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https://www.courtlistener.com/api/rest/v3/opinions/3427278/ | Action by appellees, praying an injunction restraining appellant, trustee, and appellant Brendel, from building at appellees' expense under the statute, the east end of a partition fence which divided the lands of Brendel, on the north side of the fence, from the lands of appellees, on the south side of the fence.
Trial was had on the issues, and the court found for appellees that they were entitled to a permanent injunction, and rendered a judgment perpetually restraining and enjoining appellants from repairing or building a fence on the east half of the partition line between the lands of appellant Brendel and appellees.
From this judgment, this appeal. The error relied upon for reversal is that the court erred in overruling the motion for a new trial, presenting that the decision of the court is not sustained by sufficient evidence, that it is contrary to law, and that the court erred in excluding certain evidence.
Appellee Breedlove, partly as life tenant and partly as owner in fee, and appellee Maxwell as remainderman owned certain lands in Eagle township, Boone county, Indiana, lying immediately south of and adjoining the lands of appellant Brendel. The division line between these respective tracts of land runs east and west, Brendel's land being on the north and the Breedlove-Maxwell lands on the south. A partition fence of indifferent character was located on the partition line.
Appellant Brendel's mother died the owner of these lands, leaving a will in which she willed her lands one-half to appellant Brendel and one-half to her grandson, Roy Mayhew, 1. and Edna Fay Peterson, her granddaughter. Appellant Brendel purchased the interest of these grandchildren in February, 1926, *Page 462
and then became sole owner of the lands on the north side of the partition line.
There was already a constructed lawful fence on part of the west end of the partition line, and appellant Brendel began at the east end of that west part of the lawful fence, and constructed a lawful fence to a point half way along the partition line, thus making a lawful fence along the west end of the partition line. Appellant then notified appellees to build their half of the partition fence located on the east end of the partition line, and, on their refusal so to do, he notified the township trustee of the fact of having given notice to appellees to build the fence and of their failure so to do, and the trustee notified appellees of this fact, and that he would proceed to build the east end of the partition fence unless appellees constructed the same. Appellees then brought this action, praying a restraining order against the trustee, and asking that he, as trustee, and appellant Brendel be enjoined from building or having built the east half of the partition fence.
Appellees' land lay south of the partition line, and, in the absence of an agreement to the contrary, under the law it was their duty to maintain the east half of the fence. § 7920 Burns 1926; Bartlett, Trustee, v. State, ex rel. (1917),186 Ind. 16, 114 N.E. 692.
Appellees testified that there was an oral agreement with appellant Brendel's grantors as to the part of the fence the respective owners should build, but there was no 2, 3. evidence that appellant Brendel had any notice thereof at the time he purchased the land. Such an agreement is not a covenant running with the land, and is not binding on a subsequent purchaser without notice. Bartlett v. State, exrel., supra. In the absence of an agreement that binds appellant *Page 463
Brendel, the statute governs, and it is appellees' duty to build the east half of the fence.
Judgment reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486432/ | This is an appeal by the State Roads Commission from a judgment rendered upon the sustaining of a demurrer, filed by the appellee to the declaration in a suit instituted by the appellants, for and on behalf of the State of Maryland.
The declaration is in the following language:
Phillips Lee Goldsborough, Ovington E. Weller, Ira Remsen, William Bullock Clark, Edward E. Goslin, Walter B. Miller and Andrew Ramsey, constituting the State Roads Commission of Maryland, for and on behalf of the State of Maryland, by Leon E. Greenbaum, their attorney, sue The Postal Telegraph Cable Company, a corporation.
For that on the 22nd day of August, in the year nineteen hundred and eleven, the Conowingo Bridge Company granted and conveyed to the State Roads Commission of Maryland, for and on behalf of the State of Maryland, in consideration of the sum of $88,000 a certain bridge in the State of Maryland over the Susquehanna River, and in said grant the right was expressly given to the State Roads Commission, for and on behalf of the State of Maryland, to collect any and all rentals and income accruing from the use of said bridge by the defendant, and that at said time and for a long number of years prior thereto the defendant had been using said bridge for the conveyance of wires thereover with the consent of the Conowingo Bridge Company, and had been paying the Conowingo Bridge Company rentals and income for the use thereof, which said rentals and tolls had amounted from the year *Page 75
1906 to 1911 to the sum of $95.75 semi-annually in each year, for which amount bills were regularly sent by the Conowingo Bridge Company to the defendant and paid by the defendant up to and including the instalment due on the first of July, 1911, and for that since the 22nd day of August, 1911, said wires have remained on said bridge to the same number and in the same manner as theretofore and without any change in the arrangement between the parties as to the price to be paid or the use to be made by the defendant of said bridge, and that said use continued with the intention on the part of the plaintiffs that payments would be made of the same amount as had been paid to the Conowingo Bridge Company, but although bills have been sent and demand made by the plaintiffs for the instalments of $95.75 due on the first day of January, 1912, and on the first day of July, 1912, payment thereof has been refused and is still refused by the defendant, and the plaintiffs allege that the sum of $191.50 is due and owing at the present time by the defendant to the plaintiffs for the use of said bridge for its wires from the first day of July, 1911, to the first day of July, 1912.
And the plaintiffs claim $400.00.
The ground of the appellee's demurrer is based upon the provisions of Article 14 of the Declaration of Rights, wherein it is declared: "That no aid, charge, tax, burthen or fees ought to be rated or levied under any pretense, without the consent of the Legislature." It is not contended that the Legislature could not impose a charge for the use of a publc bridge by telegraph companies; indeed that is conceded, but it is denied, in the absence of legislative authority, that the Roads Commission has the power so to charge. That is a question about which much can be said on both sides, under the Act creating the State Roads Commission; but the declaration in the present case does not render the settlement of that question necessary for a determination of this particular case. We do not, therefore, deem it expedient, under this record, to go into the broad question as to what rights in *Page 76
general the State Roads Commission can exercise over corporations using the public highways of the State, in carrying out their corporate purposes. We will, therefore, confine ourselves to the inquiry, whether the allegations of this declaration warrant a recovery.
The suit was instituted in the names of the members constituting the board of the State Roads Commission "for and on behalf of the State of Maryland." If then the State is entitled to money due for use of public roads, it was proper that the agency having charge and control of that department should bring suit in its behalf. The Commission, by the terms of the Act creating it, was not in the full sense a corporate body, yet was a quasi corporation, vested with powers of control and regulation over the public highways, and charged with the duty of administering and supervising that department of the State. For all matters coming within the scope of their duties and obligations they could therefore sue, and were liable to be sued. See O'Neal v. School Commissioners, 27 Md. 227; SchoolCommissioners v. School Commissioners, 35 Md. 201; Clark v.Harford Agricultural Ass'n., 118 Md. 608; France's Principlesof Corporation Law (2nd Ed.), 19 and 20; 28 Cyc. 128.
By Act of Assembly, 1910, Ch. 116, sect. 32P, p. 304, now section 48, Article 91 of Bagby's Code, the Commission was authorized and directed to acquire by purchase, condemnation or otherwise, the Conowingo bridge across the Susquehanna River, together with all land, roads, approaches, rights, franchises and easements belonging to any person or corporation, for the purpose of connecting the improved roads of Cecil and Harford Counties. The narr. alleges that the bridge was acquired by purchase, and that in the deed of grant, the right was expressly given to the Commission to collect all rentals, for and on behalf of the State, accruing from the use of the bridge by the appellee. It was further averred that the appellee, by virtue of a contract with the Conowingo Bridge Company, had been paying a certain annual rental *Page 77
for the occupancy by its wires of said bridge; that this payment continued until the acquisition by the Commission of the bridge, and that, although the appellee continued to use the bridge as formerly, it had nevertheless refused to pay the plaintiff for said use since the day of acquisition. Even if we assume that under the Act creating the Commission there is no power given the Commission to impose rental charges upon new users of the public highways, what reason can there be for not permitting the charge to be made as the assignee of a private owner? There is no attempt under this narr. to enforce a new liability, but the enforcement of an old existing liability, founded upon contract, and which was acquired by the Commission as a part of the consideration of the purchase. Although it can be argued that the State never intended to authorize the charging for future privileges upon the public highways, can it be seriously contended that the Legislature, in contemplating large expenditures of money in the purchasing of private bridges and turnpikes, intended that those who were enjoying an exclusive occupancy of a portion of them, for a consideration, were to be relieved of that charge at the expense of the State? The wording of the Act shows that the Legislature knew that persons or corporations had certain rights, franchises and easements in this bridge to which the rights of the travelling public might be subject, for it authorized the Commission to acquire them. Can it be conceived that it intended to permit them to be still exercised, without being subject to whatever previous liability there might have been? It cannot be doubted but that, in fixing a price for its property, the bridge company took into consideration the value of this lease it had with the appellee and increased its price accordingly.
We are of the opinion that under the allegations of the narr. there is a liability, and that there was error in sustaining the demurrer.
Judgment reversed and new trial awarded, with costs to theappellant. *Page 78 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486543/ | The single question presented for decision on this appeal is whether the trial court erred in refusing an instruction, at the request of the defendant, based upon the theory that the injury sued for may have been the result of an unavoidable accident.
The plaintiff, a little girl six years of age, while crossing Thirty-sixth Street in Baltimore City, was injured by the automobile which the defendant was driving. According to testimony produced in the plaintiff's behalf, she was struck by the right front fender of the automobile, passing rapidly from her left, when she was proceeding across the street, between the white lines marking the space for pedestrian passage, at the intersection of Thirty-sixth and Poole Streets. It was testified for the defendant that the automobile driven by her had proceeded beyond the pedestrian crossing when the plaintiff collided with it, as she ran into the street from the sidewalk between two cars parked along the curb. The issues of primary and contributory negligence were submitted to the jury by appropriate instructions. The verdict was for the plaintiff, and the appeal is from the ensuing judgment.
In view of evidence tending to prove that the defendant was exercising due care, and upon the hypothesis that the plaintiff, because of her immaturity, was not legally chargeable with negligence, it is argued that there was proper ground for an instruction exonerating the defendant if the jury should find the injury to the plaintiff to have been caused by an accident which was unavoidable. The form of the proposed but rejected instruction was as follows: "The court instructs the jury that if they shall find from the evidence that the injury to the plaintiff was caused by an unavoidable accident, unmixed with negligence on the part of the defendant Katherine B. *Page 3
Harrison, the verdict of the jury shall be for the said defendant." It is contended for the plaintiff that such an instruction could not properly have been granted in this case because each of the parties to the suit offered evidence tending to prove that the accident would have been avoided if the other had not been negligent. A granted prayer, offered by the defendant, instructed the jury that if the infant plaintiff was guilty of any negligence which contributed to her injury, the verdict should be for the defendant, and that the plaintiff was required to use that degree of prudence and discretion which children of her years ordinarily exercise under like circumstances. It would not have been consistent with that instruction to grant an unavoidable accident prayer upon the assumption that negligence could not be imputed to the plaintiff in view of her age.
The prayer under consideration is further criticized as defective in form because it predicates the supposed unavoidability of the accident upon a finding that the defendant alone was free of negligence, without making a similar inquiry in regard to the plaintiff's conduct. A prayer in that form was used without objection in Sullivan v. Smith, 123 Md. 546, 91 A. 456, and was mentioned without disapproval in Leland v. EmpireEngineering Co., 135 Md. 208, 108 A. 570, but the refusal of prayers so phrased was held to have been proper in Schapiro v.Meyers, 160 Md. 208, 153 A. 27, and Coplan v. Warner,158 Md. 463, 149 A. 1. It was said in Dwyer v. Chew, 149 Md. 281, 285,131 A. 350, 351: "An unavoidable accident, as a subject of judicial inquiry, is one which could not have been obviated by the exercise of legally requisite care by any of the persons whose responsibility for the occurrence is asserted or denied. If either the plaintiff or defendant could have averted the accident by proper care, it could not be said to have been unavoidable."
But the refusal in this case of the defendant's prayer relating to the question of unavoidable accident could not be considered as prejudicial to her interests, because the *Page 4
whole theory of her defense was definitely and clearly submitted by another instruction which she requested and obtained. It stated that if the jury "shall find from the evidence in this case that the infant plaintiff stepped or ran into the path of the automobile of the defendant when it could not be arrested in its course and under circumstances where with ordinary care on the part of the defendant, her approach could not reasonably be anticipated and the automobile could not have been brought to a stop or swerved away from its course in time to save the infant plaintiff from injury, then the verdict of the jury shall be for the defendant." The rejected prayer presented no element of defense which was not embodied in the instruction just quoted.
Judgment affirmed, with costs. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486545/ | Joseph Zane, of Boston, Massachusetts, died leaving a last will and testament and codicil, which were duly admitted to probate in the Probate Court of Suffolk County, Massachusetts, and in the Orphans' Court of Baltimore City. The will, which was executed the 31st of March, 1896, disposes of a large estate to his wife, brother and sister, nieces and nephews, grandnieces and grandnephews, and certain nieces of his wife. Among the numerous devises and bequests is the following provision for his nephew, Joseph Zane, of Baltimore City, and said nephew's daughter and her children: *Page 130
"I give, devise and bequeath to John Grace Suman, of Baltimore, Md., my real estate corner of Baltimore and Carey streets, in said Baltimore, containing about fifteen hundred square feet of land, and the buildings thereon, and the sum of twenty thousand dollars, in trust nevertheless for the uses and purposes following, to wit: The annual income of said real estate and of said twenty thousand dollars shall be paid by said trustee quarterly to my nephew, Joseph Zane, of said Baltimore, for the full term of his natural life, and after his decease, the remainder of said real estate and said twenty thousand dollars shall go to Sarah Clarinda Zane, daughter of said Joseph Zane (my grandniece) during the term of her natural life, and to her children in fee simple, if she leaves issue; but if she dies without issue, at her decease said real estate and said twenty thousand shall go to my heirs at law, discharged of all trusts."
The residuary clause of the will is as follows: "All the rest and residue of my estate, real, personal and mixed, of which I shall die seized, and possessed or to which I shall be entitled at my decease, I give, devise and bequeath to my heirs at law and their heirs by right of representation, in fee simple," etc.
In March, 1899, the testator executed a codicil, in which he confirms his said will, "so far as this codicil is consistent therewith," and after a nnumber of devises and bequests therein, disposes of the entire remainder of his estate as follows:
"All the rest and residue of my estate, real, personal and mixed, wheresoever it may be found and of whatsoever it may consist, I desire it to be divided into three equal parts, and disposed of as follows:
"To my nephew, Joseph Zane, one part subject to the same trusteeship and conditions as stated in my will of March 31, 1896.
"To my niece, Ellen Amelia Zane Clairage, one part. To my niece, Georgianna Kelley, one part." *Page 131
John Grace Suman declined to accept the trust created by the above provisions of the will and codicil, and William J. O'Brien, Jr., of Baltimore City, was by the Probate Court of Suffolk County, Massachusetts, appointed trustee in his place, and the entire trust estate created by said provisions of the will and codicil, consisting, as now invested, of Baltimore City ground rents and mortgages on property in Maryland, and amounting to about sixty-five thousand dollars, was in possession of said substituted trustee at the time of the filing of the bill in this case, and until he was, by an order of the Court below in this case, appointed receiver to take and hold the same until the further order of said Court.
Sarah Clarinda Zane, the daughter of Joseph Zane of Baltimore City, referred to in the above paragraph of the testator's will, who survived the testator, married Pinckney T. Payne, had one child, Pinckney T. Payne, Jr., and died on the 15th day of July, 1905, leaving her said child, an infant, and her husband surviving. Pinkney T. Payne, Jr., the infant, also died in the lifetime of Joseph Zane, of Baltimore, leaving surviving him his said father, Pinkney T. Payne. Joseph Zane, of Baltimore, is now dead, and after his death the trustee of one of the heirs at law of the testator filed the bill in this case against the testator's other heirs at law, William J. O'Brien, as trustee and as executor of a deceased heir at law, and Pinkney T. Payne, alleging, among others, the facts we have stated; claiming the property devised and bequeathed to Joseph Zane by the will and codicil, and asking for a construction of said will and codicil; the appointment of a receiver to take charge of the property, and for a partition of the same among those entitled thereto. Pinkney T. Payne demurred to the bill, and the three appeals in the record in this case are by different defendants from the decree of the Court below sustaining the demurrer and dismissing the bill.
The contention of the appellants, in respect to the property mentioned in the above paragraph of the will, is that Pinckney T. Payne, Jr., the infant child of Sarah Clarinda *Page 132
Payne, having died before the expiration of the equitable life estate of Joseph Zane, of Baltimore, the estate he would have taken had he survived his grandfather, passed by the terms of the will to the heirs at law of the testator; and in respect to property devised and bequeathed to Joseph Zane, of Baltimore, by the codicil, that the testator did not intend that, after the death of Joseph Zane, it should go to said nephew's daughter and her children, according to the provisions of the will relative to the property therein given to said nephew.
It is insisted that Pinckney T. Payne, Jr., did not, at the time of his death, have a vested interest in the property, but in this we think the appellants are clearly wrong. The will gave alternative contingent remainders; first to the children of Sarah Clarinda Zane, if she left any, and if she died without leaving issue, then to the testator's heirs at law. During the life of his mother the interest of Pinckney T. Payne, Jr., was contingent, depending for its vesting upon his surviving her, and the remainder in favor of the testator's heirs at law was contingent upon Sarah Clarinda Payne's dying without issue. Upon the death of Mrs. Payne leaving a child, the only contingency upon which the remainder in favor of her children depended by the terms of the will had happened, and her child took a vested remainder, thereby destroying all possibility of a future interest in the heirs at law of the testator, whose remainder was limited to take effect only upon the death of Mrs. Payne without issue. It is said in 24 Am. Eng. Ency. of Law, (2nd ed.) 417, that, "The rule that a remainder cannot be limited after a fee simple does not forbid the limitation of two or more remainders in fee simple as substitutes or alternatives the one for the other, that is, on such contingencies that only one of the remainders can possibly vest. Such limitations are variously called contingencies with a double aspect, or gifts on a double contingency, or gifts or devises on two alternative contingencies. Each of such fees is a remainder in regard to the particular estate, but none is a remainder in regard to any other of them." The same rule is stated in 2 Washburn on RealProperty, (6th *Page 133
ed.), sec. 1575, as follows: "Notwithstanding a remainder limited after a remainder in fee would be void, yet two remainders may be so limited, though each a fee, as to be good, provided this is so done that only one is to take effect, the one being a substitute for, and not subsequent to, the other. The consequence is, that, if the first takes effect and becomes vested, the other at once becomes void. Such limitation is said to be of a fee with adouble aspect."
In the case of Demill v. Reid, 71 Md. 175, the testator devised certain property to his son, Henry J. Willett, in trust for his grandson, John Willett Belt, for life, "and from and immediately after the decease" of said grandson to the children of said Belt to be "divided between them as tenants in common." His will further provided: "But in case the said John Willett Belt should depart this life, without leaving a child or descendant thereof living at the time of his death, or in case he should have a child, children or descendants of the same living at the time of his death, and such child, children, descendant and descendants should all subsequently depart this life under lawful age, and without issue living at the time of his, her or their decease, then in trust that the said principal estate and property shall go to and become the property of the children of my said son Henry J. Willett," etc. JUDGE MILLER, in disposing of that case said: "As to the character of the estates thus created, we have no difficulty. It is a clearly established general rule in the construction of wills that a limitation which may operate as a remainder shall not be construed as an executory devise. Here then is first a life estate given to the grandson, Belt, and upon his death alternative contingent remainders in fee are limited, first, to the child or children of Belt, if he leaves any which shall attain lawful age, or die before that time leaving issue, and failing this then to the children of testator's son Henry. If Belt had left a child who attained the age of twenty-one, or died before that time leaving issue, the fee would have vested in such child or issue, and such vesting would forever have excluded any possible future interest *Page 134
in the children of Henry J. Belt. Their interest took effect only upon the failure of the preceding contingency. There are, therefore, here two contingent fees not limited to take effect the one upon or after the other, but the one to take effect to the entire exclusion of the other, and the falling out of the contingencies is to decide which of the two is to take effect."
Demill v. Reid is so conclusive as to the character of the estates with which we are dealing in this case, and has been so frequently cited and relied on in this State, that it is not necessary to do more than refer to some of the cases. Larmour
v. Rich., 71 Md. 369; In re Banks' Will, 87 Md. 425;Nowland v. Welch, 88 Md. 48.
It is claimed, however, that these cases do not apply because of the outstanding life estate of Joseph Zane of Baltimore, and that the remainder in favor of the child and of Mrs. Payne could not become vested until after the death of the first life tenant. But that view is not warranted by any reasonable construction of the will. By its terms it was to be determined at the death ofMrs. Payne which of the alternative remainders was to take effect. If she left issue they were to take to the exclusion of the heirs at law of the testator. No other time was appointed, and the remainder to her children was not dependent upon anyother contingency. It could not, of course, vest in possession until after the death of Joseph Zane of Baltimore, but theright of Pinckney T. Payne, Jr., to the possession of the estate after the death of the life tenant, became a certain and vested right upon the death of his mother. The fact that his possession of the property had to await the determination of the preceding life estate did not make the remainder a contingent remainder. It is said in 24 Am. Eng. Ency. of Law, (2nd ed.) 389, that, "The true criterion of a vested remainder is the existence in an ascertained person of a present fixed right of future enjoyment of the estate limited in remainder, which right will take effect in possession immediately on the determination of the precedent estate, irrespective *Page 135
of any collateral event, provided the estate in remainder does not determine before the precedent estate." In Cox v. Handy,78 Md. 108, JUDGE BRYAN, after stating the test by which a vested remainder may be known, given in 1 Preston on Estates, 70, adopts the following statement of the rule by the Chancellor inMoore v. Lyons, 25 Wend. 144: "For where a remainder is so limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event which must unavoidable happen by the efflux of time, the remainder is vested in interest as soon as the remainderman is in esse and ascertained; provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession." InFearne on Contingent Remainders, star page 216 (Butler's ed.), the author says: "It is not the uncertainty of ever taking effect in possession that makes a remainder contingent; for to that, every remainder for life or in tail is or must be liable; as the remainderman may die, or die without issue before the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent."
Applying the rule as stated to the remainder of Pinckney T. Payne, Jr., if the preceding life estate had determined any time after his mother's death and before his death, he would have come into possession of the estate, and his remainder after his mother's death was, therefore, a vested remainder, and being in fee, upon his death before the expiration of the life estate of Joseph Zane, it passed, so far as it is real estate, to his heirs at law, and to the extent that it is personal property, to his personal representative, subject to said life estate. Cox v.Handy; In re Roger's Estate, 97 Md. 674; Roberts v.Roberts, 102 Md. 131. *Page 136
In respect to the one-third of the residue of the estate devised and bequeathed by the codicil to Joseph Zane "subject to the same trusteeship and conditions as stated in my will of March 31, 1896," it is claimed by the appellants that these words do not mean that Joseph Zane's daughter and her children were to have the property after his death according to the terms of the devise and bequest to them in the will, but we think they are also wrong in this contention. By his will the testator gave all the rest and residue of his estate to his heirs at law. This provision of his will was, as was said in O'Brien v. Clark,104 Md. 30, changed by his codicil, in which, after making a number of additional bequests, he directed all the rest and residue of his estate, of every kind, to be divided into three equal parts, and one of these parts he gave to his said nephew, Joseph Zane, as stated, and the other two parts he gave to his two nieces, one part to each. He thereby intended to dispose of his entire estate, and to give the whole residue thereof, after the devises and bequests previously made, to these two nieces and his said nephew; yet if the contention of the appellants be sound the testator did not dispose of the remainder of the third given to his nephew after the expiration of his life estate, and to that extent he died intestate, for it must be conceded that his said nephew took only an equitable life estate in the third devised and bequeathed to him. There is nothing in the will to justify the suggestion that the testator only intended to dispose of a life estate in the third given to this nephew. On the contrary, the whole tenor of his will and codicil clearly indicates his intention to dispose of his entire estate, and to give to his nephew's daughter and her children, if she left any, the share he was to enjoy for his life only. What, under the circumstances do the words "subject to the same trusteeship and conditions stated in my will of March 31, 1896," naturally suggest? Can we infer that the testator, when disposing of hisentire estate, meant to limit the devise and bequest to a life estate? There is nothing in either the will or codicil indicating a desire on the part of the testator *Page 137
to withhold from his nephew's daughter and her children the share intended for him. The only reasonable conclusion, in the absence of some provision in the will or codicil indicating a contrary intention, is that the testator, in disposing of the residue of his estate, and desiring his nephew to have one-third of it, had in mind the provisions of his will relative to the previous gift to him, and that he intended all of those provisions to apply also to his share of the rest and residue of his estate. InLavender v. Rosenheim, 110 Md. 154, JUDGE PEARCE quotes the following statement of JUDGE ALVEY, in Dulany v. Middleton,72 Md. 75: "It is very clear, from all the provisions of the will, that the testator intended to dispose of all of his estate, and that he did not contemplate the possibility of a state of intestacy as to any part of his estate, with respect to anyevent or from any interval of time. * * * As said by LORD ALVANLEY, M.R., in Booth v. Booth, 4 Vesey, 407, `Every intendment is to be made against holding a man to die intestate, who sits down to dispose of the residue of his property.'"
The appellants rely mainly on the case of Buchanan v.Lloyd, 64 Md. 306. In that case Governor Lloyd by his will, after making provision for his widow, disposed of his estate to his sons and daughters and his daughters' children. The shares of his daughters were left in trust. He devised and bequeathed to his three sons, Edward, James M. and Daniel Lloyd, in trust for his daughter, Elizabeth Tayloe Winder, for life, with remainder to her children, a farm and $5,000.00. Similar provisions were made for his other daughters, and after various bequests of personal property, the testator, by a residuary clause of his will, bequeathed all the residue of his personal estate to his three sons, to be equally divided between them. By a codicil, the testator, after ratifying his will, except so far as altered by the codicil, bequeathed to his two sons, Edward and James M. Lloyd, "in special trust, agreeably with the provisions of my said will, the sum of $5,000.00 (in addition to the $5,000.00 devised in my said will); — for the use and benefit of my said *Page 138
daughter, Elizabeth Tayloe Winder." After Mrs. Winder's death her children claimed the $5,000.00 bequeathed to her by the codicil. JUDGE ALVEY interpreted the words "in special trust, agreeably with the provisions of my said will" to mean "upon the same trust as that specified in the will, namely, to hold for the life of Mrs. Winder and no longer," and then says, "and the question is whether, upon the will and codicil together, there is such manifest intention, by implication or otherwise, that the property bequeathed by the codicil for the life of Mrs. Winder, should go to her children at her death, as in the preceding devise by the will, and thus withdraw the property from the operation of the residuary clause of the will? Of course, it is very clear that if there be no such limitation over in favor of the children, the property passed under the residuary clause; for it is too obvious to admit of serious question that Mrs. Winder did not take more than an equitable life estate in the property given her by this particular clause of the codicil. It is certainly a well settled principle that the will and codicil are to be construed together as one instrument, and are to be reconciled as far as practicable. But what is plainly given by the will is not to be revoked or withdrawn by doubtful or ambiguous expressions employed in the codicil. Here the effect is by construction, and in total absence of plain words expressive of any such intention, to give an effect and operation to a clause in the codicil whereby the residuary clause of the will must be curtailed of the subject matter of its operation."
It is apparent that there is a marked difference in the words employed in the two wills. Following the construction adopted by JUDGE ALVEY, if the testator in this case had said, subject to the same trusteeship as stated in my will of March 31, 1896, it would have been interpreted to mean that the property was to be held in trust for the life of Joseph Zane. But that is not what the testator said. The gift to his nephew was not subject to the same trusteeship as stated in the will, but subject to the same trusteeship and conditions *Page 139
as stated in the will. If subject to the same trusteeship as stated in the will would have meant that his nephew was only to have an equitable life estate, what significance is to be given to the additional qualification that it was to be subject also to the same conditions as stated in the will? It can only mean that the devise and bequest was to be subject to all the terms and provisions contained in the will relating to the property there given to his nephew. Morever, in the case referred to the effect of the claim of Mrs. Winder's children would have been to withdraw the $5,000.00 from the operation of the residuary clause of the will, by which the testator bequeathed the residue of his personal estate to his sons, and it was that feature of the case that largely controlled the Court in reaching its conclusion. Here the effect of the contention of the appellants would be, not only to withdraw the fee in the third given to Joseph Zane from the operation of the residuary clause of the codicil, but to also defeat the obvious purpose of the testator to dispose of his entire estate. So if we adopt the reasoning of the Court inBuchanan v. Lloyd, it furnishes ample authority for withholding our assent to the claim of the appellants in this case, and in the later case of Buchanan v. Lloyd, 88 Md. 642, the Court, in construing a somewhat similar clause in the codicil to said will in favor of another daughter of the testator, held that the name of the legatee in the codicil was used in a representative sense and meant the legatee and her children.
After carefully considering all the provisions of the will and codicil in this case, we can reach no other conclusion than that Pinckney T. Payne, Jr., the infant child of Sarah Clarinda Payne, took, at his mother's death, a vested remainder in the property devised and bequeathed by the will and codicil in trust for Joseph Zane, of Baltimore City, for life, etc., and that the heirs at law of the testator have no interest in this property. The decree of the Court below, sustaining the demurrer of the appellee and dismissing the bill, must, therefore, be affirmed.
Decree affirmed with costs, in each appeal. *Page 140 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486547/ | The appellee was indicted in the Circuit Court for Frederick County for perjury alleged to have been committed by making a false oath in certain proceedings of the Orphans' Court of that county. He filed a plea in abatement, to the indictment, alleging that the grand jury which had indicted him was not legally constituted because one of its members who is named in the plea was an atheist and infidel who did not believe in the existence of God nor in the truths of the Holy Scriptures.
The State demurred to the plea and the Court sustained the demurrer. The traverser then moved to quash the indictment and the Court overruled his motion. He then demurred *Page 537
to the indictment and to each count of it and the Court sustained his demurrer and gave judgment in his favor and the State appealed. Under Art. 5, § 80 of the Code, as construed inAvirett's case, 76 Md. 515, and Floto's case, 81 Md. 602, the whole record including both demurrers is brought up by the appeal.
We are of opinion that the traverser's plea in abatement was a bad one because it presented a false issue by averring that the grand juror in question did not believe in the truths of the Holy Scriptures. No such belief is required as a qualification for a juror and therefore to uphold such a plea might exclude a juror who was competent to serve as such. The demurrer to this plea was therefore properly sustained. Art. 36 of the Declaration of Rights provides that no one otherwise competent shall be deemed incompetent as a witness or juror on account of his religious belief "provided he belies in the existence of God and that under His dispensation such person will be held morally accountable for his acts and will be rewarded or punished therefor in this world or the world to come," but says nothing about a belief in the truths of the Holy Scriptures.
If the plea had simply set up that the grand juror in question was not a qualified juror because he did not believe in the existence of God and that under His dispensation he would be held morally accountable for his acts and be rewarded or punished therefor in this world or the world to come it would have been a good plea and the traverser would have been entitled to have the issue raised thereby tried. Our attention has not been called to any previous construction by this Court of this section of the Declaration of Rights as applied to the competency of a juror. The case of the insensibility of a witness to the obligation of an oath by reason of his want of belief in God and His dispensation of rewards and punishments was considered in Armd
v. Amling, 53 Md. 192, and was again referred to in JUDGE BRYAN'S opinion in DuPuy v. Terminal Co., 82 Md. 444, but that is not the precise question before us now. We think however, that the language *Page 538
used in sec. 36 is plain and that its intention clearly was to afford to the community, in so far as they were affected by the exercise of the important powers conferred upon grand juries, the protection as to each juror of the sense of restraint and obligation arising from the belief that he would be held accountable for all of his transactions at the bar of Divine Justice. The provision therefor contained in the section that no one should be deemed incompetent to serve as a juror by reason of his religious belief provided he had the belief therein mentioned in the existence of God and His dispensation of rewards and punishments, in order to be given its proper and legitimate operation, must be construed to assert that no one shall be deemed competent as a juror who does not have that belief.
If any of the grand jurors who found the present indictment against the appellee were incompetent it is clearly null and void. Clare v. State, 30 Md. 163; State v. Vincent,91 Md. 709. It is equally clear that it would have been proper for the traverser to have raised the issue of the competency of the grand juror by an appropriate plea in abatement. Clare v.State, supra; Avirett v. State, 76 Md. 537.
The second demurrer filed by the traverser raised the question whether the indictment contained all of the requisite averments to constitute the crime of perjury. The essential features of perjury at common law are the willful making when under oath in a judicial proceeding or Court of justice of a false statement material to the issue or point of inquiry. The offense consists in the swearing falsely and corruptly and not through mistake. 2Bishop's New Criminal Procedure, sec. 1015; 2 Wharton's Am.Crim. Law, sec. 1244; Hochheimer's Crim. Law, sec. 404. By sec. 356 of Art. 7 of the Code false swearing in an affidavit required by law to be taken is also made perjury.
The oath in such cases must have been taken in the presence of an officer or tribunal authorized to administer it, but the competency of the person who reads the words of the oath to the witness and does the ministerial part of its administration *Page 539
is not material. He may be a clerk or his deputy of other person.Masterson v. State, 144 Ind. 240; Walker v. State,107 Ala. 5; Oaks v. Rodgers, 48 Cal. 197; Stephens v. State,31 Tenn. 157; 21 Am. Eng. Ency., 2 ed., p. 749.
The first count of the indictment alleges the pendency before the Orphans' Court of Frederick County of a proceeding upon the petition and application of the traverser and others for letters of administration on the personal estate of William E. Mercer, deceased, and that the said Court had competent jurisdiction to hear and decide the matter of said proceeding and to administer the law therein, and that at the time of the filing of the petition the traverser took an oath and affidavit required by law "before the said Orphans' Court of Frederick County, State of Maryland, in due form of law," that the matters and things stated in the petition were true to the best of his knowledge, information and belief "said oath having been then and there administered by one Edward A. Toms, who was then and there a duly appointed, qualified, and acting deputy Register of Wills," having power by law to administer an oath. It is further averred that being so sworn in the said proceeding the traverser in a matter material thereto and during the hearing thereof, knowingly and falsely declared and made oath that diligent search had been made among the books, papers, c., of the decedent and that no paper purporting to be his last will could be found and that to the best of the traverser's knowledge, information and belief the decedent had died intestate and that the traverser well knew at the time of making said oath that the decedent did leave a paper purporting to be a last will and did not die intestate.
The second count differs from the first in alleging that the traverser and others appeared personally before the Orphans' Court and requested that letters of administration on the personal estate of the decedent be granted to them, and that he was required by law to prove for that purpose the intestacy of the decedent to the satisfaction of that Court and that in the matter and proceeding of the granting of the letters, of which the Court had jurisdiction, it became material to ascertain *Page 540
whether the decedent died intestate or left any papers purporting to be his last will, and that the traverser, having been duly sworn (in the manner stated in the first count) knowingly and falsely made the statement, already mentioned, as to the diligent but fruitless search for any paper purporting to be his last will and testament and as to his death intestate.
Both of these two counts are sufficiant to charge perjury at common law. In each one of them the oath of the traverser is alleged to have been taken before the Orphans' Court in due form of law in an application for letters of administration upon the personal estate of a deceased person who was alleged to have died intestate. Such an application is certainly a proceeding in the course of the administration of justice and it is one over which the Orphans' Court has full jurisdiction under Art. 93, § 234 of the Code. A statement made under oath in that proceeding touching the intestacy of the decedent is in the highest sense material to the point of inquiry as letters of administration can only be granted in cases of intestacy.
The allegation that the oath was taken "in due form of law" "before" the Orphans' Court was sufficient although accompanied by the statement that it was administered by the deputy Register of Wills. 2 Wharton's Am. Crim. Law, sec. 1257, 1287, 10 ed. Not only had the Orphans' Court, when acting as a judicial tribunal in such a proceeding as the one now under discussion, power to administer an oath, but Art. 93, § 16 of the Code, makes it incumbent upon the person applying for administration to prove the dying intestate to the satisfaction of the Court, unless the same be notorious, and expressly authorizes the Court to examine the applicant under oath as to whether the party dying left any will.
The corrupt intent of the traverser in making the alleged false statements when under oath is plainly and distinctly charged in both counts of the indictment. As it is distinctly alleged that the traverser took the oath in due form of law before the Orphans' Court in the proceeding on the application for administration, the further allegation that the deputy *Page 541
register who administered the oath had authority by law to do so may either be treated as subordinate to or in amplification of the statement as to its due administration or may be disregarded as surplusage.
For the error of the Court below in its rulings upon the traverser's demurrer to the indictment the judgment must be reversed and the case remanded, for a new trial.
Judgment reversed with costs and case remanded.
(Decided June 22d 1905.) | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4047430/ | OFFICIAL NOTlCE FROM éOuRT 0F CRIMlNAL-APPEALS OF TEXAS
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» sTATE OF TE) | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427329/ | Action for damages for the death of Leslie Blakemore who was killed in a collision between an automobile truck driven by him and one of appellant's electric trains. There was a trial by jury, which resulted in a verdict for appellee for $1,750, on which judgment was rendered. The error assigned is the action of the court in overruling appellant's motion for a new trial.
It appears by the evidence that appellant owns and operates an interurban railroad between Indianapolis, Indiana, and Louisville, Kentucky, and passing through Greenwood, Whiteland and Franklin, all in Johnson county. At and near the place of the accident, appellant's railroad parallels and is immediately adjacent to and on the west side of the Madison and Indianapolis State road, now United States highway No. 31.
On the day of his death, February 26, 1924, and for about a month prior thereto, said Blakemore was employed by one Thompson who lived west from interurban stop No. 27. On the day of the accident, Blakemore drove the Ford truck in which he was conveying garbage, *Page 441
passed south along said highway, which is paved with concrete to a width of eighteen feet, and turned to his right at stop No. 27, into a township road, known as "the Oliver road," and was struck by appellant's limited car, southward bound, at about noon.
At the place of collision, and for more than a mile north therefrom, the country is level and the view of appellant's trains unobstructed from any point on said highway. After a traveler turns from said highway into the Oliver road, a line of poles located on the east side of appellant's right of way, obstructs the view of the traveler looking northward, as he travels a short distance. At said place of the collision, the west edge of the pavement on said highway is about sixteen feet distant from the east rail of the track. From the concrete road to the surface of the crossing, there is a gradual rise to a height of about eighteen inches above the surface of the concrete highway.
On the day of the collision and at the time of the injury complained of, the weather was clear.
Appellee's intestate was a colored man, twenty-five years old, in good health and in the full possession of his faculties. He had been engaged in that kind of work for only a short time. The crossing over the track was protected by three-inch boards laid next to the rails. At the east rail and next to the turn off said concrete road, the boards on each side of the rail were eleven feet long. At the west rail, the two boards were each nine or nine and one-half feet long.
Said highway and appellant's track run slightly to the northwest, while Oliver road leaves said highway in a due westerly course, and a truck turning onto Oliver road turns at something less than a right angle, and to make the crossing from the north, with a truck, a short turn must be made and one has to swing out to the east side to get on the road and to keep from running off the *Page 442
planks. The short turn has a tendency to throw the truck to the south.
Other vehicles, in making the turn into Oliver road, had missed the crossing boards at the west rail and the wheels thereof hit the west rail south of the crossing boards. Appellant had been informed of the defective condition in that the boards were too short. The defective condition of the crossing as to these boards is the only defect complained of.
Appellant's train consisted of a regular passenger coach and a dining car, with combined weight of 100 tons, and was operated by a motorman and conductor, both experienced trainmen. The train was traveling sixty miles per hour. The regular statutory crossing whistle of one long and two short blasts of the whistle was sounded. When the train was about 800 feet from the crossing, the motorman began giving short blasts of the whistle as warning to Blakemore of the approach of the train, but the brakes were not applied until about 100 to 150 feet from the crossing, and there was no slackening of the speed of the train, which was running at fifty or sixty miles per hour, running about 1,200 feet after the accident before stopping. The motorman ran the car from 700 feet above the crossing after he knew Blakemore was going to cross, and there is evidence that he sounded the warning signals as far as 800 feet from the crossing. Blakemore continued his course along the highway and turned west off the concrete road and on the crossing without stopping his truck. Upon said Blakemore's turning off the concrete road, and at a time when appellant's train was 100 to 150 feet north of the crossing, the motorman applied all the air-brake pressure at his command. As Blakemore left the concrete road and turned into Oliver road, there is a difference in the estimates of the speed at which his truck was moving, some estimating that it was traveling four to five miles *Page 443
per hour, others as fast as fifteen to twenty miles per hour.
He did not stop his truck at any time. His truck continued to move forward and in a westerly direction until it was on the crossing, some evidence being that the collision came like a flash after the truck turned onto the Oliver road, while other evidence was that it was on the crossing three or four seconds before it was struck, and was vibrating against the west rail before it was struck. The evidence clearly shows that he did not stop for the approaching train, and the uncontradicted evidence shows that Blakemore had every opportunity to see and hear the approaching train and avoid the collision had he looked or listened, there being no obstruction except the line of poles mentioned above.
We have thus tried fairly to state the facts upon which the jury based its verdict, which, as it seems to us, was sufficient to sustain a verdict that appellant was guilty of 1. negligence in the maintenance of the defective crossing. As it seems to us, the evidence would have been sufficient to sustain a finding that Blakemore was guilty of contributory negligence in entering upon the tracks without stopping, looking or listening for the approaching train, had such a verdict been returned. But whether Blakemore was guilty of contributory negligence or not, because of the happenings after Blakemore was upon the track, the judgment of the court must be affirmed.
It appears by the evidence that appellant's motorman saw Blakemore upon the highway which parallels the railroad when the car was about 1,700 feet from the crossing, at which time 2. Blakemore had not turned off the concrete; that the motorman watched him as he turned off and knew that he was going to attempt to cross the tracks, when the car was at least 800 feet distant; that the motorman saw Blakemore as *Page 444
he turned upon the tracks but that he did not attempt to stop the car until he was within 100 to 150 feet of the crossing, at which time his car was going so fast that it did not stop until it had gone beyond the crossing a distance of about 1,200 feet. There is evidence that Blakemore, with his truck, was upon appellant's track three or four seconds before the collision, with his truck vibrating against the west rail. It thus appears, and the jury was justified in finding, that Blakemore was in a helpless situation and that appellant had the last clear chance to avoid the accident. Appellant conceded that there was evidence as to its last clear chance by tendering an instruction on that doctrine.
Appellant has undertaken to present error with reference to a number of instructions, given and refused. Appellee, however, forcefully contends that none of the instructions was made 3. a part of the record, by order of the court. Appellant has, in effect conceded appellee's contention, and has undertaken by what purports to be a nunc pro tunc entry, followed by certiorari, to show that the instructions were, in fact, properly made a part of the record. But appellant, instead of amending its brief by leave of court, and thereby making such purported nunc pro tunc entry a part of the statement of the record, has set it out only in the reply brief. This it cannot do. It has been repeatedly held that matter omitted in the original brief cannot be supplied in the reply brief.Indianapolis, etc., Traction Co. v. Hardwick, Admx. (1919),70 Ind. App. 192, 123 N.E. 249; Hammond, etc., R. Co. v.Kasper (1919), 71 Ind. App. 328, 123 N.E. 360; Lyons v.Souder (1914), 56 Ind. App. 443, 101 N.E. 511; State, exrel., v. Birden, Trustee (1918), 187 Ind. 466, 119 N.E. 865;Macbeth Evans Glass Co. v. Jones (1911), 176 Ind. 221, 95 N.E. 567.
As stated in the last case cited, appellee would have no *Page 445
right to reply except on obtaining permission. By leave of court, appellant should have amended its original brief or have filed a supplement thereto. Nothing is presented for our consideration as to the instructions. We find no reversible error.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427341/ | Appellee brought suit against the appellant, Commercial Acceptance Company, C.J. Brinkman and Updike Auto Company, for damages resulting from the alleged unlawful conversion of an automobile.
The issue consisted of a complaint in one paragraph, to which appellant filed an answer in general denial. *Page 137
The suit was dismissed as to Updike Auto Company. Upon the issues thus formed, the cause was submitted to a jury for trial, resulting in a verdict against appellant in favor of appellee, and against appellee in favor of C.J. Brinkman. A motion for a new trial was filed by appellant, this was overruled, and judgment entered against appellant in favor of appellee on the verdict.
Appellant has appealed to this court, assigning as error the overruling of its motion for a new trial.
While appellant, in its motion for a new trial, alleged 15 reasons therefor, among which are included rulings on the admission and exclusion of evidence and the giving and the refusal to give certain instructions, the only reasons properly set out and discussed by appellant's counsel in their brief, and not waived are: (1) That the verdict is not sustained by sufficient evidence; (2) the verdict is contrary to law; and (3) the damages assessed by the jury are excessive.
The appellee lived in the city of Indianapolis; on April 22, 1929, he purchased an automobile from the Updike Auto Company, for the sum of $850; in settlement, he traded in an old car for $300, and executed for the balance what is commonly called a "conditional sales contract" under which, title to the automobile was reserved in the seller until he had made 16 monthly payments of $40.50 each; upon failure of appellee to make his payments as provided, the whole amount remaining unpaid on the contract could, at the option of the seller, be declared immediately due and payable and the automobile could be repossessed; this contract was assigned to the appellant.
On August 22, 1929, a payment was due on the contract; appellee had in the meantime met with financial reverses; he went to the office of appellant in the city of Indianapolis, where he was informed by appellant's cashier that, "perhaps a few days wouldn't make any *Page 138
difference." Appellee returned to appellant's office again upon Saturday, August 24, 1929, where he had a talk with Mr. Brinkman, city collector for appellant. Appellee, at that time, left the automobile in the garage of appellant, receiving the following receipt: "Received of R.W. Walton one Auburn Cab, which we are holding at our garage until the first of week, C.J. Brinkman." On Monday, August 26, 1929, appellee again went to the office of appellant, offered to pay the installment due on the contract and demanded the automobile. Appellant refused to accept the payment on the contract, or to return the automobile, informing appellee that the automobile had been wrecked, that it could not be returned to appellee and that appellant had repossessed same. There was other evidence before the jury for its consideration, relating to the negotiations between the parties concerning the payment of the installment due on the contract and the disposition to be made of the automobile and its value. This evidence was conflicting.
The questions tendered under the issues and submitted to the jury for its determination were, first, whether the appellant had wrongfully converted the automobile of appellee and, if so, second, the amount of damages sustained by reason of such conversion.
Upon the record as it comes to us, the first question for our consideration is: Is there any evidence to support the finding of the jury? Parties competent to make a contract may, at 1-3. their pleasure, cancel, abandon, modify or change it. As said by Roby, J., in Tong v. Orr (1909),44 Ind. App. 681, 694, 87 N.E. 147, 88 N.E. 308, on petition for rehearing: "It is not necessary to decide whether there is evidence in the record sufficient to sustain a finding that the original contract had not been abandoned. The sole question is whether there is evidence to sustain the finding made by *Page 139
the general verdict, and that being the case, an affirmance follows.
"There is no special formula or set of words which must be used in abrogating or modifying a contract. The question is one of fact, to be determined in the trial court upon the evidence in each case." Where the evidence is conflicting, as in the case at bar, this court will not weigh it, in order to set aside the decision of the trial court. Wise v. Wise (1909),43 Ind. App. 625, 88 N.E. 309; Polk Sanitary Milk Co. v. Qualiza
(1930), 92 Ind. App. 72, 172 N.E. 576; Hudelson v. Hudelson
(1905), 164 Ind. 694, 74 N.E. 504; Parkison v. Thompson
(1905), 164 Ind. 609, 73 N.E. 109, 3 Ann. Cas. 677; Hitt v.Carr (1928), 201 Ind. 17, 162 N.E. 409.
The second question for our consideration is: Is the amount of the damages awarded excessive? Here again, the evidence from which the jury was to determine the amount of damages, if any, sustained by appellee was conflicting.
"Where a new trial is sought on the ground of excessive damages, attention is directed to the evidence, the same as it is where the legal sufficiency of the evidence is challenged 4. under the sixth subdivision of the statutory grounds for a new trial." Cleveland, etc., R. Co. v. Miller (1905),165 Ind. 381, 74 N.E. 509. The amount of the damages awarded by the jury, does not indicate, that it took into consideration, any improper elements, or that it was prompted to act through prejudice, corruption or other improper motive. Cleveland, etc.,R. Co. v. Miller, supra; Cleveland, etc., R. Co. v. Hadley
(1907), 170 Ind. 204, 82 N.E. 1025, 84 N.E. 13, 16 L.R.A. (N.S.) 527, 16 Ann. Cas. 1; Jeffersonville Mfg. Co. v. Holden
(1913), 180 Ind. 301, 102 N.E. 211; Baldwin Piano Co. v.Allen (1918), 187 Ind. 315, 118 N.E. 305.
Finding no error, the judgment is affirmed. *Page 140 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427342/ | This was an action instituted by appellee against appellant to recover on four promissory notes.
The complaint consisted of four paragraphs, each of which was in the ordinary form of a complaint on a promissory note. Appellant filed an answer in general denial to each paragraph of complaint, and filed three paragraphs of counterclaim, each of which, on motion of appellee, was stricken from the files. Appellant reserved *Page 18
exceptions to each of said rulings. The cause was submitted to the court for trial on the issues formed by the complaint and answer in general denial, and the court found for appellee and rendered judgment against appellant in the amount shown to be due on said notes.
Appellant perfected this appeal, assigning the action of the court in striking each of said counterclaims as errors relied upon for reversal. Appellant discusses, however, only the assigned error that the court erred in sustaining appellee's motion to strike out appellant's third paragraph of counterclaim and in striking out said paragraph.
Said third paragraph of counterclaim alleged that said notes were executed by appellant and given to appellee as renewals of loans, and balances due on loans, which were originally made in 1929 and 1930; that prior to the making of said original loans appellant owned sixty-five (65) shares of capital stock in appellee bank, of the par value of $1,300.00; that in the fall of 1930 appellee had an opportunity to sell said stock for $5,200.00, and appellant told the officers of appellee bank that he wished to sell said stock at said price and apply the proceeds to the payment of the balance due on said notes; but said officers represented that the stock would increase in value, and the bank would not press for the payment of said loans, and because of said representations appellant did not sell said stock and apply the proceeds of the sale to the payment of said loans; that later, upon demand by appellee bank for additional collateral to secure said loans, appellant delivered said stock to appellee bank to hold as such collateral; that thereafter appellant had another opportunity to sell said stock for $3,250.00 and appellant proposed to appellee bank the selling of said stock for said price and applying the proceeds to the payment of said indebtedness, but again appellee bank and its officers urged appellant *Page 19
not to sell the stock, and told appellant that the value of the stock was greatly in excess of $3,250.00; that because of said representations appellant again refrained from selling said stock and applying the proceeds to the payment of said debt; that said officers at the time knew, or should have known, that said representations were false, and knew, or should have known, that appellee bank was approaching insolvency; that appellee bank ceased to do business on June 22, 1931; that said stock now has no value.
The counterclaim prayed a judgment in the sum of $4,000.00.
There is but one question involved in this appeal and that is whether or not appellant's claim against appellee could properly be set up as a counterclaim in this cause of action.
"A counterclaim is any matter arising out of or connected with the cause of action which might be the subject of an action in favor of the defendant, or which would tend to reduce the plaintiff's claim or demand for damages." Sec. 373, Burns 1926, Sec. 2-1018, Burns 1933, § 122, Baldwin's 1934.
In Excelsior Clay Works v. DeCamp (1907), 40 Ind. App. 26, 80 N.E. 981, this court held that the correctness of the action of a trial court in striking out a counterclaim depends upon whether the averments contained in the counterclaim show that the facts upon which it is founded arise out of the transaction set forth in the complaint.
In that case this court said, "In determining whether the respective claims asserted by the parties arise out of the same transaction, the court is not confined to the facts stated by the plaintiff, but may take into account the facts set up by the defendant, and, from them all, will determine whether the claims arise out of the same transaction." *Page 20
We think the acts alleged in the counterclaim which are allegedly fraudulent are transactions which are separate from the transactions alleged in the complaint. The pleadings considered as a whole allege the execution of the four notes by appellant, on the one hand, and a perpetration of acts, allegedly fraudulent, upon appellant by the bank and its officers on the other hand. The complaint and counterclaim do not allege facts showing that the alleged fraud arose out of or is connected with the note transactions. See Penn-American Plate Glass Co. v.Harshaw et al. (1910), 46 Ind. App. 645, 90 N.E. 1047.
For discussion of what claims may be pleaded as counterclaims see Sec. 674, Watson's Works Practice and Forms.
We hold that appellant's counterclaim was properly stricken.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427347/ | This is an appeal from a judgment of the Marshall Circuit Court ordering the appellant to reinstate the appellee to his former position as a fireman in the fire department of the city of Elkhart. The appellee has filed a petition to dismiss the appeal. The cause has been fully briefed, both upon the motion to dismiss and upon the merits.
The appellee was employed as a member of the fire department of said city until December 3, 1935, on which date he was suspended for violation of rule No. 6 promulgated by the department, which prohibited the wife of a fireman from engaging in any employment. Also, charges of misconduct were filed against him. A hearing was had before the board of public works and safety pursuant to Chapter 282, Acts 1935, amending Section 48-1605, Burns' Ann. St. 1933, § 11478, Baldwin's 1934. The 1935 Act made provisions for filing charges against firemen and policemen and for a hearing before the board. This was done, and upon a hearing the appellee was discharged on December 17, 1935. On January 8, 1936, he filed a complaint against the city of Elkhart in the Elkhart Circuit Court, charging that for many years he had been continuously employed as a regular member of the fire department; that his services were satisfactory until he received notice from the chief of the fire department that he was discharged in December, 1935. The complaint alleged the nature of the charges filed against appellee, his hearing and discharge upon the ground that he was a married man whose wife was employed in a local factory in violation of said rule No. 6; that no evidence was introduced before the board *Page 22
of any other violation of official duties, or conduct unbecoming a member of the fire department; that the order discharging him on the ground that his wife was employed was of no effect, null and void, and was "unlawful, arbitrary, unreasonable, capricious, corrupt, fraudulent, and was rendered in bad faith and in gross abuse" of the board's discretion. The prayer was that the court order the board to reinstate appellee to his position in the fire department, and for all other proper relief.
Upon filing the complaint a summons was issued, returnable January 20, 1936. The cause was venued on motion of appellant to the Marshall Circuit Court, where the issues were closed and the case tried by the court. A finding and judgment were entered for the appellee.
The finding of the court included a recital of many facts, among which the court found the allegations of the complaint to be true; that the plaintiff was duly employed as a first class fireman and a member of the fire department of the defendant, City of Elkhart; that he was suspended by the chief of that department, and, upon charges being filed against him, the plaintiff appeared before the board and a hearing was had; "that the only evidence introduced was to the effect that plaintiff was married and that his wife was employed as a director of personnel and office manager by a dress factory at the same time that plaintiff was acting as such fireman aforesaid"; that on June 19, 1935, the chief of the department notified appellee "that the Board of Public Works and Safety request, that the wife of a City Fireman shall not work or be employed at any occupation while such City Fireman is in the employ of the City"; that such order was not promulgated by the board of public works and safety, nor was a resolution adopted by that board promulgating said order, until *Page 23
December 3, 1935, about the time the appellee was dismissed.
The court found that the order discharging the appellant was based solely upon the fact that his wife was working in violation of said order of June 19; that upon a statement of the record and facts, the rule concerning the wife's working was "void, illegal, made in gross abuse of discretion and capricious and a rule bearing no reasonable relation to plaintiff's fitness for holding his position as a fireman, and that his discharge was and is illegal and void." It was ordered by the court that the order of dismissal of the board of public works and safety of the city of Elkhart be set aside, and said board was ordered and directed to reinstate the appellee to his former position, and that the plaintiff recover costs.
The motion for a new trial, based upon the ground that the decision of the court is not sustained by sufficient evidence and is contrary to law, was filed and overruled. The appeal was perfected, and the appellee has filed his petition asking that the appeal be dismissed for the reason that this court has no jurisdiction, because the statute provides that the judgment of the circuit court shall be final.
In support of the motion to dismiss the appellee cites and relies upon Chapter 282, Acts 1935 (§ 11478, Baldwin's Supp. 1935), which provides for a hearing before the board of public works and safety, pursuant to which statute the appellee was dismissed from the fire department. The statute provides that any member of the fire or police force "shall have the right to appeal to the circuit or superior court of the county"; that "such appeal shall be taken by such party filing in such court, within thirty days after the date such decision is rendered, a bond as herein required and a verified complaint stating in concise manner the general nature of *Page 24
the charges against him or her, the decision of the board thereon, and a demand for the relief asserted by plaintiff."
The Act provides that the city shall be named as the sole defendant and summons shall be issued, and the final judgment of the court shall be binding upon all parties and no further appeal therefrom shall be allowed. It is solely by virtue of this statute that appellee asks the court to dismiss the appeal.
While the act in question provides for an appeal from the board of public works and safety to the circuit court or superior court, also, it provides that a complaint shall be filed 1-3. by the aggrieved party, a summons issued, and upon trial the court is authorized to issue an order of mandate directing the board to set aside, or modify any unauthorized order it may have theretofore made. The allegations of the complaint disclose facts sufficient to constitute a complaint for mandatory injunction, regardless of the statute in question. A reasonable construction of the statute is that it provides that orders, made or promulgated by the administrative board, may be ordered changed, modified, or abrogated upon proper complaint filed in the circuit or superior court. The action in itself is strictly of that class in which suits are commenced by complaint and summons, and not by appeal. Upon the trial the appellant, as a defense to the complaint, questioned the constitutionality of the Act, and contended that the trial court was without jurisdiction to hear the cause, upon the theory that the action was nothing more than an appeal from an administrative board and an attempt to delegate ministerial powers to the court. When either the question of the constitutionality of an act or the jurisdiction of the court is presented by the issues to the trial court, it does not lie within the power or authority delegated to the legislative branch of the state government *Page 25
to declare that such questions may not be reviewed on appeal to this court.
The circuit court possessed jurisdiction to hear and determine this cause, and no reason appears why the losing party may not appeal to this court from such judgment. If the action filed in the Elkhart Circuit Court had been strictly an appeal from an order of the board of public works and safety, an administrative board possessing no judicial power, then the trial court would have been without jurisdiction of the proceeding. But this is an action in the nature of a mandatory injunction, commenced by complaint and summons. Authorities supporting this proposition are: State ex rel. Felthoff v. Richards (1932), 203 Ind. 637,180 N.E. 596; Shira v. State ex rel. (1918), 187 Ind. 441, 119 N.E. 833; Peden v. Board of Review of Cass County (1935),208 Ind. 215, 195 N.E. 87; Roth v. State ex rel. (1902),158 Ind. 242, 63 N.E. 460; City of Peru v. State ex rel. (1935),210 Ind. 668, 199 N.E. 151; In re Northwestern Indiana Tel. Co.
(1930), 201 Ind. 667, 171 N.E. 65; Hyde v. Board of Com'rs ofWells County (1935), 209 Ind. 245, 198 N.E. 333.
These authorities recognize the rule that where an administrative board has made an order in itself illegal, or where fraud is shown, or that such order was made 4, 5. capriciously, or dishonestly, a court will entertain a suit to determine the legality of the order. The court will not undertake to control the discretion of such boards in making orders in the administration of the affairs of the state so long as the orders are not tainted with fraud, capriciousness, or illegality. The appellant asserts that the statute is null, void, and unconstitutional, and for this reason it is entitled to an appeal to this court to test the constitutionality of the Act. The constitutional question, duly presented to the trial court, is based upon the alleged violation of Article *Page 26
3, which provides for three separate departments of government, and that the Act attempts to confer upon the court administrative duties which is not permissible. However, when it is alleged in a complaint that such acts are illegal, capricious, fraudulent, or trespass upon the civil rights of the citizens of the state, the courts will not hesitate to take cognizance thereof in an action properly commenced. In so doing the court is exercising a purely judicial power, unmixed with the administrative branch of the state government.
The appellant asserts that the judgment of the lower court should be reversed for the two reasons assigned in the motion for a new trial Appellant has not brought the evidence before 6. the court by bill of exceptions or otherwise. This court is confronted with a complaint which states a cause of action and a finding and judgment rendered upon that complaint. The judgment cannot be overthrown on the ground that it was not sustained by sufficient facts when the facts are not brought before the court. Since the 1935 Act is not in conflict with Article 3 of the Constitution, and does not confer administrative duties upon the court, it cannot be condemned. It does provide the manner in which a discharged fireman or policeman may file an action in the court, making the city the sole defendant, and demand and recover a judgment for his reinstatement upon a proper showing. Appellant has presented no question showing that the judgment appealed from is contrary to law.
The motion to dismiss the appeal is overruled and the judgment is affirmed. *Page 27 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427348/ | The appellant was prosecuted by affidavit for an alleged violation of the liquor law. This appeal is taken from a judgment rendered upon a verdict of guilty. The appellant has assigned as error the overruling of his motion to quash the affidavit, for a new trial, and in arrest of judgment.
The charging part of the affidavit is as follows: "Bert O. Renbarger being duly sworn on his oath says: That one William Scheerer * * * on or about the 1st day of February A.D., 1924, at the county of Grant, State of Indiana, as affiant verily believes, did then and there unlawfully sell, barter, exchange, give away, furnish and dispose of one pint of intoxicating liquor for the sum of five dollars in money to Frank Shugart, then and there being * * *."
The motion to quash the affidavit stated the following grounds: (1) That the affidavit fails to charge a public offense. (2) The language used in the affidavit fails to charge a public offense with sufficient certainty.
The charge is based upon the first section of ch. 23 of the Acts 1923 p. 70.
Where a statute defines a crime and states what acts shall constitute a violation thereof, it is sufficient to charge the offense in the language of the statute. Faulkner v. 1, 2. State (1923), 193 Ind. 663; Asher v. State (1924), 194 Ind. 553. It was not necessary to negative the exceptions which were contained in other parts of the statute.Asher v. State, supra.
Appellant says that the affidavit charges four distinct violations of the first prohibitive clause of said § 1, Acts 1923 p. 70.
In State v. Schipper (1923), 193 Ind. 595, it is held that when a statute makes it a crime to do any one of *Page 158
several things mentioned disjunctively, all of which are 3, 4. punishable alike, the whole may be charged conjunctively in a single count without objection for duplicity. This rule has been followed in numerous decisions in this jurisdiction. The court did not err in overruling the motion to quash the affidavit.
The appellant moved for a change of venue from the county. This motion was verified and supported by affidavits. In it, the affiant, appellant, says that he cannot have a fair and 5. impartial trial of his said cause in Grant county, Indiana, for the following reasons: (1) That an odium attaches to this defendant in said county on account of local prejudice. (2) That an odium attaches to the defendant's cause of defense in said county on account of local prejudice. It is further stated that he could not have made this affidavit and application for the change of venue within the time fixed by the rules of said court for the reason that he had no knowledge of the odium existing against him in said county and against his cause of defense until the evening of May 20, 1924, and that he makes and files said affidavit at the first opportunity and on the first day of court after he learned said facts. Counter affidavits were filed against granting the change of venue controverting the facts alleged in the affidavits in support of such change of venue. This motion for a change of venue was based upon the statutory grounds named in § 2235 Burns 1926, § 2074 Burns 1914. Section 2239 Burns 1926, § 2078 Burns 1914 provides that when an affidavit for change of venue from the county is founded upon excitement or prejudice in the county against the defendant and is filed in a criminal case punishable by death, the court shall grant a change of venue. In cases not punishable by death, it is a matter of discretion with the court whether the change shall be granted. Leach v. State (1912), *Page 159 177 Ind. 234; Hinkle v. State (1910), 174 Ind. 276. The ruling of the trial court on a motion for a change of venue as to the existence of excitement and prejudice upon conflicting affidavits is a determination of an issue of fact and is conclusive on appeal. Hinshaw v. State (1919), 188 Ind. 447. It was not error to refuse to grant the change of venue.
Under the specifications in his motion for a new trial, appellant says the court erred in giving to the jury instructions numbered 5 and 6, and he assigns error as to the giving of 6. each of them separately. Instruction No. 5 is as follows: "The court instructs you that a reasonable doubt is not a conjured up doubt, such a doubt as you might seek out to acquit a friend; but it must be a doubt that you could give a reason for, that kind of a doubt as would exist in the mind of a reasonable man, after a full, free and careful examination of all the evidence, such doubt as would cause a careful, considerate and prudent man to pause and consider before acting in the great and most important affairs of life." In this instruction, the court told the jury that a reasonable doubt must be a doubt that you could give a reason for. This instruction was erroneous.Siberry v. State (1893), 133 Ind. 677.
Instruction No. 6 is as follows: "There is a sharp conflict in the testimony in this case but it is your duty to reconcile it if you can do so and if not to determine whom you will 7, 8. believe. It is your duty to examine and weigh the evidence as it has come to you, and in determining the weight to be given to the testimony of the different witnesses you must take into account the interest or want of interest they have in the case; their manner on the witness stand, the probability or improbability of their testimony with all other circumstances before you which can aid you in weighing their testimony. The defendant has testified *Page 160
as a witness, and you should weigh his testimony as you weigh that of any other witness, consider his interest in the result of the case, his manner and the probability or improbability of his testimony." The sentences in this instruction as follows: "There is a sharp conflict in the testimony in this case but it is your duty to reconcile it if you can do so and if not to determine whom you will believe," and further on, the statement: "The defendant has testified as a witness and you should weigh his testimony as you weigh that of any other witness, consider his interest in the result of the case, his manner and the probability or improbability of his testimony," are erroneous. In a criminal case, it is the duty of the jury to reconcile the testimony, if it can be done, on the theory that the defendant is innocent. If that cannot be done, then it is the duty of the jury to determine whom they will believe and whom they will not believe. Farley v. State (1891), 127 Ind. 419. Again, the instruction says, "you should consider the interest of defendant in the result of the case." The effect of this last sentence is to discredit the testimony of the defendant.
When a defendant testifies in a criminal case in his own behalf, his testimony must be considered as the testimony of any other witness and weighed in the same manner, and it is error to direct the jury to consider or weigh his testimony in any other manner. Kell v. State (1924), 194 Ind. 374.
Other matters discussed in appellant's brief need not be considered, as they are not likely to occur in a retrial of the case.
For error in giving instructions Nos. 5 and 6, the judgment is reversed, with directions to sustain appellant's motion for a new trial.
Gemmill, J., not participating. *Page 161 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427350/ | This is an appeal from an order entered by the Industrial Board. The issues were made by the filing by appellant of an application for adjustment of compensation. At the trial of the cause, it was stipulated that the only issue for determination, and about which there was any dispute, was whether the appellant had sustained a permanent partial impairment as a result of the alleged injury, and, if so, the extent thereof.
The full Industrial Board found that, as a result of the injury received on May 13, 1929, appellant now has a tumerous growth on his left breast, and that appellee offers to appellant such surgical and medical attention as is needed for the removal of said tumorous growth, and further agrees to pay to appellant compensation during total disability incident to the said operation at the rate of $16.50 per week; that appellant did not accept, neither did he reject, said surgical and medical attention so proffered by the appellee. The full Industrial Board further found from the evidence of medical *Page 628
witnesses introduced on behalf of appellant and appellee that the surgical operation would be advisable and that all medical evidence shows that appellant might be relieved of this tumorous growth by such operation, and that there is no evidence tending to show that appellant's condition was permanent, but, if this tumorous growth was not removed, it would naturally grow progressively worse, and the full Industrial Board now finds from the evidence said surgical attention as proffered to appellant by appellee should be accepted by him.
The order of the court was that appellant should accept such medical and surgical treatment as proffered by appellee for the removal of said tumorous growth, and, if appellant should accept same, appellee shall pay to appellant compensation at the rate of $16.50 per week from the date he enters the hospital and to continue during the period of his disability incident to said surgical operation. It is further ordered that appellee shall pay all the reasonable and necessary medical, surgical, hospital and nurse services and supplies incident to said operation. It is further ordered that appellee shall not be further liable for further compensation payments to appellant unless and until the appellant subjects himself to said surgical and medical treatment as proffered by appellee.
Appellant excepted to the award of the full Industrial Board and brought this appeal to this court, alleging that the order is contrary to law.
This order of the Industrial Board is pursuant to § 25 of the Workmen's Compensation Law (§ 9470 Burns 1926), which is as follows: "If, by reason of the nature of the injury or the process of recovery, treatment is necessary for a longer period than 30 days, the Industrial Board may require the employer to furnish such treatment for an additional period, not exceeding 30 days. The refusal of the employee to accept such services and supplies, *Page 629
when so provided by the employer, shall bar the employee from all compensation during the period of such refusal."
The case of the Enterprise Fence, etc., Co. v. Majors
(1918), 68 Ind. App. 575, 121 N.E. 6, is in point. We quote therefrom as follows: "There was evidence in this case and the Industrial Board found: "That, at the time of the injury, the attending surgeon employed by appellant at first advised the amputation of appellee's index finger; that appellee remonstrated and insisted that the finger should be saved if possible, and, in response to the objection of appellee, the attending physician advised that he had saved fingers as badly injured as that of appellee, and it was agreed to make an effort to save the finger. The finger was not amputated at that time, but was treated for some period in an endeavor to save it; that infection developed which involved practically the whole of plaintiff's right hand, and made necessary the amputation of the index finger, which was amputated at the middle joint. . . . That the infection developed because of the delay in the amputation; that the plaintiff's refusal to accept the amputation at the time of the injury was made in good faith with a view of saving the finger if possible; that his refusal was not wilful, stubborn or without reason.' It would therefore seem to follow that appellee's insistence that his finger be saved if possible, when taken with the statement made by the surgeon, was not such unreasonable or wilful conduct as would prejudice the allowance of additional compensation."
The case of Jendrus v. Detroit Steel Products Co. (1913),178 Mich. 265, 144 N.W. 563, L.R.A. 1916A 381, Ann. Cas. 1915D 476, is cited in support of Enterprise Fence and Foundry Co. v.Majors, supra. Both cases are upon facts upholding the right of the employee to refuse to be operated upon. *Page 630
In the Jendrus case, it was argued by appellants that: "It would be a harsh rule that bound an employee who had been injured to accept in all cases the dictum of a surgeon who advised an operation. Manifestly the employee cannot be called upon at all times and under all circumstances to place himself absolutely in the hands of the employer's surgeon; but, where there is no dispute amongst the medical advisers, and the course suggested presents the only opportunity for the saving of the life, we insist that the refusal is a new and controlling cause for the injury for which recovery is sought."
The court said: "In none of the cases cited by appellants' counsel was the operation anything more than a minor operation for a trifling injury. . . . None of the testimony in the case goes to the length of showing that Jendrus's life would have been saved had the operation been submitted to at 8 o'clock in the evening . . . which was the first time that doctor Hutchings had reached the conclusion that an operation was necessary. . . . There is testimony that he might have recovered without any operation, although that result could not have been reasonably expected. . . . Neither can we hold that Jendrus by his conduct in the premises in causing a delay in the operation was guilty of intentional and wilful misconduct."
The decided cases hold that there is no hard and fast rule that can be laid down, and that all cases must be decided upon the facts arising in each case.
We are called upon to decide whether the Industrial Board is authorized under the statute to make the order in question. The only question that was presented to the Industrial Board was whether the appellant has sustained a permanent partial impairment as a result of the injuries that he has received. The Industrial Board did not decide that question, but proceeded to make an order to the effect that the appellant shall not be entitled to *Page 631
further compensation payments unless and until he subjects himself to a surgical and medical treatment as proffered by the appellee.
The law on the subject is that the Industrial Board may require the employer to furnish the treatment for an additional period of 30 days, and, until the employee refuses to accept the treatment offered, we are of the opinion that the Industrial Board has no power to make any order in the premises concerning his refusal. When the offer is made, the employee can either accept or refuse. If he is of the opinion that he is justified in refusing the proffered treatment, he can do so, and, after that time, it is his privilege to show that such refusal was justified. There being no authority in the law authorizing the Industrial Board to make such an order in advance of the employee's refusal to accept the treatment of the appellee's surgeon, the order of the said board is contrary to law.
This case is remanded to the Industrial Board for further proceedings on the petition now pending before said board. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4014594/ | IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
RONALD JAMES SISCO II,
Appellant.
No. CR-15-0265-PR
Filed July 11, 2016
Appeal from the Superior Court in Pima County
The Honorable Howard J. Fell, Judge Pro Tempore
No. CR20131500-001
AFFIRMED IN PART
Opinion of the Court of Appeals, Division Two
238 Ariz. 229, 359 P.3d 1 (App. 2015)
VACATED AND REMANDED
COUNSEL:
Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals
Section, Jonathan Bass (argued), Assistant Attorney General, Tucson,
Attorneys for State of Arizona
Steven R. Sonenberg, Pima County Public Defender, David J. Euchner
(argued), Assistant Public Defender, Tucson, Attorneys for Ronald James
Sisco II
Amy P. Knight (argued), Kuykendall & Associates, Tucson; and Kathleen
E. Brody, Jana L. Sutton, Osborn Maledon, P.A., Phoenix, Attorneys for
Amicus Curiae Arizona Attorneys for Criminal Justice
CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER and
BOLICK joined.
STATE V. SISCO
Opinion of the Court
CHIEF JUSTICE BALES, opinion of the Court:
¶1 Here we consider whether the odor of marijuana suffices to
establish probable cause for issuance of a search warrant, given the
adoption of the Arizona Medical Marijuana Act (“AMMA”), A.R.S. §§ 36-
2801 through 2819. We hold that it does, unless other facts would cause a
reasonable person to believe the marijuana use or possession is authorized
by AMMA, thereby dispelling the probable cause that otherwise would
exist.
I.
¶2 In March 2013, Tucson police officers responded to a tip that
“a strong odor of fresh marijuana” was emanating from a storage
warehouse at 18 West 35th Street. This address is for Unit 18 in a complex
of four similar buildings. When the officers approached the complex in
their patrol car, they could smell an “overpowering odor of fresh
marijuana.” After they walked on the sidewalk around the complex’s
perimeter, the officers believed the odor was emanating from Unit 18.
¶3 Based on the odor of marijuana, the officers sought a
telephonic warrant to search Unit 18. The magistrate issued the warrant,
but when the officers searched this unit, they found it vacant. The police
then applied for an amended warrant to search Unit 20, which was
separated from Unit 18 by a wall and locked gate. The officers avowed that
after entering Unit 18 they could better identify the source of the odor. The
magistrate issued an amended warrant. When the officers entered Unit 20,
they found it was being used as a residence and a marijuana growing
operation. In the ensuing search, officers seized marijuana growing
equipment, marijuana paraphernalia, and hundreds of marijuana plants.
¶4 As a result of the search, Ronald James Sisco II was identified
as an occupant of Unit 20. He was charged with child abuse, possession of
drug paraphernalia, possession of marijuana for sale, and production of
marijuana. Sisco moved to suppress evidence found in the search, arguing
among other things that the odor of marijuana no longer suffices to
establish probable cause in light of AMMA. After an evidentiary hearing
the trial court denied the motion, finding that AMMA does not impact the
probable cause determination. Sisco was convicted of all charges and the
court imposed concurrent prison terms, the longest of which was three and
one-half years.
2
STATE V. SISCO
Opinion of the Court
¶5 The court of appeals, in a split decision, reversed the trial
court’s ruling on Sisco’s suppression motion and vacated his convictions
and sentences. State v. Sisco, 238 Ariz. 229, 246 ¶ 57, 359 P.3d 1, 18 (App.
2015). The majority held that after AMMA, the scent of marijuana, in itself,
is insufficient evidence of criminal activity to supply probable cause, and
there were no “additional, commonly evident facts or contextual
information suggesting a marijuana-related offense.” Id. at 232 ¶ 2, 359 P.3d
at 4. The dissent argued that the odor of marijuana still suffices to establish
probable cause after AMMA and, even if it does not, the facts suggested the
possession here was not in compliance with AMMA and thus supported
the warrant. Id. at 249 ¶ 68, 359 P.3d at 21 (Espinosa, J., dissenting).
¶6 We granted review because whether AMMA affects the
determination of probable cause based on the odor of marijuana is a
recurring issue of statewide importance. We have jurisdiction pursuant to
Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24.
II.
¶7 Prohibiting “unreasonable searches and seizures,” the Fourth
Amendment to the United States Constitution provides that “no warrants
shall issue, but upon probable cause.” See also Ariz. Const. art. 2, § 8; A.R.S.
§ 13-3913. Whether a magistrate’s probable cause determination comports
with the Fourth Amendment is a mixed question of law and fact that we
review de novo. State v. Moore, 222 Ariz. 1, 7 ¶ 17, 213 P.3d 150, 156 (2009).
¶8 Probable cause exists when the facts known to a police officer
“would warrant a person of reasonable caution in the belief that contraband
or evidence of a crime is present.” Florida v. Harris, 133 S. Ct. 1050, 1055
(2013) (internal quotation marks and citations omitted). The facts need not
show it is more likely than not that contraband or evidence of a crime will
be found. “Finely tuned standards such as proof beyond a reasonable
doubt or by a preponderance of the evidence . . . have no place in the
[probable-cause] decision.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 235
(1983)). Instead, all that is “required is the kind of ‘fair probability’ on
which ‘reasonable and prudent [people,] not legal technicians, act.’” Id.
(quoting Gates, 462 U.S. at 238). This “practical and common-sense”
standard depends on the totality of the circumstances. Id.
3
STATE V. SISCO
Opinion of the Court
A.
¶9 An officer can rely on his or her senses, including the sense of
smell, to establish probable cause if doing so would lead a reasonable
person to believe that contraband or evidence of a crime is present. E.g.,
State v. Decker, 119 Ariz. 195, 197, 580 P.2d 333, 335 (1978). Accordingly,
Arizona decisions predating AMMA held that an officer detecting the odor
of marijuana was itself sufficient to establish probable cause, as the
possession or use of marijuana was per se illegal. See id. (holding that odor
of burning marijuana emanating from hotel room afforded probable cause
to believe crime had been or was being committed); see also State v. Harrison,
111 Ariz. 508, 509, 533 P.2d 1143, 1144 (1975) (holding that odor of
marijuana afforded probable cause to believe automobile contained
contraband); State v. Mahoney, 106 Ariz. 297, 301–02, 475 P.2d 479, 483–84
(1970) (holding that probable cause was established by odor of marijuana
emanating from suitcase).
¶10 The parties have used the phrase “plain smell doctrine” to
refer to the proposition that marijuana’s odor can alone provide probable
cause. This terminology, however, is imprecise, partly reflecting that court
opinions have used the phrase “plain smell” in different contexts. The
phrase has sometimes been used to describe circumstances when no
“search” has occurred because detecting an odor does not invade an
expectation of privacy. See, e.g., State v. Morrow, 128 Ariz. 309, 312, 625 P.2d
898, 901 (1981) (holding that dog’s sniffing a bag at an airport is not a search
and stating that “plain smell” doctrine is akin to “plain view” doctrine).
Whether detecting an odor constitutes a search is, of course, a different issue
than whether an odor affords probable cause.
¶11 Equating the “plain smell” or “plain view” doctrines with
relying on one’s senses to establish probable cause is also potentially
confusing because the United States Supreme Court has used the plain view
doctrine to identify circumstances when a police officer may lawfully seize
items without a warrant. See Horton v. California, 496 U.S. 128, 133–34 (1990).
The doctrine allows police to seize an object “if they are lawfully in a
position to view it, if its incriminating character is immediately apparent,
and if they have a lawful right of access to it.” Minnesota v. Dickerson, 508
U.S. 366, 374–75 (1993); see also Horton, 496 U.S. at 133–34; Arizona v. Hicks,
480 U.S. 321, 326–27 (1987); Mazen v. Seidel, 189 Ariz. 195, 197, 940 P.2d 923,
925 (1997).
4
STATE V. SISCO
Opinion of the Court
¶12 By requiring that an object’s “incriminating character” be
“immediately apparent” for purposes of the plain view doctrine, the United
States Supreme Court has not adopted a standard more stringent than
probable cause. Although the phrase “immediately apparent” might
suggest “near certainty,” Texas v. Brown, 460 U.S. 730, 741 (1983), the Court
has rejected such “an unduly high degree of certainty as to the
incriminatory character of evidence” for application of the plain view
doctrine, id., clarifying that police need only have probable cause to
associate the object with criminal activity. See Horton, 496 U.S. at 142 (noting
that police had probable cause to believe objects seized were incriminating
evidence); Hicks, 480 U.S. at 326–27 (recognizing plain view doctrine can
apply when officer has probable cause to believe object is contraband);
Brown, 460 U.S. at 741–42; see also State v. Apelt, 176 Ariz. 349, 363, 861 P.2d
634, 648 (1993) (noting that plain view doctrine justified seizure if apparent
evidentiary value of items established probable cause).
¶13 This case does not concern whether a search occurred when
police detected the odor of marijuana or whether the plain view (or “plain
smell”) doctrine authorized a warrantless seizure. Instead, we must decide
whether, in light of AMMA, the officers’ detection of an “overpowering
odor” of marijuana afforded probable cause; that is, whether a reasonable
person would conclude there was a “fair probability” the storage unit
contained contraband or evidence of a crime.
B.
¶14 AMMA has made the use of marijuana lawful for medicinal
purposes under the terms and conditions set forth in that Act. Reed-Kaliher
v. Hoggatt, 237 Ariz. 119, 122–23 ¶¶ 7, 17, 347 P.3d 136, 139–40 (2015); State
ex rel. Montgomery v. Harris, 234 Ariz. 343, 345 ¶ 16, 322 P.3d 160, 162 (2014).
Thus, although marijuana possession or use remains illegal under federal
law, the odor of marijuana no longer necessarily reflects criminal activity
under Arizona law.
¶15 Probable cause, however, does not turn on the “innocence” or
“guilt” of particular conduct, but instead on the “degree of suspicion that
attaches to particular types of non-criminal acts.” Gates, 462 U.S. at 243 n.13.
“[P]robable cause requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity. . . . [T]herefore,
5
STATE V. SISCO
Opinion of the Court
innocent behavior frequently will provide the basis for a showing of
probable cause.” Id.
¶16 Notwithstanding AMMA, the odor of marijuana in most
circumstances will warrant a reasonable person believing there is a fair
probability that contraband or evidence of a crime is present. This
conclusion reflects that AMMA did not decriminalize the possession or use
of marijuana generally. A.R.S. § 13-3405(A) (criminalizing marijuana
possession and use in Arizona); A.R.S. § 36-2802(E) (limiting immunity
from civil, criminal, or other penalties for using marijuana to instances
where “authorized under [AMMA]”). If AMMA had done so, or if Arizona
eventually decriminalizes marijuana, our analysis and conclusion in this
context might well be different. Cf. Commonwealth v. Cruz, 945 N.E.2d 899,
908–09 (Mass. 2011) (no reasonable suspicion, let alone probable cause, of
criminal activity based on “faint odor” of marijuana because possession of
up to one ounce of marijuana is not criminal but rather a civil offense); State
v. Crocker, 97 P.3d 93, 96–98 (Alaska Ct. App. 2004) (no probable cause to
believe “strong odor” of marijuana coming from inside residence, without
more, indicated unlawful activity where state constitution authorizes all
citizens to grow marijuana for personal use, up to four ounces).
¶17 Instead, AMMA makes marijuana legal in only limited
circumstances. Possession of any amount of marijuana by persons other
than a registered qualifying patient, designated caregiver, or medical
marijuana dispensary agent is still unlawful, and even those subject to
AMMA must strictly comply with its provisions to trigger its protections
and immunities. See A.R.S. §§ 13-3405(A)(1), 36-2802(E). Thus, when an
officer detects marijuana by sight or smell, the “degree of suspicion that
attaches” remains high, notwithstanding AMMA. See Gates, 462 U.S. at 243
n.13. A reasonable officer is therefore justified in concluding that such sight
or smell is indicative of criminal activity, and thus probable cause exists.
See id.
¶18 This does not mean, however, that AMMA has no effect on an
officer’s probable cause determination. Because probable cause is
determined by the totality of the circumstances, Gates, 462 U.S. at 238, and
marijuana possession or use is lawful when pursuant to AMMA, Reed-
Kaliher, 237 Ariz. at 122–23 ¶¶ 7, 17, 347 P.3d 136, 139–40, a reasonable
officer cannot ignore indicia of AMMA-compliant marijuana possession or
use that could dispel probable cause. See, e.g., State v. Buccini, 167 Ariz. 550,
6
STATE V. SISCO
Opinion of the Court
556–58, 810 P.2d 178, 184–86 (1991) (holding probable cause absent when
officer ignores information material to distinction between criminal and
non-criminal activity). Moreover, we have consistently held that police
must include exculpatory facts that are known to them and material to the
probable cause determination in any affidavit in support of a search
warrant. Id. at 554–55, 557–58, 810 P.2d at 182–83, 185–86 (noting that
“omissions are material where there is a substantial possibility that the
omitted facts would have altered a reasonable magistrate’s probable cause
determination”) (internal quotation marks and citations omitted)); see also
State v. Carter, 145 Ariz. 101, 109–10, 700 P.2d 488, 496–97 (1985). We
reaffirm those principles here, giving effect to the interplay between
Arizona’s general proscription of marijuana and AMMA.
¶19 For instance, AMMA requires qualifying patients to register
with the Arizona Department of Health Services (“DHS”) and apply for a
registry identification card in order to lawfully possess and use medical
marijuana. A.R.S. § 36-2811(B) (limiting immunity from arrest, prosecution,
or penalty for marijuana offenses to the medical use of marijuana for a
“registered qualifying patient[]” (emphasis added)); A.R.S. § 36-2801(9)
(defining “medical use” of marijuana as “possession . . . [or] use” of
marijuana for treatment of a “registered qualifying patient’s debilitating
medical condition”) (emphasis added). If the qualifying patient satisfies all
statutory and regulatory requirements to possess and use medical
marijuana, DHS issues the patient a registry identification card. A.R.S.
§§ 36-2804.05(A),-2804.04(A), -2804.03(A).
¶20 Presentation of a valid AMMA registry identification card,
therefore, could indicate that marijuana is being lawfully possessed or used.
Such information could effectively dispel the probable cause resulting from
the officer’s detection of marijuana by sight or smell, unless of course other
facts suggest the use or possession is not pursuant to AMMA. See A.R.S.
§ 36-2811(H) (providing that possession of registration card does not
provide probable cause but also does not preclude existence of probable
cause on other grounds). The ultimate inquiry, as in other probable cause
determinations, turns on a “practical, common-sense” consideration of the
totality of the circumstances. Harris, 133 S. Ct. at 1055.
¶21 Sisco argues that AMMA has elevated the standard of
probable cause with respect to marijuana, either in general or at least with
respect to registered qualifying patients. Under that view, no person in
7
STATE V. SISCO
Opinion of the Court
Arizona would be subject to search or seizure by state or local police officers
based only on an officer seeing or smelling marijuana. Instead, officers
would need something more to conclude criminal activity is occurring or
has occurred – what might be termed an “odor (or sight) plus” standard.
¶22 We disagree. AMMA does not broadly alter the legal status
of marijuana in Arizona but instead specifies particular rights, immunities,
and obligations for qualifying patients and others, such as designated
caregivers. See A.R.S. §§ 36-2801(13) (defining “qualifying patient” as those
diagnosed by a physician as having a debilitating medical condition); 36-
2811(B) (limiting AMMA’s protections only to those qualifying patients
registered with DHS and complying with AMMA’s limitations); 36-2802(E)
(reiterating marijuana possession and use remains unlawful in Arizona
“except as authorized under [AMMA]”).
¶23 Nor does AMMA’s broad immunity provision, § 36-2811(B),
or its subsection relating to probable cause, § 36-2811(H), suggest that
AMMA patients have greater protections from searches or increased
expectations of privacy than those enjoyed by the general public.
Subsection (B) affords immunities for specified conduct under AMMA;
subsection (H) provides that possession of a registry card does not itself
constitute probable cause, but also does not preclude the existence of
probable cause on other grounds. AMMA expressly does not prevent the
imposition of criminal or other penalties for using marijuana except as
permitted by the statute. § 36-2802(E). Taken together, these provisions
suggest that registered qualifying patients, and others covered by the Act,
are not generally afforded greater protections from searches than is the
general public, but instead enjoy such protections as AMMA specifically
provides. E.g., §§ 36-2811(E), (F) (affording certain protections against
searches of registered nonprofit medical marijuana dispensaries and their
agents).
¶24 Sisco also argues that allowing searches based merely on the
odor of marijuana would deny registered patients their right to privacy
protected by the Fourth Amendment and Article 2, Section 8 of the Arizona
Constitution. Denying this right, Sisco contends, would in turn violate
AMMA’s provision stating that a registered qualifying patient is not
“subject to . . . denial of any right or privilege” for the patient’s medical use
of marijuana. § 36-2811(B). But the right to privacy protected by the Fourth
Amendment and Article 2, Section 8 is not a guarantee against all
8
STATE V. SISCO
Opinion of the Court
government searches and seizures, only unreasonable ones. U.S. Const.
amend. IV; United States v. Sharpe, 470 U.S. 675, 682 (1985); State v. Ault, 150
Ariz. 459, 463, 724 P.2d 545, 549 (1986). A search properly executed
pursuant to a valid warrant supported by probable cause generally
comports with that guarantee. See Gates, 462 U.S. at 262–63 (White, J.,
concurring); see also Ault, 150 Ariz. at 463, 724 P.2d at 549.
¶25 Given Arizona’s general prohibition against marijuana
possession and use, it is reasonable for officers to conclude that criminal
activity is occurring when they see or smell marijuana, thereby satisfying
probable cause. In this respect, registered qualifying patients are not
denied Fourth Amendment rights or privileges based on their medical
marijuana use; they are simply treated like the broader public. Moreover,
as we have explained, probable cause can be dispelled by indicia of AMMA-
compliant marijuana possession and use. Under the standard we adopt,
registered qualifying patients are not denied Fourth Amendment rights or
privileges, nor are they “subject to arrest, prosecution or penalty in any
manner,” for their medical use of marijuana. § 36-2811(B)(1).
¶26 We reject the “odor (or sight) plus” standard adopted by the
court of appeals and urged by Sisco. Instead, the general proscription of
marijuana in Arizona and AMMA’s limited exceptions thereto support
finding probable cause based on the smell or sight of marijuana alone
unless, under the totality of the circumstances, other facts would suggest to
a reasonable person that the marijuana use or possession complies with
AMMA. This “odor (or sight) unless” standard comports with the Fourth
Amendment standard prescribed in Gates and gives effect to AMMA’s
exceptions by precluding officers or magistrates from ignoring indicia of
AMMA-compliant marijuana use or possession when assessing probable
cause.
C.
¶27 Applying the “odor unless” standard, we hold that probable
cause existed to support issuance of the search warrant in this case. The
odor of marijuana suggested illegality, even if after AMMA it did not
conclusively establish a crime was occurring. Nothing in the record
suggests that the police, in seeking a warrant, disregarded any indicia that
marijuana was being used or possessed in compliance with AMMA. Sisco
9
STATE V. SISCO
Opinion of the Court
is not a registered qualifying patient, nor is he otherwise authorized by
AMMA to cultivate or possess marijuana.
¶28 Here the police detected an “overpowering odor” of
marijuana emanating from a cinderblock warehouse complex. The mere
fact that AMMA authorizes use, possession, or cultivation of marijuana in
certain circumstances does not dispel the probable cause established by the
odor. Under AMMA, registered qualifying patients are generally
authorized to possess up to two and one-half ounces of useable marijuana,
while those patients that live more than twenty-five miles from the nearest
dispensary may be authorized to cultivate up to twelve marijuana plants.
§ 36-2801(1)(a); § 36-2804.02(A)(3)(f). A designated caregiver may also
cultivate up to sixty plants, but only if the caregiver cares for five patients,
all five patients are authorized to cultivate marijuana, and each patient
designates the caregiver to cultivate on their behalf. §§ 36-2801(1)(b)(ii), (5);
§ 36-2804.02(A)(3)(f). AMMA also authorizes dispensary cultivation sites
in certain locations. See A.R.S. § 36-2804(B)(1)(b)(ii). Nothing suggests the
police here had reason to believe they had detected marijuana authorized
by any of these provisions.
¶29 In sum, under the totality of the circumstances presented
here, the odor of marijuana established probable cause. We have no
occasion to assess how, in other circumstances, probable cause might be
dispelled by such facts as a person’s presentation of a valid registration
card.
III.
¶30 We affirm the trial court’s ruling denying the motion to
suppress, vacate the court of appeals’ opinion, and remand to the court of
appeals so it may consider Sisco’s argument that the evidence was
insufficient to support his conviction for child abuse and any other issues
he properly preserved in his appeal from his convictions and sentences.
10 | 01-03-2023 | 07-11-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427699/ | The appellee, an interested taxpayer, and a rate payer to the municipally-owned light and power plant of the city of Richmond, brought this action seeking a declaratory judgment to the effect that the depreciation reserve fund of the municipally-owned plant is a public fund which is required to be deposited under the Public Depository Laws of the state, and that there is no power, right, or authority in the public officers to invest such fund in securities, bonds, loans, or other like investments, but that it may be used only as a special utility fund for the purpose of providing funds for the purchase, maintenance, extension, replacement, and repair of the municipal plant. There was an answer in general denial, and judgment as prayed.
By appropriate assignment of error, the appellants question the correctness of the judgment.
The appellants concede that if municipally-owned and operated utilities do not have the right to invest *Page 510
their depreciation reserve fund in securities, bonds, or 1. loans, or otherwise than for maintenance, extensions, and replacements, then, and in that event, such funds are public funds and subject to the provision of the Public Depository Law. See Storen, Treasurer, v. Sexton, Treasurer,et al. (1936), 209 Ind. 589, 200 N.E. 251, 104 A.L.R. 1359.
Section 1 of chapter 76 of the Public Utilities Law of 1913 (Acts 1913, p. 167, § 54-105 et seq., Burns' 1933, § 13905 et seq., Baldwin's 1934) defines the term "public utility," 2, 3. as used in the act, as including every city or town, "that now or hereafter may own, operate, manage or control any street railway or interurban railway or any plant or equipment within the state for the conveyance of telegraph or telephone messages, or for the production, transmission, delivery or furnishing of heat, light, water or power, or for the furnishing of elevator or warehouse service either directly or indirectly to or for the public." Section 22 of the act of 1913,supra, provides that every "public utility" shall maintain a reserve for depreciation. Section 25 of the act, as amended by section 2 of chapter 64 of the Acts of 1925 (Acts 1925, p. 210), provides that the depreciation reserve shall be carried in a separate fund, and that: "Any balance in the fund, not applied to depreciation expenses, may be invested by the public utility. . . ." It is upon this last provision that the appellants rely for authority to invest. Chapter 190 of the Acts of 1933 (Acts 1933, p. 928) amends section 1 of the act of 1913 by changing the definition of the term "public utility" so as to exclude municipally-owned plants. There are other sections in the act of 1933 providing for the regulation and operation of municipally-owned utilities, and, by section 16, it is provided that: "Such governing body *Page 511
shall set aside sufficient of the remainder of the earnings of such utility into a separate and special fund to be identified as the special utility fund, to be used and applied in the maintenance, extension, replacement, in whole or in part, repair and operation of such utility." This provision seems to amply cover the purposes of a reserve for depreciation. It cannot be doubted that the Legislature intended by the act of 1933 to take municipally-owned plants out of the general public utilities statute.
The appellants contend that, since, under Article 4, § 21, of the Constitution of Indiana, no act or section thereof may be revised or amended unless the act or section shall be 4, 5. set forth and published at full length, the act of 1933 cannot have the effect of amending section 25 of the act of 1913 as amended by section 2 of the act of 1925, and, since this is the section which authorizes the investment of the depreciation fund, it is not amended, but is still in effect.
The act of 1933 does not expressly amend section 25 of the act of 1913 (as amended). That section provides that every "public utility" may invest its depreciation reserve fund. There is no change in that section. Every "public utility" is still controlled by it, and it is in nowise amended by the act of 1933. But to determine whether an agency serving the public is a "public utility," recourse must be had to section 1 of the act, in which the terms used throughout the act are defined. By the amendment to section 1, the term "public utility" was redefined so as to exclude municipally-owned plants. The section is unchanged and still applies to every "public utility," but a municipally-owned plant is no longer a "public utility" within the meaning of the act. The operation and effect of a statutory provision may be changed without specific amendment. *Page 512
There are many statutes which provide that proceedings thereunder shall be governed by the rules of civil procedure, and such statutes are affected in their operation by amendments to the procedure statutes, but it is not necessary that each of the affected provisions shall be set forth and published at full length. There is no amendment of the affected statutes. There is merely a change in the class upon which they operate. See State
v. Gerhardt (1896), 145 Ind. 439, 44 N.E. 469, 33 L.R.A. 313.
The trial court correctly concluded that section 25 of the act of 1913 (as amended) no longer authorizes the depreciation reserve funds of municipally-owned utilities to be invested 6. in securities. No other authority for such investment is suggested, and it was correctly concluded that they must be deposited as other public funds, subject to the uses authorized by section 16 of the act of 1933.
Judgment affirmed.
Note — Reported in 25 N.E.2d 442. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427668/ | Appellee filed his claim with the Industrial Board asking an award against appellant for a permanent partial impairment to the right hand. On October 13, 1942, the date set for hearing, attorneys for the parties appeared with a stipulation as to all essential facts. It fixed the amount of impairment at 20% of the hand as a whole. The hearing member, after reading the stipulation, said, "Gentlemen, according to the way I see this case now, I can not write an award following that stipulation. I do not think it would be fair to the plaintiff." Appellant and appellee then each called in a doctor who testified as to the amount of impairment and the appellee testified as to the nature of his injury. The hearing member then took the cause under advisement.
On December 2, 1942, the hearing member made the following finding and order:
"BE IT REMEMBERED, that pursuant to notice fixing the time and place therefor, this case was called for trial before Warren W. Martin, Chairman of the Industrial Board of the State of Indiana, at 11:00 o'clock a.m., October 13, 1942, at Princeton, Gibson County, Indiana, on plaintiff's Form 14 application, filed with the Industrial Board on August 31, 1942, asking for review of said award on account of a change in condition on *Page 345
the ground that he has sustained a permanent partial impairment on account of said injury.
"The plaintiff was present in person and was represented by his attorney, Claude A. Smith. The defendant was represented by its attorneys, Hays
Hays by John S. Taylor.
"The Hearing Member, after hearing the stipulation of the parties, is not willing to follow the stipulation as to a 20% permanent partial impairment to the hand in question, and is of the opinion that notwithstanding the fact that he had had previous accidents, he still had an industrial hand; that the accident in question has left him with a permanent partial impairment that has destroyed his hand for industrial purposes; that the 20% permanent partial impairment to the hand below the elbow in the opinion of the Hearing Member is not sufficient in view of plaintiff's not being able to use his hand.
"In view of not being able to follow the stipulation of the parties, the Hearing Member now continues this case to be reset for further hearing, giving both sides an opportunity to present all the evidence they care to present and make whatever record they care to make in said case."
The case was reset for December 23, 1942, and considerable testimony bearing upon the amount of impairment was introduced by both sides. The hearing member then found that appellee had an 85% impairment of the right hand below the elbow, but that 35% of it had been suffered when he was a child. The award which followed was based upon a fifty per cent impairment. A review by the full board resulted in the same finding and award.
Appellant contends (1) that the board was bound by the stipulation of the parties and could not find an impairment other than 20%, and (2) that the board was bound to find that the impairment suffered as a child amounted to 47 1/2% instead of 35%. *Page 346
When, upon a hearing in a compensation case, a stipulation of facts is entered into within the authority of counsel, it is, unless and until it is set aside or withdrawn, binding and 1. conclusive between the parties and upon the Industrial Board. Schreiber v. Rickert (1943), ante, p. 55,50 N.E.2d 879; Barker v. Reynolds (1932), 94 Ind. App. 29,179 N.E. 396.
We think it is clear that when the hearing member stated that he could not write an award following the stipulation and made a finding that he was not willing to follow the stipulation 2. as to a 20% impairment to the hand, he did in effect set aside the stipulation on that point. Did he have authority to do so?
The Workmen's Compensation Act, § 40-1508, Burns' 1933, § 16433, Baldwin's 1934, provides that an agreement in regard to compensation shall be enforceable as a court decree only if 3. approved by the Industrial Board. An award cannot therefore be demanded from the board upon an agreement which it does not approve.
A stipulation as to a fact is an agreement between the parties as to that fact. If the parties cannot bind the board by a full agreement in regard to compensation, it necessarily follows that they cannot bind the board by an agreement as to part of the facts which must be established for an award. Otherwise the purpose of the statute could be avoided by agreeing to all the facts except one, and selecting as the one a fact about which there could be no disagreement.
The authority to reject the whole of an agreement must logically include the authority to reject a part. If a part is rejected the parties have the right to withdraw the balance or they may permit the balance to *Page 347
stand and submit evidence as to the part rejected. This does not affect the rule that a stipulation is binding unless withdrawn or set aside. Of course the board cannot permit a stipulation to stand and then find contrary to it. By permitting it to stand the board in effect approves it. If it is to be rejected the parties are entitled to know it and to have an opportunity to marshall their evidence on the point.
In this case the parties chose to permit the unrejected part of their stipulation to stand and to submit evidence on the rejected part. The board did not err in basing its finding on the 4. evidence submitted instead of on the stipulation.
The language used in the case of Mid-City Iron, etc., Co. v.Turner (1929), 89 Ind. App. 38, 165 N.E. 760, and Kunkler v.Mauck (1940), 108 Ind. App. 98, 27 N.E.2d 97, concerning the binding effect of a stipulation, must be considered against the background of the facts and questions involved, and should not be construed to mean that a stipulation is binding even though withdrawn or set aside by proper action of counsel or the board.
When five years old appellee lost by severance a part of the distal phalanx of the index finger, all of the middle finger, and all of the ring finger. The Workmen's Compensation Act, § 5. 40-1303, Burns' 1933, § 16407, Baldwin's 1934, provides that compensation shall be paid for the loss by amputation of one-half of the index finger 20 weeks, the entire second finger 35 weeks, the entire ring finger 30 weeks, and of the hand below the elbow joint 200 weeks.
Appellant reasons that since the act puts a value of 85 weeks on the losses sustained by appellee as a child, and 200 weeks on the loss of the entire hand, and since 85 is 42 1/2% of 200, the appellant suffered 42 1/2% impairment *Page 348
to the hand in his childhood accident. It suggests that to this should be added 5% for generalized impairment, bringing the total to 47 1/2% instead of the 35% found by the board. The board found that after the accident involved in this case appellee's total impairment was 85%. Deducting 47 1/2% from 85% would make 37 1/2% as the amount chargeable to appellant instead of the 50% found by the board.
Assuming that the board is bound to use the suggested formula, consideration must still be given to the fact that after a 47 1/2% loss of the hand as a child, a person could, by proper training, improve the use of the remaining part so as to make the hand more than 52 1/2% useful and thus correspondingly reduce the value of the loss. This does frequently occur. In the instant case there is evidence from which the board could conclude that appellee did reduce his loss by as much as 12 1/2% of the usefulness of the hand as a whole. We cannot say that the finding of the board as to the percentage of loss is not sustained by sufficient evidence.
Award affirmed with 5% increase.
NOTE. — Reported in 51 N.E.2d 382. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247122/ | BECKY R. THORSON, United States Magistrate Judge
On August 3, 2016, Plaintiff Cheryl A. Evans sought judicial review of the denial of her applications for social security disability benefits. (Doc. No. 1.) On August 31, 2017, the Court granted Plaintiff's Motion for Summary Judgment, denied Defendant's Motion for Summary Judgment, and ordered this case remanded for calculation and an award of benefits pursuant to 42 U.S.C. § 405(g) (sentence four). (Doc. No. 19, 8/31/17 Memorandum Opinion and Order.) Now before the Court is Plaintiff's motion for attorney fees under the Equal Access to Justice Act. (Doc. No. 21, Appl. for Award of Att'ys Fees ("Pl.'s Appl.").) Plaintiff requests compensation, as reduced in her Reply Brief, for 95 hours at an hourly (average) rate of $195.00. (Doc. No. 25, Pl.'s Reply Br. in Resp. to Def.'s Obj. to Pl.'s EAJA Pet. ("Pl. Reply") 12.) For the reasons set forth below, Plaintiff's motion is granted.
I. Analysis
A. Equal Access to Justice Act Requirements
Under the EAJA, a prevailing party in an action for judicial review of agency action is entitled to an award of fees and expenses, unless the court finds that the position of the United States was substantially justified. 28 U.S.C. § 2412(d)(1)(A). Fees awarded pursuant to the EAJA must be reasonable. Dini v. Astrue , No. 08-5852 (DSD/JJG), 2010 WL 153681, at *3 (D. Minn. Jan. 11, 2010) ("[F]ees and other expenses includes ...reasonable attorney fees ...based on prevailing market rates for the kind and quality of the services furnished ...") (quoting 28 U.S.C. § 2412(d)(2)(A) ) (internal quotations omitted).
To receive a fee award under the EAJA, the applicant must "submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection." 28 U.S.C. § 2412(d)(1)(B). A party who obtains a sentence-four remand, such as Plaintiff, qualifies as a "prevailing party" under the EAJA. See McGrath v. Astrue , Civil No. 10-4192 (ADM/SER), 2012 WL 4898276, at *2 (D. Minn. Oct. 1, 2012) (citing Shalala v. Schaefer , 509 U.S. 292, 300-01, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993) ). An applicant is "eligible to receive" an EAJA award if his or her net worth did not exceed $2,000,000 at the time the civil action was filed. See S.E.C. v. Zahareas , 374 F.3d 624, 630 (8th Cir. 2004). The application must also state "the amount sought, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed" and "allege that the position of the *1212United States was not substantially justified." 28 U.S.C. § 2412(d)(1)(B).
Plaintiff's petition satisfies the facial requirements set forth in § 2412(d)(1)(B). In response, Defendant does not object to Plaintiff's attorneys receiving EAJA fees, but to the amount requested. (Doc. No. 24, Def.'s Opp'n to Pl.'s Counsel's Mot. for Att'y Fees ("Def.'s Opp.") 2-7.) Thus, Defendant concedes that its position in this litigation was not substantially justified. See, e.g., Theis v. Astrue , 828 F.Supp.2d 1006, 1008 (E.D. Ark. 2011) (noting that "the Commissioner concedes that the plaintiff is entitled to an award of attorney's fees pursuant to the Act," and then foregoing a discussion of the standard for substantial justification). Defendant also does not object to Plaintiff's proposed hourly rate ranging between $193.75 and $197.50. (See Def.'s Opp.) The Court agrees that this amount was reasonably calculated based on the Bureau of Labor Statistics Consumer Price Index ("CPI"). (See Pl.'s Appl., Ex.C); Hickey v. Secretary of HHS , 923 F.2d 585, 586 (8th Cir. 1991) (stating that the CPI "constitutes 'proper proof' of the increased cost of living since the EAJA's enactment and justifies" an increased attorney's fees award) (quoting Johnson v. Sullivan , 919 F.2d 503, 505 (8th Cir. 1990) ).
B. Plaintiff's Counsel is Entitled to an EAJA Award
Plaintiff requests an award for 95 hours of work performed by her attorneys, Asha Sharma, Paul McGrath, and Caryn Ye. (See generally Pl.'s Reply; see also Doc. No. 21, Pl.'s Appl., Ex. A.) Defendant argues that the total time for reimbursement should be reduced to no more than thirty-five hours because "[the time allowed for certain tasks] were either excessive or included time spent that is not compensable under the EAJA." (Def.'s Opp. 3.) Defendant claims that "nothing about the facts and issues in this matter support a deviation from the average EAJA award, which is 20-40 hours" (id. at 3); the 1.5 hours of work performed prior to the filing of the Complaint is non-compensable under the EAJA (id. at 4); the 1.6 hours to edit, draft, and file the two-page Complaint, 71.9 hours to review the transcript, consult with each other, perform legal research, and draft, edit, and revise Plaintiff's brief, and 13.5 hours to prepare and file her reply brief were unreasonable amounts of time to complete those tasks (especially when the transcript consisted of 364 pages total) (id. at 5); and the issues addressed in Plaintiff's brief were not novel or complex, and many were the same arguments submitted previously in a brief to the Social Security Administration (id. at 5-6). Plaintiff disputes that these hours expended were unreasonable, especially in light of her counsel's level of experience and the complexity of this case. Even so, in Plaintiff's reply brief, she voluntarily reduced her request with respect to time spent on her reply brief and voluntarily reduced her request with respect to other time spent on the case, for a reduced request totaling 95 hours of work.
The Court has reviewed the itemized time records for the work performed in this case and finds that the hours billed, and the legal work performed, are not excessive or unreasonable. The Court agrees with Plaintiff that this case was a particularly complex social security appeal. And the number of pages long an administrative record has is not necessarily indicative of the complexity of the issues raised and presented. Further, awards for over 75 hours' worth of work are not unheard of. See Vaughn v. Heckler , 860 F.2d 295, 296 (8th Cir. 1988) (awarding 77 hours); see also Gaul v. Colvin , No. 13-163 (JNE/FLN), 2014 WL 4096972, at *2 (D. Minn. Aug. 19, 2014) (awarding 75.2 hours);
*1213Vossen v. Astrue , No. 07-1567, Doc. No. 58 at *2 (D. Minn. Mar. 15, 2011) (awarding 88.75 hours), adopted by 2011 WL 1322099 (D. Minn. Apr. 7, 2011) ; Aston v. Sec'y of Health and Human Servs. , 808 F.2d 9, 11-12 (2d Cir. 1986) (awarding 200 hours). Contrary to the Commissioner's assertions, the record does not suggest that Plaintiff's counsel spent an unreasonable amount of time managing the case or writing and revising the briefs. "A lawyer should be commended, not criticized, because she seeks to improve her work product by making revisions to her initial draft. This is an essential element of a lawyer's craft." Kromer v. Astrue , No. 08-5181 (PAM/AJB), 2009 WL 3152039, at *3 n.6 (D. Minn. Sept. 24, 2009) (quotations omitted).
Defendant also argues that Plaintiff's counsel should not be reimbursed for any time billed prior to the filing of the Complaint. The Court does not agree with this argument. The amount of time spent reviewing the administrative record and consulting with her client and others (1.5 hours) for the purpose of filing the district court appeal was not excessive. Counsel was entirely justified in spending a small amount of time analyzing the administrative record before filing the complaint and initiating this action. See Jones v. Colvin , Civil No. 2:14-cv-2088-PKH-MEF, 2015 WL 5330885, at *3 (W.D. Ark. Aug. 17, 2015) (rejecting argument that time spent reviewing the administrative record and meeting with her client before filing the complaint should be excluded because "[a]n attorney is expected to be familiar with her case prior to filing a complaint in federal court").
III. Order
Based on the foregoing, and all the files, records, and submissions herein, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for attorney fees under the Equal Access to Justice Act. (Doc. No. 21) is GRANTED ; and
2. Plaintiff's counsel is entitled to an EAJA award of 95 hours at an average rate of $195.00 per hour, for a total award of $18,525.00. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4049041/ | SBL-t? FILE COPY
COA# 08-13-00079-CR OFFENSE: OTHER CRIMINAL
The State of Texas v.
STYLE: Salvador Vasquez, Jr. COUNTY: El Paso
COA DISPOSITION: Affirmed TRIAL COURT: County Court at Law No 7
DATE: 03/18/2015 Publish: No TC CASE #: 20120C07670
IN THE COURT OF CRIMINAL APPEALS
ELECTRONIC RECORD
The State of Texas v. Salvador
STYLE: Vasquez, Jr. CCA#:
SPA S Petition CCA Disposition: $p(pmH
FOR DISCRETIONARY REVIEW IN CCA IS: DATE:
^FO£gJ)j JUDGE:
DATE: OAfat/flf SIGNED: PC:
JUDGE: / ^ UluZ^ PUBLISH: DNP:
MOTION FOR
REHEARING IN CCA IS:
JUDGE: | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4049042/ | THE THIRTEENTH COURT OF APPEALS
13-13-00659-CV
Fatih Ozcelebi M.D.
v.
K. V. Chowdary, M.D., Individually and D/B/A Valley Gastroenterology Clinic, P.A. and
Valley Gastroenterology Clinic, P.A.
On Appeal from the
County Court at Law No. 7 of Hidalgo County, Texas
Trial Cause No. CL-29,133-G
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the judgment of severance of the trial court should be reversed and
remanded. The Court orders the judgment of severance of the trial court REVERSED
and REMANDED to the trial court for further proceedings consistent with its opinion.
Costs of the appeal are adjudged against appellees.
We further order this decision certified below for observance.
October 15, 2015 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427352/ | On the 17th day of December, 1934, Marian Wilson Morgan, with her two daughters, Mary D. Morgan, aged eighteen years, who was driving the car, and another daughter of very tender years were returning from the State of New York to her home in Denver. They were traveling in an Oldsmobile, and while traveling westwardly on Federal Highway No. 50, near the town of Dillsboro, Indiana, the appellant, through his agent, servant and employee was operating a Gulf gasoline truck over said highway in an eastwardly direction. A collision occurred between these vehicles; and as a result thereof, all of the occupants of both vehicles were killed instantly or died within a few hours from the time of the accident, except the small daughter of Mrs. Morgan. There were no eyewitnesses to this collision and terrible tragedy.
Subsequently, the appellee, as executor of the estate of Marian Wilson Morgan, deceased, brought this action to recover damages for the wrongful death of Marian Wilson Morgan, who left surviving her, her husband, Harry L. Morgan, Elizabeth Morgan, a daughter 16 years of age, a daughter, Nancy Morgan, 14 years of age, and her daughter, Alice Morgan, 5 years of age. The complaint was in one paragraph. A motion was directed to this complaint to strike out certain parts thereof, which was overruled; and this ruling of the *Page 616
court is made a separate assignment of error in this appeal. The issues were closed by the filing of a general denial on the behalf of appellant, and the case was tried to a jury. A verdict resulted in favor of the plaintiff in the amount of $7,000. A motion for new trial was filed, which was overruled; and this ruling of the court constitutes the second and remaining assignment of error. The specifications set forth in the motion for new trial are:
1. Error of the court in sustaining a challenge for cause to a prospective juror.
2. The verdict of the jury is not sustained by sufficient evidence.
3. The verdict of the jury is contrary to law.
4. Errors of law occurring at the trial and duly excepted to by the defendant, involving rulings upon the admissibility of evidence, motions to strike out, exceptions to instructions given and refused, and the ruling of the court upon motions, both at the close of plaintiff's evidence and at the close of all of the evidence, for a peremptory instruction directing the jury to return a verdict for the defendant. The specific allegations of negligence charged in the complaint are that the appellant's servant and agent was operating a truck at the time of the collision at a reckless and dangerous rate of speed, to wit, sixty miles per hour, and at the time of said accident was operating said truck upon his left-hand side of said U.S. Highway No. 50; also that he carelessly and negligently ran said truck into the automobile occupied by appellee's decedent and her two daughters.
The complaint is not attacked except for the motion to strike out parts thereof. The complaint alleged that defendant "is the owner and proprietor of a Gulf Bulk oil station," and in connection with said business, *Page 617
"he did, on the 17th day of December, 1934, own, control and operate several oil trucks in connection with his said business." A further allegation of the complaint charged that the servant and agent of the appellant was then and there operating and driving said International truck upon said U.S. Highway No. 50 at a high and dangerous rate of speed, "while in an intoxicated condition," and upon a highway that was much used for traffic; "and that he was in such an intoxicated condition that he was unable to control said truck and to operate the same with due regard for the safety of others using said public highway." The complaint also charged as follows: That said John Buddenberg had been in the employ of his brother, Fred Buddenberg, for several years prior to the 17th day of December, 1934, and "that said defendant, Fred Buddenberg, knew that his brother, John Buddenberg, who was driving his truck for him, as his agent, servant and employee, was in the habit of becoming intoxicated, and was not safe to be permitted to operate motor vehicle upon the public highways of the State of Indiana, but notwithstanding, he did permit his brother to operate said International truck on December 17, 1934. while in an intoxicated condition, and by reason of the carelessness and negligence of the said Fred Buddenberg in employing his brother, John Buddenberg, who he well knew was an habitual drunkard and not a proper person to hire as a driver of trucks on the public highway," and by reason of the carelessness and negligence of the servant and employee of said defendant, as herein alleged, Marian Wilson Morgan was killed in said collision which said collision and the death of Marian Wilson Morgan was not caused by any act of the decedent contributing thereto. *Page 618
A motion to strike out was addressed separately and severally to such parts of the above allegations as are enclosed within the quotation marks. It is argued that all of the allegations 1-5. which appellant seeks to eliminate from the complaint are unnecessary and prejudicial to appellant. The allegations concerning the character of appellant's business and the number of trucks operated by him may not be essential to the cause of action, but no showing is made, nor can we perceive in what manner these charges could have been in anywise prejudicial to appellant. The record discloses that there was some conflict in the evidence as to the color of the truck driven by appellant's agent; some witnesses describing it to be of orange color and others describing it as a red truck. Under these circumstances, it would have been competent to show the number of trucks operated by appellant in order to identify the truck involved in the accident as one belonging to appellant. Vigorous assault is made upon the allegations which charged that the servant of the appellant was operating the truck "while in an intoxicated condition" upon a highway that was much used by traffic, and "that he was in such an intoxicated condition that he was unable to control said truck and to operate the same with due regard for the safety of others using said public highway." These allegations of the complaint charged not only intoxication but also the degree or extent of intoxication affecting the servant at the time he was operating the truck. In our opinion these were proper allegations of fact. It is a violation of law in this State to operate a motor vehicle upon the public highways of this State while under the influence of intoxicating liquor. Section 47-517, Burns' 1933. To operate an automobile in violation of a statute is negligence, and *Page 619
such negligence is actionable if it proximately results in injuries to life or property. It is appellant's contention that intoxication alone does not constitute actionable negligence. With this statement, we are in accord; but when intoxication of the driver coupled with the operation of a motor vehicle is established, wrongful conduct is shown. The appellant admits that without these allegations with respect to intoxication, evidence of intoxication of the driver was competent. This being true, no prejudice resulted to appellant on the court's refusal to strike these allegations from the complaint.
The remaining allegations sought to be stricken from the complaint are those which disclose an attempt upon the part of the pleader to charge appellant with the employment of an 6-8. incompetent person, whom he knew to be incompetent, to operate a motor vehicle upon the highway. It appears from the evidence that the master-servant relationship between the appellant and the driver of the truck was admitted, and no evidence was offered on this theory of the complaint, and no instruction was given authorizing the jury to render a verdict on such theory. The main contention of appellant on his motion to strike out, with respect to this part of the complaint, is that the court read the entire complaint as a part of its instruction defining the issues; that the jury was permitted to take the pleadings to the jury room; and that, therefore, this part of the complaint was highly prejudicial to appellant. The court in its instruction was careful to guard appellant's rights in charging the jury with plaintiff's burden of proof to establish the material allegations of his complaint by a fair preponderance of all of the evidence, and in admonishing the jury that the pleadings which it was permitted *Page 620
to take to the jury room were not evidence or any proof of the facts therein alleged. If the appellant felt that he would be aggrieved and his rights prejudiced by the court's reading to the jury that part of the complaint which was unsupported by any evidence, the proper procedure would require appellant to request the court by appropriate action to withdraw that issue from the consideration of the jury. The court was not in a position to know what the evidence would be before the trial, and we cannot presume that it would have refused to withdraw from the consideration of the jury an issue upon which there was no evidence. In addition to what we have heretofore said in regard to the motion to strike out parts of the complaint, it is to be noted that there is a long line of unbroken decisions in this State holding that the ruling on a motion to strike out is not reversible error. Pfau, Treasurer, v. State, ex rel. Ketcham,Attorney-General (1897), 148 Ind. 539, 47 N.E. 927; Zimmerman
v. Gaumer (1899), 152 Ind. 552, 53 N.E. 829; Petree v.Brotherton (1893), 133 Ind. 692, 32 N.E. 300; Holland v.Holland (1892), 131 Ind. 196, 30 N.E. 1075; City ofCrawfordsville v. Brundage (1877), 57 Ind. 262; Gill,Auditor v. The State, ex rel. The board, etc., of RipleyCounty (1880), 72 Ind. 266; Flagg v. Russell (1928),87 Ind. App. 110, 166 N.E. 672.
The complaint here involved was not a sham pleading, and the ruling of the court on the motion to strike out did not constitute reversible error.
The first reason assigned for a motion for new trial is that the court erred in sustaining a challenge for cause to a prospective juror. Among the questions propounded to the 9. prospective juror are these: *Page 621
"Q. Are you a policyholder or a stockholder of the State Automobile Insurance Association of Indianapolis, Indiana?
"A. I have three or four policies with the State Automobile Insurance Company.
"Q. Are you acquainted with Mr. Curtis Mr. Curtis Moeller of Lawrenceburg, Indiana?
"A. No, sir.
"Q. Are you acquainted with Mr. Huff, of Indianapolis, Indiana?
"A. No, sir, I do my business through Senefeld here at Brookfield.
"Q. You don't know of any reason why you wouldn't be a competent juror?
"A. I don't know.
"Q. You haven't any prejudices the one way or the other in the matter.
"A. No, sir."
Upon these questions and answers, counsel for plaintiff outside of the presence of the jury challenged the prospective juror for cause. It was stipulated by counsel for the parties that the defendant carried insurance on the truck involved in the accident belonging to him with the State Automobile Insurance Association at the time of the accident, and that counsel for the defendant were counsel employed by the State Automobile Association to defend this action. It was also stipulated that the insurance company was not a stock company and that the policy of the defendant was a non-assessable policy as are all policies issued by said association. Upon the questions and answers set forth and the stipulation, the court sustained the challenge for cause, and the appellant contends that this ruling was prejudicial to defendant in the trial of this cause. Except for the direct statement of appellant in his brief, that he was prejudiced by the action of the court in sustaining the challenge for cause, no showing is made of any prejudice that resulted or any reason *Page 622
given as to why any prejudice did result. It does not appear that plaintiff had exhausted his peremptory challenges nor does it appear that the juror filling the vacancy of the discharged juror was in any way disqualified, unfit or less impartial than the excused juror. The court's action was, no doubt, motivated by an effort to secure an impartial jury for both litigants. There is no showing that there was an abuse of discretion upon the part of the trial court; and if the ruling on the challenge was erroneous, it was apparently harmless. Our Supreme Court in the case of Pittsburgh, etc., R. Co. v. Montgomery (1898),152 Ind. 1, 23, 49 N.E. 582, said:
"It is complained under the motion for a new trial that the circuit court erred in excusing on its own motion the juror Overholser, who it is alleged was a competent juror, over appellant's objection. But it is not shown that the jury which was finally impaneled was not a fair and impartial jury. In such a case the matter is very much in the discretion of the trial court, and no error is committed where no injury results from the court's action in excusing the juror."
Separate errors are predicated upon the rulings of the trial court with reference to the admission of certain testimony. Plaintiff called Robert Smaltz as a witness upon the 10-13. question of intoxication; and after the witness had stated certain facts, he was asked the following question: "From what you observed of the driver of this truck that you saw there on that day, from his actions and the way he handled the truck and what you saw, you may state to the jury whether or not this person was sober or intoxicated." Objection was urged to this question on the ground that the witness had testified that he did not know John Buddenberg (the driver of the truck) and that he was not at all sure that it was the truck involved *Page 623
in the accident. The objection was overruled by the court. It was not necessary that the witness should know John Buddenberg, but the individual inquired about was identified as the driver of the truck; and although this witness was not certain as to the particular truck involved in the action, sufficient identification had been made as to the vehicle referred to by other witnesses who testified with reference to the place where it was parked. The ruling of the court was correct, and it was for the jury to give such weight to the testimony of the witness to which it felt it entitled. On cross-examination of this same witness, the appellant asked him if he knew Delbert Hamilton, to which question he answered as follows: "I wouldn't know him if I did see him." Appellant then asked him this further question: "Do you know whether he was working at that time over at Gabler's Filling Station?" To this question appellee objected on the ground that the witness did not know Mr. Hamilton. The objection was sustained. This ruling was within the discretion of the court and not error. No further effort was made to identify the person inquired about or to furnish any basis upon which the witness could give an intelligent answer. Under these circumstances there was no undue limitation of cross-examination. It appears from the record, that this case had been tried once before and that certain witnesses appeared in both trials. In the former trial, the question of intoxication of the driver of the truck was an issue. In the trial of the instant case, a witness was interrogated as to the sobriety of the truck driver a very short time before the accident; and in answer to a question, the witness testified as follows: "I don't know if he was drunk. He might have been a least bit." He admitted, in answer to a question, that he *Page 624
had testified before in this case; whereupon counsel for appellee propounded this question: "I will ask you if you didn't testify in the other trial in your opinion that he was intoxicated?" This question was objected to on the ground that it did not refer to the specific question and answer according to the record of the previous trial, and for the further reason that it was an attempt upon the part of the plaintiff to impeach his own witness where no prejudicial answer had been given. The objection was overruled and the witness answered as follows: "Well it seems that he was intoxicated." Counsel for appellee pursued this matter further and the following questions and answers appear in the record:
"Q. I will ask you if in last May the same question was put to you, from what you seen out there your observation of Mr. Buddenberg:
"A. Yes.
"Q. Is that true?
"A. Yes.
"Q. I will ask you in the May trial if I didn't put the question to you that from your observation and what you seen of Mr. Buddenberg and acquaintanceship, in your opinion whether he was intoxicated, sober or intoxicated and if you didn't answer that question that in your opinion he was intoxicated."
Appellant renewed his objection to the last question, which objection was overruled and the witness answered: "Yes I testified to that last May." As to the form of the question, it was admitted to be correct by the witness. Under the provisions of our statute, § 2-1726, Burns' 1933, it has been held that before a party may impeach his own witness by a former statement, it must appear that the present testimony is prejudicial. We are of the opinion that the answer, "I *Page 625
don't know if he was drunk. He might have been a least bit," was prejudicial and inconsistent with the witness' previous testimony that the driver in his opinion was intoxicated. Under the circumstances, we are of the opinion that appellee was not bound by the second answer, but was entitled to an unequivocal affirmation or denial of the answer given on the previous trial of this cause. In the case of Oldfather v. Zent (1898),21 Ind. App. 307, 312, 52 N.E. 236, and with reference to the question here in controversy, the court said:
"Without any reference to any statutory provision on the subject, it cannot be regarded as a sufficient objection to such a course of examination that the answer of the witness, by reason of its contradiction of his testimony already given, may tend to weaken confidence in the memory or the truthfulness of the witness; this being, not the sole purpose and effect, but only an unavoidable incidental result in seeking by a reasonable and natural method to arrive at the truth, which should be the object of rules of evidence."
If it can be contended that the second answer is not inconsistent with the witness' opinion given on the former trial, the statement quoted from the above case fully warranted the court's ruling.
Charles Berner was called as a witness for the plaintiff, and to a proper question, calling for his opinion as to whether the driver of the truck at the time he got off of the 14, 15. truck and got back on the same at Dillsboro was sober or intoxicated, answered that in his opinion the driver was intoxicated. On cross-examination of this witness, the appellant propounded this question: "As far as you know, Charley, it may be because he was sick or because he was riding a long way or because he was intoxicated, any one of *Page 626
them?" The witness in answering this question said: "Well knowing the man and everything." At this point the appellant objected on the ground that plaintiff was attempting to get before the jury from this witness the prior intoxication of the driver, and that his habit in that respect was incompetent, and that the only question involved in that respect was his condition immediately prior to the accident and the witness had no right to base his answer on his prior knowledge of the driver. This objection was overruled, and the witness concluded his answer with the statement: "why he was intoxicated." A motion to strike the entire answer on the same ground as stated in the objection was overruled. Error is predicated on these rulings.
It was not error to overrule the objection. The motion to strike out the entire answer was too broad as the last part of the answer was wholly responsive. Considering the form of the question, we are of the opinion that the entire answer was competent. The question was argumentative and admitted of an argumentative answer.
During the examination of one of appellant's witnesses, the attorney conducting the examination drew a part of his interpretation of the witness's story on paper. The 16. testimony had to do with what appeared to have been tire burns a short distance east of the point of collision. These burns were shown to have been made by the wheels on the same side of a car, and the west terminus of the burns was slightly south of the center line. There was nothing to indicate whether the burns had been made by the wheels on the left side of the car or by those on the right side of the car. The attorney submitted his drawing to the witness and had the witness indicate by marks the location of the tire burns. When the *Page 627
witness finished, the attorney had this drawing marked as an exhibit and offered the same in evidence, which was refused on objection by the appellee. The testimony of the witness was clear and the exhibit was merely illustrative. While it would not have been error to admit the exhibit, the court's refusal to admit it, under the circumstances, was within the discretion of the court and not error. Haven v. Snyder (1931), 93 Ind. App. 54,176 N.E. 149.
Other errors are predicated on the rulings of the court with respect to the admission of evidence and on motions to strike out parts of the evidence. An examination of the record reveals that the alleged errors are such as not to require specific attention; and it is sufficient to say that error, if any, in these additional matters are not such that the rights of the appellant were in any wise prejudiced.
The appellant complains, that there was not sufficient evidence to sustain the verdict and therefore the court erred in refusing to sustain his motion for a peremptory instruction at the close of the plaintiff's case and renewed at the conclusion of all of the evidence. There was ample evidence from which the jury could find that the driver of the appellant's truck was intoxicated at the time of the accident. The evidence as to the collision and the cause thereof was all circumstantial; but there was evidence from which the jury could find that the driver of appellant's truck was, immediately prior to the collision, operating said truck to the left of the center line of U.S. Highway No. 50 and in the lane for cars traveling west and in the opposite direction to that in which the truck was being operated. The collision occurred at about the crest of a rise in the road up which the truck had traveled, and tire marks of the character of the treads on the tires worn *Page 628
by the truck were described as being to the left of the center line and led up to within a few feet of where the truck was overturned. These tracks leading up to the truck were described as weaving in and out, and there was evidence that when the truck left the filling station a short time before the accident, it "wig-waggled" down the road. There was testimony about a gouge in the westbound lane near where the vehicles came to rest and also that there was dirt and dust from the truck and car in said lane. Along with these facts, the evidence disclosed the position of the vehicles immediately after the accident; and detailed descriptions, supplemented by photographs, disclosed the amount and character of damage suffered by both machines.
It is a well-established rule of law that it is only where the evidence upon any question is undisputed and only one legitimate inference can be drawn therefrom that the court has a 17. right to direct a verdict. If there is any legal evidence whatever, having legal weight, or any legitimate inferences from such evidence tending to support plaintiff's right to recover, the question is one for the jury. Gasco v.Tracas (1927), 85 Ind. App. 591, 155 N.E. 179; Jackson, Rec.
v. Mauck (1920), 189 Ind. 262, 126 N.E. 851; Doan v. E.C.Atkins Co. (1916), 184 Ind. 678, 111 N.E. 312; Rush v.Coal Bluff Mining Co. (1892), 131 Ind. 135, 30 N.E. 904;Hartlage v. Louisville etc., Lighting Co. (1913),180 Ind. 666, 103 N.E. 737; Smith, Admx., v. Cleveland, etc., R. Co.
(1918), 67 Ind. App. 397, 117 N.E. 534.
In view of this rule, and under the facts of this case, appellant's motions for a directed verdict were properly overruled. Adding to what we have said with respect to 18, 19. the motions to direct a verdict, it may be stated that in order to overthrow a judgment *Page 629
on the ground of insufficiency of the evidence the burden is upon appellant to establish that upon the consideration of all the evidence most favorable to appellee, with all of the reasonable inferences that the jury might deduce therefrom, it is of such a character as to present a question of law and not one merely of fact. Chicago, etc., R. Co. v. Vandenberg (1905),164 Ind. 470, 73 N.E. 990; Klingaman v. Burch (1940), 216 Ind. 695,25 N.E.2d 996. Reasonable minds could differ on the question of whether or not the evidence in this case supported at least one of the charges of negligence alleged in the complaint. Considering the evidence most favorable to the appellee, it cannot be said that as a matter of law the verdict was not sustained by the evidence or that the verdict was contrary to law.
The appellant tendered 22 instructions, all of which were refused by the court. Error is predicated on this refusal of the court to give each of the instructions so tendered by the 20. appellant. The court of its own motion gave to the jury 33 instructions. Exception to each of the court's instructions was reserved by the appellant. The court's instructions fully cover the issues in the case; and if the court's instructions are correct, no error was committed in the refusal to give any of the instructions tendered by the appellant. Complaint is made of instruction number 4, by which the court informed the jury that this cause was first instituted in the Dearborn Circuit Court and upon application the cause had been venued to the Franklin Circuit Court for trial. There was no indication as to which of the parties applied for the change of venue, nor does the record disclose that any comment was made to the jury on this subject. While *Page 630
there appears to us no reason for the giving of such instruction, the appellant was not harmed thereby.
Appellant challenges instruction number 18 given by the court on proximate cause. The court defined proximate cause as it has usually been defined by the courts, and appellant 21, 22. contends that this definition is no longer sufficient for the reason that it omits the element of "foreseeability." The case of Swanson v. Slagel,Administratrix (1937), 212 Ind. 394, 8 N.E.2d 993, is relied upon to support appellant's contention. In that case there was involved the question of an intervening independent agency. No such question is here involved. "Foreseeability" is an essential element of proximate cause; and when there is involved the question of an independent intervening agency, one who is charged with negligence cannot be held responsible for the result of such negligence, unless both some type of injury and the intervention of the independent agency should have reasonably been anticipated. Indiana Service Corporation v. Johnston (1941),109 Ind. App. 204, 34 N.E.2d 157. In the case at bar, the court in its instruction number 9 told the jury that in order for the plaintiff to recover, not only the negligence charged in the complaint had to be proven but it must appear from the preponderance of the evidence that the accident causing the injuries and death complained of was one which in the exercise of reasonable care and foresight the defendant ought to have anticipated and prevented. This instruction fully informed the jury with respect to the element of "foreseeability," and when considered with the court's instruction 18, the jury was fully and correctly instructed on proximate cause. *Page 631
Instructions 19 and 24 are both attacked by 23, 24. appellant. A part of instruction 19 is as follows:
"It is further provided by statute in this state that it shall be unlawful for any person to operate a motor vehicle on any public highway of this state while under the influence of intoxicating liquor. The operation of a motor vehicle in violation of this statutory law constitutes prima facie negligence for which its operator is liable for any injuries or death proximately caused by reason thereof to any person, if such person, at the time of receiving such injuries or death, was in the exercise of reasonable and ordinary care. Such prima facie negligence is subject to be rebutted by evidence to the contrary."
Instruction number 24 in full is as follows:
"Testimony has been admitted during the trial of this case for the purpose of establishing that the driver of defendant's International truck at the time of the collision herein was intoxicated. It is proper, therefore, that the Court instruct you that voluntary intoxication, in and of itself, and standing alone and unsupported by other existing facts satisfactorily established, is not negligence, and in this case in the event that the only evidence of negligence on the part of John Buddenberg which you find, if you do so find, is his voluntary intoxication at the time of the collision herein, then your verdict should be returned for the defendant herein.
"But it is further proper that the Court instruct you that voluntary intoxication will not excuse a man from the requirement made of all citizens that he exercise at any time the care and prudence that an ordinarily prudent and careful person would exercise under the same or like circumstances. A drunken or intoxicated man is held to the same measure of responsibility as a sober one, and his actions are judged by the same standard. And it is proper for this jury to consider the fact of voluntary intoxication of John Buddenberg at the time of and immediately prior to such *Page 632
collision, if such be a fact, together with all of the other evidence in this case in determining whether or not such truckdriver at such time did exercise the care and caution of an ordinarily prudent and careful person placed under the same or like circumstances.
"The question whether John Buddenberg was negligent in the operation of such truck, immediately prior to and at the time of such collision, must be determined by the jury from the objective physical acts done or omitted by him, and his intoxication, if it existed, would be merely a circumstance reflecting upon the probability as to whether he was at such time doing or omitting to do some outward objective physical act required by the rule of ordinary care which I have given to you."
In addition to other criticisms of that part of instruction 19 set out, which we think require no consideration, the appellant contends that the portion of instruction 19 set out and instruction 24 are inconsistent and contradictory to such an extent that the giving thereof was calculated to confuse and mislead the jury. As hereinbefore indicated, the operation of a motor vehicle by one while under the influence of intoxicating liquor is a violation of a statute and such a violation is negligence per se. Such negligence is actionable if it is the proximate cause of any injury to another who is without fault.Lorber v. Peoples Motor Coach Co. (1929), 89 Ind. App. 139,164 N.E. 859, 172 N.E. 526; Prest-O-Lite Co. v. Skeel (1914),182 Ind. 593, 106 N.E. 365. If it appears from the evidence that the violation of this statute was the original wrong, which in its natural and continuous sequence, and unbroken by any new cause, produced the injury and death complained of, its force as a proximate cause would not be destroyed by another act of negligence of the defendant closer in point of time to the collision of the two vehicles. *Page 633
On the other hand, the defendant in this cause is specifically charged with negligently operating the truck to the left of the center of the highway. This act of negligence could have been committed whether the driver was drunk or sober, and therefore, the court, with respect to this specific charge of negligence, told the jury in instruction 24 that the intoxication of the driver could only be considered as a circumstance reflecting upon the probability of the commission of the wrongful act charged against the driver. In view of what we have said, we are of the opinion that the instructions complained of are not inconsistent or contradictory.
From a careful examination of the record and the briefs in this case, we are of the opinion that the appellant has pointed out no reversible error and that the judgment of the trial court should be affirmed.
Judgment affirmed.
NOTE. — Reported in 38 N.E.2d 287. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427354/ | This is an original action filed in this court by the State of Indiana on the relation of Joseph M. Robertson et al. against seven circuit courts and the judges thereof, to wit: Lake, Vigo, Vanderburgh, Marion, Franklin, Clark, and Vermillion counties. By permission, and upon their petition, the opposing candidates to the relators have been permitted to intervene as respondents.
It is alleged in the petition that a general election was held in the State of Indiana on November 8, 1938, for the purpose of electing state officers; that the relators and respondents received votes as follows:
TREASURER OF STATE
Relator Votes Respondent Votes Joseph M. Robertson ......... 776,280 Arthur H. Berndt .......... 771,875
SUPERINTENDENT OF PUBLIC INSTRUCTION
Floyd I. McMurray ........... 780,062 Norman J. Lasher .......... 768,983
CLERK OF THE SUPREME AND APPELLATE COURTS
Paul Stump .................. 779,074 Paul C. Wetter ............ 770,428
JUDGE SUPREME COURT, FIRST DISTRICT
Curtis G. Shake ............. 775,606 Arthur Rogers ............. 773,225
JUDGE SUPREME COURT, THIRD DISTRICT
H. Nathan Swaim ............. 775,344 Edgar M. Blessing ......... 772,187
JUDGE SUPREME COURT, FIFTH DISTRICT
Michael L. Fansler .......... 774,629 Harry L. Crumpacker ....... 771,879 *Page 21
JUDGES OF APPELLATE COURT, FIRST DISTRICT
A. Jewel Stevenson .......... 776,067 Chauncey W. Duncan ........ 771,067
William H. Bridwell ......... 776,453 Edgar Durre ............... 769,832
JUDGES OF APPELLATE COURT, SECOND DISTRICT
Huber M. DeVoss ............. 774,037 Dan C. Flanagan ........... 772,376
Harvey J. Curtis ............ 775,701 Fred E. Hines ............. 770,814
AUDITOR OF STATE
Frank G. Thompson ........... 776,992 Louis R. Markum ........... 771,408
The vote of the respective candidates was certified to the Secretary of State, who issued certificates of election to the successful candidates, relators herein, executed by the Governor of the state.
T. Joseph Sullivan, John W. Gerdink, John W. Spencer, Jr., Earl R. Cox, Roscoe C. O'Byrne, George C. Kopp, and G. Edward Bingham are respectively the judges of the circuit courts named. The defeated candidates for said offices, on the 18th and 19th days of November, 1938, filed in said seven circuit courts separate petitions for a recount of the votes cast in each of said counties at the November election, 1938. Copies of the petitions filed by said respective candidates are filed as exhibits to the petition filed herein.
It is alleged that the circuit courts and the judges thereof, named as respondents herein, are without jurisdiction of the subject-matter of said recount proceedings instituted in said respective courts by the defeated candidates for the offices hereinbefore set out, for the reason that the petitions filed in said Vermillion, Franklin, and Clark Circuit Courts allege that said recounts and corrections of the vote cast for the respective offices at said election are sought pursuant to the provisions of chapter 47 of the Acts of the General Assembly of the State of Indiana adopted at a Special Session in 1881; that said statute does not authorize or contemplate a recount of votes cast for state officers by a proceeding filed in the circuit court; that said defeated candidates *Page 22
have not asked in their petition for a recount of all the votes cast in the State of Indiana for the offices for which they were candidates at said general election; that, if it should be held that chapter 47 of the Acts of 1881 authorizes a recount, then the statute is unconstitutional and void for the reason that the General Assembly has no constitutional authority to enact special or local laws applicable to less than all counties of the state in respect to a determination of the result for a general election for state offices, and has no authority to delegate to a defeated candidate the right to select counties in which such special proceedings for recounts may be instituted; that in the petitions for recounts filed by the defeated candidates in Vanderburgh, Vigo, Lake, and Marion Circuit Courts, it is alleged that the proceedings are filed pursuant to the provisions of chapter 94 of the Acts of the General Assembly of the State of Indiana of 1921, sections 29-2111 to 29-2120 Burns' Ind. St. 1933 (§§ 7398 to 7407 Baldwin's 1934); that said act is unconstitutional and void for the reason that it violates sections 22 and 23 of Article 4 of the Constitution of the State of Indiana; that said statute attempts to provide for a recount of only part of the votes cast for the state officers at said election; that it attempts to provide for part only of the paper ballots cast at said general election, without providing for a recount of all the paper ballots cast throughout the state; that said chapter 94 of the Acts of 1921 is not general and uniform in its operation throughout the state, in that it attempts to make the certificate of a recount of the votes cast on paper ballots, in counties where both voting machines and paper ballots for state officers are used, prima facie proof of the facts therein recited in any contest proceeding and conclusive for all other purposes, notwithstanding there is no other statute in the state providing that the certificate of any such *Page 23
recount shall be prima facie evidence thereof in any contest proceeding where paper ballots only are used; that said chapter 94, Acts 1921, is not of general and uniform application throughout the state.
It is alleged that the respondent circuit courts are attempting and threatening to assume jurisdiction in said respective causes and will do so unless prohibited by this court. Other allegations allege the necessity of issuing the temporary writ of prohibition which heretofore has been issued. The respondents have answered the petition and the cause is now before this court for final determination.
Each of the petitions for the recount, filed as an exhibit to relators' petition herein, alleged that each "petitioner desires to contest said election for said office by the remedy or remedies provided by law and available to your petitioner for contesting said election for said State Office."
The only question involved under the Constitution and the laws of this state is whether a circuit court has jurisdiction to entertain a proceeding for a recount and contest of an 1-3. election of state officers. The jurisdiction and duties of a circuit court of the State of Indiana, and the methods prescribed by which the court shall exercise its jurisdiction, must be conferred by constitutional and legislative authority. If the Legislature has failed to prescribe a method for the recount and contest of the election of state officers by a proceeding instituted in a circuit court in the state, then such court is wholly without jurisdiction. The burden is upon those seeking such recount and contest proceeding in the circuit court to point out a law expressly vesting that authority in such courts. The common law made no provision for recount and contest of the ballots cast at an election. It is a familiar rule that statutes granting jurisdiction which was not given at *Page 24
common law are to be strictly construed, and one seeking to take advantage of such statute must bring himself clearly within its spirit as well as within its letter. Martin v. Schulte
(1933), 204 Ind. 431, 182 N.E. 703, and cases there cited.
Sutherland's Statutory Construction, Vol. 2, pp. 1048, 1049, secs. 565, 566, announces the rule as follows:
"A statutory remedy or proceeding is confined to the very case provided for and extends to no other. It cannot be enlarged by construction; nor be made available or valid except on the statutory conditions, that is, by strictly following the directions of the act.
"A party seeking the benefit of such a statute must bring himself strictly not only within the spirit but its letter; he can take nothing by intendment."
It is not doubted that a recount proceeding is ministerial and not judicial. The proceeding is a special statutory one. The respondents have the burden to point out a statute 4. expressly authorizing the procedure which they have adopted and "must assume the burden of the well-settled rule that one who seeks the benefit of a statute must, without the aid of any intendment, bring himself strictly within its spirit as well as its letter." Martin v. Schulte, supra, page 435;Williams v. Bell (1915), 184 Ind. 156, 110 N.E. 753.
In Layman v. Dixon (1917), 63 Ind. App. 501, 114 N.E. 698, that court had under consideration a petition for a recount only of the ballots cast for the office of township trustee. The court there held that it is only when a candidate desires to contest an election that he may invoke the aid of the statute. The court pointed out that the Legislature expressly provided that the petition to recount must show "that he (the candidate) desires to contest such election." In the instant case the respondents, both in their brief and oral argument, apparently *Page 25
claim the right to recount only, but, nevertheless, allege in their petitions that they desire to contest the election. This allegation is expressly provided by the statute and held to be necessary by the authorities cited above.
The defeated candidates, respondents herein, assert that as to the contest in the three counties where the vote was by paper ballot only, the authority is expressly granted to them to demand a recount, in the counties selected by them, in a proceeding filed in the circuit court; that in the four counties where both voting machines and paper ballots are used, the same authority is granted by statute. In the first three counties, the authority, they assert, is granted by sections 61 to 65 of chapter 47 of the Acts of 1881, sections 29-2101 to 29-2105 Burns' Ind. St. 1933 (§§ 7388 to 7392 Baldwin's 1934), and as to the last four counties, the authority is granted by chapter 94 of the Acts of 1921, sections 29-2111 to 29-2120 Burns' Ind. St. 1933 (§§ 7398 to 7407 Baldwin's 1934).
As to the first proposition, the 1881 act provides (section 61, section 29-2101 Burns 1933, § 7388 Baldwin's 1934) that "any candidate for office at such election desiring to contest the same, may petition in writing the Circuit Court, if in session, or the Judge thereof in vacation, for a recount of the ballotscast at such election, by three commissioners, to be appointed by the Court or Judge." The contention is that under this provision authority is granted to any candidate for a state office to proceed as provided by the statute for a recount of the ballots in the county chosen by the defeated candidate, and that the statute grants such authority without a recount of all the votes cast for the candidate in the state at large.
The statute uses the term "any candidate." The contestors assert that the word "any" is all-inclusive and *Page 26
embraces candidates in any unit — that is, township, 5. county, municipality, district, or the state, who may demand a recount of the ballots; and that the term is broad enough to permit any candidate to demand a recount of any part or portion of the unit in which the recount is had. There is no other reference in the statute with respect to state officers demanding a recount by a proceeding filed in a circuit court of the state. If this court is to give to the word "any" the broad construction placed upon it by the contestors, the same broad construction must be applied to the provision which immediately follows, that the recount must be "of the ballots cast at such election." "The ballots" must be construed as all-inclusive as is the word "any," and to include all of the ballots cast in the entire state. By giving the broad construction to both parts of this statute, the conclusion inevitably follows that the recount must be of all ballots cast in the state as a whole, or, in the case of the recount in lesser units, the recount must be of all the ballots cast in the entire unit. When the statute provided for a recount "of the ballots cast at such election," it did not mean ballots cast in one precinct, one township, or one county, when applied to a recount upon the part of a candidate for a state office to be elected by the people at large. The contestors will not be permitted to place a broad construction upon the word "any," used in the beginning of section 61 and a narrow construction upon the latter provisions of the same section. Other provisions of the statute are incompatible with the view that the Legislature intended the act to apply to a recount of less than the whole unit. "Each of the candidates may be present during said recount." (Section 63, chapter 47, Acts 1881, section 29-2103 Burns' 1933, § 7390 Baldwin's 1934.) He could not be present in 92 counties of the state in event suits were filed in each. Section 69, chapter 47, Acts 1881, *Page 27
section 29-2204 Burns 1933, provides that each party may be present, etc., in a hearing before the legislative committee.
The same reasoning with reference to the Act of 1881 applies with equal force to chapter 94 of the Acts of 1921, sections 29-2111 to 29-2120 Burns 1933 (§§ 7398-7407 Baldwin's, supra). That act does not contain an express grant to the courts of the state to entertain a petition for recounting a portion of any voting unit. There is no provision in any of the statutes pertaining to elections in this state whereby a candidate for office may petition a circuit court for a recount in a township of one precinct only, or in a county of one township or one precinct, or in a municipality of one precinct or one ward, or in the State of Indiana for a recount in seven counties, one county, one municipality, one township, or one precinct. On the contrary, the legislative enactments upon the subject clearly indicate the intention upon the part of the Legislature to recount all ballots cast at such election for or against the candidate demanding the recount. A search of the many decisions of this court involving recount and contest of elections reveals that in 122 years of its history it has never been contended or presented for judicial determination that a defeated candidate may demand and be entitled to a recount of less than the entire unit involved in the election. That is a proposition unheard of and unknown to the law in this state.
The respondents assert in Proposition II of their brief that "the recount statutes of the State of Indiana are an integral and component part of the election laws of the state." In Proposition IX they say that "the recount statutes are general laws and are not local or special laws." In this assertion they are correct. But, notwithstanding their premise that the election laws are general and not special in their application, they *Page 28
assert a right to recount the ballots cast in seven counties, selected by them, in a state election, and from a recount of the seven counties only, ask that a candidate for a state office may be declared defeated or elected as revealed by that recount. As authority for their position they cite chapter 94 of the Acts of the General Assembly of 1921, sections 29-2111 to 29-2120 Burns' Ind. St. 1933, and assert that such proceeding is authorized. An examination of that chapter reveals the following title:
"An act to provide for recount and correction in township, city, county, circuit, district and state elections where voting machines and paper ballots are used."
The title of an act may limit the scope of an act, but it 6. cannot broaden or extend the effect of the act as expressed in the body thereof.
Section 10 of this act, section 29-2120 Burns' Ind. St. 1933 (§ 7407 Baldwin's Ind. St. 1934), reads as follows:
"The provisions of this act shall not be construed as repealing or in conflict with any other laws now in existence upon the subject of recount of votes cast at any election whether cast on machines or by paper ballots but shall be construed as supplemental to any such law."
Since the act of 1921 is supplemental, it should be 7. construed, if possible, so as not to be inconsistent with the act of 1881.
Section 1 of the Act of 1921 provides "for a recount of the votes cast within the bounds of the county wherein such court has jurisdiction." If this language must be construed as providing for a partial recount of the votes cast for a candidate elected in a state-wide election, the act is unconstitutional, for it is local and special, since there is no act providing for such a partial *Page 29
recount in counties where paper ballots are used.
8. In construing statutes, courts will seek a construction that avoids unconstitutionality.
Section 2 provides for the filing of a petition by an unsuccessful candidate, which must contain an allegation "that he desires a recount and correction of the votes cast on 9, 10. said machine, or machines, and the paper ballots cast, at said election for the office for which he was a candidate." If this last-quoted clause is construed as meaningall "ballots cast at said election for the office," and it is construed with the provision of section 1, providing "for a recount of the votes cast within the bounds of the county where such court has jurisdiction," and as limiting the jurisdiction to a recount in cases where "the votes cast within the bounds of the county" are all of the "ballots cast at said election for the office," the statute would be limited to recounts in elections for offices, all the votes for which are cast within the confines of one county. That much jurisdiction is clearly conferred by the statute, and a construction limiting the language used to such situations avoids unconstitutionality.
Such a constitutional construction does not authorize the thing which the respondents are asserting jurisdiction to do.
By section 10 the 1921 act is made a part and parcel of all other election laws then existing. It is pointed out in Jordan
v. Peacock (1926), 84 Ind. App. 86, 150 N.E. 60, that the 1921 act provides for a recount of votes when both ballots and voting machines are used, and that the act is supplemental to and does not repeal existing laws upon the subject of recount of votes. Also see Humphries v. Peacock (1928), 88 Ind. App. 349,164 N.E. 27. It is as much a part of the 1881 act as if *Page 30
it had been contained in it from the date of its enactment.
Since the two acts must be read together, it will be noted that there remains the special provisions provided by the act of 1881 for recount and contest of elections, one by justices of the peace, others by commissioners, courts, and Legislature, depending upon the voting unit involved. Among the special provisions provided is the one specifying the manner of a contest for a state office before the General Assembly. There is nothing in the act of 1921 to limit or abridge that provision of the 1881 act. In the enactment of the 1921 act the Legislature evidently had in mind all of the provisions of the 1881 act and entertained a definite purpose to make the 1921 act supplemental thereto. Knowing that the 1881 act made specific provisions for the recount and contest of a state election, it was entirely proper and necessary to embody in the title and body of the statute a reference to "state elections." This phrase added nothing to the law as then existing, but since the 1921 act, by its own terms, became a part of the 1881 act and must be read in connection with all of the provisions of the 1881 act, it necessarily follows and seems perfectly clear that the provision for the legislative procedure in reference to state offices remained and is unmodified and unlimited.
The respondents have called attention to no specific statute authorizing the procedure adopted by them, nor have they produced a decision of any court in this state upholding their contention. In the absence of such statute or court ruling they have cited, and, of course, rely upon, an opinion of the Attorney General of the State of Indiana given to the Legislature then in session under date of February 14, 1925, as found in Reports and Opinions of Attorney General of 1925 and 1926, page 671. This opinion was requested by the Legislature which then had before it a contest for the office of *Page 31
Judge of the Supreme Court. The Legislature asked the Attorney General for an interpretation of the 1881 act.
The question before the Legislature was presented by a verified petition executed by an elector of the state, who alleged that in the general election of 1924 George K. Denton and Benjamin M. Willoughby were opposing candidates for the office of Judge of the Supreme Court of the State of Indiana; that a tabulation of all the votes cast in the state was certified to the Secretary of State, and by the Secretary of State to the Governor. The total tabulation revealed that Willoughby received 601,861 votes and Denton received 601,860 votes; that a certificate of election was issued by the Secretary of State and the Governor to Judge Willoughby. The petitioner alleged that there had been irregularity and malconduct of the boards of canvassers and the clerks of the circuit courts in six counties, naming them, and specifically alleged the fact concerning the alleged irregularity and misconduct in that the clerks of the respective six counties had certified to the Secretary of State totals of the vote cast in those counties which were incorrect, and, if corrected, Mr. Denton would have received a plurality in the entire state of 935 votes. There was a prayer that the Legislature then in session should proceed to hear and try the case as provided by section 69 of chapter 47 of the Acts of 1881, which reads as follows:
"Each house shall choose by a viva voce vote seven members of its own body, and the members thus selected shall constitute a committee to try and determine such contested election, and for that purpose shall hold their meetings publicly, at the capitol, at such time and place as they may designate, and may adjourn from day to day, or to a day certain, until such trial shall be determined; shall have power to send for persons and papers and to take all necessary means to procure testimony,
extending like privileges to the contestor and the *Page 32
contestee, and shall report their judgment in the premises to both branches of the General Assembly, which report shall be entered on the journals of the respective houses, and the judgment of such committee shall be conclusive; and if such election be adjudged invalid, such office shall be vacant."
The procedure provided by this section was followed. The legislative committee appointed to determine the matter asked the Attorney General for an opinion concerning the law applicable to the case. In an extended opinion the Attorney General reviewed the statute authorizing the procedure and pointed out that it was shown by the certificate of the Secretary of State that Judge Willoughby received one more vote than did his opponent, upon which a certificate of election was issued to him, and he qualified by taking office. After errors had been discovered in the six counties, which, if corrected, would have given the plurality to Mr. Denton, such corrections were made in the respective counties and new certificates were filed by the clerks of the courts with the Secretary of State. The Attorney General pointed out that the law provided for but one certificate from each county and did not provide for corrections or amendments of the returns. He then said:
"Whether or not there should be opportunities for corrections of returns is purely a question of legislative policy. In Indiana the policy as determined by the legislature is against correction of returns. The legislative reasons for such a policy apparently include the consideration that the opportunity for fraud in changing returns in case of a close vote should not be afforded and that it is better policy to permit errors to go uncorrected on the theory that honest errors will fairly well equalize themselves between contesting candidates rather than to place temptation before certifying officers by providing for the corrections of returns."
After citing a California case the Attorney General further said: *Page 33
"Thus it appears that your committee is requested to consider corrected returns when there is no warrant in law for such returns."
He then pointed out that:
"Where the gist of the charge in specifications is that a candidate who failed to be declared elected received the highest number of votes cast the contestee is entitled to have the question thus presented determined by the best evidence as to what the total vote cast for each candidate actually was. . . . that all votes must be counted and that the contestee is entitled to have the facts determined by the best evidence, viz.: by the legal ballots themselves and by the results shown by voting machines where they are used.
". . . the absence of authority to your committee to grant the relief prayed for, that is, to declare Mr. Denton elected on the theory that he received the highest number of votes in the entire state, forces the conclusion that the legislature did not intend to authorize such a contest."
The Attorney General then pointed out that the elector who filed the proceedings evidently did so upon a construction of the statute that the legislative committee was authorized to review the election of Denton and Willoughby by a correction of the total votes cast in six counties only of the entire state. The Attorney General said upon that proposition:
"The construction evidently placed on said section (6998) by the elector who filed said specifications would render the same unconstitutional. It is clearly not competent for the legislature to empower a committee of its own members under a delegation of general powers to make a limited inquiry into the questions of who received the most votes, as it is asked to do in the specifications, and to determine who shall occupy the highest office in a co-ordinate branch of the government. Such an attempt would violate the constitutional principle on which the government is divided into co-ordinate branches, the chief officers of which are elected by the people, as provided by the constitution; an attempt to determine who of several candidates shall sit as a *Page 34
judge of the supreme court by virtue of having received the highest number of votes without counting all of the votes cast would violate the constitutional right of the people to have their judges elected on the principle of universal suffrage."
Accordingly, the Attorney General advised the Legislature that it was without jurisdiction to entertain the petition filed, and the same was dismissed.
In the instant case the respondents are not only asking a recount and contest in but seven counties of the state, but they are asking this court to write into the statute something 5. that is not there. They ask the court to say that "any candidate for office at such election" may have a recount in a state-wide election by a procedure filed in the circuit court of one county for a recount of the votes of that county only. As pointed out by the Attorney General in the Denton-Willoughby case, the recount of one county might have changed the result, but it would be unavailing in the face of a certificate executed by the Secretary of State to the candidate who received a plurality of all votes cast as shown by the record; that the only manner in which that question can be determined is by a count of all the votes cast in the state. There is as much reason to hold that a candidate for sheriff of a county may legally demand a recount and contest by counting the ballots cast in one township, or a candidate for mayor by recounting the ballots cast in one ward or precinct. If a candidate for state office may proceed as respondents have in the instant case, he may reduce the number to one county, one township, or one city ward. The absurdity of such proposition is at once apparent. Before this may be done, new action will have to be taken by the Legislature, which may include an amendment to the Constitution. To say the least, the election laws are *Page 35
confusing and not coordinate. Without question a revision of the election laws is needed in this state.
By reading the 1881 and 1921 acts together, it is clear that, if a recount is contemplated, it must be had through a contest before the General Assembly, conducted by a legislative 11. committee, and not otherwise.
Furthermore, in order to follow the respondents' course, there must be read into the statute a proviso expressly authorizing a recount of ballots cast in a state-wide election by filing 12. a petition in a circuit court for the recount of the ballots cast in that county only. The statute does not now authorize that procedure. It is clear that such statute would be unconstitutional, but, because this case may be decided on other than constitutional grounds, it is unnecessary to discuss that question. The respondents have wholly failed to point to any statute authorizing a partial recount of all the votes cast in any unit, be it township, city, county, district, or state. Unless and until a constitutional statute can be furnished authorizing such procedure, it must be held that the seven circuit courts, respondents hereto, possessed no jurisdiction to hear or determine the matters presented by the several petitions filed asking for a recount of the votes in the particular county.
It is ordered that the temporary writ of prohibition heretofore issued be made permanent, and that each of the courts and the judges thereof, to wit: the circuit court of Lake, Vigo, Vanderburgh, Marion, Franklin, Clark, and Vermillion counties, be prohibited from hearing and determining the several petitions filed by their corespondents.
Shake, J., and Fansler, J., not participating. *Page 36 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427355/ | CONCURRING OPINION.
I concur in the result reached in the prevailing opinion but cannot concur in all the reasons given therein.
These are original actions in this court in which the relators seek writs of prohibition to prohibit respondent circuit courts and the judges thereof from entertaining jurisdiction of petitions filed before them seeking a recount of the votes cast in their respective counties at the general election held November 8, 1938, for the office of United States Senate, and for all the state offices voted upon at said general election except that of Secretary of State.
The relator in Number 27,159 is Frederick Van Nuys, who is seeking to prohibit such proceedings in the seven named counties as to the votes cast for the office of United States Senator. The relators in Number 27160 are Joseph M. Robertson and ten other candidates for state offices who seek to prohibit the recount proceedings as to the votes cast for the said respective state offices in the said seven named counties. After lengthy oral arguments were had and memorandums filed, a temporary writ of prohibition was issued in each case. The question now presented is whether or not said temporary writ shall be dissolved or made permanent.
The responses filed by the various respondents show that verified petitions for a recount of the votes were filed in the respective counties of Lake, Vanderburgh, Vigo, Vermillion, Marion, Clark, and Franklin counties, and in no other counties in the state. No question here is presented as to the sufficiency of the several petitions filed in the said counties. The sole question presented in this action is one of jurisdiction. It is contended by the petitioners herein that the several circuit courts or the judge thereof have no jurisdiction to recount the *Page 37
votes within the territorial limits of their respective counties in case of United States Senator or candidates for state office, while the respondents contend that the circuit court does have jurisdiction to conduct such recount proceedings and to recount the votes cast for the office of United States Senate and for state offices in their respective jurisdictions. Both the petitioners and respondents rely upon chapter 47, of the Acts of 1881 and chapter 94, Acts of 1921. Prior to 1881 there was no statutory provision for a recount of ballots cast at any election. The General Assembly of 1881 enacted chapter 47 and by this act made provisions for a recount of ballots cast at an election. The recount sections of this chapter are sections 61 to 65, inclusive. As far as we have been able to learn this is the first time since the enactment of this statute that the court has been called upon to apply the various provisions thereof to the election of United States Senate or to state offices, but has been invoked many times as shown by the decided cases in Indiana in contests for local offices. Section 61 of this act provides:
"At any time within ten days after the Thursday next succeeding any election, any candidate for office at such election desiring to contest the same may petition in writing the Circuit Court, if in session, or the Judge thereof in vacation, for a recount of the ballots cast at such election, by three commissioners, to be appointed by the Court or Judge, two of whom shall be of different political parties; . . ." (Our italics.)
Section 62 provides:
"Upon the petition of such candidate, duly verified, showing that he desires to contest such election, and honestly believes that there was a mistake or fraud committed in the official count, and that he desires a recount of the ballots cast at said election for the office for which he was a candidate, and upon proof that he has served a written notice upon the opposing candidate, of the time and place *Page 38
of such application, five days before the hearing, and upon his furnishing a written undertaking, with sufficient freehold surety, that he will pay all the costs of such recount, the Court or Judge shall grant the prayer of said petition, and order said recount to be made." (Our italics.)
It is by virtue of the language found in section 61, to wit:"any candidate for office at such election desiring to contestthe same" that the respondents herein base their contention that a candidate for United States Senate or candidate for state office may ask for a recount of the ballots cast at such election, and it is upon the language found in section 62 that said respondents contend that the recount is limited to the recounting of the ballots cast in the county in which the petition is filed. As stated above, the provisions of sections 61 to 65, inclusive, have been invoked many times in this state in contest proceedings for township and county offices. In the many cases found in our official reports, involving recount proceedings, we find no case where a part only of the ballots cast for the contesting parties were counted, but in every instance all of the votes cast for the particular office contested were recounted. Respondents in this case have not directed our attention to a single instance in which a recount of the votes were had for any office, where less than all of the votes cast for that particular office were recounted. In case of township trustees all of the votes cast in that particular township must be recounted although fraud be alleged in only a part of the precincts composing that township. Likewise in county offices where fraud is alleged to have occurred in certain designated precincts less than the whole, the recount of the voted are not limited to a recount of the precincts in which fraud or irregularity is alleged to have occurred, but all of the votes cast in the entire county are recounted. Thus it will be seen that the courts of Indiana since the enactment of the *Page 39
1881 statute have universally and without a single exception construed this act as providing for a recount of all the ballots cast at the election for the particular office contested. The only authority for recounting all of the ballots cast flows from the language employed in said act. This is true even though the office voted for and being contested, involved more than one county, such as judge of circuit courts, where the circuit was composed of more than one county. As far as we are advised it has never been contended that less than all of the votes cast could determine who received the highest number of votes cast at such election. Indeed we find in section 64, Acts 1881, the following language:
"When said recount is finished, the commissioners, or a majority of them, shall make out a certificate, under their hands, stating the number of votes that each of said candidates has received for said office in each township and precinct, and which of said candidates, as shown by the said recount, received the highest number of votes, and what his majority or plurality was, and said certificate shall be filed with the Clerk of the Circuit Court, and by him recorded in the order book of said Court. . . ."
Such a certificate could not be made without a recount of all the ballots cast of such candidates. Such a practical, universal and uniform interpretation of the statute over many, many years becomes binding upon the courts as a judicial interpretation thereof. It is provided by law who shall vote for designated offices. The suffrage for township trustees is limited to the legally qualified electors who reside within the geographical limits of the township. County offices, such as county auditor, county recorder, county treasurer and the like, are limited to the legally qualified electors living within the territorial limits of the county. The votes for city officials are limited to the qualified electors living within the corporate limits of the city. The judge of the circuit court is elected by the qualified electors living within *Page 40
the boundaries of the judicial circuit. United States Senator and state officials are elected by the qualified electors living within the territorial boundaries of the entire state. The very foundation of our democratic form of government is based upon universal suffrage. For any court or commission or any other designated body to declare one of many opposing candidates elected to an office by a recount of less than all of the votes cast for that office would be in violation of the very fundamental constitutional rights of universal suffrage. This proposition was very forcefully expressed in an opinion delivered to the legislative contest committee when they were considering what is known as the Denton-Willoughby contest. We quote from the opinion of Arthur Gilliom, Attorney General of Indiana, found in Reports and Opinions of the Attorney General of Indiana 1925-1926, pages 671, 675, 676, 678, as follows:
"Furthermore the legislature has provided for recounts within a limited time in counties where errors are claimed, provision being made to recount votes cast both by ballot and voting machines. The result of such recount proceedings are available as evidence of what the vote actually was in contest proceedings. It is clear that when a contest is based on the theory that one candidate received a higher number of votes than did another, and provision has been made by the Legislature for a contest of that theory, that all votes must be counted and that the contestee is entitled to have the facts determined by the best evidence, viz: by the legal ballots themselves and by the results shown by voting machines where they are used.
". . . . .
"It is clearly not competent for the Legislature to empower a committee of its own members under a delegation of general powers to make a limited inquiry into the questions of who received the most votes, as it is asked to do in the specifications, and to determine who shall occupy the highest office in a coordinate branch of the government. Such an attempt would violate the constitutional principle *Page 41
on which the government is divided into coordinate branches, the chief officers of which are elected by the people, as provided by the constitution; and an attempt to determine who of several candidates shall sit as a judge of the Supreme Court by virtue of having received the highest number of votes without counting all of the votes cast would violate the constitutional right of the people to have their judges elected on the principle of universal suffrage. The presumption is that the legislature intended not to legislate in violation of the constitution of the State."
As stated above, the United States Senator and state officers are elected by all of the qualified electors of the state, and it would therefore seem clear that in order to give effect to the constitutional right of the people to elect such officers by universal suffrage no less than all the votes cast for the office could be permitted, as a limited inquiry into the question of who received the most votes would be in direct conflict with the above stated constitutional principle. To so hold would be identical with a holding that a candidate for any office elected by the entire suffrage of the state, could be elected by a limited suffrage in the first instance, which obviously could not be done. Therefore, taking into consideration the long and uniform interpretation of the act of 1881, supra, to the effect that in a recount proceeding all of the votes cast for the contested office must be recounted and upon the sound and fundamental principle as stated in the opinion of the Attorney General above quoted, we are forced to the conclusion that the act of 1881 contemplates the recount of all the votes cast for the offices embraced within its provisions, and it was not the legislative intent to permit a limited inquiry in recount proceedings. There are various provisions in the act of 1881 that are difficult to reconcile with the view that said act applies to or that the legislature ever intended for it to apply to candidates who are elected *Page 42
by the entire suffrage of the state. For example the act provides that the order entered by the circuit court should provide, "that each of the candidates may be present during said recount." It would, of course, be impossible if a recount were had before the circuit court in each of the ninety-two counties of the state for the candidate to be present in each of said counties at the same time. We also call attention to section 64 quoted above with reference to the certificate made by the recount commissioners.
It will further be noted that no adequate provisions are made in said act whereby a circuit court in one county in which a contest proceeding was filed to secure the ballots from the other counties, but the fact that no adequate provisions are made or whether or not the provisions are adequate does not determine, however, the question of whether said act confers jurisdiction upon the various circuit courts to recount the ballots for said officers or for the office of United States Senate within their respective jurisdictions. But if jurisdiction is conferred upon circuit courts of this state or the Judges thereof, to recount the ballots cast for the office of United States Senate or for state offices, it is jurisdiction to count all the ballots cast in the entire state and not limited to a recount of the ballots cast in certain counties selected by the losing candidate.
Respondents contend that jurisdiction is conferred by language found in section 61 of said act of 1881 namely "any candidate" and says that this language is broad enough to include a candidate for the office of United States Senate and candidate for state office. This is true, but the whole act must be considered in order to grasp its true and proper meaning. If we give to the words "any candidate" their broad and all-inclusive meaning, the same broad and all-inclusive meaning should also be given to the phrase "a recount of the *Page 43
ballots cast at said election" found in the same section and also the phrase "a recount of the ballots cast at said election for the office for which he was a candidate," found in section 62 of said act and hold that said phrases mean all the ballots and not a limited number of ballots. It could hardly be said with any degree of logic that in case where the entire suffrage of the state is exercised, that a recount of a part of the ballots would satisfy the demand of the language "a recount of the ballots cast at said election for the office for which he was a candidate." So, whether the act of 1881 be construed to embrace candidates for the office of United States Senate and candidates for State office or not, it follows that the circuit courts and the judges thereof who are respondents herein have no jurisdiction to conduct recount proceedings, which are limited to a recount of the votes cast within their jurisdiction.
The respondents seek to avoid the obvious interpretation above stated, namely, that the statute clearly contemplates the recount of all the ballots cast at the election for the office contested, by taking the position that the successful candidate had the right to institute proceedings in the remaining counties, and thus the aggregate would constitute all of the ballots counted. In short their position is that a successful candidate is given the right under the 1881 statute, supra, to contest his own election. This would be an anomalous situation for a successful candidate by a proceeding aided by the ancillary proceeding of a recount to seek to change the result which he obviously desired at the election. It would not only be an anomalous situation, but a very foolish one, for if the successful candidate, after he had succeeded in the election, if he did not desire the office, all he would need to do would be to resign or fail to qualify. To contest, Webster says means, "to strive to be elected; to dispute the declared result of an election." *Page 44
So from the common sense interpretation of the word "contest" as used in election statutes, certainly does not contemplate that the successful party would institute a contest proceeding to contest his own election. It will also be noted that the statute of 1881, supra, as far as contest of election is concerned is a re-enactment of a former statute. Sections 61 to 65, inclusive, which are the recount sections, were incorporated in the act of 1881 and became the first statute authorizing recount proceedings of any kind. Section 66, which is the first provision of the contest portion of said statute, provides:
"The election of any person declared elected by
popular vote to any office whether state, county, township or municipal, may be contested by any elector who was entitled to vote for such person. The person contesting such election shall be known as the contestor; the person whose election is contested,
as the contestee." (Our italics.)
The above section, read in connection with section 61, which is the first section of the recount statute, provides:
"At any time within ten days after the Thursday next succeeding any election, any candidate for office at such election desiring to contest the same, may petition in writing the Circuit Court, if in session, or the Judge thereof in vacation, for a recount of the ballots cast at such election, . . ."
So the plain and obvious meaning of these provisions of the statute is that any candidate for office at such election desiring to contest the election of any person declaredelected, may petition for a recount and the person whose election is contested would be known as the contestee and it would be clear that the candidate declared elected could not be both the contestor and the contestee. It seems to us so obvious from the whole tenor of the contest and recount statute of 1881 that the *Page 45
legislature never contemplated that the successful candidate at an election should become the contestor under the provisions of the contest and recount statute. Such an interpretation and construction of the statute is in harmony with the conclusion reached in the first part of this opinion and answers the argument of the respondents to the effect that if contest proceedings are instituted by the unsuccessful candidates in certain counties of the state of their own selection, that the successful candidate might also institute proceedings in other counties if he believed fraud had been committed or a mistake in the counting was made, and that he had received more votes in such other counties than had been counted for him and thus procure a recount in all the counties of the state. Suppose that, in a contest proceeding for county office the successful candidate had been elected by only a few votes; the unsuccessful candidate institutes proceedings to contest and petition for a recount of the votes, alleging irregularity and mistake in the counting of the votes in certain voting precincts of the county. In such case it does not devolve upon the successful candidate to institute proceedings alleging fraud or mistake in the counting of the votes in other precincts of the same county in order to secure a recount of all the votes in the voting unit. This would be necessary as a logical consequence if respondents' position were logical, but according to our interpretation of the statute it would not be necessary for the successful candidate to institute such proceedings in order to secure a recount of all the ballots cast for that office in that election, for, if the unsuccessful candidates petition for a recount, he would know that all the ballots cast would be recounted, and thus secure a fair and equitable determination of the important question, to wit, who of the candidates received the highest number of votes cast. We can see no valid reason why the same *Page 46
rule that has been applied by the courts of this state in every contest proceeding of which we have any knowledge should not also be applied in this case. In case of township, county, circuit or other local contest, and recount proceedings are had, all of the votes cast for that office have been recounted notwithstanding the fact that the petition for a recount designated only a part of the voting precincts in which fraud was alleged. So when a contest for a state office or for the office of United States Senator is being contested and a recount of the ballots asked in order to avoid a gross injustice to the successful candidate and to secure a fair and full determination of the question before one tribunal, where the same measuring stick would be applied to both parties alike, it would appear that equity and common sense would demand that all of the votes cast for such office should likewise be counted. This is not only equitable, just and fair, but is in accord with all of the decided cases in this state. It would be grossly unfair to attribute any other motive to the legislature in enacting the 1881 statute, to attribute such a motive, unless we found express words to that effect.
Respondents say that the election laws, including the statutes relating to contests and recounts, should receive a liberal construction in order to accomplish the purpose intended.
The right to a recount of ballots was unknown at common law. This right is of statutory origin, and the rule of law governing courts in cases such as the ones here presented was well stated by Myers, J., in the case of Martin v. Schulte (1932),204 Ind. 431, 435, 182 N.E. 703, as follows:
"Since appellant's right to contest the nomination of appellee depends on statutory affirmance, he must assume the burden of the well-settled rule that one who seeks the benefit of a statute must, without the aid of any intendment, bring himself strictly *Page 47
within its spirit as well as its letter. Board v. Jarnecke (1905), 164 Ind. 658, 664, 74 N.E. 520; Barker v. State (1919), 188 Ind. 263, 267, 120 N.E. 593, and cases there cited; Alyea v. State
(1926), 198 Ind. 364, 152 N.E. 801, 153 N.E. 775."
And so with the parties here who seek to have a partial recount, they must point to some statutory provision which confers such right upon them without the aid of any intendment. No such provision is pointed to by the respondents in the act of 1881, and we have been unable to find any.
We, therefore, conclude that a contest proceeding, regardless of the office contested, necessarily brings before the tribunal authorized to recount the ballots all ballots cast for that office and thus uniformity is preserved and any other construction would violate the right of universal suffrage guaranteed to the people by our constitution, and we further conclude that a successful candidate cannot contest his own election, but only an elector or unsuccessful candidate can institute such proceedings.
The only other statute involved in this proceeding is chapter 94 of the Acts of 1921. The title of this act is, "An Act to provide for recount and correction in township, city, county, circuit, district and state elections where voting machines and paper ballots are used." This statute affects the recount in the counties of Lake, Marion, Vigo, and Vanderburgh, as these are the only counties in which contest proceedings have been filed by the losing candidates which used both voting machines and paper ballots in registering the votes cast at the election of November 8, 1938. The first section of this statute provides:
"That at any time within ten (10) days after the Thursday next succeeding any election, wherein the votes are cast by means of voting machines and paper ballots, any candidate for office at such *Page 48
elections, desiring to contest the same, may petition in writing, the circuit court, if in session, or the judge thereof in vacation, for a recount of the votes cast within the bounds of the county wherein such court has jurisdiction." (Our italics.)
The second section directs and states what shall be alleged in the petition; the third section provides the time for the hearing of said petition; the fourth section makes provision for the appointment of a recount commission to assist the court in the recount and the correction of the votes and provides for watchers and fixes the compensation to be paid; section five provides for the manner of recount; section six provides for the issuance of a certificate by the recount commission stating the number of votes received by each candidate and the recording of such certificate in the order book of the court and provides that such certificate or the record thereof shall be prima facie proof of the facts therein recited in any contest proceeding; section seven provides for the safe custody of the election machines and the ballots and other records; section eight provides for the payment of costs; section nine has to do with the jurisdiction of superior courts in recount proceedings; section ten provides that the act shall be construed supplemental to other laws; and the last section, section eleven, is an emergency clause.
It is contended by the petitioners herein that the act of 1921 is unconstitutional, being in violation of section 22, article 4, of the constitution of Indiana, which provides:
"The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say; . . ."
Sub-section 16 provides:
"Providing for opening and conducting elections of state, county, or township officers, and designating the places of voting." *Page 49
Also section 23, article 14, of the constitution of Indiana, which provides:
"In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state."
It must be conceded that the provision concerning elections includes within its spirit the requirement of uniformity of procedure in determining the results of elections. The harm arising out of local or special laws is not in the fact that they are local and special, but the harm is in the lack of uniformity in operation. The respondents contend that counties using voting machines or both voting machines and paper ballots form a class sufficient to justify a classification of such counties, and, therefore, counties using both voting machines and paper ballots constitute a distinct class, that would justify a class for legislative purposes. The existence of certain facts such as the use of voting machines and paper ballots in certain counties might form a proper basis for classifying such counties for certain purposes and not for other purposes. The fact that voting machines are used in certain counties and not in others, together with the further fact that voting machines are complicated mechanical devices, such that an ordinary layman might not be competent to inspect and tabulate the votes registered by such complicated machines or to determine whether or not the machine properly registered the votes as cast, or whether or not the machine had been unlawfully tampered with, would, we think, furnish a proper basis for legislative classification as to the method provided for the recounting of the votes. The legislature might reasonably classify such counties for the purpose of setting up special methods of rechecking or recounting the votes tabulated in such counties and might very properly delegate to *Page 50
such a special commission the right to recount the paper ballots cast in such counties. Such a classification, we think, would be reasonable and constitutional. But another question is presented in this case and that is: conceding the right of the legislature to classify counties using voting machines or voting machines and paper ballots, for the purpose of providing for a special method of tabulating the votes or recounting the votes in such counties different from that provided for in other counties, can such classification furnish a proper basis for classifying the counties as to the right of a recount?
The subject of the act of 1921 is recount, and not the method used in recounting the votes cast. The first section of this act purports to grant the right to recount the ballots cast for a candidate for state office within the limits of the county when voting machines and paper ballots are used, but does not grant that right in any other county. Does the fact that voting machines are used in certain counties or voting machines and paper ballots used in certain counties furnish a sound basis for classifying those counties into a group and giving an unsuccessful candidate at an election the right to have the votes recounted in such counties and not in others, furnish a proper basis for such classification? The right given by the statute for a recount is one thing, while the method employed in making the recount is another. They are entirely and fundamentally different. The right to a recount is the substantive right, while the method used in recounting is the adjective part of the law and constitutes the machinery to secure the substantive right granted. Suppose that all of the large counties of the State of Indiana vote either by voting machines or by combinations of voting machines and paper ballots and were heavily inclined to one major political party and all the smaller counties used paper ballots only and were *Page 51
inclined to the opposite political party and the legislature would enact a law granting the right to a recount in all counties using voting machines or in all counties using a combination of voting machines and paper ballots, and denied the right of a recount in the smaller counties using only paper ballots. It is obvious beyond argument that such a law would be a special and local law and would violate the letter and spirit of the constitutional provision relating to local and special laws and would permit the very thing that the constitutional provisions herein referred to were designated to prevent. So that is in effect what the 1921 statute accomplishes. It purports to grant the right to a recount of ballots in certain counties, to wit: those using voting machines and paper ballots, and makes no provision for a recount of ballots in counties using paper ballots only.
There is nothing inherent in the use of voting machines or in using voting machines in connection with paper ballots that could possibly furnish a proper basis for classifying such counties with reference to the right to have a recount. While such facts might furnish a proper basis for classifying such counties as to the method employed or the machinery set up for effecting such a recount. The right to have ballots recounted as stated above is a far different subject than the subject of "method used" in the recounting of ballots, and while such facts may furnish a proper basis for one classification is no argument that it furnishes a proper basis for the other. It seems clear that the act of 1921 in so far as it purports to grant the right of a recount of ballots within the territorial limits of the county and denies the right to a recount in other counties not coming within the purview of the statute is clearly a local and special law and is violative of the above named constitutional provisions of Indiana. Any construction of the act of 1881 or the act of 1921, which permits an unsuccessful *Page 52
candidate to choose the counties in which a recount of the ballots will be had to the exclusion of all others has the same effect as though the legislature itself had made the choice by legislative enactment. If the legislature has no such power it then cannot delegate or vest in any unsuccessful candidate the power to make such a choice. By the act of 1921 the legislature attempted to classify counties using both voting machines and paper ballots and granting to an unsuccessful candidate the right to effect a recount in any of such counties to the exclusion of all others. Such facts furnish no basis whatever for making such a classification. In the case of Bedford Stone Quarries Company
v. Bough (1907), 168 Ind. 671, 674, 80 N.E. 529, this court said:
"The legislature may make a classification for legislative purposes, but it must have some reasonable basis upon which to stand. It is evident that differences which would serve for a classification for some purposes would furnish no reason for a classification for legislative purposes. Such legislation must not only operate equally upon all within the class, but the classification must furnish a reason for and justify the making of the class; that is, the reason for the classification must inhere in the subject-matter, and rest upon some reason which is natural and substantial, and not artificial."
Many cases in Indiana might be cited in support of the above rule, but the rule is so uniform and so clearly stated in the above case and is adhered to in all of our cases upon that subject that further citations are unnecessary.
Our conclusion is that the act of 1881, if it grants the right to a recount of ballots cast either for the office of United States Senate or state officers, it clearly contemplates that all of the ballots cast should be recounted and no limited or partial recount is either expressly or by reasonable inference provided for in said statute, *Page 53
and, therefore, no jurisdiction is in any of the respondent circuit courts to proceed with the recount of ballots cast in their respective jurisdictions only, which is sought to be done by the petitions filed, and that the contestors have not attempted to invoke the jurisdiction of any of the respondents to recount all the votes cast for the respective offices; and we further conclude that the act of 1921, chapter 94, is void and unconstitutional and violative of section 22, article 4, and section 23, of article 4, of the constitution of Indiana in that it constitutes a special and local law granting to certain counties the right to recount ballots for state officers and for the office of United States Senator, cast in their respective jurisdictions and makes no provision for the recount of all the ballots cast in the state for such offices and in so far as said act attempts to confer such right the same is unconstitutional and void. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3210083/ | FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 7, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 15-4137
v. (D.C. No. 2:07-CR-00078-TS-2)
(D. Utah)
RAUL RODRIGUEZ-DIMAS,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
I. BACKGROUND
Appellant Raul Rodriguez-Dimas pled guilty to “knowingly and intentionally
distribut[ing] or possess[ing] with intent to distribute a controlled substance, to wit:
five hundred (500) grams or more of methamphetamine.” In particular, Mr.
Rodriguez-Dimas admitted that, on or about January 19, 2007, he stored “between 5
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and 10 pounds of methamphetamine” at his residence until the drugs were loaded in a
vehicle to be transported by another person.
According to Mr. Rodriguez-Dimas’s presentence report (PSR), the offense
involved 4.9 kilograms of actual methamphetamine, yielding a base offense level of
38. With a two-level safety-valve reduction and a three-level reduction for
acceptance of responsibility, the total offense level decreased to 33. In addition, Mr.
Rodriguez-Dimas was placed in criminal-history category I. These calculations
resulted in a guidelines sentencing range of 135 to 168 months. On August 23, 2007,
the district court sentenced Mr. Rodriguez-Dimas to 135 months’ imprisonment and
24 months’ supervised release.
On March 11, 2015, Mr. Rodriguez-Dimas filed a motion for sentence
reduction under 18 U.S.C. § 3582(c)(2). Mr. Rodriguez-Dimas argued that, in 2014,
the United States Sentencing Commission amended the Sentencing Guidelines
applicable to drug trafficking offenses, and the amendment retroactively applied to
his case such that he “is likely eligible to file a motion for reduction of sentence.”
The district court denied the motion, concluding that even with the amendment “there
is no change in [Mr. Rodriguez-Dimas’s] guidelines since the time of sentencing.”
Mr. Rodriguez-Dimas now appeals.
2
II. DISCUSSION
We review the district court’s denial of a sentence-reduction motion for abuse
of discretion. United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008).
Although “[f]ederal courts generally lack jurisdiction to modify a term of
imprisonment once it has been imposed. . . . a district court may modify a sentence
when it is statutorily authorized to do so.” United States v. Graham, 704 F.3d 1275,
1277 (10th Cir. 2013) (citation omitted). In particular, 18 U.S.C. § 3582(c)(2) permits
a sentence modification “in the case of a defendant who has been sentenced to a term
of imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission . . . , if such reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” See also Dillon v. United
States, 560 U.S. 817, 821 (2010) (stating that retroactive amendments may warrant a
sentence reduction, but “[a]ny reduction must be consistent with applicable policy
statements issued by the Sentencing Commission”). Relevant here, the Sentencing
Commission issued a policy statement explaining that “[a] reduction in the
defendant’s term of imprisonment is not consistent with this policy statement and
therefore is not authorized under 18 U.S.C. § 3582(c)(2) if” the applicable
amendment “does not have the effect of lowering the defendant’s applicable
guideline range.” See U.S. Sentencing Guidelines Manual § 1B1.10(a)(2)(B).
Mr. Rodriguez-Dimas relies on Sentencing Guidelines Amendment 782—
effective November 1, 2014, and made retroactive by U.S.S.G. § 1B1.10(d)—which
decreased base offense levels for certain drug offenses. U.S. Sentencing Guidelines
3
Manual supp. app. C (U.S. Sentencing Comm’n 2014). Mr. Rodriguez-Dimas asserts
that the change in base offense levels warrants a sentence reduction in his case. But,
as the district court recognized, Amendment 782 did not lower the base offense level
for offenses involving 4.5 kilograms or more of actual methamphetamine. At the time
of Mr. Rodriguez-Dimas’s sentencing, offenses involving 1.5 kilograms or more of
actual methamphetamine received a base offense level of 38. See id. After
Amendment 782, the base offense level for 1.5 kilograms or more of actual
methamphetamine was lowered to 36, but the Sentencing Commission added a
provision retaining a base offense level of 38 for offenses involving 4.5 kilograms or
more of actual methamphetamine. Id. Because Mr. Rodriguez-Dimas pled guilty to
possession of 4.9 kilograms of methamphetamine, Amendment 782 did not lower his
base offense level. And Amendment 782 did not affect Mr. Rodriguez-Dimas’s
criminal history category or the reductions he received at sentencing. See U.S.
Sentencing Guidelines Manual § 1B1.10 cmt. n. 2. With a criminal history category
of I and total offense level of 33, Mr. Rodriguez-Dimas’s post-Amendment 782
guideline range also remained unchanged at 135 to 168 months. Accordingly, Mr.
Rodriguez-Dimas was not eligible for a sentence reduction under § 3582(c)(2).
Mr. Rodriguez-Dimas also argues that, when the district court decided his
§ 3582 motion, it was required to re-weigh the factors listed in 18 U.S.C. § 3553(a).
But, under § 3582, a district court may not consider the § 3553(a) factors unless it
first determines the defendant is eligible for a sentence reduction. Dillon, 560 U.S. at
826–27. Because Mr. Rodriguez-Dimas was ineligible for a sentence reduction, the
4
district court did not abuse its discretion when it decided Mr. Rodriguez-Dimas’s
motion without balancing anew the § 3553(a) factors.
Finally, Mr. Rodriguez-Dimas asserts that the district court’s decision cannot
stand under Kimbrough v. United States, 552 U.S. 85 (2007) (holding that district
court could vary from the guidelines’ treatment of every gram of crack cocaine as the
equivalent of 100 grams of powder cocaine in the drug quantity tables, in order to
impose a sentence in line with § 3553(a)(2)’s overarching goals). Because this
argument also relates to the district court’s failure to reconsider the § 3553(a) factors,
it fails for the reasons explained above. Moreover, we have previously rejected the
argument that Kimbrough provides an independent basis for a sentence reduction. See
Sharkey, 543 F.3d at 1239 (“Kimbrough is . . . not a basis for relief under
§ 3582(c)(2), which permits a reduction in sentence only if consistent with
Sentencing Commission policy statements.”).
Our conclusion that Mr. Rodriguez-Dimas was ineligible for a sentence
reduction under § 3582(c)(2) is also fatal to the court’s subject matter jurisdiction to
entertain his motion. “A district court does not have inherent authority to modify a
previously imposed sentence; it may do so only pursuant to statutory authorization.”
United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997). Because Mr.
Rodriguez did not bring his claim for a reduction in sentence as a direct appeal or a
collateral attack under 28 U.S.C. § 2255, the district court’s jurisdiction over the
motion must be found, if at all, in § 3582(c)(2). See United States v. Trujeque, 100
F.3d 869, 870 (10th Cir. 1996). As a result, we affirm the district court’s analysis but
5
correct the ultimate disposition. Because the district court lacked jurisdiction, it
retained only the power to dismiss for lack of jurisdiction.
III. CONCLUSION
Because Amendment 782 does not change Mr. Rodriguez-Dimas’s guidelines
range, the district court did not abuse its discretion in concluding he was ineligible
for a sentence reduction under § 3582(c)(2). But upon reaching this conclusion, the
district court should have dismissed the motion for lack of subject matter jurisdiction.
See United States v. White, 765 F.3d 1240, 1250 (10th Cir. 2014). We therefore
VACATE the order denying Mr. Rodriguez-Dimas’s motion and REMAND with
instructions to dismiss the motion for lack of jurisdiction.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
6 | 01-03-2023 | 06-07-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3208849/ | Supreme Court
No. 2015-259-Appeal.
(NC 07-243)
Joseph Hall et al. :
v. :
City of Newport et al. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2015-259-Appeal.
(NC 07-243)
Joseph Hall et al. :
v. :
City of Newport et al. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. The plaintiffs, Joseph Hall, his wife, Marilyn Hall,
and their children, Jacob and Philomena Hall (the Halls), appeal from the April 16, 2015 entry of
partial final judgment (entered pursuant to Rule 54(b) of the Superior Court Rules of Civil
Procedure) in favor of the defendant, Rhode Island Public Transit Authority (RIPTA),1 in
Newport County Superior Court. The partial final judgment was entered as a result of the
Superior Court’s granting of the defendant’s motion for summary judgment. This case came
before the Supreme Court pursuant to an order directing the parties to appear and show cause
why the issues raised in this appeal should not be summarily decided. After a close review of the
record and careful consideration of the parties’ arguments (both written and oral), we are
satisfied that cause has not been shown and that this appeal may be decided at this time.
For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.
1
There are numerous defendants in this case; for the purposes of this appeal we are
concerned only with the claim brought by the Halls against RIPTA.
-1-
I
Facts and Travel
According to plaintiffs’ first amended complaint, in March of 2003, Leon Budlong, a bus
driver in RIPTA’s employ, claimed that he was assaulted while on his Ruggles Avenue bus
route. Over a year after the assault, Mr. Budlong identified Mr. Hall as his attacker for the first
time. Mr. Hall was ultimately acquitted by a jury in the Newport County Superior Court after
appealing thereto for a de novo trial following his conviction in District Court. According to the
first amended complaint in the instant case, Mr. Budlong’s bus route went by the Halls’ home on
Ruggles Avenue in Newport “some thirty-two * * * times each day.” Mr. Budlong was assigned
to that bus route during all times pertinent to this case. The plaintiffs alleged, in their first
amended complaint, that Mr. Budlong “embarked on a pattern of harassment of the Halls” in
2004, after identifying Mr. Hall as his alleged attacker.
The plaintiffs’ attorney sent two letters to RIPTA informing them of the alleged
harassment by Mr. Budlong—one letter being dated September 22, 2005 and the second letter
being dated November 14, 2005. In his first letter, the Halls’ attorney stated the following:
“One of your trolley drivers, Leon Budlong has engaged in
a long series of harassing actions against my clients. My clients
have had to resort to the Superior Court to obtain a restraining
order against Mr. Budlong, which remains in effect.[2]
“After an extended absence, Mr. Budlong returned to the
route which includes Ruggles Avenue on September 1, 2005 and
his harassment of the Halls has escalated.
2
On July 7, 2005, in a separate civil action, a Superior Court justice granted the Halls a
temporary restraining order against Mr. Budlong. On December 7, 2005, the Superior Court then
issued a preliminary injunction ordering mutual restraining orders against Mr. Budlong and the
Halls. That preliminary injunction specifically stated: “These proceedings do not resolve the
case * * * neither the Court nor either party, respectively, having ordered or requested that the
hearing be consolidated with a trial on the merits.”
-2-
“This all culminated on Saturday, September 17, 2005
when Mr. Budlong drove his trolley bus up to the Halls’ residence,
stopped, and took a picture of Mrs. Hall in her yard.
“The Halls have had it with Mr. Budlong and demand that
you remove him from this route to prevent any further harassment
of them by Mr. Budlong, which would have serious implications
for RIPTA.”
After no response was received, Mrs. Hall herself then sent a letter to RIPTA (the third written
communication to that entity) on November 28, 2005. In that letter she stated that she was “in
fear” for her children, herself, and her husband. She added that Mr. Budlong had “devastated our
family by his aggravated, out-of-control harassments.” RIPTA’s response came on December 9,
2005. It stated that RIPTA had investigated the matter, and then it provided as follows:
“You have indicated that you would like RIPTA to change
Mr. Budlong’s route. Please be advised that routes are assigned to
drivers pursuant to a detailed process set forth in the collective
bargaining agreement between RIPTA and the Amalgamated
Transit Union.
“Again, it appears from what we have learned of this matter
that this is a private dispute. Furthermore, while you state in your
letter that you are in fear for yourself, your husband, and your
children, RIPTA considers this to be a police matter, and if at any
time you fear for your safety or that of your family, I urge you to
contact the police.
“Finally, if you have specific complaints about what Mr.
Budlong may be doing while he is driving for RIPTA, I urge you
to write to us again.”
On May 23, 2007, plaintiffs filed the instant action in the Superior Court as a result of
Mr. Budlong’s alleged harassment of them. (The complaint contained other counts addressing
the alleged actions and/or inactions of other defendants.) In plaintiffs’ first amended complaint,
they included one count against RIPTA, alleging a “[f]ailure to [p]roperly [c]ontrol [d]efendant
Budlong.” The first amended complaint specifically stated that RIPTA had “received complaints
from the Halls about the conduct of their employee, [d]efendant Leon Budlong, explaining his
conduct and repeatedly requesting that he be removed from his route” and that RIPTA had
-3-
“failed to take appropriate action in preventing, discouraging or reprimanding [d]efendant
Budlong.” The first amended complaint further alleged that RIPTA’s failure to control and
supervise constituted negligence because RIPTA had a duty to prevent Mr. Budlong from
harassing the Halls; the Halls further alleged that RIPTA breached that duty, which breach was
the proximate cause of the Halls’ injuries.
Summary Judgment
On October 24, 2014, RIPTA filed a motion for summary judgment, asserting that the
Halls failed to show that Mr. Budlong was an “incompetent or unfit bus driver” and failed to
offer any evidence showing that any negligence on the part of RIPTA proximately caused
physical injury or any compensable injury to the Halls. The plaintiffs objected in writing to
RIPTA’s motion for summary judgment, alleging that there were numerous issues of material
fact in the case.
Attached to plaintiffs’ objection to RIPTA’s motion for summary judgment were
affidavits from each plaintiff. In his affidavit, Joseph Hall stated that Mr. Budlong: (1) drove by
him and rang the trolley bell at him; (2) ripped down reward posters that the Halls had put up in
an attempt to find the person who had committed the attack on Mr. Budlong of which Mr. Hall
was accused; (3) had his wife call Mrs. Hall on the telephone pretending to be a witness to Mr.
Hall’s purported attack on Mr. Budlong; (4) harassed Mr. Hall and his family since “May 23,
2004;” (5) stopped in front of the Halls’ home; (6) “c[a]me at [them] with [their] children in
[their] vehicles to scare them;” (7) “cut off” the Halls’ vehicle and then “stalked” them; (8) tried
to “run [Mr. Hall] and [his wife] off East Main Road;” (9) blocked the Halls’ driveway with his
vehicle; (10) drove a RIPTA bus “straight at” the Halls’ daughter as she drove behind Rogers
High School, forcing her “up onto the sidewalk” and then laughing at her; (11) drove by the
-4-
Halls’ residence and gave them “intimidating stares;” (12) “swerved at” Mr. Hall’s truck with his
trolley; (13) drove a RIPTA vehicle right through “a stop sign on Ruggles Ave. onto Bellevue
Ave.” at the Halls in their truck; and (14) stopped his RIPTA bus by the Halls, who were walking
to church, making “masturbation motions” at them. Mrs. Hall’s affidavit provided more detail
and set forth even more incidents of harassment than had her husband’s affidavit. However, the
incidents Mrs. Hall referenced are similar in nature to those described by her husband. Mrs. Hall
did allege in her affidavit that Mr. Budlong intentionally inflicted emotional distress on her and
her family members, causing them to “lose sleep.” Additionally, the affidavits of Philomena and
Jacob Hall set forth allegations of similar incidents of harassment by Mr. Budlong.
On April 6, 2015, a hearing was held on RIPTA’s motion for summary judgment.
Numerous exhibits were entered into the record; those exhibits included the two letters to RIPTA
from the Halls’ attorney, the letter from Mrs. Hall to RIPTA, and the written response by RIPTA,
as well as the affidavits from the four plaintiffs. At that hearing, the hearing justice granted
RIPTA’s motion for summary judgment. Partial final judgment was entered on April 16, 2015
pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure. The plaintiffs then filed a
timely notice of appeal.
II
Standard of Review
As we have repeatedly stated, this Court reviews the grant of summary judgement in a de
novo manner. Shine v. Moreau, 119 A.3d 1, 7 (R.I. 2015); see DeMarco v. Travelers Insurance
Co., 26 A.3d 585, 605 (R.I. 2011); Tanner v. Town Council of East Greenwich, 880 A.2d 784,
791 (R.I. 2005). It is our practice to “review the pleadings, affidavits, admissions, answers to
interrogatories, and other appropriate evidence in the light most favorable to the nonmoving
-5-
party.” Aetna Casualty & Surety Co. v. Vierra, 619 A.2d 436, 437 (R.I. 1993). After that
review, if we conclude “that there is no genuine issue of material fact to be decided and that the
moving party is entitled to judgment as a matter of law, we will affirm the grant of summary
judgment.” Peerless Insurance Co. v. Luppe, 118 A.3d 500, 505 (R.I. 2015) (internal quotation
marks omitted); see also Shine, 119 A.3d at 8. We remain mindful of the fact that “[s]ummary
judgment is an extreme remedy that should be applied cautiously.” Ferris Avenue Realty, LLC
v. Huhtamaki, Inc., 110 A.3d 267, 279 (R.I. 2015) (internal quotation marks omitted).
It is the party opposing summary judgment that “bears the burden of proving, by
competent evidence, the existence of facts in dispute.” Jessup & Conroy, P.C. v. Seguin, 46
A.3d 835, 838 (R.I. 2012) (internal quotation marks omitted); see also Higgins v. Rhode Island
Hospital, 35 A.3d 919, 922 (R.I. 2012). That party must, “by affidavits or otherwise * * * set
forth specific facts showing that there is a genuine issue of material fact * * *.” Jessup &
Conroy, P.C., 46 A.3d at 839 (emphasis in original) (internal quotation marks omitted); see also
Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998).
III
Analysis
A
The Halls’ Negligence Claim
RIPTA counters the Halls’ contention on appeal that RIPTA’s motion for summary
judgment should have been denied, by positing that summary judgment was appropriate in the
instant case because RIPTA did not owe a duty to the Halls, no actionable incident took place,
and the Halls did not suffer any actual injury or damages. RIPTA states that none of the exhibits
which the Halls submitted in support of their objection to RIPTA’s motion for summary
-6-
judgment support their claim against RIPTA and RIPTA adds that the Halls may not rely solely
on their pleadings.
In order to “maintain a claim for negligence, a plaintiff must establish a legally
cognizable duty owed by a defendant to a plaintiff, a breach of that duty, proximate causation
between the conduct and the resulting injury, and the actual loss or damage.” Wyso v. Full
Moon Tide, LLC, 78 A.3d 747, 750 (R.I. 2013) (internal quotation marks omitted); see Medeiros
v. Sitrin, 984 A.2d 620, 625 (R.I. 2009); see also Splendorio v. Bilray Demolition Co., 682 A.2d
461, 466 (R.I. 1996). We shall address each of those requirements in turn.
1. Duty
The Halls contend that RIPTA owed them a duty to not supervise its employee in a
negligent manner. RIPTA claims it owed no duty to the Halls because the letters it received
from the Halls and the Halls’ attorney generalized the harassment and did not put RIPTA on
notice of any of the specific allegations against Mr. Budlong, including that Mr. Budlong used a
RIPTA vehicle in a dangerous manner so as to harass the Halls. The hearing justice did not
make any specific finding with respect to whether or not RIPTA owed a duty to the Halls.
Whether or not a duty exists is a question of law. Wyso, 78 A.3d at 750; see also Brown
v. Stanley, 84 A.3d 1157, 1162 (R.I. 2014); Ouch v. Khea, 963 A.2d 630, 633 (R.I. 2009). In our
opinion in Welsh Manufacturing, Division of Textron, Inc. v. Pinkerton’s, Inc., 474 A.2d 436,
438, 441, 443 (R.I. 1984), we recognized the existence of a cause of action against an employer
for negligent supervision, and we stated that we were recognizing “the direct liability of an
employer to third parties who are injured by acts of unfit, incompetent, or unsuitable
employees.” See also Rivers v. Poisson, 761 A.2d 232, 235 (R.I. 2000) (stating that in Welsh we
“recognized the viability of a cause of action against an employer for the negligent retention
-7-
and/or supervision of an employee when a third party is injured by the acts of unfit or
incompetent employees”). The employer has a duty to “exercise reasonable care” in supervising
an employee; whether the degree of care is reasonable in a particular case depends upon “the risk
of harm inherent in the employment—[t]he greater the risk of harm, the higher degree of care
necessary * * *.” Id. at 235 (internal quotation marks omitted).3
In the instant case, the letters sent by the Halls and their attorney to RIPTA put it on
notice that there was a conflict between one of its employees and the Halls and that there was a
repeated claim of harassing behavior on the part of Mr. Budlong. Accordingly, it is our
judgment that RIPTA had a duty to exercise reasonable care in conducting a full investigation,
which should have included obtaining more specific information from the Halls—and, if their
claims were meritorious, then taking appropriate action to ensure that its employee was not
harassing the Halls. Thus, we do not find RIPTA’s contention that it did not have a duty in the
instant case to be availing.
2. Breach, Proximate Cause, and Damages
In addressing the remaining three elements of a negligence claim, we keep in mind that
they are fact-based and that the “[trial] justice may treat the issue of negligence as a matter of
law only if the facts suggest only one reasonable inference.” Berard v. HCP, Inc., 64 A.3d 1215,
1218 (R.I. 2013) (internal quotation marks omitted). We also bear in mind our repeated
admonition that “complaints sounding in negligence generally are not amenable to summary
3
In our opinion in Rivers v. Poisson, 761 A.2d 232, 235-36 (R.I. 2000), we concluded that
summary judgment for the employer was appropriate in a situation where an employer was
alleged to have negligently supervised its employee who was making harassing phone calls while
at work. However, crucial to our holding was the fact that the employer was not aware of the
telephone calls until after they had stopped and the fact that the nature of the employee’s job as a
janitor did not require any heightened degree of supervision. Id. at 235. Thus, Rivers is
factually distinguishable from the instant case, in which RIPTA had repeatedly been put on
notice of Mr. Budlong’s alleged actions.
-8-
judgment and should be resolved by a fact finding at the trial court * * *.” Id.; see Wyso, 78
A.3d at 750 (“[W]e have frowned upon the disposition of negligence claims by summary
judgment * * *.”); see also DeMaio v. Ciccone, 59 A.3d 125, 130 (R.I. 2013) (“[T]his Court has
recognized that issues of negligence are ordinarily not susceptible of summary adjudication, but
should be resolved by trial in the ordinary manner.”) (internal quotation marks omitted).
The hearing justice, in making his decision on RIPTA’s motion for summary judgment,
failed to take into account any of the numerous exhibits and affidavits which the Halls had filed
with their objection to the motion for summary judgment.4 Our review of those exhibits and
affidavits leads us to the inescapable conclusion that the Halls have borne their burden of
proving by competent evidence the existence of issues of material fact with respect to whether or
not there was a breach of duty and whether or not that breach proximately caused an injury to
members of the Hall family.
RIPTA’s December 9, 2005 letter to the Halls reflects the fact that RIPTA was aware of a
conflict between the Halls and Mr. Budlong, but it nevertheless took no further action in the
matter and simply urged the Halls to “contact the police.” That letter is evidence on the basis of
which a reasonable fact-finder could determine that RIPTA breached its duty to the Halls. In
addition, the several affidavits filed by the Halls detailing the numerous incidents of harassment
that they allegedly suffered at the hands of Mr. Budlong over a long period of time while he was
employed by RIPTA and driving the bus route past their residence constitute evidence of the
“red flag” variety that genuine issues of material fact remained to be decided. See Peerless
Insurance Co., 118 A.3d at 505. A trier of fact would eventually be required to make a
4
The Halls point out, in their filings before this Court, that the hearing justice focused
much of his discussion at the hearing on the length of time during which this case has been
pending. We note that, while we share the hearing justice’s concern about the duration of this
case, that fact should not affect an analysis of a motion for summary judgment.
-9-
determination as to the credibility of the Halls and other witnesses, and we express no view as to
what the outcome of that credibility-assessing process will be. For our present purposes,
however, the key point is that that determination must be made by a fact-finder in the first
instance. See Estate of Giuliano v. Giuliano, 949 A.2d 386, 393-95 (R.I. 2008).
With respect to damages, RIPTA claims that no evidence of any injury exists. However,
Mrs. Hall’s affidavit contains a statement reflecting the fact that Mr. Budlong’s actions caused
her family members emotional distress, which emotional distress she asserts caused them to
“lose sleep.” Once again, if a fact-finder found Mrs. Hall to be credible, then the requirements of
proximate cause and actual damage would be met. Thus, the issues of proximate cause and of
damages cannot be resolved on a motion for summary judgment in the instant case.
It is our conclusion that the Halls adequately supported their objection to the motion for
summary judgment with exhibits and affidavits. See Jessup & Conroy, P.C., 46 A.3d at 838-39.
When that evidence is reviewed in the light most favorable to the Halls, it is clear that granting
summary judgment on this necessarily fact-intensive claim of negligence was inappropriate.5
See Peerless Insurance Co., 118 A.3d at 505; see also Berard, 64 A.3d at 1218.
B
RIPTA’s Additional Contentions on Appeal
RIPTA makes two additional arguments which we deem it prudent to briefly address.
RIPTA argues that the Halls’ case against it is barred by the doctrine of collateral estoppel. With
respect to the doctrine of collateral estoppel, we have stated the following: “It is axiomatic that in
order for collateral estoppel to apply, there must be an identity of issues; the prior proceeding
5
In their filings before this Court, the Halls make an additional argument to the effect that
the hearing justice inappropriately made credibility determinations during his decision on
RIPTA’s motion for summary judgment. We note that our review of the transcript does not
reveal any findings of credibility.
- 10 -
must have resulted in a final judgment on the merits; and the party against whom collateral
estoppel is sought must be the same as or in privity with the party in the prior proceeding.”
Commercial Union Insurance Co. v. Pelchat, 727 A.2d 676, 680 (R.I. 1999) (internal quotation
marks omitted). RIPTA bases its contention that the Halls’ action against it is barred by
collateral estoppel on an order with respect to a preliminary injunction which was entered by the
Superior Court on December 7, 2005. That order states: “These proceedings do not resolve the
case * * * , neither the Court nor either party, respectively, having ordered or requested that the
hearing be consolidated with a trial on the merits.” Thus, by its own terms, the order is not a
final judgment. As such, RIPTA’s collateral estoppel argument is without merit.
In addition, RIPTA makes much of the fact that, in their first amended complaint, the
Halls allege that RIPTA failed to “[p]roperly [c]ontrol” Mr. Budlong, whereas on appeal the
Halls focus on their claim of negligent infliction of emotional distress. RIPTA contends that,
due to that fact, the Halls have waived any argument on appeal with respect to RIPTA’s failure
to “properly control” claim. We are of the opinion that RIPTA’s argument elevates form over
substance. Regardless of the title which the Halls put on their claim, the basis of the claim
remains the same: the Halls allege that RIPTA acted in a negligent manner when it failed to
properly supervise Mr. Budlong and that that failure proximately caused them emotional harm.
As such, we do not perceive any waiver on the part of the Halls.
Accordingly, we hold that the hearing justice erred when he granted RIPTA’s motion for
summary judgment in view of the fact that unresolved material issues of fact still exist in this
case and those issues must be resolved by a fact-finder.
- 11 -
IV
Conclusion
For the reasons stated in this opinion, we vacate the judgment of the Superior Court. We
remand the record to that tribunal.
- 12 -
RHODE ISLAND SUPREME COURT CLERK’S
OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Joseph Hall et al. v. City of Newport et al.
CASE NO: No. 2015-259-Appeal.
(NC 07-243)
COURT: Supreme Court
DATE OPINION FILED: June 2, 2016
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice William P. Robinson
SOURCE OF APPEAL: Newport County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Walter R. Stone
ATTORNEYS ON APPEAL:
For Plaintiffs: Sol Cohen, Pro Hac Vice
Gordon P. Cleary, Esq.
For Defendants: Lori C. Silveira, Esq.
Kenneth M. Sambour, Esq.
Marc Desisto, Esq. | 01-03-2023 | 06-02-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427357/ | This is an appeal from an order appointing a receiver for the appellant pendente lite. The appellee's complaint in substance alleged that appellee, a resident of West Virginia, had been induced *Page 385
by fraudulent representations, contained in newspaper advertisements circulated in West Virginia, to enter into a contract for training in appellant's school of beauty culture, and prayed damages by reason of the alleged fraud. Subsequent to the filing of the petition for the appointment of a receiver the appellee filed a second paragraph of complaint alleging the same fraud and praying a recission of the contract.
Pending the action, the appellee filed her petition for appointment of a receiver, which alleged in substance the assets and property of the appellant are in immediate danger of being "wasted and depleted on account of":
(1) Other suits alleging fraud which aggregate claims exceeded $15,000;
(2) Defendant's school did not meet the requirements of the State of West Virginia for the training of students, although defendant advertised its students could qualify in West Virginia, which created other claims for fraud for which suit was imminent;
(3) Defendant had preferred other creditors by way of settlement;
(4) ". . . that defendant has no real estate or fixed assets to which plaintiff might resort to satisfy her claim but that defendant's only value is in its current receipts and the existence of possible assets not returned for taxation on the tax records. Defendant's business has value only as a going concern properly operated and accurately advertised.
"Continuance of defendant's business operations as alleged will serve to create additional causes of action which will further deplete the value of defendant's assets.
"Affiant further says that if a receiver is not presently appointed to conserve the assets of defendants *Page 386
and preserve its going concern value plaintiff will be irreparably damaged in that said assets will be wasted or misappropriated."
At the hearing for the appointment of a receiver, after notice had been given appellant, all of the evidence was documentary and consisted of affidavits introduced by the appellee, which included a verified copy of testimony and exhibits introduced in another cause entitled, Dorothy B. Price v. Royal Academy ofBeauty Culture and Royal Beauty Shop, Inc., in the Marion Circuit Court.
It is to be noted that in the appellee's application for appointment of receiver there is no allegation that the corporation, "has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights," which is the fifth cause for the appointment of a receiver under § 3-2601 Burns' 1946 Replacement (Acts 1881 (Spec. Sess.), ch. 38, § 245, p. 240). Nor does the evidence viewed most favorably to the appellee prove the appellant was insolvent or in imminent danger of insolvency. The evidence did show that the corporation had no tangible assets, but that it was a going concern with approximately ninety (90) students enrolled, that it owed no outstanding obligations other than weekly current bills, which were discounted, and that it had the sum of approximately $50,000 in securities.
It must be borne in mind that there was no duty upon the appellant to prove that it was solvent, but when such questions are before the court it is the duty of the proponent to 1, 2. prove that the corporation is insolvent or in imminent danger of insolvency. The evidence clearly failed to prove insolvency. United States v. Anderson Co. (1941), 119 F.2d 343, 345; Garvin, Rec. v. Chadwick Realty Corp. *Page 387
(1937), 212 Ind. 499, 507, 9 N.E.2d 268; Chicago, etc., R. Co.
v. Kenney (1902), 159 Ind. 72, 80, 62 N.E. 26, 28. In the latter case (p. 80) the court said:
". . . Insolvency is the state of a person who is unable to pay his debts as they fall due in the usual course of trade or business. 11 Ency. Pl.
3, 4. Pr., 3. An excess of assets over liabilities does not of itself render the debtor solvent. The assets may not be readily convertible into money and, notwithstanding their supposed value, the debtor may not be able to pay the claims against him as they become due."
In determining whether a debtor is unable to meet its obligations, the court should allow for reasonable use of the debtor's credit. United States v. Anderson Co., supra; 15A Fletcher, Cyc. Corp. § 7360, pp. 10, 11 (Perm. ed.).
The appellee insists that the trial court had an inherent equitable right to appoint the receiver in this proceeding. Clause 7 of § 3-2601 Burns' 1946 Replacement does provide a 5. receiver may be appointed, "in such other cases as may be provided by law; or where, in the discretion of the court, or the judge thereof in vacation, it may be necessary to secure ample justice to the parties."
In Mead v. Burk (1901), 156 Ind. 577, 581, 582, 60 N.E. 338, the court construed this clause as follows:
". . . This last provision is certainly comprehensive and somewhat sweeping in its character. Under its authority a receiver may be appointed in any case in which, according to the established rules of equity, the appointment may be necessary `to secure ample justice to the parties' without regard to the form or character of the principal action. Hellebush v. Blake, 119 Ind. 349; Connelly v. Dickson, 76 Ind. 440; Wayne Pike Co. v. Hammons, 129 Ind. 368; Goshen, etc. Co. v. City Nat. Bank, 150 Ind. 279." *Page 388
See also Sheridan Brick Works v. Marion Trust Co. (1901),157 Ind. 292, 61 N.E. 666, 87 Am. St. 207. But under the general equitable powers of the court we fail to find any authority that an individual, not a stockholder nor a lienholder, asserting an unliquidated claim for damages by reason of an alleged tort, may have a receiver appointed for a corporation before his claim is reduced to judgment. In Slover v. Coal Co. (1904), 113 Tenn. 421, 82 S.W. 1131, 106 Am. St. 851, 68 L.R.A. 852, the bill alleged that as a result of an explosion caused by the negligence of the corporation, 180 people were killed in its mine, and that 150 suits had been filed praying damages in the aggregate amount in excess of $1,000,000, which was more than all the assets of the company, that the company was continuing to mine coal in a wasteful manner and paying dividends to stockholders in order to avoid the satisfaction of any judgments that might be recovered. The court reasoned (pp. 444, 445):
"Thus it appears that, while there are some exceptions, both as respects corporations and the estates of private individuals, to the rule that the appointment of a receiver in equity is merely auxiliary to a pending litigation, and that such action may occasionally be the object of the suit itself, and that as to corporations the power may, under some peculiar states of fact, be invoked in behalf of creditors, yet such creditors must generally be judgment or lien creditors (Wallace v. Pierce-Wallace Pub. Co. (Iowa), 70 N.W., 216, 38 L.R.A., 122, 63 Am. St. Rep., 389; Union Mut. L. Ins. Co. v. Union Mills Plaster Co. (C.C.), 37 Fed., 286, 3 L.R.A., 90, 94; 5 Thomps., Corp., sec. 6839), or at least creditors by contract (5 Thompson on Corp., sec. 6840; 2 Morawetz, Corp., secs. 797, 860). We know of no authority, and have not been able to discover any, in which the power has been invoked in behalf of persons suing in tort, to the end that the property of a corporation may be held and managed by a receiver in a court *Page 389
of chancery to await the decision of such actions to prevent waste of the corporate property in the meantime, with a view to having it ready to turn over in satisfaction of such judgments as may be obtained in such action at law. Nor do we think, on principle, that the power of the court to appoint receivers should be or could be directed to such use. And it is certainly true that the danger of waste would have to be made to appear very clearly, and shown to be imminent, before the court would in any case, in behalf of contract creditors even, be justified in taking the management of a presently solvent, going, concern out of the hands of the directors and managers chosen by its stockholders, and in placing it in the control of a receiver of the court."
If courts of equity were to extend the extraordinary and drastic remedy of a receiver in cases where corporations are subject to many suits for tort, the door would be open to gross abuse, and an easy avenue established for the destruction of corporate enterprise. It is not necessary in this case to determine when, if ever, the owner of an unsecured tort claim may be in a position to invoke the aid of equity for the appointment of a receiver, but we do hold that he has no such right before his claim is reduced to final judgment.
The order and judgment appointing a receiver pendente lite is reversed.
NOTE. — Reported in 78 N.E.2d 32. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427358/ | ON PETITION FOR REHEARING
The appellee's petition for rehearing asserts the court erred in interpreting the effect of Clause 7 of § 3-2601, Burns' 1946 Replacement, as to a tort claimant being entitled to the 6. appointment of a receiver, and her briefs allege *Page 390
that the opinion in this appeal is in conflict withRatcliff v. Ratcliff (1942), 219 Ind. 429, 39 N.E.2d 435;West v. Reeves (1934), 207 Ind. 404, 190 N.E. 431,193 N.E. 375; Sallee v. Soules (1907), 168 Ind. 624, 81 N.E. 587. Of course the language in the opinion on this appeal must be construed in connection with the facts decided. Bryson v.Crown Oil Co. (1916), 185 Ind. 156, 112 N.E. 1; Royal Ins.Co. v. Stewart (1921), 190 Ind. 444, 129 N.E. 853.
In Ratcliff v. Ratcliff, supra, the action was to cancel and annul deeds for certain real estate, and for an accounting of the rents and profits. Two of the reasons for the cancellation were that the deeds were obtained by fraud and undue influence. It is to be noted that the action was in equity for the recovery of certain specific property in which the proponent alleged a present existing equitable interest. But neither the first nor second paragraph of the appellee Betty Wallace's complaint alleged any present existing or probable interest in any particular or specific property, either real or personal.
In West v. Reeves, supra, the action was brought by a creditor against a partnership which was alleged to be insolvent. In this case the appellee, Betty Wallace, was not a creditor and she did not allege or prove that the appellant corporation was insolvent, or in imminent danger of insolvency. The proof did show the corporation was solvent and discounting bills.
In Sallee v. Soules, supra, the action was to rescind the endorsements and delivery, and recover the possession of certain specific notes alleged to have been obtained from the decedent by the fraud of an insolvent holder, who was threatening to collect the notes and convert the proceeds to her own use. This alleged *Page 391
a present existing interest in certain specific personal property which is not the case in the present appeal.
The second paragraph of appellee's complaint for rescission of the contract did not seek the return of any specific money or funds, or to establish a constructive trust upon any particular money, property or funds, or show that she had any lien or probable existing interest in any particular property of the appellant corporation, nor did it charge that the corporation was insolvent or in imminent danger of insolvency so that a receiver would be necessary to protect the equitable rights of the appellee.
The first paragraph merely asserted an unliquidated claim for damages by reason of an alleged fraud. There is no allegation that the appellee was a creditor, stockholder, a lienholder 7. or had any present existing property right or interest or any probable right or interest in any of the property, funds or assets of the appellant corporation. The appellee has not cited any authority, nor are we advised of any authority, which justifies the appointment of a receiver under the general equity powers of the trial court under Clause 7 of § 3-2601, Burns' 1946 Replacement, where the proponent's only interest is an alleged unliquidated claim for damages for fraud.
The petition for rehearing is overruled.
NOTE. — Reported in 81 N.E.2d 534. *Page 392 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427359/ | Parker Rust Proof Company, a Michigan corporation, and certain individuals, hereinafter referred to as sellers, and appellees entered into a written contract of sale of all the outstanding stock in Parker Rust Proof Company of Indiana, Inc., an Indiana corporation. The contract showed that said sellers had sold said stock to appellees for $6,000.00; that appellees were to pay $2,000.00 cash, and to execute two notes for $2,000.00 each, due in ninety days and one hundred eighty days, respectively; that said cash, notes, and all of said stock, except three shares, which had theretofore been delivered to appellees as qualifying shares, had been delivered to appellant as trustee to hold until said notes were fully paid and in that event to deliver said stock to appellees. Said contract further showed that management and control of the Indiana *Page 354
corporation was entrusted to appellees pending the payment of said notes.
The contract also provided that in case of default in the payment of either of said notes when due, the agreement should "be cancelled without notice and all payments made by said Purchaser to said Trustee shall be held by said Trustee as liquidated damages sustained by said stockholders (sellers) by reason of non-performance by said Purchaser . . ."
Appellees failed to pay either of said notes when due.
Appellant filed suit on the two notes. The complaint was in two paragraphs, one for each note, and in a usual form of complaint on promissory notes.
Appellees filed an answer in two paragraphs, the first being a general denial. Appellant filed a reply in two paragraphs to the second paragraph of answer, and thereafter appellees filed an amended second paragraph of answer.
The amended second paragraph of answer alleged that the notes were executed in conjunction with said contract of sale, that appellant was made a party to the contract "to act in the enforcement of said agreement . . .; that said agreement did contain a stipulation that in the event of the failure of defendants to pay the notes sued upon in plaintiff's complaint, that defendants were to forfeit all interest and title to the capital stock of the Parker Rust Proof Company in fullsettlement and liquidation of any and all claims and demands ofthe said Parker Rust Proof Company and for the plaintiff WillardM. Cornelius, Trustee, against defendants." (Our italics.)
Said agreement was incorporated into said amended second paragraph of answer.
Appellant did not file a reply.
The cause was submitted to the court for trial without *Page 355
a jury, and the court found for appellees, and rendered judgment accordingly, whereupon appellant filed a motion for new trial, which motion was overruled, and appellant perfected this appeal, assigning the court's ruling on said motion as the sole error relied upon for reversal.
Appellees did not discuss the merits of this appeal in their brief. Their brief presents but one contention and that is that the judgment should be affirmed because appellant's brief does not comply with that part of Rule 22 (now Rule 21) of this court which requires that appellant's brief "shall contain under a separate heading of each error relied on, separately numbered points, stated concisely, and without argument, together with the authorities relied on in support of them."
Although appellant's brief does not strictly comply with said requirement of Rule 22, we hold that it does substantially comply with it.
The only causes for new trial, set forth in the motion therefor, which are supported under the title "Points and Authorities" in appellant's brief, are, "2. the decision of the court is not sustained by sufficient evidence, and 3. the decision of the court is not sustained by sufficient evidence and is contrary to law."
The evidence shows that said agreement was executed; that said notes were executed in conjunction with the agreement; that appellees failed to make any payments on either of the notes until May 23, 1930, when they paid $250.00 on the first note (which became due ninety days after February 1, 1930). The evidence further showed that appellees failed to make any payments on the second note.
All of appellant's "points" in his brief challenge a supposed contention that appellees cancelled the contract by defaulting in the payment of said notes. Appellant's *Page 356
points are in effect as follows: (1) the default of appellees did not by reason of the terms of the agreement operate to cancel the agreement and release them from liability; (2) appellees had no right to cancel the trust agreement upon their own default in the payment of the notes when due; such right was given to appellant but appellant elected not to exercise it and brought suit to enforce the collection of the notes; (3) if appellees had any right to cancel this agreement. they waived it by their own conduct in failing to cancel the agreement, upon default, and in continuing it in force by making payments on the notes after default.
It should be borne in mind that this is a suit on the notes, and not a suit, instituted by appellees, to cancel the agreement. The main question to be determined in this suit was whether or not appellant could recover on the notes, and not, whether or not appellees could cancel the agreement. The main question to be determined in this appeal is whether the court erred in holding that appellant should not recover on the notes, and not whether or not appellees could cancel the agreement
If the contract is subject to a construction that in case of default in the payment of said notes, appellant's damages for such default should be limited to the payments theretofore made by appellees, the correctness of the court's decision would not depend upon a determination of the question whether or not appellees had the right to cancel the contract by defaulting in the payments.
The contract covers six pages of the transcript and contains many provisions which are not pertinent to this appeal. We deem it inexpedient to incorporate the contract in this opinion.
We deem it sufficient to say that upon a consideration of the contract as a whole, in the light of the circumstances *Page 357
attendant upon the execution thereof, as they are shown by the evidence, we think the contract is reasonably subject to a construction that the parties thereby agreed and intended that if appellees defaulted in the payment of either of said notes, appellees would thereby lose all their rights under the contract, and would thereby forfeit all payments theretofore made; that said payments would be considered a full settlement and liquidation of all claims of the sellers against the purchasers, arising out of the non-performance of said contract by appellees; that appellees could not recover any of said payments, and appellant could not recover anything in addition thereto.
That was the theory of appellees amended second paragraph of answer.
The parties, having agreed to such liquidated damages in the event of non-performance of the contract by appellees, and the notes being part and parcel of the contract, appellant should not be permitted to recover on the notes, in addition to the liquidated damages.
Appellant contends the contract gave him a choice of two remedies in case of such default, to wit, cancelling the agreement or suing on the notes. The contract did not specifically provide for such a choice of remedies. It is sufficient to say further that the contract, when considered as a whole, in the light of the circumstances attendant upon its execution, does not so clearly provide for such election of remedies, that conclusions to the contrary are without reasonable basis.
No reversible error having been shown, the judgment is affirmed. *Page 358 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427361/ | Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427364/ | Appellant on October 9, 1940, filed its complaint for condemnation of certain real estate of appellees. This land was sought for the purpose of widening, and in certain places, the changing of the right of way of State Highway No. 56 which was being improved by the State Highway Commission and which highway ran through the farm of the appellees. To the award of the appraisers, appellees excepted and upon trial by jury a verdict was returned in favor of the appellees in the sum of $2,750 with interest at 6% from October 9, *Page 632
1940, upon which judgment was rendered in the sum of $3,410.00 from which this appeal is taken.
Appellant assigns as error that the court erred in overruling its motion for a new trial. Grounds for said motion are: first, that the court erred in giving at the request of the appellees one instruction; second, and third, the giving on its own motion of two instructions; fourth, the refusal of the court to give 14 instructions tendered by the appellants; fifth, error in the assessment of the amount of recovery in that the amount is too large; and finally, sixth, that the verdict is not sustained by sufficient evidence.
The facts in this case show that the appropriation involved the widening, and in places, the changing of the right of way of an existing road, which said road ran in a general northerly and southerly direction bearing to the west from the southeast; and that it divided appellees' farm approximately in halves; that a great portion of the east half of said farm was a hillside sloping westward towards said road; that the natural flow of surface water from said hillside flowed westward, and that at one point on said road said surface water had cut a gully in the side of a hill causing portions of said surface water to pour in a body onto said right of way. There is no contention that this gully was a natural water course. The evidence also shows that said highway which was widened and changed was improved; that the grade was changed by such improvement, and that the surface water from said improvement and from the land to the east side of said highway was diverted due to said improvement, but that no surface water was collected by the appellant either from said highway or from appellees' farm other than as above indicated. *Page 633
The record shows that the appellees' tendered one instruction which was given by the court as follows:
"I charge you that a land owner may fight off from his land mere surface waters flowing onto his lands from the lands of an upper proprietor, yet such a land owner may not permit surface waters to come upon his own land and then collect them in a body by a ditch or drain and conduct them in such a body to a place where they will be poured in a volume on the lands of another. So in this case, if you find that the State Highway Commission permits the natural surface water of the Ahaus lands to drain down upon its right-of-way and then collects such surface waters in a roadside ditch along the east side of the highway and by means of said roadside ditch conducts such collected waters in a body to a culvert beneath the newly constructed highway, and then pours or dumps such collected volume of waters upon the right-of-way of the State Highway Commission, upon the west side of such new road from which they flow onto the lands of the defendants in a body, then I charge you that the fact, if it be a fact, that the State Highway Commission, as in the manner described, dumped, or poured such collected surface waters, upon the lands of the defendants, is one which you may take into consideration as an element of damage in fixing the amount which you will award the defendants in this case. Hunter v. Cleveland, Etc., R.R. Co., 93 Ind. App. 507-513, 176 N.E. 710; Mitchell
v. Bain, 142 Ind. 604-618, 42 N.E. 230; Patoka Township v. Hopkins, 131 Ind. 142, 30 N.E. 896."
The plaintiff's written objections to this instruction which were timely made are as follows:
"The plaintiff, State of Indiana, at the close of the evidence and before the beginning of the argument, objects and excepts to the giving, by the Court, as part of its instructions, defendants' tendered instruction No. 1, for the reason that the evidence shows that all the water collected in the ditch mentioned in the instruction flows from the *Page 634
lands of the defendants in this case and the evidence further shows that water flows down from a hill side on the east side of the road in question and that the water at times flowed over the highway, that such condition of such water flowing over the adjoining lands of the defendants, and the discharge thereof on the highway in question was an illegal act on the part of the defendants, landowners, and that the authorities in charge of the highway in question had the right to take said water, by means of a drainage structure, beneath the highway to permit its flow into the natural course on the defendants' adjoining lands on the west side of the road in question; that the instruction also cites authorities at the close and is therefore improper."
In considering this instruction it must be remembered that this is an action to condemn real estate for the widening of the right of way of an existing highway in places, and for the entire right of way in other places, and what is done is not merely the change of grade of an existing highway. Furthermore this is not an action sounding in tort. Appellant in making its objections to this instruction has not had these facts in mind.
"The general rules as to the measure of damages, where all or a part of a tract of land is taken for widening a highway, are the same as in other cases where property is taken or damaged 1. for a public use." 18 Am. Jur. 920, Eminent Domain, § 281. The measure of damages in this case is fully set out and provided for by § 3-1706, Burns' 1933 (Supp.).
In arriving at the amount of damages in this case every element of damage which will naturally and ordinarily result from such taking may be considered. "The measure of damages must not 2. be confounded with the elements of damage. In the case of Pittsburgh, etc., R. Co. v. McCloskey (1885), *Page 635
110 Pa. St. 436, 1 A. 555, involving an appropriation for a railroad, the court very concisely covered the subject in the following paragraph: `The inconvenience, arising from a division of the property, or from increased difficulty of access, the burden of increased fencing, the ordinary danger from accidental fires to the fences, fields or farm buildings, not resulting from negligence, and generally all such matters as, owing to the particular location of the road, may affect the convenient use and future enjoyment of the property, are proper matters for consideration.'" Glendenning v. Stahley (1910), 173 Ind. 674, 682, 91 N.E. 234.
This being a condemnation action, clearly this was the proper and only time to show as a particular element of damage, that the improvement did cause surface water to be precipitated onto 3. the remaining land. "The rule in condemnation proceedings is that all damages, present or prospective, that are the natural or reasonable incident of the improvement to be made, or work to be constructed, not including such as may arise from the negligence, or unskilfulness, or from the wrongful act of those engaged in the work, must be assessed." The Chicago and IndianaCoal Railway Company v. Hunter (1890), 128 Ind. 213, 220, 27 N.E. 477.
Although this instruction seems to have been drawn on the theory of the accumulation of surface water and of the unlawful diversion of it onto land of another, yet the same has not 4. harmed the plaintiff in this case, as the changing of the flow of surface water could be considered as an element of damage in this case.
Although we do not condone the practice of citing cases in an instruction as done here, and are of the *Page 636
opinion that said practice should be condemned, we do not 5. think that this irregularity is of sufficient gravity in this case as to warrant a reversal.
The Court's Instruction No. 16 on the subject of general 6. benefits, reads as follows:
"In order that benefits may be set off against the damage to the land not taken in making said improvement, the court charges you that said benefits, if any, must be special or local or such as results directly or peculiarly to the particular tract of land of defendant. General benefits resulting to the owners in common with the public cannot be set off."
The plaintiff's written objections to this instruction are as follows:
"The plaintiff at the close of the evidence and before the beginning of the arguments, objects and excepts to the giving of the Court's Instruction No. 16, for the reason that any benefit that results to the property affected that increases the value thereof should be considered whether such benefit is shared by other landowners or not, since citizen's owning and living on land along other highways had their damages or benefits fixed and they may not be considered as receiving any benefits from the construction of the highway involved in this cause that were not considered at the time that such highways were laid out and constructed along their land or along land upon which they reside."
This instruction is proper on the question of benefits. SeeLipes v. Hand (1885), 104 Ind. 503, 1 N.E. 871, 4 N.E. 160. On page 506 of this opinion the court approves the following language taken from 2 Dillon Mun. Corp. (3d ed.) § 624:
"And here, most usually, arises the difficult inquiry, What benefits and what injuries are proper to be regarded as affecting the question of damages? *Page 637
Now, benefits and injuries are of two kinds: I. General or public, being such as are not peculiar to the particular proprietor, part of whose property is taken, but those benefits in which he shares and those injuries which he sustains in common with the community or locality at large. II. Special or local, being those peculiar to the particular landowner, part of whose property is appropriated, and which are not common to the community or locality at large, such, on the one hand, as rendering his adjoining lands more useful and convenient to him, or otherwise giving them a peculiar increase in value, and, on the other, rendering them less useful or convenient, or otherwise, in a peculiar way, diminishing their value. The former class of benefits or injuries — namely, those which are general, and not special — have, according to the almost uniform course of decision, no place in the inquiry of damages, and can not be considered for the purpose of reducing the amount, being too indirect and contingent; but injuries which specially affect the proprietor, or benefits which are specially conferred upon his adjacent property, part of which is taken, are to be considered, unless, by the Constitution of the State or legislative enactment, all benefits, special as well as general, are to be excluded."
See also C.C.C. St. L. Ry. Co. v. Mumford (1935),208 Ind. 655, 671, 197 N.E. 826.
Of the refusal of instructions tendered, the appellant has waived all such rulings except as to its tendered instructions No. 13 and 14.
7. Appellant's tendered instruction No. 13 reads as follows:
"I instruct you that the public authorities in charge of highways have the same right under the law as a landowner to fight off surface waters from the public highways; and if you find that the defendants had permitted a ditch or ditches to be cut and formed on land owned by them that was higher than the highway in question and that the ditch or ditches so cut and formed were the means *Page 638
of the collection of surface water that was discharged upon the highway as it existed before the appropriation of the strip involved in this cause, then I instruct you that the State Highway Commission had the authority to raise the grade of the highway or to carry said surface water under the highway by means of a drainage structure and discharge such water on the opposite and lower side of the road without subjecting the public to payment of compensation therefor; and, if you find that the appropriation of the strip involved in this cause did not of itself necessitate the change of grade or the construction of such drainage structure for such purpose, the defendants would not be entitled to damage for such acts."
This instruction was properly refused, as the same does not conform to the evidence, as the evidence without dispute shows that there was a change of grade in the construction of the roadway, and that only portions of the surface water to the east of said new roadway came down the gully described in the evidence.
Appellant's tendered instruction No. 14 reads as follows:
"I instruct you that the damages, if any, to which the defendants are entitled must be shown to have resulted solely from the appropriation of the strip of real estate for highway purposes involved in this proceeding. It is the law of this State that the highway officials in charge of a highway may raise or lower the grade thereof, and provide proper drainage thereof by fighting off surface water, without payment of compensation to an adjoining landowner; and if you find that, before the appropriation of the strip in question, surface water flowed from a hill on defendants' adjoining lands down upon the highway as it previously existed, by means of a ditch or ditches and spread out, over and upon the highway, the State Highway Commission had the authority to raise the grade of the existing highway and to fight off surface water that so flowed down upon it by carrying it under *Page 639
said highway by means of a drainage structure without subjecting the public to payment of damages, if any, caused by said water flowing over and upon adjoining lands of the defendants on the opposite or lower side of the road."
This tendered instruction has the same infirmity as the appellant's tendered instruction No. 13, and there was no error in refusing the same.
Instruction No. 23 on the question of interest given 8, 10. by the Court on its own motion reads as follows:
"The Court further instructs you that if you should find for the defendants, you must award such damages to which you think they are justly entitled, with interest at 6% per annum from the time the State of Indiana actually entered into possession of such land and in fixing the amount of such an award, you should consider each and every element of damage shown by the evidence to exist, and to have been caused by reason of the appropriation of the land in question and the construction of said improvement."
The plaintiff's written objection to this instruction is as follows:
"The plaintiff objects and excepts to the giving of the Court's instruction No. 23, for the reason that it permits the jury to allow interest on any amount found as damages that resulted to defendants by reason of the taking; that the record shows that the award made by appraisers was not excepted to by the plaintiff and hence, defendants could have received the amount of the award in 1940; that there is no evidence showing defendants entitled to interest; that the right to interest is purely a statutory and not a constitutional right; that no statute of Indiana provides for the allowance of interest in proceedings by the State to condemn property for a public use; that the State or sovereignty is not within the terms of the general statute on the subject of interest." *Page 640
This instruction correctly states the law in regard to interest, to hold otherwise would be to overrule several well-considered cases, among them State ex rel. McNutt v.Orcutt (1936), 211 Ind. 523, 199 N.E. 595, 7 N.E.2d 779.
We approve of the view taken in the last mentioned case, that interest on damages is proper and should be included in the verdict, and the jury should be instructed accordingly, and that there should be evidence as to the date of the taking possession on the part of the State. It will be noted however, that one of the objections to this instruction was that there was no evidence showing that the defendants were entitled to interest. This presents the same question as is presented by the appellant's fifth and sixth grounds for a new trial. If there was no proof as to when the State took possession of the real estate condemned, then there was no evidence upon which to base this instruction and the assessment of the amount of recovery is too large, and also, the verdict is not sustained by sufficient evidence. The verdict in this cause was in the following words and figures:
"We, the Jury, find for the defendants and assess defendants' damages in the sum of $2750.00 dollars, with interest at 6% from October 9, 1940, the time of the taking of the land, by reason of the appropriation of the land described in the complaint."
This form of verdict is unusual although proper. Gaff v.Hutchinson (1871), 38 Ind. 341. Upon the examination of the record in this case, we find that the evidence discloses that the appellant began work on the construction of this improvement in the fall of 1940, and that the same was completed on September 21, 1941; that all of the fill of the road was completed in 1940. It is true that this evidence does not specifically prove the exact *Page 641
day of any month when the appellant took possession, but certainly it does prove that if there was any error as to the actual date of taking possession, this error was trivial and a new trial should not be granted for such slight error De minimisnon curat lex.
Appellant, for the first time, in its brief, contends that the removal by the appellee of a certain corncrib from the grounds which were condemned, amounted to a partial acceptance of 11. the award of the appraisers, and that by such acceptance the verdict is not sustained by sufficient evidence. There was some evidence introduced without objection that the corncrib was so removed, but the evidence wholly fails to show under what conditions or agreement such removal was made. For all we know, the same might have been given to the appellees for the moving of it or for any other reason consistent with the verdict.
Judgment sustained.
NOTE. — Reported in 63 N.E.2d 199. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427610/ | This is an action by the appellant, plaintiff below, against the appellee, defendant below, based upon three paragraphs of complaint which allege in substance that the appellant was employed by the appellee in 1909 and continued in said employment until June 13, 1931; that on November 23, 1915, while in the employment of appellee and in due course of his duties he was negligently and carelessly injured by another employee of the appellee, causing appellant to become a permanent cripple; that he was crippled in his right leg and it was necessary to have the knee cap removed from said leg on November 25, 1923.
It is averred that as a result of said injuries the appellee became liable to the appellant for damages or compensation and that in consideration of the appellant waiving all claims for compensation or damages for said injuries and as a settlement and a compromise thereof the appellee did on or about the 17th day of January, 1917, promise and agree to give plaintiff a permanent job with defendant at work plaintiff could do in his crippled condition in its Indianapolis plant during plaintiff's life at his then average wages, which were approximately $24.00 per week and that as a result of said agreement and by reason thereof the defendant became duly bound to furnish plaintiff with work at said wage during plaintiff's life.
It is further averred that the agreement was made by the appellee acting by and through its treasurer, one Robert Sinclair, who at said time with other officials of defendant was in charge of the management of the said business of defendant at its Indianapolis plant; that said appellee acted upon said agreement so negotiated by keeping plaintiff in its employ until long after the expiration of the statute of limitation had run against plaintiff *Page 614
to sue for said injuries; that the appellee company received the benefit of said agreement of settlement by reason of not paying compensation or damages to plaintiff; that the appellant acted upon said agreement and did not make any claim to appellee for damages or compensation and waived said claim for damages or compensation and that he entered upon said employment at said time under the terms of said agreement and did work for the appellee and in all things fully complied with said agreement and continued in appellee's employment until the 13th day of June, 1931, at which time the appellee without cause wrongfully breached said agreement by discharging said appellant from its employment.
The appellant further alleges that at the time of making said agreement he signed, executed, and delivered to the appellee a release then and there releasing appellee from all liability in connection with said injuries sustained by him.
The second and third paragraphs of complaint are somewhat different in their allegations, but the substance is the same as the first.
The appellee filed an answer in general denial and several affirmative paragraphs to the effect that the contract had been rescinded, abandoned, and terminated; that the same was an indefinite contract and terminable at will; that no official of Kingan Company had authority to make contracts of this nature; that the action did not accrue within six years and was barred by the statute of limitations and that the contract had been abandoned and abrogated.
It appears from the trial of said cause the appellant offered evidence to sustain the allegations of his complaint but the court refused to permit certain evidence to be introduced and the appellant being unable on account of the ruling of the court to introduce certain *Page 615
evidence rested his case and upon motion of the appellee the jury was instructed to return a verdict for the appellee. The jury, pursuant to said instruction, returned a verdict for appellee and judgment was rendered thereon.
The error relied upon for reversal is the overruling of appellant's motion for a new trial.
The reasons assigned in the motion for a new trial are as follows:
(1) The court erred in sustaining the objections of the defendant to the following question propounded to the plaintiff with reference to a statement made by Robert Sinclair, president and one of the managers of Kingan Company, in reference to contract sued upon, to wit:
"Q. What did Mr. Robert Sinclair say to you?
"MR. DAILEY: To which we object for the reason it hasn't been shown by any evidence that Robert Sinclair had the power or authority to make the contract sued on in behalf of Kingan and Company or to bind the company by what he said or did in the matter inquired about and the agency has not been proved. There is no proof offered that the agreement sued on in this case was in writing; therefore, it is precluded by the Statute of Frauds of the State. There is no proof offered and no pleading on file to show that any contract in this case was in writing or that in any form, verbal or in writing, it was approved by the Indiana Industrial Board nor that it was submitted to the Indiana Industrial Board for approval, therefore, the contract sued upon in the complaint in this case is illegal and unenforcible and void. We object for the further reason that the question seeks to elicit evidence of an illegal opinion and one forbidden by law; that it is in direct violation of the Workmen's Compensation Act.
"MR. NEWGENT: The plaintiff now offers to prove that Mr. Robert Sinclair, president of the defendant company, at the time, on behalf of the company, defendant herein, promised and agreed with the plaintiff *Page 616
that said defendant would give the plaintiff lifetime employment, or permanent employment, under his present wage scale at that time of approximately $24.00 per week, all of which was in consideration of the plaintiff waiving his claim against the defendant for compensation or damages by reason of the injury.
"THE COURT: Objection sustained."
(2) That the court erred in sustaining the objection of the defendant to plaintiff's offer to introduce plaintiff's Exhibits 1 and 2, stipulated by the parties to be authentic copies of a paper executed by the plaintiff and delivered to the defendant and filed with the Industrial Board, having reference to plaintiff's injuries, said stipulation, offer and objections and rulings, and exceptions are as follows:
We will not set out these exhibits for the reason which will be stated in the opinion.
(4) The fourth reason is that the court erred in refusing to permit the plaintiff, Alex Toni, to testify as to the substance of the conversation had by and between the plaintiff and Robert Sinclair, an officer and manager of the defendant company, on or about December, 1917, with reference to plaintiff's future employment and his claim for damages and compensation; said question so propounded to the plaintiff, the objections thereto, the offer to prove and the ruling of the court and exceptions thereto are as follows:
"Q. What if anything was said?
"MR. DAILEY: To which we object for the reason it hasn't been shown by any evidence that Robert Sinclair had the power or authority to make the contract sued on in behalf of Kingan and Company or to bind the company by what he said or did in the matter inquired about, and agency has not been proved. There is no proof offered that the agreement sued on in this case was in writing; therefore, it is precluded by the Statute of Frauds of the State. There is no proof offered and no pleading on file to show that any contract in this *Page 617
case was in writing or that in any form, verbal or in writing, it was approved by the Indiana Industrial Board for approval, therefore, the contract sued upon in the complaint in this case is illegal and unenforceable and void. We object for the further reason that the question seeks to elicit evidence of an illegal opinion and one forbidden by law; that it is in direct violation of the Workmen's Compensation Act. We object for the further reason that the plaintiff's counsel has stated that this agreement made on December 17, 1917, was the part of the settlement in which a promise was made by the defendant for permanent employment or lifetime employment; that this was more than two years after the alleged injury and that a promise made after the two years' statute of limitation had run is wholly without consideration and unenforceable. We object for the further reason that the question now calls for a conclusion and an opinion."
"MR. NEWGENT: Plaintiff offers to prove that in this conversation it was agreed by and between the defendant, through its officer and manager, Robert Sinclair, with this plaintiff that in consideration of the plaintiff waiving his claim for damages or compensation that the defendant would give the plaintiff permanent employment in its Indianapolis plant at a wage of approximately $24.00 a week during his entire life and that in that conversation the plaintiff agreed to and did rely and act upon the agreement so made and did not present any claim for damages and has not presented any claim for damages by reason of said injury, prior or hereto, by reason of said agreement.
"THE COURT: Objection sustained."
(5) The fifth reason assigned is that the court in refusing to permit the plaintiff, Alex Toni, to establish the contract sued upon made with the defendant company as alleged in the complaint, to which rulings the plaintiff excepted, and at the close of such ruling the plaintiff made to the court the following statement:
"MR. NEWGENT: The plaintiff has additional witnesses to prove the contention of this contract as alleged, and assuming that under the court's ruling *Page 618
with reference to Mr. Toni not being permitted to explain, it would be useless to reoffer all this evidence.
"THE COURT: Yes, I expect that is true.
"To which ruling the plaintiff excepts."
The sixth and seventh reasons for a new trial are that the decision is not sustained by sufficient evidence and is contrary to law and the eighth reason assigned is that the court erred in directing a verdict for the defendant.
The objection of the appellee to the appellant testifying concerning the conversation had with, and the statements made by, Robert Sinclair in making the alleged contract, in substance, contained four reasons:
(1) That it was not shown that he had authority to make the contract,
(2) There was no showing that it was in writing,
(3) There was no showing that the contract was approved by the Indiana Industrial Board, nor that it was submitted to the board for approval, and
(4) That it was in direct violation of the Workmen's Compensation Law.
We will consider the last two reasons first.
The appellant alleged in his complaint that on or about January 17, 1917, the appellee promised and agreed to give appellant a lifetime employment and at said time he signed, executed, 1-3. and delivered to the appellee a release from all liability on account of the injuries he had received. The appellee alleged in its second paragraph of answer to the amended complaint that the appellant in September, 1917, voluntarily quit his employment with appellee and at said time it was expressly agreed between appellant and appellee that the contract of the appellant with appellee should be rescinded, abandoned, and terminated, but that several weeks later the appellant was re-employed by appellee under a contract terminable at *Page 619
the will of the appellant or appellee. The same allegation is contained in other paragraphs of answer except as to the allegation of time as to when appellant quit work. It is thus seen in these answers that the appellee expressly admits that there was such a contract as appellant asserts, but appellee contends that it was rescinded, abandoned, and terminated, and a new contract made terminable at the will of either. The appellant asserts that the contract was not only made, but that it was never abandoned, rescinded, or terminated. If such a contract was made then it must be conclusively presumed that both of the parties thereto had elected not to operate under the terms of the Compensation Act as provided therein, the presumption being that one will obey the law and not violate it. The allegations of the complaint and answers are silent as to what if any steps were taken under the compensation law. Under the issues as formed the appellant and appellee had the right to enter into such a contract as alleged in the complaint and it was in no manner contrary to or in conflict with the Compensation Act. The appellee is now estopped from relying upon the Compensation Act as a defense. So the question with which we are concerned is one of pure contract.
Contracts for life employment in consideration of release of claims for damages for personal injuries are recognized as valid in this state and other jurisdictions as not being 4, 5. contrary to public policy nor void for lack of mutuality. In the well considered case of F.S. RoysterGuano Co. v. Hall (1934), 68 F.2d 533, 535, where the court was considering a lifetime contract, it is said:
"We do not think that the contract can be condemned either as lacking in mutuality or for indefiniteness. It was not lacking in mutuality; for in consideration of the promise of life employment, the plaintiff surrendered for the comparatively *Page 620
small sum of $700.00 a claim for damages for the loss of an arm upon which, if his claim of negligence had been sustained, he might have recovered a much larger amount. The case is radically different, therefore, from one where nothing is given or surrendered in consideration of the promise of permanent employment. And, upon the principle id certum est quod certum reddi potent, the promise of employment for life was sufficiently definite, as also the promise of top wages for common labor. . . . That contracts for life employment in consideration of release from claims for damages for personal injuries are not contrary to public policy, nor void for lack of mutuality, and they will, if possible, be so construed as to come within the rule requiring definiteness is amply sustained by authority."
Citing a long list of cases. And in the case of The Penn Co. v.Dolan (1892), 6 Ind. App. 109, 32 N.E. 802, it is held that a parol promise by a railroad company to furnish an employee steady and permanent employment, in consideration of a written release of all claims for damages against the company sustained by the employee while in the discharge of his duty as such employee, is not void for uncertainty and indefiniteness as to time of employment. It is further held that such a contract is not within the statute of frauds and is valid. This case is cited with approval in the case of American Car Co. v. Smock (1911),48 Ind. App. 359, 93 N.E. 78, where a lifetime contract similar to the instant case was considered by the court and held valid. SeeCarnig v. Carr (1897), 167 Mass. 544, 46 N.E. 117, 35 L.R.A. 512; Rape v. M. O.R.R. Co. (1924), 136 Miss. 38, 100 So. 585, 35 A.L.R. 1422, and notes.
The appellee asserts that before appellant could introduce any evidence relating to what an alleged agent said, he must first establish that the particular person or officer was an 6, 7. agent at the time the alleged contract was made and that the particular person or officer had authority to make the same. *Page 621
Admitting that the particular person did not have at the time authority to make the contract, the appellee can not now deny the authority after recognizing such contract for fourteen years, if such contract was in fact made. Where one holds the proceeds or beneficial results of the contract, he will be estopped from denying an original authority or a ratification. Moore v.Pendleton (1861), 16 Ind. 481; American Car v. Smock,supra, p. 372, and authorities cited.
In the case of Fisher v. Roper Lumber Company (1922),183 N.C. 485, 111 S.E. 857, 35 A.L.R. 1417, we find a state of facts very similar to those in the instant case. Some of the same questions raised in the instant case were presented in that case.
On the question of one having authority to bind the company the court said (p. 489):
"Defendant insists further that there is no evidence of a valid agreement by anyone having authority to bind the company. This contract to take on a crippled employee for life is so out of the usual that authority to make it would assuredly not come under the ordinary powers of a mere foreman or boss, or even of an agent of mere general powers. . . . But, in addition to the testimony of plaintiff that Roberts, who purported to act for the company, was `operating the mill at the time,' there were facts in evidence tending to show that the company paid for the operation amputating plaintiff's arm, and that the owner of the plant and the general superintendent both personally knew of the injury and the amputation, and that plaintiff was taken back into their employment at the same wages, notwithstanding the loss of his arm, and they knew, or should have known, the condition of his return and the agreement concerning his employment; assuredly they have every opportunity to know, and there were facts sufficient to excite inquiry as to the terms of his further employment. As said in Powell v. Powell K. Lumber Co., 168 N.C. 632, 84 S.E. 1032: `The scope of the implied authority of a general agency may be extended by *Page 622
reason of acts indicating authority which the principal has approved, or knowingly or, at times, negligently permitted the agent to do in the course of his employment.' It appeared that this man having only one arm was on the employer's pay roll at the price of a full hand for twelve years, and, if the management did not know of the terms of plaintiff's employment, their negligence in this respect should be imputed to them for knowledge."
The complaint alleges that the contract was entered into with one Robert Sinclair who was the treasurer and manager of the appellee company, and with other officials of the appellee company, whose names were unknown to the appellant. If it be a fact, as alleged in the complaint, that a release of all claims and damages was executed by appellant to the appellee and the contract, as alleged, entered into with the said Sinclair, or with Sinclair and other officers, and for a period of fourteen years said contract was recognized by both parties, the appellee can not now assert that the ones representing it had no authority to make the contract. A full discussion of this principle is found in the case of Royster Guano Co. v. Hall, supra.
In the complaint it is alleged that the said Sinclair was the treasurer and one of the managers of the company, but in the offer to prove the appellant asserted that he was the president of the company at the time the alleged contract was made.
The appellant contends that the court erred in refusing to admit in evidence his exhibits one and two which constituted a notice of employee's rejection of the Workmen's 8. Compensation Law. The date of these exhibits was December 17, 1917, being more than two years after the injury received.
We can conceive of no reason for the admission of these exhibits under the issues as formed in the case. *Page 623
No error was committed in the ruling of the court as to these issues.
It is also contended by the appellee that the appellant's cause of action did not accrue within six years last past. We think there is no merit in this contention. It is alleged that 2, 9. the contract was executed on January 15, 1917, and that he was discharged on July 13, 1931, the first paragraph of amended complaint was filed December 5, 1933, and the second and third paragraphs were filed in September, 1934. The right of action did not accrue until a breach of the contract, which, as alleged, was June 13, 1931.
It would be a harsh rule of law that would prevent the appellant, under the circumstances disclosed, from pursuing an action upon such a contract as alleged. The appellee by its conduct and acts led the appellant to believe that he was secure in a lifetime employment and after a long period of time after the statute of limitation had run for filing a claim for compensation he was then discharged and the contract, if any, repudiated.
We think there was error committed in excluding the evidence offered to prove the terms of the contract and the conversation had by the appellant with the witness, Sinclair.
Judgment reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427612/ | In the court where he was tried and convicted of murder 20 years ago, David C. Stephenson asserts by a pleading, denominated a petition for writ of error coram nobis, that he should now have another trial. Relators are aware of the difficulties of marshalling in 1945 evidence to prove facts that existed and were susceptible of proof in 1925. They fear the possibility of an erroneous ruling by respondent court resulting in the unwarranted release of a guilty convict. Alleging that the State has no other adequate protection against misuse of the writ of error coramnobis, relators ask us to exercise in an unprecedented manner a strong arm of this court, namely, a writ of prohibition. The use of one of two extraordinary remedies is thus sought to prevent the anticipated abuse of the other. Each has its proper function. Neither should be perverted.
Respondents concede that the temporary writ was properly granted because the record below did not then show unavailability of the judge who presided at the trial. State ex rel. Meyer v.Youngblood (1943), 221 Ind. 408, 48 N.E.2d 55. But the fact seems to be, as alleged by respondents and not denied by relators, *Page 421
that he is unavailable and this case is decided upon the assumption that the record will be made to state the fact.
The function of prohibition is to keep inferior courts within their jurisdiction. § 3-2201, Burns' 1933. State ex rel. Gannon
v. Lake Circuit Court, ante, p. 375. As stated therein 1. "the issues in such a proceeding should be narrowly drawn." We shall consider only the questions necessary to a decision.
Relators' brief calls attention to the fact that in Stephenson's "supplemental petition filed in the Hamilton Circuit Court November 16, 1944, he sets forth thirty-nine (39) proceedings he has taken during the last nineteen (19) years including six (6) petitions for writ of error coram nobis, and nine (9) habeas corpus actions, all but one of which he states were on the same subject matter." We agree with relators that there should be an end to this litigation. But the place to stop it is in respondent court. Respondent Judge may, and we shall assume that he will, refuse to entertain successive petitions that merely reiterate grounds that were or could have been stated in Stephenson's motion for a new trial made prior to his appeal. From 1816 until 1882 Indiana got along without coram nobis. It was resurrected by Judge Elliott for "an extraordinary case." See first line of opinion in Sanders v. The State (1882),85 Ind. 318. It is not again mentioned in our reports until in Wheeler
v. State (1902), 158 Ind. 687, 63 N.E. 975, a writ was held properly denied. If trial courts will reserve the remedy for extraordinary cases of gross miscarriage of justice, few writs will be granted.
Stephenson's latest petition is said to present nothing substantially different from the contentions made in his *Page 422
petition before this court at the same time as his appeal, 2. Stephenson v. State (1932), 205 Ind. 141, 197, 179 N.E. 633, 186 N.E. 293, wherein it was stated that "the allegations are not sufficient." This, say relators, is resjudicata. But the case decided that this court was without jurisdiction. A dictum in a case the court was not empowered to decide may be persuasive but it is not conclusive.
It is shown by the pleadings herein that in 1942 Stephenson filed in respondent court a petition for writ of error coram nobis which was docketed as a a civil action, the State 3. demurred, respondent Judge sustained the demurrer, entered an order denying the writ, and Stephenson prayed an appeal which was never perfected. This also, say relators, is resjudicata. It may be. But when we granted the temporary writ of prohibition, the only pleadings below were the petition and a demurrer thereto which respondent Judge had overruled. Ordinarily, former adjudication is pleaded by answer. If the State's demurrer raises the question the error is already saved for appeal. If not, there is still time to file an answer of resjudicata. The important consideration is whether the present and former petitions state substantially the same facts and ask the same relief. This the respondent court has jurisdiction to determine.
Relators finally urge that the State has no other adequate remedy. They assume that no appeal lies from an order granting a writ of error coram nobis. It is true that none has 4. been provided by statute. But this is not necessary. In Warren v. Indiana Telephone Co. (1940), 217 Ind. 93,26 N.E.2d 399, we said that an "appellant may not be denied his right to present his case to this court for review because the Legislature has not provided a means for *Page 423
bringing it here." The opinion further disapproves "the language contained in the many cases which seem to suggest that the right of appeal to this court exists only by the grace of the legislative branch of the government." In Joseph E. Seagram Sons v. Board of Com'rs., etc. (1943), 220 Ind. 604, 45 N.E.2d 491, we disregarded an express legislative fiat that "there shall be no appeal from such judgment" and decided an appeal upon its merits. A prior opinion, State ex rel. White v. Hilgemann,Judge (1941), 218 Ind. 572, 34 N.E.2d 129, contains the broad statement that "the right to review is available in all cases, and, where the statutory appeal is inadequate, the writ of error or other appropriate means may be resorted to."
In these cases we were concerned with final judgments. An order granting a writ of error coram nobis is not a final judgment. But not all appeals are from final judgments. Where an 5, 6. interlocutory order takes certain property from a party or interferes with exercise of certain rights of ownership the Legislature itself has provided for appeal before final judgment. § 2-3218, Burns' 1933. The same statute permits review of interlocutory "orders and judgments upon writs ofhabeas corpus." Before final judgment an appeal lies from an order appointing a receiver, § 3-2603, Burns' 1933. In eminent domain proceedings there is statutory appeal from an interlocutory order. § 3-1705, Burns' 1933. If interference with property rights of individuals is of sufficient importance to justify immediate review of interlocutory orders, can there be any question of the propriety of review, for error, of an order, though not final, which will put the State to the expense and disadvantage of a second trial, which may occur years after the offense? The possibilities of a miscarriage of justice to the detriment of *Page 424
society are surely sufficient to justify extending to the State a right to have the error corrected before it becomes irremediable. We have no doubt of the constitutional power of this court to prescribe such procedure. In 1937 the General Assembly stepped out of the field of procedural legislation by expressly providing that thereafter the power to prescribe rules of practice and procedure should be exercised by this court. § 2-4718, Burns' 1933 (Supp.). Granted that `this court must be the judge of its constitutional jurisdiction" (217 Ind. 112) to entertain an appeal and may prescribe the necessary procedure, the only deterrent would be the lack of necessity. We think it clearly exists. In State ex rel. Hodshire v. Bingham, Judge (1941),218 Ind. 490, 33 N.E.2d 771, 134 A.L.R. 1126, we found necessity for a rule which was adopted by order made on the date of the opinion and first published therein. Following this precedent the court has this day adopted the following rule.
"RULE 2-40. An appeal may be taken to the Supreme Court from an order granting or denying a petition for writ of error coram nobis. The sufficiency of the pleadings and of the evidence to entitle the petitioner to the writ will be considered upon an assignment of error that the order is contrary to law. The transcript of so much of the record as is necessary to present all questions raised by appellant's propositions shall be filed with the Clerk of the Supreme Court within thirty (30) days after the date of the order. The provisions of Rule 2-15 applicable to appeals from interlocutory orders shall govern as to the time of filing briefs. All proceedings in the lower court shall be stayed until the appeal is determined. This rule shall apply to any order made on or after May 29, 1945, granting or denying a petition for writ of error coram nobis."
Lest there be any doubt, it is the intention of the court that hereafter all appeals from orders denying *Page 425
the writ shall be taken in accordance with this rule and 7. not as appeals from final judgments. The rule does not apply to orders made prior to this date. Liberality will be indulged in extensions of time as to appeals currently taken without knowledge of the rule.
The temporary writ of prohibition is dissolved and permanent writ is denied.
Note. — Reported in 61 N.E.2d 182. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427613/ | On October 29, 1945, this court adopted an opinion in the above entitled matter. The appellees petitioned for a rehearing, and after due consideration, it was granted and the prior opinion was withdrawn.
This action was commenced in the court below by petition of the owners of more than five per cent in acreage of the land affected by and assessed for the construction of the Eugene Mills Ditch and Tributary No. 2 thereof, requesting the alteration and repair of said ditches. The petition particularly set forth the beginning, course and termini of the ditches to be repaired, and that their combined length was 43,285 feet.
Notice was given pursuant to statute, the cause was docketed without objection, and thereafter the court appointed as viewers the Surveyors of Miami, Cass and Fulton Counties. Subsequent thereto the viewers filed their report for the reconstruction of the ditches described in the petition showing that such reconstruction was practical and of public benefit. Some time after the report of the viewers, the County Surveyor of Miami *Page 87
County, as engineer, filed his report recommending the reconstruction of the Main Mills Ditch, Tributary No. 2, the Holland Ditch, the Southerton Ditch, and the Chinworth Ditch, totalling 65,506 feet in length, as a practical necessity to accomplish the drainage for which the petition was filed. In this report the four last named ditches were set out as branches of the Eugene Mills Ditch. In the petition above referred to, the Holland Ditch, the Southerton Ditch and the Chinworth Ditch were not described or mentioned, although all persons interested in each of these ditches were made parties to the original petition.
To the report of the engineer, the appellants, with others who subsequently withdrew therefrom, filed their objection and remonstrance; the matter was duly set for hearing; on the day fixed therefor the matter was heard; and on September 11, 1944, the engineer's final report was filed.
On September 22, 1944, the appellants with others filed their verified remonstrance to the final report of the engineer, and on February 21, 1945, the appellants filed a motion to strike out the report, because of the adding of the Holland Ditch, the Southerton Ditch and the Chinworth Ditch to the proceeding.
The alteration and repair of ditches is provided for under § 27-120, Burns' 1933 (Supp.), Acts 1937, ch. 162, § 2, p. 853, which is a part of the statute on drains.
The appellants claim that the court erred in appointing as viewers the Surveyors of Cass and Fulton Counties to act in conjunction with the Surveyor of Miami County since the 1, 2. ditches to be altered and repaired are located wholly in Miami County. Clause E of the above section provides that the preceding sections of the Act, in so far as they may be applicable, shall apply in the matter of giving notice, *Page 88
in the filing of a remonstrance, and in the procedure which follows. It further states that the duties of the surveyor shall, so far as applicable to the proceeding, be the same as in case of the original construction of a public drain. From this it must be understood that § 27-107, Burns' 1933 is the particular section of the statute from which we can determine whether or not the appellants have made a timely objection to the action of the court in appointing the viewers. In that section, 10 days, exclusive of Sunday and the day of docketing, are given as the time within which to file any demurrer, remonstrance or objection to the form of the petition or to assert any reason why the viewers appointed should not act in the matter. No such objection or remonstrance was ever filed and this question was not presented to the court below. Unless it is jurisdictional it is not now before us for review. This court has held that whether or not viewers are properly qualified merely affects the regularity of the proceeding and it is not jurisdictional. Cauldwell v.Curry, Treasurer (1884), 93 Ind. 363; Otis v. DeBoer
(1889), 116 Ind. 531, 19 N.E. 317; Thompson v. Ferguson
(1913), 180 Ind. 312, 102 N.E. 965.
If it was error to appoint as viewers the surveyors of two adjoining counties, this error, if properly objected to in the trial court, could be corrected on appeal but we cannot see 3. how it could possibly affect the court's jurisdiction.
In the remonstrance that was filed to the final report of the engineer, it was stated that the report was not according to law by reason of the fact that it did not assess the cost of removing the fill under certain conditions set forth. It does not attack the report for any of the reasons assigned in the motion to strike or which are now asserted as a cause for a reversal. If *Page 89
the report covered more than it should have covered under the statute, the appellants could and should by remonstrance have asserted that matter as a reason for claiming that the report was not according to law. This was recognized by the appellants when they unsuccessfully attempted to amend the remonstrance on February 27, 1945.
On many occasions this court has held that such defect or irregularity must be called to the attention of the court by remonstrance. Thompson v. Mossburg (1923), 193 Ind. 4, 5. 566, 139 N.E. 307, 141 N.E. 241; Stroup v. Ferguson, Trustee (1928), 200 Ind. 139, 142, 161 N.E. 628, 629. It has likewise been held that defects in a report do not affect jurisdiction. Williams v. Dexter (1911), 175 Ind. 659, 95 N.E. 113.
This court has also maintained that a remonstrance cannot be amended after the time for filing has passed if the amendment would cause a question to be presented which differs from 6. that indicated by the original specification. Clarkson v. Wood (1907), 168 Ind. 582, 81 N.E. 572; Morgan CivilTownship v. Hunt (1886), 104 Ind. 590, 4 N.E. 299.
Subsequent to the overruling of the motion to amend the remonstrance, the motion was made to strike out the final report of the engineer. This motion asserted that the report 7. contemplated the repair and reconstruction of three additional drains; that the length of the additional drains was greater than the length of the drain for which the petition was filed; and that the court thereupon lost jurisdiction of the matter. While it is true that the addition of the three drains did add more than 10 per cent of the length of the drain as it was described in the petition, that fact did not oust the jurisdiction of the court. *Page 90
The motion to strike was merely an attempt to again remonstrate for a reason not specified in the original remonstrance and the court correctly overruled that motion. Its allowance would 8. have permitted an objection which could have been raised by remonstrance to be presented at a time when the right to remonstrate had long since been waived. § 27-114, Burns' 1933.
Section 27-120 and § 27-114, supra, are both part of the same statute as amended. The former refers to the other and preceding sections, and this statute must be construed as a whole. 9. The right to remonstrate and the duties of the engineer are governed by the prior sections, excepting where limited by the terms of § 27-120, supra. Since this claimed error was waived by the failure to present it under the statute, § 27-114,supra, the claim that the court lost jurisdiction of the proceeding, because the final report of the engineer described a proposed drain that was more than 10 per cent longer than the drain originally described in the petition, is not well taken.
In Lowery v. State Life Ins. Co. (1899), 153 Ind. 100, 54 N.E. 442, on which dissent to this opinion is bottomed, this court had before it a suit by a policyholder, who was attempting to enjoin the corporation from issuing a contract which appellant believed was harmful to him and to other policyholders. In that case the court had before it a claimed cause of action that ran counter to an express statute prohibiting courts from entering judgments which would enjoin or interfere with the business of an insurance company, unless the application was made by the Attorney General of the State of Indiana. No question that was determined in that case could possibly be considered as authority on which to base a holding in the instant case that the lower court *Page 91
lost jurisdiction by reason of erroneous rulings or defects in the proceeding. It does not hold that claimed error in a ruling can cause loss of jurisdiction that has been lawfully obtained. In the case before us the court had jurisdiction of the subject matter and of the persons involved. If the court ruled incorrectly, the parties could exercise their right of appeal in protection of their interest.
At the conclusion of the appellees' evidence, the appellants moved for judgment. This motion was overruled and appellants now complain of this action of the court. After this adverse 10. ruling the appellants introduced evidence. If, in a trial before the court, a motion for judgment is proper at the conclusion of the plaintiffs' evidence, it would be governed by the same rules that apply on motions for a directed verdict in a trial before a jury, and the defendants by introducing evidence waived any error in the ruling. See The Baltimore, etc. R.W.Co. v. Conoyer (1898), 149 Ind. 524, 48 N.E. 352, 49 N.E. 452.
The evidence is questioned as being insufficient, but since only that introduced by appellees is in the record and that introduced by the appellants is omitted, an examination of 11. the evidence is precluded. Rule 2-17, Supreme Court of Indiana; Alford v. Reid (1944), 222 Ind. 137,52 N.E.2d 357.
In so far as this appeal is concerned no question has been presented which would require a reversal.
The judgment is therefore affirmed.
Gilkison, J. dissenting with opinion.
Note. — Reported in 64 N.E.2d 399. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427652/ | This was an action by appellee against appellant for damages, on account of bodily injuries received by appellee as the result of a collision on state highway 31, of an automobile in which appellee was riding as a passenger, with a bus operated by appellant.
The issues consisted of a complaint in two paragraphs, to which appellant filed an answer in general denial. The cause was tried by a jury, resulting in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, hence this appeal. The only error assigned for reversal is the overruling of appellant's motion for a new trial. Appellant assigned twenty-one separate causes for a new trial. Those not waived for failure to discuss them in the brief and requiring our consideration are: (1) the verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) error of the court in giving to the jury instruction No. 1 tendered by appellee; and (4) error of the court in giving to the jury instruction No. 6 tendered by the appellee. These will be disposed of in their order.
The evidence discloses that the appellee was riding as a passenger in an automobile driven by her brother-in-law. On the day after the accident, he was convicted in the Municipal 1. Court of Marion County on a charge of driving an automobile while under the influence of intoxicating liquor. "The evidence (says the appellant) introduced to establish the intoxicated condition of the driver is so overwhelming, *Page 641
that the Appellate Court should consider the question, notwithstanding the general proposition that the higher court will not weigh conflicting evidence." Appellant has not cited any authorities in support of this assertion. The evidence submitted upon the trial of the instant case on this question was conflicting. Several witnesses who were present at the scene of the accident and had an opportunity to observe the condition of the driver of the car testified that he was not intoxicated nor under the influence of intoxicating liquor. The jury found against the appellant on this issue. There is evidence in the record sustaining its finding on all issues tendered. Under such circumstances this court will not disturb the finding.Koplovitz v. Jensen (1925), 197 Ind. 475, 151 N.E. 390.
It is contended by appellant that the verdict of the jury is a quotient verdict, and therefore contrary to law. The only support for the contention is the affidavit of two members of the 2. jury that tried the cause. It has long been the settled rule of law in this state that the verdict of a jury cannot be impeached by the affidavit of one of the members. Jackson v.State (1931), 202 Ind. 675, 177 N.E. 839; Varner v. State
(1928), 89 Ind. App. 293, 166 N.E. 292.
In instruction No. 1, given by the court at the request of the appellee, Sec. 10142.4, Burns Supp. 1929, was quoted from as follows: "It shall be unlawful for any person to drive or 3. operate a motor vehicle on any of the public highways of this state in a reckless or dangerous manner and so as to endanger the life, limb or property of any person. For the purpose of this statute the term `Reckless Driving' shall be construed to mean driving on that side of the highway which is to the left of the operator; driving from side to side of the highway; or in any other manner *Page 642
that is not safe and prudent." After which the instruction continued, "So that if you find from the evidence in this case, that the driver of the bus in question, at the time and place in question, and upon meeting the automobile in which plaintiff was riding, did drive or operate said bus in a reckless or dangerousmanner, and so as to endanger the life or limb of other persons,
or that said driver drove said bus on that side of the highway which was to the left of the driver or that he drove the same from one side to the other of said highway or in any othermanner that was not safe and prudent, at said time and place, then the court instructs you that said driver of said bus was guilty of reckless driving and if you further find that on account of such reckless driving said bus collided with the automobile in which plaintiff was riding and on account of such collision, plaintiff was thereby injured as alleged in the complaint and without negligence upon her part, then the court instructs you that the plaintiff is entitled to recover and your verdict should be for the plaintiff." (Our italics.) Complaint is made of those statements in the instruction which are italicized, for the reason that there is no general charge of negligence in either paragraph of the complaint, and they are outside the issues. This criticism is not supported by the record. The first paragraph of complaint contains a general charge of negligence. Complaint is also made that the instruction did not confine the term "reckless driving" to the definition of the statute, but left it to the jury to determine, without any standard as to what constituted reckless driving, so as to endanger the life or limb of other persons; that safety and prudence should be circumscribed by what a reasonably prudent person would do under like circumstances; that the part of the statute quoted was nothing more than a declaration of common-law negligence; that the whole *Page 643
matter was left to the conjecture of the jury and was prejudicial to appellant. This criticism is without merit. It was not error for the court to quote the statute on reckless driving, VandaliaCoal Co. v. Moore (1919), 69 Ind. App. 311, 121 N.E. 685, and having done so it was proper to inform the jury, that if they found from the evidence that the appellant operated its bus in violation of the statute it was guilty of reckless driving. Furthermore, the court in its second instruction to the jury defined common-law negligence, and the respective rights and duties of persons thereunder.
Instruction No. 6 given to the jury at the request of appellee defined her rights as a passive guest in the automobile in which she was riding at the time of the injuries. Complaint is 4. made of the instruction because it does not take into consideration the question of the intoxication of the driver of the automobile. The jury was fully instructed on this phase of the case by other instructions given by the court of its own motion.
Finding no error the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427654/ | In an indictment returned by the grand jury of Delaware county, it was charged that the appellant, on or about December 7, 1924, did unlawfully barter, sell, give away, exchange, furnish and dispose of intoxicating liquor to a person therein named, in violation of § 1, ch. 23, Acts of 1923. He was tried by a jury and found guilty. He assigns as error the overruling of his motion for a new trial.
One of the causes for a new trial was that the court erred in overruling the challenge of the defendant to the competency of Margaret Goddard to serve as a juror in the trial of the 1. cause. The objection relied upon was that said prospective juror *Page 641
was a woman and was not qualified to serve as a juror because of her sex. All the questions raised by appellant on this subject were decided by this court in Palmer v. State (1926), ante
625, 150 N.E. 917, in which it was said: "When women became electors in this state, those who were freeholders or householders became eligible to serve as jurors in the county where they were resident voters." In that case, a woman had been a member of the grand jury. For the same reasons there given, a woman having the statutory qualifications, was competent to serve as a petit juror in the trial of appellant in the circuit court.
Appellant excepted to the giving of instruction No. 4 to the jury which was as follows: "The material allegations of the indictment are the unlawful bartering, selling, giving 2. away, exchanging, furnishing or disposing of intoxicating liquor to Sherman G. Parton in Delaware Co., Indiana, on the 7th day of December, 1924, and the court instructs you that before the defendant can be found guilty of any offense under this statute and as charged in this indictment, the state must prove some one or more of the material allegations of the indictment above set out beyond a reasonable doubt. Proof of a sale of intoxicating liquor in violation of this statute is sufficient to sustain a conviction." This instruction was erroneous, as it was necessary for the state to prove all the material allegations of the indictment, essential to make out one complete offense. In each of two other instructions given by the court the law on this subject was correctly stated. An erroneous instruction to the jury in a criminal action is not corrected by another which stated the law correctly, unless the erroneous one be plainly withdrawn. Howard v. State (1875), 50 Ind. 190, 193; Kingen v. State (1874), 45 Ind. 518, 521; *Page 642 Binns v. State (1879), 66 Ind. 428, 434; Clark v. State
(1902), 159 Ind. 60, 66, 64 N.E. 589; Weston v. State (1906),167 Ind. 324, 329, 78 N.E. 1014; Rahke v. State (1907),168 Ind. 615, 622, 81 N.E. 584. It is not shown that said erroneous instruction was withdrawn from the jury. The other causes in the motion for a new trial are not presented. In overruling the motion for same, error was committed.
The judgment is 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/3427655/ | * Reported and annotated 76 A.L.R. 838; reported P.U.R. 1931E 179; see Note VII Ind. Law Jour. 259.
The city of Logansport, which owns and operates (and has for 30 years owned and operated) an electric light plant, paid for originally with funds raised by taxation, and enlarged and extended in part with funds raised by taxation and in part with surplus earnings of the plant, brought this action (under § 12749 Burns 1926) to enjoin and set aside the operation of an order of the Public Service Commission of Indiana which reduced its rates or charges to the public for electric current or service. (These reductions varied as to different classes of service and amounts of current consumed, the reduction in some instances being as little as one-tenth of a cent per kilowatt hour and, in other instances, being as much as one cent per kilowatt hour.) The *Page 528
order of the commission, which reviews the entire proceeding and the evidence before it and gives the commission's opinion regarding the law, covers more than 20 printed pages in the reports and it is impracticable to set it out here. It is reported, Re Hillis, et al. No. 8503 (1926, Ind. Pub. Ser. Comm.) P.U.R. 1927-A 443.
Demurrers to each of the four paragraphs of complaint were sustained, and judgment was rendered against the city upon its refusal to plead further. Error is assigned on the ruling upon the several demurrers. The theories of the several paragraphs of complaint are as follows:
Paragraph I. That the right to manage the electric light property and fix the rates to be charged is vested in the city by virtue of its inherent power as an independent body politic or by the right of local self-government, and that such rates cannot be controlled by the Legislature or by any commission appointed by it.
Paragraph II. That the law creating the Public Service Commission of Indiana (The Spencer-Shively Act) ch. 76, Acts 1913, §§ 12672-12802 Burns 1926, does not apply to municipally owned public utilities, and that the commission has no authority there under to fix the rates in question.
Paragraph III. That the rates fixed by the commission are inadequate and confiscatory, and are, therefore, unlawful and unconstitutional (under § 21, Art. I, Constitution, § 73 Burns 1926), in that they will yield only sufficient revenue to pay operating and maintenance charges and that they do not provide, and are not intended to provide, for a reasonable return by the way of interest or earning power upon the investment (i.e., a fair return upon the fair value of its property) the same as if it were a privately owned utility.
Paragraph IV. That the rates are insufficient because they do not yield a sum sufficient to compensate the city for the taxes which the plant would pay if it was privately owned. *Page 529
1. The State has the power to regulate the rates to be charged by municipally owned public utilities.
Appellant, supporting its first paragraph of complaint, relies upon statements made by this court in the cases of State, exrel., v. Denny (1888), 118 Ind. 382, 21 N.E. 252, 4 L.R.A. 79;State, ex rel., v. Denny (1888), 118 Ind. 449, 21 N.E. 274, 4 L.R.A. 65; City of Evansville v. State, ex rel. (1888),118 Ind. 426, 21 N.E. 267, 4 L.R.A. 93; and State, ex rel., v.Fox (1901), 158 Ind. 126, 63 N.E. 19, 56 L.R.A. 893, which announce the doctrine of the right of local self-government, to the effect that the people possess an inherent right, which antedates the Constitution, to govern themselves locally; that the Constitution is a grant of power, and that all power not delegated by it remains in "the local communities" (rather than in the State) exempt from legislative interference. From this, appellant argues that it has an inherent right to own and operate its electric light plant, to sell current to the public, and to do so entirely free from any control or regulation of its rates by the State. In the cases cited, it is held that, under the Constitution, the Legislature has no power, either directly or through the Governor, to appoint local municipal officers, but even this is not true where the functions of such officers are to be performed under the police power of the state. State, exrel., v. Kolsem (1891), 130 Ind. 434, 29 N.E. 595, 14 L.R.A. 566; Arnett v. State, ex rel. (1907), 168 Ind. 180, 80 N.E. 153, 8 L.R.A. (N.S.) 1192.
While the doctrine of the right of local self-government as laid down in the cases above cited (or at least a part of it), has been recognized in later cases (see Street v. 1, 2. Varney [1903], 160 Ind. 338, 66 N.E. 895, 61 L.R.A. 154, 98 Am. St. 325; Jordan v. City of Logansport
[1912], 178 Ind. 629, 636, 99 N.E. 1061; Winfield v. PublicService Comm. [1911], *Page 530 187 Ind. 53, 118 N.E. 531), it would seem that the inherent or common-law powers referred to are identical with those powers which are commonly designated as "implied" or "incidental" powers of a municipal corporation essential to enable it to accomplish the end for which it is created. City of Crawfordsville v. Braden
(1892), 130 Ind. 149, 28 N.E. 849, 14 L.R.A. 268, 30 Am. St. 214;First Nat. Bank of Mt. Vernon v. Sarlls (1891), 129 Ind. 201, 28 N.E. 434, 13 L.R.A. 481, 28 Am. St. 185; Bluffton v.Studebaker (1886), 106 Ind. 129, 6 N.E. 1; Clark v. City ofSouth Bend (1882), 85 Ind. 276, 44 Am. Rep. 13. This court has declared repeatedly (both before and since the decision of the three cases cited in 118 Indiana, in many cases which are collected in a footnote1), that municipal corporations are subordinate branches of the domestic government of the state and possess only those powers expressly granted to them by *Page 531
the Legislature, those necessarily or fairly implied in or incident to powers expressly granted, and those indispensable to the declared objects and purposes of the corporation.
The power of a municipality to own a public utility is generally considered to be neither an inherent nor an indispensable implied power, Western Savings Fund Society
3. v. City of Philadelphia (1858), 31 Pa. St. 175, 72 Am. Dec. 730, and, to enable cities to operate utilities, the Legislature of this state has in numerous instances expressly granted that authority by statute. The right or power to construct, purchase, or lease electric light plants for the purpose of furnishing the inhabitants of the city and its vicinity with the use and convenience of such utility is granted by § 249 et seq., ch. 129, Acts 1905 p. 219, as amended by § 4, ch. 191, Acts 1915 p. 689, § 11129 Burns 1926. (See, also, § 12771 Burns 1926.)
The power of a city to operate an electric-light plant to light the streets for purposes of safety, security and public convenience (like the power to operate a water plant to 4. obtain adequate fire protection or water for the health and sanitation of a city), may well be included in the implied or incidental powers indispensable to the declared objects and delegated powers of a municipal corporation (and, in City ofCrawfordsville v. Braden, supra, it was held that a city had implied or inherent power, not only to light its streets and to establish works to produce the electric current for that purpose, but also, in connection therewith, to furnish its inhabitants with light in their homes and places of business).
A city in the operation of an electric light utility, selling service to the public, acts in its private business *Page 532
capacity and not in its public governmental capacity 5-9. (regardless of whether its power to so act is inherent, implied or is granted by statute). The dual capacity or twofold character possessed by municipal corporations is: (1) governmental, public, or political; and (2) proprietary, private or quasi-private. In its governmental capacity a city or town acts as an agency for the state for the better government of those who reside within its corporate limits, and, in its private or quasi-private capacity, it exercises powers and privileges for its own benefit, Holmes v. City of Fayetteville (1929),197 N.C. 740, 150 S.E. 624, P.U.R. 1930A 369, 373; Scales v. Cityof Winston-Salem (1925), 189 N.C. 469, 127 S.E. 543. When a municipal corporation engages in an activity of a business nature rather than one of a governmental nature, such as the supply of light or water or the operation of a railroad, which is generally engaged in by individuals or private corporations, it acts as such corporation and not in its sovereign capacity, AmericanAniline Products, Inc., v. Lock Haven (1927), 288 Pa. St. 420,135 A. 726, 50 A.L.R. 121, P.U.R. 1927D 112; New York, etc.,Power Co. v. City of New York (1927), 221 A.D. 544, 224 N Y Supp. 564, P.U.R. 1927E 788, and a city operates its municipally owned utility plant in its proprietary capacity as a private enterprize subject to the same liabilities, limitations and regulation as any other public utility. Town of Mapleton v.Iowa Pub. Ser. Comm. (1929), 209 Iowa 400, 223 N.W. 476, 68 A.L.R. 993, P.U.R. 1929B 359.
Appellant agrees that, in the operation of the light plant, it does not exercise a political or governmental power, but exercises a private power, and, from that premise, 10. concludes "therefore, the Logansport electric light plant is private property free from state control," citing:City of Huntingburg v. Morgen (1928), 90 Ind. App. 573,162 N.E. 255, 258, 260, *Page 533 163 N.E. 599; Woodward v. Livermore Falls, etc. (1917), 116 Me. 86, 100 A. 317, 319, L.R.A. 1917D 678; Stanley v.Sangerville (1920), 119 Me. 26, 109 A. 189, 190, 9 A.L.R. 348; Oakes Mfg. Co. v. New York (1912), 206 N.Y. 221, 99 N.E. 540, 541, 42 L.R.A. (N.S.) 286; and Town of Holyoke v. Smith
(1924), 75 Colo. 286, 226 P. 158, which is discussed infra in footnote 2. Appellant's conclusion is erroneous (especially in the light of our statute, see discussion infra). See, also,American Aniline Products, Inc., v. Lock Haven, supra; NewYork, etc., Power Co. v. City of New York, supra; Kennebunk,etc., Water District v. Town of Wells (1929), 128 Me. 256,147 A. 188, P.U.R. 1930A 173.
The regulation of rates to be charged by public utilities is properly the function of the legislative department of the state government, under its police power, Pond, Public 11, 12. Utilities (3d ed.) 519-520; Winfield v. Public Service Commission, supra; City of Washington v.Public Service Commission (1921), 190 Ind. 105, 129 N.E. 401;Hockett v. State (1885), 105 Ind. 250, 5 N.E. 178; Smyth v.Aymes (1897), 169 U.S. 466. The power to fix rates for public utilities does not appertain to the government of a city,Woodburn v. Public Service Commission (1916), 82 Or. 114, Ann. Cas. 1917E 996, and is not primarily a municipal matter,Portland Ry., etc., Co. v. City of Portland (1914), 210 Fed. 667, but rests primarily with the State, Springfield Gas Co. v.Springfield (1920), 292 Ill. 236, 126 N.E. 739, being a sovereign right belonging to the State in its sovereign capacity,City of Kalamazoo v. Titus (1919), 208 Mich. 252, 175 N.W. 480. It is not a power necessary to local self-government, denial of which, or interference with the exercise of which, by the Legislature, would be interference with local self-government,City of Kalamazoo v. Titus, supra. In Winfield v. PublicService Commission, supra, and City of Washington v. PublicService *Page 534 Commission, supra, it was held that the fixing of public utility rates by the State through the Public Service Commission does not violate or infringe any right of local self-government.
Even under the power to exercise self-government or home rule, a city cannot act on matters purely of state concern. 43 C.J. 188; Attorney-General v. City of Detroit (1923), 13, 14. 225 Mich. 631, 196 N.W. 391; Clements v. McCabe
(1920), 210 Mich. 207, 177 N.W. 722. A municipality has no inherent rate-making power and, in the absence of constitutional or statutory authorization, cannot regulate utility rates, 43 C.J. 379, 380; Louisville Nat. Gas Co. v.State, ex rel. (1893), 135 Ind. 49, 34 N.E. 702; Re Niagara,etc., Power Co. v. Prendergast (1930), 229 A.D. 295, 241 N Y Supp. 162, P.U.R. 1930D 58, 60, 61; City of Rushville v.Rushville Nat. Gas Co. (1905), 164 Ind. 162, 73 N.E. 87.
The power to fix rates may be and often has been delegated by the state to municipal corporations, Muncie Nat. Gas Co. v. City of Muncie (1902), 160 Ind. 97, 66 N.E. 436; 15, 16. City of Noblesville v. Noblesville Gas Co. (1901), 157 Ind. 162, 60 N.E. 1032; Westfield Gas Co. v.Mendenhall (1895), 142 Ind. 538, 41 N.E. 1033; City ofRushville v. Rushville Nat. Gas Co. (1892), 132 Ind. 575, 28 N.E. 853, but authority so given is subject to legislative control, and when the Legislature delegates to the Public Service Commission the exclusive power of regulating rates, that grant supersedes any grant theretofore made to cities (except where existing franchises exist) and becomes the prevailing law of the state. Re Northern States Power Co. (1920), (N.D.) P.U.R. 1921A 121; Bartlesville v. Corporation Commission (1921),82 Okla. 160, 199 P. 396, P.U.R. 1921E 509; York Water Co. v. York
(1915), 250 Pa. 115, 95 A. 396; Winfield v. Public ServiceCommission, supra; State, ex rel., v. Lewis (1918),187 Ind. 564, *Page 535
120 N.E. 129; I McQuillen, Municipal Corporations (2d ed.) §§ 249-252, p. 639-644. In recent cases, this court has held that, to safeguard the public interest and promote public convenience and necessity, the right and power to regulate service, to fix rates and to prevent ruinous and unrestricted competition were given to the Public Service Commission and that the act creating the commission conferred upon it all the powers of control over utilities theretofore enjoyed by municipalities (save and except such control as was reserved to municipalities over streets).Stuck v. Town of Beech Grove (1928), 201 Ind. 66, 74,163 N.E. 483; City of Vincennes v. Vincennes Traction Co. (1918),187 Ind. 498, 120 N.E. 27; Public Service Comm. v. City ofIndianapolis (1922), 193 Ind. 37, 47, 137 N.E. 705; Denny v.Brady, Rec. (1928), 201 Ind. 59, 63, 163 N.E. 489.
The cases cited in the foregoing paragraphs relate to the regulation of rates to be charged by privately owned public utilities. The same reasons exist for regulation of the 17. rates of municipally owned utilities, and the power to regulate them is likewise in the state. Springfield GasCo. v. Springfield, supra; Kennebunk, etc., Water District v.Town of Wells, supra, P.U.R. 1930A 173, 175; McQuillen, Municipal Corporations (2d ed.) § 554. In Re Niagara, etc.,Power Co. (1930), 229 A.D. 295, 241 N.Y. Supp. 162, P.U.R. 1930D 58, in a case involving the regulation of the rates of a municipally owned electric-light plant, it was held that "a municipality has no inherent rate-making power. It is simply a political subdivision of the state and exists by virtue of legislative enactments. Rate regulation is a matter of the police power of the state. . . . The rate-making power is a legislative function, and necessarily involves legislative discretion. . . . The right to regulate public utility rates is a power vested in the state. It may be delegated to the municipality but such an *Page 536
intent must clearly appear. Every doubt must be resolved in favor of the continuance of the power in the state."
The appellant, in attempting to show that state regulation of the rates of municipally owned public utilities interferes with the right of local self-government, says: "The interests 18. to be protected by governmental rate fixing in the case of a municipally owned utility are the interests of the citizens of the municipality," and "the citizens of the State generally are not concerned and their interests are not affected." This argument is one which can be made as well regarding state regulation of the rates of privately owned utilities. While it is true that the regulation of rates of a utility (whether owned privately or by a municipality) usually affects the citizens of a particular municipality more than it does the citizens of the remainder of the state, yet the state, for reasons which the legislative department deemed sufficient, has determined, as it had the right to do, that regulation should be by a central commission, rather than by delegating such regulatory power to the local communities.
In several cases, reviewed in a footnote,2 courts have held that public utility commissions of their states had *Page 537
no power to regulate the rates of municipally owned utilities, but each of these cases is readily distinguished from the case at bar.
Our conclusion upon the question presented by the first paragraph of complaint is that the state has the power to regulate, either directly or through a public service 19. commission, the rates to be charged for utility service by a municipally owned public utility. And this we hold regardless of whether the city possesses its power to operate such plant by legislative grant or as an implied or inherent right, and regardless also of whether the city, in operating the utility, is considered as acting in its governmental or in its private business capacity.
II. The Spencer-Shively Act, creating the Public Service Commission, expressly applies to municipally owned utilities and such commission has authority thereunder to fix the rates to be charged the public by the city of Logansport for electric current. §§ 101 and 102 of the act do not limit its application except in the case of utilities operating under existing franchises which regulate rates. *Page 538
The theory of the second paragraph of complaint is based on appellant's contention that, "nowhere in the Public Service Commission law are found express words granting jurisdiction to the commission to regulate the rates of any public utility except in cases where a utility has surrendered its operating contract and accepted an indeterminate permit from the commission." This contention is erroneous and in direct conflict with the plain and clear provisions of the law. Section 1 of the act (§ 12672 Burns 1926) provides that:
"The term `public utility,' as used in this act, shall mean and embrace . . . every city or town that now or hereafter may own, operate or control . . . any plant or equipment within the state . . . for the production, transmission, delivery or furnishing of heat, light, . . . or power, either directly or indirectly, to or for the public."
Section 7 of the act (§ 12678 Burns 1926) provides:
"The charge made by any public utility for any service rendered or to be rendered, either directly or in connection therewith, shall be reasonable and just and every unjust or unreasonable charge for such service is prohibited and declared unlawful," etc.
Section 72 of the act (§ 12743 Burns 1926) provides that:
"whenever . . . the commission shall find any rates . . . to be unjust, unreasonable . . . or otherwise in violation of any of the provisions of this act, the commission shall determine and by order fix just and reasonable rates," etc.
Other sections of the act provide:
"for the valuation of all property of every public utility by the commission" (§ 9); that every public utility shall keep and render to the commission prescribed accounts for examination and determination of rates, tolls, etc. (§ 13), shall file schedules showing all rates which shall exceed a certain standard, and that no change of rates shall be made except by approval of the commission (§§ 41, 45). *Page 539
Section 124 of the act (§ 12797 Burns 1926) provides that:
"The commission . . . shall have the power, and it shall be its duty, to enforce the provisions of this act, as well as all other laws relating to public utilities."
Section 101 of the act, as amended by § 1, ch. 93, Acts 1921 p. 197 (being § 12774 Burns 1926), upon which appellant relies to support its contention (under the second paragraph of complaint), provides that: "any public utility operating under an existing license, permit or franchise from any county, city or town" . . . shall, upon filing (within a given time) a declaration surrendering its franchise "receive by operation of law in lieu thereof an indeterminate permit." Section 102 of the act (§ 12775 Burns 1926) provides that, by the acceptance of such an indeterminate permit, any public utility is "deemed to have consented to a future purchase of its property by the municipality in which the major part of it is situate" and to have waived its rights relative to condemnation and "to have consented to the revocation of its license, permit or franchise by the commission for cause."
Manifestly, the utility here involved does not belong to the class of utilities mentioned in the foregoing sections (§§ 101 and 102). It could not surrender a franchise, for the very 20. good reason that it is not operated under a franchise, but is operated by, and it is, the city itself. The question then to be decided under this paragraph of the complaint is whether the Spencer-Shively Act (and its amendments) applies to any public utilities other than those which were operating under existing franchises, surrendered those franchises and accepted indeterminate permits? We have already pointed out that, by the plain terms of the act, it applies to all "public utilities" which it defines, and there remains for consideration only the question as *Page 540
to whether §§ 101 and 102 limit the application of the law in the manner contended for by appellant.
In Greensburg Water Co. v. Lewis (1920), 189 Ind. 439, 128 N.E. 103, it was said: "By §§ 101 and 102 of the act . . . the State of Indiana made a proposal to the public utilities 21. of the state operating under franchise contracts then existing . . . that any such utility might surrender (within a certain time) its franchise contract to the state and be released from the obligations thereby imposed on certain terms and conditions specifically stated in the act." While these sections may limit the law in its application to utilities operating under existing franchises, they certainly do not confine the operation of the law to those utilities alone which were operating under and which surrender existing franchises. The law includes and applies to all that are within its definition of the term "public utility" in § 1 of the act, whether operating without a franchise or under a franchise (subject to the terms of the franchise), whether in existence at the time the act was passed, or coming into existence at a later time (and all that are within classes which may be added thereto later, e.g., motor vehicle common carriers in § 1, ch. 46, Acts 1925, § 10164 Burns 1926, Stuck v. Town of Beech Grove, supra).
Sections 101 and 102 of the act do not serve to exempt from the operation of the Public Service Commission Law, utilities operating under existing county, city or town franchises, 22. except in so far as the terms of those franchises may conflict with provisions of the law. Thus, where a franchise from a city under which a public utility is operating does not regulate the rates to be charged by such utility, the Public Service Commission has recently exercised authority to regulate its rates, regardless of the fact that the utility has never surrendered its city franchise and accepted an indeterminate *Page 541
permit, Re Home Telephone Co. of Portland (No. 9716-1929) P.U.R. 1930A 332.
We conclude that the Spencer-Shively Act creating the Public Service Commission expressly applies to municipally owned utilities and that such commission has authority 23. thereunder to fix the rates to be charged the public by the city of Logansport for electric current.
III. A municipally owned utility is entitled to receive a fair return by way of interest upon the investment the same as a privately owned utility and the matter of earning such return or not is one of policy for the municipal authorities.
In deciding adversely to appellant the question which is presented by its third paragraph of complaint, the lower court thereby upheld the order of the Public Service 24-26. Commission. This order, which we believe to be erroneous, directly contravenes the rulings in several cases theretofore decided by the Indiana commission, as well as the holdings in many cases decided by other commissions and courts. Every public utility, whether municipally or privately owned, is justly entitled to a fair return upon the reasonable value of its property devoted to public use, over and above operating expenses, taxes and depreciation, Re Hammond WaterWorks, P.U.R. 1919A 183, and we approve the following language used by the Public Service Commission, in speaking of the return to be earned by a municipally owned plant in Re Bluffton,
P.U.R. 1921B 716:
"The law contemplates that adequate service be rendered to the public by this, as well as all other public utilities, and that the utility be permitted a rate that will yield revenue sufficient to meet its operating expenses, including taxes and proper allowance for depreciation and, in addition, a fair return upon the value of the property used, and useful, for the convenience of the public. The respondents *Page 542
contend that a municipal utility should not be permitted to earn any return above its actual operating expense, including depreciation. The Commission believes that the matter of earning a return or not earning a return is one of policy to be decided by the municipal authorities. In any case there should be some surplus to take care of emergencies over and above the operating expenses. The Commission believes that a municipal utility, like any other public utility, is entitled to earn a reasonable return on the value of its property, if it so desires." (Our italics.)
The commission has allowed, upon the fair value of such property, a return of six per cent, In re Goshen (No. 4354, Jan. 11, 1919); seven per cent, In re Hammond Water Works, supra, and seven and one-half per cent, In re Linton, P.U.R. 1921E 295. See, also, Re Connersville, P.U.R. 1922C 482; Ross v.Frankfort, P.U.R. 1919B 525.3 (These citations are made, not to the point that any particular percentage of return is reasonable and fair for a municipally owned utility to earn, that being a matter that may vary under different conditions, but to the point that the Public Service Commission has in previous cases determined and allowed that which it believed to be a fair and reasonable return to municipally owned utilities.) *Page 543
It is uniformly held in other jurisdictions that a city is entitled, if it so desires or elects, to earn a return upon its investment commensurate (Skogmo v. River Falls, infra;Cavanaugh v. Whitefish Mun. Water Utility, infra; Knowlton v.Farmington Village, infra; Re Kenosha, Wis. Ry. Com. P.U.R. 1918D 751; Consolidated Ice Co. v. Pittsburgh [1922], 274 Pa. 558, 118 A. 544), with what would be reasonable in the case of a private corporation and which would constitute a fair return on such property. Spangler v. Great Falls Municipal Water Plant
(Mont. Pub. Ser. Comm.) P.U.R. 1927E 274; Botts v. City ofBrookfield (Missouri Pub. Ser. Comm.) 4 Mo. P.S.C.R. 631, P.U.R. 1917D 224; Smith v. Village of Fennimore (Wis. Ry. Comm.) P.U.R. 1916A 853; Skogmo v. River Falls (Wis. Ry. Comm.) P.U.R. 1917E 974; Re Milwaukee (Wis. Ry. Comm.) P.U.R. 1927B 229; In re Broadhead Municipal Electric Utility (Wis. Ry. Comm.) P.U.R. 1915B 524; Re Higginsville (Missouri Public Service Comm.) P.U.R. 1921D 798; Chicago v. Northwestern,etc., Ins. Co. (1905), 218 Ill. 40, 75 N.E. 803; 1 L.R.A (N.S.) 770; Culver v. Jersey City (1883), 45 N.J. Law 256; McQuillen, Munic. Corps. (2d ed.) § 1948. The Montana Public Service Commission in Cavanaugh v. Whitefish Municipal WaterUtility, P.U.R. 1922E 209, said:
"Ordinarily, of course, a municipality is satisfied to do with a less return than would be fair to a private concern under similar circumstances, due both to its usual ability to procure money at a smaller rate of interest, and its willingness to forego the profit that is the actuating motive for private investment, in order to benefit its citizens. Indeed, the willingness to sacrifice profit, or in other words, to avoid the tribute to private capital, is almost invariably the inducement (and always a persuasive argument) for municipal ownership. But after a plant has been installed, the city, representing its *Page 544
inhabitants, may determine that it is best to operate on a profit-making basis, and it is entitled, if it so desires, to earn a return upon the investment commensurate with what would be reasonable in the case of a private corporation."
The Indiana Public Service Commission in Re Hillis, supra,
and the lower court in the case at bar, have apparently adopted some of the (unhappily chosen) language used in Bonzer v.Electric Light Comm. P.U.R. 1920F 183, which has been misinterpreted and which has led to error. In Bonzer v.Electric Light Comm. the Maine Public Utilities Commission said:
"The people as a whole own this property and are operating it for the benefit of all. . . . It is not expected that there will be any profit. . . . It is our idea that if the town desires to render this service to its own people, or to some of its own people, it shall do so without profit,"
but qualified its definition of "cost" or "of doing business without profit" by holding that the utility should be allowed to earn enough, not only to pay operating expenses and to care for depreciation, but also to provide a sinking fund to pay off the bonded indebtedness standing against the plant. In Knowlton v.Farmington Village Corporation, P.U.R. 1918E 884, the same commission held that a municipality operating a water plant may divert the receipts therefrom to the payment of its general corporate obligations, if it so desires, provided its charges to the consumers are reasonable; that the municipality, if it so elects, may earn more than enough to pay operating expenses and "current interest charges" (but that such sexces is justifiable only as a provision for the payment of the indebtedness for the plant and that, when the indebtedness is paid, the rates should be reduced).
It does not follow from a premise that service is to be *Page 545
rendered at cost, that a reasonable interest on the investment does not constitute a part of that cost. Even in the case of privately owned utilities, it was said in Re Hammond W. E.C.Ry. Co. (Ind. Pub. Ser. Comm.) P.U.R. 1920E 517, 522, that:
"Under present day circumstances and under the theory of the Public Service Commission Act, public utilities are required to render service at cost,
that is to say, the cost of operation, including taxes and depreciation and the cost of money necessarily invested." (Our italics.)
It is argued by appellees that no return should be allowed as interest on the investment because the purpose of municipal ownership is to "serve the public and not to produce 27. revenue" and that "local taxes should not be gathered in the guise of utility rates." It appears to us that the purpose of municipalities which have decided to own utilities may have been to reduce the cost of the service to their users and at the same time to secure a reasonable return on the investments for the cities which otherwise would go to private corporations. The taxpayer who is not an electric light consumer has his money tied up in a municipal light plant the same as the taxpayer who is also a consumer. It is unfair that the money obtained from the former by taxation should be allowed to work only for the benefit of others. It should earn a reasonable amount which should go to the general fund of the city and thereby reduce his taxes. Local taxes should not be gathered in the guise of utility rates, but rates which provide for no more than a reasonable interest return on the investment are not local taxes in disguise. The following language used in Cavanaugh v. Whitefish, etc., Utility,supra, is particularly applicable to the subject under discussion: *Page 546
"The utility should pay the city as an investor a reasonable amount for interest on the city's investment recruiting the interest, equitably, through rates charged all consumers including the city as a consumer. If the plant has been built out of the general funds of the city, the city is an investor in the utility and is entitled to a reasonable rate of interest on the investment. The money in this case, being furnished out of the general funds of the city, was derived from local taxes. The investment of these funds in other lines would bring a return to the city in the form of interest and would consequently decrease the amount of taxes required to be levied by the amount of this interest. Where funds are borrowed for plant investment, the interest cost is plain. Interest is always one of the elements in the cost of furnishing service. Unless the city is paid a reasonable amount for interest, the rates for private users will be lower than the actual cost of serving them, and taxes will eventually have to be increased to make up the deficit. This would result in discrimination against taxpayers in favor of private consumers. Ordinarily the rate of interest allowed corresponds with the rate being paid on the bonded indebtedness or what would have to be paid were the plant bonded. The plant should render not only actual interest requirements, decreasing in dollars as the indebtedness is amortized, but the going interest rate on its value. For instance, if the water rates should produce only enough to pay the actual interest where bonds were amortized to a figure under plant value, there would be no inducement to retire bonds, because as they are retired and the interest payments become smaller, the demand would come for rates yielding less revenue. On the other hand, if interest is allowed on the investment, it would be to the city's interest to retire the bonds as rapidly as possible and earn the interest itself, holding it in reserve for proper purposes."
IV. A municipally owned utility is not entitled, in addition to a reasonable return upon its investment, to charge rates to yield a sum sufficient to compensate *Page 547 the city for the taxes which would be paid upon the plant if it were privately owned.
Appellant's contention in its fourth paragraph of complaint that the rate is insufficient because it does not yield a sum sufficient to compensate the city for the taxes which 28-30. would be paid upon the plant if it were privately owned, was, by the sustaining of the demurrer, correctly denied. "The property of any county, city, town or township" which is exempted from taxation by clause 2, § 14037 Burns 1926, includes the electric-light plant here involved. Where a city purchases and operates a public utility the effect, so far as taxation is concerned, is to withdraw from the tax duplicate the amount for which such property was assessed. The additional tax burden thus created must be borne by the taxpayers generally unless an amount at least equal to these taxes can be earned by the utility and placed in the general fund of the city. The Wisconsin Railroad Commission has, in a number of cases, held that municipally owned utilities which are exempt from taxation (Re Board Water Commissioners, P.U.R. 1918F 79), may include as a part of the operating expenses local taxes, excluding state and county taxes (Re Milwaukee, P.U.R. 1927B 229), on the theory that they would be collected and placed in the general fund of the city if the plant were privately owned and operated (ReMukwanagok P.U.R. 1922B 109), in order that justice may be done between the consumers and general taxpayers (Re Hartford,
P.U.R. 1919F 216), and to maintain an equitable relationship between them (In re Fennimore, P.U.R. 1916A 848; Re LaCrosse,
P.U.R. 1924A 586; Re Kankanna, P.U.R. 1922C 839). By our decision on the question presented by appellant's third paragraph of complaint to the effect that a municipally owned utility is entitled to operate at a reasonable profit, we believe that this manifest unfairness to the taxpayers *Page 548
is avoided, and this court is unwilling to go further and hold that, in addition to a reasonable profit, such utility is entitled also to increase its rate to cover the amount of taxes which it does not pay. A city, by its citizens and taxpayers, in deciding to operate a utility, must have in mind, not only the advantages gained thereby, such as the elimination of official salaries, the power to finance its project at advantageous interest rates, etc., but also the provision of the law which exempts the property of a city from taxation. Taxes not being actually levied and paid, they should not be included as a cost of service. Cavanaugh v. Whitefish Mun. Water Utility, supra
(Mont. Pub. Ser. Comm.) P.U.R. 1922E 198, 216.
The judgment is reversed, with directions to the trial court to overrule the demurrer to the third paragraph of the complaint.
Myers and Travis, JJ., dissent.
1 City of Lafayette v. Cox (1854), 5 Ind. 38; Smith v.City of Madison (1855), 7 Ind. 86; Kyle v. Malin (1856),8 Ind. 34; First Presbyterian Church, etc., v. City of Ft.Wayne (1871), 36 Ind. 338, 10 Am. Rep. 35; Lewisville Nat. GasCo. v. State, ex rel. (1893), 135 Ind. 49, 34 N.E. 702, 21 L.R.A. 734; Champer v. City of Greencastle (1894),138 Ind. 339, 35 N.E. 14, 24 L.R.A. 768, 46 Am. St. 390; Pittsburgh,etc., R. Co. v. Town of Crown Point (1896), 146 Ind. 421, 45 N.E. 587, 35 L.R.A. 684; Vaughtman v. Town of Waterloo
(1896), 14 Ind. App. 649, 43 N.E. 476; Gas Light, etc., Co. v.City of New Albany (1901), 156 Ind. 406, 59 N.E. 176; Walker
v. Towle (1901), 156 Ind. 639, 59 N.E. 20, 53 L.R.A. 749;State, ex rel., v. Indianapolis Union R. Co. (1903),160 Ind. 45, 66 N.E. 163, 60 L.R.A. 831; Muncie Nat. Gas Co. v. City ofMuncie (1903), 160 Ind. 97, 66 N.E. 436, 60 L.R.A. 822; Scott
v. City of Laporte (1903), 162 Ind. 34, 68 N.E. 278, 69 N.E. 675; Voss v. Waterloo Water Co. (1904), 163 Ind. 69, 71 N.E. 208, 66 L.R.A. 95, 106 Am. St. 201, 2 Ann. Cas. 978; City ofElkhart v. Lipschitz (1905), 164 Ind. 671, 74 N.E. 528; EastChicago Co. v. City of East Chicago (1909), 171 Ind. 654, 87 N.E. 17; City of Delphi v. Hamling (1909), 172 Ind. 645, 89 N.E. 308; Frank v. City of Decatur (1910), 174 Ind. 388, 92 N.E. 173; Campbell v. Brackett (1910), 45 Ind. App. 293, 90 N.E. 777; Pittsburgh, etc., R. Co. v. City of Anderson
(1911), 176 Ind. 16, 95 N.E. 363; City of South Bend v.Chicago, etc., R. Co. (1913), 179 Ind. 455, 101 N.E. 628, Ann. Cas. 1915D 966; Windle v. City of Valparaiso (1916),62 Ind. App. 342, 113 N.E. 429; City of Indianapolis v. College ParkLand Co. (1918), 187 Ind. 541, 118 N.E. 356; Central Union Tel.Co. v. Indianapolis Tel. Co. (1920), 189 Ind. 210, 126 N.E. 628; Angola, etc., Tile Co. v. Millgrove School Tp. (1920),73 Ind. App. 557, 127 N.E. 855; Denny v. City of Muncie
(1925), 197 Ind. 28, 149 N.E. 639; Bartless v. City ofGarrett (1929), 89 Ind. App. 349, 166 N.E. 437.
2 In Holyoke v. Smith (1924), 75 Colo. 286, 226 P. 158, there was a "home rule" amendment to the state constitution under which it was held that any town in the appellant's class might free itself from the jurisdiction of the commission, and, inLogan City v. Public Util. Comm. (1928), 271 Pac. (Utah) 961, P.U.R. 1929-A 378, it was held that it was not the intention of the Legislature to delegate power over municipally owned utilities by its Public Utilities Commission Act by reason of the language of the act and of subsequent acts "indicative of an intention that the power of a municipality owning and operating its own utility to fix and determine its own rates and charges." The decisions in Holyoke v. Smith, supra, and Logan v.Pub. Util. Comm., supra, were based also on the conclusion that a provision of the state Constitution (in each state) that "the general assembly shall not delegate to any special commission . . . any power to . . . perform any municipal function" prevented a public utility board or commission from supervising or controlling the rates of a municipally owned utility. In so deciding, these courts disregarded the better reasoned case ofPublic Service Commission v. Helena (1916), 52 Mont. 527, 159 P. 24, P.U.R. 1916F, 389, wherein, under the same constitutional provision and a similar statute, it was held that a public service commission was not a special commission and, in effect, held that, in regulating such rates, it exercised a state and not a municipal function. In Los Angeles Gas and ElectricCorp. v. City of Los Angeles (1922), 188 Cal. 307,205 P. 125, it was said: "The sale and distribution of electrical energy manufactured by a city is a municipal affair, and one over which the Legislature of the state has no control." The city was "empowered by its charter to develop and sell electrical power" and the question there involved was whether the city had violated a charter provision "which prohibits the sale by the city of its electrical energy at wholesale unless authorized so to do by a two-thirds vote of the electors of the city." The court pointed out that "The powers of the city of Los Angeles are not derived from the Legislature but from a freeholders' charter directly provided for by the Constitution." In Barnes Laundry Co. v.Pittsburgh (1920), 266 Pa. 24, 109 A. 535, the court in its opinion "called attention to every provision of the act [creating the Penna. Pub. Ser. Comm.] which relates to or in any material aspect mentions municipalities" and held that "the review thus made forces the conclusion that such corporations are neither utilities within the term `public service companies' as used in the statute, nor are they embraced in its rate-making provisions; further, that they are not subject at all to the jurisdiction of the Public Service Commission beyond the `limited extent' provided in parts of the act," etc.
3 In a former proceeding involving the rates of the Logansport municipal electric plant, the Public Service Commission said:
"The schedule of rates herein authorized will yield sufficient revenue to meet the operating costs including depreciation, and also the interest on the electric light and power department bonds now outstanding and to be issued and to provide a sinking fund for the amortization of such bonds. The rates herein authorized will yield approximately 7 per cent on the value of the property and it is believed that the rates will yield sufficient revenue and no more than sufficient revenue to meet the proper and legal requirements of the department. There is no good reason for permitting the department to earn more than its needs and in no case should the taxpayers be required to make up a deficit." In re Logansport (No. 6265, Nov. 25, 1921), P.U.R. 1922B 669.
(In the present controversy, the commission found the value of the property to be $933,750. It does not appear what per cent on this valuation its earnings now amount to. The appellant alleges in its complaint in this proceeding that the value of the property is $1,300,000.) | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486549/ | This appeal is from an order of the Circuit Court for Harford County overruling a motion to strike out a judgment by confession. *Page 3
On the 1st of March, 1921, the appellants executed to the appellee the following promissory note:
"No. ____ Due ____ "$475.00. Delta, Pa., Mch. 1st, 1921.
"Twelve (12) months after date I, we or either of us promise to pay to the order of Martin Magness Four Hundred Seventy-five Dollars at The People's National Bank of Delta, Pa., without defalcation, value received, and we jointly and severally hereby authorize any attorney of record in this state, or elsewhere, to enter and confess judgment against us, jointly and severally, for the above sum, with costs of suit and attorney's commission of five per cent. for collection, release of errors, and without stay of execution; and we jointly and severally do waive the right and benefit of any law of this or any other state exempting property, real or personal, from sale; and if levy is made on land, we jointly and severally do waive the right of inquisition, and consent to the condemnation thereof, and full liberty to sell on fi. fa. with release of errors thereon.
"P.O. — Street, Md. With int. "Morris O. Forwood. (Seal) "Cassie D. Forwood."
The record consists of the docket entries in the case, a copy of the note, the motion to strike out the judgment, the evidence produced at the hearing of the motion and the order for an appeal. The docket entries in reference to the entry of the judgment are as follows:
"March 21, 1922. — Mem., Narr., Note and Authority and Agreement filed.
"March 21, 1922. — Judgment confessed in favor of the plaintiff for the sum of $530.18 and $12.50 costs of suit, with interest from March 21, 1922, with waiver of all homestead, stay and exemption laws of every kind." *Page 4
It further appears from the docket entries that the motion to strike out the judgment was filed on April 6th, 1922; that on May 19th the motion was heard and overruled and an appeal entered, that a "Fi. fa." was issued on the 24th of May, and that on the 29th of June, 1922, an appeal bond was approved and filed.
The evidence shows that some time in February, 1922, the appellants received a notice from the appellee calling their attention to the fact that the note would become due on March 1st; that the notice did not state where the note was payable, and that the appellants could not at the time recall whether it had been made payable at the Farmers Merchants National Bank of Belair or the People's National Bank of Delta, Pennsylvania, and that prior to March 1st they deposited the amount of the note, principal and interest to date of maturity, in the Belair bank and directed that bank to pay the note if presented there for payment, and that they also explained the situation to the Delta bank, and through its teller arranged with that bank to pay the note and interest to the maturity of the note in case it was presented at that bank for payment; that shortly after the note became due, Mr. Forwood, one of the appellants, discovered by reference to some of his accounts that the note had been made payable at the Delta bank, and that he thereupon promptly drew the amount deposited in the Belair bank and deposited it, on March 6, 1922, in the Delta bank, with instructions to that bank to apply it to the payment of the note and interest when presented there for payment; that the note has never been presented for payment at the Delta bank, and that the amount of same, principal and interest to March 1st, 1922, was still on deposit there for the purpose stated; that two or three days prior to March 16th, 1922, Mr. Forwood received another letter from the appellee in regard to the note, to which he replied by letter, dated the 16th of March, calling his attention to the fact that the note was payable at the Delta bank, and telling him that he had complied with its terms "long *Page 5
ago," and that if he would do the same he would have "no more trouble."
Instead of presenting the note for payment at the Delta bank when it became due, or after he received Mr. Forwood's letter of the 16th of March telling him, in substance, that he had provided for its payment at that bank, the appellee, a day or so later, on the 21st of March, had the judgment by confession entered, not only for the principal of the note and the interest thereon to the date of maturity, but apparently for the principal and interest to the date of the judgment, and a collection fee of five per cent. of that amount and $12.50 costs of suit, thereby subjecting the appellants to an additional burden of nearly forty dollars.
As early as the case of Bowie v. Duvall, 1 G. J. 175, where the note was payable at a particular place, and the right to recover thereon was resisted on the ground that there was no averment and no proof of a demand for the amount of the note at the place named, the court, in holding that it was not necessary to aver or prove such a demand, said that it decided the case "upon the broad ground, that when the suit is against the maker of a promissory note, no demand is necessary to be averred, upon the principle, that the money to be paid is a debt from the defendant, that it is due generally and universally, that it will continue due, though there be a neglect on the part of the creditor, to attend at the time and place, to receive or to demand, that it is a matter of defense on the part of the defendant, to show that he was in attendance to pay, but the plaintiff was not in readiness to receive, which defense generally, will be in bar of damages only, and not in bar of the debt." That case was in accord with the generally accepted rule in this country prior to the enactment of the Negotiable Instruments Act (3 R.C.L., sec. 392, pp. 1174-1195; 3 C.J.,
sec. 741, pp. 527, 530), which provides that "presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable *Page 6
at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part." Code, art. 13, sec. 89.
The effect of a tender is to arrest the running of interest and to relieve the debtor of liability for costs, but in order to have that effect the tender must, in certain cases, be kept good, and where the debtor is subsequently sued and the tender is relied upon as a defense, it must be specially pleaded, and the plea must be accompanied by a profert in curia, or payment of the amount tendered into court. 26 R.C.L., secs. 27, 34, 43 and 44, pp. 646, 652, 658, 659; Adams v. Hackensack ImprovementCommission, 44 N.J.L. 638; Lewey v. H.C. Frick Coke Co.,166 Pa. 536, 28 L.R.A. 283; Columbian Bldg. Assn. v. Crump,42 Md. 192; McCullough v. Hellweg, 66 Md. 269; Middle StatesCo. v. Mattress Co., 82 Md. 515; 1 Poe's Pl. Pt. (3rd ed.) sec. 611; Karthaus v. Owings, 6 H. J. 134; Soper v.Jones, 56 Md. 503; Bonaparte v. Thayer, 95 Md. 548;Norfolk W.R.R. Co. v. Langdon, 118 Md. 268.
We do not understand the appellee as questioning the effect of a tender to the payee of the principal and interest due on the note, but he insists that, in order to establish the tender in this case, it was incumbent upon the appellants to show that they had that amount on deposit to their credit in the Delta bank on the 1st of March, 1922. The answer to this contention is that the statute does not so provide, but declares that the maker's "ability and willingness" to pay the note when due at the place named is equivadent to a tender. That the appellants were able and willing to pay the note at the Delta bank on the date of its maturity; that it would have been paid on that date had it been presented there for payment, and that the amount of the principal and interest to the date of maturity was at the time of the hearing of the motion still in said bank for that purpose, are undisputed facts in this case, and, as we have said, there is also evidence tending to show that the appellee knew, before the judgment *Page 7
was entered, that provision had been made for the payment of the note at the Delta bank.
While the warrant of attorney contained in the note does not specify when the judgment by confession should be entered, after a tender at the maturity of the note of the amount due thereon, a judgment should not have been entered against the appellants for an amount including interest from the date of the tender and the attorney's commission for collection, or for costs.
There is another reason why the judgment in this case should not have been permitted to stand. The warrant of attorney to confess judgment contained in the note is expressly limited to "the above sum," costs of suit and an attorney's commission of five per cent. The only "sum" mentioned "above" is $475, the principal of the note. There is no authority in the warrant of attorney to include the interest in the judgment, and the only reference to interest in the note is contained in the words "with int." written at the bottom of the note after the postoffice address, presumably of the makers. This may be attributable to the fact that the parties made use of a note of the form usually employed where the note is not intended to bear interest, and that the words "with int." were added so as to meet that defect. But however this may be, the authority of the attorney is measured by the terms of the warrant, and he is not authorized to confess judgment for a greater amount than the sum specified. It is said in 15 R.C.L., p. 652, sec. 97: "Where a judgment is entered on a warrant of attorney, the only basis for the acts of the attorney entering an appearance and confessing a judgment against the party who signed the warrant is found in the warrant itself," and on page 657, sec. 104, of the same volume it is said: "Not only must the statutory authority to confess judgment be strictly followed but it is also necessary that all proceedings in the confession of judgment must be within the strict letter of the warrant of attorney. These instruments are strictly construed, and an attorney acting under a *Page 8
warrant cannot change its terms or enlarge its scope." The same rule is stated in 23 Cyc., p. 705.
It follows from what has been said that the order of the court below must be reversed. But as the evidence in the case establishes a tender by the appellants to the appellee on the date of the maturity of the note of the amount, principal and interest, due thereon, and as the evidence also shows that that amount is still due, we think the appellants should be required to pay into the court below, for the use of the appellee, the amount of the principal of said note, and interest thereon to the first day of March, 1922, which is admitted to be due, as a condition upon which the judgment shall be stricken out. Heaps
v. Hoopes, 68 Md. 383; Coulbourn v. Fleming, 78 Md. 210;Tyrrell v. Hilton, 92 Md. 176.
The order of the court below will therefore be reversed, and case remanded, with directions to strike out said judgment upon payment by the appellants into said court, after reasonable notice to them, for the use of the appellee, of the amount of the principal of said note and the interest thereon to the first day of March, 1922.
Order reversed, with costs to the appellants, and caseremanded. *Page 9 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486550/ | A trustee in bankruptcy sues the present clerk of the Circuit Court for Howard County in equity for money paid by the bankrupt within four months of the filing of her petition to make good a shortage in the public funds received by her husband, predecessor in the office of clerk. United States Bankruptcy Act sec. 67e [11 U.S. Code Ann. sec. 107 (e).] The bill prays a decree that the money be declared held in trust for the complainant and that it be paid over to him. The appeal is from a dismissal of the bill after evidence taken and an agreed statement of facts filed.
Upon the death of the husband, the former clerk, Howard S. Kuhn, a fund for making up any shortage in his accounts was collected in the name and account of the widow's brother, Harry S. Owings. Another brother, Basil E. Owings, contributed $3,000, and from life insurance paid to the widow $18,753.57 in all was collected and deposited in the same account, making the total on deposit for the purpose $21,753.57. The state auditor found a deficit in the clerk's funds of $6,288.81, or, after applying $1,822.46 on deposit in the name of Kuhn as clerk, a net deficit of $4,466.35. And in compliance with a demand of the state comptroller this net amount was paid by Harry S. Owings from the money collected and deposited for the purpose as stated. Payment was made by a deposit to the credit of Kuhn as clerk. Under an order of the circuit court, the deposit was transferred to the new clerk, the former account closed, and the *Page 467
amount distributed by the new clerk to the parties entitled to the replaced funds. The sum of $3,307.09 was ordered to be paid and set apart for the use and benefit of the library of the court under the Acts of 1931, ch. 225, which provides that half of the fines imposed and recognizances forfeited to the court shall be so paid and held by the clerk "to be expended under the direction of the judge or judges of said courts for the augmentation of libraries of said courts." The deficit having been made good, Harry S. Owings, by check on the account remaining in his name, paid back the sum of $3,000 to his brother Basil E. Owings. It is the sum held in the library fund that is now sought by the trustee's bill of complaint.
Proceedings in bankruptcy against the widow were instituted a little over three months after Basil E. Owings contributed the $3,000 and started the collection of the fund to pay any deficit. The widow's indebtedness, which she was unable to pay, was principally on notes of her husband in which she had joined.
Several questions have been raised and argued, but it seems to the court that none need be discussed on the appeal, except that of the right of the complainant to sue the clerk for this money. Agreeing with the chancellor, this court concludes that the suit is prohibited by the Eleventh Amendment of the Constitution of the United States, concerning suits against states in their own courts without their consent. The fund from which payment is sought is one representing fines and recognizances, which the clerk holds as a mere custodian or agency of the State, and for which he is accountable to the state comptroller. While, by the terms of the act of 1931, it is set apart for a definite purpose, and is to be expended under orders of the circuit court, that court is only an agency of the State, conducted by state officers, for the exercise of the judicial power of the State. Const. Md. art. 4, sec. 1.
The distinctions drawn, between suits which have been held to contravene the Eleventh Amendment and those which have not, leave generalizations and definitions on *Page 468
the point difficult, but this court has not been able to see any sufficient ground for holding this particular case free from the prohibition. The appellant contends that, when money has been paid in to the State under a mistake of fact, suit against the officer holding the money may be maintained, and that in this instance the money sought was paid in by the bankrupt widow under the mistaken supposition that she was solvent. But we find no sanction for excepting suits for money paid under mistake. "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." Red Star Line v. Baughman, 153 Md. 607, 610, 139 A. 291, 293; Foote Co. v. Stanley, 117 Md. 335, 347,82 A. 380; State v. Rich, 126 Md. 643, 645, 95 A. 956; Statev. Wingert, 132 Md. 605, 611, 104 A. 117; Williams v.Fitzhugh, 147 Md. 384, 387, 128 A. 137; State v. Balto. O.R.Co., 34 Md. 344, 374. We are not to be understood as agreeing in the view that the widow's ignorance or lack of realization of the amount of her indebtedness on the notes, and of her insolvency, might constitute a mistake inducing payment, within the principles regarding recovery of money paid under a mistake of fact: we pass the question as one needing no consideration now.
Decree affirmed, with costs. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427427/ | The appellant was charged with contributing to delinquency of child, under § 10-812, Burns' 1942 Replacement (1947 Supp.). Appellant waived a trial by jury, the cause was submitted to the court on a plea of not guilty, finding and judgment were entered against the appellant and sentence followed.
The appellant alleged as error both the overruling of her motion for a new trial and her supplemental motion for a new trial.
The appellant alleged as a ground for error the overruling of her application, motion and request for a continuance. At no place in the transcript or brief are the application, 1. motion and request for a continuance set out, nor is the action of the court on such application, motion and request for a continuance set out, and therefore there is no question raised on appeal for review by this court. Oelfke v. State
(1923), 192 Ind. 602, 137 N.E. 553; Eva v. State (1932),203 Ind. 340, 345, 180 N.E. 183.
As another ground for new trial, the appellant alleged error in the overruling of the motion on the ground of newly discovered evidence. The affidavits setting out the newly discovered 2-4. evidence, upon which the appellant bases her contention for a new trial, are not in the bill of exceptions, and therefore raise no question for this court. Hoy v. State
(1947), 225 Ind. 428, 75 N.E.2d 915; Butler et al. v. State
(1945), 223 Ind. 260, 60 N.E.2d 137; Bowling v. State
(1942), 220 Ind. 497, 44 N.E.2d 171; Soucie v. State (1941),
*Page 506 218 Ind. 215, 31 N.E.2d 1018; Kleespies v. State (1886),106 Ind. 383, 7 N.E. 186. Even though the affidavit was in the bill of exceptions in Sullivan et al. v. State (1937),212 Ind. 79, 6 N.E.2d 951, this court stated that newly discovered evidence must be such as will probably change the result on a new trial; that it must appear that due diligence was used in obtaining the newly discovered evidence, and that it is not cumulative or impeaching. In this case the appellant was charged with contributing to delinquency of Elizabeth Joan Sawyer. Her testimony, standing alone, would be sufficient to convict the appellant. The only purpose of the affidavits would be to impeach two of the witnesses, and therefore do not come within the rules set out in the above case. The newly discovered evidence is purely of an impeaching and contradictory nature. Bowling v.State, supra; Gavalis v. State (1922), 192 Ind. 42, 135 N.E. 147.
As a further ground for new trial, the appellant alleged error in overruling her alleged claim of accident and surprise. There is no showing at any place in the record of either accident 5. or surprise, and the alleged error is based on the two affidavits filed with the motion for a new trial claiming newly discovered evidence, and therefore not being in the bill of exceptions raise no question for review by this court. Butler etal. v. State, supra.
Appellant further alleges that the judgment of the court was not sustained by sufficient evidence and was contrary to law.
The testimony of Elizabeth Joan Sawyer was that she was thirteen years of age, that she had known the appellant for two or three weeks, and that she was in the appellant's 6, 7. house, and that the appellant told her to have intercourse with men, and that she did have sexual relations with different men, *Page 507
that each of them gave her five dollars, which she gave to the appellant, and that the appellant gave her back two dollars. Although the evidence is contradicted, this court cannot weigh evidence, and, if there is any evidence upon each of the material facts, this court must sustain the findings and judgment of the lower court. Ritter v. State (1946), 224 Ind. 426,67 N.E.2d 530; Kleespies v. State, supra.
As further grounds, under appellant's supplemental motion for a new trial and assignment of errors, appellant alleges error in refusing to allow the appellant's attorney to interview Elizabeth Joan Sawyer, in denying the appellant's verified petition to see and interview Elizabeth Joan Sawyer, and in refusing to admit the appellant to bail pending her appeal to the Supreme Court of Indiana. These grounds will be discussed together.
The "Petition for Interview With Witness" was filed on December 27, 1948, long after the trial and judgment against the appellant; and all of the other grounds, as above set out, 8. took place long after the finding and judgment against the appellant, and these are not proper matters to be presented on appeal in this case.
Error is alleged by the appellant in being sentenced to the Indiana Women's Prison rather than to the county jail. Section 13-616, Burns' 1942 Replacement, requires that all female 9. delinquents who are above the age of commitment to the Indiana Girls' School, and whose punishment consists of confinement in the county jail for more than thirty days, shall be sentenced to the correctional department of the Indiana Women's Prison. Therefore, in conformity with this statute, the appellant was properly sentenced. *Page 508
There being no reversible error, the judgment is affirmed.
NOTE. — Reported in 86 N.E.2d 675. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427428/ | The affidavit under which appellant was prosecuted contained four counts, but the verdict found only that he was "guilty as charged in the first count," and fixed his punishment at a fine of $500 and imprisonment for six months. Judgment was rendered accordingly. Overruling the motion for a new trial is the only alleged error presented for consideration, under which appellant has specified the refusal to give certain instructions, as requested, the admission of certain items of evidence, and the alleged insufficiency of the evidence to sustain the verdict. The first count of the affidavit alleged that on April 18, 1923, at the county of Delaware, State of Indiana, appellant did then and *Page 558
there unlawfully sell, barter, exchange, give away, furnish and dispose of intoxicating liquors to divers persons whose names were to the affiant unknown. There was evidence that on said date, at about 9 o'clock in the evening, appellant and three other men were in his rug cleaning establishment at Muncie, with the door locked and the blinds pulled down on the door and window; that the three men were white men; that this was in a room fifty feet long adjoining a small room used by appellant as a living apartment at the back end; that one of the men there was a local doctor and another was a "travelling salesman" who had come with him; that, when these two men arrived, they had found the door locked, but it was opened to admit them and was again locked; that four police officers, with a search warrant for his place, knocked at appellant's door, when he went to it, raised the blind and looked out, and, on seeing the officers, pulled the blind down and started toward the back part of the room; that the officers entered and followed close behind him, appellant's witnesses testifying that he opened the door for them, and the officers saying that they pushed it open; but there was no suggestion that their entry was unlawful; that, when the officers entered, appellant was going toward some whisky in the back part of the room "trying to get to those bottles"; that the three visitors were sitting within five or six feet of the stove, on the side away from the door; and still farther back in the room, about fifteen or twenty feet from the door by which the officers entered, was a quart bottle with a half-pint of "white mule" or "moonshine" whisky in it, and a "whisky glass" beside it, and a bottle, partly full of wine, setting on a restaurant stool; that the three men were sitting about ten feet or less from the stool where the whisky was; that none of the men seemed ill; that the officers also found another small glass there; that in *Page 559
the room were also a bed, some piles of rugs, some setting hens, two chairs, another stool and some "junk"; that appellant had been in the business of cleaning rugs there for three years; none of the visitors took a rug away when they left; that both white and colored people frequently came there; that before the officers came in, the doctor handed appellant a bottle of medicine and some tablets in an envelope for which and the trip out there, he charged appellant $3, but there was no evidence that any money was paid; that after talking with appellant over the telephone, the doctor and travelling salesman had driven twenty blocks in the salesman's car from the doctor's office to appellant's place; that of the three visitors who were in appellant's place, one was not known to any witness examined on behalf of the state, and another was not known to two of them. The man who made the affidavit on which appellant was prosecuted did not testify, and there was no testimony whether or not he knew any of the men referred to.
In the absence of any evidence tending to show that the one who made the affidavit really knew the name of the person to whom intoxicating liquor was sold, etc., as charged therein, 1-3. this evidence was not insufficient for lack of specific proof that he did not know it. Carter v. State
(1909), 172 Ind. 227, 232, 87 N.E. 1081. The facts proved sufficiently support the inference which the jury drew that appellant was guilty of the offense charged.
Appellant objected and excepted to the introduction of certain items of evidence the admission of which he has specified as errors. But, in each instance, he offered an objection in the trial court which he has wholly abandoned on appeal, and is urging in this court reasons for the exclusion of the evidence which were not suggested to the court below. Thus, when evidence was offered of reputation, the objection made in each instance *Page 560
was that the witness had not been shown by preliminary questions to be sufficiently acquainted in the community, no objection being suggested to the form of the questions asked or to the facts sought to be proved. But appellant's statement of points, citation of authorities and argument with reference to the ruling on this objection are all addressed to the single proposition that the questions asked by the prosecuting attorney which elicited the testimony complained of were not confined to the matter of reputation in the particular neighborhood. And, in the cross-examination of a witness for the defense, a question was asked to which the only objection offered was that the fact inquired about was "wholly immaterial"; while the objection urged on appeal, supported by the authorities cited and the argument made, is that "the cross-examination of a witness should be confined to the subject-matter of the original examination."
It is only those objections which were made in the trial court that are available as cause for reversing a judgment on appeal, and not other objections neither presented to nor passed 4, 5. upon by that court. Musser v. State (1901), 157 Ind. 423, 61 N.E. 1; Marietta Glass Mfg. Co. v. Pruitt
(1913), 180 Ind. 434, 441, 102 N.E. 369; Howard v. State
(1921), 191 Ind. 232, 243, 131 N.E. 403, 407; Massachusetts,etc., Ins. Co. v. State, ex rel. (1921), 191 Ind. 595, 131 N.E. 398, 402; Fame Laundry Co. v. Henry (1924),195 Ind. 453, 144 N.E. 545, 548. Besides, the evidence complained of was offered to support the charge contained in a different count of the affidavit than the one under which appellant was found guilty, and it does not appear that appellant could have been prejudiced in any manner by its admission.
The court gave separate instructions with relation to the charge in each count of the affidavit, setting out *Page 561
the statute upon which the charge in such count was 6-9. based, and reciting just what facts must be found "beyond a reasonable doubt" to authorize a conviction in each instance. The instructions given with relation to the first count recited the provisions of the statute declaring it to be unlawful "to manufacture, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor," and providing what should be the penalty for so doing (§ 1, Acts 1923 p. 70), and declared the law with reference to that charge as follows: "If you find from the evidence beyond all reasonable doubt that the defendant, Sidney Gillenwater, on or about the 18th day of April, 1923, did then and there unlawfully sell, barter, exchange, give away, furnish and dispose of intoxicating liquor, to divers persons whose names were unknown, within Delaware county, State of Indiana, then the defendant is guilty under the first count of said affidavit." The court also instructed the jury, at the request of appellant, that, at the time the alleged offense was committed, the mere possession of intoxicating liquor was not unlawful. No objections have been suggested by appellant to any of the instructions given. But appellant also asked the court to give instructions stating that at said time the possession of intoxicating liquor with intent to sell, barter, exchange, give away, furnish, or otherwise dispose of the same was not unlawful, and that the possession of less than a gallon of intoxicating liquor was no evidence that the accused intended to sell, barter, exchange, give away, furnish or otherwise dispose of it in violation of law. The affidavit did not contain a charge, in any count, that he did have possession of liquor with any such intent. And the finding that appellant was guilty only as charged in the first count, which alleged an actual sale, gift, barter, *Page 562
etc., was a finding that he was not guilty of any offenses charged by other counts of the affidavit, whether possession with such intent could enter into any of them as an element or not.Beaty v. State (1882), 82 Ind. 228, 229; State v.Morrison (1905), 165 Ind. 461, 462, 75 N.E. 968.
Neither does it appear that any question to which the requested instructions would be pertinent was brought into the case by the introduction or offer to introduce evidence, or by anything said in argument. The court was not required to give instructions which would not have been pertinent to the issues joined nor the evidence heard. Neither can we presume that appellant was harmed by a failure to give further instructions touching a charge of which he was acquitted, even should we assume that the requested instructions might have been proper under some count of the affidavit other than the one on which he was found guilty.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427429/ | Isaac Lowrey brought this action against Luther W. and Frank C. Hess, to recover damages alleged to have resulted from the negligent and unskilful manner in which they set and treated his shoulder, which had been dislocated and fractured.
It is charged in the complaint, that the defendants were partners, engaged in the practice of medicine and surgery, and that the plaintiff, having sustained a fracture and dislocation of his shoulder, employed them, and they undertook, for a certain reward, to set, reduce and treat it, and that they executed their undertaking so negligently and unskilfully as that his arm and shoulder became and remain stiff, immovable and fixed, in an unnatural position; that in consequence of their negligence and unskilful treatment, he suffered and still suffers great pain, distress and impairment of health, and that he is permanently disabled from pursuing his usual avocation. Incidentally, it is recited that in attempting to better *Page 470
and cure his arm and shoulder, he has expended $300. Damages are laid at $10,000.
While the cause was pending Luther W. Hess died, and his death was suggested on the record. Thereupon, Walter A. Boor, administrator of his estate, was substituted as a defendant. Over the several objections of both defendants, the action was prosecuted to final judgment, resulting in a recovery against the estate of the one, and against the other personally for $6,000.
First in the order of presentation and in importance is the question, whether, after the death of Luther W. Hess, the action survived against his personal representative?
It is plainly enacted in the statute, section 282, that "A cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person," etc.
The rule actio personalis moritur cum persona, is thus transformed from an ancient maxim of the common law into an express statutory declaration, except only in the cases provided for by its terms. It is said, however, that where a duty is founded upon contract, even though the breach of it may be in tort, an action ex contractu may, at the election of the person injured, be maintained, and that where the action is thus brought, it survives notwithstanding the statute. In support of this contention, Staley v. Jameson, 46 Ind. 159 (15 Am. R. 285), andBurns v. Barenfield, 84 Ind. 43, are relied on. These were cases against surgeons for malpractice, and both turned upon the statute which requires actions for injuries to the person to be commenced within two years. In each it was held that the action was in form excontractu, and that the statute limiting the time for the commencement of actions for injury to the person did not apply.
What the particular damages were which were claimed as the subject of the actions, respectively, does not. clearly appear from the statement of the complaint in either case. It *Page 471
must be assumed, however, that the actions were for the recovery of special damages, which had relation to property. They were not, therefore, actions to recover for injuries to the person. If they were, the conclusions reached can not be maintained.
This assumption would seem to be justified by an examination of the authorities upon which the decisions are made to rest. Those which support the conclusion reached are cases involving injury to personal property. Dale v. Hall, 1 Wilson, 281; Burnett v. Lynch, 5 B. C. 589.
It may be that actions ex contractu are maintainable for the recovery of special damages resulting from a breach of duty founded on contract, even though injury to the person results. The action thus maintainable, however, is not, and can not be predicated upon the personal injury, nor to recover damages resulting from injuries to the person. The action must involve injury to the estate, and not to the person. Where the primary cause of action is an injury to the person, and the damages sought to be recovered relate primarily to such personal injury, the statute which provides that actions to recover damages for injuries to the person die with the person of either party, can not be abrogated by the mere form in which the action is brought.
The case of Bradshaw v. Lancashire, etc., R. W. Co., L. R. 10 C. P. 189, affords an example of the instances in which actions sounding in tort may survive. In that case the declaration stated that the testator, a boot and shoe manufacturer, had become a passenger on the defendant's railway, to be carried on a certain journey for a reward, and that they promised to take due care whilst carrying him as such passenger. Breach, that the defendants did not take care in carrying him, whereby he was injured, and incurred expense in medical attendance, and was prevented from attending to his business, and from personally conducting the same, and that great loss and damage was thereby occasioned to the personal estate of the testator. It was contended that because of the death of the testator the *Page 472
executrix could not maintain the action. But as the ground of the action was to recover damages which accrued to the estate of the testator in his lifetime, such as medical and other expenses, and for injury to business resulting directly from the breach of the contract to carry, it was held the action survived.
Of the same character was the case of Potter v. Metropolitan, etc., R.W. Co., 30 L. T. (N.S.) 765; S. C., 32 L. T. (N.S.) 36. In that case, after quoting from Knight v. Quarles, 2 Brod. Bing. 102, to the effect that if, through the default of a carrier, one sustains an injury to his person, whereby his means of improving his personal property were destroyed, his executors might sue, BRAMWELL, B., said: "Now here there has been a breach of contract, which has caused a loss, which has fallen upon the personal estate," and it was held that the action was maintainable to recover for such loss.
Again, when the case came before the Exchequer Chamber, Lord COLERIDGE, C. J., said: " From a breach of the contract on the part of the defendants a loss or damage accrued to the personal estate of the plaintiff's testator." Accordingly it was held that where there was a promise and a breach of it in the lifetime of the testator, resulting in an injury to his personal property, an action in assumpsit might be maintained to recover for such injury. So, also, it is said in 2 Williams Exrs., pp. 876, 877: "If the executor can show that damage has accrued to the personal estate of the testator by the breach of an express or implied promise, he may well sustain an action, at common law, to recover such damage, although the action is in some sort founded on a tort." See, also, Tichenor v. Hayes, 41 N. J. L. 193
(32 Am. R. 186; 9 Cent. L. J. 470). This much has been said to limit the cases ofStaley v. Jameson, supra, and Burns v. Barenfield, supra, to the class of actions to which they were doubtless intended to have application.
It is not necessary that we should determine the particular character of special damage to property which might *Page 473
be recoverable in an action on contract where injury to the person was an incident. It is enough to say this action is brought primarily to recover for injury to the person. That an action, the purpose of which is to recover for an injury to the person, can not be maintained after the death of the person committing the injury, is, we think, supported by all the authorities, and this, too, regardless of the form in which it is brought.
In Stebbins v. Palmer, 1 Pick. 71, it was held that an action for breach of promise of marriage would not survive against the personal representative of the promisor. WILDE, J., said: "The distinction seems to be between causes of action which affect the estate, and those which affect the person only: the former survive for or against the executor, and the latter die with the person."
Following this case, COLT, J., said, in Kelley v. Riley, 106 Mass. 339
(8 Am. R. 336), a similar case: "The action could not be continued to summon in the administrator, because, as no special damage is alleged, it does not survive."
In the later case of Chase v. Fitz, 132 Mass. 359, which was an action of the same complexion, in which an attempt was made to charge special damage, it was held that the neglect or refusal to perform an invalid executory contract could not constitute a basis for special damage. After defining, to some extent, what was meant by the phrase "special damage," as used in the class of cases to which this belongs, it was held that the action did not survive against the personal representative. See, also, Smith v. Sherman, 4 Cush. 408;Grubbs v. Sult, 32 Grat. 203 (34 Am. R. 765); Dillard v.Collins, 25 Grat. 343. In the case of Wade v. Kalbfleisch, 58 N. Y. 282
(17 Am. R. 250), which was an action for breach of marriage contract, brought in form ex contractu, the court by CHURCH, C. J., said: "Although, in form, this action resembles an action on contract, in substance it falls within the definition of the exception, as an action on the case for personal injuries. * * * The controlling consideration *Page 474
is, that it does not relate to property interests, but to personal injuries." In that case it was intimated that as the cause of action was for personal injuries, and as it was indivisible, if the personal features of the action were abandoned, leaving nothing but the incidents, special damages were not recoverable. Zabriskie v.Smith, 13 N. Y. 322. In Lattimore v. Simmons, 13 Serg. R. 183, the same question was involved. In that case, as in this, the action had been brought in the lifetime of the contracting parties. The defendant having died pending the action, the question was, whether it survived against his executors. TILGHMAN, C. J., in the course of the opinion, said: "But the counsel for the plaintiff rely on the contract in this case, and on some general dicta that all actions founded on contract, survive. This position is too general. If true, it must extend to contracts implied as well as expressed. Suppose the case of a physician or surgeon, who by unskilful treatment injures the health of a patient. Here is a breach of an implied contract; and yet it will hardly be contended, that in case of death, the cause of action would survive. It seems reasonable, therefore, to confine the survivor of action, to cases in which actual property is affected, even though there be an express contract." So, too, in the case of Chamberlain v. Williamson, 2 M.. S. 408, Lord ELLENBOROUGH said: "Executors and administrators are the representatives of the temporal property, that is, the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate. But in that case the special damage ought to be stated on the record; otherwise the court can not intend it. * * All injuries affecting the life or health of the deceased; all such as arise out of the unskilfulness of medical practitioners; * * would be breaches of the implied promise by the persons employed to exhibit a proper portion of skill and attention. We are not aware, however, of any attempt on the *Page 475
part of the executor or administrator to maintain an action in any such case."
The case of Vittum v. Gilman, 48 N. H. 416, was an action against the personal representative of a deceased surgeon, and is directly in point. In that case it was said: "It is generally true that a cause of action arising ex contractu survives against the executor; and it is generally true that a cause of action arising ex delicto dies with the wrong-doer. In both cases there are well established exceptions. In respect to the latter, if the offender acquires no gain to himself at the expense of the sufferer, as by beating or imprisoning a man, or by slander, the cause of action does not survive; but if by the wrong, property is acquired by the wrong-doer whereby his estate is benefited, an action in some form will lie against the executor to recover the value of the property." This case was approved and followed in the later case ofJenkins v. French, 58 N. H. 532. In this last case it was held that where the cause of complaint is for injury to property, to which a personal injury is merely an incident, the action survives, but where the cause of action is for an injury to the person, and property is merely incidentally affected, it does not survive. To the same effect isWolf v. Wall, 40 Ohio St. 111.
In the case under consideration, the cause of action stated in the complaint, and for which damages are claimed, is the injury to the person of the plaintiff. The injuries recited which might be classed as injuries affecting property are merely incidents growing out of the injury to the person. In whatever form an action might be brought to recover for such injuries, it must be held to abate with the death of the defendant, as well within the common law maxim as within the express terms of section 282, R. S. 1881.
It might well be said within the holding in Goble v. Dillon,86 Ind. 327 (44 Am. R. 308), that the action was brought in form exdelicto, but we choose to put it on the broader ground, that regardless of the form in which the action is brought, *Page 476
since the injury for which a recovery is sought is an injury to the person, it can not survive the death of the defendant.
In respect of the personal representative of the estate of Luther W. Hess, it was error for the court to require him to answer for the estate of his decedent, over his motion to dismiss.
The question remains, whether by the death and consequent abatement of the action as to Luther W. it also abated as to Frank C. Hess?
Upon the record as it comes before us, we are not prepared to hold that the death of one partner had the effect to abate the action as to both.
As the judgment which was pronounced in the court below must of necessity be reversed, and as this question does not seem to have received such attention in the argument as its importance merits, we do not now until fuller argument decide it. Ordinarily, torts are joint and several, and each tortfeasor, who is shown to have participated in the wrong, is liable for the whole damage. It is suggested, however, that this only applies to cases of intentional wrong, and that because neither of the defendants who were employed as surgeons, may have been willing to undertake the case without the skill and experience of the other, their liability was joint, and not several, and that the abatement of the action as to the one discharged the other. The statement of these propositions on the one side is the extent of the argument relating to the point mentioned on both, and for the reasons already stated we leave the question undecided. Moreover, we think, without a plea, no cause for the abatement of the action is shown upon the face of the record as to the defendant Frank C. Hess. While it is true, that because the record contained a suggestion of the death of Luther W., the cause for the abatement of the action was, as to him, apparent on the face of the record, this did not ipso facto abate the action as to his co-defendant. If the action did in fact abate as to him, it must have been upon some cause in addition to *Page 477
the death suggested, and a plea was, therefore, necessary to bring it on the record.
The action having been prosecuted jointly against the administrator of the deceased partner and the surviving partner, and a joint verdict having been returned against both, since the action had abated as respects the one, no judgment could rightfully be rendered on such verdict over a motion in arrest against both, even if it could have been at the plaintiff's election against the survivor. Allen v.Wheatley, 3 Blackf. 332; Palmer v. Crosby, 1 Blackf. 139;Everroad v. Gabbert, 83 Ind. 489, and cases cited.
After the death of Luther W. Hess was suggested on the record, the case stood to all intents and purposes in legal contemplation as a case against the surviving defendant alone. The proceedings thenceforth, so far as they treated the case as an action against two, were all erroneous, and the verdict having been returned against two, in an action to which in contemplation of law there was but one defendant, it was so radically defective as that no judgment could be pronounced upon it over a motion in arrest.
The court is bound to arrest the judgment where there is such error appearing on the face of the record as vitiates the proceedings. Ordinarily, the objection should be taken by a motion for a venire denovo. But as upon the whole record, including the verdict, no judgment could properly be rendered, we think the motion in arrest was well taken.
It was shown that after the plaintiff had been discharged by the surgeons as not requiring further attention from them, he, with his son and one Priddy, called upon Luther W. Hess in the absence of Frank C., and engaged him in conversation. Neither the purpose in going, nor the conversation had while there, had any relation to the further treatment of the plaintiff, but rather to the condition of the shoulder as it then was. This conversation having taken place in the absence of Frank C., objection was made to the introduction in evidence of alleged admissions and declarations made by Luther *Page 478
W. during its progress. The declarations of one partner are admissible in proper cases against the firm, on the ground that in such cases the law implies an agency on the part of the one to bind the firm in transactions relating to its business. In order that such declarations may be admitted, they must have been made in the course of the partnership business, and with respect to a transaction pertaining to its business.
In this respect declarations of a partner, made in the absence of the other partners, stand upon the same footing with the declarations of other agents. Abbott Trial Ev. 218; Hahn v. St. Clair, etc., Co., 50 Ill. 456; Graham v. Henderson, 35 Ind. 195; King v. Barbour, 70 Ind. 35;LaRose v. Logansport National Bank, 102 Ind. 332.
Neither the admissions nor declarations of Luther W. Hess, made after the event to which they referred had transpired, could properly be received in evidence to bind. Frank C. Hess, unless they were so immediately connected with the event as to become part of the resgestœ. Pittsburgh, etc., R. R. Co. v. Theobald, 51 Ind. 246.
If the one had administered an improper prescription, or neglected to do something proper, the other would have been answerable for his acts or omissions. But for opinions expressed by the one, in the absence of the other, after the employment was at an end, as to the propriety of the treatment, or the results attained, the absent partner is not responsible.
The rule is especially applicable in cases involving negligence where no common motive is imputable. Ordinarily, the declarations of one in the absence of the other, in such cases, are not admissible. 1 Greenl. Ev., section 111, and notes.
Over the objection of the administrator, the plaintiff was permitted to testify as to matters occurring and conversations had with the deceased during the course of the reduction and treatment of the dislocated shoulder.
The plaintiff was admitted to testify, on the ground that the deceased had previously testified on a former trial, and *Page 479
that his testimony was available to be used as evidence for the administrator.
It is claimed that the testimony was admissible under the proviso of section 498, R. S. 1881. This section relates to suits or proceedings in which an executor or administrator is a party.
As it results from the conclusion already reached that when the death of Luther W. Hess was suggested upon the record, the action at once abated as to him and his personal representative, it also follows that his administrator was not, and could not be made, a party to the suit.
The question sought to be made is, therefore, not properly before us for decision. As presented, the question has relation to the admissibility of the plaintiff's testimony, on the assumption that the administrator was a party to the suit. But as he was not a party to the action, we need not decide what testimony would, or would not, have been competent in case he had been. In other words, we will not assume a state of facts which did not exist, and decide the question on the assumption that such facts did exist.
The only pertinent inquiry in this connection, in the event of another trial against the surviving partner, is as to the limitations under which admissions by one partner in the absence of the other may be given in evidence. To what has been already said on that subject we have nothing to add.
During the progress of the trial, the plaintiff called a number of surgeons as witnesses to testify in his behalf as experts. To each of these, a hypothetical question, of substantially the same import, was put, and, upon the supposed facts embraced in the question, the witness was asked whether or not there had been a reduction of the dislocation accomplished by the attending surgeons, provided the state of facts supposed existed. In answer to the question thus put, one of the experts answered, over objection, as follows: "I would say that, during the time of the continuance of these surgical facts and landmarks, there was a dislocation *Page 480
about that time for a long or short while." Another said, in answer, "Well, you have described a case and the symptoms of an ordinary dislocation."
The objection which is urged to the hypothetical question is, that it embraced, among other things, statements of what the attending surgeon is supposed to have said to the patient during the process of reduction and treatment, concerning the cause of certain depressions and enlargements about the dislocated joint. It is argued that the effect of the question was to extract from the witness an opinion as to the truth of what the surgeon said to the patient, and that thereby the witness was called upon to invade the province of the jury. Upon careful examination of the question propounded we do not think it subject to the objection urged.
We can not discover that the question calls upon the expert to determine whether the statements of the attending surgeons were true or false. Rather it asks the witness to assume that the statements made, with all the other facts supposed, are true, and upon the whole question give his opinion as an expert whether a reduction of the dislocated joint was accomplished. We think the question was within the rule, and that, in any event, the answer worked no harm to the defendants.Goodwin v. State, 96 Ind. 550; Burns v. Barenfield, 84 Ind. 43.
Some question is made concerning the sufficiency of the evidence, but as, for the reasons already stated, a reversal of the judgment must result, no good purpose can be subserved by examining and passing upon the evidence.
In reference to the instructions, upon some of which error is predicated, it is claimed they are not properly in the record. However this may be, as they involve questions of no essential importance to the case, and such as can hardly again arise, we do not inquire whether they are in the record or not.
For the errors indicated the judgment is reversed with costs, with instructions to the court below to dismiss the action as to Walter A. Boor, administrator, etc., and to set *Page 481
aside the judgment and grant a new trial as to Frank C. Hess and for further proceedings in accordance with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4068596/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
TENET HOSPITALS LIMITED d/b/a §
SIERRA MEDICAL CENTER, No. 08-14-00181-CV
§
Appellant, Appeal from the
§
v. 120th Judicial District Court
§
SANDRA BERNAL, Individually and as of El Paso County, Texas
Independent Administrator of the Estate of §
Margarita G. Medrano, Deceased, (TC#2013DCV3968)
CAROLINA HERNANDEZ, CARLOS M. §
MEDRANO, MARIA MAGDALENA
ALEXUS, RAUL MEDRANO AND §
MARIA V. TELLEZ,
§
Appellees.
JUDGMENT
The Court has considered this cause on the record and concludes there was error in the
trial court’s order denying Appellant’s motion to dismiss. We therefore reverse the trial court’s
order denying Appellant’s motion to dismiss and remand for the trial court to consider granting
Appellees a thirty-day extension to cure their expert reports, in accordance with our opinion.
We further order that each party bear their own appellate costs, for which let execution
issue. This decision shall be certified below for observance.
IT IS SO ORDERED THIS 18TH DAY OF NOVEMBER, 2015.
STEVEN L. HUGHES, Justice
Before Rodriguez, J., Hughes, J., and Larsen, J. (Senior Judge)
Larsen, J. (Senior Judge), sitting by assignment | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4068600/ | OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
FILE COPY
P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
11/18/2015 COA No. 02-15-00135-CR
LOYNACHAN, SAMSON M. Tr. Ct. No. 1233936R PD-0852-15
On this day, the Appellant's Pro Se petition for discretionary review has been
refused.
Abel Acosta, Clerk
LISA MCMINN
STATE PROSECUTING ATTORNEY
P.O. BOX 13046
AUSTIN, TX 78711
* DELIVERED VIA E-MAIL *
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
FILE COPY
P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
11/18/2015 COA No. 02-15-00135-CR
LOYNACHAN, SAMSON M. Tr. Ct. No. 1233936R PD-0852-15
On this day, the Appellant's Pro Se petition for discretionary review has been
refused.
Abel Acosta, Clerk
SAMSON LOYNACHAN
ROBERTSON UNIT - TDC# 1789266
12071 FM 3522
ABILENE, TX 79601
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
FILE COPY
P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
11/18/2015 COA No. 02-15-00135-CR
LOYNACHAN, SAMSON M. Tr. Ct. No. 1233936R PD-0852-15
On this day, the Appellant's Pro Se petition for discretionary review has been
refused.
Abel Acosta, Clerk
2ND COURT OF APPEALS CLERK
DEBRA SPISAK
401 W. BELKNAP, STE 9000
FORT WORTH, TX 76196
* DELIVERED VIA E-MAIL *
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
FILE COPY
P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
11/18/2015 COA No. 02-15-00135-CR
LOYNACHAN, SAMSON M. Tr. Ct. No. 1233936R PD-0852-15
On this day, the Appellant's Pro Se petition for discretionary review has been
refused.
Abel Acosta, Clerk
DISTRICT ATTORNEY TARRANT COUNTY
SHAREN WILSON
401 WEST BELKNAP
FORT WORTH, TX 76196
* DELIVERED VIA E-MAIL * | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4068607/ | PD-0346-15
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https://www.courtlistener.com/api/rest/v3/opinions/3432329/ | [1] The defendant has an elevator at Merrill, in Plymouth County, Iowa, about sixteen miles from Leeds, a suburb of Sioux City, and has operated a grain and feed business *Page 1326
in connection with his elevator for many years. He disposed of some farm land in Nebraska and received some vacant residence lots in Leeds. E.L. Dealy was a real-estate dealer in Sioux City, and he and Williamson, about June 1940, entered into a sort of partnership or joint adventure in which Dealy would procure purchasers for the defendant's lots in Leeds, and would construct the necessary improvements thereon, through first-mortgage loans made by the plaintiff bank to the purchasers, the payments of which were guaranteed by the Federal Housing Administration. Dealy was to give the project his time and attention. He procured the purchasers, introduced them to the bank, prepared the contracts, made the building contracts, purchased the material, secured the labor, and attended to all matters essential to the full performance of the contracts. Williamson executed deeds to the various purchasers and delivered them to Dealy as the latter called for them, and, except for occasional visits to the improvements to see in general how they were progressing, he gave no attention to the project. They had a memorandum agreement that after the payment of all promotional, administrative, and construction expenses, and $1,600 to defendant for the lots, they were to split the profits, if any, equally. Dealy put no money into the project and defendant put in nothing but his lots. The consideration in each contract for the sale of a lot was about five or six thousand dollars. The contracts were executed by the defendant by Dealy, and by the purchasers. Each called for a cash payment of approximately ten per cent of the contract price, and the remaining ninety per cent was to be covered by the loan. As soon as the contract and the building specifications and contract were sent by the bank to the FHA office at Des Moines an inspector would be sent to Leeds to examine the property and make desired investigations. If the contract and plan were approved the bank was so notified by a commitment guaranteeing payment of the loan. The bank then placed the amount of each loan in a cashier's check, which it retained and reissued in lesser amounts as withdrawals were made in the progress of the construction. The Kopp-Williamson contract was made on June 5, 1941. It described the lot which was sold, and bound the contractor to make the improvements in a good and substantial manner, and to furnish all, all material *Page 1327
and labor necessary to construct a residence and garage. The contract price was $4,900, of which $500 was paid in cash. Inspections were to be made by the FHA from time to time, and the contract provided that $600 was to be paid on the completion of the basement walls, $1,800 on the completion of the roof and the building enclosed, and the balance of $2,000 when the buildings were completed and the final inspection made and approval given by the FHA. The contract provided that the contractor would furnish the owners waivers of liens in writing from time to time as required. All contracts were alike except as to the contract price and payments. On the first day of June 1940, the defendant executed a power of attorney making Dealy his lawful attorney:
"* * * to execute contracts for the sale and purchase of real estate, to release mortgages, to make contracts of all kinds for the purpose of carrying on the business of building and selling houses, in Sioux City, Iowa, and to execute any and all legal documents in connection with said business * * *. Giving and granting unto the said attorney full power and authority to do and perform all and every act and thing whatsoever required and necessary to be done in the premises as fully as I might or could do if personally present, reserving the right to revoke this power at pleasure; and I hereby ratify and confirm all that the said attorney may lawfully do in the premises by virtue thereof."
This writing was recorded in the recorder's office of Woodbury county. The deed from defendant to the Kopps is dated July 9, 1941. Their mortgage to the plaintiff bank securing $4,400 bears date of July 10, 1941, and was recorded July 16, 1941. Payments under the contract were made to the contractor (defendant) by the bank upon written orders from Mr. Kopp. When the first payment of $600 was authorized by the FHA, Kopp directed the bank to pay Dealy $650, and Dealy took $50 in cash and directed the bank to place $600 in the defendant's checking account in the bank. And when the payment of $1,800 was authorized, Dealy took $100 in cash, and $1,900 was placed in defendant's account. Money was drawn from this account on checks drawn only by Dealy and signed, "Robert G. Williamson, by E.L. Dealy." There were fourteen of the *Page 1328
defendant's lots and houses built thereon under the power of attorney to Dealy. Nine of the contracts were completely performed and the property delivered to the respective purchasers free of all liens except the mortgage encumbrance. The buildings on three of the lots, one of which was the Kopp lot, were completed, or practically so except for the street paving, but mechanic's liens had been filed against the properties. Between December 23, 1941, and January 12, 1942, seven mechanic's liens, aggregating $2,740.67, were filed, and there were lienable claims not filed totalling $297.53. To prevent foreclosure of these liens, and after demanding of Dealy that he pay them and deliver waivers of the liens to Kopp, the bank took assignments, in February 1942, of all of these liens and claims in the amount of $3,038.20 and paid them. It also took an assignment from the Kopps, on August 18, 1942, of all their rights and claims and causes of action against the defendant. Dealy died on December 26, 1941. The defendant then came to the bank and demand was made by the bank that he pay the liens and procure releases. This he refused to do with respect to the Kopp house and two other houses. He performed the contracts covering two other unfinished houses.
In taking up the liens the bank used the balance of the Kopp loan in the amount of $1,348.50. It also kept in a special account upon orders from FHA the sum of $305 or double the amount necessary to pay for the Kopp paving.
The bank brought this suit for specific performance and joined the Kopps as plaintiffs. It prayed judgment and decree against the defendant requiring him to specifically perform the contract and deliver the property with merchantable title and free from all liens but its own first mortgage. It further prayed that if defendant failed to pay the liens and provide releases judgment be entered for plaintiffs for all damages sustained.
Defendant answered alleging that the Kopps had no cause of action and were entitled to no relief, and asked that the cause be dismissed as to them. The answer admitted the filing of the liens but denied that they were liens against the property, because the plaintiff had paid them. It was also alleged that the loan proceeds were deposited in the bank to pay for the improvement of the lot, but the bank misappropriated a large part of *Page 1329
the funds by permitting Dealy to withdraw them for his own personal use, and for purposes other than the improvement of the lot, and that otherwise the funds would have been ample to pay all construction charges. Plaintiffs filed a specific denial in reply. A decree for plaintiffs was entered September 2, 1943, and an appeal was perfected September 24, 1943, so that the appeal is under the new Rules. The decree reviewed the facts and the law and entered judgment for plaintiffs in the sum of $1,537.20, with the proviso that it might be reduced by the defendant's filing releases of liens within thirty days.
On the appeal the appellant presents the following propositions: (1) That the Kopps were not proper parties (2) that plaintiffs had a plain and adequate remedy at law (3) that there was no competent evidence of any lienable claims against the property (4) that the bank was barred and estopped from asserting any claim by reason of its negligence in handling the defendant's account.
[2] I. Respecting the first and second propositions it appears to the court that they are without merit. While the Kopps had assigned their cause of action to the bank, they were nevertheless the owners of this property and entitled to it free from all liens except the first mortgage. They were interested in having this result accomplished. They might properly join the bank in seeking the specific performance of the contract, which required that they be protected from these liens. The bank was similarly interested and had sought to protect its mortgage lien and to save itself from loss and expense by buying the liens. The petition set up equitable grounds and prayed for equitable relief, notwithstanding the judgment entered was for money.
[3] Rules 23 and 25 of the Rules of Civil Procedure, effective July 4, 1943, relative to parties plaintiff and necessary parties, are broad and liberal in their provisions. The Kopps come fairly within them. Furthermore, the defendant filed answer and proceeded to trial and by no preliminary pleading did he challenge the forum or venue, or move to transfer to the law side, by complying with Rule 27, or with Code sections 10944-10949. *Page 1330
[4] II. Without going into detail, it is our conclusion that the amounts and the validity of the mechanic's liens and the lienable claims were established. In fact, there is no real denial of them. The filing of the liens was admitted by the defendant. Kopp, who was on the lot every day, testified to services performed and materials furnished by all of the claimants. The defendant was the one who procured the labor and material through Dealy. He was the one who agreed to protect against the liens and to provide waivers, and yet he neither pleads nor offers proof of their invalidity in any way.
[5] III. There is no evidence of any misappropriation of any part of the account of the defendant to the benefit of the bank. It trusted Dealy, just as defendant did. For a year he had performed the contracts faithfully and honestly and paid all construction bills on nine houses. He had unlimited authority. Twice, when defendant's account was apparently short of funds because the FHA inspections were late, he gave his personal note to the bank for $500, but the money went into the defendant's account, and the notes were paid when the bank replenished the account upon the order of FHA and Kopp. The fact that Dealy sometimes drew out cash would not necessarily indicate that it was not paid out for defendant's benefit. Over $35,000 passed through the defendant's account. However, since there were fourteen contracts averaging $5,000 each, at least $70,000 was disbursed by Dealy for defendant. At least half of it must have been paid out in cash or through other banks. The fact that there were checks payable to cash amounting to $3,000 or more does not establish that it was not used in the business. Defendant testified that, while he and Dealy had talked about profits, he had never received any. The construction contracts and the work might have been improvidently let and done, and there might have been legitimate losses. Defendant testified he never knew he had an account at the plaintiff bank, and yet he admitted that he knew the firm must have had a bank account, and that the business was not done on a cash basis. He never made any inquiry about bank statements or canceled checks. He made no inquiry about whether labor or material was being paid for, although he had obligated himself to secure lien waivers, and yet he charges the bank *Page 1331
with negligence in not discovering what he gave no thought or attention to. It may be that Kopp and the bank might have been more watchful in ascertaining whether the labor and materialmen were being paid, and yet each had a right to rely upon the defendant's performance of the contract, particularly when there were no reasonable grounds to believe that it was not being done. The defendant gave Dealy extremely broad powers. In view of this unrestricted authority, and the apparent complete confidence which defendant placed in him, we find nothing in the record which would reasonably have apprised the bank of any breach of trust on Dealy's part, or which required any duty or need on its part to police Dealy's withdrawals from the account.
We fully agree with the trial court's findings of fact and conclusion of law. The judgment and decree is, therefore, — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3434112/ | The correctness of the allowance of the claim is conceded, except as to the library fund of $1,321.40. The appeal has to do only with that fund, and the only question is whether it is within the protection of the State Sinking Fund Act, Chapters 173 and 174, Laws of the Forty-first General Assembly. The contention of the State and its officials is that the library fund was not a part of the public moneys of the *Page 350
municipality. It is not disputed that the library was a free public library, established pursuant to Chapter 299, Code of 1924. The library is not a joint library, for which provision is made by Section 5857 and the last clause of Section 5865, Code of 1924.
By Chapter 299, cities and towns may provide for the formation and maintenance of free public libraries, may acquire suitable buildings, and receive and dispose of gifts. If such a library is established, a board of library trustees must be appointed by the mayor, with the approval of the council, and such board has exclusive control of the expenditures of all taxes levied for library purposes. All moneys received and set apart for maintenance must be deposited in the city treasury to the credit of the library fund, and must be kept by the city treasurer separate from all other moneys, and paid out on the order of the board of trustees, signed by the president and the secretary. The board is required to make to the city council detailed reports, which must include the amount of money expended in maintenance. By Section 6211, the city has power to levy annual taxes for maintenance and for building. The law does not in this connection provide for a library corporation. The testimony is that the public library of Eagle Grove is owned by the city, that the city council levied taxes for its maintenance each year, and that the library fund under discussion represents money that has been raised by taxation for support of the public library in Eagle Grove. According to the law, and according to the evidence, the city library and the fund in dispute belong to the city. They are public property and public funds.
It seems to be the thought of counsel for the State that this particular fund was segregated from the other funds in the hands of the city treasurer, was passed to the control of the library board, and was no longer in the control of the city or the city treasurer, or a public fund of the city. This assumption is based upon the following evidence: The city clerk testifies that the library fund was kept in the defendant bank, and that the library board issued its own checks on that fund. He testifies that the library tax money came to him in the name of the city treasurer. He says that he draws to the secretary of the library board an order on the treasurer, when he demands it.
"Q. And, after you turned that over to the secretary of *Page 351
the library board, checks could then be drawn by that library board by the secretary of the library board without any signature from yourself or the mayor? A. Yes."
The librarian testifies that the money used for maintenance of the library is received from the city clerk; that the checks are signed by the president and the secretary of the library board. No witness testifies that the law had been violated, or that the library fund was not in the treasurer's hands or in his custody.
The city clerk was doubtless trying to explain the procedure under Section 6229, which requires the county treasurer to give monthly notice to the mayor of the amount collected for each fund, and the mayor to draw an order therefor in favor of the city treasurer, countersigned by the clerk, upon the county treasurer, and requires the county treasurer to pay such tax to the city treasurer only on such order. In testifying to the method of drawing on city funds, he was doubtless referring to the procedure required by Sections 5641 and 5644, prohibiting the clerk from drawing warrants except upon the vote of the council, and requiring the treasurer to receive the money payable to the city and disburse it only on warrants signed by the proper officer. The city clerk in his testimony did not claim to handle the city funds or to have anything to do with them. It is the city treasurer, and not the city clerk, with whom the funds are to be deposited, and by whom they are to be paid out; and it is the treasurer, and not the clerk, who is required to keep the library fund separate. Section 5865. Except as otherwise provided, warrants are to be drawn and paid as provided by Sections 5641 and 5644. The library fund, however, is an exception to the general rule, and it is to be paid out on the order of the board of library trustees, signed by its president and secretary. These officers, nevertheless, in what they do officially are the officers of the city to whom are specially confided these particular duties. The city treasurer is the officer of the city required to keep the funds. Those funds, when they were paid over by the county treasurer on the order of the mayor and the city clerk, did not cease to be public funds. They were city funds. The law required them to be deposited in the city treasury. We cannot presume that they were not so deposited, or that they were not kept by the city treasurer as the law requires. The failed bank was properly designated as city depositary. *Page 352
The court properly held the library fund to be public funds and a part of the public deposits of the city.
The judgment is — Affirmed.
EVANS, C.J., and De GRAFF and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427672/ | In the trial court appellant was charged by an amended affidavit in two counts. The first charged assault and battery with intent to commit a felony, and the second charged an assault with intent to commit a felony. To each count defendant entered a plea of not guilty.
Trial by jury resulted in a verdict of guilty on the second count, and upon this verdict the court rendered judgment, sentencing the defendant to the Indiana State Prison not less than one or more than ten years.
The assignment of error questions only the overruling of the motion for new trial. This motion contains four reasons. In his brief appellant expressly waives any consideration of the first three, and relies *Page 577
solely on the fourth. The fourth reason is as follows: "The court erred in permitting the state to ask the witnesses, Myers and Smith, preliminary questions which were, in effect and in truth, proper only on cross-examination and in denying the defendant the right to prove his good moral character by those witnesses."
The only bill of exceptions attempted to be brought into the record is appellant's Bill of Exceptions No. 1, containing only the evidence of Amy Myers.
It will be observed that by his motion for new trial appellant seeks to present only the propriety of preliminary questions alleged to have been asked by the state of witnesses, Myers and Smith; "and in denying the defendant the right to prove his good moral character by those witnesses." No question propounded to either of said witnesses, no objections made by appellant to any such questions, and no ruling of the court thereon are contained in the motion for new trial. There is nothing in the motion, beyond the pleader's conclusion even tending to show that the court denied the defendant the right to prove his moral character by these witnesses. There is no evidence, and no mention of the witness, Smith, in the bill of exceptions.
It has long been the law that "A motion for a new trial with causes specifically and definitely assigned, is the appropriate mode of bringing in review the rulings upon matters 1, 2. pertaining to the trial." Elliott's Appellate Procedure § 327, p. 280. It has been held frequently by this court that when reasons for a new trial are too general, the court is not warranted in entering upon an examination of the record to see whether there is any foundation for them. The reasons should always point out what evidence *Page 578
was improperly received or rejected. DeArmond v. Glasscock
(1872), 40 Ind. 418, 422; Alley v. Gavin (1872), 40 Ind. 446, 448; Ball v. Balfe (1872), 41 Ind. 221, 228; Morrow v.State (1874), 48 Ind. 432, 434; Isler v. Bland (1888),117 Ind. 457, 459, 20 N.E. 303; Conrad v. Hansen (1908),171 Ind. 43, 50, 85 N.E. 710; 2 Watson's Works Practice § 1450, p. 73, 74.
Long ago this court tersely said: "There can be no deviation from the well settled rule which requires that a motion for a new trial, in order to present any question, must point out 3. with reasonable certainty the particular evidence objected to and excluded, and so designate it as to enable the court, without searching the whole record, to ascertain what evidence was offered and excluded to which the motion applies."Isler v. Bland, supra; McClain v. Jessup (1881),76 Ind. 120; Ireland v. Emmerson (1883), 93 Ind. 1, 4; Wallace v.Kirtley (1884), 98 Ind. 485; Conrad v. Hansen, supra;Indianapolis Etc. R. Co. v. Ragan (1909), 171 Ind. 569, 572, 86 N.E. 966. 2 Watson's Works Practice § 1925, Evidence p. 506.
The fourth reason of the motion for new trial is too 4. general and indefinite to present any question.
The burden is on the appellant to show that his rights were prejudiced by the errors complained of. A record must be presented which affirmatively shows harmful error since 5. 6. all the presumptions are in favor of the judgment and rulings of the trial court. Appellant has failed to make such showing. Ewbank's Indiana Criminal Law § 789, p. 588.Deig v. State (1928), 200 Ind. 125, 128, 160 N.E. 673;Onstott v. State (1928), 200 Ind. 37, 40, 161 N.E. 267;Kirschbaum v. State (1925), 196 Ind. 512, 517, 518,149 N.E. 77; Pitts v. State (1939), *Page 579 216 Ind. 168, 171, 23 N.E.2d 673; Genett v. State (1925),197 Ind. 105, 111, 149 N.E. 894. Eliott's Appellate Procedure § 195, p. 167. Harter v. Eltzroth (1887), 111 Ind. 159, 160, 12 N.E. 129.
Finding no error the judgment is affirmed.
NOTE. — Reported in 82 N.E.2d 244. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427674/ | It is conceded by all parties to this litigation that on March 31, 1943, the appellee was in the employ of the appellant and on said day met with an accidental injury arising out of and in the course of such employment, of which accident the appellant had notice and in connection with which it furnished the medical attention required by law. Upon hearing the appellee's application for compensation under the provisions of the Workmen's Compensation Act, the Industrial Board found that the injury so suffered by the appellee "consisted of certain burns about the face and one of the hands of the plaintiff" as the result of which he became temporarily totally disabled on June 22, 1943, and has since continuously so remained. An appropriate award was entered which this appeal challenges as being contrary to law.
There was some conflict in the evidence in relation to the nature of the appellee's injuries, the evidence of the appellee tending to prove that he was thrown down by the force of an 1. explosion of smokeless powder in the room in which he was working and struck the back of his head violently against the cement floor, while the evidence of the appellant tends to prove that the powder in question, being unconfined, did not explode but merely burned with a sudden flash as the result of which the appellee was burned in a minor degree about the face and one hand. Where the truth lay in this respect was exclusively within the province of the Industrial Board to say and when it *Page 286
found that the injury suffered by the appellee as the result of the accident in question "consisted of burns about the face and one of the hands of the plaintiff" we must accept that finding as definitely fixing the character of injury with which we are to deal.
It is undisputed that the burns in question healed within a week or two, leaving no scar or physical impairment of the parts involved. The evidence most favorable to the board's award indicates that since the accident the appellee has become afflicted with a severe nervous disorder and whose general condition may be described as follows: He is sparse, well developed and nourished, with a facial expression evidencing anxiety and apprehension. His skin is normal in texture, cool and moist. His hands and feet are cold and drip perspiration. Muscle tone and strength are within normal limits, although usually held tense throughout the body. There is a fine tremor of the jaw and the extended fingers. The cranial nerves are intact and there is no involuntary oscillation of the eye balls and both eye grounds are normal. The Gordon-Holmes, Hoffman and Babinski signs are negative but the Romberg sign is positive. He falls backward when his eyes are closed but is able to right himself before his fall is complete. Finger to nose and heel along shin maneuvers are carried out in a normal manner and his walk or gait is normal with the eyes open but very uncoordinated with the eyes closed. When walking with his head elevated he tends to stagger and he seems to be extremely hypersensitive to touch over the entire body. All objective symptoms of nervous trouble are exaggerated and bizarre in relation to recognized neurological tests. There is no substantial evidence anywhere in the record that he is suffering from any injury or organic disease of the central or peripheral nervous system and in the *Page 287
opinion of several neurologists who testified he is the victim of a neurosis of the functional type.
It is our opinion that when a purely mental condition known as a neurosis is shown by competent evidence to be the direct result of a physical injury sustained by an employee arising out 2. of and in the course of the employment and which neurosis, through functional disturbances of the nervous system, disables the employee from working at his former occupation, he has suffered a compensable injury under the terms of the Indiana Workmen's Compensation Act. Schneider Workmen's Compensation Law, 2nd Ed., Vol. 1, § 346, and cases cited.
It was quite generally agreed among the doctors who testified that the symptoms or physical manifestations of a nervous disorder exhibited by the appellee might be successfully 3. simulated and, when recognized and authentic tests indicate no organic trouble, it is sometimes difficult to determine between a malingerer and a true neurotic. The appellant insists that the evidence conclusively discloses that the appellee's present condition is wholly simulated and having been fully compensated for his burns — the only physical injury he suffered — he is not entitled to further compensation. The Industrial Board, which is the exclusive trier of the facts, took a different view of the case however and unless the evidence is so conclusive in its nature that reasonable men could come to no other conclusion than that the appellee is malingering as to his present condition, the board's finding must stand. In our opinion the record presents no such situation. Dr. L.D. Carter, whose special field is nervous and mental diseases, after a complete and thorough examination which he fully describes in his testimony, positively stated that in his opinion the appellee is not malingering. No *Page 288
expert expressed a contrary opinion. The nearest approach to such a statement is the testimony of several witnesses to the effect that appellee's symptoms could be simulated and the testimony of Dr. Franklin Jelsma that "every time he tapped on his patellar reflex patient jumped all around on the table, his leg would jump, body would twist and pull and the arm fly up. It is distinctly a volitional reaction that patient is making for some reason or other. It is not a reflex." On this state of the record we hold that the question as to whether the appellee is a malingerer or a neurotic was a question of fact for the board and not one of law for us.
In connection with this question the appellant asserts a unique contention. It says that the testimony of five expert neurologists was by deposition and, being in writing, we 4, 5. can judge the probative force and effect of such testimony as well as the Industrial Board and this we should do in exercise of our inherent power and having done so we must necessarily come to the conclusion that the award of the Industrial Board is not such as the justice of the case requires. As authority for this procedure we are referred to State exrel. v. Board, etc. (1905), 165 Ind. 262, 74 N.E. 1091. That was an injunction suit and the court held that the cause, being of exclusive equitable jurisdiction, belonged to that class of cases in which the court may, by virtue both of statute and its inherent power, review the facts as well as the law. The case at bar is neither of exclusive equitable jurisdiction nor is the testimony all in writing. Much of it was oral and differed materially, in reference to the appellee's physical condition, from that contained in the depositions. It has been repeatedly held that when the finding of the trial court is based to any extent on oral testimony, an appellate *Page 289
tribunal will not weigh the evidence. Barnes v. Stock (1912),51 Ind. App. 640, 100 N.E. 98; Fuller v. Fuller (1913),52 Ind. App. 488, 100 N.E. 869; State Exchange Bank v Paul
(1915), 58 Ind. App. 487, 108 N.E. 532. Furthermore we must keep in mind that this appeal is governed by § 40-1512, Burns' 1940 Replacement, which provides: "An award by the full board shall beconclusive and binding as to all questions of (the) fact, but either party to the dispute may, within 30 days of the date of such award appeal to the Appellate Court for errors of law
under the same terms and conditions as govern appeals in ordinary civil actions." (Our emphasis.)
This leaves for our consideration the question as to whether there is any substantial evidence tending to establish a causal connection between the accident on March 31, 1943, in which 6. the appellee admittedly suffered minor burns, and his present neurotic condition. We find evidence that before the accident he never had shown any of the symptoms of nervous trouble which he now exhibits. Dr. Carter gave it as his opinion that the symptoms and signs he discovered when he examined the appellee were connected with the injury of March 31, 1943. Dr. C.K. Hepburn testified: "He is suffering from a profound emotional disturbance which was apparently precipitated by an explosion while at work in the employ of E.I. du Pont de Nemours Company." We consider this evidence sufficient to support a finding of causal connection between the accident and the injuries of which the appellee now complains.
Finding no error the award is affirmed with statutory increase.
NOTE. — Reported in 63 N.E.2d 547. *Page 290 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247124/ | James A. Teilborg, Senior United States District Judge
Pending before the Court is Plaintiff's Motion for Entry of Stipulated Judgment (Doc. 66). Intervenors have responded, (Doc. 68), and Plaintiff has replied (Doc. 69). Plaintiff has also filed a motion to supplement her reply (Doc. 71). The Court now rules on the motions.
I. Background
On October 13, 2014, Vahik Alaverdyan fell asleep at the wheel of his tractor and collided into Vincent Guerden. (Doc. 48 at 2). Geurden died as a result of this collision. (Id. ) During settlement negotiations, Plaintiff Yves Guerden ("Plaintiff"), demanded $7 million from Defendants Vahik Alaverdyan and Quantum Transportation L.P. ("Defendants"). (Doc. 66-4 at 2). Following this demand, Hallmark American Insurance Company ("Hallmark"), one of Defendants' insurers, sent a letter to the Greenwich Insurance Company ("Greenwich") on February 3, 2017, demanding that Greenwich "tender its policy limits for settlement." (Id. ) On March 9, 2017, Greenwich wrote two letters denying that it had any "duty to defend and/or indemnify" Defendants at that time. (Doc. 66-1); (Doc. 66-2). Greenwich further asserted that its insurance policy was excess to policies of other insurers that were currently providing a defense in this litigation. (Doc. 66-1 at 6). In response to Greenwich's letters, Plaintiff and Defendants agreed to enter into a stipulated judgment on June 26, 2017. (Doc. 42). In this stipulation, the parties acknowledged that they were entering into a "Damron *1225Agreement" and requested that the Court grant default judgment. (Doc. 42). On June 28, 2017, the Court inquired whether it had the duty to inquire into the reasonableness of the settlement agreement before entering judgment. (Doc. 43). On July 12, 2017, Greenwich Insurance Company and XL Specialty Insurance Company ("XL") (together, "Intervenors") moved to intervene in this matter, opposing the Court's entry of the stipulated judgment. (Docs. 46 and 47). Believing that neither party's briefs adequately addressed whether Intervenors were entitled to a reasonableness hearing, the Court denied the stipulated judgment without prejudice and ordered supplemental briefing on two issues: (1) when is an excess insurance carrier's duty to defend triggered? And (2) even if such an insurer had no duty to defend, may they recant a prior decision on which the parties relied in reaching a settlement?
II. Discussion
a. Legal Standard
When an insurer refuses to defend or denies coverage to its insured, the insured may enter into a settlement agreement with a plaintiff that "admits to liability and assigns to a plaintiff his or her rights against the liability insurer ... in exchange for a promise ... not to execute the judgment against the insured." Safeway Ins. Co. v. Guerrero , 210 Ariz. 5, 106 P.3d 1020, 1022 (2005). In Arizona, these settlement agreements may take two forms: Damron and Morris agreements. Id. at 1022 n.1. Damron agreements are entered into because of "an insurer's refusal to defend the insured." Id. (citing Damron v. Sledge , 105 Ariz. 151, 460 P.2d 997 (1969) ). When parties enter into a Damron agreement, the Court does not conduct a reasonableness inquiry. Parking Concepts, Inc. v. Tenney , 207 Ariz. 19, 83 P.3d 19, 22 n.3 (2004). Morris agreements, on the other hand, "can be prompted by a number of circumstances." Safeway Ins. Co. , 106 P.3d at 1022 n.1 (collecting cases). Unlike Damron agreements, the Court must inquire into Morris agreements for their reasonableness. United Servs. Auto. Ass'n v. Morris , 154 Ariz. 113, 741 P.2d 246, 250-51 (Ariz. 1987) ; Ariz. Property & Cas. Ins. Guar. Fund v. Helme , 153 Ariz. 129, 735 P.2d 451, 460 (Ariz. 1987).
Arizona courts explain that these agreements are necessary to protect an insured whenever he is "placed in a precarious position" by his insurer's choice to either defend under a reservation of rights or to refuse to defend altogether. Safeway Ins. Co. , 106 P.3d at 1024 ("Even though the insurer is providing a defense to the claim, the insured faces the possibility that any judgment, even one within policy limits, may not be covered by the policy.") (citing Parking Concepts v. Tenney , 207 Ariz. 19, 83 P.3d 19, 22 (2004) ). When the insurer makes such a choice, it deprives the insured of the "security from financial loss which he may sustain from claims against him" that he purchased. Helme , 735 P.2d at 459. Thus, the law does not require the insured to risk continued exposure "to the sharp thrust of personal liability," but instead allows him to enter into an agreement to protect himself. Damron , 105 Ariz. 151, 460 P.2d 997 at 999 (quoting Critz v. Farmers Ins. Grp. , 230 Cal.Rptr.2d 788, 41 Cal.Rptr. 401, 408 (Cal. Ct. App. 1964) ).
At the same time, Arizona courts strive to avoid placing an insurer "between Scylla and Charybdis" by forcing it to "either give up its right to raise tenable coverage defenses or its right to insist on full application of the cooperation clause." Morris , 741 P.2d at 251-52 (citing McGough v. Ins. Co. , 143 Ariz. 26, 691 P.2d 738, 745 (Ariz. Ct. App. 1984) ). Courts also recognize the danger that an insured might enter into "collusive settlements that bear little relation to the underlying *1226case," because he and the plaintiff have "little incentive to minimize the amount of the [stipulated] judgment." Leflet v. Redwood Fire & Cas. Ins. Co. , 226 Ariz. 297, 247 P.3d 180, 183 (Ariz. Ct. App. 2011). In order to avoid these undesirable outcomes, and to properly balance the equities between insurer and insured, Arizona courts "permit an insurer to raise the coverage defense...while at the same time protecting the insurer from unreasonable agreements between the claimant and the insured." Morris , 741 P.2d at 252. Thus, a settlement agreement that falls under the Morris rubric will bind the insurer "only if the insurer has declined an opportunity to defend and the insured establishes that the settlement was reasonable and prudent." Webb v. Gittlen , 217 Ariz. 363, 174 P.3d 275, 281 (2008) (citing Morris , 741 P.2d at 253 ).
b. Anticipatory Breach
Plaintiff first alleges that because XL anticipatorily repudiated all of its duties to the insured it is not entitled to a reasonableness hearing. (Doc. 66 at 2). Intervenors disagree and argue that " Helme does not support the proposition that an insurer's anticipatory repudiation of its policy obligations permits an insured to enter an unreasonable settlement with the insured." (Doc. 68 at 11). This Court agrees with Intervenors' interpretation of the law.
An insured may enter into a Morris -type agreement when his insurer anticipatorily repudiates contractual duties it owes him. See Helme , 735 P.2d at 459. However, an insurer's anticipatory repudiation of a contractual duty does not permit the insured to "enter into any type of agreement or take any type of action that may protect him from financial ruin....The insurer's breach...permits him to take reasonable steps to save himself. Among those steps is making a reasonable settlement with the claimant." Id. at 460 (emphasis added); see also Safeway Ins. Co. , 106 P.3d at 1022 n.1 (characterizing Helme as a situation giving rise to a Morris agreement).
Plaintiff argues that Helme stands for the proposition that "once an insurer breaches its duty to its insured by way of a complete denial of coverage and refusal to defend or indemnify, the insured is not required to come back to the insurer for permission to enter a Damron agreement." (Doc. 66 at 4). This argument overstates Helme 's sweep. Arizona courts have been careful to limit Damron agreements to situations where the insurer actually breaches its duty to defend. See Safeway Ins. Co. , 106 P.3d at 1022 n.1 ; Mora v. Phoenix Indem. Ins. Co. , 196 Ariz. 315, 996 P.2d 116, 120 (Ariz. Ct. App. 1999) (explaining that an insurer only forfeits its right to intervene when it commits a "substantial" breach that is "antithetical to the essential purpose of the insurance contract"); Anderson v. Martinez , 158 Ariz. 358, 762 P.2d 645, 649 (Ariz. Ct. App. 1988) (explaining that only refusal to defend waives an insurer's right to intervene). Therefore, even if an insurer breaches all three of its duties to the insured, the operative duty for purposes of whether a Damron agreement is permissible is the duty to defend. See Mora , 996 P.2d at 120 (explaining that an insurer asserting no duty to defend its insured, is also implying that it owes no duty to indemnify, and that it therefore has no interest in the litigation). Embodying this careful approach, Helme made clear that an insurer's anticipatory repudiation of any of its obligations does not give an insured license to "enter into any type of agreement or take any type of action that may protect him from financial ruin." Helme , 735 P.2d at 460. Rather, an anticipatory repudiation-even of the duty to defend-only allows an insured to enter into "a reasonable settlement with the claimant." Id.
*1227Plaintiff further argues that because Helme used "the same test for a settlement agreement in the Damron case" that it was free to enter into a Damron agreement "when XL anticipatorily breached all its obligations to its insureds." (Doc. 69 at 6). Neither Helme , nor subsequent cases, support Plaintiff's contention. The applicable passage is:
[T]he insurer's breach narrows the insured's obligations under the cooperation clause and permits him to take reasonable steps to save himself. Among those steps is making a reasonable settlement with the claimant. So long as that settlement agreement is neither fraudulent, collusive, nor otherwise against public policy, the insured has not breached the cooperation clause.
Helme , 735 P.2d at 461. Plaintiff contends that the third sentence in this passage defines the word "reasonable," used in the second sentence, as "neither fraudulent, collusive, nor otherwise against public policy." (Doc. 69 at 6). But, it is more likely that when the court used the words "that settlement agreement" it was referring to the "reasonable settlement" it discussed in the preceding sentence. The opinion more naturally reads as requiring settlement agreements that are reasonable and neither fraudulent, collusive, nor otherwise against public policy-the standard used in Morris . Morris , 741 P.2d at 254. Second, even if it were true that the Helme court thought it was applying the test used in Damron , subsequent opinions of the Arizona Supreme Court hold that anticipatory breaches give rise to Morris agreements. Safeway Ins. Co. , 106 P.3d at 1022 n.1. For these reasons, the Court finds that, even if Intervenors anticipatorily breached their contractual duties, they would still be entitled to a reasonableness hearing.
c. Trigger
i. Servco Does Not Apply
Citing no Arizona case law discussing when an insurer's duty to defend is triggered, Plaintiff argues that "[o]ther 9th Circuit courts have examined the issue and determined that the underlying limits of liability need only be tendered, and not actually paid in order to trigger the excess carrier's duty to defend." (Doc. 69 at 3) (citing Pac. Employers Ins. Co. v. Servco Pac., Inc. , 273 F.Supp.2d 1149, 1154 (D. Haw. 2003). First, the Court notes that Servco provides little precedential value in this case because that case applied the law of Hawaii, but this Court must apply Arizona law. Servco , 273 F.Supp.2d at 1154. Second, a critical factor in Servco was that "no published Hawaii case ha[d] ruled on the meaning of 'exhaustion' in an excess insurance context." Id. Arizona courts, on the other hand, hold that "[u]ntil a primary insurer offers its policy limit, the excess insurer does not have a duty to evaluate a settlement offer, to participate in the defense, or to act at all." Twin City Fire Ins. Co. v. Burke , 204 Ariz. 251, 63 P.3d 282, 287 (2003) (citing Cont'l Cas. Co. v. Royal Ins. Co. , 219 Cal.App.3d 111, 268 Cal.Rptr. 193, 197 (Cal. Ct. App. 1990) ; and then citing Keck, Mahin & Cate v. Nat'l Union Fire Ins. Co. , 20 S.W.3d 692, 700-01 (Tex. 2000) ). The Arizona standard for exhaustion requires a primary insurer to offer its policy limit, but the excess insurer in Servco argued that the duty to defend "is not triggered unless and until the primary carrier pays its limits by either a judgment or settlement of the underlying claim[,]" a stricter standard. Compare id. ,and Chartis Specialty Ins. Co. v. Scott Homes Multifamily Inc. , 2016 WL 9525583, at *6 (D. Ariz. 2016), with Servco , 273 F.Supp.2d at 1154. Thus, the Court finds that Servco does not control the outcome of this case.
*1228ii. Triggering an Excess Insurer's Duty to Defend
Plaintiff further contends that, under Arizona law, Travis Warriner's letter of February 3, 2017, triggered Intervenors' duty to defend because it clearly implied "that both Wesco and Hallmark planned to tender their policy limits, and that the damages would reach the XL policy." (Doc. 66 at 7); (Doc. 66-4).1 Intervenors maintain that, because "an excess insurer's duty to defend is not triggered until the primary coverage is actually exhausted through payment of the claim," (Doc. 68 at 7), their policies were not triggered until the Settlement Agreement of June 21, 2017, and they did nothing to breach their duty to defend after that point. (Id. at 8) (citing Doc. 47-6, ¶ 34).2
"An insurer's duty to defend is separate from, and broader than the duty to indemnify." Quihuis v. State Farm Mut. Auto Ins. Co. , 235 Ariz. 536, 334 P.3d 719, 727 (2014). A "primary insurer has the duty to defend until its limits are exhausted." Columbia Cas. Co. v. U.S. Fidelity & Guar. Co. , 178 Ariz. 104, 870 P.2d 1200, 1201-02 (Ariz. Ct. App. 1994). Thus, an excess insurer has no duty to defend its insured unless the primary insurer exhausted its policy limit to defend its insured. See, e.g. , McGough , 691 P.2d at 744-45 (Ariz. Ct. App. 1984) (concluding it was reasonable for an excess insurer to delay intervening in the defense of its insured until it became apparent that the primary insurer was considering paying its entire policy limit and withdrawing from the case).
The Court has examined the letter of February 3, 2017, and finds that it does not unambiguously inform the excess insurer that the primary insurer was prepared to offer its policy limits to provide a defense, but instead simply informs Intervenors that "Plaintiffs' last settlement demand was $7 million" and that "Greenwich's failure to tender its policy limits for settlement is unreasonable." (Doc. 66-4 at 2) (emphasis added). It is certainly difficult to see how a letter from Hallmark's representative demanding that Greenwich tender its policy limits could be construed as an offer from Hallmark to pay its policy limits. In fact, the letter still claims that Hallmark's coverage was excess to Greenwich's policy. (Id. at 1). Moreover, the letter provides that "the value of the case [was] possibly ... in excess of Wesco's and Greenwich's policy limits," but states nothing about Hallmark being prepared to offer its own policy limits to defend the insured. (Id. at 2). Furthermore, this letter only demanded that Greenwich "tender its policy limits for settlement ." (Id. ) (emphasis added). If this letter triggered any duty at all, it triggered the implied duty to treat settlement offers with equal consideration and the breach of that duty only authorizes an insured to enter into a Morris agreement. Safeway Ins. Co. , 106 P.3d at 1024 (citing Helme , 735 P.2d at 459 ); Mora , 966 P.2d at 120. The first time that Intervenors were actually placed on notice that *1229the primary insurers had offered their policy limits was the June 21, 2017 Settlement Agreement. (Doc. 47-6). Therefore, Intervenors duty to defend arose, at the earliest, on that date, and their subsequent actions did not breach this duty so as to prevent them from receiving a reasonableness hearing under Morris .
This result comports with the function of excess insurance policies as well as the purposes of the Damron / Morris doctrine. Excess insurers do not even have the right to participate in the litigation unless and until the primary policy is exhausted. Cont'l Cas. Co. , 268 Cal.Rptr. at 196. And, as the Supreme Court of Texas explained in an opinion cited favorably in Burke :
Excess insurers ... provide relatively inexpensive insurance with high policy limits .... [while] primary carrier[s] generally provide[ ] a much lower amount of coverage, but must insure against what is likely to be a greater number of claims .... Because the primary insurer's duty to defend extends to covered claims without regard to their amount, an excess insurer's duty to defend is not typically invoked merely because a claim has been asserted against the insured in excess of primary limits.
Keck, Mahin & Cate 20 S.W.3d at 700-01 (Tex. 2000). That the excess insured has no right or ability to control its insured's defense while the primary insurer is still involved in the case, implicates a core tenet of the Damron / Morris doctrine. An insurer, by refusing to defend or defending under a reservation of rights, gives up its exclusive control of the defense of its insured and does so at its own risk. See Morris , 741 P.2d at 252 ; Mora , 996 P.2d at 121 ; see also Damron , 460 P.2d at 1001. But, an insurer should not be made to give up that which it does not have. Furthermore, as explained above, Arizona courts have limited Damron 's applicability in order to avoid the risk of inflated settlements. See, e.g. , Safeway Ins. Co. , 106 P.3d at 1022 n.1 (distinguishing Morris agreements, which "can be prompted by a number of circumstances," from Damron agreements, which require a breach of the duty to defend); Webb , 174 P.3d at 281 (stating that Morris balanced the competing interests of protecting an insured from liability and protecting an insured from inflated settlements). The very letter that Plaintiff relies on as the crux of her argument provides an illustration of why this concern is warranted. The letter states that "Plaintiffs' last settlement demand was $ 7 million." (Doc. 66-4 at 2). But, the stipulated judgment in this case totals $25 million. (Doc. 66-7 at 2). That amount is five times the policy limit of Greenwich's excess insurance policy. (Doc. 66-1 at 4); (Doc. 66-2 at 3). The Court does not express any opinion regarding the reasonableness of this settlement,3 but this large amount raises the question of whether the Plaintiff is using the stipulated judgment "to promote the transformation of underlying contract and tort claims into bad faith claims at inflated values." Leflet , 247 P.3d at 301. Requiring a reasonableness hearing in this situation strikes the proper balance between the interests of the insurer and the insured, for the insured will still be able to bind the insurer to the damages that "a reasonably prudent person in the insureds' position would have settled for on the merits of the claimant's case." Morris , 741 P.2d at 254 (emphasis in the original) (citing Miller v. Shugart , 316 N.W.2d 729, 735 (Minn. 1982) ).
*1230Accordingly, the Court finds that the duty to defend was not triggered until June 21, 2017, that Intervenors did not breach that duty to defend after that date, and that they are therefore entitled to a reasonableness hearing.
d. The Ability of an Insurer to Recant a Prior Decision on which the Parties Relied .
In response to this Court's second inquiry, the Parties have focused on the issues of waiver and equitable estoppel. (Doc. 66 at 10-15); (Doc. 68 at 12-18); (Doc. 69 at 9-12). Because waiver requires actual intent to abandon or surrender a known right, and Greenwich's letters denying coverage both expressly reserved the right to raise future coverage defenses and conditioned that denial on information learned up until that point in time, waiver cannot operate to bar Intervenors. See Desert Ridge Resort LLC v. Occidental Fire & Casualty Company , 141 F.Supp.3d 962, 970 (D. Ariz. 2015) (finding denial letters that "expressly reserved the right to raise additional grounds for denial as more facts become available" are "inconsistent with an intent to waive the defenses").
"Equitable estoppel applies if (1) the party to be estopped intentionally or negligently induces another to believe certain material facts, (2) the induced party takes action in reliance on its reasonable belief of those facts and (3) the induced party is injured by so relying." Pueblo Santa Fe Townhomes Owners' Ass'n v. Transcontinental Ins. Co. , 218 Ariz. 13, 178 P.3d 485, 493 (Ariz. Ct. App. 2008) (citing Joy Enters., Inc. v. Reppel , 112 Ariz. 42, 537 P.2d 591, 594 (1975) ). Moreover, the alleged injury or prejudice "must be actual and substantial, and not merely technical or formal." Weiner v. Romley , 94 Ariz. 40, 381 P.2d 581, 583 (1963).
Normally, when disputes over insurance contracts arise, estoppel arguments are raised as between an insurer and its insureds, or between an insurer and a third-party assignee of the insured's claims who stands in the shoes of the insured. See, e.g., Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co. , 140 Ariz. 383, 682 P.2d 388, 399-401 (1984) (dispute between insurer and insured); Pueblo Santa Fe , 178 P.3d at 492-93 (allowing assignee to assert insured's right to estoppel claim). Here, though, Plaintiff asserts equitable estoppel based on her own detrimental reliance on Greenwich's letters denying coverage because she would not have settled her claim otherwise. (Doc. 66 at 12). She argues that she is even further prejudiced because a reasonableness hearing might require her to "re-live the gruesome photos of their son's body ... along with the painful reminders of the punitive aspects of the case." (Doc. 69 at 12). Plaintiff provides that her reliance stems from the fact that "XL provided its denial of coverage letters approximately two weeks prior to the mediation." (Doc. 69 at 10).
First, the Court notes that, under Arizona law, "equitable estoppel is available only as a defense." Gorman v. Pima Cty. , 230 Ariz. 506, 287 P.3d 800, 804 n.4 (Ariz. Ct. App. 2012) (quoting Tiffany Inc. v. W.M.K. Transit Mix, Inc. , 16 Ariz.App. 415, 493 P.2d 1220, 1224 (Ariz. Ct. App. 1972) ). Therefore, it is not clear that Plaintiff can even invoke equitable estoppel in this context. Second, even if Plaintiff can invoke equitable estoppel, the Court finds that her reliance on Greenwich's letters denying coverage was not reasonable. Plaintiff's reliance was not reasonable because, as explained above, Greenwich's letters both expressly reserved the right to raise future coverage defenses and conditioned that denial on information learned up until that point in time. Because these *1231letters did not constitute an absolute and final denial of coverage, which Plaintiff claims she believed they did when she settled, but instead indicated that Greenwich's decision might later change, Plaintiff's reliance on them is not reasonable. See Guberman v. William Penn Life Ins. Co. , 146 A.D.2d 8, 13-14, 538 N.Y.S.2d 571 (N.Y. App. Div. 1989) ("Where the insurer expressly states that its assertion of one defense should not be construed as a waiver of other defenses, it is difficult to imagine how, if at all, the plaintiff could have been 'misled ... into acting on a reasonable belief that the company had waived some provision of the policy.' ") (quoting Kiernan v. Dutchess Cty. Mut. Ins. Co. , 150 N.Y. 190, 44 N.E. 698, 699 (1896) ). Furthermore, the timing of Greenwich's denial letters is more indicative of a refusal to settle the case, not a refusal to defend the matter altogether-the only circumstance under which a Damron agreement is permissible.
Accordingly, the Court finds that neither waiver nor estoppel apply to preclude the Intervenors from recanting a prior denial of coverage and now defending under a reservation of rights.
III. Conclusion
Based on the foregoing,
IT IS ORDERED that the motion to supplement reply to motion for entry of stipulated judgment is GRANTED (Doc. 71).4
IT IS FURTHER ORDERED that the motion for entry of stipulated judgment is DENIED (Doc. 66).
IT IS FURTHER ORDERED that the settling parties will advise the Court of whether they are proceeding with the settlement by April 11, 2018.
IT IS FURTHER ORDERED that if the settling parties decline to proceed with the settlement, they will comply with the following schedule:
The party with the burden of proof shall disclose experts by May 4, 2018.
The party without the burden of proof shall disclose its experts by June 4, 2018.
Rebuttal expert disclosures shall be made by June 25, 2018.
Discovery shall close by July 25, 2018.
Dispositive motions are due no later than August 24, 2018.
Trial shall is set for March 5, 2019.
IT IS FURTHER ORDERED that if the settling parties do proceed with their settlement, all parties including the intervenor will comply with the following schedule:
The party with the burden of proof shall disclose experts by May 4, 2018.
The party without the burden of proof shall disclose its experts by June 4, 2018.
Rebuttal expert disclosures shall be made by June 25, 2018.
Discovery shall close by July 25, 2018.
*1232The parties shall file a joint notice of the estimated length of the reasonableness hearing no later than April 30, 2018.
The reasonableness hearing is set for Tuesday, September 25, 2018.
Plaintiff cites a treatise for the proposition that an excess insurer's coverage is triggered "when a primary insurer ... is willing to contribute its limit of liability to a settlement and makes that fact known to the excess insurer." (Doc. 66 at 7) (quoting Allan D. Windt, Insurance Claims and Disputes § 5:26 (4th ed. 2001) ). But this standard only applies to the duty to settle, not to the duty to defend. See Allan D. Windt, Insurance Claims and Disputes ch. 4 (6th ed. 2018).
Although Intervenors appear to argue that exhaustion requires actual payment, they do not contend that their duty to defend arose on August 31, 2017, when it became clear that the policies had been exhausted. (Doc. 62 at 4). Rather, Intervenors contend their duty arose on June 21, 2017, and that they did nothing to breach their duty after that point. (Doc. 68 at 9).
Indeed, the letter does contain some evidence that a large settlement valuable may be reasonable, specifically that the defense counsel advised that a jury could award over $24 million in punitive damages alone. (Doc. 66-4 at 2).
Plaintiff seeks to supplement her motion for entry of stipulated judgment with evidence of Intervenors March 09, 2017, letter to Dole, which contained "reservation of rights language ... [that] is clear and unequivocal." (Doc. 71-1at 2). Because of this difference in language, Plaintiff argues that Intervenors' letters to Quantum and Alaverdyan cannot be considered "reservation of rights" letters. (Id. ) The Court's analysis does not at all rely on characterizing the Intevenors' letters to Quanum and Alaverdyan as "reservation of rights" letters. Therefore, although the Court grants the motion to supplement, the Court finds that the supplemental evidence does not alter its analysis. Furthermore, because the supplemental evidence does not alter the Court's analysis, the Court need not wait to allow Intervenors to respond. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4045362/ | torn 01 ,07,03, tH&Bfto-ft
Lexter Kossie#700661
,William McConnell Unit
3001 South Emily Drive
rBeeville, Texas 78102
April 26, 2015
COURT OFCRIMINAL APPEALS
Texas Court of Criminal Appeals APR 29 2015
P.O. BOX 12308, Capitol Station
Austin, Texas 78711
RE: WR HOs. 10,978-01 thru 10,978-16
Tr.Ct.NOs. 679887-A thru 679887-K
185th District Court - Harris County
Dear Clerk:
Recently I have been cited for abuse of the writ. In
order for me to show that the claims I intend to raise in my
subsequent writ are not barred by Sec 4 I am requesting the
docket sheet of all the writs mentioned above with a list of
all of the claims presented in each of those application. With
out a list of all of the claims I cannot show that the claims
I intend to raise have not been raised before in those prior
applications.
Thank you for any consideration given in this matter.
Sincerely,
cc:File Lextsif Kennon Kossie | 01-03-2023 | 09-28-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486551/ | This is a claimant's suit, asserting title to certain personal property which had been seized and levied upon by the Sheriff of Frederick County under and by virtue of ten writs of fierifacias issued out of the Circuit Court for Frederick County, at the suit of the plaintiffs in the judgment cases, against the goods and chattels, rights and credits of Charles H. Goetz and Katie A. Goetz, the defendants in the cases, and two of the appellees on the record now before us.
The property taken in execution consists of personal property and is appraised at the sum of $1,354.00.
The claimant's petition is in the usual form and asserts that the property levied upon is the property of the claimant, Albert S. Guyer, and was not the property of the defendant, Goetz.
The case was tried before a jury in the Circuit Court for Frederick County and from a judgment on a verdict in favor of the defendants the claimant has appealed.
At the trial of the case the plaintiff claimant reserved certain exceptions to the rulings of the Court upon the prayers and to the admissibility of certain evidence which was permitted to be introduced after the conclusion of the evidence on both sides but before the case was submitted to the jury, and these exceptions form the basis of the appeal.
The main contention upon the part of the appellant is, that the Court below committed an error in refusing to grant the plaintiff's first and second prayers, and for these reasons it is urged the judgment should be reversed.
The plaintiff's first prayer asked the Court to rule, as a matter of law, that the defendants in the case had offered no evidence legally sufficient to show that the property levied on by the Sheriff belonged to and was the property of the defendant, *Page 21
Charles H. Goetz, and therefore their verdict must be for the plaintiff for the property claimed.
By the second prayer the Court was asked to instruct the jury that under the pleadings and evidence in the case, the mere possession of the property levied upon by the plaintiff, was no evidence of title to the property in the said Charles H. Goetz at anytime.
There was no error in the refusal of the Court to grant either of these prayers.
The first prayer was clearly erroneous because it assumed the fact that the property levied on by the Sheriff belonged to and was the property of the defendant, instead of leaving to the jury to find whether there was sufficient proof in support of the claimant's contention as to this fact.
The burden of proof clearly rested upon the claimant to establish his claim and ownership of the property and the Court could not take away from the jury the finding of this fact.
In Peterson v. Ellicott, 9 Md. 52, it is said there is no principle better established than that which denies to the Court the right of assuming any fact in aid of a prayer when the onus of proving such fact rests upon the party asking the instruction, no matter how strong and convincing his proof on the subject may be. And to the same effect are the cases of McCosker v.Banks, 84 Md. 292; Consolidated R'y. Co. v. O'Dea,91 Md. 506; Calvert Bank v. Katz, 102 Md. 56; Lemp Brewing Co. v.Mantz, 120 Md. 186.
The second prayer was also properly refused. As offered, it asked the Court to say to the jury that the mere possession of the property levied upon by the plaintiff was no evidence of title to the property in the defendant, Goetz, at any time.
While the possession of the property by the defendant at the time it was levied upon by the Sheriff was not conclusive evidence of ownership, it was at least as said by this Court inLemp Brewing Company v. Mantz, 120 Md. 184, some evidence of title and sufficient to cast upon the plaintiff the burden of showing a superior right. *Page 22
In 1 Greenleaf on Evidence, 34, it is said as men generally own the personal property they possess, proof of possession is presumptive proof of ownership. Cole v. Berry, 42 N.J.L. 315;Miller Sons Piano Co. v. Parker, 26 A. 303.
The second, third and fourth exceptions bring up for review the rulings of the Court in reopening the case for further testimony after the evidence on both sides had been closed and the prayers submitted, and in the submission of proof of the judgments upon which the executions had been issued.
The testimony that was offered and introduced it will be seen was clearly admissible and was necessary for a proper consideration of the case.
The plaintiff had omitted to prove the judgments in the course of the trial and it was entirely within the discretion of the Court to grant the application and to permit the additional testimony to be introduced.
In 2 Poe's Pleading and Practice, Vol. 2, it is said that cases may arise when the purposes of justice may seem to require that the application ought not to be denied, and accordingly, it is not a reversible error to permit the case to be re-opened for such purpose. The matter rests in the discretion of the Court and from its action granting or rejecting the application no appeal will lie. State v. Duvall, 83 Md. 123; Dailey v. Grimes,27 Md. 446.
The nature and character of the evidence set out in the exceptions and which was permitted to be introduced could not have prejudiced the claimant's case, and he was not thereby injured by its admission.
Without stopping to review the testimony or stating it in detail it is sufficient to say the case was one that presented a state of facts for the consideration of the jury and not for the Court to decide or determine, as a matter of law.
Finding no reversible error in the rulings of the Court the judgment will be affirmed.
Judgment affirmed, with costs *Page 23 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486553/ | The above entitled case comes to this Court on an appeal from a decree in equity of the Circuit Court for Talbot County. This case originated in a bill filed in the Circuit Court for Talbot County by the devisees under the will of Sarah A. Carmine against William J.H. Wooters. Before the time arrived for the filing of an answer, Mr. Wooters had died, and the bill was answered by his executrix and the devisees under his will.
The object and purpose of the bill was to have set aside a deed, made by Mrs. Carmine to the defendant, of her half interest in a lot of ground on the south side of Goldsborough Street in the town of Easton. Mattie A. Wooters, the wife of the original defendant, was the daughter of Mrs. Carmine and the owner of the other undivided one-half interest in the same lot. In 1916, shortly before her death, Mrs. Mattie A. Wooters conveyed her undivided interest to her husband, J.H. Wooters, and the effect of the deed sought to be set aside in this proceeding was to vest in Mr. Wooters the entire interest in said lot.
The case is one of fact and involves no new legal principle. The leading element in it is the relationship which existed. The relationship between a mother-in-law and son-in-law is not such as of itself carries with it a presumption that the execution of a deed from one to the other was necessarily within the class stamped by the law as fraudulent. That phase most frequently occurs in the case of a deed from a child to its parent, but the facts of the relationship and manner of life of the parties at or about the time of the execution of the deed, may or may not be the rule which governs confidential relations in a way to make it a controlling factor.
The record in this case discloses that Mrs. Carmine and Mr. and Mrs. Wooters had lived together as one family in the town of Easton in the neighborhood of thirty years; and that their life had always been entirely agreeable and satisfactory to both Mrs. Carmine and Mrs. Wooters. No question of mental incapacity is involved in the present case, but *Page 410
it is abundantly established that Mrs. Carmine was very much worked up and made extremely nervous as the result of the death of her daughter, Mrs. Wooters, and the deed which is now sought to be set aside was executed before that condition had subsided.
Mr. Wooters was in business in the town of Easton, and after his wife's death he and Mrs. Carmine continued in the same friendly relation as seems to have existed theretofore. In this condition of the parties, the only fair inference is that the burden of proof was cast upon the grantee in that deed, Mr. Wooters, of showing that the execution of it was the free, voluntary, and unbiased act of the grantor. If this is done and there is no question of capacity and undue influence, a court will not strike down a voluntary deed merely to gratify the caprice of one of the parties, or because of their subsequently changed relation. Jervis v. Jervis, 127 Md. 133; Mulfinger
v. Mulfinger, 114 Md. 463.
In the case of Hammersley v. Bell, 134 Md. 172, it appeared that an elderly woman in feeble health was living with her daughter and son-in-law and was under their care and protection, and for a nominal sum conveyed nearly all of her property to the son-in-law, and it was there held that the relation of the parties was such as to impose the burden on the defendants of proving that the deed was the deliberate and voluntary act of the grantor and made without undue influence or fraud upon the part of those who profited thereby. This last case in its facts very clearly approximates the case now under consideration. To this same effect, cases might be multiplied almost indefinitely both in this and other states, but so well settled is the rule that, under the evidence as it appears in the record, it would be amply sufficient if this case should be rested alone upon the decision of this Court in the last cited case.
The most important witness in the case was Russell Soulsby. He was the notary public before whom Mrs. Carmine executed the deed which is the subject of this attack, and he also was the official before whom Mrs. Wooters executed her *Page 411
deed in 1916 to her husband, Wm. J.H. Wooters. With regard to this last mentioned deed, Mr. Soulsby testified that he was stopped on the street on the morning of the day of its execution and told by Mr. Wooters to stop at his house that afternoon to execute a paper from his wife to himself, and was also told that in case Mrs. Carmine entered the room while he was there, not to "let on" that the witness was there for the purpose of executing a paper. The same notary took the acknowledgment of Mrs. Carmine to the deed now attacked, and which Mr. Wooters had had prepared. He testified that this deed was not read over to Mrs. Carmine by himself or anyone else in his presence nor did Mrs. Carmine read it. The apparent desire by Mr. Wooters to conceal from Mrs. Carmine the fact of the execution by Mrs. Wooters to Mr. Wooters of her one-half interest in the Goldsborough Street property, the production by Mr. Wooters of the deed for the remaining half interest in the same property, and the execution or attempted execution of the paper without reading it, and apparently without any definite knowledge of the contents of the same, form a strong indication of fraud upon the part of Mr. Wooters. It is true that a witness was called by the plaintiff, Mrs. Mary Patchett, who said that to her recollection the document was read over to Mrs. Carmine by the notary, but this cannot be accepted as the correct version, as against Mr. Soulsby's positive testimony that he did not read the paper to her nor was it read to her in his presence. Mrs. Patchett also testified, as do some of the other witnesses, that the paper which Mrs. Carmine was executing was the deed of the half interest in the Goldsborough Street property which had belonged to Mrs. Wooters, and she said to several witnesses, after the execution of the deed that she, Mrs. Carmine, hoped that she had not been done out of her property. Mr. Soulsby also testified that Mrs. Carmine said to Mr. Wooters, "I hope you won't do me out of my property," and he replied, "No, it is only to protect me in case you go before I do." *Page 412
Even though no such condition existed as would bring the transaction under the doctrine of confidential relations, this would be evidence which would tend strongly to show actual fraud.
The bill alleges that Mrs. Carmine before her death had discovered the nature of the deed which she had executed to Mr. Wooters and had given counsel direction to proceed for the purpose of having the deed set aside, but died before any such proceeding was actually begun.
The judge who sat in this case in Talbot County filed a very lengthy and elaborate opinion setting the deed aside and basing his conclusion solely upon the question of the confidential relation which existed between the parties. Sufficient has been recited of the evidence to show that there was ample ground for the institution of such proceedings, even though the bill vacating the deed at the instance of Mrs. Carmine had not been filed, and it is perfectly clear that, when coupled with the evidence tending to show positive fraud, the onus of proof which the law casts upon those who receive a benefit where confidential relations exist has not been met by the devisees and executrix of Mr. Wooters; and this Court entirely concurs with the conclusion reached by the Circuit Court for Talbot County and its action will accordingly be approved and the decree affirmed.
Decree affirmed, costs to be paid by the appellants. *Page 413 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3208855/ | PRESENT: All the Justices
DOUGLAS E. PIKE
OPINION BY
v. Record No. 151193 JUSTICE STEPHEN R. McCULLOUGH
June 2, 2016
KATHRYN S. HAGAMAN
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Gregory L. Rupe, Judge
Douglas E. Pike, the plaintiff in a medical malpractice action, challenges the trial court’s
dismissal of his complaint on the basis of sovereign immunity. Pike argues that the defendant
Kathryn S. Hagaman, a registered nurse in the Surgical Trauma Intensive Care Unit at Virginia
Commonwealth University, or VCU, Medical Center is not entitled to sovereign immunity.
Applying the four factor test from James v. Jane, 221 Va. 43, 282 S.E.2d 864 (1980), we
disagree and affirm.
I. BACKGROUND
Pike was a surgical patient at VCU Medical Center, a hospital that is part of the VCU
Health System. He underwent a complex and lengthy surgery lasting over 12 hours to
reconstruct his hard and soft rear palates, i.e., the back of his mouth. Very few hospitals in
Virginia can perform such a surgery, with VCU Medical Center being the only one in central
Virginia that can perform it.
Following the surgery, Pike was taken to the Surgical Trauma Intensive Care Unit for
recovery. This intensive care unit is a specialized unit, which “has the infrastructure and the
expertise to manage the most complex surgical patients in the hospital.” Post-operative care in
this unit requires “a minute-to-minute obligation to manage the post-operative care such that the
patient continues to improve.” The patients are often in very critical condition and, therefore,
require “complex nursing care.” Each nurse in this unit is responsible for two patients at most.
Nurses must observe and assess patients, closely monitor vital signs, monitor the drugs that
might be required for blood pressure support, care for patients on ventilators, and carry out “the
complex orders that might be written by the surgery team.” To provide this care, the nurses in
the unit are highly trained, including in “postanesthetic care, postoperative care, wound care, and
the management of unstable patients.”
The environment is a collaborative one in which residents frequently consult and work
closely together with the nurses in caring for the patients. The residents’ interaction with the
nurses is integral to the training curriculum. Nurses participate in the orientation of the residents
to the unit and support the residents by providing information.
Pike’s surgery included making an incision in his neck to permit the insertion of a
ventilator tube. Following a surgery such as the one Pike underwent, it is important to keep the
patient’s head stable to enable blood to flow. Dr. Marc Sarcia placed an order in the “order
section” of Pike’s chart which stated, among other things: “Please do not apply any pressure to
the right neck area in the vicinity of the incision.” The doctors overseeing Pike’s care did not
write any orders specifically governing the position of his head or neck; i.e., they did not order
the nurses to maintain Pike’s head in a neutral or midline position. According to testimony from
multiple witnesses, nurses were required to exercise judgment and discretion in determining how
to position the patient’s head and how to avoid pressure in the vicinity of the neck incision. A
surgeon at the hospital testified that he would rely on the skill and expertise of the nurse to
position the patient’s head appropriately following surgery.
2
Progress notes for the day after Pike’s surgery stated, “Keep head in neutral position,”
and “[n]o pressure to right side of face/neck.” 1 Dr. Andrea Pozez testified that nurses are not
required to read progress notes, and Hagaman testified that progress notes are not the same as
orders.
During the morning five days after the surgery, Pike was found with his neck tilted to the
right, a position that would cause “venous compromise.” The staff on the floor was instructed to
avoid this practice. That afternoon, Dr. Christopher Campbell, Pike’s attending physician, found
Pike again in that position. Pike’s face and neck were massively swollen. As a consequence,
Pike had to undergo further surgery in an effort to salvage the palate reconstruction surgery.
Those efforts were not successful and reconstruction surgery was for naught.
VCU Health System Authority paid nurse Hagaman’s wages and her pay did not vary
based on the number of patients that she saw. She did not bill patients for the care she provided.
A scheduling committee made up of other staff nurses set her work hours and approved her leave
from work. She had no discretion to refuse to see a patient.
Pike filed a medical malpractice action, alleging that Hagaman was negligent. In
response, Hagaman filed a plea of sovereign immunity. Following the presentation of evidence,
the trial court granted Hagaman’s plea. In a memorandum opinion, the court outlined the
evidence and concluded that sovereign immunity barred the action. This appeal followed.
1
Pike asserts that a physician placed “a large sign on the wall of Pike’s room . . . that
notified all concerned not to permit Pike’s head to turn to the right, and that his head and neck
needed to be kept upright or elevated at all times without pressure to the neck and face.” The
record establishes that a doctor wrote an order to have a sign placed on the bed that stated Pike’s
head should be kept in a “neutral or slightly chin left” position “at all times.” This order was
given after Pike’s head was found in a slumped position, and not before that time.
3
II. ANALYSIS
We review de novo a trial court’s ruling on a plea of sovereign immunity. City of
Chesapeake v. Cunningham, 268 Va. 624, 633, 604 S.E.2d 420, 426 (2004). Furthermore,
[w]hen evidence is presented “on [a] plea ore tenus, the circuit
court’s factual findings are accorded the weight of a jury finding
and will not be disturbed on appeal unless they are plainly wrong
or without evidentiary support.”
McBride v. Bennett, 288 Va. 450, 454, 764 S.E.2d 44, 46 (2014) (quoting Hawthorne v.
VanMarter, 279 Va. 566, 577, 692 S.E.2d 226, 233 (2010)).
The doctrine of sovereign immunity remains “alive and well in Virginia.”
Commonwealth ex rel. Fair Hous. Bd. v. Windsor Plaza Condo. Ass’n, 289 Va. 34, 56, 768
S.E.2d 79, 89 (2014) (quoting Jean Moreau & Assocs. v. Health Ctr. Comm’n, 283 Va. 128, 137,
720 S.E.2d 105, 110 (2012)). The doctrine “is ‘a rule of social policy, which protects the state
from burdensome interference with the performance of its governmental functions and preserves
its control over state funds, property, and instrumentalities.’” City of Virginia Beach v.
Carmichael Dev. Co., 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000) (quoting Hinchey v. Ogden,
226 Va. 234, 240, 307 S.E.2d 891, 894 (1983)). Because “government can function only through
its servants . . . certain of those servants must enjoy the same immunity in the performance of
their discretionary duties as the government enjoys.” First Va. Bank-Colonial v. Baker, 225 Va.
72, 79, 301 S.E.2d 8, 12 (1983).
“A plea of sovereign immunity is a defensive plea presenting distinct issues of fact
which, if proved, create a bar to the plaintiff's right of recovery. As the moving party, the [state
employee] bear[s] the burden of proving those issues of fact.” Whitley v. Commonwealth, 260
Va. 482, 493, 538 S.E.2d 296, 302 (2000) (citation omitted).
4
In James, we declined to impose a bright line rule to determine whether an allegedly
negligent state employee is protected by the shield of sovereign immunity. 221 Va. at 53, 282
S.E.2d at 869. We developed a list of four non-exclusive factors to assess whether a plea of
sovereign immunity should be sustained. These four factors are:
1. The function the employee was performing;
2. The state’s interest and involvement in that function;
3. Whether the act performed by the employee involved the use of judgment and
discretion; and
4. The degree of control and direction exercised by the state over the employee. 2 Id.
A. THE FUNCTION HAGAMAN WAS PERFORMING AND THE STATE’S INTEREST IN THAT
FUNCTION.
With respect to the first two factors, “if the function that a government employee was
negligently performing was essential to a governmental objective and the government had a
great interest and involvement in that function, those factors would weigh in favor of the
employee’s claim of sovereign immunity.” Lohr v. Larsen, 246 Va. 81, 85, 431 S.E.2d 642, 644
(1993). Conversely, “if that function has only a marginal influence upon a governmental
objective, and the government’s interest and involvement in that function are slight, these factors
weigh against granting governmental immunity to a government employee.” Id. (internal
quotation marks omitted).
Pike contends that Hagaman was engaged in routine patient care, and that her care “had
only a marginal influence on furthering any governmental interest or objective.” It is true that in
James we stated that “[t]he state’s interest and the state’s involvement, in its sovereign capacity,
2
Neither party suggests that we consider any factors beyond the four articulated in James
v. Jane, 221 Va. at 53, 282 S.E.2d at 869. Accordingly, we confine our analysis to these factors.
5
in the treatment of a specific patient by an attending physician in the University Hospital are
slight.” 221 Va. at 54, 282 S.E.2d at 870. That statement, however, was made against the
backdrop of our assessment of the governmental interest served by the University of Virginia
Hospital. As for that hospital, we concluded, at the time, that “the paramount interest of the
Commonwealth of Virginia [was] that the University of Virginia operate a good medical school
and that it be staffed with efficient and competent administrators and professors.” Id. In Lohr, in
contrast, we sustained the plea of sovereign immunity, in part, because the general care provided
by the physician defendant was integral to the governmental objective of “attempting to provide
quality medical care in certain specified areas for citizens of this State who are economically
unable to acquire those services in the private sector.” 246 Va. at 86, 431 S.E.2d at 644-45.
The governmental objectives articulated by the General Assembly in the Code of Virginia
certainly constitute compelling evidence of the Commonwealth’s interest in a particular function.
We have previously consulted legislative enactments in assessing the governmental objective at
stake. Id. at 86, 431 S.E.2d at 645. The General Assembly has found that the “[p]rovision of
health care, including indigent care, is an essential governmental function protecting and
promoting the health and welfare of the citizens of the Commonwealth.” Code § 23-50.16:2(1).
More specifically, Code § 23-50.16:2(4) provides that the essential missions of the VCU Medical
Center, formerly known as the Medical College of Virginia Hospital, include serving as a
“general hospital and health care facility” and “provid[ing] high quality patient care and other
specialized health services not widely available in the Commonwealth,” and that these “missions
constitute essential governmental functions.”
By “provid[ing] specialized health services not widely available in the Commonwealth”
through the Surgical Trauma Intensive Care Unit, Hagaman was serving an “essential
6
governmental function[].” Code § 23-50.16:2. The trial court found that Hagaman “has a great
depth of expertise in offering this kind of specialized care.” In addition, the court found that
Hagaman’s actions “were essential to carrying out the express interest of the Commonwealth as
embodied in Code [§] 23-50.16:2(4).” We agree with the trial court’s assessment. The first two
factors of our James test, therefore, support a finding of sovereign immunity.
B. HAGAMAN’S USE OF JUDGMENT AND DISCRETION.
“[A] government employee’s use of judgment and discretion is an element in determining
the issue of immunity.” Lohr, 246 Va. at 87, 431 S.E.2d at 645. The presence of discretion
supports a finding of immunity. Id. We have recognized that “[v]irtually every act performed by
a person involves the exercise of some discretion,” and, therefore, the presence of discretion is
not always determinative. James, 221 Va. at 53, 282 S.E.2d at 869.
There are two important caveats with respect to this factor. First, “[t]he defense of
sovereign immunity applies only to acts of judgment and discretion which are necessary to the
performance of the governmental function itself.” Heider v. Clemons, 241 Va. 143, 145, 400
S.E.2d 190, 191 (1991). Second, regardless of the existence of discretion in the overall job, there
is no sovereign immunity for the negligent performance of ministerial acts. Baker, 225 Va. at
78, 301 S.E.2d at 11.
The evidence does not support Pike’s claim that Hagaman was performing a ministerial
act. First, the evidence establishes that Hagaman had to exercise her discretion to determine how
to carry out the doctor’s orders to avoid pressure in the vicinity of Pike’s neck incision and to
keep his head in a neutral position. Second, the specific omissions alleged, i.e., Hagaman’s
failure to monitor the position of Pike’s head and failure to avoid pressure near the incision,
cannot be viewed in artificial isolation. In other words, the exercise of judgment and discretion
7
is unavoidably contextual. Cf. McBride, 288 Va. at 455-56, 764 S.E.2d at 47-48 (reviewing and
considering contextual factors in automobile-related sovereign immunity cases). Hagaman’s
sphere of responsibility extended beyond simply positioning the patient and avoiding pressure
near the neck incision. She had to prioritize and address many tasks. According to the evidence,
she was required to provide “minute to minute” care by, among other things, monitoring a
patient’s drugs, checking his vital signs, and consulting with residents. Hagaman was exercising
discretion in caring for Pike. Therefore, this factor, while not determinative, supports a finding
of sovereign immunity.
C. THE STATE’S CONTROL AND DIRECTION OVER HAGAMAN.
“A high level of control [by the state over an employee] weighs in favor of immunity; a
low level of such control weighs against immunity.” Lohr, 246 Va. at 88, 431 S.E.2d at 646.
We observed in Lohr that
[a]t first glance, the issue of wide discretion that influences our
consideration of the grant of governmental immunity in applying
the third element of the James test appears to be at odds with our
consideration of a higher level of governmental control in the
application of the fourth element of that test in this case.
Id. We explained, however, that “when a government employee is specially trained to make
discretionary decisions, the government’s control must necessarily be limited in order to make
maximum use of the employee’s special training and subsequent experience.” Id.
In contrast to James, where the physicians “exercise[d] broad discretion in selecting the
methods by which they care[d] for [their patients],” 221 Va. at 48, 282 S.E.2d at 866, Hagaman’s
discretion was cabined by physicians’ orders. In addition, the physicians in James could refuse
to accept a particular patient. Id. Hagaman had no such option. The trial court found that the
hospital “had a high degree of control over Hagaman, who was supervised by more senior
8
nursing staff” and that she was subject to the hospital’s policies. The state hospital pays her
wages and determines her schedule and whether she can take leave. This fourth factor also
points in the direction of sovereign immunity.
III. CONCLUSION
Our assessment of the four James v. Jane factors in this specific context leads us to affirm
the trial court’s dismissal on the ground of sovereign immunity. 3 We, therefore, affirm the
decision of the trial court.
Affirmed.
JUSTICE MIMS, with whom JUSTICE GOODWYN joins, dissenting.
I agree that this case can be resolved using the four factors enumerated in James v. Jane,
221 Va. 43, 53, 282 S.E.2d 864, 869 (1980). However, I disagree that the application of those
factors entitles the defendant to the protection of sovereign immunity. I therefore respectfully
dissent.
In James, two patients sought to recover damages from their physicians, who were
faculty members of the University of Virginia Medical School, for negligent treatment the
patients alleged they received at the University Hospital. Id. at 45-46, 282 S.E.2d at 864-65. We
noted that
[t]he state is of course interested and concerned that patients who are treated at the
University Hospital receive proper medical care. However, the state has this same
concern for every patient who is treated in any private hospital or by any doctor
3
Pike argues that a finding of sovereign immunity in this instance would mean that
“virtually no claim . . . could ever be asserted against nursing staff for negligence.” We
disagree. As with physicians, where immunity may or may not be present, compare James, 221
Va. at 55, 282 S.E.2d at 870, with Lohr, 246 Va. at 88, 431 S.E.2d at 646, so it is with nurses.
Our multi-factor test in James eschews categorical rules in favor of fact-specific, fine-grained
analysis. See Colby v. Boyden, 241 Va. 125, 130, 400 S.E.2d 184, 187 (1991) (“[E]ach case
must be evaluated on its own facts . . . .”).
9
throughout the Commonwealth. This is evidenced by the numerous statutes
enacted by the General Assembly of Virginia designed to assure adequate medical
care and medical facilities for the people of the state. The state's interest and the
state's involvement, in its sovereign capacity, in the treatment of a specific patient
by an attending physician in the University Hospital are slight; equally slight is
the control exercised by the state over the physician in the treatment accorded that
patient. This interest and involvement is not of such moment and value to the
Commonwealth as to entitle [the defendants] to the immunity enjoyed by the
state.
Id. at 54, 282 S.E.2d at 870.
Circuit courts have repeatedly applied this language to conclude that although the
Commonwealth has a general interest in patient care provided by nurses, that interest is
insufficient to justify extending sovereign immunity to protect them from liability for their
alleged negligence. White v. Simon, 87 Va. Cir. 308, 311-14 (Charlottesville Cir. Ct. Dec. 4,
2013); White v. Belgrave, 87 Va. Cir. 303, 306-07 (Charlottesville Cir. Ct. Dec. 4, 2013); Roush
v. West, 83 Va. Cir. 407, 414 (Charlottesville Cir. Ct. Oct. 5, 2011); Gaines v. Health Servs.
Found., 80 Va. Cir. 336, 339-43 (Charlottesville Cir. Ct. Apr. 30, 2010); McCandlish v. Kron, 38
Va. Cir. 302, 304-05 (Albemarle Cnty. Cir. Ct. Jan. 11, 1996). Each of these cases also involved
highly trained nurses who, like the defendant in this case, worked in specialized treatment units.
Simon, 87 Va. Cir. at 308-09 (nurse treated the plaintiff’s decedent in the thoracic cardiovascular
post-operation unit); Belgrave, 87 Va. Cir. at 303-04 (nurses treated the plaintiff in the digestive
health center); Roush, 83 Va. Cir at 413 (nurse treated the plaintiffs’ decedent in the pediatric
cardiology clinic); Gaines, 80 Va. Cir. at 336-37 (nurse treated the plaintiff in the neonatal
intensive care unit); McCandlish, 38 Va. Cir. at 303 (nurses treated the plaintiffs’ decedent in the
pediatric intensive care unit).
Although the majority relies on the distinction between the governmental objectives the
General Assembly attributed to the Virginia Commonwealth University Health System Authority
10
in Code § 23-50.16:2 and the “paramount” educational purpose of the University of Virginia
Medical Center in James, 221 Va. at 54, 282 S.E.2d at 870, that educational purpose was not the
principal ground for our holding in James. Rather, we concluded that the Commonwealth’s
interest in proper medical care is the same regardless of whether the facility is public or private.
Thus, the stated statutory objectives of providing high-quality patient care and promoting health
and welfare at the VCU Medical Center are indistinguishable from the objectives of any health
care facility, public or private.
Accordingly, the Commonwealth’s interest in the performance of one particular nurse in
the treatment of one particular patient is the same regardless of the character of the facility where
the treatment occurs. 1 The only difference, under the majority opinion, is that a nurse at a
private facility may be held liable for his or her professional negligence while a nurse at an
identical facility owned and operated by the state cannot be. Whatever benefit this disparity may
yield for the public treasury, and thus indirectly for the taxpayer, it promotes neither
conscientious and competent performance by medical professionals employed at state medical
facilities compared to their private sector counterparts, nor diligent and proactive supervision of
1
To paraphrase our conclusion in James, changing only “physician” to “nurse,”
The only issue we decide here is whether a [nurse], employed by an agency of the
Commonwealth of Virginia and practicing in a hospital operated by such an
agency, should be immune from an action for his negligence, i.e., for his failure to
exercise reasonable care in attending a patient. In Eriksen v. Anderson, 195 Va.
655, 660-61, 79 S.E.2d 597, 600 (1954), we said: “There is no statute which
authorizes the officers or agents of the State to commit wrongful acts. On the
contrary, they are under the legal obligation and duty to confine their acts to those
which they are authorized by law to perform. If they exceed their authority, or
violate their duty, they act at their own risk, . . . and the State is not responsible or
liable therefor.” . . . A [nurse] who fails to use reasonable care in the treatment of
a patient acts at his own risk, and is not entitled to invoke the doctrine of
sovereign immunity.
221 Va. at 55, 282 S.E.2d at 870.
11
such employees at state facilities that are immune from the consequences of their negligence. In
short, the majority’s holding makes it less likely, rather than more likely, that the
Commonwealth’s stated objective of providing high-quality patient care will be met.
Relying on James, I therefore would reverse the circuit court’s holding that the defendant
was entitled to sovereign immunity and remand for further proceedings.
12 | 01-03-2023 | 06-02-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486554/ | The question in this case and the next is whether the power or warrant in a promissory note authorizing an attorney to confess judgment for the amount due can be exercised, *Page 2
and the judgment confessed and entered, under that authority, when the debtor has previously become insane. The question assumes that the maker was competent at the time of the making of the note; insanity at that time would go to invalidate the note and the power in it from the beginning. It is a question of the applicability of the rule that incompetency of a principal or donor of a power revokes authority or power previously given. In this first case, the note was made by Joel Acker under date of December 3rd, 1929, he was adjudged a lunatic on April 9th, 1930, and judgment on the note was confessed and entered on April 28th, 1930. Nearly a year later, on March 5th, 1931, the committee filed a motion to strike out the judgment by confession because of the intervening lunacy, and the motion was overruled. The appeal is from the overruling of that motion.
Exactly this question has never before been raised in this court. But it has been considered by other courts and by text-writers, and the unanimous conclusion, we find, has been that the lunacy does not revoke the power previously given, and so does not prevent execution of it, and confession and entry of the judgment. 3 Freeman, Judgments (5th Ed.) 2724; 1 Black,Judgments (2nd Ed.), sec. 61a; Klein, Judgments by Confession, 52; McCarty, Confession of Judgments, sec. 136; 1 Mechem,Agency (2nd Ed.), sec. 679; 1 Elliott, Contracts, 689, note 20; 1 Beach, Contracts, sec. 18; Spencer v. Reynolds, 9 Pa. Co. Ct. R. 249; Johnson v. Nat. Bank, 320 Ill. 389, 393,151 N.E. 231; McCaul v. Thayer, 70 Wis. 138, 144, 35 N.W. 353, 355;Davis v. Lane, 10 N.H. 156. "A mortgagee's power of sale," says Mechem, supra, "is not revoked by the after-occurring insanity of the mortgagor, or a power of attorney to confess judgment given as part of the security for money loaned."
It is the contention of the appellant that this conclusion can be reached only by departure from the principles governing agencies and powers, because under those principles the only exception to the rule that incompetency revokes a power of attorney is to be found in a case in which the power given *Page 3
is coupled with an interest in property to be dealt with in the exercise of the power, and in a power of attorney to confess judgment there is no such interest to be affected. But the contention confines the exceptions within too small a range. Insanity revokes an agency or power ordinarily because the ordinary agent acts only in performance of the free will of the principal, and therefore, when the principal ceases to have any competent will, such an agency or power must cease with it. But that result could not follow when the agent or donee of the power, even though there is no dealing with property involved, has a delegation of power which by a stipulation upon valuable consideration has been made binding on the principal beyond revocation at his will. In Spencer v. Reynolds, supra, which has remained as the leading case on the point, apparently because of the strength of its reasoning, the court said: "Lunacy will revoke any power of attorney that the principal might have revoked had he remained sane. It will not revoke what a sane principal could not revoke. * * * Here is a power conferred by a man in the full possession of his faculties. It is placed in the hands of the creditor, to be used by him at his pleasure. Why should the debtor's insanity do for him what he had no power to do if in the full possession of his mind? We can see no good reason for this, and the research of counsel has furnished no authority to sustain such a position." "The entry of the judgment is a mere legal consequence of the giving of the judgment note. It is not a new act by the debtor, but a natural and legal result, beyond his control." McCaul v. Thayer, supra. And this court, too, has already said that: "It may be laid down, as a general rule, that an agent's authority to act for a principal, is always revocable at the will of the principal; * * * unless the authority be coupled with an interest; or has been conferred on the agent for a valuable consideration moving from him to the principal." Attrill v. Patterson, 58 Md. 226, 250; Creager v.Link, 7 Md. 259, 267; Smith v. Dare, 89 Md. 47, 51, 42 A. 909;Howard v. Street, 125 Md. 289, 300, 93 A. 923; Hill v.Iglehart, 145 Md. 537, 552, 125 A. 843. *Page 4
In this case, the authority to confess judgment was a delegation of power to secure, by that method, repayment of a loan made, and was part of the consideration for the loan; and under the rule stated it was not revoked by the incompetency of the maker and principal.
Judgment affirmed, with costs to the appellee. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486556/ | This is a bill for specific performance, brought by the proposed vendor, the appellee here, on a contract to sell certain land in Dundalk to the appellant. In this contract, it is stated that the purchaser is desirous of erecting on the property "for residential purposes, groups of buildings, each group to consist of two or more buildings to be erected in a row side by side, and each building to contain four separate apartments, two on the first floor and two on the second floor." There is a proviso that the purchaser is not obligated under the contract "unless, under the terms and provisions of the deed conveying the property to it, it, its successors and assigns, shall be permitted to erect on said property buildings of the type hereinbefore specified, each of such buildings being intended for occupancy by four families."
The property is to be conveyed by the appellee, subject to certain restrictions, covenants and conditions contained in deed which it received from the Bethlethem Steel Company in 1940. It is claimed by the appellant that certain clauses in that deed embody restrictions which will prevent it from constructing buildings of the type above set out, and, therefore, it declines to carry out the contract.
The Bethlehem deed provides that the land shall be used for residence purposes only, and no building of any kind whatsoever shall be erected or maintained thereon except dwelling houses and private garages. Exceptions are made for schools, churches, libraries, art galleries, museums and studios or buildings for recreative, educational, religious or philanthropic purposes, to be approved by the grantor. It is also stated that "detached and/or *Page 649
semi-detached houses only may be erected and maintained on the plots fronting on Liberty Parkway; detached, semi-detached and/or attached houses may be erected or maintained on plots fronting on other streets." "Detached house" is defined as meaning a free standing dwelling, intended for occupancy by not more than two families. "Semi-detached house" is defined as one of a pair of dwelling units arranged side by side, separated only by a common wall, each intended for occupancy from basement to roof by one family. "Attached house" is defined as one of a group or row of three or more dwelling units arranged side by side, separated only by common walls, each unit intended for occupancy from basement to roof by one family.
The land which the appellant is buying does not front on Liberty Parkway, but it is claimed that the sense of of the restriction is that only attached houses which come within the above definitions may be erected on plots fronting on other streets, and, therefore, the appellant cannot build the kind of houses it proposes on any of the streets within the tract it is buying.
We think the use of the land for the kind of two-story appartments proposed to be constructed by the appellant is a use for residence purposes. That was indicated in the case ofSaratoga Building Co. v. Stables, Inc., 146 Md. 152,128 A. 270, 271, where it was said: "The words `residence purposes' are susceptible of being construed as including the erection of a residential apartment house, and in view of the conditions shown by the record, we think such a construction is reasonable and should be adopted."
The only remaining question is whether the statement that "detached, semi-detached, and/or attached houses may be erected or maintained on plots fronting on other streets" is a restriction on the erection of any other kind of dwellings on such streets. In this connection, the first clause of the same paragraph is important, because it provides that detached and/or semi-detached houses "only" may be erected and maintained on lots fronting on *Page 650
Liberty Parkway. It is claimed on the one hand that the naming of these kinds of houses excludes all other houses, and on the other hand, that the use of the word "only" in one part of the clause and its absence in the other part indicates that the first part only is a restriction.
The rule of construction with respect to restrictions on land is much more strict than that commonly employed with respect to ordinary contracts. The policy of the law is in favor of the free transfer of land. Restrictions are to be strictly construed against the grantor, and are not to be extended beyond the actual wording of the instrument creating them. The cases are collected and analyzed in one of the recent opinions of this court, delivered in the case of McKenrick v. Savings Bank,174 Md. 118, 197 A. 580. The same rules are re-affirmed in the case ofWhitmarsh v. Richmond, 179 Md. 523, 20 A.2d 161. In another case it was said, quoting in part 18 C.J., 387, "* * * Where the language employed to express a restrictive covenant so far involves a doubt as to require construction, the rule is that such covenants are to `be strictly construed against the person seeking to enforce them,' and that `all doubts must be resolved in favor of natural rights and a free use of the property.'"Bartell v. Senger, 160 Md. 685, 693, 155 A. 174, 177.
The grantee in the Bethlehem deed had the right, unless restricted by its terms, to construct any sort of dwelling house it desired upon the property. A restriction was placed upon the land fronting on Liberty Parkway, but in view of the rules of construction above set out, we cannot say that the last part of the clause relied on, restricted its right to construct only the types of dwellings enumerated. The point is narrow, but there is a doubt what was meant by this last clause. In view of that doubt, we construe it in favor of the free use of the land for residential purposes, which permits the erection of the kind of apartment houses desired by the appellant.
Testimony was taken to show the intention of the parties to the Bethlehem deed. Such testimony indicated that the type of construction contemplated will not violate *Page 651
the original intention. We have considered this testimony but we have not relied upon it for our decision, because of the obvious danger of accepting oral testimony to explain written instruments, after a change in conditions. In this case it is not necessary to consider this question, because, in our view, there is no such restriction on the property as will prevent the appellant from using it in the way it contemplates.
On another phase of the matter, the testimony is instructive, although not conclusive. That is the question, whether, under the circumstances in this particular case, the restriction attempted to be imposed are enforceable. It is not necessary for us to pass upon this question, in view of our conclusion upon the wording of the proposed restriction, and we expressly refrain from so doing. We mention it, however, because we do not wish to be understood as holding that any of these restrictions are valid and enforceable merely because we have not discussed that particular point.
The court below directed that the contract of sale between the appellant and the appellee be specifically enforced, and with that decision we are in accord.
Decree affirmed. Costs to be paid by the appellant. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486559/ | My conclusion is opposed to that of the majority of the court. In this state we have adopted the rule that suit may be brought on a contract by one who, although not a party to it, is named in it as beneficiary. We have adopted what has been called the New York rule, the majority rule, rather than the Massachusetts or the English rule on the subject. Anson on Contracts (2nd Amer. ed.), p. 284; Small v. Schaefer, 24 Md. 143. But the rule has not been that all stipulations between two parties for payment of a third are enforceable by that third. Some have been so enforceable, and some have not, according, in each case, as it might or might not be inferred from the particular contract in hand that the contracting parties intended to make the third party the beneficiary of their contract. "It is not every promise made by one to another from the performance of which a benefit may ensue to a third which gives a right of action to such third person, he being neither privy to the contract, nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited."Simson v. Brown, 68 N.Y. 355, 361. And it seems to me that we are slighting this distinction in holding the third party entitled to sue on the bond given the owner in this case, to enforce the stipulation that the surety "shall pay all persons who have contracts directly with the principals for labor and materials." I see nothing in it to support the inference of intention to benefit the *Page 50
third party, which would, under the principle referred to, bring it on the side of contracts so enforceable. As I see it, we are allowing the third party to come in and sue on the contract merely because the parties to it have agreed that he should be paid, without reference to the intention of the parties as to his benefit or interest.
This clause was a common one in the contracts of general contractors long before it was embodied in the surety bonds given by the contractors, and, as is well known, its sole object and purpose, originally, at least, was to protect owners against mechanics' liens on their property for unpaid bills of subcontractors. And of these stipulations, Williston said, in a discussion in 15 Harvard Law Review, 767, 783:
"In most cases the fulfilment of this promise by the contractor operates to discharge a liability of the owner of the building, whose building would be liable to satisfy the liens given by the law to workmen and materialmen. It cannot, therefore, be inferred that the promisee requires the promise in order to benefit such creditors of the contractor. The natural inference is that his object is to protect himself or his building. When, however, the owner of the building is a municipality, or county, or state, such an inference cannot so readily be justified, for the laws give no liens against the buildings of such owners. In such cases if the stipulation can be regarded as the result of more than the accidental insertion of a provision common in building contracts without reflection as to its necessity, it must be supposed that the object was to benefit creditors of the contractor. This supposition becomes a certainty when the legislature, in view of litigation in the courts in regard to the matter, enacts that all building contracts made by towns or counties shall contain such a stipulation."
There seems to me to be no reason for supposing, in this case, that the stipulation had any object beyond that of protecting the owner and his property. And not only is there an absence of support for an inference that he had any other intention; there are difficulties in the way of that *Page 51
inference. It is not easy to suppose that owners taking such bonds would intend to admit others to the security of the bonds as beneficiaries, in hostility, perhaps, to the interests of the owners. In Fosmire v. National Surety Company, 229 N.Y. 44, it was held to be contrary to the intention of a bond given to the state, with such a clause, that laborers should have a cause of action on it; and the court (Cardozo, J.), pointed out that if such an intention were inferred, "They may sue for wages as often as there is default, and exhausting the penalty of the bond leave nothing for the state. That danger was pointed out in BuffaloCement Co. v. McNaughton, 90 Hun. 74, where a bond was given to a city by the contractors for a sewer. `Such actions might have been brought before the completion of the sewer, and the penalty named in the bond exhausted, and the city thereby deprived of the protection which the bond was intended to give to it' (BuffaloCement Co. v. McNaughton, supra, at p. 79; Lancaster v.Frescoln, 203 Penn. St. 640, 644). The state did not intend to make employees of its contractors the beneficiaries of a cause of action to be enforced in hostility to its own. There is nothing far-fetched or visionary in the danger that would follow the recognition of such competing claims of right. In this very case, we have the admission of counsel that the state completed the work on the default of the contractors, and did so at increased cost and heavy loss, for which the bond was security. The outcome illustrates the possibilities of a divided right of action."
My conclusion is that the third party has no right of action in this contract, and that the judgment should be reversed. *Page 52 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427409/ | The appellant brought this action against the appellee to recover conditional sale contracts or their value. The appellant is a corporation engaged in financing automobile transactions between the manufacturer and the dealer. In the instant case it entered into an agreement with the Tiffin Motor Company, Incorporated, of Petersburg, Indiana, an automobile dealer, by the terms of which it would furnish the money to purchase automobiles from the Ford Motor Company. In September, 1940, these parties signed and filed with the Secretary of State of the State of Indiana their "Statement of Trust Receipt Financing," as provided by statute. See § 51-613, Burns' 1933 (Supp.).
Prior to that time said parties had entered into two agreements, both of which were in writing and each of which set out the general terms under which they were to operate. One agreement covered financing where the title came from the Ford Motor Company to the dealer and one covered transactions where the title was transferred from the Ford Motor Company direct to the appellant. Each agreement concerned a method of "floor plan financing," and under each agreement the *Page 4
Tiffin Motor Company, Incorporated, would execute, in blank, a trust receipt and deliver the same to the appellant. In the instant case the Ford Motor Company sold direct to the Tiffin Motor Company, Incorporated, but in no instance was delivery made until appellant paid the invoice price and the trust receipt above referred to was signed and delivered to appellant.
There are seven automobile transactions involved in this matter. In each of them the automobile dealer sold the car to an individual and received a conditional sale contract from the purchaser. Each of these contracts was sold to the appellee by the dealer.
The use of the trust receipt transaction is not new and decisions concerning the same have been pronounced in numerous jurisdictions in the United States and Great Britain. Under the law applied to transactions of this kind prior to the adoption of the Uniform Trust Receipts Act various courts made rulings that have a value in showing the development of and necessity for this type of financing. See Barry Hoogewerff v. Boninger Lehr
(1876), 46 Md. 59; 25 A.L.R. 332; 49 A.L.R. 282; 101 A.L.R. 453; 53 Am. Jur. 961; 22 Columbia Law Review (1922) 395.
The Act with which we are concerned was the result of the needs of merchants and dealers in handling products and machines which are used and needed by the purchasing public. Although originally it was used exclusively in the importing business, the mass production of automobiles, trucks, and various labor saving devices has created a field for the use of loaning corporation facilities which could not be properly served without the creation of the statutory trust receipt.
In addition to filing with the Secretary of State, and thus avoiding a filing or recording for each transaction, *Page 5
it likewise eliminates the necessity of searching a great 1. mass of filed or recorded papers. This filing with the Secretary of State constitutes constructive notice of the proposed method of financing and any rights that may be acquired thereunder. The Act also provides that under some conditions the security lien of the entruster may attach to other goods and things of value that may be received from a sale in the regular course of trade.
In Donn v. Auto Dealers Co. (1944), 385 Ill. 211, 214,52 N.E.2d 695, 696, it was said:
"The Trust Receipts Act is evidently the result of an effort to meet the needs of the business of financing the purchase and sale of goods on credit without the use of chattel mortgages, and without recording each lien transaction. The apparent purpose in permitting the filing of a statement by such financier and dealer is to have some method of giving notice to other prospective creditors that the former are doing business by the trust receipt financing method. The purpose seems to have been to retain the advantages of a security interest in goods by use of the trust receipt and yet to eliminate, as far as possible, both secret liens and the necessity of recording each transaction."
See also C.I.T. Corp. v. Commercial Bank (1944), 64 Cal.App.2d 722,149 P.2d 439; 9 Uniform Laws Annotated 665.
In those cases which developed prior to the adoption of the statute it seems to have been the rule that the receipt should issue from a third party and not from the one who ultimately did the paying. Some of the reasons for the rule, that it was necessary to come from a third party, were that to permit it to be otherwise might work a fraud on creditors, or the receipt might be rendered of little security value because of the recording statutes. *Page 6
Under the statute, § 51-601 et seq., Burns' 1933 (Supp.), it is immaterial whether the third party conveys title to the dealer (trustee) or to the entruster, as long as there is an 2. underlying contract outlining the terms to govern the transaction, the giving of new value, and the giving of the instrument which conveys or transfers a security interest to the entruster, together with possession in the trustee for one of the purposes enumerated in the statute.
There are but few cases that have been decided under the Uniform Trust Receipts Act. One case that is in point is GeneralMotors Acceptance Corporation v. Associates DiscountCorporation (1942), 38 N.Y.S.2d 972. There the court held that the Trust Receipts Act applied and the car taken in trade was a part of the security, and that the note taken on the sale of the car was likewise a part of the security. However, on appeal this cause was reversed on the question of election of remedies. General Motors Acceptance Corporation v. AssociatesDiscount Corporation (1944), 267 App. Div. 1032, 48 N.Y.S.2d 242.
In Peoples Finance etc. Co. v. Bowman (1943), 58 Cal.App.2d 729,137 P.2d 729, the court was confronted with a situation where two firms were financing a dealer. The defendant financed a new car which was later sold and a used car was taken in part payment. He then took the indicia of title of the used car to the plaintiff and secured financing in exchange for a trust receipt. Defendant did not request an accounting, but filed suit against the dealer and took the property in less than 10 days. This was held sufficient demand to satisfy the statute under the 10 day rule. However, the court held for the plaintiff on the theory that "where one of two innocent persons *Page 7
must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer."
The section of the statute which is pertinent to the instant case is as follows:
"Where under the terms of the trust receipt transaction, the trustee . . ., having liberty of sale or other disposition, is to account to the entruster for the proceeds of any disposition of the goods, documents or instruments, the entruster shall be entitled, to the extent to which and as against all classes of persons as to whom his security interest was valid at the time of disposition by the trustee, as follows:
"(a) . . .
"(b) To any proceeds or the value of any proceeds (whether such proceeds are identifiable or not) of the goods, documents or instruments, if said proceeds were received by the trustee within ten (10) days prior to . . . demand made by the entruster for prompt accounting; and to a priority to the amount of such proceeds or value; and also
"(c) To any other proceeds of the goods, documents or instruments which are identifiable, unless the provision for accounting has been waived by the entruster by words or conduct; and knowledge by the entruster of the existence of proceeds, without demand for accounting made within ten (10) days from such knowledge, shall be deemed such a waiver." § 51-610, Burns' 1933 (Supp.).
The statute known as the Uniform Trust Receipts Act, a section of which is above set out, gives rights beyond the immediate goods on which the lien is taken under the contract. For 10 3. days after a sale or trade by the dealer (trustee), the entruster is protected by a lien on the proceeds without taking any affirmative steps, but a failure to demand an accounting of the proceeds of a sale from the dealer within 10 days, after knowledge of the sale, is a waiver of the lien of the entruster on such proceeds. The terms *Page 8
of the statute make it necessary that a constant and close scrutiny be kept on every sale or trade on the part of the dealer, who is in a position to do harm to innocent third parties by and through the indicia of ownership placed in or permitted to come into his possession by the entruster.
The appellant bases its right of action on the statute referred to above, and anyone who seeks to enforce a statutory right or liability must, by allegation and proof, bring himself 4. within its provisions. City of Indianapolis v. Evans
(1940), 216 Ind. 555, 24 N.E.2d 776; Hamilton,Administrator v. Jones, Administratrix (1890), 125 Ind. 176, 25 N.E. 192; State v. Adams Express Co. (1909), 172 Ind. 10, 87 N.E. 712; Town of Windfall City v. State, ex rel. Wood
(1909), 172 Ind. 302, 88 N.E. 505.
In the section of the statute above set out, the legislature used the words "account" and "accounting," and the only case involving this statute in which there has been an attempt to throw some light on their meaning is that of Peoples Financeetc. Co. v. Bowman, supra, where the court said (58 Cal.App.2d 734, 735, 137 P.2d 732):
"If the trustee is given liberty of sale and is required by the trust receipt to render over to the trustee (entruster) any money, goods or other thing of value received as consideration in the sale of the entrusted goods, the lien of the entruster passes to such goods as may be identified, if the entruster within ten days demands delivery of such goods."
The question involved in this appeal is whether or not the lower court erred in sustaining a demurrer to the appellant's complaint. There are two paragraphs of complaint for each transaction or a total of 14, *Page 9
and all of these paragraphs are of similar import and generally allege the facts heretofore stated.
In the first 12 paragraphs of this complaint there is no allegation as to the time at which knowledge of the sale came to the entruster. The date of the sale and the date of 5, 6. demand are each set out and it is thus disclosed that more than 10 days elapsed between the sale and the demand. Since a demand not made within 10 days of knowledge of the time of sale is ineffectual to continue the entruster's lien, the court did not err in sustaining the demurrer as to each of these paragraphs of complaint. In the last two paragraphs, demand is alleged as of the date of the sale. It was a demand for the payment of a specified sum of money. Prior to that demand the dealer had assigned the note which was received in the sale of the automobile in question and had received its value from the appellee, and the proceeds in the hands of the trustee consisted solely of money. Under such conditions a demand for the proceeds which were then in the hands of the dealer (trustee), would have been no broader in effect than the simple demand for the amount of money then due the entruster. This demand satisfied the statute.
The court erred in sustaining the demurrer to the thirteenth and fourteenth paragraphs of complaint.
The judgment is reversed with instructions to the trial court to overrule the demurrer to the thirteenth and fourteenth paragraphs of complaint. As to all other things the judgment is affirmed.
Note. — Reported in 64 N.E.2d 28. *Page 10 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427412/ | Dismissed, on authority of Chicago, etc., Co. v. Lewis,Rec. (1901), 156 Ind. 232, 59 N.E. 466. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427414/ | On January 1, 1939, Gary was a city of the second-class. On that date a mayor and a judge of the city court went into office. Both undertook to appoint *Page 610
a bailiff for the city court. The appellee Webb, appointed by the judge, achieved possession of the office, and the relator Bailey brought this action seeking possession. The only question presented is whether the mayor or the city judge had the appointing power. It was held by the trial court that the power was in the judge, and this decision conforms with an opinion of the Attorney General of Indiana dated December 14, 1938.
Prior to 1933 the power to appoint the bailiff was by statute expressly vested in the city judge (§ 4-2705 Burns' Ind. St. 1933, Acts 1921, ch. 215, § 5, p. 587), and the statute is still in force unless repealed by implication as in conflict with the statute of 1933 (Acts 1933, ch. 233, p. 1042), upon which the appellant relies. Section 5 of the act of 1933 provides, among other things: ". . . In cities of second class the mayor shall appoint a city controller, a city civil engineer, a city attorney, a chief of fire department, a chief of police, and other officers, employes, boards and commissions, in accordance with the provisions of laws now in effect and as hereinafter provided." Section 26 provides: "All laws and parts of laws in conflict with any of the provisions of this act are hereby repealed . . ." Section 2 of the act of 1935, amending the act of 1933 (Acts 1935, ch. 307, p. 1493), provides: "The provisions of any law now in effect in so far only as said provisions fix or purport to fix the salaries of any elective or appointive officer and/or employee of any civil city of this state and the provisions of any laws now in effect insofar only as they fix or purport to fix the salary of any member of any board, commission, department or institution maintained or operated by any civil city, are hereby repealed upon the taking effect of this act, except all laws affecting cities of the second class owning and operating two municipal utilities, which shall remain in full force and effect. All appointive officers, *Page 611
deputies, employees, assistants and departmental and institutional heads not provided for under the provisions of this act, but which are provided for by laws or authority of law now in effect, shall not be considered as abolished by this act but such appointments shall be made by the mayor within his discretion as to number and positions named under laws or authority of law now in effect and such officers, deputies, employees, assistants and departmental and institutional heads shall serve at the pleasure of the mayor, who may terminate their office or employment at any time . . ."
It is noted that the statute last quoted refers to "civil city," and that the provisions for appointment in section 5 of the act of 1933, in so far as they are specific, refer to officers in the executive or ministerial department of the government. It is insisted by appellant that, since the word "all" is used in the statute of 1935, the act must be construed as conferring authority upon the mayor to appoint the court bailiff. While the office of city judge and the city courts have long been classified as branches of the city government, it has been expressly held by this court that, under older statutes, a mayor who acts as city judge ex officio, and the mayor's court, and the city court presided over by a mayor, are a part of the judicial branch of the state government, and that a mayor so acting is a judicial officer and disqualified under the Constitution to hold any other office during the term under which he was elected. Waldo v. Wallace (1859), 12 Ind. 569;Gulick v. New (1860), 14 Ind. 93; State ex rel. Egan v.Wolever et al. (1891), 127 Ind. 306, 26 N.E. 762. Circuit courts bear the name of the county in which they are located, and the judges are elected at the same time as county officers, but the court is not a part of the county government, and the judges are not county officers.
A consideration of both of the acts relied upon by *Page 612
appellant, in their entirety, discloses a legislative intention to make the mayor, who is the chief executive of the 1-3. city, responsible for, and to give him control over, the administrative and executive departments of the city. There is no expression in the acts indicating a desire or intention to put court officers under the control of the mayor, nor is such an intention consistent with our legislative history. The acts must be construed in the light of their apparent purpose, and statutes cannot be treated as repealed by implication, as in conflict with the acts in question, unless they are clearly irreconcilable. The mayor is the chief executive officer, is responsible for the functioning of the executive and administrative departments, and the purpose of the law was to place it within his power to control the appointive officers in these departments. The legislative reason for these enactments in respect to such officers is apparent, but there is no reasonable basis for concluding that the Legislature believed that the executive powers should be extended to control over court officers who serve the courts only and have nothing to do with those departments of the government in which the mayor functions as an officer. The very purpose of centering responsibility in the mayor, the head of the executive and administrative branches of the government, would seem to indicate the desirability of resting the responsibility of court appointments in the city judge, who is the head of the judicial branch of the city government, if the court is in fact a part of the city government.
In defining the appointive power of the mayor in these acts, specific reference is made to the city controller, city civil engineer, city attorney, chiefs of fire department and 4. police, and other officers, employees, boards, and commissions. Each specific *Page 613
reference is to some office or officer within the executive or administrative branch. It would seem that, in considering the general words used in connection with these specific ones, there is room for an application of the ejusdem generis rule, and that the general words, following the specific provisions concerning specific officers, boards, and commissions, should be limited in their meaning to those offices and officers which fall within the same general field or branch of the government.
Traditionally, this state has adhered to the principle that the courts are separate and distinct from the other branches of government, and, as indicated by the cases above cited, this court has held that a city court and the judge thereof, even though it be a mayor acting ex officio, are a part of the judicial department of the state government. When the Legislature acted specifically concerning city courts, it vested power to appoint the bailiff in the judge. This is a special law affecting city courts only. There is nothing in the latter laws expressly indicating a change in the legislative intention that the judges should appoint the bailiffs, and the language of the acts is so general that it must be concluded that there is no apparent intention that the former special legislation should be repealed.
Judgment affirmed.
Tremain, J., absent. *Page 614 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427415/ | As stated by the appellant, this was an action brought by the State of Indiana on the relation of Herbert E. Wilson, prosecuting attorney for the 19th Judicial District of the State of Indiana against the National Colored Aid Society in the form of an information to the Circuit Court of Marion county, Indiana, whereby the State of Indiana on the relation of Herbert E. Wilson, prosecutor, contended that the appellant herein was violating its charter as a corporation organized under the so-called non-profit act of 1889, in that the appellant was in effect writing insurance, and that under its charter it had no right to engage in the enterprise, for the reason that the appellant corporation in so acting was engaged in a commercial enterprise and in a profit-making enterprise.
The information further contended that the agents of the appellant company were making misrepresentations to those whom they solicited for membership. It also contended that the appellant corporation had not complied with the law of Indiana, by providing for reserve in the payment of losses as prescribed by the insurance law of the State of Indiana.
It further contended that the large numbers of people were subscribing to the membership of the appellant corporation, believing it to be insurance, and asked that the franchise of the appellant corporation be forfeited and the corporation dissolved and its officers and agents be enjoined from soliciting, selling, issuing, and executing said contracts.
The appellant filed an answer of general denial to the complaint and the cause was submitted to the court upon an agreed stipulation of facts. The court found against the appellant and permanently enjoined it from *Page 383
the sale, collection of, execution, and/or delivery of membership contracts, and ordered that the charter of the corporation be forfeited.
A motion for a new trial was filed by appellant and overruled by the court. The errors relied on for reversal, and properly assigned, are as follows:
(1) The decision of the court is not sustained by sufficient evidence.
(2) The decision of the court is contrary to law.
The correctness of the decision and judgment of the court depends upon the agreed statement of facts, and it therefore becomes necessary to set out those facts stipulated material to a proper consideration of the case.
The parties' stipulated facts are as follows:
"2. That said defendant is a corporation duly incorporated on August 8, 1930, under the laws of the State of Indiana, governing the incorporation of societies, associations and clubs not for pecuniary profit, Acts of 1889, page 141, approved March 6, 1889, entitled: `An act for the incorporation of societies not for pecuniary profit, defining their powers and providing for the election of directors, the dissolution of such corporation, distribution of their property, and the changing of their articles of association, and declaring an emergency.'
"3. That a copy of the articles of association as originally filed and now on file with the Secretary of State of Indiana by said defendant corporation is attached hereto, made a part hereof and marked `Exhibit A.' That said articles of incorporation so filed with the Secretary of State were duly recorded in the office of the Recorder of Marion county, Indiana, on the 14th day of August, 1930, at the hour of 9:40 o'clock a.m., as appears of record therein, Miscellaneous Record 224, page 397.
"4. That said defendant corporation is now and has *Page 384
been since said date of its said incorporation engaged in the business of soliciting and securing membership certificates in the State of Indiana and elsewhere from numerous persons of the Negro race, and is now and has been soliciting and securing membership certificates from numerous persons of the Negro race in said State of Indiana and elsewhere during said period of time, in all things like to a blank copy of same attached hereto, made a part hereof and marked `Exhibit B.'
"5. That said `Exhibit B' shall be taken and accepted as the exact membership certificate and contract which at all times mentioned herein has been duly executed and issued by the officers of said defendant corporation to its members in Indiana and elsewhere.
"6. That at all times mentioned herein the by-laws of said defendant corporation were and are the same as a copy of the same attached hereto, made a part hereof and marked `Exhibit C.'
"7. That said defendant corporation at all times herein mentioned has continuously maintained offices in the State of Indiana and has continuously employed officers and employes at stipulated salaries, wages and commissions in the conduct of its business.
"8. That said defendant corporation maintains no fund for the payment of benefits to its members created by payments by its members other than those paid pursuant to the provisions of said membership certificate and said by-laws.
"9. That when said membership certificate is issued by said corporation, the applicant member pays a membership fee for the issuance of said certificate, and that any and all payments made by any member and received under the terms of said certificates of membership paid to said corporation are in addition to said membership fee paid by the member at the time of his application *Page 385
for membership, and said defendant corporation's issuance to him of said membership certificate.
"10. That said defendant corporation has been and is now employing numerous and various agents in the State of Indiana and other states within the United States for the solicitation of such membership certificates and that said agents receive as compensation for such solicitation the membership fee provided in said membership certificates.
"11. That in addition to losses paid under said membership certificate the salaries of officers and employes of defendant corporation and the operating expense of the corporation are paid out of payments made by the members under and pursuant to the provisions of said membership certificates and said by-laws, and that said defendant corporation has heretofore called for said payments from its membership, will continue to call for payments from its membership as the need for payment arises, all under and pursuant to the terms of said membership certificate and said by-laws in the State of Indiana and elsewhere at all times herein mentioned.
"12. That said defendant corporation is not now and never has been licensed as an insurance company or association under the laws of the State of Indiana relating to and governing insurance companies, nor has it at any time ever applied for or received such a license.
"13. That said defendant corporation has no means or fund for the payment of losses sustained by any of its members pursuant to the terms of said membership certificate other than the fund created as hereinabove stated and has provided for no reserve for the payment of any losses pursuant to the terms of said membership certificate, and that said defendant corporation has no *Page 386
means, money, or income to pay losses other than that received by said corporation upon notice made in accordance with the terms of said certificate of membership.
"14. That in accordance with said certificate of membership, said defendant corporation has received payment from its members on notice of a loss and has paid benefits in accordance with said membership certificate and said by-laws. . . .
"16. That said defendant corporation is not a secret or fraternal society or lodge or association which under the supervision of a grand or supreme lodge secures membership through the lodge system exclusively and provides insurance to its members, nor is said defendant corporation a religious or secret society nor a class of mechanics, express, telegraph or railroad employes' association, nor an ex-union soldiers' association formed for the mutual benefit of the members thereof and their families exclusively, nor has said defendant corporation any ritualistic work and ceremony, nor is it under the supervision of any grand or supreme body or lodge.
"17. That said defendant corporation furnishes no benefits of any kind to any member other than that set out in said certificate of membership and said by-laws."
The articles of association as filed with the Secretary of State provided that:
"1. The name or title by which the corporation shall be known in law is: National Colored Aid Society.
"2. The particular objects for which it is formed are: To unite reputable men and women of the Negro race who are wage earners, not for pecuniary profit, but for the purpose of giving aid to widows, widowers, creditors and those dependent on its deceased members *Page 387
(nothing in the above shall be construed as to include caring for dependent children) and to aid its members who become totally disabled, all such aid to be voluntary contributions and not by fixed dues or assessments."
The form of the membership certificate was as follows:
"Incorporated under the laws of the State of Indiana.
No. ____ Age ____
NATIONAL COLORED AID SOCIETY
Indianapolis, Indiana
Hereby Agrees That
In Consideration of the Membership Fee of Five Dollars and a Registration Fee of One Dollar, the application executed by the member, and the further payment of all amounts required to be paid under the conditions of this certificate, during the continuance of this certificate of membership, entitles _________ _________________________________________ (hereinafter called the member) to all the benefits as provided in the By-Laws of this Society, and in the event of the NATURAL DEATH of said member entitles ________________________________________________________ named as BENEFICIARY, to an amount not to exceed the MAXIMUM BENEFIT, according to age, as designated in Schedule Below:
1 to 10 Yrs. 11 to 50 Yrs. 51 to 60 Yrs. 61 to 70 Yrs. inclusive inclusive inclusive inclusive $500 $1,000 $800 $500
71 to 80 Years inclusive $250
Subject, however, to the conditions named in the By-Laws hereinafter set forth and hereby made a part hereof. *Page 388
Disability Benefits
Specific Losses
If the member shall, through violent, external and purely accidental means, sustain bodily injuries which shall, independently and exclusively of all sickness and all other causes, immediately, continuously and wholly disable the Member from the date of the accident and result in any of the following specific losses within thirty days from date of accident, the Society will pay the benefits set out below, in lieu of all other benefits, provided, always, that the amounts specified below shall be payable only in case the natural death benefits at time of loss is for a total of one thousand dollars. If such natural death benefit at time of loss is less than one thousand dollars, then the amount to be paid shall be reduced proportionately.
For Loss of Life _____________________________ $1,000 For Loss of Both Eyes ________________________ 1,000 For Loss of Both Hands _______________________ 1,000 For Loss of Both Feet ________________________ 1,000 For Loss of Hand and Foot ____________________ 1,000 For Loss of Either Hand ______________________ 250 For Loss of Either Foot ______________________ 250 For Loss of Either Eye _______________________ 250
Loss in every case referred to in the above schedule for dismemberment of hands or feet shall mean severance at or above the wrist or ankle joint, respectively, and loss of eye or eyes shall mean the total and irrevocable loss of entire sight thereof. Only one of the amounts named will be paid for injuries resulting from one accident, and all are subject to the conditions named in the by-laws hereinafter set forth and made a part hereof.
In Witness Whereof, the signature of the President and Registrar, and Seal of the NATIONAL COLORED *Page 389
AID SOCIETY, of INDIANAPOLIS, INDIANA, is affixed.
This the _____________ day of ________________________________, A.D. 193_.
Registrar ____________________________
C.T. RAPP, President."
The by-laws of the organization are lengthy and it will serve no purpose to set them out in full, but we will only note those that we think are necessary to a disposition of this case.
Article 1, section 2, limits the membership to members of the Negro race. Section 3 of said article provides that the applicant may apply for membership by signing an application and paying in advance the membership fee of $5.00 and registration fee of $1.00. Section 2 of article 2 provides that the officers shall be a president, vice-president, and secretary-treasurer, and section 6 of article 7 provides that these officers shall be paid their salaries out of expense assessments and policy fees, reinstatement charges as directed by the board of directors. Stamps, printed supplies, printing, advertising, and expense of adjusting, investigating, and defending claims shall be paid out of the contributions collected for deaths and disabilities.
Section 1 of article 5 provides:
"When a death or permanent disability shall occur to a member to which this contract is issued and the society is liable therefor it shall be the duty of each member to make a contribution if the directors deem it necessary, which contribution will be one dollar. This is the only time a contribution is required, except for expenses. No member will be called upon to contribute to the expense of the society in excess of four dollars during any calendar year, which calendar year begins *Page 390
on January 1 and ends on December 31, both inclusive. These expense contributions shall be made at the discretion of the board of directors. Should the amount collected from one death contribution amount to more than the amount due, the balance shall be held in trust by the secretary to pay other items that are to be paid out of death funds or the payment of future death or disability benefits and to pay any contribution or payment that may become due. Any benefits mentioned in these by-laws or anywhere in the contract issued are conditioned upon same being collected from the members, if same is not already on deposit, and the total liability of this society shall not in any case exceed the amount collected from the remaining members. It is further agreed and understood that the directors shall not have power to call for contributions more than once every thirty days and in no event can they call for more than two dollars at any one time, should the proceeds of one two-dollar death contribution call collected amount to less than the total liability of the association for deaths occurring during any calendar month, then in that event the beneficiaries shall receive and accept their proportionate share of amount collected as full payment of all liability under the certificate. In no case, however, shall the maximum benefit exceed the maximum amount in force under the certificate at time of death. Said member shall not be entitled to any of the benefits mentioned herein if death occurs while violating any criminal law or if death is caused by the intentional act of a beneficiary. In the event of suicide, sane or insane, or injuries, fatal or otherwise, intentionally inflicted upon the member by him or herself, or any other person, the society shall not be liable for any amount greater than the sum of the contributions paid by the member his or her certificate." *Page 391
Among other provisions section 1 of article 7 provides: "Every member of this society shall, within thirty days after the mailing of any notice, of contribution, pay the amount thereby requested from him or her, and a failure so to do shall ipso facto suspend the member so failing from all rights and benefits in this society."
The section of the statute under which the appellant incorporated is section 5485, Burns 1926, section 25-2101, Burns 1933, and section 10577, Baldwin's 1934, provides as follows:
"Societies, associations, and clubs not for pecuniary profit may be incorporated as hereinafter provided. Any three (3) or more persons, citizens of the United States, who shall desire to associate themselves for any lawful purpose other than for pecuniary profit, may make, sign and acknowledge, before any officer having a seal and authorized to take acknowledgments of deeds in this state, and file in the office of the secretary of state, and in the office of the recorder of the county in which such society, association or club shall be located, a certificate in writing in which shall be stated the name or title by which such corporation shall be known in law, the particular objects for which it is formed, the number of its directors, and the names of the directors selected for the management of its business and prudential concerns for the first year of its existence. Upon complying with the foregoing conditions, the corporation shall be deemed fully organized, and may proceed to carry out the objects of its organization: Provided, The secretary of state shall not file a certificate of organization of any corporation having the name of any then existing, but shall notify the subscribers, or any two of them, of the reason of his refusal so to do."
It is further provided by statute, section 1208, Burns 1926, section 3-2001 Burns 1933, section 1045, Baldwin's 1934:
"An information may be filed against any person *Page 392
or corporation in the following cases:
"`(4) When any corporation does or omits acts which amount to a surrender or forfeiture of its rights and privileges as a corporation.'"
It is further provided by statute relative to mutual life, accident, and assessment insurance, section 8989, Burns 1926, section 39-426, Burns 1933, section 9785, Baldwin's 1934, that:
"Any incorporation, association or society organized to insure lives, which provides for the payment of policy claims, or the accumulation of reserve or emergency funds, and the expenses of the management and the prosecution of the business by payments to be made either at periods named in the contract or upon assessments as required, by persons holding similar contracts, and wherein the insured's liability to contribute to the payment of policy claims accrued or to accrue is not limited to a fixed sum, shall be deemed to be engaged in the business of life insurance upon the assessment plan, and shall be subject only to the provisions of this act; but nothing herein contained shall be construed as applicable to any association of religious or secret societies, or to any class of . . . soldiers, formed for the mutual benefit of the members thereof and their families, exclusively, or to any secret or fraternal societies, lodges or councils that may be organized, or that are now organized and doing business in this state, which conduct their business and secure members on the lodge system exclusively, having ritualistic work and ceremonies in their societies, lodges or councils and which are under the supervision of the grand or supreme body, nor to any association organized solely for benevolent purposes and not for profit."
The question presented, under the facts as stipulated, is whether the appellant is a corporation organized and operating not for profit, such as a club, lodge, social, or athletic society, as contemplated under the non-profit incorporating act as provided in section 5485, supra, or whether it is in practical effect a mutual life and *Page 393
accident insurance company as provided in section 8989, supra.
It is seen from the policy or certificate of membership issued that at the inception a membership fee of five dollars and a registration fee of one dollar is required, and that in the event of the natural death of a member the beneficiary is entitled to an amount ranging from $500 to $250, depending on the age of the member. And it is further seen that there are disability benefits ranging from $250 to $1,000 allowed. The face of the policy or membership certificate is not unlike that of an insurance policy and any one who is not acquainted with insurance contracts would at least think he was buying an insurance policy. In addition to the membership fee of $5.00 and the registration fee of $1.00, article 5 provides that when a death or permanent disability shall occur to a member, a contribution of $1.00 shall be made, if the directors deem it necessary. In addition said article provides that there may be contributions required for expenses, not to exceed $4.00 during a calendar year. It is thus seen that when the society has a large membership a large amount of money will be controlled and handled by its officers.
It is a familiar rule of law that a corporation can do only what is expressly or impliedly authorized by its charter. A corporation being a mere creature of the law possesses only 1. those properties which the charter confers upon it expressly, or as incidental to its existence. It can make no contracts and do no acts except such as are authorized by its charter. Those acts must be done by its officers and agents and in such manner as the charter or governing statutes authorize. 14 C.J. 50-51.
It is also well recognized that the business of insurance *Page 394
is quasi-public in character, and the right to engage in it is a franchise, at least so far as corporations are 2, 3. concerned, and accordingly it is both competent and necessary for the state, under its police power, or as the creator of corporations, to determine who may engage in the business within its boundaries, and to prescribe terms and conditions on which the business may be conducted. 32 C.J. 981. And whether it is an insurance contract is determined, not merely from the language of a certificate of membership, but rather from its contents as a whole and the conduct of the parties as a practical interpretation of the contract. 32 C.J. 985.
The appellant was incorporated under section 5485, supra,
which provides for the incorporation of societies, associations, and clubs not for profit. It provides, as heretofore set out, that any three or more persons, citizens of the United States, who desire to associate themselves for any lawful purpose other than for pecuniary profit may do certain things. While section 8989, supra, provides that:
"Any incorporation, association or society organized to insure lives, which provides for the payment of policy claims, or the accumulation of reserve or emergency funds, and the expenses of the management and prosecution of the business by payments to be made either at periods named in the contract or upon assessments as required by persons holding similar contracts, and wherein the insured's liability to contribute to the payment of policy claims accrued or to accrue is not limited to a fixed sum, shall be deemed to be engaged in the business of insurance upon the assessment plan and shall be subject only to the provisions of this act; but nothing herein contained shall be construed as applicable to any association or religious or secret societies, *Page 395
or to any class of mechanics, express, telegraph or railroad employees, or ex-union soldiers, formed for mutual benefits of the members thereof and their families exclusively, or to any secret or fraternal societies, lodges or councils that may be organized and doing business in this state, which conduct their business and secure members on the lodge system exclusively, having ritualistic work and ceremonies in their societies, lodges or councils, and which are under the supervision of the grand or supreme body, nor to any association organized solely for benevolent purposes and not for profit."
By the stipulation of facts the appellant does not come within any of the exceptions of the foregoing section of the statute, unless within the last — "nor to any association organized 4. solely for benevolent purpose and not for profit," and we do not think it comes within this exception for reasons hereafter stated.
The policy or certificate of membership of appellant provides for the payment of claims and an emergency fund. It provides for the expenses of the management and prosecution of the business at periods fixed by the directors; the insured's liability to contribute to the payment of claims is not limited to a fixed sum, and, when these facts exist, the incorporation, association, or society engaged in such business is declared by statute to be in the insurance business.
It cannot be said that the appellant is organized solely for benevolent purposes and not for profit. It may be said that all insurance companies are, in a sense, organized for benevolent purposes, but not in the sense as used in the statute. The word "benevolent," as defined in the dictionary, means "Having a disposition to do good; possessing or manifesting good will toward mankind and a desire to promote men's prosperity and happiness." *Page 396
With this idea in mind all insurance companies are benevolent, for they all insist that an insurance policy promotes one's prosperity and happiness. It cannot be said that the instant corporation was organized purely and solely for a benevolent purpose, and the stipulated facts do not so show. It was probably organized to a very large extent for the benefit of those organizing it, and who hoped to become, and probably did, the officers and directors. Under the stipulated facts the appellant is not a benevolent organization in the sense of dispensing benefits without consideration. A membership fee of five dollars, a registration fee of one dollar, and other amounts, more or less, according to the membership, are to be paid, and this, in effect, amounts to an assessment company.
In the case of State of Indiana v. Willett (1908),171 Ind. 296, 86 N.E. 68, the facts are similar to those in the instant case. The Greenfield Mutual Burial Association provided a plan for the payment of funeral expenses for the members. It provided for the payment, by assessment, of funeral expenses to the amount of $75.00 for each member ten years of age or over, and $37.50 for each member under ten years of age. Whenever a member of over ten years of age died, every member over ten years old was to pay eleven cents, ten cents to be used as funeral expenses and one cent to be used for paying for collections; all members under ten years of age and over five years of age were to pay five cents, all of which was to go for funeral expenses. When a member under ten years of age died, each member over ten years of age was to pay six cents, five cents of which was to be used to pay funeral expenses and one cent for collections; members under ten years of age were to pay three cents each, all of which was to be used for funeral expenses. Failure to pay any *Page 397
such assessment for thirty days forfeited the membership and all previous payments. If there should be an excess of revenue from the assessments, such excess should be paid into the treasury to be applied on future benefits, as the necessity might arise.
In discussing the foregoing case, the court said (p. 303):
"The contract was issued by an association whose declared object was to secure, or make certain, by a system of mutual contribution, to each member of the association, at death, the specific benefit of $75 for application to his burial service. This was indemnity, or security, that, at the cessation of the life of the member, a certain sum of money would be payable by the association for his burial, whether the deceased had paid one assessment or a thousand. The controlling elements of the contract, as interpreted by the by-laws, are in all material respects . . . similar to those of an ordinary mutual life insurance company. Death assessments must be paid by the contract holder during the life of the insured, and the promised indemnity is payable in a lump sum, and in a definite amount. The association needs and employs agents to represent it. It solicits from the general public. It is founded on no principle of philanthropy, benevolence, or charity. . . . It is simply a business enterprise, in which the contract holder is promised a definite thing, in consideration of his performance of a definite undertaking on his part. The contract is determinable by the cessation of a human life, and belongs to that extended class of agreements dependent upon such contingency, and commonly known as life insurance."
In the instant case, the policy provides for payments to the designated beneficiary on the death of a member amounts ranging from $250 to $1,000, depending on age, and in addition certain disability benefits. The losses are paid from a mutual contributed fund; the society employs agents and solicits business from the Negro race. Death assessments must be paid by the contract *Page 398
holder during the life of the insured, and the promised indemnity is payable in a lump sum, and in a definite amount. And, as said in the case of State v. Millett, supra, the appellant is simply a business enterprise, in which the contract holder is promised a definite thing, in consideration of his performance of a definite undertaking on his part. The contract is determinable by the cessation of human life, and belongs to that extended class of agreements dependent upon such contingency, and commonly known as life insurance.
In the case of Bauer v. Samson Lodge, Knights of Pythias
(1885), 102 Ind. 262, 268, 1 N.E. 571, the court said:
"A corporation which promises to pay a certain sum as benefits during a member's illness, in consideration of his payment of dues, is not a purely benevolent organization; it may be, and doubtless is, benevolent and charitable in a great degree, but it is not a benevolent organization in the sense of dispensing benefits without consideration."
The case of State of Kansas ex rel. v. The VigilantInsurance Company (1883), 30 Kansas 585, was an action in quowarranto questioning the right of the defendant to carry on the business of insurance. It was agreed that the defendant had not complied with the insurance laws of the state. The purpose of the corporation was to afford mutual indemnity and protection in case of loss by accident, death, and theft of horses, said indemnity being secured by the collection and disbursements of assessments pro rata. The expense of doing business between the members was to be met by admission fees and semi-annual dues. The court, by Brewer, J., in discussing the case said (p. 587):
"The corporation proposes to `indemnify its members for loss of damage by accident, death and theft of animals belonging to members.' It says, in one of its circulars, that it does not sell insurance *Page 399
and does not receive premiums for insurance; but nevertheless, its single, unmistakable business is that of contracting for indemnity for loss. Its method is this: Each member pays a membership fee and annual dues. This is for the purpose of keeping up the organization, and paying officers' salaries, etc. Then for losses, assessments are made upon the members, and only members can share in the benefit of the corporation. There is no accumulated fund out of which to pay losses, but reliance is wholly upon the assessments. But this is insurance. It is contracting for indemnity. It matters not how the funds for the payment of losses are secured. So long as the contract is such that in case of loss the promisee is entitled to claim compensation for the loss, it is a contract of indemnity."
In the case of The State v. Brawner (1883), 15 Mo. App. 597, the court said:
"A corporation organized `to promote the well-being of the members and to furnish aid to their families in case of a member's death,' where no moral or social prerequisite is required for membership, but only conditions of age and health, and which provides no benefit except in the case of death, and collects funds for this purpose by assessments in case of death, is a mutual insurance company, and subject to the insurance laws of the State."
The case of Commonwealth v. George R. Wetherbee (1870),105 Mass. 149, 160, in an opinion by Gray, J., is very applicable to the instant case. The court said:
"A contract of insurance is an agreement, by which one party, for a consideration (which is usually paid in money, either in one sum, or at different times during the continuance of the risk), promises to make a certain payment of money upon the destruction or injury of something in which the other party has an interest. In fire insurance and marine insurance, the thing insured is property; in life or accident insurance, it is the life or health of a person. In either case, neither the times and amounts of payments by the assured, nor *Page 400
the modes of estimating or securing the payment of the sum to be paid by the insurer, affect the question whether the agreement between them is a contract of insurance. All that is requisite to constitute such a contract is the payment of the consideration by the one, and the promise of the other to pay the amount of the insurance upon the happening of injury to the subject by a contingency contemplated in the contract.
"The contract made between the Connecticut Mutual Benefit Company and each of its members, by the certificates of membership issued according to its charter, does not differ in any essential particular of form or substance from an ordinary policy of mutual life insurance. The subject insured is the life of the member. The risk insured is death from any cause not excepted in the terms of the contract. The assured pays a sum fixed by the directors and not exceeding ten dollars, at the inception of the contract, and assessments of two dollars each annually, and of one dollar each upon the death of any member of the division to which he belongs, during the continuance of the risk. In case of the death of the assured by a peril insured against, the company absolutely promises to pay to his representatives, in sixty days after receiving satisfactory notice and proof of his death, `as many dollars as there are members in' the same division, the number of which is limited to five thousand. The payment of this sum is subject to no contingency but the insolvency of the corporation. The means of paying it are derived from the assessments collected upon his death from other members; from the money received upon issuing other certificates of membership, which the by-laws declare may, after payment of expenses, be `used to cover losses caused by the delinquencies of members'; and from the guaranty fund of one hundred thousand dollars, established by the corporation under its charter.
"This is not the less a contract of mutual insurance upon the life of the assured, because the amount to be paid by the corporation is not a gross sum, but a sum graduated by the number of members holding similar contracts; nor because a portion of *Page 401
the premiums is to be paid upon the uncertain periods of the deaths of such members; nor because, in case of non-payment of assessments by any member, the contract provides no means of enforcing payment thereof, but merely declares the contract to be at an end, and all moneys previously paid by the assured, and all dividends and credits accrued to him, to be forfeited to the company.
"The fact, offered to be proved by the defendant, that the object of the organization was benevolent and not speculative, has no bearing upon the nature and effect of the business conducted and the contracts made by the corporation.
"The ruling that this association was an insurance company, within the meaning of the statute upon which the defendant was indicted, was therefore correct, . . ."
The appellant was incorporated under the name of the National Colored Aid Society, but the name is not controlling, and it does not fix or establish its real legal character. If in 5, 6. fact and purpose it is a corporation for insurance purposes, then it must abide the regulatory powers of the state relating to the insurance laws of the state. Neither does the clause in section 1 of article 7 of the by-laws which provides that "all payments made by any member now or hereafter are voluntary gifts or donations for the purpose of aiding members of the society and to take care of expenses of the said society" save it from being an insurance company. The stipulation of facts shows that the payments were not gifts or donations, but on the contrary fees or premiums to become a member. The payments were no more voluntary than any other premiums for life insurance. They are all voluntary in the sense that no one is compelled to take out life insurance.
Under section 8989, Burns Ann. St. 1926, relative to mutual, accident and assessment plan insurance, certain exceptions are made, but the appellant does not come *Page 402
within any of the exceptions therein mentioned, and it is so stipulated. It is also stipulated that it has not complied with the state regulations governing insurance companies.
We are of the opinion that the appellant is engaged in life and accident insurance, and that the judgment of the lower court in permanently enjoining it from selling its contracts and forfeiting its franchise was correct.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427416/ | This is an action commenced by the State of Indiana on relation of the School City of South Bend, Indiana, against Glenn M. Thompson as auditor and others, for the purpose of compelling the auditor, in the computation of relator's taxes for the year 1935 payable in 1936 to use the rates certified by relator to the auditor. This action arose because the auditor persisted, after demand, in recognizing as valid and effectual certain action of the County Board of Tax Adjustment and the State Board of Tax Commissioners purporting to make certain changes in the special school and tuition rates as certified by relator.
The complaint herein is in two paragraphs to which appellees filed four paragraphs of answer. Appellant filed a reply in general denial and a second paragraph of reply to the fourth paragraph of answer. There was a request for special finding of facts and conclusions of *Page 269
law; a motion for venire de novo, a motion for additional findings of fact, and a motion for a new trial. The result was a judgment that appellants take nothing by their complaint and that appellees recover their costs.
The facts found by the court and material to a decision of the questions properly presented for our consideration are, in substance, as follows: That the board of trustees of the School City of South Bend, after formulating a budget, showing in detail the money proposed to be expended by it during its fiscal year commencing August 1st, 1935, and ending July 31st, 1936, caused notice of a hearing on such budget to be published and posted according to law, and fixing in said notice September 9, 1935, at 3:30 p.m. as the time for such public hearing; a copy of the budget and notice is set out in full. That at the time and place mentioned in the notice, a public hearing was held on said proposed budget, and after the hearing the board of trustees confirmed and adopted said budget and established the rates for taxation set forth therein for the year 1935, payable in 1936; that said board thereupon, on September 11th, 1935, filed in the office of the Auditor of St. Joseph County, Indiana, its certification of levies for the year 1935 payable in 1936. The rates as shown by said certificate are as follows:
Special School Fund .............. $0.24 on each $100.00 A poll tax, on each male inhabitant, etc. ........ $1.00 Tuition Fund ..................................... $0.465 Bond Fund ........................................ $0.30 Public Library: General Fund ..................... $0.065 ______ Total of all Levies and Rates .................... $1.07 and on each poll ............................... $1.00
Two copies of the budget were filed in the auditor's office; that on or before September 15th, 1935, levies and supporting budgets by all taxing units upon property *Page 270
within the city of South Bend and in Portage Township subject to taxation for the year 1935, were certified to said auditor; that the total rate so certified was $2.69, for each $100.00 of assessed valuation; that the defendant members of the County Tax Adjustment Board at its meeting on the 16th day of September, 1935, considered all of the rates certified by the several taxing units, and by its order of September 27 effected numerous reductions in the certified rates of fifteen units, and in all instances except five, reflected the reductions in the several items of the published budget of the respective taxing units; that in five taxing units, four of which were school corporations, said board in reducing rates did not reflect such reductions in the items of the budget; that the relator was one of such units. The order, so far as material here after finding and declaring that an emergency existed for the levying of a tax rate in excess of limits placed by what is known as the dollar and the dollar and one-half law, reads as follows:
SOUTH BEND SCHOOL CITY
Special School Fund Changed by Bd. Amount to be raised by tax levy ............ $350,271.68 $288,771.68 Rate on property ..... .24 .19 1/4
TUITION FUND
Amount to be raised by tax levy ............ $600,527.50 $539,027.50 Rate on property ..... .46 1/2 .41 3/4
In other words the County Board of Tax Adjustment reduced the general fund from $350,271.68 to $288,771.68 and changed the rate for general fund purposes from .24 to .19 1/4 and reduced the tuition fund from $600,527.50 to $539,027.50 and reduced the rate *Page 271
for tuition fund purposes from .46 1/2 to .41 3/4. It appears that the County Adjustment Board made certain changes in the civil city rates, and on appeal by ten taxpayers the same was certified to the State Board of Tax Commissioners and after notice to the taxpayers and the officers of the civil city, there was a hearing by said board on October 18, 1935, and at this hearing the only rates considered were the rates of the civil city; that on October 30, 1935, said State Board of Tax Commissioners entered an order effecting reductions in the rates of the civil city and reflecting all of such reductions in the corresponding items of the budget of said civil city, and at the same time issued an order which purported to effect relator's special fund levy. This part of the order reads as follows:
"The Board further finds that the County Tax Adjustment Board reduced the special school fund levy from .24¢ to .1925¢ and this Board now reapportions .02¢ of the reduction made in the Civil City by adding .02¢ to the special school fund levy and fixes the same at .2125¢ on each one hundred dollars ($100.00), and that the said increase be added to the school building item for new buildings in its budget and that all other levies, as finally approved by the County Tax Adjustment Board, are hereby approved and that the total levy for all purposes for the City of South Bend in Portage Township is $2.47 on each one hundred dollars ($100.00)."
The levy and rates as certified by the State Board of Tax Commissioners to the auditor were the rates used and spread upon the tax roll, and tax duplicates pertaining to property within the corporate limits of the city of South Bend. Relator, by its proper officers, filed a written notice and demand upon said auditor to spread upon the tax duplicates the rates originally certified to him by relator and the defendant auditor delivered to this relator his written refusal to comply with said demand. *Page 272
The refusal of the auditor to comply with this demand of relator is the occasion of this law suit.
Appellant asserts that the relator's budget and levies were regularly formulated and adopted, and that the action of the County Board of Tax Adjustment with respect to relator was void, because said board did not reflect the changes made in the levy in the corresponding items of the budget. The school city budget is made up of four separate funds or items, viz., special fund, tuition fund, bond fund and the library fund. The record shows that the special fund is made up of some twenty different items, and the tuition fund of two items, and these were the only funds changed by the county adjustment board. Was the action of the county adjustment board valid? If so, appellants are not entitled to a writ of mandate.
Appellees do not contend that the levies and rates as certified by appellants were not in all respects regular, and we may assume they are the legal and valid rates, and should be recognized and adopted by the auditor of St. Joseph County in the preparation of his tax roll and tax duplicate as requested by relators, unless they have been modified by subsequent valid and legal action of the Board of County Tax Adjustment. Whether the action taken by said county adjustment board with reference to the change made in the special and tuition funds of relator city was valid and binding is the decisive question presented by this appeal.
In 1933 the state legislature passed what is known as the tax limitation law. Acts 1933, ch. 237, p. 1085, sections 64-301 to 64-305 Burns' Ind. St. 1933, §§ 15892 to 15896 Baldwin's 1934. Section 64-301 (15892), supra, limits the rate of taxation for state purposes to fifteen cents on each one hundred dollars assessed valuation. Section 64-303 Burns (§ 15894 Baldwin's) in substance provides that the total of all tax levies on property *Page 273
within any municipal corporation for all municipal corporations for which the property therein is taxable, except as provided in section four (§ 64-304 Burns, § 15895 Baldwin's) of this act shall not exceed the following rate: In territory outside of the corporate limits of any incorporated city and town, the total rate shall not exceed one dollar ($1.00) on each one hundred dollars ($100.00) of taxable property therein. In territory inside of the corporate limits of incorporated cities and towns, the total tax rate for all purposes shall not exceed one dollar and fifty cents ($1.50) on each one hundred dollars ($100.00) of taxable property therein. Section 64-304 Burns, § 15895 Baldwin's, supra (paragraph one) provides as follows:
"There shall be created in each county of the State of Indiana a county board of tax adjustment, which shall consist of one (1) member of the county council to be selected by such council, and six (6) members to be appointed by the judge of the circuit court of such county. The appointees of the judge of the circuit court shall have the following qualifications: One (1) shall be a duly elected, qualified and acting township trustee of one of the several townships of such county; one (1) shall be a duly elected, qualified and acting mayor of a city in such county or a president of the board of trustees of an incorporated town in such county; one (1) shall be a duly elected or appointed, qualified and acting member of the board of school commissioners, board of school trustees or board of education of a school city or school town in such county; and three (3) shall be resident freeholders of the county at large, not holding public office by virtue of any election held or appointment made within said county, none of whom shall be related to the executive head of any municipal corporation of which such board shall have jurisdiction by closer relationship than second cousin, either by affinity or consanguinity."
Paragraph two of the above section provides, when the members of the county adjustment board shall be appointed, *Page 274
the duration of their term; that they shall serve without compensation and that the auditor shall serve as clerk of said board and keep a complete record of the proceedings, but he shall have no vote. Paragraph three and four are immaterial to the question here presented. Paragraph five provides as follows:
"Such board of tax adjustment shall hold a meeting at the office of the county auditor on the third Monday of September of each year and from day to day thereafter as their business may require, and said board may adjourn said meetings to any other convenient place. At the first meeting the county auditor shall lay before said board the budgets adopted and tax levies fixed by the proper officers or bodies of each municipal corporation of such county for the ensuing year, and such board shall have the right to require the attendance, or the furnishing of such information pertaining to said budgets and levies, by the officials of the various municipal corporations in the county as said board may deem necessary. The officers of each municipal corporation shall, at the time of filing a statement of the tax levies fixed by each of said municipal corporations, also file with the county auditor two (2) copies of the budgets on which said tax levies are based, and the same shall be carefully preserved by the auditor for the use of the county tax adjustment board. It shall be the duty of such board to examine and, if it deems such action necessary, revise, change or reduce, but not increase, any tax levy and any corresponding items of the budgets on which such tax levies are based and apportion the total of all of said levies so that the total levy on property within any municipal corporation for all municipal corporations for which the property therein is taxable, including the state levy referred to in section one (§ 64-301) shall not exceed the applicable total rate as provided in section three (§ 64-303) hereof; Provided, however, That if an emergency exists as to any municipal corporation, such board, by a vote of at least five (5) members thereof, shall have the power to fix such tax levy for such municipal corporation as is necessary to meet such emergency though the total rate fixed as the result thereof shall exceed the applicable total *Page 275
rate as provided in section three (§ 64-303) of this act; Provided, further, If an emergency exists and shall be so declared by the county board of tax adjustment, such board shall set out of record their reasons for declaring such emergency, and shall state of record the nature of the emergency for which any such increased levy is made."
Finding No. 3 of the special finding of the court is in part as follows:
"That on or before the 15th day of September, 1935, levies and supporting budgets were certified to said auditor by all taxing units levying taxes upon property within the City of South Bend and in Portage Township subject to taxation for the year 1935; that the total of the rates so certified was Two Dollars and Sixty-nine Cents ($2.69) for each $100 of assessed valuation; that such units and the rates certified are the following, to wit:
Unit Rate
State ............................... $0.15
St. Joseph County: County Unit road bonds .............. .10 Other county purposes ............... .315
Portage Township: General rate ........................ .01 Poor relief ......................... .20 Road bonds .......................... .035 Judgment bonds ...................... .01
Civil City of South Bend: General ............................. .634 Bonds ............................... .02 Park department ..................... .088 Policemen and Firemen's Pension ..... .018 Aviation board ...................... .01 Hospitals ........................... .03
School City of South Bend: Tuition fund ........................ .465 Special school fund ................. .24 Bonds ............................... .30 Library ............................. .065 _____ Total ................................ 2.69 *Page 276
It is thus made to appear that the total rate as certified to the county auditor and presented to the county adjustment board was in excess of the total rate permitted by § 64-303 Burns (§ 15894 Baldwin's), supra. By the terms of section 64-303,supra, the total rate outside the corporate limits could not exceed one dollar, and within the corporate limits the rate could not exceed one dollar and fifty cents, unless there existed an emergency for a higher rate as defined in paragraph five of § 64-304, supra. Under the terms of paragraph five, § 64-304, it became the duty of the county adjustment board under such circumstances to examine, revise or reduce, but not increase, any tax levy, and any corresponding items of the budgets, and apportion the total of all of said levies so that the total levy, including the state levy, would not exceed one dollar outside the corporate limits of the city and so that the total levy inside the corporate limits would not exceed one dollar and fifty cents, if this could be done. If the total levy that was certified to them could be so changed, and reduced to or below the limit fixed in § 64-303, supra, it was their duty so to do. But, if, after examining said budgets, and considering the fixed charges, such as maturing bonds and interest thereon and judgments, such as are mentioned in paragraph six of said section, and the needs for governmental purposes of the several taxing units, they find that the requirements of the taxing units are such that necessitates a greater rate than those allowed by § 64-303, supra, and they find that an emergency exists and by a vote of at least five members thereof so declare, then it becomes their duty to adjust and fix such tax levy for such municipal corporation as is necessary to meet such emergency, though the total rate fixed as the result thereof shall exceed the applicable total rate as provided in section three (§ 64-303 Burns, § 15894 Baldwin's) of this act. The record shows *Page 277
that the total rate as certified did exceed the one dollar and fifty cent rate and the county adjustment board did conclude that the total rate could not be so adjusted and reduced to or below the limit fixed by section three of the above mentioned act (§ 64-303) but found the fact to be that the needs of the several governmental units necessitated a higher rate than one dollar and fifty cents, and that an emergency existed for a higher rate, and so declared by their record as set out in finding No. 3. After finding that an emergency did exist for a rate in excess of one dollar and fifty cents and so declaring the same of record, it then became their duty to examine the various budgets and the several items thereof and adjust, and reduce the same, and determine the amount of the levy and rate, that under all the existing facts was necessary to meet such emergency.
In this case, the county board of tax adjustment did these things, and as far as their action affected the budget certified by the School City of South Bend, the adjustment board reduced the levy and rate on two items only, viz, the general fund and the tuition fund, but did not specify what particular item of the general fund was reduced, whether the reduction should be made in the item of "general administration," or some particular sub-item thereof, or in the item designated "instruction," or any particular sub-item thereof, or, in the item designated "operation of school plant," or some particular sub-item thereof, etc., but left that matter to the discretion of the school board. Appellant says that it was the duty of the tax adjustment board, when they made changes in the levy, as certified by them, to designate the particular item or sub-item to be changed, and because the county board of tax adjustment failed to so designate the particular item or sub-items to be affected their action was null and void. This is the only complaint urged against the validity of the action of *Page 278
the county board. We think the board of tax adjustment went as far as the statute, § 64-303, supra, contemplated. They considered the total rate, and reduced it from $1.07 to .975 and reflected the reduction in two items, making up the total rate, to wit, the general fund and the tuition fund. It must have been recognized by the legislature that the board of school trustees could better determine what particular item listed under the general heading of, "special fund," could be curtailed and changed than could the board of tax adjustment. In construing § 64-303 and § 64-304, supra, we have tried to keep in mind the well recognized principles of statutory construction. It was held in the case of Murray v. Zook (1933), 205 Ind. 669,187 N.E. 890, that the county board of tax adjustment was created for the protection of the taxpayers. In construing a statute, the first rule is to determine and to give effect to the legislative intent. Smith v. State ex rel. Ross (1930), 202 Ind. 185, 172 N.E. 911; Gilson v. Board of Commissioners of Rush Co.
1. (1891), 128 Ind. 65, 27 N.E. 235.
We conclude that the action of the board of tax adjustment was not null and void because it did not reflect the reduction of the total rate of appellant school city in the various 2. particular items composing the special fund and the tuition fund, but was sufficient when it reflected the reduction of the total rate in the items, special school fund and the tuition fund.
This brings us to a discussion as to whether the act creating the tax adjustment board is constitutional. Appellant takes the position that because the act (§ 64-304 Burns, § 15895 3. Baldwin's) provides that six members of the county board of tax adjustment shall be appointed by the judge of the circuit court, said section offends § 1 of Article 3 of our State *Page 279
Constitution, which relates to the separation of powers. The constitutionality of such statutes has been before this court on several different occasions and has been held not to offend against this provision of our Constitution. City of Terre Hauteet al. v. Evansville, etc., R.R. Co. (1897),149 Ind. 174-181-182, 46 N.E. 77; Wilkinson v. Board, etc. (1902),158 Ind. 1, 62 N.E. 481.
Appellant contends that the tax limitation law contravenes § 26 of Art. 1, of the Indiana Constitution, which provides that, "The operation of the laws shall never be suspended, except by 4. the authority of the General Assembly," and argues that under the sanction of this statute the tax adjustment board might strike from the county budget all items for the maintenance of the courts; and from relator's budget all teachers' salaries. We do not think the statute (§ 64-303) confers on the county board of tax adjustment any such power or authority. The county board of tax adjustment is not a tax levying board. It has no power to levy taxes. Its powers are clearly set forth in the above section. It has power only to adjust, lower, and apportion the levy made by the proper officials, "and apportion the total of all of said levies so that the total levy on property within any municipal corporation for all municipal corporations for which the property therein is taxable, including the state levy, . . . shall not exceed the applicable total rate as provided in section three (§ 64-303) hereof." If there is an emergency that necessitates a rate in excess of the limitation set out in § 3,supra, then the board shall adjust, reduce, and apportion the total of all rates to meet the emergency. There certainly is no power contained in the above section that approaches those contended by appellant.
Appellant says that Chapter 150, Acts 1935, p. 532 (§ 15735 Baldwin's Supp. 1935), repeals the tax limitation *Page 280
statute. We can see no reason for so holding. The only 5, 6. change effected by this amending statute relates to an additional expenditure of money to meet an emergency arising after the published budget has been adopted, and has no reference at all to the emergency that might have necessitated a rate in excess of the rate fixed under § 64-303 Burns 1933 (§ 15894 Baldwin's 1934), and was declared by the county board of tax adjustment as provided in § 64-304 (§ 15895), supra. It is in no way a delegation to the board the legislative power of taxation. They have no power to levy taxes and the statute does not attempt to confer such power upon them. We think there is no constitutional objection to the statute on the ground that it delegates to an administrative board legislative power.
We find no reason for holding that the action taken by the county board of tax adjustment of St. Joseph county, in so far as it affected relator's budget, was invalid and void. It 7. therefore follows that appellant is not entitled to a mandate to compel appellee auditor, in the computation of relator's taxes for the year 1935, payable in 1936, to use the rates certified by relator to said auditor. As stated above, appellant would not be entitled to the relief demanded unless it be determined that relator's budget had not been changed or modified by subsequent valid action. Having reached the conclusion that the acts of the county board of tax adjustment of St. Joseph County was valid and that the changes made by said board were legal, it is not necessary to determine whether the subsequent action of the State Board of Tax Commissioners was valid or otherwise, for even though it be determined invalid, such a result would not entitle appellant to the relief prayed.
Judgment affirmed. *Page 281 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427418/ | This is an appeal from a judgment of divorce in favor of appellee against appellant. The only proper assignment of error here is that the trial court erred in overruling appellant's motion for a new trial, which questions the sufficiency of the evidence, the legality of the decision, and the overruling of the motion for judgment in favor of appellant.
Appellant's brief, while not prepared in strict compliance *Page 605
with the rules of the Supreme Court, does make a good-faith effort to present these questions. He earnestly contends the evidence does not show a legal separation of the parties prior to the commencement of this action, and that appellee condoned appellant's offenses.
The record discloses this action was commenced on the 4th day of August, 1945. Prior thereto, on or about the 16th day of September, 1943, appellee brought an action for divorce. Thereafter, on the 26th day of October, 1943, this action was dismissed and the parties lived together as husband and wife until on or about March 15, 1945. There is evidence that on said last mentioned date, while the parties lived in the same house, they separated and did not thereafter live together as husband and wife. There is also evidence from which the court could have found that after the reconciliation appellant was guilty of the same kind of misconduct that caused their first separation.
Condonation in the law of divorce is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the 1. forgiving party with conjugal kindness. Hash v. Hash
(1945), 115 Ind. App. 437, 59 N.E.2d 735. Where this condition is broken, such condonation will not bar the subsequent action of the innocent party.
We are of the opinion there was sufficient evidence to sustain the decision of the trial court and its judgment is therefore not contrary to law. Consequently, it did not err in overruling 2. appellant's motion for a finding in his favor at the conclusion of appellee's evidence.
Complaint is further made of the ruling of the court in permitting witnesses to answer certain questions over *Page 606
appellant's objection. These questions and answers and 3. 4. the objections thereto were not properly presented to the trial court in the motion for new trial and we cannot consider them here. "Before one can properly present such question for review, the motion must set out, at least, the substance of the question asked, the objection made, the ruling thereon, and the answer given to the question in order that it may be determined as to whether harmful error exists without searching the record. Since this is not done here there is no need to discuss this further." Bennett v. Wampler (1937),104 Ind. App. 173, 176, 8 N.E.2d 117; Shank Fireproof WarehouseCo. v. Harlan (1941), 108 Ind. App. 592, 29 N.E.2d 1003.
No reversible error having been presented, the judgment of the trial court is affirmed.
NOTE. — Reported in 66 N.E.2d 284. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427675/ | On or about July 10, 1932, one Katryzna Fary, a resident of Lake County, Indiana, died intestate leaving nine children as her heirs at law, one of whom is the appellant Mary Wohadlo, 1. wife of the appellant, Stanley Wohadlo. At the time of her death the said Katryzna Fary was the owner of certain real estate in the city of East Chicago improved by a two-story brick veneer building, on the second floor of which there is a six-room living apartment which was occupied by the appellants at the time of Katryzna Fary's death. In due course the appellant, Mary Wohadlo brought suit in the Lake Superior Court against her brothers and sisters, as her co-tenants in common, for the partition of said real estate and the court, after having heard the case *Page 562
to a decision, found a partition in kind was impossible without irreparable damage to the premises, ordered the same sold at public auction and the proceeds divided among the several owners according to their interests and appointed a commissioner to make such sale and distribution. The appellee, Stanley Szczygiel was the successful bidder at such commissioner's sale and with the court's approval said commissioner executed his deed accordingly. Armed with such deed the appellee demanded possession of said six-room apartment then occupied by the appellants who refused to surrender the same. The appellee thereupon brought this suit in Lake Superior Court to recover such possession together with damages for the alleged unlawful detention of the premises. The appellants filed answer in two paragraphs, the first of which is a special denial, as provided by Rule 1-3, and the second, in substance, alleges that there was a prior action pending between the same parties and involving the same subject matter at the time the appellee's suit was filed. No pleading of any character was addressed to the second paragraph of answer. The cause was tried to the court and resulted in a general finding for the appellee and judgment that he have immediate possession of the premises involved and damages in the sum of $1572.00 for the unlawful detention thereof. Appellants' motion for a new trial was overruled and the sole error assigned in this appeal challenges such ruling on the grounds that: (1) The decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law; and (3) the damages recovered are excessive. Under the rules governing appeals to this court we must consider the question of excessive damages as having been waived by the appellants as, under that section of their brief devoted to the statement of *Page 563
"Propositions, Points and Authorities," the question is neither stated as a proposition nor is it counted upon as a point under any other proposition. Nowhere in the appellants' brief is the subject of excessive damages discussed or reasons stated in support of such contention. See Rule 2-17 (f.) 1943 Revision.
We are urged to dismiss this appeal without consideration of its merits because of the alleged failure of the appellants' brief to meet the requirements of Rule 2-17 (f.), supra.
Whatever virtue there may be in this contention we feel that, in view of the fact that our decision, in any event, must be favorable to the appellee, the ends of justice will best be served by a determination of the basic questions involved and that such procedure may prevent future litigation between the same parties over the identical subject matter.
The appellants present but two questions for our determination. First, they say the decision of the trial court is not supported by the evidence because such evidence discloses that when 2-4. this action was begun there was a prior action pending between the same parties involving the same subject matter and, therefore, there can be no recovery herein. The evidence tending to prove the pendency of a prior action for the same purpose between the same parties was introduced to establish the allegations of the second paragraph of the appellants' answer which pleads matters purely in abatement. As we have heretofore stated the first paragraph of said answer is a special denial as provided by Rule 1-3 and is strictly in bar of the cause of action pleaded in the complaint. It has long been settled that a plea in abatement must precede and cannot be pleaded with or after an answer in bar and the issues joined on such pleas must be tried first and separately. § 2-1034, Burns' 1933, § 138, Baldwin's *Page 564
1934. Kilty v. Michael (1921), 190 Ind. 374, 130 N.E. 531;Boland v. Claudel (1914), 181 Ind. 295, 104 N.E. 577;Mansfield v. Hinckle (1924), 81 Ind. App. 6, 139 N.E. 700;Estey v. Barnes (1896), 14 Ind. App. 446, 42 N.E. 1118. A plea in abatement filed with one in bar is a waiver of the matter in abatement and any evidence in proof thereof cannot be considered by the court. This was the rule at common law and still remains the rule under our present code. Field v.Malone (1885), 102 Ind. 251, 1 N.E. 507; Smith v. Pedigo
(1896), 145 Ind. 361, 423, 33 N.E. 777, 44 N.E. 363. Therefore eliminating all evidence pertaining to matters in abatement, as we must, we have nothing left in support of the appellants' first contention.
The appellants' second and last proposition is that the decision of the trial court is contrary to law because 5-6. the court in which the partition suit was decided and under the authority of which the judicial sale was had whereby the appellee acquired his interest in the real estate in controversy, had full jurisdiction and authority to put the appellee in possession of the premises by the issuance of a writ of assistance and that the appellee, by his failure to ask for such writ, has waived his right to sue in ejectment. That a writ of assistance would have been a proper remedy cannot be disputed, but we have been cited to no authority, nor can we find any, to the effect that such remedy is exclusive. The exact contrary seems to be the well settled law in Indiana. This court is committed to the rule that the remedies given a purchaser of land at a judicial sale by writ of assistance and by any other legal action for the purpose of obtaining possession of the land purchased are concurrent and that either or both of such remedies may be pursued until relief is had. Gelling v. Clark (1931),
*Page 565 93 Ind. App. 346, 154 N.E. 392. See also 31 Am. Jur. Judicial Sales, §§ 176, 177, p. 497, and cases cited. As our statute specifically provides that anyone "having a valid subsisting interest in real estate and a right to the possession thereof may recover the same by action to be brought against the tenant in possession . . .," it is obvious that the appellee was legally justified in pursuing the remedy he chose and that his failure to seek relief through a writ of assistance is no bar to the present action. § 3-1301, Burns' 1933, § 941 Baldwin's 1934.
Judgment affirmed.
NOTE. — Reported in 58 N.E.2d 759. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4302126/ | IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
JANICE D. CAREY, : No. 49 WAL 2018
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
JOHN FLOYD CAREY, SR., :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 18th day of July, 2018, the Petition for Allowance of Appeal is
DENIED. | 01-03-2023 | 08-09-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4047827/ | JUDGMENT
Court of Appeals
First District of Texas
NO. 01-13-00741-CR
BENNY JOSEPH WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 21st District Court of Washington County. (Tr. Ct. 16,409).
This case is an appeal from the final judgment signed by the trial court on August
20, 2013. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court’s judgment contains no reversible
error. Accordingly, the Court affirms the trial court’s judgment.
The Court orders that this decision be certified below for observance.
Judgment rendered February 3, 2015.
Panel consists of Chief Justice Radack and Justices Bland and Huddle. Opinion delivered
by Justice Huddle. | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427559/ | Appellee brought suit against the appellant to perpetually enjoin it from the use of certain milk bottles in the distribution and sale of its dairy products, which bottles were specially manufactured and leased by appellee to dairymen, for use in the conduct of their business. The issues consisted of a complaint in one paragraph, an affirmative paragraph of answer on behalf of appellant, to which the appellee filed two affirmative paragraphs of reply. The cause was submitted to the court for trial without a jury. The facts were all stipulated, and consisted of a substantial repetition of the affirmative pleadings filed by *Page 378
the respective parties. So far as pertinent to our purpose they may be summarized as follows:
Appellee, from July 1, 1931, until the commencement of this action in the lower court, had been engaged in the manufacture, licensing, and leasing of bottles used solely for containing and distributing milk, cream, and buttermilk. When appellee began its business it adopted as a distinguishing and identifying mark, the word "Uservo," which was blown into the body of each bottle, and the letter U was blown into the bottom of each bottle. Appellee was the exclusive user of such distinguishing marks upon its bottles in the United States. On the exterior lower half of the top rim of each bottle corrugations in the surface were blown to form what was known as "the hold fast grip," thus making appellee's bottles readily distinguishable from those owned and used by the appellant. Some of appellee's bottles were used in St. Joseph County, Indiana, by bottlers and distributors of milk, cream, and buttermilk, under a license by appellee, all such licensees in effecting distribution of their dairy products to customers in the usual course of business sold only the contents of the bottles, and not the bottles themselves, and received back from the customer on subsequent delivery, the bottles used on prior delivery. Appellee had never permitted the use of its bottles by anyone other than its licensees and their customers. Appellant during all the time in question was engaged in the business of bottling and selling at wholesale and retail, milk, cream, and buttermilk in South Bend, and in its business filled not less than 6,700 bottles daily, delivering same to several hundred customers in lots consisting of from one to ten bottles. Appellee at no time licensed or consented to the sale, lease, licensing, or permitting in any manner the use of its bottles for bottling and distributing dairy products to or by any other person, *Page 379
firm or corporation, except only such as executed such license agreement, and at all times retained the title and ownership of said bottles. Appellant was not licensed by appellee to use its bottles, nor did appellant have any permission from appellee of any kind or character whatever to use them. Continuously after May 1, 1933, and up to the time of the trial of this cause in the lower court appellant has used appellee's bottles in the conduct of its business, with knowledge at all times that the bottles were the sole property of appellee, that it had prohibited their use by appellant in conducting its business. Appellant refused to desist from such use, and though notified by appellee not to do so, at all times persisted therein, threatened to and would continue to use appellee's bottles unless restrained and enjoined therefrom by order of court. For a long time prior to the commencement of this action by the appellee a custom had prevailed among the bottlers and distributors of milk, cream, and buttermilk to receive from the customers in return for bottles in which they had delivered their products to such customer, the bottles of other bottlers and distributors, which then became intermingled with their own and to use them in the conduct of their own business. This custom continued after appellee inaugurated its business, and as a result thereof, all bottles with the mark "Uservo" thereon, held and used by appellant, came into its possession. Certain dealers during the existence of this custom wilfully refused to supply themselves with enough bottles to meet their demands, and did wilfully rely upon the use of the bottles of other dealers to meet their requirements, thus requiring such other dealers to supply themselves with more bottles than were required in their own business. Appellee never consented to the continuance or perpetuation of said practice and usage, but on the contrary continuously, persistently, and progressively *Page 380
endeavored to terminate the same. April 28, 1933, appellee served notice on all bottlers and distributors of milk, cream, and buttermilk, not its licensees, including appellant, that its licensees had no right, either directly or indirectly, to engage in any practice or custom of interchanging bottles, and that any bottles of such non-licensed dealers which had come into possession of appellee or its licensees would be returned to the rightful owners. At the same time appellee made a demand upon such non-licensed dealers, including appellant, to return to it any of its bottles in their possession. From and after May 1, 1933, appellee's licensees ceased the custom of interchanging bottles with dealers not licensed by appellee to use its bottles marked "Uservo," and refused to receive from their customers, the bottles of other dealers in exchange for the bottles of appellee marked "Uservo." At all times after May 4, 1933, and before the commencement of this action, appellant refused to receive from appellee bottles of appellant which had come into its possession after the cessation of the custom of interchanging bottles, refused to deliver the bottles of appellee which it had in its possession to appellee and persisted not only in withholding them, but in using them in the distribution of its milk, cream and buttermilk, conformable to the usage theretofore existing among bottlers and distributors of dairy products. The cost of each of said bottles was 2 1/3 to 4 1/3 cents. The average number in daily use in St. Joseph County, Indiana, was approximately 57,000, the exact number in possession of appellant at any one time was known to appellant, but unknown to appellee, but the number of such bottles being used by appellant had at no time after May 1, 1933, been less than 5,000. The appellee's bottles were of great value, the source of great profit to it, and the *Page 381
damage suffered by appellee as a result of appellant's use of them was incommensurable.
On the facts as thus stipulated, the court found for the appellee and entered judgment against the appellant perpetually enjoining it from the use of appellee's bottles. Within proper time the appellant filed a motion for a new trial, alleging as causes therefor, that the decision of the court was not sustained by sufficient evidence and was contrary to law. This motion was overruled. Appellant appeals, assigning this action of the court as the only error for reversal.
Appellant's first contention is that appellee's licensees were parties to and had indulged in a usage of long standing, prevailing among dairymen in the locality in question, of the indiscriminate exchange and use of milk bottles, which it would be inequitable to destroy; that such licensees, because of their conduct, were estopped from interfering with such usage and the rights and interests of the various parties growing up thereunder by resort to equity. That what such licensees cannot do directly they cannot do indirectly through another, in this case, the appellee.
"The term usage, in its narrowest sense, denotes merely a uniform course of conduct in some particular business or calling, even though it be that but of one person. A custom, on the 1. other hand, is something which has by its universality and antiquity acquired the force and effect of law, in a particular place or country, in respect to the subject-matter to which it relates. Custom is general practice, judicially noticed without proof. Usage is the fact. Custom is the law." 27 R.C.L., sec. 1, p. 152; Morningstar v. Cunningham (1887),110 Ind. 328, 11 N.E. 593.
In order that a usage may be binding it must have been peaceably acquiesced in by those whose rights are *Page 382
to be affected by it and not subject to contention and 2-6. dispute. Carlisle v. Wallace (1859), 12 Ind. 252; Franklin, etc., Co. v. Humphrey (1879), 65 Ind. 549; 27 R.C.L., sec. 3, p. 154; 17 C.J., sec. 32, p. 467. The party who seeks to avail himself of a usage in a particular trade or business must show that such usage is known, that it is uniform, reasonable, certain, not contrary to law, or opposed to public policy. High Wheel, etc., Co. v. Journal Co. (1912),50 Ind. App. 396, 98 N.E. 442; Morningstar v. Cunningham, supra.
Local customs or particular usages must be proved like other facts when they have not risen to the dignity of the law.Barlow v. Lambert (1856), 28 Ala. 704; 27 R.C.L., sec. 1, p. 153. A mere accommodation usage cannot establish a custom.Cincinnati, etc., Co. v. Boal (1860), 15 Ind. 345, and a custom contrary to law is not valid. Bauer v. Samson Lodge
(1885), 102 Ind. 262, 1 N.E. 571.
Where the gist of an action is the enforcement of contractual rights, then proof of a usage may be resorted to for the purpose of ascertaining the otherwise uncertain meaning of the 7. contract and the real purpose and intent of the parties thereto, but it cannot be resorted to for the purpose of varying, changing or adding to the terms of a contract, complete and certain in its terms. Piggly-Wiggly Stores v. Lowenstein
(1925), 197 Ind. 62, 147 N.E. 771; Morningstar v. Cunningham,supra; Barlow v. Lambert, supra.
In the case under consideration, appellee is not seeking the enforcement of contractual rights, but is endeavoring to enjoin the commission of alleged tortious interference with its 8. property rights by appellant. "The effect of usages and customs as evidence in cases of torts is very limited, and does not extend to proving or disproving the commission of a specific act by evidence of a certain custom to do or not *Page 383
to do it." Limbert v. Waznitsky (1921), 191 Ind. 419, 133 N.E. 128. "Usage or custom cannot prevent conduct which would otherwise be regarded as tortious from being illegal. . . . So the right to take the personal property of another is subversive of the fundamental rights of property and cannot be justified on the ground of custom." Note 41 L.R.A. (N.S.) 555; 27 R.C.L., sec. 16, p. 167; Commonwealth v. Doane (1848), 1 Cush. (Mass.) 5.
"To constitute an estoppel by conduct, there must be: 1. A representation or concealment of material facts. 2. The representation must have been made with knowledge of 9, 10. the facts. 3. The party to whom it was made must have been ignorant of the truth of the matter. 4. It must have been made with the intention that the other party should act upon it. 5. The other party must have been induced to act upon it." Hosford v. Johnson (1881), 74 Ind. 479, 485; Hartlep
v. Murphy (1926), 197 Ind. 222, 150 N.E. 312; Pierce v.Vansell (1905), 35 Ind. App. 525, 74 N.E. 554; Taylor v.Griner (1914), 55 Ind. App. 617, 104 N.E. 607. There can be no estoppel without fraud and the doctrine of estoppel cannot be applied where everything in relation to the transaction is equally well known to both parties. Tinsley v. Fruits (1898),20 Ind. App. 534, 51 N.E. 111.
The burden was upon appellant to prove the essential allegations of its affirmative paragraph of answer, which was founded upon the theory of estoppel because of an 11, 12. established usage. Recurring to the resume of facts heretofore set out and testing their sufficiency to establish such estoppel, by the principles of law controlling under such circumstances as above summarized, it is manifestly clear that the trial court was warranted in finding that they did not possess enough potency to discharge the burden cast upon appellant. *Page 384
To sustain its contention, appellant relies almost exclusively upon the cases of Stone Road Dairy Co. v. Humes (1922),220 Mich. 57, 189 N.W. 883, and Clover Leaf Dairy Co. v. VanGervin (1928), 72 Utah, 290, 269 P. 1020. We do not question the soundness of the reasoning or the correctness of the result reached by the court in either of these cases as applied to the facts involved. But the facts in the instant case and in those two cases are so vastly different that they cannot be regarded as controlling precedents for our guidance in this case. In fact, the court, in deciding the Clover Leaf case, incorporated in its opinion this very significant language: "If in the beginning, when each of them secured its trade-marked bottles and commenced to use them, it had insisted upon its customers returning the same bottle, or one bearing the same trade-mark or insignia, and had held its customers responsible for so returning such bottles, the cause for this lawsuit would not have occurred."
Appellant next contends that the appellee comes into a court of equity with unclean hands; in that it seeks to preserve such part of the alleged usage as is beneficial and perhaps 13. indispensable to it, namely, the right through its licensees to pick up, even inadvertently, the bottles of appellant and to exercise dominion and control over them, and at the same time invokes the power of the court to destroy the same reciprocal right existing in appellant under a usage long extant. The trial court found against appellant upon this contention. There is ample evidence to sustain such finding and this court will not disturb it.
Appellant also contends that the appellee comes into a court of equity with unclean hands in that it is undertaking to create a monopoly for itself in the use of its milk bottles in 14, 15. St. Joseph County. To constitute a monopoly, there must be conduct of *Page 385
some kind which results in and has for its purpose the unlawful restraint of trade, stifling of competition, control of production or supply, fixing of prices, deterioration of quality of a commodity or other acts of like character and purpose.State ex rel. Lesh v. Indiana, etc., Products (1926),198 Ind. 288, 153 N.E. 488; 19 R.C.L. Subject Monopolies and Combinations, sec. 17, p. 26, sec. 19, p. 33, sec. 20, p. 36, sec. 21, p. 38; 41 C.J., sec. 12, p. 85. The trial court found that the enterprise in which appellee was engaged did not constitute a monopoly. The evidence supports the finding.
Finally appellant insists that the appellee has an adequate remedy at law. The trial court also found against appellant on this contention. The protection of property rights is 16, 17. within the power and jurisdiction of courts of equity. In re Sawyer (1888), 124 U.S. 200, 8 S. Ct. 482, 31 U.S. Law Ed. 402; Choppell v. Stewart (1896), 82 Md. 323, 33 A. 542, 37 L.R.A. 783, 14 R.C.L. sec. 66, p. 365.
The same contention was made in the case of Denver, etc.,Exchange v. McKenzie (1930), 87 Colo. 379, 287 P. 868, where the facts and circumstances were quite similar to those in the case at bar. In disposing of such contention the court said (p. 382): "Another contention is that there is an adequate remedy at law, and therefore, that a suit for injunction will not lie. We cannot sustain this contention. McKinzie not only retains and uses the 110 bottles that he now has, but he says that, unless restrained by the court, he will continue to use bottles marked with the names of `all of the seventy-five members of the association mentioned in the complaint.' This presents a case for an injunction, if McKinzie does not have the right to use the bottles. The value of the bottles is so small that the cost and expenses incident to the prosecution of numerous actions of replevin or for damages — which would *Page 386
be necessary if McKinzie carries out his threat — would be prohibitory. The exchange tried replevin several times. In one such action (not against McKinzie) the value of the bottles was $6.12 and the cost and expenses amounted to $43. Though the exchange obtained judgment, the attorney's fee ($25), of course, could not be included in the judgment. In the other replevin cases the expense was five times as much as the recovery. In the circumstances, neither actions of replevin nor actions for damages would afford adequate relief; the preventive remedy of injunction is the only remedy that is adequate."
In Renner, etc., Co. v. Rolland (1917), 96 Ohio St. 432, 441, 118 N.E. 118, another case where similar facts were involved and the same contention made, the court said: "The petition avers that the defendant has, ever since the 16th day of March, 1916, continued to gather, purchase, traffic, and otherwise take possession of the bottles of the plaintiff; that he threatens to and will, unless restrained by the court, continue to gather, purchase, traffic in, and take possession of said bottles, and will sell and otherwise dispose of the same, that the plaintiff has suffered and will continue to suffer great and irreparable damages; that it has no adequate remedy at law; and that it will be put to a multiplicity of suits in order to recover its property unless defendant be restrained by the court. It is clear that these averments are sufficient to authorize the court to grant a perpetual injunction if the allegations are sustained by proof."
We think the reasoning in those two cases is applicable to the facts presented by the record in this case and furnishes ample precedent for the action of the trial court.
Finding no error, the judgment is affirmed. *Page 387 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427562/ | Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427614/ | DISSENTING OPINION
I agree with the majority opinion that the appointment of the county surveyors of Cass and *Page 92
Fulton counties as viewers for the proposed repair of a ditch, while probably an erroneous act, was not such an error as affected the jurisdiction of the court. Since appellant did not object to this erroneous action in the lower court, no question can be presented thereon, on appeal.
However, I am unable to agree with the majority opinion on the remaining propositions decided, for the reason that I believe the court below acted without jurisdiction of the subject matter, in adding to the Eugene Mills ditch, 29,200 feet in length, sought to be repaired by the petition, four other ditches not asked to be repaired, the aggregate length of which was 36,306 feet or 124+% in extent of the original plans and specifications of the ditch asked to be repaired. The majority opinion is in error in stating that the petition requested the repair of "Tributary No. 2" of the Eugene Mills Ditch. There is no such request in the petition.
It is admitted by the majority opinion and likewise by the parties to this appeal that this is a special statutory proceeding to alter and repair a drain, brought under paragraph (1) of subsection (a) of § 27-120, Burns' 1933 (Supp.). It is not brought under § 27-104, et seq. Burns' 1933 which provide the procedure for the construction and for the reconstruction of a drain. It is therefore, not a petition for the construction or reconstruction of a drain. It is a petition to alter and repair an existing drain.
I think the majority opinion is in error in holding that the provisions of the act authorizing the construction and reconstruction of ditches, are applicable to a proceeding under the alteration and repair statute so as to authorize the surveyor in his report to add additional ditches which the petition does not ask to be altered or repaired, and exceeding in extent more than *Page 93
10 per cent. of the original plans and specifications of the ditch asked to be repaired. I have at least two reasons for this belief. First, that part of the statute relied upon for this holding reads as follows:
"The form and contents of such petition and other provisions thereof, so far as applicable, shall conform and be similar to the petition provided in this act relative to original petitions for construction of drains; as well as the provisions of this act relative to notice of docketing thereof, objections thereto, and the reference of said petition to the surveyor and viewers, the findings of the viewers, the filing of the surveyor's report,
and other proceedings shall, so far as applicable, conform and comply to the proceedings in this section specified for the repair, change or extension of any such drain or the installation, construction and maintenance of control dams therein."
§ 27-120, supra, Clause (c). (Our italics).
It will be noted that in § 27-120, supra, the only authorization of a surveyor's report is as to the filing thereof — and not as to its contents — and it is expressly provided that it must be filed so as "to conform and apply to the proceedingsin this section specified for the repair, change or extension ofany such drain . . ." (Our italics). Therefore, the provision in § 27-105, for the addition of arms or branches by the surveyor's report in the original construction statute is noticeably excluded from a proceeding under the repair statute. There is likewise no authorization for a remonstrance to the surveyor's report and no reference thereto in the alteration and repair statute under which this proceeding is founded. We have no right to blend § 27-104, et seq. with § 27-120, supra. For its own reasons, which I think were entirely proper, the General Assembly separated them. The parties, in this action, have proceeded under the repair statute and it is a *Page 94
duty of the courts to see that the entire proceeding is kept reasonably within the terms of this statute. It is only the applicable provisions of § 27-104, et seq. that can possibly apply in a proceeding instituted to alter and repair a drain under § 27-120, supra, and these apply only to "the form and contents of such petition and other provisions thereof." The provision for the addition of "arms and branches" in the surveyor's report not only is not applicable, but it is clearly omitted in the statute last quoted above.
Second, the statute under which the action is brought expressly forbids the excessive extension of the drain to be repaired, as allowed in the majority opinion, by clause (b) paragraph (2) thereof reading as follows:
"No petition filed in conformity with the provisions of paragraph (1) of subsection (a) of this section shall contemplate the increasing of the tile, the average deepening and widening or the extension more than ten (10) per cent of the original plans and specifications."
The word "contemplate" as used in this section is inclusive. An apt definition of it by Webster's unabridged dictionary is: "to purpose or intend." Therefore, the petition in this case can not purpose or intend the extension more than 10 per cent of the original plans and specifications. The above quoted statute is controlling in all proceedings brought under this alteration and repair section. It was enacted in 1933, amended in 1937, ch. 162, § 2 p. 853, and this is the only case brought under it that has come to this court. Decisions under former drainage statutes not containing the above quoted limitation, relied upon in the majority opinion are wholly inapplicable.
It is an established principle of law that if a statute creates a new right, and provides a valid remedy for *Page 95
its enforcement, the remedy thus given must be pursued to the exclusion of all others. The parties can not by contract or acquiescence, vary the procedure provided by the statute. 1 Am. Jur. 411, § 12; Storms v. Stevens (1885), 104 Ind. 46, 47, 48, 3 N.E. 401; Shipman, Exr. v. Shipman, Gdn. (1934),99 Ind. App. 445, 451, 192 N.E. 849. Limitations placed on a right thus created become a part of the right conferred and compliance with them is made an essential to the assertion of the right itself. 1 Am. Jur. 410, § 11; Bowen v. Illinois C.R. Co.
(1905), 136 Fed. 306, 70 L.R.A. 915. It is a rule of universal application that the statute conferring jurisdiction must be strictly pursued in the method of procedure prescribed by it, orthe jurisdiction will fail to attach, and the proceeding will becoram non judice and void. French v. Willer (1888), 126 Ill. 611, 18 N.E. 811, 2 L.R.A. 717, 718. A court has no power to do anything which is not authorized by law and when its procedure is defined by a special statute, its judicial functions are essentially controlled thereby, and the remedy is confined to the mode prescribed, and the procedure so provided excludes resort to another or different procedure. Lowery v. State Life Ins. Co.
(1899), 153 Ind. 100, 104, 54 N.E. 442; Ryan v. Ray (1885),105 Ind. 101, 106, 4 N.E. 214; Bartlett v. Manor (1896),146 Ind. 621, 625, 45 N.E. 1060.
In Lowery v. State Life Ins. Co., supra, at pages 102 and 103, Judge Hadley, speaking for this court, has correctly stated the applicable law thus:
"A court is a creature of the law, instituted for the determination of questions of law and fact under defined restrictions and limitations. The territorial limits of its power, the subjects and classes over which its power may be exercised, the terms upon which it may put its power into action, are as firmly and clearly established as the right to adjudicate when authorized to do so; and, though a *Page 96
court of general jurisdiction, it must proceed in the manner and upon the conditions imposed by the law, and an assumption of jurisdiction over a subject or a person, upon terms denied by the law, is as unwarranted and futile as the assumption of jurisdiction without its territorial limits. A departure from the limits and terms of jurisdiction is usurpation of power that imparts no validity whatever to its judgments and decrees. Works, § 10, p. 28, and authorities cited. Hence, we have the generally accepted rule that, when a court proceeds without jurisdiction of the subject-matter, its judgment is wholly void; . . .
"A void judgment implies no judgment at all, and its non-existence may be declared upon collateral attack, upon suggestion of an amicus curiae, or by the court at any time upon its own motion. . . . And the duty is not affected by the acquiescence or agreement of the parties to submit to the jurisdiction, since jurisdiction that cannot be acquired without consent cannot be bestowed with it." Cases cited.
This statement of the law is quoted with approval in State v.Gorman (1908), 171 Ind. 58, 64, 85 N.E. 763. See also Moore
v. Moore (1923), 81 Ind. App. 169, 173, 174, 135 N.E. 362;Hutts v. Martin (1893), 134 Ind. 587, 592, 33 N.E. 676;McFadden v. Ross (1886), 108 Ind. 512, 516, 517, 8 N.E. 161.
A judgment or decree may be valid in part because within the jurisdiction of the court, and void in part for want of jurisdiction. Kline v. Kline (1886), 57 Iowa 386; 42 Am. Rep. 47; Belford v. Woodward (1895), 158 Ill. 122, 134, 29 L.R.A. 593, 599.
Section 27-120, supra, is the empowering statute in this case. Within its limitations the court, the viewers, the surveyor and the parties are empowered to act. Beyond its limitations all are alike powerless. The court below has jurisdiction of the action within the definitions and limitations of this statute. Beyond this it is *Page 97
without jurisdiction. Clause (b) of paragraph 2 is clearly a limitation in this proceeding. It must be honored by everyone having to do with the action. In original actions to construct or reconstruct drains a surveyor may include other drains than those petitioned for, to effectively drain the territory involved,because he is authorized so to do by § 27-105 of the empoweringstatute. In a proceeding to alter and repair a drain under § 27-120, supra, he may not do so, because of the limitations contained in Clause (b) of Paragraph (2) of the empowering statute. In so far as the finding and judgment of the court below seeks to give force and effect to the surveyor's report ordering the alteration and repair of drains in excess of 10 per cent of the original plans and specifications of the ditch petitioned to be repaired, it is coram non judice and void. I do not contend that the court lost jurisdiction of the entire case as erroneously suggested in the majority opinion, but I do maintain that it was without jurisdiction to increase the extent of the ditch to be repaired beyond 10 per cent of the original plans. It seems to me that the reasoning in the majority opinion is tainted by the erroneous assumption that unless the lower court lost jurisdiction of the entire case, then, no matter how far it strayed from the jurisdiction granted it by the empowering statute, everything attempted to be adjudicated is valid. That a court may exceed its jurisdiction in the rendition of a judgment seems quite elementary and when it does so the excess, in every instance that has come to my attention, has been held to be void.
This jurisdictional question was not raised below by remonstrance. Probably it might properly have been so raised although the empowering statute does not mention a remonstrance to a surveyor's report. Appellants' *Page 98
motion to amend the remonstrance so as to raise this question was overruled, probably because the court believed it came too late, but it raised the jurisdictional question. The error sought to be presented was not merely an error within the power of the court to commit, but was an error of absence of power to act at all — an error of usurpation. It has been frequently held as stated inSouthern R. Co. v. Town of French Lick (1913),52 Ind. App. 447 at page 452, 100 N.E. 762, that:
". . . In all special statutory enactments the procedure prescribed by the statute must be followed, but when not inconsistent with the procedure so prescribed, the practice authorized by our civil code may be followed. Evans v. Evans (1886), 105 Ind. 204, 5 N.E. 24, 5 N.E. 768; Weakley v. Wolf
(1897), 148 Ind. 208, 220, 47 N.E. 466; In re Griffin (1904), 33 Ind. App. 153, 69 N.E. 192."
See also C.C.C. St. L.R.R. Co. v. Schuler (1936),211 Ind. 172, 5 N.E.2d 975.
I think it was proper to present the question of lack of jurisdiction of the subject matter by the motion to strike out the surveyor's report, and by the motion for finding and judgment for remonstrators presented at the end of petitioners' evidence, since each motion specifically called the court's attention to its lack of jurisdiction, beyond the limitations of the statute involved. These alleged errors were presented to the trial court, they are presented to this court by appellants' assignment of errors 2, 3 and 5. Since this was an error of assumption of jurisdiction of the subject matter — a jurisdiction which the court did not have inherently, and which not only had not been granted to it by law, but had been expressly withheld from it by an affirmative statute, the error may be presented at any time, in any manner, and if not presented it is our duty of our own *Page 99
motion to present it, and to take such action as will correct it. The fact that in each of the motions mentioned above the appellants asked for greater relief than they were entitled to — the dismissal of the action for want of jurisdiction — is no legal reason for refusing to grant the relief to which they were lawfully entitled. Stockton v. Lockwood (1881), 82 Ind. 158, 162, 163; Mandlove v. Lewis (1857), 9 Ind. 194, 195, 196;Hunter v. McCoy (1860), 14 Ind. 528; Anderson v. Ackerman
(1883), 88 Ind. 481, 486, 487. No action or lack of action of appellants can waive this error as to jurisdiction of the subject matter. Since appellants' motion to strike out the surveyor's report directly raised this question in the court below it should have been sustained. I think the cause should be reversed with instructions accordingly.
Note. — Reported in 64 N.E.2d 399. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427809/ | The appellee, Charles L. Bonnell, sued the appellant Railway Express Agency, Inc., Mack Mace, and William J. Tucker for personal injuries caused by the negligent operation of an automobile by Mace. There was a verdict and judgment against the appellant and Mace and in favor of Tucker. The appellant filed a separate motion for a new trial, which was overruled, and this constitutes the only assigned error. It is contended that the evidence is not sufficient to sustain the verdict and that the trial court erred in giving instructions 3 and 29 tendered by the appellee.
There was testimony from which the jury might have found that the express agency had a city office and also a place of business at the union station at Terre Haute. *Page 610
Tucker was general agent and Mace the night foreman at the union station. On the day of the accident Mace concluded his duties at 8:30 o'clock in the morning, at which time his wife's automobile, which he used for his own convenience in going to and from work, was parked at the station. It was Mace's intention to use the automobile in going to an office building in the downtown section to pay a personal insurance premium. While Mace was still on the appellant's premises, Tucker received a complaint by telephone from a fish market relative to a lost shipment of merchandise. Mace overheard the conversation and volunteered to take Tucker to the fish market by way of the city office, where Tucker desired to procure a report blank. Tucker accepted the invitation, although there were a number of agency trucks, in charge of drivers, then and there available for his use. Mace drove the automobile without any directions from Tucker as to the manner of its operation or the route to be taken. They proceeded past the insurance office and were en route to the city office of the express agency when the accident occurred. There was no evidence that Tucker directed or requested Mace to provide the means of transportation or that Mrs. Mace's automobile had previously been used for any such purpose. It is not contended that Tucker was not within the course and scope of his employment or that Mace was not negligent.
The governing principle was expressed more than a century ago by Mr. Justice Park, who sat for the Lord Chief Justice of 1. England in the case of Goodman v. Kennell (1827), 3 Car. and P. 167, in which it was said:
"I cannot bring myself to go the length of supposing, that if a man sends his servant on an errand, without providing him with a horse, and he meets a friend who has one, who permits him to *Page 611
ride, and an injury happens in consequence, the master is responsible for that act. If it were so, every master might be ruined by acts done by his servant without his knowledge or authority."
There can be no recovery under the doctrine of respondeatsuperior where the master had no right or power to command or forbid the act or omission that resulted in the injury. 2. Lieber, Exrx., v. Messick (1931), 92 Ind. App. 264, 173 N.E. 238. Since Tucker exercised no control over the operation of the automobile, the question of the appellant's liability depends upon whether Mace was performing any duty on its behalf or acting in response to any order or direction emanating from it.
There is no evidence to support an inference that Mace was acting in the course and scope of his employment when the accident occurred. He had concluded his duties for the day 3. and was free to go and do as he chose. His primary objective in using his wife's automobile was personal and the invitation to Tucker to ride with him was purely incidental. The situation is no different, in legal effect, than if Tucker had been invited to ride with a stranger. The evidence is not sufficient to support the verdict.
What we have said requires us to hold that the 4, 5. appellee's instruction 3 was erroneous and no further discussion of it is deemed necessary.
Appellee's instruction 29 was as follows:
"Where a party to a law suit has in his own keeping or at his command testimony presumably favorable to himself, or where said party has the power and opportunity of producing competent evidence or a competent witness or witnesses readily obtainable by him to prove or disprove any material fact and for evidence or testimony presumably friendly to him would or could enlighten the court and jury, failure to produce such evidence or testimony *Page 612
or to make an effort to do so raises the presumption that the evidence or testimony if produced would be unfavorable to him or his contentions."
This instruction, abstractly considered, is not objectionable, but the rule stated therein cannot be carried to the extent of relieving a party, upon whom rests the burden of proof, of producing some competent evidence of the essential facts. GreatAmerican Tea Co. v. Van Buren, ante p. 462, 33 N.E.2d 580. In other words, a plaintiff who has failed to make out his case will not be heard to say that it was not necessary for him to do so because the defendant was in possession of evidence which, if it had been produced, would have been sufficient.
The judgment is reversed, with directions to sustain the appellant's motion for a new trial and for further proceedings.
NOTE. — Reported in 33 N.E.2d 980. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427678/ | These cases are identical. They are appeals from judgments of the Criminal Court of Lake County, finding the appellants guilty of robbery.
The cases were submitted to the court for trial, without the intervention of a jury, in April, 1935, and the evidence heard. The cases were taken under advisement by the court, pending the disposition of other cases against the defendants which were appealed to this court. The record shows notations of continuances on ten separate occasions. Finally the court fixed June 20, 1938, for final disposition of the cases. On that date the defendants filed verified motions for leave to further cross-examine two witnesses for the purpose of showing that they had, since testifying, made statements that they were in doubt as to the identity of the robbers, and in the event they denied making such statements the defendants desired to introduce impeaching evidence. The motions were denied, and error is predicated upon the result.
The question presented to the trial court by such a motion is of the same character as that presented by a motion for a new trial on account of newly discovered evidence. It is the 1, 2. duty of the trial court to take into consideration the probable probative force of the matter sought to be developed in the light of the evidence already received, and to consider whether the new evidence would probably produce a different result than that which would be reached from the evidence already in. In these cases the trial was by the court and all of the evidence put before the trial judge. Three witnesses, other than the ones sought to be re-cross-examined, had testified positively to the identity of the robbers. The trial judge had heard the witnesses testify and had a right to consider their credibility. It may be that the trial judge considered that, even though the two witnesses in question had afterward *Page 345
expressed a doubt, the evidence of the other three was sufficient to convince him, who was the sole trior of the facts, that the defendants were the guilty parties. No one could be in a better position to know whether evidence that the two witnesses in question had afterward expressed a doubt, would affect the result. It cannot be said that an abuse of discretion has been shown. See Sullivan et al. v. State (1937), 212 Ind. 79,6 N.E.2d 951; Rector et al. v. State (1937), 211 Ind. 483,190 N.E. 172, 7 N.E.2d 794; Gavalis v. State (1922),192 Ind. 42, 135 N.E. 147.
On the day fixed for final disposition of the cases, the defendants filed identical motions to be discharged for delay of more than three terms in disposing of their cases. They 3, 4. rely upon section 9-1403 Burns' Ann. St. 1933, section 2239 Baldwin's Ind. St. 1934, which provides that no person shall be held without trial for a period embracing more than three terms of court. The delay here involved was after the trial had begun. It occurred between the trial proper and the rendition of judgment, but we pass the question of whether such a situation is within the statute. The last entry of a continuance upon the court's record was on June 12, 1936. It is as follows: "Comes now the State of Indiana by its Prosecuting Attorney and this cause is now continued for finding and judgment until September 15th, 1936." When the motions to be discharged were heard the court called the deputy prosecuting attorney in charge of the prosecutions, who testified that he was in court when the entry above referred to was made, and that the attorneys for the defendants requested that both cases be continued until the cases in the Supreme Court were decided. Neither the defendants nor their attorneys disputed this testimony.
A defendant must show that the delay complained of was caused by the state and not by him, and that it *Page 346
was not had upon his request or upon his agreement. McLaughlin
v. State (1935), 207 Ind. 484, 192 N.E. 753; Sprague v.State (1932), 203 Ind. 581, 181 N.E. 507; Alyea v. State
(1926), 198 Ind. 364, 152 N.E. 801, 153 N.E. 775. While the record recites: "Comes now the State of Indiana by its Prosecuting Attorney and this cause is now continued," it does not show at whose request the continuance was had. The testimony that it was at the request of the defendants is not disputed and must be considered conclusive.
We find no error.
The judgments are affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4056671/ | Court of Appeals
Fifth District of Texas at Dallas
MANDATE
TO THE 59TH JUDICIAL DISTRICT COURT OF GRAYSON COUNTY, GREETINGS:
Before the Court of Appeals for the Fifth District of Texas, on the 25th day of June, 2015, the
cause on appeal to revise or reverse the judgment between
RORY HOGENSON, Appellant On Appeal from the 59th Judicial District
Court, Grayson County, Texas
No. 05-14-00981-CR V. Trial Court Cause No. 063011.
Opinion delivered by Justice Schenck.
THE STATE OF TEXAS, Appellee Justices Bridges and Lang participating.
was determined; and this Court made its order in these words:
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
WHEREFORE, WE COMMAND YOU to observe the order of the Court of Appeals
for the Fifth District of Texas, in this behalf, and have it duly obeyed and executed.
WITNESS the HON. CAROLYN WRIGHT, Chief Justice of the Court of Appeals, with
the Seal thereof affixed, at the City of Dallas, this 8th day of September, 2015.
LISA MATZ, Clerk | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427600/ | The appellee filed this action against appellant to recover damages alleged to be sustained by reason of the fraud of appellant's agent in the procurement of a release and covenant not to sue.
The complaint alleged that H.A. Montgomery and his agent, Price Baldwin, were covered by a liability *Page 388
insurance policy issued by appellant, and that appellee while riding as a passenger in a motor car was injured in a collision between the motor car in which appellee was riding and a truck owned by H.A. Montgomery and operated by his agent, Price Baldwin. That the accident took place at or near Garden City, Indiana on State Road 31; that her injuries were caused solely and only by the negligence of Price Baldwin while acting for and on behalf of H.A. Montgomery; that in the accident the appellee's left kneecap was injured permanently; that as a result of said accident the appellee has suffered much pain and that the proximate cause of the accident was the negligence and unlawful acts of Montgomery acting by and through his agent Baldwin. That by reason of her injuries so suffered, appellee has a just and valid claim against Montgomery in the sum of Forty-thousand Dollars ($40,000.00). It is further alleged that as a result of this accident the appellee has a stiff knee and is unable to carry on her work and will be unable to carry on her work; that at the time of the accident the appellee was a widow, the mother of two children, and earning Twenty-six Dollars ($26.00) per week; that as a result the appellee is still under the care of a physician, has a complete ankylosis of the left knee and has already expended the sum of Nine Hundred Forty-five Dollars ($945.00) for medical care and hospitalization. The complaint further alleged that the appellant as insurer of Montgomery and Baldwin fraudulently obtained a release and covenant not to sue from appellee for the sum of One Hundred Fifty Dollars ($150.00); that the agent of appellant, a lawyer, told appellee that she needed no attorney to inform her of her rights; that he knew her rights and that One Hundred Fifty Dollars ($150.00) was the greatest amount that she could hope *Page 389
to recover; that unless she took this sum and made settlement she would receive nothing. It was further alleged that at the time of the settlement the appellee was under the care of appellant's physician; that the claim agent told appellee that he had investigated her injuries and that her injuries were not permanent but merely temporary, and that she could go to work in a few days; that the amount offered was more than she could possibly recover by going to court; that each representation was false; that appellant knew each of them to be false; that the appellee relied on and believed said representations and was thereby misled; that she would not have executed the release and covenant not to sue if she had known the falsity of the representations so made, and that the acts of appellant were irregular, deceptive and false.
To this complaint a demurrer was filed setting forth that the complaint did not contain facts sufficient to constitute a cause of action. In the memorandum attached to the demurrer the only reasons in support thereof are that the representations of fraud refer to matters of opinion and to future matters, and that there was no duty owing by appellant to appellee.
This cause is predicated upon the long standing principles of law that where a right of action exists on behalf of a plaintiff against a defendant, and the defendant, or some one for 1. him, by fraudulent representations induces the plaintiff to make a settlement of his cause for an inadequate sum, the plaintiff has the right to elect to proceed in one of two ways:
1. He can tender or return whatever was received and bring suit on the original right of action, requesting therein that the settlement be set aside, or he can await the interposing of the settlement in bar *Page 390
of his suit and then set up the fraud and payment in avoidance.
2. He can keep what he has received and file suit against the ones perpetrating the fraud and recover such amount as will make the settlement an honest one.
If the second method is pursued, the plaintiff recognizes that the settlement is a bar to the original action and that it is incumbent on him to allege and prove not only that the 2. settlement was procured by fraud and to his damage, but also that he had a good cause of action against the original tort-feasor at the time of the settlement.
The measure of damages under this second method must take into consideration the salable value of the right of action for the purpose of compromising, and the nature and extent of the 3. injuries known and foreseeable as of the time of the settlement, under the particular circumstances of the parties then shown existing. Rochester Bridge Co. v. McNeill
(1919), 188 Ind. 432, 122 N.E. 662. See also Gould v. CayugaCo. Natl. Bank (1885), 99 N.Y. 333, 2 N.E. 16.
The fraud or deceit necessary to recover in this class of 4. cases must be the same as in any other class.
In the case of The Watson Coal and Mining Company v. 5. Casteel (1879), 68 Ind. 476, this court said:
"Representations, to amount to fraud, must be false; they must be made for a fraudulent purpose; they must be believed to be true by the party to whom they are made; they must have induced him to act upon them; and they must have effected the fraud." *Page 391
In the case of Lewark v. Carter et al. (1889), 117 6. Ind. 206, 20 N.E. 119, this court said:
"Representations made for an honest purpose, and with fair reason for believing them to be true, are not fraudulent, although it may turn out that they were not true."
In the case of Furnas v. Friday (1885), 102 7. Ind. 129, 1 N.E. 296, it was said:
"Where there is an honest purpose, and neither recklessness nor carelessness, there can be no fraud, for fraud involves moral turpitude, and where there is neither a dishonest purpose nor recklessness, there can be no moral wrong."
8. In 23 American Jurisprudence 773, it is said:
"The essential elements required to sustain an action for deceit are, generally speaking, that a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage."
In Rochester Bridge Co. v. McNeill, supra, it is 9. said:
"The mere fact that a statement takes the form of an expression of opinion is not always conclusive, for, as the question is now presented, it must be interpreted by the facts and surrounding circumstances shown by the complaint. The rule that actionable fraud cannot be based upon the mere expression of an opinion has been qualified until now an expression of an opinion may amount to fraud, where it is a mere contrivance of fraud, or if the person to whom it was expressed has justly *Page 392
relied on it and has been misled, or when it is coupled with other circumstances."
Applying the above principles of law as enunciated by this and other courts, we feel that the court did not err in overruling the demurrer to the complaint. It sets forth a 10. valid claim, or cause of action against the original tort-feasor, and sufficiently charges fraud and deception in the making of the settlement.
Error is also predicated upon the insufficiency of the evidence. While we must take the evidence, together with all reasonable inferences most favorable to the appellee, yet 11. it is essential that there be some evidence supporting the verdict of the jury. Larch v. Holz (1913),53 Ind. App. 56, 101 N.E. 127; Cleveland, etc., R. Co. v. Moore
(1909), 45 Ind. App. 58, 90 N.E. 93; Baldwin v. Fleming
(1883), 90 Ind. 177; State ex rel. Board, etc. v. Cole
(1939), 215 Ind. 562, 20 N.E.2d 972.
The complaint upon the issue of fraud alleges that Harvey, the agent of appellant, made the following statements to the appellee, upon which she relied and which induced her to sign the release and covenant not to sue: 1. That he was an attorney and acquainted with her rights; 2. that she needed no attorney to inform her of her rights; 3. that one hundred fifty dollars ($150.00) was the greatest amount she could hope to recover; 4. that unless she took this sum and made settlement she would receive nothing; 5. that he had investigated her injuries and that they were not permanent but merely temporary and that she could go to work in a few days; 6. that if she filed suit it would of necessity be in Bartholomew County and that a farmer jury of that county would give her nothing; *Page 393
7. that even if she did recover she would need attorneys and that the attorneys would take all that would be awarded her.
All of these except number five were mere assertions or matter of opinion, and we are unable to find any evidence of their falsity, although we carefully searched the record. The evidence on the one point, number five, is that the claim agent told the appellee that he had talked with her physician and that the physician said that her injuries were merely temporary and not permanent. There is no evidence that this statement was untrue.
The undisputed evidence discloses that the physician referred to was one employed by the appellee, and not by the appellant, as charged in the complaint. It further discloses that 12, 13. this settlement was made in the home of the appellee at the same time that all other settlements were made with persons involved in the same accident, and that her mother, her father, her sisters and others were present. The appellee herself testified that her physician informed her that her injuries were but temporary. She also testified that she had gone back to work prior to the date of the settlement, and that after receiving the check she held it about ten days, before cashing it, to see how her injuries would develop. From these undisputed evidentiary facts we must conclude that there were no false statements of a material fact upon which she relied and which induced her to sign the release and covenant not to sue. The fact that the appellee's injuries developed differently than expected could not be considered as sufficient evidence of the falsity of the representations set forth in the complaint. Even where it is held that expressions of opinion may constitute *Page 394
fraudulent representations, it is so held because the person making them believes differently than he expresses himself at the time. 23 American Jurisprudence, Fraud Deceit, § 29, p. 787.
The authorities all are to the effect that in order to constitute fraud there must be moral turpitude on the part of the person so charged. Furnas v. Friday, supra. There 14. must be falsity to create moral turpitude, and in so far as this case is concerned there is an entire absence of evidence on that subject. Certainly if the claim agent honestly told the appellee what the physician selected by her had imparted to him, that of itself would be insufficient upon which to base a charge of fraud.
The appellant also claims error in the giving of instructions on motion of the court, and in refusing to give instructions tendered by the appellant.
Instruction number thirty, given on motion of the court, was the only instruction given which touched on the measure of damages, and by it the jury was told that the damages, if any, to the appellee, would be the difference between the one hundred fifty dollars ($150.00) already received and the actual value of her claim at the time it was surrendered on September 14, 1936. While this may be correct as far as it goes, it did not give the jury a method or means for measuring value.
Instruction number nine, tendered by appellant and refused by the court, would have told the jury that the amount of recovery would be that amount which the injured party reasonably 15, 16. could have demanded and the defendant could reasonably have allowed as a final compromise above and beyond the sum in fact allowed and received. This instruction *Page 395
was in conformity with the rule announced in Rochester BridgeCo. v. McNeill, supra, a similar case, but the intent of the rule announced must be taken from the whole case and not from the one isolated statement. The purpose of the rule seems to be to discover the probable amount at which the parties would have arrived, in the absence of deceit or overreaching. The charge ought to inform the jury that they should endeavor to discover what that probable amount would be after considering all of the known or foreseeable facts and circumstances which in any way affected the value of the claim on the date of settlement, and having once arrived at that figure, they should then deduct the amount already allowed and paid and insert the balance, if any, in the verdict as the true measure of the damage suffered. The ultimate fact to be ascertained is the actual damage caused by the fraudulent representations and not the damage for the original injury. While this may be an enlargement of the rule announced in the case of Rochester Bridge Co. v. McNeill,supra, it is in conformity with the spirit thereof.
The reason for this rule as announced is apparent from the circumstances shown in this case. Here the medical experts differed as to whether or not the ankylosis of the knee could have been caused by the accident. The appellee's own physician and one other testified that the ankylosis was not caused by the accident. Two other doctors said that it probably was caused by the accident. No doctor testified that the ankylosis was the result of the original injury or that anyone could have foreseen any such result, on the date of the settlement.
Other errors are claimed, but we do not deem it necessary to discuss them for the reason that they are not apt to occur in any future trial. *Page 396
For errors indicated, this cause is reversed with instructions to sustain the motion for a new trial and for other proceedings in accordance with this opinion.
NOTE. — Reported in 53 N.E.2d 775. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427601/ | This is an appeal from a judgment of the Jackson Circuit Court rescinding and cancelling a life insurance policy in the sum of $1,000 issued by the appellee upon the life of Wayne W. Fish and payable to his mother, Bessie L. Fish, the appellant, as beneficiary, and setting aside and holding for nought a verdict of the jury on a cross-complaint filed by the appellant for full recovery on said policy.
On November 23, 1940, the appellee filed suit against the appellant for rescission and cancellation of the policy by reason of alleged fraud on the part of the insured in obtaining such policy, and on March 22, 1941, the appellee by leave of court, filed an amended complaint for the same relief. The amended complaint did not change the issues, and in substance alleged that the insured, in order to induce the appellee to execute the policy on his life, without requiring him to undergo a medical examination, made 11 separate representations in writing in the application concerning his past and present health, including a statement that he never had tuberculosis of the lungs or any other part of his body; that appellee believed and relied upon said representations, which were material to the risk, and upon reliance of such representations, which became a part of the contract, did issue the policy for $1,000 as set forth in the amended complaint. Appellee further alleged that said representations were false, that in reliance thereon the appellee did execute said policy, but would not have done so if appellee had known the true facts concerning the health of the insured; that for many years prior to November 30, 1938, the insured had been afflicted with and treated for tuberculosis, which was the cause of his death. That appellee did not learn said representations were false until after the death of the insured which occurred *Page 451
on June 1, 1940; that upon learning the true facts it elected to rescind said policy, tendered to the beneficiary the sum of $52.39 which was the sum of all premiums paid plus interest, which tender was refused, and thereafter paid into court for her use at the time suit was filed.
Appellee set forth in the complaint the incontestability clause of the policy which provided:
"Incontestability. — This policy shall be incontestable after two years from its date of issue, except for non-payment of premium, but if age of the Insured be misstated the amount of insurance shall be such as the total rate of premium actually paid would have purchased at the correct age, and the loan and nonforfeiture values and all other benefits shall be adjusted accordingly."
Appellee further alleged it had no other adequate remedy at law, and prayed a rescission and cancellation of the policy.
On March 7, 1941, the appellant as beneficiary filed a cross-complaint against the appellee, seeking to recover at law for the full amount of the policy. To this cross action, the appellee filed an answer in two paragraphs, the second of which alleged in substance the same fraud alleged in the amended complaint, that appellee had elected to rescind said contract of insurance and had brought suit to cancel the policy. Before trial the appellee filed a motion requiring the court to make special finding of facts and conclusions of law on the issues joined on the amended complaint. On May 13, 1946, the cause was tried, with the issues joined on the cross action submitted to a jury, which returned a verdict for the appellant in the sum of $1,357.50. On May 24, 1946, the court made and filed its special finding of facts which in substance found for the plaintiff on all issues raised by the amended *Page 452
complaint, and stated as the conclusions of law that the policy be rescinded and cancelled. There was ample evidence to sustain each finding of the court. The court entered judgment pursuant to said special finding of facts and conclusions of law, that the policy of insurance be rescinded and cancelled, and authorized the tender be paid to appellant. Thereafter on the same day the appellee filed a motion in arrest of judgment for the reason that the policy is cancelled and "there is nothing upon which a judgment in favor of the cross-complaint can rest." The court overruled appellant's motion for judgment on the verdict, motion to modify special finding of facts and conclusions of law and a motion for new trial. The various errors presented by the briefs will be decided without enumerating them at this time.
The main controversy involved in this appeal hinges on appellant's asserted right to have the verdict of the jury on the cross-complaint conclusive as to the issues raised in the amended complaint.
The right to a trial by jury in Indiana is provided by § 20, of Art. 1 of the Constitution of Indiana which states, "In all civil cases, the right to a trial by jury shall remain 1. inviolate." This court has judicially construed this provision as guaranteeing the right to a trial by jury in actions at law which were, prior to June 18, 1852, triable by jury, but it does not and did not intend to require a jury trial of issues which were of exclusive equity jurisdiction prior to the adoption of our Constitution. Allen v. Anderson (1877),57 Ind. 388, 389; McMahan v. Works (1880), 72 Ind. 19-22;The Lake Erie, c. Railr'd Co. v. Heath (1857),9 Ind. 558-561; Carmichael v. Adams (1883), 91 Ind. 526; Vol. 20, *Page 453
Indiana Law Journal, pp. 345-346; II Gavit on Indiana Pleadings
Practice, p. 2031, § 318.
The rule has been well summarized in Watson's Works, Practice and Forms, Vol. II, at page 192, § 1523, as follows:
"The constitution provides that `in all civil cases, the right of trial by jury shall remain inviolate.' This provision has been construed to mean, as the language plainly imports, that the right `shall remain inviolate', that is, continue as it was. At the time of the adoption of the constitution, the right to a trial by jury in chancery cases, or suits in equity, did not exist. Therefore, there is no right to a trial by jury in such cases under the present constitution, although they are `civil cases' in the sense that they are not criminal cases. The words `in all civil cases' mean only such civil actions as, before the adoption of the constitution, were triable by jury."
The Code of 1881 makes statutory provision concerning the method of trial of causes when both legal and equitable actions are involved. It provides:
"Issues of law and issues of fact in causes that prior to the eighteenth day of June, 1852, were of exclusive equitable jurisdiction shall be tried by the court; issues of fact in all other causes shall be triable as the same are now triable. In case of the joinder of causes of action or defenses which, prior to said date, were of exclusive equitable jurisdiction with causes of action or defenses which, prior to said date, were designated as actions at law and triable by jury — the former shall be triable by the court, and the latter by a jury, unless waived; the trial of both may be at the same time or at different times, as the court may direct: Provided, That in all cases triable by the court as above directed, the court, in its discretion, for its information, may cause any question of fact to be tried by a jury, or the court may refer any such cause to a master commissioner for hearing and *Page 454
report." § 2-1204, Burns' 1946 Replacement [Acts 1881 (Spec. Sess.), ch. 38, § 372, p. 240.]
An action to rescind and cancel a written instrument is one in equity. II Gavit on Indiana Pleadings Practice, p. 2031, § 318; II Watson's Works, Practice and Forms, p. 190, § 1522; 2. Johnson v. Johnson (1888), 115 Ind. 112, 17 N.E. 111; Hess v. Stout (1930), 91 Ind. App. 617, 171 N.E. 310;Stix v. Sadler (1886), 109 Ind. 254, 257, 9 N.E. 905; Lane
v. Schlemmer (1887), 114 Ind. 296, 303, 15 N.E. 454; Marsh v.Morris (1892), 133 Ind. 548, 555, 33 N.E. 290; 9 Am. Jur. 351, § 3; 9 C.J. 1159, § 4; 12 C.J.S. 943, § 2.
The incontestability clause provided "This policy shall be incontestable after two years from its date of issue, except for non-payment of premium, . . ." The policy was executed December 1, 1938, and after December 1, 1940, the appellee would not have been able to have defeated an action brought on the policy by reason of the fraudulent misrepresentations of the insured. The beneficiary could have delayed commencing an action on the policy until after this time, and in the instant case she in fact did not file her cross action to recover on the policy until March 7, 1941.
Professor Williston in his Treatise on Contracts (Rev. Ed.), § 1880, p. 5298, stated the rule as follows:
"In general, the legal remedy of the insurance company is inadequate whenever there is a clause in the policy providing that after a certain period of time the issue upon which cancellation is sought shall be incontestable, since even though the loss has occurred, there is no certainty that the beneficiary will bring action within the time during which the insurer has the right to contest the claim. . . ." *Page 455
The appellee in this case was in grave danger of losing its right to rescind the contract or successfully defend an action thereon at the time it commenced a suit for rescission and 3. cancellation of the policy, and clearly had no adequate remedy at law. If the period to contest the policy for fraud had expired the appellee would be barred from claiming relief therefor. New York Life Ins. Co. v. Adams (1930),202 Ind. 493, 176 N.E. 146; Indiana, etc., Life Ins. Co. v.McGinnis (1913), 180 Ind. 9, 16, 101 N.E. 289; Ebner, Admr.
v. Ohio, etc., Ins. Co. (1918), 69 Ind. App. 32, 48, 121 N.E. 315. Therefore, equity had properly acquired jurisdiction of the subject matter of the action.
The appellant, if she cared to do so, could have commenced an action at law on the policy after the death of the insured and before the time suit was instituted to rescind and cancel. 4. If she had done this, the appellee would have been forced to plead the fraud as a defense in an action at law, and a jury trial on the issues so formed would have been proper. NewYork Life Insurance Co. v. Skinner (1938), 214 Ind. 384,14 N.E.2d 566; Federal Life Ins. Co. v. Relias (1933),99 Ind. App. 115, 121, 185 N.E. 319; Enelow v. N.Y. Life Ins.Co. (1935), 293 U.S. 379, 79 L. Ed. 440; Adamos v. N.Y. LifeIns. Co. (1935), 293 U.S. 386, 79 L. Ed. 444, 97 A.L.R. 572.
The appellant insists that she was denied the right to a trial by jury as guaranteed by the Constitution of Indiana when the trial court refused to enter judgment on the verdict of the jury and set the same aside and entered judgment on its own special finding of facts and conclusions of law on the issues joined on the amended complaint, but the verdict of the jury and the *Page 456
special finding and conclusions of the court could not both stand at the same time.
In an action on a note and to foreclose a mortgage, which was of exclusive equitable jurisdiction prior to the adoption of the Constitution, Judge Elliott in Carmichael v. Adams (1883),91 Ind. 526, 527, 528, in denying the right to a trial by jury on the issue of indebtedness on the note, said:
"It would lead to confusion and injustice to direct separate trials in such cases. Should a jury find there was no right to recover on the note, and the court adjudge that there was a right to recover on the mortgage, there would then be a conflict not easily overcome. To be sure, the court might set aside the verdict and grant a new trial, but this, after all, would leave the control with the court, and it might just as well be there in the first instance. If, however, it be said that the court may not disturb the verdict, then we should have two conflicting decisions in one case upon the question of the defendant's indebtedness, and in that event no final result could ever be reached.
"We know of no case where it can be necessary to go through two trials before different tribunals, one the jury and the other the court, to end one suit, reach one result, and secure one decree. We are not willing to create such a case."
We feel this logic applies to the issue in this appeal.
When equity has taken jurisdiction of an equitable cause it will not be ousted of that jurisdiction by reason of the fact that subsequent legal proceedings are instituted concerning 5. the same controversy. 19 Am. Jur. 112, § 105, Annotation 73 A.L.R. 1529; 21 C.J. 134, § 117; 30 C.J.S. 414, § 67.
In New York Life Ins. Co. v. Seymour (1930), 45 F.2d 47, 49, 73 A.L.R. 1523, 1528, the court reasoned: *Page 457
"Thinking, as we do, that in the present case the court of equity acquired jurisdiction of the controversy when the bill was filed, it would be enough to say that the jurisdiction rightfully so acquired is not lost because a suit at law is later commenced. Equity jurisdiction is not lost if, after the filing of the bill, an adequate legal remedy becomes available. (Dawson v. Kentucky, 255 U.S. 288, 296, 41 S. Ct. 272, 65 L. Ed. 638), nor if the right to any equitable relief disappears (Clark v. Wooster, 119 U.S. 322, 7 S. Ct. 217, 30 L. Ed. 392.) See also Liberty Co. v. Condon Bank, 260 U.S. 235, 244, 43 S. Ct. 118, 67 L. Ed. 232. However, we are not satisfied to rest the result on such fortuitous priority. The principles of jurisdiction involved lead, we think, to the conclusion that, under this type of incontestable policy, and while the right to make this defense at law remains subject to the control of the other party, a court of equity has the right to accept, hear, and decide the issue whether the policy was fraudulently procured; and the plaintiff, having invoked a jurisdiction which was ample, and was not discretionary but absolute, has a right to have that jurisdiction exercised, rather than abdicated or suspended. Cf. McClellan v. Carland, 217 U.S. 268, 281, 30 S. Ct. 501, 54 L. Ed. 762."
Since the appellant failed to bring an action at law on the policy which would have entitled her to a jury trial on the issues, she can not now be heard to complain that equity took jurisdiction, and so taking jurisdiction, proceeded to adjudicate the rights of the parties and give complete relief. She was not deprived of any right under the Constitution of Indiana or under § 2-1204, Burns' 1946 Replacement.
The appellant also insists that the tender to her of the premiums paid by the insured plus interest was not refused by her and that the amount was insufficient. Where a tender, 6-8. otherwise valid, is properly made, the person to whom such *Page 458
tender is made cannot, by his own failure to reject the tender, prevent the rights of the tenderer from ripening into a cause of action. However, while there was evidence in the record that at the time the premiums were tendered she did not make an unqualified refusal, there was also evidence in the record that appellant's attorney did make an unqualified refusal. This refusal was binding upon the appellant. The amount tendered was paid into court for the use of the appellant at the time suit was commenced, which kept the tender good.
The appellant's brief fails to advise this court as to the alleged shortage in the amount of money tendered. The brief does admit that it was only a few cents of interest. By 9, 10. failing to point out to this court the exact amount alleged to be due the appellant, she has waived any deficiency in the amount tendered. Moreover, if the shortage was only a few cents of interest, as she admits, it fails clearly with the maxim, "De minimis non curat lex." 22 C.J. 662;Matzger v. Page (1911), 62 Wash. 170, 113 P. 254.
The judgment of the trial court is affirmed.
NOTE. — Reported in 75 N.E.2d 57. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427602/ | This is an appeal from an action brought by the appellant, the Zurich General Accident and Liability Insurance Company, Limited, against the appellee, the Dennis Trucking Company, to recover the sum of $256.86, with interest thereon, alleged to be due the appellant from the appellee for unpaid earned premiums on a workmen's compensation policy and a public liability policy.
The complaint, which was in one paragraph, was answered by appellee in two paragraphs, one of general denial and a second paragraph of answer setting up a tender of the amount admitted to be due. The issues were closed by appellant's reply in general denial, and the cause was then submitted to the court for trial. Judgment was thereafter rendered in favor of the appellant and against the appellee, in the sum of $104.92, the amount of the tender, with costs against the appellant. The only error relied upon for reversal is the overruling of appellant's motion for new trial.
The appellee, Dennis Trucking Company, was engaged in removing the Linco Tower from the top of the Merchants Bank Building in Indianapolis, Indiana. The *Page 155
appellant insurance company issued to appellee two insurance policies, one policy covering public liability insurance and the other covering workmen's compensation insurance. The premiums on said policies were based upon an audit of the payroll records of the appellee company. The duties of each man were identified, and his earnings then put in a classification. The audit, made by an employee of the appellant, and approved by the secretary and treasurer of the appellee, included some of the wages under the classification of rigging, and some under the classification of wrecking.
When the policies were cancelled on September 20, 1939, the appellee insisted that the work of removing the tower be classified as rigging, but the appellant classified the said work as wrecking. The premium rates for rigging are much lower than the rates for wrecking.
The specifications under the appellant's motion for new trial are that the decision of the court is not sustained by sufficient evidence and is contrary to law. The only question raised by these specifications is whether the work involved in this case is to be classified as rigging or as wrecking.
Representatives of the Workmen's Compensation Rating Bureau of Indiana testified that the work covered by the policies in suit should be classified as wrecking, and appellant contends that since in Indiana the Workmen's Compensation Rating Bureau is charged with the duty of classification of risks and establishments of rates under policies of workmen's compensation, the court is bound by said bureau's decision.
Section 39-3015, Burns' 1933 provides that the rating bureau under the supervision of the department of insurance and to its approval shall arrange industries of this State into classes for compensation insurance, *Page 156
and make inspections of compensation risk or risks, and apply thereto the schedule or merit rating system; and establish charges and credits under such system as are approved by the insurance commissioner; and make reports showing all facts affecting such risks to the department; and make any and all other reports required by the department for the furtherance of the provisions of the act.
The only testimony pertaining to a classification of this particular job by the Workmen's Compensation Rating Bureau is that of the witnesses Burns and Carpenter; Burns being the 1. manager of said bureau and Carpenter being employed in the capacity of a classifier, both of whom testified that they could see the work being performed at a distance, but that they didn't actually visit the job. These same witnesses also testified that the removal of the Linco sign should be classified as wrecking. Mr. Burns testified that, to the best of his knowledge, the rating bureau made an inspection of the said job to determine its classification. Subsequently this same witness testified that a request for inspection of this job was made, but that he could not say definitely that one was made.
Section 39-3025, Burns' 1933, provides that no classification for workmen's compensation insurance purposes shall be effective until approved by the department of insurance.
Since there is evidence from which the court could find that the rating bureau did not classify the job and no evidence that the department of insurance approved a classification, the lower court was not bound by the opinions of the witnesses representing the Workmen's Compensation Bureau.
One of the witnesses for the appellant in his testimony referred to a rate manual as a set of rules and *Page 157
classifications used by all casualty insurance companies, 2. having the approval of the Insurance Department or Insurance Commissioners of the various states in which it is used. However, this manual or any of the rules contained therein with respect to classifications of risks was not offered in evidence, and this court is without information as to whether such rules or classifications approved by the Insurance Department of the State of Indiana covered the particular job in question as being one of rigging or wrecking. Both litigants offered expert testimony as to how the job of removing the Linco sign should be classified. This evidence being conflicting, there was before the trial court sufficient evidence to support the decision, and the same is not contrary to law.
This opinion is not to be taken as an adjudication of the classification of the particular job in question. It determines only that there was evidence in this cause to sustain the trial court.
Finding no reversible error, judgment of the trial court is affirmed.
NOTE. — Reported in 44 N.E.2d 206. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3218036/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00340-CV
Michelle Rodriguez AND Fort Worth § From the 67th District Court
Transportation Authority a/k/a The T;
McDonald Transit, Inc.; McDonald
Transit Associates, Inc.; and
LeShawn Vaughn
§ of Tarrant County (067-258065-12)
v.
Fort Worth Transportation Authority § June 23, 2016
a/k/a The T; McDonald Transit, Inc.;
McDonald Transit Associates, Inc.;
and LeShawn Vaughn AND Michelle
Rodriguez and New Hampshire
Insurance Co. § Opinion by Justice Dauphinot
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was error in the trial court’s judgment. We render declaratory judgment
that the tort-liability limits applicable to Fort Worth Transportation Authority a/k/a
The T, McDonald Transit, Inc., and McDonald Transit Associates, Inc. apply
separately to each defendant and that the potential tort liability of LeShawn
Vaughn is not capped under the Texas Tort Claims Act. It is ordered that the
judgment of the trial court is reversed and the case is remanded to the trial court
for further proceedings.
It is further ordered that Appellees Fort Worth Transportation Authority
a/k/a The T; McDonald Transit, Inc.; McDonald Transit Associates, Inc.; and
LeShawn Vaughn shall jointly and severally pay all of the costs of this appeal, for
which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By _/s/ Lee Ann Dauphinot______________
Justice Lee Ann Dauphinot | 01-03-2023 | 06-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427603/ | This is a second appeal by the employer, appellant, from an award of the Full Industrial Board, granting compensation to appellee. Hayes Freight Lines v. Martin (1948),118 Ind. App. 139, 77 N.E.2d 900.
Appellee is the widow and sole dependent of James E. Martin, who was killed when he drove one of appellant's trucks upon the Pennsylvania Railroad tracks, where he was struck and instantly killed by a railroad engine. *Page 99
The sole issue for determination was raised by appellant by way of special answer predicated on § 8 of the Indiana Workmen's Compensation Act (Acts of 1929, ch. 172, § 8; § 40-1208, 1. Burns' 1940 Replacement) and § 47-2114, Burns' 1940 Replacement. Section 8 provides:
"No compensation shall be allowed for an injury or death due to the employee's . . . commission of a felony or misdemeanor . . . The burden of proof shall be on the defendant."
The pertinent parts of § 47-2114, Burns' 1940 Replacement, pertaining to this case provide as follows:
"Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty (50) feet but not less than ten (10) feet from the nearest track of such railroad and shall not proceed until he can do so safely, when: . . .
"(c) A railroad train . . . approaching within approximately one thousand five hundred (1,500) feet of a highway crossing emits a signal audible for such distance and such train, by reason of its speed or nearness to such crossing, is an immediate hazard.
"(d) An approaching train is plainly visible and is in hazardous proximity to such crossing."
Section 47-2304, Burns' 1940 Replacement, makes violation of this statute a misdemeanor.
The only issue in this case on this appeal is whether or not the Industrial Board's award based on its finding that plaintiff's decedent's death was not due to his commission of a misdemeanor is contrary to law because, appellant contends, it is contrary to all of the evidence of probative value in the case.
The deceased, at the time of his death, was driving a truck on a public highway which was intersected by *Page 100
railway tracks. There was evidence that the brakes were defective. The day was hazy. Appellant, who had the burden of proving that decedent committed a misdemeanor and that his death was due to the commission of the misdemeanor, brought forward testimony to the effect, and introduced photographs purporting to show, that the view of the tracks from the highway was unobstructed for a considerable distance. The engineer and fireman of the train testified that both the automatic bell and whistle were sounding. The engineer testified at one time that he started whistling, "I imagine back approximately fifteen hundred feet," and later, "back about five hundred feet from the crossing where we always start it." The engineer did not see the truck at all. The fireman testified that he did not see the actual collision, but testified that the truck did not stop.
It was the province of the Industrial Board, as the trier of the facts, to weigh the evidence of the witnesses who testified on the issue raised by appellant's special answer. It 2, 3. does not follow that there was no conflict in the evidence merely because the testimony was undisputed.Cole v. Sheehan Construction Company (1944), 222 Ind. 274,53 N.E.2d 172.
The commission of a misdemeanor does not prevent recovery of compensation if the injury was neither due to nor proximately caused by a misdemeanor. Wood v. Snyder (1925), 83 Ind. 4. App. 31, 147 N.E. 314.
In the case of Anti-Mite Engineering Co. v. Peerman (1943),113 Ind. App. 280, 46 N.E.2d 262 (Transfer denied), the employee failed to stop his truck in obedience of a stop sign, for which he was arrested, tried, found guilty, and fined. His truck was struck by an *Page 101
automobile while within the intersection. In affirming an award of compensation, the court said:
"While it is to be conceded that appellee entered the through highway in criminal violation of a traffic regulation, it does not necessarily follow that appellee's failure to stop before entering the through highway was the proximate cause of the accident and his resulting injuries."
The court further said:
"It has also been held that it is within the province of the fact-finding body to look at the succession of the events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies. Tabor
v. Continental Baking Company (1942), 110 Ind. App. 633, 38 N.E.2d 257."
It was the duty of the Industrial Board to consider all the evidence and they had the right to draw all reasonable inferences from the facts established by the testimony and 5. circumstantial evidence surrounding the accident. The weight of the evidence of the witnesses who testified that the train emitted a signal, and that the train would have been visible, was for the board to decide.
Under the circumstances and the evidence in this case, the question of proximate cause was a question of fact to be determined by the Industrial Board.
We consider the evidence sufficient to support the findings.
Award affirmed, with the statutory five per cent increase.
NOTE. — Reported in 84 N.E.2d 205. *Page 102 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427605/ | On May 11, 1927, Charles F. Hanley and J. Howard Laughlin, doing business under the name *Page 652
of Peerless Constructing Company, entered into a contract with the city of Tell City for the improvement of certain streets, and in that connection, they, as principals, with appellee insurance company as surety, executed a bond in the sum of $119,000, in which the city is named as obligee, conditioned that the construction company should faithfully and fully perform the contract according to the strict terms thereof, and expressly stipulating that "any person or persons, firm or corporation having unpaid claims for labor performed on the improvements required by this contract and required by these specifications, or for tools or materials furnished them to be used in or upon said improvement, may recover the same in an action or actions in their own names on this bond."
The Concrete Steel Company, appellant in No. 13,749 and the Truscon Steel Company, appellant in No. 13,751, each furnished said contractors steel and iron required and used in constructing said streets under said contract. The Hermitage Portland Cement Company, appellant in No. 13,750, furnished cement. Each appellant, as plaintiff, filed a complaint against said contractors and said insurance company on said bond to recover the balance owing each of them for the material so furnished and used in the construction of said streets. A demurrer was sustained to each complaint. This was followed by an appeal by each plaintiff and a consolidation of the three appeals for briefing and decision.
The complaint neither alleges that the plaintiff within sixty days after the last item of material was furnished nor at any other time, filed with the common council of the city or with any other board or office of the city, a verified statement of the amount due and owing plaintiff by said contractor. Each complaint was filed within one year from the date when the material was furnished.
Section 10284 Burns 1926, Clause 25, § 53, Acts 1905, *Page 653
p. 246, gives the common council of every city the power "to compel persons about to undertake dangerous improvements to 1. execute bonds, with sufficient surety, conditioned that the owner or contractor will pay all damages that may be sustained by any person from such work." Section 10342 Burns 1926, § 95 of the Municipal Code of 1905, Acts 1905, p. 281, gives the council authority to "impose further conditions upon bidders with regard to bond and surety, guaranteeing the good faith and responsibility of such bidders, or insuring the faithful completion of such work according to contract, or for keeping the same in repair for any length of time, or for any other purpose." This section gave the common council of the city of Tell City authority to require a bond for the protection of materialmen and laborers, as well as for the protection of the city, and each appellant was authorized to maintain an action thereon in its own name for materials furnished. Aetna IndemnityCo. v. Indianapolis, etc., Fuel Co. (1912), 178 Ind. 70, 98 N.E. 706; U.S. Fidelity, etc., Co. v. American Blower Co.
(1908), 41 Ind. App. 620, 84 N.E. 555. There is nothing in the above mentioned sections of the statute requiring that materialmen shall file with the common council, or with any other officer or representative of the city, a verified statement of his account, or a statement showing the amount due and owing on his account.
Appellee insists there can be no recovery for the reason that neither appellant, within sixty days after the last item of material was furnished, filed with an officer of the city a duplicate verified statement of the amount due and owing in accordance with the provisions of § 6122 Burns 1926, which is section 2, Ch. 173, Acts 1911, as amended in 1925, Acts 1925, p. 129.
Section 1 of the act of 1911, provides that all boards of trustees of state institutions and commissioners appointed *Page 654
for the building of state buildings, county commissioners, township trustees, or any county or township boards authorized to contract for any public building or improvement, and officers or boards of state, county or township authorized to distribute funds and pay contractors, shall withhold full payment to the contractor until such contractor has paid the subcontractors or laborers employed, all bills due and owing them, with provision that if there is not a sufficient amount owing the contractor to pay such bills in full, the same shall be paid pro rata, and that the subcontractors or laborers shall file with the proper officer or board or commission their claim within thirty days from the completion of the work. Section 2 of this act provides that in all contracts for the construction of the state, county or township buildings or other public improvements, provision shall be made in the contract for the payment of labor and subcontractors by withholding funds sufficient from the contract price to pay for all labor and material and subcontractors, and that the bond given by the contractor be conditioned so that the sureties shall be liable for labor, material, and to the subcontractor, provided such parties shall file their claims within thirty days after the labor is performed or the material furnished.
Section 3 is as follows: "This act shall not be construed as conflicting with any other laws for the protection of labor, subcontractors or materialmen, but is supplemental thereto."
In Illinois Surety Co. v. State ex rel. (1911),69 Ind. App. 450, 122 N.E. 30, 31, George B. Lynch entered into a contract for the improvement of certain highways pursuant to § 8393 Burns 1926, § 7723 Burns 1914, Acts 1905, p. 521, § 74, which provides inter alia that each bidder shall, with his proposal submit his bond payable to the state, conditioned for the faithful performance of the work, and that such bond shall be for the benefit of *Page 655
any person who shall suffer loss or damages by reason of any failure or neglect to pay for any labor or material. The contract and bond involved in that case were exacted in November, 1911, which was after the Act of 1911 went into force. The relator, a materialman, failed to file its claim with the board of commissioners within thirty days after furnishing the material. In response to the contention of the surety that there could be no recovery because the claim had not been filed in accordance with the Act of 1911, the court said: "But that procedure is not exclusive, and the failure to adopt the method certainly did not preclude the relator from obtaining judgment against Lynch. But appellant insists that because of that failure there can be no recovery against the surety on the bond. There is nothing in the statute, nor in the contract for the performance of which the bond was given, which made it obligatory on the relator to file its claim with the board of commissioners, either for its own benefit or for the protection of the surety on the bond. Since the procedure provided by the statute is a mere privilege, of which the relator might have availed itself at its option, appellant cannot escape liability merely because the relator did not intercept the contractor's pay and apply it on the claim." To the same effect see Equitable Surety Co. v. Indiana Fuel,etc., Co. (1919), 70 Ind. App. 75, 123 N.E. 22, where the court, speaking of the Act of 1911, said: "This statute was designed to further protect the parties named therein, as it expressly declares. The construction thereof contended for by the appellant would deprive these persons of rights they theretofore had, and make any right they sought to enforce dependent upon the doing by claimant of a preliminary act, filing his claim within thirty days, etc. Such a construction would turn the act in question in one for the protection of bondsmen on contractors' bonds, by having the effect of *Page 656
limiting the liability, and would in no way give additional protection to those who are, by its express terms, made within its provisions."
These two cases were followed in U.S. Fidelity, etc., Co. v.State, ex rel. (1919), 71 Ind. App. 648, 125 N.E. 420, and in Equitable Surety Co. v. State, ex rel. (1919), 71 2, 3. Ind. App. 702, 125 N.E. 202, and it is a well settled rule of statutory construction that where a statute has been construed by the courts of a state, and is thereafter substantially re-enacted, the legislature thereby adopts such construction unless the contrary is clearly shown by the language of the act. State v. Ensley (1912), 177 Ind. 483, 97 N.E. 113, Ann. Cas. 1914D, 1306. In view of this rule we hold that the legislature, when the amendatory statute of 1925 was enacted, thereby adopted the construction theretofore placed on such statute in Illinois Surety Co. v. State, ex rel., supra,
wherein it was held that the procedure provided for by that statute is not exclusive but is a privilege of which a person performing labor or furnishing material may avail himself at his option. We need not and do not rest our decision in the instant case wholly upon the above mentioned rule of construction.
In 1925, the legislature, with knowledge of the construction which this court had placed on said Act of 1911, amended sections 1 and 2 of said act, Acts 1925, p. 129, §§ 6121, 6122 Burns 1926. Section 1 as amended provides that when any public work or improvement is being made "under contract at the expense of the state or at the expense of any county, city, town, township, school corporation or any other political subdivision or commission created by law" final payment shall be withheld until subcontractors, materialmen and laborers are paid in full. The time for filing claims is extended from thirty days to sixty days, and it is provided that the *Page 657
surety of the contractor shall not be released until the expiration of one year after the final settlement with the contractor. Section 2, as amended, provides that all contracts for the construction, erection, alteration, or repair of any public building or any other public work or improvement of any character whatsoever, as provided in section 1 of the act, shall make provision for the payment of subcontractors, laborers and materialmen by withholding funds from the contract price sufficient to pay such subcontractors, laborers and materialmen; that the contractor shall execute a bond, payable to the state, conditioned among other things for the payment by the contractor of all indebtedness on account of labor rendered and materials furnished; that any person to whom money shall be due on account of labor or materials shall, within sixty days after the labor is completed or after the last item of material is furnished, file with the board, commission, etc., entering into the contract with the contractor, duplicate verified statements of the amount due and owing; that no suit shall be commenced against the sureties on such bond until after the expiration of sixty days after filing such statements; that if the claim is not paid within thirty days, suit can be commenced on the bond, and which suit shall be commenced within one year from date of filing duplicate statements; and unless suit is commenced within such period it shall be barred as to such sureties. Section 3 of the Act of 1911 was not in any way amended or affected by sections 1 and 2 as amended in 1925.
In arriving at the effect of the amendments to sections 1 and 2 of the Act of 1911, we must consider the amendments as a part of the original act, and the entire act, which includes 4. section 3, must be given the same effect as if §§ 1 and 2, as amended, had been a part of the original act, and as to all matters thereafter *Page 658
occurring, such amendments are to be taken and construed the same as if they were a part of the act as adopted in 1911. Blair v.Chicago (1906), 201 U.S. 400, 475, 26 S. Ct. 427, 50 L. Ed. 801, 832; Atz v. City of Indianapolis (1927), 87 Ind. App. 580,158 N.E. 523; Quality Clothes Shop v. Kenney (1914),57 Ind. App. 500, 106 N.E. 541; State, ex rel. v. Adams Express Co.
(1908), 171 Ind. 138, 85 N.E. 337, 966, 19 L.R.A. (N.S.) 93.
If the rule announced in these cases is correct, and we think it is, it follows that it was the intention of the legislature that sections 1 and 2 as amended in 1925, must be construed 5. so as not to conflict with any other law for the protection of labor, subcontractors or materialmen, but as supplemental thereto as declared in section 3. This can be done only by following the holding of this court in Illinois SuretyCo. v. Lynch, supra.
As heretofore indicated, the city, prior to the enactment of the Acts of 1911 and 1925, had the authority to require the contractor to give the bond which is the basis of this 6. action. Indeed, the city, in the absence of any statute, had that power. The authority given the city to cause the streets to be improved carried with it the incidental power to do all proper acts reasonably necessary to that end. As was said by this court in Title Guaranty, etc., Co. v. State, ex rel.
(1915), 61 Ind. App. 268, 283, 109 N.E. 237, 242, 111 N.E. 19: "The right to exercise such incidental power in cases where the public body is authorized to contract for improvements is sustained on the theory that thereby skilled labor and good materials may be more easily procured, and as tending to promote justice and equity among all persons contributing to the performance of the work."
Appellant, in the absence of the Acts of 1911 and *Page 659
1925, had a right to prosecute an action on the bond, and had the absolute right to prosecute such action without filing any 7. claim with the city or any officer thereof. It is clear that the legislature did not intend to deprive a material man or laborer of any legal right they theretofore had. The right theretofore given to prosecute an action on the bond was neither curtailed nor destroyed. The right given by the Acts of 1911 and 1925, in the words of the legislature, "shall not be construed as conflicting with any other laws for the protection of labor, subcontractors or materialmen, but is supplemental thereto."
There can be no doubt but that in the absence of any statute giving appellant a right of action on the bond in controversy it would have had the right to prosecute the common law action 8. of debt thereon. It is well settled that a statute in derogation of the common law, or which affects a common-law right, will be strictly construed, and will not change the common law, or common-law rights, unless an intention to effect such change plainly appears from the express words of the statute or by necessary implication. Trustees, etc., v. New Albany WaterWorks (1923), 193 Ind. 368, 140 N.E. 540, 27 A.L.R. 1274;Springfield, etc., Ins. Co. v. Fields (1916), 185 Ind. 230, 113 N.E. 756.
The Acts of 1911 and 1925 supplemented prior laws by creating a new right, a right to impound the funds, if desired by filing the claim as provided by the Act of 1911, and by filing the 9, 10. duplicate statements as provided in the Act of 1925. Instead of construing the statute to mean that a laborer or materialman must file duplicate statements of his account as contended by appellee, we hold that such party may, if he desires, file such statements and thus impound the money due the contractor. And if he exercises the right given him by filing the statements and thus impounds *Page 660
the money due the contractor, he takes such right subject to the provisions of the statute limiting and fixing the time within which an action can be prosecuted against the surety on the bond. The right to impound the funds being optional, appellant was not deprived of its right to maintain an action at law for a breach of the condition of the bond by reason of its failure to file the statements as provided in the Act of 1925.
In considering the action of the court in sustaining the demurrer to the complaint, we have assumed that the improvement in question was constructed at the expense of the city, so that appellant could have impounded the money due the contractor by filing the duplicate statements as provided by the Acts of 1925. We call attention, however, to the fact that the complaint contains no allegation as to whether the improvement is to be paid for out of assessments on the lands affected thereby or by the city. As heretofore noted the bond in question designated the city as the obligee. It was given pursuant to §§ 10284 and 10342,supra, and expressly provides that any one who furnished material to the contractors for use in the improvement might recover for the same in an action on the bond.
Our attention has been called to Zeidler Concrete Pipe Co. v.Ryan (1927), 205 Iowa 37, 215 N.W. 801. The statute there involved provides as a condition precedent to the validity of contracts for public improvements when the contract price is in excess of $1,000, that the contractor shall give a bond signed by a surety company containing certain provisions for the protection of the owner and laborers and materialmen, in addition to the provisions theretofore required to be inserted in such bonds; that no action shall be commenced on such bond after six months of the completion of the work; that a verified itemized claim should be filed within four months. Section 4 of the act declared that it should be *Page 661
construed as affording additional security to such claimants, and section 5 repealed all conflicting laws. The statute made no provision for impounding the funds. The bond, by the express words of the statute, had to be signed by a surety company instead of by individuals. The statute authorizing the bond limited the time when and fixed a condition upon which actions could be commenced on such bond, and all other laws in conflict therewith were repealed. The bond was given pursuant to that statute, and the limitation as to time and the condition precedent to a right of action became a part of the bond. The statute required a particular kind of surety, and the contract, by the express language of the statute, had no validity unless a bond with such surety was given. Queal Lumber Co. v. Anderson
(1930), 229 N.W. (Iowa) 707, is based on the same statute and is not applicable to the instant case.
Republic Iron Steel Co. v. Patillo (1926), 19 Cal. App. 316,125 P. 923, was an action upon a bond given in accordance with a general statute providing for work upon streets, etc. The original act, Statutes 1885, p. 147, covered the entire subject matter, and contained thirty seven sections. It was amended in 1899, Statutes 1899, p. 23, by adding a new section numbered 6 1/2 which required every contractor, including contracting owners, to give a bond with sureties for the protection of laborers and materialmen, and which provided that any laborer or materialman whose claim had not been paid, might, within thirty days from the time the work was completed, file a verified statement of his claim, and within ninety days after filing such claim commence an action on the bond. No provision was made in the original act limiting the time when an action could be commenced on the bond or requiring the filing of the claim. The amendment of 1899, however, became a part of the original act, and as to all things thereafter occurring *Page 662
were as much a part of such act, as if said section 6 1/2 had been in the act when passed in 1885. The only remedy a laborer or materialman had was an action at law on the bond. The statute requiring the bond fixed the time within which and the conditions upon which an action thereon could be maintained. As was held inMiles v. Baley (1915), 170 Cal. 151, 149 P. 45, a recovery could not be had on such a bond without alleging a compliance with the conditions imposed by the statute. The claimant was not given an additional right to impound the funds due the contractor. Indeed, the claimant was, by that section given no right. The right theretofore given him was limited by the amendment. It was not supplemental to other laws.
The statutes of Iowa and California are not to be compared with the statutes of this state. The statute, §§ 10282 and 10342,supra, authorizing the execution of the bond sued on in the instant case, does not require the filing of any claim, as is necessary when an attempt is made to impound the funds under section 6122, supra.
In harmony with the holding of this court in Illinois SuretyCo. v. State, ex rel., supra; and Equitable Surety Co. v.Indiana Fuel, etc., Co., supra, we hold that appellants not having exercised their right to impound the funds, were not required to file the itemized claims as provided in § 6122,supra, and that the demurrer to each of the several complaints should have been overruled.
Judgment reversed.
Nichols, J., dissents and reserves right to file dissenting opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427615/ | Appellants filed a complaint for a declaratory judgment disclosing therein that in a real estate subdivision of the City of Elkhart they owned a lot near a lot upon which appellees were about to erect a church building contrary to restrictions, applying to all lots in the subdivision, reading in part: "No building, other than for residence purposes shall be placed on property described herein. . . ." The complaint sets out a letter from appellees to appellants stating appellees' intention to begin construction on the church May 15, 1941, and adding a request, "if you have any intention of taking any legal steps to prevent the construction of said church building or its occupancy for church purposes, to proceed to take proper legal action to this end at once or at least before May 12th, 1941." This statement appears in the complaint:
"Plaintiffs further say that no remedy or mode of admeasuring damages, or provision for forfeiture or reversion is contained in any of the scores of deeds of conveyances made by said corporation, nor is there, in the chain of any title to said scores of lots so disposed of, any provision for remedy, relief, indemnity or other redress, and the only remedy the plaintiffs and other persons owning property and acquired pursuant to said general plan, scheme, and design, to preserve the residential character of said subdivision, is in equity for injunction." *Page 265
The trial court took appellants at their word and sustained a demurrer to the complaint. The cause was then continued until the first day of the next term with leave granted appellants "to amend their complaint, striking out the request for declaratory judgment, and proceeding on the theory of an injunction, or any other form of action the plaintiffs might adopt." Refusing to amend appellants suffered judgment that they take nothing and appealed to the Appellate Court. Motion to dismiss the appeal was overruled by that court and four judges failing to agree the cause was transferred here.
Appellees then filed a second motion to dismiss the appeal from which it appears that while the appeal has been pending appellants filed against appellees and McCoy Memorial Baptist Church, Inc., a complaint setting out substantially the same facts as alleged in their former complaint and adding that at the time (June, 1942) the structure was practically completed. The prayer was for a perpetual injunction against the erection or use of the building for church purposes. With appellants' brief opposing this motion to dismiss is an affidavit by one of the appellants dated March 8, 1943, stating that upon investigation within the preceding ten days he discovered that the "structure was not completed and no assemblages were, or were immediately in contemplation of being held therein; and thereupon affiant dismissed said action." In this brief appellants say they dismissed the injunction suit because it was "premature."
Appellants' wavering between the two forms of action results, it would seem, from doubt as to whether their cause of action has matured as referred to in Brindley v. Meara (1935),209 Ind. 144, 198 N.E. 301, 101 A.L.R. 682, or still is in the state of "ripening *Page 266
seeds of litigation" within the rule of Owen v. FletcherSavings Trust Building Co. (1934), 99 Ind. App. 365,189 N.E. 173. Appellants' citation of cases from other jurisdictions where declaratory judgment statutes are given wider scope than in Indiana may indicate a dissatisfaction with the rule announced inBrindley v. Meara, supra. We are satisfied, however, with the reasoning of that opinion which this court since has consistently followed. The latest case is Thompson et al. v. Travis et al.
(1943), ante p. 117, 46 N.E.2d 598, wherein the same attorney who wrote the briefs of appellants herein unsuccessfully sought a declaratory judgment.
There can be no doubt that appellants had an available remedy by injunction. Cases sustaining decrees enjoining violation of restrictive covenants are numerous. Many are cited in a 1. note in 99 A.L.R. 541.
"The complainant may institute his bill when the erection of a prohibited structure is threatened without waiting for its actual construction." 2. 14 Am. Jur., Covenants, Conditions and Restrictions, § 339, p. 666.
"The fact that no violation has been actually committed is not essential to give a court of equity jurisdiction to relieve against a breach of the 3. covenant, but it will be sufficient for the interference of the courts that a breach is intended." 32 C.J., Injunctions, § 321, p. 207.
See also Kenwood Land Co. v. Hancock Investment Co. (1913), 169 Mo. A. 715, 155 S.W. 861; Guilford County et al. v.Porter (1914), 167 N.C. 366, 83 S.E. 564.
The complaint for declaratory judgment shows that appellees had purchased the material for construction *Page 267
of the church and given appellants express notice by the 4. letter above quoted of their immediate intention to build. This we think was sufficient ground for invoking the jurisdiction of a court of equity to enjoin the proposed construction. Certainly appellees would have been in no position to defend against such an action on the ground that it was prematurely filed.
Since the remedy of injunction was available to appellants the trial court could properly hold that they were not entitled to a declaratory judgment. Brindley v. Meara, supra. This 5. was done by sustaining the demurrer one ground of which was lack of jurisdiction of the subject-matter. The same result would have been attained by dismissing the action. Inasmuch as no relief other than declaratory was prayed it would seem to make no difference which method was used since the correct result was reached. Appellants were left free to and did pursue their proper remedy by filing an injunction suit. Neither the merits of that suit nor the effect of its dismissal can be considered in this appeal.
The motion of appellees to dismiss is on the ground that the questions presented are moot. This is not true. The right of appellees over the objection of appellants to build a 6. church on the lot and to use it for assemblage has not been decided. Since the controversy still exists the question is not moot. We think the appeal should not be dismissed but that the judgment should be affirmed.
Judgment affirmed.
NOTE. — Reported in 47 N.E.2d 148. *Page 268 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427636/ | Appellant was convicted of operating an automobile while under the influence of intoxicating liquor, his punishment being fixed at a fine of $50, and imprisonment at the Indiana State Farm for thirty days.
He contends the court erred in refusing to allow Maurice C. Goodwin to testify concerning his general reputation for morality in the community in which he resided. Appellant 1, 2. testified as a witness in his own behalf concerning the circumstances of his arrest, and that he was not under the influence of intoxicating liquor at the time mentioned in the affidavit, as testified to by a number of the State's witnesses. Later, he called a number of witnesses, including Goodwin, who testified that his general reputation in the vicinity where he resided for sobriety was good. No attempt was made by the State to impeach appellant, or to attack his credibility as a witness, by cross-examination or otherwise, and there is no claim that the testimony as to his general moral character was offered for the purpose of affecting his credibility as a witness. His contention is that testimony as to his general moral character *Page 631
was admissible without reference to, and without being limited to, the particular trait of character involved in the crime charged. This contention cannot prevail. A defendant in a criminal case may introduce evidence of his general moral character, but such proof must be limited and confined to the trait of character involved in the charge for which he is being tried. The Supreme Court, in discussing this subject, said: "If a defendant, when put upon trial for an alleged crime, has a right to prove his good character in all respects and in all traits, without limitation to the traits supposed to render the commission of the crime improbable, and gives such evidence, it would seem to follow that the State would then have a right to attack that character in as broad a sense as that in which it was sustained by the evidence given by the defendant. The State would have the right, in other words, to disprove the case made by the defendant as to character, in all its parts. Nothing occurs to us that the defendant may prove by way of defense which the State may not disprove. Hence, if, on the trial of a woman for larceny, she legally gives evidence of her general good character, without limitation, that evidence would include good character as to chastity, veracity, etc., as well as honesty. The State, it would seem, could then attack the case made by her in all its parts, and show that her general character for chastity, veracity, etc., as well as honesty, was bad. The law does not contemplate the raising of such irrelevant issues." State v. Bloom (1879),68 Ind. 54, 57. "The rule is that when a party to a criminal or other case is entitled to prove his good character, it is limited to the trait of character involved in the crime charged. But such evidence must be limited to proof of such person's general character as to such trait as it existed before the alleged offense or ante litem motam." In re Darrow (1910), 175 Ind. 44, 92 N.E. 369. To same effect, see Walker v. *Page 632 State (1885), 102 Ind. 502, 1 N.E. 856; Kahlenbeck v. State
(1889), 119 Ind. 118, 21 N.E. 460.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4059778/ | PD-0445-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/13/2015 4:26:59 PM
Accepted 10/14/2015 10:40:44 AM
ABEL ACOSTA
CLERK
IN THE
COURT OF COURT OF CRIMINAL APPEALS OF TEXAS
______________________________
No. PD-0445-15
_______________________________
October 14, 2015
THE STATE OF TEXAS, Appellant
v.
DAVID FREDERICK CARY, Appellee
__________________________________________________________________
On Appeal from the Court of Appeals, Fifth District of Texas at Dallas
Court of Appeals No. 05-13-01010-CR
__________________________________________________________________
APPELLEE’S NOTICE OF COUNSEL’S
APPEARANCE FOR ORAL ARGUMENT
John M. Helms
Texas Bar No. 09401001
BRODEN, MICKELSEN, HELMS &
SNIPES, LLP
2600 State Street
Dallas, Tx 75204
Tel: (469) 951-8496
Fax: (214) 720-9594
[email protected]
ATTORNEY FOR APPELLEE,
DAVID FREDERICK CARY
NOTICE OF APPEARANCE—Page 1
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL
APPEALS:
Undersigned counsel will appear for oral argument in this case on November
4, 2015 at 9:00 a.m.
Respectfully submitted,
____/s/ John M. Helms____________
John M. Helms
Texas Bar No. 09401001
BRODEN, MICKELSEN, HELMS &
SNIPES, LLP
2600 State Street
Dallas, Tx 75204
Tel: (469) 951-8496
Fax: (214) 720-9594
[email protected]
ATTORNEY FOR APPELLEE,
DAVID FREDERICK CARY
NOTICE OF APPEARANCE--Page 2
CERTIFICATE OF SERVICE
Pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate Procedure, I
certify that if the email address of the attorney designated below is on file with the
electronic filing manager, a true and correct copy of the foregoing notice was
served electronically by that electronic filing manager, on the following attorney
via electronic mail:
Joseph P. Corcoran
[email protected]
I also hereby certify that if the email address for the designated attorney is
not on file with the electronic filing manager, a true and correct copy of the
foregoing pleading was served by email addressed to:
Joseph P. Corcoran
[email protected]
____/s/ John M. Helms____________
John M. Helms
NOTICE OF APPEARANCE—Page 2 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427679/ | This is an action instituted by appellee against appellants to set aside, as fraudulent, a conveyance of real estate from appellant John D. Kennedy to appellant Harry Theodor, and a conveyance of the *Page 492
same real estate from appellant Harry Theodor to appellant Magenta Kennedy, the wife of appellant John D. Kennedy.
The cause was submitted to the court for trial on issues formed by an amended complaint in one paragraph and an answer in general denial. The complaint was attacked by demurrer, and the demurrer was overruled.
Upon request, duly made, the court made a special finding of facts, stated one conclusion of law which was favorable to appellee, and rendered judgment that said deeds be set aside. Appellants filed a motion to modify the judgment, which motion was overruled. Thereupon appellants filed a motion for new trial, which was overruled, and appellants perfected this appeal assigning as errors relied upon for reversal; (1) Error in overruling appellants' demurrer to the amended complaint; (2) error in overruling appellants' motion for new trial; (3) error in the conclusion of law; (4) error in overruling appellants' motion to modify the judgment.
The assignment of errors does not set forth the overruling of the demurrer to the amended complaint as a specification of error; and appellants' brief does not discuss the 1, 2. alleged error in overruling appellants' motion to modify the judgment; therefore, for the reasons indicated, we hold that no questions are presented for review by this court under said two alleged errors.
The only cause for new trial set forth in the motion therefor, and discussed in appellants' brief under "Propositions, Points and Authorities" is that the decision of the court is not sustained by sufficient evidence.
The facts, as found by the court, are, in effect, as follows:
On November 18, 1926, the Broadway Savings Trust *Page 493
Company, a Missouri corporation, filed its complaint in the U.S. District Court for the Northern District of Indiana, Hammond Division, to recover judgment against appellant John D. Kennedy on a promissory note which was signed and executed by said John D. Kennedy to said Broadway Savings Trust Company.
On July 2, 1927, the said John D. Kennedy executed and delivered to appellant Harry Theodor a deed covering the real estate in question.
On July 26, 1927, Theodor executed a deed, covering said real estate, to appellant Magenta Kennedy, wife of appellant John D. Kennedy.
On March 30, 1929, said Broadway Savings Trust Company recovered judgment in said suit against appellant John D. Kennedy, in the sum of $13,517.18 in said U.S. District Court.
Appellee Lubro Company, Incorporated, is a Missouri corporation. On December 23, 1929, said Broadway Savings Trust Company executed and delivered to appellee Lubro Company, Incorporated, an assignment of said judgment, in the form of a written instrument executed and acknowledged by officers of said corporation, before a notary public. This suit was instituted February 21, 1930.
The court further found that said conveyances "were made with intent to hinder, delay and defraud the creditors of the defendant John D. Kennedy, as in the complaint alleged and particularly the Broadway Savings Trust Company, the assignor of the plaintiff herein," and "that at the time of the conveyances . . . the defendant, John D. Kennedy, did not have, and at the time of bringing this action he did not have sufficient other property subject to execution to pay the debt of this plaintiff owing by him."
In support of appellants' contention that the decision is not sustained by the evidence, appellants insist that *Page 494
the evidence does not show that, on the date of said 3, 4. conveyances, and on the date this suit was filed, appellant John D. Kennedy did not have sufficient other property, subject to execution, to pay said judgment.
Such evidence is essential to sustain the decision in the instant case, because "a creditor is not authorized to interfere with any disposition which his debtor may make of his property so long as he (the creditor) is not injured thereby." Brumbaugh v.Richcreek (1891), 127 Ind. 240, 26 N.E. 664, 22 Am. St. Rep. 649; See also Andrews v. Peters (1924), 82 Ind. App. 200,145 N.E. 579.
We have searched the record for such evidence with a view of affirming the judgment. We found evidence introduced by appellee as to the value of some of appellant John D. Kennedy's property on those dates, but the evidence indisputably shows that appellant John D. Kennedy owned other property on said dates, as to the value of which appellee introduced no evidence. Appellants introduced evidence as to the value of said other property. The evidence most favorable to appellee as to the value of all of John D. Kennedy's property on said dates, does not show that on said dates he did not have sufficient other property, subject to execution, to pay said judgment. Therefore the judgment should be reversed.
Other questions are presented, but it is not likely that they will arise in a new trial of this cause, and therefore we will not discuss them.
Judgment reversed with instructions to sustain appellants' motion for new trial.
Curtis, P.J., not participating. *Page 495 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427680/ | Appellant, charged by indictment, was tried before a jury and convicted in the court below of involuntary manslaughter. Section 2416 Burns 1926. His motion for a new trial was overruled and error is here assigned on that ruling. The causes specified in the motion covering the various contentions of appellant are: Error of the court in overruling defendant's motion to require the state to first examine the jury on its voir dire; verdict not sustained by sufficient evidence; and verdict contrary to law.
As to the first specification, appellant insists that the action of the court in ordering him to first proceed with the voir dire examination of the jury required him "to 1, 2. assume the burden of proof," in that it compelled him "to make a statement of the case *Page 425
for the information of the jurors before there had been a presentation against the defendant by the state." This question was presented, supported by the same argument and authorities, considered and decided contrary to appellant's insistence inHicks v. State (1927), 199 Ind. 401, 156 N.E. 548. We have again examined carefully our ruling in the Hicks case without finding any reason to change our views therein expressed. It is true that if appellant, by being first called upon to make a voir dire examination of the jury, thereby assumed any burden regarding the issue to be tried, his position might have some merit. The impaneling of a jury is not a part of the trial (Bush v. State (1920), 189 Ind. 467, 128 N.E. 443) in the sense that the burden of proof is cast upon either party to the action. Evidence or proof is that which is submitted to the jury after it is sworn to try the cause. At the time appellant was tried, the order in which the trial should proceed was fixed by statute. Sec. 2301 Burns 1926. By requiring appellant to first proceed to examine the jury, the court exercised its discretion. As we see this case, and being fully cognizant of the force of appellant's argument, we are not persuaded to hold that appellant was harmed by the court's ruling.
On the question of sufficient evidence to sustain the verdict, we look only to the evidence most favorable to the state (Grose
v. State (1927), 199 Ind. 182, 156 N.E. 389), and by so 3-5. doing it appears that appellant, between nine and nine-thirty in the evening, was driving east on the Rockville Road leading into Indianapolis from the west in a Nash single-seated roadster. With him were Bertha Wright and Betty Campbell, all seated on the single seat of the car. Eighteen feet of the width of the road was paved. Jacob Tillman, with his wife and three children, was driving his Ford touring car west on the same road. *Page 426
When Tillman was about 400 feet east of a 66-degree curve in the road, appellant, on the left side thereof, came around it and toward Tillman, continuing on the left-hand of the center of the road at a speed of from forty-five to fifty miles per hour. Tillman was on the right side of the road driving at a speed of from twelve to fifteen miles per hour when the left front wheel of each car collided, tearing off the left front wheel and front fender, jammed the running board into the rear wheel, springing the front axle, bending the radius rod of the Tillman car, and turning it crosswise the road headed to the south, the front of which was about two feet south of the center of the road. The Nash car proceeded east about one hundred thirty feet when it lost its left front wheel, then turned to the left side of the road down a small bank, continuing through a woven wire fence, knocking down a six-inch cedar post, two posts supporting a signboard, two dogwood trees the size of a man's wrist, and down a bank some twelve feet into a ravine, finally striking a stump with such force that it was completely turned around. Bertha Wright was thrown from the car receiving a fractured skull and when picked up was bleeding at the mouth and ears and was dead. Appellant says the collision of the cars caused him to lose control of his car.
At the time of this alleged homicide, we had a statute in this state limiting the speed of automobiles (Sec. 10140 Burns 1926) and providing penalties for the violation thereof. We infer from the evidence that this homicide occurred without the limits of any city, town or village, in which case the operating of any motor vehicle at a greater speed than thirty-five miles per hour is declared by the statute to "be prima facie evidence that the person driving or operating such motor vehicle or motor bicycle is running at a rate of speed which is greater than is reasonable and prudent." *Page 427
The state, as a part of its original case, introduced evidence that appellant, at the time of the collision, was speeding his car at from forty-five to fifty miles per hour. This evidence, if undisputed, would establish a fact which the legislature, by the statute last mentioned, has declared sufficient to raise a presumption of law which would serve to make out a prima facie case that appellant was operating his car at an unreasonable and imprudent rate of speed. But appellant, in his defense, corroborated by Miss Campbell, testified that at the time of the collision of the two cars he was driving his car at a speed of from thirty to thirty-five miles per hour. The foregoing noticeably conflicting evidence as to the speed appellant was driving abrogated the legislative presumption, or, in other words, the basis supporting a prima facie case disappeared, thus leaving the case in that particular to the jury to be determined, like any other case, upon the weight of the evidence. A presumption cannot be substituted for proof of an independent and material fact. Kilgore v. Gannon (1916), 185 Ind. 682, 114 N.E. 446, L.R.A. 1917E, 530; Cleveland, etc., R. Co. v. Wise
(1917), 186 Ind. 316, 116 N.E. 299; Moore v. Ryan (1919),188 Ind. 345, 348, 123 N.E. 642; Welty v. State (1913),180 Ind. 411, 100 N.E. 73; Bates v. Prickett (1854), 5 Ind. 22, 61 Am. Dec. 73; 1, Elliott, Evidence, § 93; 2, Chamberlayne, Mod. Law of Ev., §§ 1021, 1085; Jones, Com. on Ev., § 10.
Our conclusion on the sufficiency of the evidence must be determined without reference to the statutory prima facie declaration. Hence, the remaining question, and the only one necessarily involving the evidence, is: Does the evidence warrant the jury in finding that appellant, at the time of the collision, was driving his car at a high and dangerous rate of speed, and under circumstances showing a wanton and reckless disregard *Page 428
of the rights and safety of others, thereby causing the death of Bertha Wright?
The legislature of this state, by § 2416 Burns 1926, in defining involuntary manslaughter, used the language defining the crime at common law. Blackst. Comm., Book 4, p. 191. "Unlawful," as applied to the commission of some unlawful act, is defined as "That which is contrary to law." Bouvier's Law Dict., or "implies that the act is done or not done as the law allows or requires." Anderson's Law Dict. And the word "act" — "to produce an effect." Webster.
In Smith v. State (1917), 186 Ind. 252, 258, 115 N.E. 943, 946, this court, in speaking of the sufficiency of the third count of the indictment charging involuntary manslaughter, said: "It further charges that appellant, under such conditions (the thoroughfare where the accident occurred was much frequented by pedestrians and vehicles), unlawfully drove his machine over said street in a reckless and wanton manner, without regard for the safety of others, and at the high and reckless rate of speed of twenty-five miles an hour. This count of the indictment charges appellant with gross carelessness in the operation of his automobile, and is clearly sufficient under the rule that a negligent act which shows a wanton and reckless disregard for the rights and safety of others, and which causes the death of another, will constitute manslaughter." Citing cases.
The words "unlawful act," used in the statute defining involuntary manslaughter, comprise, as they did at common law, more than an act prohibited by positive statute. As said in 6. Dunville v. State (1919), 188 Ind. 373, 375, 123 N.E. 689: "One may be guilty of involuntary manslaughter if he conducts himself, in a given set of circumstances, with such willful disregard for the rights of others as to show a *Page 429
wanton recklessness as to the life and limb of other persons. It is also true that, if he is acting in violation of a positive statute under circumstances that show a reckless disregard for the life and limb of others, and this violation is the proximate cause of the death, the law then implies an intent to do the injury and makes him guilty of involuntary manslaughter."
The indictment in this case charges not only the driving of the automobile at a greater rate of speed than that permitted by law, but also at a speed "greater than was reasonable and prudent having regard to the traffic and the use of said highway then and there existing, and which said rate of speed was then and there such as to endanger the life and limb of any person using said highway," and as the "direct result of the unlawful, reckless and wanton manner and rate of speed at which he, the said Mike Minardo, then and there operated said motor vehicle on said public highway," one Bertha Wright, then and there a guest in said motor vehicle, was thrown out of it and onto the ground, thereby fracturing her skull and inflicting mortal wounds upon her body, from which mortal wounds she then and there died.
Appellant insists that the charge upon which he was tried is limited to the alleged unlawful speed as the proximate cause of the death of Bertha Wright, and that there is no 7, 8. evidence showing that Miss Wright would not have been killed had he been driving at a lawful rate of speed. In our opinion the charge is not limited to the alleged violation of the speed limit statute, but it especially covers the driving of an automobile under circumstances showing a willful and reckless disregard for the life and limb of other persons. The traffic on the road; the driving experience of appellant; whether or not the three seated in the car interfered with the driver's control thereof; the *Page 430
position of the car at the time of the collision with reference to the center of the road; the weight of the car, the condition of its brakes and the effectiveness of its headlights were evidentiary circumstances proper to be considered in determining the essential fact of whether or not appellant was guilty of wanton and reckless driving proximately causing the death of Bertha Wright. It is true the mere violation of a positive statute would not necessarily be sufficient to convict one charged with some other offense, although both offenses may be closely associated, but such violation, as here charged, is a circumstance to be considered in connection with all other facts and circumstances tending to show a willful and reckless disregard for the rights, life and limb of other persons.
Having determined that the instant case tendered the issue of willful and reckless conduct, a principle of law especially applicable here was pronounced in the case of Potter v. 9. State (1904), 162 Ind. 213, 217, 70 N.E. 129, 131, 64 L.R.A. 942, 102 Am. St. Rep. 198, 1 Ann. Cas. 32, as follows: "A person will not be permitted to do an act which jeopardizes the life and safety of another, and then, upon plea of accident, escape liability for a homicide involuntarily resulting from his reckless or careless act of conduct." Citing cases.
The crime charged and to be proven in this case was involuntary manslaughter. In order to support the charge the death must have resulted from the willful and reckless acts of appellant, 10. implying an indifference to consequences which may ensue equivalent to a criminal intent. People v. Barnes
(1914), 182 Mich. 179, 148 N.W. 400; Smith v. State, supra;Dunville v. State, supra; State v. Dorsey (1888),118 Ind. 167, 20 N.E. 777, 10 Am. St. Rep. 111.
In the absence of a showing to the contrary we must *Page 431
assume that the instant case upon the evidence was submitted to the jury upon the theory of the law outlined in this 11-13. opinion. Such being the case, and since there was evidence before the jury tending to prove all the material facts to sustain the verdict which was approved by the trial court in passing upon the motion for a new trial, (Lowery
v. State [1925], 196 Ind. 316, 321, 147 N.E. 151, 148 N.E. 197), we would not therefore be justified in disturbing the judgment of the court below, for to so do would require us to weigh the evidence, a function the settled law has forbidden.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427681/ | On August 4, 1922, appellant and her husband borrowed of appellee, Merchants Loan and Savings Association, of Terre Haute, Indiana, the sum of $4,800 upon their written obligation of the following tenor:
"I promise to repay to MERCHANTS LOAN AND SAVINGS ASSOCIATION, of Terre Haute, Vigo County, Indiana, the sum of Forty Eight Hundred Dollars, borrowed on forty eight shares of stock in said Association which sum, with interest at the rate of seven per cent per annum from date until paid, payable semi-annually, I agree to pay said Association, in installments of not less than $ forty eight dollars per month, payable on or before the second Saturday of each month, together with Attorney's fees, all without relief from valuation and appraisement laws; and said payments shall continue until the payments of principal and the dividends declared by said Association on said 48 shares of stock shall equal the amount of this obligation, together with any sum *Page 610
or sums of money which may hereafter be withdrawn after having been paid to and credited by said Association as dues upon said shares of stock.
"Carl C. Fuqua Stella Fuqua"
and as security mortgaged to appellee certain real estate in Terre Haute, which at that time was owned by appellant and her husband as tenants by the entirety.
Appellant's husband, Carl C. Fuqua, was at the time the owner and operator of a grocery store under the name and style of Sunshine Grocery and previously had operated a small chain of restaurants.
On March 22, 1925, appellant and her husband, for the purpose of paying delinquent merchandise accounts of the husband obtained the sum of $500 from appellee loan and savings association and appellee's check in this amount was issued to Carl C. and Stella Fuqua and the sum of $500 so obtained was charged against credits due the Fuquas by reason of moneys previously paid in by them. No additional security was taken by appellee in the form of a new note or mortgage or otherwise. The appellee's check in this amount bears the endorsement of both appellant and her husband.
On March 7, 1927, appellant's husband obtained from appellee association the sum of $600 and appellee's check in this amount was issued to Carl C. Fuqua. In this instance, likewise, no additional security was taken by appellee. This second check bears the sole endorsement of Carl C. Fuqua. Appellant contends this second sum of money was obtained without her knowledge or consent.
Appellees Harry and Nellie V. Kerns took title to the mortgaged real estate April 28, 1934, by virtue of deed executed by the Fuquas for the purpose of expediting a property settlement between the Fuquas whose action for divorce was then pending. *Page 611
Appellant and her husband were divorced on April 30, 1934, and appellees Kerns continued to hold said real estate in trust for appellant until July 15, 1942, when they coveyed it to her.
On July 31, 1942, appellee association filed its action in foreclosure. Appellant, by her pleadings, asserts that the mortgage indebtedness has been paid in full on the ground that appellee association arbitrarily charged against the mortgage debt the said sums of $500 and $600, without right, and that said charges with interest, amount to more than the amount claimed to be due on the mortgage. Appellees Kerns filed a disclaimer.
The cause was tried to the court resulting in judgment for appellee association in the sum of $3,687.94 and for foreclosure.
Error assigned is the overruling of the motion for new trial which challenges the legality of the decision, the sufficiency of the evidence and asserts error in the assessment of the recovery in that the amount thereof is too large.
Appellee Carl C. Fuqua makes no assignments and files no briefs.
The propositions thus presented here for consideration raise only the question as to whether or not appellant is chargeable with either or both of the amounts (plus interest) obtained from appellee association, as herein previously set out.
This question, applied to the instance of the first sum of money, i.e., that of $500, is easily resolved, even in the face of appellant's argument that there is no legal authority by 1. which the amount secured by an existing mortgage can be increased by mere advancement of additional moneys. In this instance no additional money was advanced, nor was the *Page 612
amount secured by the original mortgage increased. Appellant and her husband, over a period of years, had paid in to appellee association a certain amount of money which stood to their credit upon the books of the association. The parties merely withdrew $500 of this money thus reducing such credit by this amount. By the terms of their written obligation they agreed to repay with interest "any sum or sums of money which may hereafter be withdrawn after having been paid to and credited by said Association as dues upon said shares of stock." Such a transaction, though now precluded by the operation of the present law governing building and loan associations, was a common practice under the statutes prevailing at the time and was in no wise prohibited. See Acts 1911, ch. 151.
The second transaction involving $600, presents a more complicated problem. In this instance the husband alone obtained the money. Appellee's check was issued to him as sole payee 2. and bears his endorsement solely. The only evidence before us as to the disposition of this money is the testimony of Carl Fuqua who stated that no part of it was deposited in bank; that all of it, however, was used in paying merchandise accounts of the grocery store, which, as appellee association admits by its brief, was operated by him as an individual and not in partnership with his wife. His bank account, wherein he deposited money taken in from the grocery store was carried in his individual name from about year prior to the date the sum of $600 was obtained until the time of the divorce.
To this point the evidence constrains us to the view that the debt created by the withdrawal of this sum was the individual debt of the husband, or, more exactly, that that portion of the total mortgage debt *Page 613
created by the reduction, in that amount, of credits against it, caused by such withdrawal, was his debt individually.
It is obvious that such a reduction of credits effected a corresponding reduction of the interest, or equity, of the mortgagors in the mortgaged real estate. In a tenancy by 3. the entirety the wife (as well as the husband) is seized of the entire estate per tout and not per my. Dodge v.Kinzy et ux. (1884), 101 Ind. 102; Baker v. Cailor (1934),206 Ind. 440, 186 N.E. 769. It follows logically therefore that in the instant case there was a reduction of the wife's interest in the real property held by entirety and that such reduction was accomplished by the act of the husband individually.
It has been the uniform line of decisions in this State that a wife's interest and rights in property held by the entirety cannot be taken from her without her consent because of 4. some profit or benefit flowing to her husband. Dodge v. Kinzy, supra; French v. National Refining Co. (1940),217 Ind. 121, 26 N.E.2d 47.
Evidence most favorable to the appellee discloses that the appellant worked in the grocery store with her husband; that she had access to the cash register and to the bills against the store. Appellee Fuqua so stated in his testimony and further stated: "the money in the store was free to her hand the same as mine, was just as much hers as mine; she had no income other than what came out of the store." In another portion of his testimony he stated that before he withdrew the $600 he told her that he would have to get some more money to straighten up some of the back bills against the store and that afterward, while checking certain accounts she was told "we are getting our heads above *Page 614
water by getting this stuff straightened away." This witness testified also that his wife knew he obtained the $600 and knew what it was to be used for; that she knew the mortgage was on the property when accepting it in settlement of alimony and that she was to assume the unpaid portion thereof; that the loan book from appellee association was kept in a place easily accessible to his wife.
Upon the state of facts so disclosed appellee association contends, first, an estoppel, (a) by acceptance of benefits after full knowledge of the transaction, (b) by acquiescence, (c) by laches; second, agency, in that Carl C. Fuqua in the withdrawal of the $600 acted, not only for himself but also as agent for his wife.
We cannot believe that the mere silence of appellant, when informed by her husband that he would have to get some more money, and her failure to protest or object to such a vague 5. and indefinite statement could in any wise be construed as an acquiescence or held sufficient of itself to raise an estoppel. French v. National Refining Co., supra. Nor are we able to perceive what benefits flowed to the wife out of the $600 transaction by the acceptance of which she has precluded herself. The Sunshine Grocery was owned and operated by Carl C. Fuqua as an individual. The assets thereof were declared for tax assessment in his individual name. All merchandise bought for sale therein was billed to him as an individual. There is absolutely no showing that the wife shared in the profits and appellee association by its brief waives the issue of partnership. Though the witness Fuqua insisted that the money in the store was free to her hand and that she had free access to the cash register there was no evidence whatsoever that any proportion of the $600 ever came into her hands for her own personal use or *Page 615
benefit nor that she, at any time, ever took any amount or amounts of the store's money for her own use except a general showing that her clothing and necessary household expenses were paid for out of store funds. As a married man Fuqua was under a legal obligation to support his wife. It appears that she worked in the store without compensation other than her living and necessities which Fuqua was bound under the law to furnish her in any event. We cannot perceive that the payment of the husband's merchandise accounts conferred any benefits on his wife in addition to those which were rightfully hers by virtue of the marital relationship. Under the circumstances certainly there can be no contention that appellant could have been sued upon the merchandise accounts nor that levy could have been made upon the property held by the entirety in the event of judgment thereon against Fuqua. Thus the payment of these accounts in no manner tended to conserve the wife's interest in the realty nor to prevent the dissipation thereof in part or in whole.
One of the essential elements of an estoppel of the character here urged by appellee is a lack of knowledge on the part of him attempting to raise it. Such a party must show himself 6-8. destitute of knowledge or of convenient and available means of acquiring such knowledge. Appellee has made no such showing. Even the record of prior transactions speaks against it on that point. It must, or should have been, apparent from the beginning that the withdrawal of this money was not consonant with sound business and financial practice and that its loss would be the result of appellee's own negligence. It permitted, without inquiry, the withdrawal of this sum of money by the husband alone under such circumstances as should have put an ordinarily prudent person upon inquiry, *Page 616
appellee being at the time in full knowledge of all the facts and circumstances prevailing. Nor does it aid appellee's cause to concede, which we do not, that appellant, likewise, had full knowledge, for if both parties have the same means of ascertaining the truth there can be no estoppel. Geisendorff v.Cobbs (1911), 47 Ind. App. 573, 94 N.E. 236; Anderson et al.
v. Hubble (1883), 93 Ind. 570; The Markland Mining andManufacturing Co. v. Kimmel et al. (1882), 87 Ind. 560;Wilkerson v. Wood (1924), 81 Ind. App. 248, 143 N.E. 166;Scranton v. Stewart et al. (1875), 52 Ind. 68; Long v.Anderson (1878), 62 Ind. 537; Bryan v. Uland et al. (1884),101 Ind. 477; International Harvester Co. v. Holley, Sheriff
(1939), 106 Ind. App. 329, 18 N.E.2d 484; Smith v. Yost
(1920), 72 Ind. App. 628, 125 N.E. 73; see also 21 C.J. 1129, 1131, § 131, § 132.
So in the case of Coats v. Gordon et al. (1896),144 Ind. 19, 41 N.E. 1044, 42 N.E. 1025, decided under a law then prevailing which prohibited a married woman from becoming surety, it was held that she was not estopped from asserting the invalidity of a mortgage upon property held by the entirety where she knew same was invalid and failed to inform the mortgagee of her interest in the realty, the principle therein enunciated being that the mortgagee, in contemplation of law, also knew of its invalidity. In that case the court said:
"It is true that a married woman may be bound by an estoppel in pais, but since the duty rests upon the person dealing with her to inquire of her, or from some source which will bind her, as to her relations to the contract . . . such person is in no position to claim an estoppel when he has neglected to so inquire. . . ." *Page 617
We are of the opinion that this principle should prevail in the instant case. See also Wright v. Fox (1914),56 Ind. App. 315, 103 N.E. 442.
With the element of partnership waived appellee's proposition presenting the theory of agency is borne out neither by the pleadings nor by the evidence. The cause proceeded in the 9. trial below on the theory of estoppel. That theory must prevail here. Reserve, etc., Ins. Co. v. Dulin, Rec.
(1919), 69 Ind. App. 363, 122 N.E. 3; Lewis v. Stanley et al.
(1897), 148 Ind. 351, 45 N.E. 693, 47 N.E. 677; Crabb v. Orth
(1892), 133 Ind. 11, 32 N.E. 711.
Judgment reversed as to said amount of $600 plus interest and attorney fees and insofar as it includes same; and affirmed as to the remainder.
NOTE. — Reported in 54 N.E.2d 287. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427692/ | Catherine Massie in her lifetime took out and carried three industrial policies of insurance upon her life, with no beneficiary named therein, with the Prudential Insurance Company of America, and, upon her death, the Prudential Insurance Company paid the proceeds due under the "Facility of Payment" clause in each policy to the appellee, Elza Massie.
The appellant was appointed administratrix of the estate of Catherine Massie, was duly qualified, and made demand upon appellee, Elza Massie, for the proceeds of said insurance, to wit, $690.16, which the said appellee then and there refused to turn over to her. Hence this action was brought. Appellant, Elizabeth Smith, as administratrix of the estate of Catherine Massie, filed a complaint against appellee, Elza Massie, to recover money paid to him by the Prudential Insurance Company of America on certain policies of insurance in which no beneficiary was named therein. Answer of general denial was filed to complaint by appellee.
There was a trial by the court without a jury, with a finding for the appellee. Motion for a new trial was filed on the ground that the finding of the court was not sustained by sufficient evidence and was contrary to law. The evidence in this case was upon an agreed statement of facts between the two parties and is, in substance, as follows: "It is stipulated and agreed by and between the parties that the Prudential Insurance Company of America paid to Elza Massie under Policy 36047554, *Page 584
issued on April 27, 1914, the sum of $132; also the Prudential Insurance Company of America, paid to Elza Massie under policy 49153025, issued April 25, 1920, $255; also the Prudential Insurance Company of America paid to Elza Massie under Policy 66802869, issued April 26, 1926, $240, making a total of $690.16 paid on insurance policies issued on the life of Catherine Massie, who was the wife of Elza Massie, the defendant herein, at the time of the issuance of said policies; that photostatic copies of said policies are now introduced and read in evidence. It is further stipulated that Elza Massie was a member of the Talleydale Mine Local Union of the United Mine Workers of America and that, upon the death of the said Catherine Massie, the said Talleydale Local Union, levied an assessment of one dollar per member and the organization itself being obligated to pay $50, the said organization paid to Elza Massie the sum of $487. It was further stipulated that § 9, Art. 2, of the by-laws of Talleydale Mine Local No. 4980 of the United Mine Workers of America is as follows: "In addition to the contract the following funeral benefits will be paid: For a member one dollar will be checked off of each member, as a donation to the proper person to receive the same, or for a member's wife: For each child over the age of fourteen and having life at birth, there shall be checked twenty-five cents from each member." Which policies were in full force and effect at the time of the death of the said Catherine Massie, and at all times mentioned in the proceedings. It was further stipulated that said Talleydale Mine Local paid to said Elza Massie, by reason of said by-law, the sum of $487; that said $487, as heretofore mentioned, includes a $50 payment which the said Talleydale Local Union, by its contract, agreed to pay to the said Elza Massie. It was further stipulated that the parties hereto agreed, before the trial of this action, that any lawful payments made *Page 585
by the said Elza Massie would be shown in the trial hereof without any pleadings setting up the same, to the same extent as if the respective items had been pleaded by way of set-off. It was further agreed and stipulated that the said Elza Massie paid out of the sum of $489.55 of the moneys that he had so received from said Talleydale Local Union and the Prudential Insurance Company of America for funeral expenses and doctor bills for the said Catherine Massie. It was further stipulated that the said Elizabeth Smith has been at all times herein since January 7, 1930, acting as administratrix of the estate of Catherine Massie, and that she made said demand for said money while acting as said administratrix.
The policy of insurance provides for payment in case of death as follows: "The Prudential Insurance Company of America immediately upon receipt of due proof of the death of the insured during the continuance of this policy will pay at its Home office, Newark, New Jersey, the amount of benefit herein specified, to the executors or administrators of the insured, unless payment be made under the provisions of the next succeeding paragraph.
"Facility of Payment. It is understood and agreed that the said company may make any payment or grant any non-forfeiture privilege provided for in this policy to any relative by blood or connection by marriage of the insured, or to any person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured for his or her burial, or if the insured be more than 15 years of age at the date of this policy, for any other purpose, and the production by the company of a receipt signed by any or either of said persons or of other sufficient proof of such payment or grant of such privilege to any or either of them shall be conclusive evidence that such payment *Page 586
or privilege has been made or granted to the person or persons entitled thereto and that all claims under this policy have been fully satisfied."
Section 3077 Burns 1926 is as follows: "Letters testamentary and of administration, and of administration with the will annexed, or de bonis non, attested by the clerk, and under the seal of the court issuing them, shall be conclusive evidence of the authority of the person to whom they are granted until superseded or revoked, and shall extend to all the estate, personal and real, of the decedent within the estate. The record of such letters, and duly certified transcripts thereof, may be given in evidence with like effect as the originals."
As a general rule, the right to sue for money or other personalty of a decedent belongs to the personal representative and not to the surviving widow or widower; and, in the 1, 2. absence of a testamentary provision to the contrary, an administrator or executor is entitled to all the decedent's personal property for the purpose of settlement of the estate. Pond, Admr., v. Sweetser (1882), 85 Ind. 144; Hayes
v. Shirk (1906), 167 Ind. 569, 78 N.E. 653.
The case of Prudential Ins. Co. v. Young (1895),14 Ind. App. 561, 43 N.E. 253, 56 Am. St. 319, is similar to the one under consideration. The court said: "But it is plain that the beneficiary designated was the insured's estate, and was the property of his estate and if he had died without changing the beneficiary, it could have been collected as part of the assets of the estate and used to pay his debts." But the clause of facility of payment was held not to prevent an assignment of the policy of the insured upon which a claim may be based against the company, in the absence of its exercise of the option. The court says, however, "What effect a payment in accordance with the provision of article second would have upon appellee's right of recovery is not presented, *Page 587
hence we decide nothing with reference to that question."
While the facility of payment clause protects the insurance company in all cases where it makes payment in accordance therewith, such payment made by the insurance company in 3, 4. the exercise of its option does not operate ipso facto
to confer upon the payee of the fund any legal right of property therein, but constitutes the payee a trustee who holds the funds in trust for the benefit of the estate. Allen v.Allen (1918), 88 N.J. Eq. 575, 103 A. 169.
In matter of Degenhardt (1924), 123 Misc. Rep. 762, 206 N.Y. Supp. 220, speaking of a facility of payment clause, the court says: "This provision in industrial insurance policies is 5. for the protection of the companies. It does not `grant or take away a cause of action from any person,'" citingWachtel v. Harrison (1914), 84 Misc. Rep. 76, 145 N.Y. Supp. 982; Ruoff v. John Hancock Mutual Life Ins. Co. (1903),86 App. Div. 447, 83 N.Y. Supp. 758; Wokal v. Belsky (1900),53 App. Div. 167, 65 N.Y. Supp. 815, so that the fact that the death benefit was paid to the respondent, standing alone, did not give her title thereto as against the estate of the decedent. To hold to any other view would be giving the insurance company the right to adjudicate matters between the contesting claimants to the proceeds of the policy.
In this case, the fact that Elza Massie is the husband of the deceased did not place him above the law to account to any administrator or executor who, under the law, is charged with the duty to collect the assets of the estate, pay the debts thereof, and make distribution of same to such heirs and legatees as may be entitled to the same, to be approved by a court granting authority to such administrator.
The motion for a new trial should have been granted, *Page 588
on the ground that the finding of the court is contrary to law.
Judgment is reversed.
Kime, J., dissents. | 01-03-2023 | 07-05-2016 |
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https://www.courtlistener.com/api/rest/v3/opinions/3427576/ | The appellee began this action seeking to enjoin the appellant from using, enforcing, or applying a portion of a salary schedule, known as "Classification E," as a basis for fixing salaries of school teachers. It was stipulated by the parties "that the only question involved is the validity of `Classification E' as set out in the amended complaint, it being the only question presented by the amended complaint and the demurrer thereto." The court overruled a demurrer, which means that the classification was held to be invalid. The defendant refused to plead further, and there was judgment enjoining the use of the classification as prayed.
The ruling on the demurrer is the only error assigned. § 28-4307, Burns' 1933, § 6003, Baldwin's 1934, provides: *Page 390
"That teachers' contracts may contain provisions for the fixing of the amount of annual compensation from year to year by a salary schedule adopted by the school corporation and such schedule shall be deemed to be a part of such contract; Provided further, That such schedule may be changed by such school corporation on or before May first of any year, such changes to become effective at the beginning of the following school year; Provided, That all teachers affected by such changes shall be furnished with printed copies of such changed schedule within thirty [30] days after its adoption; And, provided further, That teachers' contracts shall be uniform and of the form and wording as prescribed by the state superintendent of public instruction." There is no contention that the teachers' contracts did not contain provision for fixing the amount of annual compensation by a salary schedule, nor that the schedule was not adopted before the first of May of any year, nor that the teachers were not furnished with printed copies of the schedule within thirty days after adoption.
The sole contention is that the classification is arbitrary, capricious, unreasonable, and not germane to the subject-matter; that "Classification E is not a classification, in that it is not based upon differences which are apparent and reasonable, does not have regard to real resemblances and real differences between things and persons, does not class them in accordance with their pertinence to the purpose in hand, and instead of defining a definite yardstick for the determination of the qualifications entitling one to escape Classification E, makes the School Board, and their judgment, the sole basis of placing a teacher in or out of said classification." "Classification E" is one of five classes by which *Page 391
the salaries of all teachers employed by the School City of Peru are regulated. The entire schedule is as follows:
"CLASS A. — Includes all teachers who have completed a two-year standard normal course or its equivalent, over and above a standard four-year high school course.
"CLASS B. — Includes all teachers who have completed a three-year standard normal or college course or its equivalent, over and above a standard four-year high school course.
"CLASS C. — Includes all teachers with a bachelor's degree representing four years of standard college work, or its equivalent, over and above a standard four-year high school course.
"CLASS D. — Includes all teachers with a master's degree representing five years of standard college work or its equivalent, over and above a standard four-year high school course.
"CLASS E. — Includes teachers who are deficient in one or more of the following:
(1) Teachers who are considered inefficient.
(2) Teachers who lack sufficient control over the technique of teaching.
(3) Teachers who lack sufficient classroom discipline.
(4) Teachers who lack initiative.
(5) Teachers who fail to put forth a sufficient amount of effort to secure justifiable results.
(6) Teachers who have a non-professional attitude.
(7) Teachers who fail to carry out the recommendations, suggestions, or requests from the principals, supervisors, superintendent or the Board of School Trustees. *Page 392
(8) Teachers who neglect further training in an accepted and recognized summer school.
(9) Teachers who are under-qualified.
(10) Any other justifiable cause.
"Final decision as to teacher placement in Class E shall rest with the Board of School Trustees."
The statute furnishes no method of classification, and determination of the basis for classification and of salary differences is left to the discretion of the school board. 1. Teachers are generally classified upon the basis of their teaching position, those teaching in the higher grades receiving larger salaries, with additional allowances for years of service and additional scholastic attainments. But the statute does not require that such a method shall be followed. Any method that is ". . . reasonable, natural, and based upon substantial difference germane to the subject, or upon some basis having a reasonable relation to the work assigned," is permissible.Hutton et al. v. Gill (1937), 212 Ind. 164, 169,8 N.E.2d 818, 820. It will simplify the determination of whether the schedule conforms to these requirements to first dispose of two incidental contentions.
The appellee contends that the provision contained in the salary schedule, that: "Final decision as to teacher placement in Class E shall rest with the Board of School Trustees," 2-4. invalidates the classification. But always the determination of the school authorities as to the class in which a teacher is placed is final and conclusive. In schedules which regulate salary upon the basis of the grades in which the teacher is employed, the school authorities have arbitrary power to assign a teacher to primary, or intermediate, or high school service. This authority is vested in the school officers by the Legislature, and courts may not interfere *Page 393
and substitute their discretion for the discretion of the school board. School City of Peru et al. v. State ex rel. Youngblood
(1937), 212 Ind. 255, 7 N.E.2d 176, 1002. It is provided in § 28-4308, Burns' 1933, § 6004, Baldwin's 1934, which concerns the cancellation of tenure teachers' contracts for cause: "That the decision of the school board shall be final." This merely means that where the school authorities act lawfully, and exercise a discretion vested in them by the Legislature, their decision is final. Their own declaration of the finality of their decision neither adds to nor detracts from the authority vested in them. The clause as used in the schedule under consideration may have been intended to indicate that no superintendent, or principal, or inferior school authority, was vested with any power to change the classification once it had been decided upon by the school board.
The other question involves subdivision 10 of Class E, "Any other justifiable cause." The section of the statute last referred to provides that: "Cancelation of an indefinite 5, 6. contract of a permanent teacher may be made for incompetency, insubordination, . . . neglect of duty, immorality, justifiable decrease in the number of teaching positions or other good and just cause, but may not be made for political or personal reasons. . . ." "Other good and just cause," as used in this statute, has been held to mean any ground which is put forward in good faith, and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board's task of building up and maintaining an efficient school system. See McQuaid et al. v. State ex rel. Sigler (1937),211 Ind. 595, 6 N.E.2d 547. In determining the validity of this school-board legislation, it is not necessary to enumerate the causes that might be gathered into this omnibus *Page 394
provision. It is sufficient for the purposes of the case to construe the provision as intended to be governed by the ruleejusdem generis, and to bring in only causes of a like kind or class with those designated in the preceding specific provisions. Under such construction, clause 10 is valid if the provisions of the preceding clauses are valid.
Where the classification for salary purposes is based upon the grade in which the teacher is employed, the school board may, without assigning reasons for its action, place a teacher 7-9. in any position it deems advisable, and, consequently, in any compensation class within the statutory minimum requirement, and its action will not be reviewed or questioned in the courts. By vesting such discretion in school authorities, the Legislature has indicated its belief that the interest of the school system will be thus best served. Courts must assume that school officers, intrusted by the Legislature with the management of the schools, are impelled by the highest motives in their actions in the management and control of school affairs, and that any schedule sought to be enforced was prompted solely by a good-faith purpose to conform to the law, to respect teachers' rights, and to advance the best interests of the school corporation. If the trustees of the School City of Peru had adopted a schedule based upon the grades in which a teacher is assigned to serve, it might promote or demote any tenure teacher, and thus affect the salary classification of that teacher without assigning a reason for its action. But it is reasonable to suppose that in choosing teachers for promotion to higher position and more responsibility, and consequently higher salary, an intelligent and conscientious school board might consider efficiency, control over teaching technique, classroom discipline, initiative, *Page 395
effort put forth, professional attitude, co-operation in carrying out recommendations of superiors, additional training acquired from time to time, high qualifications for service, or any other matter that would naturally indicate that the teacher is more valuable and useful to the school system than the ordinary teacher. Intelligent and progressive interest in the welfare of the school system requires a consideration of such matters, and that the placement and pay of teachers shall be influenced by such considerations. And, conversely, it could be reasonably expected that the less efficient, who lack control over the technique of teaching, who do not maintain the best discipline, and who lack initiative, who fail to put forth effort, who have a non-professional attitude, who fail to co-operate with their superiors, who neglect to improve themselves by further training, and who are unqualified, would, in the interest of the schools, be placed in the less responsible and less remunerative positions. In all walks of life it is expected that those who serve best will be appreciated most and will be best remunerated. There is no expression in the law which denies the school authorities the right to weigh such considerations in classifying teachers and fixing their compensation. But, on the contrary, the vesting of discretion in school officers to maintain the school system for the good of the community would seem to command a consideration of such matters. Teachers' contracts may be canceled by the school authorities for incompetency, insubordination, or neglect of duty, but the statute does not command that contracts be canceled. There are no doubt degrees of incompetency, and insubordination, and neglect of duty.
Clauses 1, 2, 3, 4, 5, 6, and 9, under Class E, are directed toward the competency of teachers. It is argued by the appellants that if teachers become lethargical in *Page 396
professional attitude, manifest defects in practical service, and fail to make progressive development in their qualification for work, and to manifest a seemly interest in the welfare of the schools, the board is confronted with a perplexing problem. It is said that teachers of this type are not essentially bad; that they may be potentially good; that the board may not desire to cancel their contracts, but may feel that something should be done to stimulate a desire upon the part of these teachers to improve their professional ability and service.
The school board might have classified the teachers, for the purpose of compensation, upon the basis of the grade in which the teacher served, and, in order to stimulate efficient 10. service, high school teachers might be reduced to primary grades for the purpose of stimulating better effort. But the school board has chosen another method, based upon the degree of technical training of the teachers, with a classification whereby the teacher may continue in the same grade of work to which he has been accustomed, but at a lower salary if it is believed that he has not put forth sufficient effort. It is not for the courts to decide which method will procure the best results. That is within the discretion of the school authorities.
Clause 7 of Class E deals with what borders on insubordination.
Clause 8 pertains to teachers who neglect further training in an accepted and recognized summer school. It is not unreasonable that the school authorities should require their employees to continue their training in order to keep abreast with the most modern and advanced methods, nor is it unreasonable that those who neglect further training should receive less compensation *Page 397
than those who seek to improve their efficiency and increase their value to the school corporation.
Clause 10 refers to any other justifiable cause. It must be assumed, until a specific case arises, that action under this provision will be limited to things of a like kind and 11. class with the preceding specific provisions. It cannot be said that action based upon such ground deprives a teacher of any right protected by the statute.
We find no illegality in the schedule.
Judgment reversed, with instructions to sustain the demurrer.
NOTE. — Reported in 33 N.E.2d 114, 133 A.L.R. 1431. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427577/ | This is an action by the appellee against the appellant to recover damages for personal injuries alleged to have been sustained on account of the appellant's negligent operation of an automobile. It is alleged in the complaint, consisting of two paragraphs, that about 7:30 o'clock on the morning of April 17, 1934, the appellee and another person were traveling *Page 627
north in a Ford automobile on State Highway No. 39, and were approaching a grade crossing of the Monon Railroad; that the railroad extended from the southeast to the northwest; that a highway known as the Kelley Gravel Road, east of road No. 39, paralleled the railroad track and terminated at its intersection with road No. 39, approximately 60 feet north of the railroad crossing; that at a distance of 250 feet east of road No. 39, the Kelley Road extended directly east. State Road No. 39, is a preferential road and the Kelley Road is not. Appellant approached the state road in a Dodge automobile and drove onto the traveled portion of road No. 39 without stopping his car, and without any warning negligently and carelessly attempted to turn to the left, or south, on the state road. The appellee did not know that the appellant was intending to turn to the south until he had driven onto the roadway, but believed appellant intended to stop before entering upon the traveled portion of road No. 39. Appellant, in disregard of the rights of the appellee and without looking for the approach of vehicles on the state highway, drove into and against the automobile in which appellee was riding and turned it over, by reason of which the appellee was thrown from the car and seriously and permanently injured.
An answer in general denial was filed to this complaint. The cause was tried by a jury which returned a general verdict for the appellee in the sum of $3,500, together with answers to special interrogatories. Appellant's motion for a new trial was overruled. This ruling is assigned as error.
The first proposition discussed by appellant is based upon the alleged error that the verdict is not sustained by sufficient evidence and is contrary to law. Under this assignment the appellant asserts that the evidence affirmatively shows that appellee and his driver were *Page 628
engaged in a common enterprise, and were guilty of contributory negligence. Several propositions on this subject are discussed in the able briefs of both parties. The appellant insists that the driver of the automobile in which appellee was riding was guilty of contributory negligence, which was imputed to appellee because they were engaged in a joint enterprise.
Generally speaking, joint enterprise depends upon the facts in each particular case. The facts established by the evidence are: The appellee and his driver were driving north on a 1. preferential road in the daytime. This road was intersected by the Monon Railroad. The Kelley Road, non-preferential, entered the state highway from the east, but at the point of entrance extended in a northwest direction. The appellant did not see the Ford automobile approaching until it was within 15 feet of the railroad crossing, when he was making a left turn onto the traveled portion of road No. 39. Appellant stated that, as he was driving onto road No. 39, he was "watching mighty close" for trains each way; that he was casting his glance back and forth watching the railroad track, and did not see the Ford car until just as it was coming upon the railroad crossing, at which time he was just beginning to swing south. The front wheels of appellant's car were about 10 or 15 feet north of the railroad tracks, and about 6 feet from the west edge of the pavement, and his car was headed toward the southwest. The evidence shows the width of the traveled portion of road No. 39 to be 22 feet. The center of the Kelley Road is 60 feet north of the railroad tracks. According to appellant's version, he must have been near the center of the traveled portion of road No. 39. The appellee testified that appellant drove onto road No. 39 without giving any warning whatever, and that there was not sufficient room for the Ford car, in which appellee was riding, to pass between *Page 629
the appellant's car and the east side of the roadway. The evidence further shows that the front bumper was the only part injured on appellant's car. The car in which appellee was riding was turned over and considerably damaged, having been struck on the right-hand side.
In view of this testimony, the general verdict of the jury, and the answers to special interrogatories, this court cannot say on appeal that there was no evidence to support the verdict 2, 3. of the jury. Nor has the appellant shown evidence of contributory negligence upon the part of either appellee or the driver. Therefore the question of joint enterprise cannot be controlling. For an exhaustive study of the question see: 48 A.L.R. 1077, 63 A.L.R. 921, 80 A.L.R. 312, and 95 A.L.R. 857.
In connection with a discussion of this proposition, the appellant claims that the verdict of the jury is excessive. The physicians in charge of appellee testified that ribs were broken, and still sensitive to pressure (at the time of trial, which was 14 months after the injury was sustained), the lung punctured, four teeth broken off and had to be extracted, injuries were extremely painful and opiates administered, a number of enlargements of the ribs still exist, his posture is more stooped than before the injury, he is somewhat underweight, injuries affect his ability to do heavy work, and medical expenses were between $75 and $100, and dental expense $150. The appellee was 41 years of age, and had been employed by one concern continuously for approximately 15 years.
The general principle is well established that this court will not reverse the judgment of the trial court in refusing to grant a new trial on the ground of excessive damages, unless, 4-6. at first blush, the damages assessed appear to be outrageous and *Page 630
excessive, and it is apparent that some improper element was taken into account by the jury in determining the amount. There is nothing in this case to justify interference by this court. The position of the appellant upon this question, as well as the first question discussed herein, is such as to ask this court to perform a task which it was the duty of the trial court to discharge in passing upon the motion for a new trial. Although there is conflict in the evidence, it is so well settled that a court of appeals cannot determine the preponderance of the evidence, for reasons which have been often stated. This court cannot be both a court of review and a trial court. The evidence in this case is not of such character as to enable the court to say that there was error of law in overruling appellant's motion for a new trial on account of insufficient evidence.
The appellant assigns error of the court in giving appellee's tendered instructions Nos. 2, 3, 8, 12, 17, and 18. The 7. objection of appellant may be stated best by using his own language as follows:
"In this case appellant contended that appellee was engaged in a joint enterprise with his driver. There was ample evidence of negligence of the driver. In Plaintiff's Instructions 2, 3, 8, 12, 17 and 18, the court eliminated this defense by advising the jury that only the negligence of appellee could bar recovery.
"Joint enterprise is not agency, and is governed by the rules of partnership, and a partner is liable for the acts of another partner, not because such act is his own, but because he is liable for the act of another."
The instructions objected to properly submit the charge of negligence to the jury, and tell the jury that the burden is upon the plaintiff to prove, by a fair preponderance of the evidence, facts necessary to establish the cause of action. In making this statement to *Page 631
the jury, the court, in each of the instructions, told the jury the circumstances under which the plaintiff was entitled to recover, unless the preponderance of the evidence showed the plaintiff to be guilty of negligence contributing to his injury as the proximate cause thereof.
The appellant's objection to these instructions present the question that the court limited contributory negligence to the plaintiff only. Each of the instructions do not purport to state all of the law upon the subject discussed. The instructions do not tell the jury that "only" the negligence of the appellee could bar the recovery. In another instruction, No. 22, tendered by appellant and read by the court to the jury, the court explicitly stated that, if it is found from the evidence that, at the time of the collision in question, the plaintiff was riding in an automobile driven by Golden Miller, and that said Miller was driving said automobile as the agent of the plaintiff, then the negligence of Miller would be imputed to the plaintiff, and the plaintiff would be chargeable therewith; that if Miller was negligent in the operation of the automobile, and such negligence proximately contributed to cause the collision, then in that event the plaintiff could not recover.
The court read to the jury appellant's tendered instruction No. 23, in which the jury was told that neither an invited guest nor an occupant engaged in a joint or common enterprise with the driver of an automobile, in which he was riding when the automobile was approaching an intersecting highway, had the right to rely exclusively upon the driver to exercise the care necessary to avoid injury, but the occupant himself must exercise reasonable care and prudence as the circumstances require; that while it was the duty of the driver in approaching an intersecting highway to use reasonable care in looking for automobiles and in controlling *Page 632
the speed of his own automobile, it was also the duty of the plaintiff, as an occupant, to exercise reasonable care in regard to the same matters of conduct; and the fact that the driver of the automobile in which plaintiff was riding was negligent would not prevent its further finding that plaintiff was also negligent.
Appellant's tendered instruction No. 20, given to the jury, told it that it was the duty of the occupant, as well as the driver, and each of them, to exercise reasonable care to avoid a collision with defendant's automobile, and if either the driver or the occupant (appellee) failed to exercise ordinary care to avoid a collision, then such person failing to exercise ordinary care was guilty of negligence.
Also, the court gave to the jury the appellant's tendered instruction No. 24 upon the subject of invited guest, in which the jury was told that, if the appellee was guilty of negligence which proximately contributed to his injury, he could not recover.
Instruction No. 25, tendered by appellant and read to the jury, stated that, if Miller was driving the car in which appellee was riding at a negligent rate of speed, so as to endanger appellee's life, and appellee knew that such speed was dangerous in time to warn the driver to decrease the speed, and he failed to so warn the driver, and that such negligence proximately contributed to the collision, then the plaintiff cannot recover.
Appellant's tendered instruction No. 26, read to the jury by the court, is as follows:
"The mere fact the plaintiff was not the driver of the automobile in question does not constitute him an invited guest. As an occupant of the automobile other than the driver, he may have been either an invited guest, or engaged in a joint enterprise with the driver, and whether he was an invited guest or engaged in a joint enterprise is a *Page 633
question of fact for you to determine from the evidence. If you find from the evidence that he was engaged in a joint enterprise with the driver in the operation of the automobile in which plaintiff was riding, then I instruct you that he is chargeable with any negligence of the driver."
At the same time appellant requested, and the court submitted to the jury, certain interrogatories which were answered. Interrogatory No. 12 is as follows:
"Were plaintiff and Golden Miller, driver of the automobile in which plaintiff was riding, engaged in a joint enterprise on the trip during which the collision occurred?
"Answer: No."
The record discloses that the interrogatory was correctly answered by the jury.
The appellant is in no position to complain that the plaintiff's instructions Nos. 2, 3, 8, 12, 17, and 18 did not make reference to the driver of the automobile, but referred only to the contributory negligence of appellee. The question of the driver's negligence being attributable to the appellee was covered by instructions tendered by appellant; and whether or not appellant was entitled to have that question submitted to the jury, it was submitted, and the finding of the jury was adverse to appellant. It appears that the appellant's rights were sufficiently guarded by his counsel, and that the court did not err in giving the instructions to which objection is made.
The appellant says that the court committed error in 8-10. reading to the jury appellee's instruction No. 11, as follows:
"A person in full possession of his faculties is presumed to use reasonable care and to exercise his faculties for his protection and safety, and in determining whether or not a man is guilty of negligence, it may be presumed that he saw that which a reasonably prudent man, in the exercise of ordinary care, would have seen." *Page 634
The appellant contends that the court erred in giving this instruction to the jury, for the reasons that a person is not presumed to see that which a reasonably prudent man would have seen in the exercise of ordinary care, and that he is not presumed to use his faculties for his own protection and safety; that the court invaded the province of the jury by instructing upon this presumption.
The instruction is general and applies with equal force to all parties. The defendant is not singled out as the one person required to use his faculties. The situation here discloses that the parties approached the intersection of the highways in full view of each other; that appellant stopped at least 50 feet east of the intersection and moved slowly from that point to the place of the collision; that appellee saw appellant at all times; that appellant did not see appellee approaching upon the state road, but was intently looking for trains on the railroad track, which was between the parties. There is no dispute about the facts. Unaided by any presumption either of law or fact, the evidence before the jury was sufficient to establish the appellee's case.
It is not doubted that the instruction is erroneous. The law of this state does not permit the indulgence in the presumption that a person will exercise his faculties for his own protection and safety, nor may it be presumed that he was or was not guilty of contributory negligence, nor that he failed to exercise ordinary care. Evansville, etc., R. Co. v. Berndt (1909),172 Ind. 697, 705, 88 N.E. 612.
In that case the court held that, notwithstanding the erroneous instruction to the effect that the decedent was presumed to have used due care to avoid injury, the error was harmless, since the appellant must lose because it failed to sustain its affirmative defense of contributory negligence. The court said: *Page 635
"Our holding is that this instruction, though technically incorrect, was harmless in this case, owing to the absence of evidence upon the subject in question."
Also, see City of Indianapolis v. Keeley (1906),167 Ind. 516, 525, 79 N.E. 499.
Under these and other authorities, it must be held that instruction No. 11 is erroneous, and that the presumption therein indulged is not a correct statement of law in this state. However, the facts bring the case clearly within the rule announced in Evansville, etc., R. Co. v. Berndt, supra. The burden was upon the appellant to show contributory negligence upon the part of the appellee or his driver. No such negligence was shown. The appellee was entitled to a verdict and judgment, without the aid of any presumption contained in the instruction in question. Although the instruction is erroneous, it is the opinion of the court that it is harmless under the facts and circumstances disclosed in this action.
The appellant objects to plaintiff's instruction No. 21, given to the jury, as follows:
"If you find from the evidence that at the 11. time the plaintiff was approaching the intersection in question, the driver of the car in which he was riding saw the automobile driven by the defendant approaching said crossing, at about the same time or before plaintiff observed the same, and if you further find that plaintiff knew that such driver saw said defendant approaching, then and in that case, if you so find, it would not be negligent for plaintiff to fail to warn such driver of the approach of defendant's car to said crossing."
Appellant's objection goes chiefly to the proposition that there is no evidence upon that subject, and, therefore, the instruction should not have been given. The facts concerning the approach of the intersection by both parties have been stated heretofore. These facts *Page 636
do not disclose circumstances where it was necessary for appellee to caution the driver of the car. No reversible error is found in giving this instruction.
The court refused to give appellant's tendered instruction No. 18 upon the subject of adequate brakes as required by the statute, which told the jury that, if it found, at the 12. time of the collision, the automobile in which appellee was riding was not provided with brakes as required by the statute, and that the driver knew that fact, then such driver was guilty of negligence; or if the plaintiff knowing that fact, continued to ride in the automobile, such act would constitute negligence upon his part. The instruction was refused by the court upon the ground that there is no evidence in the record concerning the inadequacy of the brakes. A careful reading fails to disclose any evidence pertaining to the subject in any manner. Therefore, the instruction was not applicable to the evidence, and was properly refused.
On the evening of the first day of the trial a Tipton newspaper published an article concerning this case, then on trial in that city, and stated that the appellant was insured, and that 13. the insurance company would pay any judgment recovered. When the court convened the next morning, appellant brought this information to the attention of the court and asked the court to set aside the submission of the cause, for the reason that the paper was generally read in that community, and that the article had been read by members of the jury. Upon receiving this information, the court called the jury to the courtroom and examined each juror separately concerning the article published. One juror stated that he had read the entire article; that it had no influence whatever on him, and he would be governed by the evidence and the instructions of the court, as given in the trial. Three other *Page 637
jurors stated that they had read the headlines and a small part of the beginning of the article, but would not be influenced thereby. None of the other eight jurors had seen the article. The court overruled appellant's motion and the trial was continued throughout that day. On that evening the same newspaper published another article concerning the insurance. The appellant, on the third morning, renewed his motion to set aside the submission of the cause to the jury because of misconduct of jurors in reading the article. There is no showing that the jurors read the second article. The court overruled the motion and resumed the trial of the cause.
The same question is presented by appellant in his motion for a new trial. He asserts that the injection, into the trial of automobile collision cases, of information that defendant is insured, is cause to set aside the submission, and the overruling of a timely motion is error. He cites and relies upon Martin v.Lilly (1919), 188 Ind. 139, 121 N.E. 443; Taggart v.Keebler (1926), 198 Ind. 633, 154 N.E. 485.
The Martin v. Lilly case is based upon misconduct of counsel, and the other case is based upon alleged misconduct of a juror. There are cases in which the misconduct of a juror is ground for setting aside the submission. It is readily understood that a juror may be influenced by a newspaper article, or that he may read an article or the headlines innocently, and not be prejudiced thereby. The court examined each juror upon this subject, and from its observations of the jurors, their manner of testifying, and from their appearance, determined that the appellant was not prejudiced.
After both motions to set aside the submission of the cause had been overruled, and the trial of the cause resumed, the appellant, testifying in his own behalf and in answer to a question propounded to him by his counsel, stated that he was carrying insurance and that he *Page 638
thought "the insurance company would give them a square deal." This testimony was voluntarily introduced by appellant, although his counsel stated in oral argument that he introduced this testimony because of the position in which he had been placed by the newspaper articles, and the court's overruling his motions to set aside the submission of the cause. Notwithstanding the fact that the reason given by counsel was his best judgment as to the proper conduct of the trial under the situation then present, nevertheless, the appellant voluntarily stated to the jury that he was carrying insurance.
In addition, the court gave appellant's instruction No. 31, which stated to the jury that it had no right to consider, in arriving at a verdict, whether either or both parties to the action were insured. The jury was told that it was their duty to determine the rights and liability of the parties as individuals, without any consideration whatsoever as to whether either one of them carried insurance. Under this situation the court, on appeal, cannot say that reversible error was committed. It appears that the trial court duly performed its duties and gave to each party a fair trial.
When the appellant was being examined by his attorney as a witness in his own behalf, he was asked to state what Miller, the driver of the car in which appellee was riding, said 15 14-16. minutes after the accident, and after appellee had been removed from the scene of the collision. The appellant answered that Miller stated that "he was driving wide open." On motion the answer was stricken out. Appellant's contention is that this statement was admissible under the doctrine of resgestae. It is clear from the answer given by the appellant, that Miller was narrating the facts after the accident. His statement was not an exclamation made at the time, or in any manner connected with the *Page 639
accident. The doctrine of res gestae is based upon spontaneous statements made at the time of the accident, usually by one of the parties to the transaction, and never includes a statement or a narration of past events.
Also, the courts have always recognized that, in the admission of evidence of this character, the question is peculiarly one within the discretion of the trial court. In Cincinnati, etc.,R. Co. v. Gross (1917), 186 Ind. 471, 114 N.E. 962, a conductor and a brakeman were riding in a caboose at the time another employee was injured. At that time the two discussed the question of the switch's being open. Their testimony was offered as a part of the res gestae. The court held that, under the circumstances there presented, when objection was made, the question was for the determination of the trial court. Authorities are cited to support the proposition. There are instances when the ruling of the trial court will be subject to review in a court of appeal, but the circumstances here presented do not furnish ground for this court to say that the trial court abused its discretion.
Appellant predicates other errors upon the ruling of the trial court in excluding additional evidence, concerning statements made by Miller in the absence of appellee, that after the 17. collision, the car "turned over three times." The court held these statements were not admissible as a part of theres gestae. Proof of such declarations would be violative of the rule against the admissibility of hearsay evidence.
Having reviewed each of the errors relied upon by appellant, the court is unable to discover any proposition which would warrant a reversal of this cause.
Judgment is affirmed. *Page 640 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427578/ | Action by appellant against appellee to recover for alleged overtime while appellant was a member *Page 63
of the paid fire department of appellee city. Appellant was regularly paid the regular wages fixed by the city for the pay of its firemen, but, by this action, seeks to recover the additional amount of $3,510.
The complaint was in one paragraph, to which the court sustained a demurrer, and, appellant refusing to plead further, judgment was rendered against him. The sustaining of such demurrer is the only error presented.
The facts stated in the complaint upon which appellant bases his right to recover are as follows: Appellant was a member of the paid fire department of appellee city from February 1, 1923, until January 3, 1926; the city has a population of more than 15,000 as disclosed by the last preceding census, and has had a paid fire department for over 10 years; from January 1, 1921 to January 1, 1927, the organized fire force of said city consisted of one body or platoon, which did both day and night service; from February 1, 1923 to January 3, 1926, appellant worked continuously as a member of the regularly organized and paid fire force, and during said period he was a member of said single platoon which did both day and night service, and, in the performance of these duties, he worked 24 hours in every calendar day. During the period from February 1, 1923 to January 3, 1926, appellant performed service as a member of the regular, paid fire force both during the day and night, and thus in pursuance of the act of 1920, Acts 1920 (Spec. Sess.) p. 196, he performed two statutory days' service in each calendar day.
It is then averred that each statutory day's service was separate and distinct and that he is entitled to compensation for two statutory days' service for each calendar day in said period. During all of said period, he was paid for only one statutory day's service for each calendar day. He was paid for 1,052 statutory days, $3,510, and that amount is still due him for 1052 statutory days' *Page 64
service performed at the instance of appellee. The compensation paid to each member of the fire force was $3.33 1/3 per day and $3,510 is now due him.
Appellee contends that the amended complaint is insufficient because it fails to allege that there was any appropriation made, available and in force at the time of the performance of 1. the alleged services, and out of which it could be paid. There is merit in this contention. The court judicially knows that the city of New Albany is a city of the third class operating under the Municipal Code of 1905. State, ex rel., v.Morris, Mayor (1927), 199 Ind. 78, 155 N.E. 198.
If there can be a recovery for the alleged services, it must be because they were performed under a valid contract, express or implied. Section 10307 Burns 1926, being § 85 of such 2. Municipal Code, provides that "no executive department, officer or employee thereof shall have power to bind such city to any contract or agreement, or in any other way, to any extent beyond the amount of money at the time already appropriated by ordinance for the purposes of such department; and all contracts and agreements, express or implied, and all obligations of any and every sort, beyond such existing appropriations are declared to be absolutely void," and appellant's complaint, in order to be sufficient, must show that there was an existing and unexpended appropriation at the time the contract, express or implied, was entered into, out of which appellant could be paid for the services contracted for. City ofIndianapolis v. Wann, Rec. (1896), 144 Ind. 175, 42 N.E. 901, 31 L.R.A. 743; Brayton v. City of Rushville (1918),68 Ind. App. 238, 120 N.E. 48; Board, etc., v. Moore (1929), 166 N.E. (Ind. App.) 779.
The amended complaint is also insufficient because it fails to show that there was any contract between appellant *Page 65
and appellee city to pay appellant for alleged extra 3. services, and no facts are alleged in the complaint from which an implied agreement would follow, if such there could be. In the absence of such averments, the presumption is either that appellant volunteered such services, or that the salary or other compensation provided for in the contract was intended to compensate him also for the extra work. Pittsburgh,etc., R. Co. v. Marable (1919), 189 Ind. 278, 126 N.E. 849;Grisell v. Noel Bros., etc., Co. (1894), 9 Ind. App. 251, 36 N.E. 452; Davis, Director, etc., v. Clapp (1925),83 Ind. App. 697, 149 N.E. 908; 39 C.J. 197.
These two reasons for holding that the amended complaint is insufficient are enough to show that the court did not err in sustaining appellee's demurrer thereto.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3210365/ | SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. David Bueso (A-15-14) (074261)
Argued November 9, 2015 -- Decided June 8, 2016
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers the manner in which a trial court should assess the competency of a child
witness to testify.
In 2009, when M.C. was five years old, her father’s cousin, M.L.G., was her occasional babysitter.
According to M.C.’s mother, M.C. reported that defendant, who was M.L.G.’s boyfriend, sexually abused her on
two occasions. The first incident occurred on an unspecified date when M.L.G. chipped a tooth and went into the
bathroom, leaving M.C. with defendant. M.C. claimed that she was abused by defendant for the second time on
March 29, 2009, hours before a surprise birthday party held for M.L.G. at the child’s home.
The matter was referred to the Division of Youth and Family Services (now the Division of Child
Protection and Permanency). The Division contacted the county prosecutor’s office and, in a subsequent interview
with a detective, M.C. reiterated the allegations that her mother had reported. Defendant was charged with two
counts of first-degree aggravated sexual assault, two counts of second-degree sexual assault, and two counts of
third-degree endangering the welfare of a child. Three of the counts related to the incident alleged to have occurred
on the day M.L.G. chipped her tooth. The remaining charges arose from the alleged incident on the day of M.L.G.’s
birthday party. Prior to trial, the trial court denied defendant’s motion to dismiss the indictment and also denied his
motion to suppress M.C.’s statement to her mother and the recording of the detective’s interview of the child.
At trial, the State called M.C. to the stand for a competency examination. The State asked M.C. about
whether it would be a lie for her to tell her teacher that she had done her homework, when she had not. M.C. agreed
that would be a lie. The State then asked if M.C. understood that she had to tell the truth in court. M.C. confirmed
that she did. Thereafter, the trial court offered defense counsel the opportunity to ask questions, to which defense
counsel responded, “[n]o objection, Judge.” After briefly questioning M.C., the court found M.C. competent and
permitted her to testify.
M.C. testified that the abuse occurred “a lot” and “more than four times.” She reiterated her account of the
abuse on the day that M.L.G. chipped her tooth, but stated that on the day of the birthday party, defendant “didn’t do
it.” Defendant denied all allegations of sexual abuse and claimed that he was never alone with M.C. at the time of
either of the incidents. He claimed that on the day of M.L.G.’s birthday party, identified as the date on which he
sexually abused the child for the second time, he was at an auto repair shop waiting for his employer’s vehicle to be
repaired. He supported his alibi defense with the testimony of employees at the auto repair shop, who corroborated
his testimony.
The jury convicted defendant of one count each of aggravated sexual assault, sexual assault, and
endangering the welfare of a child, all relating to the incident on the day that M.L.G. chipped a tooth, and acquitted
him of the three remaining charges. After merger of the sexual assault offense into the aggravated sexual assault
offense, the court sentenced defendant to a fifteen-year term of incarceration subject to the No Early Release Act,
with parole supervision for life pursuant to Megan’s Law. The court imposed a concurrent four-year term of
incarceration for endangering the welfare of a child.
Defendant appealed his conviction and sentence. For the first time on appeal, defendant argued that the
trial court erred when it ruled that M.C. was competent to testify. The panel reversed defendant’s conviction,
holding that the trial court’s competency determination constituted plain error. The panel found that the trial judge
was required to question M.C. personally, and to directly ascertain her comprehension of a witness’s duty to tell the
truth, but that the court improperly delegated that responsibility to the prosecutor. The panel held that the record
before the trial court did not support its determination that M.C. was competent. The Court granted the State’s
petition for certification. 220 N.J. 40 (2014).
HELD: When the witness is a child, the concepts of truth, falsehood, and punishment may be difficult to reach with
open-ended questions. Subject to the discretion of the trial judge, who must carefully monitor the examination to
ensure that the child’s answers are his or her own, leading questions may be used in a competency inquiry. There
1
was no plain error in the procedure used by the trial court in this case.
1. Because defendant did not object to the trial court’s ruling that M.C. was competent to testify, Rule 2:10-2
prescribes the applicable standard of review. That rule provides that any error or omission shall be disregarded by
the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result. (pp. 11-
12)
2. N.J.R.E. 601 provides that all persons should be qualified to testify, and that disqualification should be the
exception. Accordingly, any claim of disqualification must be strictly construed against exclusion and in favor of
admitting any relevant testimony the witness may offer. When the witness is an adult, competency hinges in part on
the witness’s capacity to understand the nature and obligations of an oath. That objective is complicated in the case
of a child witness, who may be incapable of understanding either the concept of divine punishment or the legal
implications of false swearing. In the majority of reported decisions in which appellate courts affirmed competency
determinations, the judge personally conducted the questioning of the child. (pp. 13-15)
3. Direct questioning by the trial judge, with immediate follow-up on an evasive or inconclusive response, may be
the most effective method to probe the child’s understanding of the importance of telling the truth in the formal
setting of a courtroom. However, the Court has never held that the questioning of the witness is the exclusive
province of the trial judge as a child may be more candid and forthcoming in response to questions posed by an
attorney with whom he or she has a rapport. It is the trial court’s charge to make certain that any questioning by
counsel is conducted fairly, and to supplement counsel’s questions as necessary to ensure the integrity of the
proceeding. Subject to the trial court’s careful oversight, leading questions may be used in the examination of a
child witness. Accordingly, a court may in its discretion allow counsel to use leading questions in order to elicit
testimony from a child. (pp. 16-19)
4. With substantial discretion, the trial court’s task is to determine whether the child witness appreciates the
distinction between truth and lies. The trial court’s competency inquiry should focus on whether the child
understood her duty to tell the truth. The testimony should establish that the child understood the distinction
between telling the truth and lying, that he or she understood that it was important to tell the truth in court, and that
he or she anticipated negative consequences in the event of a lie. (pp. 19-24)
5. Here, the trial court’s decision was based on a three-part inquiry. First, using leading and non-leading questions,
the prosecutor introduced the concept of telling a lie in the context of M.C.’s obligation to do her homework. In the
second phase, conducted by the prosecutor posing leading questions, the inquiry became more pointed. The
prosecutor inquired about the consequences of lying, and compared the duty to tell the truth at school to the duty to
testify truthfully in court. Finally, the trial judge questioned the witness, challenging her to declare whether the
judge’s own hypothetical misstatement of fact –- that a rectangular book was round -– constituted the truth or a lie.
It is within a trial court’s broad discretion to permit questioning by the prosecutor, particularly in the initial phase of
the inquiry as the witness becomes comfortable in the intimidating setting of a courtroom. (pp. 24-25)
6. When the witness is a child, the essential concepts of truth, falsehood, and punishment may be difficult to reach
with open-ended questions. Subject to the discretion of the trial judge, leading questions may be used in a
competency inquiry. There was no plain error in the procedure used by the trial court in this case. Given N.J.R.E.
601’s preference for the admission of relevant evidence, and the plain error standard that governs this case, the
inquiry conducted before the trial court was minimally sufficient to support the trial court’s finding of competency.
Although the examination conducted in this case satisfied N.J.R.E. 601, the inquiry was well short of ideal. Trial
courts and counsel should develop the record on the question of competency by means of thorough and detailed
questioning of the child witness. (pp. 25-29)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Appellate
Division for consideration of the issues it did not reach in defendant’s appeal.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE PATTERSON’S opinion. JUSTICE FERNANDEZ-VINA did
not participate.
2
SUPREME COURT OF NEW JERSEY
A-15 September Term 2014
074261
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DAVID BUESO (a/k/a YASMIN
BUESO, DAVID ABEJAEL BUESO,
YASMIN A. BUESO, YASMIN
ABEJAEL BUESO, YASMIN ABIGAIL
BUESO),
Defendant-Respondent.
Argued November 9, 2015 – Decided June 8, 2016
On certification to the Superior Court,
Appellate Division.
Sara M. Quigley, Deputy Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
Jacqueline E. Turner, Assistant Deputy
Public Defender, argued the cause for
respondent (Joseph E. Krakora, Public
Defender, attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
This appeal raises questions about the competency of a
child witness and the process that a trial court should apply to
address that issue. Under the New Jersey Rules of Evidence, a
witness is considered competent to testify unless the court
makes a finding that he or she lacks the capacity to express his
1
or her testimony so as to be understood, or is incapable of
understanding the duty to testify truthfully. N.J.R.E. 601. In
accordance with that standard, a preliminary inquiry is
undertaken to determine whether a child is competent to testify
at a criminal trial. See State v. G.C., 188 N.J. 118, 131
(2006).
In this appeal, defendant’s conviction rested in part on
the testimony of the alleged victim of sexual assault, who was
seven years old at the time of trial. Pursuant to N.J.R.E. 601,
the trial court held a competency hearing and found the child
witness was competent to testify. The Appellate Division
reversed defendant’s conviction.
We agree with the trial court’s determination. We reject
the State’s argument that defendant waived his right to appeal
the competency finding when he failed to object to that finding
at trial, and accordingly review the trial court’s determination
for plain error. We also do not construe the relevant Rules of
Evidence or our case law to require that the court must conduct
all questioning of a child witness, or to preclude the use of
leading questions in a competency hearing. Although the trial
court and the prosecutor should have conducted a more detailed
inquiry as to M.C.’s understanding of her duty to tell the truth
on the witness stand, the court’s determination that she was
competent was not an abuse of discretion.
2
Accordingly, we reverse the judgment of the Appellate
Division, and remand to the panel for consideration of the
issues that it did not reach in defendant’s appeal.
I.
The alleged acts that gave rise to this case occurred in
2009, when M.C. was five years old. The child’s occasional
babysitter was M.L.G., M.C.’s father’s cousin. M.L.G. was
defendant’s girlfriend and shared a home with him.
According to M.C.’s mother, M.C. reported that defendant
had sexually abused her on two occasions. The first incident
alleged by M.C. occurred on an unspecified date when the
babysitter, M.L.G., chipped a tooth and went into the bathroom
to attend to her tooth, leaving M.C. with defendant. M.C.
claimed that she was sexually abused by defendant on a second
occasion, on the morning of March 29, 2009, hours before a
surprise birthday party held for M.L.G. at the child’s home.
The child’s mother notified M.L.G. about M.C.’s
allegations. Defendant contacted M.C.’s mother to deny that he
sexually abused M.C. The matter was referred to the Division of
Youth and Family Services (now the Division of Child Protection
and Permanency). The Division contacted the county prosecutor’s
office. In an interview with a detective from the prosecutor’s
office, M.C. reiterated the allegations that had been reported
by her mother.
3
Defendant was charged with two counts of first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); two counts of
second-degree sexual assault, N.J.S.A. 2C:14-2(b); and two
counts of third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). Three of the counts related to the
incident alleged to have occurred on day the babysitter, M.L.G.,
chipped her tooth. The remaining three arose from the alleged
incident on the day of the babysitter’s birthday party. Prior
to trial, the trial court denied defendant’s motion to dismiss
the indictment and also denied his motion to suppress M.C.’s
statement to her mother and the videotape of the detective’s
interview of the child.
At trial, following the testimony of M.C.’s mother, the
State called M.C. to the stand for a competency examination.
The State initially questioned M.C. about whether it would be a
lie for her to tell her teacher that she had done her homework,
when she had not:
[Prosecutor]: Now, if you forgot to do your
spelling homework -– you didn’t do your spelling
homework –- and you told your teacher you did the
spelling homework, would that be a lie?
[M.C.]: Yes.
[Prosecutor]: And what would your teacher do if
you told her you did your spelling homework --
[M.C.]: He’s going to --
4
[Prosecutor]: -- but you didn’t do your spelling
homework?
[M.C.]: He’s going to put me an X in the homework.
[Prosecutor]: She’s going to do what?
[M.C.]: Put me an X.
[Prosecutor]: She’s going to make you do the next
homework?
[M.C.]: No. She -- he’s going to put an X.
[Prosecutor]: Oh. Put an X? So, he -- your
teacher’s a man? Yes? You just have to say out
loud --
[M.C.]: Yes.
[Prosecutor]: -- yes or no. So, your teacher,
who’s a male, would put an X?
[M.C.]: Yes.
[Prosecutor]: Is the X good or bad?
[M.C.]: Bad.
[Prosecutor]: What happens if you get a lot of
X’s?
[M.C.]: You probably not play with that -- be
alone.
[Prosecutor]: You’d be alone?
The State then introduced the subject of telling the truth
in court in its examination of the child:
[Prosecutor]: Everything you do today in court,
you have to tell the truth. Do you understand that?
[M.C.]: Yes.
[Prosecutor]: So, is it good to tell the truth?
5
[M.C.]: Yes.
[Prosecutor]: And is it bad to tell a lie?
[M.C.]: Yes.
[Prosecutor]: And do you understand bad things
happen if you tell a lie in court. Do you
understand that?
[M.C.]: Uh-un. No.
[Prosecutor]: Do you understand that bad things
happen if you tell a lie in school?
[M.C.]: Yes.
[Prosecutor]: So, just like if you tell a lie in
school, if you tell a lie here in this place, the
court, bad things happen. Do you understand that?
[M.C.]: Yes.
[Prosecutor]: Okay. So, everything you talk about
today has to be the truth. Do you understand that?
[M.C.]: Uh-huh.
The trial judge then offered defense counsel the
opportunity to ask questions. Defense counsel responded,
“[n]o objection, Judge.” The judge then briefly questioned
the child:
[The Court]: All right. Let me just ask you a
question. See that book there?
[M.C.]: Uh-huh.
[The Court]: If I told you that that book is round,
would that be a truth or a lie?
[M.C.]: A lie.
6
[The Court]: Why?
[M.C.]: Because it’s a rectangle.
[The Court]: Because it’s a rectangle. Okay. So,
you know the difference between telling what is and
what isn’t, right? What really is and what really
isn’t? Truth or a lie, right? Okay. Thanks. You
can proceed.
Having determined that M.C. was competent, the trial court
permitted her to testify. M.C. told the jury about the alleged
abuse by defendant, which she said occurred “a lot” and “more
than four times,” at the home shared by defendant and M.L.G.,
when M.L.G. was babysitting for her. M.C. reiterated her
earlier account of alleged abuse on the day that M.L.G. had
chipped a tooth, but did not repeat her prior statement that
defendant had abused her at her own home on the day of M.L.G.’s
birthday party. When cross-examined by defense counsel, M.C.
gave a more detailed account of the alleged sexual abuse on the
day that her babysitter chipped a tooth, but stated that on the
date of the birthday party, defendant “didn’t do it.”
The State called additional fact witnesses and an expert
witness on pediatric sexual abuse. Defendant testified on his
own behalf. He denied all allegations of sexual abuse and
testified that he was never alone with M.C. at the time of
either of the incidents reported by the child. Defendant
testified that on the day of M.L.G.’s birthday party, identified
by M.C. as the date on which he sexually abused the child for
7
the second time, he was at an auto repair shop waiting for his
employer’s vehicle to be repaired. Defendant supported his
alibi defense with the testimony of employees at the auto repair
shop, who corroborated his testimony that he spent that morning
waiting for his employer’s vehicle to be repaired. M.L.G.
testified that on the date that she chipped her tooth, she only
briefly went to the bathroom to check her tooth, and that
defendant was not left alone with M.C. M.L.G.’s mother also
testified, corroborating some of defendant’s testimony and that
of M.L.G.
The jury convicted defendant of three charges, one count of
first-degree aggravated sexual assault, one count of second-
degree sexual assault, and one count of third-degree endangering
the welfare of a child, all relating to the alleged incident on
the day that M.C.’s babysitter chipped a tooth. The jury
acquitted defendant on the three remaining charges, all of which
involved allegations of abuse on the date of the birthday party,
for which defendant presented an alibi. The trial court denied
defendant’s motion for a new trial.
After merger of the second-degree sexual assault offense
into the first-degree aggravated sexual assault offense, the
court sentenced defendant to a fifteen-year term of
incarceration subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, with parole supervision for life pursuant to
8
Megan’s Law, N.J.S.A. 2C:43-6.4, as well as fines and fees. The
court also imposed a concurrent four-year term of incarceration
for defendant’s conviction for third-degree endangering the
welfare of a child.
Defendant appealed his conviction and sentence. For the
first time on appeal, defendant argued that the trial court
erred when it ruled that M.C. was competent to testify.
In an unpublished opinion, an Appellate Division panel
reversed defendant’s conviction. Relying primarily on State v.
Zamorsky, 159 N.J. Super. 273, 280 (App. Div. 1978), certif.
granted, 79 N.J. 485, on remand, 170 N.J. Super. 198, 199-200
(App. Div. 1979), certif. denied, 82 N.J. 287, cert. denied, 449
U.S. 861, 101 S. Ct. 172, 66 L. Ed. 2d 78 (1980), the panel held
that the trial court’s competency determination constituted
plain error. It concluded that the trial judge was required to
question M.C. personally and directly to ascertain her
comprehension of a witness’s duty to tell the truth and her
conceptual awareness of truth and falsehood and that the judge
improperly delegated that responsibility to the prosecutor. The
panel also criticized the prosecutor’s reliance on leading
questions. It held that the record before the trial court did
not support the trial court’s determination that M.C. was
competent, and that the trial court committed plain error.
9
We granted the State’s petition for certification. 220
N.J. 40 (2014).
II.
The State urges the Court to reverse the Appellate
Division’s judgment. It asserts that defendant waived his right
to contest the trial court’s competency finding on appeal by
declining to object to that determination at trial. The State
argues that the Appellate Division improperly focused on
technical considerations, such as the prosecutor’s role in the
questioning of M.C. and her use of leading questions. It notes
that leading questions are commonly used during the examination
of child witnesses and contends that the panel incorrectly
stated that the trial court was constrained to conduct the
examination. Relying on State v. R.R., 79 N.J. 97, 114 (1979),
the State contends that the trial court properly exercised its
discretion in permitting M.C. to testify. It asserts that by
virtue of her responses to questions posed by the trial court
and the prosecutor, M.C. demonstrated that she appreciated the
distinction between truth and falsehood, understood the
importance of truth telling and anticipated negative
consequences if she were to tell a lie on the witness stand.
Defendant urges the Court to affirm the judgment of the
Appellate Division. He contends that plain error is the
applicable standard of review and disputes the State’s assertion
10
that he waived his right to contest the competency determination
on appeal by failing to object at trial. Defendant argues that
the trial court committed plain error in this case. He asserts
that the Appellate Division correctly concluded that the trial
court improperly failed to conduct a thorough examination of
M.C. before permitting her to testify. Defendant argues that
the proper inquiry is whether the trial court based its
determination of competency on a showing that M.C. understood
her moral responsibility to tell the truth and that there was no
such showing in this case.
III.
A.
Because defendant did not object to the trial court’s
ruling that M.C. was competent to testify, Rule 2:10-2
prescribes the applicable standard of review. That rule
provides that “[a]ny error or omission shall be disregarded by
the appellate court unless it is of such a nature as to have
been clearly capable of producing an unjust result” and that a
reviewing court “may, in the interests of justice, notice plain
error not brought to the attention of the trial or appellate
court.” R. 2:10-2; see also Pressler & Verniero, Current N.J.
Court Rules, comment 2.1 on R. 2:10-2 (2016) (noting plain error
is “error not properly preserved for appeal but of a magnitude
dictating appellate consideration”); State v. McKinney, 223 N.J.
11
475, 494 (2015) (applying plain error standard to failure to
object to jury instructions); State v. R.K., 220 N.J. 444, 456
(2015) (applying Rule 2:10-2 plain error standard to limiting
instruction in absence of objection); State v. Ross, 218 N.J.
130, 142-43 (2014) (applying plain error to failure to object to
juror substitution); State v. Stas, 212 N.J. 37, 58 (2012)
(applying plain error standard to trial court’s reliance on
defendant’s silence in conviction).
We do not concur with the State’s position that by failing
to object to a competency determination, a defendant waives his
or her right to challenge that determination on appeal.1 Nothing
in Rule 2:10-2 or our case law suggests that a trial court’s
ruling on the competency of a witness warrants an exception to
the plain error standard of review. Moreover, that high
standard provides a strong incentive for counsel to interpose a
1 In support of its argument, the State does not rely on New
Jersey case law, but on federal authority and case law from
several states. See Benson v. United States, 146 U.S. 325, 332,
13 S. Ct. 60, 62, 36 L. Ed. 991, 995 (1892) (observing defendant
waived objection to testimony “by not objecting to her testimony
at the time it was offered”); United States v. Odom, 736 F.2d
104, 112 (4th Cir. 1984) (holding absent objection, “any claim
of incompetency of the witness is waived”); Rhymes v. State, 356
So. 2d 1165, 1169 (Miss. 1978) (noting cross-examination of
witness waived right to challenge competency of witness); Bowman
v. State, 598 S.W.2d 809, 811 (Tenn. Crim. App. 1980) (noting
“defendant waived any objection he might have had to the
competency of . . . a witness [when] [n]o objection was made”).
We decline to adopt the principles stated in those cases.
12
timely objection, enabling the trial court to forestall or
correct a potential error. See State v. Johnson, 31 N.J. 489,
511 (1960) (“A timely objection gives the trial court and the
prosecutor an opportunity to counteract the effect of any
unseemly remark.”); State v. Douglas, 204 N.J. Super. 265, 274
(App. Div. 1985) (noting timely objections allow for curative
instructions), certif. denied, 102 N.J. 378 (1985); see also
State v. Wilson, 57 N.J. 39, 51 (1970) (observing “a timely
objection [also] signifies that the defense believes itself to
have been prejudiced by the prosecutor’s remarks”). We discern
no reason to deviate from that standard in this case.
Accordingly, we review the trial court’s competency
determination for plain error.
B.
“[O]ur ‘system of justice . . . has established as a
general rule that all persons should be qualified to testify,
and that disqualification should be the exception[.]’” G.C.,
supra, 188 N.J. at 133 (alteration in original) (quoting Germann
v. Matriss, 55 N.J. 193, 217 (1970)). That governing principle
is reflected in N.J.R.E. 601, which provides:
Every person is competent to be a witness
unless (a) the judge finds that the proposed
witness is incapable of expression concerning
the matter so as to be understood by the judge
and jury either directly or through
interpretation, or (b) the proposed witness is
incapable of understanding the duty of a
13
witness to tell the truth, or (c) except as
otherwise provided by these rules or by law.
Accordingly, any claim of witness disqualification must be
strictly construed against exclusion and in favor of admitting
any relevant testimony the witness may offer. See G.C., supra,
188 N.J. at 132.
Typically, when the witness is an adult, competency hinges
in part on the witness’s capacity “to understand the nature and
obligations of an oath[.]” Id. at 131 (quoting State v. Butler,
27 N.J. 560, 602 (1958)). N.J.R.E. 603 requires that a witness
“take an oath or make an affirmation or declaration to tell the
truth under the penalty provided by law.” A witness may not be
barred from testimony “because of religious belief or lack of
such belief.” Ibid. Thus, the mandated oath need not be an
expression of religious belief; instead, it serves “as a vehicle
to remind the witness that he has a special obligation to speak
the truth in court.” R.R., supra, 79 N.J. at 110.
That objective is complicated in the case of a child
witness, who “may be incapable of understanding either the
concept of divine punishment or the legal implications of false
swearing.” Ibid. Consequently, “[a]ny ceremony which obtains
from an infant a commitment to comply with” the obligation to
testify truthfully, “on pain of future punishment of any
kind[,]” satisfies the requirement of an oath. Id. at 111. In
14
a prosecution for a sexual offense in which the alleged victim
is a child, who may be the sole witness to the offense,
[w]e accept something different in the way of
an oath from child victim witnesses for two
reasons. First, “any holding to the contrary
would virtually preclude children from
testifying against their assailants.” Second,
we are confident that “allowing departures
from the traditional oath will not result in
convictions based upon the word of infants
incapable of understanding the difference
between right and wrong.”
[G.C., supra, 188 N.J. at 131 (quoting R.R.,
supra, 79 N.J. at 111).]
N.J.R.E. 601 does not prescribe the procedure by which
trial courts develop a record to determine competency. In the
majority of reported decisions in which appellate courts
affirmed competency determinations, the judge personally
conducted the questioning of the child. See, e.g., G.C., supra,
188 N.J. at 126 (noting court questioned child witness); State
v. Krivacska, 341 N.J. Super. 1, 32 (App. Div.) (stating trial
judge questioned alleged victims, who were children residing in
facility for special-needs students), certif. denied and appeal
dismissed, 170 N.J. 206 (2001), cert. denied., 535 U.S. 1012,
122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002); State v. Walker, 325
N.J. Super. 35, 41 (App. Div. 1999) (observing trial judge
“relied on his observations of [the child] at the voir dire
during pretrial motions and upon the report prepared by [the
child]’s treating psychiatrist” to make competency
15
determination), certif. denied, 163 N.J. 74 (2000); Zamorsky,
supra, 159 N.J. Super. at 280 (acknowledging trial court
conducted questioning of child in one of two proceedings).
Direct questioning by the trial judge, with immediate follow-up
on an evasive or inconclusive response, may be the most
effective method to probe the child’s understanding of the
importance of telling the truth in the formal setting of a
courtroom.
This Court, however, has never held that the questioning of
the witness is the exclusive province of the trial judge.2 Our
case law recognizes that a prosecutor’s examination of a child
witness may be appropriate in a given case. In R.R., supra, the
child witness was questioned in turn by the trial judge, court
clerk, prosecutor, and defense counsel. 79 N.J. at 104.3
Similarly, in State v. T.E., 342 N.J. Super. 14, 27 (App. Div.),
2 To the extent that the first Appellate Division panel in
Zamorsky, supra, 159 N.J. Super. at 280-82, intended to state a
rule barring counsel from questioning a witness when it
commented that a judge must be satisfied from “his
interrogation” that the child understands the duty to tell the
truth, we do not endorse such a requirement.
3 The Court’s statement in R.R., supra, that when a party
challenges a witness’s competency to testify, the trial court
should “conduct a preliminary inquiry,” does not mandate that
questioning be conducted by the trial judge. See 79 N.J. at 113
(citing Evid. R. 8). As is confirmed by the citation to Evid.
R. 8, the predecessor rule to N.J.R.E. 104, the Court’s comment
is a reference to the judge’s responsibility to determine the
preliminary question of competency, not to the procedure for
examining the witness. Ibid.
16
certif. denied, 170 N.J. 86 (2001), the Appellate Division
acknowledged that the “preferred procedure” is for a court
officer to “administer a ‘traditional’ oath and for the judge to
engage in colloquy constituting its functional equivalent with a
youthful witness.” However, the T.E. panel rejected the
defendant’s argument that, by conducting the competency
examination of a child victim, the prosecutor usurped the
court’s function. Ibid. A child may be more candid and
forthcoming in response to questions posed by an attorney with
whom he or she has a rapport. It is the trial court’s charge to
make certain that any questioning by counsel is conducted
fairly, and to supplement counsel’s questions as necessary to
ensure the integrity of the proceeding.
Subject to the trial court’s careful oversight, leading
questions may be used in the examination of a child witness.
N.J.R.E. 611(c) provides:
Leading questions should not be used on the
direct examination of a witness except as may
be necessary to develop the witness’
testimony. Ordinarily, leading questions
should be permitted on cross-examination.
When a party calls an adverse party or a
witness identified with an adverse party, or
when a witness demonstrates hostility or
unresponsiveness, interrogation may be by
leading questions, subject to the discretion
of the court.
The purpose of N.J.R.E. 611(c) is to “encourage testimony
from the witnesses, rather than evidence resulting from the
17
prompting of counsel.” Biunno, Weissbard & Zegas, Current N.J.
Rules of Evidence, comment 8 on N.J.R.E. 611(c) (2015). Trial
judges are vested with broad discretion over the mode of
interrogation to “make the interrogation . . . effective for
ascertainment of the truth, and . . . protect witnesses from
harassment or undue embarrassment.” T.E., supra, 342 N.J.
Super. at 29-30 (quoting N.J.R.E. 611(a)).
Moreover, leading questions are frequently permitted in the
examination of child witnesses. See Biunno, Weissbard & Zegas
supra, comment 8 on N.J.R.E. 611(c) (noting questioning of
youthful witnesses is “[a] prime example” of when leading
questions are necessary); State v. Smith, 158 N.J. 376, 390
(1999) (“[T]he use of leading questions to facilitate an
examination of child witnesses who are hesitant, evasive or
reluctant is not improper.”); T.E., supra, 342 N.J. Super. at 30
(recognizing protecting children from “undue trauma” is weighty
public policy goal warranting use of leading questions); State
in Interest of B.G., 289 N.J. Super. 361, 370 (App. Div.)
(granting counsel “substantial leeway” to ask leading questions
of child witnesses), certif. denied, 145 N.J. 374 (1996)).
Accordingly, “[i]t is well-settled that a court may in its
discretion allow counsel to use leading questions in order to
elicit testimony from an infant.” R.R., supra, 79 N.J. at 114-
15.
18
With substantial discretion regarding the form of
questioning, the trial court’s task is to determine whether the
child witness appreciates the distinction between truth and
lies, and comprehends his or her duty to tell the truth. The
showing necessary for a competency determination is illustrated
by this Court’s prior applications of N.J.R.E. 601 in child
sexual abuse cases. In R.R., the Court reviewed the trial
court’s finding that the alleged victim, a four-year-old boy,
was competent to testify in the defendant’s trial. Id. at 103-
06. After the trial court rejected the defendant’s argument
that the child was incompetent by virtue of his age, the court
clerk conducted the following inquiry:
The Clerk: Will you tell the truth to this
Court?
The Witness: Yes.
The Clerk: Do you believe in God?
The Witness: Yes.
The Clerk: If you lie do you believe that God
will punish you?
The Witness: No.
The Clerk: God will not punish you if you
tell a lie? Or will he punish you?
The Witness: He will.
The Clerk: He will. The boy is sworn, Judge.
[Id. at 104.]
19
In response to a challenge by the defendant to the court’s
initial finding of competency in R.R., the trial court and
counsel further examined the child. Ibid. That inquiry
established that the child always obeyed his teacher, that his
teacher would scold him if he did things “wrong,” that he never
did things “wrong” at home, that truthfulness denotes being
“good,” and that if he told a lie, he would be “bad” and get a
“beating.” Ibid. The child assured the court that he would not
be “bad” while answering questions in court, promised to report
the facts “the way it [was].” Ibid. (alteration in original).
The defendant was convicted and appealed. The Appellate
Division upheld the trial court’s competency determination, but
ruled the child’s testimony inadmissible because the court had
not administered a traditional oath. Id. at 107.
This Court reversed the Appellate Division’s judgment. Id.
at 121. It noted that a trial court must determine “whether the
child possesses ‘moral responsibility’ –- that is, a
consciousness of the duty to tell the truth.” Id. at 113. It
observed that “[s]o long as the child understands (a) the
difference between right and wrong; (b) that to tell the truth
is ‘right’; and (c) that he will be punished in some way should
he lie to the court, this requirement is satisfied.” Id. at
114. The Court concurred with the trial judge’s conclusion that
20
the child witness understood his duty to speak the truth on the
witness stand. Ibid.4
The same standard was applied in G.C., supra, 188 N.J. at
132-33. In G.C., the State presented the testimony of the
defendant’s five-year-old daughter, the victim of his alleged
sexual abuse. Id. at 121, 125-27. In response to a defense
objection to the child’s competency to testify, the trial court
agreed to “mak[e] certain that this witness can understand the
difference between the truth and a lie.” Id. at 125.
Questioned by the trial judge outside the presence of the jury,
the child stated that it was “[n]ot good” to tell a lie and that
it is “good to tell the truth.” Id. at 125-26. Defense counsel
asked for a more specific inquiry about the witness’s
understanding of the consequences of lying, and the trial judge
continued:
4 On the same day that it decided R.R., the Court granted the
State’s petition for certification in Zamorsky and remanded for
reconsideration in light of R.R.. See State v. Zamorsky, 79
N.J. 485 (1979). The Appellate Division in Zamorsky, supra, in
reversing defendant’s conviction on one of two charges of
impairing the morals of a minor, applied a two-step inquiry for
determining whether a child witness was competent to testify:
first, an exploration of the child’s understanding of the
concepts of truth and falsehood, and second, a discussion of his
or her understanding of the duty to tell the truth. See 159
N.J. Super. at 280. On remand, the Appellate Division vacated
its reversal of the defendant’s conviction after finding that
the trial court’s colloquy with the child demonstrated “a
sufficient commitment by the child to tell the truth on pain of
some kind of punishment.” Zamorsky, supra, 170 N.J. Super. at
202.
21
The Court: Now, before when you came in and
we talked a little bit, I asked you if it was
good to tell the truth. Do you remember that?
[The Witness]: (Nods.)
The Court: And I asked you about telling a
lie. Do you remember that?
[The Witness]: (Nods.)
. . . .
The Court: When you talk to [the jury], are
you going to tell the truth or are you going
to tell a lie?
[The Witness]: I’m not going to tell the lie.
I will tell the truth.
The Court: Okay. That’s what we want you to
do. Okay?
[The Witness]: (Nods.)
The Court: Are you going to tell the truth?
[The Witness]: (Nods.)
[Id. at 126.]
The trial court overruled the defendant’s objection to the
child’s competence to testify. Ibid. The Appellate Division
reversed the trial court’s determination, holding that the
court’s inquiry was insufficient to ascertain the child’s
understanding of the duty to tell the truth and the consequences
of false testimony. Id. at 128-29.
Reversing the Appellate Division’s judgment, this Court
held that the trial court’s competency inquiry properly focused
22
on whether the child understood her duty to tell the truth, a
duty that “necessarily implicates the consequences arising as a
result of a failure to comply with the duty.” Id. at 133.
Accordingly, the Court upheld the trial court’s determination
that the child was competent to be a witness. Ibid. Justice
Wallace wrote a concurring opinion, agreeing with the majority
that the witness’s competence was established, but finding the
court’s questions “minimally sufficient” to establish the girl’s
understanding of the duty to tell the truth. Id. at 135
(Wallace, J., concurring).
The questioning of the children in R.R. and G.C. was not
optimal; in each case, the trial court could have conducted a
more thorough and enlightening examination of the witness.
Neither examination erased all uncertainty about the child’s
comprehension of these concepts. The child witness in R.R.,
supra, initially stated that he did not fear divine punishment
if he were to lie, and then corrected himself. 79 N.J. at 104.
The child witness in G.C., supra, offered minimal -– at times
nonverbal -– responses to some of the questions. 188 N.J. at
125-27.
Nonetheless, both decisions illustrate the basic elements
of an adequate competency determination. In each inquiry, the
testimony established that the child understood the distinction
between telling the truth and lying, that he or she understood
23
that it was important to tell the truth in court, and that he or
she anticipated negative consequences in the event of a lie.
G.C., supra, 188 N.J. at 125-28, 133; R.R., supra, 79 N.J. at
104, 113-14. Because our evidence rules presume the competency
of a witness, see G.C., supra, 188 N.J. at 132, this Court
determined in both cases that the trial court properly permitted
the child witnesses to testify, id. at 133; R.R., supra, 79 N.J.
at 113-14.
C.
Guided by N.J.R.E. 601 and our case law, we conduct a
plain-error review of the trial court’s determination that M.C.
was competent to testify at defendant’s trial. R. 2:10-2.
The trial court’s decision was based upon a three-part
inquiry. During the preliminary phase of the examination, the
prosecutor introduced the concept of telling a lie in the
context of M.C.’s obligation to do her homework. She asked both
leading and non-leading questions in a non-confrontational
manner. In the second phase, conducted by the prosecutor posing
leading questions, the inquiry became more pointed. The
prosecutor inquired about the consequences of lying, and
analogized the duty to tell the truth at school to the duty to
testify truthfully in court. Finally, the trial judge
questioned the witness, challenging her to declare whether the
24
judge’s own hypothetical misstatement of fact –- that a
rectangular book was round -– constituted the truth or a lie.
We do not concur with the Appellate Division’s conclusion
that the trial court’s competency determination was procedurally
flawed because the trial court permitted the prosecutor to
question M.C. Although a judge will often be in the best
position to elicit candid answers from a child witness, it is
within a trial court’s broad discretion to permit questioning by
the prosecutor, particularly in the initial phase of the inquiry
as the witness becomes comfortable in the intimidating setting
of a courtroom. T.E., supra, 342 N.J. Super. at 26. The record
of this case suggests an unrehearsed inquiry; until she was
corrected by M.C., who testified that her teacher was male, the
prosecutor mistakenly assumed that the teacher was a woman.
Significantly, the final phase of the questioning was conducted
by the judge. We find no abuse of discretion in the
prosecutor’s conduct of most of the questioning.
Moreover, we do not share the Appellate Division’s view
that the inquiry was improper because the prosecutor asked
leading questions. When the witness is a child, the essential
concepts of truth, falsehood, and punishment may be difficult to
reach with open-ended questions. See Biunno, Weissbard & Zegas
supra, comment 8 on N.J.R.E. 611(c); Smith, supra, 158 N.J. at
390; T.E., supra, 342 N.J. Super. at 30; B.G., supra, 289 N.J.
25
Super. at 370-71. Subject to the discretion of the trial judge,
who must carefully monitor the examination to ensure that the
child’s answers are his or her own, leading questions may be
used in a competency inquiry. We find no plain error in the
procedure used by the trial court in this case.
In light of N.J.R.E. 601’s preference for the admission of
relevant evidence, and the plain error standard that governs
this case, we find that the inquiry conducted before the trial
court was minimally sufficient to support the trial court’s
finding under the standard prescribed in R.R., supra, 79 N.J. at
114. M.C.’s testimony reflected an understanding of “the
difference between right and wrong,” as well as the concept that
“to tell the truth is ‘right.’” See ibid. The child
identified, as examples of lies, two hypothetical statements
posed to her: a statement to her teacher that she had done her
spelling homework, when she had not, and the trial judge’s
suggestion that a book was round, when it was rectangular. The
latter example is the more compelling of the two, because M.C.
demonstrated that she was willing to confront an authority
figure in the event that he made a false statement. M.C.
further testified, albeit in response to leading questions, that
it was “good” to tell the truth, and “bad” to tell a lie. She
26
confirmed that she understood that in court she had to tell the
truth.5
Less conclusive, but nonetheless sufficient, was M.C.’s
testimony about her fear of punishment in the event that she
told a lie. See G.C., supra, 188 N.J. at 133; R.R., supra, 79
N.J. at 114. The prosecutor initially raised the topic of
punishment with non-leading questions about the anticipated
reaction of M.C.’s teacher if she falsely claimed to have done
her homework. The child’s initial answer -– that the teacher’s
response would be an “X” on the homework –- was ambiguous; it
was unclear whether the teacher’s “X” on the homework would be a
sanction for M.C.’s failure to perform the assignment, or for
lying about it. M.C. hesitated when the prosecutor pivoted to a
leading question about “bad things” that would happen if she
told a lie in court. She initially responded that she did not
understand that such “bad things” would happen, but then
confirmed that she understood that “bad things” would follow if
a lie were told in court, as they would occur if a lie were told
in school. Ultimately, the examination elicited testimony that
5 At the conclusion of the examination, the trial court asked
“[s]o you know the difference between telling what is and what
isn’t right? What really is and what really isn’t? Truth or a
lie, right? Okay.” Although M.C. may have nodded, or otherwise
responded affirmatively, in response to those questions, her
answers were unrecorded in the transcript, and we do not rely on
them.
27
established M.C.’s understanding that lied in her testimony, she
would be punished.
Thus, the competency determination was premised on a record
adequate to support it. Accordingly, the trial court’s finding
that M.C. was competent did not constitute plain error. R.
2:10-2. Moreover, defendant’s counsel had the opportunity to
thoroughly cross-examine the child, exploring discrepancies
between her statement to investigators and her testimony at
trial. Allowing M.C. to testify, and permitting the jury to
assess her credibility, did not bring about an unfair trial or
unjust result.
Although we find the examination conducted in this case to
satisfy N.J.R.E. 601, given the plain error standard of review
that governs this appeal, we note that the inquiry conducted in
this case was well short of ideal. A thorough and detailed
examination of the child might have established a more
compelling record. When M.C. offered her unclear comment about
the consequences of a misstatement about spelling homework –-
indicating that she may not have understood the import of the
question -- the prosecutor should have shifted to alternative
examples of falsehoods that a child might tell in the familiar
setting of her school. The trial judge’s brief questioning
about a hypothetical lie concerning the shape of a book was
instructive, but the judge’s inquiry would have been more
28
effective had it extended beyond a single topic. Trial courts
and counsel should develop the record on the question of
competency by means of thorough and detailed questioning of the
child witness.6
In sum, the trial court did not commit plain error when it
concluded that M.C.’s testimony demonstrated that she was a
competent witness, under the standard of N.J.R.E. 601. The
trial court properly exercised its discretion when it permitted
M.C. to be a witness at defendant’s trial.
IV.
The judgment of the Appellate Division is reversed, and the
matter is remanded to the Appellate Division for its
consideration of issues that it did not need to address in its
review of this appeal.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
PATTERSON’S opinion. JUSTICE FERNANDEZ-VINA did not
participate.
6 We suggest that to assist trial courts and counsel, the
Criminal Practice Committee consider developing model questions
for use in competency determinations involving child witnesses.
29
SUPREME COURT OF NEW JERSEY
NO. A-15 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DAVID BUESO (a/k/a YASMIN
BUESO, DAVID ABEJAEL BUESO,
YASMIN A. BUESO, YASMIN
ABEJAEL BUESO, YASMIN ABIGAIL
BUESO),
Defendant-Respondent.
DECIDED June 8, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA ------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6 | 01-03-2023 | 06-08-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4059786/ | VELVA L. PRICE, District Clerk, Travis County Courthouse, Third Floor
RECEIPT AND EXECUTION OF MANDATE FROM
THE COURT OF APPEALS
BY THE CRIMINAL DISTRICT CLERK
Mr. Jeffrey D. Kyle, Clerk March 10, 2015
Court of Appeals
Third District of Texas
P.O. Box 12547
Austin, Texas 78711-2547 March 13, 2015
Criminal Division
P.O. Box 679004,
Austin, Texas, 78767
Re: No. 03-14-00140-CR
(Trial Court No.D-1-DC-12-202825)
Styled: FRANK HOWARD MCMARION
vs.
The State of Texas
Dear Mr. Kyle:
Pursuant to Texas Rule of Appellate Procedure 87(b)(1), I hereby forward my acknowledgment
of the receipt and the execution of the mandate on MARCH 10, 2015 from the Court of Appeals
in the above cause. The official execution of this mandate is recognized by the Travis County
Sheriff whereas the capias after mandate, official notice of mandate, or transfer of inmate to
proper authorities, has been executed and or is in the process of being executed hereby placing
the defendant within the proper jurisdiction of the trial court.
Respectfully,
VELVA L. PRICE
District Clerk
Travis County, Texas
By: _________________________________
Deputy,JESSICA CONTRERAS
C23 - 000001024 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4059788/ | VELVA L. PRICE, District Clerk, Travis County Courthouse, Third Floor
RECEIPT AND EXECUTION OF MANDATE FROM
THE COURT OF APPEALS
BY THE CRIMINAL DISTRICT CLERK
Mr. Jeffrey D. Kyle, Clerk March 10, 2015
Court of Appeals
Third District of Texas
P.O. Box 12547
Austin, Texas 78711-2547 March 13, 2015
Criminal Division
P.O. Box 679004,
Austin, Texas, 78767
Re: No. 03-14-00141-CR
(Trial Court No.D-1-DC-12-301804)
Styled: FRANK HOWARD MCMARION
vs.
The State of Texas
Dear Mr. Kyle:
Pursuant to Texas Rule of Appellate Procedure 87(b)(1), I hereby forward my acknowledgment
of the receipt and the execution of the mandate on MARCH 10, 2015 from the Court of Appeals
in the above cause. The official execution of this mandate is recognized by the Travis County
Sheriff whereas the capias after mandate, official notice of mandate, or transfer of inmate to
proper authorities, has been executed and or is in the process of being executed hereby placing
the defendant within the proper jurisdiction of the trial court.
Respectfully,
VELVA L. PRICE
District Clerk
Travis County, Texas
By: _________________________________
Deputy,JESSICA CONTRERAS
C23 - 000001023 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427570/ | ON PETITION FOR REHEARING.
Rule 142, in force on appellant's railroad at the time of appellee's injury, contained the following provisions: "Form F. Extra trains No. 142. Car No. * * * will display signals and run extra from * * * to * * * Examples. (1) `Car No. 402 will run extra from Berber to Gaza.' * * * The authority to occupy a specified portion of the track as an extra, while working, will be given in the following form: (2) `Car No. 20 will work as an extra from 7 A.M. until 6 P.M. between Berne and Turin.' * * * A work train when met or overtaken by an extra must allow it to pass without unnecessary detention. When the conditions are such that it may be considered desirable to require that work trains shall at all times protect themselves while in working limits, this may be done under the following arrangement. To example (2) add the following words: (6) `Protecting itself against all trains.' A train receiving this order must, whether standing or moving, protect itself within *Page 252
the working limits, and in both directions on single track, against all trains. When an extra receives orders to run over working limits, it must be advised that the work train is within these limits, by adding to (1) the words: (7) `Car 20 is working as an extra between Berne and Turin.' A train receiving this order must run expecting to find the work train within the limits named."
The undisputed evidence introduced by plaintiff (including his own testimony) is that he was operating car No. 8 as an extra work train on a single track railroad, under an order that 11. read: "Car 8 will work as an extra between Watson and Sellersburg from 7:17 a.m. until 4:45 p.m. Protect against all trains"; that car No. 301 was being run north from Watson toward Sellersburg under an order given to the motorman and conductor of that car as follows: "Meet train No. 64 at Bridge Siding. Car 8 is working between Watson and Sellersburg"; that in rounding a curve toward the point where the collision occurred, plaintiff actually saw the other car when it was 150 to 200 feet away (other witnesses saying the distance was much greater when they came into plain view of each other); and plaintiff also testified that his car (No. 8) was running about twelve miles an hour at the time, and that he brought it practically to a complete stop in running the next fifty feet or less; that with a dry track, if the sand would work, a man could stop a car running twelve miles an hour within thirty to fifty feet, or possibly less, and that the track was dry that day; that after the two cars came within sight of each other the crew of No. 301 jumped off, and it then ran 100 feet or more to the place where the collision occurred. And the testimony of other witnesses differed from his testimony in these particulars only in that they said that his car was running much *Page 253
faster and ran much farther after he began to try to stop it before the collision occurred. This evidence clearly showed that whether or not the train dispatcher was guilty of any negligence as charged in the complaint, the injury was not caused by such alleged negligence on his part, but was due to the operation of one or the other, or both, of the cars in disobedience of the rules and orders above set out. Where both cars were being operated under said rules, merely giving an order that extra car 301, with notice that car 8 was working between Watson and Sellersburg, should run between those stations, after having given car 8 an order to work there and to "protect against all trains," was not enough to constitute actionable negligence of the train dispatcher.
The provisions also found in Rule 142 forbidding another extra to be run over that part of the track where a work extra is operating "without provision for meeting or passing said work train," and giving a form in which an order may be given to an extra to protect itself against a designated work extra car, are not inconsistent with and do not affect the force of the provisions of the rule, as above set out and construed, for ordering a work car to "protect itself against all trains," and for ordering an extra to be run into the territory in which a work car is operating under such an order, upon being advised by a statement in the order, itself, that the work car is working extra within the limits named.
Plaintiff having testified at considerable length, in answer to questions propounded by his own attorneys, to facts not required to be shown in order to make out his case in chief, but 12. tending merely to rebut anticipated defenses, as that he did not know the north-bound extra would be sent or was coming into his work limits until he saw it approaching, *Page 254
that a hill and some bushes were on the inner side of the curve around which he was running, etc., he was subject to cross-examination about the matters concerning which he had voluntarily so testified, notwithstanding the questions asked on cross-examination may have related to facts of which defendant had the burden of proof.
The petition for a rehearing is overruled. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427571/ | This action was commenced by appellee Frank Andrews on a negotiable promissory note against the New Palestine Manufacturing Company, as maker, and appellants, Fink, Denk, Kirkhoff, Schramm and Eikman as indorsers, and to foreclose a mortgage on certain real estate, given to secure said note and separate notes given by the manufacturing company to the New Palestine Bank, George Metzger, and Daisy Eikman. The bank, Metzger and Mrs. Eikman were made defendants to answer as to their interest in the mortgage. They filed separate cross-complaints to recover the amount due on their respective notes and to foreclose the mortgage. The defendants in the cross-complaints of Metzger and the bank are the manufacturing company and the holders of the other notes secured by the mortgage. Mrs. Eikman named as defendants in her cross-complaint the manufacturing company, William P. Evans, receiver for the manufacturing company, and Edward C. Eikman, Edward Fink, Charles Kirkhoff, *Page 366
Andrew A. Denk and George Metzger, each of whom, it is alleged, signed their names on the back of the note before its delivery. Andrews, the bank and Metzger, the holders of the other three notes secured by the mortgage, were also defendants. The manufacturing company and the receiver answered the complaint of Andrews, in denial, failure of consideration and the unauthorized execution of the note and mortgage by the manufacturing company. Schramm, Fink, Kirkhoff, Denk and Edward C. Eikman filed an answer: (1) In denial; (2) payment; (3) failure of consideration; (4) no consideration as to either of them and that it was the custom for them as directors of the manufacturing company to sign their names on the back of notes for identification purposes only and that they so signed this note as board directors and not as individuals. All other issues were closed by answers and replies in denial. There was a personal judgment in favor of the plaintiff against the manufacturing company and the alleged indorsers and for a foreclosure of the mortgage as to all defendants. Each cross-complainant recovered a judgment against the maker and indorsers of their respective notes and for a foreclosure of the mortgage.
After judgment, Edward C. Eikman filed a motion for a new trial, the only pertinent reasons being that the decision was not sustained by sufficient evidence, and that it was contrary to law. Schramm, Fink, Kirkhoff and Denk filed a motion in which they "separately and severally" asked for a new trial for the same reasons. The receiver also filed a motion for a new trial on the same grounds. These motions were overruled, with separate and several exceptions, and the parties whose motions for a new trial were overruled have appealed and filed an assignment of errors in which they separately and severally state fourteen alleged errors, the only *Page 367
proper one being the fifth, which is, that the court erred in overruling their motions for a new trial.
The sixth and seventh errors assigned are as follows: "6, The finding or decision and judgment of the court is not sustained by sufficient evidence. 7. The finding or decision and 1, 2. judgment of the court is contrary to law." These are not proper specifications in an assignment of error or in a motion for a new trial, and would be ignored, were it not for the fact that all of appellant's points and authorities are directed to the specifications in the assignment of errors challenging the decision as not being sustained by sufficient evidence and as being contrary to law. Appellants make no claim that the court erred in overruling either of the motions for a new trial. The brief contains no propositions, points or authorities relating to the overruling of such motions.
In this connection, attention is called to the fact that appellants, by their assignment of errors and by their motions for a new trial, attempt to challenge the decision of the 3. court as an entirety. There is no specification in the assignment of error or in the motions for a new trial challenging the decision in so far as it relates to the complaint, or as to the issues presented by any one of the cross-complaints. It appears from that part of appellants' brief which is devoted to "argument," that the only part of the decision attacked is the decision in so far as it relates to the issues presented by the complaint of Andrews. That part of the decision relating to the several cross-complaints is not challenged in this court by appellants. The decision, in so far as the cross-complaints are concerned, is undoubtedly sustained by sufficient evidence and is not contrary to law. This being true, the court correctly overruled the several motions for a new trial challenging the correctness of the decision as a whole. The sixth and seventh specifications *Page 368
in the assignment of errors hereinbefore set out present no question for our determination.
Judgment affirmed.
Dausman, J., absent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427572/ | Appellant was tried upon his plea of not guilty to an indictment in two counts, each of which charged him with reckless homicide under § 47-2001, Burns' 1940 Replacement. After being instructed the jury returned a verdict as follows: *Page 358
"We, the jury, find the defendant, Marvin Moore, guilty of the 1-2 count of the indictment, and that he be fined in the sum of $1000.00, and fix his age at 38 years.
William R. Conklin, Foreman."
"We the jury have resolved to give the defendant Marvin Moore 5 years suspended sentence and revoke his drivers license for a period of five (5) years.
William R. Conklin."
The latter statement was written by the jury immediately beneath the verdict.
Upon receiving this verdict, the trial court made the following record: "And the court having examined said verdict declares the same as being defective over the objection of the defendant. And the jury is again instructed by the court to amend and correct their verdict."
The record further shows: "And said jury, after due deliberation, now returns into open court, its verdict, which reads in words and figures as follows: (omitting caption)
"We, the jury, find the defendant, Marvin Moore, guilty of the 1-2 count of the indictment, and that he be fined in the sum of $1000.00 and imprisoned in the State Prison for an indeterminate period of not less than one year or more than five years, and fix his age at 38 years.
William R. Conklin, Foreman."
Judgment was rendered upon this verdict and against the defendant for costs.
A single question is presented on this appeal — the alleged error of the court in ordering the jury to correct *Page 359
its verdict, instructing it of and concerning the 1. correction required, and allegedly re-reading an instruction containing the statute upon which each count of the indictment is based. However, the instructions are not in the record by bill of exceptions or otherwise, and it is therefore quite impossible for the court to know what was in the instruction complained of, nor can we know what, if any, specific objection to the instructions was made to the trial court. Rule 1-7 Supreme Court of Indiana. Leverich v. State (1885),105 Ind. 277, 278, 4 N.E. 852; Rhodes v. State (1930),202 Ind. 159, 164, 171 N.E. 301, 172 N.E. 176.
No question is presented to us with reference to the alleged re-reading of an instruction by the court.
When, before the jury is discharged, the trial court observes that a defective verdict has been returned, he may order the jury to retire and correct the defect. Limeberry v. State
2. (1945), 223 Ind. 622, 626, 629, 63 N.E.2d 697, and cases there cited.
Appellant contends that the court should have rendered judgment upon the verdict first returned, ignoring the penciled resolution at the bottom thereof. If this contention had been sustained by the trial court, it then would have been its duty to fix the penalty at a fine of not less than $100 nor more than $1000 and imprisonment in the state prison for an indeterminate period of not less than one year nor more than five years, agreeable with § 9-1821, Burns' 1942 Replacement. Had the court accepted appellant's contention and passed judgment on the first verdict, disregarding the appended resolution, appellant's position would not have been bettered or changed.
Of course, under § 9-1821, supra, the jury could not fix the punishment which would bind the court in *Page 360
passing sentence upon a verdict of guilty. The court 3, 4. must give the sentence provided by law. Males v. State (1927), 199 Ind. 196, 199, 156 N.E. 403. Since the verdict complained of found the defendant guilty as charged in the indictment, and that he was 38 years of age, all else contained in the verdict was mere surplusage. Mahok v. State
(1931), 202 Ind. 473, 475, 174 N.E. 281. The judgment of the court is within the penalty fixed by the statute, and agreeable with the effective part of the verdict. Appellant's rights have been in no way invaded.
Finding no error, the judgment is affirmed.
NOTE. — Reported in 75 N.E.2d 193. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427581/ | Appellee, Kosciusko Building and Loan Association entered into a contract with appellee, Smoger Lumber Company, whereby the lumber company agreed to construct a building for the loan association on real estate belonging to it. While the building was in progress of *Page 622
construction the lumber company entered into a contract with appellant whereby it was to furnish at an agreed price of $537.00, plate and mirror glass of various descriptions for use in the construction of said building.
All plate glass and mirrors were delivered by appellant in boxes upon the premises where the building was in process of construction by the 11th day of July, 1929.
On or about the 1st day of August, 1929, the mirrors were unpacked from the boxes and installed by the lumber company, as contractor, in the building. The installation consisted of introducing the mirrors into false window framing recesses in the brick walls, having been left for that purpose, and framing around the mirrors. In all there were 84 mirrors which required two men three or four days to install and none of which mirrors, prior to their installation, were inspected by either the contractor or architect.
A few days after the installation of the mirrors which, at the time of the installation, had dirty and dusty surfaces, the architect and secretary of the loan association observed what appeared to be murkiness in the mirrors and brush and stencil marks.
On the 21st day of September, 1929, the contractor communicated to the appellant the complaint of the loan association that the mirrors were defective. The contractor had already paid on account to the appellant $337.00 leaving a balance of $200.00 which was being held back by the loan association because of the defective mirrors. The appellant then examined these mirrors, offered to resilver them, and pay the freight to and from Toledo, Ohio, if the contractor would take them out of their recesses and replace them therein at the contractor's expense, on their return from appellant's factory. The contractor refused to pay for the *Page 623
removal and replacement so as to this proposition nothing more was done.
In January, 1930, the contractor demanded of appellant that it remove all the mirrors and replace the same, standing the cost of removal and replacement. Appellant then removed one mirror which, according to its agent, contained defective glass, as distinct from defective silvering of which appellee complained, and replaced the same, but declined to remove and replace the remainder but again offered to stand the cost of resilvering and the freight both ways to and from its place of business in Toledo. This proposition was again refused.
On February 18, 1930, appellant filed a notice, directed to the loan association and the contractor, of its intent to hold a mechanic's lien against the property of the loan association to secure the payment of the balance of $200.00 and interest. Suit was brought to foreclose this lien on the 24th day of June, 1930.
To the complaint the contractor filed a cross-complaint alleging the defects in the mirrors; that the mirrors were sold to the contractor by the appellant pursuant to certain specifications; that the loan association declined and refused to pay for the construction of said building because of the defective mirrors; that the value of the mirrors in good condition would have been $312.80; that it will cost the contractor $120.00 to replace and remove them to its damage in the sum of $432.80 for which it asked judgment.
A general denial was filed by appellant together with a second paragraph of answer to the cross-complaint alleging that the contractor waived any and all grounds for rejecting the mirrors or for any action on account of defects, by accepting the mirrors and incorporating them in the building, after it had ample opportunity for inspection and rejection thereof for the defects *Page 624
claimed. The issues were closed by a general denial to this second paragraph of answer.
Trial was had by court and he found that appellant take nothing by its complaint and that the contractor recover on its cross-complaint and entered judgment for the contractor against the appellant for $405.00 together with the costs of this action.
Appellant's motion for new trial contained the following grounds: (1) that the decision of the court is not sustained by sufficient evidence; (2) that the decision of the court is contrary to law; (3) that the court awarded excessive damages against the plaintiff; and (4) that there was error in the assessment of the amount of recovery against plaintiff, the same being too large. The overruling of this motion is assigned as error on appeal.
After stating the facts, KIME, J., rendered the following opinion.
Appellant contends that the contractor waived the defects observable in the mirrors by accepting and incorporating them in the building and cites the case of Pottlitzer et al. v. Wessonet al. (1893), 8 Ind. App. 472, 35 N.E. 1030. This case is not applicable to the case at bar for the reason that when the merchandise in the Pottlitzer case arrived at the purchasers' place of business, after examination of said merchandise the purchasers communicated with the seller notifying him that the merchandise was not the quality ordered. The seller wired to the purchaser that the merchandise was the quality ordered and that the purchaser must accept it as such. The purchasers then took the merchandise into their possession and sold it.
It can be seen that the purchasers, regardless of the fact that they knew the merchandise to be defective, accepted it as the quality ordered and, consequently, were in no position to object to its imperfections. In *Page 625
the case at bar the statement for the mirrors is as follows:
"THE TOLEDO PLATE WINDOW GLASS CO. Toledo, Ohio
Cutomer's Name Smoger Lbr. Co. City, South Bend, State, Ind. Street County Estimate No. Date Price Shipping Instructions. Terms: One per cent discount ten days fro date of invoice; thirty days net. All agreements are contingent upon strikes, accidents or other causes beyond our control. ----------------------------------------------------- Glass for Kosciusko Bldg. Loan Co. as per plans spec. except that 4 mitred mirrors are changed to small mirrors not mitred. No skylight or ceiling lights or fixture glass. (Our italics.)
$515. F.A. Customer's signature ROY HAYS Salesman C.L. Lowry, Date 5/1/29."
and an officer of appellant testified that he was familiar with the terms of the contract of construction between the contractor and the loan association.
There existed as to such mirrors, as can be seen from the above, an implied warranty as to the fitness for the use to which they were to be put under the contract. J.F. Darmody Co.
1-3. v. Moss (1927), 86 Ind. App. 426, 158 N.E. 489; Zimmerman v. Druecker (1896), 15 Ind. App. 512, 44 N.E. 557; Conant et al. v. The State Nat'l. Bank of TerreHaute et al. (1889), 121 Ind. 323, 22 N.E. 250. A purchaser has a right to rely upon the warranty and it is immaterial whether the purchaser had an opportunity to examine the goods or not.The First Nat'l. Bank of Kansas City v. Grindstaff et al.
(1873), 45 Ind. 158. "It is settled law that when an article of merchandise is to be supplied to a purchaser thereof by the manufacturer for a definite use or purpose and that particular *Page 626
use is known to the seller, there is an implied warranty that it will be reasonably suitable for the purpose intended by the purchaser." Edwards Manufacturing Co. v. Stoops (1913),54 Ind. App. 361, 364, 102 N.E. 980.
Appellant cites several cases to support its proposition that a materialman is not bound by the stipulations in a contract between contractor and owner, however, that proposition 4, 5. is not applicable to the facts here. As an abstract statement of the law it is true that a materialman is not bound by the stipulations in a contract between contractor and owner, but it ceases to be true when other elements enter into a state of facts as in the case at bar. As above shown the evidence disclosed that appellant was familiar with the terms of the contract entered into between the contractor and the loan association and the statement shows that the mirrors were furnished in accordance with the plans and specifications. The contract with reference to materials says that "unless otherwise specified, all materials shall be new and both workmanship and materials shall be of good quality." (Our italics.) The question of "good quality" was a question of fact for the court to determine from the evidence and by his judgment he found that the mirrors were not of good quality. The finding is supported by undisputed evidence.
Appellant further contends that it is not liable on a warranty for defect in materials and cites in support thereof the case of Michigan Pipe Co. v. Sullivan County Water Co.
6. (1920), 190 Ind. 14, 127 N.E. 768, 129 N.E. 5. This case is not analogous to the case at bar for the reason that in that case the method of manufacture was specifically set out in the contract between the parties and the rule there followed is that "where an article manufactured and sold is specifically *Page 627
and definitely described in the contract or where it is to be of a particular design and pattern well defined and understood between the parties, and where the thing furnished conforms in all respects with the description as specified in the contract, the law will not raise an implied warranty that it shall serve the particular purpose for which the buyer intends to use it, even though the buyer makes known to the seller the purpose for which the article is intended." In the case at bar the buyer depended upon and contracted with the seller to furnish goods of the quality specified in the specifications, which were known to the seller. The specifications required that mirrors of good quality be furnished. The evidence discloses that this was not done.
This brings us to the last assignment that the damages fixed by the trial court are excessive. There is evidence in the record from which the trial court could have found, as it did, 7. that the damages were $405.00, consequently we find no error in this assignment.
The judgment of the St. Joseph Superior Court is in all things affirmed and it is so ordered. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4302119/ | IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 54 WAL 2018
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
RONALD WILLIAMS, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 18th day of July, 2018, the Petition for Allowance of Appeal is
DENIED. | 01-03-2023 | 08-09-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3427583/ | This is an appeal from a judgment recovered by the appellees, Florence C. Free and Jack C. Free, the widow and son, respectively, of Carl C. Free, deceased, who died of silicosis, contracted while employed by the appellants as a stone cutter.
On May 5, 1939, the appellants and the appellees entered into a written contract of compromise and settlement which recited the death of Carl C. Free from silicosis; that the appellees were his dependents, and that whereas
"a controversy has arisen between the first party (the appellees) and second party (the appellants) as to the second party's liability and amount owe by virtue of the disability and death of the said Carl C. Free, and
"WHEREAS for the purpose of compromising the differences between said parties and reaching a settlement of said claim of first party against the second party,
"It is now therefore agreed in consideration of first party not filing any cause of action in any circuit court, or before the Industrial Board of the State of Indiana, except a petition known as form number 110, the said second party agrees to pay to first party the sum of thirty-seven hundred fifty dollars ($3,750.00) in full compromise settlement of all claims and demands of first party against the second party which may grow out of or exist by the death of the said Carl C. Free of his employment by second party. . . ."
The agreement then proceeded to provide for the method of the payment of said sum, for certain credits *Page 571
thereon and that in the event of the termination of the dependency of Jack C. Free, prior to the completion of the payment of the entire amount, the amount being paid for him should then belong and be paid to the widow, Florence C. Free. It further provided that it was being executed between the parties "for the purpose of settling all differences, without further litigation and expense to each party, and shall be effective for all purposes. . . ."
On May 7, 1939, the parties filed with the Industrial Board of Indiana form number 110 which they had executed and which recited the facts of the decedent's employment, the relationship and the dependency of the appellees, the terms of the agreement for the payments of compensation and that the agreement had been made after negotiations in which the parties were represented by their respective attorneys.
The Industrial Board of Indiana refused to take jurisdiction of the matter for the reason that the appellants, as employers, had not expressed their intention of operating under the Indiana Workmen's Occupational Diseases Act by filing notice, in writing, of such election with the Industrial Board. § 40-2204, Burns' 1933 (1940 Replacement), § 16502, Baldwin's 1934 (1937 Supplement). At the time the agreement was made between the parties hereto neither the appellees nor their attorneys had any knowledge of the fact that the appellants had failed to comply with the provisions of said Occupational Diseases Act and that it would, therefore, be impossible for the Industrial Board to enter an award.
On being informed that the Industrial Board refused to take any action in the matter the attorney for the appellees had a conference with the attorneys for the appellants and demanded that the compromise agreement *Page 572
be carried out. Speaking of this conference the attorney for the appellees testified "I told him my clients were expecting his clients to pay Three Thousand Seven Hundred and Fifty Dollars, less the credits and the surrendering of that note."
Q. "What did he say?"
A. "He said he didn't know what they was going to do, because the Industrial Board wouldn't have anything to do with it and I said that didn't make any difference, as I would file a suit at Albion, and we could stipulate the terms of the contract so his clients would be fully protected and he said he would let me know in a day or two." And again ". . . I made the statement I would file a common law action and we would stipulate the case, in order that his clients might be protected. There was a question of protection of the defendants on account of the minority of Jack Free." And again in redirect examination he testified ". . . the conversation that Mr. Crowell and I had was to the effect there would be a common law action filed and we would stipulate Plaintiffs' Exhibit 1 into a judgment, so everyone would be protected and . . . I so informed Mrs. Free."
In answer to the question "Did you state, Mr. Probst, that on this ocasion on May 25th that Mr. Crowell told you the reason why the defendants were not paying this Three Thousand Seven Hundred and Fifty Dollars was on account of the minority of Jack C. Free?" A. "Yes, that is one of the things we discussed, because his name had been signed to this contract by his mother and he was a minor." Q. "And that is when you told him that the contract could be amended and a common law case filed and the contract stipulated into the judgment so that his clients would be protected?" *Page 573
A. "Yes, and Mrs. Free could be made administratrix."
Mrs. Free, shortly thereafter, moved her home to Omaha, Nebraska. She testified that before she left for Omaha she understood that the agreement would be carried out in some manner. The attorney for the appellant testified that he, in said conversation with the attorney for the appellee, ". . . perhaps stated as one reason for considering the contract as of no effect the fact that one of the plaintiffs was a minor and one of the principal purposes of this agreement and submission to the Industrial Board was in order to safeguard the defendants in this case from any further claims and liability on the part of this minor and that if there was no award made by the Industrial Board that the defendants here would be without that protection and in reply to that Mr. Probst suggested that this contract be submitted to the Noble Circuit Court on some petition for damages, or otherwise, and the terms and conditions of that contract be submitted to the Noble Circuit Court for judgment. . . ."
This conversation took place May 26, 1939, and without any further conversation between the attorneys or between the parties, a complaint for damages was filed on June 23, 1939. Appearance was entered for the defendants (appellants) and they were ruled to answer on or before October 2, 1939. On October 4, 1939, they filed a motion to strike out certain parts of the complaint which motion was sustained in part and they then filed a demurrer to the complaint, which was sustained. The plaintiffs (appellees) then filed an amended complaint in two paragraphs, one similar to the original complaint for damages for negligence and the other on the compromise agreement. *Page 574
To this complaint in two paragraphs the appellants demurred on the ground that several causes of action had been improperly joined in said complaint. The demurrer was sustained by the court and the clerk was directed to docket the second paragraph of said complaint as a separate cause of action and the appellees were ordered to file a complaint in each of said causes forthwith. The judgment for which this appeal is prosecuted was rendered in the action on the contract. The other action for damages for negligence is still pending.
The appellants make two principal contentions in this appeal. In the first place they insist that the stipulation in the agreement that an award of the Industrial Board should 1, 2. be obtained was a vital condition of the contract and one which went to the very heart of the cause for which the appellants were contracting.
While the parties had a right to contract that an award by the Industrial Board should be a condition precedent to the liability of the appellants to pay, we have seen that said condition in this case was impossible of performance for the reason that the appellants had not complied with the provisions of the Indiana Workmen's Occupational Diseases Act in such a manner as to bring them within the act and give the Industrial Board jurisdiction. At the time the agreement was made appellants knew they had not taken the necessary steps to comply with said act and were bound to know that an award of the Industrial Board could not be procured. When a promisor stipulates in a contract for the performance of a condition which he then knows cannot be performed, and the impossibility of performance is unknown to the other party to the contract, the promisor must be held to have *Page 575
intended to make himself absolutely liable without regard to the performance of the condition. 17 C.J.S. § 462 and cases there cited. See, also, Kimball Milling Co. v. Greene (1942), Court of Civil Appeals of Texas, 162 S.W.2d 991.
The principal contention urged by the appellants in this case, however, is that the appellees, by filing the action for damages for negligence, made an election of remedies by which they were precluded from thereafter maintaining an action on the contract.
The appellants contend for the application of a strict rule on election of remedies, a rule which would preclude a party having two inconsistent remedial rights, who has merely commenced an action to enforce one of such rights from thereafter maintaining an action on the other right even though the first action was dismissed before judgment or the original complaint was amended to present the alternative remedy. Appellants say that the mere commencement of the first action amounts to a binding election of remedies, even though there was no advantage to the plaintiff or detriment to the defendant, and even though the plaintiff was not put to an election by the defendant. Some decisions in other states seem to have gone that far.
There seems to be considerable confusion among the decisions as to the true basis for the doctrine of election of remedies. 28 C.J.S. pp. 1058-1060, 18 Am. Jur. pp. 130, 131. Some courts have said that the doctrine is but an application of the maxims of "he who seeks equity must do equity" and that "a person shall not be twice vexed for one and the same cause." Some courts have said that the doctrine is properly regarded as an application of the law of estoppel and that it will not be applied unless it is shown that the plaintiff *Page 576
has derived a benefit or the defendants will suffer an injury from a failure to apply the doctrine.
Other courts, however, have said that the doctrine is applicable even though no benefit has been derived by plaintiff or wrong suffered by defendant. Still other decisions have referred to the doctrine of election of remedies as "waiver by election." Brice v. Walker (1920), 50 Cal. App. 49,194 P. 721.
Some later cases have recognized the doctrine as a harsh rule and have attempted to confine its use within more narrow bounds. In First National Bank of Osakis v. Flynn (1933), 190 Minn. 102,250 N.W. 806, the court said that the true purpose of the doctrine "is not to prevent recourse to any remedy but to prevent double redress for a single wrong."
In National Lock Co. v. Hogland (1939), 101 F.2d 576, the court said, "The formal doctrine of election of remedies by judicial decisions has been confined gradually to its true remedial purpose as a doctrine of substance; and as stated by an eminent authority on trusts and trustees, should be confined to cases `where (1) double compensation of the plaintiff is threatened or (2) the defendant has actually been misled by the plaintiff's conduct or (3) res adjudicate can be applied.' Bogart, Trusts and Trustees, 1935, Vol. IV, § 946."
We have found only three decisions of our court involving the question of election of remedy by a party plaintiff where the facts were similar to the facts in the instant case.
In Nysewander v. Lowman (1890), 124 Ind. 584, 24 N.E. 355, a complaint was filed to rescind a contract and was then amended to state an action for damages for fraud. Defendant's answer to the amended complaint stated that the plaintiff, by his original complaint, *Page 577
had elected to rescind the contract of exchange and that by reason of such election was precluded from prosecuting his action for damages. In deciding against the defendants in that case this court said:
"Nor is it always true that the mere bringing of a suit for recission will bar an action for damages. (Citing cases.) It is no doubt true, as a general rule, that the prosecution of a suit for recission to judgment will preclude an action for damages. But even this rule is held not to be without exceptions. Where two actions are pending at the same time an election may be compelled, and where expressly made it is ordinarily conclusive. (Citing case.) But where there is no election compelled by the action of the adverse party, and nothing more is done than to file a complaint for recission, and in the same proceeding so amend it as to make it a complaint for damages, there is no such act or conduct as concludes the plaintiff. . . ."
In Cohoon v. Fisher. (1896), 146 Ind. 583, 44 N.E. 664, 45 N.E. 787, this court again said: ". . . the prosecution of one remedy must either be pending or have been prosecuted to final determination to bar or exclude another concurrent remedy for the same right.
"The amendment of the complaint superseded the original complaint. Therefore, the remedy invoked therein is not being prosecuted to determination. The exact question here involved was decided adversely to the contention of the appellee inNysewander v. Lowman, 124 Ind. 584. . . ."
In an opinion denying a rehearing in this case, however, the court stated that where the first suit commenced is for a recission of the contract, its commencement is nothing more than a bare choice of remedies and that its commencement and abandonment are *Page 578
not inconsistent with the continued subsistence of the contract, or a subsequent suit affirming such contract. The court recognized that courts of other states were not in harmony with this theory by saying, "There may be cases in other jurisdictions establishing a different rule, making the commencement of either suit first a conclusive choice of remedies without prosecution to final judgment. But we are of the opinion that the better rule is that established in this State, and we adhere to it."
In McCoy et al. v. Stockman et al. (1897), 146 Ind. 668, 46 N.E. 21, a large number of persons sued a warehouseman, alleging that the grain of the plaintiffs had been stored in said warehouse and intermingled, and sought to have the grain then remaining in the warehouse delivered to a receiver for disposition in order that they might share proportionately in the proceeds. Later nine of the plaintiffs dismissed as plaintiffs, were granted permission to become defendants, and then filed a cross-complaint alleging that their grain was of a certain kind, had been stored in a certain bin, had not been intermingled with the grain of the plaintiffs and that they as owners of the entire property in their said grain were entitled to the delivery thereof. To this cross-complaint the plaintiffs filed an answer alleging that the cross-complainants, with full knowledge of the facts alleged in said complaint and cross-complaint, had elected to join with the original plaintiffs and asked to recover with them as tenants in common and asked for the appointment of a receiver; and that said cross-complainants are, therefore, estopped to plead the matters set forth in their cross-complaint. The court held, however, that the action of the cross-complainants did not amount to a "choice or election of remedies so as to estop them *Page 579
from becoming defendants and setting up the matters involved in their cross-complaint." As authority for this holding Cohoon v.Fisher, supra, was cited.
While there have been references to the doctrine of election of remedies in later cases in this court, McCoy et al. v.Stockman et al. supra is the last decision of this court which we have found in which the facts were similar to the facts in the instant case.
None of the above three decisions of this court would require us to hold that the action of the appellees in first filing a complaint for damages for negligence precluded them from later amending their complaint to present an action on the contract of compromise and settlement.
It is true that an action for damages on the original tort does negative the fact that a valid compromise agreement was later entered into and it is therefore true that an action on the original tort is inconsistent with an action on the contract which was entered into to compromise and settle the tort claim. The original tort action, however, was not prosecuted to a judgment. No advantage was gained by the appellees and no harm was suffered by the appellants. The appellants did not claim to have been misled to their detriment. There is no contention that the appellees at any time during these proceedings took any step to compel an election by the appellees.
The appellants do not contend that after the original complaint was amended to include a paragraph for negligence and a second paragraph on the contract there was any election of 3. remedies by the appellees. The inclusion of the inconsistent actions in one complaint did not constitute an election of remedies and the action of the court in separating the actions, by having the two paragraphs docketed *Page 580
separately, cannot be charged to the appellees. After the actions were separated the appellants are not shown to have taken any step to abate either action.
Election of remedies, as the name implies, imports an intentional, deliberate choice of remedies by the party making the election. While a party would not be permitted to 4, 5. choose one inconsistent remedy and prosecute an action thereon to a conclusion and then contend that he did not intend thereby to abandon or waive another inconsistent remedial right, we are not confronted with that situation in this case. Here there was sufficient evidence for the trial court to have found that the appellees, when the original tort action was filed, not only did not intend to waive their rights under the contract of settlement, but that they did not intend to prosecute the tort action to recover damages for negligence from the appellants. From the testimony and the record in this case the trial court was justified in finding that the original tort action was filed only for the purpose of furnishing a means of securing a binding judgment for the amount which the appellants had agreed by their contract to pay to the appellees; that the tort action, instead of negativing the contract, recognized the contract and was a method of carrying out its terms. The original complaint was in the regular form of a complaint for damages for negligence, but this is the type of complaint which the attorney for the appellees told the attorney for the appellants would be filed in order to provide a method for procuring a judgment which would be binding on the infant appellee. The fact that the attorney for the appellants did not expressly agree that this course of procedure should be followed is not controlling. It is the intention and purpose of *Page 581
the party alleged to have made the election which is controlling.
When the appellants by their election to strike out parts of the complaint and by their demurrer, both filed on the same day, indicated that it would be impossible in the tort action to have a judgment stipulated which would embody the money payment agreed to in the contract of settlement, the attorney for the appellees then amended his complaint by including a paragraph on the contract. This conduct by the attorney for the appellees as shown by the record, his statements to the attorney for the appellants and the testimony of the adult appellee that it was her understanding that the contract was to be carried out in some manner, all taken together furnished a strong basis for a finding by the trial court that the filing of the original complaint did not constitute an election of remedies which would preclude the appellees from amending the complaint to include an action on the contract.
Here the parties entered into a contract, agreeing that the appellants were indebted to the appellees in a certain sum because of the death of Carl C. Free from disease 6. contracted while employed by the appellants. It was their purpose by this contract to completely compromise and settle all claims which the appellees might hold against the appellants, whether existing by reason of a claim for damages for negligence or a claim for compensation under the Indiana Workmen's Occupational Diseases Act. The particular method of protecting the appellants against the infant appellee by an award of the Industrial Board was impossible of performance because of the fault of the appellants in failing to bring themselves under the act. The judgment from which this appeal is prosecuted will protect the appellants from further claims. *Page 582
In Rooker v. Fidelity Trust Co. (1921), 191 Ind. 141, 161, 131 N.E. 769, we said "The doctrine of election of remedies is of equitable origin. It has no application to the circumstances of this case, for to apply it here would work to the great harm and loss of the appellee trust company and the unearned and undeserved large money benefits to appellants. . . ." So in the instant case it would seem to us to be inequitable to disturb the judgment which the appellees have recovered in this case and to hold that they are precluded from a recovery on the contract of settlement which was entered into by all parties in good faith. To hold otherwise would be to permit a doctrine of equitable origin to be used to accomplish an inequitable result.
The appellants have relied on cases from other states and cases from the Indiana Appellate Court to support their contentions on the election of remedies. While they have quoted language apparently favorable to their contention from opinions of the Appellate Court, the facts of most of those cases are distinguishable from the facts in the instant case.
In American Car etc. Co. v. Smock (1910), 48 Ind. App. 359, 91 N.E. 749, a defendant having secured and retained a release from the plaintiff was held not to be in a position, in an action to recover part of the consideration for the release, to deny that the contract by which the release was obtained was its contract. The court said that this was on the theory of estoppel by election and then stated a broad rule on the election of remedies.
In Nave v. Powell (1916), 62 Ind. App. 274, 110 N.E. 1016, while the court used some language favorable to the contention of the appellants, it was held that there had been no election of remedies in that case because there had actually been only one remedy available *Page 583
and as the court said "The doctrine . . . has no application where a party erroneously thinks he has a remedy that does not in fact exist. . . ."
In Pittsburgh Plate Glass Co. v. Young (1926),84 Ind. App. 313, 151 N.E. 227, the court said that when a contract is repudiated by one party the other party may elect to treat the contract as breached and sue for damages suffered by reason of such breach, "And when he does so elect, and brings his action based upon the remedy which he has elected, with knowledge of the facts, and of his rights, he may not thereafter maintain his action upon an alternative remedy which is inconsistent with the remedy which he has elected to follow." In that case the court was speaking of the adoption by the plaintiff of an "inconsistent theory" twenty-two years after his right of action accrued and nine years after he had elected to prosecute another remedy.
In Kimmel v. Captain et al. (1940), 107 Ind. App. 621, 24 N.E.2d 435, the court defined what constituted inconsistent remedies but held that since the remedies in that case were not inconsistent there was no basis for the application of the doctrine of election of remedies.
In National Hame and Chain Co. v. Robertson (1928),90 Ind. App. 556, 161 N.E. 851, while the facts were not similar to the facts in the instant case, the court there, in speaking of election of remedies, said, "A choice of remedies is not binding on a party plaintiff unless the remedy chosen has been prosecuted to a conclusion." As authority for this statement the court citedCohoon v. Fisher, supra.
We find no reversible error. The judgment is affirmed.
NOTE. — Reported in 55 N.E.2d 318. *Page 584 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427582/ | This is an appeal from a judgment rendered in an action on account by appellee to recover the sum of $1,480.05 for two carloads of bananas. Issues were joined on appellant's answer to paragraph III of appellee's complaint, and appellee's answer to appellant's amended cross-complaint. The prayer of this cross-complaint asked that the sum of $2,461.51 be set off against any sum found due appellee on its complaint. The set-off was claimed for alleged loss suffered by appellant on two other carloads of bananas, allegedly caused by the breach of an agreement with one Carlos Betancourt, Jr., who was alleged to be an agent of appellee in such sale.
The cause was submitted to the court for trial, without a jury, and the court found for appellee on its complaint and rendered judgment for appellee in the sum of $1,480.05, and rendered judgment that appellant take nothing on its amended cross-complaint. The court overruled a motion for a new trial filed by appellant and this appeal followed.
The sole error assigned in this court for reversal is the action of the trial court in overruling appellant's motion for a new trial. Grounds of appellant's motion for a new trial were that the decision of the court is not sustained by sufficient evidence and is contrary to law. By its propositions, points, and authorities, appellant does not question the action of the trial court in rendering judgment on appellee's complaint, but challenges the action of the trial court in denying relief to appellant on its amended cross-complaint. Accordingly, the issue is limited to the questions presented by the action of the court in denying relief to appellant on its amended cross-complaint.
It is well settled that where one party carries the burden of proof as the appellant did herein on a cross-complaint, *Page 395
where the judgment is against the party so carrying the 1. burden of proof, an assignment in the motion for a new trial that the decision is not sustained by sufficient evidence is inappropriate to present any question upon appeal for the reason that a negative verdict or decision may not be attacked upon the ground that there is lack of evidence to support it. Wilson, Admx. v. Rollings (1938), 214 Ind. 155,14 N.E.2d 905; McKee v. Mutual Life Ins. Co. of New York
(1943), 222 Ind. 10, 51 N.E.2d 474; Rowe v. Johnson (1945),223 Ind. 289, 60 N.E.2d 529; Smith, Executrix, v. Strock,Executor (1945), 115 Ind. App. 518, 60 N.E.2d 157; Myers v.Brane (1944), 115 Ind. App. 144, 57 N.E.2d 594; Scoopmire v.Taflinger (1944), 114 Ind. App. 419, 52 N.E.2d 728; Easton
v. Board of Commrs. (1947), 117 Ind. App. 616, 75 N.E.2d 169.
Therefore, the question remaining for our determination is whether the decision and finding of the trial court that the appellant take nothing on its cross-complaint was contrary 2. to law. In determining this proposition, we must consider the evidence most favorable to the appellee, together with any reasonable inferences which may be drawn therefrom. Rowe v.Johnson, supra; Craig, Exrx. v. Citizens Trust Co. (1940),217 Ind. 434, 26 N.E.2d 1006.
It is only where the evidence is without conflict and leads inescapably to but one reasonable conclusion, and the trial court has reached a contrary conclusion, that the verdict or 3. decision will be set aside on the ground that it is contrary to law. Rowe v. Johnson, supra; Clapham v.City of Huntington (1941), 109 Ind. App. 244, 32 N.E.2d 118. *Page 396
Appellant's amended cross-complaint claimed a breach of an agreement between appellant and one Carlos Betancourt, Jr., who was alleged to be appellee's agent in the sale of two 4. carloads of bananas which resulted in loss to appellant. This cross-complaint alleged that the said Betancourt overloaded the cars in violation of the agreement and neglected to ice said cars, by reason whereof more than one-half of the bananas contained therein were rotten at the time they were received in Indianapolis. Appellee's answer to appellant's amended cross-complaint denied the above facts of negligence and the alleged violation of such agreement. The burden of proof was upon appellant to sustain these allegations of its cross-complaint.
An examination of the record discloses that there was evidence from which the trial court was fully justified in reaching the conclusion that the appellant had failed to discharge the 5. burden resting upon it to prove the averments of said amended cross-complaint by a fair preponderance of the evidence. There was evidence from which a reasonable and proper inference could have been drawn by the trial court that the alleged damaged condition of the bananas was not due to any fault or negligence of Betancourt as alleged in appellant's amended cross-complaint, but was due to the fault and negligence of appellant in permitting the bananas after their arrival in Indianapolis to remain in the car 24 hours in the month of July. The testimony of appellant's own witness, J.E. Dickerson, was to the effect that the bananas in the railroad cars could not stand the temperatures reported by Mr. Mackensen, Chief Inspector for the Railroad Perishable Inspection Agency, for 24 hours without showing the cooked appearance which he reported, *Page 397
and that that kind of temperature would produce the spoilage reported. There was also evidence that there were a few large chunks of ice in the bottom of the cars showing that these cars had been iced to some extent.
This court will not weigh conflicting evidence, and there was clearly evidence from which the trial court was justified 6. in finding against appellant on its amended cross-complaint.
Therefore, it is not necessary for us to pass upon the questions which are presented at length in the briefs on the alleged agency relationship between Betancourt and the appellee, since regardless of this relationship, there was evidence in the record which would fully justify the trial court in reaching the conclusion that appellant had failed to discharge the burden of showing any breach of the alleged agreement and negligence on the part of either appellee or Betancourt, the alleged agent for appellee, as alleged in appellant's amended cross-complaint.
The court did not err in overruling appellant's motion for a new trial. The judgment of the lower court must be affirmed.
Judgment affirmed.
NOTE. — Reported in 78 N.E.2d 447. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427588/ | An affidavit in two counts was filed against appellees, which charge that on May 22, 1925, they unlawfully and knowingly had in their possession at Greene county, in the State of Indiana, a seine for the purpose of taking fish from the "Lattas Creek pond," which seine was not kept only for use in private ponds, and was not kept within two miles of Lake Michigan, or the Ohio river or the Wabash river, etc., and also that, at said county, they took with a seine 300 pounds of fish from the Lattas Creek pond, which was not then and there a private pond. To these charges they entered a plea of not guilty. The jury returned a verdict finding them not guilty, and the state, by reserved questions of law, seeks to challenge the action of the trial court in refusing to give an instruction asked by the prosecuting attorney, and in giving certain instructions on his own motion. The appellees have not favored us with a brief.
There was little dispute in the evidence, which was to the effect that the pond in question consisted of water in an old channel of White river, near the present channel of the river and near Lattas creek; that at that time the water in the pond was about three feet deep and 200 feet wide and extended in a half-moon shape about one-half mile; that it had been known as a pond for many years, witnesses who had known it for forty-five years or less testifying that it had always been cut off from the river and creek at low water since they could remember, but that, in times of heavy rainfall or freshets, the creek and river would overflow into the pond and connect with it, filling the pond to their level; that in the wet summer of the year before this action was commenced, the river and creek had overflowed the *Page 237
pond two or three times, and in the winter and spring, the river frequently connected with the pond so that fish could pass from one to the other; that sometimes the river got so high as to overflow the pond and all the bottoms surrounding it; that the river had overflowed and connected with the pond earlier that same spring; that at the time of the alleged offense, the waters of the pond were partly on land owned by Homer Lowder and partly on land owned by Mrs. Reed Let-singer, without anything in the pond for a dividing line, and the lands of an adjoining owner were partly covered by the pond when the water was high; that defendants borrowed the seine from an owner of part of the land on which the pond was situated, and had permission from him and from the husband of the other owner of such land to seine fish from the pond; that the water in the pond sometimes would get so low in a dry season that the fish died, but witnesses for the defense denied ever seeing the pond entirely dry. Witnesses for the state, however, testified that it had gone dry five or six times in the past forty-five years. That the defendants took 300 pounds of fish from the pond with the borrowed seine, and put them in sacks, and that they took the fish with the intention of eating them.
The court gave instructions, the correctness of which is not challenged, that if the pond was so connected with any public waters that in times of freshets or high water fish could 1-3. go into it from such public waters and out again, it was not a private pond, whether they might so come out again the same day, or the next season; that if at times of high water, the pond was so connected with public waters as to permit the migration of fish to and from it the owner of the land on which the pond was situated did not have such an exclusive interest in the fish therein *Page 238
as to be immune from prosecution for taking fish therefrom with a seine; that the mere fact that, after the freshets and high water had receded, there was no longer, at low water, any connection between the pond and the river and creek which sometimes overflowed it would not make it a private pond; and that if the pond was located on two or more tracts of land owned by different persons, it would not be a private pond. These instructions correctly declared the law. People v. Bridges (1892),142 Ill. 30, 31 N.E. 115, 16 L.R.A. 684; People v. Lewis (1924),227 Mich. 343, 198 N.W. 957; Peters v. State (1896), 96 Tenn. 682, 36 S.W. 399, 33 L.R.A. 114; Ex parte Fritz (1905),86 Miss. 210, 38 So. 722, 109 Am. St. 700; 11 R.C.L. pp. 1017, 1044. But the court refused to give a further instruction that if the water in the pond would dry up at certain periods, and, by reason thereof, at such times, any fish then in the pond would die, these facts would not make it lawful for the defendants in this action to remove fish therefrom by the use of seines. This instruction must have assumed it to be a fact that the defendants were not connected with the department of conservation, nor operating under its direction to take the fish "for purposes connected with fish or game culture, protection, preservation or propagation, or with scientific observation," since that department, by its agents and employees, is expressly authorized to take the fish "in any manner and at any time" for those purposes. § 4743 Burns 1926, § 19, Acts 1919 p. 375 (387). And the trial court did not err in refusing to give an instruction which would have invaded the province of the jury by purporting to declare the law on facts assumed to be true, instead of submitting to the jury for its determination the question whether or not those facts existed. *Page 239
The trial court also gave an instruction (No. 12) to the effect that if the pond from which the fish were taken was not and is not "a permanent body of water where fish can have a 4. reasonable abiding place throughout the year," or if it "at times gets so low or goes dry, thereby permitting the fish to suffer and perish" then "taking fish from such body of water with the seine described in the evidence would not be a violation of law." This was error. The statute which forbids taking fish with a seine in any of the waters of this state, except Lake Michigan, the Ohio river, certain portions of the Wabash river, and private ponds, and forbids having possession of a seine for any such purpose, does not contain an exception as to streams or ponds which dry up, either wholly or partially in dry seasons. §§ 2831, 2846 Burns 1926, §§ 619, 613, Acts 1905 p. 584 (733, 735). And this instruction did not purport to base the declared immunity from prosecution upon the fact that defendants had seined these fish out of the pond on behalf of the department of conservation to preserve their lives by transferring them to streams or ponds which did not threaten to become dry. Nor was there any evidence on which to base an instruction to that effect. The instruction was erroneous.
The act of 1905, supra, two sections of which the defendants were accused of violating, does not contain a definition of the words "private pond," as therein used. And that 5, 6. expression, as distinguished from the "waters of the state," was clearly used in the common-law sense of describing a body of water wholly upon the lands of a single owner, or of a single group of joint owners or tenants in common, which did not have such connection with any public waters that fish could pass from one to the other. Peters v. *Page 240 State, supra; Bannon v. Logan (1913), 66 Fla. 329, 63 So. 454, L.R.A. 1916E 522; Ex parte Fritz, supra; Sherwood v.Stephens (1907), 13 Idaho 399, 90 P. 345; People v. Lewis,supra; People v. Collison (1891), 85 Mich. 105, 48 N.W. 292;Benscoter v. Long (1893), 157 Pa. 208, 27 A. 674;Reynolds v. Commonwealth (1880), 93 Pa. 458; State v.Blount (1885), 85 Mo. 543. But eight years after that act was passed, the legislature enacted another statute with relation to taking fish otherwise than by the use of a seine, and transporting fish caught in public waters, with exceptions as to "the owners of private ponds," which contained a provision that "the words `private ponds,' as used in this act, shall be construed to mean and include any body of water of not greater than twenty acres in area, lying wholly within or upon the land of any landowner." § 2845 Burns 1926, Acts 1913 p. 368 (370), § 6.
Obviously, this statutory definition of the words "private ponds," as used in the act of 1913, omits important elements of the common-law definition, as used in the earlier statute. But the court assumed that the statutory definition was controlling in this action, and gave an instruction (No. 7) by which it told the jury engaged in trying these defendants charged with the offenses of seining and possessing a seine, in violation of the act of 1905, supra, that "the statute defining the words `private pond'" defined it in the language above quoted from the act of 1913. This was error. The expression "private pond," as used in the act of 1905, under which defendants were being prosecuted, must be understood in its common-law sense, as declared by the other instructions which the court gave, and not in the more restricted sense in which it was used eight years later in the act of 1913.
The appeal is sustained, at the costs of the appellees. *Page 241 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427606/ | DISSENTING OPINION.
Dissents. I cannot concur in the above, and respectively dissent for reasons stated in my dissenting opinion in the case of Million v. Metropolitan Casualty Ins. Co., ante 628,172 N.E. 569. *Page 663 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3427607/ | Affirmed. | 01-03-2023 | 07-05-2016 |