prepared and adopted, and that after giving notice according to law and receiving bids, the board awarded a contract for the construction of such improvement and entered into a written contract for its construction in accordance with the plans, profile and specifications, for the contract price of $172,443.86, a copy of which contract was set out. That the contractors gave a proper bond, which was approved by said county board of commissioners, and on the second day of April, 1923, the board of commissioners of said Decatur county duly passed and adopted a bond ordinance and entered of record a determination to issue bonds of Decatur county, Indiana, in the amount of $178,000, bearing interest at the rate of four and one-half per cent., and also an order for the sale of such bonds to provide funds with which to build and construct the highway improvement, and also entered of record an order that the county treasurer should proceed *Page 658 with the sale of the bonds, as by law provided, a copy of which order was made part of the complaint. That the county board of commissioners then caused notice of the passage of such bond ordinance to be published on April 4 and 11, 1923. That all of said steps and all of said acts were done and performed according to law. That no remonstrance was filed with the auditor of said county by any taxpayer against the issue of said bonds until April 19, 1923, on which date ten or more taxpayers other than those who pay poll tax only in said county filed a written remonstrance against the issuance of such bonds. That thereafter the State Board of Tax Commissioners of Indiana assumed to entertain jurisdiction of said matter and entered an order that the proposed issue of $178,000 of bonds bearing interest at the rate of four and one-half per cent. be not approved by the board. But that the State Board of Tax Commissioners of the State of Indiana was without jurisdiction and its order refusing to approve the issue of bonds was void, because the remonstrance by the ten taxpayers was not filed within fifteen days after the bond issue had been determined upon by the county board of commissioners, and because there is no provision in the county unit road law giving the State Board of Tax Commissioners any authority in the matter. That the orders and ordinances of the county board of commissioners have never been rescinded, set aside or vacated, and that said orders and said contract are in full force and effect. That the contractors are ready and willing to perform their contract as soon as the bonds are sold to provide funds to pay for the improvement. And that demand has been properly made upon each of the defendants to perform his or its official duty in the matter. The only defect in the complaint suggested by appellees is that it contains an admission that ten or more *Page 659 taxpayers of the county other than those who pay poll tax only, and who will be affected by the proposed issuance of such bonds, filed a remonstrance on the seventeenth day after the issuance of the bonds had been determined upon by the county board of commissioners, being the fifteenth day after the first publication of notice of that fact, and that the State Board of Tax Commissioners thereupon entered an order that the proposed bond issue be not approved. While relator insists that: (a) The law authorizing an appeal is unconstitutional; and that (b) because the petition was not filed "within 15 days after the issuance of such bonds * * * had been determined upon by such municipal corporation," the State Board of Tax Commissioners had no jurisdiction and therefore its order in the matter was void. That such a statute is not unconstitutional because of the objections urged against it by appellant was decided in a recent case, and we adhere to that opinion. VanHess v. Board, 1. etc. (1921), 190 Ind. 347, 354, 129 N.E. 305. The constitutional objection being disposed of, the only other question presented for decision is as to the proper construction of that section of the Act of 1921 which authorizes an appeal to the State Board of Tax Commissioners from an order for the issuance of bonds by a county or other municipal corporation. For, while that statute was amended in 1923 (§ 14240 Burns 1926, ch. 193, Acts 1923 p. 264), the amendatory act expressly provides that none of its provisions shall affect pending litigation, and it did not take effect until more than fifteen days had elapsed after the issuance of these bonds had been ordered by the county board of commissioners. So much of the statute referred to as is pertinent in the consideration of and decision of said question reads as follows: "Any municipal corporation, through *Page 660 its proper legal officers, may issue such bonds or other evidences of indebtedness as it may deem necessary. In the event that the proper legal officers of any municipal corporation shall determine to issue any bonds or other evidences of indebtedness (excepting temporary obligations) exceeding $5,000, notice of such determination shall be given by publication for two weeks in two leading newspapers of opposite political parties published in such taxing district. * * * Ten or more taxpayers in such municipal corporation, other than those who pay poll tax only, and who will be affected by the proposed issuance of such bonds or other evidences of indebtedness and who may be of the opinion that such bonds or other evidences of indebtedness should not be issued, or that the proposed issue is excessive for the proposed purpose thereof, may file a petition in the office of the county auditor of the county in which such municipal corporation is located, within fifteen days after the issuance of such bonds or other evidences of indebtedness shall have been determined upon by such municipal corporation, setting forth their objection thereto and facts showing that the proposed issue is unnecessary, unwise or excessive, as the case may be. Upon the filing of any such petition the county auditor shall immediately certify a copy thereof, together with such other data as may be necessary in order to present the questions involved, to the State Board of Tax Commissioners, and upon the receipt of such certified petition and information the State Board of Tax Commissioners shall fix a time and place for the hearing of such matter. * * * The decision of the State Board of Tax Commissioners upon the issuance of said obligations and the amounts thereof, if any, which may be lawfully issued, shall be final. * * *" § 10139t7 Burns' Supp. 1921, § 4, ch. 222, Acts 1921 p. 642. *Page 661 The precise question before us is whether or not, under a proper construction of the language quoted, the taxpayers must file their petition within fifteen days after the order is made for the issuance of bonds of the municipal corporation, in order to give the State Board of Tax Commissioners jurisdiction on appeal, or whether the limit of fifteen days within which the petition must be filed runs from some other date, such as the date of the first publication of notice, or a later time? It will be observed that the "determination" of the officers of the county to issue bonds is three times referred to in this act in the space of a few lines. If the officers of the 2. municipal corporation shall "determine to issue bonds" notice of "such determination" shall be given in a manner specified, and, in order to take an appeal to the state board, ten or more qualified taxpayers may then file their petition "within 15 days after the issuance of such bonds * * * shall have been determined upon by such municipal corporation." The references to the time when the officers shall determine to issue bonds, and to the determination by them of which notice shall be given clearly refer to the time of making an order that the bonds be issued. And the express limitation requiring a petition of taxpayers, by way of an appeal, to be filed "within 15 days after the issuance of such bonds * * * shall have been determined upon" must be understood as referring to the same time, unless the language of the statute, itself, shows a legislative intent to the contrary. The only facts suggested by counsel as affording any basis for holding that there was such a legislative intent are that: (1) While the statute provided that "notice of such determination" should be given by publication for two weeks, it did not provide that the notice should be published immediately, and in the instant case, notice was not published until the second *Page 662 day, so that more than fifteen days might (and in this case did) elapse after the order was made before the publication for two weeks was completed; and that (2) at its next session, the legislature amended the statute so as to provide that a petition by way of an appeal shall be filed "within 15 days after notice as aforesaid shall have been given that the issuance of such bonds * * * shall have been determined upon." § 14240 Burns 1926, ch. 93, Acts 1923 p. 264. But a court cannot impute to the legislature an intent which the statute failed to express, merely because it may appear that sound policy and a due regard for the rights of taxpayers would have dictated the declaration of such intent, if those who prepared the bill had taken a comprehensive view of the subject, nor because, after a short experience in operating under the law as originally enacted, the legislature amended it by inserting an express declaration of such intent. We do not find anything within the statute which controls or modifies the meaning expressed by the provision allowing only "15 days after the issuance of the bonds had been determined upon," within which to file a petition by way of an appeal to the State Board of Tax Commissioners. Therefore, we hold that the petition filed in this case on the seventeenth day after the adoption of the ordinance was ineffectual, and that the order of the State Board of Tax Commissioners disapproving the proposed issue of bonds was without effect. It follows that the complaint stated a cause of action and the demurrer to it should have been overruled. The judgment is reversed, with directions to overrule the demurrer to the complaint. Myers, J., not participating. *Page 663

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427023/

Marcy Realty Corporation, Inc., the owner of real estate in Indianapolis, entered into a contract with Everett A. Carson for the construction of apartment buildings known as the Marcy Village Housing Project. The contract provided against liens and was recorded in compliance with § 43-701, Burns' 1933. With Seaboard Surety Company, as surety, Carson executed a bond to secure performance of the contract. Fred W. Fenneman was subcontractor for the plumbing and heating. Each of the appellants sold Fenneman material used in the building. Indiana Heating Plumbing Company, Inc., was incorporated by Fenneman to do the work required of him under his subcontract. Fenneman did not pay appellants in full. While the owner was still indebted to the contractor in a sum exceeding the amount of its claim, Warren Webster and Company served notice pursuant to § 43-709, Burns' 1933, to establish personal liability of the owner. Separate actions filed by the appellants were consolidated for trial. The facts were stipulated. Each secured judgment against Fenneman and one also had judgment against Indiana Heating Plumbing Company. The owner, contractor and surety prevailed below. The three appeals are treated as one. All questions are properly presented upon assignment of error in overruling motions for new trial specifying that the decision is contrary to law. The amounts due as stipulated were fixed by the judgments against Fenneman and his corporation. The liability, if any, of each of the other appellees is the same as that of Fenneman as of the date of the judgment against him. Three questions are presented and have been ably briefed and orally argued. We shall consider them in the order in which they are stated. *Page 401 First, does Warren Webster Company, who sold to Fenneman material that was used in the construction of the building, but who performed no labor thereon, come within the purview of § 43-709, Burns' 1933, so that by the notice given pursuant thereto it may enforce personal liability against the owner for the unpaid purchase price of the material? Second, may each of the appellants as unnamed beneficiary of the contract between the owner and contractor recover from the latter the balance of the purchase price of the material sold to subcontractor Fenneman and used by him and his corporation in the construction of the buildings? Third, if the second question is answered in the affirmative, is the surety also liable to appellants by the terms of its bond? We are indebted to appellant's counsel for the elision in quoting § 43-709, Burns', supra, as follows: "`Any sub-contractor, journeyman or laborer employed in erecting . . . any house . . . or other building . . . or in furnishing any material or machinery therefor, may give to the owner thereof . . . notice in writing particularly setting forth the amount of his claim and services rendered, for which his employer is indebted to him, and that he holds the owner responsible for the same; and the owner shall be liable for such claim, but not to exceed the amount which may be due and may thereafter become due from him to the employer; . . . And any such sub-contractor, journeyman or laborer, by giving notice as above provided . . . shall have the same rights and remedies against such owner for the amount of such labor performed, or material or machinery furnished, after said notice is given, as are above secured and provided, (for those) who serve notice after the labor *Page 402 is performed or the materials or machinery furnished. . . .'" This is Section 8 of the mechanic's lien law enacted in 1909, Acts 1909, page 295, under the title of ". . . an act concerning liens of mechanics, laborers, journeymen, contractors and sub-contractors and material men. . . ." A similar section has been a part of every mechanic's lien law enacted in this State beginning with a law entitled "An act giving to mechanics a lien upon buildings," Acts 1834, page 165. Section 8 thereof provides "That any journeyman or labourer who may be employed in the construction . . . of any building, or in furnishing any materials for the same, may give to the owner . . . of the . . . buildings . . . on which they may have worked, notice in writing, particularly setting forth the amount claimed to be due, and the services rendered, and that the employer is indebted to him or them. . . ." In the Revised Statutes of 1843 the word "sub-contractor" is inserted before the word "journeyman" but there are no other material amendments. R.S. 1843, p. 777. In 1852 the section was condensed to read as follows: "Any sub-contractor, journeyman or laborer employed in the construction or repair or furnishing materials for any building, may give to the owner thereof notice in writing, particularly setting forth the amount of his claim, and service rendered for which his employer is indebted to him, and that he holds the owner responsible for the same; and the owner shall be liable for such claim, but not to exceed the amount due from him to the employer at the time of notice, which may be recovered in an action." 2 R.S. 1852, § 649. In 1867 the section extended the liability to cover work performed or material furnished after the service of *Page 403 the notice and further provided that all persons in like status might participate pro rata in a judgment against the owner if the full sum of their claims could not be collected. Acts 1867, p. 97. From that time on, however, the wording of the section has been substantially as in the present act. Every reenactment has used the disjunctive "or" as refuting any inference that to recover the plaintiff must have furnished both labor and material. The principal argument in appellees' brief is that the words "employer" and "employed" and the phrases in which they are used indicate a legislative intent that the one who seeks to recover under this section must occupy the status of an employee or servant of the person with whom he contracted to furnish his labor or sell his material. The 1834 act afforded some basis for this contention because it applied only to laborers, a journeyman being merely a laborer or mechanic who has completed his apprenticeship and learned his trade, and the section also then contained the phrase "buildings on which they may have worked," but this phrase has not reappeared in the section since it was omitted in 1852. One who contracts with a subcontractor is himself a subcontractor. See Stephens et al. v. Duffy (1908), 41 Ind. App. 385, 81 N.E. 1154. Parties to a contract may agree, as 1. they did in the contract we shall later consider, that only he who contracts directly with the principal contractor shall for the purpose of the contract be a subcontractor but obviously this definition is neither controlling nor persuasive as to the meaning of the same word as used for over seventy-five years in this statute. Nor does the current use of "employer and employee" in lieu of the ancient terms "master and servant" tend to define the *Page 404 word "employer" as used when this section was in its formative stages from 1838 to 1867. The present section, to apply it to the facts in this 2. case, (with additional elision) reads: "Any sub-contractor . . . employed . . . in furnishing any material . . . therefor (i.e. for a building under construction) may give to the owner thereof . . . notice in writing particularly setting forth the amount of his claim and services rendered, for which his employer is indebted to him, etc." One who is employed in furnishing material is engaged in so doing. The person who contracted with him to furnish the material may, without straining the meaning of the word, be called his "employer." The phrase containing "services rendered" in the 1834 act doubtless was intended to require details of the kind of labor performed and the price per hour or per day. But after the early amendments above mentioned "services rendered" may also be deemed to mean a bill of particulars for material furnished. Those to whom this interpretation is not acceptable must nevertheless concede that the statute is ambiguous. The ambiguity may therefore be resolved by application of the usual principles of statutory construction. In oral argument counsel for the owner were driven to the admission that a journeyman or a laborer who furnishes material but performs no labor on the building may, simply 3, 4. because he bears the title of journeyman or laborer, pursuant to this section, enforce personal liability against the owner for the value of the material furnished. We can see no rational ground for denying the same benefit to one who bears the title of merchant or manufacturer and *Page 405 who furnishes the material without performing any labor. The courts will avoid, so far as it may be done consistently with the language of an act, any construction that results in an arbitrary or capricious classification denying to one and granting to another group of citizens the benefits of remedial legislation.County Dep't. of Pub. Welfare v. Potthoff (1942),220 Ind. 574, 583, 44 N.E.2d 642. At least eight opinions of this court have recognized the right of mere materialmen to avail themselves of the provisions of this section. They are Raleigh v. Tossettel (1872), 36 5, 6. Ind. 295; O'Halloran v. Leachey (1872), 39 Ind. 150; Colter et al. v. Frese et al. (1873), 45 Ind. 96;Crawford et al. v. Crockett et al. (1876), 55 Ind. 220;Irwin et al. v. City of Crawfordsville (1877), 58 Ind. 492;Secrist v. Board of Commissioners of Delaware County (1884),100 Ind. 59; Hubbard et al. v. Moore (1892), 132 Ind. 178, 31 N.E. 534; Halstead v. Olney J. Dean Co. (1914),182 Ind. 446, 105 N.E. 903. No case has been cited nor found where a different result was reached or suggested. The first case, Raleigh v. Tossettel, supra, was a proceeding under § 649 of the revision of 1852 as amended in 1867. Tossettel, a materialman, had furnished brick to contractors engaged in the construction of a house for Raleigh. The court said: "Under section 649 Raleigh was liable to the appellee to the amount that was due from him to Crist Co., at the time when such notice was served upon him and for such sum as might thereafter be due from him to them." In O'Halloran v. Leachey, supra, the court reversed the judgment for error in sustaining a demurrer to the complaint which alleged that Leachey was indebted *Page 406 to O'Halloran "in the sum of sixty dollars, being the balance due on stone and stone work used by one ____ Lincoln, in and about the erection" by him of a building for Leachey. The relief sought was personal judgment against the owner and foreclosure of a lien on the building. The court held the complaint sufficient to enforce personal liability but said that no question was presented as to whether the materialman was entitled to both remedies in the same action. In Colter v. Frese et al., supra, it is interesting to note that with the 1852 statute correctly abstracted on p. 99 of the opinion, the court on p. 103 uses the following language: "It is urged that inasmuch as section 649 provides that sub-contractors, journeymen, laborers, and material-men may have a personal action against the owner for their work or materials, by giving him the notice therein provided for, to the extent of what is due, or may become due, from him to the contractor, they should not be held to have the right to acquire a lien. We find nothing, however, in this section that, in our opinion, indicates an intent on the part of the legislature to withhold from them the right to acquire a lien as provided for in the two preceding sections. "The contractor has the right to a lien and also to his personal action against the owner. The object of the law was to place the sub-contractor, journeyman, laborer, and material-man upon the same footing with the contractor, except that the personal action against the owner in favor of the sub-contractor, etc., is limited by the amount that may be due or may become due from the owner to the employer. The lien given might be an inadequate remedy, as the property might be previously encumbered to an extent that would render the lien unavailable; hence the right of a personal action against the owner is conferred to the extent indicated." *Page 407 The court apparently did not include "materialmen" as subcontractors but added them as an independent class. We quote from Crawford et al. v. Crockett et al., supra, as follows: "Section 649 provides for a personal liability in favor of sub-contractors, material men (our emphasis), etc., against the owner of the building, for the amount of their claims against their employer, but not to exceed the amount that is due, or may become due, from the owner to the employer; but they must, in order to hold the owner personally liable, give him notice in writing, particularly setting forth the amount of their claims, and that they hold him responsible therefor. Thus it is seen that material men, etc., may acquire a lien upon the property to the extent of the value of the materials furnished, or they may hold the owner of the building personally liable, not exceeding the amount that may be due, or may become due, from him to the contractor. They may do one or the other, or both." Again in Irwin et al. v. City of Crawfordsville, supra, judgment was reversed for error in sustaining a demurrer to a complaint which alleged: "That the plaintiffs, as sub-contractors, furnished to the contractors one hundred and eighty thousand brick, on which was due, to the plaintiffs, thirteen hundred and fifty dollars, on the 17th of October, 1872; that, on that day, there was due to the contractors, Alexander Whitsett, from the city of Crawfordsville, on account of the building for which these plaintiffs furnished said brick, the sum of four thousand dollars, belonging to the said Alexander Whitsett, on account of their contract for the completion of the said city building; and that, on that day, the plaintiffs gave notice, in writing, to the common council of said city of Crawfordsville, of the amount of their claim, $1,350, that was due to them for brick furnished *Page 408 for said building, and that they, the plaintiffs, would hold the said city liable for the amount of their said claim of thirteen hundred and fifty dollars; and the plaintiffs aver, that afterward, in her own wrong, by the common council of said city, and to the great injury of plaintiffs, said city paid to said Alexander Whitssett said sum of four thousand dollars." The opinion is in one paragraph as follows: "The question is, was this paragraph sufficient on demurrer? or was it necessary that it should set forth a copy of the written notice, that the court might judge of the sufficiency? In such case as this, is the written notice the foundation of the action? We think it is not, and that the said second paragraph of the complaint is sufficient." In the course of its opinion in the case of Secrist v. TheBoard of Commissioners of Delaware County, supra, the court said, in referring to the section of the statute now under consideration, "Section 5295, supra, provides for the personal liability of an owner to a material man . . . it undertakes to establish a personal liability of the owner to the party who, under section 5293, R.S. 1881, might have a lien." In Hubbard et al. v. Moore, supra, it appeared that Moore sold wood work to a contractor for use in a building and that there was a balance due for the purchase price of the material. The complaint was crudely drawn attempting both to enforce personal liability and to foreclose a lien. Judgment was given to Moore which was sought to be sustained in the Supreme Court under the personal liability section. The court said: "There was a written notice given, after the materials were furnished, as required by section 1696, Elliott's Supp., but there is no evidence that Mrs. Hubbard was indebted to the contractor, *Page 409 Waggaman, at the time the notice was given, at least not to exceed the amount of $116, which amount she had paid to appellee, and he had accepted, before this suit was commenced so that there would be no liability under that section." The last case, Halstead v. Olney J. Dean Co., supra, was decided under the present statute and held § 8 within the title of the act on the theory that it "embraces matters which are germane to and properly connected with the general object and purpose of the act as a whole." The opinion discloses that the appellee sold material to Halstead and Moore, who had contracted to erect a building for Cole Motor Car Company, against whom went personal judgment pursuant to this section. In every one of the above cases, so far as appears from the opinions, the materialman furnished no labor but merely sold materials to a contractor or subcontractor who incorporated them into the building. In none of them was the precise question before us stated or discussed. Are these cases sufficiently determinative of the question before us that we may rest it upon the rule of stare decisis? This maxim is most frequently applied where to disturb the prior ruling would probably affect real property and vested rights, but its application is not confined to such questions. In situations requiring statutory construction it is frequently used. See Dailey v. Pugh (1924), 83 Ind. App. 431, 437, 131 N.E. 836, and cases cited, 14 Am. Jur., Courts, §§ 65, 66, and 21 C.J.S., Courts, § 214. InWillis Turner v. Moore Davis (1924), 151 Tenn. 562, 271 S.W. 736, the court conceded that the precise question before it, one of practice, had not been directly decided but nevertheless said that the principles underlying the doctrine of staredecisis "would seem to warrant *Page 410 the extension thereof to a construction which, although not directly decided, has been recognized by acquiescence and uniform adoption and practice over many years." This court has applied the same rule with respect to another statute in Stout v.Board of Commissioners of Grant County (1886), 107 Ind. 343, 8 N.E. 222, as follows: "Conceding that this court, as at present constituted, might, as an original question, feel inclined to place a different construction upon the section of the statute involved in this cause, we would, nevertheless, regard the reasons for such a different construction as too shadowy and unsatisfactory, and the lapse of time too great, to justify us in overruling the case of Edger v. Board, etc., supra, and the later case founded upon it." In that case, however, the court suggested and in other cases has applied a somewhat analogous but, as pertains to the issue now under consideration, a more cogent rule, namely, that stated inBoard of Commissioners of Monroe County v. Conner (1900),155 Ind. 484, 486, 58 N.E. 828, as follows: "Moreover, it is a settled rule of statutory construction that when a statute or a part of a statute has been construed by the courts of the State and the same is substantially reenacted the legislature adopts such construction, unless the contrary is clearly shown by the language of the act." See also Moore-Mansfield Constr. Co. v. Indianapolis, etc., R.Co. (1913), 179 Ind. 356, 101 N.E. 296, 44 L.R.A. (N.S.) 816. Here we have a uniform construction of a statute, in existence without substantial amendment from 1867 to the present date, with at least two complete reenactments, 1883 and 1909, and numerous *Page 411 amendments of other sections, but with no change in the language of the section so construed. None but the most cogent reasons should cause us to deviate from that construction. Another argument made by the appellee owner is that in the lien section as reenacted in 1909 there is expressed an intention to include materialmen under the phrase "all persons 7, 8. performing labor or furnishing materials" but in the personal liability section there is no such language. He relies therefore upon the maxim expressio unius est exclusioalterius. This maxim may be persuasive in a doubtful case but is not conclusive. There has been comparatively little litigation respecting the personal liability section but a great deal with respect to the lien sections as disclosed in Moore-MansfieldConstr. Co. v. Indianapolis, etc., R. Co., supra, where the history of mechanic's lien statutes in America is at length reviewed. Whenever there has been a question raised as to whether a particular class of persons contributing to the construction of a building may take advantage of the statute the courts have resolved doubts in favor of such class and the Legislature has frequently put the matter beyond dispute by reenacting the statute expressly including the class. We indulge the belief that had this court, in any of the cases where personal liability of the owner to materialmen has been recognized, held or indicated that they were not included the Legislature in line with its consistent policy with respect to the lien section would have broadened the statute expressly to include them. In any event we are not persuaded by the maxim in the face of the uniform judicial and legislative construction of the section persisting for so many years. *Page 412 In the course of the opinion in the Moore-Mansfield case the court said: "The mechanics' lien laws of America, in general, reveal the underlying motive of justice and equity in dedicating, primarily, buildings and the land on which they are erected, and which have given to them an increased value. The purpose is to promote justice and honesty, and to prevent the inequity of an owner enjoying the fruits of the labor and material furnished by others, without recompense." We think the same underlying purposes should be given effect in construing the personal liability section. It is incidental or germane to the lien sections of the act, else the decision inHalstead v. Olney J. Dean Co., supra, would have been otherwise. In Crawford et al. v. Crockett et al., supra, it was held that the material-man might use either remedy. Since 1909 the lien section has contained a provision whereby the owner by recording his contract providing against liens may protect himself against the acquisition thereof, and this was done in the instant case. With such provision it would seem to be more essential that persons who like appellants herein would otherwise be entitled to liens should have the additional protection of the personal liability section. The owner appellee relies upon Duncan v. Bateman (1851),23 Ark. 327, 79 Am. Dec. 109, as holding that one who furnishes material without doing any work should have no lien. The statute there involved provided that "all artisans, builders, and mechanics of every description, who shall perform any work and labor on any building . . . shall have an absolute lien . . . for such work and labor, as well as for materials furnished by them in and about such work *Page 413 and labor." We think that statute was analogous to our 1834 statute containing the phrase "buildings on which they may have worked" which was eliminated in 1852. Obviously the Arkansas statute was intended solely for the protection of the worker and the fact that he was protected also for materials he furnished was merely incidental. But it is said that since Caulfield v. Polk (1895),17 Ind. App. 429, 435, 46 N.E. 932, which relied upon Duncan v.Bateman, supra, our statute has had the same interpretation. Our Appellate Court held therein only that one who sells material to another person who in turn sells it to a contractor is not entitled to a lien under the statute. The court said: "A material man should be, and is, protected for any machinery furnished to a person authorized to put the same in a building, whether such person be an owner or a contractor or a subcontractor. Beyond this the statute does not go in terms, and should not go by implication." In Rudolph Haggener Co. v. Frost (1915), 60 Ind. App. 108, 108 N.E. 16, the court adhered to that doctrine. There is nothing in either of these cases that conflicts with our views. Appellants furnished their material to "a person authorized to put the same in a (the) building." We are not impressed with appellee's argument that this statute may be given a liberal construction to determine whether the subject-matter is within the scope of the title but must be 9. given a strict construction to determine the classes of creditors who may avail themselves of its provisions. The purpose of any construction is to ascertain the intent of the Legislature. "Liberal' or "narrow" may characterize *Page 414 the attitude of approach but the final question is whether, after applying the usual well known aids to statutory construction, the conclusion reached is consistent with that which the Legislature may reasonably and probably have intended. We conclude that Warren Webster Company was entitled to judgment against Marcy Realty Corporation, Inc. It is settled in Indiana that contracts for the erection of private buildings containing provisions that the contractor shall pay for all material afford to unnamed materialmen a 10, 11. remedy as third party beneficiaries against the contractor. Knight-Jillson Co. v. Castle (1909),172 Ind. 97, 87 N.E. 976; Ochs v. M.J. Carnahan Co. (1906),42 Ind. App. 157, 76 N.E. 788, transfer of which was denied shortly before the decision in the Knight-Jillson case. This rule is not peculiar to Indiana but it has not been adopted in all jurisdictions. See 9 Am. Juris. Building and ConstructionContracts, § 94, et seq.; Fidelity Deposit Co. of Baltimore,Maryland v. Ranier, etc. (1927), 220 Ala. 262, 125 So. 55, 77 A.L.R. 13, and note, also notes in 118 A.L.R. 57 and 128 A.L.R. 938. In this case we have two contracts, the one executed by the owner with the contractor and the other the surety bond given to secure performance of the former. Appellees contend that they must be read together as one instrument. Appellants say that in determining liability under the contract the terms of the bond need not be considered and cite Milske v. Steiner Mantel Co. (1906), 103 Md. 235, 63 A. 471, 5 L.R.A. (N.S.) 1105, which held that a provision in a bond, given to secure the performance of a building contract, "that the principal shall not, nor shall the surety, be liable for any damage resulting from an act of God" could *Page 415 not be considered in determining liability under the contract for the loss by fire of the partly constructed building. This case was cited and the principle applied in McElwrath v. City ofMcGregor (1933), Tex. Civ. App., 58 S.W.2d 851, 854, where it is said: "The mere fact that the city was willing to accept from the contractor a bond less onerous than the original contract did not relieve the contractor from the obligations assumed in his original contract. The contract and the bond were separate obligations. While the bond may have limited the liability of the surety, it did not affect the liability of the contractor under his original contract. Milske v. Steiner Mantel Co., 103 Md. 235, 63 A. 471; 5 L.R.A. (N.S.) 1105, 115 Am. St. Rep. 354; Chamberlain v. Fox (Tex. Civ. App.), 54 S.W. 297; Lindheim v. Muschamp, 72 Tex. 33, 12 S.W. 125; Cohen v. Munson, 59 Tex. 236." A similar conclusion was reached in American Surety Company v.School District No. 64 (1928), 117 Neb. 6, 219 N.W. 583, at 587, which quotes at length from the Maryland case. While it is generally held that instruments executed at the same time and by the same parties may be considered as one contract or if not treated as one contract that either of them may be referred to for the purpose of construing ambiguous language in the other, we do not think this rule should here be applied. The parties are not the same since the surety is not a party to the original contract. The owner was not an executing party of the bond although it ran to him. While there was a provision in the contract that a bond should be executed, that provision, evidently inserted at the request of the Federal Housing Administrator, was that the bond should be "in form and executed by the sureties satisfactory to the Administrator." The owner may have acquiesced to its terms *Page 416 but he had no choice, as against the will of the administrator as to its contents or as to the surety. The contract required a bond yet so far as the owner was concerned it might have been waived. These considerations and other reasons given in the cited cases preclude our present consideration of the terms of the bond. The contract is in two portions. The first provides "that the Contractor shall furnish all the materials and perform all the work shown" on plans and specifications which include "the 12. general conditions of the contract consisting of Articles one to fifty-four inclusive, of the Standard Form, current edition of the `American Institute of Architects'" (except as specifically modified in said specifications). Article 9 of these specifications reads in part as follows: "Unless otherwise stipulated, the Contractor shall provide and pay for all materials, labor, water, tools, equipment, light, power, transportation and other facilities necessary for the execution and completion of the work. . . ." Unless we can find in the contract other stipulation requiring a different construction we think it is clear that the contractor was obligated to appellants by the phrase "pay for all materials." In this assertion we are not unmindful of appellees' contention that the contract "must clearly evidence a distinct intention to benefit such third person," citing Irwin's Bank v.Fletcher, etc., Rec. (1925), 195 Ind. 669, 672, 145 N.E. 869, 146 N.E. 907; State of Indiana ex rel. Hay et al. v. U.S.F. G. Co. of Baltimore, Maryland (1930), 92 Ind. App. 4,172 N.E. 656. The contentions made in the former did not require so emphatic a statement as that quoted, which is the only authority cited for the statement in the later case. We do not understand *Page 417 that the intention of the parties as to third party beneficiaries is to be tested by any stricter or different rule than their intention as to other terms of the contract. The only provision upon which appellees rely to 13, 14. disclose an intention contrary to that expressed in Art. 9 is a part of Art. 37, reading: "The Contractor agrees . . . (h) To pay the Subcontractor on demand for his work or materials as far as executed and fixed in place, less the retained percentage, at the time the certificate should issue, even though the Architect fails to issue it for any cause not the fault of the Subcontractor." We regard this provision as regulating the method of payment during construction to a subcontractor as defined in the contract. It does not at all conflict with the contractor's express obligation to pay others for labor or materials. Against appellees' contention and in harmony with Art. 9 the owner by Art. 22 is given the right to terminate the contract upon certain contingencies including the failure of the contractor "to make prompt payments to his subcontractors or for material or labor." (Note the use of the disjunctive.) In Art. 26 is a similar provision giving the right to withhold or "nullify the whole or a part of any certificate to such extent as may be necessary to protect the Owner from loss on account of: . . . (c) Failure of the Contractor to make payments properly to subcontractors or for material or labor. . . ." Having found no other stipulations or inconsistent provisions in the contract itself we must give effect to the provisions quoted of Art. 9 and hold that appellants had a cause of action thereunder against the contractor. *Page 418 By reference the contract is made a part of the bond 15. which contains four obligatory clauses as follows: (Our numbering.) "NOW WHEREFORE, the Condition of this Obligation is such that, (1) if the Principal shall faithfully perform the Contract on his part (2) and shall indemnify and save harmless the Owner from all cost and damage which he may suffer by reason of failure so to do (3) and shall fully reimburse and repay the Owner all outlay and expense which the Owner may incur in making good any such default, "(4) And further, that if the Principal shall pay all persons who have contracts directly with the Principal for labor or materials, failing which such persons shall have a direct right of action against the Principal and Surety under this Obligation, subject to the Owner's priority, "Then this Obligation shall be null and void, otherwise it shall remain in full force and effect." Clause (1) is not only the first named but also the most important, since it carries into effect the provision of the contract that its performance be secured by bond. Were it the only provision there would be no doubt that appellants, having rights of action against the "Principal" upon the contract, have the same rights against his "Surety" on the bond. The second clause is surplusage for its obligations are included in Clause (3) which is itself incidental to Clause (1). The bone of contention is Clause (4), the surety insisting that it is a limitation of its liability, upon the theory that the mention of "persons who have contracts directly with the Principal" excludes persons like appellants whose sales were not to him but to a subcontractor. Appellants would apply the rule stated in the first sentence of 12 Am. Jur., Contracts, § 243, as follows: *Page 419 "It has been laid down as elementary law that if two clauses of an agreement are so totally repugnant to each other that they cannot stand together, the first shall be received and the latter rejected." In the same section we find this qualification: "The rule should not be given effect where the first words are inconsistent with later words expressing the dominant purpose of the instrument. Where a repugnancy is found between clauses, the one which essentially requires something to be done to effect the general purpose of the contract is entitled to greater consideration than the other." But for the application of the maxim "expressio unius estexclusio alterius" there would be no repugnancy between Clauses (1) and (4). Liability to all materialmen includes liability to those who sell directly to the contractor. When the general clause which expresses "the dominant purpose of the instrument" is all inclusive, why should we restrict its meaning by applying a maxim which is only an aid to construction? To avoid treating Clause (4) as surplusage is the best reply but the author of the bond was not disturbed by the surplusage in Clause (2). We are not dealing with language of a constitution or a statute. These are assumed to be written with great care that not a word be meaningless. Not so are many contracts even standard forms such as this bond which was approved by the same association that approved the form of contract. After the surety's signature appears a note to the effect that Clause (4) is an additional protection to the owner for which an extra premium is chargeable. This indicates ignorance of the legal significance of Clause (1) as affected by our construction of the building contract. Both contract and bond may be subject to a different interpretation in other jurisdictions which *Page 420 do not recognize the rights thereunder of unnamed third party beneficiaries. But to us it seems anomalous to treat as a limitation of liability a clause designated upon the form as one increasing both the surety's obligation and his compensation. Preferable is a construction that is harmonious with the prime purpose of the bond. The judgments are reversed with instructions to enter judgments for all appellants against the contractor and the surety and for Warren Webster Company against also the owner for the amounts and as of the date of the judgments against Fenneman. NOTE. — Reported in 54 N.E.2d 263.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427024/

William D. Miller (appellee herein), instituted this suit to quiet title to certain described real estate located in Monroe County. William P. Bollenbacher and Polk Mineral Company (appellants herein) were made defendants. The complaint was in seven paragraphs; defendants demurred to each of the first, second, third, fourth, fifth and seventh paragraphs; each *Page 411 demurrer was overruled and each defendant filed an answer of general denial to each paragraph of complaint. Trial was had by the court; the facts were found specially; conclusions of law were stated thereon and judgment quieting plaintiff's title to the real estate in question as against the defendants was rendered. Defendants' motion for a new trial being overruled, they appealed to this court and assigned as error: (1) The court erred in overruling the demurrers to the first, second, third, fourth, fifth and seventh paragraphs of complaint; (2) the court erred in adopting the conclusions of law in favor of plaintiff; and (3) the court erred in overruling defendants' motion for a new trial, under which it is contended that the decision of the court is not supported by sufficient evidence; that it is contrary to law and that the court erred in the admission of certain evidence. The necessary facts to support a recovery as found specially by the court, in substance, are: Plaintiff was, at all times mentioned in the complaint, the owner of the real estate in question; plaintiff entered into a contract termed a "Mineral Contract," by the terms of which plaintiff, as grantor, granted and sold to the defendant Bollenbacher, in consideration of "one dollar per acre, and other considerations, all to be fully paid for in fully paid non-assessable preferred stock," the exclusive rights in all minerals, stone, coal, oil, gas, ore of all kinds and valuables of all kind of substances and ample rights to enter upon all the land of the grantor (plaintiff) for the purpose of developing and marketing such minerals; that grantor was to receive "for said mineral rights and privileges, the amount of preferred stock, according to their preferred stock in a 4 per cent dividend over common stock holders, in the net profit, when dividends are declared." By the terms of the contract, it was provided that "the grantee shall have *Page 412 reasonable time to complete prospecting." Besides appellee Miller, nine other persons whose farms were located in the same community, signed the same contract and made the same grants respecting their lands. The court further found that, at the time said agreement was entered into, it was an essential part of the agreement that Bollenbacher would proceed without delay to locate and reduce to possession the oil and gas in said real estate and that he would, without delay, dig and complete an oil or gas well for that purpose upon the premises described in the lease; that no money has been paid to plaintiff or to any other person for them by defendants as rental for the real estate described; that neither Bollenbacher nor the Polk Mineral Company did, up to the present time, drill an oil or gas well or attempt to dig or construct any oil or gas wells upon any lands described in said lease; nor did either defendant attempt to locate any oil or gas in said described real estate contained in said lease; that each of said defendants abandoned the pursuit of oil and gas located in said real estate; that the written instrument in question is a cloud upon the rights, title and interest of plaintiff in the real estate therein described; that, unless said cloud be removed and said contract canceled and declared null and void, plaintiff will suffer irreparable damage to his rights, title and interest in said real estate; that defendants Bollenbacher and Polk Mineral Company separately and severally claim an interest in said contract and that said claim is against the right, title and interest of plaintiff and is a cloud upon plaintiff's title. The court further found that the recorder of Monroe County, pursuant to a proper request by plaintiff under the Acts of 1923 (Acts 1923, ch. 134, p. 378, § 1, being § 9571 Burns 1926), certified upon the face of the records in his office that said contract and lease in question *Page 413 were invalid and void so far as it affected William D. Miller or his real estate described therein; that neither defendant did anything to show that such certification of invalidity should not stand; that, pursuant to the contract in question, the Polk Mineral Company was incorporated, which corporation, pursuant to such contract, issued to plaintiff preferred stock equal to $1 per acre for each acre of ground owned by plaintiff and described in such contract; that no dividends have been declared by the Polk Mineral Company; that plaintiff tendered back to the Polk Mineral Company, prior to the beginning of this suit, such preferred stock, but defendants refused to accept the same. The court, upon the special findings of fact, stated its conclusions of law in favor of the plaintiff and pronounced judgment declaring the contract in question null and void and quieting plaintiff's (appellee herein) title to the real estate in question as against the defendants (appellants herein). Appellants argue that the court erred in overruling the demurrers to the first, second, third, fourth, fifth and seventh paragraphs of complaint, each of which pleaded facts 1, 2. specifically surrounding the execution of the contract, defendants delay in exploring, etc. The sixth paragraph alleged that plaintiff (appellee) was the owner in fee simple of the land in question; that each of the defendants (appellants) claimed an interest therein adverse to plaintiff's (appellee's) rights; that such claim was without right and was unfounded; and that such claim was a cloud upon plaintiff's (appellee's) title. Such a paragraph is sufficient in a suit to quiet title. Marot v. Germania Building, etc., Assn. (1876), 54 Ind. 37; Wilson v. Wilson (1890), 124 Ind. 472, 24 N.E. 974; The TollestonClub of Chicago v. Clough (1896), 146 Ind. 93, 43 N.E. 647;City of Huntington v. Townsend (1902), *Page 414 29 Ind. App. 269, 63 N.E. 36. All evidence necessary to support the findings of fact and conclusions of law stated thereon, that there had been an abandonment of the lease by the lessee, could have been introduced under the sixth paragraph of complaint.Woodward v. Mitchell (1894), 140 Ind. 406, 39 N.E. 437. Under such circumstances, even if it were error for the court tooverrule the demurrers of which complaint is made (which we do not decide), the error would be harmless. Harris v.International, etc., Constr. Co. (1916), 62 Ind. App. 64, 112 N.E. 532; Lester v. Hinkle (1926), 90 Ind. App. 193,153 N.E. 179; Duncan v. Lankford (1896), 145 Ind. 145, 44 N.E. 12. Appellants earnestly contend that the fact that they (appellants) did not, within a reasonable time, proceed to prospect and explore may be the basis for an action for 3, 4. damages for breach of contract, but that such failure to proceed within a reasonable time is not sufficient to cause a cancellation of the contract and to declare the same null and void. But, it has been held that, by the very nature of oil and gas, the courts must place all oil and gas contracts and leases in a class of their own. New American Oil, etc., Co. v.Troyer (1905), 166 Ind. 402, 412, 76 N.E. 253, 77 N.E. 739. Our courts have consistently held that the obligation to explore is such an essential part of oil and gas leases and contracts, though implied, as must be treated as a condition, which, if not performed within a reasonable time, entitles the lessor to claim a forfeiture and abandonment of the lease. Consumers Gas TrustCo. v. Littler (1904), 162 Ind. 320, 327, 70 N.E. 363;Consumers Gas Trust Co. v. Worth (1904), 163 Ind. 141, 149, 71 N.E. 489; Dittman v. Keller (1913), 55 Ind. App. 448, 451, 104 N.E. 40. What amounts to a reasonable time depends upon the circumstances of the particular *Page 415 case. Island Coal Co. v. Combs (1899), 152 Ind. 379, 53 N.E. 452. Gadbury v. Ohio, etc., Gas Co. (1903), 162 Ind. 9, 67 N.E. 259, 62 L.R.A. 895, was a case wherein a year and eight months delay had occurred and the question of "reasonable time" 5. was an important element in declaring a forfeiture of a gas and oil lease and quieting plaintiff's title. In that case, the court said that such a length of time was sufficient "to require the court below to aid appellants (plaintiffs) by means of its jurisdiction, to decree cancellation and to remove clouds from titles." In the case before us, the contract was executed on April 13, 1925, and neither of the appellants did anything towards exploring or prospecting for oil or gas prior to the filing of this action January 28, 1928, a delay of more than two years and nine months. Such a length of time is unreasonable and appellee was clearly entitled to demand a forfeiture of the lease and to have his title to the land in question quieted as against appellants. There is no merit in appellants' contention that this was such a joint enterprize as to constitute a defense to appellee's 6. action to quiet title. The court did not commit reversible error in the admission of the evidence of which complaint is made. There is sufficient evidence to support the findings of fact. The court did not err in adopting the conclusions of law in favor of appellee. Judgment affirmed. Kime, J., not participating. *Page 416

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427026/

The appellant, William Virgil Johnson, was prosecuted by an indictment for the crime of murder *Page 180 in the first degree. The indictment was returned by the Grand Jury of Shelby County and charged the appellant and three other co-defendants, namely, William Francis Price, Vera Hornback and Mary Ruth Ward, with the killing of one Herbert Smith. After the defendants were arraigned and after they had each entered pleas of not guilty, upon motion of the appellant and one of his co-defendants, the cause was venued to Bartholomew County where each defendant moved for a separate trial. Thereupon, the Court ordered the appellant and the defendant, William Francis Price, be tried jointly and that the other defendants be tried jointly. Trial of the appellant and defendant Price was had before a jury which resulted in a verdict finding the appellant and defendant Price each guilty of murder in the first degree and fixing the punishment of each at life imprisonment. Thereupon, the Court rendered judgment on the verdict committing the appellant and his co-defendant Price to the Indiana State Prison during life. It is from this judgment this appeal is taken. During the course of the trial the appellee offered in evidence a purported written confession signed by the appellant. At the time of this offer the appellant objected to the same and asked leave to introduce evidence of violence and duress. Leave was granted, and in the absence of the jury the Court heard evidence as to the voluntary character of this confession. After this preliminary hearing was had, the statement was admitted in evidence. By proper assignment of error appellant has questioned the admission of this confession. Putting aside the controverted evidence and taking only the undisputed testimony, the following facts and events were established and brought out in this preliminary *Page 181 hearing, and by the evidence produced by the State before the statement was offered in evidence. On December 5, 1946, at about two p.m., Herbert Smith, an Indiana State Police officer, was shot and killed on State Road 9 about two miles north of Shelbyville, Indiana. Immediately thereafter the defendants were seen running through the fields in a westerly direction. A posse formed in a few minutes consisting of State Police and other law enforcing officers and some civilians. Immediately this body of men started in pursuit and captured the defendants at about 3:10 p.m., at a point approximately 80 rods west of said State Road 9. When captured the defendants had their hands raised in the air and offered no resistance. Appellant and defendant Price were each handcuffed immediately with their hands behind them; the other defendants were handcuffed together. After being handcuffed the defendants were escorted by the posse to the road. The trip back to the road took 20 to 30 minutes. Proceeding at an ordinary pace it should have taken six or seven minutes. As soon as appellant and defendant Price were handcuffed the police began beating them with their fists. During the trip back to the road they knocked Price down at least seven or eight times and hit him in the face 25 or 30 times. At least 15 different police hit him. During this time Johnson was being beaten in a similar manner not only by police officers but also by civilians. As one officer struck him this officer remarked, "You can dish it out, now see if you can take some of it." The appellant was not beaten as severely as defendant Price. This beating continued for 20 to 30 minutes and until they arrived at the barn lot of a Mr. Arnold located adjacent to the road. As Johnson was being held by each arm, after arriving at the barn lot, a *Page 182 policeman came up and struck him "as hard as he could." Appellant and defendant Price were then placed in an automobile with members of the State Police force who had assisted in their capture and driven to Shelbyville where they arrived shortly before four p.m. During the course of this journey appellant and Price were again struck by the officers accompanying them. After a very short time they accompanied these officers in an automobile from Shelbyville to Indianapolis where they were taken to the headquarters of the State Police. They arrived at headquarters shortly before seven p.m. The other defendants were also taken to headquarters and arrived about the same time. At that time Price's face was puffed; mouth, right eye and nose were swollen, discolored and bloody, and his clothing muddy and disarranged. Johnson's face was not bloody, but bruised, and his clothing muddy and disarranged. He looked like he had been "pushed around." On the trip from Shelbyville to Indianapolis appellant and Price were cursed by the officers accompanying them. One of the witnesses for the State testified that appellant and the other defendants, when they arrived at the State Police Headquarters, appeared remorseful and dejected; another, that they appeared submissive to the same degree as any little boy when he does something wrong; also, that Price appeared "groggy." At State Police Headquarters they were immediately taken to the office of the superintendent where about 12 State Police officers were present, several of whom had participated in the beating of appellant and Price. Shortly thereafter, seven or eight newspaper reporters appeared, were invited to come in by the officers, and were permitted to interview the prisoners and take pictures of them. After this interview and after fingerprints and photographs had been taken, the State Police *Page 183 began questioning appellant and the other defendants separately. The questioning was done by an officer of the State Police and resulted in each prisoner signing a written confession before 11:30 that evening. Appellant's signature to his statement was witnessed by four officers, three of whom had been present when the beating was administered to him on the way from the place of his capture to the Arnold's barn lot, and one had struck him on the way to Shelbyville. Immediately after appellant had signed his statement he was taken into a room at headquarters with the other defendants where his statement, and those which had been signed by the other defendants, were read to them by one of the officers. Appellant and defendant Price were handcuffed with their hands behind them during the time they were being transported to Shelbyville, and from there to Indianapolis, and while there except for a short period while they were signing their respective statements. It also appears by the testimony of one witness that on December 10, 1946, appellant's back was very bruised and his face was swollen. At that time there were three lumps on his back, each about as large as the palm of the witnesses hand; there was also at that time a lump on his shoulder. At the time of appellant's arrest he and defendant, Price, were each 17 years of age, the defendant, Vera Hornback, 15 years of age, and Mary Ruth Ward, 16 years of age. At the time that the appellant signed this statement he had not been advised by counsel, nor had he been informed that he did not have to answer if he chose not to do so, nor that his statements could be used against him in court. *Page 184 We cannot permit this judgment to stand if the undisputed evidence suggests that force or coercion was used to exact the confession, even though without the confession there might 1. have been sufficient evidence for submission to the jury. Malinski v. New York, 324 U.S. 401, 89 L.ed. 1029, 65 S. Ct. 781; Haley v. Ohio, 92 L.ed. 239, 68 S. Ct. 302. The State admits that the appellant and his co-defendant Price were each severely beaten by the State Police and certain civilians. The argument is advanced, however, that this beating and abuse had nothing to do with the obtaining of appellant's confession. It is claimed this beating and abuse resulted from a spontaneous feeling of anger among the officers and civilians caused by the unprovoked killing of a well-beloved police officer, and that it was not administered for the purpose of obtaining the confession in question. It seems to us that the question as to why the appellant was beaten by these officers, or for what purpose, is wholly immaterial in this case. Taking into consideration the 2. short time that had elapsed from the time that this appellant suffered the first indignity until he signed his statement, also by whom he was beaten and the severity thereof, the fact that during this period he was transported to Indianapolis evidently for the purpose of obtaining his confession and was never out of the company of some of those that assisted in beating him, their attitude toward him during the time he was beaten and also while being transported, the fact that some of these officers were present when he made his confession and witnessed the same, that the appellant was only 17 years of age at the time he signed this statement, and that he was without counsel and not advised of his constitutional rights, we conclude that as a matter of law, the *Page 185 admission of appellant's confession in evidence was a violation of his rights under the due process clause of the Fourteenth Amendment of the Constitution of the United States. The circumstances under which this confession was obtained ". . . by their very nature preclude a finding that a deliberate and responsible choice was exercised by the boy in the confession . . ." The words last quoted are borrowed from the concurring opinion of Justice Frankfurter in the case of Haley v. Ohio, supra. Regardless of what our own Court has said on the subject under consideration, we are bound by, and must follow, what has been determined as to this question by the Supreme Court of the 3. United States. We regard the cases of Haley v. Ohio, supra, and Malinski v. New York, supra, as controlling, and upon these cases we base this opinion. According to the principles of law as laid down in these two cases, as well as in the cases cited in those opinions, it was error to admit the involved confession. Judgment reversed with instructions to sustain appellant's motion for a new trial. The clerk of this court will issue a proper order to the Warden of the Indiana State Prison for the return of the appellant to the Sheriff of Bartholomew County. Emmert, C.J., not participating. NOTE. — Reported in 78 N.E.2d 158. *Page 186

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427027/

Appellant was convicted of violating *Page 177 Acts 1925, ch. 48, § 6, § 2719 Burns 1926, which makes it unlawful to own, possess, control, use or assist in using any still or distilling apparatus for the unlawful manufacture of intoxicating liquor. His assignment of errors presents two questions: first, was the evidence obtained by the arresting officers and on which he was convicted incompetent because it was obtained without the aid of a search warrant, and second, was the evidence sufficient to sustain the verdict? The evidence, briefly, was that Harrison, the owner of a farm on Laughery Creek which was leased to Lindsay Borders, visited the farm and was within 40 feet of a place where a still was in operation thereon, heard a fire cracking, heard someone conversing there and smelled the mash. He telephoned to the sheriff and then accompanied the sheriff and three others, whom the sheriff deputized, to the farm. The officers surrounded the location of the still and one of them, while waiting in the weeds for the sheriff and other deputies to locate themselves, saw three men, one of whom was appellant, working around the still. Two officers testified that appellant, who was within three or four feet of the still, had a copper coil in his hands and took a kettle to a point on the creek nearby where some barrels were located, started to run when discovered by the sheriffs, and, on being told to halt, kept on running. Appellant and his codefendants, Henderson and Borders, were arrested after several shots were fired. Henderson and appellant, who were wounded, carried arms and ammunition, and all the deputy sheriffs were armed. In addition to the still, the officers found four and one-half barrels of mash and eight gallons of "white-mule" whisky in jugs, kegs and milk cans, the liquor being hot when found. It was not necessary that the search, seizure and arrest in this case be made under a search warrant in order *Page 178 to effect a valid arrest of the appellant and to render 1-4. admissible against him the evidence obtained, for the following reasons: First. The arresting officers had reasonable and probable cause to believe that the felony defined by the statute above cited was being committed, and therefore had the right to arrest the felon and seize the articles used in the commission of the crime.Hanger v. State (1928), 199 Ind. 727, 160 N.E. 449; Doering v. State (1874), 49 Ind. 56, 19 Am. Rep. 669; Harness v.Steele (1902), 159 Ind. 286, 64 N.E. 875. Second. It does not appear that appellant owned, operated or in any way controlled or had any interest in the premises searched, and, in such a case, he cannot avail himself of any objection to the legality of the search. Speybroeck v. State (1926),198 Ind. 683, 154 N.E. 1, and cases there cited. Third. The constitutional inhibition against unreasonable searches and seizures protects the people in their right "to be secure in their persons, houses, papers and effects," § 11, Art. 1, Constitution, § 63 Burns 1926, but does not make necessary the obtaining of a search warrant to enable officers to search fields, woods or land which is some distance from a house or dwelling. United States v. McBride (1922), 287 Fed. 214;Gilstrap v. State (1928), 263 Pac. (Okla. Crim.) 155; Brent v. Commonwealth (1922), 194 Ky. 504, 240 S.W. 45; Cotton v.Commonwealth (1923), 200 Ky. 349, 254 S.W. 1061; State v.Zugras (1924), 306 Mo. 492, 267 S.W. 804. The evidence was sufficient to sustain the verdict against appellant even though it shows that the still was the property of and in the possession of his codefendant Borders, for it 5. shows that appellant was assisting in the use of the still, which act is expressly within the provision of the statute (§ 2719, supra) that "it shall be unlawful for any person to own or have *Page 179 in his possession or under his control, or to use, or to assistin using, any still or distilling apparatus for the unlawful manufacture of intoxicating liquor." The defense that Borders, Henderson and Williams were working in a field and had just discovered the still themselves when the sheriffs raided the place, and the defense that Williams 6. was on the premises as a farm hand hired to hoe corn and had no connection with the distilling operations, may either or both be reasonable explanations consistent with appellant's innocence, but this court in such a case cannot determine the credibility of witnesses, the weight of conflicting evidence, or whether the inference of guilt or innocence should be drawn where either of such inferences might reasonably be drawn from the evidence, those matters being exclusively for the jury or for the trial court when the trial is by the court.Winters v. State (1928), ante 48, 160 N.E. 294, and cases cited. There is substantial evidence, direct and inferential, which, standing alone, fairly establishes all the material facts necessary to constitute the crime charged, and the judgment is therefore affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427012/

This is an appeal from an award of the full Industrial Board of Indiana granting compensation to the appellee for the death of her husband Roscoe (Ross) Ziegner, on the grounds that the death of the decedent arose out of and in the course of his employment *Page 609 with the appellant Red Cab, Inc., and that the appellee was a dependent of said husband within the meaning of that term as used in the Workmen's Compensation Act of Indiana. On December 6, 1939, the appellee filed her Form 10 application for adjustment of a claim for compensation, with the Industrial Board of Indiana alleging therein that she was the wife of Roscoe (Ross) Ziegner who died July 22, 1939, as the result of injuries sustained on July 1, 1939, in an accident which arose out of and in the course of his employment with the appellant; that the injuries from which the death resulted were caused by a fall into an open, unguarded grease pit in the appellant's garage, fracturing the third to tenth ribs on the decedent's left side and also making a puncture wound on the left chest wall; and that the appellee is the only surviving dependent of said Roscoe (Ross) Ziegner and that she was dependent upon him for support at the time of his death and that his average weekly wage was $30.00. The appellant filed no answer to said application but it was submitted under the rule of the Industrial Board, which provides that if no answer be filed the allegations of the petition will be deemed to be denied. The hearing member awarded compensation. Upon an application for review before the full board it also made a finding to the effect that on July 1, 1939, while in the employ of the appellant at an average weekly wage of $10.01 Roscoe Ziegner suffered an injury as the result of an accident arising out of and in the course of his employment of which the defendant had knowledge, that by reason of said accidental injury said Roscoe Ziegner died July 22, 1939, and at the time of his death said Roscoe Ziegner left as his sole and only *Page 610 dependent his wife Edna L. Ziegner with whom he was not living at the time of his death but on whom the law of the state imposed support; and that the appellant pay compensation to the appellee at the rate of $8.80 per week commencing July 22, 1939, and during the period of her dependency, but not exceeding 300 weeks; that the appellant pay the reasonable and necessary medical, surgical, hospital and nurses services for the first 90 days following said injury and pay the statutory $150.00 burial expense and also pay the attorney fees of appellee's attorney in accordance with the schedule of attorney fees established by the Industrial Board, together with costs. The award was in accordance with the finding. From said award this appeal has been prosecuted, the error assigned and relied upon being that the award of the full Industrial Board is contrary to law. It has been stipulated between the parties that "on the 1st day of July 1939 plaintiff's decedent Roscoe (Ross) Ziegner was in the employ of defendant Red Cab, Inc.", and that "prior to the filing of the complaint in this cause a good faith effort was made to adjust the matter and the parties disagreed." Under the assignment of error the appellant makes two main contentions; first, that there is no competent evidence to sustain the finding that the appellee's decedent died as the result of an accident arising out of and in the course of his employment by the appellant and, secondly, that the evidence fails to establish the right of the appellee, who was living apart from her husband to have compensation awarded to her, for the assigned reason that it fails to show that she was justifiably living apart from him and that the law cast upon him the duty to support her. *Page 611 The assignment of error and the contentions made require an examination of the evidence. The evidence most favorable to the award tends strongly to show that the appellant is a taxicab company in Indianapolis. The decedent, the husband of the appellee, was one of its drivers and had been such for several years and still was one on the first of July, 1939. On that date, the decedent went to work for the appellant at about three o'clock in the afternoon and was supposed to work until about two o'clock in the morning. The appellant maintained substations at various points over the city from which its drivers called in to receive further orders. One of these substations was located at a former garage at 30th street and Highland Place, Indianapolis. The appellant had "inherited" a lease to this building from the Hoosier Cab Company. This building was approximately one hundred twenty feet long, seventy-five feet wide, and had a toilet in the southwest corner. There was also an open grease pit about thirty-five feet from the toilet on the east side of the building and about seventy-five feet from the front of the building. The building was unlighted, but there were French doors on the east wall near the grease pit. The only place in the building in which water was used was the toilet already mentioned as being in the southwest corner of the building. The appellant company contracted with the Water Company and issued checks to it for water service for this building. In the appellant's said building there was a typewritten sign saying, "Please Use Toilet in Rear of Building." There were front and back entrances to this building, and when these were open, it was possible for a cab to drive completely through the building. There was a private telephone on the front and outside of this building which the cab drivers used. This phone was a private *Page 612 phone and was connected directly with the appellant company's offices without going through any central system. Cab drivers at one time parked outside of this building to use the phone, but, following complaints about the noise, the appellant company opened the front and back doors of the building just described, so that the drivers could drive completely through the building, going from the south to the north, and, on arriving near the north of the building, could wait for orders or calls from the appellant's dispatcher. On the night in question, sometime in the early evening the decedent called the appellant's offices from the phone on the outside of the building and "checked in" with his name and driver's number. About ten minutes later, he again called in. It was possible for the telephone operator to know the station from which he called without his saying which station it was. On his second call, he reported that he had fallen into the grease pit, and, after the operator asked him how badly he was hurt, she immediately notified the night superintendent of the appellant and was then ordered to get in touch with the night supervisor of the appellant and send him to investigate the accident. The dispatcher then called a cab driver at a substation near the one above described and ordered a cab driver to take the decedent to the hospital. At the hospital, the night supervisor for the appellant who had been sent by the night superintendent to investigate the accident, asked the decedent what had happened, and the latter told him that he had fallen into the grease pit at the said building. He said that he had done this as he was intending to go back to the toilet. Upon arrival at the hospital, the decedent was examined by a doctor who found a small laceration on the left side of the front chest wall and found that the *Page 613 decedent had sustained a crushing injury to the chest involving fractures of the second to the tenth ribs, with double fractures of the eighth and ninth ribs. There was some free air between the skin in the left armpit region. The small wound appeared to come from a nail file which the patient had in his pocket at the time he fell in the pit. The patient reported to the doctor that he had sustained the crushing injuries above set out when he had fallen into the grease pit in the said building, when he had gone to the back of the building to void. The appellant had an agent whose duty it was to serve as claim agent, insurance agent, and safety director and to make out reports of injuries to employees of the defendant company. This agent made out such a report in longhand concerning the accident above described and sent it to the Bituminous Casualty Corporation in Terre Haute, but did not send it to the Industrial Board. The information on which this report was based was that obtained from the appellant's night superintendent and from the decedent. The said report was made while said agent was performing his duties of obtaining information for making out the report on the afternoon of the day following the accident. The decedent remained at the hospital until about the 12th of July, when he was permitted to go home but was not permitted to go to work. On the 15th of the same month, the patient 1, 2. was re-admitted to the hospital, after being sent from his home in a private ambulance. Examination by a doctor at that time disclosed pneumothorax, meaning that the lung had been partially collapsed on the left side. On the 22nd of July, the patient died from a sudden massive collapse of the left lung, due to the previously sustained injury to that lung. The death of decedent, in *Page 614 the opinion of the doctors, was caused by or connected with the injury which the patient received on the first of July, 1939, by reason of his fall into the pit in the appellant's building. It is contended by the appellant that all of the above evidence is hearsay and therefore not competent. While said evidence may be said to be in the general field of hearsay evidence, yet in Workmen's Compensation cases the strict hearsay rule has been relaxed and modified in a situation such as the instant case presents where the employer has all sources of information at his command when a report of the accident is made and has ample opportunity to investigate and be satisfied as to the facts. This was the situation here as disclosed by the evidence. An investigation was immediately made by the employer after the accident was reported to it which report was within a few minutes after the accident. Certainly the evidence of the telephone operator of the appellant who received the report from the deceased and whose duty it was to receive such reports from the cab drivers and to issue orders to them was admissible as to the duties she performed with respect to this accident after it was reported to her. She testified that she sent another of the appellant's cabs to take the decedent to the hospital and notified the cab company's officials of the accident. As explaining this evidence and in connection with it and her report to her employer she was allowed to testify to the fact that the decedent at that time (about ten minutes after the accident) told her that he had fallen into the grease pit in the building and had been hurt. We think that that evidence was properly admitted. See: Columbian Enameling and Stamping Co. v. Cramer (1926),86 Ind. App. 164, 156 N.E. 467. When the above evidence given by the telephone operator and dispatcher of the appellant is considered together *Page 615 with the physical facts testified to concerning the injury 3. and death of the decedent we have no hesitancy in holding that the finding of the board that the decedent met his death by reason of an accident arising out of and in the course of his employment by the appellant, is sustained by competent evidence. See the following cases: Insurance Company v.Mosley, 75 U.S. 397, 19 L.Ed. 437; Southern R. Co. v.Wilkins, Admx. (1932), 95 Ind. App. 130, 178 N.E. 454;Kauffman v. Bardo (1925), 83 Ind. App. 482, 148 N.E. 496;Southern Extract Co. v. Green (1939), 103 F.2d 232. We do not deem it necessary to give consideration to the other admitted items of evidence claimed to be hearsay. The appellant next argues that there is not sufficient evidence to sustain the finding of the board that the appellee is a dependent. She was living apart from the decedent at the 4. time of his death under the following circumstances: They were married in 1902; for the four years preceding the separation, he had been unemployed most of the time, although he had attempted to get work. He and his wife and his minor daughter had all been supported by his father-in-law. After four years, however, the funds of the father-in-law were becoming exhausted. During these four years, the decedent had not supported either his wife or his minor daughter. However, shortly before the actual separation, the decedent did obtain employment with the G.L. Ramey Company as an insurance agent. Even though employed, he still refused to contribute to the support of his wife and minor daughter. His wife asked him what he intended to do towards supporting them, and he replied, "Nothing." The fact that the daughter of the decedent and the appellee was still in school and that the other children were not *Page 616 in a position to help financially made it imperative that the appellee do something to remedy their financial situation, and, as her request for support proved unavailing, she suggested to the decedent that renting a room might be one possibility. The decedent moved out and left the appellee in their last marital domicile, where she is still living with the children of these parties. The appellee never again saw the decedent alive. He did not correspond or attempt to get in touch with her in any way. At no time before or after the separation did the decedent ever accuse the appellee of any conduct which would justify separation, and the appellee did not at any time engage in any conduct which would have justified a separation. During the time that she and the decedent were living together, she continued to mend the decedent's clothes, keep his room in order, and get his meals. The appellee did not at any time become divorced from the decedent. There is evidence that after the decedent abandoned his wife, the appellee, and their children, that he never at any time offered to return or made any attempt to establish a home for them or offered them any support whatever. The board was fully warranted in its conclusion that the appellee was justifiably living apart from the decedent. The award is not contrary to law and is affirmed with the usual 5 per cent statutory penalty. NOTE. — Reported in 29 N.E.2d 330. *Page 617

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427013/

The appellees appeared specially in this cause, and filed a verified motion with briefs in support thereof to dismiss this appeal. The appellant never filed any answer to this 1, 2. motion nor briefs in opposition thereto. The right of an appeal in this state is given by statute or it does not exist, Lovett v. Citizens etc. Bank (1928), 200 Ind. 608,165 N.E. 545; and whether the parties litigant have complied with the statutory provisions setting out the procedure to be pursued in perfecting an appeal, thus properly invoking the jurisdiction of this court, is a question which we must determine whether raised by the parties or not. Thompson v. A.J. Thompson, etc., Co. (1923), 81 Ind. App. 442, 144 N.E. 150. The transcript was filed in this court October 1, 1935. It and all proceedings had in this court since it was filed herein show conclusively that no attempt was ever made nor steps taken by the appellant to perfect this proceeding as a vacation appeal. If the appellant has any standing in this court at all, it must be upon the basis of a term time appeal. Under Section 2-3204 Burns 1933, Section 480 Baldwin's Ind. St. 1934, as amended Acts 1935, ch. 253, p. 1277, in order to perfect a term time appeal the following steps must be taken: (1) 3. Time must be asked during the term at which the judgment was rendered to file an appeal bond and it must be granted during that term; (2) either the bond must be filed and the sureties thereon approved by the court during that term or the penalty of the bond and the time allowed for filing it must be fixed and the surety or sureties named and approved by the court during term; (3) the bond with the named surety or sureties approved by the *Page 385 court during term must be filed within the time allowed; (4) the transcript of the record must be filed in the office of the clerk of the Supreme Court within sixty days after the filing of the bond, unless an extension of time for filing the same is obtained in the manner provided by statute. Lovett v. Citizens etc.,Bank, supra; Van Cleave v. Wolf (1934), 98 Ind. App. 650,190 N.E. 371. The only steps taken to perfect a term time appeal appear in the record after the entry showing the overruling of appellant's motion for a new trial in the following language "and now 4-6. said Lawrence McCloud prays an appeal to the Appellate Court of Indiana which is granted, and sixty days are given and granted to said Lawrence McCloud in which to file bond and bills of exceptions, and appeal bond is fixed in the penalty of $100." This entry was made upon the 18th day of June, 1935, during the April Term, 1935, of the Putnam Circuit Court. What purports to be an appeal bond was filed on August 3, 1935, during vacation of said court. It is so apparent from the facts presented by the record before us that the appellant has failed to perfect a term time appeal as provided in the section of the statute above referred to that further comment is unnecessary. This court does not have jurisdiction of this cause except for the purpose of ordering a dismissal thereof. As there is no cause before us for consideration, there can be no occasion for an oral argument. The request of appellees for an oral argument is therefore denied and this appeal is dismissed.Willett v. Larch (1920), 189 Ind. 410, 127 N.E. 546. *Page 386

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/7247116/

WAVERLY D. CRENSHAW, CHIEF UNITED STATES DISTRICT JUDGE This is a putative class action brought by James and Lonnie McKinnie, and Larry and Tina Roberts on behalf of State Farm Fire and Casualty Company ("State Farm") insureds. The core claim is that State Farm refuses to pay prime contractor's overhead and profit associated with the estimated cost to reconstruct a structure where the covered loss is $25,000 or more. State Farm has filed a Motion to Dismiss (Doc. No. 29) that has been fully briefed by the parties (Doc. Nos. 30, 31 & 32). For the reasons that follow, the Motion will be granted in part and denied in part. I. Factual Background The factual allegations are drawn from the controlling First Amended Complaint. Construed in Plaintiffs' favor, those facts follow, and will be supplemented where necessary for purposes of the legal analysis. A. Plaintiffs collectively owned two commercial structures (connected by a breeze way) located at 650 and 654 North Spring Street in Sparta, Tennessee. Those structures are insured against property loss through an insurance policy ("Policy") issued by State Farm. The Policy contained an endorsement providing coverage on an "actual cash value" valuation basis, i.e. replacement cash value less depreciation. (Doc. No. 25, First Amended Complaint ¶¶ 6, 8, 10, 12). On July 14, 2015, Plaintiffs' buildings suffered extensive damage as a result of a hail storm. The damage affected the entire roof of both structures (more than 200,000 square feet), necessitating their replacement, as well as the replacement of skylights, ridge end caps, ridge vents, ridge cap flashing, eave trim, gable trim, and other items. (Id. ¶ 13). Two days after the storm, State Farm inspected the damage and determined the loss was covered under the Policy. Thereafter, State Farm issued multiple estimates for the property damage utilizing Xactimate, a software estimating program. (Id. ¶¶ 15, 16). The most recent estimate was received by Plaintiffs on June 2, 2017. State Farm *1141determined that the replacement cost value for the damage to the building located at 654 North Spring Street was $556,354.26, which was reduced to $479,993.39 after depreciation. According to the estimate, reconstruction would require approximately 55 hours of "commercial supervision/project management" time, as defined by the Xactimate software program. (Id. ¶¶ 18, 22). State Farm also determined that the replacement cost value for the property damage at 650 North Spring Street was $419,768.97, which was reduced to $362,932.66 after depreciation. According to this estimate, reconstruction for this building would also require approximately 55 hours of "commercial supervision/project management" time. (Id. ¶¶ 19, 23). "Commercial supervision/project management" time is defined in the Xactimate software as the time required "to manage commercial jobs where Supervision/Project Management is needed to coordinate the work of subcontractors, or perform other project management duties." Further, "[a] Superintendent/Project Manager may complete tasks such as, but not limited to, create/maintain project schedules, coordinate/meet trades, order materials, inspect job sites, obtain permits, meet with inspectors, etc." (Id. ¶ 24). On the cover page of each estimate, State Farm provides written guidance concerning the Structural Damage Claim Policy." It stated that, "[d]epending upon the complexity of your repair, our estimate may or may not include an allowance for general contractor's overhead and profit. If you have questions regarding general contractor's overhead and profit and whether general contractor services are appropriate for your loss, please contact your claim representative before proceeding with repairs." (Id. ¶ 21). Plaintiffs contacted Titan Exteriors, Inc. for an estimate of the cost to repair the damaged roofs. Titan is licensed by the Tennessee Board of Licensing Contractors to act as a "prime contractor" with respect to commercial building reconstruction in Tennessee. (Id. ¶¶ 34, 35).1 Titan, which also used Xactimate, came up with an estimate significantly higher than that of State Farm. When overhead and profit are included, the difference was more than $270,000. (Id. ¶ 94). Even without overhead and profit, Titan's figure was more than $60,000 higher because State Farm failed to include eave trim, light fixtures, pipe boots and other items in its estimate, and failed to provide payment for temporary repair costs incurred in replacing skylight panels that were needed to prevent additional damage to the roof deck and interior of the building. (Id. ). Plaintiffs further allege that, as result of State Farm's failure to promptly adjust and pay the amounts owed, they have been damaged because of the increase in pricing. (Id. ¶ 96). Plaintiffs sought payment for the omitted licensed prime contractors' overhead and profit from State Farm. State Farm has refused to pay those amounts. B. Both with respect to their individual claims and that of the class they seek to represent, Plaintiffs contend that State Farm's pattern and practice is to fail to pay overhead and expenses when a prime contractor is required by Tennessee law to perform repairs. It does this by manipulating Xactimate. That is, even though Xactimate allows an insurance adjuster to *1142choose whether to provide full payment for a prime contractor's overhead and profit when calculating replacement cost value, State Farm intentionally changes the settings to omit overhead and profit for a prime contractor. (Id. ¶¶ 50-55). In so doing, State Farm eliminates "payments for all overhead that is not directly attributable to an individual construction project, such as general expenses, payroll expenses, office and building rent and maintenance, management and ownership wages and benefits, utilities, office supplies, salaries for office and sales personnel, office equipment, payroll and construction related software, the costs of ongoing licensure, training of employees, full-time employment of a qualifying agent,2 audit, accounting, tax and legal fees, advertising, and as profit." (Id. ¶ 56). Instead of paying proper overhead and profit when a prime contractor is necessary, State Farm pays only "job-related" overhead. Such overhead is the type incurred by a single, unlicensed tradesman or a small, unlicensed subcontractor working a job and is directly related to the job. Examples include a temporary power line to a jobsite, or the depreciation of a tradesman's hand-tools. It does not include the overhead, such as the retention of a QA, as well as having the necessary ongoing business liquidity and business assets unrelated to a job. (Id. 55). Plaintiffs seek to represent a class consisting of: [a]ll persons and legal entities insured under a State Farm homeowner or property policy insuring property in Tennessee, and for these policyholders: (1) State Farm determined that the policyholder suffered direct physical loss to a dwelling or other structure located in Tennessee that State Farm determined was covered by the terms of the policy; (2) the estimated costs to make the repairs caused by the covered loss met or exceeded one or more of the thresholds set by the Tennessee Contractor's Licensing Act and mandate that those performing work to repair or replace the damaged property hold a valid Tennessee contractor's license and be a "prime contractor"; and (3) State Farm refused to pay the policyholder for overhead and profit as more fully described herein in its adjusting/settlement of the claim. (Id. ¶ 70). II. Standard of Review In considering a motion to dismiss under Rule 12(b)(6), the Court "construe[s] the complaint in the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) ; Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). Plaintiff need only provide "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests," Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), and the Court must determine only whether "the claimant is entitled to offer evidence to support the claims," not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ). Nevertheless, the allegations "must be enough to raise a right to relief above the speculative level," *1143Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In short, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679, 129 S.Ct. 1937 ; Twombly, 550 U.S. at 556, 127 S.Ct. 1955. III. Legal Discussion The First Amended Complaint is in four counts: Count I alleges breach of contract for State Farm's failure to pay the prime contractor's overhead; Count II alleges breach of contract unrelated to State Farm's refusal to pay overhead; Count III seek a declaration that State Farm's refusal to pay the amounts contractually owed Plaintiffs violates the Policy; and Count IV alleges that State Farm has acted in bad faith, subjecting them to a twenty-five percent penalty. In addition, Plaintiffs seek punitive damages in an amount equal to nine times their actual damages. A. Count I-Breach of Contract-Failure to Pay Prime Contractor's Overhead and Profit Plaintiffs' breach of contract claim is brought on behalf of themselves, as well as the class. The Court considers the class claim first, which is the only one requiring extended discussion. 1. Class Claim As a preliminary matter, the Court agrees with State Farm that Plaintiffs' class claim has been a moving target. As initially filed, Count I sought to recover for the failure to pay contractor's overhead and profit. In substance, Count I alleged: 62. State Farm failed to pay for contractor's overhead and profit even when the size of the underlying project required contractor licensure under Tennessee law by meeting or exceeding the TCLA Thresholds.3 63. State Farm breached its contractual duty to pay Plaintiffs and members of the proposed class the full value of their claims by withholding contractor's overhead and profit under these limited circumstances. 64. State Farm's actions in breaching its contractual obligations to Plaintiffs and members of the proposed class benefitted and continue to benefit State Farm. Likewise, State Farms Actions damaged and continue to damage Plaintiffs and members of the proposed class. (Doc. No. 1-2 ¶¶ 62-64). After State Farm filed a Motion to Dismiss on the grounds that Plaintiffs' class allegations failed to state a claim because "settled authority provides that GCOP [General Contractor Overhead and Profit] should be included in an actual cash value ("ACV") estimate of repair costs when it is reasonably likely that the services of a general contractor will be required," (Doc. No. 19 at 1), Plaintiffs responded by filing an Amended Complaint. This time the substance of the breach of contract claim on behalf of the class read as follows: 102. State Farm failed to pay prime contractor's overhead and profit even when the size of the underlying project required licensure under Tennessee law by meeting or exceeding the TCLA Thresholds. 103. State Farm breached its contractual duty to pay Plaintiffs and members *1144of the proposed class the full value of their claims by withholding prime contractor's overhead and profit under these limited circumstances, in the manner described herein. 104. State Farm's actions in breaching its contractual obligations to Plaintiffs and members of the proposed class benefitted and continue to benefit State Farm. Likewise, State Farm's actions damaged and continue to damage Plaintiffs and members of the proposed class. (Doc. No. 25 ¶¶ 102-104). This version of Plaintiffs' class claim was reiterated in the Initial Case Management Order filed two weeks after the First Amended Complaint. There, Plaintiffs alleged that "State Farm has a custom and practice of consistently refusing to pay prime contractor's overhead and profit in its adjustment of property damage claims that exceed the thresholds of the Tennessee Contractor Licensing Act requiring licensure to act as a 'prime contractor' under Tenn. Code 62-6-102(6)." (Doc. No. 28 at 1). Nevertheless, in response to the present (second) Motion to Dismiss in which State Farm argued that (1) a contractor's GCOP is includable only when the insured would reasonably be expected to hire a general contractor, and (2) the reasonable necessity standard is not susceptible to class resolution, Plaintiffs couched their claim differently. Now, they argue that State Farm steadfastly refuses to pay for "licensure-related overhead" when a licensed prime contractor performs repairs. The language of the First Amended Complaint obviously controls. Hayward v. Cleveland Clinic Found., 759 F.3d 601, 617 (6th Cir. 2014) (collecting cases for the proposition that an amended complaint control and renders the original complaint a nullity). However, the Court has set forth the various positions Plaintiffs have taken because they tend to show that, while they now dress their class allegations differently, the claim is cut from the same cloth as that originally advanced. a. "A majority of courts...has determined that an actual cash value payment includes a general contractor's overhead and profit charges in circumstances where the policyholder would be reasonably likely to need a general contractor in repairing or replacing the damaged property in issue." Mills v. Foremost Ins. Co., 511 F.3d 1300, 1306 (11th Cir. 2008) (citing Tritschler v. Allstate Ins. Co., 213 Ariz. 505, 144 P.3d 519, 529 (2006) ; Salesin v. State Farm Fire & Cas. Co., 229 Mich.App. 346, 581 N.W.2d 781, 789-91 (1998) ; and Gilderman v. State Farm Ins. Co., 437 Pa.Super. 217, 649 A.2d 941, 945 (1994) ). That is the law in Tennessee as well, Parkway Assoc. LLC v. Harleysville Mut. Ins. Co., 129 Fed.Appx. 955 (6th Cir. 2005), and Plaintiffs have pointed to nothing in the TCLA that changes this law. Under the TCLA, any person engaged in "contracting" is required to submit "evidence of qualification to engage in contracting" and "shall be licensed[.]" Tenn. Code Ann. § 62-6-103(a)(1). A license is required for any person or entity who undertakes to, attempts to, or submits a price or bid or offers to construct, supervise, superintend, oversee, schedule, direct, or in any manner assume charge of the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down, or furnishing labor to install material or equipment for any building, highway, road, railroad, sewer, grading, excavation, pipeline, public utility structure, project development, housing, housing development, improvement, or any other construction undertaking for which the total cost of the same is twenty-five *1145thousand dollars ($25,000) or more. Id. § 102(3)(A); accord Kyle v. Williams, 98 S.W.3d 661, 664 (Tenn. 2003). The TCLA does not refer to a "general contractor" or specifically regulate general contractor services. Instead, the Act defines "contractor" to "include a prime contractor, electrical contractor, electrical subcontractor, mechanical contractor, mechanical subcontractor, plumbing contractor and plumbing subcontractor, masonry contractor, and roofing subcontractor where the total cost of the roofing portion of the construction project is twenty-five thousand dollars ($25,000) or more[.]" Tenn. Code Ann. § 62-6-102(4)(A)(ii). Further, "[i]f the cost of a project exceeds twenty-five thousand dollars ($25,000), 'contractor' also includes a construction manager of any kind, including, but not limited to, a residential construction manager, construction consultant [and] an architect or engineer...other than normal architectural or engineering services[.]" Id. § 102(4)(A)(iii). b. Against the foregoing backdrop, Plaintiffs argue that State Farm wrongfully refuses to pay "overhead and profit associated with obtaining and maintaining a license." (Doc. No. 31 at 4). As factual support, Plaintiffs rely on the following allegations from the First Amended Complaint: Subject to certain monetary limitations not at issue here, only a licensed contractor can contract with a building owner in the State of Tennessee; By statute, the State calls these licensed contractors "prime contractors"; Contractor licensure in the State of Tennessee requires a contractor to incur several specific categories of overhead costs. These categories of overhead, all of which are required by licensure; State Farm uses a commercially available computer software program to pay for property damage claims, called Xactimate; Xactimate allows for inclusion or exclusion of different categories of overhead, such as "job-related overhead" and "generalized" overhead; and When adjusting property claims that require licensure, State Farm has manipulated Xactimate so as to exclude overhead for "the costs of ongoing licensure ," "any of the overhead costs associated with Tennessee licensure " and the "overhead and profit needed to operate the business of a licensed prime contractor." (Id. ) (emphasis in original, internal citations omitted). Leaving aside that Plaintiffs fail to explain what is meant by "licensure-related overhead and profits," fail to explain how the same would be calculated, and fail to allege any facts that it is the custom and practice in Tennessee for "prime contractors" to charge of such expenses, their class claim fails for at least four reasons. First, Plaintiffs mistakenly equate a "prime contractor" with a "general contractor" by citing cases like Winter v. Smith, 914 S.W.2d 527 (Tenn. Ct. App. 1995). While the Tennessee Court of Appeals in Winter stated that "[t]he traditional construction relationship involves a direct contractual relationship between the owner and the general contractor who is also referred to as the prime contractor, the principal contractor, or occasionally simply as the contractor," the court went on to observe: The general contractor performs the work with his own forces, through subcontractors, or with a combination of the two. Subcontractors have contracts with the general contractor, not the owner, and the general contractor is responsible *1146for scheduling, coordinating, and supervising the subcontractors' work. Winter v. Smith, 914 S.W.2d 527, 539 (Tenn. Ct. App. 1995) ; see also, Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798, 806 (Tenn. Ct. App. 1988) ("A general contractor is one who contracts with the owner of a property to perform a complete schedule of construction or other work, and a subcontractor is one who is engaged by the general contractor to perform a part of the work undertaken by the general contractor."). A prime contractor may or may not be a "general contractor" as reflected by the TCLA definition of a "prime contractor," more specifically, as "one who contracts directly with the owner." Tenn. Code Ann. § 62-6-102(6). Thus, a "prime contractor" could be a "general contractor" who contracts with the owner to hire and supervise the work of various subcontractors, or it could be a contractor (like a roofer or plumber) who simply contracts with the owner to perform all of the necessary work. See Gilderman, 649 A.2d at 945 ) (noting that "there clearly are certain types of property damage claims which will not require the services of a general contractor," such as "where the loss involves only a damaged pipe, and a plumber alone normally would be called to perform all necessary repairs"). Second, the TCLA provides for a single "contractor" license and does not differentiate between a "contractor," a "general contractor," or a "prime contractor." While Plaintiffs allege that "Titan's licensure" permits it "to act as a 'prime contractor,' " that license-photocopied into the First Amended Complaint-simply identifies Titan as a "Contractor." (Doc. No. 25, ¶ 35). The license does not indicate that Titan is a "prime contractor," or that it is entitled to any extra benefits by virtue of such a title. Third, insofar as Plaintiffs now argue that the class is entitled to "licensure-related overheard and profit," this claim is not moored to their individual claim. In Count I, Plaintiffs "individually assert that they are entitled to payment of prime contractor's overhead and profit from State Farm because a prime contractor would be utilized to make to make repairs to their insured property in light of the scope, nature, and complexity of the work necessary as a result of the Loss, without regard to the requirements of the TCLA." (Doc. No. 25 ¶ 108). That is, "irrespective of the application of the TCLA, State Farm's failure to pay Plaintiffs['] prime contractor's overhead and profit constitutes a breach of contract." (Id. ¶ 109). In support of this "alternative theory," Plaintiffs attached Titan's second estimate to the First Amended Complaint. This estimate contains line items for overhead and profit of ten percent, which are typical of a general contractor overhead and profit claim. See Windridge of Naperville Condo. Ass'n v. Philadelphia Indem. Ins. Co., No. 16 C 3860, 2017 WL 372308, at *2 (N.D. Ill. Jan. 26, 2017) (stating that "it is industry custom for a general contractor making repairs to charge '10 and 10,' or 10% for profit and 10% for overhead on top of the amounts the general contractor pays to the subcontractors," but "if only a single tradesman is required to complete a job, overhead and profit are not charged"); Mills v. Foremost Ins. Co., 269 F.R.D. 663, 668-69 (M.D. Fla. 2010) (noting parties' position that "the custom and practice in the insurance industry in Florida, and the rest of the United States...was to include ten percent (10%) overhead and ten percent (10%) profit in the insurer's estimates on all claims in which three or more trades were used to complete repairs"). Saying that an insured is entitled to overhead and profit due to the nature, *1147circumstances, and complexity of the work is markedly different from saying that overhead and profit is recoverable simply because more than $25,000 is involved.4 However, a class claim must be tethered to the underlying individual claim. See Fed. R. Civ. P. 23(a)(3) (requiring that claims or defenses of the representative party be typical and stating that "a plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory"). Fourth, while Plaintiffs claim that State Farm "misconstrues Parkway Associates [by] arguing that the TCLA has nothing to do with whether overhead and profits is owed," and "contorts the opinion" by claiming it applies only to general contractors, (Doc. No. 31), it is Plaintiffs who read the decision too broad. They argue that Parkway stands for the proposition that insurers must pay overhead whenever it is reasonable that any contractor makes repairs totaling $25,000 or more, but it is clear the Sixth Circuit was speaking about the use of a "general contractor." Parkway involved an appraiser's award that "included an allocation for 'general contractor's overhead and profit' of $61,520 for replacement costs and $57,283 for actual case value." 129 Fed.Appx. at 959. The district court found that the insured was not entitled to overhead and profit because it intended to utilize the services of an unlicensed general contractor. The Sixth Circuit reversed on this point, stating that the TCLA "says nothing to the issue of whether an insured who contracts to receive the actual cash value of its lost must deduct overhead and profits because it plans to hire an unlicensed contractor." Id. at 962. Ultimately, the Sixth Circuit held that the actual cash value of a loss "includes contractor's overhead where a contractor would reasonably utilized to make repairs." Id. at 963. In context, however, this was clearly shorthand for the use of the term "general contractor." Not only did the appraisal award under review deal with overhead and profit for a general contractor, the Sixth Circuit relied on Gilderman's observation that there are some types of losses for which a general contractor might not be needed, but " '[t]here are many instances to where the insured reasonably would be excepted to call a contractor, especially where there is extensive damage.' " Id. (quoting Gilderman, 649 A.2d at 945 ). Again, this is clearly shorthand for "general contractor" because the quoted language in Gilderman was immediately preceded by the observation that "there are types of property damage where a homeowner would use the services of a general contractor," and immediately followed by the observation that an insured would reasonably consult such a contractor where the repairs "[r]equire the use of more than one trade specialist." Gilderman, 649 A.2d at 945.5 Subsequent case law confirms this reading of Parkway . For example, in Parr v. Allstate Ins. Co., 2014 WL 5210902, at *4 (E.D. La. Oct. 14, 2014), the court observed that "[o]verhead and profit is a pass-through cost intended to reimburse homeowners for the expense of using a general contractor," and cited Parkway for *1148the proposition that the focus remains on whether a general contractor is reasonably required for the scope of the work. Other courts read Parkway the same way. See Nat'l Sec. Fire & Cas. Co. v. DeWitt, 85 So.3d 355, 374 (Ala. 2011) (citing Parkway for the proposition that "[w]hen an insured makes a claim on an actual cash value basis, defendant is required to include GCO & P in the ACV payment when the services of a general contractor are reasonably likely to be required"); Greenspoint Inv'rs, Ltd. v. Travelers Lloyds Ins. Co., 2015 WL 965730, at *5 (S.D. Tex. Mar. 3, 2015) (citing Parkway for the proposition that if the facts show insured "had incurred or would incur the expense of a general contractor, an award of overhead and profit was appropriate in calculating ACV"). Plaintiff s'class claims for breach of contract will be dismissed for failure to state a claim upon which relief can be granted. 2. Individual Claim While Parkway supports dismissal of Plaintiffs' class claim, it also serves to bolster their individual claim. Parkway teaches that overhead and profit is recoverable by the insured where it is reasonable that a general contractor would be needed. Plaintiffs' allegations more than support this claim. Plaintiffs allege that the scope nature and complexity of the work warrant a general contractor. By State Farm's own estimate, the loss was nearly $1,000,000 (minus applicable depreciation and the deductible), and completion of the project would take 20 weeks for both buildings. (Doc. No. 25, First Amended Complaint ¶ 92). Further, State Farm itself arguably contemplated the possibility of the need for a general contractor when it wrote that, "[d]epending upon the complexity of your repair, our estimate may or may not include an allowance for general contractor's overhead and profit," and then estimated that reconstruction of the loss would require approximately 55 hours of "commercial supervision/project management time" for each of the two buildings. (Id. ¶¶ 21-23). Further, the second estimate from Titan roofing (Doc. No. 29-2) that State Farm attached to its Motion to Dismiss, and the State Farm Xactimate print-out (Doc. No. 31-1) that Plaintiffs attached to their reply, suggest the use of multiple trades, including demolition laborer, equipment operators, electrician and roofer. There is more than enough in the First Amended Complaint6 to support Plaintiffs' individual breach of contract claim based on State Farm's refusal to pay overhead and profits. B. Count II-Breach of Contract-Other Contractual Claims The allegations in the First Amended Complaint are also more than sufficient to support Plaintiffs' claim that State Farm breached the insurance policy contract by failing to pay for other items beyond profit and overhead. Specifically, Plaintiffs allege: *114995. Although a portion of the differences between the estimates of State Farm and Titan are related to State Farm's failure to pay overhead and profit, other differences include, but are not limited to, the following: a. Errors in State Farm's measurements, scope, and quantities; b. State Farm's omission of several items from its estimates, including eave trim, light fixtures, pipe boots, etc.; and c. State Farm's failure to pay for temporary repair costs incurred by Plaintiffs to replace skylight panels broken by hail in order to promptly mitigate losses and to prevent further damage to the roof deck and interior of the building. The temporary repairs totaled $9,518.79 at 654 North Spring Street (the "Front Building") and $9,409.23 at 650 North Spring Street (the "Rear Building"). 96. Additionally, as result of State Farm's failure to promptly adjust and pay the amounts owed, Plaintiffs have been further damaged as a result of increases in pricing. (Doc. No. 25, First Amended Complaint ¶ 95-96). State Farm characterizes the foregoing as "vague allegations," and argues that "plaintiffs must separately identify each aspect of their insurance claims that they assert was not paid, and explain how the alleged non-payment breached the policy." (Doc. No. 30 at 16). It cites no authority for that proposition, however. Rule 8 of the Federal Rules of Civil Procedure, in contrast, "ensures simply that each party has adequate notice of the other's claims and an opportunity to meet them." Lawson v. Huerta, 692 Fed.Appx. 790, 794 (6th Cir. 2017). The Rules "provide for liberal notice pleading at the outset of the litigation because '[t]he provisions for discovery are so flexible' that, by the time a case is ready for summary judgment, 'the gravamen of the dispute [has been] brought frankly into the open for inspection by the court.' " Tucker v. Union of Needletrades, Indus. & Textile Emp., 407 F.3d 784, 788 (6th Cir. 2005) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ). C. Count III-Declaratory Judgment Noting that a request for declaratory or injunctive relief is a remedy and not a cause of action, State Farm argues dismissal of Count III is warranted because Plaintiffs' breach of contract claim fail. Because the Court finds differently in regard to Plaintiffs' individual capacity breach of contract claim, dismissal of their request for a declaratory judgment would be premature. D. Count IV-Statutory Bad Faith Tennessee law imposes a 25% penalty on insurers who fail to pay a reimbursable loss within 60 days of a demand by the insured party, and requires the insurer to pay the claimant's reasonable attorney's fees incurred in contesting the insurer's bad faith denial. Tenn. Code Ann. § 56-7-105. "In order to recover bad faith penalties under this statute, a plaintiff must prove: '(1) the policy of insurance must, by its terms, have become due and payable, (2) a formal demand for payment must have been made, (3) the insured must have waited 60 days after making demand before filing suit (unless there was a refusal to pay prior to the expiration of the 60 days), and (4) the refusal to pay must not have been in good faith.' " Ginn v. American Heritage Life Ins. Co., 173 S.W.3d 433, 443 (Tenn. Ct. App. 2004) (quoting Stooksbury v. Am. Nat. Prop. & Cas. Co., 126 S.W.3d 505, 519 (Tenn. Ct. App. 2003) ). In seeking dismissal of the bad faith claim, State Farm argues that "Plaintiffs *1150have failed to properly allege either a formal demand or bad faith by State Farm." (Doc. No. 30 at 18). At this point in the proceedings, however, the allegations in the First Amended Complaint are to be construed liberally in favor of Plaintiffs, and all factual allegations are presumed to be true. In re Ferro Corp. Derivative Litig., 511 F.3d 611, 617 (6th Cir. 2008) ; Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). Those allegations are sufficient to state a bad faith claim. In Count IV, Plaintiffs specifically allege State Farm's refusal to pay was arbitrary and capricious, and that "more than sixty (60) days have passed since a formal demand has been made on State Farm and full payment has not been made for the Loss[.]" (Doc. No. 25, First Amended Complaint ¶ 126). They also allege that State Farm acted with conscious disregard of their rights in: (1) intentionally failing to inform Plaintiffs of their rights under the Policy; (2) failing to attempt in good faith to effectuate a prompt and equitable settlement of the claim when liability was clear; (3) refusing to pay Plaintiffs in full without conducting a reasonable investigation; (4) refusing to appropriately adjust and investigate Plaintiffs' claim and to obtain all available information before alleging it had no further obligation; (5) failing to promptly provide Plaintiffs with reasonable and accurate explanations for its refusal to pay their claims in full; (6) failing to pay all amounts due Plaintiffs with no reasonable or justifiable basis; and (7) unjustifiably refusing to pay the claim for its own financial preservation. (Id. ¶¶ 124-126). Accordingly, Count IV will not be dismissed. E. Prayer for Relief-Punitive Damages As both parties recognize, there is a split of authority on the issue of whether punitive damages are available in breach of insurance contract cases. In Heil Co. v. Evanston Ins. Co., 690 F.3d 722, 728 (6th Cir. 2012), the Sixth Circuit held that the bad faith statute, " Tenn.Code Ann. § 56-7-105 [,] precludes punitive damages...because it provides the exclusive extracontractual remedy for an insurer's bad faith refusal to pay on a policy." Shortly thereafter, in Riad v. Erie Ins. Exch., 436 S.W.3d 256, 276 (Tenn. Ct. App. 2013), the Tennessee Court of Appeals disagreed with that conclusion and held that, in an insurance dispute, a "Plaintiff was entitled to recover any damages applicable in breach of contract actions and was not statutorily limited to the recovery of the insured loss and the bad faith penalty." Since then, the federal district courts in Tennessee have divided on the question, with some following Heil, see e.g., Jeffers v. Metro. Life Ins. Co., 2014 WL 347847, at *4, 2014 U.S. Dist. LEXIS 12658, at *9-10 (M.D. Tenn. Jan. 2, 2014), and others following Riad, see e.g., Am. Nat'l Prop. & Cas. Co. v. Stutte, 2015 WL 1650933, at *4 (E.D. Tenn. Apr. 14, 2015). The existence of both Heil and Riad presents an interesting question in diversity cases regarding the intersection between following controlling circuit authority, on the one hand, and attempting to divine how the state's highest court would decide the issue, on the other. However, this is a question the Court need decide because both Heil and Riad were decided on facts that predated the enactment of the Tennessee Unfair Trade Practices and Unfair Claims Settlement Act that made Titles 50 and 56 of the Tennessee Code the exclusive remedy for unfair settlement claims practices against an insurer. The Act provides: Notwithstanding any other law, title 50 and this title shall provide the sole and exclusive statutory remedies and sanctions applicable to an insurer, person, or *1151entity licensed, permitted, or authorized to do business under this title for alleged breach of, or for alleged unfair or deceptive acts or practices in connection with, a contract of insurance as such term is defined in § 56-7-101(a). Nothing in this section shall be construed to eliminate or otherwise affect any: (1) Remedy, cause of action, right to relief or sanction available under common law; (2) Right to declaratory, injunctive or equitable relief, whether provided under title 29 or the Tennessee Rules of Civil Procedure; or (3) Statutory remedy, cause of action, right to relief or sanction referenced in title 50 or this title. Tenn. Code Ann. § 56-8-113. "The passage of this statute eliminated the availability of treble damages under the TCPA [Tennessee Consumer Protection Act] in a breach-of-insurance-contract action arising after April 29, 2011." Carroll v. Nationwide Prop. & Cas. Co., 2015 WL 3607654, at *3 (W.D. Tenn. June 8, 2015). By its very terms, however, the statute did not eliminate the availability of common law punitive damages. Id. Under "the series-qualifier canon of statutory construction," which "states that 'a modifier at the beginning or end of a series of terms modifies all the terms,' United States v. Laraneta, 700 F.3d 983, 989 (7th Cir. 2012)," the modifier "statutory" applies to both "remedies" and "sanctions." Lindenberg v. Jackson Nat'l Life Ins. Co., 2014 WL 11332306, at *7 (W.D. Tenn. Dec. 9, 2014). This construction suggests "the Tennessee General Assembly intended the scope of § 113 to be limited to remedies and sanctions of a statutory nature." Id. (emphasis added). Any doubts about that construction is removed by the provision that "nothing in this section shall be construed to eliminate or otherwise affect any...[r]emedy...available under common law[.]" Tenn. Code Ann. § 56-8-113. In short, "[i]f the Tennessee General Assembly wished to eliminate common-law punitive damages in [breach of insurance contract] cases..., it did the opposite with section 56-8-113." Carroll, 2015 WL 3607654, at *5 (W.D. Tenn. June 8, 2015).7 Thus, Plaintiffs' request for punitive damages will not be dismissed. IV. Conclusion On the basis of the foregoing, State Farms Motion to Dismiss will be granted with respect to Plaintiffs' class claim for punitive damages as set forth in Count I of the First Amended Complaint In all other respects the Motion will be denied. An appropriate Order will enter. Under its license, Titan is limited to a total project size of $1,500,000, including the price of materials, labor, profit and all other costs associated with the project. (Id. ¶ 45). A qualifying agent, or "QA," is employed by a contractor. He or she "must be experienced in all of the building trades, including sitework, footings, foundation, concrete, concrete reinforcement, masonry, metals, carpentry, roofing, estimating, plan reading, code requirements, associated trades, and OSHA safety." (Id. ¶ 44). The TCLA is an acronym for the Tennessee's Contractors Licensing Act of 1994. Tenn. Code Ann. § 62-6-1-101, et seq. Although Plaintiffs do not specifically define the "TCLA Thresholds" in either the initial or First Amended Complaint, presumably this is a reference to the Act's requirement that a licensed contractor be used for jobs in excess of $25,000. Under Plaintiffs' reading, a $25,000 roof replacement would automatically become a $30,000 job, even though only a roofer makes the repairs. The Gilderman's conceded that "it is generally accepted in the building trade that if more than three trade categories of subcontractors are involved in the repairs, the owner is entitled to the services of a general contractor to obtain bids, hire the subcontractors and coordinate/supervise the work."Id. As a general rule, Motions to Dismiss under Rule 12(b)(6) are limited to a review of the pleadings. However, the Sixth Circuit has "taken a liberal view of what matters fall within the pleadings for purposes of Rule 12(b)(6). If referred to in a complaint and central to the claim, documents attached to a motion to dismiss form part of the pleadings." Armengau v. Cline, 7 Fed.Appx. 336, 344 (6th Cir. 2001). Further, "where the plaintiff 'fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading." Thomas v. Publishers Clearing House, Inc., 29 Fed.Appx. 319, 322 (6th Cir. 2002). Both Titan's second estimate and State Farm Xactimate estimate are specifically referenced in the First Amendment Complaint, and are properly in resolving the Motion to Dismiss. Insofar as State Farm argues that the factual allegations are insufficient to support punitive damages, the Court disagrees for the reasons already stated in relation to Plaintiffs' request for the bad faith penalty.

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/3427021/

This is an appeal from a conviction on both counts of an indictment, the first count of which charged the appellant, jointly with one Mary Grace Wells Schaaf, with having unlawfully and feloniously counseled, encouraged and procured Sylvia Beiriger, a notary public, to feloniously and falsely certify, as such notary public, that the appellant had subscribed his name and was sworn by her to a certain affidavit which was affixed to and formed a part of a claim filed by the appellant with the said Mary Grace Wells Schaaf, as *Page 658 trustee of Calumet Township, in Lake County, Indiana, whereas said appellant did not subscribe his name to said affidavit and was not sworn thereto. The second count of the indictment charged the appellant and said trustee with having unlawfully and feloniously united, conspired, combined, confederated and agreed to and with each other and to and with said notary and one Mary Youhay for the unlawful and felonious purpose and with the felonious intent to have the said notary public feloniously and falsely certify that the appellant had been sworn by and before said notary to the said affidavit, whereas said affidavit had not been subscribed and sworn to by said appellant. The court overruled the separate motions of the appellant to quash each count of the indictment and also overruled the appellant's motion for a new trial. The appellant contends that the trial court erred in overruling the motions to quash each count of the indictment; that both counts of the indictment were bad in that they set out the affidavit in question and failed to show that the notary public affixed her seal to the jurat; that the affidavit was, therefore, void; and that consequently there could have been no crime in the doing of a void official act. With this last contention we cannot agree. Section 10-3602, Burns' 1933, § 2638, Baldwin's, 1934, provides that: "whoever, being a notary public . . ., certifies that any person has 1. sworn or affirmed before him to any affidavit . . ., when, in fact; such person was not so sworn or affirmed, shall, on conviction, be imprisoned in the state prison not less than one (1) year nor more than three (3) years, and fined not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000)." We do not believe *Page 659 that a notary public should escape the consequences of intentionally and knowingly making a false certificate by neglecting to affix a seal, nor do we believe that by a fair interpretation of the statute such a result can be reached. Certainly as to the second count of the indictment, which charged a conspiracy to commit the crime, it could not be argued that the failure of the notary public to complete the official act by affixing a seal could be used as a defense by those who had conspired to have the notary make a false certificate. The appellant also contends that the first count of the indictment was insufficient in that it failed to allege the commission of the offense by the principal. It alleged that 2. the appellant and another "did then and there unlawfully and feloniously counsel, encourage, and procure said Sylvia Beiriger, as such Notary Public" to make the false certificate. (Our italics.) Webster's New International Dictionary defines one meaning of the word "procure" as, "To bring about by contrivance; to effect; to cause." This was a sufficient allegation that the crime was committed. We are also of the opinion that Count II of the indictment 3. sufficiently alleged a conspiracy for the purpose and with the object of committing a felony. The question of the sufficiency of the evidence to sustain the verdict presents a more serious problem. The appellant owned and operated a general drygoods and clothing store in which he employed twelve to fourteen clerks; a bookkeeper, Mary Youhay; and a store-manager, Louis Rosene. Mary Youhay had worked for the appellant for eleven years. She had charge of the office, kept the books, checked out the *Page 660 cash daily, balanced the bank statements and did the general office work. She had authority to sign the appellant's name to letters and checks. Mary Grace Wells Schaaf, who was indicted jointly with the appellant, was the Township Trustee of Calumet Township, in Lake County, Indiana, where the appellant's store was located. She, as Township Trustee, issued orders to indigents authorizing them to buy certain goods in the appellant's store. When such goods were delivered to the indigent he signed a receipt therefor on the order, and on the basis of these receipted orders, claims for the payment of the goods so delivered were prepared and filed with the Trustee. Mary Youhay prepared these claims for the appellant. They were prepared on forms provided therefor by the Trustee's office and there was attached to the claim form, as a part thereof, a form of affidavit and jurat for the verification of the claim. After the claims were prepared they were taken to the Trustee's office where they were checked and the jurat filled in by Sylvia Beiriger, a claim clerk and notary public employed by the Trustee. The following is a copy of the affidavit and jurat on which the indictment is predicated. The capitalized words show those placed on the affidavit and jurat in green ink by the notary public; the italicized words were subscribed to the affidavit by the bookkeeper, Mary Youhay, in purple ink: "State of Indiana, Lake County: "I, JACK SHONFELD of GARY Indiana vocation STORE MANAGER, swear that the foregoing bill in the sum of $9381.82 is true and correct; that the said Township has received the full value and the exact consideration therein named; that the prices therein charged are in accordance with contract or statute; that the said bill or any part thereof has not been paid or commuted, and that *Page 661 neither bonus, commission nor any other consideration has been given or promised within my knowledge or belief, because of the proposed exchange of values therein set forth, or for any other reason. Jacks Dept Store Jack Shonfeld M Youhay Subscribed and sworn to before me, this 22ND day of FEBRUARY 1938. SYLVIA BEIRIGER My commission expires SEPT. 23, 1941." It is admitted that Jack Shonfeld neither subscribed nor swore to this affidavit. Both counts of the indictment are based on the theory that the notary public falsely attested that the appellant subscribed and swore to the affidavit when he had not done so. Two questions are presented by the convictions under this indictment: (1) did the notary public, by the execution of the jurat to this affidavit and by so filling in the blank spaces in the affidavit, intend to falsely certify that the appellant had subscribed and sworn to the affidavit; and (2) if the notary public intentionally made such a false certificate, did the appellant in any manner cause or procure her to make such false certificate, or conspire with others to cause her to make such false certificate. The appellant's bookkeeper, Mary Youhay, prepared the claims from the receipted poor relief orders in the appellant's office. There was no conflict in the evidence as to the fact that she was familiar with the details shown by the claims and that the appellant was not. Section 52-173, Burns' 1933 (Supp.), § 13320-30, Baldwin's Supp. 1935, provides that the claims against the township "itemized and sworn to as provided by law, and accompanied by the original township poor *Page 662 relief order . . . shall then be filed with the county auditor for payment." Section 26-538, Burns' 1933, § 5403, Baldwin's 1934, provides that a claim filed with the county auditor shall be "fully itemized and its correctness verified by the claimant,or some one in his behalf, . . ." (Our italics.) When Mary Youhay started to work for the appellant he had told her "to make out the poor relief claims and told me to sign them Jack's Department Store and by him and myself." Neither she nor any other witness had any independent recollection as to the particular claim and affidavit in question, but apparently pursuant to her original instructions and as authorized by the statute she did make out the itemized claim and, to the affidavit attached thereto, signed the appellant's trade name, his individual name and then her own name, thereby indicating that his signature had been subscribed by her. After the claim was prepared and the affidavit so signed by Mary Youhay, Louis Rosene delivered it to Sylvia Beiriger, one of the claim clerks in the trustee's office, who was also a notary public. Mary Youhay testified that she did not think the appellant ever saw the claim in question; that once in a while he "took a look at a claim" but that generally he did not examine the claims after she made them up. Sylvia Beiriger testified that when she first started working in the trustee's office she worked as a typist; that later she became a claim clerk and, still later, at the request of Mrs. Schaaf, the trustee, she qualified as a notary public; that her work was to check claims and notarize them; that in 1936, she called Mary Youhay at Jack's Department Store and was told by Mary Youhay that it was all right to notarize the claims in the manner that they were signed, i.e. Jack's Dept. Store, Jack Shonfeld, Mary Youhay; that Mr. *Page 663 Shonfeld had instructed Mary Youhay to sign the claims in this manner; that later she had further conversations with Mary Youhay about notarizing claims; and that these conversations continued until she "knew her (Mary Youhay's) signature." She further testified that the trustee had told her she "could verify signatures by telephone"; that no one ever told her what her duties were as a notary; that she never "read the law about the duties of a notary public or what they should do or how"; that she did not know "what it meant to swear to a thing"; that when she received the claim and affidavit in question the signature was affixed thereto; that she knew that the signature was not in the writing of Jack Shonfeld; that at the time she filled in and signed the jurat on these affidavits she also filled in the name "Jack Shonfeld" and the word "Gary" and the words "Store Manager" in the body of the affidavit; that she never asked Miss Youhay to hold up her right hand and be sworn that the affidavit was true, but only asked Mary Youhay if that was her signature and if she (Sylvia Beiriger) should notarize it; that after she came to know Mary Youhay's signature she would sometimes not even call her on the telephone to verify it. The appellant testified that he had authorized Miss Youhay to certify and verify these claims on his behalf; that he had never discussed, with Mrs. Schaaf, the subject of having the claims sworn to; that he never discussed that subject, at any time, with Miss Beiriger, the notary; and that he never, in any manner, indicated to her nor to any one else that he wanted her to certify that he had signed and sworn to the claims when he had not. There was also testimony by Evelyn Harms, a notary public in another trustee's office, to the effect that the *Page 664 claims of Jack Shonfeld filed in that office had been notarized in a manner similar to the claim in question. A field examiner for the State Board of Accounts testified that he and another examiner had examined the disbursements made to Jack Shonfeld from the poor relief fund for said township. There was no intimation that they had discovered any overpayments or any claims filed for amounts which were too large. No question was raised as to the amount of this claim. No one intimated that the goods for which the claim was filed had not been delivered to the proper persons pursuant to the order of the township trustee. The evidence showed that the preparation and the checking of the claims and the execution and verification of the affidavits attached thereto had been left largely to the two girls, Mary Youhay and Sylvia Beiriger; that in checking the claims an occasional discrepancy was found which they discussed and rectified by telephone. The jurat in question only said "subscribed and sworn to before me, this 22nd. day of February, 1938." It did not name the person who had "subscribed and sworn." These three names signed to the affidavit, Jack's Dept Store, Jack Shonfeld and M. Youhay, were all in the same handwriting — the handwriting of Mary Youhay. Sylvia Beiriger knew that all of the names were written by Mary Youhay. The position of the names and the fact that all were in the same handwriting would indicate this fact to any one else examining the signature. Since the signature itself indicates who "subscribed" the affidavit and the notary knew it was subscribed by Mary Youhay, we must infer that the notary public only intended to certify that it was Mary Youhay who subscribed and was sworn to the *Page 665 affidavit. Miller v. Miller (1914), 55 Ind. App. 644, 104 N.E. 588. In discussing the validity of an affidavit, from the body of which the name of the affiant had been omitted, although the affiant had subscribed his name thereto and the notary certified that the affidavit was subscribed and sworn to before him on a certain day, the Court of Appeals of New York, in People ex rel.Kenyon v. Sutherland (1880), 81 New York Reports 1, 8, said: "The paper, by the signature it bore, identified the person of the deponent. The jurat was ample; it declared that the subscription was made before the officer, and that could mean nothing other than the making of the signature of the name borne upon the paper; it declared that it was sworn to as well as subscribed before the officer, and that could mean nothing other than it was sworn to by the person who made that signature." So in this case if the blank space in the affidavit for the affiant's name had not been filled in by the notary to read "Jack Shonfeld" there would be no serious question but that the jurat only certified that the affidavit had been subscribed and sworn to by Mary Youhay. In Torrans v. Hicks (1875), 32 Mich. 307, in discussing an affidavit which was signed by Charles H. Lee, but began with the recital, "Fred B. Lee, of said county, being duly sworn" etc., Mr. Justice Cooley, speaking for the court said: — "We think, however, that the recital of the name of Fred B. Lee, in the beginning of the affidavit is apparently a clerical error, and to be overlooked as such. Charles H. Lee makes the oath, and had the name been omitted in the beginning, there would have been no difficulty in holding that the affiant was applying the facts recited to himself. But this affidavit is in legal effect the same, we think, that it would have been if in the body of it there had been no recital of any name as that of an affiant." *Page 666 While the name of Mary Youhay should have been placed in the body of the affidavit as the affiant, and while the signature subscribed to the affidavit should not have included either 4. the trade name or the individual name of the appellant, even though it was his claim, the correctness of which was being verified by Mary Youhay on behalf of the appellant, the legal import of the jurat is that the affidavit was subscribed and sworn to by Mary Youhay. An examination of the evidence indicates very clearly that at the time this affidavit was made, none of the parties involved understood the legal meaning of the jurat or how an oath should be administered. Since the affidavit was on the claim of Jack Shonfeld, it was apparently assumed by the notary, and possibly by the others, that his name should be written in the affidavit in the blank space provided for the name of the affiant. From this affidavit and jurat, however, it cannot be reasonably inferred that Sylvia Beiriger, the notary, intended to, or did, certify that the appellant subscribed and swore to the affidavit. Therefore, since she, as principal, was not guilty of the crime charged, the conviction of the appellant for having "counseled, encouraged and procured" her to falsely certify "that said Jack Shonfeld had subscribed his name and was sworn by her" to said affidavit cannot be sustained. Murphy v. State (1915), 184 Ind. 15, 110 N.E. 198. Nor is there sufficient evidence to sustain the conviction of the appellant on the second count of the indictment which charged conspiracy between the appellant, his bookkeeper, the 5-9. trustee, and the notary public. There is a total lack of evidence to show a deliberate agreement among the persons named to cause the notary public to falsely certify that the appellant had subscribed and sworn to the *Page 667 affidavit. To sustain a conviction on this count there must be evidence from which an agreement between at least two persons named in the indictment may be legally inferred. Conspiracy cannot be established by mere suspicion. Johnson v. State (1935), 208 Ind. 89, 194 N.E. 619. Also, as said by this court inKelley v. State (1936), 210 Ind. 380, 385, 3. N.E.2d 65: "And in order for the state to make its case it was necessary to prove that the defendant united with another, or others, for the purpose of committing the felony described in the indictment. The defendant could not be convicted lawfully by proof that he had united with one or more persons for the purpose of committing a felony other than the one defined in the indictment no matter how atrocious such other intended felony might be." In Ewbank's Indiana Criminal Law, § 1653, p. 1200, it is stated that an indictment for a conspiracy to commit a felony "must describe the intended felony with the same certainty and 10. particularity as an indictment for committing such felony." Here the indictment charged that the conspiracy was to have the notary falsely certify that the appellant, Jack Shonfeld, had subscribed and sworn to the affidavit. A conviction could 11. not be sustained on this count by evidence from which an inference might be drawn that there was a conspiracy to have the notary falsely certify that Mary Youhay had subscribed and sworn to the affidavit. We find no evidence in this record to sustain the charge that the appellant entered into any conspiracy or agreement, with any of the parties named in the indictment, to have the notary 12. public falsely certify that he, the appellant, had subscribed and sworn to the affidavit. His testimony was that he had never discussed the verification of these affidavits *Page 668 with Mrs. Schaaf, the trustee. She did not testify. The mere fact that he had had conversations with the trustee would not justify an inference that they entered into an unlawful conspiracy. He gave his bookkeeper, Mary Youhay, general instructions on the preparation of the claim and the execution of the affidavit attached thereto, but there is no intimation that he even suggested to her that she should induce the notary public to certify that he, Jack Shonfeld, had subscribed and sworn to the affidavit. His instructions that Mary Youhay should sign her own name underneath his name would negative any intention on his part that the notary should make a jurat certifying that he had subscribed and sworn to the affidavit. He testified that he had never discussed with Sylvia Beiriger, the notary, the verification of these claims. In answer to a question as to whether Jack Shonfeld ever told her "to notarize any claims in that fashion as set out in said Exhibit I" (the affidavit in question), Sylvia Beiriger answered: "I think he did but I am not sure about that." This is the only testimony as to any conversation she ever had with the appellant. From this vague, ambiguous answer there could be no reasonable inference of an agreement that she should falsely certify that Shonfeld subscribed and swore to the affidavit. All of the surrounding circumstances, as shown by undisputed evidence, negative any intention on the part of the appellant to have the notary make such a false certificate. We see no possible motive which the appellant might have for wanting the notary to falsely certify that he had subscribed and sworn to the affidavit. The affidavit verified a true and correct claim against the poor relief funds of the township, a claim which had been prepared by his bookkeeper who was familiar with the facts therein contained. It was perfectly proper and *Page 669 legal for her to verify it on his behalf. By failing to personally subscribe and swear to the affidavit on this claim the appellant avoided no civil or criminal liability. In view of these facts could it reasonably be inferred that the appellant would intentionally induce the notary to make a false certificate or would conspire with others to induce her to make such a certificate? We do not think so. According to the undisputed evidence, all of the parties to this transaction knew that the affidavit was signed by Mary Youhay. None of them apparently knew just what it meant to be sworn to an affidavit until they appeared before the Grand Jury in connection with this case. Until that time none of them apparently realized that there was anything wrong with the manner in which these claims were being verified. None of them intended that the notary should certify, nor thought that she was certifying, that the appellant had subscribed and sworn to the affidavit in question. We find no basis in the evidence for an inference that the appellant induced, or conspired with others to induce, Sylvia Beiriger to commit a felony by falsely certifying that the appellant had subscribed and sworn to the affidavit. The judgment is reversed with instructions to the trial court to grant the motion for a new trial. NOTE. — Reported in 40 N.E.2d 700.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427097/

Appellee, as the alleged owner and seller of a carload of soft steel bands, brought this action in the Floyd Circuit Court to recover the price thereof. The complaint is in four paragraphs. The first paragraph is for goods and merchandise alleged to have been sold to appellant. The second paragraph alleges that appellant agreed to purchase the steel "at the price prevailing at the mill" where manufactured, and sets out certain correspondence which it is claimed constituted the contract; that the steel was shipped to appellant and accepted by it. The third paragraph is similar to the second. The fourth paragraph alleges that appellee is a broker in iron and steel products; that appellant is a manufacturer of hames and chains; that appellant authorized appellee to furnish it with a carload of soft steel bands for use in its business; that thereafter, and before the steel was delivered, appellee notified appellant he would sell and deliver the steel to appellant at a later date in the same year, the price to be that of the official *Page 558 schedule of the mill by which it was made at the time of shipment; that appellant agreed to pay the price so quoted by appellee, but that, later and before the delivery thereof, appellant notified appellee it would only pay therefor the price ruling at the date of shipment; that appellee refused to sell and deliver for the price proposed by appellant, but notified appellant the price was to be the official schedule of the mill manufacturing the same at date of shipment; that thereafter appellee delivered the car of steel to appellant; that appellant received, accepted and used the same, well knowing the terms upon which the same was sold to it by appellee and knowing the price appellant would be expected to pay therefor; that, according to the official schedule of the mill, the price was $5.80 per 100 pounds; that the steel so sold and shipped and accepted by appellant weighed 50,020 pounds; that there had been a long and vexatious delay in payment, and demanding judgment for the purchase price with interest. Appellant filed a motion to strike out parts of the third paragraph of complaint, and appellee filed a demurrer to the fourth paragraph of appellant's answer to the second paragraph of complaint. The issues of law thus submitted were taken under advisement, and, not being determined within 90 days thereafter, appellee filed his written application calling the attention of the regular judge to the failure to determine the issues so presented, and asking that such issues be withdrawn from such judge and that a special judge be appointed, as provided for in § 603 Burns 1926. This application was sustained, and a special judge appointed. The venue was afterwards changed to Jefferson county. The court, on request, found the facts specially and stated its conclusions of law thereon. There was a judgment in favor of appellee for $3,832.43. The errors assigned in this court are that the court *Page 559 erred: (1) In sustaining appellee's application to withdraw the issues of law from the regular judge and in appointing a special judge; (2) in sustaining appellee's demurrer to the fourth paragraph of answer to the third and fourth paragraphs of complaint; (3) in each conclusion of law; and (4) in overruling appellant's motion for a new trial. Appellee insists that no question is presented concerning the action of the regular judge in appointing a special judge, or the action of the special judge in refusing to remand the cause to the regular judge. It is appellee's contention that such rulings should have been assigned as reasons for a new trial, and not as independent assignments of error in this court. Section 420 of the Civil Code, § 610 Burns 1926, cl. 1, provides that a new trial may be granted for "Irregularity in the proceedings of the court, jury, or prevailing party, or any order of court, or abuse of discretion, by which the party was prevented from having a fair trial." The application to withdraw the issues from the regular judge was the same, in principle and effect, as a motion and affidavit for a change of judge, and it is well settled that the 1, 2. action of the court in sustaining or in overruling an application for a change of judge or for a change of venue must be assigned as a ground in the motion for a new trial if the party is in a position to file such a motion, and, if not assigned, it is waived. Scanlin v. Stewart (1894),138 Ind. 574, 37 N.E. 401, 38 N.E. 401; Southern R. Co. v. Roach (1906), 38 Ind. App. 211, 78 N.E. 201. And we hold that appellant, having failed to assign the rulings of which complaint is made as grounds for a new trial, cannot present them on appeal by an independent assignment of errors. If this were not so, we would be compelled to transfer this appeal to the Supreme Court for want of jurisdiction, as it is appellant's contention *Page 560 that the provision of said § 603, supra, requiring the trial court to decide all issues of law within 90 days from submission, is unconstitutional. The fourth paragraph of answer to which a demurrer was sustained alleged that, before the commencement of this action, appellee claimed he shipped the steel to appellant under its written order of May 14, 1920, which is set out in full; that, after the commencement of the action, appellee undertook to change his claim against appellant by alleging in the third paragraph of the complaint that he shipped the steel to appellant under a contract made up by a letter from appellee to appellant, dated May 12, 1920, and appellant's acceptance thereof; and that, by his fourth paragraph of complaint, appellee sought to change his position by claiming there was no contract except an implied contract on the part of appellant to pay a named sum. In support of this contention, appellant says: "Where a party gives a reason for his conduct and decision touching any matter involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by settled principles of law," and that the facts alleged in the third and fourth paragraphs of complaint as grounds for recovery are entirely different from the grounds upon which appellee claimed appellant was liable to him before the commencement of the action. In Cadick Milling Co. v. Valdosta Grocery Co. (1920),72 Ind. App. 534, 126 N.E. 240, cited by appellant, the appellee sued the appellant for damages on account of the breach of an alleged contract by which appellee purchased certain flour of appellant. Appellant claimed it was justified and. excused from shipping the flour on the ground that appellee gave no shipping directions. *Page 561 When appellant was called upon to ship the flour, it refused to do so solely on the ground that the contract had expired by limitation. In this connection, the court said: "In view of this fact appellant may not, after suit is brought for a breach of the contract, change from its former position, and base its refusal to ship such flour on another and different ground. . . . It follows as a matter of course that, after appellant had repudiated the contract by declaring that it had expired by limitation, it was not incumbent on appellee thereafter to furnish further shipping specifications and instructions." Kenefick v. Shumaker (1917), 64 Ind. App. 552, 116 N.E. 319, was an action for damages because of a breach of a contract to convey real estate, where the defendant refused to perform because the abstract of title "did not show a clear title." When sued, the defendant undertook to defend because of the plaintiff's failure to deliver possession of certain property to the defendant. It was held that the defendant had waived the breach of the contract occasioned by the delay in obtaining possession, the court, at page 561, saying: "It is well established that a party to a contract, in refusing to comply with its terms, cannot base his refusal on one ground and, when action is brought for its breach, defend on another and different ground." In each of the other cases cited by appellant, the defendant had given one ground as an excuse for his failure to comply with the contract, and, when sued, had set up a different ground as reason for such refusal. Clearly none of the cases cited is of any controlling influence in the instant case. It was not necessary for appellee, prior to the commencement of this action, to claim that appellant was liable to him on 3. any particular ground or theory, and, if appellee did, that would not prevent *Page 562 him from thereafter attempting to hold appellant liable on other theories. A choice of remedies is not binding on a party plaintiff unless the remedy chosen has been prosecuted to a conclusion. Cohoon v. Fisher (1896), 146 Ind. 583, 44 N.E. 664, 45 N.E. 787, 36 L.R.A. 193. The doctrine of equitable election is not applicable to the facts pleaded. Walker, Admr., v. Bement (1911), 50 Ind. App. 645, 94 N.E. 339. There was no error in sustaining the 4. demurrer to this paragraph of answer. The court found appellee was a jobber, buying and selling iron and steel products; that, about May 1, 1920, appellant requested and authorized appellee to arrange and contract to have manufactured for and delivered to appellant a quantity of steel bands, not to exceed 25 tons; that, on May 12, 1920, appellee wrote a letter to appellant, stating, in substance, that the mill could enter specifications for a carload for prompt acceptance and shipment some time in the third quarter of 1920, the price to be the official schedule of the mill at the time of shipment. In reply to this letter, appellant, under date of May 14, 1920, wrote a letter to appellee ordering one car of soft steel, "not to exceed 25 tons, to be shipped the last quarter of 1920, at the price ruling the date of shipment." No other or further communication took place between the parties until November 17, 1920, and appellee did not agree to furnish the steel for any price other than as stated in his letter of May 12. Soon after May 12, appellee, in order to supply appellant with the steel, entered into a contract with the Pittsburgh Steel Company for the manufacture of the steel for appellee for the use of appellant as stipulated in the letter of May 12. By this contract, appellee agreed to pay to said company its official schedule at time shipment was made. Under this contract, said company manufactured steel to the amount of 50,020 pounds, and delivered the same *Page 563 to a common carrier to be shipped to New Albany for appellant. On the day of shipment, the company's price to the consumer was $5.80 per 100 pounds, and to appellee as a broker $5.30 per 100 pounds. On November 16, 1920, appellee notified the railroad at New Albany that the car of steel had been shipped and directed the railroad and its agent, upon the arrival of the car, to immediately deliver it to appellant. On November 17, appellee notified appellant that the steel had been shipped, and that the railroad had been instructed to promptly turn the steel over to appellant. Appellant, on the next day, wrote a letter expressing surprise that the steel had been shipped, and saying it had no record of having ordered the same, and asking appellee what the steel was that had been shipped, and appellee's authority for shipping the same. In reply to this letter, appellee, on November 19, wrote a letter to appellant calling appellant's attention to its order of May 14, as the authority for the shipment. A day or two after this letter was received by appellant, it wrote a letter to appellee stating that its records showed that the order had been cancelled, and the price was to be "price ruling date of shipment," and, referring to the Iron Trade Review, says the price should be $2.35, plus 25 cents extra per 100 pounds, or $2.60 f.o.b. Pittsburgh, and closing with the statement that it could not accept the car unless it was billed that way. The court found that other letters were written by each of the parties concerning the matter, in which appellee insisted that appellant must accept the car as billed at the schedule price of the mill in force at date of shipment, and that, if appellant did not settle the bill at maturity, suit would be commenced. This last letter was received by appellant December 12, 1920, and, on the next day, the car arrived at its destination, and, acting on the order of appellee, the railroad delivered *Page 564 the same to appellant. Appellant accepted the car of steel from the railroad, paid the freight thereon, and appropriated the same to its own use, knowing that appellee was demanding and was expecting to receive as the price thereof $5.80 per 100 pounds, and that appellee did not intend and was not willing to sell the same for any other or less sum. The steel so shipped was in exact accordance with the proposition of appellee dated May 12. It is also found that, at that time, it was very difficult to purchase steel at any price, and that, during the time mentioned, there was no fixed market price for such steel, although there were various sales of such steel in and around New Albany, Indiana, and Cincinnati, at prices higher than that charged appellant; that the only price ruling at date of shipment was $5.80, which was the price ruling at the mill where this steel was manufactured; that said steel was of the value of $2,901.16; that appellant has paid nothing for said steel, but that, on April 2, 1923, it deposited with the clerk of the court for the use of appellee $1,300.52, which remained in the hands of the clerk and which had not been accepted by appellee. Upon these facts, the court concluded, as a matter of law, that appellant, in accepting, appropriating and using the steel, became liable to appellee for the price theretofore demanded by it, to wit, $2,901.16, with interest in the sum of $931.27. Appellant next contends the court erred in its conclusions of law. This contention seems to be based upon the theory that appellant's letter or order dated May 14 was not an 5. unconditional acceptance of the proposal made by appellee under date of May 12; that the order of May 14 was a rejection of appellee's proposal and was a counter-proposition made by appellant to appellee to purchase the steel on terms different from those contained in appellee's proposal of May 12. Appellant, in support of this contention, *Page 565 argues that its order of May 14 meant, among other things, that it "proposed to pay for the steel at the price ruling day of shipment"; that "shipment" meant that appellee should deliver the possession of the steel to a common carrier for transportation to appellant as consignee, and that the "price ruling date of shipment" meant the market price the day of shipment and not the price which the manufacturer might fix at time of shipment. This contention cannot prevail. From the facts found by the court, it appears that, about May 1, 1920, appellant authorized appellee to arrange and contract to have manufactured for appellant a quantity of steel bands for use in its business. Appellee was not a manufacturer, but was engaged by appellant as a broker, and, on May 12, appellee wrote a letter to appellant stating he could enter the order for not less than a carload of steel for prompt acceptance sometime during the third quarter of 1920, the price to be the official schedule of the mill manufacturing the steel at the time of the shipment, and in reply appellant wrote a letter to appellee directing it to enter appellant's order for a car of steel "at the price ruling the date of shipment." When these two letters are read together, the last an answer to the first, the only reasonable construction to be placed upon the reference in the last letter to the price is that it referred to the price as stated in appellee's letter of May 12, and that the price, as understood by both parties, was the official schedule of the mill at the time of the shipment. Appellee was justified in so construing appellant's order of May 14. Appellee did so construe the contract, and later, when the question of appellant's accepting the steel arose, and before appellant accepted it, appellant knew the construction appellee had placed on the contract, and that, if appellant accepted the steel, it would have to pay $5.80 per 100 *Page 566 pounds. With this knowledge, appellant accepted the steel and used it in its business. Appellant also contends that, under the terms of the contract, the steel was to be delivered to a transportation company and consigned to appellant, and that the fact that the steel 6. was consigned to the Tower Manufacturing Company conclusively showed that the title was in that company, and there is no finding that the title ever passed to either appellant or appellee. Appellee was the owner of all the capital stock of the Tower Manufacturing Company, and caused the steel to be delivered to appellant. The latter company does not appear to have ever made any claim that the property was unlawfully delivered to appellant, and it would not seem that the simple fact that the steel was consigned to that company is conclusive evidence that the title was not vested in appellant when the steel was delivered to it. And we hold there was no error in the conclusions of law. Appellant also complains of the admission of certain evidence, but there is no showing what objection, if any, was made to 7. the admission of any of the evidence of which complaint is made. The next contention is that the finding of facts is not sustained by sufficient evidence. This contention is in the main based upon the theory that the agreement was to the effect that appellant was to pay the market value of the steel instead of the mill's schedule; that the steel was the property of the Tower Manufacturing Company, and that the title never passed to appellant. We have already discussed these contentions in construing the facts as found by the court, and do not deem it necessary to further discuss the questions, since the facts were fully found and set out in the special finding. The evidence *Page 567 is in our judgment ample to sustain the facts as found. Judgment affirmed. Dausman, J., absent.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4030879/

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § IN RE: No. 08-16-00217-CR § WILLIAM BROWDER, AN ORIGINAL PROCEEDING § Relator. IN MANDAMUS § MEMORANDUM OPINION Relator, William Browder, has filed a mandamus petition asking that we order the 109th District Court of Andrews County, Texas, to rule on a motion for judgment nunc pro tunc in cause number 2496. We deny mandamus relief. To obtain mandamus relief, Relator must demonstrate that he does not have an adequate remedy at law and that the act he seeks to compel is ministerial. State ex rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007). To be entitled to a writ of mandamus compelling a trial court to consider and rule on a properly filed motion, Relator must establish that the trial court: (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the motion within a reasonable time. In re Molina, 94 S.W.3d 885, 886 (Tex.App.--San Antonio 2003, orig. proceeding); see In re Layton, 257 S.W.3d 794, 795 (Tex.App.--Amarillo 2008, orig. proceeding). Relator has attached what appears to be a carbon copy of his motion for judgment nunc pro tunc in which he asserts he is entitled to time credit for two periods of incarceration on pre-revocation warrants. The motion is not file-stamped and Relator has not provided any evidence of the filing date. Further, there is no evidence that Relator asked Respondent to rule on the motion or that Respondent has failed or refused to rule on the motion. Finding that Relator has failed to establish his entitlement to mandamus relief, we deny the petition for writ of mandamus. STEVEN L. HUGHES, Justice August 31, 2016 Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish) -2-

01-03-2023

09-02-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427051/

This is an action to recover damages resulting to appellee while working for and in the employee of appellant. The complaint is in two paragraphs and is of considerable length. We will epitomize sufficiently to make clear the questions presented. It is alleged that appellant is engaged in creosoting wooden blocks. That appellee was employed by appellant as a planer and that his regular employment in no way required him to handle or work with or near creosoted blocks, or that placed him in a position where he would breathe or come in contact with the fumes, gases and vapors from such creosoting plant or blocks. Appellee's regular employment was confined to assisting appellant in preparing wooden blocks before they were processed with creosote. When the blocks were ready to be creosoted they were conveyed to a long covered shed with a roof and sides, but open on each end, and there placed in a large cage, made of steel slats and then placed in a steel cylinder which was then flooded with steam and creosote preparation at a high temperature. After the blocks had been subjected to such treatment for several hours, the steel cages, filled with treated blocks were pushed or rolled out of the cylinder for a distance of about one hundred feet to a shed where they were dumped. This shed is covered but has no sides. On January 31, 1929, appellee was ordered by appellant to go to the shed last above described and dump the creosoted blocks from the steel cages. Appellee protested to this assignment, on the ground that it was not within the scope of his employment, *Page 434 but appellant represented to appellee that the work was beneficial to his health and that an emergency had arisen that made it necessary for him to do this work and appellee did do the work requested. The following excerpt is taken from appellee's first paragraph of complaint: "That at about two o'clock in the afternoon of said day defendant told plaintiff he would have to unload said blocks or help unload said blocks in said shed. Upon being so ordered and directed by defendant that said emergency existed and the insistence of defendant that said work in and around said creosoting process treating said blocks was beneficial to his health and being informed that in order to hold his position with defendant he must perform said work, plaintiff complied with said order and went to said shed and for a period of two hours or more under the orders and direction of defendant as aforesaid he did unload and assist in unloading said blocks which had been treated and which were being treated with said creosoting process by defendant; that in said building where plaintiff performed said service on said day the atmosphere was charged and filled with creosoting fumes, vapor and gases, the same coming from said cylinders, cages and said blocks; that from time to time during the said period during which he was in said building the said vapor, fumes and gases from said blocks filled the entire shed and at all such times he was in said shed and in particular when the blocks were dumped, the heat and the vapor, fumes and gases completely enveloped plaintiff and came in contact with his face and he was compelled to breath the same; that from time to time during said work in said shed plaintiff became sick as a result of working in said shed by being enveloped in and breathing said creosoting preparation, fumes, vapor and gases, more particularly hereinafter described." That on February 2, 1929, appellant requested appellee to perform other services outside of his regular employment. This work was to be performed inside a box *Page 435 car and consisted of sacking creosoted treated blocks for shipment. Appellee's complaint on this subject is as follows: "Upon being so ordered and directed by defendant that said emergency existed and the insistence of defendant that said work in and around said creosoting process treating said blocks was beneficial to his health and being informed that in order to hold his position with defendant he must perform said work, plaintiff complied with said order and went to said box car hereinbefore described and for a period of about three hours under the orders and direction of defendant as aforesaid he did stack all of the said blocks in said box car, said blocks having been treated with said creosoting process by defendant; that in said box car where plaintiff performed said services on said Saturday afternoon the atmosphere was charged and filled with creosoting fumes, vapors and gases, the same coming from said blocks; that from time to time during the said period during which he was in said box car the vapor, fumes and gases from said blocks filled the entire box car and the fumes, vapor and gases completely enveloped plaintiff and came in contact with his face and he was compelled to breath the same; that from time to time during said work in said box car plaintiff became sick as a result of working in said box car by being enveloped in and breathing said creosoting preparation, fumes, vapor and gases more particularly hereinafter described." Appellee further alleged: "That at said times plaintiff was in perfect physical condition; that while in said box car and said shed as aforesaid, working with said blocks, cages and cylinders as aforesaid, filled said shed and said box car as aforesaid with heat, creosoting preparation fumes, vapors and gases enveloped plaintiff and he was unable to breath without breathing and inhaling said creosoting preparation, said fumes, vapors and gases into his head, throat and lungs and plaintiff's skin, pores and flesh and each and all of the internal organs of his body absorbed said creosoting preparation fumes, vapors *Page 436 and gases all without fault or negligence upon the part of plaintiff, then and there and thereby causing plaintiff's entire body and system to be completely saturated with said creosoting preparation and said fumes, vapors and gases, then and there and thereby and as the sole and proximate result thereof causing plaintiff to become sick and to become totally incapacitated for work of any kind whatsoever. "Plaintiff is unable to give a name to such sickness. Defendant informed plaintiff that he was inflicted with creosoting poison. Plaintiff further avers that his entire body is now and has continuously been saturated with said creosoting poison caused by the said wrongful, negligent, careless and unlawful acts of the defendant as aforesaid. . . . "Plaintiff further avers that defendant was guilty of carelessness and negligence at all such times in this, that it wrongfully, carelessly and negligently directed plaintiff to perform said services outside the scope of his employment as aforesaid and wrongfully, negligently and carelessly told plaintiff that said work was healthful and beneficial employment and would not make plaintiff sick or be of any harm to him, when in truth and in fact defendant knew and by the exercise of reasonable care and prudence should have known, that said work was not healthful or beneficial employment, but on the contrary was decidedly harmful and detrimental to persons working in said room in and about said shed, box car, cages, cylinders and blocks in and about said creosoting preparation, fumes, vapors and gases, and that the same was harmful and unhealthful to plaintiff who was unaccustomed to working in and about said shed, box car, cylinder, cages, blocks, creosoting preparation, fumes, vapors and gases. "Plaintiff further alleges that in the operation and conduct of said business in said shed and said box car where said work was being performed by plaintiff that there was accumulations of dangerous, noxious and deleterious gases, vapors and fumes, and that the same had continued for a period of ten years or more, from time to time, all of which was at all such times known to defendant, but unknown to plaintiff, and that the same did *Page 437 accumulate at the times plaintiff became sick as hereinbefore described." The complaint contains allegations as to the injuries alleged to have been sustained by reason of the negligence and carelessness therein set out. Appellee's second paragraph is in substance the same as the first with the additional averment that appellant failed to furnish him a gas mask while performing said services to protect appellee from breathing the gases, fumes and vapors arising from such creosoting blocks. Appellant's demurrer to each paragraph of appellee's amended complaint was overruled. There was a trial by a jury and a verdict for appellee. Appellant filed a motion for a new trial which was overruled by the court, and judgment was entered in favor of appellee on the general verdict. Special interrogatories were submitted to and answered by the jury. Appellant filed a motion for judgment on the interrogatories notwithstanding the general verdict, which motion was overruled. Proper exceptions were saved and presented for our consideration. The view we take makes it necessary to consider only the fourth assignment of error which is as follows: "4. The trial court erred in overruling the motion for judgment on the interrogatories and answers thereto filed by this appellant, who was defendant below, to which ruling defendant duly excepted." The interrogatories submitted to the jury and the answers thereto are as follows: "Q. 1. Was the plaintiff working as an 1, 2. employee of the defendant on January 31, 1929, in loading blocks? Ans. Yes. Q. 2. Were the injuries, of which he now complains, *Page 438 caused by so working with creosoted blocks on January 31, 1929? Ans. No. Q. 3. Was the plaintiff working as an employee of the defendant in sacking blocks on February 2, 1929? Ans. Yes. Q. 4. Were the injuries, of which he now complains, caused by so working with creosoted blocks on February 2, 1929? Ans. No. Q. 5. Did the injuries, of which he now complains, arise out of his work in loading blocks on January 31, 1929? Ans. Yes. Q. 6. Did the injuries, of which he now complains, arise out of his work in sacking blocks on February 2, 1929? Ans. Yes." It is clear from appellee's complaint that the only cause of action stated or attempted to be stated is to recover damages caused by breathing or coming in contact with fumes, gases, or vapor arising or coming from creosote, or creosote treated blocks. The jury by its answers to interrogatories Nos. 2 and 4 clearly and specifically found that the injuries complained of were not caused by working with creosoted blocks. We are not unmindful of the well settled rule in this state that it is the duty of the court if possible to reconcile the answers to interrogatories so that they will not conflict with each other, and that where the general verdict and the special interrogatories and the answers thereto can be reconciled with each other under any state of facts probable under the issues, it is the duty of the court to do so. But, under appellee's complaint, no recovery could be had unless the evidence was sufficient to prove that the proximate cause of the injuries complained of was, as alleged in his complaint, the breathing and coming in contact with creosoted fumes, *Page 439 gases and vapors. We again quote from paragraph one of his complaint. "Plaintiff further avers that as a proximate result of the said wrongful, negligent, careless and unlawful acts of the defendant as aforesaid and by reason of plaintiff breathing and inhaling said creosoting preparation, said vapors, fumes and gases as aforesaid, his entire body, arms, hands, etc., . . ., became saturated with said creosoting preparation, vapors, fumes and gases, an became softened and perforated then and there and thereby and as the sole and proximate result thereof permanently damaging, etc." The second paragraph has in substance the same allegations as above quoted from the first. If, as found by the jury in answer to interrogatories Nos. 2 and 4, appellee's injuries were not caused by working with creosoted blocks, then appellee has no cause of action upon which the verdict could rest. The very foundation of appellee's complaint was his working with creosoted blocks. We think it clear that the answers to interrogatories Nos. 2 and 4 cannot be true and also the general verdict, for the general verdict is a finding that the material averments of the complaint are true. When the answers to interrogatories are in irreconcilable conflict with the general verdict, the answers will control and the general verdict must fall. Section 2-2023 Burns Ind. St. 1933, section 356 Baldwin's Ind. St. 1934, is as follows: "When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly." This question is fully discussed in the case of Barr v. Sumneret al. (1913), 183 Ind. 402, 107 N.E. 675. Appellee insists that the answer to interrogatories Nos. 5 and 6 is in conflict with answer to Nos. 2 and *Page 440 4, and therefore neutralize each other. We do not think the 3. answer to Nos. 5 and 6 is necessarily in conflict with Nos. 2 and 4. The injuries complained of and described in appellee's complaint might have arisen out of the work of loading blocks or sacking blocks whether they had been subjected to the creosoting process or not. But before appellee was entitled to recover in this action the jury must find that appellee's working with creosote blocks was the proximate cause of appellee's injuries. This they did not do is conclusively shown by the answers to the second and fourth interrogatories. Under such a situation the trial court should have sustained appellant's motion for judgment on the answers to the interrogatories notwithstanding the general verdict. Other questions presented and discussed by appellant in his brief need not be discussed. Judgment reversed with instructions to the trial court to set aside the judgment rendered herein and to sustain appellant's motion for judgment on the interrogatories and the answers thereto notwithstanding the general verdict, and enter judgment for appellant.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427052/

Appellee brought this action as surviving widow and beneficiary of Lawrence Hicks, a member of the International Union of Steam Operating Engineers, against the appellants as members and representatives of said union, for death benefits alleged to be due her from said union because of the death of her husband. The cause was submitted to a jury for trial, which resulted in a verdict and judgment for appellee. *Page 180 Appellee's complaint was in one paragraph alleging, in substance, that the International Union of Steam Operating Engineers was an unincorporated association engaged in the business of insuring the lives of its members; that on July 1, 1925, there was in force sections 2 and 9 of article 22 of the constitution, general laws and rules of said association which were set out in full in the complaint. Section 2 provided that six months after the increase in per capita tax went into effect, death benefits should be paid to beneficiaries of members in continuous good standing under the provisions of said section as follows and not otherwise; "Class 3. Beneficiaries of members in good standing for more than five years shall receive $500." Section 9, provided that the beneficiaries should be paid according to a table therein set out, unless otherwise specified by insured members, and first, if there was a widow and child or children surviving, the widow should receive all the benefit. That on February 23, 1915, her husband became a member of said association, paid the required admission fee and thereafter performed all the conditions precedent to be performed until March 7, 1929, when he died; that the appellee performed all conditions precedent to be performed on her part; that said per capita tax went into effect July 1, 1925; that Lawrence Hicks left surviving him the appellee and children; that in the month of March, 1929, the association denied all liability on the contract of insurance; that there were thousands of members of said association residing in every state in the United States and foreign countries; that it would be impracticable and impossible to join all of them as parties to this action; that the appellants were members of the association, and were made defendants to represent and act for all members of the association. Appellants filed a demurrer to this complaint which was overruled. *Page 181 To the complaint the appellants filed an answer in five paragraphs. The first paragraph of answer was a general denial, the second, third, fourth and fifth paragraphs, set out in different particulars, how and in what manner the decedent had failed to comply with article 22 of the constitution, general laws and regulations of the union and had therefore forfeited his right to death benefits, making this article an exhibit to the answers; the fifth paragraph, also alleged decedent's failure to comply with articles 13 and 16 of the constitution, general laws and rules of said union, which were made a part of this paragraph of answer, thereby forfeiting his rights as a member. These by-laws or the substance thereof, so far as necessary, will be hereafter set out. To these special paragraphs of answer the appellee filed a reply in two paragraphs; the first was a general denial. The second set out section one of article 16 relating to the payment of membership dues, and section 4 of article 13 relating to the payment of per capita tax by the local to the international union, contained in the constitution, general laws and rules of the organization; and alleging further, that with the knowledge and acquiescence of the international union, the local union of which decedent was a member, had followed a certain custom in the payment of dues and reporting of members in good standing to the international union, which custom and practice was relied upon by decedent, and that therefore appellants had waived any right that they might have to forfeit his membership in said union or the claim of his beneficiaries to death benefits. To this second paragraph of reply appellants demurred upon the ground that it was a departure from appellee's original cause of action. This demurrer was overruled. Appellants have appealed to this court assigning as errors: (1) That the court erred in overruling appellants' *Page 182 demurrer to appellee's complaint; (2) that the court erred in overruling appellants' demurrer to appellee's second paragraph of reply; (3) that the court erred in overruling appellants' motion for a new trial. Appellants alleged as their first ground of demurrer, that the court had no jurisdiction over their person. In the title of the complaint they were designated as members of the 1. International Union of Steam Operating Engineers, and in the complaint it was alleged that this union was an unincorporated association engaged in the business of insuring lives of its members; also, that there were thousands of members of said association residing in every state in the United States and in foreign countries; that it would be impracticable and impossible to join all of the members as parties defendant to the action and that the defendants as members of said association were made defendants to the action to represent and defend for all members thereof. The record shows that the defendants made a full appearance to the action. The want of jurisdiction of the court over the person of the defendants does not appear in the complaint so there was no error in overruling appellants' demurrer on this ground. 1 Watson's Works Practice, §§ 121, 502. As a second ground of demurrer appellants say, that there is a defect of parties defendant, in this, that the complaint shows that the defendants are sued as members of an 2. unincorporated association, that said association is composed of members, local unions, local joint executive boards and state branches; that the state branch in the state of Indiana, the local union and the local joint executive boards within the state of Indiana and none of them had been served with process. This demurrer was insufficient in form to present any question pertaining to a defect of parties defendant, to the trial court for its consideration. A *Page 183 demurrer for defect of parties must point out specifically defects complained of, giving the name or names of parties who should be joined, stating whether as plaintiffs or defendants. "This is because the demurrer for such cause performs the same office as a plea in abatement performs where the defect of parties does not appear upon the face of the complaint."Boseker v. Chamberlain (1903), 160 Ind. 114, 66 N.E. 448; 1 Watson's Works Practice, §§ 275 and 574, and authorities there cited. The court did not err in overruling the demurrer on this ground. As their third ground of demurrer, appellants say that the complaint does not state facts sufficient to constitute a cause of action, in support of which, appellants filed three 3. separate paragraphs of memoranda. Any error dependent upon the first two paragraphs of memoranda are waived by failure of counsel for appellants to discuss them in their brief. The third paragraph of memoranda to this ground of demurrer is, that: "The complaint shows on its face that the per capita tax, together with the provisions of article 22 of the constitution, general laws and rules of the association, providing for the payment of death benefits, went into effect on July 1, 1925; that the plaintiff's decedent died on the 7th day of March, 1929; that only beneficiaries of members in good standing for more than five years after July 1, 1925, are entitled to recover from the defendants the amount which the plaintiff seeks to recover in her complaint. (A) Statutes and ordinances are presumed to be prospective in their action and are thus construed unless expressly shown to mean the contrary. (B) By-laws must be similarly construed." This memoranda is based upon and requires a consideration of sections 1, 2 and 5 of article 22 of the constitution, general laws and rules of the union. Sections 1 and 2 are as follows: "Section 1. *Page 184 For the purpose of creating a Death Benefit Fund, the per capita tax paid the International Union of Steam Operating Engineers is hereby increased twenty-five cents (25c) per month per member. This increase of twenty-five cents (25c) shall be deposited in a Death Benefit Fund and is to be used for no other purpose than for the payment of death benefits and the expense necessary to operate said department. (This article becomes operative July 1, 1925.) "Sec. 2. Six months after the increase of the per capita tax goes into effect, death benefits shall be paid to beneficiaries of members in continuous good standing under the provisions of this section as follows and not otherwise. Class 1. Beneficiaries of members in good standing for a period of six months to two years shall receive $100.00. Class 2. Beneficiaries of members in good standing from two to five years shall receive $250.00. Class 3. Beneficiaries of members in good standing for more than five years shall receive $500.00." It is very apparent that these sections were adopted for the purpose of establishing a death benefit fund, classes among the members of the union to whom payable, and the amount payable to each class. Counsel for appellant insists that these sections of the by-laws must be construed prospectively and not retrospectively, that under that rule no death benefits were payable until six months had elapsed from July 1, 1925, and that decedent did not come within class three of section two because his death occurred within five years from July 1, 1925. The sections of the by-laws above quoted do not attempt to deprive the decedent or his beneficiaries of any vested rights or privileges already existing as a member of the union, but created new and additional rights in its already existing members in good standing *Page 185 at the time of its adoption, on the payment of per capita tax of twenty-five cents per month. The scheme, purpose and object which it was proposed to accomplish by the adoption of these by-laws must be determined from all their provisions. In fact the by-laws themselves provide that they shall be construed together. Section 1 establishes the per capita tax for the purpose of creating a death benefit fund to be applied to no other use. In order to permit the fund to accumulate, section 2 provides that death benefits shall not be paid to any member until six months after the increase in per capita tax. If, as appellants contend, only those members who have been in continuous good standing for a period of five years from July 1, 1925, were entitled to $500 death benefits, then that provision of section 2 delaying the payment of benefits for a period of six months is surplusage and has no meaning. It is self-evident from the language used, that if it was intended that the five-year period should be computed from July 1, 1925, that the by-law would have so stated, and the 4-6. fact that it did not, justifies the single conclusion, that the section is a classification of the members for the purpose of payment of death benefits to be determined from the date upon which they originally became members of the union. This is further apparent for the reason that section 5 of article 22, provided that if a member was suspended from membership and later reinstated, that he must be a member in good standing six months before benefits would be paid, and that his beneficiaries would be entitled to the amount only in his class for the length of time he was a member in good standing after such reinstatement, which provision would be unnecessary if appellants' position is correct. Taken as a whole and construed together as the law requires them to be, we *Page 186 do not find that the sections of the by-laws under consideration are equivocal or uncertain. But if they were, still appellants' position would be untenable, for where insurance contracts are uncertain or equivocal they will be construed against the insurance company, for they are prepared by the company itself, their effect carefully weighed and determined upon, and the parties do not deal upon an equal footing. They are liberally construed in behalf of the insured so as to consummate their purpose, doubts are to be resolved in favor of the insured and strict construction will be invoked against forfeitures. FederalLife Ins. Co. v. Kerr (1909), 173 Ind. 613, 89 N.E. 398,91 N.E. 230; Supreme Council, etc., Legion v. Grove (1911),176 Ind. 356, 96 N.E. 159, 36 L.R.A. (N.S.) 913; Modern Woodmen,etc. v. Miles (1912), 178 Ind. 105, 97 N.E. 1009; Atkinson v. Indiana, etc., Co. (1924), 194 Ind. 563, 143 N.E. 629;Schmidt v. German Mutual Ins. Co. (1892), 4 Ind. App. 340,30 N.E. 939. This rule applies to beneficial associations.Brotherhood, etc. v. Corder (1912), 52 Ind. App. 214,97 N.E. 125. The court did not err in overruling the demurrer to the complaint on this ground. The overruling of appellants' demurrer to appellee's second paragraph of reply to their second, third, fourth and fifth paragraphs of answer is the next error assigned for 7. reversal. The ground of demurrer was, that appellee's second paragraph of reply was a departure from the original cause of action. As heretofore stated this paragraph of reply alleged a waiver of the right of the union to declare a forfeiture by appellee to death benefits. Whether this ruling of the court was error is not necessary for us to decide. The court, during the trial of the cause, announced that the question of waiver set out in the second paragraph of reply did not enter into the controversy and no evidence *Page 187 was introduced in support of the facts therein alleged, so if the ruling on this demurrer was error it was harmless. Adams v.Pittsburg, etc., Co. (1905), 165 Ind. 648, 74 N.E. 991;Leonard v. City of Terre Haute (1911), 48 Ind. App. 104,93 N.E. 872; Smith v. Frantz (1915), 59 Ind. App. 260,109 N.E. 407. The overruling of appellants' motion for a new trial is the last error assigned. The first cause assigned for a new trial, and discussed by appellants in their brief is, that the amount of the recovery is too large. The questions there presented were fully disposed of in our discussion of appellants' third ground of demurrer to the complaint so further consideration is unnecessary. The second cause for a new trial is, that the verdict of the jury is not sustained by sufficient evidence; third, that the verdict is contrary to law; fourth, errors of law occurring at the trial, under which appellants alleged error of the court in refusing to admit in evidence defendants' exhibit No. 2, which was a receipt book kept by the local union, also, error of the court in refusing to direct a verdict for the appellants, and refusal to give certain instructions, tendered by appellants, and the giving of certain instructions by the court of its own motion, and instructions 1, 3, 4, 6, 7, and 8, tendered by appellee. Defendants' Exhibit No. 2 was an official membership book in which was kept a record of the payments of dues to the local union. As their reason for the admission of the exhibit 8, 9. in evidence, counsel for appellants stated that, a book similar to the exhibit was carried by each member and it contained a notice that unless the book was stamped, dues paid, for the date on which he died, death benefits would not be paid under the by-laws. It was agreed by both appellant and appellee that the decedent had not paid his *Page 188 dues to the local union for the months of January and February, or for the month of March previous to the 7th day thereof, when he died. The by-laws relating to the payment of dues were admitted in evidence, each member was charged with notice of their provisions. What the effect of a member's failure to pay his dues would have on his right to death benefits was a legal question for the court to determine. This evidence would have been cumulative only, inasmuch as any facts contained in the exhibit were admitted or already proved by other competent evidence, so the court did not err in excluding it. By instruction No. 6, the court was told that an unincorporated union could not be sued as such, but that an action could be maintained against some of its members as 10, 11, representatives of the union. Also that the provision of the by-laws, providing that no suit could be brought against members of the local union, and that no members should be liable for death benefits was void. Sec. 277, Burns 1926, Acts 1881, p. 240, provides that, "Of the parties in the action, those who are united in interest must be joined as plaintiffs or defendants; but, if the consent of anyone who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint, and where the question is one of a common or general interest of many persons, or where the parties are numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole." This section was formerly section 19 of the code of civil procedure, approved June 18, 1852; 2 Ind. Statutes, 1852, p. 31; and from its original enactment up to the present time has never been changed or amended. As heretofore observed, this action is not against the defendants as individuals, but as members of the International *Page 189 Union of Steam Operating Engineers. The complaint alleged facts bringing the case within the classes comprehended by the statute, and clearly indicating that the defendants are sued, not in their individual capacity, but as representing and defending for all members of the union. We do not find that an application of Sec. 277, supra, to a set of facts identical to those involved in this case has been made by the courts in this state. We are therefore required to look to the authorities and courts of other states for information and guidance. At common law an unincorporated association cannot be sued in its society or company name, but it is necessary that all members be made parties to the action, since such bodies, in the absence of statute, have no legal entity distinct from that of their members. 5 C.J., § 118, p. 1369. Equity, recognizing the fact, that in many instances, this rule was harsh and would defeat the enforcement of legal and equitable rights, adopted the equitable doctrine of parties by representation, and in the enactment of the above section of our code, the legislature evidently intended to and did incorporate in it, that equitable doctrine. The statute has been so recognized and applied to different sets of facts in the following cases in this state. Tate v. Ohio,etc., Co. (1858), 10 Ind. 174, 71 Am. Dec. 309; Sourse v.Marshall (1864), 23 Ind. 194; Blair v. Shelby (1867),28 Ind. 175; Zuelly v. Casper (1903), 160 Ind. 460, 67 N.E. 103, 63 L.R.A. 133; Gaiser v. Buck (1931), 203 Ind. 9,174 N.E. 83. "This section of the code (says Pomeroy) is a re-enactment of a rule which had prevailed in equity, and is to receive a construction which will make it identical with the pre-existing doctrine." Pomeroy, Code Rem., 4th Ed., sec. 289. After having discussed some of the exceptions to the common-law rule, Justice Story summarized them in *Page 190 the following language: "The most usual cases arranging themselves under this head of exceptions are, (1) where the question is one of a common or general interest, and one or more sue, or defend for the benefit of the whole; (2) where the parties form a voluntary association for public or private purposes, and those, who sue, or defend, may fairly be presumed to represent the rights and interests of the whole; (3) where the parties are very numerous, and although they have, or may have separate, distinct interests; yet it is impracticable to bring them all before the court." Story's Equity Pleading, 10th Ed., § 87, p. 102. And at section 107 of the same volume, the reason for the rule as applied to the second class of cases above suggested is set forth as follows: "The second class of cases, constituting an exception to the general rule, and already alluded to, is, where the parties form a voluntary association for public or private purposes, and those who sue or defend, may fairly be presumed to represent the rights and interests of the whole. In cases of this sort the persons interested are commonly numerous, and any attempt to unite them all in a suit would be, even if practicable, exceedingly inconvenient, and would subject the proceedings to the danger of perpetual abatements, and other impediments, arising from intermediate deaths, or other accidents, or changes of interest." In 22 Ency. of Plea Prac., p. 247, the application of the rule is stated in this language: "The equitable doctrine of parties by representation, embodied in most if not all of the codes, that when the question is one of a common or general interest to many persons, or where the parties are very numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole, is applicable in actions against unincorporated societies, and a few members are permitted to represent all the others as *Page 191 defendants when their number is greater or when some of them are unknown." In Niblack, Ben. Soc., pp. 181 and 183, the rule applicable in cases like the present is thus expressed: "If the members of a society are so numerous that they cannot be made parties to a cause with any chance of bringing it to a hearing, in consequence of abatement and like difficulties, suit may be brought in the name of one or more for the use of all, or two or three members may be made defendants to represent the interests of all." The same rule is announced in Corpus Juris where many authorities are collected. 5 C.J., § 122, p. 1371. See also 47 C.J., § 139, p. 66. In the case of Pearson v. Anderburg (1905), 28 Utah 495,80 P. 307, the appellant, as administratrix, brought suit against the appellees as members of an unincorporated association for sick benefits accruing to her husband as a member, previous to his death, judgment was recovered by appellant and appellees appealed upon the ground that the action could not be maintained against an unincorporated association by making a part of the members defendants for the whole. The court held that this position was not tenable and sustained the judgment. In the case of Bransom v. I.W.W. (1908), 30 Nev. 270,95 P. 354, the appellant brought an action against the Industrial Workers of the World, a voluntary unincorporated association, making some of its members parties defendant to the action, for damages suffered because of a conspiracy to boycott and injure appellant's business. A motion to dismiss the action because of a defect of parties defendant was sustained. The statute relating to parties was almost identical with our own. The court in reversing the case, in the course of its opinion, said: "We think it was the intention of the Legislature, by this provision of the statute, to make the *Page 192 equity rule applicable to all proceedings in the courts of this state, whether the same be of a legal or equitable nature. Under our Code provision, there is but one form of civil action, and legal and equitable distinctions, so far as practice is concerned, are largely, if not entirely, done away with. To hold that the defendant organizations cannot be sued without including all members, which are so numerous, scattered and difficult to ascertain might cause such hardship and delay as would amount to a denial of justice. It is hard to conceive of any case to which the statute would be more applicable in its provisions that where the parties are numerous one or more may sue or defend for all." In the case of Platt v. Colvin (1893), 50 Ohio St. 703,36 N.E. 735, in a well considered opinion where many authorities are reviewed, the equitable doctrine is recognized and adhered to. One of the most profound and illuminating discussions of the equitable doctrine and its application to present day conditions is contained in the opinion of Chief Justice Taft in the case ofUnited Mine Workers v. Coronado Coal Co. (1922),259 U.S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A.L.R. 762. We quote from the opinion: "Undoubtedly at common law, an unincorporated association of persons was not recognized as having any other character than a partnership in whatever was done, and it could only sue or be sued in the name of its members, and their liability had to be enforced against each member. (Citing authorities.) But the growth and necessities of these great labor organizations have brought affirmative legal recognition of their existence and usefulness and provisions for their protection, which their members have found necessary. Their right to maintain strikes when they do not violate law or the rights of others, has been declared. The embezzlement of funds by their officers has been especially *Page 193 denounced as a crime. The so-called union label, which is a quasi trademark to indicate the origin of manufactured product in union labor, has been protected against pirating and deceptive use by the statutes of most of the states, and in many states authority to sue to enjoin its use has been conferred on unions. They have been given distinct and separate representation and the right to appear to represent union interests in statutory arbitrations, and before official labor boards. We insert in the margin an extended reference, furnished by the industry of counsel, to legislation of this kind. More than this, equitable procedure adapting itself to modern needs has grown to recognize the need of representation by one person of many, too numerous to sue or to be sued (citing authorities); and this has had its influence upon the law side of litigation, so that, out of the very necessities of the existing conditions and the utter impossibility of doing justice otherwise, the suable character of such an organization as this has come to be recognized in some jurisdictions, and many suits for and against labor unions are reported in which no question has been raised as to the right to treat them in their closely united action and functions as artificial persons capable of suing and being sued. It would be unfortunate if an organization with as great powers as this International Union has in the raising of large funds and in directing the conduct of 400,000 members in carrying on, in a wide territory, industrial controversies and strikes, out of which so much unlawful injury to private rights is possible, could assemble its assets to be used therein free from liability for injuries by torts committed in course of such strikes. To remand persons injured to a suit against each of the 400,000 members to recover damages and to levy on his share of the strike fund would be to leave them remediless." The following, among other cases, adhere to the application *Page 194 of the statute above announced. McKenzie v. L'Amoureaux (1851), (N.Y.), 11 Barb. 516; Van Houten v. Pine (1882),36 N.J. Eq. 133; Gorman v. Russell (1860), 14 Cal. 531; Stateex rel v. Webb (1893), 97 Ala. 111, 12 So. 377, 38 Am. St. Rep. 151; Faber v. Faber (1907), 76 S.C. 156, 56 S.E. 677. Since the distinction between actions at law and suits in equity were abolished in the code adopted in 1852, it has been held that statutes similar to sec. 277, supra, apply to actions at law as well as suits in equity. 2 Ind. Statutes, 1852, part 2, sec. 1. Burns 1926, sec. 256, Acts 1881 (special session), page 240. 21 C.J., sec. 293, p. 293; 47 C.J., sec. 139, p. 66; Pomeroy, Code Rem., 4th Ed., sec. 290; Platt v. Colvin, supra;Branson v. I.W.W., supra. Appellants have cited some authorities in support of their position, but we do not think that they are controlling under the facts of the instant case. Section 12 of article 22 of the by-laws provides that "no suit shall be brought against a local union or member and no local union or member thereof shall be liable for the death 12, 13. benefit herein provided for." It also provides that the general secretary-treasurer shall have authority to investigate the legality of any claim. We find nothing more in the by-laws regarding the determination of the validity of a claim for death benefits. The uncontradicted evidence shows that the claim for death benefits for Lawrence Hicks was referred to the general secretary-treasurer, who, on March 15, 1929, before the commencement of this action, denied any liability on the part of the International Union of Steam Operating Engineers. It was stipulated in the by-laws that upon the death of a member a certain sum of money would be paid to his beneficiaries, upon condition that he had paid certain dues therein provided. This amounted to a valid contract to *Page 195 pay money based upon a consideration. Under such circumstances, it has long been the rule in this state, that a provision in the by-laws of such an association as the appellant, prohibiting the bringing of an action for benefits is not valid. Bauer v.Samson Lodge (1885), 102 Ind. 262, 1 N.E. 571; SupremeCouncil v. Garrigus (1885), 104 Ind. 133, 3 N.E. 818, 54 Am. Rep. 298; Supreme Council v. Grove, supra; Kempton Lodge v.Mozingo (1913), 180 Ind. 566, 103 N.E. 411; LocomotiveEngineers, etc., Ass'n. v. Higgs (1922), 79 Ind. App. 427,135 N.E. 353. Whether that portion of the instruction to the effect that no member of the union "shall be liable for the death benefit provided for in said by-laws is void and of no force and 14. effect" was erroneous, is not necessary for us to decide. The verdict returned by the jury was against the defendants as representatives of the union, the judgment conforms to the verdict. The cause was not tried upon the theory of the individual liability of appellants and no effort was made either in the verdict or judgment to bind them as such, so even though that portion of the instruction above quoted may have been erroneous, it does not appear that the jury was influenced or misled to the injury of appellants and that statement was therefore harmless. Worley v. Moore (1884), 97 Ind. 15;Putt v. Putt (1897), 149 Ind. 30, 48 N.E. 356, 51 N.E. 337;Van Vleck v. Thomas (1893), 9 Ind. App. 83, 35 N.E. 913;Pearsons v. Anderburg, supra. The giving of this instruction did not constitute reversible error. Appellants also complain of the court's action in giving to the jury instructions No. 1, 3, 4, 7 and 8, requested by appellee. Appellants do not suggest or discuss, how or in what 15. manner instruction No. 8 was erroneous, in points and authorities *Page 196 of their brief, so any question as to the correctness of this instruction is waived. The substance of instructions No. 1, 3, 4 and 7, was as follows: Instruction No. 1 informed the jury that it was the province of the court to construe the by-laws of the union and if it found from the evidence that Lawrence Hicks was a member, that his dues were paid to and including the month of December, 1928, and for five years previous thereto; that he died on the seventh day of March, 1929; that the union within 60 days after his death denied all liability on grounds other than proofs of death or insufficiency thereof; that appellee had knowledge of this fact and that she was the wife of decedent, then the verdict should be for appellee. In instruction No. 3, the jury was told that a member of the union had the entire month in which his dues became due to pay the same; that if decedent died on March 7, 1929, before his dues were paid for that month, that the union denied all liability for death benefits, because of such death during such month, of which fact appellee had knowledge, then she was excused from paying dues for said month, and the union could not forfeit her right to benefits because of non-payment of dues for that month. In instruction No. 4, the court said to the jury, that so far as the international union was concerned, payment by the local union of the decedent's dues, out of its own funds for the months of January and February, 1929, to the international union, was equivalent to payment by himself, and that the international union could not forfeit appellee's right to benefits because decedent had failed to pay his dues to the local union. In instruction No. 7, the jury was advised that if decedent was a member of the union in good standing for more than five years previous to his death then appellee would be entitled to recover the sum of $500 *Page 197 under the by-laws, from which should be deducted the sum of $4.50 for dues for the months of January, February and March, 1929; to the sum computed should be added interest at 6 per cent per annum from the date the benefits became due and payable; that if liability was denied then the sum became due and payable from the date of such denial. The same question is presented by instruction No. 7 as was contained in appellant's third ground of demurrer to the complaint, which has been fully discussed and disposed of. The court did not err in giving this instruction. Section 1 of article 16 of the by-laws provided that a member should pay his dues up to date, and if in arrears for more than three months, he should not be considered in good 16, 17. standing; if in arrears for more than three months he was deemed in bad standing, and should stand suspended from all privileges of membership, including attendance at meetings, but not expelled. This by-law also provided that the local union should pay per capita tax to the international union until notified by the local union of the member's suspension. Section 3 of article 22, defined a member in good standing, as one who had not been reported as suspended or expelled from the local to the international union for any cause whatever, and one who had his dues paid to the local union to the date of his death. In construing these by-laws it is necessary that we keep in mind the rules applied by the courts and heretofore referred to. The evidence which is not in conflict shows that at the time of the death of Lawrence Hicks his name was carried upon the roll of members in good standing in his local union, and the local union never had reported him to the international union as suspended for any cause. In addition to this, the local union, as provided *Page 198 in its by-laws, had paid the international union his per capita tax for the months of January and February, and they were never returned by it. This was equivalent to payment by himself and whether he had reimbursed the local union for the dues thus paid, previous to his death would not give to the international union the right to forfeit his death benefits. Knights, etc. v.Patton (1918), 179 Ky. 410, 200 S.W. 614; National, etc. v.Landrum (1924), 204 Ky. 176, 263 S.W. 747; Puls v. GrandLodge (1904), 13 N.D. 559, 102 N.W. 165; Walton v. Fraternal,etc., Ass'n. (1910), 149 Mo. App. 493, 130 S.W. 1124; Order,etc. v. McAdam (1903), 125 F. 358; 2 Bacon, Ben. Soc. (New Ed.), sec. 383; 19 R.C.L., § 73, p. 1272. Furthermore, it appears from the evidence that Lawrence Hicks died on March 7, 1929, which was within the three months' period, which, under the provisions of section 1, article 16 of the by-laws, was required to elapse before he could be suspended for non-payment of dues. In order to work a forfeiture of death benefits as contended for by appellants, it would be necessary to give full force and effect to that clause of section 3 of article 22, which provides that a member to be in good standing must have his dues paid to the local union to the date of his death, thus ignoring the effect of the preceding language of that section and all of section 1 of article 16. Forfeitures are not favored by the courts; to declare a forfeiture in this case would require us to act contrary to all rules of construction adopted for the guidance of courts under such circumstances. There was no condition in the by-laws requiring the dues to be paid in advance so that decedent had the entire month in which to pay them and was therefore not delinquent for his March dues when he died. 4 Cooley's Briefs on Ins. (2nd Ed.), p. 3724, 2 Bacon Ben. Soc. (New Ed.), p. 767, sec. 389. The court did *Page 199 not commit error in giving instructions No. 1, 3 and 4. It necessarily follows that the court did not err in refusing to direct a verdict for the appellants at the close of all the evidence given in the cause. Appellants complain of the refusal of the court to give to the jury instructions No. 1, 2, 3, 4 and 6, tendered by appellants. An examination of the record discloses that the 18. instructions tendered were not signed by appellants or their counsel as required by law and are therefore not properly presented for our consideration. Subd. 4, sec. 584 and sec. 586 Burns 1926; Board of Commissions v. Legg (1886),110 Ind. 479, 11 N.E. 612, and authorities there cited. Appellants have waived any error committed by the court in giving instructions on its own motion, by failure to discuss them in their brief. Finding no reversible error the judgment is affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427054/

May 16, 1936, the appellant filed a transcript of a portion of the proceedings of the lower court, together with his assignment of errors properly *Page 603 attached thereto, in the office of the clerk of this court, and it was on the same day docketed as a cause pending herein on appeal from a judgment of said lower court under the above title and number. June 12, 1936, Thomas H. Seward, Oscar Phillips, Luther Pulley, Dr. J.T. Barnett, Dr. J.C. Knight, for themselves and all other like creditors of The Citizens State Bank of Jonesboro, Indiana, and Ralph Dickey, appellee herein, filed their verified petition to substitute as parties appellee the legal representatives of one William Schrader, now deceased. This petition is now sustained and the substitution of parties is ordered made as therein prayed. June 12, 1936, the above named and designated appellees filed in the office of the clerk of this court, under the above entitled cause, what purports to be a transcript of a portion of the proceedings had in the lower court, in the cause in which this appeal is being prosecuted, including therein the original bill of exceptions containing the evidence. This transcript also has attached to it what said appellees are pleased to designate as an "assignment and cross-assignment of errors." From this purported transcript it appears that it was prepared by the clerk of the Grant Superior Court in response to the request contained in a special praecipe filed in his office May 22, 1936, by the above named and designated appellees. It was not brought into and made a part of the record in this cause in response to a writ ofcertiorari issued out of this court to the clerk of the Grant Superior Court. September 28, 1936, the appellees, Ella Schrader, Anna Schrader, Clara Schrader Young, Edward A. Schrader, Harry J. Schrader and Otto H. Schrader, filed a motion in this court 1. to strike out and not to consider the record and transcript of the record below, filed in this court June 12, 1936, by their co-appellees *Page 604 Thomas H. Seward et al. Whether or not the several grounds upon which this motion is based are tenable, are questions which it is not necessary for this court to determine. An examination of the certificate of the clerk of the Grant Superior Court, attached to said transcript filed June 12, 1936, shows that it is signed by the clerk, but said certificate does not bear the seal of the court. Section 2-3222 Burns 1933, § 496 Baldwin's 1934, as interpreted by our Supreme and Appellate courts, requires a transcript of the record in a cause in order to present any errors to either court for its consideration, to be certified by the signature of the clerk and sealed with the seal of the court. "It is the imperative requirement of the statute that the seal of the court below must be affixed to the certificate, as well as that the clerk shall suscribe his name thereto, to present any question to this court." Fidelity, etc., Co. v. Byrd (1900),154 Ind. 47, 55 N.E. 867; Johnson, Admr. v. Johnson (1900),156 Ind. 592, 60 N.E. 451; Comstock v. Stoner (1902),30 Ind. App. 529, 66 N.E. 501. Because it is not properly certified, the transcript filed in the clerk's office by Thomas H. Seward et al., appellees, June 12, 1936, is not before us for any purpose. This leaves for our consideration only such questions as are presented by the transcript filed in this court by the appellant May 16, 1936. March 28, 1932, the appellees, Thomas H. Seward, Oscar Phillips, Luther Pulley, Dr. J.C. Knight, and Dr. J.T. Barnett, for themselves and all other like creditors of The Citizens State Bank of Jonesboro, Indiana, as plaintiffs, brought suit against the appellant and other named persons as defendants, in the Grant Superior Court for the purpose of recovering from said defendants money alleged to be due and owing from them as partnership owners of said bank, which was insolvent, to the plaintiffs as depositors in said bank. *Page 605 December 21, 1934, the appellee, Ralph Dickey, as sole plaintiff, brought suit in the Grant Circuit Court against the same defendants for the same purpose. The complaints in each of these actions were practically the same. June 28, 1935, this cause was transferred to the Grant Superior Court. September 9, 1935, on motion of the parties, the cause filed in the Grant Circuit Court, by Ralph Dickey as plaintiff was consolidated with the cause filed in the Grant Superior Court by Thomas H. Seward et al and they were thereafter treated and tried as one cause of action. The issues on which the cause was tried consisted of a complaint in one paragraph, and an answer in general denial. On request of the parties, the court found the facts specially and stated its conclusions of law thereon, to the effect that the plaintiffs were entitled to recover from the defendant, Lee R. Lindley, the appellant here, the sum of $31,547.95, pursuant to which judgment was rendered. Appellant appeals, assigning as error for reversal, that the court erred in its first and third conclusions of law. From the record before us, it appears that the appellant did not file a motion for a new trial, and the evidence is not in the record. The appellant's sole contention, as we interpret it, is that the special finding of facts is not sufficient to sustain the lower court's conclusions of law numbered one and three stated thereon. By excepting to the conclusions of law, the appellant admits for the purpose of the exceptions only, that the facts upon which the conclusions are based have been fully and correctly 2-4. found, limited however, to the facts found within the issues formed by the pleadings. 2 Watson's Work Practice, Sec. 1609, and authorities there cited. The appellant did not see fit to controvert the truth of the facts contained in the special finding, by filing a motion for a new trial. It is *Page 606 the law, sustained by a long unbroken line of authorities, that the special finding of facts must contain all the facts necessary to entitle the party to a recovery, in whose favor the conclusions of law are stated. 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. 2 Watson's Works Practice, Sec. 1594, and authorities there cited. ". . . where the primary facts found lead to but one conclusion, or where such facts are of such a character that they necessitate the inference of an ultimate fact, such ultimate fact will be treated as found by the trial court and sufficient on appeal. In such instances the facts are sufficiently found, though there may be a technical defect of statement in the finding. If the finding of facts contains enough ultimate facts to support the judgment, it will be sufficient, though it may not find all the issuable facts and may contain primary or evidentiary facts. Furthermore, in determining whether conclusions of law are supported by a special finding of facts, it is necessary to bear in mind the rule that `a special finding, like a special verdict, a series of instructions, or the like must be considered as a whole, and it cannot be dissected into fragmentary parts and successfully assailed in detail. One part may be considered in connection with other connected parts, or parts referring to the same transaction, and if, taken as a whole, the finding legitimately supports the judgment, it will be upheld.' And in determining whether the judgment is thus supported, all intendments and presumptions are in favor of the finding rather than against it. National Surety Co. v. State (1913), 181 Ind. 54, 103 N.E. 105, 107; Mount v. Board ofCom'rs (1907), *Page 607 168 Ind. 661, 80 N.E. 629, 14 L.R.A. (N.S.) 483; Harris v. Riggs (1916), 63 Ind. App. 201, 112 N.E. 36." Stewart v. Flynn (1936), 101 Ind. App. 692, 695, 200 N.E. 706. These rules outline the course to be pursued in an examination of the record before us. The complaint on which the cause was tried, in so far as it stated a cause of action against appellant, alleged the organization of the bank as a private partnership; that in the month of September, 1930, because of its insolvency it was placed in receivership for the purpose of liquidating its affairs; "That prior to the appointment of receiver herein, the defendant, L.R. Lindley, to wit; up to and including the 13th day of May, 1930, was a partner and shareholder in said bank, but on said day sold and transferred his interest in said bank and partnership to the defendant herein" . . . "Plaintiffs further aver that for a long time prior to the 13th day of May, 1930, the defendant, L.R. Lindley, was a partner in said bank and owned an interest in same and was a shareholder thereof, and that immediately prior to the said 13th day of May, 1930, he, the said Lindley, became cognizant of the fact that said bank was hopelessly insolvent and that same had been hopelessly insolvent for a long time prior to said day; that he well knew that as a partner thereof, he was liable to the creditors of said bank and about said time, began to make such arrangements to transfer and dispose of his interest in said bank as might eliminate him as a partner therein and discharge any liability to which he might be subjected by reason of his partnership interest, and in pursuance of his intention to dispose of his said interest, he did on the 13th day of May, 1930, sell, transfer and assign to the defendant, Watson D. Jay, for a nominal consideration, his share and interest in said partnership, with the sole intention and purpose to relieve himself of any liability to the creditors of said *Page 608 bank, well knowing at the time said bank was insolvent and had been in such a state for a long time prior thereto; That said defendant, L.R. Lindley, is by reason of the foregoing facts, liable to account to these plaintiffs for the money due them as creditors of said bank." That the plaintiff's several claims were for money on deposit in said bank at the time it was closed, having been on deposit for different lengths of time prior to the appointment of the receiver; that there was a deficit between the total amount of deposits and the funds to be realized from the assets of the bank by the receiver in in the sum of approximately $100,000.00; that the total amount of deposits of all forms in the bank when it closed aggregated $123,000.00 and but 20% had been paid on the plaintiffs' claims, with a possibility that an additional 5% might be paid. The complaint closed with a prayer for judgment against all the defendants thereto, including appellant. The facts as found by the court, in so far as they in any way relate to the appellant's connection with the bank, and his liability to the plaintiffs, are as follows, we quote: "1. That The Citizens Bank of Jonesboro, Indiana referred to in the complaint herein was organized in 1906 as a partnership and private banking institution and continued to be operated and managed and its business was conducted as a private bank up to the time said bank ceased doing an active business and that it was operated as a partnership from the time of its organization to the 6th day of September, 1930, at which time its active business was suspended and said bank closed and the said bank was during all the time it conducted an active business operated and controlled and supervised under the laws of this state regulating private or partnership banks then in force. "2. That on the 13th day of May, 1930, and prior thereto and at all times thereafter said bank was exclusive *Page 609 of the individual worth of the partners, wholly insolvent. That said Citizens Bank of Jonesboro, Indiana, was closed for business on September the 6th, 1930, and was placed in the hands of a Receiver by the Grant Circuit Court soon thereafter and its affairs are still in charge of one Frank M. Hundley as Receiver. That in the administration of such Receivership nearly all the property and assets of the bank have been reduced to cash and a distribution of 25% of all the plaintiffs' claims have been paid by the Receiver and that the Receivership will pay a further dividend of 3% of the total liability. "3. That the defendants Lillian Prickett, Olin Gordon, Rose Maloy, Anna R. Halpin, Benjamin Bloch, Watson D. Jay, Albert R. Lazure and Ella Schrader, Trustee, were the owners of the stock and of the partnership assets of said bank at the time the receiver was appointed on or about September 6th, 1930. "4. That on the 10th day of June, 1913, a certificate of stock or interest in the said Citizens Bank of Jonesboro, Indiana, for five shares of $40.00 each was issued to the defendant Lee R. Lindley, who continued to own the same until the 13th day of May, 1930, when the said defendant Lee R. Lindley, sold, transferred, assigned in writing and delivered to the defendant Watson D. Jay of Jonesboro, Indiana, the said certificate of stock and interest in said bank for the sum of $25.00 in cash. That thereafter on the 13th day of May, 1930, The Citizens Bank of Jonesboro, Indiana, notified the Auditor of State and The State Bank Commissioner of Indiana at Indianapolis, Indiana, in writing that said defendant Lee R. Lindley had sold, transferred, assigned and delivered his said certificate of stock and interest in said bank to the said Watson D. Jay and that the said defendant Lee R. Lindley also notified the State Banking Department likewise that on the said 13th day of May, *Page 610 1930, the said assigned certificate or interest was canceled on the books of The Citizens Bank of Jonesboro, Indiana, and a new certificate therefor was issued and delivered to the said Watson D. Jay and in his name. That prior to May 13th, 1930, a printed list of the stockholders, including those mentioned in special finding No. 3 together with the defendant Lee R. Lindley, was posted in said bank immediately to the left of the window, but that on said date a new list was posted in the same place and in the same manner, but with the name of defendant Lee R. Lindley, omitted and in which the name of W.D. Jay, defendant herein, was included and that said list continued to remain in the same position until the time the Receiver was appointed as set out in these findings. That on the 13th day of May, 1930, the defendant Lee R. Lindley ceased to be a stockholder or partner and ceased to own any interest whatever in The Citizens Bank of Jonesboro, Indiana, and that after said date all his interest therein was owned continuously by the defendant Watson D. Jay. "7. That the several owners of the capital stock of said Citizens Bank of Jonesboro, Indiana, never at any time filed any notice in the office of the clerk of the Circuit Court of Grant County, Indiana, setting forth the names of the several owners of said bank or of the capital stock thereof, who conducted the business of said bank under the name and style of Citizens Bank of Jonesboro, Indiana. "15. That after the 25% dividend has been deducted the amount due the plaintiffs and other creditors as against the owners of the stock and partners in The Citizens Bank of Jonesboro, Indiana, as of the date of September the 6th, 1930, is $85,807.88. That the plaintiffs and creditors are entitled to interest at the rate of 6% upon their unpaid claims, taking into consideration the payment of dividends and the date thereof, and that *Page 611 said interest amounts to the sum of $23,740.18 and that the total remaining unpaid plaintiffs and creditors consisting of the original unpaid amount and interest is $109,548.06. That a further dividend of 3% will be paid by the Receiver of the Citizens Bank of Jonesboro, Indiana, which dividend will amount to the sum of $3,432.31, and that the amount of said dividend when deducted from the sum of $109,548.06 leaves a balance of $106,115.75 due and owing the plaintiffs and creditors as against the owners and partners of said bank at the time the Receiver was appointed September the 6th, 1930. "16. That the amount due and owing the plaintiffs and creditors of said bank as of May the 13th, 1930, at the time the defendant Lee R. Lindley withdrew as a partner in said bank, after the subsequent withdrawals by said plaintiffs and creditors has been deducted, amounts to the sum of $27,398.68, making a total sum of the balance of the original claim and interest as against the said defendant Lindley in the sum of $34,980.26. That the Receiver will pay an additional dividend of 3% in the amount of $3,432.31; leaving an unpaid balance due the plaintiffs andcreditors as of May 13th, 1930, in the sum of $31,547.95." (Our italics.) "16 1/2. That on or prior to May 13, 1930, certain creditors of the said Citizens Bank of Jonesboro, Indiana, were owners and holders of certificates of deposit in said bank, and that subsequent to said date, to wit: May 13, 1930, and prior to September 6, 1930, said creditors presented said certificates to the proper officials and agents of said bank, who took, retained, and canceled said original certificates, and issued to the creditors presenting the same, new certificates of deposit in said bank, in lieu of the original certificates, and that the new certificates were outstanding and unpaid when the receiver was appointed for said bank on September *Page 612 6, 1930. With reference to these new certificates of deposit the Court finds the amount of the same to be Thirteen Thousand One Hundred and Fifty-Five and 55/100 ($13,155.55) Dollars and that the same is an obligation of the partners and owners of said bank on September 6, 1930, but that none of said new certificates of deposit or the amount evidenced thereby issued after May 13, 1930, nor any part thereof is an obligation of the defendant, Lee R. Lindley, who the Court finds had withdrawn as a partner in said bank before said new certificates of deposit were issued." "17. That the creditors of said Citizens Bank of Jonesboro, Indiana, including these plaintiffs, are many in number, that not all are interested to the same extent in the funds that may be paid on the judgment to be rendered herein and that it is necessary to distribute the funds, taking into consideration the source from which the fund is derived and the unequal rights of the creditors thereto, and that a receiver should be appointed to receive and distribute said funds to the creditors under order of court and as the interest of the creditors may appear." The conclusions of law of which the appellant complains are as follows: "1. That as between the plaintiffs and the defendants Lillian Prickett, Rose Maloy, Anna R. Halpin, Watson D. Jay, Ella Schrader, Trustee, Fred Schrader, Jr., William Schrader, and Lee R. Lindley the law is with the plaintiffs. "3. That as between the plaintiffs and the defendant Lee R. Lindley, the plaintiffs are entitled to recover from and to judgment against said defendant Lee R. Lindley, and as a part of the aforesaid judgment, in the sum of Thirty-one Thousand Five Hundred Forty-Seven and 95/100 ($31,547.95) Dollars, and costs." It is agreed between the parties to this cause, that the Citizens Bank of Jonesboro was a private partnership *Page 613 bank organized and operated under and pursuant to the provisions of Chapter 109, Acts 1905, p. 182, as amended by Chapter 113, Acts 1907, p. 174; Sections 18-2701 to 18-2714 Burns' 1933, inclusive, §§ 8028 to 8042 Baldwin's 1934, which is, "An act to regulate and supervise the business of banking by individuals, partnerships or incorporated persons." In their brief counsel for appellant say the sole and only question presented by this appeal is, "Does the statute, Acts 1907, p. 174, concerning private or partnership banks, under the facts found by the court below, create any liability whatsoever against the appellant in favor of the depositors and creditors of The Citizens Bank of Jonesboro?" It is asserted that by the passage of the above acts the legislature intended to and did abrogate the common law rules of partnership and that the express provisions of the acts 5. negative any other law or statute with reference thereto. That the Legislature in enacting the Act of 1905, as amended by the Act of 1907, only intended "to regulate and supervise the business of banking by individuals, partnerships or unincorporated persons," as it had a right to do under the police power of the state, and that it did not intend to abrogate all the principles of law controlling partnerships, as they existed previous to the passage of said act is no longer a debatable question in this state. State v. Richcreek (1906),167 Ind. 217, 77 N.E. 1085. In that case the court in holding the act of 1905 constitutional said (p. 222): "The quasi-public nature of the banking business, and the intimate relation which it bears to the fiscal affairs of the people and the revenues of the State, clearly bring it within the domain of the internal police power, and make it a proper subject for legislative control. Bankers invite general deposits primarily for their own profit, and usually obtain a measure *Page 614 of public patronage, and the expediency of guarding the people against imposition, extortion, and fraud, of affording efficient means of detecting irregular practices, and of learning the true financial condition of the bank and the necessity of preserving the confidence of patrons in its solvency and of protecting their interest in case of insolvency, justify inspection and control by the state. When the sovereign people of a state, acting through the legislature find such police regulation necessary to protect public health, safety, or morals, to prevent fraud or oppression, or to promote the general welfare, the power to act in supreme, subject only to such limitations as are imposed by the fundamental law. The question as to what regulations are proper and needful is primarily for legislative decision, yet when the police power is used to regulate a business or occupation which in itself is lawful and useful to the community, the courts, if called upon, must determine finally whether such regulations as may have been prescribed are so far just and reasonable as to be in harmony with constitutional guaranties." All of which indicates a clear manifestation that our Supreme Court regards the act as a regulatory measure and nothing more. In the very recent case of Hall v. Essner (1934),208 Ind. 99, 193 N.E. 86, the appellant contended, (1) That by force of the provisions of Chapter 113, Acts 1907, p. 174, private banks subject thereto were in law corporations and the liability of stockholders therein was governed by Section 6, Article XI, of the State Constitution; and (2) That even if private banks were not corporations they were included in the term "every bank and banking company" as used in Sec. 6, Article XI, of the State Constitution and that therefore the stockholders in such private bank should be individually responsible only to an amount, over and above their stock, equal to their respective shares of stock, for all *Page 615 debts or liabilities of said bank or banking company. In answering both of the above contentions in the negative, the court was called upon to and did determine the intent of the Legislature in passing the Act of 1907 and construed the meaning thereof. Among other things the court in its opinion in that case said: "This case upon its merits, involves this single question: Are the `stockholders' in a private bank subject to the common law liability of partners for debts of the bank, or is their liability limited by § 6 Art. XI, of the Indiana Constitution to an amount equal to `their respective shares of stock'?" Continuing its opinion the court further said (p 106): "But the ultimate judicial injuiry is whether the legislative intent is to create a legal individuality apart from, and legally independent of, the natural persons who are interested in the enterprise in question. If an entity with legal individuality is created it follows that this legal person possesses the ordinary corporate advantages, unless some appropriate legislative action expressly provides otherwise. On the other hand if a legalindividuality is not created by the statutes which affect theconduct of the enterprise in question then the natural personsinterested in the enterprise incur all the obligations andliabilities of common law partners, except insofar as these arelimited by statute or enforceable contracts. (Our italics.) "We have pointed out (supra, p. 103) that the Act of 1907 does not purport to create corporations to conduct a banking business under the terms of the act; but on the contrary, expressly declares its purpose to be `to regulate and supervise the business of banking by individuals, partnerships or unincorporated persons.' Further, we cannot imply a legislative intent to create banking corporations from the provisions of the act which give to `individuals, partnerships or unincorporated *Page 616 persons' engaged in the banking business certain business advantages which are enjoyed by corporations in face of theprovisions which clearly recognize the unlimited financialliability of the owners of the banking business for theobligations of the bank. Section 12 authorizes the bank to sue or to be sued `under the name under which such bank is authorized to transact its business' and then leaves no question that the suit is by or against the individual owner, or owners, under the business name of the bank by providing that `any judgment obtained against any such bank shall be valid and binding against all the persons interested therein.' It is clear from § 11 thatthe legislative intent was to treat the owners of a private bankas partners as respects debts of the bank. This section givesdepositors a first lien on the assets of the bank and thenexpressly provides that for any balance the depositors shallshare in the general assets of the `owner or owners, alike, withgeneral creditors.' (Our italics.) "We conclude that the Act of 1907 `to regulate and supervise the business of banking by individuals, partnerships or unincorporated persons' does not create banking corporations although the effect of some of the provisions therein is to give to partnerships some of the legal advantages which corporations enjoy. A private bank owned by `individuals, partnerships or unincorporated persons' and organized and conducted in accordance with the provisions of the Act of 1907 corresponds closely to the type of business organization known as a joint stock company, which is a `species of partnership'." * * * * "We hold that the Bank of Tocsin is an unincorporated association and that liability of the owners thereof is not affected by § 6 of Art. XI of the Constitution of Indiana." *Page 617 While it was undoubtedly the intention of the Legislature to pass "An Act to regulate and supervise the business of banking by individuals, partnerships or unincorporated persons," which would confer upon such persons or organization some rights which they did not enjoy under the then existing law and to confer upon their creditors certain advantages not enjoyed by them under the then existing law, we do not find anything in the act of 1907 which warrants the conclusion that it is all inclusive and that by its passage the legislature intended to abrogate the existing rules of law pertaining to partnerships. On the other hand we think it is cumulative and is intended to add to and strengthen the provisions of the existing law relating to partnerships engaged in the banking business. It is well established by the authorities that "a partner who has retired from a firm remains liable as principal after that time on all firm obligations incurred previous to his 6. retirement. This rule holds even where his copartners or the new firm have agreed to discharge all such obligations, for while he would not be liable to contribute to the copartners on such obligations, he is bound to the creditors who contracted with the firm when he, as a member of the firm, was a principal in the making of the contract, except in cases where the creditors have agreed to accept and substitute the liability of the continuing partners or new firm, or have become estopped to hold the retiring partner." 1 Rowley Modern Law on Partnerships, sec. 556, p. 705; Parsons on Partnership (4th. Ed.) sec. 313, p. 400; Lindley on Partnership (9th. Ed.) p. 293; 47 C.J. sec. 585, p. 1027; 20 R.C.L. sec. 215, p. 981; Dickenson v.Indianapolis, etc. Co. (1878), 63 Ind. 9; Doxey's Estate v.Servin (1902), 30 Ind. App. 174, 65 N.E. 757; Dean v.Collins (1906), 15 N.D. 535, 108 N.W. 242, 9 L.R.A. (N.S.) 49, note following this case in 9 L. *Page 618 R.A. (N.S.) 76; Clenchfield Fuel Co. v. Lundy (1914),130 Tenn. 135, 169 S.W. 563, L.R.A. 1915B; Julius Andrae Sons Co. v. Peck (1914), 176 Mo. App. 61, 162 S.W. 1059; Mission etcCo. v. Potter (1915), 26 Cal. App. 691, 148 P. 223. One of the predominant reasons for the rule was very aptly stated by the court in the case of Dean v. Collins, supra, in the following language: "The question in controversy (and upon this there is a conflict of judicial opinion) is whether a creditor who is not a party to the agreement between the partners creating this new relation between them, and does not assent to it, but merely has notice of it, is bound by it, and must, after such notice, treat the retiring partner, not as a joint debtor, but as a surety. We have no hesitation in holding that, under such circumstances, the partners continue to be bound as joint debtors to the creditor, pursuant to their original obligation. In our view there is no reasonable ground for a difference of opinion upon this. The obligation of the partners to their creditor was created by contract. They were joint obligors. By the contract they subjected themselves to all of the obligations of that relation, and conferred upon their creditor all of the benefits arising from it. To sustain the doctrine that the partners can, by their own act, change the character of their obligation to their creditor, and without his assent, express or implied, violates the fundamental principles of the law of contract. It abrogates an express contract without the consent of the party beneficially interested, and forces upon him a new contract to which he has not given his assent." We do not find any language in the act of 1907 which would warrant the conclusion that by its passage the Legislature intended to abrogate the above rule pertaining to the 7, 8. liability of retiring partners or the reasons upon which it is predicated. In fact *Page 619 as we interpret the language in the case of Hall v. Essner,supra, our Supreme Court has in effect held to just the contrary view. Appellant contends that "Sec. 11 expressly and affirmatively fixes the time when the first lien on the bank's assets in favor of depositors shall attach `in case it is wound up' and the then owner or owners liable for the balance, if any, it negatives liability to depositors at any other time by any others than the then owners." A reasonable construction of Sec. 11 does not sustain this contention. "It is clear from Sec. 11 that the legislative intent was to treat the owners of a private bank as partners as respects debts of the bank." Hall v. Essner,supra. It is also clear that it was the legislative intent by this section to give depositors in the bank a first lien over other creditors of the bank on its assets in case it is wound up. Except as the rule may be modified by statute, it has long been the law in this state that "the individual creditors have a priority in the administration of individual assets, and partnership creditors can only have distribution of the surplus." This doctrine is stare decisis. Bond v. Nave (1878),62 Ind. 505; Bake v. Smiley (1882), 84 Ind. 212; New Market NationalBank v. Locke (1883), 89 Ind. 428; Schnull v. Schnull (1906), 39 Ind. App. 556, 80 N.E. 432; American Bonding Co. v.State (1907), 40 Ind. App. 559, 82 N.E. 548; 47 C.J. sec. 447, p. 939. It is clear that by the provisions of this section the Legislature intended to and did broaden the rights of creditors in a partnership bank by giving such depositors the right to "share in the general assets of the owner or owners, alike, with general creditors." This section does not say that in case the bank is wound up, that it is the then owner or owners of the bank who shall be liable for any balance remaining unpaid, thus abrogating the rule above *Page 620 referred to under which retiring partners are liable for partnership debts existing at the time of such retirement. To place such an interpretation upon this section of the statute as that for which appellant contends would deprive it of all its beneficial attributes in behalf of the depositor, and would offer a means for his entrapment, for after he had created the relation of debtor and creditor with the bank by depositing his money therein, any one or all of the then owners of the bank could thereafter retire from the partnership, terminate the contract of debtor and creditor, then existing between themselves and the depositors, and in the event the bank is wound up after such retirement as a partner, escape liability for such existing partnership debts. We do not think the legislature intended any such result by the enactment of sec. 11, otherwise it would have said so in no uncertain language. "A partnership is in effect a contract of mutual agency, each partner acting as a principal in his own behalf and as agent for his copartners; the functions, duties, rights, and 9. liabilities of the partners in a great measure comprehending those of agents, and the general rules of law applicable to agents apply with equal force in determining the rights and liabilities of partners. The basis of the liability of the partners is the fact that they are principals in any and every transaction, and not because they are credited and held out as partners." 47 C.J. Sec. 289, p. 826, authorities there cited; 20 R.C.L. Sec. 94, p. 882, authorities there cited; 1 Rowley, Modern Law of Partnership, Sec. 69, p. 217. While Sec. 4 of the Act of 1907 requires the partnership to certify to the Auditor of State, "The names of the officers who are to manage the business of said bank," thus apparently resting the power to represent the partnership as its agents in certain *Page 621 persons, the Act does not restrict the power of such agents to enter into contracts within the scope of the partnership business which will be binding on each member of the partnership as a principal. "It is the law that the members of a copartnership are personally, jointly and severally liable for all of the indebtedness of the firm. Dean v. Phillips (1861),17 Ind. 406; Hardy v. Overman (1917), 36 Ind. 549; Ralston v.Moore (1886), 105 Ind. 243; Schnull v. Schnull, supra. "The creditors of a firm may sue the partners at law, personally, and recover personal judgments against them for the indebtedness owing them by the firm." Swing v. Hill (1909),44 Ind. App. 140, 143, 88 N.E. 721; United States Fidelity etc.,Co. v. Smith (1906), 40 Ind. App. 136, 81 N.E. 226. That is what the plaintiffs did in this case. Appellant agrees that under the common law when a member of a partnership retires from the firm, in order to escape liability, on future contracts entered into by the firm, if it 10. continues in business, he must give such notice of his retirement therefrom as the circumstances of each case demands. But, says appellant, this rule of law is suspended by Sec. 6 of the Act of 1907, which provides that if the interest of any member in the partnership should change by sale, then the auditor of state shall be notified of such change and the printed notice of the owners posted in the banking room shall be changed accordingly, which constitutes notice to the depositors, that the retiring partner is no longer responsible as a partner to the depositors at that time or any other time, that by virtue of the other provisions of the act his liability ceases and no one but an owner or owners at the time of the winding up of the affairs of the bank is liable to the depositors, and then only for the balance after the depositor's *Page 622 first lien on the assets of the bank is exhausted. The provisions of the act do not justify the contention or conclusion reached by the appellant. All the legislature did in this section of the act was to prescribe the kind of notice to be given by a member of the partnership in the event of his retirement from the firm. The purpose of the giving of this notice could not by any method of reasoning, be held to terminate the liability of retiring partners on obligations and contracts entered into previous to such retirement. We find no authority and no language in the Act of 1907, which can be construed as having the effect, were it possible for the legislature to enact such a law, of terminating liability on existing partnership contracts in that manner by retiring partners. It is certain that the only purpose and result intended to be accomplished by the giving of the notice provided for in Sec. 6 is to protect the retiring partner from liability on partnership contracts entered into after such retirement. Appellant contends that there is no finding that he sold his stock with a fraudulent intent, and further, that before there could be any liability imposed upon him, it was necessary 11. to allege and prove that the bank was insolvent at the time he disposed of his stock and retired as a partner; that the issue of insolvency of the bank on May 13th, 1930, was not tendered by the pleadings, and that therefore, the finding of fact that the bank was insolvent on that date is outside the issues and a nullity. These contentions do not aid appellant. Under the Act of 1907, when the appellant sold his stock in the bank on May 13, 1930, he with the other members of the partnership were jointly and severally liable for all the then outstanding obligations of the bank as principals, and under the act, the partners in the bank could be sued with the bank as parties *Page 623 defendant or they could be sued alone for obligations owing by the bank. Borgman v. State (1937), 211 Ind. 395, 5 (2nd) N.E. 522. The plaintiffs below, were not bound to see or suspect the ulterior or sinister purpose, if such there was, working in the mind of the retiring partner (appellant) to escape liability by the sale of his stock and the giving of notice. Clenchfield v.Lundy, supra. Appellant could not terminate the relation of debtor and creditor existing between himself as a partner in the bank and the depositors thereof by a mere sale of his stock therein and retirement as a partner, and this would be true whether, at the time of such sale and retirement the bank was solvent or insolvent. The only reason the court could have to inquire into any solvency or insolvency of the bank would be to marshall the assets thereof for distribution among creditors as provided in Sec. 11. Schnull v. Schnull, supra. Other contentions are made, but they are of such a character, that in view of what we have already said it is not necessary to discuss them. On the finding of facts which we have heretofore set out the courts' conclusions of law number one and three are correct. Finding no error, the judgment is affirmed. Curtis, Bridwell, J.J., dissent.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427055/

ON PETITION FOR REHEARING On February 11, 1937, the judgment of the lower court was affirmed on the assignment of errors presented by the appellant. On the same date said judgment was affirmed on the cross-assignment of errors presented by certain of the appellees named and designated in the original opinion, upon the ground that the record of the lower court upon which said cross-assignment of errors was founded was not properly certified *Page 624 and that therefore no question was presented for our consideration by the cross-assignment of errors. On March 31, 1937, the appellant filed his petition for a rehearing. On April 1, 1937, he filed his brief in support of his petition for a rehearing. On April 10, 1937, the appellees Thomas H. Seward, Oscar Phillips, Luther Pulley, Dr. J.C. Knight, Dr. J.T. Barnett, for themselves and all other like creditors, as depositors of the Citizens State Bank of Jonesboro, Indiana, filed a petition accompanied by briefs for a rehearing on their cross-assignment of errors. On April 16, 1937, these same appellees filed a motion to dismiss appellant's petition for a rehearing upon the ground that appellant failed to comply with rule 29 of this court in that his petition for a rehearing and briefs in support thereof were not filed at the same time. On the same day the same appellees filed a motion to reinstate their appeal upon their cross-assignment of errors. On April 23, 1937, the appellant filed a verified counter showing to said appellee's motion to dismiss his petition for a rehearing, together with briefs in support thereof. The petition of the appellees, Thomas H. Seward et al., to reinstate their appeal on the cross errors assigned by them and their petition for a rehearing on their cross-errors are both hereby denied. In support of their motion to dismiss the appellant's petition for a rehearing the appellees cite and rely upon the case of Fort Wayne, etc., Co. v. Davis (1929), 90 Ind. App. 30, 165 12. N.E. 764. The facts in that case and the case at bar in so far as they relate to the filing of the petition for a rehearing are so similar that they cannot be distinguished and were we inclined to follow the precedent established by that case we would be required to sustain the appellees' motion. Section 2-3236 Burns 1933, § 509 Baldwin's 1934, provides *Page 625 that when any cause is determined in the Appellate Court, the clerk shall forthwith notify the clerk of the court below that it is determined, and, "at any time within sixty (60) days after such determination, either party may file a petition for a rehearing." Rule 29 of this court provides that: "Application for a rehearing of any cause shall be made by petition, separate from the briefs, signed by counsel, filed with the clerk within sixty days from the rendition of the judgment, stating concisely the cause for which the judgment is supposed to be erroneous, which application shall be supported by briefs only, with argument set out therein, if desired. Ten copies of the brief must be filedat the same time the petition is filed, and one copy of the brief shall be delivered at once by the clerk to each judge." (Our italics.) Appellees insist that that phrase in the rule above which we have italicized requires the briefs in support of the petition for rehearing to be filed on the same day, and at the same time that the petition for rehearing is filed, and the case above cited so holds. By the provisions of Sec. 2-3236 (§ 509 Baldwin's 1934), supra, litigants are given sixty days from the date of the determination of a cause in which to file a petition for a rehearing. Rule 29 outlines the procedure to be followed in filing such petition within the sixty day period. We do not think the phrase "Ten copies of the brief must be filed at the same time the petition is filed" should be interpreted to mean that the petition and briefs must be filed on the same day, but that it must be interpreted to mean that the petition for rehearing must be filed within sixty days from the date of determination of the cause and that the briefs in support thereof must be filed within the same period of time and not after the sixty day period of time from the date of *Page 626 determination of the cause has elapsed. That is to say that under the statute and rule of this court litigants have a period of sixty days from the date on which a cause is determined in which to file a petition for rehearing and briefs in support thereof; that the petition for a rehearing can be filed at one time and the briefs in support thereof can be filed at another time, but they must both be filed "at the same time," to-wit, within the sixty day period. The interpretation and application which this court made of rule 29 in the case of Fort Wayne, etc., Co. v.Davis, supra, is too strict and technical and if adhered to, would deprive litigants of the right granted to them by Sec. 2-3236 (§ 509 Baldwin's 1934), supra, and rule 29, to file petitions for rehearing at any time within sixty days from the date a cause is determined by this court, and in so far as that case conflicts with the views here expressed it is overruled. The motion of the appellees, Thomas H. Seward et al., to dismiss appellant's petition for a rehearing is overruled. All members of the court are in harmony on the above rulings. Appellant's petition for a rehearing is denied. Judges Bridwell and Curtis are of the opinion that appellant's petition for a rehearing should be granted and therefore dissent from the ruling of the majority of the court in denying appellant's petition for a rehearing. *Page 627

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427057/

Dismissed, on the authority of Dudley v. State (1928),200 Ind. 398, 161 N.E. 1.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427060/

This is an action by Walter L. Ross, as receiver of the Toledo, St. Louis and Western Railroad Company, against the Terre Haute, Indianapolis and Eastern Traction Company upon a written contract to recover the entire cost of renewing a certain highway crossing where the tracks of said companies cross each other in the city of Frankfort. This is the second appeal in this cause. See TerreHaute, etc., Co. v. Ross, Rec. (1923), 84 Ind. App. 697,138 N.E. 90, 139 N.E. 295. On the first appeal, wherein appellee in this appeal was appellant, the judgment was reversed, with direction to sustain the demurrer to the complaint. The complaint was later amended, and a demurrer thereto sustained. From this ruling the plaintiff appealed. Appellee insists this appeal is controlled by the law of the case as decided on the first appeal, while appellant insists that rule is not decisive of this appeal. In support of his contention, appellant says this is an appeal from the action of the court in sustaining a demurrer to an amended complaint which, he says, alleges facts in addition to those alleged in the original complaint, thus presenting issues and questions not presented on the former appeal. The contract in question, after reciting the desire of appellee to cross the tracks of the railroad at the intersection of certain streets in the city of Frankfort, states "that, in consideration of the promises and agreements hereinafter" made by the traction company and the payment of one dollar to the railroad company, it is hereby stipulated "that the second party (the traction company), may construct and operate" its single-track *Page 15 railway across and over the tracks of the railroad company upon the following conditions: That the traction company should maintain the crossing at its own cost, and furnish and place all rails, crossing frogs, the connections between and to the intersecting tracks and all timbers to support the frogs and connections between the tracks, bedded and ballasted acceptable to the railroad. The railroad to thereafter keep the crossing in repair and make such renewals thereof from time to time as might be necessary, as determined by the roadmaster of the railroad, the traction company agreeing to pay all expense incident to the proper maintenance and renewal which might be incurred by the railroad company. The contract, after describing the crossing frogs to be furnished, stated that it was agreed that, if additional tracks were laid, the traction company was to provide, at its own expense, the additional crossing frogs, the same to be maintained by the railroad company according to the provisions relating to the maintenance and repair of the first-crossing frogs. The traction company also agreed to keep the crossing in good repair between its tracks and for a space of not less than two feet in width on each side of its tracks across the right of way of the railroad, and to plank and pave the same when required by the local authorities, and to build, construct and forever maintain and operate, at its own expense, a derailing device subject to the approval of the railroad company. If the traction company failed to comply with any of the covenants or conditions of the contract, the agreement might be terminated on 90 days' notice, after which the contract was to be null and void and the railroad company was given the right to take up and remove the crossing. In consideration of the agreement, the traction company waived the right to make any other crossing except upon the above terms and conditions. This contract is quite lengthy. It requires nearly five pages of the printed *Page 16 brief to set out its terms and conditions, but, after setting out the terms, conditions and the promises of each party, it finally states: "All of the agreements and promises hereinbefore entered into by the second party were made and entered into in consideration of the grants hereinbefore made to it by the first party." The original complaint and the amended complaint are, in substance, the same. The only difference between the two complaints is that the amended complaint describes in detail the construction of the crossing and alleges that the crossing is of such a character that it is impossible for either company to repair and maintain any separate part thereof; that neither party can repair or maintain its tracks at the crossing without at the same time repairing the tracks of the other party; and "that, pursuant to said contract and in the performance thereof, this plaintiff furnished and performed continuous inspection of said crossing and that, in the maintenance and repair thereof, this plaintiff furnished all supervision necessary therefor, such inspection and supervision having been furnished for the sole consideration under the terms of said contract that said defendant should pay the labor and material costs of said maintenance." The description of the crossing as set out in the amended complaint is identical with the description of the crossing as alleged in the complaint in New Jersey, etc., R. Co. v. NewYork Central R. Co. (1925), 89 Ind. App. 205, 146 N.E. 111, and was evidently copied from that complaint for the purpose of bringing the facts of the instant case within the holding of that case. Appellant says the consideration stated in the contract, being by way of recital and not being contractual, can be varied, added to or contradicted. We cannot agree with this contention. 1-3. The consideration stated in the contract is contractual, and, being contractual, controls any allegation in the complaint *Page 17 to the contrary. Friedman v. Citizens, etc., Water Co. (1925), 82 Ind. App. 667, 147 N.E. 294. See, also, Wellmaker v.Wheatley (1905), 123 Ga. 201, 51 S.E. 436; Milich v. ArmourPacking Co. (1899), 60 Kan. 229, 56 P. 1; Culbertson v.Young (1900), 86 Mo. App. 277; Harding v. Robinson (1917),175 Cal. 534, 166 P. 808. Appellant's attempt to allege and set up a consideration different from that expressed in the contract cannot prevail. New Jersey, etc., R. Co. v. New York CentralR. Co., supra, is not in point. The crossing in that case was not in a street as in the instant case where the traction company had the absolute right to cross. The holding of this court on the former appeal is the law of this case and controls. Affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427061/

This is an appeal from a judgment setting aside the last will and testament of one Mahlon Powell, deceased, of Wabash County, Indiana. The appellants have assigned as error for reversal, (1) the overruling of their motion to strike out part of appellee's (plaintiff's) complaint; (2) the overruling of their demurrer to the complaint; (3) the overruling of their motion for a new trial; and (4) the overruling of their motion in arrest of judgment. *Page 395 All the appellees except Ernest Gibson have filed an admission and confession of error as to the first three errors assigned as causes for reversal and consent to a reversal of this cause. There has been no brief filed for or on behalf of any of the appellees. This may be considered as a confession of error, and the court may in its sound discretion determine the 1. questions presented by appellants' brief, or it may reverse the judgment without prejudice to either party, without considering the appeal on its merits, providing the appellants' brief makes an apparent or prima facie showing of reversible error. Bryant v. School Town, etc. (1930), 202 Ind. 254,171 N.E. 378, 173 N.E. 269. Since the appellee Ernest Gibson has not joined in the confession of errors, the duty is imposed upon this court of determining whether or not appellants' brief presents an 2, 3. apparent or prima facie showing of reversible error. In their motion for a new trial, the appellants alleged the giving to the jury of instructions numbered four and six tendered by the appellees as two of the causes therefor. Whether the giving of these two instructions was such an error as requires the reversal of this cause is properly presented for our consideration in appellants' brief. In support of their contention appellants assert in their brief that, "The record fully discloses that there was no evidence upon which the said instructions four and six could be predicated." Because of his failure to file a brief, the accuracy of this statement is not challenged by appellee Ernest Gibson, and by filing their confession of errors, is admitted by all his co-appellees. Ewbank's Manual of Practice (2nd Ed.), sec. 190, p. 396; Revised Rules Supreme and Appellate Courts, Rule 22. It is error to give instructions to the jury not applicable to the case proven by the evidence. Blough v. *Page 396 Parry (1895), 144 Ind. 463, 40 N.E. 70, 43 N.E. 560; Allyn v.Burns (1906), 37 Ind. App. 223, 76 N.E. 636; Chicago, etc.,Co. v. American Trust Company (1926), 85 Ind. App. 193,153 N.E. 419. We conclude that appellant's brief makes a prima facie showing of reversible error. In view of the state of the record in this case and the result which we have reached, it is not necessary to discuss other errors presented and urged for reversal of this cause. Judgment reversed with instruction to the lower court to grant appellants' motion for a new trial.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427062/

The appellant was prosecuted by indictment for the offense of vehicle taking, in violation of Acts 1921, ch. 189, § 1, § 2460 Burns 1926. He entered a plea of not guilty and was tried by a jury, which found him guilty as charged. The court rendered judgment on the verdict, and it was adjudged that he be fined in the sum of $100, be imprisoned in the Indiana State Prison for a period of three to five years, be disfranchised for three years and pay the costs. From that judgment, he has appealed to this court. Prior to the trial, appellant filed a plea in abatement, in which he alleged that he was the defendant in this criminal prosecution, being charged by indictment with the crime of vehicle taking, and that he ought not to be tried for that offense for the reason that, before the indictment was found against him at the June term, 1925, of the Rush Circuit Court, an affidavit was filed against him charging him with the offense of receiving stolen goods; that, on his petition, the venue in that cause was changed to the Decatur Circuit Court; that the parties to this action and that action and the subject-matter of this and the former prosecution, are the same, and the prosecution for receiving stolen goods is still pending against him. A demurrer was filed to this plea in abatement, which was sustained by the court. The plea in abatement shows on its face that appellant was charged with two different and distinct crimes. It may be true that each offense was the result of the same alleged act of 1. the defendant. If so, there could have been a prosecution for either one. Even if the prosecutions had been for the same offense, the pendency of a criminal prosecution against the defendant in another court where jeopardy had not attached *Page 550 would not have been available to defeat a prosecution in a court of competent jurisdiction. Dutton v. State (1854),5 Ind. 533; Hardin v. State (1864), 22 Ind. 347; State v. Osborn (1900), 155 Ind. 385, 58 N.E. 491; Peters v. Koepke (1901),156 Ind. 35, 59 N.E. 33. The plea shows that jeopardy had not attached in the case in Decatur County. The court did not err in sustaining the demurrer to the plea in abatement. The statute under which this indictment was brought is as follows: "Whoever unlawfully, without the consent of the owner, takes, hauls, carries or drives away any vehicle, automobile, car, truck, aeroplane or airship, operated by electricity or steam or explosive power, or any accessory or appurtenance contained in, on or forming a part thereof, of the value of twenty-five dollars ($25) or more, or whoever received [receives] buys, conceals, or aids in the concealment of, such or any one or more of such, knowing the same to have been taken, shall be guilty of the crime of vehicle taking," etc. § 2460 Burns 1926. There was a motion filed to quash the indictment upon the following grounds: (1) The facts stated in said indictment did not constitute a public offense; and (2) said indictment did not state the offense charged with sufficient certainty. Part of the indictment was as follows: That Finley Nelson and Clyde Willis, on or about the 18th day of February, A.D. 1925, at Rush County, State of Indiana, did then and there unlawfully and feloniously, and without the consent of the American Security, a corporation, take, haul, carry and drive away an automobile, then and there operated by explosive power, then and there being the property of and owned by the said American Security Company, a corporation, and of the value of $350, and the said Sylva Headlee did then and there unlawfully and feloniously and without the consent of the said American Security Company, a *Page 551 corporation, the said owner of said automobile, receive, buy, conceal and aid in the concealment of the said automobile, he, the said Sylva Headlee, then and there well knowing the said automobile to have been unlawfully and feloniously and without the consent of the said owner taken and driven away by the said Finley Nelson and Clyde Willis, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana. In support of his motion to quash, appellant objected to the following words in the statute: "Knowing the same to have been taken." And he says that the statute is void for 2, 3. uncertainty and is too indefinite in defining any offense and so indefinite and uncertain that no indictment, affidavit or charge could be drawn pursuant thereto stating any offense. There is no merit to these objections. Objection was also made to the indictment for the reason that there is a variance between the material allegations therein. In the indictment, it was alleged that the automobile was 4. taken without the consent of the "American Security, a corporation," that it was the property of and owned by said "American Security Company, a corporation," and that the defendant did receive, buy, conceal and aid in the concealment of the automobile without the consent of said "American Security Company, a corporation." It is apparent from the indictment that the name of the corporation which owned the automobile was "American Security Company, a corporation," and that where first used therein, the word "Company" was omitted. In § 2225 Burns 1926, it is said: "No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, . . . for any of the following defects: . . . Sixth. For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person *Page 552 charged." The omission of the word "Company" one place in the indictment could neither have misled the defendant nor prejudiced his rights. The indictment was sufficient. The third, fourth and fifth assignments of error are not proper as separate assignments. They are also named, however, as causes in the motion for a new trial and will be considered under that assigned error. The defendant's motion in arrest of judgment was for the reason that the facts stated in the indictment did not constitute a public offense. Having decided that the indictment was sufficient, it must be held that the court did not commit error in overruling that motion. In the motion for a new trial, 62 causes are stated. The first cause was that one of the jurors who sat in the trial, and who was the foreman of the jury, was biased and prejudiced 5. against the defendant and his cause of defense for reasons therein set out, and that, when this juror was accepted as such, the defendant and his attorneys did not have any knowledge of the facts which made the juror incompetent to serve. The objections to this juror, made after the trial, appear only in the motion for a new trial. An affidavit in support of a motion for a new trial can only be brought into the record by a bill of exceptions. Kleespies v. State (1886), 106 Ind. 383, 7 N.E. 186; Robb v. State (1896), 144 Ind. 569, 43 N.E. 642; Reed v. State (1897), 147 Ind. 41, 46 N.E. 135; Siberry v. State (1895), 149 Ind. 684, 39 N.E. 936, 47 N.E. 458; Perfect v.State (1923), 197 Ind. 401, 141 N.E. 52. As this cause for a new trial is not properly presented, it cannot be reviewed. One of the causes for a new trial was that the verdict of the jury was not sustained by sufficient evidence. The indictment charged that the automobile was taken without the consent 6. of the "American Security, a corporation"; that it was the property *Page 553 of and owned by the said "American Security Company, a corporation"; and that it was received by the defendant without the consent of the said "American Security Company, a corporation." The owner of the automobile was named in evidence several times as "American Security Company." There was also evidence that the "American Security Company" was a corporation. Later, it appeared in evidence that the name of the corporation claiming ownership of the automobile and mentioned as "American Security Company" was "American Security Company of Rushville, Indiana." In 1 Wharton, Criminal Evidence (10th ed.) § 95, p. 288, it is said: "The modern rule is that a variance in names is not now regarded as material, unless it appears to the court that the jury was misled by it, or some substantial injury is done to the accused, such as that, by reason thereof, he was unable intelligently to make his defense, or he was exposed to the danger of a second trial on the same charge." In Underhill, Criminal Evidence (3d ed.) § 82, it is stated that if sufficient evidence is introduced to identify the person intended, the variance of name is immaterial and will be disregarded. InKruger v. State (1893), 135 Ind. 573, 35 N.E. 1019, it is said by this court: "An approved modern author thus states the rule: `A variance is not now regarded as material, unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense.' 3 Rice Crim. Ev., section 121." In State v. Long (1919), 278 Mo. 379, 213 S.W. 436, in a prosecution for the larceny of hogs from "the University of Missouri," variance in the proof of the ownership of the hogs proved by the court's taking judicial notice of the fact that the corporation by which the university is controlled is styled "the curators of the University of Missouri," held harmless to the defendant. In that case, the court said: "It is sufficient to allege the name by *Page 554 which a corporation is generally known, although the name alleged is not the corporation's correct name, if it otherwise sufficiently appears beyond question what corporation is intended." Throughout the evidence, the owner of the automobile which was taken was referred to as "American Security Company." The evidence was conclusive that this company was located in Rushville, Indiana. Although the corporate name of the owner was "American Security Co. of Rushville," it can be inferred from the evidence that it was generally known as "American Security Company." There is no doubt as to what corporation was meant when that name was used in the indictment and was used in the evidence. Although the "American Security Company" was named in the indictment and in the evidence as owner, the defendant introduced in evidence a copy of its articles of incorporation to show that the words "of Rushville" were part of its name. The variance in the instant case was not of such a character as would mislead the defendant or expose him to the peril of being put twice in jeopardy for the same offense. The appellant does not claim that he was injured by this variance. The evidence was clear that the automobile was taken without the consent of the owner. The evidence was sufficient on all material charges to sustain the verdict. Appellant contends that the court committed 32 errors in regard to the exclusion or admission of evidence. A careful examination has been made of each of these objections, and it is held that none of the said rulings of the court constituted reversible error. Upon the trial, the following question was propounded by the State to Clyde Willis, one of the two men who took the automobile, and a witness for the State: "Who was in the 7. business (of stealing automobiles) with you over at Vincennes?" Objection was made to the question by counsel for the defendant. *Page 555 Before the court ruled on this objection, the prosecuting attorney, in the presence and hearing of the jury, made the following statement: "That this defendant and his brother were connected with this Clyde Willis in the theft of an automobile at Vincennes, Indiana." Objection was made to this statement by the defendant, who moved the court that the submission of the cause be withdrawn from the jury. This motion was overruled by the court and exception taken to the ruling by the defendant. InLincoln v. State (1921), 191 Ind. 426, 133 N.E. 351, this court said: "Not every improper act or statement permitted by the court will require that the submission be set aside and the jury discharged, or that the judgment be reversed on appeal. Though flagrant offenses, often repeated, with an apparent intent to prejudice the defendant before the jury, may require such action." It does not appear that the court instructed the jury to disregard the improper statement of the prosecuting attorney or that the defendant requested the court to so instruct the jury. If the defendant had made such a request, it would have been the duty of the court to have instructed the jury to disregard the objectionable statement. Under the circumstances, it must be presumed that the defendant was content to rely upon his motion to withdraw the submission of the cause. Part of instruction No. 6 given by the court on its own motion was as follows: "The defendant is, by the law presumed to be innocent of the crime charged until his guilt shall have been established by the evidence, beyond a reasonable doubt." This instruction was clear that guilt must be established only by the evidence. From a consideration of all the evidence, it seems that the verdict of the jury would not have been different, even if the improper statement had not been made in the presence of the jury. In the instant case, it can be said, as was said by the court inRamseyer, Exr., v. Dennis *Page 556 (1917), 187 Ind. 420, 119 N.E. 716, on the petition for rehearing: "The question of misconduct was again called to the attention of the trial court by a specification in the motion for a new trial. The disposition of that motion carries with it the assumption that the court, upon a re-examination of the matter, concluded that no harm was done appellants by the ruling in question." It must be held that the court did not err in overruling the motion to withdraw the submission of the cause from the jury. During the trial, the defendant filed a motion for the State to produce the following papers: A certificate of title for automobile, a certificate of registration for same, and a canceled bank-check, claiming that said papers were necessary to use as evidence. The motion was overruled. On the trial, said papers were introduced in evidence and were before the court. As the defendant could not have been harmed by the ruling on his motion to produce papers, it is not necessary to decide whether that ruling was right or wrong. Errors are claimed by the appellant because the court overruled his motion at the close of the introduction of the State's evidence, and his motion at the close of all the evidence, to instruct the jury to return a verdict in favor of the defendant. As the evidence was sufficient to sustain a verdict of guilty, the court did not err in overruling these motions. It is contended that the court erred in refusing to give to the jury instruction No. 2 and instruction No. 3, tendered and requested by the defendant. Said instruction No. 2 was on 8. the subjects of sufficiency of the evidence and reasonable doubt. The substance of this instruction was given by the court of its own motion in instruction No. 8. There was no error in refusing requested instructions that were given in substance by other instructions. So it was not *Page 557 error to refuse said tendered instruction. Said instruction No. 3 was on the subject of reasonable doubt as to the name of the alleged owner of the automobile described in the indictment. This instruction was covered by instruction No. 13 given by the court of its own motion. It is also claimed by appellant that the court erred in giving each of 10 instructions to the jury on its own motion. These instructions were Nos. 5, 6, 7, 10, 12, 13, 14, 15, 16 and 17. Instruction No. 5 purported to be a statement of the law upon which this prosecution was predicated. Appellant says that it was erroneous as it omitted one element of the crime, that is, 9. the taking "without the consent of the owner." In Rokvic v. State (1924), 194 Ind. 450, 143 N.E. 357, in which the appellant was charged with vehicle taking, this court said: "It is next urged that it (court's instruction No. 26) does not state that the property must have been taken without the consent of the owner. This is a necessary element, but the uncontradicted evidence was that the property had been taken without the owner's consent." The court did not hold the instruction erroneous for the named defect. The testimony of one of the parties who took the automobile was that they started out to steal a Ford coupe, that he got the car in Rushville, on Second Street, in front of the American Security Company, without saying anything to any one before he drove it away. From this evidence, it could be inferred that the stolen automobile was taken without the consent of the owner. It does not appear that this instruction was prejudicial to appellant. The giving of same did not constitute error. Instruction No. 6 was on the subject of the presumption of innocence. Appellant objects to the following statement 10. therein: "This presumption of innocence remains with him throughout the trial *Page 558 and he is entitled to its benefit, unless the evidence convinces you beyond a reasonable doubt of his guilt." A similar statement in an instruction is discussed and held to be correct in People v. Arlington (1900), 131 Cal. 231, 63 P. 347. The objection to this instruction is not well taken. Instruction No. 7 related to the subjects of presumption of innocence and reasonable doubt. The part to which objection is made is in accord with § 2302 Burns 1926, reading as 11. follows: "A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt whether his guilt is satisfactorily shown, he must be acquitted." Instruction No. 10 stated that it was the duty of each juror to refuse to vote for the conviction of defendant until convinced of his guilt beyond a reasonable doubt. The instruction was a 12. correct statement of the law. If it did not go as far as defendant believed it should, he ought to have tendered a more complete instruction. Instruction No. 12 gave the rule as to reasonable doubt. The objections made by appellant to that instruction can not be sustained. Instruction No. 13 was in regard to ownership of the automobile which was taken. The instruction said that one of the material allegations of the indictment was that the "American 13. Security Company of Rushville" was the owner of the automobile. The indictment named the owner as the "American Security Company, a corporation." It has heretofore been held herein that there was no fatal variance between the name of the owner as charged in the indictment and as shown in the evidence. It cannot be held that the instruction is erroneous for any of the objections urged against it. Instruction No. 14 was on the subject of the title of *Page 559 stolen property. Objection is made because the term "stolen property" was used therein, it being claimed that the 14. automobile was "taken, hauled, carried and driven away." This instruction is not accurate, as it goes farther than necessary. It was favorable, however, to the defendant, as it made it more difficult for the State to convict him, and he could not have been harmed by it. Instruction No. 15 was in regard to fatal variance between the name of the owner of the automobile as charged and as shown by the evidence. The instruction is not erroneous, misleading or prejudicial to the appellant. There is no fatal conflict between this instruction and No. 13 heretofore approved herein. The appellant is in error when he claims that the court invaded the province of the jury in giving the instruction. Instruction No. 16 informed the jury that even if the engine had been removed from the automobile and if nothing but the chassis of the machine was delivered to the defendant, 15. under the circumstances as alleged in the indictment, it would be sufficient to warrant a conviction, providing all the other material allegations had been proved beyond a reasonable doubt. As there was evidence that the automobile which was taken off the street in Rushville, and which was received by the defendant, was driven into his barn lot and turned over to him, this instruction was not necessary and could not have injured the appellant. Also, the instruction did not conflict with the act upon which this prosecution was predicated. Instruction No. 17 was in regard to the right of the jury to determine both the law and facts. This instruction did not seek to bind the consciences of members of the jury by imposing restrictions on them not provided for by the Constitution, as claimed by the appellant. It was not error to give same. *Page 560 Appellant's last contention is that the court erred in rendering judgment and sentencing him on June 19, 1926, upon the verdict returned by the jury on April 17, 1926. It appears 16. from the record that on May 3, 1926, the defendant filed a motion in arrest of judgment. This motion was overruled on May 10; and, on that day, the defendant filed a motion for a new trial, which was overruled on the day judgment was pronounced. It is not shown that the court lost jurisdiction at any time. Finding no reversible error, the judgment is affirmed. Myers, J., absent.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3209743/

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4424 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ELERICO DURAN HOWARD, a/k/a Rico, a/k/a Freedom, a/k/a Duran, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:14-cr-00223-H-1) Submitted: May 25, 2016 Decided: June 6, 2016 Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Elerico Duran Howard pled guilty, pursuant to a plea agreement, to conspiracy to possess with intent to distribute 500 grams or more of cocaine and an unspecified quantity of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2012), and possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2012). The district court sentenced Howard to 144 months’ imprisonment, and he now appeals. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning whether the sentence imposed was procedurally and substantively reasonable and whether plea counsel was ineffective. Howard was notified of his right to file a pro se brief but has elected not to do so. We affirm. We review the reasonableness of a sentence “under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This entails review of the procedural and substantive reasonableness of the sentence. Id. at 51. “Procedural errors include ‘failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including 2 an explanation for any deviation from the Guidelines range.’” United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51). Only if the sentence is free of “significant procedural error” do we review the substantive reasonableness of the sentence, accounting for “the totality of the circumstances.” Gall, 552 U.S. at 51. Any sentence within a properly calculated Guidelines range is presumptively substantively reasonable; this presumption is rebutted only “by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors.” United States v. Dowell, 771 F.3d 162, 176 (4th Cir. 2014). Because Howard failed to object to the sentence imposed, it is reviewed for plain error only. United States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). “To satisfy plain error review, the defendant must establish that: (1) there is a sentencing error; (2) the error is plain; and (3) the error affects his substantial rights.” Id. Even if a plain error occurred, we will not cure the error unless it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. Our review of the record confirms that the sentence imposed was both procedurally and substantively reasonable. The district court properly calculated the Guidelines range, allowed counsel an adequate opportunity to argue on Howard’s behalf, and 3 afforded Howard his right of allocution. Although the district court’s explanation for the sentence was brief, given the straightforward and conceptually simple nature of the arguments and the within-Guidelines sentence imposed, the court’s explanation was sufficient. See United States v. Hernandez, 603 F.3d 267, 271-72 (4th Cir. 2010). As to the substantive reasonableness of the sentence, the record does not reveal any factors that would overcome the presumption of reasonableness afforded to the within-Guidelines sentence imposed. Although Howard argues that the district court erred in attributing more than the equivalent of 1000 kilograms of marijuana to him, we conclude that Howard has waived this argument by withdrawing it below. See United States v. Robinson, 744 F.3d 293, 298-99 (4th Cir. 2014). Finally, Howard’s claim of ineffective assistance of counsel is only cognizable on direct appeal if it conclusively appears on the record that counsel was ineffective. United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014). To succeed on a claim of ineffective assistance of counsel, Howard must show that: (1) “counsel’s representation fell below an objective standard of reasonableness”; and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In the context of a guilty plea, to satisfy the second prong a defendant must establish a 4 reasonable probability that, but for counsel’s errors, he would have “insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The record does not establish ineffective assistance of counsel. Therefore, this claim is not cognizable on direct appeal and should be raised, if at all, in a 28 U.S.C. § 2255 (2012) motion. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Howard’s convictions and sentence. This court requires that counsel inform Howard, in writing, of the right to petition the Supreme Court of the United States for further review. If Howard requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Howard. 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. AFFIRMED 5

01-03-2023

06-06-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427066/

In November, 1906, one Joseph Gosch was, by the Bartholomew Circuit Court, appointed guardian of one John Boll, a person of unsound mind. The said guardian at once executed his bond as such, *Page 389 with the appellant, the Title Guaranty and Surety Company, as surety thereon, and entered upon the discharge of his duties as such guardian. In February, 1915, said guardian petitioned the court for an order to sell certain lands of his ward and such proceedings were thereafter had in said matter that said guardian was directed to sell said lands and to give his additional bond, covering the funds to be derived from said sale, in the sum of $4,000. This was done, the appellant, National Surety Company executing said bond as surety thereon, and said land was sold in April, 1915, for $3,310. In April, 1925, the said guardian, having failed to comply with an order of the court as to the making of a report as such guardian, was removed, and the First National Bank of Columbus, Indiana, relator herein, was appointed as guardian of said Boll. The said Gosch, having departed the country, the said bank, as guardian, at once took charge of all of the money and property belonging to its said ward that could be found, and, it appearing that some of the funds of said trust had been dissipated, this suit was brought against the appellants herein as sureties on said bonds. The cause was tried by the court, which made a special finding of the facts and stated conclusions of law thereon unfavorable to the appellants. Their several motions for a new trial having been overruled, this appeal is now prosecuted, the errors assigned being the action of the court in overruling said motions, severally, and error in conclusions of law. The said motions each assail the decision of the trial court as not being sustained, as to certain facts, by sufficient evidence, and also each alleges error in the assessment of the amount of the recovery. The appellee has confessed error as to said last contention, so that it will not be necessary to further consider that matter. *Page 390 The court found that said Gosch had appropriated to his own use, of said trust funds, the sum of $1,436.30, and this finding is assailed as not being supported by sufficient evidence. It appears from the evidence in this case, which, as to the point now involved, is entirely documentary, that in January, 1923, said guardian made his report, which was duly 1. approved by the court; that, in said report, he did not charge himself with interest on the money in hand with which he was then chargeable, and that the trial court, in arriving at the balance due, as above set forth, added interest thereon for the time covered by said report, in the sum of $277.34. This, the trial court had no right to do; said report was not subject to such collateral attack. Candy, Admr., v.Hanmore (1881), 76 Ind. 125; Glidewell v. Snyder (1880),72 Ind. 528. This leaves the true shortage of said guardian at $1,158.96. On the theory that the funds had been commingled, the trial court apportioned the total shortage, sixteen twenty-ninths to appellant Title Guaranty and Surety Company and thirteen twenty-ninths to appellant National Surety Company, and rendered judgment against the appellants accordingly; of this apportionment, appellant National Surety Company particularly complains. It appears by the evidence, which, as to this point, is documentary, that in February, 1909, said Gosch, by the description of "Joseph Gosch, Guardian, J. Boll" opened an account with Irwin's Bank, Columbus, Indiana, and from time to time deposited moneys to said account, and drew checks against the same; that after February 8, 1915, up to and including April 27, 1915, the balance remaining to his credit in said account was $5.02; that on April 28, 1915, the next day after the confirmation of said land sale, there was deposited in *Page 391 said account $1,225, admittedly part of the proceeds of the sale of said land. The evidence is, without dispute, that said land was sold for $3,310, and that it was paid for as follows, viz.: cash, $1,200; three gravel road bonds aggregating $1,065; accumulated interest on said bonds, $45; and the purchaser's note for $1,000 secured by mortgage on premises sold. The record discloses that this note, with the accumulated interest thereon, was duly paid and the money deposited in said bank, to said account. The record further discloses that in October, 1917, after said note had been fully paid, said guardian, by direction of the court, invested $2,000 of the money then in said bank, in Liberty Bonds, and the record discloses that thereafter the interest accruing on said bonds was deposited in said bank to said account, as was also the interest accruing on said gravel road bonds. The record further discloses that on June 26, 1925, the relator herein, as guardian, received from Irwin's Bank the aforementioned Liberty Bonds, $2,000, Gravel Road Bonds in the sum of $710, and cash in the sum of $1,212.32, one of said bonds having been paid off in November, 1924, and the proceeds thereof deposited in said bank. The total money so received by the relator being the sum of $3,942.32. In addition, the relator received a note in the sum of $219, and also cash, from the sale of some personal property formerly owned by said guardian, in the sum of $61, and making the total amount received by the present guardian, from all sources, the sum of $4,202.69, of which the sum of $4,122.32, is clearly traceable to the money derived from the sale of said land. It appears from the record in this case that said guardian collected interest on said funds derived from said sale in the sum of $1,143.23, making the total with which he was chargeable on this account the sum of $4,453.23, and this, less the amount *Page 392 turned over to the relator herein, would leave the sum of $330.91 of this fund still to be accounted for. But the record discloses that part of this balance, the exact amount we are unable to determine, was expended in the payment of the cost of administering this trust and, for whatever was so expended, credit on this account should be given and appellant, the National Surety Company, to that extent relieved. As there was but $5.02 on deposit in the bank to the credit of said guardian at the time said land was sold, and as the funds thereafter deposited in said bank, with the exception of 2. $15, are each and all readily traceable to the land fund, we hold that there was no such commingling of funds as the law demands to enforce a pro rata liability. See Pfau,Treasurer, v. State, ex rel. (1897), 148 Ind. 539, 47 N.E. 927. It follows that the court erred in its conclusions of law and this case must be reversed. Judgment reversed, with directions to sustain the motion of each appellant for a new trial, and for further proceedings consistent with this opinion.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4069802/

ACCEPTED 04-15-00449-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 12/14/2015 2:42:22 PM KEITH HOTTLE CLERK FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 12/14/2015 2:42:22 PM KEITH E. HOTTLE Clerk

01-03-2023

09-30-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427146/

This action was brought by the appellee Hattie Neff, as administratrix of the estate of Mary Ellis Davidson, deceased, as plaintiff, against the appellant, Frank Schwegman, and others, as defendants, for the cancellation of certain preferred stock certificates standing in the name of Schwegman on the books of a corporation, and to have said stock reissued and delivered to her, together with the accumulated dividends thereon. The complaint proceeded upon the theory that the plaintiff's decedent was induced by fraudulent representations on the part of Thomas Bence, Olive A. Day, as agent for the defendant, and *Page 65 others to endorse and deliver said stock certificates to said Bence without any consideration whatever, and that said stock thereafter came into the possession of Schwegman by mesne transfers, with full knowledge on his part of the plaintiff's claim thereto. The facts were found specially and upon these the trial court stated two conclusions of law and rendered judgment in favor of the plaintiff below. There was no motion for a new trial, and the only errors assigned relate to the conclusions. It may be observed that the second conclusion related only to the payment of the dividends and that it was proper if the first was correct. From the special findings it appears that the plaintiff's decedent owned the stock described in the complaint prior to November 25, 1932; that she duly assigned it to said Bence; and that it was afterwards acquired by the defendant Schwegman. Schwegman sold and assigned the certificates therefor by endorsement to one McBride, but when McBride presented them to the registrar and transfer agent of the corporation, it refused to transfer them to him because it had notice of a pending action brought by the decedent against Schwegman for the replevin of the stock. Schwegman likewise had notice of said pending action and that the decedent claimed title to said stock, but the writ issued in said action of replevin was returned "no such property found." McBride thereafter brought suit against the corporation and its registrar and transfer agent to mandate them to transfer the stock to him. This action resulted in a judgment against McBride. Schwegman subsequently repurchased the stock from McBride and took from him a separate assignment thereof, after entry of the judgment against McBride in the mandate action and with notice of the plaintiff's claim to the stock. The plaintiff below, without knowledge *Page 66 of said assignment from McBride to Schwegman, then brought suit for replevin against McBride for the stock and certificates and obtained a judgment to the effect that she was entitled to said property. The findings of fact are wholly silent as to the circumstances under which Bence obtained said stock, the only finding remotely relating to that subject being that "on the 25th day of November 1932, plaintiff's decedent delivered said certificate No. 45 to one, Thomas Bence, duly endorsed by her, on the back thereof, in blank." There were no findings of fraud, lack or failure of consideration, or other facts or circumstances to support a conclusion that the decedent owned or retained any right to or equity in the stock after the certificate therefor was endorsed by her and delivered to Bence. Indeed, the inference to be drawn from the finding just quoted might be that Bence was a bona fide holder. The trial court's findings that Olive Day acted as agent for Schwegman in all of the transactions pertaining to said stock from and after Schwegman sold the same to McBride; that 1-4. as such agent she was fully aware of the claims of the plaintiff and the plaintiff's decedent to the shares and certificates when Schwegman repurchased the same from McBride and when McBride assigned them to Schwegman; and that Schwegman had knowledge and notice of the plaintiff's said claims to said stock when he last acquired it from McBride are insufficient to sustain the court's first conclusion of law, to the effect that the plaintiff was the sole owner thereof and that Schwegman had no interest therein. It does not avail the plaintiff that Schwegman had notice that she claimed the stock, in the absence of a finding that her claim was well founded. Notice to one acquiring property that another claims it is of no consequence unless such prior claim is ultimately *Page 67 established. The maxim that one who seeks to recover property must prevail upon the strength of his own title and not on the weakness of his adversary's, is applicable to this situation. "Where fraud is essential to the existence of a cause of action, it must be found and stated in the special finding as a substantive fact or the plaintiff will suffer defeat." Wilson v. Campbell (1889), 119 Ind. 286, 290, 21 N.E. 893. Nor can the plaintiff's judgment in replevin against McBride, entered after Schwegman acquired the stock in an action to which he was not a party, be considered as an adjudication 5-7. against Schwegman. It is a fundamental rule of the doctrine of res judicata that "to constitute a judgment an estoppel there must be a substantial identity of parties as well as of the subject matter; that is, it is necessary that the parties as between whom the judgment is claimed to be an estoppel must have been parties to the action in which it was rendered, in the same capacities and in the same antagonistic relation, or else they must be in privity with the parties in such former action." 34 C.J., Judgments, § 1405. This is necessary to the end that the constitutional guaranty that no man shall be deprived of his property except by due process of law shall be preserved. The conclusion of law that: "Plaintiff is the sole owner of said shares of stock in said corporation and that none of the defendants McBride, Schwegman or Day have any interest therein and plaintiff is entitled to a new certificate of stock representing such shares" therefore stands unsupported by any of the facts found as they relate to the appellant. The judgment is reversed, with directions to the trial court to restate its conclusions of law in conformity with this opinion and to enter judgment accordingly. NOTE. — Reported in 29 N.E.2d 985. *Page 68

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427272/

Appellant, by his next friend, sought by this action to recover damages for injuries which he sustained as a result of coming in contact with a transmission wire and receiving a charge of electricity while upon the transformer platform of appellee. The complaint was in one paragraph and in substance alleged: That a transformer platform was constructed and maintained by appellee adjacent to the roof of a factory building in such close proximity that children could descend from the roof of the building by means of the platform; that the platform and building were situated adjacent to an open field or common which had for many years been used by the public for circuses and carnivals and was, on the day of appellant's injury, and had been for many years prior thereto, used as a playground by the children of the community — of which fact appellee knew; that appellee maintained a power house located approximately two blocks from the factory building and that the view from the power house to the factory building and playground was clear and unobstructed; that on the day of appellant's injury, and for many years before, there was a mulberry tree at the south end of the factory building which children had been accustomed to use in their play as a means of ascending to the roof of the factory; that children, including appellant, had for many years, while engaged in play, used the premises and buildings in such manner; that appellee, in the exercise of ordinary *Page 556 care, should have known and reasonably anticipated that children, in their play, would climb to the roof of the factory building and on to the transformer platform upon which appellee maintained its transformers, wires, and appliances for the purpose of transmitting its electricity to the factory building; that on October 6, 1934, appellant, while engaged in play with other children, climbed upon the roof of the building by means of the mulberry tree and proceeded across the roof and onto the transformer platform, where he received a heavy voltage of electricity, causing the injuries complained of; that appellee negligently and carelessly constructed and maintained the platform involved and negligently and carelessly maintained the transformers and wires thereon; and that appellee negligently and carelessly failed to guard and insulate the wires and transformers so as to prevent children who had occasion to be upon the platform from coming in contact with them. To this complaint appellee filed a general denial. On the issues thus formed the cause was submitted to a jury, resulting in a verdict for appellee upon which judgment was rendered accordingly. In due time appellant filed his motion for a new trial, which was overruled, and this appeal followed. The error assigned is the action of the court in overruling appellant's motion for a new trial. The only grounds or reasons in the motion which appellant discusses in his brief relate to the giving of each of certain instructions tendered by appellee. It appears that appellant, on October 6, 1934, sustained injuries by receiving a heavy voltage of electrical current while upon the transformer platform constructed and maintained by appellee for the purpose of supporting its transformers, wires, and electrical appliances used in the furnishing of its electricity; *Page 557 that for several years prior thereto there had been in the northwest part of the city of Brazil, Indiana, adjacent to a public highway, an open field or common used by children, youths, and adults as a playground, and at times for circuses, carnivals, and other public gatherings. Adjoining this open field was a factory building extending 300 feet north and south, 300 feet east and west, and approximately 14 feet in height. The roof of this building was comparatively flat. On the day that appellant received his injuries, and for many years before, there were no fences or barriers to prevent persons using the open field or common from entering the premises upon which the factory building and appellee's transformer platform were located. Appellee was, at the time of the accident and for several years prior thereto, engaged in furnishing electricity to the factory for power and light. In furnishing this electricity, appellee had erected, constructed, and maintained a platform adjacent to the factory building. Four large, upright poles of the size and type commonly used for maintaining transmission lines were placed in a rectangular position with a series of cross-arms attached at a distance of approximately 14 feet from the ground — thus forming the platform. There were no guards or warning signs near this platform. Appellee maintained a substation about two blocks south of the factory building, and the view from this station to the factory building and surrounding open territory was unobstructed. Near the south end of the factory building was a mulberry tree which boys at times had climbed to reach the roof of the building. On the day of the accident appellant was playing on the common with two boys younger than he, and, in the course of their game, appellant, to avoid being caught, ascended to the roof of the factory building, proceeded across the roof, and stepped over to the transformer platform belonging to appellee. *Page 558 While upon the platform to evade his pursuers in play he received a charge of electricity, thereby sustaining injuries. Appellant's age on October 6, 1934, was 14 years, 3 months, and 21 days. The jury returned with their general verdict answers to interrogatories by which they found that the appellee did not invite appellant to go upon the platform; that the roof of the factory building was of such nature that it would likely be damaged by boys playing thereon; that the occupant of the factory building, prior to the date of the accident, personally told boys to stay off of the roof and called city police for the purpose of keeping them off; that appellant was upon the roof of the building without the consent of its occupant; that the occupant of the building objected to boys climbing upon and using the roof of such building; and that appellant was not upon the roof of the factory building for the benefit or convenience of the owner or occupant of the building or for the benefit or convenience of appellee. Complaint is made of appellee's tendered instruction No. 9 which informed the jury of their province in determining the credibility of the witnesses. Appellant insists that the 1. instruction is erroneous because it told the jury that in weighing the testimony of a witness his business might be taken into consideration, thereby in effect stating that the testimony of one class of witnesses was to be given greater weight than that of another. The instruction informed the jury that it was their duty to determine the credibility of the witnesses and the weight to be given to their testimony, and that in weighing the testimony of the witnesses they could take into consideration the interest the witness had, if any, in the result of the action, his candor and fairness or want of fairness, his manner and bearing while testifying, his intelligence or want of intelligence, his bias or prejudice, if manifested, *Page 559 his character, business, habits and associations as disclosed by the evidence of the case, the reasonableness or unreasonableness of his testimony, his means and opportunity of knowing the facts which he testifies, etc. The instruction does not refer to any witness or class of witnesses by name or allusion. The elements enumerated in the instruction which the jury was told they might consider were as equally applicable to the witnesses of appellee as they were to the witnesses of appellant. A person's business may or may not afford him greater opportunity for knowing the facts about which he testifies, and the jury has the right to consider such element in determining what weight should be given to the testimony. The instruction is not subject to the criticism urged. Woollen v. Whitacre (1883), 91 Ind. 502; Cline v.Lindsey (1887), 110 Ind. 337, 11 N.E. 441; Lynch v. Bates (1894), 139 Ind. 206, 38 N.E. 806; Indianapolis, etc., TractionCo. v. Dunn (1906), 37 Ind. App. 248, 76 N.E. 269. Both appellant and appellee tendered instructions. The trial court gave all of the instructions tendered by appellant except Nos. 10 and 15, and all of those tendered by appellee except Nos. 1, 2, 7, 32, 39, and 43. These were all of the instructions given. The objections which appellant urges against each of the instructions tendered by appellee and given by the court may be summarized as follows: they are not a correct statement of the law, are not applicable to the evidence and within the issues, and, in effect, direct a verdict for appellee. Appellant insists that this case falls within that class of cases which must be governed by the application of the doctrine that although a licensee takes the premises as he finds them, with all their risks and dangers, and the owner of the premises owes him no duty of making any active effort to discover his presence, if the owner, *Page 560 however, discovers his presence and sees him in a situation of peril, he is not permitted to do an affirmative act which might reasonably be expected to increase the peril; in other words, the duty to use care in such cases may arise from the fact of the presence of the child on the premises in a situation of peril and the knowledge of the owner thereof, actual or constructive, of his perilous situation; or that where an owner who is in immediate control of a dangerous force knows, or from the facts within his knowledge should know, that if left exposed persons would likely come in contact with it, in which event it would obviously become dangerous to them, the owner so exposing the dangerous force should reasonably anticipate the injury which is likely to result from its exposure and is required to exercise reasonable care to guard it so as to prevent injury therefrom. It is contended that whether the appellant was a bare licensee or invitee when upon the transmission platform, if appellee knew or ought to have known that boys of his age were accustomed to being there, appellee was chargeable with due care in the management of its poles, wires, and current, so as to protect children or others who might be expected to be there from injury and was bound to anticipate that some injury might result to someone in consequence of the location and condition of the wires. Appellant concedes that instructions were tendered by him upon this theory and that they were given by the court. Appellee sought to avoid liability upon the theory that appellant was a trespasser or licensee and that appellee owed him no duty, except not to wilfully injure him, and furthermore, because of appellant being sui juris, he was guilty of contributory negligence. While there are many decisions, both in this state and elsewhere, in which the rules applicable to cases of *Page 561 this character have been applied, the courts have been 2. governed by the particular facts in each case in determining what rule should be applied, the essential question in each case being, Did the owner of the premises (under the particular circumstances of the case involved) owe any duty to the party injured on his premises, and, if so, was such duty violated, and did such violation result in the injury complained of? By instruction No. 10 tendered by appellee the court told the jury that unless it found from a preponderance of the evidence that appellee owed some duty to appellant which it negligently failed to perform, there could be no right of action in appellant's favor against appellee, and if it was found that appellant was not on the platform of appellee rightfully, then appellee owed appellant no duty other than to refrain from wilful injury. By instruction No. 11 the jury was told that if they found that appellant was more than 14 years of age at the time of his injury, under the law of Indiana he would be chargeable as an adult for his conduct in going upon the roof of the factory building and onto the platform of appellee. By instruction No. 16 the jury was told that a licensee or trespasser takes the premises upon which he travels as he finds them, with all their attendant risks and dangers, and that if they found that appellant came upon the platform without the invitation of appellee, as a mere trespasser or licensee, their verdict should be for appellee. Instruction No. 20 informed the jury that if they found by a preponderance of the evidence that lack of care on appellant's part for his own safety materially contributed to his injury, their verdict should be for appellee. In disposing of the criticism urged against the instructions *Page 562 tendered by appellee, it must be borne in mind that before appellant could compel appellee to answer in damages for 3. the injuries sustained, he must allege and prove actionable negligence, which consisted of a duty owing, the failure to perform that duty, and injury resulting therefrom. Harris v.Indiana General Service Co. (1934), 206 Ind. 351,189 N.E. 410. Generally speaking it is true that the duty of the owner or occupant of the premises to a person injured thereon depends to some extent on whether such person was there as a 4. trespasser, or as licensee by permission or passive acquiescence only or as a licensee by the inducement or invitation express or implied of such owner or occupant. The duty as expressed by our courts in general terms is to the effect that the owner or occupant of premises owes no duty to the trespasser thereon, except to refrain from wilfully or intentionally injuring him after discovery of his presence. Cleveland, etc.,R. Co. v. Means (1915), 59 Ind. App. 383, 104 N.E. 785, 108 N.E. 375. We recognize that there are exceptions to the general rule, such as cases to which the attractive nuisance doctrine and the doctrine of last clear chance have been applied and cases where children and persons non sui juris are likely to come in contact with a dangerous force. Cleveland, etc., R. Co. v.Means, supra; Fort Wayne, etc., Traction Co. v. Stark (1921),74 Ind. App. 669, 127 N.E. 460; Terre Haute, etc., Traction Co. v. Sanders (1923), 80 Ind. App. 16, 136 N.E. 54; Harris v.Indiana General Service Co., supra. However, in the instant case, in determining what duty, if any, appellee owed appellant and whether or not appellee was charged with the consequences of his own acts, it must be borne in 5. mind that appellant, at the time of his injury, was of the *Page 563 age of 14 years, 3 months, and 21 days and apparently a normal child in mind and body. There was no averment or proof that he was not sui juris or was defective mentally or that he did not understand the consequences of his acts or know of the danger of ascending to the platform and coming in contact with the electric wires. Under the decisions of this court and our Supreme Court, appellant, under such circumstances, must be charged as a matter of law with the consequences of his acts as an adult. Bottorff v.South Construction Co. (1916), 184 Ind. 221, 110 N.E. 977; Kent v. Interstate Public Service Co. (1933), 97 Ind. App. 13,168 N.E. 465. Considering that appellant is sui juris, and as a matter of law charged with the consequences of his acts as an adult, together with the undisputed facts showing the manner in 6. which he ascended to the platform, his purpose in so doing, the location and type of structure, his convenience and necessity for being on the platform, and the opportunity and obvious likelihood of danger, we can not perceive upon what theory appellant could escape the consequences of his own acts and avoid being guilty of contributory negligence as a matter of law. Appellee has cited the case of Kent v. Interstate PublicService Co., supra. We think this case is analogous to the case at bar and supports the conclusion we have reached. It affirmatively appears from appellant's own testimony that he knew of the danger of electricity and was aware of its presence and use throughout the city of Brazil. By his tendered instructions Nos. 12, 13, 17, and 19, appellant recognized that contributory negligence was within the issues submitted and constituted a defense. Appellant attempts to distinguish the Kent case from *Page 564 the case at bar by contending that in the instant case it was shown that children had for several years been accustomed to using the ground adjacent to the factory building and transformer platform as a playground. In the Kent case the court said (p. 18): "It was a common occurrence for boys to climb to the top of the girder and over the top of the bridge, generally hunting for birds' nests." The fact that children, including appellant, were accustomed to playing on the ground adjacent to the transformer platform and factory building furnished a reason for them to be on the common, but such fact did not afford appellant, especially in view of his age, a legitimate excuse for being on the roof of the factory building and on the transformer platform of appellee. Further complaint is made of the instructions tendered by appellee and given by the court upon the ground that there is an inconsistency between these instructions and those tendered 7. by appellant and given by the court. Should there be an inconsistency existing, the appellant is not in a position to complain. The instructions tendered by appellee in our judgment correctly state the law, and therefore the inconsistency, if any, was created by the giving of the instructions tendered by appellant. Gray v. Gray (1931),202 Ind. 485, 176 N.E. 105. Appellant urges other objections to the instructions given, but we consider these of minor importance, and in view of the conclusion we have reached, no good purpose would be served by extending this opinion to discuss them. We find no reversible error in the giving of appellee's tendered instructions. Judgment affirmed. *Page 565

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427175/

Appellee was engaged in hauling freight on motor trucks over several routes including routes between Indianapolis and Kokomo, and Indianapolis and Muncie, by way of Anderson. He holds "Certificates of Public Convenience and Necessity" issued by the Public Service Commission covering each of said routes. Appellant Becraft owned and operated motor trucks between Indianapolis and Kokomo and conducted the *Page 477 same sort of business on that route. Appellant Warehouse Distributing Corporation held a ten-year lease on a large warehouse at 415 South Pennsylvania Street in Indianapolis in which warehouse appellant Central Union Truck Terminal, Inc., occupied thirty-five thousand (35,000) square feet of floor space. Becraft and the Terminal Corporation were operating under a contract by the terms of which the Terminal Corporation agreed "to solicit, collect, store, route, accept and handle freight in and from Indianapolis and other cities and towns in Indiana, and to turn same over to . . . (Becraft) . . . for transportation to destination or to connecting carriers . . ." and Becraft agreed to "provide equipment for daily service between Indianapolis and all points on . . . (his route) . . ." Becraft had about twenty (20) feet of space allotted to him at the warehouse, which space was along a brick wall, and was designated by Becraft's name on the wall. He received a share of all money received by the Terminal Corporation for the freight hauled by him. His operation from the Kokomo terminal was similar to that from the Indianapolis terminal. Numerous advertising circulars were distributed over the state identifying appellants, Warehouse Distributing Corporation and Central Union Truck Terminal, Inc., with "A State Wide System of Dependable Motor Transportation . . . to two hundred and fifty Indiana cities and towns . . . (with) local deliveries at . . . Kokomo, . . . Marion, Muncie . . . Central Terminal and Warehouse at 415 South Pennsylvania Street, Indianapolis, System operated by Warehouse Distributing Corporation." Appellant Tom Snyder was president and general manager of said two companies. Appellee filed an amended complaint in the circuit court of Marion county praying damages, and an injunction enjoining appellants from operating motor trucks *Page 478 in competition with his business, and from advertising that they would so operate motor trucks. Appellants first filed a plea in abatement, to which appellee filed a demurrer and the demurrer was sustained by the court. Thereupon appellants filed a motion to make the complaint more specific, and a demurrer to the complaint successively, each of which was overruled successively, whereupon appellants filed an answer in general denial. The cause was submitted to the court for trial without the intervention of a jury and the court found for appellee against all appellants and rendered judgment against all appellants, that appellee have the injunction prayed for and one dollar ($1.00) damages. Appellants seasonably filed a motion for new trial, charging that the decision of the court is not sustained by sufficient evidence and is contrary to law, which motion was overruled. The errors assigned are that the trial court erred: (1) In sustaining appellee's demurrer to appellant's plea in abatement; (2) in overruling appellant's motion to make the complaint more specific; (3) in overruling the demurrer to the amended complaint; (4) in overruling the motion for new trial. The only question presented under the first assigned error is whether or not the Marion Circuit Court had jurisdiction, to hear and determine this matter before, until or unless, it had been submitted to the Public Service Commission. Appellants contend the matter had to be submitted to the Public Service Commission first. The same question is presented under the third and fourth assigned errors. This action is based on the act of our General Assembly of 1925, beginning at page 138 of said acts (Sections 10164-73, Burns 1926, §§ 11223-11232, Baldwin's 1934), which placed owners and operators of motor vehicles, *Page 479 used for transportation of property, for compensation, as a common carrier, under the control of the Public Service Commission. The Public Service Commission is an administrative body, whose duty it is to administer certain laws, including said Act of 1925. There is no dispute but that the Public Service 1. Commission has exclusive jurisdiction of matters involving said laws which matters are purely administrative. The matter involved in the instant case is not, however, a matter of purely administrative character. On the contrary it is a question of whether or not the legal rights of the plaintiff have been and will be interfered with by appellants in violation of said Act of 1925. The precise question, whether or not such matters must be submitted to the Public Service Commission before circuit 2. courts acquire jurisdiction, has not been determined by our appellate courts. The Third District Appellate Court of Illinois, in D.U. and C.Ry. Co. v. T.L. Clark Truck Co. (1923), 231 Ill. App. 339, held that the (state) circuit court had jurisdiction to enjoin a motor bus company from operating as a common carrier of passengers on the public highways without having secured a certificate of convenience and necessity from the Illinois Commerce Commission, notwithstanding the fact that the motor bus company had filed application for such certificate, and the plaintiff, seeking the injunction, had appeared before the commission, filed objection to such application and the matter was still pending before the commission. The court in that case said: "The Commerce Commission is not a court and appellant being engaged in operating without a certificate of necessity and convenience, the Commerce Commission has no power by order or process to furnish appellee with a complete or adequate *Page 480 remedy. . . . The only method by which the Commerce Commission could enforce any order which it might make in the premises would be to file a bill for an injunction, praying for the identical relief sought in the present bill, and as the right to pray for an injunction is not limited to the Commerce Commission, we see no good reason why appellee should be compelled to await the action of the Commerce Commission before resorting to a Court of Chancery. . . ." The statute conferring control of public utilities to the Illinois Commerce Commission (Sec. 71, Chap. 111a, p. 1981, Cahill's Ill. R.S. 1927), is similar to Sec. 10165, Burns 1926. What that court said of the Illinois Commerce Commission can properly be said of the Indiana Public Service Commission. The right to pray for an injunction restraining a violation of an order of the Public Service Commission of Indiana is not limited to the commission but is expressly given to "any person having a special interest in enforcement of such order." Sec. 10172, Burns 1926 (§ 11231, Baldwin's 1934). We hold that the Marion circuit court had jurisdiction of the subject matter of this case. In connection with this holding we have considered the reasoning of the Supreme Court of the United States in Great No.Ry. v. Merchants Elev. Co. (1922), 259 U.S. 285, 42 S. Ct. 277,66 L. Ed. 943, by which that court concluded that federal courts have jurisdiction of cases involving a disputed question of construction of interstate tariffs, without the matter being first submitted to the Interstate Commerce Commission. Under the second and third assigned errors appellants contend that "the facts stated in the complaint, taken as a whole, do not show that the appellants conspired or combined to do an unlawful act. A conspiracy or combination to do a lawful act does not make it unlawful." The complaint alleged that appellants "have joined *Page 481 and are still engaged in a conspiracy and combination to violate the legal rights of the plaintiff under his certificate (of 3. public convenience and necessity)" and pursuant to such conspiracy appellants, are engaged in operating motor vehicles, as common carriers, along the same highways upon which the plaintiff, by his said certificates, is authorized to operate such a business. It further alleged that appellants are engaged in said business without having had a certificate or certificates of public convenience and necessity covering said routes, issued to them by the Public Service Commission. The charge of operating such business without having had a certificate of public convenience and necessity issued to them as aforesaid, is a charge of the commission of an unlawful act. We hold that the allegations of the complaint are sufficient to constitute a cause of action, and that they are amply definite to inform appellants of the precise nature of the charges made by the complaint. Appellants further object to the complaint because it does not allege facts sufficient to show that a certificate (of convenience and necessity) was required (of appellants); 4, 5. because the complaint does not allege that public convenience and necessity do not require such operation (by appellants). Sec. 10165, Burns 1926 (§ 11224, Baldwin's 1934), provides that: "No motor vehicle, except as hereinafter provided (which exceptions do not apply in the instant case), shall be operated upon any public highway of the State of Indiana for the purpose of transporting passengers or property for compensation as a common carrier until after there shall have been obtained from the Public Service Commission of Indiana a certificate declaring that public convenience and necessity require such operation. . . ." The complaint alleged that appellants were operating *Page 482 in violation of said law. Appellee was not required to plead the statute. Appellants further contend the decision of the court was not sustained by sufficient evidence. Evidence is in the record tending to show the facts as set forth herein, and we hold that it is sufficient. It is contended that the right of appellee to invoke equity jurisdiction in this case depended upon a showing that he has suffered or would suffer irreparable damages, . . . that the judgment for one dollar ($1.00) damages clearly shows that appellee's damages were not irreparable. "Irreparable injury, as used in the law of injunctions, does not necessarily mean that the injury must be very great; and the fact that no actual damages can be proved, so that in an 6. action at law the jury could award nominal damages only, often furnishes the very best reason why a court of equity should interfere where the nuisance is a continuing one. . . ."Newell v. Sass (1892), 142 Ill. 104, 31 N.E. 176; See Elliott's Roads and Streets, 4th Ed. Sec. 850, page 1107; 32 C.J., Sec. 31 and cases cited. The injury complained of in the instant case is a continuing one, and actual damages suffered by appellee could not be proven. We adopt said statement of the Supreme Court of Illinois as applicable here. Appellants contend that the decree is too indefinite, and too broad and set forth portions of the decree to prove said contentions. If these portions of the decree could be considered separately and apart from the whole decree appellant's contentions would be meritorious, but the contentions have no merit when the decree is considered as a whole, and for that reason we have not discussed them. No reversible error having been shown the judgment of the lower court is affirmed. *Page 483

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427176/

Appellant was indicted for murder in the second degree. He entered a plea of not guilty and filed an answer alleging that at the time of the commission of the alleged offense he was temporarily insane. There was a trial by jury, resulting in verdict of guilty as charged, and fixing his sentence at imprisonment in the Indiana State Prison during life. Motion for a new trial was overruled, and judgment was entered on the verdict. On November 7, 1943, appellant and his mother, Margaret Brattain, a woman about 78 years of age, resided together on a farm near Clarksville, in Hamilton County. About noon of that day, Earl Burke, who lived close by, heard a scream and pleading, whereupon he drove to appellant's home, where he found the deceased lying in the yard, covered with blood, and her clothing disarranged. The appellant, who was crouched over her, and seemed to have his hands on her face and neck, yelled and ran behind the house. There was blood on the porch, scattered in the yard, and on a two-by-six board lying in the yard. In the kitchen the table was upside down, food was scattered about the room, and dishes were broken. The witness Burke, being fearful that the appellant might injure himself or the witness, drove to the home of one Roy Strite, about 40 or 50 rods from appellant's home. The appellant jumped on the running board of a passing automobile and, as it turned *Page 493 into Strite's driveway, jumped off and started away. Questioned by Strite, the appellant said that somebody over there was trying to kill his mother, and he asked Strite to help him, whereupon appellant and Roy Strite started for appellant's home. On the way they talked about crops and wages, and the appellant said, "If I have to leave, why don't you buy them cows?" He further said, "You wouldn't be hurt at $125 apiece on them." Arriving at appellant's home, Strite approached the mother, who said, "Roy, for God's sake, do something for me." He asked her what was the matter, and who did it, and in appellant's presence she said, "You know. Get him away from here." Strite asked the appellant to get a comforter, but the appellant, saying that it was not his mother, refused to do so. Another witness, one Almyr Bradway, entered the house with appellant to get a cover. Inside, the appellant started to light a lamp, although it was about noon. The appellant insisted that it was not his mother, and said somebody threw her out of a car. Bradway then got a cover, and it was placed over the mother. Strite then took appellant up to the cross roads, and, to keep appellant's mind occupied, suggested to him that they hide in the weeds along the road. The appellant said there were no weeds along there, and none were there. Appellant stated that if his mother died, he would get a long "stretch" over it, and that the sheriff would get them anyway. The sheriff arrived, and as they entered his automobile and were driving to appellant's home appellant said, "I told you they would get us." There was conversation concerning the time of day, one witness saying it was ten minutes to three, but the appellant insisting it was ten minutes to two, and it was in fact ten minutes to two. The sheriff took the appellant to jail without difficulty, *Page 494 and then returned to appellant's home in search of a knife. Finding none, he went back to the jail and found a knife stained with human blood stuck in the top of appellant's boot. Shortly after he was taken to the jail the appellant fell asleep, and slept until about eight o'clock that evening. The evidence discloses that deceased had suffered multiple contusions, lacerations, cuts and stab wounds about the head, neck, face, and body, and had multiple fractures of the ribs on both sides of the chest. She died about 11 o'clock P.M., on November 8, 1943, as the result of said injuries. The evidence further discloses that the appellant habitually drank intoxicating liquors; that he had been uniformly kind to his mother, and had cared for and supported her. He made a written statement and later testified to the effect that he had drunk heavily of intoxicating liquor on the night of November 6th, and on the morning of November 7th had continued to drink intoxicating liquor, and that he had no recollection of anything that occurred from just before the noon meal until he woke up in jail that evening about eight o'clock. The evidence is conflicting as to whether the appellant was sane or insane at the time of the commission of the alleged offense. The witness Strite, when asked, "Was he intoxicated at the time, in your opinion," answered, "I wouldn't say so." Following the appellant's plea of insanity, the court, pursuant to § 9-1702, Burns' 1942 Replacement, § 2216, Baldwin's 1934, appointed three physicians to examine him, to which the appellant objected. These physicians examined the appellant on Monday prior to the trial and testified that in their opinion at the time of the examination he was of sound mind. One of the physicians, in response to a hypothetical question put to him *Page 495 embodying in substance the facts surrounding the commission of the alleged crime, stated that in his opinion the appellant was sane at the time the alleged crime was committed. The sole error assigned on appeal is the ruling on the motion for new trial. There are 23 causes set out in said motion for a new trial, five of which relate to the giving of 1. instructions tendered by the State, and seven to the giving of instructions by the court on its own motion. No specific objection to the giving of any of these instructions is shown in the record, therefore claimed error on this ground is not available. Rule 1-7, 1943 Revision. As his first cause for new trial, the appellant contends that the court erred in refusing to give to the jury his tendered instruction No. 1, which was a peremptory instruction to find for the defendant. His 20th cause is that the verdict is contrary to law, and 21st, that the verdict of the jury is not sustained by sufficient evidence. Since appellant is only attempting to question the sufficiency of the evidence under each of these assignments, they will be considered together. Appellant contends that there was no evidence tending to show that the appellant killed the deceased, nor was there any evidence tending to show that the appellant unlawfully, 2, 3. feloniously, purposely and maliciously did any act which caused the death of the deceased, nor that the appellant had sufficient mental capacity to form an intent to commit the crime charged. It is our opinion that there was ample evidence to go to the jury on the question as to who killed the deceased. The undisputed evidence shows that the deceased sustained extensive cuts, lacerations and stab wounds, and that a knife stained with human blood was found stuck in the boot of appellant; also, that the appellant was *Page 496 seen stooping over said deceased when she was lying in the yard suffering from her various wounds, and that his arms and hands were covered with blood. The undisputed evidence further shows that when the deceased was asked who did it, in the presence of the appellant, she said, "You know. Take him away." The fact as to who killed the deceased can be proved by circumstantial evidence. There was ample circumstantial evidence from which the jury could reasonably have inferred not only that the appellant killed the deceased, but that in committing said act he made effective use of a deadly weapon, to-wit, a knife; and from the use of such weapon the jury had a perfect right to find that said crime was committed unlawfully, purposely, and with malice.Aszman v. State (1889), 123 Ind. 347, 24 N.E. 123, 8 L.R.A. 33; Welty v. State (1913), 180 Ind. 411, 100 N.E. 73;Landreth v. State (1930), 201 Ind. 691, 171 N.E. 192, 72 A.L.R. 891. It was unnecessary to establish a motive for the killing, where the criminal act causing death was otherwise fully established. Ewbank's Indiana Criminal Law (2d Ed.), § 888;Wheeler v. State (1902), 158 Ind. 687, 63 N.E. 975; Morgan v. State (1921), 190 Ind. 411, 130 N.E. 528. It is true that where the defense of insanity is pleaded the burden rests upon the State to prove beyond a reasonable doubt that the defendant was sane at the time of the commission 4-6. of the alleged crime, and said burden never shifts, but the presumption of sanity is sufficient to constitute a prima facie case in favor of the State where there is no evidence to dispute it, so that the State is not required to introduce evidence in chief to prove the sanity of the defendant; but when, as in this case, evidence is introduced upon that issue, the same becomes a question *Page 497 of fact for the jury, who have a right to consider all of the evidence having a bearing on the issue, whether introduced by the State or by the defendant. Walters v. State (1915),183 Ind. 178, 108 N.E. 583. In our opinion there was ample evidence produced by the State to warrant this case going to the jury on this issue. Appellant contends in his second specification that the court erred in not giving instruction No. 5 as asked and tendered by the defendant. The proposition of law embraced in this instruction was fully covered by the instructions given by the court, particularly instruction No. 5 tendered by the State and given by the court. Under his specification 4, the appellant complains of 7, 8. the refusal of the court to give his tendered instruction No. 6, as follows: "Mere drunkenness does not excuse or palliate an offense but may produce a state of mind which incapacitates the party from forming or entertaining a specific intent. If the mental condition is such that a specific intent can not be formed, whether this condition is caused by drunkenness or otherwise, a party can not be said to have committed an offense, a necessary element of which is that it be done with a specific intent, and in this case if you find that the defendant was intoxicated to such an extent that he was incapable of forming an intent to do the acts as alleged in the indictment he should be acquitted." This instruction was properly refused in this particular case. It is true that evidence of intoxication is competent in a prosecution for any crime in which a specific intent is an essential ingredient of the offense, and when the degree of intoxication is such as to render a person incapable of entertaining a specific intent it is an effective defense as to such crimes. Booher v. State *Page 498 (1901), 156 Ind. 435, 60 N.E. 156, 54 L.R.A. 391; Aszman v.State, supra. But it must be remembered that the offense charged herein includes the lesser offense of manslaughter, where no specific intent is required in order to support a finding of guilty. Gillett on Criminal Law (2nd Ed.), § 499. This being the law, the jury would not have been warranted in acquitting the defendant on the sole ground that he was so intoxicated as to be incapable of forming a specific intent. Appellant's causes 9, 10, 11, and 22 have to do with the appointment by the court of three physicians at the time that the appellant filed his plea of insanity, and to permitting 9. each of said physicians to testify as to the sanity of the appellant at a time after the commission of the alleged crime. It is contended by the appellant that his sanity at the time of such examination was not in issue, as he had pled "temporary insanity," and that he was insane only on the day that the alleged crime was committed. The appointment of these physicians was made pursuant to § 9-1702, Burns' 1942 Replacement, § 2216, Baldwin's 1934, which specifically provides that the court shall, upon plea of insanity, make such appointment. This particular statute makes no provision for a plea of "temporary insanity." It is our opinion that the plea filed by the appellant was in effect a plea of insanity and that the court not only had the power but it was his duty upon the filing of such plea to make such appointment of the physicians; that by making such plea, the appellant invited the court to do so, and that it was proper that such physicians be heard and allowed to testify at the trial. As his 19th cause for new trial, appellant contends that the court erred in not submitting to the jury the *Page 499 answer of the defendant to the indictment, along with the 10. indictment. Assuming that such was the duty of the court, the appellant cannot now be heard to complain of the court's failure in that respect, as the record does not disclose that he made any objection to the court's failure to submit said answer, or that he requested that it be submitted. Finally, for his 23rd specification, the appellant complains of the refusal of the court to grant his application for a change of venue from the county. It is specifically provided by § 11-13. 9-1305, Burns' 1942 Replacement, § 2226, Baldwins' 1934, that in all cases not punishable by death, when the affidavit for a change of venue is founded upon excitement or prejudice against the defendant, it is discretionary with the court whether or not such change shall be granted. Unless there is an abuse of such discretion, the ruling of the trial court will not be disturbed. In the case before us there is nothing in the record to disclose any abuse of such discretion as the appellant has failed to incorporate in the record the affidavits in support of his motion for change of venue from the county. Such affidavits can only be brought into the record by a special bill of exceptions. Day v. State (1934), 207 Ind. 273,192 N.E. 433. This the appellant has failed to do. We have considered all of the questions presented by the appellant in his brief and find no reversible error. Judgment affirmed. Note. — Reported in 61 N.E.2d 462. *Page 500

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427186/

The appellee Susie DeHart brought this action against the appellant and its employee, the appellee Raymond G. Poth, to recover for injuries sustained because of an assault and battery committed on her by Poth. It is alleged, and appears from the evidence most favorable to the plaintiff, that the appellee Poth was employed by the appellant as a collector; that the plaintiff had purchased certain clothing from the appellant, and that Poth went to the plaintiff's home to collect; that the plaintiff told him she was unable to pay anything on her account at that time; that an altercation ensued during which Poth choked the plaintiff, causing a nervous condition which has permanently impaired her health. Upon the question of whether a master is liable for an assault and battery committed by a servant employed to make collections there is some conflict in the authorities. 18 R.C.L. § 263, pp. 807, 808; 39 C.J. § 1509, p. 1309. It is said on page 808 of 18 R.C.L.: "But for an assault resulting from an attempt on the part of the employee to collect money due to the employer, the latter is not as a rule to be held accountable." In Mechem on Agency, 2d Ed., Vol. 2, § 1978, pp. 1540, 1541, 1542, 1543, it is said: "The servant's act in punishing persons who annoy him in the performance *Page 624 of the service, or who interfere with or injure the master's property, or his own gratuitous act in using personal violence as a means of coercing the performance of contracts or the payment of debts due the master, can very seldom be regarded as within the course of the employment. A fortiori will this be true where the violence is resorted to for the purpose of coercing the performance of that in which the servant was primarily interested rather than the master. It is true that expressions indicating a wider liability are sometimes to be found. Thus in a case in Wisconsin (Bergman v. Hendrickson et al. [1900],106 Wis. 434, 82 N.W. 304, 80 Am. St. Rep. 47) where the servant who was a barkeeper had made an assault upon one of his master's patrons, for the purpose, as it was contended, of coercing payment for liquors which he had purchased, the court said: `If B (the servant) committed the assault for the purpose of collecting payment for his master's liquor, he was within the scope of his employment. It was his method of performing the duty delegated to him, and, although the method may not have been either expressly authorized or even contemplated, — nay, although it may have been expressly prohibited, — yet the master is liable for the damages caused thereby, provided he has entrusted to the servant the duty he was attempting to perform.' Unless there was something indicating that the use of force was contemplated or usual, — of which there was no evidence — or unless the court deemed the case to fall within the principle of those in which a special duty of protection is supposed to exist (which seems probable from the cases cited), it must be thought that the rule here laid down is wider than sound principle or the authorities generally will justify. It surely cannot be true that because the master has entrusted to a servant the performance *Page 625 of a duty, the master can be held responsible for whatever method the servant may adopt in attempting to perform it." In the recent Restatement of the Law, which was written in the light of all of the cases referred to in the texts above cited, and of substantially all of the authorities referred to in the brief, it is said: "A master who authorizes a servant to perform acts which involve the use of force against persons or things, or which are of such a nature that they are not uncommonly accompanied by the use of force, is subject to liability for a trespass to such persons or things caused by the servant's unprivileged use of force exerted for the purpose of accomplishing a result within the scope of employment. "Comment: "a. Nature of employment. Whether or not an employment involves or is likely to lead to the use of force against the person of another is a question to be decided upon the facts of the individual case. To create liability for a battery by a servant upon a third person, the employment must be one which is likely to bring the servant into conflict with others. The making of contracts or the compromise, settlement, or collection of accounts does not ordinarily have this tendency. On the other hand, the employment of servants to recapture property, to take possession of land, or to deal with chattels which are in the possession of another, is likely to lead to altercations, and the master may become liable, in spite of instructions that no force shall be exerted against the person of the possessor." Restatement of the Law of Agency, Vol. 1, § 245, pp. 547, 548. It would seem that the rule laid down by Mechem and in the Restatement of the Law is based on sound *Page 626 principle; that a master is only liable for the use of 1. force by a servant where the acts to be performed by the servant are of such a character that they are not uncommonly accompanied by the use of force, or where there was something in the employment indicating that the use of force was contemplated. It would seem, as indicated in the Restatement of the Law, that the collection of accounts does not ordinarily come within this class; and, to take such a case out of the rule, something more than mere employment to collect accounts must be shown. The case at bar was begun and tried upon the theory that if the assault and battery was committed in the course of the servant's efforts to collect the amount due his master, the master 2, 3. was liable without regard to whether or not the collection of accounts is ordinarily accompanied by the use of force and without any consideration of the question of whether force was contemplated by the master. The appellee says in the brief: "In this case, we have a large corporation selling wearing apparel on credit. That because of selling such merchandise on credit, the business of appellant contemplated and necessitated a rigid method of collection and the employment of regular collectors. For example, its account books stated `Payments must be made promptly at store, as agreed; otherwise collector will call next day.' Further, here we have a case where the servant was performing his duties as such collector and committed this assault while he was attempting to do the very thing for which he was employed." The mere fact that the appellant is a corporation selling wearing apparel on credit, and that it employed regular collectors, and that it sought to collect its accounts promptly, is not sufficient. In order to hold the master for an assault and battery by *Page 627 a collector, it is necessary to show that the use of force was contemplated or usual in the conduct of the master's business of collecting accounts, or that the master knew, or had reasonable cause to know, that the servant was the type of person who was likely to resort to force in the course of his efforts to collect the accounts. No such facts were alleged or proven. The case was tried upon the theory that the mere fact that the assault and battery was committed in an effort to collect the account is sufficient to charge the employer with responsibility. While the authorities differ, we conclude that the sounder reasoning does not sustain such a theory. Our conclusion makes it unnecessary to discuss the errors assigned in detail. Judgment reversed, with instructions to set aside the judgment and verdict, and to sustain the appellant's demurrer to the complaint with leave to amend. NOTE. — Reported in 29 N.E.2d 948.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427281/

Appellee is the owner of a small lot located in the city of Indianapolis, on which is a frame dwelling that for many years has been occupied by appellee as her residence. North of appellee's lot, and separated therefrom by an alley fifteen feet wide, is a similar lot which is, and for a number of years has been, the property of appellant. Adjoining appellant's lot on the north, and but fifty-five feet north of appellee's premises, is a railroad right of way on which are located many railroad tracks over which numerous freight trains are, and for more than ten years have been, operated daily, at all hours of the daytime and nighttime of each day. Both lots are located in a section of the city which, by a city ordinance, is designated and set apart as an "industrial district." In November, 1920, appellant erected a horse stable on the lot owned by him. The stable was frame, placed upon a cement foundation, with cement floors, with windows and doors screened to keep out flies, was rat proof, and was in continuous use as a place to keep horses, from the time it was erected until it was accidentally destroyed by fire, July 28, 1922. Fire from the burning stable so damaged appellee's dwelling that it could not be occupied as a residence until it had been repaired some weeks later. After the fire, appellee, claiming that the stable had been so used that it was, at all times prior to its destruction by fire, a nuisance, commenced this action against appellant for damages. On the trial, the evidence without conflict established the above facts. Trial resulted in a judgment for appellee for $250. Action of the court in overruling motion for new trial is assigned as error. Reasons for new trial which it is necessary to consider are that the decision is not sustained by sufficient evidence, and is contrary to law. A horse stable within a city is not a nuisance per se, *Page 217 but it may become a nuisance by reason of the location, the manner of its construction, or the way in which it is 1, 2. kept or used. Keiser v. Lovett (1882), 85 Ind. 240, 44 Am. Rep. 10; Phillips v. City of Denver (1893),19 Colo. 179, 34 P. 902, 41 Am. St. 230. The stable of which complaint is made by appellee was located in that part of the city which, by an ordinance, was set apart as an industrial district. We have not here the case of a stable thrust into a strictly residence section of a municipality. It was not a nuisance because of its location. It is not averred in the complaint, nor was evidence submitted at the trial tending to show, that the stable was a nuisance because of the manner of its construction, or that the fire was due to any negligence of appellant in the construction, use or management of the stable; nor is it averred in the complaint, or shown by the evidence, that appellant was actuated by malice toward appellee, either in the erection or use of the stable. The important question presented by this appeal is whether, under the issues, there is sufficient evidence to show that the stable became a nuisance because of the manner in which it 3. was kept and used. There was evidence that some odor came from the stable, although it was regularly and properly cleaned. It also appears from the evidence that noise caused by the stamping of the horses' feet upon the cement floors was often heard by appellee and others while occupying the dwelling upon appellee's lot. There was, however, no evidence that the odors and noises which came from the stable were other than such as would come from any properly kept and well managed stable for horses. The Supreme Court of Kentucky in Morris v. Roberson (1910),137 Ky. 841, 127 S.W. 481, 136 Am. St. *Page 218 323, had under consideration a question in all respects the same as is involved in the case at bar, except that, in that case, the alleged nuisance was a blacksmith shop instead of a stable. In discussing the question, the court said: "If a blacksmith shop is not per se a nuisance, then it must follow that, if it is operated as blacksmith shops ordinarily are, a nuisance is not created by the operation, because, if the ordinary operation of a blacksmith shop creates a nuisance, of necessity it results that such shop in itself is a nuisance. There was no evidence in this case tending to show that the blacksmith shop under discussion was not operated in the usual manner. It was not shown, for instance, that it was operated at night, or that unusual noises were made, or that there was any greater accumulation of filth than is the ordinary result of the operation of a blacksmithshop. This being true, the evidence failed to show that the operation of the shop was a nuisance." To the same effect, see,Louisville, etc., R. Co. v. Commonwealth (1914), 158 Ky. 773, 166 S.W. 237; Lake Shore, etc., R. Co. v. Chicago, etc., R.Co. (1910), 48 Ind. App. 584, 92 N.E. 989. So, in the case at bar, the stable was kept and used in the ordinary and usual manner and produced the usual odors, noises and annoyances that come from a well kept stable for horses; but located as it was, and not being a nuisance per se, there being no malice or negligence, the fact that the stable produced the odors and noises did not make it a nuisance for which substantial damages could be recovered. If damages were suffered, it is damnumabsque injuria. Lake Shore, etc., R. Co. v. Chicago, etc., R.Co., supra. See, also, Meeks v. Wood (1918),66 Ind. App. 594, 118 N.E. 591. The decision is not sustained by sufficient evidence. Reversed. *Page 219

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427084/

On July 1, 1936, appellants Ronald Admire, Lillie D. Admire, and Julia Jean Rudd were the owners of all the capital stock of the Greenwood Dairy Farms, Inc. On said day, appellees entered into a written contract with above named appellants to purchase the entire capital stock of said corporation at and for the sum of $50,000.00. It was provided therein that the sum of $8,000.00 should be paid in cash and that appellees should assume the payment of divers accounts due and owing by appellants, and that the residue of the purchase price, after deducting the items assumed, should be evidenced by promissory notes of the appellees, secured by a first mortgage on all the property, assets and business of said corporation. On said 1st day of July, 1936, appellees paid to appellants, Ronald Admire, Lillie D. Admire, and Julia Jean Rudd, in consideration of said capital stock, the sum of $8,000.00 cash, and after computing the total sum of items, payment of which had been assumed by appellees, *Page 94 they executed their note for the residue of said purchase price in the sum of $36,528.72, to Ivory J. Drybread, trustee for appellants Ronald Admire, Lillie D. Admire, and Julia Jean Rudd, and to secure said note, executed and delivered to said Ivory J. Drybread a first mortgage on all of the assets, property and business of said corporation. Appellees filed their amended supplemental complaint in the Marion Circuit Court alleging the facts herein above set out, and, in addition thereto, say that in said sale by appellants to appellees, the appellants falsely and fraudulently misrepresented and concealed material facts concerning the status of said corporation. They further allege that the books and records of the corporation which were shown to appellees in the transaction, revealed the business to be operating at a profit, whereas said corporation, over a long period of time, had been allowing illegal rebates to customers and had been selling products below the legal schedule of prices prescribed by the Indiana Milk Control Board, which practices greatly reduced the income of the corporation and the value of the stock; that said illegal rebates amounted to approximately $800.00 per month and, because of the long practice in allowing the same, the precedent established thereby could not be abandoned. Because of such facts, the corporation could not be operated at a profit and was insolvent and a receiver was appointed therefor on October 16, 1936, and said corporation has been adjudicated as an involuntary bankrupt in the United States District Court. Appellees further allege that they relied and acted upon such false representations and were thereby induced to enter into said transaction and that upon discovering the conditions, tendered to appellants said stock certificates and all other rights in the assets and property *Page 95 of said corporation and demanded they be restored to theirstatus quo; this appellants refused to do and they (appellees) have delivered to the clerk of the Marion Circuit Court said stock certificates for the use and benefit of appellants. It is further alleged in the complaint that appellant James B. Nelson, loaned to appellee Glenn Brewer, the sum of $7,500.00 to finance the cash payment made and that such loan was secured by said Glenn Brewer by executing a note and mortgage upon certain real estate in the State of Missouri, and that in the negotiations of the sale of said corporate stock, said James B. Nelson acted for himself and for and on behalf of his daughter, Julia Jean Rudd, appellant. In addition to the contract of sale of the corporate stock, appellants James B. Nelson and Arthur Admire executed an indemnifying agreement with appellees indemnifying them against any loss by reason of the conduct of the business prior to the sale thereof and to indemnify them against any loss by reason of the failure of Ronald Admire, Lillie D. Admire, and Julia Jean Rudd to execute the contract of sale. A further agreement was executed whereby appellants Ronald Admire, Lillie D. Admire and Julia Jean Rudd agreed not to engage in the dairy business. Appellees, among other things, prayed that the contracts and transactions relating to such sale be rescinded and cancelled and for a restoration of status quo of all parties. Appellants filed their separate and several answers to the amended supplemental complaint in four paragraphs. The first paragraph was in general denial. The second paragraph alleged laches in rescinding the contract and mismanagement of the business causing loss to said corporation. The third paragraph alleged particular *Page 96 acts of mismanagement of the business affairs of the corporation by appellees and a failure to offer to restore appellants tostatus quo of July 1, 1936. The fourth paragraph alleged further mismanagement and violation of the contract of sale by withdrawal of money from the funds of the corporation by appellees and alleged an estoppel. To the second, third, and fourth paragraphs of answer, appellees filed a reply in general denial and the cause was submitted to the court for trial without a jury. The court made a finding and entered a judgment thereon adverse to appellants, rescinding and setting aside the contract of sale, the indemnifying agreement, and the agreement of appellants not to engage in the dairy business and relieved appellees from liability on the note of $36,528.72, and also rendered a personal judgment against appellants Ronald Admire, Lillie D. Admire, Julia Jean Rudd, and James B. Nelson in the principal sum of $8,000.00, plus the sum of $1,260.00 interest. Appellants filed their motion for a new trial which was by the court overruled, and this appeal followed. The reasons assigned and relied upon in this court for a reversal is the overruling of the motion for a new trial. The specific reasons assigned in the motion for a new trial are: (1) The decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law. It is contended by appellants that appellees failed to act promptly upon the discovery of the alleged fraud; that they made no effort to, nor did they restore appellants to status quo; they made no accounting of their operations. After the fraud was discovered, they continued to deal with the corporation as though the contract *Page 97 was binding and that by such conduct they have estopped themselves from asserting fraud as a basis for rescission and the trial court failed to order the return of the certificates of stock to appellants. Rescission of contracts has a well defined meaning and contemplates and requires affirmative action immediately upon discovery by the one seeking such recission. It 1. contemplates and includes the idea of restoration of both parties to the contract to their status quo and the return by each to the other of the consideration given and received. DeFord v. Urbain (1874), 48 Ind. 219; Citizens'Street Railroad Company v. Horton (1897), 18 Ind. App. 335,48 N.E. 22. Appellants have stated numerous propositions of law and cited authorities to sustain them relative to rescission of contracts and the elements that enter into such rescission. With these statements of the law we agree and to adjudicate the questions involved in this appeal, we must of necessity consider the facts as disclosed by the evidence. 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 2. at law. Lake Erie Western Railway Company v. Griffin (1886), 107 Ind. 464, 8 N.E. 451; Henderson v.Henderson (1887), 110 Ind. 316, 11 N.E. 432. The evidence discloses that the Greenwood Dairy Farm, Inc., was organized in 1932; and that James B. Nelson, from time to time, had advanced large sums of money for use in said corporation; and, as stated by Arthur Admire, one of the appellants, the federal income tax return for the year of 1933 had showed a *Page 98 loss of $6,000.00 which was true. Ronald Admire, one of the appellants, owned one share of stock given to him by his father and he, Ronald, was to receive 10% of the selling price of said corporation. Prior to July 1, 1936, the date of sale, said corporation had been engaged in numerous law suits growing out of the operation of said plant. At the time appellee Glenn Brewer became interested in the purchase of said company, he had a conversation with Ronald Admire who informed him that the company was a going concern and making money and that the sale price was $50,000.00. Mr. Brewer inquired if an audit of the books could be made and was informed that it could not be made because the figures relating to the farm adjoining were mixed with the dairy figures and that a real audit could not be made in regard to the operation of the dairy plant. Subsequent to that time, when Mr. Nelson and Ronald Admire, appellants, and Mr. Fechner and Mr. Brewer, appellees, were present, Mr. Brewer said that if everything was as it appeared, and everything was all right, that they were satisfied that the business was desirable. At that time Mr. Nelson said that the business was making money and one month they made $1,500.00 profit. There was nothing said about discounts at that conversation. July 1st was agreed upon as the date for closing the deal. Glenn Brewer, appellee, further stated that he was given to understand that Arthur Admire and James B. Nelson were the owners of the business and he did not know at that time that the stock was not in their names. Ronald Admire told him they were the owners. Prior to July 1, 1936, a meeting was held between Mr. Nelson, Mr. Drybread, Arthur Admire, Ronald Admire and appellees herein and an agreement was drawn up at Mr. Nelson's suggestion. Further negotiations were had between appellee *Page 99 Glenn Brewer and James B. Nelson relative to the borrowing by Brewer from Nelson the sum of $7,500.00. The evidence further discloses that the books and records of the company shown to appellees and their representatives during the negotiations for the sale of the stock showed the business to be operating at a profit. After appellees took over said business and began the operation thereof, they ascertained that discounts were being given purchasers of milk and that in the month of July such discounts amounted to approximately $800.00. These discounts had been in effect for a year or so and a precedent had been established with the customers. In July, appellees reduced the discounts and lost customers. They were unable to operate the business at a profit with the discounts in effect. The loss for the month of July was approximately $900.00, for August, about the same, and the September losses approximated that amount. After the discovery that the discounts were being given, Mr. Brewer called upon Mr. Drybread and told him that the discounts were not known of at the time of the purchase and that there were several other things that were not made known, such as the lack of bottles; and that he wanted to see Mr. Nelson about getting things straightened out. Mr. Drybread said Mr. Nelson was in Michigan and that he did not know when he would come back and he, (Drybread) could do nothing until Mr. Nelson returned. Mr. Brewer further testified that Mr. Drybread informed him that when Mr. Nelson returned that they would all get together and that the matters would be straightened out. About the middle of September, 1936, Mr. Brewer learned of the return to Indianapolis of Mr. Nelson and immediately got in touch with him. At that time *Page 100 Mr. Nelson agreed to meet Mr. Brewer at the Fame Laundry at 3:00 on the following afternoon, which appointment he failed to keep. Mr. Brewer did, however, on that day have a conversation with Arthur Admire about being hoodwinked into a crooked deal and informed him that he wanted an adjustment or to rescind the contract. Mr. Admire informed him that he would have to see Mr. Nelson. A few days later Mr. Brewer called on Mr. Nelson at the Marott Hotel and was informed by him that he did not have anything to do with the Greenwood Dairy. However, he did inquire of Mr. Brewer as to what kind of a proposition he had and also said that he would take the matter up with Arthur Admire. The evidence further discloses that in a conversation between Ralph Myers and Ronald Admire, shortly after July 1, 1936, with respect to the sale of the Greenwood Dairy Farms, that Ronald Admire said that he had gotten $50,000.00 for the Greenwood Dairy Farms, Inc., and that when he told Mr. Nelson and his father of the sale they said they would not believe it until they saw it in writing, and, in the same conversation, Ronald Admire made the statement that he did not think that Mr. Brewer could make a go of it. Said witness Myers also testified that, prior to the sale, he was getting a discount of $.02 a quart on all the milk he purchased from the Greenwood Dairy Farm, Inc. On cross-examination, the appellant James B. Nelson denied that he told Mr. Brewer that the corporation was operating at a profit and that he did not suppose that it was so operating and that he had to keep pumping money into it to keep it going and that he wasn't going to put any more money into it. On October 21, 1936, the appellees mailed a letter to Ronald Admire, Lillie D. Admire, Julia Jean Rudd, *Page 101 James B. Nelson, and Ivory J. Drybread informing each of them that appellees desired to rescind and cancel the transaction and tendered to them all benefits received under said contract and demanded to be returned to status quo. Subsequent to the mailing of this letter and to the conversations had by Mr. Brewer with appellants, appellees conserved the property to the best of their ability under the circumstances. The evidence in this case consists of approximately 1,000 pages. We have read a sufficient part thereof to convince us that there was evidence to warrant the finding and judgment 3, 4. of the court. Under the rules established by this court, if there is any evidence to support the judgment of the trial court the same will be sustained. The same rules apply in cases of equity as in cases of law. Consequently an affirmance of its judgment is necessitated. Judgment affirmed. NOTE. — Reported in 41 N.E.2d 662.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427085/

Appellee, as lessee, brought suit against the appellant for possession of certain real estate in the city of Lafayette, and for damages for the alleged wrongful and forcible eviction of appellee therefrom, and the wrongful and forcible detention of the possession thereof by appellant. From a judgment in favor of appellee, this appeal is prosecuted. The issues consisted of what the parties have designated as an amended and supplemental complaint in three paragraphs, the first was in the usual form for possession of real estate and for damages for the unlawful and forcible entry therein and detention thereof; the second and third paragraphs were quite similar in their allegations, each setting out in detail, the various transactions through which the appellee traced the source of its alleged interest in and right to possession of said real estate. The appellant filed an answer in general denial to each paragraph of this complaint. It also filed a separate verified second paragraph of answer to the second and third paragraphs of complaint in which it denied the execution of certain written documents set out as exhibits to each of said paragraphs of complaint on which the appellee based his alleged interest in and right to possession of said real estate. It also filed a separate third paragraph of answer to the second and third paragraphs of complaint in which it alleged that it was the purchaser for value in good faith and without notice or knowledge of any claim, right or interest of appellee in and to said real estate. Appellant *Page 322 also filed a counterclaim against appellee in which it alleged that it was the owner in fee simple of the real estate in question, and sought to have its title quieted therein as against the appellee. Appellee filed a separate paragraph of reply in general denial to appellant's third paragraph of answer to appellee's second and third paragraphs of complaint, and a reply in general denial to appellant's counterclaim. On these issues the cause was tried to the court without the intervention of a jury. The court made a general finding for the appellee, and rendered judgment in its favor. The appellant filed a motion for a new trial within the statutory period of time, which motion was overruled. The only error properly assigned requiring our consideration, is the overruling of the motion for a new trial, in which appellant alleged sixty-six separate causes therefor, which will be disposed of in the order in which they are presented and discussed in that portion of appellant's brief devoted to "Propositions, Points and Authorities." It is appellant's first contention that the decision of the court is not sustained by sufficient evidence and is contrary to law. Under this contention appellant asserts that it was a bona fide purchaser for value of the fee simple title to the real estate by a warranty deed from the holder of the record title without notice of appellee's alleged interest therein; that the appellee claimed to be an assignee of a lease-hold interest in said real estate through unrecorded instruments; that the appellee assumed many conflicting positions after appellant acquired the fee simple title to the real estate in May, 1925, and that appellee failed to prove that the assignment of the lease under which it claimed its right of possession to the real estate had ever been properly executed. While there are many questions presented by the *Page 323 record for our consideration, the ultimate determination of the rights of the parties to this controversy is dependent upon the answer to be made to the query, whether or not under the facts and the law applicable thereto, the trial court was warranted in finding and adjudging that the appellant had actual knowledge of appellee's alleged interest in and right to possession of the real estate, as well as whether it had constructive notice thereof, sufficient to put it on inquiry previous to the purchase and payment of the consideration for the real estate in May, 1925. The evidence is voluminous and covers a broad field of inquiry; to attempt a complete summary thereof would unduly prolong this opinion and serve no good purpose. An examination of the record discloses that some of the facts are not controverted. We set them out as briefly as their substance will permit. In May, 1906, one William A. Wildhack became the owner, subject to certain existing leases, of the real estate concerning which this litigation is being waged. September 6, 1906, Wildhack as lessor entered into a written contract with Born and Company, a Lafayette corporation, as lessee, under the terms of which the lessor leased the real estate to the lessee for a period of twenty-five years from that date, or to September 6, 1931. The conditions contained therein necessary to be considered here were: that the lessee should pay to the lessor as rent for the use of said real estate the sum of $60 per annum, payable in advance on the 6th day of September of each year during the term of the lease, also all taxes, assessments, license fees or other charges made against said premises or any improvements placed thereon, including any special assessments for paving or sewage, levied and payable during the term of the lease. The lessee was also required within one year from the date of the lease to erect substantial buildings and *Page 324 other improvements on the leased premises to cost not less than $15,000 to be built and maintained subject to the satisfaction of the lessor. The lease was not to be assigned, nor said premises or any part thereof subleased or occupied by any party other than the lessee without the written consent of the lessor or his assignees. It was expressly stated and understood that the lessee was fully informed that the Lake Erie and Western Railroad Company had an interest in the leased premises held by Wildhack in trust for the railroad company and that the lease should be binding against the lessee in favor of the railroad company to the same extent as though it had been a party to the execution of the same, and that said lease should be binding against the railroad company in favor of the lessee in the same manner as if it had been a party thereto. Upon the failure of the lessee to perform the conditions of the lease it could be terminated by the lessor, in which event all permanent improvements placed upon the premises should become the property of the lessor, and likewise at the termination of the lease by expiration of time said improvements were to become the property of the lessor. The lessee had the right to extend the lease for an additional period of twenty-five years from the date of its expiration, if the election was made in writing and served on the lessor not less than thirty days prior to the date of expiration. The lease was binding upon the successors or assigns of the original parties thereto. It was acknowledged by the respective parties and properly recorded October 12, 1906. September 6, 1906, the Lake Erie and Western Railroad Company, as the first party, and Born and Company as the second party, entered into a written contract for the erection, maintenance and use of a side track and trestle upon the premises leased by Born and Company from Wildhack, this contract to continue during *Page 325 the same period of time as the lease from Wildhack to Born and Company. It was made with the approval and affirmance of Wildhack. The execution of this contract was acknowledged by Born and Company. It was not acknowledged by the railroad company. It was recorded October 6, 1906. This document was identified as plaintiff's (appellee's) exhibit "B" at the trial of this cause and was admitted in evidence over the objection of appellant. January 28, 1920, Luke H. Balfe, William R. Coffroth, and Frank Dienhart as first parties, Edward Born and Isaac Born as second parties, and Samuel T. Murdock as third party, entered into a written contract, under the terms of which the first parties agreed to have certain physical properties of the Lafayette Artificial Ice Company, and the second parties agreed to have certain physical properties of Born and Company, and the lease from Wildhack to Born and Company, excepting certain elevator properties with right of ingress and egress thereto, retained by Born and Company, transferred to the third party who, in consideration thereof, agreed to have a corporation organized for the purpose of operating an ice and coal business in the city of Lafayette, forty-five per cent of the stock of the new company to be issued to each of the first and second parties, and ten per cent to the third party. The execution of this contract was not acknowledged, and it was not placed on record. Samuel T. Murdock died intestate March 21, 1921, and this document was found after his death among some of his papers and personal effects in the Merchants National Bank in Indianapolis. This document was identified as plaintiff's (appellee's) exhibit "O" at the trial of this cause and was admitted in evidence over the objection of appellant. April 1, 1920, Born and Company, by Edward Born as President, for the expressed consideration of one *Page 326 dollar, executed a written assignment of all right, title, and interest in the lease entered into by it with Wildhack and the Lake Erie and Western Railroad Company on September 6, 1906, to Samuel T. Murdock, his heirs and assigns. The document was subscribed and sworn to before a notary public. It was not placed on record. It was likewise found in the Merchants National Bank of Indianapolis, among some of the private papers and effects of Samuel T. Murdock after his death. This document was identified as plaintiff's (appellee's) exhibit "D" at the trial of this cause and was admitted in evidence over the objection of the appellant. April 1, 1920, Born and Company signed a written document which recited that it had sold to Lafayette Consumers Company all its physical properties, a part of which sale was a transfer to Samuel T. Murdock or Lafayette Consumers Company of all its physical properties except elevator properties to be free from claims and liens, and that said Born and Company, Edward Born, and Isaac Born bound themselves to save said Murdock and Lafayette Consumers Company harmless against any loss which might be sustained because of any claims or liens against Born and Company. The execution of this document was not acknowledged, and it was not placed on record. It was likewise found in the Merchants National Bank of Indianapolis among some of the private papers and effects of Samuel T. Murdock after his death. This document was identified as plaintiff's (appellee's) exhibit "C" at the trial of this cause, and was admitted in evidence over the objection of appellant. May 2, 1921, appellee and Born and Company entered into a written agreement as first and second parties respectively, in which it was recited that in consideration of services performed by the second party for the first party at its request and in payment for same, and *Page 327 further, in perfecting the agreement between Samuel T. Murdock, trustee, in behalf of the first party in the properties operated at Lafayette, Indiana, at the date of the contract by Lafayette Consumers Company, said company assigned free and uninterrupted occupancy and use of the office building, scales, and other appliances located upon the land described as under the Wildhack lease, subject to certain conditions therein set out, not involved here, to Born and Company. The execution of this document was not acknowledged, nor was it placed on record. March 4, 1922, Born and Company by a written assignment on the back thereof, transferred its right under this contract to H.G. Lutz and J.C.F. Redinbo. The execution of this document was not acknowledged, nor was it placed on record. These two documents were identified as plaintiff's (appellee's) exhibits "E" and "F" respectively, and were admitted in evidence over the objection of appellant. March 22, 1922, Born and Company made a written assignment of the lease between said company and Wildhack to H.G. Lutz and J.C.F. Redinbo, as trustees for a proposed corporation "subject to the rights of the Lafayette Consumers Company." The execution of this document was acknowledged, and it was placed on record March 23, 1922. A cross reference to this assignment appeared upon the page of the record in which the original lease between Wildhack and Born and Company was recorded. November 8, 1922, Lutz and Redinbo, as trustees, made a written assignment of the Wildhack lease to the Lafayette Cooperative Elevator Company, "subject to the rights of the Lafayette Consumers Company, a corporation of Indiana." The execution of this document was acknowledged and placed on record December 5, 1922. A cross reference to this assignment appeared upon the page of the record in which the original lease *Page 328 between Wildhack and Born and Company was recorded. A copy of the assignment of the lease from Born and Company to Lutz and Redinbo appeared in full in an abstract of title to the property furnished to appellant previous to the date upon which it made the purchase, and they had knowledge of the contents of said assignment at that time. February 13, 1925, Born and Company for an expressed consideration executed a written assignment of all its interest in the Wildhack lease to Wildhack, and on March 27, 1925, Wildhack executed a written assignment of all his interest in said lease to appellant. The execution of both of these assignments was acknowledged, and they were both placed on record. March 13, 1925, Wildhack and his wife signed and acknowledged the execution of a warranty deed to appellant conveying the property in question to it as grantee. This deed was placed on record. Previous to the purchase of said real estate by appellant, the officers, directors, and stockholders of appellee took such preliminary steps as were provided by statute at that time for the purpose of dissolving and liquidating appellee corporation, but this proceeding was never fully completed. It was stipulated that the taxes on the personal property, real estate, and equipment for the year 1921 were paid by the Lafayette Consumers Company, and that the taxes for the years 1922, 1923, 1924, 1925, 1926, and 1927 were paid by the Lafayette Ice and Coal Company. While it is conflicting, there is competent evidence in the record from which the trial court could find that, after its organization, the appellee received the purported assignment of the lease from Born and Company, and in 1920 went into possession of the premises under said assignment, and continuously retained its interest *Page 329 in and right to possession thereof from that date until it was evicted by appellant in May, 1927; that during the year 1922, a corporation known as the Lafayette Ice and Coal Company was organized, and that the stock of the Lafayette Consumers Company was sold to the Lafayette Ice and Coal Company, and that said last named company was in possession of said premises as a licensee of said Lafayette Consumers Company, and continuously occupied the premises, conducting an ice and coal business therein until the occasion of said eviction; that either the appellee or the Lafayette Ice and Coal Company paid the rent for said premises up to and including September 6, 1926, when said last named company issued and delivered a check for the rent to the Lake Erie and Western Railroad Company; that in August, 1925, William A. Hanger, President of the Lafayette Ice and Coal Company, made a tender of $60 in gold coin to appellant in payment of rent as required in the lease between Wildhack and Born and Company, which tender was refused; that the ice plant located on the premises was in operating condition and was operated by the Lafayette Ice and Coal Company during the year 1926; that the premises in question were only about two blocks from appellant's place of business; that appellant knew of the purchase of the premises from Born and Company by appellee in 1920; that the sign of the Lafayette Ice and Coal Company was painted on the building on the premises at the time appellant made its purchase; that the first installment of taxes assessed in 1928, payable in 1929, on said premises was paid by the Lafayette Ice and Coal Company; that in the payment of said taxes there was no distinction made between the taxes on the real estate and improvements; that neither the appellee nor the Lafayette Ice and Coal Company paid the taxes assessed against the real estate and improvements in the year 1928, payable in the fall *Page 330 of 1929; that an officer of the Lafayette Ice and Coal Company made inquiry concerning the payment of said taxes before the last day for their payment and was informed that they had been paid by other parties; that the same facts existed as to the taxes assessed in 1929, payable in 1930, assessed in 1930, payable in 1931, and assessed in 1931, and payable in 1932; that previous to purchasing said real estate appellant made inquiry from officers of the Lafayette Ice and Coal Company concerning any interest or claim which it or any other parties had in and to said premises, and was informed of the claim and interest which the appellee had in and to the same. Where the evidence is conflicting, the facts found by the trial court will not be disturbed on appeal if there is any competent evidence to sustain such finding. Humphries v. McAuley 1. (1933), 205 Ind. 469, 187 N.E. 262; Brown v. Brown (1933), 205 Ind. 664, 187 N.E. 836. In the recent case ofLincoln, etc., Co. v. Jensen (1934), 99 Ind. App. 397,189 N.E. 169 (transfer to Supreme Court denied November 20, 1934), this court in summarizing the rules which control in determining the sufficiency of evidence to sustain a finding or decision, said (p. 402): "Evidence is not to be considered in fragmentary parts, but all facts and circumstances proven are to be considered together. The probative force of all the proved facts when so considered is determinative of the result which should be reached by the court or jury trying the cause. "It is not required that facts be proved by direct and positive evidence. The court or jury trying the cause may draw any reasonable inference, and if a fact may reasonably be inferred from the facts and circumstances which the evidence tends to establish, it is sufficient on appeal." This court will not weigh conflicting evidence in suits to *Page 331 quiet title. Adams v. Betz (1906), 167 Ind. 161, 78 N.E. 649. The general rule seems to be that where the purchaser of lands rests his claim upon the fact that he is a bona fide purchaser in good faith, he is required in his pleading setting up 2-4. said defense to deny that he had any notice of secret existing liens, equities, or rights in the property to which he claims title at the time of the payment of the purchase price or consideration therefor. It is also the rule, supported by authorities, that the burden is cast upon the party who relies upon unregistered documents to sustain his rights in real estate, as against one who claims to be a purchaser thereof for a valuable consideration without notice, to allege and prove that such purchaser had notice of such unrecorded document at the time of the purchase. Payment of a valuable consideration by such purchaser raises a presumption of good faith. Citizens StateBank v. Julian et al. (1900), 153 Ind. 655, 55 N.E. 1007. As applied to controversies of the class to which the instant case belongs, the court recognizes two kinds of notice, namely, actual and constructive notice in determining whether 5, 6. the purchaser of an interest in real estate is or is not a bona fide purchaser thereof. Notice has been held by some courts to be actual when it has been directly and personally given to the person to be notified. However, it is stated to be the general rule that actual notice embraces all degrees and grades of evidence from the most directive and positive proof to the slightest circumstances from which a court or jury would be justified in inferring notice. It is a mere question of fact and is open to every species of legitimate evidence which may tend to strengthen or impair the conclusion. Constructive notice is a legal inference from established facts and like other legal conclusions does not admit of dispute. Mishawaka, etc., Co. v.Neu *Page 332 (1936), 209 Ind. 433, 196 N.E. 85; 20 R.C.L., sec. 2, p. 340. Thus, deeds, mortgages, and leases of real estate for a period of more than three years, when properly acknowledged and placed on record as required by sec. 56-119, Burns' 1933 (§ 14671, Baldwin's 1934), are constructive notice of their existence, and charge a subsequent grantee with notice of all that is shown by the record, including recitals in the instrument so recorded.Rosser v. Bingham (1861), 17 Ind. 542; Ogleby v. Todd (1906), 166 Ind. 250, 76 N.E. 238; Gregory v. Arms (1911),48 Ind. App. 562, 96 N.E. 196. In Smith v. Schweigerer (1891), 129 Ind. 363, 365, 28 N.E. 696, our Supreme Court said: "The appellee was first in point of time, and his possession was indicated by acts assertive of ownership, so that the appellant was put upon inquiry. As he had notice of facts making it incumbent upon him to make due inquiry, he is bound by all the knowledge which a reasonable inquiry would have imparted. Harper v. Ely, 56 Ill. 179; Kuhns v.Gates, 92 Ind. 66. But in this instance there was not merely notice of facts putting the party upon inquiry, but there was also notice that the person in possession was there as owner. It is impossible, therefore, to regard the appellant as a bonafide purchaser. One who purchases with full knowledge of prior equitable or legal rights is not a purchaser in good faith. Notice before payment of the purchase-money prevents the acquisition of the character of a bona fide purchaser.Anderson v. Hubble, 93 Ind. 570." See also Hawes v.Chaille (1891), 129 Ind. 435, 28 N.E. 848. Where a prospective purchaser of real estate is informed by a tenant in possession of the lessor's claim or interest in the premises, he is put upon inquiry and cannot thereafter become a bona fide purchaser. Gallion v. McCaslin (1820), 1 Blackf. 91. This court has held that a parol contract for the sale of real estate for a valuable *Page 333 consideration may be validated by possession given and taken under the contract, and that the principles of equity will not permit one who has thus rightfully gone into possession as a purchaser to be transformed into a trespasser and wrongdoer at the will of a vendor or his privy. Possession of such purchaser is sufficient notice of his rights. Mowrey v. Davis (1895),12 Ind. App. 681, 40 N.E. 1108. Open, visible, continuous, notorious, unequivocal, exclusive, and uninterrupted possession of land, a possession which would be naturally and generally known is notice to the prospective 7. purchaser of the rights of one in possession, and that knowledge of possession on the part of the purchaser is not necessary, notice in such cases is a legal deduction from the fact of possession, and possession by an equitable claimant at the time of consummation of the sale is as effective to charge the purchaser with notice as the recording of an instrument prior to such purchase. Mishawaka, etc., Co. v. Neu, supra;Johnston v. Glancy (1835), 4 Blackf. 94; Decker v. Mahoney (1917), 64 Ind. App. 500, 116 N.E. 57; DeHaeze v. Joyce (1930), 92 Ind. App. 48, 174 N.E. 238; 27 R.C.L., sec. 475, p. 710. In the case of Wilson v. Kruse (1915), 270 Ill. 298, 110 N.E. 359, the Supreme Court of Illinois said (p. 302): "It is well settled that actual possession of lands by a party under an unrecorded deed is constructive notice of the legal and equitable rights of the party in possession. Possession by a tenant is the same, in all respects, as possession by the party himself. (Citing authorities.) "Contracts not under seal, and even contracts not in writing, affecting land, are recognized in equity if they have been so far performed that to permit the party to repudiate them would be a fraud." See also Moore v. Machinery, etc., Co. (1921),297 Ill. 564, 131 N.E. 141; Manley v. Tow (1901), 110 Fed. 241;Bastin v. Myers *Page 334 (1924), 82 Ind. App. 325, 144 N.E. 425 (transfer to Supreme Court denied December 19, 1924). The appellant was bound to take notice of the recorded Wildhack lease, and the assignments thereof duly entered of record. 8. American, etc., Co. v. Indiana, etc., Co. (1906), 37 Ind. App. 439, 76 N.E. 1006. It would not be practical, because of its nature and volume, to make a specific application of the above principles of law to each separate item of evidence. We have made a careful 9. examination of the evidence, and when considered in its entirety with the above rules of law as our controlling guide, we conclude that the evidence was sufficient to sustain the decision of the court, and that its decision was not contrary to law. In appellant's answer of non est factum it denied the execution by Born and Company of the assignment dated April 1, 1920, of the original lease between Wildhack and Born 10, 11. and Company to Samuel T. Murdock, which assignment was identified as plaintiff's (appellee's) exhibit "D"; also, the execution by Born and Company and the Lafayette Consumers Company of the reassignment dated May 2, 1921, of certain rights under the Wildhack lease to Born and Company, which reassignment was identified as plaintiff's (appellee's) exhibit "E." This answer had the effect of placing upon appellee the burden of making a prima facie case in favor of the execution of the assignments before they could be admitted and read in evidence and the burden rested upon the appellee throughout the trial to establish the execution of the assignments by a preponderance of the evidence. Carver v. Carver (1884),97 Ind. 497; Fudge v. Marquell (1905), 164 Ind. 447, 72 N.E. 565, 73 N.E. 895; Alexander v. Blackburne (1912),178 Ind. 66, 98 N.E. 111. When these assignments were offered in evidence, appellant objected thereto, contending that there was no showing that there was any authority vested *Page 335 in the officers assuming to execute said instruments for the respective corporations by the stockholders or board of directors to execute them; that the instruments were not signed by the secretary of the respective corporations and did not bear the corporate seal. "When a contract is made in the name of a corporation by the president, in the usual course of business, which the directors have the power to authorize him to make, or to ratify after it is made, the presumption is that the contract is binding on the corporation until it is shown that the same was not authorized or ratified. Patterson v. Robinson, 116 N.Y. 193; Eureka Iron and Steel Works v. Bresnahan, 60 Mich. 332; 1 Morawetz Corp., section 538; 1 Beach Corp., section 203; 17 Am. and Eng. Encyc. of Law, p. 124. "One dealing with the president of a corporation, in the usual course of business, and within the powers which the president has been accustomed to exercise without objection from the directors, has the right to assume that the president has been invested with those powers. 1 Morawetz Corp., section 538; 1 Beach Corp., section 203; First Nat'l Bank v. Kimberlands, 16 W. Va. 555;Eureka Iron and Steel Works v. Bresnahan, supra." Nat'l StateBank, etc., v. Vigo County Nat'l Bank (1895), 141 Ind. 352, 355, 40 N.E. 799. It will be presumed that the president of a corporation had power to execute the assignment of a lease in view of sec. 4932, Burns 1926, in force at the time the contracts in question were entered into. Bickhart v. Henry (1918), 67 Ind. App. 493, 116 N.E. 15 (transfer to Supreme Court denied April 25, 1918). Failure to affix the corporate seal to a deed of conveyance by the corporation is waived when the purchasers go into possession and enjoy the benefits of the purchase. 7 Fletcher Cyclopedia Corp., p. 94, sec. 3022. The evidence was undisputed that after the execution of both of these assignments of the lease, the corporations, parties thereto, went into possession of *Page 336 the premises affected thereby, and received and accepted benefits under said assignments, thereby acknowledging the validity of their execution. The court was justified under all the circumstances in finding that these assignments were executed and binding upon the respective parties thereto. Causes for a new trial numbers 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 30, 31, 32, 33, 34, 60, 61, 62, 63, 64, 65, and 66, which are discussed by 12. appellant in its brief are predicated upon alleged errors of the court in admitting certain exhibits offered by the appellee in evidence over the objection of appellant. It is not necessary to extend this opinion for the purpose of discussion each of these specifications for a new trial separately. These exhibits consisted of assignments of the Wildhack lease which had not been acknowledged and placed on record, certificates of stock issued by the Lafayette Consumers Company, vouchers showing the payment of rent and taxes by appellee and the Lafayette Ice and Coal Company on the premises and improvements thereon, minutes of a stockholder's meeting of Born and Company, and a letter from the Cleveland, Cincinnati, Chicago and St. Louis Railroad Company to appellee. The objection to the admission of these various exhibits in evidence was that the assignment of the lease had not been acknowledged and recorded; that all the exhibits were evidence of transactions between appellee and third parties pertaining to the occupancy and use of the premises, to which appellant was not a party and of which it had no notice, and that the genuineness and authority of some of the exhibits had not been established previous to offering them in evidence. There was evidence sufficient to sustain the trial court's finding that the appellee or its licensee was in possession of the premises at the time of purchase by appellant. Under such *Page 337 circumstances it was not error for the court to admit the exhibits in evidence, even though the appellant had no knowledge of their existence, for the purpose of showing the extent of appellee's possession, and what is claimed by the same. Pitcher v. Dove (1885), 99 Ind. 175; Adams v. Betz, supra; Blair v.Whittaker (1903), 31 Ind. App. 664, 69 N.E. 182; Bastin v.Myers, supra; DeHaeze v. Joyce, supra; Wilson v. Kruse,supra; Gillett, Indirect and Collateral Evidence, sec. 74, p. 107. Whether or not those exhibits were genuine, against which that objection was urged, was a question for the trial court to determine from all the facts and circumstances in evidence 13. before it, and there being some evidence to sustain their genuineness, this court is not at liberty to disturb the determination of the trial court in that particular. Causes for a new trial numbers 36, 37, 38, 39, 40, 42, 43, 44, 45, 46, 47, 51, 56, 57, 58, and 59, discussed by appellant in its brief are predicated upon alleged errors of the court in the admission and exclusion of certain parol testimony over the objection of appellant and the refusal of the court to require witnesses to answer certain questions propounded to them on cross-examination by the appellant over the objection of appellee. We have examined these various items of testimony, and the ruling of the court in reference thereto and are of opinion that the court did not abuse its discretion nor did it commit reversible error in any of these rulings of which appellant complains. In presenting and discussing the various causes for a new trial, as basis for a reversal of the judgment from which this appeal is taken, appellant has urged upon us for consideration some facts and circumstances disclosed by the evidence relating to transactions which were collateral to the crucial facts upon which the rights of the parties depend and which could not have exerted a controlling *Page 338 influence upon the trial court, and for that reason we do not consider them in this opinion. Finding no reversible error, the judgment is affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427086/

This is an appeal from an award made by the full Industrial Board of Indiana in which the board ordered that the appellant pay to appellee his necessary medical, hospital, and nurse service for the first thirty days following an injury, received in an accident arising out of and in the course of his employment, on the 5th day of February, 1932. The error assigned and relied upon for reversal is that the award of the full Industrial Board is contrary to law. The case was submitted to the Industrial Board upon an agreed statement of facts, and no further evidence was introduced. A summary of the facts as agreed upon is: That appellee is 45 years of age, a resident of the city of South Bend, Indiana; that appellant, Holycross Nye, Inc., is an Indiana corporation with its principal office and place of business in the city of South Bend, Indiana; that it was organized for and engaged in the business of selling and repairing automobiles, and buying and selling used automobiles; that it was capitalized at $40,000, with 400 shares at $100 per share; that appellee owned 199 shares, Albert W. Holycross, 199 shares, and one Nila Brown, 2 shares; that since June, 1930, when the corporation started business, no dividends have ever been paid because the earnings have never been sufficient; that appellee was vice-president, and general manager of the corporation; that Albert W. Holycross *Page 374 was president and sales manager of the corporation, and Nila Brown, secretary-treasurer; that the corporation employed an average of 40 persons in conducting its business; that, as general manager, the duties of appellee were to supervise the work of the repair shop, to attend to the financial affairs of the business, to supervise the selling of used cars, and to sell new and used cars; that his duties as vice-president of the corporation were nominal, and he devoted practically no time to the discharge of said duties; that appellee devoted not to exceed 25 per cent of his time in supervising the repair shop, and attending to the financial matters, including collections, and supervising sales of used cars; that at least 75 per cent of his time has been devoted to the sale of new and used cars, and that during the past year he had personally sold approximately 55 automobiles; that for the last year appellee had been paid a wage of $100 per week, and that no part of said wage was for his services as vice-president, but that all of said wage was for his service rendered as general manager and salesman of the corporation, and that he has depended upon said wage for the maintenance of himself and family. The agreed statement of facts further shows that on the 5th day of February, 1932, appellee, together with one Albert W. Holycross, the president and sales manager of the corporation, was driving an automobile to Elkhart, Indiana, to see another automobile dealer for the purpose of getting additional names of prospects; and, while they were en route to Elkhart, their automobile collided with a tractor and trailer resulting in injuries to appellee from which he was confined in the hospital for one week, was disabled for a period of ten days, and partially disabled for a longer period; that during the period of disability appellee was paid his regular wages by appellant, but that he has not been *Page 375 reimbursed for medical, hospital, or nurse expense, or any part thereof. The sole and only question presented for consideration is, Was the appellee, at the time he received his injuries, an employee as contemplated by the Workmen's Compensation Act of this state? A corporation is a separate entity, and, of course, may be an employer under the Workmen's Compensation Act. At the beginning, let it be understood that we adhere to the principle as 1. laid down in this state, and many other jurisdictions, that one may be an officer, director and stockholder, or any of them, of a corporation, and still be an employee, and entitled to compensation under the Workmen's Compensation Act of this state. This rule has been announced by this court, and we now re-affirm it. The difficulty in laying down a hard and fast rule defining just when an officer, director and stockholder, or any of them, may be an employee within the Workmen's Compensation Act, lies in the fact that each individual case must depend largely upon its own particular facts and circumstances. In this case, appellee and one Albert W. Holycross owned all the corporate stock in this corporation, except two shares, and, while the record does not disclose the fact, it may be that these two shares were issued for the purpose of forming the corporation. Substantially all of the profits, if any, of the corporation go to appellee and said Holycross. It is significant that both appellee and his associate, Holycross, were injured in this same accident, and both filed claims with the Industrial Board in which the same order was entered in both claims, and an appeal taken therefrom. It is further significant that appellee did not ask for compensation for loss of services, but only that his medical, hospital, and nurse bills be paid. It is not disclosed by the record whether *Page 376 appellant corporation, which was managed and controlled and practically owned by appellee and his associate, Holycross, carried any compensation insurance. If it did not, then the query might naturally arise as to why this claim was filed, for it would be a useless procedure to file a claim before the Industrial Board in order to reimburse himself for medical services, the ultimate result of which would be that it would in reality have to be paid by appellee and his associate. There are two cases decided by this court upon which both appellant and appellee lay much stress. In re Raynes (1917),66 Ind. App. 321, 118 N.E. 387, this court, having before it a similar question, gave the same consideration at great length, and held in that case that the claimant Raynes was entitled to compensation. There was, however, a different state of facts as to the actual status of the claimant. Raynes was one of the stockholders and on the board of directors of a $15,000 merchandising corporation, and was also its secretary and treasurer. He was, furthermore, the buyer for this company, salesman in the store, and collector of its accounts, for all of which he was paid $50.00 a week. He was injured in an accident arising out of and in the course of his employment. The court, speaking in the Raynes case upon the subject of who are employees under the Workmen's Compensation Act, said: "In a general way, it is an employee whose remuneration is popularly designated as wages rather than salary; whose compensation for service is not munificent; who may reasonably be presumed to be dependent on his wages for the sustenance of himself and family and whose wife and young children may reasonably be presumed without proof to be dependent on him for support; whose labor is manual, or of a like degree of industrial or commercial importance as manual labor when viewed from the standpoint of individual accomplishment." *Page 377 After stating the language above quoted, the court said that neither of these tests is decisive; that it was merely formulating a concept in a general way of the sort of person that may be deemed to be an employee within the meaning of the act; then, measuring the Raynes case by the above general observation, held that it came within the act, and that Raynes was an employee, and that the mere fact that he was an officer of the corporation did not exclude him. The facts in the instant case are undisputed, and, hence, the question of whether appellee is an employee within the meaning of the Workmen's Compensation Act is a question of law. It has 2. been many times said that the act was adopted primarily for the purpose of aiding injured employees, and placing the burden and care partially, at least, upon industry instead of society. We think it was never contemplated that this act should be construed so as to include high-salaried officers of a corporation, or those whose compensation for services is munificent, or whose labor is not manual, or of a like degree of commercial importance as manual labor when viewed from the point of individual accomplishment. In this case, the appellee and his associate, Holycross, in effect owned the corporation; they directed its policies managed its affairs, employed the help, did all the things necessary to the operation and management of the corporation. It is true that the agreed statement of facts shows that 75 per cent of the time of appellee was devoted to the sale of new and used automobiles, and 25 per cent to supervising the repair shop, attending to the financial matters of the business, including collections and supervising sales of used cars. He was paid $100 a week compensation which is designated as wages in the agreed statement of facts. The Workmen's Compensation Act provides that an *Page 378 employee, if injured in an accident arising out of and in the course of his employment, should be paid 55 per cent of his weekly wage; and that, as a basis for this compensation, the wage is not to exceed $30.00 per week. We have studied the many cases cited by appellant and appellee from other jurisdictions, bearing upon the questions presented, as well as numerous other cases not cited by either 3, 4. party. Analyses of these cases show that in a great many instances where compensation has been allowed to an officer and director of a corporation, his wage or salary was at least partially included in the computation by the insurance carrier in arriving at the premium to be paid for such insurance. This record does not disclose that appellant carried any compensation insurance; hence, there is nothing to show that appellee would come within that rule. We follow our own court upon this question, which was determined in the case of Manfield Firman Co. v. Manfield (1932), 95 Ind. App. 70,182 N.E. 539. In that case Manfield and one Firman owned all the stock of the corporation except two shares; Manfield owned 197 shares, Firman 100 shares, and drew a salary of $6,800 and $6,500 per year, respectively. We quote with approval the language contained in that case, which we think is not dictum as appellee's counsel characterize it, but necessary to a decision of the case, as follows: "In a technical sense, all persons who are officers and directors of a corporation are employees, for the reason that a corporation can only function through agents and employees, but when we consider the Workmen's Compensation Act, a substantial distinction is recognized. "Those who own the majority stock, dictate the policy of the corporation, and manage its prudential affairs, are considered in the same category as partners in the management of a business. *Page 379 "Manfield and Firman in real essence owned this business and managed it in form as a corporation, but in substance it was their business." Manfield owned a majority of the stock of the corporation, but the case was not decided upon that fact alone, nor was that the turning point therein. In the instant case, appellee and one Holycross owned this business and managed it, and it was their business. We think that the Workmen's Compensation Act does not contemplate that appellee should come within its provisions as an employee. We think the reasoning in the Manfield case is correct, and supports the conclusion we have reached herein. The appellee in this case was not an employee entitled to compensation under the Workmen's Compensation Act of this state. The award of the Industrial Board is contrary to law, and is therefore reversed with instructions to enter an award for appellant.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427087/

Appellee, Rose Cohn, on April 18, 1929, filed her complaint in the Lake Superior Court against appellee, Fiftyler Realty Company, for the appointment of a receiver to preserve and protect her interests therein as a preferred stockholder and the interest of other preferred stockholders. William J. Glover was appointed receiver and duly qualified. On July 31, 1929, the receiver filed his petition for permission to lease *Page 474 certain real estate to the Indiana-Ohio Theatre Corporation, in which it was alleged that the Gary-Tivoli Company owned all the common stock, except 5 shares. The Meyer-Kiser Bank of Indianapolis, as fiscal agent of the holders of the first preferred stock of Fiftyler Realty Company by its attorneys, the Gary-Tivoli Company by its attorneys, and the Fiftyler Realty Company by its attorneys, filed written consent to the granting of the prayer of the receiver to enter into a lease with the Indiana-Ohio Theatre Corporation. On August 3, 1929, the appellants filed their written objections to the receiver entering into the proposed lease. On August 5, 1929, the receiver filed a supplemental report in connection with the proposed lease of certain real estate; the petition of the receiver to sell was denied, and the court ordered the receiver to file his petition for the sale of the real estate. On August 27, 1929, the receiver filed a petition for order of sale of all the assets of the receivership; on August 31, 1929, the appellants filed written objections to the petition for sale. On September 5, 1929, the receiver orally moved to strike out appellants' objections. On September 2, 1929, Fiftyler Realty Company, appellee, filed a cross-complaint to be authorized to enter into a lease with the Indiana-Ohio Theatre Corporation, and to this petition the appellants filed objections. On motion of the receiver the objections of the appellants were stricken out. In the objections of appellants to the petition of the receiver to lease to the Indiana-Ohio Theatre Company, they assert and allege that they were the legal owners, subject to a collateral agreement, of Two Thousand Two Hundred and Forty-One (2,241) shares of the common stock of the Fiftyler Realty Company, and the prayer of their petition was that a hearing be had upon their *Page 475 petition. It was alleged in the petition to sell that the Gary-Tivoli Company had Two Thousand Two Hundred Thirty-Seven (2,237) shares of common stock and the appellants had four (4) shares, but that the Gary-Tivoli Company claimed to be the owner of these four shares. On the 3rd day of September, 1929, it is shown by the record that Kalleres, Kalleres, Loupas and Loupas, appellants, having appeared to the petition to sell and filed their written objections and exceptions to the petition to sell, the matter was submitted to the court and the judge, having heard the evidence of the parties as to the ownership by Kalleres, Kalleres, Loupas and Loupas, appellants, or any or either of them of any shares of common stock in defendant corporation, found that the Gary-Tivoli Company was the owner of all the common stock except nine (9) shares, and that the appellants were not the owners of any stock in the corporation, and judgment was entered accordingly, and on the 5th day of September, 1929, the objections and exceptions of appellants to the petition were stricken out. The motion of the receiver to strike out the objections and exceptions of appellants to the cross petition of the Fiftyler Realty Company was sustained on the ground that it had been adjudicated, that they were not the owners of any stock in the corporation. The receiver was finally ordered and authorized to enter into a lease with the Indiana-Ohio Theatre Corporation. The errors relied upon for reversal are as follows: (1) The court erred in sustaining the motion of William J. Glover as receiver of Fiftyler Realty Company to strike out appellant's objections to said receiver's *Page 476 petition to sell all the property and assets of the receivership. (2) The court erred in striking out appellant's objections and exceptions to the petition of William J. Glover as receiver of Fiftyler Realty Company to sell all of the property and assets of the receivership. (3) The court erred in sustaining the motion of William J. Glover as receiver of the Fiftyler Realty Company to strike out appellants' objections and exceptions to the cross petition of the Fiftyler Realty Company which asked that its property in the hands of said receiver be leased to the Indiana-Ohio Theatre Corporation in lieu of a sale thereof. (4) The court erred in striking out appellants' objection and exceptions to the cross-petition of the Fiftyler Realty Company which asked that its property in the hands of said receiver be leased to the Indiana-Ohio Theatre Corporation in lieu of a sale thereof. (5) The court erred in granting the cross-petition of the Fiftyler Realty Company which asked that its property in the hands of said receiver be leased to the Indiana-Ohio Theatre Corporation in lieu of a sale thereof. (6) The court erred in setting aside its order of sale of the property of the receivership. (7) The court erred in authorizing and directing that William J. Glover as receiver of the Fiftyler Realty Company enter into the proposed lease with the Indiana-Ohio Theatre Corporation which was for a period of ten years with privilege of renewal for an additional ten years. (8) The court erred in authorizing and directing William J. Glover as receiver of Fiftyler Realty Company to enter into the proposed lease with the Indiana-Ohio Theatre Corporation for a period of ten years with privilege of a renewal for another ten years without a *Page 477 reservation of the authority to cancel said lease when the best interests of the trust demanded it. (9) The court erred in authorizing and directing William J. Glover as receiver of Fiftyler Realty Company to enter into the proposed lease of the property of the receivership, the Fiftyler Realty Company joining with him as lessor therein, to the Indiana-Ohio Theatre Corporation. The result to be reached in this case, as it seems to us, depends upon the finding of the court on September 3, 1929, that the appellants were not the owners of any of the common stock of the Fiftyler Realty Company. If this was a proper adjudication of the question before the court, the later rulings of the court would and could not be harmful to the appellants. We think the question as to 1-3. whether or not appellants were the owners of any of the common stock of the Fiftyler Realty Company was properly before the court. To the petition of the receiver to lease the property to the Indiana-Ohio Theatre Corporation, the appellants alleged that they were owners of common stock and asked for a hearing upon the petition. And again, when the receiver filed a petition to sell the assets of the corporation, it was alleged in the petition that appellants, as shown by outstanding certificates, were the owners of four shares of common stock, but that the Gary-Tivoli Company claimed to be the owner of said four (4) shares. And, again, in the objections filed by the appellants to the petition of the receiver to sell, they alleged that they were the owners of shares of common stock in the Fiftyler Realty Company. Under these pleadings the question of ownership was presented; and, after hearing the evidence, the court found that appellants nor any or either of them was the owner of any stock in said company. This was a final judgment. *Page 478 From this judgment no appeal has been taken; no motion for a new trial was filed. A final judgment is one which disposes of the subject matter of the litigation as to the parties so far as the court in which the action is pending has power to dispose of it.Terre Haute R.R. Co. v. Indianapolis, etc., Traction Company (1906), 167 Ind. 193, 78 N.E. 661; Northern Indiana, etc.,Telegraph and Cable Company v. Peoples Mutual Telephone Companyet al. (1916), 184 Ind. 267, 111 N.E. 4. If the judgment settles and concludes the rights involved, and denies the parties means of further prosecuting or defending the action, it is final. The appellants acquiesced in this finding and judgment; and, if they were correct, and we assume that they were, then any ruling made thereafter could not have been harmful to the appellant, they having no interest in the controversy and proceedings. Under the first two assignments of error there could be no possible reasons for reversal. The petition to sell the property of the receivership was denied by the court, and was, in 4-6. fact, a ruling in favor of appellants. No substantial rights of the appellants were violated in any way, and a judgment will not be reversed even though an error is committed, if it did not prejudice the substantial rights of the complaining party. Harmon v. Speer (1924), 195 Ind. 199, 144 N.E. 241. Likewise there was no error committed as claimed under assignment No. 6. The appellants objected to the petition of the receiver for the sale of the property; the petition was denied and the appellants secured the ruling they asked for. They cannot now predicate error upon this ruling. We think no error was committed by the ruling of the court as assigned in specifications Nos. 3 and 4. It had already been determined and adjudicated that the appellants had no interest *Page 479 in the Fiftyler Realty Company. It having been determined and adjudged that the appellants had no interest in the property, they had no interest which might be affected by a lease to the Indiana-Ohio Theatre Corporation, or any other party, and the appellants were not harmed by their objections to the petitions being stricken out. Neither is appellants' specification No. 5 cause for reversal. As the appellants had no interest in the corporation, they could not be harmed or injured by the fact that the property was leased to the Indiana-Ohio Theatre Corporation instead of being sold. Specifications Nos. 7, 8, and 9 present no valid reasons for a reversal. As to whether or not it was proper for the court to authorize a lease for a period of ten years would depend 7-9. largely upon the evidence, and the appellants failed to bring the evidence before this court. The court, in permitting leases to be made for any period of time, has the right to exercise its judgment and discretion in view of all the facts and conditions as shown by the evidence before it. Whether or not the lease should have been made was a matter calling for the sound discretion and judgment of the court. As there is no evidence before this court, we must indulge the presumption that in view of the evidence and facts before the lower court, it exercised a sound discretion and judgment in approving the lease as made. Moreover, as it had been judicially determined prior to the time the lease was made that the appellants had no interest in the property leased, such lease as made could not affect the rights of the appellants. As this case must be affirmed, it is not necessary to discuss the motion to dismiss. Judgment affirmed. *Page 480

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427089/

This is an action in damages by appellant against the appellee founded upon a breach of a supersedeas bond executed and filed by the appellee as surety for the Standard Electric Manufacturing Company as principal. This bond was given to stay the judgment of the trial court, as stated in the bond, pending the appeal in the case where Roy Tuttle, who was a stockholder of the principal of this bond, against the principal, in the case wherein he, as plaintiff, asked that a receiver be appointed without notice for the Standard Electric Manufacturing Company. A receiver was appointed. Standard Electric Mfg. Co. v. Tuttle (1920),74 Ind. App. 559, 126 N.E. 438. The matter of confirming the appointment of such receiver without notice was heard January 29, 1918. The court then ordered that the receiver theretofore appointed without notice be continued. February 7, 1918, the defendant in that suit filed a motion to set aside and vacate the "finding and judgment and decree" appointing a receiver, which motion was overruled by the court February 23, 1918. The court, by its order made June 26, 1918, directed the receiver to sell certain property of the defendant company in that suit. Pursuant to the order to sell, the receiver fixed the date July 15, 1918, for the sale of the property, and gave notice of such sale. The defendant, Standard Electric Manufacturing Company, filed a transcript of the record with the clerk of the Supreme Court July 12, 1918, and perfected an appeal to the Supreme Court from the order of the trial court appointing the receiver. On the same day that such appeal was perfected, the appellant, *Page 353 Standard Electric Manufacturing Company, petitioned the Supreme Court to grant a writ of supersedeas. The writ of supersedeas was ordered upon the filing by the appellant of a bond as provided by law. The clerk fixed the amount of the bond; the bond, which is the foundation of the suit at bar was filed with and approved by the clerk. The writ was certified by the clerk of the Supreme Court. Pursuant to the writ of supersedeas, the receiver did not sell the property, as ordered by the court, and as advertised to be sold on July 15, 1918, by the receiver; and did not sell the property until February 7, 1921, the appeal having been finally determined January 5, 1921 (74 Ind. App. 559). The property was sold to the best bidder for $16,000, which sale was approved by the court. The cause so appealed was transferred by the Supreme Court to the Appellate Court. The foregoing facts were stipulated by the parties as evidence. The receiver, as a witness in this case, testified that the fair market value of property of the company for which he was the receiver, on July 15, 1918, and to September 15, 1918, was from $40,000 to $45,000. He, as receiver, held possession of the property, and was required to make expenditures for fire insurance and rent in the amount of $4,100. The Appellate Court disposed of that appeal as shown by its opinion, cited supra. The trial court in the receivership case directed the receiver to prosecute this action upon the bond, which was provided by the writ of supersedeas. The case was tried upon the issue made by general denial, and resulted in a finding for defendant Republic Casualty Company, which was followed by judgment for defendant and for costs. Appellant's motion for a new trial, based upon insufficiency of the evidence to sustain the finding, and that the finding of the court is *Page 354 contrary to law, was overruled. And upon this ruling the sole error assigned is predicated. The first question in the case to be decided is that of the jurisdiction of this court and the Appellate Court of Indiana in the appealed case Standard Electric Mfg. Co. v. Tuttle, 1. supra; for the appellee makes the proposition that the court on appeal had no jurisdiction of the subject-matter for the reason, as shown in the opinion in that case, that the appeal (if one at all) was from an interlocutory order confirming the appointment of a receiver without notice, and was not taken within ten days after the decision of the court appointing such receiver, from which appellee concludes that the Supreme Court was without jurisdiction; and that, because of such lack of jurisdiction, the bond given to comply with the supersedeas writ was void. The argument in support of this proposition is that the court did not have jurisdiction of the subject-matter of this particular appeal. That is not a correct premise upon which to base a conclusion that the Supreme Court did not have jurisdiction of the subject-matter of the class of cases upon appeal, in which class the appeal at bar belongs. The law is well settled in Indiana, as in other states, and as it applies in federal jurisdiction, that jurisdiction of the subject-matter of actions at law does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of that class of cases to which the particular case under consideration belongs. Coleman v. Floyd (1892),131 Ind. 330, 31 N.E. 75; McCoy v. Able (1892), 131 Ind. 417, 30 N.E. 528, 31 N.E. 453; Yates v. Lansing (1810), 5 Johns. (N.Y.) 282; O'Brien v. People (1905), 216 Ill. 354, 75 N.E. 108, 108 Am. St. 219, 3 Ann. Cas. 966. It must be conceded that the Supreme Court had jurisdiction in appeals from decisions of trial courts appointing *Page 355 a receiver. § 1302 Burns 1926. The action in that case 2. (Standard Electric Mfg. Co. v. Tuttle, supra) was for the appointment of a receiver and the record, so far as shown by the opinion of the Appellate Court (74 Ind. App. 559), disclosed that the action of the trial court proceeded only to the appointment of a receiver without notice and the confirmation of the order upon a hearing; and the further order of the court, as shown by the record in this case, which directed the receiver to sell the property of the Standard Electric Manufacturing Company. Therefore, we hold that this court and the Appellate Court, by virtue of the order of transfer of the appeal, had jurisdiction of the subject-matter of the appeal in the case in which this court granted a writ of supersedeas, which was followed by the bond in question at bar; and that such courts on appeal had jurisdiction in this cause by virtue of such general jurisdiction until divested for some particular reason, upon consideration of the appeal. This brings us to the question of the validity of the bond. Appellee's principal in the bond was the moving party to secure the writ of supersedeas which was issued. It secured the benefit sought in staying the order or judgment and all 3-5. other proceedings in the trial court, which stay continued for more than two years, by virtue of the writ. The bond was issued upon the order and judgment of this court, which order and judgment were based upon the application of appellee's principal. The consideration for this bond is the writ of supersedeas, not the order or judgment of the trial court. The damage done, if any, to appellant, was because of, and must be based upon, the writ of supersedeas, not upon the order or judgment by which the receiver was appointed. The receiver was duly appointed, and he duly qualified as such officer, which appointment *Page 356 and qualification were based upon a valid order, and is in full force and effect, in so far as concerns the case at bar. The parties so stipulated. The receiver, thus being legally appointed, might have sold the property of the estate in receivership more than two years before it was sold had his authority and action not been stayed by the writ. And, although such property may have been of no greater sale value at the date of the order of sale or of the date of the sale as fixed by the receiver, yet the estate suffered the indebtedness for rent and fire insurance premiums to the extent of $4,100, which is not disputed, which loss is greater than the bond can compensate. The bond is a valid obligation in so far as the question of its consideration is concerned. If the consideration of the bond were as contended by appellee, and the rule of law based thereon as contended, a party could play fast and loose with the court by applying for and having granted the writ, and thus stay and delay action, and profit by his own wrong. The obligors on an appeal bond are estopped to deny the effect of an appeal recited in the bond (Reeves v. Andrews [1855], 7 Ind. 207; Wood v.Thomas [1841], 5 Blackf. [Ind.] 553). It has been held that a bond given to obtain a writ of supersedeas on a writ of error is binding though the writ is improvidently issued. Campbell v.Harrington (1902), 93 Mo. App. 315. Appellant discusses the bond in question as though it were an appeal bond, as provided in appeals of this character (§ 254 of the Civil Code, § 1302 Burns 1926), and that thereby 6, 7. this court has the power to reverse the case because the trial court erred in not changing the penalty of the bond from $1,000 to $30,000, inasmuch as a bond given by the receiver was $30,000. The bond is in no sense an appeal bond given pursuant to the section of the Civil Code last cited, but was given under authority of law, which provides for the *Page 357 stay of execution and other proceedings in the court below upon an order issued by the Supreme Court, which shall be supported by the bond of the appellant who asks such stay. § 702 Burns 1926. The amount of this bond was fixed by the clerk of the court and was approved by him upon presentation after its execution. The bond states the penalty definitely at $1,000. It is reasonable to believe that the surety at least executed the bond in the belief that the bond stated the limit of its obligation, and that it is justice to protect it in that legal presumption on its part, regardless of the fact that appellee is a surety for hire. The court did not err in refusing to grant a new trial for the reason that it refused to change the penalty of the bond from $1,000 to an amount equal to the bond given by the receiver. Appellee makes the further proposition that the obligee in this bond is Roy Tuttle, appellee, in the appeal from the order appointing the receiver, Standard Electric Mfg. Co. 8, 9. v. Tuttle, supra, and that the appellee in this appeal, the surety obligor in the bond, is liable to no one but to Roy Tuttle specifically. Roy Tuttle was a stockholder of the Standard Electric Manufacturing Company and brought his suit to have a receiver appointed for that company by virtue of that relationship. The receivership, if established by the decision of the court, did not inure solely to stockholder Tuttle. It is difficult to conceive how one stockholder of a corporation could put the corporation into receivership for his personal and sole benefit. The action of the court in appointing the receiver was for the benefit of all the stockholders and all creditors of the company, and in no legal sense for stockholder Tuttle personally and solely, provided the action asking for a receiver was well grounded. The bond herein, given to hold the hand of the receiver and the trial court from proceeding further in the matter pending the action of this court, was *Page 358 not to stay the orders of the court especially for stockholder Tuttle, because he did not have the legal right to either force the company of which he was a stockholder into receivership, or to stay the hand of the court after doing so by appeal, for his own personal use and benefit. Hence the bond given to him as sole obligee was to protect the broad interest of those who would be affected by the action which he was taking and by the warrant of law to sustain that action and affect all stockholders by granting the thing asked — a receiver for the corporation. The receiver is the proper party plaintiff in instituting suit to compel the payment of the bond. Everett Dilley v. State (1867), 28 Md. 190, 207. For the reasons stated, it is the opinion of the court that the trial court committed error by overruling the motion for a new trial. It is the judgment of the court that the judgment of the trial court be reversed and cause remanded, and that the trial court grant appellant's motion for a new trial.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3208758/

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: June 2, 2016 519683 519684 ________________________________ In the Matter of MARIE ZZ., Alleged to be a Permanently Neglected Child. ULSTER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; JEANNE A., Appellant. (Proceeding No. 1.) ________________________________ MEMORANDUM AND ORDER In the Matter of MARIE ZZ., Alleged to be the Child of a Mentally Ill Parent. ULSTER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; JEANNE A., Appellant. (Proceeding No. 2.) ________________________________ Calendar Date: April 25, 2016 Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ. __________ Kathryn S. Dell, Troy, for appellant. Daniel Gartenstein, Ulster County Department of Social Services, Kingston, for respondent. -2- 519683 519684 Theodore J. Stein, Woodstock, attorney for the child. __________ Aarons, J. Appeals from two orders of the Family Court of Ulster County (McGinty, J.), entered August 18, 2014, which, among other things, granted petitioner's applications, in two proceedings pursuant to Social Services Law § 384-b, to adjudicate Marie ZZ. to be a permanently neglected child and the child of a mentally ill parent, and terminated respondent's parental rights. Respondent is the mother of a daughter (born in 2011). Shortly after the child's birth, she was removed from the care of both of her parents, and, in June 2012, Family Court adjudicated the child to be neglected. In February 2013, petitioner commenced the first of these proceedings against respondent seeking a finding of permanent neglect and a termination of her parental rights. Petitioner thereafter commenced the second of these proceedings seeking to terminate respondent's parental rights on the basis of mental illness. After a joint fact- finding hearing, in two separate orders, Family Court granted the petitions, terminated respondent's parental rights and transferred custody and guardianship of the child to petitioner. Respondent appeals. We affirm. Respondent's sole contention on appeal is that Family Court erred by not appointing a guardian ad litem for her. Initially, we note that at no point during the underlying proceedings did respondent or her attorney request the appointment of a guardian ad litem (see Matter of Shawndalaya II., 31 AD3d 823, 825 [2006], lv denied 7 NY3d 714 [2006]). In any event, despite respondent's mental illness, the record does not indicate that respondent was incapable of understanding the proceedings, defending her rights or assisting her counsel (see Matter of Philip R., 293 AD2d 547, 548 [2002]). In fact, respondent gave coherent testimony in response to the petitions' allegations, she understood the severity of her mental illness and the importance of taking -3- 519683 519684 medication, and she defended her interactions with the child during supervised visits. As such, viewing the record as a whole, we cannot conclude that Family Court erred in failing to sua sponte appoint a guardian ad litem for respondent (see Matter of Stephen UU. [Stephen VV.], 81 AD3d 1127, 1128 [2011], lv denied 17 NY3d 702 [2011]; Matter of Julie G. v Yu-Jen G., 81 AD3d 1079, 1081 [2011]; Matter of Barbara Anne B., 51 AD3d 1018, 1019 [2008]). Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur. ORDERED that the orders are affirmed, without costs. ENTER: Robert D. Mayberger Clerk of the Court

01-03-2023

06-02-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427187/

Kahel Leslie lost his life while in the employment of appellant. Appellees, as partial dependents, made application for compensation, and an award of $3.85 per week for 300 weeks was made to appellees, other than Tilman Leslie, whose application was denied. Appellees to whom the award was made are the mother and sisters of the deceased. From the award, this appeal is prosecuted. It is urged by appellant that the award is not sustained by sufficient evidence, for two reasons: (1) That there is no evidence that the accident which resulted in the death of the employee arose out of his employment; and (2) that there is no evidence that the appellees to whom compensation was awarded were, at the time, dependents of the employee. It appears from the evidence that on the day of the accident, and by the use of an automobile truck, Kahel Leslie, as appellant's employee, was engaged in hauling lumber from appellant's lumber yard in the town of Camden to a certain garage in the same town, and had been so engaged the previous day; that, in delivering the lumber, travel was for the most part over a paved street; but that, just before reaching the garage, it was necessary to pass over an unpaved driveway where the *Page 188 roadbed was muddy; that at the time in question, and while deceased with the truck loaded with lumber was proceeding over the unimproved driveway, the truck became mired; that thereupon deceased, assisted by an employee of the owner of the garage, took from the garage a tractor which he attached to the truck by means of a rope; when so attached, decedent started the tractor, and caused it to pull the truck out of the mire and to the point where the lumber was to be unloaded, at which point the tractor was stopped; that because of its momentum the truck did not stop simultaneously with the stopping of the tractor, but ran forward against the tractor, the collision resulting in the fatal injury. A foreman of appellant testified that on the day previous to the accident decedent had told him that "the alley leading to the garage was bad; that he could not pull through with the truck, and that they had been using the tractor to pull the loaded truck where they wanted it. When he told me, I then strictly forbid him doing that. I told him I had nothing to do with the tractor; that if they could not finish the road to deliver the lumber where they wanted it, to go as far as he could and unload it; that our liability ceased at the end of the road." Kahel Leslie at the time of his injury and death was twenty years of age, and resided with his father's family which consisted, besides himself, of Tilman Leslie the father, Bessie Leslie the mother, two sisters Frances and Esther Leslie, aged respectively seven and nine years, and two brothers aged fourteen and seventeen years. The father, who was in poor health, was a wage earner, and as such received $100 per month when he was able to work. The mother gave all her time to cooking, sewing and doing other household work for the family. The brothers of Kahel were not regularly employed, and the sisters were too young to earn wages. *Page 189 Kahel's wages were $15 per week, and were paid directly to him. He paid nothing for his lodging and board, but bought his own clothes and furnished his own spending money; from his wages he paid to his mother each week from $5 to $7. A large part of the money contributed by him was used for clothing and school books for his sisters. The parents had no income except the wages received by the father and the money contributed by Kahel. Appellant filed no special answer of wilful misconduct; did not defend on that ground at the hearing; and on appeal makes no such claim. On the contrary, he states in his brief, as his 1. counsel stated in the oral argument: "This is not a case of violation of orders." Having expressly waived any defense he may have had under § 8 of the Workmen's Compensation Act (Acts 1919 p. 158), for wilful misconduct, appellant's contention is, that inasmuch as the foreman testified that decedent, at the time he received the injury, was doing the work to which he had been assigned in a way "strictly forbidden," it necessarily follows that the accident did not arise out of decedent's employment, the burden as to that issue being upon the claimants. In this appellant is in error. As was correctly stated by this court, inPeru Basket Co. v. Kuntz (1919), 69 Ind. App. 510, 122 N.E. 349: "The fact that a workman, at the time he receives an injury, is acting in violation of directions given him by his employer does not preclude the injury from arising out of the employment. The effect of the failure to obey instructions must be considered under § 8 of the Workmen's Compensation Act." Acts 1919 p. 158. To the same effect, see, Nat. Car Coupler v. Marr (1919),69 Ind. App. 206, 121 N.E. 545, in which case, in discussing the question as to the right of compensation of dependents where the employee was violating instructions at the time he *Page 190 lost his life, this court said: "It would be illogical to hold that his death did not arise out of the employment, even if it should be conceded that he violated instructions. The insistence that he violated instructions has no bearing on the point. It goes rather to the question of wilful misconduct. But we may not even intimate an opinion as to what it would be worth in that direction; for appellant has waived it by expressly abandoning its second paragraph of answer." The second paragraph referred to was for wilful misconduct. See, also, Nordyke, etc., Co. v.Swift (1919), 71 Ind. App. 176, 123 N.E. 447. A part of the record in this case is a written opinion by members of the Industrial Board, in which opinion are stated the reasons of the board for holding that the death of the employee arose out of his employment. In that opinion, we find the following paragraph: "The board is not required to deal with that portion of the testimony of the manager and superintendent of the company, who has been ten years in the employ of defendant, relative to the alleged disobedience of reasonable orders and directions by the decedent, as improbable as it may appear in the light of subsequent conduct of the employee, and then tested by the rule of human experience." From this statement, it seems clear that little or no credence was given to the testimony of the foreman by the members of the board who saw and heard him testify, and that the finding of the board would have been the same, if appellant had not waived the defense of wilful misconduct. An accident is said to arise "out of the employment, when there is apparent to the rational mind, upon a consideration of all the circumstances, a causal connection between the 2, 3. conditions under which the work was required to be performed and the resulting injury." United PaperboardCo. v. Lewis *Page 191 (1917), 65 Ind. App. 356, 117 N.E. 276; Empire Health, etc.,Ins. Co. v. Purcell (1921), 76 Ind. App. 551, 132 N.E. 664. In the case of Nordyke, etc., Co. v. Swift, supra, this court had under consideration the question as to whether an employee's injury arose out of his employment, where he at the time of his injury was not performing his work as directed. The court in the course of its opinion said: "In this connection it should be observed that the Workmen's Compensation Act * * * does not limit compensation to cases where an injury is received by an employee while he is performing his work in the usual and customary manner or in the way directed. It is a fair inference that, if the legislature had intended to so limit the right to compensation, appropriate language would have been used to indicate such fact. We are therefore justified in refusing to give it such a narrow construction, and in holding that an employee, who in an honest attempt to discharge a duty assigned him, does an act incidental thereto not specifically directed, or departs from the usual methods of performing his work, does not thereby necessarily deprive himself, or his dependents, of a right to compensation, if injured while so engaged." In the case at bar, the decedent at the time of his injury was engaged in operating the tractor in an endeavor to accomplish the work to which he was assigned. Clearly there is some evidence to support the finding of the board that the death of the employee was the result of an accident which arose out of his employment. Except that he paid for his own clothes, furnished his own spending money, and made the weekly payment to his mother of from $5 to $7, he lived at home as a member of the family, the 4. same as his brothers and sisters. A large part of the money contributed by Kahel was used for clothing and school books for his sisters. The parents had no income *Page 192 except the wages received by the father and that contributed by the son. At the hearing, in response to a question propounded by a member of the Industrial Board, the mother as a witness testified that the weekly contributions made by the son were necessary for the proper support of herself and her daughters. In response to a similar question, the father testified that they were necessary. There is other evidence from which the Industrial Board might have inferred that the weekly contributions of the deceased were reasonably necessary for the support of the family. It is urged by appellant that the evidence shows that the deceased son, though but twenty years of age, had been emancipated, was boarding and rooming at the home of his parents, that the amount of his weekly contribution was no more than sufficient to pay for his board and lodging, and that it necessarily follows that he was making no contribution toward the support of his mother and sisters, and that there is, therefore, no evidence that his mother and sisters were his partial dependents, as found by the Industrial Board. The question of the boy's emancipation becomes important. Emancipation will not be presumed. It must be established by competent evidence. Sumner v. Sebec (1824), 3 Me. (3 5, 6. Greene) 223. Emancipation may be either complete or partial. As was said by the Supreme Court of Minnesota, in Lufkin v. Harvey (1915), 131 Minn. 238, 154 N.W. 1097, L.R.A. 1916B 1111, Ann. Cas. 1917D 583: "A minor may be emancipated for some purposes and not for others. The parent may authorize his minor child to make contracts of employment and collect and spend the money earned and still not emancipate him from parental custody and control." In the case at bar, there is evidence from which the Industrial Board might have found that the emancipation of Kahel Leslie was but *Page 193 partial; that there had been no emancipation from parental custody and control; and that the boy was merely permitted to collect and spend his own wages. If such was the finding, there was, of course, no legal liability on his part to pay for his board and lodging, the cost of which the Industrial Board was not required to deduct from his wages, in determining the question of dependency. We hold that there is sufficient evidence to sustain the finding of the Industrial Board that the mother and sisters 7. of the employee were his dependents at the time of his death. Affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427189/

The appellant was convicted of murder in the first degree in the perpetration of a robbery as charged in the indictment. It appears from the evidence in the record that one Christ Bredenkamp owned a grocery store in the City of Evansville, Indiana; that the appellant, age 20 years, and one James Alexander, age 16 years, on the night of November 23, 1937, met and made arrangement to rob Mr. Bredenkamp; Alexander had a rifle and Swain borrowed a single barrel, twelve gauge shot gun; they went to the store, looked in and saw Mr. Bredenkamp; they then retired to a railroad track near the store and the appellant put the gun together and loaded it; they then walked back to the store and walked in; Bredenkamp was in the back of the room when they entered and Bredenkamp called to him and said, "what will you have?" Alexander said, "Stick 'em up;" Bredenkamp grabbed a butcher knife, then the appellant shot him with the shot gun which produced a large wound in his *Page 414 abdomen and from which he died within a short time. It also appears from the evidence that on November 23, 1937, the appellant and Alexander were talking about Christmas money and they decided to rob Bredenkamp to secure some money and the appellant thought they ought to get as much as one hundred and sixty dollars. The error relied upon for reversal is the overruling of the appellant's motion for a new trial and due to the fact that there are many reasons assigned in the motion we will not set them out in full, but will consider them as set forth in appellant's brief. It is first contended by the appellant that the court erred in giving of its own motion instruction number two. This 1. instruction is in the language of the statute and is as follows: "Whoever in the perpetration or attempt to perpetrate a rape, arson, robbery or burglarly kills any human being, is guilty of murder in the first degree and on conviction shall suffer death." It is the theory of the appellant that the instruction failed to fully define the crime of murder in the first degree, second degree, and voluntary and involuntary manslaughter and did not inform the jury of the doctrine of included offenses. This theory can not be upheld. The statute (§ 10-3401 Burns 1933, § 2402 Baldwin's 1934), clearly and unambiguously states that one who kills any human being in the perpetration of robbery is guilty of murder in the first degree and on conviction shall suffer death. It was charged in the indictment that the appellant while engaged in the perpetration of a robbery or the attempt killed one Christ Bredenkamp. The appellant was tried and convicted upon this charge and under the statute the conviction carried with it the sentence of death as for first degree murder and he could not have been convicted for any included offense and therefore there was *Page 415 no necessity of the jury being instructed as to included offenses. Moreover, the evidence shows a killing in the perpetration of a robbery, and the statute is definite under such circumstances as to the penalty to be imposed in case of conviction. Great stress is placed by the appellant upon the fact that sections 5 and 6 of chapter 54, Acts 1929, were repealed by chapter 81, Acts 1935. Although these sections were 2, 3. repealed the fact remains that the section defining the crime and the penalty to be imposed were not repealed and it remains now as it was when enacted. The repeal of the particular sections did not in our judgment effect, modify, or change the section of the statute which provides for a death penalty where one is convicted for the killing of a human being while in the perpetration of, or attempt to perpetrate a robbery. As said in the case of Mack v. State (1932), 203 Ind. 355, 369, 370, 180 N.E. 279, "The crime of first degree murder, as defined by the second sentence (the proviso) of Section 2412. `Whoever, . . . in the perpetration of or attempt to perpetrate a rape, arson, robbery or burglary, kills any human being, is guilty of murder in the first degree and on conviction shall suffer death.' "Premeditation or deliberation (which distinguishes first degree murder defined in the first sentence of section 2412 Burns' Supp. 1929, from second degree murder defined in section 2415 Burns 1926) is not an element of this crime, Cole v.State (1922), 192 Ind. 29, 134 N.E. 867, neither is malice or intent to kill necessary elements of the crime, Cole v. State,supra; McCutcheon v. State, supra. When the facts prove the allegations of the indictment which charges the crime defined by the second sentence of section 2412, supra, they prove first degree murder, and where, as here, there is no evidence adduced which proves anything but murder in the perpetration *Page 416 of a robbery, the court is not required to instruct the jury on second degree murder or manslaughter. . . ." No error was committed in giving instruction number two. The appellant objects to the giving of instruction number 4. 11. This instruction gave the jury two forms of verdicts for their use. The first was: "We, the jury, find the defendant not guilty," and the second was: "We, the jury, find the defendant guilty of murder in the first degree in the perpetration of a robbery as charged in the indictment herein." The jury adopted the second form. The appellant objects to this form of verdict, first, because it fails to take into consideration the doctrine of included offenses. The appellant is in error in this contention and what we have hereto said upon this subject is a sufficient answer. The second objection is that the form of the verdict should have stated the punishment to be fixed. The law provides the specific penalty to be applied on such a charge as is contained in the indictment which is death. And when the jury returned the verdict that it did in the instant case, the statute, which says that in such a case the guilty one shall suffer death, was read into the verdict and there was only one thing left for the court to do and that was to pronounce judgment on the verdict assessing the death penalty. The cases cited by the appellant upon this proposition are not applicable. The appellant considers his objections 14, 15, 16, and 17 under one proposition. All of the objections go to the rulings on the admission of certain evidence given by the State as to the 5. commission of other robberies by the appellant. The State proved by the witness, James Alexander, that he and the appellant had committed other robberies a short time before the killing in the instant case. This evidence was properly *Page 417 admitted to show the intent and motive to rob the deceased and to rebut any evidence or inference that the killing might have been an accident. Perkins v. State (1934), 207 Ind. 119,191 N.E. 136; Gears v State (1931), 203 Ind. 380, 180 N.E. 585;State v. King (1922), 111 Kan. 140, 206 P. 883, 22 A.L.R. 1006. The appellant further contends that he was prevented from having a fair trial due to irregularities of the proceedings of the court and abuse of discretion of the court. This proposition of the appellant is largely a repetition of questions heretofore considered. He complains that the prosecuting attorney and the court informed the prospective jurymen by questions propounded them touching their qualifications, that the appellant could be found guilty only of the offense charged in the indictment and that he could not be convicted of any lesser offense. We have heretofore considered this question and there is no merit in this contention of appellant. Complaint is also made by the appellant that he was not properly represented by counsel at the trial of his case in the lower court. It appears from the record that one Edward 6. Crabtree represented the appellant at the trial. In the brief of appellant it is asserted that he was the pauper attorney of Vanderburgh county; that he was busily engaged in other work prior to the trial and that he did not give sufficient attention to the instant case; that he did not properly investigate the evidence; that he did not prepare any instructions, that he failed to make proper objections to the evidence, and that he failed to tender proper forms of verdicts. All of these assertions are merely unsworn statements. There is nothing in the record to show what investigation was made by Mr. Crabtree, nor what attention he gave to the case. Whether he prepared the instructions or not is immaterial, if they were correct, *Page 418 and we have failed to find any erroneous instructions as pointed out by appellant. We have carefully read all of the evidence in the case and in our judgment all of it was properly admitted. There was little that any attorney could do for the appellant in the trial 7. of the case. His written confession was in evidence, and, likewise, the confession of James Alexander, who was with the appellant when the crime was committed. Alexander also testified as a witness and told a straight story as to what happened and the part he took in the killing. Police officers testified as to the admissions made by the appellant and Alexander. There was no conflict of any kind in the evidence and no reason in our judgment for criticism of Mr. Crabtree. The appellant made the facts and evidence himself and then confessed to every thing he did. If it should be conceded that the appellant was poorly defended, this of itself would not justify a reversal of the case. Many defendants are poorly represented by attorneys of their own choosing, but this is no reason alone for relief. In the instant case, the evidence beyond a shadow of a doubt clearly shows that the verdict and judgment were correct. It is not a case where the evidence was close or doubtful upon any point. It was all one way and consistent with the confession of the appellant. He is in no position to contend that he was not properly represented. The verdict and judgment are sustained by sufficient evidence and are not contrary to law. Judgment affirmed. *Page 419

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427276/

Appellees, plaintiffs below, instituted this action to recover judgment on a promissory note executed by appellant. The note was dated at Indianapolis May 21, 1923; it called for the payment of the principal sum of $1,500, with interest at seven per cent per annum, from date, and attorney's fees. The note fell due October 10, 1923, was payable to order of "myself," and was indorsed by the appellant. The defendant, appellant, answered in five paragraphs: (1) General denial; (2) that the note had been obtained from her by fraud by one C.R. Griffin; that J.A. Barrett who delivered the note to plaintiffs knew that it had been obtained by false and fraudulent representations and that the negotiation of the note was in breach of an agreement; (3) no consideration; (4 and 5) proceeded on the same theory as No. 2, alleging in detail the alleged fraudulent acts Plaintiffs replied by general denial, and further that the note was purchased for a valuable consideration without knowledge that the note had been procured from plaintiff by fraud. *Page 500 At the close of all the evidence, the court instructed the jury to return a verdict for the plaintiffs. The only error assigned is the overruling of the motion for a new trial. The alleged error of law occurring at the trial presented by appellant arises in the giving of the peremptory instruction by the court. A resume of the evidence follows: Appellant was a married woman, 35 years of age; had resided in the city of Indianapolis all her life and for many years lived at 829 Thompson Street in the northern part of the city; appellant's father and mother deceased when she was 15 years of age, and she thereafter lived with her grandmother until her marriage; appellant graduated from high school; her husband was engaged in the plumbing business; appellant inherited considerable property; she did her banking business at the National City Bank of Indianapolis, transacting her business with one Mr. James, who was the cashier of the bank; her acquaintance with Mr. James extended over a period of 10 years; appellant also knew Mr. McIntosh, president of the bank, and Mr. Welsh, who was a director in the institution. One Clarence R. Griffin, whose business was that of oil salesman, had offices in the National City Bank Building in Indianapolis; appellant became acquainted with Mr. Griffin through Mr. James, who took her to Griffin's offices; Mr. Griffin was informed by Mr. James, in the presence of appellant, after the introduction, that the appellant was a good customer of the bank and he thought she (appellant) would be interested in the oil stock and that they had a lease on oil land in Kentucky; Mr. James informed appellant that she could rely "on all Mr. Griffin said, as Mr. Griffin was a prominent oil salesman; that he had made his brother, a doctor in Danville, Illinois, quite well to do by selling oil stock." The office of Griffin was very luxuriously furnished and on the walls were pictures of oil wells, under construction, *Page 501 and different pictures that pertained to oil drilling, and also the map of Kentucky; in a few days after the above-mentioned conversation, appellant again met Mr. Griffin; Griffin said to appellant in the conversation that the "Sterling Oil Stock or leases in Kentucky had a very promising future," and that, as soon as the stock was all sold, the stockholders would begin to realize on their money; appellant purchased two or three certificates of stock in the Sterling Oil Corporation, which certificates were delivered to her by C.R. Griffin; on May 21, 1923, appellant signed and delivered to Griffin the note in suit; at the time it was delivered to Griffin, Griffin promised appellant that he would not sell the notes; that the oil company's business would pay them out and "that she would have no expense"; that Griffin, in subsequent conversations, repeatedly informed appellant that he would not negotiate the notes; at some time during her negotiations with Griffin and James, they told her not to tell her husband about investing money and giving notes; "that some day it would turn out good, and I would be of fabulous wealth and that I could surprise my husband with it"; Griffin was to deliver to appellant an oil lease for the $1,500 note executed by appellant; about June 15, 1923, Griffin delivered to appellant an instrument of the following tenor: "Know all men by these presents that J.A. Barrett of Monticello, Kentucky, for and in consideration of the sum of one dollar and other valuable considerations, in hand paid by C.R. Griffin, the receipt of which is hereby acknowledged, has sold, assigned, transferred and set over and, by these presents, does sell and assign an undivided three-eighths interest in the following named leases and leasehold estates herein created: One lease dated August 16, 1921, given by Ninnie Roberts and heirs to J.A. Barrett, said lease containing 75 acres and being recorded in Book — Page — of the records of Wayne County, Kentucky. J. *Page 502 A. Barrett further agrees, entirely at his expense, to complete, on the above described acreage, one well, said well to be drilled and cased in accordance with good oil-fields practice, and J.A. Barrett agrees also in the event commercial oil wells are secured, to furnish all customary and necessary materials to put said wells on the pump and to pay all labor costs connected therewith. The well to be drilled to the Chatauooga Shale, the work to be commenced within 365 days and prosecuted with due diligence until completion. J.A. Barrett further agrees to pay all operating expenses until such a date as the above-described well is completed. This assignment is intended to cover the above-described interest in all material and equipment to be used in pumping well." The instrument was signed by J.A. Barrett, of date of June 15, 1923; the purported assignment of an interest in an oil lease with the stipulations therein contained was acknowledged before a notary public in Hamilton County, Indiana, without date. After the notary certificate appears the following: "For value received I hereby assign all my right, title and interest in the within contract and lease to Geneva Bates Myers. C.R. Griffin." The last purported assignment bears no date and no acknowledgment. Appellant never received anything of value by virtue of the purported assignment; she never received "any money of any kind or value of any kind on account of the lease"; she never received any knowledge of what became of the oil lease in Kentucky; appellant "would not have executed the note if she hadn't believed and relied upon the statement of Griffin and James in regard to the oil fields and in regard to the statement of Mr. Griffin that he wouldn't transfer the note." It further appeared in evidence that Barrett, on or about July 17, 1923, was in the city of Indianapolis at *Page 503 the place of business of appellees, who were engaged in the retail of Paige and Jewett automobiles at 1112 North Meridian Street as partners; that Barrett offered the note executed by appellant to Joseph W. Newcomer, one of the partners and one of the plaintiffs herein, and $339 for a new Paige car; that Joseph Newcomer called Mr. James of the National City Bank and wanted to know about Geneva Bates Myers; Newcomer was informed that "she is all right, her account has always been satisfactory"; thereafter, Joseph Newcomer accepted the note as part payment of the automobile without indorsement; it appears that at the time Mr. James informed Newcomer that Geneva Bates Myers was all right, she had a small balance in her account; that the bank was pressing her for payment on other notes discounted at the bank by Griffin, and executed by appellant for oil stock sold her by Griffin, which notes were past due. Joseph Newcomer gave evidence to the effect that he was associated with his brother, Lloyd Newcomer, in the sale of automobiles in the city of Indianapolis; that "we sold Barrett a Paige car for $1,800"; that he took the note signed by Geneva Bates Myers as part payment; that afterwards he negotiated the note at the National City Bank; that he was forced to take up the note; that, when the note "was presented to me, I said `I don't know this Geneva Bates Myers, I'll have to make some inquiry.' I called up James. I went down to the bank and told James that Mr. Barrett was up to buy an automobile and had this note he wanted to turn in on the automobile and I said, `What do you know about it. What do you know about Geneva Bates Myers?' He said, `She has been dealing here, she is all right. Her account has always been satisfactory.'" Joseph Newcomer gave evidence that he did not have any knowledge of any fault or any facts relating to the note other *Page 504 than heretofore stated; that he did not know Barrett and did not talk to him about the note, and that he made no inquiry of Mrs. Myers about the note. Section 55, Negotiable Instruments Law (Acts 1913 p. 120, § 11414 Burns 1926) reads as follows: "The title of a person who negotiates an instrument is defective within the meaning of this act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith or under such circumstances as amount to a fraud." Section 59 of the same law (§ 11418 Burns 1926) reads: "Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title . . . in due course." It is the law that "where a suit is brought on a bill or note by an assignee and facts are pleaded and proved showing that its execution was obtained by fraud or duress, or that it was 1. executed for a certain purpose and placed in the hands of a party (in trust to use for that purpose) and he dishonestly negotiated it for a different purpose, in violation of the trust under which he held it, a subsequent holder cannot recover upon it without showing that he is a bona fide holder, and that he paid a valuable consideration for it." Wheat v. Goss (1923),193 Ind. 558, 141 N.E. 311. Whether or not there has been fraud in any given case is generally a question for the jury. The decisions of the reported cases abound with the expression that fraud is 2, 3. peculiarly a question for the jury, and that it should be submitted to them if there is evidence to support a finding of its existence. Under the facts of this case, as between the immediate parties, *Page 505 that is, between Geneva Bates Myers and C.R. Griffin, we are of the opinion that sufficient facts were alleged and proved to have required the submission of the issue of fraud to the jury.National City Bank v. Kirk (1922), 85 Ind. App. 120,134 N.E. 772; Ohio Contract Purchase Co. v. Bolin (1929),90 Ind. App. 85, 168 N.E. 196; Wittenmyer v. DeTraz (1929),91 Ind. App. 227, 168 N.E. 461. Where, as here, fraud was alleged as a defense and facts proved to sustain the issue as between the immediate parties, the burden rested upon plaintiffs to prove that they, as partners, 4. were bona fide holders for value, and that the partnership paid a valuable consideration for the note, in order to recover thereon. If the plaintiffs have discharged that burden and there was no evidence from which a jury could have drawn a legitimate inference that the partners were not purchasers in good faith, the trial court was correct in his instruction to the jury to find for the plaintiff; otherwise, in error. The plaintiffs alleged in their second paragraph of reply "that they are and were, on and before July 16, 1923, engaged in the business of selling automobiles at retail in the city of Indianapolis; that one J.A. Barrett, on said July 16, 1923, came to their place of business and negotiated for the purchase of a Paige automobile of the price of $1,830; that he offered in part payment of said automobile the note sued on in plaintiff's complaint at its face value of $1,500, and, in addition thereto, the sum of $330 in cash . . . that, at the time of the purchase of said note by plaintiffs as aforesaid, they had no knowledge nor notice that said note was procured by fraud or that said note was given without consideration as alleged in the second and third paragraphs of complaint." Appellee Joseph Newcomer, one of the partners, testified *Page 506 he had no knowledge of the fraud. There is not a scintilla of evidence as to whether the other partner had or did not 5. have knowledge of the defenses to the note. In Daniel, Negotiable Instruments (6th ed.) § 815, we find the following statement: "In an action by a partnership bank on a note fraudulent in its inception, taken by it as collateral, the partnership must show that all its members were at the time of the purchase ignorant of the fraudulent character of the note." In Frank Darrow v. Blake (1882), 58 Iowa 750, the note was made payable to the order of the maker, and indorsed by him in blank and given to one Parsons, who transferred it before maturity and for a valuable consideration, to the plaintiffs, who were partners. The note was procured by fraud. The purchase of the note was made by one Tenny, a member of the plaintiffs' firm, who testified that he had no knowledge of any of the circumstances connected with the note. The court said: "There remains then, only to be considered, whether proof that Tenny was, at the time of the purchase, without knowledge of the fraud, was sufficient. The defendant contends it was not. He contends that while Tenny's knowledge would be deemed the knowledge of the firm, his ignorance would not necessarily be deemed the ignorance of the firm. It must be admitted, of course, that the fact that Tenny was ignorant of the fraud, would not show that his partners were. . . . We know of no ground upon which it could be presumed that the purchasing partner's copartners were ignorant of the fraudulent character of the note because he was. He might have been the one selected and put forward to make the purchase because he was ignorant. We are aware that if the rule is as we hold, that where a partnership seeks to recover as a bona fide purchaser of a promissory note, fraudulently procured, the burden is upon the partnership to show that all the members were *Page 507 ignorant of the fraud at the time of the purchase; it is necessary for the entire safety of a partnership in purchasing a note, that all the members should be consulted or inquired of by the purchasing partner. But this is imposing no great burden. We cannot suppose that promissory notes are often purchased by partnerships under such exigency upon their part that the necessity for the caution required by the rule laid down, would impose an unnecessary restriction upon the business." MerchantsNat. Bank v. Grigsby (1915), 170 Iowa 675, 149 N.W. 626; Cityof Keokuk v. Ft. Wayne Electric Co. (1894), 90 Iowa 67, 57 N.W. 689; Arnd v. Aylesworth (1909), 145 Iowa 185, 123 N.W. 1000, 29 L.R.A. (N.S.) 638. See Commercial Savings Bank, etc.; v. Raber (1929), 90 Ind. App. 335, 168 N.E. 697. The principle of law as above stated by the Supreme Court of Iowa is applicable to the facts of this case. It was not sufficient, in order for the plaintiffs to recover, to prove that one of the partners was ignorant of the fraud. The burden was upon the plaintiffs to show that they were holders in due course. Judgment reversed, with instructions to sustain appellant's motion for a new trial.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427267/

Action by appellees against appellant to recover damages for injuries to their property by fires, alleged to have been communicated thereto from the latter's locomotive engines. The complaint is in two paragraphs, one being based on a fire occurring on June 27, 1921, and the other being based on a fire occurring on July 18, 1921. The answer is a general denial. The cause was submitted to a jury for trial, resulting in a verdict in favor of appellees, and the return of its answers to certain interrogatories. Judgment was rendered in favor of appellees on the verdict. Appellant filed a motion for a new trial, which was overruled, and this action of the court is made the basis of the only error assigned on appeal. Appellant contends that the verdict is not sustained by the evidence, and, in support thereof, relies in part on the answers of the jury to certain interrogatories. Appellees contend 1. that no question, based on such answers, is available to appellant *Page 269 because of its failure to move for judgment in its favor on such answers notwithstanding the general verdict. Appellees are in error in making this contention, as such answers may not only be used as the basis for a judgment non obstante, but also in determining the sufficiency of the evidence, as well as in curing intervening errors. Barr v. Sumner (1915), 183 Ind. 402. Appellant calls our attention to the answers to interrogatories Nos. 8, 9 and 11 in support of its contention that the verdict is not sustained by the evidence. By the first two answers 2-4. mentioned, it is found, in substance, that the fires in question were caused from sparks thrown by appellant's railroad engines. There is nothing in these answers, or either of them, which gives support to appellant's contention. The answer to interrogatory No. 11 calls for a statement of the evidence other than the passing of the engines near the time of the fires in question that shows that they were caused by appellant. This is not a proper interrogatory and should not have been submitted, but having been submitted, its answer should be treated as surplusage. Louisville, etc., R. Co. v. Hubbard (1888),116 Ind. 193; Board, etc., v. Bonebrake (1896), 146 Ind. 311;Fort Wayne, etc., Co. v. Page (1908), 170 Ind. 585, 23 L.R.A. (N.S.) 946; Heiney, Exr., v. Garretson (1891),1 Ind. App. 548; Fort Wayne, etc., Traction Co. v. Kumb (1917),64 Ind. App. 529; O.M. Cockrum Co. v. Klein (1905), 165 Ind. 627. As said in the case last cited: "It is well settled that * * * it is not proper to submit interrogatories to the jury calling for a finding upon some items of evidence. Such a course would place it within the power of the court, upon request of either party, to require the jury to return with their verdict a full statement of the evidence. `What the statute declares and intends is, that the jury may be required to find material and *Page 270 substantive facts.'" If it were permissible to so frame an interrogatory as to call for a statement of the evidence establishing an essential fact, it would throw upon the jury the responsibility of enumerating, not only all the direct evidence, but also all the circumstances proved which formed the basis of any inferences drawn, thereby depriving the general verdict of the support of any facts or circumstances which may have been proved, but not so enumerated. It is clearly not the purpose of the statute providing for the submission of interrogatories to have any such effect. McCowen, etc., Co. v. Short (1918),69 Ind. App. 466. We conclude that appellant has failed to cite the answers to any interrogatories which gives support to its contention that the verdict is not sustained by the evidence. Appellant insists that there is a total absence of any evidence to establish the fact, essential to appellee's right of recovery, that appellant caused the fires in question. It may be 5. conceded that there is an absence of any direct evidence establishing such fact, but direct evidence is not essential. It suffices if the evidence establishes facts and circumstances warranting an inference that such fires originated from the locomotive engines of appellant that passed near where the same were first seen, a short time before each of them occurred. Pittsburgh, etc., R. Co. v. Indiana, etc., Co. (1900), 154 Ind. 322; Toledo, etc., R. Co. v. Fenstermaker (1904), 163 Ind. 534; Toledo, etc., R. Co. v. Parks (1904),163 Ind. 592; Baltimore, etc., R. Co. v. O'Brien (1906),38 Ind. App. 143; New York, etc., R. Co. v. Roper (1911),176 Ind. 497, 36 L.R.A. (N.S.) 952. In the instant case, the facts and circumstances shown, in the light of the cases cited, are ample to warrant the necessary inference as to the origin of the fires in question, without resort to prohibited speculative or conjectural deductions. *Page 271 Contention is made that the court erred in permitting the witness, Barger, to testify that, in the months of June and July, 1921, he noticed sparks coming from appellant's engines as 6. they passed by appellees' premises. The objection thereto offered in the trial court was, that it called for the conduct of appellant in the management of its trains at a time other than that alleged in the complaint. As the particular engines which it is claimed set fire to appellees' property were not identified by number or otherwise, it was proper for appellees to prove that appellant's engines generally, or many of them, during the months in which the fires in question occurred, emitted sparks in passing their premises, as a circumstance to be considered by the jury, in connection with others, in determining the origin of the fires in question. Evansville, etc., R. Co. v. Keith (1893), 8 Ind. App. 57; Chicago, etc., R. Co. v.Gilmore (1899), 22 Ind. App. 466. Contention is also made that the court erred in refusing to give instruction No. 2, tendered by appellant. The gist of this instruction is that no presumption arises that the fires in 7. question were started by appellant, from the mere fact of the passing of its trains just prior thereto. We are of the opinion that no reversible error is shown in the refusal to give this instruction, as the jury was informed by an instruction given that the burden of establishing the material fact that the fires were started by appellant was on appellees, and that, unless such fact was established by a fair preponderance of the evidence, they should find for appellant. The effect of this instruction was to inform the jury that no presumption as to the origin of the fires arose from the mere passing of appellant's trains just prior thereto, but that the fact as to such origin was a matter to be proved. We conclude appellant *Page 272 was not harmed by the court's refusal to give said instruction. Appellant has sought to challenge the amount of the verdict by alleging in its motion for a new trial that the damages assessed by the jury are excessive. Section 585 Burns 1914, states 8. eight grounds for a new trial, excessive damages being the fourth. The fifth ground is as follows: "Error in the assessment of the amount of recovery, whether too large or too small where the action is upon a contract or for the injury ordetention of property." (Our italics.) It will be observed that this is an action falling under that portion of the provision which we have italicised, and hence an allegation in the motion for a new trial that the damages assessed by the jury are excessive presents no question. City of Indianapolis v.Woessner (1913), 54 Ind. App. 552; Brown v. Guyer (1917),64 Ind. App. 356. Failing to find any sufficient reason for holding that the court erred in overruling appellant's motion for a new trial, the judgment is affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4049027/

ACCEPTED 03-15-00016-CV 3948306 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/29/2015 1:08:11 PM JEFFREY D. KYLE CLERK NO. 03-15-00016-CV __________________________________________________________________ FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS IN THE COURT OF APPEALS 1/29/2015 1:08:11 PM JEFFREY D. KYLE FOR THE THIRD DISTRICT AT AUSTIN Clerk __________________________________________________________________ FRENKIS CAPRICCIO, INC. and GENTJAN BEHAJ Appellants (Defendants below) vs. PERFORMANCE GOOD GROUPS, INC. d/b/a ROMA DALLAS Appellee (Plaintiff below) __________________________________________________________________ APPELLANTS’ MOTION TO DISMISS THE APPEAL __________________________________________________________________ TO THE HONORABLE THIRD COURT OF APPEEALS: Frenkis Capriccio, Inc. and Gentjan Behaj, Appellants, pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure, move to dismiss their appeal in this case, and in support of such motion would show that Appellants and Appellee have compromised and settled all issues in dispute between them in this matter.  Wherefore, Appellants respectfully request that the Court dismiss this appeal. CERTIFICATE OF CONFERENCE On January 28, 2015, I conferred with the attorney of record for the Appellee and he stated that he had no objection object to the foregoing motion to dismiss the appeal. Respectfully submitted, /s/ Greg Frazer__________________ Greg Frazer State Bar No. 07399500 106 East Sixth Street, Suite 900 Austin, Texas 78701 Phone: (512) 473-3670 Fax: (512) 322-5301 e-mail: [email protected] Attorney for Appellants  CERTIFICATE OF SERVICE I certify that on this 29th day of January, 2015, I served a copy of the foregoing motion on the attorney of record for Appellees, Mr. Bill Malone, Jr., by e-mail to [email protected]. /s/Greg Frazer___________________ Greg Frazer

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427152/

This is an appeal from an award of a majority of the full Industrial Board granting appellees, the widow and child of one Frank Rager, compensation for the death of the said Rager, who was an employee of the appellant at the time of his death. The majority of the Board found that on the 15th day of December, 1944, Frank A. Rager, appellees' decedent, was in the employ of appellant at an average weekly wage in excess of $34.00; that on said date he sustained personal injuries by reason of an accident arising out of and in the course of his employment with the appellant, of which said accidental injuries the said Frank A. Rager died the same day. An award of compensation upon such finding was made by a majority of the full Board in favor of appellees in equal shares, and against appellant, at the rate of $18.70 per week during the period of their dependency, not to exceed 300 weeks, and not to exceed the sum of $5,500.00. *Page 524 The appellant appeals to this court on the statutory ground that the award of the Industrial Board is contrary to law. The question presented by this appeal is whether or not there is competent evidence to establish that the decedent's death was caused by carbon monoxide poisoning, as claimed by appellees. The evidence discloses that decedent was employed as a shipfitter whose regular duties required him to test the seams in the tanks of LST boats for appellant. On the day he met his death he had entered the wing tank of the LST boat, in which his body was later found, to test the welding for leaks. This tank was 24 feet long, 10 feet wide at the top, and 12 feet 5 5/8 inches deep in its inner side; and the bottom and under side were curved, making the ends of the tank substantially a quarter circle. The only entrances to this tank from any direction were from the top and down ladders through two oval manholes, each one foot three inches wide and one foot 11 inches long. Decedent entered this tank about 11:15 A.M.; a fellow workman called down to decedent about 11:35 A.M. and received no answer; and decedent's boy was found about 12:45 or 12:50 P.M. of the same day. He was lying flat on his back and had suffered very slight abrasions of his right cheek. There was evidence that two five-gallon buckets for the use of burning coke for heating purposes, and which are called salamanders, were present in the wing tank during the time decedent was in the tank on the day in question. There was testimony that these salamanders were cold some time after the body was discovered, and there was also testimony that there were quite a few ashes on the floor of the tank and ashes on decedent's face. *Page 525 Dr. H.R. Wilbur, the doctor who performed the autopsy on decedent, stated his opinion that death was due to carbon monoxide poisoning, and testified that he based such opinion on the following facts: the absence of outward signs of cyanosis; the absence in the heart of extreme heart disease; the absence of enlargement of the heart; and the presence in the viscera and in the superficial circulation of a cherry red hue characteristic of carbon monoxide poisoning. The coroner testified, "The body had a peculiar redish cast." Appellant's expert witness, Dr. A.J. Miller, testified, "If I saw the cherry red color and it appeared that to me, I'd think of carbon monoxide, certainly." Appellant asserts as ground for reversal that there is not competent evidence to establish that decedent's death was caused by carbon monoxide poisoning, basing this contention upon the claim that there was no showing of the presence of gas in the wing tank, and that the medical opinion that carbon monoxide poisoning was the probable cause of death is of no probative value, as it is predicated only on the discovery of a rosy hue (or cherry red hue) in the face, skin and internal organs of decedent. If there is competent evidence to establish that decedent's death was caused by carbon monoxide poisoning, the finding and award of the Industrial Board cannot be reversed by this court. Where the Industrial Board has reached a conclusion as to ultimate facts, we must accept such facts as established 1. unless the evidence is of such a conclusive character as to force a contrary conclusion. We recognize the rule that the burden of establishing each ultimate fact necessary to a legal award of compensation *Page 526 rests upon the applicant; and the proof by which such 2. burden is discharged must be based on something more than mere guess, conjecture, surmise or possibility. Swing v.Kokomo Steel, etc., Co. (1921), 75 Ind. App. 124, 125 N.E. 471;Lee v. Oliger (1939), 107 Ind. App. 90, 21 N.E.2d 65. There is direct evidence of the presence in decedent's body and body reactions of a cherry red hue on the face, skin and internal organs which is characteristic of carbon monoxide poisoning. There is direct evidence of the presence of ashes and the two salamanders in the wing tank. There is evidence of the physical nature of this wing tank where decedent's body was found. In considering whether or not the appellees have established by competent evidence the ultimate fact that decedent's death was caused by carbon monoxide poisoning as alleged, it is 3, 4. well settled that the sufficiency of such evidence may be considered in the light of any reasonable inferences which may be legitimately drawn from the record evidence by the trier of the facts. Where there is conflict we consider only such evidence and reasonable inferences therefrom as tend to sustain the award. Hunt v. Gutzwiller Baking Co. (1937),104 Ind. App. 209, 9 N.E.2d 129; Silvestro v. Walz (1944),222 Ind. 163, 167, 51 N.E.2d 629; Kaiser v. Happel (1941),219 Ind. 28, 36 N.E.2d 784. The medical opinion of Dr. Wilbur predicated upon the direct evidence of the cherry red hue on the skin and internal organs of decedent, when considered with all of the other evidence, 5. including the physical nature of the wing tank in which decedent's body was found and the presence of the salamanders and ashes in such tank, has probative value and constitutes a sound, reasonable, and legitimate inference *Page 527 which is not based upon a mere guess, conjecture, surmise or possibility, as claimed by appellant. Where there is a rational connection between facts established by direct evidence and the ultimate fact inferred therefrom, such inference is not disqualified simply because the subject 6. thereof is a matter of scientific knowledge. Magazine v. Shull (1945), ante, p. 79, 60 N.E.2d 611. We hold that there is competent evidence in the record before us, when considered in the light of reasonable inferences which were legitimately drawn therefrom by the full Industrial 7. Board, that decedent's death was caused by carbon monoxide poisoning suffered while he was working in this wing tank for appellant, and that there is sufficient competent evidence to sustain the finding and award of the full Industrial Board. It is a well settled principle of law that this court will not weigh evidence, and if there is any competent evidence to 8. sustain the award it will not be disturbed on appeal. Finding no reversible error herein, the award of the full Industrial Board is affirmed with statutory increase of five per cent. NOTE. — Reported in 65 N.E.2d 638.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427154/

Appellant's action, pleaded in thirteen distinct paragraphs of complaint, seeks to impose personal liability upon appellees for appellant's debt for liability insurance sold and furnished, on the theory, first, that appellees were a partnership doing business under the name of the Fort Wayne Transfer and Yellow Cab Company; second, that appellees were doing business under the name of Fort Wayne Transfer and Yellow Cab Company pretending to be a corporation, and appellees pretending to be stockholders and members of said pretended corporation, when no such corporation had been organized and no steps had been taken to organize the same; third, that the appellees were doing business under the name of Fort Wayne Transfer and Yellow Cab Company and were pretending to be a corporation, and that they were pretending to be directors of said pretended corporation, and that they had become personally liable because they had not complied with the law with reference to the organization of said corporation and changing the name thereof. The appellees filed five paragraphs of answer, and appellant filed its demurrer to the fourth and fifth paragraphs, which demurrer was overruled, and the issues were closed by a reply filed by appellant to the appellees' answers. There was a trial by the court and judgment for the defendants. The appellant has assigned as error the overruling of the appellant's demurrer to the fourth and fifth paragraphs of appellees' answer and the overruling of appellant's motion for a new trial, which motion recites that the finding of the court is not sustained by sufficient evidence and is contrary to law and that error was committed in the admission and rejection of certain evidence. *Page 508 The appellant contends that, so far as the first paragraph of complaint is concerned, the issue was made by said paragraph of complaint and an "unverified" general denial thereto; that 1. appellant was entitled to a finding upon the undisputed proof that insurance was furnished by appellant to appellees at their instance and request under a pleading that averred that said defendants were a partnership, with no other answer thereto but an "unverified" general denial; that appellant was entitled to such a finding as a matter of law, citing section 2-1034 Burns 1933 (§ 138 Baldwin's 1934) which provides that the character or capacity in which a party sues or is sued, shall require no proof on the trial of the cause unless such character, capacity or authority be denied by pleading under oath. Upon examination of appellant's first paragraph of complaint it will be observed that the appellees were sued in their individual capacity and not under the name and style of a partnership, and therefore this section of the statute is not applicable. The appellant further contends that appellees were doing business under the name of Fort Wayne Transfer and Yellow Cab Company, pretending to be a corporation, and appellees 2. pretending to be stockholders, members and directors of said pretended corporation, when no such corporation had been organized and no steps had been taken to organize the same and they had not complied with the law with reference to the organizing and changing of the name of said corporation, and that by reason thereof said appellees became personally liable. It is conceded by appellant that the appellees in the incorporation of the Fort Wayne Transfer Company complied with all of the statutory requirements of the Voluntary Association Act of 1901, at page 289, but failed to file a duplicate of the articles in the recorder's office of the county in which the principal *Page 509 place of business of such association was located, as by said Act provided. The appellees assert that the debt sued upon by appellant herein was incurred by the Fort Wayne Transfer Company and that said company was incorporated under the Voluntary Association Act of 1901 and that all of its provisions have been complied with except the filing of a duplicate of the articles of incorporation in the recorder's office of the county in which the principal place of business of such association was located, and that since its incorporation, on the 10th day of November, 1911, said corporation has exercised its corporate powers and that the Fort Wayne Transfer Company was a de facto corporation at the time the applications and liability insurance policies were executed. Therefore, did the failure of the appellees to file and record the articles of incorporation in the recorder's office prevent the Fort Wayne Transfer Company from being a corporationde facto at the time in question? In the case of Doty et al. v. Patterson et al. (1900),155 Ind. 60, 64, 56 N.E. 668, the court said: "It is settled in this State that, when there is a statute authorizing the creation of a corporation, an attempt to comply with the statute, and an actual exercise of corporate functions, although some formalities required by law have been omitted, there is at least a corporation de facto, the legal existence of which can only be questioned in a direct proceeding brought by the proper party for that purpose. . . . "While, under the facts alleged in the complaint, the `Fortville Butter Cheese Factory' was not a corportion dejure, they do not show that it was not a corporation de facto, but, on the contrary, it appears that an attempt was made to create a corporation under and in compliance with a law authorizing the creation of a corporation of its class and powers, and an actual exercise of corporate functions. Under the settled law of *Page 510 this State, therefore, the `Fortville Butter Cheese Factory' was a de facto corporation, and its corporate existence cannot be questioned by appellees in this proceeding. This rule is not limited to cases where one by contract admits corporate existence, but is a rule of general application. . . . The rule established by the great weight of authority is that the stockholders in a de facto corporation cannot be held liable as partners, although there have been irregularities, omissions, and mistakes in incorporating the company. Clark on Corp. pp. 99-110," and cases cited. In the case of Inter-Ocean Newspaper Company v. Robertson, decided by the Supreme Court of Illinois in (1921), 296 Ill. 92, 94, 129 N.E. 523, the court said: "The first question to determine is whether the Chicago Real Estate Show Company was a corporation de facto. The essential conditions for the existence of a de facto corporation are a valid law under which it may be organized, an attempt in good faith to organize under that law, a colorable or apparent compliance with the law, and user of the corporate powers. Under decisions in this state and other jurisdictions, some of which we cite, the Chicago Real Estate Show Company was a corporation de facto, notwithstanding it neglected to file its final certificate of complete organization for record. Whether members and stockholders of ade facto corporation, as distinguished from a de jure corporation, are protected from liability to creditors as partners, the decisions are not in entire accord, but the great weight of the authorities hold they are not liable, in the absence of a statute making them so liable. That the stockholders of a de facto corporation, where the members in good faith supposed they were legally incorporated under a valid law authorizing such incorporation and honestly transacted business as a corporation, should not, in the absence of a positive statutory mandate, be treated and considered *Page 511 as partners as to persons dealing with it as a corporation seems to be absolutely sound. . . . Cook, in his work on Corporations (vol. 1, 5th Ed.) section 234, says that the great weight of authority has established clearly that the stockholders of a defacto corporation cannot be held liable as partners even though there have been irregularities, omissions, or mistakes in incorporating. The author expresses the view that this is reasonable and just; that parties who dealt with the company as a corporation should not be allowed to claim more than they originally bargained for, and hold the stockholders personally. He says the rule is established beyond reasonable doubt. In our opinion a contrary rule would be far-reaching in its consequences, and often lead to great injustice and hardship to innocent stockholders. It is by no means always practicable for purchasers of stock to examine every step taken in the organization of the corporation, and to hold them individually liable for its debts seems contrary to reason and justice, where there had been no fraud, but an honest effort had been made to effect a legal organization, and both the incorporators and stockholders in good faith believed the corporation legal, but some mistake or omission had been made such as here — neglect to file the final certificate of its complete organization for record." It is insisted by appellant that the contrary doctrine was declared by the Circuit Court of Appeals, Eighth Circuit, inHarrill v. Davis et al. (1909), 94 U.S. 47, 168 Fed. 187. In that case Judge Sanborn said (p. 50): "The patent and indisputable facts in this case are that the four defendants associated themselves together, and from June, 1902, until December 22, 1902, actively engaged in purchasing lumber, material, and labor of the plaintiff, and in constructing a cotton gin under the name `The Coweta Gin Company,' and in *Page 512 conducting the business of buying, selling, and ginning cotton for profit under the name `The Coweta Cotton Milling Company,' and that during this time they incurred more than $4,700 of the indebtedness of $5,145.48 for which this action was brought. On December 22, 1902, they made their first real attempt to incorporate, and for the first time took on the color or appearance of a corporation. On that day they filed articles of incorporation with the clerk of the Court of Appeals, but they never filed any duplicate of them with the clerk of the judical district in which their place of business was located, as required by the statutes in order to constitute them a legal corporation and to authorize them to do business as such. . . . Counsel for the defendants argue with much force and persuasiveness that they escape liability because they became a corporation de facto, although they concede that they never became a corporation de jure, and in support of this position they cite, among other cases [a number of authorities, including the case of Doty v. Patterson, 155 Ind. 60]. But in every one of these authorities articles of incorporation had been filed under a general enabling act, or a charter had been issued and there had been a user of the franchise of the supposed corporation which had been colorably created by the filing of the articles or the issue of the charter before the indebtedness in question was created, while nothing of this nature had been done before the debt for the $4,700 which we are now considering was incurred. The authorities which have been recited rest upon the proposition that where parties procure a charter or file articles of association under a general law, thereby secure the color of a legal incorporation, believe that they are a corporation, and use the supposed franchise of the corporation in good faith, and third parties deal with them as a corporation, they become a corporation *Page 513 de facto and exempt from individual liability to such third parties, although there are unknown defects in the proceedings for their incorporation." And it was held in this case that the defendants could not escape individual liability for the $4,700 on the ground that "The Coweta Cotton Milling Company" was a corporation de facto when that portion of the plaintiff's claim was incurred, because it then had no color of incorporation and they knew it and yet actively used its name to incur the obligation. The court further held that the defendants never became a corporation de facto prior to December 22, 1902, that they never became a corporation de jure, and that the trial court below should have instructed the jury that the defendants were individually liable for that portion of the plaintiff's claim which was incurred prior to December 22, 1902. Its failure to do so was a fatal error which necessitated a reversal of the judgments below. And the court did not pass upon the status of the defendants subsequent to December 22, 1902. Quoting further (p. 57): "It is sufficient to say regarding the portion of the plaintiff's claim incurred subsequent to December 22, 1902, that while there is a conflict of authority upon the question whether or not incorporators or stockholders remain personally liable after the filing of articles in one office only where the statute requires them to be filed in two offices as a condition of incorporation or of the commencement of business, the statute under which this case arose was brought into the Indian Territory from the state of Arkansas, and the Supreme Court of that state had held, before it was adopted in the Indian Territory, that such corporators or stockholders remain individually liable under this statute unless and until their articles of incorporation are filed in both offices." The doctrine that members of a corporation de facto are protected from liability as partners seems to be *Page 514 generally adopted in more recent cases, and the weight of authority is in favor of protecting the corporators from individual liability if there is a de facto corporation. The contrary doctrine appears in a few cases, one of which is the case of Garnett v. Richardson (1879), 35 Ark. 144. In discussing the subject of the failure to comply with particular statutory requirements, the author of Corporations in 7 Ruling Case Law section 45, at page 64, says: "There are decisions, however, which in effect affirm that in the absence of any filing of the articles of incorporation there is neither a charter nor a colorable attempt to obtain one and therefore that the persons acting as a corporation are necessarily a mere association or partnership. However the better view seems to be that the failure to file the articles of incorporation, though indispensable to the creation of a corporation de jure, is not conclusive against the existence of a corporation de facto." In the case of Huntington Manufacturing Company v.Schofield, 28 Ind. App. 95, 62 N.E. 106, it appears that the articles of association were signed and acknowledged as the statute required and properly filed in the office of the secretary of state and instead of filing the articles of association in the county recorder's office, the certificate of incorporation issued by the secretary of state was filed and recorded in the recorder's office. The appellant in the case contended there was no corporation because of the failure to file the articles in the county recorder's office, and the court disposed of this contention with the following language. `Where there has been a good faith effort to organize a corporation under a statute authorizing such incorporation, and corporate functions have been assumed and exercised, the organization becomes a de facto corporation'." In Williamson v. The Kokomo Building and Loan *Page 515 Fund Association (1883), 89 Ind. 389, it appears that articles of association, signed and acknowledged as the law requires, were filed in the proper recorder's office, but instead of filing a duplicate in the office of the secretary of state as the statute provides, a certified copy was there filed. The contention of appellant was that as the association filed a certified copy and not a duplicate of its articles of association in the office of the secretary of state, it never became a corporation and the mortgage executed to it was void, and the court said (p. 390): "Where persons assume to incorporate under the laws of the State, and in part comply with their requirements, assume corporate functions and transact business as a corporation, private persons can not collaterally question the right of such an association to a corporate existence, although there has not been a full compliance with the provisions of the statute. Baker v. Neff,73 Ind. 68. This rule is not limited to cases where one by contract admits corporate existence, but is a rule of general application." Therefore, we conclude that the failure to file a duplicate of its articles in the recorder's office of the county in which the principal place of business of such association is located did not prevent the Fort Wayne Transfer Company from being a defacto corporation. Answering appellant's further contention that appellees are personally liable for using the name Fort Wayne Transfer and Yellow Cab Company without taking any steps required by the 3. statute to change the name of the corporation, the evidence discloses that some time before appellant's debt was created, the members of the Fort Wayne Transfer Company acquired the exclusive license to use yellow cabs in their business in Fort Wayne, Indiana, and added the words "Yellow Cab" to the corporate name Fort Wayne Transfer Company. The Fort Wayne Transfer Company *Page 516 continued in existence after its articles of incorporation were issued on the 10th day of November, 1911, with the same stockholders, officers, and agents and carried on the same business as before but under an unauthorized name. The evidence further discloses that at the time the appellant's debt was created appellant was furnishing liability insurance to and was dealing with the Fort Wayne Transfer and Yellow Cab Company as acorporation. The debt sued upon by appellant is for premiums of liability insurance furnished by appellant to the Fort Wayne Transfer and Yellow Cab Company as an Indiana corporation. It will be noted that if there had been an actual change of name in conformity with the law, it would not have affected in any manner the identity of the corporation or added to or detracted from its rights or obligations. In the case of Pilsen Brewing Co. v. Wallace (1920),291 Ill. 59, 125 N.E. 714, it appears that the name of the corporation the Farmers' Grain Feed Company was not changed, but its business was continued by the same officers under the new name "Chicago Grains Feed Company" on the assumption that a change had been made. The court said (p. 62): "There may be circumstances perhaps justifying a conclusion that a change of name amounts to a destruction of the corporation," citing the case of Cincinnati Cooperage Co. v. Bate (1894), 96 Ky. 356, in which it was held that an unauthorized change of name under the circumstances of that case was an abandonment not only of the corporate name, but of the corporation itself, and that an attempted substitution of a new name made the members of the corporation liable as partners under contracts entered into in the substituted name. The court said (p. 63): "That case was so different in its facts as to have no legitimate bearing on this case, in which there was an abortive attempt to change the name of the corporation as authorized by the statute. *Page 517 The law was complied with so far as the resolution of the stockholders was concerned, and the only failure to complete the change was in not having the change filed in the office of the Secretary of State and recorded in the recorder's office. For that failure the name was not, in fact, changed, and the original corporation continued without any change of name and carried on business as before, under an unauthorized name." The court held (p. 64): "The Farmers' Grain Feed Company continued in existence with the same stockholders, officers, and agents and carried on the same business as before, but under an unauthorized name. It was not relieved from liability on the contracts made in the name of the Chicago Grains Feed Company, and, that being so, the defendant [Wallace, as president] was not liable." The evidence discloses in the instant case that the stockholders, officers, and agents and the business of both the Fort Wayne Transfer Company and the Fort Wayne Transfer and Yellow Cab Company were the same and that the officers, directors, and members of the Fort Wayne Transfer Company continued in the same business of the Fort Wayne Transfer Company after it had added the words "Yellow Cab" to its corporate name, and at the time of incurring the debt of appellant sued on herein, the appellees were carrying on the same business which they had formerly carried on under the corporate name of Fort Wayne Transfer Company, and, therefore, the evidence was such that the trial court was justified in concluding there was not such an unauthorized change of name in this case as would incur liability upon the members of the corporation as partners. We feel it unnecessary to set out all of the facts pleaded in appellees' fourth and fifth paragraphs of answer to the appellant's second to thirteenth paragraphs of complaint for the reason that said paragraphs *Page 518 are in substance similar and that they each substantially disclose that the Fort Wayne Transfer Company was a corporationde facto and that by using the words "Yellow Cab" in connection with the corporate name Fort Wayne Transfer Company the identity of the Fort Wayne Transfer Company as a corporation was not changed; that in truth and in fact the debt of appellant was that of the Fort Wayne Transfer Company. Therefore, the trial court committed no error in overruling appellant's demurrer to each of said paragraphs of answer. Appellant assigns as error the admission in evidence of certain proceedings in the receivership of the Fort Wayne Transfer Company upon the theory that said proceedings were 4. immaterial and irrelevant and self-serving. The evidence discloses that Lennart and Ortlieb were agents representing the appellant locally in the furnishing of the liability insurance in question and that said Lennart and Ortlieb had on former occasions taken notes for premiums from the Fort Wayne Transfer Company and had filed these notes as claims in said receivership proceeding. Therefore, the receivership proceedings were not immaterial and self-serving. The appellant points out in its brief a number of other rulings of the court in the admission and rejection of evidence, and upon our examination of them we fail to find any error of the court affecting the substantial rights of the parties. We think there is no harmful error shown, and the judgment is affirmed. Judgment affirmed. *Page 519

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/7247118/

JON P. McCALLA, UNITED STATES DISTRICT JUDGE Before the Court is Defendant Federal Express Corporation ("FedEx")'s Motion for Summary Judgment. (ECF No. 40.) FedEx seeks summary judgment on the four federal law claims that remain following the dismissal of Plaintiff Cassandra Adduci ("Adduci")'s claims under the Tennessee Human Rights Act. (ECF Nos. 26, 27.) The Court previously granted FedEx's motion as to both of Adduci's claims under the Family Medical Leave Act ("FMLA"). (ECF No. 67.) FedEx's motion for summary judgment is GRANTED as to Adduci's claim for disparate treatment under the Pregnancy Discrimination Act and MOOT as to punitive damages. FedEx's motion is DENIED as to Adduci's disparate impact claim. I. Background a. Factual History This action arises out of Adduci's employment at FedEx's Memphis Hub and the subsequent termination of her employment. (ECF No. 16, ¶¶ 4, 27.) Adduci began working part-time in FedEx's Memphis Hub on January 6, 2014. She was promoted to the position of Material Handler on August 17, 2014. (Id., ¶ 4; Pl.'s Resp. to Def.'s Statement of Material Facts, ECF No. 53, ¶ 14.) Adduci's duties as a Material Handler were to load and unload aircraft, containers, and FedEx vehicles. (FedEx Job Description, ECF No. 41-9; Fruhauf Decl., ECF No. 41-15, ¶ 4.) FedEx's stated job responsibilities for Material Handlers included that the employee be able to lift 75 pounds unassisted. (FedEx Job Description, ECF No. 41-9 at 254.1 ) Adduci worked part-time in the Offload *1156section of the Memphis Hub's Air Freight Ground Services ("AFGS") division until December 24, 2014. (Id., ¶¶ 20-21; Fruhauf Decl., ECF No. 41-15, ¶¶ 3, 8-12. See also Pl.'s Compl., ¶¶ 4-5.) Earlier in December 2014, Adduci became pregnant. On December 17, 2014, she informed her FedEx supervisor, Jim Fruhauf, of the pregnancy and that she had a 15-pound lifting restriction as a result. (Adduci Dep., ECF No. 52-2 at 43:5-14; Fruhauf Decl., ECF No. 41-15, ¶¶ 8-12.) Fruhauf requested that Adduci provide medical documentation of the restriction. On December 24, 2014, Adduci provided a doctor's note that indicated a 25-pound lifting restriction, to be reduced to 20 pounds later in the pregnancy. (Fruhauf Decl., ECF No. 41-15, ¶ 9; Doctor's Note, ECF No. 41-17.) Later on December 24, 2014, Fruhauf and FedEx Senior Manager Pat Whalen met with Adduci to inform her that she could not continue working, because her 25-pound lifting restriction prevented her from meeting the job's requirement of being able to lift 75 pounds unassisted. (Fruhauf Decl., ECF No. 41-15, ¶ 10; Adduci Dep., ECF No. 52-2 at 47:6-48:19.) At that time, the AFGS division maintained a policy that its part-time employees who were placed on non-work related medical leave (a group that included Adduci) were categorically ineligible to return to work on temporary reassignments.2 (Fowler Decl., ECF No. 41-21, ¶ 7.) More broadly, FedEx allowed its employees who were unable to perform the full range of their regular job duties to seek temporary work reassignments through its Temporary Return to Work ("TRW") program. (Pl.'s Resp. to Def.'s Statement of Material Facts, ECF No. 53 at ¶ 7.) Although Adduci was excluded from TRW eligibility because of the AFGS policy, Fruhauf "verified that there was no temporary work available in the offload/reaload area ... that did not require lifting in excess of Adduci's 25 pound lifting restriction." (Fruhauf Decl., ECF No. 41-15, ¶ 11.) Following Adduci's December 24, 2014, meeting with Fruhauf and Whalen, FedEx placed her on unpaid medical leave effective December 26, 2014, citing safety concerns for Adduci and her co-workers if she were allowed to continue working despite her doctor's lifting restriction. (Trouy Decl., ECF No. 41-18, ¶ 3; Fowler Decl., ECF No. 41-21, ¶ 9.)3 FedEx also considered Adduci to be on leave for purposes of the FMLA effective December 26, 2014. (Fowler Decl., ECF No. 41-21, ¶ 10.) On December 26, 2014, FedEx's human resources manager John Trouy sent Adduci a memorandum, "Medical Leave of Absence Information & Requirements," that detailed her obligations to communicate with FedEx while on medical leave. (Trouy Decl., ECF No. 41-18, ¶ 3.) These obligations included providing FedEx "with a current treating physician's statement substantiating continued absence beyond your expected release date or every thirty (30) days, whichever is earlier." (ECF No. 41-19.) While Adduci was on unpaid leave, FedEx human resources advisor Bradly Fowler sent her several letters regarding updates to her status. (Fowler Decl., ECF No. 41-21, ¶¶ 11-17.) In the first letter, dated February 4, 2015, Fowler requested that Adduci submit medical documentation by February 11, 2015, to verify her continued *1157need for medical leave, and advising her that failing to do so would be considered a voluntary resignation from her job at FedEx. (ECF No. 41-23.) On March 2, 2015, Adduci submitted a note to Fruhauf regarding her upcoming doctor's appointments. (Pl.'s Resp. to Def.'s Statements of Material Fact, ECF No. 53, ¶ 34.) In the second letter, dated April 2, 2015, Fowler advised Adduci that she had been on medical leave for over 90 days and that "operational necessity" might require replacing her or eliminating her position at FedEx. (ECF No. 41-25.) In the third letter, also dated April 2, 2015, Fowler advised Adduci that, under FedEx's policy, her medical leave would end on June 23, 2015, and that she could apply for other positions with the company if she could not perform the Material Handler job duties. (ECF No. 41-26.) In the final letter,4 dated April 29, 2015, Fowler advised Adduci that she had failed to provide the medical documentation required to verify her continued need to be absent, and that if she failed to do so by May 6, 2015, FedEx would consider her to be on an unauthorized leave of absence and consider her to have voluntarily resigned. (ECF No. 41-28.) FedEx claims, and Adduci does not dispute, that Adduci failed to provide any additional documentation by the May 6, 2015, deadline. (Pl.'s Resp. to Def.'s Statements of Material Fact, ECF No. 53, ¶ 42.) Adduci does not dispute that she received the letters, but instead characterizes them as "harassment." She also asserts, in contradiction of the record, that FedEx "provided that Adduci was granted leave until June 23, 2015." (Pl.'s Resp. to Def.'s Statements of Material Fact, ECF No. 53.) Following Adduci's failure to comply with the May 6, 2015, deadline, Fruhauf verified that no temporary work was available in the offload/reload area that did not require lifting in excess of Adduci's 25-pound restriction.5 (Pl.'s Resp. to Def.'s Statements of Material Fact, ECF No. 53, ¶ 43.) FedEx terminated Adduci's employment on May 7, 2015. (Pl.'s Resp. to Def.'s Statements of Material Fact, ECF No. 53, ¶ 45.) b. Procedural History On December 22, 2014, Adduci filed a notice of charge of discrimination with the EEOC, alleging discrimination based on sex. (Def.'s Reply to Pl.'s Response to Statement of Material Facts, ECF No. 56, ¶ 48.) The EEOC mailed Adduci a Notice of Right to Sue on September 23, 2016 (ECF No. 1-1 at 19) and Adduci filed suit in Tennessee Chancery Court on December 16, 2016. (ECF No. 1-1.) FedEx removed the suit to this Court on January 10, 2017. (ECF No. 1.) Adduci amended her complaint on February 9, 2017. (ECF No. 16.) The amended complaint asserts claims under the Pregnancy Discrimination Act ("PDA"), the FMLA, and the Tennessee Human Rights Act. (Id. ) FedEx filed its answer to the amended complaint on February 23, 2017. (ECF Nos. 16, 21.) On March 27, 2017, Adduci voluntarily dismissed her claims for violations of the Tennessee Human Rights Act. (ECF No. 26.) The Court entered an order dismissing the claims on March 28, 2017. (ECF No. 27.) The Court held an initial scheduling conference on February 14, 2017. (ECF No. 20.) On October 3, 3017, the Court held a status conference at the parties' request, and subsequently amended the scheduling order to extend the deadlines for completing discovery and filing dispositive motions. *1158(ECF No. 38.) Later, the Court re-set the trial date to April 2, 2018. (ECF No. 51.) On November 20, 2017, FedEx filed the instant motion for summary judgment. (ECF No. 40.) Adduci filed her response on February 2, 2018.6 (ECF No. 52.) FedEx filed its reply on February 16, 2018. (ECF No. 55.) On March 19, 2018, the Court entered an order granting in part FedEx's motion for summary judgment, which granted summary judgment as to Adduci's claims under the FMLA. (ECF No. 67.) II. Summary Judgment Standards "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; accord Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 781 (6th Cir. 2014) (per curiam). "A genuine dispute of material facts exists if 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.' " Am. Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 757 F.3d 540, 543-44 (6th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact." Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). "In considering a motion for summary judgment, [the] court construes all reasonable inferences in favor of the nonmoving party." Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). "Once the moving party satisfies its initial burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact." Mosholder, 679 F.3d at 448-49 (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 ; Fed. R. Civ. P. 56(e) ). "When the non-moving party fails to make a sufficient showing of an essential element of his case on which he bears the burden of proof, the moving parties are entitled to judgment as a matter of law and summary judgment is proper." Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (quoting Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012) (en banc) ). "A fact is 'material' if its proof or disproof might affect the outcome of the suit under the governing substantive law." Reeves v. Swift Transp. Co., Inc., 446 F.3d 637, 640 (6th Cir. 2006) (abrogated on other grounds by Young v. United Parcel Serv., Inc., --- U.S. ----, 135 S.Ct. 1338, 191 L.Ed.2d 279 (2015) ) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). To show that a fact is, or is not, genuinely disputed, both parties are required to either "cite[ ] to particular parts of materials in the record" or "show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Bruederle v. Louisville Metro Gov't, 687 F.3d 771, 776 (6th Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(1) ), cert. denied, 568 U.S. 1100, 133 S.Ct. 866, 184 L.Ed.2d 678 (2013). "The court need consider only the cited materials, but it may consider other *1159materials in the record." Fed. R. Civ. P. 56(c)(3) ; see also Pharos Capital Partners, L.P. v. Deloitte & Touche, 535 Fed.Appx. 522, 523 (6th Cir. 2013) (per curiam) (acknowledging that a district court has no duty to search entire record to establish grounds for summary judgment). "At summary judgment, the Court may consider all evidence [favorable to the movant] that the jury is required to believe." Almond v. ABB Indus. Sys., Inc., 56 Fed.Appx. 672, 675 (6th Cir. 2003) (internal quotation marks and citation omitted). A non-moving party who bears the burden of proof at trial need not "produce evidence in a form that would be admissible at trial in order to avoid summary judgment." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Although "[t]he proffered evidence need not be in admissible form , ... its content must be admissible." Bailey v. Floyd Cnty. Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997) (emphasis in original). "For instance, deposition testimony will assist a plaintiff in surviving a motion for summary judgment, ... provided substituted oral testimony would be admissible and create a genuine issue of material fact." Id."[T]he party opposing summary judgment must show that she can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue of material fact exists, and that a trial is necessary." Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (emphasis in original). III. Pregnancy Discrimination Act Claims Adduci alleges two violations of the Pregnancy Discrimination Act ("PDA"): first, that she was denied TRW on the basis of her pregnancy (the "disparate treatment" claim), and second, that FedEx's policy of categorically excluding employees on non-work related medical leave from temporary reassignment had a disparate impact on pregnant women (the "disparate impact" claim). a. Disparate Treatment Claim i. Legal Standards Through the PDA, Congress amended Title VII to include that "women affected by pregnancy, childbirth or other related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work[.]" 42 U.S.C. § 2000e(k). A disparate treatment claim under the PDA asserts "that an employer intentionally treated a complainant less favorably than employees with the 'complainant's qualifications' but outside the complainant's protected class." Young v. United Parcel Serv., Inc., --- U.S. ----, 135 S.Ct. 1338, 1345, 191 L.Ed.2d 279 (2015) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). A plaintiff "can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas . " Id. Under that framework, "[f]irst, the plaintiff has the burden of proving a prima facie case of discrimination. The burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. If the defendant is able to articulate such a reason, the plaintiff then [bears] the burden of proving that reason to be a mere pretext for discrimination." Ensley-Gaines v. Runyon, 100 F.3d 1220, 1224 (6th Cir. 1996) (internal citations omitted). A Pregnancy Discrimination Act plaintiff "can establish a prima facie case of pregnancy discrimination by showing that '(1) she was pregnant, (2) she was qualified for her job, *1160(3) she was subjected to an adverse employment decision, and (4) there is a nexus between her pregnancy and the adverse employment decision.' " Latowski v. Northwoods Nursing Ctr., 549 Fed. Appx. 478, 483 (6th Cir. 2013) (quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir. 2000) ). A plaintiff can satisfy element (4) "through comparison to 'another employee who is similarly situated in her or his ability or inability to work [and] has received more favorable benefits.' " Id. (quoting Ensley-Gaines, 100 F.3d at 1226 ). ii. Application FedEx's first argument is that Adduci has failed to provide direct evidence that her treatment was motivated by discriminatory animus. (ECF No. 40-1 at 163.) Adduci does not contest this conclusion. (See ECF No. 52-1.) Accordingly, Adduci must show disparate treatment by using the McDonnell Douglas burden-shifting framework. FedEx argues that Adduci has failed to establish a prima facie case of discrimination based on circumstantial evidence because she has failed to establish the fourth element: "a nexus between her pregnancy and the adverse employment decision." Cline, 206 F.3d at 658. (ECF No. 40-1 at 163-65.) Adduci argues that she has made the required prima facie showing because FedEx provided accommodations to other employees "similar in their ability or inability to work" while failing to accommodate her. (ECF No. 52-1 at 402-03.) To support this allegation, Adduci points to her own testimony that other pregnant workers had been accommodated as well as the spreadsheet (ECF No. 52-4) listing 261 part-time FedEx employees who were given temporary work reassignments during 2014. (ECF No. 52-1 at 400-03.) FedEx argues, in its reply, that the spreadsheet does not address the relevant aspects of Adduci's employment situation and is therefore insufficient to establish the employees listed in it as similarly situated comparable employees. (ECF No. 55 at 499-501.) The record reflects a genuine dispute of fact as to why FedEx decided not to provide Adduci with temporary reassignment work. Adduci's supervisor at FedEx, James Fruhauf, states that on he searched for temporary work that would accommodate Adduci's lifting restriction. (Fruhauf Decl., ECF No. 41-15, ¶¶ 10-11, 13.) FedEx human resources manager John Trouy states that he placed Adduci on medical leave "[a]fter confirming there was no temporary work available in the offload/reload area where [she] worked." (Truoy Decl., ECF No. 41-18, ¶ 3.) These statements support the first possible reason that Adduci was denied a temporary reassignment: at the time, no work was available to someone with Adduci's lifting restriction. The second possible reason is that the then-applicable AFGS policy excluded all part-time workers from temporary reassignments basd on non-work related medical issues. This is supported by Fruhauf's statement that "the TRW program was not available[,]" (Fruhauf Decl., ECF No. 41-15, ¶ 10), and by FedEx's human resources advisor Bradley Fowler's statement enunciating the policy. (Fowler Decl., ECF No. 41-21, ¶ 7.) While the record clearly shows when Adduci was denied reassignment work and who at FedEx was involved, there is a conflict in the record as to why her request was denied. "A fact is 'material' if its proof or disproof might affect the outcome of the suit under the governing substantive law." Reeves, 446 F.3d at 640. In the instant case, the reason why FedEx denied Adduci temporary reassignment work is disputed. This fact determines the nature of Adduci's injury and, consequently, the way that the Court must evaluate the record for proof that a person of similar ability or *1161inability to work was given preferential treatment. As Adduci argues, FedEx has cited both the lack of available work and the policy itself as reasons for denying her leave request. (ECF No. 52-1 at 402.) If Adduci's request was denied because no work was available, then her injury was not being given temporary reassignment work, and Court must consider whether comparable persons were given that benefit. Alternatively, if Adduci's request was denied because the policy excluded her from temporary reassignment work, then her injury was exclusion from applying for temporary reassignment work, and the Court must consider whether comparable persons were given that benefit. This fact is not material to Adduci's disparate treatment claim, however, because it will not affect the outcome of the suit as to that claim. Adduci has not made a prima facie case that another employee with a similar ability or inability to work received the benefit of temporary reassignment work, or that such a person received the benefit of applying for temporary reassignment work. Under the first theory-that the injury was denial of reassignment work-Adduci claims that non-pregnant employees with similar ability or inability to work were given temporary work reassignments.7 (ECF No. 52-1 at 400-03.) She has not, however, supported that claim with any proof. Adduci's deposition testimony-that she knew of other pregnant employees who were allowed to work or given work accommodations-does not create a genuine dispute of fact, for two reasons. First, her testimony would not be admissible at trial. (Adduci Dep., ECF No 52-2 at 91:13-95:11.) Adduci is not competent to testify as to matters about which she has no personal knowledge, Fed. R. Evid. 602, and admitted that she did not "know the [co-workers'] situation[,] how they were able to work." (ECF No. 52-2 at 91:22-23.) Adduci admitted that her conclusions about a co-worker who was allowed to work in the Offload area "up until her ... 9th month" of pregnancy were based on assumptions and not on personal knowledge; she would not be allowed to present that information to the jury. (ECF No. 52-5 at 92:3-19.) Adduci has not otherwise identified this co-worker or indicated that she would testify at trial. Adduci's testimony about another co-worker, "Marcella," is not based on that co-worker's medical documentation, personnel file, or other first-hand information, but based instead on statements that Adduci claims that the co-worker made to her. (ECF No. 92:20-94:5) (Mr. Coleman: "So you had no personal information about the particulars involved in her situation." Ms. Adduci: "No. ... Just from what she told me.") Adduci's statements and conclusions about Marcella's situation are inadmissible both as hearsay and as matters about which Adduci lacks personal knowledge. Based on Adduci's witness list (ECF No. 65), this co-worker might be prepared to testify at trial, but Adduci has not provided any proof about how she would testify. To avoid summary judgment, a plaintiff "must show that she can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue of material fact exists, and that a trial is necessary." Alexander v. CareSource, 576 F.3d at 558 (emphasis in original). In the instant case, Adduci has provided no admissible *1162proof regarding these co-workers, and has not otherwise "la[id] out enough evidence that will be admissible at trial to demonstrate that a genuine issue of material fact exists," id., as to whether these co-workers were given temporary work assignments. Adduci's testimony about co-workers also fails to establish a prima facie case of discrimination under the PDA because the record does not indicate whether the co-workers were of "similar ability or inability to work." But the Pregnancy Discrimination Act requires that employees treat pregnant women the same as non-pregnant employees of similar ability or inability to work. E.g., Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996) (quoting the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) ). In order to show a prima facie violation of the Pregnancy Discrimination Act, therefore, Adduci would have to identify co-workers who were of similar ability or inability to work and who were given temporary reassignment work. Even if Adduci's testimony were admissible, these co-workers are not useful comparators to establish a nexus between Adduci's pregnancy and FedEx's denial of temporary work reassignment.8 Adduci's spreadsheet also does not establish a prima facie case of disparate treatment. The spreadsheet (ECF No. 52-4) lists several FedEx part-time employees' names, positions at the company, whether the employee worked part-time or full-time, and dates of their work reassignments. The spreadsheet does not contain sufficient information to identify which of these employees had an ability or inability to work similar to Adduci's. For example, the spreadsheet contains no information on whether the employee had a lifting restriction similar to Adduci's. As a result, the spreadsheet fails to show whether, or to what extent, any of the listed employees had a similar ability or inability to work such that they could be compared to Adduci for the purposes of finding disparate treatment. Accordingly, Adduci has failed to establish a prima facie case of disparate treatment if her injury was being denied temporary reassignment work, because she has failed to prove, or create a genuine issue of material fact, that FedEx gave a worker of similar ability or inability to work that benefit. Adduci has also failed to make a prima facie case under her second theory of injury: that the FedEx AFGS division's then-current policy discriminated against Adduci by not allowing her to apply for the TRW program. (ECF No. 52-1 at PageID 402.) As FedEx's employees have described the policy in the record, it excluded part-time workers who sought to return from medical leave for non-work related injuries. (E.g., Fowler Decl., ¶ 7.) The AFGS policy thus allowed full-time employees and part-time employees on work-related medical leave to apply for temporary *1163assignment work, even those workers who had lifting restrictions similar to Adduci's. To make her prima facie case of discrimination, however, Adduci must show "that another employee who is similarly situated in her or his ability or inability to work received more favorable benefits." Ensley-Gaines v. Runyon, 100 F.3d at 1226. Adduci has not presented any proof that another employee with a similar lifting restriction was allowed to apply for the TRW program. Although the policy's terms would allow that employee to apply for the TRW program, the relevant inquiry is whether "another employee who is similarly situated in her or his ability or inability to work received more favorable benefits[,]" not whether such a person would have or could have received more favorable benefits. Id. The record is devoid of any proof that another employee of similar ability or inability to work was given temporary reassignment work. Accordingly, Adduci has failed to provide proof supporting a prima facie case of disparate treatment pregnancy discrimination under either of her theories of injury. FedEx is entitled to judgment as a matter of law, and its motion for summary judgment is GRANTED as to Adduci's disparate treatment claim. FedEx's motion for summary judgment is also GRANTED as to Adduci's claim for punitive damages under 42 U.S.C. § 1981a(b)(1). The Supreme Court has interpreted that statute to apply "in only a subset of cases involving intentional discrimination." Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 534, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). Cases that rely only on a "disparate impact" theory of discrimination are not eligible for punitive damage awards under the statute. Id. ("The 1991 Act limits compensatory and punitive damage awards, however, to cases of 'intentional discrimination'-that is, cases that do not rely on the 'disparate impact' theory of discrimination.") Because FedEx's motion for summary judgment has been granted as Adduci's claim of "intentional discrimination" and only "disparate impact" theories remain, Adduci is precluded from recovering compensatory damages. Therefore, FedEx's motion for summary judgment as to punitive damages is MOOT. b. Disparate Impact Claim i. Legal Standards "In evaluating a disparate-impact claim, courts focus on the effects of an employment practice, determining whether they are unlawful irrespective of motivation or intent." Young v. United Parcel Service, Inc., --- U.S. ----, 135 S.Ct. 1338, 1345, 191 L.Ed.2d 279 (2015) (emphasis in original). "To establish a prima facie case of discrimination under the disparate impact theory, 'a plaintiff must: (1) identify a specific employment practice; and (2) present data indicating that the specific practice had an adverse impact on a protected group.' " Chandler v. Regions Bank, 573 Fed. Appx. 525, 528 (6th Cir. 2014) (quoting Davis v. Cintas Corp., 717 F.3d 476, 494 (6th Cir. 2013) ) (discussing sex-based discrimination claims). ii. Application Adduci claims that FedEx's policies "cause a disparate impact on pregnant women because the effect of requiring pregnant women to ask their doctors to remove the lifting requirement without determining whether the pregnant women can perform their jobs without requiring them to take unpaid leave falls more harshly on pregnant women than other employees[.]" (ECF No. 16, ¶ 33.) FedEx argues that "the record contains no statistical evidence showing that pregnant employees suffered an adverse impact as a result of a FedEx policy[.]" (ECF No. 40-1 at 169.) Adduci responds that the spreadsheet *1164(ECF No. 52-4) of 261 part-time FedEx employees who were granted work reassignments or light duty in 2014 "indicates a causal link between FedEx's pre-2015 policies and a 'statistically significant ... imbalance' in the number of employees denied light-duty work because of pregnancy rather than another condition." (ECF No. 52-1 at 410.) Adduci further contends that FedEx's temporary job re-assignment program "is not available to women who are pregnant [and who] have a lifting restriction. Thus, this policy has a disparate impact on women who are pregnant and have a lifting restriction." (Id. at 411.) Adducci notes that under a 2014 policy of the FedEx Air Ground Freight services division, "part-time employees on a non-work related medical leave could not return to work on a temporary assignment." (Id. at 412 (citing Fowler Decl., ECF No. 41-21, ¶ 7).) FedEx replies that Adduci's statistical proof is insufficient because her spreadsheet does not identify which FedEx workers were similarly situated to Adduci. (ECF No. 55 at 498.) FedEx also argues that even if the spreadsheet indicated a disparate impact, Adduci has failed to show that FedEx's policy caused it. (Id. at 499.) As discussed above, the record reflects a dispute of fact as to why FedEx denied Adduci temporary assignment work. If it was because no such work was available, Adduci's injury was being denied temporary assignment work, but if it was because of the FedEx AFGS policy to exclude all part-time workers on non-work related medical leave from the TRW program, then Adduci's injury was being excluded from the program. That fact was not material for the purposes of Adduci's disparate treatment claim because she did not make a prima facie case of disparate treatment under either theory. For the purposes of Adduci's disparate impact claim, however, the fact is material for two reasons. First, Adduci has only challenged the exclusionary policy under the disparate impact theory. Second, the record contains proof that the AFGS policy had a disproportionate impact on pregnant women. The AFGS policy excluded all part-time employees from seeking TRW placement to return from non-work related medical leave. Adduci's pregnancy was considered non-work related medical leave, and, reading the record in the light most favorable to the plaintiff, all other pregnancies would have been considered non-work related medical leave. Continuing to read the record in the light most favorable to the plaintiff, the policy was enforced, and 100% of TRW requests were denied when made because of pregnancies by Material Handlers who worked part-time in AFGS.9 Adduci's spreadsheet (ECF No. 52-4) contains a list of FedEx employees whose TRW requests were granted while the policy was in place. That list contains several Material Handlers who worked part-time in the Offload area.10 The fact that those employees' requests were granted means that less than 100% of TRW requests were denied when made by members outside of the protected class: pregnant women. *1165Accordingly, Adduci has presented information, considered collectively in the form of data, "indicating that" the AFGS policy "had an adverse impact on a protected group[,]" Chandler, 573 Fed. Appx. at 528, and the record reflects that there is a genuine issue of material fact as to whether Adduci suffered, as a member of a protected class, a disparate impact under that policy.11 FedEx is therefore not entitled to judgment as a matter of law, and its motion for summary judgment is DENIED. IV. Conclusion For the foregoing reasons, FedEx's motion for summary judgment is GRANTED as to Adduci's claim for disparate treatment discrimination. As a result, FedEx's motion for summary judgment is MOOT as to Adduci's claim for punitive damages. FedEx's motion for summary judgment is DENIED as to Adduci's claim for disparate impact discrimination. The latter is the only claim remaining in this action. SO ORDERED , this 21st day of March, 2018. Unless otherwise stated, page numbers refer to the case's PageID index in CM/ECF. That policy was changed in 2015 to allow all employees on non-work related medical leave to seek temporary reassignment work. Adduci claims that she did not want to be placed on medical leave at that time, and "felt like [she] could have still [done her] job." (Adduci Dep., ECF No. 52-2 at 112:19-113:15.) This was the fifth letter Fowler sent; the fourth letter, dated April 2, 2015, advised Adduci about how to apply for other jobs at FedEx. (ECF No. 41-27.) It is not clear whether the restriction would have, pursuant to Adduci's doctor's note, been 25 pounds or 20 pounds at that point in Adduci's pregnancy. As FedEx notes in its reply (ECF No. 55 at 493-94), Adduci's response was filed four days after the January 29, 2018, deadline. Adduci's response states that she "was able to work and wanted to work." (ECF No. 52-1 at 401.) She could not, however, meet the Material Handler job requirement of lifting 75 pounds (see ECF No. 41-9) while adhering to her doctor's order to avoid lifting over 25 pounds of weight. Therefore, to the extent that she was able to work, she was not able to work as a Material Handler. Additionally, these co-workers were, according to Adduci, pregnant. The Pregnancy Discrimination Act prohibits differing treatment among pregnant women and "other persons not so affected but similar in their ability or inability to work." 42 U.S.C. 2000e(k). Eisley-Gaines stated that the relevant comparison is "that another employee who is similarly situated in her or his ability or inability to work received more favorable benefits," 100 F.3d at 1226, but the language of the PDA itself ("women affected by pregnancy ... shall be treated the same ... as other persons not so affected but similar in their ability or inability to work," 42 U.S.C. § 2000e(k) (emphasis added) ) implies that a plaintiff must show favorable treatment given to a non-pregnant co-worker. The Court does not need to reach this issue because, as discussed above and below, Adduci's testimony fails to show that FedEx gave temporary reassignment work to any persons of similar ability or inability to work. Other AFGS workers may also have been affected, but at least Material Handlers were, because they, like Adduci would have been subject to the 75 pound lifting requirement. Fruahuf's declaration states that Adduci was part of his a workgroup and that "AFGS" is a division. (ECF No. 41-15, ¶ 3.) To the extent that the record is unclear about their organizational relationship, the Court reads the record in the light most favorable to Adduci. Accordingly, for the purposes of interpreting the motion for summary judgment, all "Offload" employees are considered to be subject to the AFGS policy. This is not a determination that Adduci has presented the "statistical evidence of a kind and degree sufficient to show that the practice in question has caused prohibited discrimination" required to make her prima facie case of disparate impact. Abbot v. Fed. Forge, Inc., 912 F.2d 867, 872 (6th Cir. 1990). Adduci has simply created a genuine issue as to the material fact of disparate impact.

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/3208751/

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: June 2, 2016 521042 ________________________________ In the Matter of STEPHANIE RR. and Others, Alleged to be Neglected Children. SULLIVAN COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER Respondent; PEDRO RR., Appellant. ________________________________ Calendar Date: April 19, 2016 Before: Peters, P.J., Garry, Rose, Clark and Aarons, JJ. __________ Cliff Gordon, Monticello, for appellant. Constantina Hart, Sullivan County Department of Social Services, Monticello, for respondent. Bruce Perlmutter, Woodbridge, attorney for the children. Hannah Rose Prall, Bloomingburg, attorney for the children. Danielle Jose-Decker, Monticello, attorney for the child. __________ Clark, J. Appeal from an order of the Family Court of Sullivan County (McGuire, J.), entered March 2, 2015, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected. -2- 521042 Following respondent's arrest on charges of rape in the first degree and incest in the third degree, a report of the Central Register of Child Abuse and Maltreatment made against respondent and an investigation into that report, petitioner commenced the instant Family Ct Act article 10 proceeding, alleging that respondent neglected four of his children (born in 1996, 1998, 2002 and 2004) (hereinafter the children) and derivatively neglected his grandson and granddaughter (born in 2009 and 2011, respectively) (hereinafter the grandchildren). Following fact-finding and dispositional hearings, Family Court, among other things, adjudicated the children to be neglected and the grandchildren to be derivatively neglected and issued orders of protection in favor of the children and grandchildren. Respondent appeals, and we affirm. In a neglect proceeding, the petitioner bears the burden of proving, by a preponderance of the evidence, that a child's "physical, mental or emotional condition was harmed or is in imminent danger of such harm as a result of the parent's failure to exercise [the] minimum degree of care that a reasonably prudent person would have used under the circumstances" (Matter of Marcus JJ. [Robin JJ.], 135 AD3d 1002, 1004 [2016]; see Family Ct Act §§ 1012 [f] [i]; 1046 [b] [i]; Matter of Dylynn V. [Bradley W.], 136 AD3d 1160, 1161-1162 [2016]). While a child's out-of-court statements of abuse or neglect are admissible in Family Ct Act article 10 proceedings, such statements may support a finding of abuse or neglect only if they are "'corroborated by any evidence tending to support [their] reliability'" (Matter of Katrina CC. [Andrew CC.], 118 AD3d 1064, 1065 [2014], quoting Matter of Joshua QQ., 290 AD2d 842, 843 [2002]). "'A relatively low degree of corroborative evidence is sufficient to meet this threshold, and the reliability of the corroboration, as well as issues of credibility, are matters entrusted to the sound discretion of Family Court and will not be disturbed unless clearly unsupported by the record'" (Matter of Kimberly Z. [Jason Z.], 88 AD3d 1181, 1182 [2011], quoting Matter of Justin CC. [Tina CC.], 77 AD3d 1056, 1057 [2010], lv denied 16 NY3d 702 [2011]). The evidence presented by petitioner at the fact-finding hearing consisted of testimony from a child protective services -3- 521042 caseworker and the children's mother. The caseworker testified that she twice interviewed one of the children, Angel RR. She stated that, during the first interview, Angel reported that respondent would frequently hit, slap and smack him and that he had witnessed respondent strike his mother and two of the other children on numerous occasions. According to the caseworker, Angel specifically recounted an instance when respondent punched one of his sisters in the back and in the chest "for no reason." Additionally, she testified that Angel asserted that he was afraid of respondent and that he would regularly check on his sisters in the morning to make sure that they were safe. During the second interview, Angel stated that respondent would "often" slap him in the face and that he observed respondent physically assault his mother "with objects." The caseworker also testified that Angel reported one occasion when respondent pushed him, causing him to fall onto the garage floor and chip his teeth. Several of Angel's out-of-court statements were reflected in a written deposition, which was prepared by the caseworker and signed by Angel. In that deposition, Angel stated that he watched respondent burn the mother's arm with a lighter, that respondent laughed after pushing him in the garage and that one of his sisters had to wear a brace or a cast as a result of respondent pushing her. Angel also stated that, since respondent's incarceration, he had felt "happier" and that "[t]he hitting [had] stopped." The mother testified that respondent physically and verbally abused her on a daily basis in the presence of the children. Specifically, she asserted that Angel had witnessed respondent burn her with a lighter, that respondent had dragged her around the house by her hair in the presence of three of the children and that respondent had also hit her with a baseball bat. The mother's testimony, which was expressly credited by Family Court, established that respondent regularly perpetrated acts of domestic violence against her in the presence of the children and that the children were upset and frightened by those acts. Such testimony was sufficient to support a finding that respondent neglected the children (see Matter of Joshua V. [Rahsaan J.], 137 AD3d 1153, 1153-1154 [2016]; Matter of Cheyenne OO. [Cheyenne QQ.], 135 AD3d 1096, 1097 [2016]; Matter of Michael WW., 20 AD3d 609, 611-612 [2005]). The mother's testimony also -4- 521042 sufficiently corroborated Angel's out-of-court statements that respondent regularly struck, slapped and/or pushed him and his siblings, which provided further support for the finding that respondent neglected the children (see Matter of Jack P. [Joi Q.], 80 AD3d 812, 813-814 [2011], lv denied 16 NY3d 710 [2011]). Although respondent offered evidence to refute the mother's testimony and Angel's out-of-court statements and also argues on appeal that the mother was not credible, we defer to Family Court's assessments as to credibility and the reliability of the corroborative evidence (see Matter of Miranda HH. [Thomas HH.], 80 AD3d 896, 899 [2011]). Accordingly, we conclude that a sound and substantial basis exists in the record to support Family Court's finding that respondent neglected the children. As respondent's acts of domestic violence in the presence of the children, as well as his acts of physical aggression towards the children, "demonstrate[] such an impaired level of parental judgment as to create a substantial risk of harm for any child in his care," we also decline to disturb Family Court's determination that respondent derivatively neglected the grandchildren (Matter of Branden P. [Corey P.], 90 AD3d 1186, 1189 [2011]; see Matter of Dylan TT. [Kenneth UU.], 75 AD3d 783, 784 [2010]). Peters, P.J., Garry, Rose and Aarons, JJ., concur. ORDERED that the order is affirmed, without costs. ENTER: Robert D. Mayberger Clerk of the Court

01-03-2023

06-02-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427280/

Appellee, upon his application therefor, was awarded compensation against appellant, a corporation, by the Industrial Board of Indiana, the award being made by four members of said board when said application was heard upon review by the full board. From the award, this appeal is prosecuted, the appellant assigning as error that the award is contrary to law. The sufficiency of the evidence to sustain the finding of facts is questioned, and appellant contends that, from the facts proven, the Industrial Board could not properly find that appellee, at the time of his injury, was an employee of appellant within the meaning of that term as used in "The Indiana Workmen's Compensation Act of 1929" (Acts of 1929, p. 537), under the provision of which this proceeding was instituted. It is also contended that appellee, when injured, was not serving appellant as an employee of the corporation, but as an officer thereof, and that therefore no award of compensation should have been made. The evidence discloses that appellant was a corporation engaged in selling products manufactured by others; that it was capitalized at $1,000 with 1,000 shares of capital stock; that at the time appellee was injured he owned 490 shares of the capital stock, his father owned 10 shares and one T.M. Shircliff the remaining 500 shares; the three shareholders were also the board of directors of the corporation, and appellee was its secretary and treasurer, his father assistant secretary, and Shircliff its president. There is also evidence tending to prove the following facts: Appellant was incorporated in 1930, and in *Page 198 April of that year, through its board of directors, employed said T.R. Shircliff and appellee as traveling salesmen to go on the road representing appellant in the sale of merchandise, and that the wages of each was fixed at $50 per week, with traveling expenses allowed. Appellee was injured on March 6, 1933, and was then still employed by appellant as one of its salesmen and was also serving appellant as one of its directors and as its secretary and treasurer. From the time of his employment until his injury appellee spent most of his time "on the road" acting as a salesman, but at times would spend two or more weeks in appellant's office looking after collections, correspondence, and other duties. Appellant paid him $50 per week during all the time, but no salary was fixed for appellee, or anyone else, as an officer of the corporation. In addition to appellee and Shircliff, appellant had four other persons employed as salesmen in 1933, and had procured insurance in compliance with the provisions of our Workmen's Compensation Law, the wages of appellee as a traveling salesman, together with the wages of its other employees, being used as the basis upon which the premium on the policy secured, was computed. Prior to March 6, 1933 (the date appellee was injured), appellant, by means of correspondence and telephone communication, had been negotiating with the George Cook Sons Company of Evansville, Indiana, about adding products manufactured by that company to the line of merchandise appellant was engaged in selling. Both appellee and the president of the appellant corporation had been to Evansville in connection with the matter before this day, but appellee had not thoroughly inspected the line of merchandise which appellant was considering handling in addition to the articles it was then selling to its customers. On March 5, 1933, the president of appellant corporation called a brother of *Page 199 appellee, who was a lawyer with offices in Chicago, over the telephone, seeking legal advice in connection with some contract, and, upon being informed that said attorney would pass through Evansville on the following day and would have to change trains in said city, and that there would be an interval of 15 or 20 minutes between trains, when a conference between the parties could be held, it was so arranged. On the following day (March 6th) Mr. Shircliff, appellee, and another Mr. Shircliff who was a brother of the president of The Macshir Company, appellant, and who was in the employ of said company as a salesman, drove by automobile from Vincennes, Indiana, where the business and office of appellant was located, to Evansville, Indiana. This journey was made for the purpose and with the intention of consulting with the lawyer McFarland, as arranged, and to see the George Cook Sons Company while there "to go over some of the matters pertaining to taking on the line." It was also expected and intended that the parties making the trip with the president, inspect the line of merchandise manufactured by the Evansville company. After arriving at Evansville they went to the railroad station, met and talked with the attorney from Chicago as planned, and when his conference was over it was raining very hard. Because of the condition of the weather it was decided not to call up any person connected with the George Cook Sons Company and ask them to come to their office, but to postpone doing so, and to return the next day. On the way home a collision occurred between the automobile in which appellee was riding and another automobile, and by reason of such accident appellee sustained serious injuries causing the total disability for which he was awarded compensation. The questions presented are: Was appellee, at the time he received his injuries, an employee within the *Page 200 meaning of that term as used in our Workmen's Compensation Law? Did the accident, resulting in injury to appellee, arise out of his employment as a traveling salesman for appellant? One may be an employee of a corporation, within the meaning of our compensation law, notwithstanding the fact that he is at the same time an officer and a stockholder of such 1-3. corporation. The mere fact that appellee, in the instant case, was a stockholder, a director, and the secretary and treasurer of appellant at the time of his injury, is not, of itself, enough to preclude him from recovering compensation. Inre Raynes (1917), 66 Ind. App. 321, 118 N.E. 387; Manfield Firman Co. v. Manfield (1932), 95 Ind. App. 70, 182 N.E. 539;Holycross Nye, Inc. v. Nye (1933), 97 Ind. App. 372,186 N.E. 915. It is equally true that one may be an employee of a corporation when injured, and yet not be entitled to an award, even though he be serving the corporation at the time. Unless the injury is the result of an accident arising out of and in the course of his employment, compensation can not be legally awarded. Where, as in this case, the injured person is serving a corporation both as an employee and in an official capacity the right to compensation depends upon the class of service being rendered when the injury occurs. Appellee's duty under the terms of his employment was to go on the road and sell merchandise. His duty as a director of appellant, to help determine its business policy and manage its prudential affairs. The trip to Evansville was not for the purpose of selling merchandise or interviewing prospective customers, but according to the uncontradicted testimony of Mr. Shircliff, president of appellant, and the only witness who testified concerning the matter, the trip was made for entirely different reasons. This witness was asked: "Where had you been and what were you doing on that *Page 201 occasion?" He answered: "We had been to Evansville to see a concern called the George Cook's Sons Company about taking on their line of merchandise to add to ours. They manufactured a line which supplemented what we had, we had been dickering with them by correspondence and telephone, and went down there this night to go over some of the matters pertaining to taking on the line." His testimony also establishes the fact that another reason for the trip was to consult the lawyer from Chicago concerning "a legal point" in a contract. After a careful consideration of all the evidence we think it clearly appears that appellee, when injured, was on a mission for appellant which required his attention, and the exercise of 4. his judgment, as a director and officer of the corporation as to both matters which occasioned the trip to Evansville. We find no evidence from which it can be reasonably concluded that the trip was required or made necessary, or was in fact made, because of any duty owing to appellant by virtue of its employment of him (appellee) as one of its traveling salesmen. The fact that appellant carried insurance, and that the wages of appellee as a traveling salesman were considered in computing the premium on the policy, does not give to appellee the 5. right to recover compensation. It is necessary that he be engaged in the service of appellant under his contract of employment, at the time of his accidental injury, before a right to compensation can exist. We find no evidence to sustain the finding of facts upon which the award is based, and the award is therefore contrary to law. The award is reversed with instructions that same be vacated and set aside and an award entered for appellant. Curtis, J., dissents. *Page 202

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427285/

The issues in this case were formed by the appellee's amended complaint in three paragraphs, to each of which the appellant addressed an answer in general denial. The first paragraph of amended complaint alleged that the appellee is the owner of approximately thirty-five and one-half acres of real estate in Greene County, Indiana, which slopes generally to the south and east, and along the south line of which there is constructed an improved ditch or drain, the water in which flows in an easterly direction. *Page 482 The complaint alleges that the appellant, as defendant, is a corporation and is engaged in the business of mining coal on lands west from the real estate of the appellee, by a process known as strip mining. The complaint alleges that the appellant in so mining and removing coal has cut, dug, and left there unfilled with earth a large, long, deep, wide excavation in the surface of the earth which extends for a mile or more in length. The first paragraph of amended complaint alleges that in so excavating the appellant cut into and opened up the underground workings of an old abandoned mine, which had become full of obnoxious, polluted, and injurious water, which was heavily laden with chemical ingredients and mineral salts, and which was destructive and injurious to plant and animal life. This water was permitted to mingle with the water in the channel and excavation cut by the appellant, with the result that the entire volume of water contained in said channel became polluted and dangerous to plant and animal life. The complaint then alleges, "That at divers times within the five years last past, when the defendant knew of the destructive and injurious chemicals and ingredients contained in said water, as aforesaid, and the slope and drainage of said lands surrounding said body of water in said trench, channel, and excavation, as aforesaid, or by the exercise of reasonable care, could have known the same, said defendant wrongfully suffered and permitted said body of water to overflow its banks and escape from said trench, channel, and excavation, and run over, upon, and across lands adjoining said body of water, and from thence over, upon, and across plaintiff's said tract of real estate, and also to run over, upon, and across lands adjoining said body of water and from thence into said improved ditch which runs along and abuts the entire south side of plaintiff's said real estate, and to overflow from said improved ditch over, upon, and across plaintiff's said tract of real estate; *Page 483 that said water which so ran over, upon, and across plaintiff's said tract of real estate, as aforesaid, stood in great quantities thereon and large quantities thereof seeped, soaked, and percolated into the soil of plaintiff's said tract of real estate by reason of all which plaintiff's said real estate was injured and rendered sterile and unproductive, and the crops and vegetation growing thereon were injured and destroyed, all to plaintiff's damage in the sum of Five Thousand ($5,000.00) Dollars." The second paragraph of amended complaint contained substantially the same allegations, but contained the additional allegation that after said excavation became filled with the polluted water, the appellant cut a channel through the south bank of said excavation and wrongfully permitted the water therefrom to drain into the improved ditch, which passes along the south boundary of appellee's farm. This paragraph of complaint charged that the appellant wrongfully suffered, permitted and allowed said water to escape from said improved ditch and overflow the banks thereof onto plaintiff's said tract of real estate, thereby injuring and rendering unproductive his soil. The third paragraph of amended complaint, in addition to the same allegations, charged that the appellant wrongfully dug and drilled into the abandoned mine and drained the polluted water therein into the improved ditch which abuts the appellee's real estate, which polluted water escaped and overflowed the banks thereof and spread over the appellee's real estate, and stood in great quantities thereon, thereby damaging the production and fertility of appellee's soil. Upon the issues thus formed by the answers in general denial, the case was submitted to a court for trial; and, the court, after hearing the evidence, returned a *Page 484 finding against the appellant and in favor of the appellee, and fixed his damages in the sum of $660.00. Judgment was entered accordingly. The appellant filed a motion for a new trial, which was overruled, and this appeal has been perfected. The only error presented to this court on appeal is the alleged error in overruling the appellant's motion for a new trial. Under this assignment of error, the appellant contends that the evidence is insufficient to sustain the decision of the court. The record discloses that the appellant, while engaged in the strip mining of coal, had made large excavations on the land near the appellee's farm, and had permitted them to become filled with water. The evidence further discloses that in such mining operations, the appellant had cut into an old abandoned mine, which was filled with acid water, and this water had flowed out into these excavations, thereby polluting the water which accumulated in these excavations to the extent that they became red in color and of sufficient acid content to destroy plant and animal life. There is further evidence from which the court might infer that the appellant, by means of pipes and artificial channels, discharged this polluted water into the drainage ditch which adjoins the appellee's land. There is further evidence that in May, 1935, as a result of a heavy rain, this ditch overflowed its banks and overflowed the land of the appellee, and water from this overflow stood on the appellee's land, leaving it red in color and of such acidity as to injure the fertility of the soil. There is further evidence that the abandoned mine was sealed by the government authorities following this overflow to prevent subsequent pollution and damage from its acidious waters. *Page 485 The law governing this case is fairly well established, 1. and the facts are not in dispute as to the appellant having collected on its land this polluted water. As this court has said: "`We think that the true rule of law is, that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. . . . It seems but reasonable and just that the neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequence. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.'" Niagara Oil Co. v. Jackson (1911), 48 Ind. App. 238, 241, 91 N.E. 825. This rule of law was subsequently approved by the Supreme Court of our State in the case of Niagara Oil Co. v. Ogle (1912),177 Ind. 292, 98 N.E. 60. While the appellee's land is servient to the flow of surface water as the laws of nature would cast the same from the appellant's land, it is not servient to water 2, 3. contaminated by the acts of the appellant and cast upon the lands of the appellee through artificial channels. The rule is that: "If an upper landowner alters the natural conditions so as to change the course of the water, or concentrates it at a particular point, or by artificial *Page 486 means increases its volume, he becomes liable for any injury caused thereby." Tichenor v. Witherspoon (1928), 87 Ind. App. 79, 82, 158 N.E. 514. There is evidence to the effect that the appellant, in the operation of its business collected large quantities of water upon its land, which were permitted to remain there and 4. which were so polluted with the waters from the abandoned mine as to be destructive of plant and animal life. Having collected this dangerous substance on its land, the appellant was bound to keep it there at its peril. If this polluted water was permitted to go onto the land of the appellee to his damage, we think it clear that the appellant is obligated to make good the loss to the appellee occasioned thereby. 36 Am. Jur., § 191, p. 410. It is the appellant's position that even though it be conceded that water from the appellant's land was cast into the drainage ditch, which subsequently overflowed, the acid content of 5. the overflowed water would be too slight to occasion any damage to the appellee. While this contention is persuasive, we cannot say as a matter of law that no large quantities of acid water came onto appellee's land as a result of this overflow. This was a question of fact for the trial court to determine. A case similar to the one at bar is that of Beaver Dam CoalCompany v. Daniel (1929), 227 Ky. 423, 426, 13 S.W.2d 254. In this case copperas water from the appellant's mine was discharged into a stream which later overflowed the appellees' lands. The appellant insisted that a single inundation was wholly insufficient to affect the fertility of appellees' soil. The appellant accordingly moved for a directed verdict. The court said: *Page 487 "Inasmuch as there is evidence from a number of witnesses that the water which covered plaintiffs' land was impregnated with copperas, that a large stream of copperas water was flowing from defendant's land into the branch and onto plaintiffs' land, and that when the waters receded copperas could be seen on the land and vegetation, whether this was true and, if true, that plaintiffs' land was thereby damaged, was the very gravamen of the complaint and pure questions of fact to be determined by the jury. The motion for a peremptory instruction, therefore, was properly overruled." In the light of these authorities, it is our opinion that there is evidence in this record sufficient to support the judgment of the trial court by which damages were awarded to the appellee. There was accordingly no error in overruling the appellant's motion for a new trial. Finding no reversible error, the judgment of the trial court is affirmed. Judgment affirmed. Bedwell, P.J., not participating. NOTE. — Reported in 39 N.E.2d 484.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427173/

By an affidavit in two counts, appellant was charged in the first count with the unlawful possession of intoxicating liquor, and in the second count with maintaining a common nuisance, on September 18, 1926, in Delaware County. He was found guilty by a jury on the second count. The offense of which he was convicted is defined in Acts 1925, ch. 48, § 24, § 2740 Burns 1926. He has appealed from the judgment of fine and imprisonment rendered on the verdict. The affidavit was not indefinite and uncertain as contended by the appellant. It was not error to overrule the motion to quash same. In the motion for a new trial, twenty-nine causes were stated, but several of them are not presented for review. The appellant conducted a place in the city of Muncie, where he sold cigars, tobacco and soft drinks. He had been in possession of same for about two weeks, when officers with a search 1. warrant searched it for intoxicating liquor. In an unfurnished room connected with the room where the business was carried on, the officers found, in a pile of trash, two bottles containing about three or four ounces of whisky, and also some empty bottles, that smelled like they had contained whisky. The jury did not make any finding on the first *Page 114 count of the affidavit charging possession. A verdict finding the defendant guilty of one count of the affidavit, and saying nothing as to the other count is as to such other count equivalent to an express finding of not guilty. Weinzorpflin v.State (1844), 7 Blackf. (Ind.) 186; Dickinson v. State (1880), 70 Ind. 247; Lamphier v. State (1880), 70 Ind. 317;Harvey v. State (1881), 80 Ind. 142. Exceptions were taken to various instructions given by the court of its own motion. Instruction No. 4 was in regard to the necessary amount of evidence to support a finding of guilty. There can be no valid objection to this instruction. Instruction No. 6 was on the subject of the quantity of intoxicating liquor which may constitute possession. This instruction, without doubt, was intended to apply, and did 2. apply, to only the first count of the affidavit, on which appellant was not convicted. He could not have been harmed thereby. Instruction No. 12 was in regard to evidence concerning the reputation of the place of defendant's business. It is competent to prove the general reputation of the place where it is 3. claimed that intoxicating liquor is possessed or sold or where people resort for the purpose of drinking intoxicating liquor. § 28, ch. 48, Acts 1925. Evidence was introduced as to the reputation of the place in question. This instruction did not invade the province of the jury and was correct. Instruction No. 17 covered the subject-matter of the two counts and contained forms of verdicts. There is no merit to appellant's objections to same. Exceptions were taken to the admission of some of the evidence. Part of this evidence to which objections were made was competent, and the balance was immaterial and appellant 4. could not have been injured by its admission. *Page 115 One of the causes for a new trial is that the verdict is not sustained by sufficient evidence. From the evidence it does not appear that the defendant maintained or assisted in 5, 6. maintaining a place where intoxicating liquor was sold, manufactured, bartered or given away; or where persons were permitted to resort for the purpose of drinking intoxicating liquor as a beverage; or a place where such liquor was kept for sale, barter or gift in violation of the laws of this state. There was evidence that persons would come there in automobiles and take packages away; but it was not shown that the packages contained intoxicating liquor. There was evidence that men congregated there; but it cannot be presumed that they were there for the purpose of drinking intoxicating liquor. And, as heretofore stated, the verdict of the jury was equivalent to an express finding that the defendant was not guilty of the possession of intoxicating liquor. The verdict was not sustained by sufficient evidence. The judgment is reversed, with directions to sustain appellant's motion for a new trial.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486426/

This is an appeal from the Circuit Court for Baltimore County in equity. On September 24th, 1902, Sadie C. Councilman filed her bill of complaint in the Circuit Court for Baltimore County against her husband James B. Councilman, his brothers and sisters and the Safe Deposit and Trust Company. In this bill she alleged that her husband took, under the last will of his late uncle James B. Councilman, of Baltimore County, a large and valuable estate known as Woodhome. The bill further alleges that after her marriage Mrs. Councilman advanced to her husband large sums of money to be used in the improvements of Woodhome, in the belief that her husband possessed that property in fee simple; that these *Page 381 sums were expended on Woodhome; and that thereby the vendible value of that estate was very greatly increased — among other improvements a number of cottages and other buildings having been erected on that estate. Subsequently to these advances and improvements differences arose between Mrs. Councilman and her husband, and at the time of the filing of the bill they were living separate and apart from each other. The bill then alleges that since the expenditure of these sums of money on Woodhome by her, on the theory and belief that the same was owned in fee simple by her husband, and under the promise by him to secure her for such advances, by a lien on this estate, she has learned that there is a doubt as to whether under the proper construction of the will of the late James B. Councilman, Woodhome belongs absolutely to her husband, or whether there is a contingent or expectant interest in Woodhome possessed by the heirs apparent of her husband — these heirs apparent being his brothers and sisters. The bill then states that on October 1st, 1900, her husband executed and delivered to her a mortgage of all his interest in Woodhome and all the live stock and crops upon it, to secure the sum of $72,500. This mortgage recites as follows: "Whereas, Sadie C. Councilman, wife of the said James B. Councilman, did heretofore advance and pay out large sums of her own money for the purpose of and in making, erecting, rebuilding and repairing certain buildings, cottages and other improvements on certain real estate belonging to or in which the aforesaid James B. Councilman had a life estate or certain other interests, and especially on that tract of land known as `Woodhome Farm,' situated in the Third Election District of Baltimore County; and "Whereas, it was agreed by the parties hereto at and prior to the time the said money was so advanced or paid out, that the repayment of the same to the said Sadie C. Councilman should be secured by a lien on or a deed for the property on which said buildings, cottages and improvements were made, *Page 382 erected or repaired, and the sum so paid out and advanced by the said Sadie C. Councilman did, on the 2nd day of October, 1899, amount with interest to the sum of seventy-two thousand five hundred dollars, and the said James B. Councilman did, on the 2nd day of October, 1899, make and deliver to the said Sadie C. Councilman his promissory note for the said sum payable on demand, and the said note so delivered did contain an agreement on the part of the said James B. Councilman to transfer to the said Sadie C. Councilman, as security for the payment of said note, all right and interest the said James B. Councilman should own or hold in and to any real or personal property, whenever the said Sadie C. Councilman should demand the same, and the said Sadie C. Councilman has prior hereto demanded that the said James B. Councilman perform the agreement set forth in said note and make the transfer therein provided for." The record shows that on April 30th, 1902, Mr. Councilman obtained a further loan of his wife for $13,000. The record further shows that Mr. Councilman left the estate owing a number of debts. The bill then prays for the appointment of a receiver, that she may be decreed to have a lien for betterments on the estate of Woodhome, that the estate be sold to satisfy her lien for betterments and her mortgage debt and for general relief. A copy of the note of October 2d 1899, is as follows: Mt. Wilson, Oct. 2, 1899. "In consideration of my wife, Sadie C. Councilman, having expended her own money in erecting five houses, two stables, water tower, water works, gas machines, digging artesian well, rebuilding and repapering and refurnishing the main dwelling and oyerseer's house and erecting an ice house on my property known as Woodhome Farm, Mt. Wilson, Md., in which I have life estate, and wishing to protect her in this large expenditure of her money, as it was agreed on my part between her and others that I should do so, I hereby, on this 2nd day of October, 1899, do promise to pay to the said Sadie C. Councilman, on demand, the sum of seventy-two thousand *Page 383 five hundred ($72,500) dollars, for value received, with interest, and hereby also promise to transfer to her all right and title to any real, personal or mixed property that I may own or hold whenever she should so demand it as an additional security. Witness J.B. Councilman." W.B. Schwartz. The Circuit Court passed an order appointing the Safe Deposit and Trust Company receiver. Mrs. Councilman died in May, 1906, and Mr. Wm. S. Bryan, Jr., as her executor, was made party plaintiff in her stead. On March 18th, 1907, the Court below passed the following decretal order: This case coming on to be heard and the counsel for all the parties in interest having been heard, and the proceedings having been read and considered, and the counsel for the plaintiff having asked the Court to decree a lien by way of betterments and upon the property mentioned in these proceedings, it is, thereupon, on this 18th day of March, 1907, by the Court here ordered, adjudged and decreed that William S. Bryan, Jr., executor of the late Sadie C. Councilman, has under proof of this case no lien by way of betterments binding upon the fee simple interest in the property mentioned in these proceedings. The determination of the rights of the executor of the late Sadie C. Councilman under the mortgage executed by James B. Councilman to Sadie C. Councilman and filed in these proceedings is reserved for the future action of the Court." And from this decretal order the appeal in this case is taken. Let us examine the record in this case and find out from it the true position of this complainant. On page 176. 7th Ques. Ans. It was my home and I put my money there with that intention. I put the money there when I was married and the whole time ten years; everything he wanted, I let him use my money just the same as if it belonged to him. 14th Ques. And the money was put there when? *Page 384 Ans. All along, when I first went there $18,000 in house and $20,000 in other houses beside the other improvements. 15th Ques. And you put this money there when? Ans. When I was first married to him ten years before. 18th Ques. Can you tell us whether or not you would have put your money in the improvement in that place or have permitted it to be put in the improvement if you had not believed it would be yours and your children? Ans. I never thought of any lien and never thought other than that it was his and had that impression when I married him and supposed his uncle left it to him absolutely. That was what I understood. 25th Ques. What I want to get at is not what was said by his brother or anybody else at the time of the Milk Producers but what Mr. Councilman said at or before the time when the money was put in, to induce you to put money in? Ans. Of course all through my married life; it was natural for me to say to him that there was a great deal of money being spent on the property and he said you derive the benefit of it; it is very valuable and will come to you and that satisfied me, and as I said, it was my home, was to be my home all my life as I thought. 26. And when I put my money there I thought it was for my benefit and my children and that is all I can say. Mr. J.W. Marshall. 23. James B. Councilman said that his wife knew to the contrary that is my recollection. 34. He, Councilman, told me that he had told his wife that he only had a life interest in her presence, but she denied it. 12. When improvements were made at Woodhome, Mrs. Councilman before we were married, came up there a great deal driving with her aunt during the summer and fall, and she would drive up to Woodhome and looked over the house and wanted to make a great many improvements, I told her I had not the money, and it was a first rate house and substantially built and no reason why it should be improved, the only thing it needed was a new roof which I intended to put *Page 385 on; she said her grandfather's estate had been settled up and this was to be her home and a home for her children and she wanted to spend the money herself, and she would not live in there the way it was and she insisted and put it in such a way that I allowed her to spend the money and saw Mr. Cowan and he agreed to make the improvements for $5,600 and the plans were satisfactory to her and I submitted them to her at her house 1733 Linden avenue. 13th Ques. Before you were married? Ans. Yes. 14th Ques. Long before you were married? Ans. Just about the time we were married. 15th Ques. State whether plans were followed? Ans. Yes until she started to come out there herself and then she saw a great many things she wanted done; I tried to keep her away because I knew when you start to make improvements they run on and you don't know what the expense will be. She saw the staircase which was a fine mahogany staircase and she insisted on Mr. Cowan making plans and afterwards had some plans made here in the city. 17th Ques. What was the condition of the old staircase? Ans. Perfectly good in every way, built of the best material. I protested in every way I knew how but she persisted in doing it and she did not only do that, the old porch was taken down and another one put up, the old one was smaller than the one she put there, but she insisted on having it done, and another improvement she made was, she went in the second story and she seemed to think the ceiling was low; the ceiling was 8 feet or 8 1/2 and she had it raised to ten feet, and then she came out there and saw there was a room in the third story that she wanted to make a sort of wardrobe out of, * * * 23rd Ques. What was the general character of the work done by Mr. Cowan, was it work that was necessary to preserve the property? Ans. Not at all; the house only needed a new roof on it, that was the only thing necessary to preserve the property; *Page 386 the balance was done entirely for the gratification of Mrs. Councilman. 24th Ques. In the account of Mr. Cowan's filed in this case there is a charge of $22,375.00 for building five cottages, and the date of charge being July 1st, 1894, state what you know about building those cottages, how did the idea or purpose first originate and by whom? Ans. The idea first originated with Mrs. Councilman, her brother Dickson C. Walker built a house which is occupied by Mr. Wm. C. Painter and she would go over there and speak about building these cottages, because it would be such a good thing to have cottages to rent and her brother thought so too and she consulted Mr. Newcomer, president of the Safe Deposit Company, and he thought it was an excellent thing, and I think Mr. Marshall also thought so; she had lots of money lying around that was paying low rates of interest, some of it in stocks that was paying low rates of interest; I was very much opposed to it and told her she had spent enough money on the place and she had better keep the money separate; but she insisted on doing it and said she was going to do it and I did the best I could of talking her out of building the cottages; the money at first with which she was to pay all the bills — she had an account in the Western National Bank and she commenced to pay the bills herself and draw the money herself but she soon got tired of it, being unused to it, and said she could not bother with it and turned the money over to me and as the bills of Mr. Cowan would come due, I would pay him. 25th Ques. Did you have any conversation with Mrs. Councilman at any time before these cottages were built in reference to the title that you held to the Woodhome estate? Ans. Yes, often times. 26th Ques. Can you remember any particular occasion? Ans. Yes; I remember one time particularly; this particular time was we had been talking of Wyatt Nolting, architects of the Dixon Walker house and thought it a good thing to get Mr. Wyatt Nolting to look over the ground and see *Page 387 about locating the houses; Mr. Nolting was away, she preferred him but as he was away, Mr. Wyatt came out in his place and I drove her down to the woods where the cottages were to be located to meet Mr. Wyatt, and we talked about the place at the time and I told her that, I remember distinctly about telling her about the property being left to me during my life-time with power to will it to whom I choose; I believe this is the language, "To dispose of it by will duly executed"; she said that is all right, you have already made a will, leaving it to me and I said yes, I left her every cent of this property, which can be shown or proven; she said that was all that was necessary and all that she wanted. It would serve no good purpose to go further into a detailed recital of the testimony, it is sufficient for the purposes of this opinion to say, that the record discloses a very unfortunate and distressing state of affairs. Now from the facts recited above what conclusion can be reached save that Mrs. Councilman being possessed of ample means set about improving as she thought the estate of her husband. Which as she says in her testimony she supposed would be a home for herself and children. Did she occupy such a relation as the law requires to make her a creditor of this estate. The appellants have pressed upon us the well recognized principle of compensation for improvements made upon another's property. Now to entitle the party claiming to a standing even in a Court of equity there must be three concurrent essentials. 1. He must have held possession under color of title. 2. His possession must have been adverse to the title of the true owner. 3. He must have acted in good faith. 16 Am. Eng. Ency. ofLaw, 79-83. Again — As a general rule in order that one may recover compensation for improvements made on another's land, it is necessary that he should have made such improvements in good faith, while in bona fide adverse possession of the land under color of title. Cyc. of Law, vol. 22, pages 15-16. By good faith is meant an honest belief on the part of the occupant *Page 388 that he has secured a good title to the property in question and is the rightful owner thereof. And for this belief there must be some reasonable grounds such as would lead a man of ordinary prudence to entertain it. 16 Am. Eng. Ency. Law, 85-6. In McLaughlin v. Barnum, 31 Md. 454, JUDGE MILLER delivering the opinion of the Court, uses this language: "All that is required to entitle a defendant to claim this equity is that he be a bona fide occupant or possessor, and not a meretort feasor or mala fide intruder, holding with full knowledge of his own position and of the adverse claim." The Supreme Court, in Green v. Biddle, 8 Wheat. 79, have defined a bona fide possessor, according to the doctrine of the civil law, to be one "who not only supposes himself to be the true proprietor of the land, but who is ignorant that his title iscontested by some other person claiming a better right to it."Judge Story Equity Jurisprudence, sec. 799, "if a plaintiff in equity seeks the aid of the Court to enforce his title against aninnocent person who has made improvements on lands, snpposinghimself to be the absolute owner, the aid will be given to him only upon the terms that he shall make due compensation to such innocent person to the extent of the benefits which will be received from these improvements." So in the case of a mortgagee, thinking himself absolutely entitled, expends considerable sums in repairs and lasting improvements, he will be allowed such expenditures." Jones v. Jones, 4 Gill 87; Hagthrop v.Hook, 1 G. J. 305; Smith v. Townsend, 27 Md. 368; Foley v. Kirk, 33 N.J. Eq. 170. Chancery, borrowing from the civil law, made the first innovation upon the common law doctrine. And it came at length to be held in equity, that where a bona fide possessor of property (for equity no more than the law would aid a mala fide possessor) made meliorations and improvements upon it in good faith, and under an honest belief of ownership, and the real owner was for any reason compelled to come into a Court of equity, that Court applying the familiar maxim that he who seeks equity must do equity and adopting the civil law rule of *Page 389 natural equity would compel him to pay for these improvements. 16Am. Eng. Ency. Law, 67. And so JUDGE ALVEY in Long v. Long, 62 Md. 75, says, "Being innocent bona fide holders and possessors of the property in controversy, supposing that they held a good and sufficient title thereto by virtue of a judicial sale, will be entitled, upon well established principles, to a proportionate allowance for the value of all beneficial permanent improvements of the property, according to its improved condition." In all of these cases it will be observed that the parties to whom relief was granted were bona fide possessors of the premises. But in this case Mrs. Councilman must have known that this property upon which these buildings were erected, did not belong to her; nor had she reasonable grounds for supposing or believing that it did. She made these advances to serve herself, not for the benefit of these appellees and we think she has no valid claim for moneys thus expended. We have been requested by the council for appellant to express our opinion upon the question as to what title or interest Jas. B. Councilman took in Woodhome under the will of his uncle, but as we have decided that the appellant has no claim for betterments; and as the question of Jas. B. Councilman's interest or estate was not passed upon by the learned Judge below who heard the case, any view we might express would be merely obiter dictum, we will refrain from acceding to said request. It follows from what we have said that the decree below must be affirmed. Decree affirmed with costs to the appellee above and below. *Page 390

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486427/

The decree to be reviewed on this appeal denied the claim of the appellants, as judgment creditors, to an interest in the proceeds of the sale of certain real estate in Howard County. The sale was made under the terms of a deed of *Page 229 trust of the Brightwood Sanitorium Company, Incorporated, securing its promissory notes to the amount of $22,500. It is contended by the appellants that the deed of trust was in effect a mortgage, and that having been recorded without an authorizing order of the court, after the expiration of the statutory period of six months from the time of its execution (Code, art. 21, secs. 13 and 19), the debt it secured must be postponed to the judgments of the appellants, which are said to have been obtained upon claims contracted by them after the date of the deed of trust and without notice of its existence. The same contention was made in an injunction suit, by two of the present appellants and another, to restrain the exercise of the power of sale conferred by the deed of trust, but the claims of the creditors who instituted that suit had not then been reduced to judgments, and a dismissal of their bill of complaint was affirmed by this Court on the ground that, as general creditors, they had no interest in the land which entitled them to an injunction against the impending sale. Kinsey v. Drury, 141 Md. 684. After the trustees named in the deed of trust had sold the property which it conveyed, and before the sale was ratified by the Circuit Court for Howard County in the equity proceeding in which it was reported, the appellants procured judgments on their claims. No objection was made to the ratification of the sale, but subsequently the appellants intervened in the proceeding for the purpose of asserting a right to participate in the distribution of the $15,000 fund which the sale produced. It was the dismissal of their petition to that end which occasioned the present appeal. The proceeds of the sale made under the deed of trust being insufficient for the payment of the debts therein mentioned, thepro rata allowance of the appellants' claims, out of the funds to be distributed, would reduce the amounts to be received by those holding the notes which the deed of trust was intended to secure. The controversy arises from this conflict of interest. The argument for the appellants is that, as the object of the deed of trust was to provide security for money borrowed. *Page 230 it should be viewed and treated as a mortgage for the purposes of our present inquiry and decision. This theory is sought to be supported by citations of Maryland cases in which it has been held that the nature of the transaction and the intention of the parties will be considered upon the question as to whether an instrument having the form of a deed should be held to be a mortgage. But those cases did not involve issues like the one now presented. They were mainly concerned with questions relating to the right of redemption by a grantor or subsequent lienor, and to the operation of the usury law upon the agreement which the deed in dispute fulfilled. The question in this case is simply whether an instrument concededly designed to secure a loan, but having the form and effect of a deed of trust, should be classified as a mortgage or as a deed with respect to the statutory provisions that any duly acknowledged deed or conveyance of land, "except deeds or conveyances by way of mortgages," may be recorded after the prescribed six months' period, and when so recorded shall have, as against the grantor, and his heirs or executors, and against all purchasers with notice, and against all creditors who shall become such after the recording of the deed or conveyance, the same validity and effect as if recorded in the time previously limited, and as against all creditors who shall become such before the recording of the instrument, and without notice, it shall have effect only as a contract for the conveyance of the estate to which it refers. Code, art. 21, secs. 19 and 21. The recording of a mortgage after the six months' period does not have a similar effect, as to constructive notice, unless it is recorded pursuant to an order of court, as provided by section 34 of article 16 of the Code. Harding v. Allen, 70 Md. 395;Nally v. Long, 56 Md. 567. It has been definitely decided by this Court that a deed of trust securing an indebtedness is not a mortgage within the meaning of various provisions of the recording statutes. InStanhope v. Dodge, 52 Md. 483, it was held that a deed of trust to secure the payment of promissory notes of the grantor might be recorded after the expiration of six months from *Page 231 its date and would then have the same validity as if recorded within that period. The requirement of section 32 of article 21 of the Code that no mortgage shall be valid, except as between the parties, without an affidavit by the mortgagee as to the consideration, has been held applicable only to technical mortgages and not to deeds of trust. Shidy v. Cutter,54 Md. 677; Snowden v. Pitcher, 45 Md. 265; Carson v. Phelps,40 Md. 96; Stockett v. Holliday, 9 Md. 499; Charles v.Clagett, 3 Md. 82; Stanhope v. Dodge, supra. In Bank ofCommerce v. Lanahan, 45 Md. 396, where the provisions of article 64 (now 66) of the Code relating to the exercise of powers of sale in mortgages were held not to apply to deeds of trust, the distinction between such instruments and technical mortgages was stated by Judge Alvey as follows: "As to the question of the character of the deed, upon careful examination of its provisions, we are of opinion that it is not a technical mortgage, within the contemplation of the Code, art. 64, sec. 5, referred to, but a deed of trust, clearly denominated such by the Code, art. 24, sec. 55. It is a deed of trust to secure debts; and while it has some of the attributes of a mortgage, yet it presents features which distinguish it from that class of security, strictly considered. By the legal, formal mortgage, as distinguished from instruments held to be mortgages by construction of courts of equity, the property is conveyed or assigned by the mortgagor to the mortgagee, in form like that of an absolute legal conveyance, but subject to a proviso or condition by which the conveyance is to become void, or the estate is to be reconveyed, upon payment to the mortgagee of the principal sum secured, with interest, on a day certain; and upon non-performance of this condition, the mortgagee's conditional estate becomes absolute at law, and he may take possession thereof, but it remains redeemable in equity during a certain period under the rules imposed by courts of equity, or by statute." In reference to the deed of trust then under consideration Judge Alvey said: "Upon default of payment, these creditors, as mere cestuis que trust under the deed, could not take possession of the estate and apply the rents and profits to *Page 232 the discharge of their claims; nor have they any right of foreclosure, such as a mortgagee would have under a technical mortgage. Charles v. Clagett, 3 Md. 94, 95. Their only remedy is the enforcement of the trust; and to execute the trust requires the property to be sold." In view of the decisions to which we have referred, and of the principle upon which they were based, we have no difficulty in holding that the deed of trust in this case, though not recorded until the expiration of six and one-half months after its execution, was valid and effective from that time as against all creditors of the grantor who became such after its registration, and that as to all creditors who contracted with the grantor after the date of the deed and before it was recorded, and without notice of its existence, it must be regarded as having the effect of a contract for the conveyance of the property it describes. It does not satisfactorily appear that a substantial portion of the appellants' claims accrued before the recording of the deed of trust on June 3, 1921, and they were not reduced to judgments until January 25, 1923. But if it be assumed that the appellants became creditors of the grantor to the full amount of their claims between the dates of the execution and registration of the deed, and without having notice of it, and if they had obtained judgments on their claims during that period, their rights would be surbordinate to those created by the unrecorded deed as a contract for a conveyance. The effect of such a contract is to vest the equitable ownership of the property in the vendee, subject to the vendor's lien for unpaid purchase money, and to leave only the legal title in the vendor pending the fulfilment of the contract and the formal conveyance of the estate. The right of the vendee to have the title conveyed upon full compliance with the contract of purchase is not impaired by the fact that the vendor, subsequently to the execution of the contract, incurred a debt upon which judgment was recovered. A judgment creditor "stands in the place of his debtor, and he can only take the property of his debtor subject to the equitable charges to which it was liable in the hands of the debtor at the time of the rendition of the judgment." *Page 233 Cramer v. Roderick, 128 Md. 429; Valentine v. Seiss,79 Md. 187. In the cases just cited the precise point now being considered was decided adversely to the present appellants' contention. But it appears also that the Act of 1916, chapter 618, codified as section 21A of article 21 of the Code, would be a bar to the assertion of the appellants' claims against the property conveyed by the deed of trust, since they did not proceed for the enforcement of their claims in the manner and within the period prescribed by that act. The loan secured by the deed of trust with which we are here concerned is said to be usurious. This assertion is disputed, and the right of the appellants to make such an objection is denied. But in reference to this subject it is sufficient to say that the funds produced by the sale under the deed of trust will be insufficient, after the allowance of trustees' commissions and other expenses of the proceeding, to pay the amount admittedly received by the corporate grantor as the result of the negotiation of the promissory notes secured by the deed. This fact would render the charge of usury immaterial, even if the grantor were not a corporation and precluded as such from interposing such a defense (Code, art. 23, sec. 101A), and if the right of the appellants to make the contention were conceded. Usury would not vitiate the entire loan, but the party entitled to plead it would simply be protected against the illegal excess.Chipman v. Farmers Merchants National Bank, 121 Md. 343;Scott v. Leary, 34 Md. 389. Decree affirmed, with costs. *Page 234

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486428/

This is an appeal from an order of the Court of Common Pleas of Baltimore City dismissing the appellant's amended petition for a writ of mandamus against the appellee. The amended petition states that the petitioner is a Virginia corporation, qualified to do business in the State of Maryland; *Page 609 that the business for which it was incorporated and conducted by it is the operation of passenger motor vehicles for hire, in pursuance of which it operates passenger bus lines in interstate commerce only, between Washington, D.C., and Philadelphia, Pa., and between Baltimore, Maryland, and Harrisburg, Pennsylvania; that the schedules of the petitioner's passenger cars on the two routes were filed with the Public Service Commission of Maryland, and the license fees computed and paid on or about January 1st, 1926, for the year 1926, on the basis of the fees required by section 251 of article 56 of the Code, amounting to $6,486.25; that on August 1st, 1926, the petitioners diverted the Harrisburg-Baltimore line to the route between Washington and Baltimore, and on December 9th, 1926, diverted the cars on the Washington-Philadelphia route to the Washington-Baltimore route, leaving unused the license fees for the two portions of the year 1926, $1,206.75, for which demand was made upon the appellee, who is the Commissioner of Motor Vehicles of Maryland, and by him payment was refused. The petitioner further charges that the refusal of the appellee is "improper, unwarranted and a direct burden upon interstate commerce." To this petition the appellee demurred, and it is on Judge O'Dunne's ruling on the petition and demurrer that this appeal is before us. It is provided by section 251 of article 56 of the Code that "it shall be the duty of each owner of a motor vehicle to be used in the public transportation of passengers for hire, operating over State, State Aid, improved county roads, and streets and roads of incorporated towns and cities in the State of Maryland, to secure a permit from the Public Service Commission of Maryland to operate over said roads and streets and present same to the Motor Vehicle Commissioner annually at the time and according to the method and provisions prescribed by law for owners of all other motor vehicles, to make an application in writing for registration with the Commissioner of Motor Vehicles," wherein shall appear the seating capacity of cars to be used and the routes and *Page 610 schedules on which to be run during the ensuing year; and then follows the rate upon which the annual fees to be paid are computed. It is then provided by section 253 that "the license, or registration fees charges under this sub-title shall be on the basis of the entire year, but may be issued on or after the first day of July in any year for the remainder of the year, expiring on the thirty-first day of December, in which event one-half the yearly fee shall be paid. No portion of the license or registration fee paid as aforesaid will be refunded for any part of the year during which said license is not used." The appellant admits in its brief that it changed its routes and diverted its busses without obtaining the approval of the Public Service Commission, although there is a provision in section 253 of article 56 that in case of a change of route during any year for which a certificate has been issued "a proper readjustment of charge shall be made." The petition does not state when the demand on the Motor Vehicle Commissioner was made, but the petition was not filed until in February, 1927, after the expiration of the license year. Nor is there an allegation of any refusal of the Public Service Commission to issue a permit, nor of the Motor Vehicle Commissioner to make a readjustment of charges on account of the changes of routes. So far as the petition discloses, the petitioner stood by and after the year had passed found that it had not used $1,206.57 of its license fees, and then, under a claim of a direct burden upon interstate commerce, asks the court to compel the Motor Vehicle Commissioner to refund the unearned balance. It is well settled that the writ of mandamus is the proper remedy to compel a public officer to perform a ministerial duty, but not to compel the performance of a duty wherein the officer must exercise his discretion. Foote v. Harrington, 129 Md. 123. It is also settled that suits, not maintainable under the Eleventh Amendment to the Constitution of the United States against the government, cannot be enforced circuitously against an executive officer of the state. Reeside v. Walker, 11 Howard, 272; Hagood v. Southern, *Page 611 117 U.S. 52; Smith v. Reeves, 178 U.S. 436; note 44 L.R.A. (N.S.) 189; 5 Ann. Cas. 295. The instant case is clearly an effort to collect money, by mandamus against the Motor Vehicle Commissioner, which has already been paid into the State Treasury under the provisions of section 254 of article 16 of the Code, and which can only be paid out in the manner provided by the Constitution of this State. According to section 33 of article 3, the Legislature cannot pass any special or local law "refunding money paid into the State Treasury * * * unless recommended by the Governor or officers of the Treasury Department," and this Court has held in Foote v.Harrington, supra, that such a recommendation is the exercise of a discretion which cannot be compelled by mandamus, even for taxes paid under a statute declared by the Supreme Court of the United States to have been unconstitutional. After having been paid into the State Treasury, the money here claimed can only be refunded under section 32 of article 3 of the Constitution, which is: "No money shall be drawn from the Treasury of the State by any order or resolution, nor except in accordance with an appropriation by law; and every such law shall distinctly specify the sum appropriated and the object to which it shall be applied"; and it must also be included in a budget bill provided for by section 52 of article 3. Baltimore v. O'Conor,147 Md. 639. It is apparent, therefore, that the only recourse of the appellant is to the Governor or the Treasury Department to recommend the refund, and then to the Legislature to appropriate it. High on Extraordinary Legal Remedies (3rd Ed.), 119, 120. The appellant has cited several instances wherein courts have held mandamus the appropriate remedy to secure a refund of moneys paid in error or excessive fees charged, but the cases cited were against municipal corporations, or officers who were the custodians of the moneys paid, with power to disburse the same. If the appellant had taken advantage of the provisions of section 253 of article 16 for a re-adjustment of unused fees, the situation before us never would have arisen. Bigelow onEstoppel (6th Ed.), 710. *Page 612 The appellant also contends that the tax or license imposed by section 251 of article 56 of the Code is unreasonable and is a burden upon interstate commerce. If this is true, it is likewise a burden upon intrastate commerce, as the license fees are chargeable to residents and non-residents alike, and do not, therefore, offend against the provisions of the equal protection clause of the Constitution of the United States (Fourteenth Amendment). Power Mfg. Co. v. Saunders, 274 U.S. 490; Hendrickv. Maryland, 235 U.S. 610. It has been held by the Supreme Court of the United States inBuck v. Kuykendall, 267 U.S. 307, and in Bush v. Maloy,267 U.S. 323, 69 L. Ed. 627, that a state cannot refuse one engaged in interstate transportation the right or privilege to use the state roads, but in the former case it says: "It may impose fees with a view both to raising funds to defray the cost of supervision and maintenance, and to obtaining compensation for the use of the road facilities provided"; and in Kane v. New Jersey,242 U.S. 160, the Court said: "It is clearly within the discretion of the state to determine whether the compensation for the use of its highways by automobile shall be determined by way of a fee payable annually or semi-annually, or by a toll based on mileage, or otherwise." And in Hendrick v. Maryland, supra, p. 624, the Court says: "In view of the many decisions of this court there can be no serious doubt that where a state at its own expense furnishes special facilities for the use of those engaged in commerce, interstate as well as domestic, it may exact compensation therefor. The amount of the charges and the method of collection are primarily for determination by the state itself, and as long as they are reasonable and are fixed according to some uniform, fair and practical standard, they constitute no burden on interstate commerce." See also Clark v.Poor, 274 U.S. 554. The appellant cites at length an opinion of Judge Ulman in the Baltimore City Court, in a suit between the parties to this case, wherein he held that a mandamus should issue to compel the Motor Vehicle Commissioner to accept an amount calculated upon the actual number of passenger seat miles *Page 613 to be traveled for the last few weeks of the year 1925, instead of for six months from July first. That case was not appealed to this Court, and presents a question not now before us. Because we are of the opinion that the writ of mandamus issued against the appellee would be in effect a judgment against the State, and the petition does not allege facts from which we can assume the license fees to be a burden on interstate commerce, the order appealed from should be affirmed. Order affirmed, with costs to the appellee.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3486429/

On the 18th day of January, 1897, the Maryland Construction Company, through its agent, J.D. McCubbin, Jr., and John Kuper entered into an agreement for the sale by the former to the latter of some lots on Park avenue (formerly called Grundy street) and one on Preston street, in the city of Baltimore. Kuper paid $25.00 on account of the purchase money, which was to be returned in the event that the title should be found to be not marketable. Thirty days was allowed for the examination of the title, upon the completion of which and the execution of a deed for the property the balance of the purchase money was to be paid. Kuper having declined to accept the deed and pay the purchase money, a bill was filed by the appellants for the specific performance of the contract, which, after hearing, was dismissed by the decree of the Court below. From that decree this appeal was taken. Several objections to the title of the lots are urged by the appellee, and it is also contended that there was no mutuality of contract between the parties. We will first consider the latter question. 1. It appears from a petition of the receivers of the Baltimore and Ohio Railroad Company, filed in the Circuit Court of the United States for the District of Maryland, a copy of which is by agreement of counsel made a part of this record, that the Maryland Construction Company undertook the construction of the Baltimore Belt Railroad, which connected the main line of the Baltimore and Ohio Company at Camden station with its Philadelphia branch, near Bay View. The Baltimore and Ohio held all the stock of the construction company and made large advances to it. *Page 540 The construction company acquired a number of parcels of land which it did not convey to the Belt Railroad, and which were not within the right of way of that company, including the lots now in controversy. The United States Court, after hearing the counsel representing various interests affected by the petition, passed a decree authorizing the receivers to issue certificates of indebtedness to an amount not exceeding $956,000.00, to be dated December 1, 1896, payable three years thereafter, and redeemable on the first of June, 1897, or on any interest day thereafter, the proceeds of which were to be applied as therein directed. The decree provided that the receivers, as a condition precedent to the issuance of the certificates, should require the construction company to execute to them an agreement or declaration of trust, acknowledging and agreeing that it did and would hold all its property for the benefit and protection of said receivers and that it would in no case sell or in any way dispose of any of its property without their consent in writing, and that it would upon the request of the receivers sell, lease, convey, transfer, assign or dispose of in any way the whole or any part of said property and assets as the receivers might direct — they being authorized to receive and receipt for all moneys derived from such sales. On the 27th day of November, 1896, the construction company executed the declaration of trust in accordance with that decree, which was duly recorded. It is by reason of it that the appellee contends there was no mutuality o contract, as the agreement for the sale to him was not signed by the receivers, but only by the construction company. The appellee has referred to the cases of Geiger v. Green, 4 Gill, 476; Duvall v. Myers, 2 Md. Ch. 401; Gelston v.Sigmund, 27 Md. 344, and King v. Warfield, 67 Md. 246, in support of his contention. In Geiger v. Green, the Court, after referring to a number of authorities, including the doctrine as stated by LORD REDESDALE in Lawrenson v. Butler, 1 Schoale and Lefroy's Reports, 18, said: "It is now established that unless there is to found in the contract this *Page 541 essential ingredient of mutuality, a Court of Equity will not compel its specific execution." In Duvall v. Myers the Chancellor said: "The right to a specific execution of a contract, so far as this question of mutuality is concerned, depends upon whether the agreement itself is obligatory upon both parties, so that upon the application of either, against the other, the Court would coerce a specific performance." And in the other cases referred to similar expressions are used. But, without in any wise questioning the doctrine as established by them, do they interfere with the right of the construction company to maintain this bill ? By the very terms of this agreement that company has obligated itself to sell and convey the property and the appellee to purchase and pay for it. The uncontradicted evidence shows that Mr. McCubbin was the agent of the company and was authorized to make the sale. There is nothing on the face of the agreement to show lack of mutuality, and "it is obligatory upon both parties." The doctrine announced in the above cases therefore does not prevent the construction company from maintaining its bill for specific performance. It is said, however, that it was not in a position to convey the property by reason of the declaration of trust, and as the receivers were not parties to the agreement there was the lack of mutuality complained of. But the title to the property was not conveyed to the receivers. The company still held the title, and the declaration of trust only prevented it from conveying it, without the consent in writing of the receivers. It, in reality, was no greater incumbrance on the property than a mortgage, for when the indebtedness intended to be thereby secured was paid it had the unquestioned right to be relieved from the effects of its provisions. It was a declaration that it held the property for the security of the debt and was very similar to a mortgage with a provision in it that the mortgagee should have the use and control over the property until the debt was paid. The testimony shows that Mr. McCubbin was also agent of the *Page 542 receivers, and that he was authorized by them to make the agreement. It is true that he does not say whether he had, in advance, that authority in writing, but if that was deemed material the appellee could have asked him the question, but the receivers did unite in the deed that was tendered the appellee, and there is no suggestion in the record that there was ever any question about their willingness to do so. The deed executed by the construction company and the receivers, who thereby gave their consent in writing, if they had not done so before, was tendered to the appellee, and he refused it, giving no other reason for doing so than he thought when he agreed to make the purchase that the two ground-rents were redeemable, and after wards ascertained they were not, but there was nothing in the contract on that subject. There was no objection then made on the ground of lack of mutuality in the contract, or for any defect in the title. While it is true that a vendor must be ready and able to convey a marketable title to the purchaser, it is not necessary that he possess such a title at the time the contract is entered into — provided he shows that he made the contract in good faith and was able to convey it when called upon by his agreement to do so. The great weight of authority is that he is only required to be able to convey it by the time the decree is entered, if time is not of the essence of the contract, and he acts in good faith. Hepburn v. Auld, 5 Cranch, 262; Hepburn v. Dunlop, 1 Wheat, 179;Mason v. Caldwell, 10 Ill. 196; Dresel v. Jordan,104 Mass. 407; Luckett v. Williamson, 37 Mo. 395; Jenkins v.Fahey, 73 N, Y. 355; Oakey v. Cook, 41 N.J, Eq. 350;Miller v. Cameron, 45 N.J. Eq. 95; Guild v. R.R. Company,57 Kan. 70 (s.c. 33 L.R.A. 77); Reformed Dutch Church, v.Mott, 7 Paige, 77, and many other cases cited in 22 Ency. ofLaw, 960. So far as the cases in this State reflect upon the question they are in accord with that view. In Buchanan v.Lorman, 3 Gill 77, it was said: "The ability of the vendor to convey should exist when his duty by the contract *Page 543 arises to convey, or at the time of a decree for a conveyance, where time is not of the essence of the contract." That is repeated in Dorsey v. Hobbs, 10 Md. 417, and again in Foley v. Crow, 37 Md. 59. In Linthicum v. Thomas, 59 Md. 574, the parties had agreed to exchange properties free from incumbrances, except those specified, and Thomas executed a deed, which was without his authority put on record, but Linthicum's property was not clear and he had not acquired the legal title to part of it. Thomas proceeded in equity to have the deed annulled and the agreement declared void. The Court said that Linthicum's title when the bill was filed "was so manifestly defective, that a Court of Equity would not for a moment have considered it such as a purchaser would be bound to accept, in a case of specific performance. * * * As against these bills he could not take the ground that he could have his title ready at the time of thedecree, as is allowed the complainant in a bill for specificperformance." The authorities are therefore ample to establish the doctrine that the mere fact that the vendor's property is encumbered, or his title is defective, at the time the contract of sale is made, will not prevent his enforcing the contract in equity, if he has removed the incumbrance and perfected the title by the time he is required by his contract to convey it, and, generally, when he has acted in good faith relief will be granted him, if he is ready to furnish a clear title at the time of the decree, provided the delay has not prejudiced the purchaser and time is not of the essence of the contract. If this were not so, an owner of land who has incumbrances upon it might pay them off for the purpose of giving the purchaser a clear title and then not be able to enforce the contract of purchase, or he might be subjected to heavy costs in order to have his title cleared and then not be able to require the purchaser to perform his part of the contract. In this case there is no evidence of any difficulty in the way of the construction company giving a clear title (so far as this declaration of trust is concerned), *Page 544 as the receivers had consented to the sale and actually joined in the deed before any objection now urged had been made, so far as known to the company. 2. The first objection to the title is based on two alleged errors in the description of lot No. 3, on the plat filed. [EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.] They arise in the deed from William H. Geiman to the construction company. One of them is that the beginning of the lot is described to be "on the southwest side of Grundy street at the distance of forty-five feet northwesterly from the corner formed by the intersection of the southwest side of Grundy street with the northwest side of Preston street, and at the centre of thedivision wall of the house to be erected on the lot adjoiningthereto, to the northwest thereof." The expression "to the northwest thereof" is what causes the difficulty. If that means a house to be erected on an adjoining *Page 545 lot which is to the northwest of the lot being described, the beginning, instead of being forty-five feet from the corner of Preston and Grundy streets, would be sixty feet, and starting from that point a lot would be described which is entirely beyond the one intended to be conveyed. The beginning cannot be at forty-five feet from the corner of those streets and in a division wall of a house to be erected on the lot northwest of No. 3. There is, therefore, manifestly an error and we must examine the whole description to ascertain, if possible, where the error is and whether it is such a defect as to prevent the property from being marketable. In the first place, the beginning at forty-five feet from the corner of the two streets was a call that could at the time be definitely and accurately ascertained, as the streets were in existence, but the house was "to beerected," and hence is not described as there at the time. If it never was erected it would be impossible to ever start at the centre of the division wall, and hence the beginning as first described is more accurate than the other and should for that reason be followed. But the rest of the description conclusively demonstrates that the beginning as first described is the correct one, for the lines of the deed run "northwesterly binding on Grundy street fifteen feet, thence southwesterly parallel with Preston street sixty-three feet; thence southeasterly parallel with Grundy street fifteen feet to the lot secondly above described, and thence northeasterly binding on said lot andparallel with Preston street, and through the centre of saiddivision wall sixty-three feet to the place of the beginning." It therefore not only shows that the second line of this lot is intended to be only fifteen feet from No. 2, but the last line calls to run not only with that lot, but "through the centre ofsaid division wall to the beginning — thus conclusively showing that the division wall spoken of, in describing the beginning, was the one along the line of lot No. 2. Then again, the last line could not run with lot No. 2 and the division wall, and reach the beginning if the beginning was at the northwest corner of lot No. 3. It is therefore *Page 546 perfectly clear that the beginning was intended to be at the point forty-five feet from the corner of those streets, which point is also the end of the first line of lot No. 2, as will be seen from the description. The second error in this deed is in the third line, which is "thence southeasterly parallel with Grundy street fifteen feet to the lot secondly above described." This lot is supposed to have a depth of sixty-three feet, while No. 2 is only sixty feet — a three-foot alley being taken off — hence it is said that the call "to the lot secondly above described," which is No. 2, requires the line to go to lot No. 2, which would leave a triangular piece of No. 3 out of the conveyance. This objection might be answered by reference to the contract, in which lots Nos. 1, 2 and 3 are described together, as a fee-simple lot adjoining the one on the corner of the two streets, "having a front on Park avenue of about forty-five feet with an even depth of about sixty feet tothe alley above mentioned." The agreement therefore does not require the company to convey a lot of greater depth than from Park avenue to the alley, and if the appellee's construction of this deed is correct the company offered to convey him more than he is really entitled to. That certainly would be no objection to the bill for a specific performance. But is his construction correct? The general rule is that a call to an artificial or natural object prevails over courses and distances when they conflict, and it is for the reason that a call is supposed to be more accurate than courses and distances. But there are no courses given to the lines of this deed, they only give their general direction. This third line is said to run "southeasterly," and that alone might be gratified either by running to the corner of No. 2, or in any other southeasterly direction. But it calls to run "parallel with Grundy street" and it cannot so run if it must go to the corner of No. 2. It is not as if it had said, for example, south sixty degrees east, for in such a description a mistake is easily made, but when it calls to run parallel with a street only sixty-three feet *Page 547 away there is not much room for a mistake, as the street is there. The deed shows that the two short lines of all the lots are intended to be parallel to each other and the two long lines to be also parallel. If, as appears by the plat filed, Grundy street and Preston street are at right angles to each other, all three of the lots in this deed were intended to be parallelograms, and the construction contended for by the appellee would not only be in opposition to the manifest intention of the parties in that respect, but it would leave out of the conveyance a little triangle, three feet wide at the widest point, and would shorten the distance of the last line from sixty-three to sixty feet. As one call must be abandoned — either to run parallel with Grundy street or to go to lot No. 2 — and both cannot be gratified, we must take that which the whole deed shows was evidently the intention of the parties. As was said in Thomas v. Godfrey, 3 G. J. 151, "Where there are two inconsistent expressions or calls, both of which cannot be gratified, but either of which, standing alone, would be imperative, that which appears to be the most certain and most consonant to the intention apparent upon the face of the patent, should, in the construction of it, be preferred, for the same reason that calls are preferred to courses and distances, because more certain. Or, if there is anything on the face of the patent to explain or qualify one of them, so as to show that the other was intended to be the governing or imperative call, it should be so treated." And in Kelso v. Stigar, 75 Md. 392, the Court, through CHIEF JUDGE ALVEY, said: "Now, according to * * * well-established principles of location in this State, as well as elsewhere, where there is manifest error in the grant in regard to descriptions of objects, courses or distances, the Court will inquire into the probabilities of mistake, as to the objects or courses called for, and look to the consequences which would result from rejecting the one or the other. * * * An error of description in a survey, says this Court in Wilson v. Inloes, 6 Gill, 121, 165, 166, adopted *Page 548 in a patent or grant, manifestly founded in mistake or false hood, is insufficient to control other calls and expressions inconsistent therewith, and where the assumption of mistake in a single description, harmonizes all the rest of the grant, the Court will make such assumption." Following those authorities and treating the expression "parallel with Grundy street" as acall (as it is) and not as a mere course, it is as imperative as the call to lot No. 2, and as it "appears to be the most certain and most consonant to the intention appearing upon the face of the deed" it should be preferred and obeyed. 3. The other objection to the title is the error in the third line of lot No. 5. It calls to run "northwesterly parallel with Preston street." A line cannot be run "northwesterly parallelwith Preston street," as that street runs northeasterly andsouthwesterly. As the fourth and fifth lines are "thence southeasterly parallel with Grundy street fifteen feet to the northwest end of said alley, and thence still southeasterly bounding on it and with the use in common thereof forty-five feet to the place of beginning," a northwesterly line from the end of the second line would not close the survey. It is therefore perfectly manifest that "northwesterly," as used in this line, was a mistake and that it should be "northeasterly." The case ofKelso v. Stigar, where it was said that "north" should be read "south" is conclusive of this point. 4. Another objection made is that the contract called for the sale of "about forty-five feet" in the property on Park avenue, and "about sixteen feet" in the lot fronting on Preston street, while there are only forty-four feet on the former street and fifteen feet six inches on the latter. The use of the word "about" indicates that the parties only contracted for a number of feet that would be a near approximation to those mentioned, and negatives the conclusion that entire precision was intended. The difference is not sufficient to justify the Court in disturbing the contract. Baltimore Per. B. . L. Society v.Smith, 54 Md. 187; 1 Ency. of Law, (2nd Ed.) 196. *Page 549 It was suggested at the argument that considerable time had elapsed since the contract was made, that the property was not worth the price agreed to be paid, except for the immediate use the appellee had for it, and that the change in the mechanics' lien law, as applicable to Baltimore city, had put an entirely different aspect on such a deal by a builder. But there is absolutely nothing in the record to show that the company was in any way responsible for the delay, and what we have already said of the title sufficiently indicates our views as to the reasonableness of those objections. Indeed, as we have seen, none of those objections were made to the representatives of the company when he called on the appellee for the performance of the contract and tendered the deed. There have been so many cases in this Court on the subject of specific performance, that it would be useless to attempt to cite many of them, but if it be conceded that there was any doubt as to the title to any part of the property, the case of Levy v. Iroquois Co., 80 Md. 300 is applicable. It was there said, "it is not every doubt or suggestion, or even threat of contest that will be sufficient" to defeat a demand for specific performance of a contract to buy, but the doubt must be a reasonable one; "otherwise an assailing purchaser might in every case raise or make such an objection." The decree will be reversed and the cause remanded in order that a decree may be passed requiring the appellee to perform his contract. Decree reversed and cause remanded, costs to be paid by theappellee. (Decided January 10th, 1900). *Page 550

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07-05-2016

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The appellant gave notice to Chester M. George, prosecuting attorney for the Sixty-fifth Judicial Circuit, on June 28, 1927, which notice was acknowledged by the prosecuting attorney on the same day that he would appeal to the Supreme Court of Indiana from the judgment rendered against him in the Rush Circuit Court on June 28, 1927. The transcript was filed in the Supreme Court on September 23, 1927. It was necessary that the transcript be filed within sixty days after the appeal was taken. Acts 1927, ch. 132, p. 411, § 16. Upon the authority of Dudley v. State (1928), 200 Ind. 398, 161 N.E. 1, the appeal is dismissed. *Page 312

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07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427254/

ON PETITION FOR REHEARING The appellant in its brief on petition for rehearing urges that this court should have reversed the award with instructions to enter an award in favor of appellant, and the suggestion is also contained in appellee's brief of a possibility of a need for the clarification of the mandate of this court in the original opinion as to any further proceedings before the Industrial Board. The mandate of this court as set forth in the original opinion was the only proper mandate which this court has the power and authority to make under the conclusions reached on the issues. Our Supreme Court in the case of Heflin v. Red Front Cash Carry Stores (1947), 225 Ind. 517, 75 N.E.2d 662, stated on page 665: ". . . The right of the Appellate Court to review an award of the Industrial Board is given by § 40-1512, Burns' 1940 Replacement. Under this statute the review is for errors of law. This statute merely gives the Appellate Court authority to determine whether, upon the facts and law, the action of the board is based upon an error of law or is wholly unsupported by the evidence or clearly arbitrary or capricious. This particular statute does not empower the Appellate Court to order the board to enter an award. By this statute the legislature did not undertake to vest in the court the administrative function of determining whether or not an award should be granted," citing Ma-King Products Company v. David H. Blair (1925), 271 U.S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; 1 Vom Baur, Federal Administrative Law, § 44; Russell v. Ely Walker Dry Goods Co. (1933), 332 Mo. 645, 60 S.W.2d 44, 87 A.L.R. 953; King v. Alabam's Freight Co. (1932), 40 Ariz. 363, 12 P.2d 294; Paramount Pictures, etc. v. Industrial Commission (1940), 56 Ariz. 217, (Opinion on Rehearing 56 Ariz. *Page 228 352) 106 P.2d 1024; McGarry v. Industrial Commission (1925), 64 Utah 592, 232 P. 1090, 39 A.L.R. 306; Cole v. Sheehan Construction Co. (1944), 222 Ind. 274, 53 N.E.2d 172; Cole v. Sheehan Construction Co. (1944), 115 Ind. App. 303, 57 N.E.2d 625; 42 Am. Jur., Public Administrative Law, § 247. In the Heflin case, supra, the Appellate Court had reversed an award of the Industrial Board with instructions to said Board to enter an award in favor of the appellant. The Supreme Court upon transfer of this case held that this mandate was improper in the following language: "It is our opinion that upon the reversal of this award the cause should be remanded to the Industrial Board of Indiana and upon its being so remanded the board should have the right to proceed with the same in a manner not inconsistent with the views herein expressed. If the present mandate were allowed to stand it would preclude the board from hearing further evidence if it so desired or from taking any steps other than to enter a final award. This would be an invasion of the normal rights and duties which said board has prior to the making of any award. It is idle to assume that the board would disregard the directions of the reviewing court. `For purposes of judicial finality there is no more reason for assuming that a Commission will disregard the direction of a reviewing court than that a lower court will do so.' Federal Power Comm. v. Pacific Power L. Co. (1938), 307 U.S. 156, 59 S. Ct. 766, 768, 83 L. Ed. 1180, 1183." (Our emphasis). Under the foregoing decision of the Supreme Court it would appear that the board has the power and authority to hear further evidence as to the average weekly wage of appellee's 14. decedent or to take such other steps not inconsistent with *Page 229 our original opinion which it deems proper under the circumstances. Petition for rehearing denied. NOTE. — Petition for Rehearing reported in 85 N.E.2d 263.

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07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427259/

This was an action brought by the appellant against the appellee to recover for the value of legal services alleged to have been rendered by the appellant to the appellee as guardian of Kenneth P. Wilson, a minor. The complaint was in one paragraph, to which was attached as an exhibit a detailed statement *Page 404 of the items for which recovery was sought. There were four paragraphs of answer filed, the first of which was a general denial, the second a plea of payment, the third a plea of former adjudication and the fourth an answer based upon laches. This last paragraph of answer was filed after all the evidence had been heard and over the objection and exception of appellant. To the third paragraph of answer, the appellant filed a demurrer, which was overruled and an exception taken. The appellant then filed a reply in general denial to the second and third paragraphs of answer. The cause was submitted to the court for trial without a jury. After all of the evidence had been heard, the court, as previously stated, permitted the appellee, over the objection of the appellant, to file the fourth paragraph of answer. The appellant moved to strike from the files the said fourth paragraph of answer. This motion was overruled, whereupon the appellant also moved to set aside the submission, which motion was also overruled. There was a general finding for the appellee, upon which the court rendered judgment. A motion for a new trial was seasonably filed and overruled and this appeal prayed and perfected. The errors assigned and relied upon for reversal that require consideration are: (1) Error in overruling the appellant's motion for a new trial which states, as causes, that the decision of the court is not sustained by sufficient evidence and is contrary to law, and also predicates error in the admission of certain evidence; (2) alleged error of the court: In overruling the appellant's motion to strike from the files the appellee's fourth paragraph of answer; in not granting time for the appellant to prepare and file a demurrer to said paragraph of answer; in not granting a continuance to the appellant to enable him to prepare for the defense of the alleged new cause of defense set up in said fourth *Page 405 paragraph of answer; and in not setting aside the submission of the cause after said fourth paragraph of answer was filed. These alleged errors will be considered together. (3) Alleged error of the court in overruling the appellant's demurrer to the appellee's third paragraph of answer. The said third paragraph of answer is as follows: "For third and additional paragraph of answer the defendant alleges that before the commencement of this action plaintiff filed 1, 2. his action in the Marion Superior Court, being Cause No. A-45287, wherein he sued on account against this defendant for the sum of $600.00 and filed therewith his bill of particulars; that on said complaint issues were drawn, trial was had, and on the 17th day of December 1928, court rendered judgment against this defendant in the sum of $300.00; that on the 29th day of January 1929, said judgment was fully paid and satisfied and the proceeds thereof received by said Haley, the plaintiff herein. That all of the items sued on in this cause of action were a part of and included in the account sued on in said cause of action in the Marion Superior Court and were fully determined and adjudicated in said proceedings. Wherefore, defendant asks that plaintiff take nothing by his complaint." The demurrer was for want of sufficient facts. In our opinion, the facts, which are set out in the paragraph of answer in question, if true, would constitute a good cause of defense and there was no error in overruling the demurrer addressed thereto. The principles of res judicata can ordinarily be invoked where there has been a suit, a final judgment, identity of subject-matter and identity of parties. Tested by the above rule, the paragraph of answer in question appears upon its face to be sufficient. Jones v. Vert (1889), 121 Ind. 140, 22 N.E. 882, 16 Am. St. 379; Burrell v. Jean (1925), 196 Ind. 187,146 N.E. 754. *Page 406 The fourth paragraph of answer is as follows: "For fourth and additional paragraph of answer the defendant admits that the plaintiff was employed by this defendant to render to him and others certain professional services in connection with the guardianship of Kenneth Wilson and that certain services were rendered in connection therewith, but defendant further alleges that all of said services were connected with services rendered at the same time in connection with the estate of one Canzada E. Faller, deceased; that plaintiff was employed on behalf of this defendant and also on behalf of his sister, Helen Wilson Howard, and his brother, Kenneth Wilson; that shorty after plaintiff was engaged his services were found to be unsatisfactory and they were terminated on the — day of April 1926, and plaintiff was then requested by the defendant to render his separate bill covering his services rendered on account of said estate and on account of said guardianship matter. That plaintiff failed and neglected to render any statement on account of his services in said guardianship and the subject-matter of this cause of action until long after said guardianship had been closed, this defendant discharged as guardian and the situation of the parties changed to the extent where it was no longer possible for this defendant to recoup himself for said services from said other parties or to make claim for such services in said guardianship matter then pending in the Elkhart Circuit Court. That no claim was made against this defendant on said account until shortly before suit thereon was filed in the Marion Circuit Court on the 10th day of June 1929; that prior to said time defendant had no knowledge from the plaintiff that he intended to make any claim against this defendant on said account. "That this plaintiff neglected to bring or file his claim against this defendant at a time when this defendant *Page 407 could have recouped himself for the same in said guardianship or from said other parties; that said delay resulted in a material alteration of the status of the parties to this defendant's disadvantage. That this plaintiff was in full knowledge of all of the facts herein alleged and neglected and failed to file any claim on account of any guardianship services within a reasonable time in which the rights of this defendant might not have been prejudiced. Wherefore defendant asks that the plaintiff take nothing by his complaint." This paragraph of answer was filed to make the pleadings conform to the evidence and no new evidence was introduced in support thereof. We believe, under the circumstances, no 3, 4. error was committed in permitting it to be filed. There was competent evidence unobjected to tending to sustain each allegation of the paragraph. Section 423 Burns 1926 provides, among other things: "After trial and before final judgment, the court may, in its discretion, and upon such terms as may be deemed proper for the furtherance of justice, order that any pleading be amended by correcting any mistake in name, description, legal effect, or in any other respect, or by inserting, striking out or modifying any material allegation in order that the pleadings may conform to the facts proved, where the amendment will not deprive a party of any substantial rights," etc. The rule is well established in Indiana that the trial court may use its discretion in granting or refusing permission to amend pleadings after trial and before final judgment and, unless there is clearly shown an abuse of such discretion, by which the complaining party is harmed and his substantial rights taken from him, this court will not interfere.Portland, etc., Mach. Co. v. Gibson (1916), 184 Ind. 342, 111 N.E. 184; Raymond v. Wathen (1895), 142 Ind. 367, 41 N.E. 815; Indianapolis Traction, etc., Co. v. Formes *Page 408 (1907), 40 Ind. App. 202, 80 N.E. 872; Gates v. Weyenberg (1915), 60 Ind. App. 241, 110 N.E. 227. We do not see how the appellant was harmed by the action of the trial court in any of the matters complained of in respect to the said fourth paragraph of answer and we believe there was no abuse of the discretion vested in the trial court. This fourth paragraph of answer, in our opinion, states facts, which if true, are sufficient to constitute a cause of defense. It was, therefore, sufficient to withstand a demurrer had one been addressed to it. The record before us does not disclose that the appellant made any request to be allowed to introduce any evidence to controvert the allegations of the paragraph of answer in question. From the very nature of the case, any such evidence must necessarily have been peculiarly within the knowledge of the appellant. There was evidence before the court from which it was reasonable to conclude that the appellant was fully aware of the matters involved in the guardianship and that, for more than three years, no statement was sent by him to the appellee for the value of the services alleged to have been rendered by him, and, in the meantime, the guardianship had been closed and no funds were left available with which to pay the account sued upon. Under such circumstances, the case of Citizens Nat. Bank v. Judy (1896),146 Ind. 322, 43 N.E. 259, seems applicable, wherein the court quotes from Lindsay Petroleum Co. v. Hurd, L.R. 5, P.C. 221, as follows: "`Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy *Page 409 were afterwards to be asserted, in either of these cases, lapse of time and delay are most material.'" From our examination of the record, we believe there was no reversible error in the admission of evidence. Some of the evidence was also in conflict, but it is needless to say 5. that this court will not weigh conflicting evidence and substitute its judgment thereon for the judgment of the trial court. It is our opinion that there is ample evidence to sustain the decision of the court and that the decision is not contrary to law. We find no reversible error. Judgment affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427353/

Appellant was indicted and convicted in the court below of perjury. § 2577 Burns 1926, Acts 1905 p. 584, § 475. The evidence adduced at the trial is not before us. The only error assigned necessary for us to consider is the overruling of the motion to quash the indictment, which, in substance, charged that on September 25, 1923, appellant willfully, corruptly, falsely, unlawfully and feloniously did make his voluntary affidavit before Ralph M. Spaan, a notary public, stating that he was the absolute owner in his own right of all the property described in a bill of sale attached thereto, and that there were "no legal or equitable mortgages, liens, rights or claims of any kind outstanding against any of said property. This affidavit is made for the purpose of inducing Ilie Jutariu to purchase said goods." The bill of sale described the property as consisting of stock and fixtures located at 511 W. Washington Street in the city of Indianapolis and used to conduct a poolroom, cigar and soft drink stand; that appellant knew at the time he made the affidavit that the property described in the "bill of sale was not free from legal and equitable liens, rights and claims, the said Ben Rothchild well knowing at the time said voluntary affidavit was by him made that a certain judgment had been rendered against him" in favor of one Lewis Baum in Room 4, superior court of Marion County, for the sum of $517.56, which judgment had never been satisfied and was then and there in full force and effect, and "constituted a valid lien on said stock and fixtures, as set out in said bill of sale." Appellant insists that the offense, if any, charged in the indictment, depends upon whether or not the Baum *Page 503 judgment was a valid lien on his stock and fixtures described in the bill of sale. A judgment without an execution in the hands of an officer authorized to execute it is not a lien on personal property. § 754 Burns 1926; Richardson v. Seybold (1881), 76 1, 2. Ind. 58. We must assume that the pleader stated his case as strongly as the facts would warrant. There was no attempt to plead any lien, right or claim outstanding against the property other than that resulting from the judgment. It would seem from the allegations of the indictment that the pleader was under the impression that a valid judgment, as a matter of law, constituted a lien on personalty, but such is not the law. Personal property alone was described in the bill of sale, and which appellant, under oath, declared to be free of all "legal or equitable mortgages, liens, rights or claims of any kind outstanding against any of said property." Looking to the allegations of the indictment, we would inquire wherein is the affidavit shown to be false? The state answers that the subject-matter of the sale was the stock and fixtures constituting the business of appellant and within the provisions of the Bulk Sales Law (§§ 8052-8054 Burns 1926, Acts 1909 p. 122, ch. 49), and under this law the judgment creditor had a legal or equitable claim, lien or right in the property, and the seller's affidavit to the contrary is perjury. There are no facts in the affidavit, bill of sale or the indictment showing or even indicating that either the seller or purchaser of the merchandise and fixtures had any thought 3-4. of the Bulk Sales Law. The affidavit alleged to be false does not mention or refer to creditors of appellant, or use language which would refute the thought of no personal liability of appellant to third persons or even to creditors for merchandise or fixtures, bought by him and included in the bill *Page 504 of sale. A bulk sale of merchandise and fixtures as in the instant case, is void as against creditors of the seller unless there is a compliance with the Bulk Sales Statute, which charges not only the seller but the purchaser as well with certain duties, that is to say: (1) The seller and purchaser shall, at least five days before consummating the sale, make a full detailed inventory showing the quantity and, so far as possible with the exercise of reasonable diligence, the cost price to the seller of each article to be included in the sale; (2) the purchaser shall demand and receive from the seller a written list of names and addresses of the creditors of the seller, with the amount of indebtedness due or owing to each, and certified by the seller under oath to be a full, accurate and complete list of his creditors and of his indebtedness; and (3) the purchaser, at least five days before taking possession of such merchandise and fixtures, or paying therefor, shall notify personally or by registered mail every creditor whose name and address is stated in the list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof. The purchaser, failing to conform to the provisions of this statute, shall, upon application of any of the creditors of the seller, become a receiver and be held accountable to such creditors for all the goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale. The object of the law evidently is for the protection of the seller's creditors, and, being in derogation of the common law, it must be strictly construed. 12 R.C.L. 525, § 54; Smith v. Boyer (1921),119 S.C. 176, 112 S.E. 71, 41 A.L.R. 1466; Blanchard Co. v. Ward (1923), 124 Wash. 204, 213 P. 929, 33 A.L.R. 1211; Nichols,North, Buse Co. v. Belgium Cannery (1925), 188 Wis. 115, 205 N.W. 804, 41 A.L.R. 1211; Harrison v. Riddell (1922),64 Mont. 466, 210 P. 460. It expressly provides the procedure *Page 505 to be followed by the purchaser, and his nonconformity therewith makes the transfer invalid at the instance of a creditor and for whose account alone the purchaser holds the property as a receiver. George Kraft Co. v. Heller (1919), 188 Ind. 612, 125 N.E. 209; Peck v. Hibben (1916), 185 Ind. 623, 114 N.E. 216. It is noncompliance with the statute that renders the sale voidable and not void, for, as between the parties, the sale is valid with title passing to the purchaser, where it remains until divested by proceedings instituted by any creditor of the seller for that purpose. Newman v. Garfield (1918), 93 Vt. 16, 104 A. 881, 5 A.L.R. 1507; Douglass-Fir Lumber Co. v. StarLumber Co. (1921), 27 N.M. 403, 201 P. 867, 41 A.L.R. 1474;Burnett v. Trimmell (1918), 103 Kan. 130, 173 P. 6, L.R.A. 1918E 1058. Hence, we hold that, prior to the consummation of a bulk sale, as here, a judgment creditor, in the absence of an execution in the hands of an officer or other nonlien-holding 5, 6. creditor, has no lien, right or claim by virtue of our Bulk Sales Law against the personal property of the seller. So that the allegation in the indictment that the properties mentioned in the "bill of sale were not free from legal and equitable liens, rights and claims, the said Ben Rothchild well knowing at the time said voluntary affidavit was by him made, that a certain judgment had been rendered against him . . . which has never been satisfied and is in full force and effect," is insufficient to charge an offense within the definition: "Whoever willfully, corruptly and falsely, before any officer authorized to administer oaths, under oath or affirmation, voluntarily makes any false oath, affidavit or statement of any nature, for any purpose, shall be deemed guilty of perjury." § 2577, supra. The court erred in refusing to quash the indictment. Judgment reversed. *Page 506

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/7247120/

JON E. DEGUILIO, Judge, United States District Court This case arises under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. In response to a cost recovery claim filed by Valbruna Slater Steel Corporation and Fort Wayne Steel Corporation (collectively, "Valbruna"), Joslyn Manufacturing Company, Joslyn Corporation, and Joslyn Manufacturing Company, LLC (collectively, "Joslyn"), filed a contribution counterclaim under § 113(f). The Court heard that counterclaim in Phase II of a bench trial on June 12, 2017, and now enters its findings of fact and conclusions of law as to the same. BACKGROUND This environmental litigation has endured for more than seven years. To summarize briefly, Valbruna owns a contaminated steel processing site, which it has spent a considerable sum to remediate. To recover its cleanup expenses under § 107(a), it sued Joslyn, which used to own the site for fifty plus years. The Court adjudicated that claim at Phase I of trial, finding Joslyn strictly liable to Valbruna for $2,029,871.09 in costs. The Court further disallowed $181,380.83 in costs, determining that they were not necessary and/or were not consistent with the National Contingency Plan. [DE 175]. The resolution of that claim does not, however, end this matter. A defendant in a § 107(a) suit can "blunt any inequitable distribution of costs by filing a § 113(f) counterclaim," which requires "the equitable apportionment of costs among the liable parties, including the PRP that filed the § 107(a) action." United States v. Atl. Research Corp. , 551 U.S. 128, 140, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). Joslyn *1196took such a course here, thereby requiring it to bear the burden of proof in demonstrating an entitlement to contribution. NCR Corp. v. George A. Whiting Paper Co. , 768 F.3d 682, 690 (7th Cir. 2014). Since the parties agree that the prima facie case has been satisfied as to liability under § 107 [DE 161], it remains only for the Court to equitably allocate costs under § 113(f). To that end, the Court held Phase II of trial on contribution issues on June 12, 2017. Based upon its consideration of the testimony at trial and the other evidence submitted by the parties, the Court now enters the following conclusions of law and findings of fact pursuant to Federal Rule of Civil Procedure 52 : FACTS The parties stipulated to the following facts: 1. From 1928 to 1981, Joslyn owned property located at what is presently identified as 2302 and 2400 Taylor Street f/k/a 1701 McKinley Avenue in Fort Wayne, Indiana (collectively, "Site") and operated a steel manufacturing facility on the Site ("Steel Facility") for all of those years. 2. On February 2, 1981, Joslyn sold the Site and Steel Facility to Slater Steel Corporation ("Slater"). 3. In June 2003, Slater filed a Chapter 11 bankruptcy petition in the U.S. Bankruptcy Court for the District of Delaware ("Slater Bankruptcy"). 4. The soil and groundwater at and around the Site are contaminated with numerous hazardous substances, including chlorinated organic chemicals (e.g., TCE), semi-volatile organic chemicals, heavy metals, PCBs and radioactive elements related to historical operations at the Site. 5. Valbruna acquired the Site in April 2004 following an auction conducted as part of the Slater Bankruptcy. 6. FWSC acquired that portion of the Site presently identified as 2302 Taylor Street ("2302 Property"), and VSSC acquired that portion of the Site presently identified as 2400 Taylor Street ("2400 Property"). 7. In April 2004, Valbruna and the Indiana Department of Environmental Management ("IDEM") entered into a Prospective Purchasers Agreement ("PPA"), which required Valbruna to spend approximately $1 million on Site investigation and remediation work in response to pre-existing contamination at and from the Site. Valbruna contributed $500,000 of the $1 million. 8. From 2005 to 2006, Valbruna conducted Electrical Resistance Heating ("ERH") utilizing the PPA funds to address volatile organic compound impacts at a portion of the Site where degreasing operations had historically occurred. 9. In June 2006, the U.S. Environmental Protection Agency ("EPA") inspected the Site in relation to its historical contamination issues. 10. By letter dated November 1, 2007, IDEM issued a Risk Assessment Review outlining the Site's remaining areas of environmental concern after the ERH work. 11. In 2008, VSSC and FWSC each entered their respective portions of the Site into IDEM's Voluntary Remediation Program ("VRP"). 12. As part of participating in VRP, the applicants (VSSC and FWSC) and IDEM entered into separate Voluntary Remediation Agreements in March 2011. 13. Valbruna has never operated a melt shop at the Site or conducted any manufacturing operations at the 2302 Property. 14. Valbruna currently operates a steel rolling facility at the 2400 Property. *1197[DE 163 at 5-6]. The Court will set forth additional facts as they are relevant to its analysis below. Most of the evidence at trial was undisputed, though the Court also notes and explains its resolution of factual conflicts where necessary. ANALYSIS In allocating costs under § 113(f), the Court has "broad and loose" authority both in deciding which equitable factors will inform its decision and in the ultimate cost allocation determination. NCR , 768 F.3d at 695. In determining the relative contribution of the parties, courts must look to the "totality of the circumstances." Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co. , 14 F.3d 321, 326 (7th Cir. 1994) (reversing for failure to show an awareness of certain relevant factors before arriving at an equitable conclusion based on the record). Courts often consider the Gore factors, though are not restricted to them. Envtl. Transp. Sys., Inc. v. ENSCO, Inc. , 969 F.2d 503, 508 (7th Cir. 1992) ; Lockheed Martin Corp. v. United States , 35 F.Supp.3d 92, 123 (D.D.C. 2014), aff'd , 833 F.3d 225 (D.C. Cir. 2016). Courts may also consider traditional equitable defenses in contribution, even though they do not bar liability under CERCLA. Town of Munster, Ind. v. Sherwin-Williams Co. , 27 F.3d 1268, 1270 (7th Cir. 1994). Valbruna argues principally for the application of the Gore factors. These are: (1) the ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished; (2) the amount of the hazardous waste involved; (3) the degree of toxicity of the hazardous waste involved; (4) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste; (5) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and (6) the degree of cooperation by the parties with Federal, State or local officials to prevent any harm to the public health or the environment. ENSCO , 969 F.2d at 508. These factors underscore a central consideration in this matter: while Joslyn contaminated the Site extensively and over a prolonged period, Valbruna did not pollute at all. Indeed, as cases cited by Valbruna demonstrate, courts have often permitted non-polluting landowners to recover all of their cleanup costs from polluting prior owners. See, e.g. , NutraSweet Co. v. X-L Eng'g Co. , 227 F.3d 776 (7th Cir. 2000) ; PMC, Inc. v. Sherwin-Williams Co. , 151 F.3d 610 (7th Cir. 1998) ; Franklin Cty. Convention Facilities Auth. v. Am. Premier Underwriters, Inc. , 240 F.3d 534 (6th Cir. 2001) ; Padgett Bros. LLC v. A.L. Ross & Sons, Inc. , No. 1:10-CV-00858, 2014 WL 3547353 (S.D. Ind. July 17, 2014) ; see also Burlington N. & S.F.R. Co. v. United States , 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) (stating that CERCLA was designed to ensure that the costs of cleaning up hazardous waste sites "were borne by those responsible for the contamination") (internal quotation marks omitted); Litgo New Jersey Inc. v. Comm'r New Jersey Dep't of Envtl. Prot. , 725 F.3d 369, 389 (3d Cir. 2013) (noting cases that have reasonably allocated a substantial portion of costs to parties that were directly responsible for releasing waste). But while Joslyn's status as the sole polluting party in this case is entitled to substantial weight, the Court does not regard it as entirely controlling. This case *1198involves a unique blend of equitable factors (including several counterarguments raised by Joslyn discussed below) that are not replicated in any of the cases cited above. See NCR , 768 F.3d at 696 (noting that contribution is a "fact-intensive inquiry" that is "particularly suited to case-by-case analysis") (internal quotation marks omitted). The cases cited by Valbruna are also distinguishable in that they involve plaintiffs that did not knowingly acquire contaminated property or plaintiffs that acquired property under an agreement that the prior owner would remain liable for environmental issues. NutraSweet , 227 F.3d 776 (contamination came from a neighboring landowner that dumped contaminants on the plaintiffs' property while the plaintiffs owned it); PMC , 151 F.3d 610 (prior owner retained environmental liabilities in contract of sale); Franklin Cty. , 240 F.3d 534 (landowner purchased property unaware that it contained a buried box filled with contaminants and the prior owner agreed to remain responsible for any "claims which may affect ... any portion of the premises"); Padgett Bros. , 2014 WL 3547353, at *1 (landowners "never used chlorinated solvents at the Site, purchased the Site with no actual knowledge of the contamination, and ... cooperated with IDEM in cleaning up the contamination"). In contrast, Valbruna was well aware that the Site suffered from serious environmental issues prior to purchasing it.1 It also bought the Site at a bankruptcy sale without any guarantees from Joslyn.2 Accordingly, though the Court gives substantial weight to the fact that Joslyn polluted and Valbruna did not, other equitable factors also merit consideration. The sixth Gore factor supports Valbruna as well. All evidence suggests that Valbruna has promptly and efficaciously cooperated with IDEM in cleaning up the Site. First, it contributed to the escrow account and engaged in TCE remediation under the PPA. Then, after it became apparent that the escrow funds would not suffice to remediate the Site, Valbruna enrolled the Site in IDEM's VRP and funded further cleanup efforts (albeit under the specter of EPA liability). In contrast, Joslyn has taken no steps to clean up the Site and has refused Valbruna's requests for assistance. That is significant, see Franklin Cty. , 240 F.3d at 549 (affirming cost allocation that weighed polluter's rejection of landowner's requests for cleanup assistance), though it is partially tempered by the fact that (as Joslyn argues) no government agency ever requested Joslyn's participation, see NCR , 768 F.3d at 702 (noting cooperation with *1199government cleanup effort as potentially relevant to the contribution decision), and Joslyn never attempted to hide the property's contaminated condition. Beyond this, the Gore factors are of limited utility in this case.3 They focus primarily on apportioning liability between two or more polluting parties, which is not a circumstance presented here. Further, while the parties agree Slater (which bought the Site from Joslyn and then sold it to Valbruna in a bankruptcy sale) also contaminated the Site, there is no evidence that sheds light on Slater's contributions relative to Joslyn's.4 Accordingly, the Court turns to remaining equitable considerations not reflected by the Gore factors. Most notably, Joslyn raises windfall and caveat emptor arguments, now more prominently referred to in their proposed findings [DE 181] as "assumption of risk." As to the former, it is generally true that "when a buyer knows of a cleanup liability prior to purchase, proper allocation under the equitable factors of § 113(f)(1) requires that the PRP buyer not be relieved of the entire expense of cleanup." W. Properties Serv. Corp. v. Shell Oil Co. , 358 F.3d 678, 691 (9th Cir. 2004), abrogated on other grounds , Kotrous v. Goss-Jewett Co. of N. Cal. , 523 F.3d 924 (9th Cir. 2008) ; accord Smith Land & Imp. Corp. v. Celotex Corp. , 851 F.2d 86, 90 (3d Cir. 1988) ("if the tract's price is reduced to allow for future environmental cleanup claims, the purchaser should not be entitled to double compensation"). Accordingly, Joslyn says that permitting Valbruna to recover its cleanup costs would amount to a double recovery, since Valbruna already received a price break when it knowingly bought contaminated property and essentially assumed the risks involved with the possibility of future cleanup requirements and costs. Valbruna clearly knew the Site suffered from serious environmental problems before purchasing it (and thus, as Joslyn contends, foresaw the need for some cleanup), although Valbruna argues it was unaware of the full extent of contamination. [DE 180 at ¶ 20]. The Site had previously been the subject of an IDEM action against Slater [Exb. 37] and Keramida's subsequent environmental investigation and Remedial Work Plan [Exbs. 103, 105]-and much of those findings were set forth in the PPA that Valbruna signed. [Exb. 3 at 2]. Further, that agreement indicated that the Site was contaminated with "chlorinated hydrocarbons, polychlorinated biphenyls, metals, and semi-volatile organic compounds in soil, sediment and groundwater." [Exb. 3 at 2; DE 181 at ¶ 28]. It also warned that environmental liability threatened to prohibit a timely sale of the property. [Exb. 3 at 3]. Moreover, Valbruna conducted substantial environmental due diligence before closing on the Site, including Phase I and Phase II environmental assessments. [DE 181 at ¶¶ 24-26]. And after closing on the Site, Valbruna hired Slater's environmental manager, who had also been employed by the Trustee of Slater's bankruptcy. Given Valbruna's knowledge of numerous contaminants *1200present (the degree of which was not entirely clear), Valbruna divided ownership of the Site between two corporate entities to provide an additional measure of protection against potential environmental liability which Valter Viero, Secretary of the plaintiff entities, characterized as "not very probable." [Exb. 10,560; DE 169 at 67, 94; DE 181 at ¶¶ 34-39]. These environmental issues were almost certainly reflected in the Site's sale price to some degree. See Shell Oil , 358 F.3d at 691 ("No sensible person would pay as much for a property with a known liability as for one without, whether the price expressly discounted for the cleanup or not."). However, it is difficult to determine the extent of that discount. Joslyn has not provided any direct evidence of what the Site would have been worth without an environmental cloud hanging over it. For instance, they provide no valuation appraisal relative to the time of purchase. [DE 180 at ¶ 45]. It points only to two insurance policies Valbruna obtained after the sale (one negotiated in April 2004 which purportedly never came into effect and a second that became effective in June 2004), which assessed the Site's buildings and equipment at a replacement cost of approximately $80 million. [DE 179 at 49, 54]. As Mr. Viero repeatedly testified, though, the cost of replacing buildings and equipment can be much higher than their actual value. See, e.g. , [DE 179 at 52]. Valbruna also may have insured the Site for more than it was worth at the time of sale, as it subsequently spent significant funds to restore the plant from its idle state to operable condition. [DE 179 at 61-62, 78]. Indeed, with or without environmental liability, it appears unlikely that the Site was worth anywhere close to $80 million at the time it was sold, as prospective buyers were unwilling to purchase it from Slater for $20-30 million in late 2003, when the facility was operating and before it sat vacant over the winter months potentially without proper winterizing. [DE 179 at 39]. Further, as Valbruna argues in support of its contention that it paid fair market value for the Site [DE 180 at ¶ 45], Valbruna acquired the idled Site in a competitive auction, where its winning $6.4 million bid was just $100,000 more than that of its nearest competitor, an entity also experienced in steel production and the purchase of similar idle steel facilities. Moreover, with a team of experienced environmental businessmen and lawyers assisting Valbruna [DE 181 at ¶¶ 12-23], it would lack common sense to believe that Valbruna didn't anticipate availing itself of the laws allowing it to recover cleanup costs from those parties actually responsible for releasing the hazardous wastes onto the Site-thus, making savvy purchasers like Valbruna and its nearest competitor more willing to pay closer to market value. Thus, these facts support the determination that the fair market value was something closer to the actual price paid, rather than the amount insured to replace an updated and operating facility. Two other considerations make it even more difficult to determine the extent to which environmental issues affected the Site's sale price. First, it appears that the full scope of contamination was not evident at the time of the sale.5 Most notably, a Remedial Work Plan reviewed by Valbruna's environmental consultant before closing did not reveal detectable PCB levels in the junk ditch region of the Site (though it did recommend additional tests in light of "laboratory detection limits in excess of *1201ecological screening levels"). [DE 179 at 110-120; Exb. 10,105 at VAL002463-64, VAL002466, VAL003005, VAL003016; Exb. 1 at VAL003652]. It later became apparent that the junk ditch was contaminated with PCBs at a level unacceptable to IDEM and would require remediation. See, e.g. , [DE 169 at 151, 154-55; DE 170 at 84; Exb. 8 at 4].6 Second, the PPA protected Valbruna from further action by IDEM once the $1 million escrow was depleted. Valbruna may thus have reasonably concluded that its environmental exposure was limited and priced that consideration into its bid. Indeed, Mr. Viero testified that he was "shocked" when he realized that IDEM would require Valbruna to fund cleanup beyond its $500,000 escrow contribution under threat of EPA intervention. [DE 169 at 37-40]. That testimony is credible insofar as Valbruna believed EPA intervention to be an unlikely contingency. But Valbruna certainly recognized at least the possibility of federal intervention in light of the EPA's reservation of rights in the PPA. [Exb. 3]. Further, in an email forwarded to Valbruna, the EPA had explicitly indicated its position to Slater that the Site's purchaser would remain subject to environmental liability notwithstanding the PPA. [Exb. 10,538]. Thus, the Court gives some weight to the fact that the Site was almost certainly sold at a lower price than it would have been had it presented no environmental problems. However, that consideration is partially discounted due to the lack of evidence as to the abandoned Site's value independent of environmental issues, contamination that was unknown at the time of sale despite the performance of due diligence, and the liability protection offered by IDEM. However, the Court assigns little weight to Valbruna's argument that it purchased the property at a price that reflected indications by the government-which were made after the purchase-that remediation assistance might be offered under the Formerly Utilized Sites Remedial Action Program for cleaning up radiation contamination (which the pre-closing Pioneer investigation had revealed). [DE 169 at 35, 44-46, 62-64]. Joslyn's caveat emptor argument similarly contends that Valbruna assumed the risk that its liability would be greater than anticipated when it knowingly purchased a heavily contaminated property, even if the full extent of that risk was not clear at the time of sale. See Town of Munster , 27 F.3d at 1270 (citing Smith Land for the proposition that "caveat emptor is not a defense to liability for contribution but may be considered in mitigation of the amount due"). There is some merit to that position. As a party that engaged in a risky transaction to capture an economic opportunity, Valbruna deserves to bear some exposure. See Litgo , 725 F.3d at 380 (affirming where the district court considered that a party "did not know specifically that there was TCE contamination, [but] was aware that there were significant environmental issues, and voluntarily assumed that risk"). Valbruna will also be the only party to "reap the benefits of the environmental cleanup of its property." Alcan-Toyo Am., Inc. v. N. Illinois Gas Co. , 881 F.Supp. 342, 347 (N.D. Ill. 1995) ; see also Litgo , 725 F.3d at 387. That said, Valbruna did not blindly accept the risk associated with the Site (unlike *1202the plaintiff in Alcan-Toyo who conceded to never performing environmental investigations of the site, see id. ). Rather, Valbruna conducted substantial diligence to map out the extent of contamination and then entered into an agreement designed to protect it against cleanup costs in excess of the escrow contribution. Thus, Valbruna's self-protectionism stands in distinct contrast from a purchaser who agrees to indemnify prior owners for future costs resulting from the presence of (foreseen or unforeseen) contamination on the property. Kerr-McGee , 14 F.3d at 328 (current owner knew of the pollution when it purchased the property and in the contract of sale it agreed to indemnify the predecessor and assumed liability for any claim concerning pollution). Under these circumstances, while Valbruna may deserve to incur some costs that exceeded its expectations, it should not have to bear all of them. This is particularly true in light of the credit it is due for "taking the risk and making the effort necessary to get the land cleaned up and marketable." Shell Oil Co. , 358 F.3d at 691. Finally, Joslyn raises several equitable considerations that are less persuasive.7 First, it makes a laches argument, in which it contends it has been prejudiced by Valbruna's delay in bringing suit. See Town of Munster , 27 F.3d at 1273 (noting that delay and prejudice are among the factors that a Court can consider in contribution). However, the evidence at trial indicated that Valbruna did not realize its environmental liability was likely to exceed its escrow contribution until November 2007, when IDEM identified remaining contamination requiring remediation after its Site visit in June 2006 (which forecasted future cleanup obligations). [DE 179 at 67]. It then sent Joslyn a demand letter in March 2008. [DE 179 at 68]. This suit followed in February 2010. That delay, while not ideal, is not egregious in the context of complex litigation. More importantly, there is no indication that Valbruna's delay caused Joslyn any prejudice.8 While Joslyn initially contended that it had been prejudiced since it destroyed documents as a result of Valbruna's delay in bringing suit, it later retreated from that argument at trial. [DE 179 at 164]. In fact, it appears that all documents it destroyed were readily available from other sources. As such, the Court assigns this factor little weight. Second, Joslyn contends that the Court should consider that Joslyn previously defended a similar action against Valbruna's privy, Slater, and won a judgment on the merits. While the Court previously held that suit did not bar this one, [DE 35; DE 39], Joslyn nevertheless says that the prior litigation should be given some weight in the equitable calculus. Though the Court is unaware of any authority explicitly indicating that this could be relevant to equitable apportionment, it is mindful of its broad discretion under § 113(f) to consider any factors it finds relevant based on the facts of the case. See NCR , 768 F.3d at 696 *1203("We have resisted attempts to impose upon district courts a requirement to either include or to ignore any particular factors in its ultimate decision, even ones that might strike an unbiased observer as salient facts."). Nevertheless, the Court ascribes little relevance to the Slater suit. That July 2000 action contained a state law Environmental Legal Action ("ELA") claim rather than a CERCLA claim, which Joslyn was able to swiftly weed out. In April 2001, the state court granted a motion to dismiss it, finding "no evidence that the legislature intended for [the ELA] to be applied retroactively." [DE 35 at 2] (alteration in original). That same logic would not have prevented a CERCLA claim from moving forward, as courts have consistently "found that Congress intended CERCLA to apply retroactively despite the lack of an explicit reference to retroactive application." See, e.g. , Commercial Logistics Corp. v. ACF Industries, Inc., Case No. 4:04-cv-74, 2004 WL 2595880 (S.D. Ind. Nov. 10, 2004) (collecting cases); ConocoPhillips Pipe Line Co. v. Rogers Cartage Co. , No. 3:11-CV-497, 2012 WL 1231998, at *3 (S.D. Ill. Apr. 12, 2012). Thus, there was little overlap between the effort devoted to the ELA claim in the Slater suit and that expended to litigate the present CERCLA action. As such, claim preclusion's rationale of "prevention of repetitive litigation of what is essentially the same dispute" is largely inapplicable here. [DE 35 at 6]. Thus, having found that the defense has not satisfied the technical requirements for claim preclusion, the Court likewise concludes that there is no basis for providing significant weight to the Slater suit in equitable allocation. Third, Joslyn argues that Valbruna ought to bear responsibility for Slater's share of the pollution. "When a court cannot assign an ideal measure of monetary responsibility to an otherwise responsible party-because, for example, that party is immune from suit, bankrupt, or defunct-this gives rise to an orphan share. A court may equitably allocate orphan shares among liable parties at its discretion." Litgo , 725 F.3d at 380 n. 4 (internal quotation marks and citation omitted). At trial, there was evidence that Slater used PCBs and TCE, and thus may have exacerbated the condition of the Site. However, neither party presented any evidence to quantify Slater's share of the contamination and the parties even agreed that the contamination was indivisible [DE 162]. There is thus no basis for assigning orphan shares to Slater. While Joslyn cites to Envtl. Transp. Sys., Inc. v. ENSCO, Inc. , 969 F.2d 503, 508 (7th Cir. 1992), to support its most recent argument that the Court could instead use a pro rata approach by relying on the periods of time that Joslyn, Slater, and Valbruna each owned the Site [DE 181 at 46-47], that is an arbitrary metric that is unconnected to those entities' environmental responsibility. Moreover, the result in ENSCO doesn't help Joslyn given that, in ENSCO , it was determined that because neither party had submitted evidence to support equitable factors besides fault (which isn't the case here), and given that there was no genuine issue as to who caused the vehicle accident, then the single party responsible for causing the accident (resulting in spilled polychlorinated biphenyls from electrical transformers) was solely responsible for the entire cost of the cleanup. Id. at 512. Furthermore, even if a portion of the contamination were clearly attributable to Slater, the Court sees no basis for apportioning Slater's shares disproportionately to Joslyn or Valbruna. The apportionment of orphan shares accordingly would not alter the ultimate contribution determination.9 *1204CONCLUSION Having considered all of the above factors, it remains only to allocate costs. From the $2,029,871.09 in costs recoverable under § 107(a), the Court deducts the $500,000 associated with Valbruna's escrow contribution (even if the funds were handled differently than the purchase price for accounting purposes). While that sum advanced remediation, it was a known expense and functionally part of the purchase price of the Site. Permitting Valbruna to recover it from Joslyn would essentially amount to a double recovery. See Shell Oil , 358 F.3d at 691. That leaves a total of $1,529,871.09. The Court allocates this 75% to Joslyn and 25% to Valbruna. While this determination reflects careful consideration of all of the above factors, the Court particularly emphasizes Joslyn's status as the sole polluting party to this action and its blatant avoidance of liability and refusal to assist with some cleanup despite knowing it was responsible for contaminating the Site for an extensive period. It also notes the discounted price Valbruna paid for the property and Valbruna's voluntary assumption of some risk in association with the transaction, while recognizing the purpose of CERCLA in spurring environmental cleanup of contaminated sites. See NCR , 768 F.3d at 689. Given the Court's previous entry of a declaratory judgment in favor of Valbruna under CERCLA [DE 124], this allocation will apply prospectively, as well as to the past costs discussed herein. See PMC , 151 F.3d at 616 (holding that such an "all-at-once determination" is proper as it economizes on judicial time). Joslyn shall thus be liable to Valbruna under § 113(g)(2) for 75% of all future costs incurred to clean up the Site that are necessary and consistent with the National Contingency Plan. See NutraSweet, 227 F.3d at 791 (costs incurred must be necessary and consistent with the National Contingency Plan). However, the Court notes that upon a timely petition of either party it may revisit this allocation should unforeseen circumstances render adherence to it inequitable. See PMC , 151 F.3d at 616 (noting that cooperativeness in the actual clean-up is a relevant equitable factor not readily evaluated until clean-up is complete; and thus, the court can revisit the allocation determination should that factor or other unforeseen circumstances make the original determination inequitable). Since the parties have not distinguished the roles of the various Joslyn entities, this award shall apply jointly and severally to Joslyn Manufacturing Company, Joslyn Corporation, and Joslyn Manufacturing Company, LLC. This Order does not contemplate interest or attorneys' fees, which the parties have agreed to resolve at a future proceeding. The Court will contact counsel in the near future to set a telephonic status conference to address the resolution of these remaining issues. SO ORDERED. Valbruna argues that its purchase of known contaminated property without being responsible for the contamination qualifies it as an innocent landowner. [DE 180 at ¶¶ 43, 44]. The "innocent landowner" exception has historically allowed a party to sue for response costs under § 107 when it did not take part in the contaminating. See e.g., NutraSweet, 227 F.3d at 784 (listing cases); AM Int'l, Inc. v. Datacard Corp. , 106 F.3d 1342, 1347 (7th Cir. 1997) (allowing suit for response costs by a party who presumably paid a discounted price for property it knew was going to be an expensive cleanup, and noting that such facts may have rendered the purchaser "a little less innocent"). Despite the fact that Valbruna has wholly failed to explain why the underlying facts supporting application of this exception in a cost recovery action would absolve it from any contribution under § 113, the Court considers those same underlying facts in arriving at its equitable conclusion based on the totality of the circumstances. NCR , 768 F.3d at 700-03. Joslyn did offer certain indemnities to Slater, though Valbruna did not acquire the right to sue on them under the asset purchase agreement. [Exb. 10,556 at Annex A (indicating that the APA excluded Slater's rights under the Joslyn lawsuit from the sale) ]. It is also unclear whether they would have covered the contamination at issue. Though Slater invoked them in its case against Joslyn, that case was later dismissed for failure to prosecute. Joslyn also argues that it complied with all environmental regulations that existed at the time it owned the Site. That could be relevant to the fifth Gore factor. However, the evidence on this point was sparse at trial. Moreover, assuming Joslyn's representation to be true, the Court still finds it inconsequential. Even if Joslyn complied with all relevant environmental regulations during its period of ownership, it still dumped the contaminants that ultimately required a major cleanup effort. And, it matters not that CERCLA was enacted after the dumping by Joslyn took place, as Joslyn can still be held responsible for payment of the subsequent cleanup. See, e.g., NCR , 768 F.3d at 686-703. This subject is also addressed below with respect to the equitable factors identified by the parties as orphan shares and divisibility. The Court does, however, note the uncertainty inherent in purchasing an old, heavily contaminated steel plant. In doing so, Valbruna was likely aware of at least a small possibility that environmental contamination would substantially exceed what it expected. The evidence supports such a finding despite the Court's giving of little weight to Mr. Viero's conclusory testimony that Valbruna did not know "the full extent of the contamination at the site at the time it acquired it." [DE 179 at 63]. Mr. Viero also testified that TCE concentrations at the Site exceeded what Valbruna had anticipated. [DE 169 at 84]. However, this testimony is similarly conclusory and not credible in light of the substantial diligence Valbruna conducted aimed at ascertaining the extent of TCE contamination. [DE 169 at 30]. Valbruna also raises an unavailing equitable consideration. At trial, it presented evidence that Joslyn has insurance that might pay for any environmental liability. It is true that possible considerations for making an equitable allocation decision include the financial resources of the parties, see, e.g., ENSCO , 969 F.2d at 509 (citation omitted), and the availability of insurance payments to prevent double recovery, see NCR , 768 F.3d at 707. However, in this case, these factors are less influential in affecting the allocation outcome since there is no indication that either party is insolvent or may otherwise be unable to independently pay its fair share, or that Joslyn's insurer will actually cover the cost for any liability found on Joslyn's part (despite providing coverage for its defense costs). [DE 179 at 144-46]. Joslyn does argue that it incurred double litigation costs, though this contention is addressed in the discussion regarding the Slater suit below. Relatedly, Joslyn argued at trial that Valbruna should have sued Slater to access its insurance policies. However, Slater's Chapter 11 bankruptcy terminated in 2006, before Valbruna received the 2007 letter from the EPA. Further, the evidence at trial was insufficient to support a finding that Valbruna had a viable cause of action against the bankrupt Slater such that if Slater lost, its insurance would be forced to pay the judgment.

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/4049030/

HABERN, O'NEIL & ASSOCIATES (Not a Partnership) Attorneys and Counselors at Law P.O. Box 8930, Huntsvillc, Texas 77340 Phone: (936) 435-1380 Facsimile: (Mf>) 435-1089 Website: www.parolclexas.com Email: treviaf5iparoletexas.com Appointments also available in Houston Wm. T. Habern David P. O'Neil P. C. William Savoie Nancy Bunin Of Counsel ' June 25,2015 Court of Criminal Appeals Attn: Record Section RECEIVED IN P.O. Box 12308 Q0UPJ0FCRIMINALAPPEAUS Austin, Texas 78711 „„.... JUN29 2015 RE: State of Texas v. John Lamberton; DOB 7/31/1969 . .-•'• Cause No.: 92CR1006 and 92CR1007 To Whom It May Concern: ": "- This office has been retained to represent Mr. Lamberton in his upcoming review by the Texas Board of Pardons and Paroles. In preparation for that presentation, I am attempting to gather information regarding Mr. Lamberton's past conduct and offense(s) of conviction. Our records indicate that Mr. Lamberton was charged and convicted in Galveston Countywith the offenses of injuryto a child. To the extent that the records may exist in this case and are maintained in your office, this request includes: copy of the trial records in both cases. We do not object to the redaction of identifiable information regarding the victim. I have included a release executed by Mr. Lamberton authorizing the release of this information to our office. Upon being advised of any costs for production and/or mailing of the records related to this request, we will happily remit the required amount to your offices. I anticipate that this case will enter the review process and be routed to the Board Office in the near future, so time is of the essence in this matter. If there are any questions, please do not hesitate to contact our offices. " -: .,; ' Thank you for your kind attention to this matter. "urvis Legal Assistant for David P. O'Neil Enclosure

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/4049033/

COLULT 0 F OZmi Pftv KVtGMS HUC MJ UUTT-; tf. L,&W 1H0Q JAN 29 2015 Abe/Acosta,aertc  PRINTEDIOWtilNEMARKJPARERf^HOkmTC^^^ ;; 1l-24i Office All #: 1210(8) CASHIER'S CHECK 6842201289 Remitter: ALLYSON L EZtKE Operator I.D.: u331869 January 26, 2015 PAY TO THE ORDER OF ***COURT OF CRIMINAL APPEAL" a ***Thirteen dollars and 55 cents*** **$13.55** Payee Address: Memo: WELLS FARGO BANK, N.A. VOID IF OVER US $ 13.55 5219 RICHMOND AVE HOUSTON, TX 77056 . FOR INQUIRIES CALL (480) 394-3122 CONTROLLER ii"E.flU E EOiEfi^ii' i:i'ELOaOEi.Bi:iiBE.]i 5 I Efl ECU

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/4030943/

United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-3323 ___________________________ John Caldwell lllllllllllllllllllll Plaintiff - Appellant v. Wendy Kelley, Director, Arkansas Department of Correction, formerly Deputy Director of Health Services lllllllllllllllllllll Defendant - Appellee Corizon, Inc. lllllllllllllllllllll Defendant Deborah York, H.S.A., Varner Unit; Robert Floss, Doctor, ADC; Ojiugo Iko, Doctor, Corizon Inc. lllllllllllllllllllll Defendants - Appellees ____________ Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff ____________ Submitted: August 30, 2016 Filed: September 2, 2016 [Unpublished] ____________ Before WOLLMAN, ARNOLD, and MURPHY, Circuit Judges. ____________ PER CURIAM. Arkansas inmate John Caldwell appeals the district court’s1 adverse grant of summary judgment in his 42 U.S.C. § 1983 action. Viewing the summary judgment record in a light most favorable to Mr. Caldwell, and drawing all reasonable inferences from it in his favor, see Murchison v. Rogers, 779 F.3d 882, 886-87 (8th Cir. 2015), we find no basis for overturning the district court’s determination that there were no jury issues on his Eighth Amendment claims, see Allard v. Baldwin, 779 F.3d 768, 771-72 (8th Cir.) (discussing requirements to prevail on Eighth Amendment claim), cert. denied, 136 S. Ct. 211 (2015). The judgment of the district court is affirmed. See 8th Cir. R. 47B. ______________________________ 1 The Honorable Brian S. Miller, Chief Judge, United States District Court for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable Beth Deere, United States Magistrate Judge for the Eastern District of Arkansas. -2-

01-03-2023

09-02-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427216/

ON PETITION FOR REHEARING The only proposition sought to be presented by the appellees' petition for rehearing and their supporting brief that has not already had thorough consideration is this: It is now asserted that the original opinion inferentially strikes down other statutes pertaining to the political complexion of local, county, and state election boards that have been unchallenged for more than sixty years. Arguing from this premise it is contended that there has been such acquiescence in legislation of the character embraced in chapter 100, Acts of 1941, that its constitutionality ought to be accepted. The other acts referred to by the appellees are those relating to the appointment of members of the State *Page 126 Board of Election Commissioners, (Acts 1889, ch. 87, § 16, p. 157, § 29-1001, Burns' 1933, § 7108, Baldwin's 1934); county boards of election commissioners, (Acts 1889, ch. 87, § 17, p. 157, § 29-1002, Burns' 1933, § 7109, Baldwin's 1934); precinct election boards, (Acts 1929, ch. 150, § 4, p. 471, § 29-807, Burns' 1933, § 7096, Baldwin's 1934); assistant poll clerks to precinct election boards, (Acts 1920, [Spec. Sess.], ch. 11, § 4, p. 41, § 29-904 Burns' 1933, § 7149, Baldwin's 1934); county boards of primary election commissioners, (Acts 1915, ch. 105, § 4, p. 359; 1917, ch. 117, § 2, p. 354, § 29-504 Burns' 1933, § 7190 Baldwin's 1934); counters for county boards of canvassers in primary elections, (Acts 1939, ch. 113, § 6, p. 559, § 29-567, Burns' 1933 [Supp.], § 7245-6, Baldwin's Supp. 1939); and precinct boards for primary elections (Acts 1915, ch. 105, § 5, p. 359, § 29-505, Burns' 1933, § 7191, Baldwin's 1934). Each of the above acts provides that the members of the respective boards referred to therein shall be appointed by or upon the binding recommendation of certain officers of the political parties which cast the highest and next highest vote at a preceding election. Laws regulating the nomination of candidates for public office at primaries rest upon an entirely different foundation from those pertaining to general elections. Statutes 22-24. providing the machinery for holding elections proper have been enacted to give vitality to the express mandates of the Constitution of Indiana, which directs that certain public officers shall be elected by the people, fixes the qualifications of voters, and requires that all elections shall be free and equal. On the other hand, laws providing for primary elections are in the exercise of the police power of the State.Cunningham v. Cokely (1916), 79 W. Va. 60, 90 S.E. 546, L.R.A. 1917B, 718. "The words *Page 127 `Primary Election' are well understood to mean the act of choosing candidates by respective political parties to fill the various offices . . ." State v. Paris (1913), 179 Ind. 446, 452, 101 N.E. 497, 499. It is the theory of our primary election laws that each participating political party holds a primary at the same time and place, with nothing in common but a single set of officers. Kelso v. Cook (1916), 184 Ind. 173, 192, 110 N.E. 987, 993, Ann. Cas. 1918E, 68, 75. No reason is seen, therefore, why the General Assembly may not provide for the active participation of the responsible officers of political parties in the conduct of their own primary elections. It is true, as the appellees suggest, that long and unquestioned acquiescence may become under some circumstances a potent factor in determining the construction or 25, 26. validity of a statute. The State v. Gerhardt (1896), 145 Ind. 439, 44 N.E. 469, 33 L.R.A. 313.City of Terre Haute v. Evansville and Terre Haute R.R. Co. (1897), 149 Ind. 174, 46 N.E. 77, 37 L.R.A. 189. We do not find it necessary to explore that field, however, because the passage of similar acts by other legislatures is insufficient to determine the validity of a statute clearly within the words of a constitutional prohibition. 11 Am. Jur., Constitutional Law § 79, p. 699. The fact that there may have been such acquiescence in the provisions of the statutes relating to the manner of selecting members of election boards as to lead to the conclusion that there may no longer be an inquiry concerning their validity would not avoid the unconstitutionality of the Registration Act of 1941, which deals with a distinct branch of the general subject of elections. Rehearing denied. NOTE. — Reported in 41 N.E.2d 354, 140 A.L.R. 455. *Page 128

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427218/

Appellant Davis Construction Company made a contract with the State Highway Commission for the construction of a pavement, on what is commonly known as "the Michigan Road," through Shelbyville, and gave a statutory construction bond, which bond was signed by appellant Southern Surety Company as surety. The Davis Construction Company then entered into a contract with the firm of Clark and Billingsley, who owned a gravel pit at Shelbyville, Indiana, under the terms of which, said Clark and Billingsley agreed to furnish gravel and deliver the same to the mixer for the construction of the road. It appears from the evidence that: Clark and Billingsley, pursuant to said contract, were engaged in the furnishing and delivering of such sand and gravel, and were so engaged up to and on or about August 20, 1924, and that they had employed the appellees and other parties to load, haul and deliver sand and gravel to the appellant construction company on said highway as aforesaid, and that the appellees were so engaged on or about August 20, 1924; that, on or about said date, the said Clark and Billingsley were insolvent; that they were largely indebted to various and numerous persons and were unable to pay said debts; that at said time appellant construction company was claiming they were largely indebted to it, that some of their creditors were threatening to have a receiver appointed for them and take charge of and sell their business and affairs; that, on account of said financial affairs, appellees and others refused to continue in their said work for said Clark and *Page 149 Billingsley; that, at the request of appellant construction company and said Clark and Billingsley, a meeting of the creditors of said Clark and Billingsley, including appellant construction company, was held at the law office of Henry and McLane in the city of Shelbyville, Indiana, on or about August 20, 1924; that appellant construction company, by its representative and agent, was present at such meeting and participated in the discussion of the affairs of said Clark and Billingsley and discussed the fulfillment of said contract between Clark and Billingsley and itself; that, at the request of appellant construction company, no proceeding for a receiver was instituted by the creditors; and, by and with the consent and suggestion of Clark and Billingsley, appellant construction company and other creditors present proceeded to appoint a creditors' committee of four persons to take charge of the affairs of said Clark and Billingsley and attempt to carry out and fulfill their said contract with said appellant; that, as a part of said agreement, and to make the carrying out of said contract possible, and to enable said appellant to complete said road construction with the least delay, the said Davis Construction Company agreed to pay all persons and laborers engaged in the furnishing and delivering of said sand and gravel upon said job as the same was required to be furnished by the terms of said contract with Clark and Billingsley; that, pursuant to said agreement, said committee took full charge of the business of said Clark and Billingsley and proceeded, in so far as possible, to carry out the terms of their said contract with said appellant; that, pursuant to said agreement, the said promise of said appellant to pay all laborers, appellees resumed their work in the hauling of sand and gravel for delivery on said highway and performed further service in hauling crushed stone for use upon said highway, which latter hauling was not a part of the contractual obligation of *Page 150 Clark and Billingsley and was done at the direct instance and request of appellant construction company and the appellees were paid for said services by said appellant, through said committee, except in and for the amount herein sued on. It further appears that, more than 60 days prior to this date, and within one year from the completion of said work, they notified the appellant surety company, in writing, of the amounts due them from the construction company on account of labor performed in connection with said work and of their intention to hold said appellants liable for the payment thereof; that, within the period of time provided by law, and within 60 days from the completion of this said labor, they filed their verified claims in duplicate with the Indiana Highway Commission, and that said commission retained from the contract price of said construction a sum sufficient to pay these appellees' claims in full; that the construction company brought a suit against the State of Indiana in the court of claims, the Marion Superior Court, for the full amount of the unpaid balance upon said contract with the State, and that such proceedings were had in said court of claims; that the appellees and others were made parties defendant, and said money so held by the State of Indiana, was paid into the hands of the clerk of said court; the said court of claims held that it had no jurisdiction to determine any controversy between appellants and appellees, and directed that part of the money so paid into its hands be held by the clerk of that court and is now held by the clerk of said court subject to the adjudication of the rights of the appellees in a court of competent jurisdiction. This action was originally commenced by certain persons who had been employed by Clark and Billingsley as laborers at the pit or to haul gravel to the mixer. The action of each of these persons was a separate action *Page 151 based upon his claim, but, to avoid multiplicity of suits, the actions were all consolidated for the purpose of trial and were tried in one hearing. The issues were formed by the general denial of appellant Davis Construction Company to each of the separate complaints of the individual appellees. Appellant Southern Surety Company also filed a general denial to each separate complaint of each individual appellee and a cross-complaint alleging suretyship to each complaint. The trial was held by the court without the intervention of a jury, and the court found for the appellant against 30 of the plaintiffs, but found for 14 of the plaintiffs upon their respective complaints against the appellants, and rendered judgment accordingly. Appellants filed a separate motion for a new trial as to each of said decisions and judgments. Each of the separate motions of appellant Davis Construction Company for a new trial was overruled, to each of which rulings of the court, the said Davis Construction Company at the time excepted. The court sustained the separate motions for a new trial of the Southern Surety Company as to the plaintiffs, Ora Spurlin, William R. Petty, Ray Heck, Cleon Linville and Earl T. Arbuckel, and overruled each of the separate motions of said Southern Surety Company as to all other plaintiffs, to which ruling the Southern Surety Company at the time excepted; the appellants then prayed an appeal to this court, which was granted. The error assigned is the overruling of the motion for a new trial, the grounds of said motion being that the decision of the court is not sustained by sufficient evidence and is contrary to law. It is the contention of the appellants that whatever promises were made by it through its agents were not original promises, but were promises to answer for debts *Page 152 of another and void under the Statute of Frauds; and also, in a number of instances, the parties who furnished the labor and means of hauling the sand and gravel did not attend the creditors' meeting, and, therefore, the court was in error in holding the appellant construction company liable to those who were not at the meeting, although they furnished labor and material to the construction company after that date. We have carefully examined appellants' brief and have examined the testimony of appellees in support of their respective judgments. We are of the opinion that, when the firm of Clark and Billingsley failed and a creditors' committee took charge, they did so for the benefit of all parties, and, from then on, the laborers, the owners of wagons, teams and trucks continued with their work of hauling gravel and sand to construct the road for the appellant construction company. We find no reversible error in the record. Judgment affirmed. Neal, J., not participating.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3208817/

Cite as 2016 Ark. 235 SUPREME COURT OF ARKANSAS No. CV-15-1053 COURTYARD GARDENS HEALTH Opinion Delivered June 2, 2016 AND REHABILITATION, LLC, ET AL. APPEAL FROM THE CLARK APPELLANTS COUNTY CIRCUIT COURT [NO. CV-2014-82] V. HONORABLE ROBERT PATRICIA ANN SHEFFIELD, AS MCCALLUM, JUDGE SPECIAL ADMINISTRATOR OF THE ESTATE OF MAYLISSIA HOLLIMAN, DECEASED APPELLEE AFFIRMED. RHONDA K. WOOD, Associate Justice Appellants, Courtyard Gardens Health and Rehabilitation, LLC and others (“collectively Courtyard”), appeal from a circuit court order denying their motion to dismiss and compel arbitration of the claims brought against them by appellee, Patricia Ann Sheffield, as special administrator of the estate of Maylissia Holliman, deceased. For reversal, Courtyard contends first that the circuit court erroneously ruled that Johnathan Mitchell, Holliman’s emergency custodian, did not have authority to bind her to the arbitration agreement, and second, that the arbitration agreement is unenforceable because of the unavailability of the National Arbitration Forum (“NAF”). We affirm the court’s ruling that the custodian did not have authority to execute the arbitration agreement. Because the agreement is invalid, we do not need to reach the second point. In May 2010, following a complaint filed with adult protective services (APS), Johnathan Mitchell, a consultant with APS, went to Holliman’s home to check on her. Cite as 2016 Ark. 235 When he arrived, he found Holliman disoriented and unable to get out of bed. He also reported that Holliman was soaked in urine, that there was an inoperative gun in her bed, and that there was little food in the home. Because Mitchell thought that there was an imminent danger of serious bodily harm or death to Holliman if she remained at home alone, Mitchell sought emergency custody of Holliman. The circuit court entered an ex parte order of emergency custody and set a probable cause hearing. The order authorized Arkansas Department of Human Services (DHS) to take Holliman into protective custody and to provide her “with physical, mental or emotional care as required in the opinion of a duly authorized or licensed physician, dentist, surgeon, or psychologist, whether or not such care is rendered on an emergency basis or on an inpatient or outpatient basis.” In addition, the circuit court gave DHS access to Holliman’s financial information “for the sole purpose of inspection of any financial information or assets.” Pursuant to the circuit court’s order, Mitchell admitted Holliman to Courtyard. Mitchell, as Holliman’s custodian, signed an admission agreement and an arbitration agreement on her behalf upon admission. In August 2014, Sheffield, as special administrator of Holliman’s estate, filed suit against Courtyard, alleging that Holliman had sustained injuries at Courtyard and that those injuries led to her death. Courtyard subsequently filed a joint motion to dismiss and compel arbitration. Following a hearing, the circuit court entered an order denying the motion. It concluded that Mitchell lacked authority under the ex parte order of emergency custody to bind Holliman to the arbitration agreement. It further found that the NAF Code of 2 Cite as 2016 Ark. 235 Procedure, which was incorporated into the arbitration agreement, was an integral term of arbitration and that because NAF was unavailable, the arbitration was impossible to perform. In reviewing an arbitration agreement, courts look to state contract law to determine whether the parties’ agreement to arbitrate is valid. GGNSC Holdings, LLC v. Lamb, 2016 Ark. 101. The same rules of construction and interpretation apply to arbitration clauses as apply to agreements generally. Id. We are to determine the construction and legal effect of a written contract to arbitrate as a matter of law. Id. In light of the policy favoring arbitration, this court will not construe the agreement strictly but will read it to include subjects within the spirit of the parties’ agreement. Courtyard Health & Rehab., LLC v. Arnold, 2016 Ark. 62. Courts must address two threshold issues affirmatively when determining whether to grant a motion to compel arbitration: (1) is there a valid agreement to arbitrate between the parties, and (2) if such an agreement exists, does the dispute fall within its scope. HPD, LLC v. TETRA Techs., Inc., 2012 Ark. 408, at 6, 424 S.W.3d 304, 308. In answering these questions, doubts regarding arbitrability must be resolved in favor of arbitration. Id. We review a circuit court’s order denying a motion to compel arbitration de novo on the record. Carmody v. Raymond James Fin. Servs., Inc., 373 Ark. 79, 281 S.W.3d 721 (2008). Turning first to the threshold issue of validity, we must determine whether Mitchell had authority to bind Holliman to the arbitration agreement. The burden of proving an agency relationship lies with Courtyard as the party asserting its existence. See Lamb, 2016 Ark. 101, at 4. 3 Cite as 2016 Ark. 235 Courtyard argues that the circuit court erred in its determination that Mitchell lacked the authority to bind Holliman to the arbitration agreement. Specifically, they argue that the Adult Maltreatment Custody Act (AMCA), Arkansas Code Annotated sections 9-20- 101 et seq. (Repl. 2015), gives APS the authority to enter into the arbitration agreement. They argue that the rationale this court applied in Carmody, 373 Ark. 79, 281 S.W.3d 721, and GGNSC Holdings, 2016 Ark. 101 compels this conclusion. We disagree. A custodian under the AMCA is “the Department of Human Services while the department is exercising a seventy-two-hour hold on an endangered or impaired person or during the effective dates of an order granting custody to the department.” Ark. Code Ann. § 9-20-103. Under the AMCA, the custodian has the following duties and responsibilities: (a)(1) If the probate division of circuit court appoints the Department of Human Services as the legal custodian of a maltreated adult, the department shall: (A) Secure care and maintenance for the person; (B) Honor any advance directives, such as living wills, if the legal documents were executed in conformity with applicable laws; and (C) Find a person to be guardian of the estate of the adult if a guardian of the estate is needed. (2) If the court appoints the department as the legal custodian of a maltreated adult on an emergency, temporary, or long-term basis, the department may: (A) Consent to medical care for the adult; (B) Obtain physical or psychological evaluations; (C) Obtain medical, financial, and other records of the adult; and (D) Obtain or view financial information of the adult that is maintained by a bank or similar institution. Ark. Code Ann. § 9-20-120. A custodian designation is different from a guardianship of a person or of the estate. Notably, a guardian of the estate has the duty to exercise due care and to preserve, invest, apply, and account for the estate. Ark. Code Ann. § 28-65-301(b)(1) (Repl. 2012). The 4 Cite as 2016 Ark. 235 AMCA limits the custodian to obtaining and viewing the ward’s financial information. Ark. Code Ann. § 9-20-120(a)(2)(c)–(d). The AMCA contains no similar provision and limits the court to “appoint the department only as custodian of the adult and not as guardian of the person or of the estate of the adult . . .” Ark. Code Ann. § 9-20-119(c)(1). This implies that a custodian does not have the powers of a guardian of the estate. Therefore, statutorily the custodian performs a different role than that of guardian of the person or of the estate. Courtyard relies on Carmody and Lamb to assert that Mitchell had the authority to bind Holliman to an optional arbitration agreement when he acted as her custodian. See Carmody, 373 Ark. 79, 281 S.W.3d 721; Lamb, 2016 Ark. 1. However, these cases are distinguishable from the present case because they both involved guardians of the person and the estate. Carmody presented the issue of whether a guardian of the person and the estate of an incapacitated person could bind the incapacitated person or his estate to an arbitration provision. 373 Ark. 79, 281 S.W.3d 721. The estate argued that the guardian was required to obtain specific judicial approval prior to entering into an agreement that contained an arbitration provision because an agreement to arbitrate is the same as consent to compromise or settle, which the guardian statute prohibited. Id. This court disagreed and affirmed the validity of the arbitration agreement. Id. Similarly, in Lamb, we concluded that a guardian of the person and of the estate may enter into an arbitration agreement on the ward’s behalf. Id. Both Carmody and Lamb emphasize that if an agent is merely the guardian of the person, he has no authority to bind the ward’s property. Carmody, 373 Ark. 79, 281 S.W.3d 5 Cite as 2016 Ark. 235 721; Lamb, 2016 Ark. 1. In both cases, we enforced arbitration agreements only because the agents were guardians of both the person and the estate. Here, Mitchell was a custodian, not a guardian of the person or the estate. Because of this distinction, Carmody and Lamb are not instructive. Neither Carmody nor Lamb discussed the issue presented here, which is whether a custodian can bind the ward to an arbitration agreement. We hold that a custodian of a ward under the AMCA does not have the authority to bind the ward to arbitration. The legislature intended for custodians to play a more limited role than guardians. The main purpose of a custodian is to ensure that the ward is safe and cared for appropriately and that the ward’s assets are secure. If needed, the AMCA specifically permits the court to appoint a guardian of the estate if the ward requires additional assistance. Ark. Code Ann. § 9-20-119(c)(2). Because the circuit court appointed Mitchell as custodian of Holliman, he had no authority to make decisions concerning her estate, and he could not bind Holliman to arbitration. Therefore, the arbitration agreement is invalid. Because we conclude that the arbitration agreement is invalid, there is no need to discuss whether the agreement, if valid, would be enforceable. We affirm the circuit court’s denial of Courtyard’s joint motion to dismiss and to compel arbitration. DANIELSON, J., concurs. Kutak Rock, LLP, by: Mark W. Dossett, Jeff Fletcher, and Margaret Benson, for appellant. Appellate Solutions, PLLC, by: Deborah Truby Riordan; and Wilkes & McHugh, P.A., by: William P. Murray III, for appellee. 6

01-03-2023

06-02-2016

https://www.courtlistener.com/api/rest/v3/opinions/7247121/

J.P. Stadtmueller, U.S. District Judge *1206Defendant Marcus Hutchins ("Hutchins") is charged with crimes arising from his alleged deployment of the "Kronos" malware program. (Docket # 6). Kronos stole user credentials and personal identifying information from computers on which it was installed. Id. at 2. Hutchins, a citizen of the United Kingdom, was arrested in Las Vegas on August 2, 2017. He has been under pretrial supervision since that time. Magistrate Judge William E. Duffin recently entered an order modifying the conditions of Hutchins' pretrial release, (Docket # 35), and the government has sought review of that order by this Court, (Docket # 36). For the reasons stated below, the government's motion will be denied. 1. LEGAL STANDARDS The Bail Reform Act, 18 U.S.C. § 3142, defines the manner in which courts impose conditions of pretrial release. The Act allows courts to impose conditions ranging from personal recognizance all the way to pretrial detention. Id. § 3142(a). The guiding principle of the Act is that courts must impose the least restrictive condition or combination of conditions necessary to reasonably assure the defendant's appearance as required and to reasonably assure the safety of any other person or the community. Id. § 3142(c). 2. FACTS AND PROCEDURAL HISTORY When he was arrested, Hutchins surrendered his passport. A friend paid his $30,000 cash bond and he was thereafter placed on GPS monitoring. He traveled unaccompanied to Milwaukee for his arraignment on August 14, 2017. At that hearing, his conditions of release were modified to permit him to reside in Los Angeles under home detention. See (Docket # 8 at 2). He was also allowed access to the internet subject to certain conditions, and he was allowed to travel within the United States. Id. The GPS monitoring condition was continued. Id. On August 24, 2017, the Pretrial Services Office recommended that Hutchins' release conditions be reduced from home detention to a curfew. See (Docket # 18). The assigned pretrial services officer contended that not only are such reductions commonplace after a defendant has shown compliance with release conditions, in Hutchins' case his home detention, coupled with the fact that he worked from home, meant that he essentially spent all his time at home. Id. at 1. Magistrate Duffin granted the requested modification and set a curfew for Hutchins from 9:00 each night to 6:00 each morning. Id. at 2. The government challenged this modification to Hutchins' release conditions, (Docket # 21), but Magistrate Duffin denied the government's request to return Hutchins to home detention, (Docket # 23). Consistent with the general practice of pretrial supervision in this District, the magistrate found Hutchins' pretrial freedom should correlate with his compliance with release conditions. Id. at 5. Review of Magistrate Duffin's order was sought before Judge Pamela Pepper, (Docket # 25), who declined to modify Magistrate Duffin's order or Hutchins' release conditions, finding that Hutchins' home confinement was essentially punitive, (Docket # 28 at 2). On October 13, 2017, Hutchins filed a motion pursuant to Section 3142(c)(3) requesting a further reduction in his release conditions. (Docket # 32); 18 U.S.C. § 3142(c)(3) ("The judicial officer may at any time amend the order to impose additional or different conditions of release."). He requested that he be discharged from both his curfew and the GPS monitoring. (Docket # 32 at 1). The Pretrial Services *1207Offices in both Milwaukee and in Los Angeles supported Hutchins' request. See (Docket # 35 at 8). Unsurprisingly, the government opposed the motion. (Docket # 33). Magistrate Duffin granted Hutchins' motion in an order dated October 19, 2017. (Docket # 35). In the order, Magistrate Duffin noted that government has never argued in this case that Hutchins is a danger to anyone; rather, its sole contention is that he is a flight risk. Id. at 3. Magistrate Duffin, reviewing Hutchins' history of compliance with release conditions in this case, found that neither the curfew nor GPS monitoring were necessary to curb his risk of flight. Id. at 6-8. The magistrate reasoned that curfew, which is most often used to control the behavior of defendants who might commit crimes at night, was not particularly relevant to Hutchins. Id. Additionally, while Hutchins is a foreign national, Magistrate Duffin was convinced that because he had surrendered his passport, used a friend's money to post his bond, was under threat of enhanced penalties if he should flee, and would continue under the supervision of two Pretrial Services Offices, there was little danger that Hutchins' risk of flight would increase if GPS monitoring was removed. Id. at 6-8. Further, the magistrate rejected the government's contention that mere compliance with release conditions is not enough to warrant modification thereof. Id. at 4. Magistrate Duffin explained that it is routine to reward a demonstrated track record of compliance with reduced or modified release conditions. Id. at 5. The government has again sought review of Magistrate Duffin's bond order. (Docket # 36). Hutchins opposes the government's motion. (Docket # 37). Unlike its first motion to revoke the magistrate's bond determination, here the government did not seek a stay of Magistrate Duffin's order pending review in this Court. Thus, the Court understands that Hutchins' GPS monitoring and curfew conditions have not been in force since October 19, 2017, the date of the magistrate's order. See (Docket # 37 at 5). Nevertheless, he has not attempted to flee. 3. ANALYSIS Section 3145 allows the government to seek review of an order of a magistrate judge regarding a defendant's conditions of release. 18 U.S.C. § 3145(a). The district court reviews the magistrate's order de novo. United States v. Portes , 786 F.2d 758, 761 (7th Cir. 1985). The court may hold a new hearing, but since neither party requests it, the Court will not do so in this instance. See United States v. Torres , 929 F.2d 291, 292 (7th Cir. 1991). At the outset, it is worth noting some slippage in the government's bond argument. The government clings to the factors set forth in Section 3142(g) to support the notion that more restrictive release conditions are necessary in this case. See (Docket # 36 at 5-7). In determining whether there are any conditions of release that will satisfy this standard, Section 3142(g) directs courts to consider: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. See id. § 3142(g). But the statute itself indicates that these factors are used to assess "whether there are conditions of release that will reasonably assure the appearance of the person as required," not what those conditions ought to be. See id. Once one concedes, as the government has here, that pretrial detention is not necessary, the operative inquiry becomes what are the least restrictive conditions that will reasonably assure *1208the defendant's appearance. See id. § 3142(c)(1)(B). The government cannot substitute analysis of the Section 3142(g) factors for a more precise assessment of how and why this Court should reinstitute more restrictive release conditions. In any event, the government's arguments in this regard are unavailing. First, it repeats the contention made to Magistrate Duffin that compliance with release conditions is not enough, standing alone, to warrant modification of those conditions. (Docket # 36 at 5). The government's view is contrary to the normal practice in this and other district courts around the country. When defendants establish that they will abide by their obligation to appear in court, logic dictates that the justification for imposing the existing release conditions lessens. See (Docket # 35 at 5). Put differently, if the Bail Reform Act requires no more than the least restrictive conditions needed to reasonably assure the defendant's appearance, then consistent compliance with existing conditions counsels in favor of reducing their severity on the theory that lesser conditions will suffice. As Magistrate Duffin aptly explained in his first order on modification of Hutchins' bond conditions: The court acknowledges that there is a possibility that Hutchins might flee. But that is a risk inherent in every case where a defendant is released pending trial. The Bail Reform Act does not impose an obligation upon courts to craft conditions of release with an aim toward guaranteeing that a defendant will appear. See United States v. Portes , 786 F.2d 758, 764 n.7 (7th Cir. 1985) ("The conditions need not guarantee appearance but they must reasonably assure appearance."); United States v. Orta , 760 F.2d 887, 889 (8th Cir. 1985) (en banc) ("[T]the district court erred in interpreting the 'reasonably assure' standard set forth in the statute as a requirement that release conditions 'guarantee' community safety and the defendant's appearance. Such an interpretation contradicts both the framework and the intent of the pretrial release and detention provision of the 1984 Act."). Rather, the court may impose only the least restrictive conditions necessary to reasonably assure a defendant's appearance. (Docket # 23 at 4). In this case, the government desires release conditions harsh enough to ensure that Hutchins cannot flee the country. This is not what the Bail Reform Act requires or, indeed, allows. Certainly, in the government's primary citation, United States v. Lafrance , Criminal No. 16-10090-IT, 2016 WL 3882845, at *2 (D. Mass. July 13, 2016), modification of the release conditions was not warranted. There, the defendant, who had committed wire fraud and money laundering using the internet, sought to undo the court's prohibition on internet and email access. Id. at *1. The court denied the request, finding that the defendant's compliance with this release condition did not merit its removal, as doing so would then expose the community to the danger of further crimes committed by the defendant over the internet. Id. at *2. Unlike Lafrance , however, removing Hutchins' curfew and GPS monitoring would not facilitate his recidivism. Moreover, this Court is not prepared to accept Lafrance 's broad statement that mere compliance with release conditions is never sufficient to warrant a reduction thereof. Consequently, the Court finds the case to be of little relevance here. Next, the government contends that Hutchins' lack of connections to the United States suggests that he will flee if not subject to curfew and GPS monitoring. (Docket # 36 at 6-7). The government reports that Hutchins is not a U.S. citizen, *1209has no family here, and owns no real property here. Id. The government also argues that although Hutchins lacks a passport, he could still leave the country, and that if he does so, it could be difficult to secure his extradition back to the United States. Id. Further, the government posits that because Hutchins' $30,000 bond was posted by a friend, the danger of its forfeiture is little incentive for Hutchins to remain here. Id. The government neglects to connect these facts to a cogent argument in favor of more restrictive bond conditions. The government simply speculates that "his conditions of bond were the only things securing his presence in the U.S." Id. at 6. This is untrue, as Hutchins has demonstrated time and again his willingness to comply with his obligations to appear in this Court as required. While eliminating curfew and GPS monitoring will undoubtedly reduce the level of scrutiny given to Hutchins' movements, the government has not satisfactorily explained why these factors require such conditions. The Court agrees with Magistrate Duffin's determination that other operative facts in this case dispel the government's fear of his flight. First, while Hutchins may not own real property in this country, he has rented and furnished an apartment in Los Angeles at substantial personal expense. The government seems to think that ownership of real estate is the only sort of outlay that could tie a defendant to this country, See (Docket # 36 at 6 n.1), but the Court does not concur. Second, the potential consequences of Hutchins' non-appearance are severe, and he knows it. Furthermore, the aim of the Bail Reform Act is to require the government to justify why the looming presence of such consequences are inadequate.1 Third, the notion that Hutchins can escape the country without a passport is both true and irrelevant. Not having a passport will at a minimum make this more difficult, and the Bail Reform Act does not mandate a set of conditions that will guarantee that the defendant cannot flee. Moreover, Hutchins has traveled within the United States several times since his arrest and has not made any attempt to flee. (Docket # 37 at 3-4). Fourth, the Court joins Magistrate Duffin's reasoning that although the bond in this case was paid by Hutchins' friend, his relationship with this person is sufficient to lend substantial weight to the bond as an incentive to appear as required. Finally, continued monitoring by the Pretrial Services Office, both here and in Los Angeles, will ensure that any non-compliance with release conditions will be brought to the Court's attention and dealt with appropriately. In fact, both Pretrial Services Offices support the elimination of these conditions, and the Court is cognizant of their expertise in what is required for successful pretrial supervision. In the end, the government's repeated challenges to the lessening of Hutchins' release conditions represent a continuing attempt to turn the applicable standards upside down. The government believes that any change in release conditions must be justified by new facts proffered by the defense. To the contrary, the magistrate's conclusion is consistent with the Court's ongoing obligation under Section 3142(c) to ensure that only the least restrictive conditions necessary to reasonably assure Hutchins' appearance are employed. If the government's argument is simply that the prior conditions were working and for that reason they should not be *1210changed, the Court is not persuaded. On that point, it is notable that although Hutchins' GPS monitoring and curfew conditions have not been in force since Magistrate Duffin's order of October 19, 2017, he has not attempted to flee. See (Docket # 37 at 5). Thus, it seems his new, lesser conditions of release are working just as well. His continued compliance with his obligations to remain in the country and appear as required bolster this Court's conclusion that the curfew and GPS monitoring conditions are not necessary to achieve those goals. Against the backdrop of Hutchins' ongoing compliance with his release conditions and the other factors considered above, the Court finds that Magistrate Duffin did not err in granting Hutchins' request to modify his release conditions to remove his curfew and GPS monitoring. The government's motion to revoke the magistrate's order will, therefore, be denied. Accordingly, IT IS ORDERED that the government's motion to revoke Magistrate Judge William E. Duffin's bond order of October 19, 2017 (Docket # 36) be and the same is hereby DENIED . The Bail Reform Act sets forth several circumstances in which there exists a presumption that pretrial detention is appropriate, but none apply to Hutchins. See 18 U.S.C. § 3142(e).

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/4047425/

ia.-{5-Oo\43-C£- May 28. 2015 FILED IN COURT OF APPEALS 12th Court of Appeals Distr ct Clerk -1 2015 12th Court of Appeals 1517 W. Front Street. Suite 354 TYLER TEXAS Tyler. Texas 75702 CATHY S.LUSK, CLERK Dear Clerk. Enclosed olease find my Original Petition for Writ of Mandamus and Reouest to Proceed without cost. Will you olease file this with the court and notify me of the date this has been filed and the cause number assigned to this matter' Thank you for your time and attention. God bless and have a great day. Shane Cain #537264 1697 FM 980 huntsville. tx 77343 ••- • . .  No. \3-l5-oc>m3-c£-. FILED IN COURT OF APPEALS IN THE 12th Court of Appeals Distr ct TWELFTH C0T1RT OF APPEALS TYLER. TEXAS In Re TYi~cR TEXAS Shane Cain CATHY S. LU5:K, CLERK REQUEST TO PROCEED WITHOUT COST WITH DECLARATION OF INABILITY TO PAY COST TO THE HONORABLE JUSTICES OF SAID COURT: NOW COMES Shane Cain. Relator in the above stvled cause anri hereby request for permission to proceed without cost in his Original Petition for Writ of mandamus and further oresents his declaration of inability to pav cost, as follows: I am an inmate in TDCJ and have been for the last 26 years and cannot pav the cost of this petition. I *o not earn anv money and do not- have any income and no income from any spouse, i do not own any property and do not have anv cash in any accounts. I do not have anv assets and do not have any dependants and no debt and cannot get any loans from prison and declare that I am unable to Day the cost for this writ of mandamus and wish to proceed without cost. I. Shane Cain. TDCJ No. 537264 declare under penalty of perjury that the foregoing is true and correct on this 28th day of May 2015- Respectfully submitted on this 28th day of May 2015. 0/| f. - Shane Cain #537264 1697 FM 980 Huntsville. TX 77343

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/4327174/

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN JUDGMENT RENDERED NOVEMBER 1, 2018 NO. 03-17-00710-CR Theodore Timothy Demaree, Appellant v. The State of Texas, Appellee APPEAL FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY BEFORE CHIEF JUSTICE ROSE, JUSTICES FIELD AND TOTH MODIFIED AND, AS MODIFIED, AFFIRMED -- OPINION BY JUSTICE FIELD This is an appeal from the judgments of conviction rendered by the trial court. Having reviewed the record and the parties’ arguments, the Court holds that there was no error in the court’s judgments requiring reversal. However, there was error in the judgments that requires correction. Therefore, the Court modifies the trial court’s judgments to reflect that appellant pleaded “not true” to two enhancement paragraphs and that the jury found the two enhancement paragraphs “true.” The judgments, as modified, are affirmed. Because appellant is indigent and unable to pay costs, no adjudication of costs is made.

01-03-2023

11-02-2018

https://www.courtlistener.com/api/rest/v3/opinions/3427279/

This is an original action for a writ of mandate directing the respondents to appoint the relator as the Democratic member of the Board of Registration of Marion County. It appears that under and in pursuance of the Acts of 1945, ch. 208, § 50, § 29-3406, Burns' 1933 (Supp.), the Democratic County Chairman duly recommended in writing to respondent judge, the relator as a member of the Board of Registration for said county, to serve from January 1, 1947, for a term of two years or until his successor shall have been appointed and qualified. Said respondent judge now refuses to so appoint said relator although he is possessed of all the statutory qualifications for this office. Respondents first filed a motion to dissolve the temporary writ of prohibition which issued at the time this case was started. This pleading is one not contemplated by the rules of this court. Rule 2-36, 1946 Revision, provides that no pleading other than a response shall be entertained and that this response may show any reason in law or in fact why the writ should not be obeyed. We have decided, however, for this case, we will examine said motion and treat the same as part of the response in this action. As grounds for this motion it was respondent's contention that this court was without jurisdiction; that the act upon which this cause was founded provides for the appointment of the board of registration by the judge of the circuit court and not by the court itself; that when said judge makes the appointment he is acting not as a court but in an administrative capacity; and as there is no proceeding pending in the Marion Circuit Court involving this matter there is no judicial *Page 11 proceeding to which the relator is a party upon which a writ could be issued by this court. To justify the refusal said judge sets out in the response that after the recommendation of the county chairman he investigated the relator to determine his qualifications for service on said Board of Registration of Marion County and found that relator "was a Ward Chairman for the Democratic Party of the 24th Ward in the City of Indianapolis, Indiana; is actively engaged by virtue of such position in the partisan operation of the political party system in the State of Indiana; is a man without substantial educational qualifications and has had little or no executive or administrative experience in business or commercial fields and respondent then determined, in his discretion, that said Buttz was therefore a person who did not possess the high qualifications which respondent feels are necessary for the members of such Board of Registration." The respondent also alleges that the statute above referred to is unconstitutional to the extent that the same attempts to deprive him as judge of judicial discretion in making this appointment and that the power of appointment once given to him as judge by this statute could not be controlled by some outside person. That part of the Acts of 1945, ch. 208, § 50, § 29-3406, Burns' 1933 (Supp.), which is involved in this proceeding, reads as follows: "In and for any county having a population of eighty thousand (80,000) or more as shown by the last preceding United States census the judge of the circuit court in any such county shall appoint the two (2) members of said board of registration, one each from the two (2) political parties which cast the highest and the next highest number of votes for secretary of state in such county at the last preceding general election and who shall be legal voters of such county; such appointments *Page 12 shall be made within ten (10) days after the judge of the circuit court shall have received the respective written recommendations for said appointments from the two county chairmen of the said two political parties the judge of the circuit court shall appoint such nominees. Such written recommendations shall be filed personally with or forwarded by registered mail to, the said judge of the circuit court in any such county not later than ten days after the taking effect of this act and the members so appointed shall serve until the first day of January, 1947. On the first day of January, 1947, and on the same day of the same month of each odd numbered year thereafter, the judge of the circuit court in any such county shall appoint such two (2) members of said board of registration upon the written recommendations of the respective county chairmen of said two political parties which shall be filed personally with, or forwarded by registered mail to, the said judge of the circuit court in any such county at least ten days prior to the time provided herein for said appointments to be made, and said members of said board of registration when so appointed and qualified shall serve for two years or until their successors shall have been appointed and qualified. Should any vacancies occur on said board they shall be filled in like manner as original appointments are made:" The response and the brief filed in support of it call our attention to the fact that this court in the case of Harrell v.Sullivan (1942), 220 Ind. 108, 40 N.E.2d 115, 41 N.E.2d 354, decided that ch. 100 of the Acts of 1941, was unconstitutional and void. That act, insofar as the appointment of the board of registration in counties having a population of over 80,000 persons is concerned, is to all intents and purposes the same as the statute here involved. It is the contention of the relator and of the amicus curiae that the case of Harrell v. Sullivan, supra, was wrongly decided and that the statute involved herein is in all things valid. *Page 13 In the last mentioned case this court decided that the General Assembly may not, as was here attempted, limit and narrow the right of appointment to public office to members of a 1. particular political party and to do so is a violation of Art. 1, § 23 of the state Constitution which reads as follows: "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." With this statement of the law we cannot agree when the same is applied to the case before us. It is true that this court, in the case of The City of Evansville v. The State, ex rel. Blend (1888), 118 Ind. 426, 435, 21 N.E. 267, in considering the provisions of a statute requiring that officers of police and fire departments of certain cities should be divided between the two leading political parties, said: "The act classifies the citizens of the two cities to which it applies, as to the positions and employments on the police force and in the fire department, by requiring that all officers and employees be selected from the two leading political parties found in these cities. "It is well known that members of probably a half-dozen political parties reside in these cities, and that a large number of citizens who belong to no particular party reside therein. All of these persons are disqualified for positions and employment in either of the departments named. "If it is competent for the Legislature to require as a test for position or employment under the provisions of the act under consideration, membership in a political party or organization, it is difficult to understand why a religious or any other test may not be made. "We are of the opinion that in so far as the act creates a residence qualification or prescribes a *Page 14 political test, it contravenes the Constitution. It is not only in violation of the spirit, but of the letter of section 23, article 1." And again in considering this subject in the case of TheState, ex rel. Holt v. Denny, Mayor (1888), 118 Ind. 449, 479, 21 N.E. 274, this court stated that a law limiting the right to hold police offices in cities to persons belonging to one of the two leading political parties within such city, is invalid "as it grants to a class of citizens belonging to two leading parties privileges and immunities, viz., the right to hold such police offices, that it does not confer on all citizens." We do not approve of either of the last two cases above cited as applied to the facts in this case. The provision in the statute under consideration is merely a direction to select from the two leading political parties, which is a rule for the guidance of the appointing officer, and 2. imposes no act or exaction upon the officer appointed. The People ex rel. v. Hoffman (1886), 116 Ill. 587, 5 N.E. 596, 8 N.E. 788; State ex rel Jones v. Sargent (1910),145 Iowa 298, 124 N.W. 339; Commonwealth v. Plaisted (1889),148 Mass. 375, 19 N.E. 224. If we were to hold that the statute lays down a political test it will be noted that our state Constitution nowhere prohibits a political test for public office. The only test for office which our Constitution proscribes is a religious test. Constitution of Indiana, Art. 1, § 5. This court in Strange v. Board, etc. (1910), 173 Ind. 640, 649, 91 N.E. 242, in discussing the words "privileges or immunities" as used in said Art. 1, § 23 of our state Constitution and in § 1 of the 14th Amendment to the Federal Constitution very appropriately said: *Page 15 "The courts have not attempted to define the words `privileges or immunities' of either Constitution. They are regarded as general, abstract, personal rights: rights which are in their nature fundamental, and pertain to all citizens in free governments, and which they are entitled to enjoy throughout the several states of the Union, as well as in the state of residence: such as freedom of travel, the pursuit of any lawful vocation or of pleasure, the enjoyment of life and liberty, the acquisition of property, the right to control it in security and peace, and the right of resort to the courts for its protection, without restrictions other than those usually affecting all persons . . . there may be classifications, and rights may be conferred upon some classes and not upon others." In the case of Hovey, Governor v. The State, ex rel. Riley (1889), 119 Ind. 386, 391, 21 N.E. 890, speaking of officers of 3. the benevolent institutions of the state this court said: "Offices of the class under immediate mention are not such as every elector may justly claim a right to hold solely on the ground that he is a voter and all voters are entitled to hold offices, but they are offices which the Legislature may restrict to competent persons by prescribing what shall be the qualifications of those who enter them. It is within the authority of the Legislature, by virtue of its general power, to require that the officers of this class shall be selected from different political parties, or that they shall be persons of peculiar skill and experience. It may indeed, provide for the appointment of women to this class of offices, as has been done in some instances. If we are wrong in affirming that, in this class of offices, the Legislature may prescribe particular qualifications, then the practice of all the departments has been in many instances a persistent violation of the Constitution." The above quotation was approved in the case of State, exrel. v. Goldthait (1909), 172 Ind. 210, *Page 16 87 N.E. 133, which involved the offices of county councilman and county assessor. In our opinion this is a correct statement of the law as applied to the facts in this case. Quoting from State, ex rel. v. Goldthait, supra, at page 218, this court said: "There is no constitutional or inherent right to hold office, or in citizens to vote. They are political privileges, and the conditions of office holding and of voting must be complied with. If prescribed by the Constitution they cannot be abridged; if not, the legislature may prescribe them." See also Mosley v. Board, etc. (1929), 200 Ind. 515,165 N.E. 241. It has been held universally that in the absence of constitutional restrictions there may be qualifications imposed by the Legislature for holding public office. Mechem on PublicOfficers, §§ 64 to 68 inclusive. The fact, however, that the Legislature may fix qualifications for holding public office and that not every voter may claim the unqualified right to hold any particular office, does 4, 5. not mean that in the fixing of such qualifications the Legislature is not bound by the equal privileges and immunities clause of the Constitution. The qualifications fixed may not be arbitrary, they must be reasonable and based upon substantial grounds which are natural and inherent in the subject matter of the legislation and the right shall belong equally to each member of the class created by such qualifications.Fountain Park Co. v. Hansler (1927), 199 Ind. 95,155 N.E. 465. Statutes in other jurisdictions requiring selection or appointment of public officers or agents from members of a political party similar to the statute under consideration have been upheld in the following cases: *Page 17 Commonwealth v. Plaisted, supra; State ex rel. Jones v.Sargent, supra; State ex rel. Churchill v. Bemis (1895),45 Neb. 724, 64 N.W. 348. See also 140 A.L.R. 471 Note. Although there are authorities to the contrary we believe that the cases holding these statutes valid state the true rule. It is a reasonable classification and within the legislative 6. intendment to promote fair elections and was designed to secure impartiality and freedom from political bias and action on the part of the board of registration. In passing we will state that we approve the holding in the case of Blue v. State ex rel. Brown (1934), 206 Ind. 98,188 N.E. 583, wherein this court determined that a statute was not objectionable which required deputy registration officers to be selected as nearly as practical from the two political parties which cast the highest and second highest vote for secretary of state. This was determined on the theory that these deputies are not public officers but temporary appointees and therefore do not exercise rights and privileges to which every person is entitled. We do not, however, approve of the reasoning by which this holding was arrived at for, as we have heretofore pointed out, had these appointees been considered public officers the result should have been the same. Respondents contend that the provisions of the statute providing for the appointment of the county registration board by the judge of the circuit court is an unlawful invasion of the executive by the judicial department and in support of this contention have cited the case of Tucker v. State (1941),218 Ind. 614, 35 N.E.2d 270. 7. In our opinion Art. 3, § 1 of the state Constitution which provides that: *Page 18 "The powers of the government are divided into three separate departments; the Legislative, the Executive including the Administrative; and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided." relates solely to the state government and state officers and their duties under one of the separate departments of state.Sarlls, City Clerk v. State, ex rel. (1929), 201 Ind. 88,166 N.E. 270. The case of Tucker v. State, supra, was dealing only with state officials and the powers of the governor. There is no attempt in that case to overrule or to explain away the 8. many cases wherein this court has held that the Legislature has the right to empower the judge of the circuit court to make appointments such as was provided in the involved statute. As was said in City of Indianapolis v. State, ex rel. (1909),172 Ind. 472, 478, 88 N.E. 687: "It is too late now, in the jurisprudence of this State, to assert that courts cannot properly exercise a power that is not strictly judicial; in fact, it may be said that no department of the state government attempts to, nor was it intended by the framers of the Constitution that it should, perform all the minor duties of a kindred and appropriate character pertaining thereto that should arise in the proper administration of local affairs. Such construction would make our system of government cumbersome and impracticable. For more than fifty years the legislature has continually conferred upon judges powers and duties of a non-judicial character, which have been upheld." See also Petition for Appointment of Magistrates (1940),216 Ind. 417, 24 N.E.2d 773; St. ex rel. Sch. C. of South Bend v. Thompson, Aud. (1937), 211 Ind. 267, 6 N.E.2d 710; Cityof Terre Haute v. *Page 19 Evansville and Terre Haute R.R. Co. (1897), 149 Ind. 174, 46 N.E. 77. It is well to consider the fact that prior to our decision inHarrell v. Sullivan, supra, legislation of the character under consideration which provides for the selection of 9. local officers from the two dominant political parties and that selection be made by the judge of the circuit court has been acquiesced in and gone unchallenged in the State of Indiana for approximately sixty years last past. Under the doctrine of practical construction this circumstance should be considered a potent factor in determining the validity of the statute under consideration. The State v. Gerhardt (1896),145 Ind. 439, 44 N.E. 469; City of Terre Haute v. Evansvilleand Terre Haute R.R. Co., supra. We also held in Harrell v. Sullivan, supra, "That it was beyond the power of the legislature to confer upon officers of political parties the right to make nominations which are binding on the appointing agency." The section of our statute here involved is contrary to this pronouncement. It is clear that the Legislature intended that the circuit judge should appoint as election commissioner the person recommended by the county chairman of the party of which such person is a member. We do not approve the above quoted statement from Harrell v.Sullivan, supra. It is our opinion that when the Legislature conferred upon the county chairman the right to make this 10. nomination it was exercising a reasonable police regulation to promote the public welfare. State ex rel.Milwaukee Medical College v. Chittenden (1906), 127 Wis. 468, 107 N.W. 500. Political parties through conventions and primary elections, regulated by state statutes, select our candidates *Page 20 for the most important public offices, and in so doing are 11. acting as state agencies and not as voluntary associations. Smith v. Allwright (1944), 321 U.S. 649, 88 L.Ed. 987, 64 S.Ct. 757. In exercising their political rights they and their representatives are essential to a republican form of government. The selection of a county chairman under our political set up is made by the county committee and is regulated by statute. § 29-2901, Burns' 1933 (Supp.). The county committee acts in matters of major public interest as does the chairman of that committee. No persons could be more interested in securing the proper administration of our registration law than the county chairmen of the parties authorized by the act in question to so nominate. This right of nomination is a reasonable requirement for the promotion of fair elections. In speaking of members of boards of election it has been well said "The act creating the office provides for the nomination by the state chairman of the two most powerful political parties of two of the members of the board. To insure a democratic form of government, it is necessary that there be at least two strong political parties holding different views upon political questions. . . . To insure honest elections it is essential that the county board be made up at least by the choice of both powerful political parties. The executive committees of political parties in this country act in matters of high public interest . . ." Driscoll v. Sakin (1938), 121 N.J.L. 225, 227,1 A.2d 881. See also Bullock v. Billheimer (1911), 175 Ind. 428, 94 N.E. 763. If what was said in Tucker v. State, supra, holding that the Legislature was without authority to vest sovereign power in a private agency, was intended to include *Page 21 a state of facts such as we have here, we must, to that extent, disapprove of same. Respondents insist that § 3-2201, Burns' 1946 Replacement, being the statute which grants this court the right to mandate inferior courts to perform any duty enjoined upon them by 12. law, is not broad enough to empower this court to mandate an inferior court to perform a non-judicial ministerial act as here attempted. With this contention we cannot agree. From the facts set out in the response it must be admitted that the relator was entitled to be appointed to the office which he seeks if the statute involved is constitutional. There is no showing by the response that there had not been a complete compliance with the statute on the part of the relator and the Democratic County Chairman; what remains to be done is but a ministerial act on the part of respondent judge which act is a duty imposed by law. Said § 3-2201, Burns' 1946 Replacement confers upon this court, among other things, the power to issue writs of mandate to the circuit, superior, criminal, probate, juvenile or municipal courts compelling the performance of "any duty enjoined by law" upon such courts including the granting of changes of venue from the county. It is our opinion that by the term "courts" the Legislature intended to include judges of said courts. It will be noted that this statute specifically includes granting changes of 13. venue from the county as one of the acts that may be compelled. Our statutes on change of venue contemplate that such a change of venue can be had in vacation. §§ 2-1405, 2-1406, Burns' 1946 Replacement. To hold, therefore, that this statute does not include the duties imposed upon judges would lead to the result that this court *Page 22 could not compel a change of venue which is being attempted in vacation. The above section is an amendatory act, Acts of 1933, ch. 102, § 1. By the terms of said amendment there were added the courts above mentioned other than the circuit, superior and criminal courts otherwise this section was not changed. Prior to said last mentioned amendment this court in construing the above quoted words "any duty enjoined by law" determined that it conferred upon the Supreme Court jurisdiction to issue original writs of mandate for the purpose of supervising and controlling the actions and jurisdiction of said courts. State ex rel. v.Beal (1916), 185 Ind. 192, 113 N.E. 225. In the last mentioned case it was held that we could mandate the judge of the Superior Court of Vigo County to render, in an appeal from the amount of assessments levied against property holders for a street improvement, a so-called judgment against the City of Terre Haute and in favor of the lien holder to the extent that said assessments were reduced, all as provided by statute. As such duty to enter said so-called judgment was clearly mandatory, under the terms of the special improvement statute, it was a ministerial act. It will be noted that there was no action pending in which the relator in that case was a party and that the act mandated was not a judicial act because, as the court pointed out, it could not be construed as a rendition of judgment against the City of Terre Haute in favor of the relator. We conclude that the case of Harrell v. Sullivan, supra, must be and is hereby in all things overruled, and that the response filed herein is not sufficient to show cause and the respondent, Lloyd D. Claycombe, as judge of the 19th Judicial Circuit of Indiana should be and is hereby mandated and ordered to appoint this relator, Ira Buttz, as a member of the Board of Registration *Page 23 of Marion County to serve as such member until the first day of January, 1949, or until his successor shall have been appointed and qualified. NOTE. — Reported in 72 N.E.2d 225.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427284/

Appellant began this action seeking a judgment declaring her personal liability, or lack of it, on a guaranty appearing on the back of $170,000 of preferred stock issued in the year 1922 by the J.B. Hamilton Furniture Company, a corporation, to appellees Porters and Hester Porter Fuller. The stock was issued pursuant to a written agreement between the Porters on the one part and Joseph B. Hamilton, Lucy Hamilton, and appellant on the other part, by which the first parties transferred and assigned to the second parties all of the capital stock of the C.H. Campbell Furniture Company and all of the assets and property of that company, in consideration of which the second parties agreed to procure a reorganization of the company under the name of J.B. Hamilton Furniture Company and to increase the capital stock of the company, and provide for $170,000 of preferred stock to be issued to the second parties and by them assigned and transferred to the first parties. The said preferred stock was to be due and payable at the end of ten years from February 15, 1922, and was to provide for the payment of cumulative dividends at the rate of 7 per cent per annum, payable semi-annually. It was provided in the contract that "said certificates of preferred stock to be endorsed by the said Joseph B. Hamilton and Emma Hamilton, personally." The contract was carried out, the company reorganized, the stock increased, and the preferred stock referred to was issued to the Hamiltons and by them assigned to the Porters as agreed, and the certificates were indorsed on the back as follows: "We, the undersigned, guarantee the payment of this certificate of stock, according to its terms. Dated the 29th day of March, 1922. JOSEPH B. HAMILTON, EMMA HAMILTON." The court concluded as a matter of law that, under this *Page 612 agreement, appellant was liable to pay any amounts which were not paid by the J.B. Hamilton Furniture Company, according to the terms of the contract, and that the Porters and Hester Porter Fuller are creditors of Emma Hamilton to the extent of any unpaid amounts which were due upon the preferred stock. It is contended by appellant with much earnestness that the liability of the corporation under the preferred stock certificates was only the liability of a corporation to 1, 2. its stockholders; that the guaranty was no broader and imported no greater liability on the part of the appellant than the liability of the corporation expressed in the certificate. In other words, that the guarantors merely agreed that if and when funds were available and due from the corporation to the holders of the preferred stock, either for the purpose of paying interest or for redemption, they would be paid by the corporation; that, since the corporation is insolvent and in the hands of a receiver and there are no funds available, there is nothing due from the corporation, and therefore nothing due from appellant under the guaranty. This position cannot be sustained. In the contract it is said that the preferred stock is to be "endorsed" by the Hamiltons, but when the stock was issued the intention and meaning of the parties was interpreted by appellant in the indorsement quoted above, which was actually put upon the stock. This amounts to an unqualified guaranty of the payment of the certificate of stock according to its terms. It could mean nothing else than an agreement that if the corporation did not pay, or if it could not pay, the guarantors would pay. Much evidence was heard, but it would seem that the contract and agreement of the parties clearly and unequivocally discloses the obligation of appellant, and there is no necessity to look further than their written agreement. It is contended that the corporation could not lawfully bind itself to *Page 613 pay, that is, to redeem its preferred stock within ten years; that such an agreement being invalid was not enforceable against the corporation, and that it is not therefore enforceable against appellant. It is not necessary to decide whether or not the corporation had the right to make such an agreement, and whether it is enforceable. The corporation did have the right to redeem its stock at the end of ten years if it had the funds with which to do so, and appellant had the undoubted right to guarantee that it would have the funds and would redeem the stock, and to agree to redeem it and pay if the corporation did not do so, and this without regard to whether the corporation could be compelled to redeem and pay if it failed to voluntarily do so. Even indorsers on ordinary promissory notes are compelled to pay where the principal fails, notwithstanding payment cannot be enforced as against the principal because of exemption laws or insolvency, and notwithstanding the principal has agreed to waive exemption laws, which he may not effectively do because of a public policy which forbids. If the contract of an infant for the payment of money is indorsed, and the infant does not pay according to its terms, the indorser will be liable notwithstanding the contract could not be enforced against the infant. And the same rule applies to indorsers or guarantors of the contracts of married women when they were without power to bind themselves by contract. In Davis et al. v. Statts (1873), 43 Ind. 103, a case in which sureties for a married woman advanced the same contention that appellant advances here, that is, that "a surety is not liable further than the principal, and whatever discharges the principal discharges the surety," it was held that the contention could not prevail, and many authorities are cited to sustain the view. The obligation of a surety differs but little from that of a guarantor, and the differences are *Page 614 technical and generally not substantial. It is said in the text of 28 C.J. 909, that, as a general rule, the liability of the principal debtor measures the limits of the liability of the guarantor, and that where the contract is invalid as to the principal maker the guaranty agreement cannot be enforced, but that there are exceptions to this rule "where the defect is not in the contract itself but pertains to matters which are personal to the principal debtor, or which arise from causes which originate in the law." In subsequent sections and notes cases are cited involving contracts of married women, infants, and corporations, which were enforced against guarantors when they could not have been enforced against the principals. But the contract here involved is not invalid. In any view of the statutory powers of corporations, with respect to preferred stock, it was lawful for the corporation to pay the dividends upon the preferred stock and redeem the preferred stock within the time specified in the stock certificate if earnings were available for that purpose. The contract therefore was not unlawful or invalid. It was at most only unenforceable against the corporation in the event there were no earnings out of which to pay. The agreement of the guarantor was not to do what the corporation could be compelled to do; the agreement was to do what the corporation agreed to do. The corporation having failed or become unable to do what it had agreed, appellant became liable upon her obligation for "the payment of this certificate of stock according to its terms." In 1930 appellant assigned her property in trust to appellees George H. Meiks and The Shelby National Bank under a contract which recites that appellant is indebted to divers creditors named in the schedule attached, and that her debts are becoming due and payable; that she does not have liquid assets at her disposal with which to pay the indebtedness; that in order to *Page 615 pay her obligations it will be necessary to dispose of certain of her property and assets and convert it into cash; that she is desirous of placing her property "in such manner so that the largest amount of funds possible may be realized therefrom; and that the same, when so realized, be applied to the payment of said obligations and said creditors are consenting to have said property so used . . . and to avoid, so far as it can be done, the costs and expense of litigations, and to prevent the sacrificing of property." It is represented in the contract that appellant's gross assets, subject to the payment of her indebtedness, are largely in excess of her indebtedness, but that the assets are not readily convertible into cash by sale without sacrifice and expense; that it is believed to be to the mutual interest of herself and creditors that her assets be conserved and liquidated for the benefit of all parties concerned. The contract and conveyances thereunder vest title to "all of her property, real and personal," in the trustees "in trust for the benefit of said creditors, and to have the same managed, controlled and liquidated so far as necessary by said Trustees, for the benefit of said creditors, except, however, such part of said property as shall by this agreement be reserved and set aside for the use of the said Trustor." The clause reserving property from the assignment is as follows: "The property set out and described in `Schedule B,' attached hereto, shall be set aside and set over to the said Emma Hamilton for her use as a residence, free from all obligations thereon, including taxes, the same to be used by her for the purpose aforesaid, so long as this trust agreement shall continue, and in addition thereto the said Emma Hamilton reserves, and it is agreed that she shall receive out of the rent, income and proceeds of said trust property, the sum of Six Thousand Dollars ($6,000.00) per year, payable to her by the said Trustees out of such *Page 616 proceeds, in twelve (12) equal monthly payments, beginning on the 1st day of November, 1930, the same to be for her exclusive and personal use." It was contended by appellees, and held by the court below, "that the only fund cut of which she was and is entitled to receive her yearly allowance of $6,000 is that coming 3, 4. into their hands as trustees from the gross rents, income and profits upon the corpus of the property in their hands as such trustees, and does not include the proceeds from any sale or liquidation of such corpus, but that all of such proceeds shall be for the benefit of the creditors." This conclusion seems to have been arrived at upon the theory that, since the word "proceeds" follows, and is used in connection with, "rents and income," the rule of ejusdem generis applies, and that the word "proceeds" refers to only such proceeds as are derived from rents and income. But rules of construction may only be resorted to to determine the meaning and intention of parties in the use of words in their contracts when the meaning is so ambiguous or obscure that their intention cannot be determined from the language of the contract itself. It does not seem necessary to depart from the contract itself for a determination of the meaning of the word "proceeds" as used therein. It is argued that the contract gives the trustees the right to sell and convey the properties and collect "the proceeds derived therefrom and pay out and dispose of the same for the benefit of the said creditors until the obligations of said creditors shall be paid in full," and that this indicates an intention that the money received for a sale of any of the corpus of the property is to be used exclusively for the payment of creditors, but it will be noted that the word "proceeds" is here used in reference to sums received from the sale of property. It is also argued that the language of the instrument, which provides that "it is the intention and *Page 617 purpose of this trust agreement that said property shall be converted into cash or liquid assets and applied to the payment of the creditors as rapidly as the same can be done," sustains the contention that all funds received from the liquidation of assets were to be paid to the creditors. But it is also noted that out of the corpus of her estate her residence is unqualifiedly reserved in appellant, and that there is reserved for her, even at the expense of delay in the payment of her creditors, in full or in part, an income of $6,000 per year "out of the rent, income and proceeds" of said trust property. It is not only the proceeds of the sale and liquidation of the property that are to be used under the contract for the payment of creditors, but the rent, profits, and income also. It is provided that all of the property assigned and conveyed to the trustees shall be held, owned, and controlled with the "rents, profits and income arising therefrom . . . for the purposes granted and stated herein." The purpose, of course, is the payment of appellant's creditors. It is provided that the "proceeds" derived from the sale of property after the payment of liens, etc., are "to be applied and used in the general funds of said estate." The only other sources from which general funds would arise are rents, income, and profits. It is also provided that "said Trustees shall apply the proceeds derived from the management of said estate by them to the payment of the debts at any time there is sufficient funds on hand to pay not less than ten per cent on the debts entitled to share in such distribution." It would not be contended that the word "proceeds" here does not include the proceeds of the sale of the corpus of the estate as well as rents, income, and profits; and still, it cannot reasonably be contended that, if prior to the first day of any month, there were in the hands of the trustees funds sufficient to pay 10 per cent of appellant's debts, and no more, it was the intention that all *Page 618 of such funds should be paid out, leaving nothing with which to pay appellant her monthly installment of the $6,000 reservation of income for her; and that if again before the first of the following month there were sufficient funds to pay 10 per cent of the debts, and no more, they should again be paid out, and so on each month; and that under such circumstances it was not intended by the contract that appellant should receive any income. Such a contention is obviously unreasonable. Appellant had conveyed all of her property in trust for her creditors. It was assumed by her to be more than enough to pay her debts. The purpose of the assignment was to avoid hasty liquidation and the loss incident thereto. All of her creditors agreed to the terms of the trust, and it will be noted in passing that she listed the Porters as creditors. It is apparent from the record that appellant was an elderly woman and that she was the owner of a considerable estate. It is clear that she desired to retain her home in which to live and sufficient means to pay her living expenses. This income is fixed in a definite and limited amount. She reserved no other source of income. It cannot be reasonably concluded that appellant had expected, or that her creditors expected her, to live entirely without income in the event there were no incoming rentals or profit from her property, or that, rentals and income having been paid to creditors until it was exhausted prior to the first of any month, she should not have recourse to funds from the sale of property in order that she might live. There is nothing in the context of the long agreement to indicate that the word "proceeds," which is used in the fourth paragraph of the contract in its broad sense so as to include not only rents, profits, and income, but also funds derived from the liquidation of assets, and in the ninth clause of the contract in the same sense, was intended to be limited in its meaning in the second *Page 619 clause to that part of the proceeds of the trust property which arose out of rent, income, and profits only. That there was no design and intention to separate rent, income, and profits from the proceeds of the sale of property in liquidating it, is indicated by the provision of the seventh paragraph of the contract, which provides that the net proceeds from sales, after paying liens and encumbrances, shall be "applied and used in the general funds of said estate." If the contract could be interpreted as intending that the reserved income of appellant should be paid exclusively from rents, income, and profits, there might be a basis for a contention on her part that such "proceeds" should be reserved for that purpose, and not applied to the liquidation of her debts, which was clearly not intended. No basis is found for the trial court's conclusion that the word "proceeds" should be given a more limited meaning in the clause reserving an income to appellant than in the other sections of the contract, and the court therefore erred in its conclusion four. For this error, the judgment is reversed, with instructions to the trial court to restate its fourth conclusion of law consistent with this opinion, and to render judgment accordingly. Tremain, J., not participating.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4327176/

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN JUDGMENT RENDERED NOVEMBER 1, 2018 NO. 03-06-00694-CR Jimmy Jay Jensen, Appellant v. The State of Texas, Appellee APPEAL FROM THE 277TH DISTRICT COURT OF WILLIAMSON COUNTY BEFORE CHIEF JUSTICE ROSE, JUSTICES FIELD AND TOTH AFFIRMED -- OPINION BY JUSTICE FIELD This is an appeal from the judgment of conviction rendered by the trial court. This Court’s opinion and judgment, dated May 31, 2007, are withdrawn, and the attached opinion and this judgment are substituted in their place. Having reviewed the record and the parties’ arguments, the Court holds that there was no reversible error in the trial court’s judgment of conviction. Therefore, the Court affirms the trial court’s judgment of conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs is made.

01-03-2023

11-02-2018

https://www.courtlistener.com/api/rest/v3/opinions/3427287/

This is an action brought by the appellee against the appellant to collect upon a life insurance policy, wherein appellee's husband was insured and appellee was the beneficiary. The policy was dated December 27, 1934, was delivered on January 17, 1935, was paid for February 7 or 8, 1935, and the insured died on February 15, 1935, as the result of coronary thrombosis evidenced by angina pectoris. In his application for the policy the insured agreed that no policy be issued on the application should take effect unless the first premium should be paid during insured's good health and the insured stated that he had never been under observation or treatment in any hospital and had never had or been treated for any disease or disturbance of the heart or blood vessel and that during the five years immediately preceding, the only doctor who had treated him was Doctor Tice, who gave him a general physical examination *Page 214 and check up in August, 1934. The appellant rescinded the contract on the ground the insured was not in good health when the first premium was paid and during the first few months immediately preceding the issuance of the policy had had attacks of angina pectoris and had been in Washington Boulevard Hospital in Chicago in August of 1934, for observation and treatment and had consulted and been treated by other doctors than Doctor Tice during the few months immediately preceding the application for the policy. The appellant filed four paragraphs of answer to appellee's complaint. The first was a general denial; the second was based upon the proposition that the insured was not in good health when the first premium was paid; the third was upon the theory of false representations in the application on account of which the defendant has rescinded the contract; and the fourth was upon the theory that the insured was not in good health when the first premium was paid on account of which the defendant had rescinded the contract. The case was tried by a jury and the verdict was returned in favor of the plaintiff. The error assigned for reversal is that the court erred in overruling appellant's motion for a new trial. It is alleged in the motion for a new trial that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, and that the court erred in giving and refusing to give certain instructions and in the admission and refusing to admit certain evidence. Part two of the application contains the statements made by appellant to the medical examiner. Question three E, with the answer to same, is as follows: "Have you ever been under observation or treatment in any hospital, asylum or sanitorium?" Answer "No." Question six C, with answer, is as follows: *Page 215 "Have you ever had or been treated for any disease or disturbance of the heart or blood vessel? Answer "No." Question nine is, state every physician or practitioner whom you have consulted or who has treated you during the past five years? The answer to which under the heading name and address of each is Doctor Frederick Tice, 25 W. Washington, Chicago, and under headings, date and details and result is general physical examination in August, 1934, for general check up. Part two of the application was signed by Albert B. Strasberg and is dated Martinsville, Indiana, November 28, 1934, and witnessed by Austin D. Sweet, M.D. The appellant executed and delivered the policy to said Strasberg upon the written application of the said Strasberg and in part one of said application it was provided: "All of the foregoing answers and all of those contained in part two hereof are true and are offered to the society as an inducement to issue the policy or policies for which application is hereby made." And the applicant further stated: "I agree that the foregoing answers shall be part of my application which shall consist of parts one and two taken together and that the foregoing answers shall become part of any policy, contract that may be issued upon the strength thereof." The evidence shows that the insured, Albert Strasberg, consulted Dr. Hartley F. Mars in August, 1934, and after an examination he was told that he had coronary thrombosis; that the condition was serious and that he should be hospitalized and he was also told by the doctor that unless he went to a hospital for rest and observation he would probably die from this condition. Dr. Mars attended him again on February 10, 1935, and found him to be suffering from heart trouble. *Page 216 The evidence also shows that the insured consulted Dr. H.H. Basler in July, 1934. He told Dr. Basler that he had been having pains in the chest and around the heart from three to five months. The doctor told him he had angina pectoris and that he would have to go to bed and take care of himself and keep off his feet. The doctor prescribed a line of treatment at that time. Dr. Basler was called to his home on February 8, 1935, and found him practically in the same condition as when he saw him in July, 1934. It is further shown and admitted that the insured was in the Washington Boulevard Hospital, Chicago, from August 16 to 21, 1934, and while in the hospital he consulted Drs. Tice and Winter. Dr. Tice testified that he saw the insured in the Washington Boulevard Hospital on August 16, 1934, and that he told him he had been sick for ten weeks with pain in the chest. The doctor said his outstanding complaint was chest pains, choking sensations, and more or less continuous dull aching sensations in the region of the heart. Dr. Winters testified that he was an interne in the Washington Boulevard Hospital, Chicago, in August, 1934, and a graduate of the Rush Medical College; that he saw the insured in the hospital in August, 1934; that he took his history and examined him and that he complained of choking sensations for about two and one-half months; that the insured told him that when he had the choking sensations he usually had a dull pain in the region of the heart. The evidence also shows that the insured consulted to the Veteran's Hospital at Hines, Illinois, on February 11, 1935. He was under the supervision of Dr. Hollingsworth and was sent to his ward for treatment for a heart condition. He told Dr. Hollingsworth that he had pains in his chest for the past year or so, which became very severe some three months previously. The *Page 217 insured died on February 15, 1935, and Dr. Hollingsworth was of the definite opinion that he died of coronary occlusion and there was no evidence to the contrary. The evidence clearly shows that at the time the first premium was paid the insured was not in good health, but was suffering from a serious heart ailment. Under the undisputed evidence in this case it is apparent that it must be reversed. The answers to questions 3E, 6C., and 9 were clearly false as shown by the uncontradicted evidence. As 1-3. said in the case of Metropolitan Ins. Co. v. Head (1927), 86 Ind. App. 326, 328, 157 N.E. 448. "It is well established that if representations in an application for insurance are false and material, that is, are such as would have influenced the action of the company upon the application in regard to whether or not it would grant the insurance, the policy will be vitiated unless the company has in some way waived the benefit of it by its conduct and with knowledge of the facts." There is no evidence to show that the appellant in any way waived its rights under the policy. False statements in an application for insurance respecting a fact material to the risk voids the policy. "Where facts are misrepresented, the measure of materiality is whether knowledge of the true facts might have led the company to decline the risk, or accept it only for a higher premium." Metropolitan Life Insurance Co. v. Becraft (1938),213 Ind. 378, 386, 12 N.E.2d 952. We are of the opinion that the verdict is clearly not sustained by sufficient evidence and is contrary to law. In view of the conclusion we have reached we do not consider it necessary to discuss other propositions presented. Judgment reversed. *Page 218

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427289/

This is an action by appellee to contest an instrument in writing purporting to be the last will of John T. Workman, deceased. The purported will was probated in the Martin Circuit Court on May 19, 1938. The original complaint in this action was filed in the Martin Circuit Court on the 25th day of March, 1939. On March 31, 1939, before any of the appellants appeared *Page 251 in this action, appellee filed the amended complaint on which said action was tried. Subsequent to the filing of the amended complaint and before the trial, the record discloses the following facts which are important in the consideration of some of the questions presented to this court for determination: On April 6, 1939, the defendants (appellants) entered their full appearance in said cause. On April 13, 1939, the plaintiff (appellee) moved the court for an order to require the defendant to submit to an oral examination regarding the matters set forth in plaintiff's complaint. This motion was on the same day granted and the examination ordered to be taken on the 2nd day of June, 1939. On August 15, 1939, said court ruled the defendants to answer plaintiff's complaint. On August 16, 1939, the defendants filed their joint and several motion to dismiss the plaintiff's amended complaint. On August 28, 1939, the plaintiff filed his verified motion for a change of venue from Martin County, which motion was sustained by the court on the same day. On August 29th both of the parties appeared in open court, and not being able to agree on a county to which the venue of said cause would be changed, after the plaintiff and defendants had alternately struck, as provided by law, Orange County was left and the venue changed to the Orange Circuit Court. On September 15, 1939, the Clerk of the Martin Circuit Court filed the transcript of said cause in the Circuit Court of Orange County. On September 16, 1939, oral argument was heard by said court on the defendants' motion to dismiss. On September 25, 1939, the plaintiff requested leave of the court to file plaintiff's affidavit verifying plaintiff's amended complaint. On the same day the defendants separately and severally filed their verified written *Page 252 objections to the plaintiff being granted leave to verify his amended complaint. On October 6, 1939, the Orange Circuit Court overruled the verified objections of defendant to the plaintiff's being granted leave to verify his amended complaint, and the plaintiff was granted leave to file his affidavit verifying said amended complaint and thereupon filed said affidavit. On November 27, 1939, plaintiff offered to file a second verification of his amended complaint. On December 11, 1939, the defendants filed their joint and several written objections to the second verification of plaintiff's amended complaint offered to be filed November 27, 1939, which said objections were sustained by the court. On the same day the court overruled the defendant's motion to dismiss. Thereupon, on the same day, the defendants filed a second motion to dismiss said action and the court overruled said second motion to dismiss. On the same day the defendants then filed their demurrer to a part of said complaint. On February 17, 1940, the court sustained said demurrer to a part of said complaint, and on said day the defendants filed their separate and several answer in general denial to said amended complaint. Upon the issues thus joined, the cause was submitted to a jury for trial. The jury returned a verdict for appellee, and that the will in suit is not the last will and testament of John T. Workman, deceased. The court rendered judgment on the verdict and ordered that the probation of the will be set aside and held for naught, and for costs. Motion for a new trial was seasonably filed, which motion was overruled by the court and exceptions taken. The assignment of errors in this court contain five specifications, as follows: "1. The trial court erred in overruling the motion *Page 253 of the appellants to dismiss this action, which was filed in the Martin Circuit Court, of Martin County, Indiana, on August 16, 1939. "2. The trial court on October 6, 1939, erred in overruling appellants' written objections to the appellee, Ott Workman, verifying by the affidavit of said Ott Workman the amended complaint in this cause. "3. The trial court on October 6, 1939, erred in permitting the appellee, Ott Workman, over the written objections of the appellants filed in this cause, to verify the amended complaint of the appellee, Ott Workman, in this cause, by the affidavit of said Ott Workman filed for that purpose. "4. The trial court erred in overruling the motion of the appellants to dismiss this action, which was filed in the Orange Circuit Court, of Orange County, Indiana, on December 11, 1939. "5. The trial court erred in overruling appellants' motion for a new trial." In order to reach an understanding of the questions involved in this appeal, we deem it necessary to set out certain of the pleadings. Bond was filed with the original complaint. The amended complaint, omitting the formal parts and the part ruled out on demurrer, is as follows: "The plaintiff for his amended complaint herein, complains of the defendants and says, that the defendant, Ida Workman, Executrix of the Last Will and Testament of John T. Workman, is the duly appointed, qualified and acting executrix of said decedent's Will and that Ida Workman, as an individual, and Norval Sutton are beneficiaries of the Will of the decedent, John T. Workman. "The plaintiff further complaining says, that he is the son and sole surviving heir-by-blood of John T. Workman, deceased, and that he is 55 years of age. *Page 254 "The plaintiff further avers that the decedent, John T. Workman, was the husband of the mother of this plaintiff and that there were born to said union three sons, one of whom died at the age of ten, another son Charles, who died at the age of 45 without leaving any issue by him, and that the first wife and mother of this plaintiff died March 30th, 1932. "The plaintiff further avers that the deceased John T. Workman died on or about the 16th day of May, 1938, at and in the County of Martin, State of Indiana, and that at the time of his death, he was 76 years of age. "The plaintiff further avers that the defendant, Ida Workman, was married to the deceased John T. Workman on the ____ day of ____, 193_, and that the defendant, Ida Workman, had been married some two or three times prior to her marriage to the deceased, John T. Workman. "That the defendant, Ida Workman, is the mother of the defendant, Norval Sutton, who is the sole and only child surviving of the defendant, Ida Workman. "The plaintiff further avers that the decedent, John T. Workman, had resided practically all of his life in Rutherford Township, Martin County, Indiana, and that the defendant, Ida Workman, was very much younger than the decedent, John T. Workman, being not more than 51 years of age at the time of the happenings hereinafter complained of. "The plaintiff further complaining says, that the deceased, John T. Workman, had been industrious and frugal and had acquired property of the fair and reasonable value of more than $50,000.00 prior to his marriage to the defendant herein, Ida Workman, and that practically all of said property had been acquired during the time that the deceased, John T. Workman, resided with the mother and this plaintiff during the life of the first wife of John T. Workman and mother of this plaintiff. "The plaintiff further avers that he is the only heir-at-law of the deceased, John T. Workman, other than the defendant, Ida Workman, who was the second, childless wife of the deceased, John T. *Page 255 Workman, and owned no interest in his estate other than her statutory allowance of $500.00, one-third of the personal estate and a life estate in one-third of the real estate, and that the plaintiff herein, Ott Workman, would under the law, inherit the remaining two-thirds of the personal property after the payment of the widow's statutory allowance of $500.00 and would inherit the fee simple in all the real estate owned by the decedent at his death, subject only to a life estate in one-third thereof to his surviving widow and childless second wife and that said real estate and personal property that this plaintiff would inherit, under the law, is and was of the value of more than $50,000.00. "The plaintiff further avers that on the 19th day of May, 1938, a certain writing and written document purported to be the Last Will and Testament of the said John T. Workman, was presented to the Clerk of said Martin Circuit Court as the Last Will of the said John T. Workman and was on said day admitted to probate and was then and there probated as such Will and that thereupon, defendant Ida Workman was duly appointed and commissioned by the Clerk of the Martin Circuit Court as executrix of said pretended Will and attempted to file her bond as such executrix of said Will but that said bond was without security thereon in an amount sufficient to warrant the issuance of the letters testamentary to the defendant, Ida Workman, but that notwithstanding that fact, she entered into the duties of executrix of the Will of the deceased, John T. Workman, and ever since has been and still is acting as such executrix. "The plaintiff further avers that the defendants, Ida Workman and Norval Sutton, are legatees and devisees under said pretended Will; that said pretended Will purported to dispose of all of the said property, both real and personal, owned by the decedent at the death of said decedent; that all of said property, both real and personal, so owned by said John T. Workman at the time of his death was by said Will given to the defendants, Ida Workman and Norval Sutton, and no portion whatever thereof was given to the plaintiff herein and no mention of his name was made in said Will. *Page 256 "The plaintiff further avers that said pretended Will is invalid for the following reasons: That said John T. Workman was, at the time of the attempted execution of said pretended Will, of unsound mind and at said time was confined in a hospital in the City of Louisville and had been so confined for some time theretofore; that said John T. Workman at said time and prior thereto and continuously thereafter until his death, was of unsound mind and that, for a long time theretofore and thereafter until his death, was intoxicated continuously and was consuming from three (3) quarts to one (1) gallon of whiskey every 24 hours: "Second: That the alleged execution of said Will was procured by undue influence exercised over the deceased John T. Workman by the beneficiaries thereof, Ida Workman and Norval Sutton, and by the efforts of the attorney who pretended to represent John T. Workman, Mr. Herbert W. Lane: "Third: That said Will was unduly executed under duress. "WHEREFORE, plaintiff sues and asks that said pretended Will may be declared invalid for any purpose whatever and that the probate thereof may be set aside and vacated and the appointment of said Ida Workman as such executrix be held for naught and for all other proper relief. LOUIS A. SAVAGE, LUTZ JOHNSON, F. GWIN, Attorneys for Plaintiff. "STATE OF INDIANA, SS: MARTIN COUNTY "Fabius Gwin, being duly sworn, upon his oath says, that he is one of the attorneys for the plaintiff, Ott Workman, in the above entitled cause of action and that he makes this affidavit for and on behalf of the plaintiff as one of his attorneys. "Affiant further says that the matters alleged in the above and foregoing amended complaint, are true in substance and in fact, as he is informed and verily believes. FABIUS GWIN. *Page 257 "Subscribed and sworn to before me, this 30th day of March, 1939. ___________________________ Clerk." The appellants' motion to dismiss, omitting the formal parts, etc., follows: "The defendants in the above entitled cause jointly and also each of said defendants, separately and severally, move the court to dismiss this action for each of the following reasons: 1. No bond has been filed in this cause by the plaintiff or any other person in his behalf, conditioned for the due prosecution of this proceeding and for the payment of all costs therein in case judgment be awarded against the plaintiff. 2. The amended complaint of the plaintiff in this cause is not verified by the plaintiff." The affidavit which appellee requested the court to permit him to file verifying said amended complaint (which permission was subsequently granted) is as follows: "State of Indiana SS: Orange County Orange Circuit Court, August Term, 1939. "Ott Workman vs. Ida Workman, as Executrix of the Will of John T. Workman, Deceased, Ida Workman Norval Sutton "Ott Workman, being duly sworn upon his oath, says that he is the plaintiff in the above entitled cause of action, and that said cause of action is to contest the Will of John T. Workman, deceased. "Affiant further says, that the matters alleged in the above and foregoing amended complaint of this cause, are true in substance and in fact, as he is *Page 258 informed and verily believes and that said cause is brought and prosecuted for the purposes of adjudging and determining the rights of this affiant, as well as the rights of the defendant under said Will and not for vexation or for delay of the settlement of said estate, and further affiant sayeth not. Ott Workman. "Subscribed and sworn to before me, a Notary Public of LaPorte County in the State of Indiana, this the 22nd day of August, 1939. Edgar Wetzel, Notary Public." The verified written objections of the appellants to appellee's request for permission to verify his amended complaint, omitting the caption, is as follows: "The defendants in the above cause, jointly and also each of said defendants separately and severally, object to the plaintiff in this cause now verifying by his affidavit the amended complaint now on file therein, and for the reasons for such objection say: "That the Will referred to in said amended complaint was offered for probate and was probated on May 19, 1938; That since the said time of the offering of said Will for probate, the plaintiff has not been an infant, or a person who has been absent from the State, or a person of unsound mind; That more than one year has elapsed since said Will was offered for probate, and the plaintiff has not heretofore filed or offered to file any complaint or any amended complaint in this cause that was verified by the affidavit of the plaintiff in this cause; That the defendants on Wednesday, August 16, 1939, filed their motion in this cause to dismiss this action on account of the plaintiff not verifying the amended complaint; And that there is now no right for the plaintiff to verify by his affidavit the amended complaint in this cause. "Further, the verification of the amended complaint which the plaintiff is now asking leave to file is not verified by the plaintiff except on information and belief, and such affidavit showing that *Page 259 it is made only on information and belief is not a verification by the plaintiff. "Wherefore, the defendants, and also each of said defendants, object to the plaintiff now verifying by his affidavit the amended complaint in this cause, and ask that this objection be sustained, and that leave be not granted by the court for the plaintiff now to verify said amended complaint by his affidavit." Appellants' second motion to dismiss the amended complaint, in addition to the grounds set out in their first motion, was substantially as follows: That more than a year has elapsed since the probation of the Will of John T. Workman, during which time plaintiff did not file or offer to file any complaint or amended complaint verified by affidavit of plaintiff; that plaintiff did not, within one year after the probation of said will, file in the court of jurisdiction in the county where said John T. Workman died or wherein any part of his estate was situated, verified allegations stating that at the time of the execution of the will John T. Workman was of unsound mind, or that the will was unduly executed or that it was executed under duress or by fraud, or any other valid objection to its validity or the probate thereof, and that verification after one year is barred by law; that on August 16, 1939, defendants filed in the Martin Circuit Court their joint and several motion to dismiss this action for the reason that the amended complaint was not verified by plaintiff; that on August 28, 1939, plaintiff filed in the Martin Circuit Court his verified motion for a change of venue which was sustained and the cause venued to the Orange Circuit Court; that plaintiff did not at any time verify or offer to verify said amended complaint in the Martin Circuit Court or in the Orange Circuit Court prior to September 25, 1939; that on September 25, 1939, in the *Page 260 Orange Circuit Court, plaintiff offered to file his purported verification (hereinabove set out) which was filed on October 6, 1939, over the objection of defendants; that on December 11, 1939, over the objection of defendants, another verification of said amended complaint was filed; that plaintiff, on August 22, 1939, prior to the filing of the motion for change of venue from Martin County, had executed and in his possession said purported verification of the amended complaint which was filed in the Orange Circuit Court, but failed and neglected to file or offer to file same in the Martin Circuit Court or in the Orange Circuit Court, except as hereinbefore alleged; that by reason of the long and unreasonable delay by plaintiff in offering to file any verification of said amended complaint after defendants filed their motion to dismiss on August 16, 1939, this action ought to be dismissed. Appellants' specifications 1, 2, 3 and 4 in their assignment of errors all relate to the rulings of the Orange Circuit Court before trial on the question of verification of appellee's amended complaint. We understood appellants' counsel to say during the oral argument in this case that the appellants would not press the contention in their brief that the verification of appellee's amended complaint after one year from the probation of the will was barred by the law of this State. However, in their notes on oral argument filed after the argument they continue to urge this proposition. The verification of a complaint to test the validity of a will is not necessary to give the court jurisdiction, and such verification may be waived. Sutherland et al. v. 1, 2. Hankins et al. (1877), 56 Ind. 343, 347; Lange et al. v. Dammier et al. (1889), 119 Ind. 567, 570, 21 N.E. 749; Faylor v. Fehler et al. (1914), 181 Ind. 441, 104 N.E. 22. Therefore, we hold *Page 261 that the verification of the amended complaint more than one year after the probation of the will was not barred by law unless there was unreasonable delay on the part of the appellee after the matter had been called to the court's attention by appellants' motion to dismiss, or unless it be made to affirmatively appear that the trial court abused the discretion vested in it by granting appellee leave to file said verification. Appellants contend with great earnestness that there was long and unreasonable delay and negligence on the part of appellee in offering to file a verification after the motion to dismiss was filed. They assert that the filing by appellee of his motion for a change of venue from the Martin Circuit Court, and his not having offered to file the affidavit verifying said amended complaint for what they term such a long time, constituted such negligent and unreasonable delay on the part of the appellee as to require the trial court to sustain their motion to dismiss. They rely principally on the cases of Lange v. Dammier, supra;Sutherland v. Hankins, supra; Prebster et al. v. Henderson etal. (1917), 186 Ind. 21, 113 N.E. 241, 114 N.E. 691, andPudney v. Burkhart (1878), 62 Ind. 179. In the Sutherland case, supra, no objections to the failure to verify the complaint had been made to the trial court. In referring to this, the court, at page 357, said: "Now, the appellee Hankins had the right, on his appearance in thisaction, to insist upon the proper verification of appellants' complaint, before he should be required to answer saidcomplaint. If this had been done, and the court below had then refused to require the appellants to verify their complaint, another and very different question would have been presented thereby for our consideration, than the one now presented. But said appellee saw fit, as in our opinion he *Page 262 had the right to do, to waive the verification by the appellants of their complaint, and to join issue and go to trial thereon, without such verification thereof." (Our italics.) In the Lange case, supra, no objection to the failure to verify was made in the trial court except in so far as a motion in arrest of judgment can be considered an objection. In this case the Supreme Court said: "Had an objection been made at the proper time, and in the proper manner, it would have been the duty of the court to have stricken out all averments relating to the execution of the will and the mental condition of the testator, unless a verification of the paragraph had immediatelyfollowed the objection; but the appellees having joined issue, submitted to a trial, and a verdict having been returned, without any objection having been made, all right to object was waived. (Citing the Sutherland and Pudney cases, supra)." (Our italics.) The Prebster case, supra, cites the Sutherland and Lange cases, supra, and there the holding is to the same effect. The record discloses that appellee, for some time prior to the commencement of his action herein and during all the time subsequent thereto, was incarcerated in the Indiana State 3. Prison at Michigan City. The appellants, for reasons best known to themselves, waited more than four months after entering their appearance in the cause, to object to the amended complaint because it was not verified. They did nothing until ordered by the trial court to answer the complaint of appellee. Appellee, in view of this long delay of appellants in raising this question, might quite naturally have assumed it had been waived. In less than two weeks after the motion to *Page 263 dismiss was filed, appellee filed his motion for a change of venue from Martin County. The filing of the motion for a change of venue cannot be 4. construed as such a negligent or dilatory act as would bar the right of appellee to verify his amended complaint after the venue had been changed. The next day after this cause was filed in the Orange Circuit Court that court heard oral arguments on the motion to dismiss. Within a few days after this argument appellee requested the court to grant him permission to file his affidavit verifying the amended complaint. We note that the request of appellee to file his affidavit and the verified written objections of appellant to the granting of such request, were filed the same day. This indicates to us that appellants had some knowledge of the request and the form of affidavit which appellee sought to file. Appellants insist the word "immediately" used in the above quotation from the Lange case, supra, supports their contention that the offer of appellee came too late. We do not agree 5. with this contention. We believe the court intended, by using the word "immediately," to say that when this question was properly presented the defect must, just as soon as reasonably possible, be remedied or the complaint will be dismissed. What is reasonably possible in a particular case is left to the sound discretion of the trial court and the action of the court under such circumstances will not be disturbed by this court unless it is clearly shown the trial court abused such discretion. Appellants also contend the affidavit of appellee verifying the amended complaint is not sufficient because it is made on information and belief, citing as authority the cases of Adamsonand Another v. Wood and Others *Page 264 (1840), 5 Blackf. 448-449; Wallace v. State (1927),199 Ind. 317, 157 N.E. 657, and some foreign cases. The Adamson case,supra, supports appellants' contention. The Wallace case,supra, is not in point. It holds that an affidavit for a search warrant must set out in the affidavit the facts upon which affiant relies so that the court may judicially determine whether or not there is probable cause for the issuance of a search warrant. The Adamson case, supra, has been overruled. Curry v. Baker, Governor (1869), 31 Ind. 151, 155, 156; Bonsell v.Bonsell (1872), 41 Ind. 476; Honey v. Guillaume (1909),172 Ind. 552, 88 N.E. 937; Stillson v. State (1933),204 Ind. 379, 388, 184 N.E. 260; State of Indiana v. Bingman et al. (1933), 206 Ind. 486, 190 N.E. 176. The Supreme Court in the Curry case, supra, said: "No statement can go beyond the belief of the party making it. That belief may arise from personal observation, from sight or from sound, from information derived from others, or as the result of a logical conclusion from other known facts. But we know that sight or sound may deceive as information derived from other persons may mislead. They can, at most, when united, produce but one result, conviction of the mind, or in other words belief. When, therefore, one states his belief in the truth of a statement, the assertion is as strong as language can make it." The affidavit in this case was a sufficient verification of the amended complaint. We believe the questions raised by appellants' two motions to dismiss and by their written objections to 6. the filing of the affidavit were matters resting solely within the discretion of the trial court. We do not believe the trial court, in making such rulings, abused its discretion. Therefore its ruling on these questions was not error. The fifth assignment of error in this court is the *Page 265 overruling of appellants' motion for a new trial. The motion for a new trial specifies twenty grounds, the first of which is as follows: "Error of law occurring at the trial in this, that the Court erred in permitting the witness, Ott Workman, while testifying as a witness for the plaintiff on rebuttal, to answer, over the objections of the defendants, the following question asked him on direct examination: "Q. `I will ask you if he (Herbert W. Lane) said this or this in substance, "I have a lot of influence over your father and it might make you money in the long run to employ me?"' "Prior to said witness answering said question, the defendants objected to the answering of said question and the court overruled defendants' said objection to said question, to which ruling of the court the defendants at the time excepted as follows: "To which question the defendants object for the following reasons and upon the following grounds: The defendants object for the reason it will not prove or tend to prove any issue in this case. It asks about collateral matters which are not in issue. The plaintiffs are bound by the witness's answer on a collateral matter. It is clearly outside the issues, and is an attempt to impeach on collateral matter not material to issues in this cause. "Objection overruled. To which ruling of the court the defendants at the time by their attorneys, excepted." "And said witness after said ruling of the court was permitted to give in evidence his answer to said question, as follows: "A. `Yes, sir.' "Prior to the time the said Ott Workman was asked said question objected to, said Herbert W. Lane, at the trial of this cause, while testifying as a witness for the defendants, had been asked on cross-examination by the plaintiff, the following questions and had given the following answers: "Q. `Now I will ask you, Mr. Lane, if about six or eight days later than that, if you didn't go to *Page 266 the home of Ott Workman in the City of Loogootee, Martin County, Indiana, and have a conversation with Ott Workman at his home?' "A. `I did not.' "Q. `And I will ask you if at the home of Ott Workman in the Spring of 1937, if you didn't in a conversation with Ott Workman at about seven o'clock in the morning, didn't say this or this in substance to Ott, "I have a lot of influence over your father and it might make you money in the long run to employ me?"' "A. `I did not.' "Q. `And if in that same conversation if Ott didn't say to you this or this in substance, "Well I don't feel that I need any more lawyers than I have got?"' "A. `He did not. But I did have another conversation in Loogootee.'" The second specification is that the verdict of the jury is not sustained by sufficient evidence, and the third, the verdict of the jury is contrary to law. A consideration of the first ground of this motion necessarily involves a consideration of the second and third grounds. It will be noted that the first specification of the amended complaint alleges the pretended will was invalid because the decedent was of unsound mind at the time of its pretended execution. The second specification is as follows: "That the alleged execution of said Will was procured by undue influence exercised over the deceased John T. Workman by the beneficiaries thereof, Ida Workman and Norval Sutton, and by the efforts of the attorney who pretended to represent John T. Workman, Mr. Herbert W. Lane." The third specification avers that said will was unduly executed under duress. If there was no evidence to support the allegation of undue influence, then the admission of the evidence complained of in the first ground of the motion for a *Page 267 new trial presents a serious question. This makes necessary a consideration of the evidence. In order to determine whether or not there was any evidence to support the allegation of undue influence, we must first determine what constitutes undue influence, and second, the kind and quantum of evidence necessary to sustain such an allegation. Undue influence necessarily involves a state of mind. It is a thing that is insubstantial. It may be brought about by either mental or physical coercion, fear, a desire for peace, or a 7. feeling which one is unable to resist. The courts have used different phraseology in defining it, but the theory has been generally the same. Page on Wills, Vol. 1, § 184, says: "The theory which underlies the doctrine of undue influence is that testator is induced by various means, to execute an instrument which, although 8. his, in outward form, is in reality not his will, but the will of another person which is substituted for that of testator. Such an instrument is, in legal effect, not a will at all. Although executed by testator, his intention to make a will is so defective that the instrument is invalid." Because undue influence necessarily involves an operation of the mind, usually the evidence to establish it is circumstantial. It is generally resorted to stealthily and with an intent 9. on the part of the person or persons exercising it to conceal their motive and intent. Page on Wills, Vol. 2, § 811, says: "From the nature of undue influence, from the fact that it is frequently employed surreptitiously, that it is shown chiefly by its results, and that, in any event, the question is usually one of the effect of a long course of conduct upon the mind of the individual in question, the evidence by which undue influence is established is *Page 268 usually circumstantial. Undue influence is essentially a question of fact. The party who contests the will is entitled to thebenefit of all inferences of fact which may be deduced, fairlyand reasonably, from the direct evidence. Direct evidence is necessary only to establish the facts from which undue influence may reasonably be inferred. Although each fact by itself may be insufficient, the facts when taken together may justify, and even require, a finding of undue influence." (Our italics.) In the case of Davis, Executor, et al. v. Babb et al. (1921), 190 Ind. 173, 179, 180, 181, 125 N.E. 403, our Supreme Court, in considering the question of undue influence, 10-15. said: "The sufficiency of the evidence to sustain a verdict on appeal depends solely on the presence in the record of some competent evidence which tends to support that verdict. (Citing authorities.) In determining whether the evidence is sufficient to sustain the verdict of the jury, this court will consider, not only the positive testimony of the witnesses, but also such inferences as flow naturally from established facts. . . . The issue of undue influence joined in this case, like other questions, must be determined from all the facts and circumstances given in the evidence. The ultimate inference of undue influence, or its absence, was one of fact to be drawn by the jury, and not to be declared by the court as a matter of law. The exercise of undue influence may be shown by circumstantial evidence, and the provisions of the will and the circumstances attending its execution may be sufficient to warrant a finding against its validity. Friedersdorf v. Lacy (1910), 173 Ind. 429, 436, 90 N.E. 766. Such is the nature of the human mind that, when it has been habituated to the influence of another, it will yield to *Page 269 that influence and suffer it to have its effect, although the person in the habit of its exercise may not be present or exert it at the time an act is done. It may happen that the fruit of an evil and improper influence is born long after the influence is exerted. . . . In the contest of a will on the ground of undueinfluence, the evidence required to establish the undue influenceneed not be of that direct, affirmative and positive characterwhich is required to establish a tangible physical fact. The only positive and affirmative proof required is of facts and circumstances from which the undue influence may be reasonably inferred. Blackman v. Edsall (1902), 17 Colo. App. 429, 68 P. 790. In the case just cited, Blackman v. Edsall, supra, the court said: `The chief complaint and contention of the proponent is that the evidence presented and upon which the jury based its verdict sustaining the charge of undue influence was insufficient by reason of its lacking in that affirmative and positive character which is claimed to be necessary. It follows from the very nature of the thing that evidence to show undue influence must be largely in effect circumstantial. It is an intangible thing which only in the rarest instances is susceptible of what may be termed direct or positive proof. The difficulty is also enhanced by the fact universally recognized that he who seeks to use undue influence does so in privacy. He seldom uses brute force or open threats to terrorize his intended victim, and if he does he is careful that no witnesses are about to take note of and testify to the fact. He observes, too, the same precautions if he seeks by cajolery, flattery or other methods to obtain power and control over the will of another and direct it improperly to the accomplishment of the purpose which he desires.' And again in the same case the court said: `Only general rules concerning the amount and character *Page 270 of evidence required to establish undue influence in the execution of a will can be laid down. As to what is sufficientmust depend upon the facts and circumstances of each particularcase.'" (Our italics.) With these rules in mind we proceed to a consideration of the evidence to determine if there be any evidence to sustain the allegation of undue influence in this case. The record discloses that decedent, John T. Workman, was seventy-six years of age at the time of his death. Herbert W. Lane was a man of thirty-one years of age at the time of the trial. The evidence discloses a most unusual relationship between Herbert W. Lane and the decedent for a period of several years prior to the death of decedent, particularly when consideration is given to the disparity in their ages. Lane was frequently seen in various taverns and saloons with decedent. On one occasion the decedent, while with Lane, within a period of a half hour, drank a pint of whiskey. On this occasion the witnesses who were positive of the quantity of liquor consumed by decedent, could not recall that Lane had taken a drink. Lane was frequently in the company of decedent while decedent was intoxicated. It also appears from the evidence that Lane induced decedent to buy some stock in a distillery, and later this stock was assigned by decedent to Lane without consideration. The evidence shows that the will in question was written on the 29th day of March, 1938 by Lane, attorney for appellants, in Lane's office, and taken to the hospital, where Mr. Workman was a patient, to have it signed. Lane took with him his uncle and the purported will was signed by Mr. Workman in the presence of two doctors, the nurse, the uncle and Lane. None of the witnesses who were present heard the will read to Mr. *Page 271 Workman, nor did they see it read to him, and heard no questions asked Mr. Workman about it. After the will was signed he gave it to Lane to keep; also assigned some stock and notes to Lane without any consideration whatever. The purported will undertook to convey all of the real estate and personal property which Mr. Workman owned to his wife, one of the appellants, during her lifetime, and then to Norval Sutton in fee simple. The nurses in the hospital testified that Lane was in decedent's room in the hospital frequently before the will was executed. It also appears from the evidence that Lane took decedent on frequent trips. Workman married Ida Workman, appellant, in 1934. From 1934 on, he visited with Lane quite frequently, making trips to Vincennes, Louisville and other places, and in August, 1937, Lane took him on an extended trip throughout the eastern part of the country. After Lane took Mr. Workman on the eastern trip he made deeds conveying all of the real estate he then owned to his second wife. That was in November, 1937. There was no consideration. The transaction took place in Lane's office in Jasper. On one occasion Lane told the decedent, in the presence of the daughter-in-law of decedent, that he, the decedent, should remember this daughter-in-law in his will. Lane and the defendant, Ida Workman, took the decedent to the hospital in Louisville. They did not tell appellee, Ott Workman, decedent's son, that his father was in the hospital, though they all lived in the immediate vicinity and he learned it from a neighbor. Lane was observed by several impartial witnesses guiding the hand of the decedent while he was in the hospital when he signed a bill of sale. The appellant, Norval Sutton, told appellee that his father was getting along *Page 272 fine and would be home and out in a few days, when as a matter of fact he was in a dying condition. The testimony of one witness as to a statement Lane made to him shortly before the trial could properly have been considered by the jury as an indication that Lane had more than the usual interest of an attorney for his client in this case. This witness, a school teacher, testified that he had borrowed money from the decedent several years before his death, and that at the time of the death he still owed decedent some money; that he was subpoenaed as a witness in this case when it was first set on September 17, 1940, and that after he appeared in court in response to that subpoena, suit was instituted against him by Lane for the estate on this note. This witness said that Lane sent for him to come to his office, and that the witness asked Lane if he would help him, the witness, with Lane's friend, the township trustee, to get a school for the coming year, and that Lane replied: "How do you expect me to do anything of that sort when you are going to be a witness against me in this trial?" Applying the rules hereinbefore set out as to what constitutes undue influence and the kind of evidence which will sustain it, we believe there was sufficient evidence in the record 16, 17. to submit to the jury for its determination the question of whether or not the execution of the will was procured by undue influence as alleged in the amended complaint. Lane was charged in the complaint with being one of those who exercised the undue influence over decedent. It is not necessary that one so charged be a beneficiary under the provisions of the contested will. If this were not true, the inhibition which the law places on undue influence could be easily rendered impotent by the designing beneficiary who sought undue advantage for *Page 273 himself by simply engaging some unscrupulous person who had the confidence of the testator to overcome the will of such testator in favor of such person. It has been held that a will may be invalidated because of undue influence even when the beneficiary was ignorant of the fact it had been exercised for his benefit.Barr et al. v. Summer et al (1915), 183 Ind. 402, 107 N.E. 675, 109 N.E. 201; Johnson et al. v. Samuels et al. (1916),186 Ind. 56, 114 N.E. 977. The evidence elicited by the answer to the question objected to by appellants and assigned as Ground 1 of their motion for a new trial was admissible as a fact or circumstance which the 18. jury had a right to consider with the other facts and circumstances in evidence as tending to render a fact in issue more or less probable and to show the interest of Lane and his intention to use his influence over John T. Workman. We next proceed to consider the evidence introduced supporting the allegation that at the time of the execution of the will John T. Workman was of unsound mind. Many witnesses testified as to the mental condition of the decedent. Their testimony shows that the decedent had lived in Martin County practically his entire life. Until the time of his last illness he was a strong robust man. After he and his first wife were married they lived together on a farm. Through the years of their married life they acquired and accumulated considerable property, both real and personal. All during decedent's life he used intoxicating liquor but was very infrequently intoxicated. His first wife died in 1932. Almost immediately thereafter his habits changed. Prior to her death he had lived frugally, conserved his property, his farm was well kept, and he had no trouble *Page 274 while driving an automobile. However, after her death he would become moody and melancholy and drank intoxicating liquor excessively, the evidence showing that he drank more than a half-gallon in a 24-hour period, and would take large drinks of nearly a pint at a time of raw moonshine liquor mixed with ginger. The evidence also discloses that during the time after his wife died he drank from two to four gallons of liquor per week. He would drive his automobile while intoxicated and had several accidents. He took frequent trips and squandered his money recklessly. He married his second wife about two years after the death of his first wife. He would talk indecently in the presence of ladies. On one occasion, without any apparent reason whatever, he deliberately ran his head into and against a fountain in a filling station and broke the fountain off; then when the operator of the filling station attempted to render him first-aid he said the operator had hit him over the head with a stick. On March 25, 1938, he was taken to the Jewish Hospital at Louisville, Ky., and on the 26th or 27th of March an operation for a cancerous condition of the rectum was performed and it was necessary to administer to him large doses of codeine and morphine. The will in dispute was executed on the 29th day of March. In a conversation with his son a few days later he asked the son to get him an attorney so that he could make his will, telling his son that he wanted him to have all of his property except $2,000 which he wanted his second wife to have. He did not recognize old acquaintances who visited him with his son, and told one person who visited him at the hospital to go out there, pointing to a closed wall and insisting there was an opening in it. Several medical experts, basing their opinion on substantially the same facts herein set out, expressed *Page 275 the opinion decedent was of unsound mind at the time he executed the questioned will. We are of the opinion the record in this case discloses there was sufficient evidence to submit all of the allegations 19. of the amended complaint to the jury. The fourth, fifth and sixth causes assigned in appellants' motion for a new trial allege error of the trial court in refusing to give Instructions Nos. 1, 2 and 3 tendered by appellants. Instruction No. 1 tendered by appellants told the jury there was no evidence showing any undue influence of John T. Workman, and instructed the jury to find for the defendants on this issue. Instruction No. 2, for like reasons, instructed the jury to find for the defendants on the issue of duress. Instruction No. 3 told the jury there was only one question for it to determine: "Was the testator, John T. Workman, at the time of the execution of his Will, now in contest, of unsound mind, etc." For the reasons hereinabove set out, we are of the opinion that these instructions were properly refused by the court. The seventh, eighth, ninth, tenth and eleventh causes assigned in appellants' motion for a new trial allege error of the court in refusing to give appellants' tendered Instructions Nos. 20. 17, 19, 20, 22 and 29. Each of the propositions discussed in these tendered instructions were fully and properly covered by other instructions of the court. Therefore, it was not error to refuse these instructions. New York, Chicago St.Louis Railroad Company v. First Trust and Savings Bank (1926),198 Ind. 376, 153 N.E. 761. The twelfth cause assigned in appellants' motion for a new trial is that the court erred in giving to the jury *Page 276 appellee's tendered Instruction No. 11. The instruction 21. Complained of is as follows: "The Court instructs you that fraud and undue influence are not synonymous terms, although undue influence is in one sense a species of fraud, and, while there are sometimes, perhaps usually, present elements of fraud, undue influence may exist without any positive fraud being shown." The objection made by appellant to this instruction is that there was no evidence showing or tending to show fraud or undue influence. For the reasons hereinbefore set out, we hold this objection to be without merit. The thirteenth cause assigned in appellants' motion for a new trial is that the court erred in giving to the jury appellee's tendered Instruction No. 15. This instruction was as follows: "The law recognizes a man's children and their descendants as the natural object of his bounty, and a disinheritance of such children or their descendants without any reason therefor, if shown, becomes part of the evidence which the jury have a right to consider on the question of testamentary capacity." The objection made to the trial court by appellants to the giving of this instruction was as follows: "That the testator is not required to have any reason for disinheriting a child or children, and may disinherit any child or his children, without any reason therefor, and if there is no evidence of any reason therefor, then the jury has no right to consider the absence of any evidence of such reason as any evidence that the testator was of unsound mind at the time of the execution of his will." The question of the propriety of such an instruction has been considered by our Supreme Court on several occasions. In the case of Crawfordsville Trust Co., *Page 277 Executor, v. Ramsey et al. (1912), 178 Ind. 258, 98 N.E. 177, the Supreme Court approved a similar instruction. In the case ofConway v. Vizzard et al. (1890), 122 Ind. 266, 270, 23 N.E. 771, the Supreme Court said: "It has often been held by this court, and, indeed, the principle is elementary, that where a testator makes a will, which is unnatural in its provisions, such unnatural provisions may be considered in connection with the other evidence in the cause as bearing on the question of the insanity of the testator at the time of the execution of the will." An almost identical instruction to the one here under consideration was approved in the case of Bradley et al. v.Onstott et al. (1914), 180 Ind. 687, 103 N.E. 798. Appellants rely strongly on the case of Breadheft v.Cleveland et al. (1915), 184 Ind. 130, 135, 142, 143, 110 N.E. 662, where, in a divided opinion, two judges dissenting on this question, the giving of a similar instruction was held error. In this case the Supreme Court, in referring to the questioned instruction, said: "The evidence shows that the testatrix, when the will was made, had a son and some grandchildren; that theretofore the son had failed financially and had filed a petition in voluntary bankruptcy; there was evidence from which the jury might have found that appellant nursed and cared for testatrix and looked after her wants and that her comfort depended on the services of appellant. Whether under such evidence, the son was the `natural object of her bounty,' was a question of fact for the jury's determination, and the court erred in telling the jury that the law would recognize appellee as such object." In the original opinion the case of Bradley etal. v. Onstott et al., supra, was not referred to, but on petition for rehearing the court said: "Our attention is called to the case of Bradley et al. v. Onstott et al. (1914),180 Ind. 687, *Page 278 103 N.E. 798, where the trial court gave an instruction quite similar to the one here involved. Appellee's counsel do not claim that there is a direct conflict between the decisions in that case and the original opinion here, but claim that instruction No. 16 referred to in that case had the same infirmity as the one here considered. In that case, the discussion of the instruction is found on page 694. It will be noted it is not there said that appellant was there contending that the instruction was erroneous because it invaded the province of the jury. That no such question was presented is disclosed by a consideration of that record. The opinion does say that instruction No. 16 was not erroneous, but such declaration always implies a lack of erroragainst the objections urged, and not a freedom from errors not considered. Consequently the declaration has no legal or logical application to an error, though apparent, which was neither presented by appellant's brief nor considered by the court. It is the duty of this court to consider, for the purpose of reversing a judgment, such questions (and none other), as are properly presented in appellant's original brief." In the case of Long, Executor, v. Neal et al. (1921),191 Ind. 118, 132 N.E. 252, the court cited the Breadheft case,supra, in holding an almost identical instruction as the one under consideration here invaded the province of the jury. However, the court in pointing out its reasons therefor, said: "It is possible that an invasion of the province of the jury by declaring as a matter of law what ordinarily or frequently is true as matter of fact may not be reversible error. It may sometimes be obvious that the complaining party was not harmed.Seaman v. Husband (1917), 256 Pa. 571, 100 A. 941. But where the testatrix had joined her husband, in his life-time, in conveying all his real estate — *Page 279 fifty-four acres — to the daughter that was `disinherited,' and the will mentioned that fact, and the preference of a son over the other children amounted only to a few hundred dollars, at most, and the son who was thus preferred had lived near the testatrix the last six years of her life, and nightly had furnished a member of his family to sleep at her home, and the will charged him with her care and the expenses of medical attention for her through life and with her funeral expenses, we cannot know that the declaration, as a matter of law, that all of her children were the natural objects of her bounty, so that her failure to distribute her property by will as the law would have distributed it if there had been no will, could be considered as evidence bearing on the question of testamentary capacity, exerted no improper influence." When a will is contested on the grounds the testator was of unsound mind at the time of its execution, the unnaturalness of testator's conduct is proper evidence for the 22-25. consideration of the jury. The rule is well established that the provisions of a controverted will may be considered as circumstances, together with other evidence, in determining the mental condition of the testator. Under such conditions the jury may properly be instructed that it may consider the will's provisions in connection with the naturalobjects of the testator's bounty. However, the question of who is the natural object of bounty is a question to be determined from the evidence. Where the evidence discloses reasons, such as those set out in the opinions in the two cases last cited, for the testator's actions, an instruction such as the one complained of here would be an invasion of the province of the jury. It will be noted the objection of appellants to this instruction made to the trial court was not on the grounds that the instruction *Page 280 invaded the province of the jury. Their objection was that a testator does not have to have any reason for disinheriting a child or children, etc. In other instructions given by the court the jury was fully and properly instructed on this question. Therefore, we hold the giving of instruction No. 15 by the court was not error. The fourteenth cause assigned in appellants' motion for a new trial alleges the trial court erred in giving appellee's tendered instruction No. 17. Their objection to this instruction was on the grounds that there was no evidence of undue influence. For the reasons hereinbefore set out, we hold there was no error in the giving of this instruction. The remaining causes in appellants' motion for a new trial allege errors of the trial court in the admission of certain evidence. We are of the opinion the admission of the 26. evidence complained of did not harm appellants, and therefore the ruling of the trial court admitting such evidence over appellants' objection was not error. We believe this cause was fairly tried, and finding no reversible error the judgment of the Orange Circuit Court is affirmed. NOTE. — Reported in 46 N.E.2d 718.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4033449/

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER ON MOTION FOR EN BANC RECONSIDERATION Appellate case name: Patrick Olajide Akinwamide v. Transportation Insurance Company, CNA Insurance Company, and Automatic Data Processing Inc. Appellate case number: 01-15-00066-CV Trial court case number: 1997-48526 Trial court: 80th District Court of Harris County Date motion filed: August 26, 2016 Party filing motion: Appellant It is ordered that the motion for en banc reconsideration is DENIED GRANTED. Judge’s signature: /s/ Evelyn V. Keyes Acting Individually Acting for the Court En Banc Court consists of: Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Huddle, and Lloyd Date: September 13, 2016

01-03-2023

09-14-2016

https://www.courtlistener.com/api/rest/v3/opinions/4014600/

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Yellow 2000 of Philadelphia : : v. : No. 2036 C.D. 2015 : Submitted: June 17, 2016 Philadelphia Parking Authority, : Appellant : BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE DAN PELLEGRINI, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: July 11, 2016 The Philadelphia Parking Authority (Authority) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) reversing the Philadelphia Parking Authority Taxicab and Limousine Division’s (Hearing Officer’s) order granting the Authority’s motion to amend owner citation T-16044 (Citation) against Yellow 2000 of Philadelphia, Inc. (Yellow) to include a violation of 52 Pa. Code §1017.24 because the Hearing Officer did not have jurisdiction and authority to amend the citation. We reverse. On November 22, 2013, Division Inspector Steven Owens (Owens) issued the Citation against Yellow for violating 52 Pa. Code §1017.5 because its medallion taxicab P-794 had an “Incomplete Communication System” explaining the “vehicle was stopped for a routine inspection at 30th St. Train Station and GPS was not working[.] I wai[ted] 15 min to see if it would turn on and it did not.” (Reproduced Record at 29a.) Yellow received a reducible penalty of $350.00 and its medallion taxicab was placed out of service. Yellow timely contested the citation. At the February 12, 2015 administrative hearing, the Authority moved to amend the citation to include an alleged violation of 52 Pa. Code §1017.24 which specifically requires an operating GPS. Over the objection of counsel for Yellow, the Hearing Officer allowed the amendment. Although the Hearing Officer offered to continue the matter in order to give Yellow further opportunity to prepare a defense for the amended citation, Yellow rejected the offer and elected to proceed with the case. At the hearing, Owens testified that he was the inspecting officer that issued the citation to Yellow’s taxicab on November 22, 2013. Owens stated that when he conducted the inspection, the driver admitted that the GPS was not working that day, and that although the GPS would power on, it would neither receive input nor provide directions. Owens stated that he waited 15 minutes for the GPS to properly work and gave the driver an opportunity to get the GPS to work. Owens stated that Yellow was issued a citation for an incomplete communication system under 52 Pa. Code §1017.5 because the GPS is a component of the communication system and must be operational when a taxicab is in service and because the GPS, meter and credit card system are required to work in conjunction with one another. 2 Based on that evidence, the Hearing Officer found Yellow liable for violating 52 Pa. Code §1017.24 and imposed a penalty of $350.00, along with a $75.00 administrative hearing fee. Yellow timely appealed the order to the trial court, which reversed the Hearing Officer’s decision, reasoning that the Hearing Officer’s jurisdiction over a contested citation is confined to the violations listed in the citation, and that he had no authority to allow an amendment because the violations were substantively different and past the time given to the Authority to amend the citations. The Authority then filed this appeal. On appeal, the Authority contends that the trial court erred when it found that under 53 Pa. C.S. §5705, a hearing officer neither has the jurisdiction nor authority to amend contested citations.1 53 Pa. C.S. §5705(a) provides that “[t]he authority may establish order[s] or regulations which designate rules and procedures for the adjudication of complaints.” Id. Moreover, hearing officers are permitted “at any stage of an action or proceeding [to] disregard an error or defect of procedure which does not affect the substantive rights of the parties.” 52 Pa. Code §1001.3(a). This includes a hearing officer’s ability to amend pleadings: (a) Generally. A modification of or supplement to an application, complaint, petition or other pleading shall be deemed as an amendment to the pleading, and must comply with the requirements in this chapter relating to the pleading amended. 1 Yellow has moved to strike portions of the Authority’s brief as it pertains to a hearing officer’s discretion to permit amendment. It contends that the Authority has waived the issue under Pa. R.A.P. 302(a) because the Authority failed to cite to specific regulations prior to this appeal. Contrary to Yellow’s contention, this issue was not waived because the central issue has remained whether a hearing officer has discretion and authority to amend contested citations. 3 (b) Limitation. An amendment to a pleading may not be filed more than 20 days after the date an answer or other response to the original pleading was due to be filed with the Clerk, unless directed or permitted by the Authority or the presiding officer after opportunity for all parties to be heard thereon. 52 Pa. Code §1005.61. Because a form citation falls within the category of a “pleading,” a hearing officer has the authority and discretion to amend contested citations. See 52 Pa. Code §1005.1 (defining a pleading to include “Formal complaint, answer, new matter and reply to new matter”); also id. at §1005.13(a) (“The Enforcement Department or trial counsel may issue a formal complaint through a form citation for any violation of the act, this part or order of the Authority.”). When the Authority moved to amend the Citation at a hearing several months after it was issued, it was well-beyond the 20-day timeframe set forth in 52 Pa. Code §1005.61(b), but it was still in the Hearing Officer’s sound discretion to permit the amendment so long as the Hearing Officer provided an “opportunity for all parties to be heard thereon.” 52 Pa. Code §1005.61(b). The question then is whether the Hearing Officer abused his discretion by allowing the amendment. The original Citation for violating 52 Pa. Code §1017.5 is not applicable to matters involving an inoperative GPS because this provision only requires that the taxicab have an approved meter. Id. at §1017.5(b)(13). 52 Pa. Code §1017.24, however, does much more in that it requires that “[t]he taxicab meter must be in operation during the entire time the vehicle is engaged by a passenger” and requires meters to include GPS capabilities. 4 Id. at §1017.24(d)(2)&(3). However, because the Citation’s explanatory section states that the Citation is for an inoperative GPS, it placed Yellow on notice as to what was the factual basis for the charge from the moment it was issued, and the citation of an incorrect provision was a procedural error that the Hearing Officer was permitted to correct. See 52 Pa. Code §1005.61; also id. at §1001.3(a) (“The Authority or presiding officer at any stage of an action or proceeding may disregard an error or defect of procedure which does not affect the substantive rights of the parties.”). Yellow also contends that amending the Citation is a violation of its due process rights. First, as mentioned, Yellow knew the substance of the charge from the moment it was issued. Second, Yellow refused the Hearing Officer’s offer to provide it with further opportunity and time to prepare after the amendment was granted, and Yellow has also failed to demonstrate a clear harm resulting from this procedural error save for having to face the consequence of its violation. As we have explained, “the mere demonstration of a potential procedural error, without also alleging a resulting harm, is not sufficient reason to disturb an agency adjudication.” See D.Z. v. Bethlehem Area School District, 2 A.3d 712, 719 (Pa. Cmwlth. 2010) (quoting Seltzer v. Department of Education, 782 A.2d 48, 53 (Pa. Cmwlth. 2001)). Accordingly, because the Hearing Officer had the authority to amend the form Citation and gave both parties an opportunity to be heard, we reverse the trial court’s determination and reinstate the decision of the Hearing Officer 5 imposing a penalty of $350.00 for a violation 52 Pa. Code §1017.4 with an additional administrative hearing cost of $75.00. __________________________________ DAN PELLEGRINI, Senior Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Yellow 2000 of Philadelphia : : v. : No. 2036 C.D. 2015 : Philadelphia Parking Authority, : Appellant : ORDER AND NOW, this 11th day of July, 2016, it is hereby ordered that the Court of Common Pleas of Philadelphia County’s order dated October 2, 2015, at Case No. 01161, is reversed, and Yellow 2000 of Philadelphia’s motion to strike portions of the Philadelphia Parking Authority’s brief is denied. __________________________________ DAN PELLEGRINI, Senior Judge

01-03-2023

07-11-2016

https://www.courtlistener.com/api/rest/v3/opinions/4055725/

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01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427269/

This was an action to enjoin the city of Princeton and its officers from enforcing certain provisions of a city ordinance alleged to be void. The ordinance purported to impose a license fee of from $6 to $25 per calendar year on all "motor trucks, motor wagons and other motor driven vehicles used for commercial purposes" on or over the streets of the city, the amount of the fee depending upon the capacity of such vehicle, as well as upon "all funeral cars, ambulances, hearses," etc., after having first declared it to be, "unlawful * * * to use and operate for commercial purposes upon and over the public streets of the city of Princeton, Indiana, any motor truck or other motor driven vehicle * * * or other vehicle of the kind and character hereinafter designated without taking out and having a license therefor as required by this *Page 150 ordinance." It provided that every owner of any vehicle of the kinds designated should obtain a license upon payment of the fee required, and, before using the vehicle, should, "attach thereto in a conspicuous place the license plate so furnished by the city clerk, and keep the same attached to such vehicle at all times during the period for which the same was issued." And it further provided that, "any person using or operating any vehicle of any kind described in this ordinance, who shall fail to take out such license, or who shall violate any of the provisions of the ordinance shall be fined in any sum not less than $5.00 and not more than $50.00." Section 8 provided that, "Every license issued under and by virtue of authority of this ordinance shall be subject to revocation by the mayor of said city." It will be observed that by its terms this ordinance applied equally to all motor trucks and motor driven vehicles used for commercial purposes upon and over the streets of the city, without reference to where they were owned or the manner in which they were operated on and over such streets, or whether they were so operated daily or only once in a year. The complaint, in addition to setting out the ordinance and alleging that it was void, averred that the plaintiffs were citizens and resident taxpayers of the city of Princeton, Indiana, which was alleged to be a city of the fifth class; that the other defendants were the mayor, city marshal and city attorney of said city; that plaintiffs were engaged in the general undertaking business, and owned and operated motor driven funeral cars, ambulances and hearses which they drove upon, along and over the public streets of the city of Princeton for commercial purposes in the conduct of their business, but which they did not use for public hire; and that plaintiffs had obtained certificates of title and paid in full the registration fees to the secretary of *Page 151 state for the current year on each of their vehicles which the general law of the State of Indiana required to be so paid. They further alleged that within the city of Princeton were a hundred or more other persons who owned and operated motor driven vehicles for commercial purposes upon the public streets of said city, but did not operate them for public hire, and also that more than a hundred other persons resided outside said city who did the same. That plaintiffs and all the other said owners of motor driven commercial vehicles operated on the streets of said city, but not operated thereon for public hire, had refused and would continue to refuse to pay license fees or to take out licenses under the ordinance for their respective vehicles. But that the defendants and each of them were threatening to and, unless restrained by an order of the court, would require plaintiffs and all the other said persons to take out and pay for licenses under the ordinance, or would prosecute any and all of them who might fail to do so. And that by reason of the alleged invalidity of the ordinance, such prosecution would result in large sums accruing for costs and expenses of prosecution for which the city would become liable and which it would be required to pay, to the great injury of plaintiffs and all the other taxpayers. A demurrer to the complaint for the alleged reason that it did not state facts sufficient to constitute a cause of action was sustained by the circuit court, and sustaining that demurrer is assigned as error. Appellant insists that the ordinance was void because of the provision that, "Every license issued under and by virtue of authority of this ordinance shall be subject to revocation 1. by the mayor of said city." But we think this meant nothing more than that the mayor might revoke such a license for the causes and in the manner provided by law. And the act concerning *Page 152 municipal corporations expressly confers upon the mayor of any city or the president of the board of trustees of any town authority to revoke or suspend any license issued under the provisions of a city ordinance whenever the licensee shall have violated the terms or conditions of such license or of the law or ordinance under which the license was granted. § 11092 Burns 1926, § 8893 Burns 1914, § 239, ch. 129, Acts 1905 p. 219, 386. And also provides that, "he shall, upon reasonable notice of not less than three days to the person complained of, hear any complaint against any person to whom a license has been issued, and may issue subpoenas and compel the attendance of witnesses to testify on such hearing, may administer oaths to such witnesses, and require them to testify. The rules of practice and procedure in force in trials in the city court of such city, so far as applicable, including the right to appear by counsel and to compel the attendance of witnesses for or against the persons complained of, shall apply to such proceedings before the mayor. Upon the hearing, if it shall be found that the person complained of has wilfully violated any of the terms or conditions of his license, or has wilfully done, authorized or permitted to be done any act in violation of the law or the ordinance of such city relating to the business or place of business licensed, the mayor shall revoke or suspend such license. * * *" § 10295, cl. 8, Burns 1926, § 8682 Burns 1914, § 80, ch. 129, Acts 1905 p. 219, 226. When understood as authorizing the mayor to revoke any license issued thereunder for the causes and in the manner provided by these statutes, we do not think the section making a license issued under authority of this ordinance subject to revocation by the mayor is open to the objections urged by counsel. The validity or invalidity of the ordinance in other particulars complained of depends upon the proper construction *Page 153 of certain sections of the statutes then in force which, so 2. far as here involved, read as follows: "The common council of every city shall have power to enact ordinances for the following purposes: * * * Thirty-second. To regulate, tax and license coaches, hacks, drays, automobiles and all other vehicles. * * *" § 10284 Burns 1926, § 8655 Burns 1914, § 53, ch. 129, Acts 1905 p. 219 (252). "No owner of a motor vehicle, except motor trucks and motor driven commercial vehicles who shall have obtained a certificate from the secretary of state and paid registration fees as hereinbefore provided, shall be required to pay any tax or license fee whatsoever or to obtain any other license or permit to use or operate the same, nor shall any owner be required to display upon his motor vehicle or motor bicycle any other number than that issued by the secretary of state, or excluded or prohibited from or limited in the free use of his said motor vehicle or motor bicycle, nor limited as to speed upon any public highway or other public place at any time when the same is or may hereafter be open to the use of persons having or using other vehicles, nor be required to comply with other provisions or conditions as to the use of said motor vehicles or motor bicycles except as in this act provided * * * Except as in this act provided, no city or town or other municipality shall have power to make any ordinance, by-laws or resolution limiting or restricting the use or speed of motor vehicles or motor bicycles and no ordinance, by-law or resolution heretofore or hereafter made by any city or town or other municipal corporation within the state, by whatever name known or designated, in respect to or limiting the use of motor vehicles or motor bicycles shall have any force, effect or validity, and they are hereby declared to be of no validity or effect: Provided, that nothing in this act *Page 154 contained shall be construed as affecting the power of municipal corporations to make and enforce ordinances, rules and regulations affecting motor trucks and motor driven commercial vehicles which are used within their limits for public hire, or from making and enforcing reasonable traffic and other regulations except as to rates of speed not inconsistent with the provisions of this act." § 10476d Burns 1914, § 17, ch. 300, Acts 1913 p. 779, 789. Appellees contend that the exception in the foregoing provision that, "No owner of a motor vehicle, except motor trucks and motor driven commercial vehicles who shall have obtained a certificate from the secretary of state and paid registration fees as herein provided, shall be required to pay any tax or license fee whatsoever or to obtain any other license or permit to use or operate the same," etc., left to the city full authority to tax and license all motor trucks and motor driven commercial vehicles, under the authority "to regulate, tax and license * * * automobiles and all other vehicles," conferred by § 10284, supra. As it necessarily follows that if the city of Princeton could enforce such an ordinance against nonresidents of the city, so may any other municipal corporation, of which there are several within Gibson county, and hundreds throughout the State of Indiana, the practical effect of such a construction would be that if measures of this kind were to be adopted by all or many of those cities and towns, a farmer whose way to market at Evansville, Terre Haute, Chicago or elsewhere lies through such a town or city, would be required to pay tribute to repair its streets, on the basis of using them for an entire year, even though he might pass over them but once. And farmers, gardeners and stockraisers living in the different counties might be compelled to purchase licenses in two, three or half a dozen cities and towns in order to drive along the state *Page 155 highway to market in a city twenty-five or thirty miles away. Thus the demand for license fees might operate as a prohibition against carrying one's own produce in an automobile or truck along a state highway beyond the nearest town. What Princeton could do in this respect, any other Indiana municipal corporation could do, and such a construction would give every town the right to demand from the driver of a truck or automobile used for any business purpose an entrance fee as a condition of using the public highway leading through it, even though the truck or automobile be driven there only once in the course of a year.Pegg v. City of Columbus (1909), 80 Ohio St. 367, 383, 89 N.E. 14, 23 L.R.A. (N.S.) 453. A construction which would lead to an absurd result should not be adopted, if the statute will bear a construction by which that may be avoided. With this rule in mind, for the reasons stated below, we are constrained to adopt another and different construction. As we have seen, the statute provided that, "except as in this act provided, no city or town or other municipality shall have power to make any ordinance, by-law or resolution 3, 4. limiting or restricting the use or speed of motor vehicles or motor bicycles," and declared that no ordinance, by-law or resolution which does so shall be valid. And the only restriction upon or exception to this provision by which all such ordinances were made invalid was the proviso that, "Ordinances, rules and regulations affecting motor trucks and motor driven commercial vehicles which are used within their limits for public hire," or which constitute mere traffic regulations, shall not be deemed within the provisions of the act. § 10476d, supra. This was a clear expression of the legislative will that no ordinance limiting or restricting the use of motor vehicles without first obtaining a license and paying a *Page 156 tax should be valid as applied to any such motor vehicles except "motor trucks and motor driven commercial vehicles which are used within their limits for public hire." Therefore, the ordinance in question was invalid as applied to the vehicles owned by plaintiffs and by the other persons on whose behalf they brought suit, and the demurrer to the complaint should have been overruled. We have not considered and do not decide the question whether or not a funeral car or hearse used in any particular manner, for the use of which a charge is made, does or does not constitute a vehicle used "for public hire," within the meaning of the statute. It is expressly alleged in the complaint and admitted by the demurrer that plaintiffs' vehicles on which they refused to take out licenses were not used for public hire. And no question is before the court as to whether or not the real facts with regard to the use which they make of their hearse or other vehicles is different from what they have alleged. The judgment is reversed, with directions to overrule the demurrer to the complaint.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3427273/

This is an action in which the appellee filed exceptions to the final report of the appellant in the matter of the estate of Emmett S. Croxton, deceased. The court found for appellee on certain exceptions, disallowed certain credits claimed by appellant in her final report, and found that the estate was not insolvent, as was represented by appellant in her final report, and that appellee's claim should be paid in full. Judgment was that the final report should be recast in accordance *Page 647 with the court's findings to show payment in full of appellee's claim and that appellee should recover his costs. The errors assigned in this court are the overruling of appellant's motion for a new trial, and the alleged error of the trial court in overruling appellant's motions to strike out exceptions numbered 9 and 11. The motion for a new trial is on the grounds: (1) The decision of the court is not sustained by the evidence; (2) the decision of the court is contrary to law. Appellee claims the evidence is not in the record and therefore the motion for a new trial presents no question for the consideration of the court. The record discloses that trial was had on the 16th day of April, 1941, the same being the 27th judicial day of the March Term, 1941, of the Steuben Circuit Court. On the same day the court found for appellee, and also on the same day the motion for new trial was filed and overruled. It does not appear from the record that any time was given for filing the bill of exceptions. Afterwards, on the 27th day of June, 1941, being the 23rd judicial day of the June Term, 1941, of the court, appellant tendered her bill of exceptions containing the evidence, which was signed by the court and ordered filed. It is the well settled law in this jurisdiction that when no time is given in which to file a bill of exceptions, and it is signed and filed after the expiration of the term at which 1. the motion for a new trial was overruled and judgment rendered, such a bill of exceptions is not a part of the record and cannot be considered. Johnson et al. v. Ballard etal. (1897), 148 Ind. 181, 182, 46 N.E. 674; Taylor et al. v.Canaday, Rec. (1901), 155 Ind. 671, 677, 57 N.E. 524;Flanagan v. State (1923), 192 Ind. 662, 137 N.E. 179; Pesch v. *Page 648 Gretter et al. (1940), 216 Ind. 396, 24 N.E.2d 923; UnionInsurance Co. of Indiana v. Glover (1941), 109 Ind. App. 315,34 N.E.2d 934; Heckman v. Howard et al. (1941),109 Ind. App. 548, 36 N.E.2d 957. In the case at bar, time not having been granted to file 2. the bill of exceptions after the term, the appellant's first assignment of error presents no question to this court. When objections are filed to the report of an administrator or executor, the report constitutes the complaint, and the exceptions the answer. The statute (Acts 1883, ch. 121, § 3. 24, p. 151, § 6-1408, Burns' 1933, § 3207, Baldwin's 1934) provides for the filing of exceptions but does not authorize or contemplate any other pleading. The question of fact raised by the exception is deemed denied or avoided, as the case may be, without any additional pleading. The cause is tried on the issues raised by the final report considered as the complaint, and the exceptions as the answer. Such a proceeding is not a civil action and the provisions of the code are not applicable. Dohle et al. v. Stults, Administrator (1884),92 Ind. 540; Spray v. Bertram, Administrator, et al. (1905),165 Ind. 13, 15, 74 N.E. 502; Miller v. Bode, Admr. (1923),80 Ind. App. 338, 343, 139 N.E. 456; Meier et al. v. Union TrustCo. of Indianapolis, Exr. (1931), 93 Ind. App. 457, 484, 485,176 N.E. 42; Gary State Bank v. Gary State Bank, Admr., etal. (1936), 102 Ind. App. 342, 346, 347, 2 N.E.2d 814. Therefore, appellant's second assignment of error presents no question to this court. For the reason that no question has been presented by this appeal, the judgment of the Steuben Circuit Court is affirmed as of the date of submission of this cause, it having been suggested to this court that the *Page 649 appellee has died subsequent to the submission of this cause. NOTE. — Reported in 46 N.E.2d 249.

01-03-2023

07-05-2016