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https://www.courtlistener.com/api/rest/v3/opinions/4059793/ | S30-/5
ELECTRONIC RECORD t%lm?5
COA # 02-14-00187-CR OFFENSE: 2
Kendell Najee Simington v. The
STYLE: State of Texas COUNTY: Tarrant
COA DISPOSITION: AFFIRMED TRIAL COURT: Criminal District Court No. 1
DATE: 06/25/15 Publish: NO TC CASE #: 1327054D
IN THE COURT OF CRIMINAL APPEALS
Kendell Najee Simington v.The
STYLE: State of Texas CCA#:
/iPPZLLAA/T^S Petition CCA Disposition:
FOR DISCRETIONARY REVIEW IN CCA IS: DATE:
JUDGE:
DATE: QCjIu/Zdir SIGNED: J PC:_
JUDGE: rah UMyc^a^^. PUBLISH: DNP:
MOTION FOR
REHEARING IN CCA IS:
JUDGE:
ELECTRONIC RECORD | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428225/ | The appellant filed suit to partition certain real estate in Elkhart County, alleging that her father, whose name was then William Brown Wood, was married to the appellee, whose name became by marriage Laura Beech Wood, on March 10, 1940, and that the appellee thereby became the second childless wife of William Brown Wood; that the real estate was conveyed to her father and the appellee on August 1, 1940, by deed wherein they were described as William B. Ming and Laura Ming, husband and wife, but that their true name was Wood and there was no person by the name of Ming actually connected with the conveyance; that on February 5, 1941, William Brown Wood's name was changed to William Brown Ming by order of the Elkhart Circuit Court; that the appellant is the only child of her father by a previous marriage and that neither her father nor the appellee ever filed any certificate with the clerk of the Elkhart Circuit Court stating their full name and residence as being engaged in transacting business under the name of Ming. The complaint alleges that by virtue of this conveyance her father and the appellee became the owners of the real estate as tenants in common, thus entitling appellant to an undivided one-half interest therein, subject to a life estate in one-third thereof in the appellee, and further alleges that to adjudge that appellant's father and the appellee took title as tenants by the entireties would be against the public policy of the State of Indiana. *Page 400
A demurrer to this complaint was sustained, the appellant refused to plead further and judgment was rendered against her. The correctness of the ruling on the demurrer is thus the only question presented.
A deed naming a non-existent grantee is a nullity and passes no legal title to anyone. Harwood v. Masquelette et al. (1932), 95 Ind. App. 338, 181 N.E. 380. This rule does not 1, 2. apply, however, to a person in existence who is described by a fictitious or assumed name, and if a living or legal person is intended as the grantee and identifiable, the deed is valid however he may be named in the deed, 16 Am. Jur., § 78, p. 483. In this case we are not concerned with any question of identification, for the complaint alleges that the appellant's father and the appellee were the rightful grantees (although as tenants in common), and the appellant's claim to title rests upon the same conveyance.
Section 56-111, Burns' 1933, provides that "All conveyances and devises of lands, or of any interest therein, made to two [2] or more persons, except as provided in the next following 3, 4. section, shall be construed to create estates in common and not in joint tenancy, unless it shall be expressed therein that the grantees or devisees shall hold the same in joint tenancy and to the survivor of them, or it shall manifestly appear, from the tenor of the instrument, that it was intended to create an estate in joint tenancy." And § 56-112 provides that the preceding section shall not apply to conveyances made to husband and wife. It is the settled rule in Indiana that a deed to husband and wife vests them with title by entireties so that, upon the death of either, the survivor takes the whole. Finney
v. Brandon et al. (1922), 78 Ind. App. 450, 135 N.E. 10. Where the relationship of husband and wife *Page 401
exists, and the deed contains no qualifying words, they need not be so described in the deed in order to create such estate.Richards et al. v. Richards (1915), 60 Ind. App. 34, 110 N.E. 103.
In the case at bar the grantees were not only husband and wife when the title was acquired but they were described as such in the deed without qualifying words. Under such circumstances 5. they took title by the entireties and upon the death of her husband the appellee took all.
We know of no reason why the rule concerning the acquisition of a title by persons in existence, in a fictitious or assumed name, would not apply to a husband and wife as well as to others, nor of any reason why an estate by the entireties could not be thus created.
The appellant asserts that the deed shows on its face that it was made for the purpose of some sort of concealment and for some purpose other than to advance the common family interest. 6. The complaint is silent as to their reason or purpose in taking the title in a fictitious or assumed name and there is no claim that if some sort of concealment was in fact intended it was fraudulent or harmful to anyone or that it was designed to or did work any injustice of any kind. The appellant's brief speaks of undue influence, but there is no allegation thereof or reference thereto in the complaint.
Although the complaint alleges the failure of the appellee and her husband to file a certificate in accordance with § 50-201, Burns' 1933, there is no allegation that they were 7. conducting or transacting business in this State, either individually or as partners, under any other than their real names, within the meaning of the statute, nor are there any *Page 402
other allegations in the complaint which the one referred to might support or to which it might apply. The appellant in her brief does not assert that this allegation lends any strength to her complaint and it does not appear to us to do so.
We have been cited to no case holding that it would be against public policy to adjudge the title taken in this case to be by entireties and we know of none. We are here not concerned 8. with creditors or others who might have been offended against nor with the difficulties appellee may have, if any, in disposing of the title, but if there are such difficulties they would be shared by the appellee if she were successful in this action. As between these parties at least, and on this record, the appellee is the owner of the real estate in question. The demurrer was properly sustained.
NOTE. — Reported in 47 N.E.2d 604. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428227/ | While engaged in the performance of his duties as Town Marshal and Street Commissioner of the appellant Town of Newburgh, the appellee's husband, Joseph Jones, on June 5, 1943, received an electric shock and died of coronary occlusion the following September 29. The appellee filed application for relief under the provisions of the Workmen's Compensation Act and, upon the hearing of such application before the Industrial Board, all facts essential and necessary to a recovery were agreed to and stipulated except the ultimate fact as to the causal connection between the electric shock and Joseph Jones' death. This issue was tried by the board and resulted in a finding that death was the proximate result of said electric shock and an appropriate award was duly entered. This appeal challenges the sufficiency of the evidence to sustain the finding on such issue.
Before the appellee's claim was heard the appellant filed a written request with the Industrial Board for an autopsy upon the body of Joseph Jones alleging therein that such autopsy would disclose the fact as to whether said decedent's death was due to electric shock or to causes unconnected therewith. This request was denied and on such denial the appellant predicates error.
Thus we have but two questions before us: (1) Is *Page 323
there any substantial evidence in the record tending to prove that the electric shock suffered by the decedent was the cause of his death; and (2) when and under what circumstances does an employer have the right to an autopsy?
The following hypothetical question was propounded to the witness, Justice F. Wynn, a duly licensed and practicing physician of Evansville, Indiana:
"If the plaintiff's deceased, Joseph Jones, was 60 years of age and prior to the 5th day of June, 1943, was a stout and healthy man, and, on that day he received a shock of electricity from a wire carrying 2300 volts of electricity, which shock threw him some 20 feet and from which he became unconscious; that thereafter he was taken to his home and because of said shock was required to remain in bed for two weeks; that thereafter he continued his work as town marshall and street commissioner of the town of Newburgh but that after said shock he had dizzy spells and was unable to breathe properly and had no appetite for food and that he was unable to sleep and rest at night and that on the 29th day of September, 1943, following said accident Joseph Jones died, from the facts stated, doctor, what is your opinion as to whether or not this electric shock could have caused his death or approximately contributed thereto?"
Before it was answered this question was amended to further assume that the decedent had had no heart trouble and worked every day prior to the time he received the electric shock. Upon the above hypothesis the doctor testified as follows:
"When you have an electric shock of high voltage, it is my understanding, that you have a complete contraction of all muscles. I presume that this man died of a heart condition. The heart itself is made up of muscle tissue and bound to have gone through the same thing the muscles of the body would, and I really believe the shock contributed to his death. *Page 324
"It is a complete contraction of the muscles so that you have a bleeding of the muscles. This man may at the time of the accident had some bleeding in the muscle of the heart and as a result thereof it was a weakness of the heart itself. A severe electric shock causes a weakening of the muscle material and in this condition if he would have lifted anything heavy could have blown out a plug in the heart."
The appellant contends that this testimony is all the evidence there is in the case that in any way tends to establish a causal connection between the electric shock suffered by the decedent on June 5, 1943, and his death in the following September, but urges, with unquestioned sincerity, that said testimony is so vague, speculative and conjectural that it constitutes nothing more than the witness' surmise or guess and therefore is not such substantial evidence as the law requires in support of a finding of ultimate fact.
It is admitted by both parties that the decedent died of coronary occlusion, a specie of ailment wherein the blood supply is blocked off from the heart muscle in a rather sudden 1-6. attack. We think it will readily be agreed that the task of making an intelligent finding of fact on the question as to whether such a "heart attack" in September could have any connection with an electric shock suffered three months previously would be greatly facilitated by the credible testimony of a witness or witnesses possessing expert knowledge of the effect of electricity on the human system. Such expert witnesses are permitted to express opinions on fact within their knowledge or upon assumed facts supported by the evidence in the case and stated to them by way of hypothetical questions. We agree with the appellant in the general principle that expert opinion testimony should not be allowed to extend *Page 325
to the field of baseless conjecture concerning matters not susceptible of reasonably accurate conclusions, but we cannot agree that the testimony here under scrutiny can be so characterized. We can see nothing in the nature of a surmise or guess in the doctor's statement that an electric shock of high voltage causes a complete contraction of all the muscles of the body, including the heart, to such an extent as to cause them to bleed and that "I really believe the shock contributed to his death." This is a positive statement as to the effect of high voltage electricity on the heart and an opinion that the shock of June 5, 1943, contributed to or helped to cause the fatal coronary occlusion the following September. The appellant further questions the probative value of Dr. Wynn's testimony through the contention that the assumed facts upon which such opinion is based are not supported by the evidence. It is fundamental, we think, that the opinion of an expert in answer to a hypothetical question should be predicated on facts which the evidence in the case tends to prove and if such question assumes material facts of which there is no evidence, an opinion based thereon has no probative value. Public Utilities Co. v. Handorf (1916),185 Ind. 254, 112 N.E. 775. With this principle in mind we have carefully examined the evidence and find only one assumed fact in the hypothetical question propounded to Dr. Wynn of which there is no evidence. The assumed fact that the decedent was thrown 20 feet by the electric shock is entirely without foundation, the undisputed evidence being that such distance was not to exceed four or five feet. We do not regard the distance the decedent was thrown as an essential fact. The evidence is undisputed that he grasped a wire charged with 2400 volts of electricity while standing on a wet pavement. It can be reasonably inferred that he *Page 326
got a severe shock thereby and whether he was thrown 20 feet, five feet, or not at all, is of little consequence in the absence of evidence that the volume of electricity he received can be measured by the distance he was thrown. It was held inLouisville, New Albany and Chicago Railway Company v. Falvey
(1886), 104 Ind. 409, 3 N.E. 389, 4 N.E. 908, that where some of the facts assumed in a hypothetical question are eliminated by a subsequent ruling on a motion to strike out, yet if facts remain upon which an opinion may properly be based, it is not error to refuse to strike the entire opinion, but it should go to the jury for what it is worth, although the elimination of some of the facts may weaken its value. With the assumption that the decedent was thrown 20 feet by his contact with the electric wire eliminated we are of the opinion that sufficient facts remain in the question upon which Dr. Wynn's opinion can properly be based. The evidence was proper and if accepted as true by the trier of the facts, as it evidently was, it is sufficient to support the award.
We now come to the question of alleged error in refusing the appellant's request for an autopsy on the body of the deceased. The Workmen's Compensation Act provides as follows:
"The employer, or the industrial board, shall have the right in any case of death to require an autopsy at the expense of the party requiring same.
"No autopsy shall be held in any case, by any person, without notice first being given to the widow or next of kin, if they reside in this state or their whereabouts can reasonably be ascertained, of the time and place thereof and reasonable time and opportunity given such widow or next of kin to have a representative or representatives present to witness the same: Provided, If such notice is not given all evidence obtained by such autopsy shall be suppressed on motion duly made to the *Page 327
industrial board." § 40-1227, Burns' 1940 Replacement (Supp.).
In construing the above statute this court said:
"The purpose of the law-making body in enacting such statute was no doubt for the protection of the employer against unjust claims, particularly against the payment of compensation where death is due to natural causes instead of by accident. We do not believe that it was the intention of the legislature that an autopsy could be demanded in every case of death. Such a construction would render the provision unreasonable where the cause of death is clearly apparent without it, — where the cause of the death is not uncertain and is not in dispute. The right to an autopsy is to be exercised with caution. It is one calculated under the most favorable circumstances to cause some distress of mind to the family of the deceased.
"There was a dispute in this case as to the cause of decedent's death, and under the construction of the statute herein declared, appellant had the right, if properly exercised, to have an autopsy performed. Where, as here, the legislature has not provided the procedure for its enforcement, that adopted must be reasonable both as to the time and the occasion for its exercise." Indianapolis Abattoir Co. v. Bryant (1918), 67 Ind. App. 225, 119 N.E. 24.
It seems clear that the statute as above construed gives the employer, in any case in which the cause of death is disputed, the absolute right to hold an autopsy on the body of the 7, 8. deceased providing the procedure adopted is reasonable both as to the time and occasion of its exercise and providing further that proper notice thereof is given. In other words an employer's right to an autopsy, when exercised under the circumstances and in the manner above indicated, is beyond the jurisdiction of the Industrial *Page 328
Board to either deny or grant and is not contingent upon the consent of the widow or next of kin. It does not appear that the appellant made any effort at any time to comply with the statute in reference to notice. It proceeded on the assumption that its right to an autopsy must be predicated upon the consent of the widow or an order of the Industrial Board and, six months after the death of Jones, it made an oral request of the appellee's counsel that consent be given to such autopsy and, upon the appellee's refusal, it filed a written petition for same with the Industrial Board. This delay is explained by the appellant on the theory that it knew nothing of the appellee's claim that her husband's death was due to an electric shock until April, 1944, after which it made its request and filed its petition at the first opportunity. The evidence most favorable to the appellee on that question, however, indicates that two weeks after her husband's death she spoke to one of the appellant's councilmen about getting compensation therefor. Appellant's request for an autopsy came five and one-half months thereafter. In the case ofMcDermid v. Pearson Co., Inc. (1939), 107 Ind. App. 96,21 N.E.2d 80, a delay of two months in an effort to procure an autopsy was held to be a waiver of the right to one. In the present case the evidence most favorable to the appellee constrains us to hold that the appellant, by its failure for over five months, after learning of the appellee's claim, to assert its right to an autopsy in the manner provided by statute, constitutes a waiver thereof.
Award affirmed with the usual increase.
NOTE. — Reported in 58 N.E.2d 938. *Page 329 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428137/ | The appellant filed a complaint against the appellees, which, in substance, alleges that in the city of Warsaw, Indiana, is a public highway known as North Detroit Street, which runs in a general northerly and *Page 48
southerly direction; that immediately east of said street there is an electric railroad owned by the Winona Railroad Company; that the cars on said railroad are operated by electric power which is furnished to said railroad company by the appellee, the Interstate Public Service Company, which company had installed on said right of way a line of wooden poles upon which was strung bare uninsulated wires which carried a high and dangerous current of electricity; that beneath said uninsulated wires there were feed wires running to the trolley wires over the railroad track.
That crossing beneath said wires, the appellee, the Commercial Telephone Company, had installed and maintained a line of wooden poles strung with four or more copper wires directly beneath the uninsulated wires of said power company at a distance of four or five feet.
That on April 8, 1926, the appellant was in the employ of a contractor who was then engaged in remodeling or constructing certain buildings for and in behalf of the railroad company, which company was then changing its tracks and switches on the right of way and was installing additional tracks, which work made it necessary for the telephone company to change the location of its poles and wires, which the telephone company was then and there engaged in, by removing, replacing and resetting certain of its poles and wires.
The appellant alleges that on said April 8, 1926, he reported to work to his employer and was informed that work that he did was suspended for that day, whereupon he proceeded to return to his home, and for that purpose he walked from said place of employment over said right of way and came to the place where the agents, servants and employees of the telephone company were making the changes aforesaid; that he stopped to talk to some of the employees, and while so engaged was expressly invited by them to assist in the work then being done; that *Page 49
said express invitation was extended to this appellant by one Buster Brown, employee of said telephone company, who was charged with the duty of stringing and supervising the work of changing the wires of said telephone company, and while he was acting in the scope of his said duties; that said invitation was made in the presence and hearing of one Reuben Mann, who was at the time general foreman in charge of all work, and in charge of all employees and servants of the telephone company, and who had general charge and control of all the work then being done. That said foreman acquiesced, sanctioned and approved said invitation and acting within the scope of his employment and duties, and in furtherance of said invitation so extended, furnished this appellant with all necessary tools, appliances and equipment; that said appellant accepted said invitation and in obedience thereto, and with the knowledge, consent, acquiescence and approval of said telephone company, and in order to hurry and facilitate the completion of said work, and in order that appellant's work and that of his employer which had been suspended as aforesaid be resumed, the following day, proceeded to aid and assist the appellee telephone company, and at all times acted in the discharge of his work pursuant to the orders and instructions given by the employees aforesaid regarding said work.
He then alleged he climbed up one of the telephone poles in the performance of his work and knelt on the cross arms attached to said poles, and without the knowledge of the closeness and proximity of the uninsulated wires of the power company, and without the knowledge of their dangerous character, attempted to descend from the top of said pole, started to raise his body to obtain a firm hold and secure position and while so doing the high and dangerous current of electricity in said wires in some manner passed into his body and that he was thereby violently *Page 50
thrown from the pole to the ground and he was injured as set out in the complaint.
Negligence is charged in that the telephone company did not inform the appellant of the dangerous character of the wires of the Public Service Company in permitting him to work in the proximity of the uninsulated high tension wires without having the current removed, and that no precaution was taken to avoid the escape of the current from said wires. The Public Service Company is charged in being negligent in not insulating said wires and in not installing a protector or basket or some means to afford protection to those lawfully working upon the poles, and that said Public Service Company was careless and negligent in not insulating their wires and protecting those working in close proximity of their wires.
The work of the appellant was without remuneration or promise thereof.
The appellants each filed separate demurrers to the complaint on the ground that said complaint does not state facts sufficient to constitute a cause of action. The telephone company, in its memorandum, alleges that it is not negligent for the telephone company to maintain a line of telephone wires 4 or 5 feet below the lines of the service company. Second, the complaint shows the appellant was a mere volunteer to whom the telephone company owed no duty except not to willfully or purposely injure the appellant. Third, the complaint shows that the appellant was not invited to work by any person or persons who had the authority to extend such invitation. Fourth, no emergency is shown to exist for the appellant to engage in such work. Fifth, there are no facts shown in the complaint that the appellant's employer informed him that the work was being held up, neither that the appellant's employer requested the appellant to assist in the telephone work, or knew of such acts being rendered. Sixth, there is no showing that the telephone company did *Page 51
not have a sufficient force of men on the job to complete the work within the time, or that said telephone work would be delayed. Seventh, there is no showing that the appellant's employer could resume his work the following day. Eighth, there is no showing of any mutuality of interest between the appellant and his employer on the one hand and the telephone company on the other.
That the said complaint shows that the appellant's injury was caused by his own negligence.
The memorandum filed with the demurrer of the Interstate Public Service Company contains the same allegations as the demurrers of the telephone company. In addition, it is stated that the relation of the appellant as employee or invitee of either of the appellees is not shown, also that no burden rests upon the Interstate Public Service Company to insulate its wires, where a reasonably prudent person would not expect contact with the high tension line.
It is not shown that the appellant had any legitimate business whatsoever on top of the pole of the telephone company.
The appellant was a mere volunteer or trespasser and the Interstate Public Service Company owed him no duty except not to wilfully injure him and no wilful injury is shown.
The separate demurrers of each appellee was by the court sustained and to each of said rulings the appellant at the time excepted, the appellant then refused to plead further, whereupon judgment was rendered in favor of the appellees and against the appellant. To the rendition of said judgment the appellant excepted and the ruling of the court on said demurrers is assigned as error on this appeal.
Section 4443, Burns 1926, Acts 1911, Chapter 236, page 597, provides: "That in the transmission and use of electricity of a dangerous voltage full and complete insulation *Page 52
shall be provided at all points where the public or any employees of the owner, contractor, or sub-contractor, transmitting or using said electricity, are liable to come into contact with the wire or wires, and that dead wires are not mingled with live wires, nor to be strung upon the same support, and the arms and supports bearing live wires are especially designated and distinguished by color or other designation which is instantly apparent, and that live electrical wires carrying a dangerous voltage are strung at such distance from the poles or supports as to permit repair men to freely engage in their work without danger of shock." . . .
The first question that presents itself is the status of the appellant. He was an employee of a contractor doing work for the Winona Railway Company on repair of certain buildings. He was not an employee of either of the appellees.
The work in which he was engaged was delayed. He then left the place where he was working and went to the place where workmen of the telephone company were doing work as stated in the complaint and was injured by coming in contact with the power line of the Public Service Company.
The complaint does not show any authority of the workmen to invite him to help them. The work had no direct connection with the appellant's job. There can be no mutuality of interest 1. in the work that was being done on which to predicate liability for negligence.
There is no charge that the appellant was wantonly or purposely injured.
The relation of the appellant to the telephone company was no more than a mere licensee. See the following cases: Motor Speedway Company v. Shoup (1929), 88 Ind. App. 572, 165 2. N.E. 246; Cooper v. Lake Erie Co. (1894), 136 Ind. 366,
*Page 53
36 N.E. 272; Springer v. Byram (1894), 137 Ind. 15, 36 N.E. 361, 23 L.R.A. 244, 45 Am. St. Rep. 159; Pittsburgh C.C. Co. v. Hall
(1910), 46 Ind. App. 219, 90 N.E. 498, 91 N.E. 743; Faris v.Hoberg (1899), 134 Ind. 269, 33 N.E. 1028.
In the case of Cooper v. Lake Erie Co. supra, a man was permitted by a conductor to ride on a train. The conductor and brakeman directed the man to go upon a box car and set the brake, which he did. Without warning, employees of the railroad company negligently ran another car against the car on which he was standing and severely injured him.
The court said, "No emergency is shown for the employment of the appellant. . . . At most, the appellant was upon the train by the sufferance of the conductor and brakeman, who were themselves without authority to so receive him. Any dangers to which he thus became exposed were wholly at his own risk. The company could become liable only for wilful injury to him." To the same effect see Stalcup v. Louisville, etc., Co. (1896),16 Ind. App. 584, 45 N.E. 802; Pittsburgh C.C. Co. v. Hall supra.
As to the telephone company, we are of the opinion that the appellant was not an employee but at most a licensee.
As to the power company we are unable to see how there can be any liability unless he was an employee of the telephone company and, even then, a state of facts is shown to exist that 3. shows clearly that the power company is not liable.
The power company's wires were 4 1/2 or 5 feet above the wires of the telephone company. What business had he on top of the pole or on top of the cross arm on top of the pole?
There is no allegation that the power wire was not *Page 54
properly strung and marked. There is no declaration that it mingled with the uncharged wires of the telephone company. He had no more right up there than any other member of the public.
A case in point is that of Kent v. Interstate Public ServiceCo. (1929), 97 Ind. App. 13, 168 N.E. 465, 466, where this same appellant, Interstate Public Service Company maintained electric transmission lines running east of the river road north of Goshen, Indiana; that the road crosses over an iron bridge with a 15-foot road bed crossing Rock Creek.
The bridge was about 60 or 70 feet long. On each side of the bridge is a truss work consisting of steel girders, the top girder being 19 1/2 feet above the floor of the bridge. Leading to the girder on top of the bridge was an oblique girder, slanting from the ground to the top of the girder. Transmission lines are located parallel with the bridge about 20 to 24 feet east of the edge of the top girder and 12 to 14 inches higher running parallel the length of the bridge. Howard D. Kent, deceased, approached the bridge from the south proceeded to climb on the oblique girder to the horizontal girder on top. He came in contact with the wires and was killed. This court said that: "It is undoubtedly the law . . . that . . . full and complete insulation shall be provided at all times when the public is liable to come into contact with such wires, and to use every device, care, and precaution which it is practicable and possible to use for the protection and safety of life, limb, and health, limited only by the necessity of preserving the reasonable efficiency of such appliances," citing 443 Burns 1926, Acts 1911, Chapter 236, page 597, and says further that: "Whatever may have been the boy's motive . . . it is certain that he had no legitimate business up there; he was simply there without right. . . . His conduct was negligent, and if it be said that the appellee was negligent in not insulating its wires, it must be held that *Page 55
the boy, being sui juris, was guilty of contributory negligence," citing Graves v. Washington Water Power Company
(1906), 44 Wash. 675, 87 P. 956, 11 L.R.A. (N.S.) 452.
There is nothing in the complaint that shows there was not a sufficient number of regular employees of the telephone company to do the work, and there is no showing that the foreman had any authority other than to superintend the work; and it is not alleged that any workman or foreman had authority to employ the appellant or any other person.
We are of the opinion that the separate and several demurrers of the appellees to the complaint were properly sustained.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428164/ | This is an appeal from an award of the full Industrial Board of Indiana wherein the appellant was denied compensation for the death of her husband alleged to have resulted from accidental injury arising out of the course of his employment by the appellee. The finding and award of which complaint is made is as follows:
"Said Full Industrial Board, having heard the argument of counsel and having reviewed all of the evidence in said cause, and being duly advised in the premises, now finds: that on the 18th day of April, 1942 the plaintiff's decedent was in the employ of the defendant at a weekly wage of $30.00 that on the 18th day of April, 1942, the plaintiff's *Page 50
decedent died and that the defendant had knowledge of said plaintiff's decedent's death; that said plaintiff, Mabel Luckey, was the wife of the deceased, Robert Luckey; that at the time of his said death, the said Robert Luckey, deceased, left surviving him as all and his only dependents, the said plaintiff, Mabel Luckey, age fifty-two years; and his daughter, Shirley May Luckey, age thirteen years that prior to the filing of plaintiff's application, a good-faith effort was made by said parties to adjust said claim, which effort resulted in a disagreement between the parties.
"Said Full Industrial Board now finds for the defendant and against the plaintiff on all the other material allegations alleged in said plaintiff's application Form 10 for the adjustment of a claim for compensation, filed on the 3rd day of August, 1942.
"AWARD
"IT IS, THEREFORE CONSIDERED, ORDERED AND ADJUDGED, by the Industrial Board of Indiana, that the plaintiff shall take nothing by her application Form 10 for the adjustment of a claim for compensation, filed on the 3rd day of August, 1942, and that she shall pay the costs of this proceeding."
By her assignment of errors the appellant asserts that the above finding and award is "contrary to the law and evidence given in said cause," and in support thereof her sole contention is that the evidence in the case is of such a conclusive character as to force a decision contrary to that reached by the Industrial Board.
From the briefs of counsel and the record we conclude the facts to be substantially as follows: The appellant is the widow of one Robert Luckey who, at the time of his death on the 18th day of April, 1942, at the age of fifty-one years, had been in the continuous employment of the appellee since May 8, 1922. About five years before he died a physical examination made *Page 51
by the appellee disclosed that he had a systolic count of 170 indicating hypertension or high blood pressure. His employment was continued however and since October, 1927, he had received no medical treatment of any kind. Slight colds had kept him from work for short periods of time on two occasions since 1927 but no doctor was called to treat these indispositions, and during the last six months of his life he had felt exceptionally well and in better spirits than at any time since his marriage to the appellant in 1926. At the time of his death and for sometime prior thereto he had been and was employed by the appellee as an assistant to the master mechanic and his duties required him to repair and keep in working order the various machines used by the appellee in its business. Feeling unusually well the appellant's decedent came to work at about 7 o'clock on the morning of April 18, 1942, and was immediately directed by the master mechanic to repair a machine known as a draw bench which had become out of order sometime during its use by the preceding night shift. This draw bench was operated by means of a pedal or trip lever which was counter-weighted in such a manner as to make its normal operation easy but on this occasion the counterweights were so bound or stuck as to impair the free operation of the machine, and in his endeavor to repair it the appellant's decedent rode the pedal up and down five or six times during a period of 25 or 30 minutes. That is to say he put his right foot on the pedal, which was about 18 inches above the floor, and then raised himself, thereby putting pressure or weight on the pedal in order to force it to the floor. As the result of this exertion he became exasperated mentally and heated bodily to the extent that perspiration ran down his face. This however is disputed by testimony that *Page 52
nothing unusual or out of the ordinary took place while said decedent was working on the machine and when he left it he looked perfectly normal and walked away in a normal manner. The repair job was completed at about 7:30 a.m. and there is no evidence as to what he did or in what work he engaged thereafter until approximately 9:00 a.m. when he was seen walking along an aisle between two rows of machines carrying a small iron bar about two feet in length and weighing a very few pounds. While so walking he fell to the floor and when reached by nearby workmen he was unconscious. He died later in the day of cerebral hemorrhage brought about by hypertension or high blood pressure. There is evidence in the record that at the place where the decedent fell, or thereabouts, the floor is usually slippery from soapy water that runs over and off of tools used in cutting steel and iron and that he "kind of slipped and lost his balance a little and when he turned about he took about a couple steps more" and fell. In dispute of this there is testimony that at the place where the decedent went down the floor was not wet and there was no soapy water thereon nor were there other objects lying about over which, it might be inferred, he tripped or stumbled. There is no evidence of blood on or about his head or body nor is there any evidence of objective symptoms indicating injury resulting from the fall. There is uncontradicted expert testimony in the record that with a man having a systolic count of 170 a little overexertion might produce a cerebral hemorrhage within an hour or two after such exertion, or that slipping and falling suddenly might produce such a result. At the time of his death the decedent's average weekly wage was more than $30.00.
On this evidence the appellant asks us to hold that *Page 53
the award denying compensation is erroneous on the theory that reasonable men must inevitably conclude therefrom that 1, 2. her decedent met with an accident in the course of his employment and that such accident produced an injury from which he died. It has long been established law that this court cannot weigh the evidence and will not disturb an order of the Industrial Board if there is any competent evidence to sustain it. Gardner v. William Mettler, Inc. (1938),106 Ind. App. 55, 17 N.E.2d 850. In deciding the question presented we must disregard all evidence unfavorable to the board's decision and consider only such as is favorable thereto together with those inferences as are reasonably deducible therefrom. Morgan
v. United Taxi Co., Inc. (1938), 105 Ind. App. 340, 14 N.E.2d 736; Finkley v. Eugene Saenger Tailoring Shop (1935),100 Ind. App. 549, 196 N.E. 536; Knoth v. Phillips (1935),101 Ind. App. 40, 198 N.E. 110.
Bearing in mind that an injury by accident arising out of and in the course of the decedent's employment is vitally essential to the appellee's case (Muncie Foundry, etc., Co. v. 3-5. Thompson (1919), 70 Ind. App. 157, 123 N.E. 196; Matlon v. Matlon (1931), 92 Ind. App. 350,175 N.E. 369; Livers v. Graham Glass Co. (1932), 95 Ind. App. 358,177 N.E. 359), the first question that presents itself is — what was the accident resulting in the cerebral hemorrhage that caused the decedent's death? His fall to the floor must be eliminated from our consideration because there is no direct evidence as to whether said fall was due to the hemorrhage or the hemorrhage due to the fall and the reasonable inferences to be drawn from the evidence in reference thereto are in conflict. It might be inferred that over exertion in repairing the draw *Page 54
bench brought on the cerebral hemorrhage which in turn caused the fall. On the other hand, it might reasonably be inferred that the decedent slipped on the soapy floor and fell thereby causing the cerebral hemorrhage which resulted in his death. That the floor was slippery or that there was anything thereon over which he might have stumbled is in dispute. From its decision it is apparent that the Industrial Board found that the hemorrhage occurred first and caused the fall and such finding, being supported by reasonable inferences drawn from the evidence, cannot be disturbed. Assuming without deciding that overexertion in the performance of an employee's usual duties is an accident within the meaning of the Workmen's Compensation Act, we are again confronted with conflict in the evidence. A witness Edgar Williams testified that he was working on machine No. 6 while the decedent was engaged in repairing machine No. 5. That the repairing took 20 or 30 minutes during which time the decedent "rode" the pedal up and down five or six times after which he didn't observe anything unusual about him or anything "different than before he started," and that nothing out of the ordinary took place while he worked thereon. In dispute of this there is evidence that the decedent became angry and sweaty from his exertion which, in a man suffering with high blood pressure, might cause a cerebral hemorrhage. It was within the exclusive province of the Industrial Board to choose between this conflicting evidence, and its finding of the facts in respect thereto is binding upon this court. It will be noted that the Industrial Board failed to find that the appellant's decedent met with an accident or untoward event in the course of his employment which resulted in injury that caused his death and as the appellant had the burden of establishing such facts, the *Page 55
failure of the Industrial Board to so find is the equivalent of a finding to the contrary. Alexandria Metal Products Co. v.Newsome (1933), 97 Ind. App. 420, 185 N.E. 520; BakersConsulting Bureau v. Julian (1937), 103 Ind. App. 218, 6 N.E.2d 737.
We cannot say that there is no evidence to support such a finding or that the evidence is so conclusive in its nature that reasonable men must reach a contrary conclusion.
Award affirmed.
Draper, J., not participating.
NOTE. — Reported in 50 N.E.2d 883. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428165/ | The question in this case is whether the contract sued upon was void for uncertainty.
During 1941 and 1942 the appellees were hauling dirt for appellant on a contract basis whereby they received 30 cents per yard in truck loads, for each yard of dirt hauled and delivered to appellant's premises. The evidence most favorable to the appellees discloses that while the dirt was being hauled for various fills on appellant's premises it was verbally agreed in the course of several conversations, that the appellees would haul in enough dirt to construct a levee; approximately 30,000 yards at 30 cents per yard; the appellant to furnish the dirt.
The appellees thereafter did some preliminary work in the way of clearing out trees, debris and buildings and hauling some of the dirt, but no agreement had then ever been made with reference to when the work should be completed. The work was interrupted for a time, but at a conference between the parties in May of 1943 it was agreed that the appellees would commence the work anew and complete it by December 1, 1943.
Although nothing was ever said about reducing the agreement to writing, the appellant later tendered the appellees for their signature a written form of agreement somewhat at variance with the oral agreement of the parties. The appellees refused to sign, taking the position that they already had a contract. The appellant proceeded to have the work done by another contractor *Page 112
and the court below awarded the appellees damages for breach of the contract.
The agreement, originally indefinite as to time for performance, could be made certain by a later agreement, 12 Am. Jur., § 67, p. 558, and was made certain in that regard 1, 2. by the agreement of the parties in May of 1943. The appellees were to haul all of the dirt necessary to complete the levee. The fact that when they made their agreement they could only approximate the required yardage, and that the appellees were to dump the dirt where specified by the appellant, does not seem to us to introduce such an element of uncertainty as to vitiate the contract.
We must agree with the appellant that mutual assent is necessary to the formation of every contract, and where there is any mistake of the contracting parties by which one of them 3. has in mind one thing as the subject matter of the contract and the other party has in mind something entirely different, and the terms of the contract are such that it will mean either the one or the other, there is no meeting of the minds, and therefore no contract. We do not however encounter such a situation in this case if we consider only the evidence most favorable to the appellees. The evidence is highly conflicting, but on the whole satisfactorily establishes a contract sufficiently definite and certain, and one which the appellees were willing and able to perform but were prevented from so doing by the conduct of the appellant.
Judgment affirmed.
NOTE. — Reported in 69 N.E.2d 605. *Page 113 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4014628/ | Case: 15-13731 Date Filed: 07/11/2016 Page: 1 of 66
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13731
________________________
D.C. Docket Nos. 8:14-bk-09521-MGW; 8:14-cv-02816-JSM
In Re: BAYOU SHORES SNF, LLC,
Debtor.
___________________________________________________________
FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION,
UNITED STATES OF AMERICA, on behalf of the Secretary of the
United States Department of Health and Human Services,
Plaintiffs - Appellees,
versus
BAYOU SHORES SNF, LLC,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 11, 2016)
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Before HULL, JULIE CARNES, and CLEVENGER, * Circuit Judges.
CLEVENGER, Circuit Judge:
Bayou Shores SNF, LLC (“Bayou Shores”) operates a skilled nursing
facility in St. Petersburg, Florida. Most of Bayou Shores’ patients are on Medicare
or Medicaid, and over ninety percent of its revenue is derived from Medicare and
Medicaid patients. It receives compensation for Medicare and Medicaid services
through provider agreements entered into with the federal and state governments.
Bayou Shores’ entitlement to participate in the provider agreements depends on its
continued compliance with qualification requirements for such facilities that are
established by the Secretary of the Department of Health and Human Services.
After an unchallenged exercise of her statutory oversight authority, the Secretary
determined that Bayou Shores was not in substantial compliance with the Medicare
program participation requirements, and that conditions in its facility constituted an
immediate jeopardy to residents’ health and safety. By letter dated July 22, 2014,
the Secretary notified Bayou Shores that its Medicare provider agreement “will be
terminated at 11:59 pm on August 3, 2014.” The termination of Bayou Shores’
Medicare provider agreement triggered the termination of its Medicaid provider
agreement as well.
*
Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal Circuit,
sitting by designation.
2
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To avoid the consequences of termination of its provider agreements, Bayou
Shores sought protection in the United States Bankruptcy Court for the Middle
District of Florida. Rejecting the jurisdictional challenge from the Secretary, the
bankruptcy court assumed authority over the Medicare and Medicaid provider
agreements as part of the debtor’s estate, enjoined the Secretary from terminating
the provider agreements, determined for itself that Bayou Shores was qualified to
participate in the provider agreements, required the Secretary to maintain the
stream of monetary benefit under the agreements, reorganized the debtor’s estate,
and finally issued its Confirmation Order on December 31, 2014.
On appeal, in a June 26, 2015, Order, the United States District Court for the
Middle District of Florida upheld the Secretary’s jurisdictional challenge and
reversed the Confirmation Order with respect to the assumption of the debtor’s
Medicare and Medicaid provider agreements. See In re Bayou Shores SNF, LLC,
533 B.R. 337, 343 (M.D. Fla. 2015).
Bayou Shores timely appeals the decision of the district court. The appeal
turns on the jurisdictional question. From the Social Security Amendments of
1939 until 1984, it is undisputed that bankruptcy courts lacked jurisdiction over
Medicare claims. The statute barring such jurisdiction was finally recodified in
1984 to reflect an earlier recodification of the Judicial Code. In cases involving the
interpretation of statutory language changed in a recodification, it has long been
3
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established that no change in the previous recodified law is recognized unless
Congress’s intention to make a substantive change is “clearly expressed.” United
States v. Ryder, 110 U.S. 729, 740 (1884). Now the central question is whether the
statutory revision in this case demonstrated Congress’s clear intention to vest the
bankruptcy courts with jurisdiction over Medicare claims. We think it is
abundantly clear that Congress expressed no such intention.
Therefore, after careful review of the record and the parties’ briefs, and with
the benefit of oral argument, and for the reasons set forth below, we affirm the
district court’s Order.
I. BACKGROUND
The relevant facts of this case are generally undisputed and ably set out by
the district court in the opinion below. See In re Bayou Shores SNF, LLC, 533 B.R.
337, 338-40 (M.D. Fla. 2015). A brief summary follows.
A. Bayou Shores’ “Skilled Nursing Facility”
As noted above, Bayou Shores operates a “skilled nursing facility” 1 in St.
Petersburg, Florida, and approximately ninety percent of Bayou Shores’ revenue is
derived from caring for Medicare and Medicaid patients. To be eligible for the
Medicare/Medicaid program, Bayou Shores entered into so-called “provider
agreements” with the federal and Florida state governments, respectively, which
1
A “skilled nursing facility” is statutorily defined at 42 U.S.C. § 1395i-3(a).
4
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provide reimbursement to Bayou Shores for the provision of medical services to
Bayou Shores’ Medicare/Medicaid patients. As a condition of payment under
these agreements Bayou Shores must comply with certain regulatory requirements
pertaining to skilled nursing facilities.2 The Plaintiffs in this case are the
government agencies primarily tasked with monitoring Bayou Shores’ compliance
with these regulations: the Florida Agency for Health Care Administration
(“AHCA”) and the United States Department of Health and Human Services
(“HHS”) (collectively, “the Government”). AHCA is responsible for conducting
surveys of skilled nursing facilities in Florida and administering the state’s
Medicaid program. HHS administers Medicare nationally, and uses AHCA’s
surveys to decide whether skilled nursing facilities in Florida are compliant with
the regulations, and if not, what remedial action to take. When conditions at a
skilled nursing facility pose immediate jeopardy to the health or safety of the
facility’s patients, the law requires the Secretary to select and execute an
appropriate remedy. 3
2
See e.g. 42 C.F.R. Part 483, Subsection B.
3
The Secretary of HHS’s duty to take remedial action in the face of immediate jeopardy to a
facility’s patients is explained in 42 U.S.C. § 1395i-3(h)(2), where Congress specified that the
Secretary “shall” take remedial action in response to immediate jeopardy. See 42 U.S.C. § 1395i-
3(h)(2)(A)-(B) (statutorily defined remedies include termination from program, denial of
payments, civil monetary penalties, and appointment of temporary management); see also id. at
(f)(1) (“It is the duty and responsibility of the Secretary to assure that requirements which govern
the provision of care in skilled nursing facilities under this subchapter, and the enforcement of
such requirements, are adequate to protect the health, safety, welfare, and rights of residents and
to promote the effective and efficient use of public moneys.”).
5
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On February 10, 2014, AHCA conducted such a survey at Bayou Shores’
skilled nursing facility. As a result of the survey, AHCA reported to HHS that
Bayou Shores was not compliant with the relevant regulations. The survey noted a
number of problems including failing to correctly track residents’ “Do Not
Resuscitate” orders, poor patient hygiene, and unsecured expired medications.
AHCA determined that at least some of these deficiencies posed a threat of
immediate jeopardy to Bayou Shores’ patients.4 Bayou Shores was given an
opportunity to remedy these deficiencies. In a follow-up survey on March 20,
2014, AHCA again found a number of deficiencies. These included Bayou Shores
placing a “known sexual offender” in a room with a disabled patient without
informing that patient, and subsequently failing to appropriately handle an alleged
sexual assault by the “known sexual offender” reported by the disabled patient. As
with the previous survey, AHCA found that at least some of these deficiencies
posed a threat of immediate jeopardy to Bayou Shores’ patients. Bayou Shores
was again given the opportunity to remedy the deficiencies.
The proverbial “last straw” was a final survey on July 11, 2014, in which
further deficiencies were identified, including allowing a mentally impaired
4
Immediate jeopardy exists if the nursing home’s noncompliance has caused or is likely to
cause “serious injury, harm, impairment or death to a resident.” 42 C.F.R. § 488.301. The
regulation only requires that the nursing home’s noncompliance is likely to cause harm to “a
resident.” Though correctly quoting the regulation, the bankruptcy court appears to have
incorrectly believed that actual harm is required for a finding of “immediate jeopardy.” See In re
Bayou Shores SNF, LLC, 525 B.R. 160, 163 (Bankr. M.D. Fla. 2014). However, actual harm is
not a prerequisite for a finding of immediate jeopardy.
6
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resident to leave the facility unaccompanied on a hot Florida day (he was later
found at a bus station). AHCA again determined that at least some of these
deficiencies placed Bayou Shores’ residents in immediate jeopardy. After the third
finding of non-compliance, HHS sent Bayou Shores a letter on July 22, 2014
notifying Bayou Shores that its non-compliance posed an “immediate jeopardy to
[Bayou Shores’] residents’ health and safety,” and that HHS was exercising its
regulatory discretion to terminate Bayou Shores’ Medicare provider agreement.
HHS’s letter stated that the “Medicare provider agreement will be terminated at
11:59 pm on August 3, 2014.”5 The termination of Bayou Shores’ Medicare
provider agreement triggered the termination of Bayou Shores’ Medicaid provider
agreement.6
B. Bankruptcy Court Proceedings
Two days before this looming deadline, on August 1, 2014, Bayou Shores
sought emergency injunctive relief from the U.S. District Court for the Middle
5
The statute permits HHS to terminate a provider agreement in light of a finding of immediate
jeopardy without a pre-termination hearing for the provider. See 42 U.S.C. § 1395i-3(h)(2)(a);
see also Cathedral Rock of N. Coll. Hill, Inc. v. Shalala, 223 F.3d 354, 366 (6th Cir. 2000) (no
pre-termination hearing required under Due Process Clause); Northlake Cmty. Hosp. v. United
States, 654 F.2d 1234, 1241-43 (7th Cir. 1981) (same).
6
Though Bayou Shores disputes whether Florida has followed the correct procedure to “finalize”
the termination of their Medicaid provider agreement, Bayou Shores does not appear to dispute
that such termination will be the end result of the termination of the Medicare provider
agreement. See e.g. 42 U.S.C. § 1396a(a)(39); Fla. Stat. § 409.913(14); see also Livingston Care
Ctr., Inc. v. United States, 934 F.2d 719, 720 (6th Cir. 1991) (“The Secretary of Health and
Human Services’s termination of the plaintiffs’ Medicare certification automatically triggered
termination of plaintiffs’ Medicaid certification as well”).
7
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District of Florida to prevent the termination of the provider agreements. The
district court initially granted Bayou Shores’ request for a temporary restraining
order. However, on motion of HHS, the district court dismissed Bayou Shores’
complaint for lack of subject matter jurisdiction. On August 15, 2014, the court
found that Bayou Shores had not exhausted its administrative remedies, and thus
Medicare’s jurisdictional bar (42 U.S.C. § 405(h)) prevented the district court from
exercising jurisdiction over the termination of the provider agreements. See Bayou
Shores SNF, LLC v. Burwell, No. 8:14-CV-1849-T-33MAP, 2014 WL
4059900,*6-8 (M.D. Fla. Aug. 15, 2014). Approximately an hour after issuance of
the district court’s order, Bayou Shores filed a Voluntary Petition for Chapter 11
bankruptcy, and sought an emergency injunction from the bankruptcy court
preventing HHS and AHCA from terminating the provider agreements. The
Government, at each opportunity, challenged the bankruptcy court’s jurisdiction to
order assumption of the provider agreements.
On August 25, 2014, the bankruptcy court issued the preliminary injunction
sought by Bayou Shores. The bankruptcy court reasoned that it had jurisdiction
pursuant to 28 U.S.C. § 1334,7 the provider agreements were property of the estate,
and an automatic stay preventing HHS and AHCA from terminating the
agreements was thus proper. At a subsequent evidentiary hearing on August 26,
7
28 U.S.C. § 1334, titled “Bankruptcy cases and proceedings,” generally defines the original
and exclusive jurisdiction of district courts over bankruptcy proceedings.
8
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the bankruptcy court heard testimony from doctors, patients, and other Bayou
Shores witnesses. Concluding that in its view Bayou Shores’ patients did not
appear to be in any immediate jeopardy, the bankruptcy court issued an order on
September 5, 2014 that (among other things) forbade HHS and AHCA from
terminating Bayou Shores’ provider agreements.
After further proceedings, on December 31, 2014 the bankruptcy court
issued its Confirmation Order. See In re Bayou Shores SNF, LLC, 525 B.R. 160
(Bankr. M.D. Fla. 2014). In the Confirmation Order, the bankruptcy court again
stated its belief that jurisdiction was proper under 28 U.S.C § 1334, and rejected
HHS and AHCA’s argument that the same 42 U.S.C. § 405(h) bar applied to the
bankruptcy court as applied to the district court. The bankruptcy court reasoned
that the plain language of § 405(h), which refers only to 28 U.S.C §§ 1331 and
1346, did not prevent the bankruptcy court from exercising jurisdiction over the
assumption of the provider agreements under § 1334. Id. at 166. The bankruptcy
court further concluded that because Bayou Shores appeared to have remedied the
deficiencies it was originally cited for, Bayou Shores had provided adequate
assurances of future performance under the provider agreements, and thus was
eligible to assume them. Finding the remainder of the statutory requirements
fulfilled, the bankruptcy court confirmed Bayou Shore’s Chapter 11 plan. The
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bankruptcy court also ordered the dissolution of the automatic stay and preliminary
injunction. 8
C. District Court Proceedings
HHS and AHCA separately appealed both the bankruptcy court’s September
5, 2014 Order, and the Confirmation Order. The appeals were consolidated by the
district court. As they had argued to the bankruptcy court, HHS and AHCA
asserted to the district court that 42 U.S.C. § 405(h) denied the bankruptcy court
jurisdiction over the provider agreements. The district court agreed. While
acknowledging that the bankruptcy court’s reading of § 405(h) was an issue that
the Eleventh Circuit had not squarely addressed, the district court noted that the
majority of other circuit courts addressing the issue “have examined Congress’
intent when it enacted the jurisdictional bar and concluded that the omission of
section 1334 and other jurisdictional grants (like section 1332) was inconsistent
with that intent.” In re Bayou Shores, 533 B.R. at 342. The district court reviewed
the relevant statutory language and legislative history, as well as decisions from
other courts examining the same. In particular, the district court noted that the
absence of § 1334 in the recodified 42 U.S.C. § 405(h) appeared to be the result of
a codification error. Based on that analysis, the district court held that it
8
See Bankr. ECF No. 285 at 12-13 (ordering that “all injunctions and stays previously provided
for in this case pursuant to sections 105 and/or 362 of the Bankruptcy Code shall remain in full
force and effect until the Effective Date.”). As explained further infra, the parties dispute what
effect this dissolution has on the issues in this case.
10
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“respectfully disagree[d] [with the bankruptcy court] and align[ed] itself with the
majority view” in finding that § 405(h) must be understood to bar jurisdiction
under § 1334. Id. at 343.
Because it was undisputed that Bayou Shores had yet to exhaust its
administrative remedies, and “no other independent basis for jurisdiction existed to
enjoin and order the assumption of the Medicare and Medicaid provider
agreements,” the district court reversed the orders of the bankruptcy court (with
respect to the provider agreements). Id.
The district court also noted that a hotly contested issue on appeal was “the
exact timing of any termination of the provider agreements.” Id. However, the
district court found that it did not need to resolve that issue, because the timing was
irrelevant to whether or not the bankruptcy court lacked jurisdiction to hear the
case in the first place. Id. 9
Bayou Shores timely appealed the district court’s order.
II. STANDARD OF REVIEW
In a bankruptcy case, this Court sits as a second court of review and thus
examines independently the factual and legal determinations of the bankruptcy
court and employs the same standards of review as the district court. See Brown v.
9
The Government argues that the provider agreements terminated prior to Bayou Shores filing
their bankruptcy petition, thus depriving the bankruptcy court of jurisdiction over the provider
agreements. Bayou Shores (for various reasons) contests that argument. For reasons we explain
below, we do not find it necessary to resolve this dispute.
11
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Gore (In re Brown), 742 F.3d 1309, 1315 (11th Cir. 2014). We review the
bankruptcy court’s factual findings for clear error and its legal conclusions de
novo. Id. The district court’s legal determinations are also reviewed de novo. See
Dionne v. Simmons (In re Simmons), 200 F.3d 738, 741 (11th Cir. 2000).
III. BANKRUPTCY COURT JURISDICTION OVER MEDICARE CLAIMS
The primary dispute in this case is purely legal: does 42 U.S.C. § 405(h) bar
a bankruptcy court from exercising 28 U.S.C. § 1334 jurisdiction over claims that
arise under the Medicare Act? Bayou Shores’ primary argument is that the plain
text of § 405(h) precludes district court jurisdiction under 28 U.S.C. §§ 1331 and
1346 only. The Government argues that the lack of a reference to § 1334 is merely
a result of a codification error, and that properly construed the statute requires
exhaustion of administrative remedies before bringing a Medicare claim before any
district court.
Because we conclude that the lack of a reference to § 1334 in § 405(h) is the
result of a codification error, we agree with the Government that the bankruptcy
court lacked jurisdiction over the termination of the provider agreements. To see
why, we turn first to an examination of the history of § 405(h).
A. Legislative history of § 405(h)
The relevant text of the 42 U.S.C. § 405(h) currently reads (emphasis
added):
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(h) Finality of Commissioner's decision
The findings and decision of the Commissioner of Social Security
after a hearing shall be binding upon all individuals who were
parties to such hearing. No findings of fact or decision of the
Commissioner of Social Security shall be reviewed by any person,
tribunal, or governmental agency except as herein provided. No
action against the United States, the Commissioner of Social
Security, or any officer or employee thereof shall be brought under
section 1331 or 1346 of Title 28 to recover on any claim arising
under this subchapter. 10
Bayou Shores argues that the third sentence of § 405(h) forbids only an
“action” brought under “section 1331 [i.e. federal question jurisdiction] or 1346
[i.e. suits against the federal government] of Title 28.” Because Bayou Shores’
action was brought under section 1334 of Title 28 (i.e. bankruptcy jurisdiction),
Bayou Shores argues that § 405(h) does not apply. To understand why Bayou
Shores is incorrect however requires a thorough examination of the history of §
405(h), which reveals that the issue is not as straightforward as Bayou Shores
suggests.
The original text of § 405(h) when passed in 1939 was largely the same as it
is today, with the crucial difference for this case emphasized below:
(h) The findings and decision of the Board after a hearing shall be
binding upon all individuals who were parties to such hearing. No
findings of fact or decision of the Board shall be reviewed by any
10
§ 405(h) applies to Medicare via 42 U.S.C. § 1395ii, which states that “any reference therein
to the Commissioner of Social Security or the Social Security Administration shall be considered
a reference to the Secretary or the Department of Health and Human Services, respectively.”
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person, tribunal, or governmental agency except as herein
provided. No action against the United States, the Board, or any
officer or employee thereof shall be brought under section 24 of
the Judicial Code of the United States to recover on any claim
arising under this title.
See Social Security Amendments of 1939, Pub. L. No. 76-379, 53 Stat. 1360
(1939) (emphasis added). In 1939, “section 24 of the Judicial Code” defined the
original jurisdiction granted to district courts, including jurisdiction over
bankruptcy claims (see Judicial Code, Pub. L. No. 61-475, 36 Stat. 1087, § 24(19)
(1911)), diversity and federal question claims (id. at § 24(1)), and claims against
the United States (id. at § 24(20)). With few exceptions then, section 24 of the
Judicial Code originally “contained all of that title’s grants of jurisdiction to United
States district courts, save for several special-purpose jurisdictional grants of no
relevance to the constitutionality of [Medicare] statutes.” See Weinberger v. Salfi,
422 U.S. 749, 756, n. 3 (1975). It is thus undisputed that under the original text of
§ 405(h), bankruptcy court jurisdiction over Medicare claims was barred.
In 1948, however, Congress recodified section 24 of the Judicial Code under
title 28 of the U.S. Code. 11 As part of that revision, Congress split the district
11
Codification refers generally to the process of arranging and organizing the Statutes at Large
into the U.S. Code. See generally Proceedings of the Fifty-First Annual Meeting of the
American Association of Law Libraries, Fifth General Session, 51 Law Libr. J. 388 (1958)
(remarks of Dr. Charles Zinn, Law Revision Counsel, explaining the process of codification); see
also William W. Barron, The Judicial Code, 8 F.R.D. 439 (1949) (the “Chief Reviser, Title 28,
U.S. Code, Judiciary and Judicial Procedure, and Title 18, U.S. Code, Crime and Criminal
Procedure” explaining generally the 1948 Judicial Code revisions).
14
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courts’ jurisdictional grants into multiple sections under Title 28. See U.S. Code,
Title 28, Pub. L. No. 80-773, 62 Stat. 869 (1948). Among other things, federal
question jurisdiction was re-codified to 28 U.S.C. § 1331, diversity jurisdiction to
§ 1332, suits against the government to § 1346, and bankruptcy jurisdiction to §
1334. See id. at Ch. 85, §§ 1331-1359 (“District Courts; Jurisdiction”).
After the 1948 re-codification however, the text of § 405(h) continued to
incorrectly refer to “section 24 of the Judicial Code” for approximately the next
thirty years. Indeed, the Supreme Court noted this issue in its 1975 Salfi decision.
The text in the body of the Court’s opinion replaced the reference in § 405(h) to
“section 24 of the Judicial Code” with “[§ 1331 et seq.] of Title 28.” See Salfi, 422
U.S. at 756. A footnote in the opinion acknowledged the apparent error created by
the 1948 Judicial Code recodification. See id. at n. 3.
By 1976 (after the Weinberger decision), the Office of the Law Revision
Counsel appears to have recognized the error.12 In the edition of the U.S. Code
published that year, the revisers substituted the phrase “section 24 of the Judicial
Code of the United States” in § 405(h) with the now current language, “sections
1331 or 1346 of title 28.” A “Codification” note included in the 1976 revision
indicates the following about the change:
12
The Office of the Law Revision Counsel, created in 1974, is a body within the U.S. House of
Representatives whose principal purpose is to codify the laws of the U.S. and periodically
publish updates to the U.S. Code. See 2 U.S.C. §§ 285 et. seq.
15
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In subsec. (h), “sections 1331 or 1346 of title 28” was substituted
for “section 24 of the Judicial Code of the United States” on
authority of act June 25, 1948, ch. 646, 62 Stat. 869, section 1 of
which enacted Title 28, Judiciary and Judicial Procedure. Prior to
the enactment of Title 28, section 24 of the Judicial Code was
classified to section 41 of Title 28.
See 42 U.S.C. § 405 (1976). The revisers expanded somewhat on this note in the
1982 version of the code (added text emphasized):
In subsec. (h), “sections 1331 or 1346 of title 28” was substituted
for “section 24 of the Judicial Code of the United States” on
authority of act June 25, 1948, ch. 646, 62 Stat. 869, section 1 of
which enacted Title 28, Judiciary and Judicial Procedure. Prior to
the enactment of Title 28, section 24 of the Judicial Code was
classified to section 41 of Title 28. Jurisdictional provisions
previously covered by section 41 of Title 28 are covered by
sections 1331 to 1348, 1350 to 1357, 1359, 1397, 1399, 2361,
2401, and 2402 of Title 28.
See 42 U.S.C. § 405 (1982).
A year later, H.R. 3805, the “Technical Corrections Act of 1983” was
introduced to the floor of the House. 129 Cong. Rec. 23,439 (1983) (statement of
Rep. Rostenkowski). A report on the bill describes its derivation and purpose as
follows:
The technical amendments made by the Technical Corrections Act
of 1983 are intended to clarify and conform various provisions
adopted by the acts listed above. The bill is based on a review by
the staffs of the Joint Committee on Taxation and the Committee
on Ways and Means, taking into account the comments submitted
to the Congress that concerned changes that would be technical in
nature. The bill was developed with the assistance of the Treasury
Department, the Social Security Administration, and the Health
Care Financing Administration.
16
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See STAFF OF J. COMM. ON TAXATION, 98TH CONG., DESCRIPTION OF H.R. 3805
(TECHNICAL CORRECTIONS ACT OF 1983), at 1 (J. Comm. Print 1983) (“H.R. 3805
Rept.”).
Among the numerous “technical amendments” was an amendment to §
405(h), proposing to enact the prior codification into positive law:
(D) Section 205(h) of such Act is amended by striking out “Section
24 of the Judicial Code of the United States” and inserting in lieu
thereof “section 1331 or 1346 of title 28, United States Code,”.
See Technical Corrections Act of 1983: Hearing on H.R. 3805 Before the H.
Comm. on Ways and Means, 98th Cong. 79 (1984) (draft text of H.R. 3805).13
That section of the act, titled “Sec. 403. Other Technical Corrections in [old age,
survivors, and disability insurance] Provisions,”14 was followed by this in “Sec.
404. Effective Dates”:
(b)(1) Except to the extent otherwise specifically provided in this
title, the amendments made by section 403 shall be effective on the
date of enactment of this Act; but none of such amendments shall
be construed as changing or affecting any right, liability, status, or
interpretation which existed (under the provisions of law involved)
before that date.
13
The U.S. Code is not necessarily “positive law.” Rather, the text of the U.S. Code is prima
facie evidence of the law of the United States; where the code conflicts with the Statutes at Large
however, the Statutes at Large trump. See U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am.,
Inc., 508 U.S. 439, 448 (1993). Additionally, some parts of the code have been enacted into
positive law; when this happens, the text of the code becomes evidence of the law. See id. at 448
n. 3 (citing to 1 U.S.C. § 204(a)); see generally Alice I. Youmans, et. al., Questions & Answers,
78 Law. Libr. J. 585, 590 (1986) (explaining the relationship between the U.S. Code, Statutes at
Large, and positive law).
14
See e.g. H.R. 3805 Rept. at 20.
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See id. at 89-90 (emphasis added). The legislative history of H.R. 3805 appears to
characterize this and other “technical corrections” as “certain corrections of
spelling, punctuation, and cross-references in title XVIII of the Social Security Act
and in cross-references to the Internal Revenue Code.” See H.R. 3805 Rept. at
37.15 Moreover, the bill’s sponsor, Rep. Dan Rostenkowski, noted when the bill
was introduced: “I would like to emphasize that this bill intends simply to correct
technical errors and to better reflect the policies established by the Congress in
enacting the original legislation.” 129 Cong. Rec. 23321, 23440 (1983). H.R. 3805
did not contain any provisions relating to the jurisdiction of bankruptcy courts.
Although H.R. 3805 did not become law, in 1984 it was merged into another
bill, H.R. 4170, which Congress passed as The Deficit Reduction Act of 1984, Pub.
L. No. 98-369, 98 Stat. 494 (1984) (hereinafter, the “DRA”). 16 As noted in the bill
itself, the general purpose of the DRA was “to provide for tax reform, and for
deficit reduction.” See 98 Stat. at 494. The DRA did not contain any provisions
relating to the scope of bankruptcy court jurisdiction.
The amendment to § 405(h) is located in “DIVISON V – SPENDING
REDUCTION ACT OF 1984”, “TITLE VI — OASDI, SSI, AFDC, AND OTHER
15
The report similarly notes that where no descriptions are provided, the amendments are
“clerical in nature.” Id. at 1.
16
See H.R. Rep. No. 98-432, pt. 2, at 1027 (1984) (explaining that “Title VI – Technical
Corrections” of H.R. 4170 originated as the amended H.R. 3805).
18
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PROGRAMS,” “Subtitle D — Technical Corrections,” “Sec. 2663. Other technical
corrections in the Social Security Act and related provisions.” Consistent with the
1976 and 1982 codification (and the amendment originally proposed in H.R.
3805), section 2663(a)(4)(D) ordered that “Section 205(h) of [the Social Security
Act] is amended by striking out ‘section 24 of the Judicial Code of the United
States’ and inserting in lieu thereof ‘section 1331 or 1346 of title 28, United States
Code,’.” See 98 Stat. at 1162. Section 2664 of the DRA further requires that
“[e]xcept to the extent otherwise specifically provided in this subtitle, the
amendments made by section 2663 shall be effective on the date of the enactment
of this Act; but none of such amendments shall be construed as changing or
affecting any right, liability, status, or interpretation which existed (under the
provisions of law involved) before that date.” See id. at 1171-72.
The House committee report on the DRA explains the reasons for the
“technical corrections” of certain sections in the bill, but does not specifically
address the amendments to § 405(h). The report generally states that the “bill
makes certain corrections of spelling, punctuation, cross-references and other
clerical amendments to the Social Security Act and related provisions in the
Internal Revenue Code.” See H.R. Rep. No. 98-432, pt. 2, at 1663 (1984). Nothing
in the report or elsewhere in the legislative history, in so far as we have been able
to determine, expresses any intention to change the jurisdiction of bankruptcy
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courts, let alone to grant bankruptcy courts parallel authority with HHS over
Medicare claims.
It thus appears that the current text of § 405(h) is the result of the Office of
the Law Revision Counsel’s mistaken codification, an error enacted into positive
law by the DRA. While the Supreme Court has yet to speak on this precise issue,
the Court has had reason to interpret § 405(h) in a number of cases that are helpful
in resolving the current dispute. We thus turn to an examination of those cases
before turning back to the codification issue.
B. Supreme Court cases interpreting § 405(h)
The earliest relevant Supreme Court decision, Salfi, was decided prior to the
DRA amendment to § 405(h). In Salfi the plaintiff brought suit to challenge the
Social Security Administration’s “duration-of-relationship requirements” as
unconstitutional. 422 U.S. at 752-53. The district court exercised jurisdiction over
the case pursuant to 28 U.S.C. § 1331. Id. at 755. While deciding the
constitutional question against the plaintiff, more relevant for our purposes is the
Court’s analysis of the “serious question as to whether the District Court had
jurisdiction over this suit” to begin with. See Salfi, Id. at 756.
In examining the requirements of § 405(h), the Court found that the third
sentence, “No action against the United States, the Secretary, or any officer or
employee thereof shall be brought under (§ 1331 et seq.) of Title 28 to recover on
20
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any claim arising under (Title II of the Social Security Act)” 17 should be read as
more than merely a “codified requirement of administrative exhaustion” because
the first two sentences of § 405(h) already require administrative exhaustion. Id. at
757.18 Those first two sentences prevent review of any decision of the Secretary
other than as set out in § 405(g), which prescribes “typical requirements for review
of matters before an administrative agency, including administrative exhaustion.”
Id. at 758. The Court thus explained that the third sentence of § 405(h) acted to bar
actions under § 1331, even where administrative remedies had been exhausted. Id.
at 757.
Somewhat less than a decade later, the Court again considered § 405(h)
again in Heckler v. Ringer, 466 U.S. 602 (1984). In Ringer, the underlying factual
dispute involved “challenges to the policy of the Secretary of Health and Human
Services (Secretary) as to the payment of Medicare benefits for a surgical
procedure known as bilateral carotid body resection (BCBR).” Id. at 604-05. The
focus of the case was whether the plaintiff’s claims “arose” under the Medicare
Act. See e.g. id. at 612-613. But in characterizing § 405(h) and its own holding in
17
As noted previously, the third sentence of § 405(h) at the time incorrectly referred to title 24 of
the Judicial Code, and the Court’s opinion inserted the correct cross-reference to the relevant
section of Title 28 of the U.S. Code. See id. at 756 n. 3. While surely strong evidence of how the
Supreme Court reads § 405(h), Salfi did not raise the interpretive issue at the heart of this case,
and thus does not dispose of the issue.
18
The first two sentences read: “The findings and decisions of the Secretary after a hearing shall
be binding upon all individuals who were parties to such hearing. No findings of fact or decision
of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as
herein provided.” 42 U.S.C. § 405(h).
21
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Salfi, the Court held that “[t]he third sentence of 42 U.S.C. § 405(h), made
applicable to the Medicare Act by 42 U.S.C. § 1395ii, provides that § 405(g), to
the exclusion of 28 U.S.C. § 1331, is the sole avenue for judicial review for all
‘claim[s] arising under’ the Medicare Act.” Id. at 614-15.
Perhaps most instructive is a more recent case, decided long after the 1984
DRA amendments to § 405(h), Shalala v. Illinois Council on Long Term Care,
Inc., 529 U.S. 1 (2000). The plaintiffs in Illinois Council were an association of
nursing homes challenging the legality and constitutionality of certain Medicare-
related regulations. Id. at 5. As in Ringer, the key issue in Illinois Council was
whether the plaintiff’s claims “arose” under the Medicare Act (and were thus
subject to the § 405(h) jurisdictional bar). Id. at 9-10.
However, in explaining the application of § 405(h) to the case, the Court
again emphasized that the effect of § 405(h) was to reach beyond normal principles
of “administrative exhaustion” and “ripeness,” and prevent even the application of
normal exceptions to those doctrines. Id. at 12. The Court held that § 405(h)
“demands the ‘channeling’ of virtually all legal attacks through the agency.” Id. at
13 (emphasis added). Moreover, the Court explained the balancing policy interests
inherent in such a scheme:
[I]t assures the agency greater opportunity to apply, interpret, or
revise policies, regulations, or statutes without possibly premature
interference by different individual courts applying “ripeness” and
“exhaustion” exceptions case by case. But this assurance comes at
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a price, namely, occasional individual, delay-related hardship. In
the context of a massive, complex health and safety program such
as Medicare, embodied in hundreds of pages of statutes and
thousands of pages of often interrelated regulations, any of which
may become the subject of a legal challenge in any of several
different courts, paying this price may seem justified.
Id. at 13. As the Court noted, whatever one may think of such a policy, it was
clearly that chosen by Congress in creating § 405(h).19
A few salient points about § 405(h) are thus clear from the relevant Supreme
Court cases. Salfi makes clear that the first two sentences of § 405(h) require
standard administrative exhaustion of remedies prior to bringing Medicare claims
before a district court. See Salfi, 422 U.S. at 757. Moreover, § 405(h) “demands
the ‘channeling’ of virtually all legal attacks through the agency,” making § 405(g)
the “sole avenue for judicial review for all ‘claim[s] arising under’ the Medicare
Act.” See Illinois Council, 529 U.S. at 13; Ringer, 466 U.S. at 615-14. However,
we must acknowledge a common thread running through all three cases: each
involved a suit brought under 28 U.S.C. § 1331, a jurisdictional grant that all
parties agree was barred by § 405(h) prior to the 1984 amendments and continues
to be barred after the amendments.20 Thus, none of these cases answers the
19
See id. at 13 (noting that “[i]n any event, such was the judgment of Congress as understood in
Salfi and Ringer”).
20
Similarly, to the extent our Court has addressed the reach of the jurisdictional bar of § 405(h)
since the 1984 DRA amendments, it appears that the cases have been § 1331 cases. See e.g. Dial
v. Healthspring of Alabama, Inc., 541 F.3d 1044, 1047-48 (11th Cir. 2008); Cochran v. U.S.
Health Care Fin. Admin., 291 F.3d 775, 778-79 (11th Cir. 2002); United States v. Blue Cross &
Blue Shield of Alabama, Inc., 156 F.3d 1098, 1101 (11th Cir. 1998); Am. Acad. of Dermatology
23
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question before us, namely, does § 405(h) bar jurisdiction under § 1334? To
further examine the question, we turn to the decisions of our sister circuits.
C. Courts split over the application of § 405(h) to district courts
The decisions of our sister circuits (and the lower courts) fall into two
categories. The first group of cases holds that the jurisdictional bar of § 405(h)
applies to cases brought under § 1332 jurisdiction (i.e. diversity jurisdiction),
notwithstanding the fact that § 1332 (like § 1334) is not mentioned in the statute.
The second group of cases directly considers whether § 1334 jurisdiction can lie in
the face of § 405(h).
1. Cases holding that § 405(h) bars jurisdiction
The primary case among the first category of § 1332 decisions is from the
Seventh Circuit in Bodimetric Health Servs., Inc. v. Aetna Life & Cas., 903 F.2d
480 (7th Cir. 1990). In determining whether a review of plaintiff’s claims in a
district court was precluded by § 405(h), the Seventh Circuit noted the “curious”
fact that § 405(h) on its face appears to bar “actions brought pursuant to federal
v. Dep't of Health & Human Servs., 118 F.3d 1495, 1499 n. 8 (11th Cir. 1997); Am. Fed'n of
Home Health Agencies, Inc. v. Heckler, 754 F.2d 896, 897-98 (11th Cir. 1984). Both parties cite
and discuss V.N.A. of Greater Tift Cty., Inc. v. Heckler, 711 F.2d 1020 (11th Cir. 1983). Though
V.N.A. was decided before the 1984 amendments, it appears the Court in that case cited to the
Law Revision Counsel’s 1976 (or 1982) re-codified version of the statute in its opinion. See
V.N.A., 711 F.2d at 1024. In a footnote of the opinion, the Court notes that “[t]here can be no
question that § 405(h) fully applies to the present case, because the district court's jurisdiction is
founded on 28 U.S.C. § 1331.” Id.at n. 5. We also note Lifestar Ambulance Serv., Inc. v. United
States, 365 F.3d 1293, 1295 n. 3 (11th Cir. 2004), in which this Court assumed, but did not
decide, that mandamus jurisdiction under § 1361 was not barred under § 405(h). These cases do
not address the issue of whether actions brought under § 1334 are barred by § 405(h).
24
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question jurisdiction and actions brought against the United States but appears to
permit actions brought pursuant to diversity jurisdiction.” See id. at 488.
However, the Seventh Circuit then analyzed the codification history described
supra, holding that in § 2664(b) of the DRA Congress had “clearly expressed” its
intent not to substantively change the scope of § 405(h). Id. at 489. Thus, because
the statute prior to amendment had clearly barred diversity jurisdiction, the revised
statute continued to bar diversity jurisdiction. Id.
Both the Third and Eighth circuits have subsequently adopted the holding
and analysis of Bodimetric. See Nichole Med. Equip. & Supply, Inc. v.
TriCenturion, Inc., 694 F.3d 340, 346-47 (3d Cir. 2012); Midland Psychiatric
Associates, Inc. v. United States, 145 F.3d 1000, 1004 (8th Cir. 1998). An earlier
Third Circuit case, In re Univ. Med. Ctr., Inc., 973 F.2d 1065, 1073-74 (3d Cir.
1992), appears to suggest (but not hold) that § 405(h) may not apply to bankruptcy
courts. However, that case involved a claim that HHS had violated an automatic
bankruptcy stay. The court’s opinion hinged on its holding that such a claim did
not “arise” under the Medicare act. Id. at 1073. In Nichole Med. Equip., the Third
Circuit explicitly adopted Bodimetric, noting that “Congress clearly prohibited
federal courts from exercising subject matter jurisdiction or diversity jurisdiction
over claims arising under the [Medicare] Act.” See 694 F.3d at 347.
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Several circuits have thus addressed the question of whether § 405(h) bars
districts court jurisdiction other than pursuant only to §§ 1331 and 1346. Those
circuits read the history of § 405(h) to conclude that the codification error acts to
carry forward the original § 405(h)’s jurisdictional restrictions.21
2. Cases holding that § 405(h) does not bar § 1334 jurisdiction
The second category of cases come first from the Ninth Circuit and begin
with In re Town & Country Home Nursing Servs., 963 F.2d 1146 (9th Cir. 1991).
The court there was asked to determine if the failure to exhaust administrative
remedies precluded a bankruptcy court from exercising jurisdiction over state law
tort and contract claims “arising out of the government’s setoff of Medicare
overpayments.” Id. at 1154. The Ninth Circuit held that “Section 405(h) only bars
actions under 28 U.S.C. §§ 1331 and 1346; it in no way prohibits an assertion of
jurisdiction under section 1334.” Id. at 1155. The Ninth Circuit appears to have
placed great weight on “section 1334’s broad jurisdictional grant over all matters
conceivably having an effect on the bankruptcy estate.” Id. However, the court did
not discuss or analyze the legislative history relied on in the Bodimetric line of
cases.
21
Although not squarely deciding the issue, a number of other circuit court decisions have
suggested that § 405(h) bars jurisdictions other than pursuant to only §§ 1331 and 1346. See BP
Care, Inc. v. Thompson, 398 F.3d 503, 515 n. 11 (6th Cir. 2005) (citing favorably to Bodimetric
analysis); St. Vincent's Med. Ctr. v. United States, 32 F.3d 548, 550 (Fed. Cir. 1994) (holding
that Court of Federal claims jurisdiction barred by § 405(h)). The First Circuit has recognized
the issue, but declined to address it. See In re Ludlow Hosp. Soc., Inc., 124 F.3d 22, 25 n. 7 (1st
Cir. 1997) (recognizing, but avoiding, § 405(h) jurisdictional issue by deciding case on merits).
26
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A later Ninth Circuit case, Kaiser v. Blue Cross of California, 347 F.3d
1107, 1114 (9th Cir. 2003), cites favorably to both Bodimetric and Midland
Psychiatric for what those cases say about a claim that “arises under Medicare.” It
appears that the court in Kaiser assumed that the plaintiffs were proceeding under
federal-question jurisdiction (which is indisputably precluded by § 405(h)), and
thus the only relevant question was whether their claims “arose” under Medicare.
But in a dicta discussion of whether there had been a waiver of sovereign
immunity, the court noted that “11 U.S.C. § 106(a), which refers to waivers of
sovereign immunity in bankruptcy proceedings, could not apply since any
consideration of claims against the government in [debtor]'s bankruptcy would
likely require consideration of the merits of the Medicare claims, again invoking
42 U.S.C. § 405(g).” Id. at 1117. Thus, Kaiser at least hints that the court would
have come to the opposite conclusion of In re Town & Country, i.e. by holding that
bankruptcy jurisdiction could not trump the exhaustion requirements of §§ 405(g)
and (h).
A more recent Ninth Circuit decision, Do Sung Uhm v. Humana, Inc., 620
F.3d 1134 (9th Cir. 2010) attempted to address what it characterized as a possible
conflict between Kaiser and In re Town & Country. The Do Sung Uhm court cites
Kaiser for the proposition that “[j]urisdiction over cases ‘arising under’ Medicare
exists only under 42 U.S.C. § 405(g), which requires an agency decision in
27
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advance of judicial review.” Id. at 1140-41. In a footnote though, the court
acknowledges the tension between Kaiser’s broad reading of § 405(h) and In re
Town & Country’s more narrow reading, but reconciles the two on the grounds that
In re Town & Country relied on the “special status” of bankruptcy court
jurisdiction over bankruptcy issues. Id. at 1141 n. 11. The court concludes that In
re Town & Country’s reading of 42 U.S.C. § 405(h) applies “only to actions
brought under § 1334, while not bearing on the relationship between § 405(h) and
other jurisdictional provisions such as § 1332.” Id. The Ninth Circuit thus joins the
other circuit courts in unanimously opining that § 405(h) bars diversity jurisdiction
under § 1332, notwithstanding the omission of § 1332 from the text of § 405(h).
However, the Ninth Circuit is alone among circuit court decisions in reading
§ 405(h) to permit bankruptcy court jurisdiction over Medicare claims under §
1334. Many lower courts have also considered the issue of § 1334 jurisdiction.
These lower courts have split, with some assuming jurisdiction,22 and others
22
See e.g. In re Nurses' Registry & Home Health Corp., 533 B.R. 590, 593-97 (Bankr. E.D. Ky.
2015); In re Slater Health Ctr., Inc., 294 B.R. 423, 428 (Bankr. D.R.I. 2003), vacated in part,
306 B.R. 20 (D.R.I. 2004), aff’d, 398 F.3d 98 (1st Cir. 2005); In re Healthback, L.L.C., 226 B.R.
464, 472-74 (Bankr. W.D. Okla. 1998), vacated, In re HealthBack, L.L.C., Case No. 97-22616-
BH, 1999 WL 35012949 (Bankr. W.D. Okla. May 28, 1999); First Am. Health Care of Georgia
Inc. v. Dep't of Health & Human Servs., 208 B.R. 985, 988-90 (Bankr. S.D. Ga. 1996), vacated
and superseded sub nom., First Am. Health Care of Georgia, Inc. v. U.S. Dep't of Health &
Human Servs., Case No. 96-2007, 1996 WL 282149 (Bankr. S.D. Ga. Mar. 11, 1996); In re
Healthmaster Home Health Care, Inc., Case No. 95-10548, 95-01031A, 1995 WL 928920, at *1
(Bankr. S.D. Ga. Apr. 13, 1995); In re Shelby Cty. Healthcare Servs. of AL, Inc., 80 B.R. 555,
557-60 (Bankr. N.D. Ga. 1987).
28
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deciding jurisdiction was barred.23 Case going both ways have recognized and
analyzed the codification error that led to the present omission of § 1334 from the
text of § 405(h). Compare e.g. In re Nurses' Registry & Home Health Corp., 533
B.R. 590, 593-97 (Bankr. E.D. Ky. 2015) (assuming jurisdiction under § 1334) to
In re St. Johns Home Health Agency, Inc., 173 B.R. 238, 245-46 (Bankr. S.D. Fla.
1994) (holding that § 1334 jurisdiction is barred).
We also note some limited scholarship addressing this issue as well. Articles
written by members of the bankruptcy bar argue that under the “plain meaning”
doctrine, bankruptcy courts’ § 1334 jurisdiction is not barred by § 405(h). See
Samuel R. Maizel & Michael B. Potere, Killing the Patient to Cure the Disease:
Medicare's Jurisdictional Bar Does Not Apply to Bankruptcy Courts, 32 Emory
Bankr. Dev. J. 19, 66 (2015); Peter R. Roest, Recovery of Medicare and Medicaid
Overpayments in Bankruptcy, 10 Annals Health L. 1, 1 (2001). Conversely, an
article written by current and former counsel for HHS argues that, based on the
23
Excel Home Care, Inc. v. U.S. Dep’t of Health & Human Servs., 316 B.R. 565, 572-574 (D.
Mass. 2004); In re Hodges, 364 B.R. 304, 305-6 (Bankr. N.D. Ill. 2007); In re House of Mercy,
Inc., 353 B.R. 867, 869-73 (Bankr. W.D. La. 2006); In re Fluellen, Case No. 05-40336 (ALG),
2006 WL 687160, at *1 (Bankr. S.D.N.Y. Mar. 13, 2006); U.S., Dep't of Health & Human Servs.
v. James, 256 B.R. 479, 481-82 (W.D. Ky. 2000); In re Hosp. Staffing Servs., Inc., 258 B.R. 53,
57-58 (S.D. Fla. 2000); In re Mid-Delta Health Sys., Inc., 251 B.R. 811, 814-15 (Bankr. N.D.
Miss. 1999); In re Tri Cty. Home Health Servs., Inc., 230 B.R. 106, 108 n. 1 (Bankr. W.D. Tenn.
1999); In re S. Inst. for Treatment & Evaluation, Inc., 217 B.R. 962, 965 (Bankr. S.D. Fla.
1998); In re Home Comp Care, Inc., 221 B.R. 202, 206 (N.D. Ill. 1998); In re AHN Homecare,
LLC, 222 B.R. 804, 807-10 (Bankr. N.D. Tex. 1998); In re Orthotic Ctr., Inc., 193 B.R. 832, 835
(N.D. Ohio 1996); In re St. Johns Home Health Agency, Inc., 173 B.R. 238, 245–46 (Bankr. S.D.
Fla. 1994); In re Upsher Labs., Inc., 135 B.R. 117, 117-20 (Bankr. W.D. Mo. 1991); In re St.
Mary Hosp., 123 B.R. 14, 16-18 (E.D. Pa. 1991).
29
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legislative history, the amended § 405(h) should have the same effect as the prior
version, i.e. barring bankruptcy court jurisdiction. See John Aloysius Cogan Jr. &
Rodney A. Johnson, Administrative Channeling Under the Medicare Act Clarified:
Illinois Council, Section 405(h), and the Application of Congressional Intent, 9
Annals Health L. 125, 125 (2000).
3. Mandamus jurisdiction and § 405(h)
We note in passing a related issue: whether § 405(h) bars mandamus
jurisdiction exercised pursuant to 28 U.S.C. § 1361. As noted supra, n. 20, this
circuit has not decided that issue. See Lifestar Ambulance Serv., Inc. v. United
States, 365 F.3d 1293, 1295 n. 3 (11th Cir. 2004). The Supreme Court has also
repeatedly declined to decide whether mandamus jurisdiction is prohibited by §
405(h). See e.g. Your Home Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449,
456 n. 3 (1999). However, the great weight of authority from other circuits has
almost uniformly found that § 405(h) does not necessarily deprive district courts of
mandamus jurisdiction over Medicare claims. 24
Superficially at least, there is some commonality between the issue in those
cases regarding § 1361, and the issue in our case involving § 1334, because both
24
See e.g. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 766 (5th Cir. 2011);
Cordoba v. Massanari, 256 F.3d 1044, 1047 (10th Cir. 2001); Buchanan v. Apfel, 249 F.3d 485,
491–92 (6th Cir. 2001); Briggs v. Sullivan, 886 F.2d 1132, 1142 (9th Cir. 1989); Burnett v.
Bowen, 830 F.2d 731, 738 (7th Cir. 1987); Ganem v. Heckler, 746 F.2d 844, 851-52 (D.C. Cir.
1984); Kuehner v. Schweiker, 717 F.2d 813, 819 (3d Cir. 1983), judgment vacated sub. nom. on
other grounds, Heckler v. Kuehner, 469 U.S. 977 (1984); Belles v. Schweiker, 720 F.2d 509, 513
(8th Cir. 1983); Ellis v. Blum, 643 F.2d 68, 81 (2d Cir. 1981).
30
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jurisdictional provisions are not listed in the text of § 405(h). The commonality is
just that though, superficial. As Judge Friendly of the Second Circuit accurately
explained, when § 405(h) was passed in 1939, mandamus jurisdiction was not one
of the jurisdictional provisions contained in Section 24 of the Judicial Code. See
Ellis v. Blum, 643 F.2d 68, 81 (2d Cir. 1981). 25 Thus, unlike § 1334, there is no
argument to be made that the codification of section 24 into Title 28 had any
impact on the availability of mandamus relief under § 1361. See id.; see also
Ganem v. Heckler, 746 F.2d 844, 851 (D.C. Cir. 1984) (noting that absence of §
1361 was unrelated to codification error because even in original version of §
405(h), § 24 of the Judicial Code did not include District of Columbia’s common
law jurisdiction to issue mandamus writs).
However, the issue of whether a district court can exercise mandamus
jurisdiction related to Medicare claims, notwithstanding the § 405(h) bar, is neither
in front of the court, nor necessary to resolve the current dispute. As previously,
25
In fact, at that time only district courts in the District of Columbia could exercise mandamus
jurisdiction, pursuant to an uncodified grant of authority dating back to the early nineteenth
century and the District of Columbia’s adoption of Maryland law. See id. District courts
elsewhere in the country were granted mandamus jurisdiction explicitly when Congress passed
the Mandamus and Venue Act, Pub. L. No. 87-748, 76 Stat. 744 (1962). Judge Friendly
reasoned that Congress likely did not intend to bar District of Columbia courts’ mandamus
jurisdiction when it passed § 405(h) because that uncodified jurisdiction was not specifically
excluded, and Congress similarly did not intend mandamus jurisdiction to suddenly become
subject to § 405(h) when mandamus jurisdiction was extended to other courts in 1962. See Ellis,
643 F.2d at 81.
31
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we thus decline to decide the issue. See Lifestar Ambulance Serv., 365 F.3d at
1295 n. 3.
D. The Bankruptcy Court Lacked Jurisdiction Under § 405(h)
With that considerable background in mind, we turn now to the issue in this
case: did 42 U.S.C. § 405(h) bar the bankruptcy court below from taking
jurisdiction over Bayou Shore’s Medicare provider agreement under 28 U.S.C. §
1334? Because we are persuaded that the 1984 amendments to § 405(h) were a
codification and not a substantive change, we align ourselves with the Seventh,
Eighth, and Third Circuits and hold that § 405(h) bars § 1334 jurisdiction over
claims that “arise under [the Medicare Act].”
1. The Deficit Reduction Act of 1984 amendment to § 405(h) was
a codification and did not substantively change the law.
Bayou Shores’ primary argument, and the primary argument of courts
holding that § 1334 jurisdiction is not barred § 405(h), is relatively straightforward:
the text of the third sentence of § 405(h) does not mention § 1334, and thus, under
the “plain meaning” of the statute § 1334 jurisdiction is not barred by § 405(h).
Bayou Shores is certainly correct that “when [a] statute’s language is plain, the
sole function of the courts—at least where the disposition required by the text is
not absurd—is to enforce it according to its terms.” Lamie v. U.S. Tr., 540 U.S.
526, 534 (2004) (internal quotation marks and citations removed); see also Owner-
32
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Operator Indep. Drivers Ass'n, Inc. v. Landstar Sys., Inc., 622 F.3d 1307, 1327
(11th Cir. 2010) (holding that “[t]here is no reason for this Court to rewrite a
statute because of an alleged scrivener error unless a literal interpretation would
lead to an absurd result.”)
But that is not the end of the analysis because this case is governed by a
particular canon in statutory construction regarding the codification of law, i.e. the
process of converting and organizing the Statues at Large into the U.S. Code.
Since virtually the founding of the Republic, it has been recognized that when
legislatures codify the law, courts should presume that no substantive change was
intended absent a clear indication otherwise. For example, in the oldest case we
have been able to locate,26 Taylor v. Delancy, 2 Cai. Cas. 143, 151 (N.Y. Sup. Ct.
1805), the New York Supreme Court of Judicature27 held “that where the law,
antecedently to the revision was settled, either by clear expressions in the statutes,
or adjudications on them, the mere change of phraseology shall not be deemed or
construed a change of the law, unless such phraseology evidently purports an
intention in the legislature to work a change.”
26
The difficulties inherent in codifying and organizing the law are older still, and plagued even
the earliest democracy. Aristotle notes that after the Athenian statesmen Solon “had organized
the [Athenian] constitution in the manner stated, people kept coming to him and worrying him
about his laws, criticizing some points and asking questions about others,” causing him to leave
Greece for Egypt for the next ten years. See ARISTOTLE, THE ATHENIAN CONSTITUTION, Ch. 11
(H. Rackham trans., Cambridge, MA, Harvard University Press 1952).
27
The Supreme Court of Judicature was the “highest common-law” state court in New York at
that time. See William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d
470, 478 (2013).
33
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The Supreme Court appears to have recognized the canon at least as early as
Stewart v. Kahn, 78 U.S. 493, 502 (1870), where the Court held that “[a] change of
language in a revised statute will not change the law from what it was before,
unless it be apparent that such was the intention of the legislature.” The Court
reiterated the principle in United States v. Ryder, 110 U.S. 729, 740 (1884),
holding that “[i]t will not be inferred that the legislature, in revising and
consolidating the laws, intended to change their policy, unless such intention be
clearly expressed.” This canon of statutory construction has remained undisturbed
since that time. See e.g. McDonald v. Hovey, 110 U.S. 619, 629 (1884); Logan v.
United States, 144 U.S. 263, 302 (1892), abrogated on other grounds, Witherspoon
v. State of Ill., 391 U.S. 510 (1968); Holmgren v. United States, 217 U.S. 509, 520
(1910); Anderson v. Pac. Coast S.S. Co., 225 U.S. 187, 199 (1912); United States
v. Sischo, 262 U.S. 165, 168-69 (1923); Hale v. Iowa State Bd. of Assessment &
Review, 302 U.S. 95, 102 (1937); Fourco Glass Co. v. Transmirra Products Corp.,
353 U.S. 222, 227 (1957); United States v. FMC Corp., 84 S. Ct. 4, 7 (Goldberg,
Circuit Justice 1963); United States v. Welden, 377 U.S. 95, 98 n. 4 (1964);
Tidewater Oil Co. v. United States, 409 U.S. 151, 162 (1972); Cass v. United
States, 417 U.S. 72, 82 (1974); Aberdeen & Rockfish R. Co. v. Students
Challenging Regulatory Agency Procedures (S.C.R.A.P.), 422 U.S. 289, 309 n. 12
(1975); Muniz v. Hoffman, 422 U.S. 454, 470 (1975); Fulman v. United States, 434
34
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U.S. 528, 538 (1978); Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305,
318 (1985); Finley v. United States, 490 U.S. 545, 554 (1989); Ankenbrandt v.
Richards, 504 U.S. 689, 700 (1992); Keene Corp. v. United States, 508 U.S. 200,
209 (1993); Scheidler v. Nat'l Org. for Women, Inc., 547 U.S. 9, 20 (2006); John
R. Sand & Gravel Co. v. United States, 552 U.S. 130, 136 (2008).
As it happens, a number of these cases from the 20th century arise from an
event that directly touches on the issues in our case: the 1948 recodification of the
Judicial Code. 28
In one of the earlier cases to examine the 1948 recodification, Fourco Glass
Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), the Court considered
whether the recodification had substantively changed venue rules in patent cases.
The issue was whether or not the specific patent venue statute, 28 U.S.C. § 1400(b)
was supplemented by the more general (and more expansive) civil suit venue
statute, 28 U.S.C. § 1391. Id. at 222. The Court first noted that in a pre-1948
recodification case, Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561
(1942), the Court had already determined that the more specific patent venue
provisions in the old Judicial Code of 1911 trumped more general venue provisions
28
The 1948 recodification moved “section 24 of the Judicial Code” to Title 28 of the U.S. Code,
but 42 U.S.C. § 405(h) continued to refer to “section 24 of the Judicial Code” until the DRA
amendment in 1984.
35
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for civil suits.29 The only issue therefore was whether the 1948 recodification
(which recodified § 48 of the Judicial Code to 28 U.S.C. § 1400(b)) had
substantively changed the patent venue statute. Fourco Glass, 353 U.S. at 225.
Noting that neither the legislative history, nor the Reviser’s Notes, indicated that
any substantive change was intended, the Court reasoned that “[t]he change of
arrangement, which placed portions of what was originally a single section in two
separated sections cannot be regarded as altering the scope and purpose of the
enactment. For it will not be inferred that Congress, in revising and consolidating
the laws, intended to change their effect, unless such intention is clearly
expressed.” Id. at 227 (internal quotation marks and citations omitted) (quoting
from Anderson v. Pac. Coast S.S. Co., 225 U.S. 187, 198 (1912)). The Court thus
held that no substantive change to 28 U.S.C. § 1400(b) had occurred during the
1948 recodification and the result in Stonite Products dictated the outcome of the
case. Id. at 227-28.
Similarly, in Tidewater Oil Co. v. United States, 409 U.S. 151, 162 (1972),
the Court rejected the argument that the 1948 Judicial Code revisions substantively
changed the existing law concerning appellate court jurisdiction over interlocutory
appeals in Government civil antitrust cases. The 1948 revision to 28 U.S.C. §
1292(a)(1) allowed interlocutory appeals of district court order to the courts of
29
Compare Judicial Code, Pub. L. No. 61-475, 36 Stat. 1087, § 48 (1911) with id. at § 52.
36
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appeals, “except where a direct review may be had in the Supreme Court.” Id.
Under then-existing law, appellate courts had no jurisdiction over any appeals in
Government civil antitrust cases (which were appealed directly to the Supreme
Court), and interlocutory appeals to the Supreme Court in Government civil
antitrust cases were not permitted. Id. at 154-56, 160. The Court thus reasoned that
a possible interpretation of the new language added by the 1948 revisions, “except
where a direct review may be had in the Supreme Court,” was that appellate court
jurisdiction over interlocutory appeals in Government civil anti-trust cases was
now available (contrary to prior law) because “direct review” in the Supreme Court
of an interlocutory appeal could not “be had.” Id. at 162.
Citing to Fourco Glass, the Court rejected that interpretation because no
such change to existing law had been “clearly expressed” by the 1948 revisions.
“To the contrary, the Revisers' Notes fail to reveal any intention to expand the
scope of the pre-existing jurisdiction of the courts of appeals over interlocutory
appeals; the new § 1292 is described merely as a consolidation of a number of
previously separate code provisions—including the general interlocutory appeals
provision—‘with necessary changes in phraseology to effect the consolidation.’”
Id. at 162-63. The Court thus concluded that the 1948 revisions did not
substantively expand the jurisdiction of appellate courts. Id. at 163.
37
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Muniz v. Hoffman, 422 U.S. 454, 456-57 (1975) arose out of a labor dispute
between the San Francisco Typographical Union and a local daily newspaper, in
which the union and its officers had been cited for criminal contempt in violating
certain court orders and subsequently denied a jury trial in the criminal contempt
proceedings. A key issue in the case was whether the Wagner and Taft-Hartley
Acts,30 which authorized courts to grant certain injunctions, permitted jury trials to
those found in contempt of the injunctions. Id. at 461. The parties appeared to
agree that prior to the 1948 revisions of the Criminal Code, 31 a contemnor had no
right to a jury trial in contempt actions to enforce injunctions issued under the
Wagner and Taft-Hartley Acts, notwithstanding the jury requirements in § 11 of
the earlier passed Norris-LaGuardia Act.32 Petitioners argued however that in
recodifying § 11 of Norris-LaGuardia as 18 U.S.C. § 3692 in 1948, Congress had
overruled its prior policy of not permitting jury trials in contempt actions to
enforce injunctions issued under the Wagner and Taft-Hartley Acts. Id. at 467.
30
National Labor Relations Act, Pub. L. No. 74-198, 49 Stat. 449 (1935) (the “Wagner Act”);
Labor Management Relations Act, Pub. L. No. 80-101, 61 Stat. 136 (1947) (the “Taft-Harley
Act”).
31
As the Court notes, the 1948 revision to the Criminal Code followed a “parallel course” to the
revision to the Judicial Code, and was prepared by the same staff of experts. See Muniz, 422 U.S.
at 470 n. 10.
32
Injunctions in Labor Disputes, Pub. L. No. 72-65, 47 Stat. 70 (1932) (the “Norris-LaGuardia
Act”). §11 of the Norris-LaGuardia Act provided jury trials in certain contempt actions, but
unquestionably did not provide a jury right in contempt actions arising out of injunctions issued
pursuant to the Wagner or Taft-Harley Acts. See Muniz, 422 U.S. at 462-463.
38
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The Court rejected this argument, holding that “[w]e cannot accept the
proposition that Congress, without expressly so providing, intended in § 3692 to
change the rules for enforcing injunctions,” which rules existed when § 11 was
originally passed. See Muniz, 422 U.S. at 468. The Court examined the legislative
history of the recodification and the Reviser’s Notes, which consistently expressed
that no substantive change was intended by the revision. Id. at 467-469. Citing
Fourco Glass, the Court reiterated the longstanding rule that “[n]o changes of law
or policy…are to be presumed from changes of language in the revision unless an
intent to make such changes is clearly expressed.” Id. at 472 (internal quotation
marks omitted). The Court thus expressed some incredulity at the proposition that
the major policy change petitioners argued for could be effected by Congress
without any mention of it in any of the legislative history or notes:
In view of the express disavowals in the House and Senate Reports
on the revisions of both the Criminal Code and the Judicial Code,
it would seem difficult at best to argue that a change in the
substantive law could nevertheless be effected by a change in the
language of a statute without any indication in the Revisers’ Note
of that change. It is not tenable to argue that the Revisers' Note to §
3692, although it explained in detail what words were deleted from
and added to what had been § 11 of the Norris-LaGuardia Act,
simply did not bother to explain at all, much less in detail, that an
admittedly substantial right was being conferred on potential
contemnors that had been rejected in the defeat of the Ball
amendment the previous year and that, historically, contemnors
had never enjoyed.
See id. at 472.
39
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Finley v. United States, 490 U.S. 545, 553-54 (1989), involved a question of
whether the 1948 recodification of the Judicial Code substantively created new
“pendent-party” jurisdiction when it recodified the Federal Tort Claims Act, 28
U.S.C. § 1346(b) (the “FTCA”). 33 Writing for the Court, Justice Scalia rejected
that argument, holding that “[u]nder established canons of statutory construction, it
will not be inferred that Congress, in revising and consolidating the laws, intended
to change their effect unless such intention is clearly expressed.” Id. at 554
(internal quotation marks omitted) (quoting from Anderson v. Pac. Coast S.S. Co.,
225 U.S. 187, 199 (1912) and citing to United States v. Ryder, 110 U.S. 729, 740
(1884)). Finding “no suggestion, much less a clear expression, that the minor
rewording at issue here imported a substantive change,” the Court held that the
pre-codification interpretation of the statute continued to hold (i.e. no “pendent-
party” jurisdiction under the FTCA). Id. at 554-56.
Finally, our own court has recently applied this canon in Koch Foods, Inc. v.
Sec'y, U.S. Dep't of Labor, 712 F.3d 476 (11th Cir. 2013). There we held that
certain amendments to 49 U.S.C. § 31105 enacted by the Revision of Title 49,
United States Code Annotated, “Transportation”, Pub. L. No. 103-272, 108 Stat.
745 (1994) were simply revisions and codifications, and thus did not change the
33
“Pendent-party” jurisdiction is “jurisdiction over parties not named in any claim that is
independently cognizable by [a] federal court.” See Finley, 490 U.S. at 549. As opposed to
“pendent-claim” jurisdiction, which is “jurisdiction over nonfederal claims between parties
litigating other matters properly before the court.” Id. at 548.
40
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pre-amendment scope of the law. Koch Foods, 712 F.3d at 485. We noted in Koch
Foods that (much like § 2664(b) of the DRA amendments here) the recodification
statute cautioned that the revisions and codifications were enacted “without
substantive change,” and that the legislative history (like the legislative history of
the DRA here) emphasized that the changes were not substantive. Id. The
interpretive canon used in Koch Foods is the one we use in this case: “As the
Supreme Court has observed, ‘it will not be inferred that Congress, in revising and
consolidating the laws, intended to change their effect unless such intention is
clearly expressed.’” Id. at 486 (quoting from Finley, 490 U.S. at 554).
We turn then to applying the recodification canon of statutory construction
to our case. It is clear that the Office of the Law Revision Counsel made an error
in revising § 405(h) in 1976 (and again in 1982). Rather than include the full range
of jurisdictional grants that were clearly forbidden under the prior law, 34 the Law
Revision Counsel (who it must be recalled has no authority to pass laws or alter the
jurisdiction of federal district courts) 35 mistakenly decided to update the cross-
reference only to § 1346 and § 1331 of the new Title 28. We find no indication
whatsoever, let alone a “clear indication,” in the Law Revision Counsel’s
34
I.e. each district court jurisdictional grant listed in Section 24 of the Judicial Code of 1911.
35
See e.g. N. Dakota v. United States, 460 U.S. 300, 311 n. 13 (1983) (noting that the editorial
decisions made by a codifier without the approval of Congress should be given no weight in
interpreting a statute).
41
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Codification note that the revisers intended or were suggesting an expansion of
district court jurisdiction to review Medicare and Social Security claims, thereby
reversing forty years of Congressional policy. On the contrary, the title of the note
(“Codification”) and its contents indicate that the change was a mere codification
(i.e. updating the cross-reference to “section 24 of the Judicial code” to its new
location in Title 28 of the U.S. Code), and not a substantive change. One would
expect that if the revisers intended the kind of fundamental change in policy and
expansion of the jurisdiction of bankruptcy courts that Bayou Shores suggests, it
would merit some mention. See Muniz, 422 U.S. at 472 (“It is not tenable to argue
that the Revisers’ Note …, although it explained in detail what words were deleted
… and added …, simply did not bother to explain at all, much less in detail, that an
admittedly substantial right was being conferred…”).
Moreover we do not find it significant, contrary to Bayou Shores’
suggestion, that Congress enacted the error into positive law when it passed the
DRA in 1984. There is no evidence in the DRA that Congress “clearly expressed”
an intention to reverse decades of Medicare and Social Security Act policy and
give bankruptcy courts parallel jurisdiction with HHS to adjudicate Medicare
claims (and parallel jurisdiction with the Social Security Administration to
adjudicate Social Security claims). Again, if Congress intended such an important
expansion of bankruptcy court jurisdiction to be enacted in a recodification, one
42
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would expect to find some indication in the statute or legislative history stating as
much. See Tidewater Oil, 409 U.S. at 162-63 (finding no indication in Reviser’s
Notes or legislative history that Congress intended recodification to expand federal
appellate court jurisdiction). Bayou Shores points to no such indication, nor are we
able to find one.
To the contrary, the statute itself tells us that the amendment in question is
not to be interpreted as making any substantive change to the law: “none of such
amendments shall be construed as changing or affecting any right, liability, status,
or interpretation which existed (under the provisions of law involved) before that
date.” See DRA, § 2664(b); see also Koch Foods, 712 F.3d at 485 (noting that the
statute “expressly states that no substantive change is intended by the revisions to
the language”). 36 The legislative history of the bill similarly emphasizes that the
amendments in § 2663 (including the amendment to § 405(h)) were not intended to
be substantive. See H.R. Rep. No. 98-432, pt. 2, at 1663 (1984) (noting that the
bill “makes certain corrections of spelling, punctuation, cross-references and other
clerical amendments to the Social Security Act and related provisions in the
Internal Revenue Code”). Rep. Dan Rostenkowski (the original sponsor of H.R.
36
The bankruptcy court referred to § 2664(b) as “legislative history.” See In re Bayou Shores,
525 B.R. at 167. Strictly speaking, that is not correct. “Legislative history” refers to
“proceedings leading to the enactment of a statute, including hearings, committee reports, and
floor debates.” Black's Law Dictionary (10th ed. 2014). Conversely, § 2664(b) of the DRA is
positive law: it is part of a statute that was passed by Congress and signed into law by the
President.
43
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3805, containing the “technical corrections” that were merged into the DRA)
“emphasize[d] that this bill intends simply to correct technical errors and to better
reflect the policies established by the Congress in enacting the original legislation.”
129 Cong. Rec. 23321, 23440 (1983).
Per long standing Supreme Court precedent, we “will not … infer[] that the
legislature, in revising and consolidating [§ 405(h)] intended to change their
policy, unless such intention be clearly expressed.” See United States v. Ryder, 110
U.S. 729, 740 (1884). Here, we find no clear expression of any intent to change
Congressional policy with respect to bankruptcy court jurisdiction over Medicare
claims. To the contrary, the statute and legislative history detailed above expresses
an intent not to substantively amend § 405(h).37
In reply, Bayou Shores attempts to downplay the mandate of § 2664(b) in
the DRA by arguing that despite the statute’s command that the amendments are
not to be interpreted as substantive, certain of the amendments were in fact
substantive. See Appellant’s Reply Br. at 2-9. We are not persuaded by this
argument. As an initial matter, Bayou Shores essentially asks us to ignore §
2664(b) and Congress’s command that the amendments are not substantive, which
37
The Seventh Circuit’s Bodimetric decision (and thus the decisions of the Third and Eighth
Circuits adopting Bodimetric) recognized and correctly applied this recodification canon of
statutory interpretation. See Bodimetric, 903 F.2d at 489 (citing to Muniz and U.S. v. Ryder).
Conversely, the cases holding that § 405(h) does not bar jurisdiction under § 1334 do not appear
to have recognized the existence of the canon, let alone analyzed whether it applies to this issue.
It is clear that in ignoring a canon of statutory construction that courts have been applying for
more than a century, these latter courts erred.
44
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we are clearly not free to do. In Muniz the Supreme Court indicated that “[t]he
nature of the revision process itself requires the courts, including this Court, to give
particular force to the many express disavowals in the House and Senate Reports of
any intent to effect substantive changes in the law.” See Muniz, 422 U.S. at 472 n.
11. Here we think it most reasonable to give force to Congress’s express
disavowals in the DRA itself and in the legislative history “of any intent to effect
substantive changes in the law.”
Moreover, the two examples that Bayou Shores cites as “substantive”
amendments in § 2663 of the DRA are, on closer review, at least arguably non-
substantive. First, Bayou Shores argues that § 2663(e)(3) of the DRA expanded
criminal liability for impersonating certain persons in order to obtain information
about their Social Security benefits. Appellant’s Reply Br. at 3-4. The language in
§ 2663(e)(3) orders that “Section 1107(b) of [the Social Security Act] is amended
by striking out ‘former wife divorced,’ each place it appears and inserting in lieu
thereof ‘divorced wife, divorced husband, surviving divorced wife, surviving
divorced husband, surviving divorced mother, surviving divorced father,’.” The
House committee report on the bill indicates that this amendment was intended to
bring Section 1107(b) into conformity with an earlier amendment eliminating
45
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gender-based distinctions in the Social Security Act. 38 Thus, arguably the earlier
amendment had already eliminated gender distinctions in Section 1107(b), and the
DRA amendments merely revised the text of Section 1107(b) to correctly reflect
those earlier amendments.39
Second, Bayou Shores points to §2663(a)(15)(C), and characterizes it as
denying certain benefits to college students that they otherwise would have
received under the prior version of the statute. Appellant’s Reply Br. at 5. The
relevant text of the amendment orders that “(C) Section 222(b)(4) of such Act is
amended by striking out ‘full–time student’ and inserting in lieu thereof ‘full-time
elementary or secondary school student’.” See DRA at §2663(a)(15)(C). A close
reading of the legislative history suggests that Bayou Shores is mistaken about this
provision as well. Section 222(b)(4) of the Social Security Act (codified at 42
38
See H.R. Rep. No. 98-432, pt. 2, at 1659 (1984) (“While the Social Security Amendments of
1983 sought to eliminate all gender-based distinctions in the Social Security Act, this gender-
based distinction was not eliminated by those amendments. In order to assure that the Social
Security Act provides the same penalty for fraud regardless of sex, the bill provides that the
penalty for fraud would also apply to an individual who falsely represents that he is the divorced
husband of a worker or beneficiary.”)
39
Even assuming Bayou Shores is correct that this provision substantively changed existing law,
it would not change the result in this case. The House report indicates the “clear intent” behind
the amendment to Section 1107(b) (whether substantive or not), whereas nothing in the
legislative history indicates a “clear intent” to change the jurisdiction of bankruptcy courts with
the amendment to § 405(h). Thus, the amendment to Section 1107(b) is not analogous to the
amendment to § 405(h). It is certainly possible that Congress intended to make substantive
amendments in the codification and revision section of the DRA. However, under United States
v. Ryder and its progeny we require some indication that a substantive change in the revision was
intended. See e.g. Ex parte Collett, 337 U.S. 55, 65-71 (1949) (explaining that reviser’s notes
and legislative history made clear that addition of 28 U.S.C. § 1404(a), which made forum non
coveniens transfers available in any district court civil action, was a substantive amendment
enacted by the 1948 Judicial Code revision).
46
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U.S.C. § 422) was added by Congress in 1965.40 At the time § 222(b)(4) was
added to the larger section, the term “full-time student” was “as defined and
determined under section 202(d).”41 Turning then to Section 202(d), that section
was amended in 1981 (prior to the DRA in 1984) in a section titled “Elimination of
child’s insurance benefits in the case of children age 18 through 22 who attend
postsecondary schools.” 42 The 1981 amendment makes clear that “full time
student” was to be defined as elementary and high-school students, not college
students. 43 A Senate report issued the following year noted that under the prior law
children beneficiaries could receive benefits until they were 22 as long as they
were in school, while the 1981 amendments eliminated those benefits for anyone
over 18 attending post-secondary schooling. 44 It thus appears that the 1984
amendment in the DRA referenced by Bayou Shores was a “technical correction”
because it simply updated § 222(b)(4) of the statute to be consistent with the
definitions in the earlier amended § 202(d).
40
See Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286 at § 306(14) (1965).
41
Section 202 of the Social Security Act is codified at 42 U.S.C. § 402. The current statute
continues to refer to section 202 for its definition of “full-time elementary or secondary school
student.”
42
See Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, 95 Stat. 357 at §2210
(1981).
43
See id. (“SEC. 2210. (a)(1) Section 202(d) of the Social Security Act is amended … by
striking out ‘full-time student’ each place it appears and inserting in lieu thereof ‘full-time
elementary or secondary school student’.”)
44
See S. Rep. No. 97-314, Vol. I, at 106 (1982).
47
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Finally, even if we assume for the sake of argument that Bayou Shores has
correctly identified two substantive changes in § 2663, the examples Bayou Shores
relies on are minor substantive amendments at best, compared to the massive shift
in policy that giving bankruptcy courts parallel authority to adjudicate Medicare
disputes would represent. This is akin to finding a few hidden firecrackers in the
bill and thus inferring the presence of an atomic bomb. In other words, the
presence of two minor substantive changes in § 2663 (assuming they are
substantive), can hardly justify interpreting the amendment to § 405(h) as enacting
a significant change in Congressional policy by creating bankruptcy court
jurisdiction over Medicare claims.
Therefore, we conclude that because the previous version of § 405(h)
precluded bankruptcy court review of Medicare claims under § 1334, so too must
the newly revised § 405(h) bar such actions.
2. § 1334 does not give bankruptcy courts special jurisdiction over
Medicare claims
In light of the above explanation, this Court is constrained to disagree with
the Ninth Circuit’s In re Town & Country opinion, and thus holds that § 405(h)
bars a bankruptcy court acting pursuant to § 1334 from exercising jurisdiction over
Medicare claims. However, both the Ninth Circuit in Do Sung Uhm v. Humana,
Inc., 620 F.3d 1134 (9th Cir. 2010) and Bayou Shores here argue that § 1334 has a
48
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“special status” that is different and distinct from other jurisdictional provisions
(such as § 1332).45 In particular, Bayou Shores argues that the text of § 1334(b)
itself defines the expansive nature of bankruptcy court jurisdiction:
“notwithstanding any Act of Congress that confers exclusive jurisdiction on a court
or courts other than the district courts, the district courts shall have original but not
exclusive jurisdiction of all civil proceedings arising under title 11.” See 28 U.S.C.
§ 1334(b). However, we read the Supreme Court’s opinion in Bd. of Governors of
Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32 (1991) as effectively
foreclosing that argument.
In MCorp Fin., the Court held that bankruptcy law’s automatic stay
provision (11 U.S.C. § 362) could not stay an administrative proceeding by the
Board of Governors of the Federal Reserve System against MCorp Financial. The
Court first found that the administrative proceeding fell squarely into the exception
in § 362 for proceedings to enforce a “governmental unit’s police or regulatory
power.” Id. at 39-40.46 The Court rejected MCorp Financial’s argument that for
the exception to apply, the bankruptcy court would need to determine in the first
instance whether the exercise of regulatory power was legitimate; the Court held
that such a reading “would require bankruptcy courts to scrutinize the validity of
45
See e.g. Appellant’s Reply Br. at 9-12.
46
The parties dispute a similar question on appeal. However, our decision that the bankruptcy
court lacked subject matter jurisdiction over the provider agreements renders moot the question
of whether HHS’s actions fall in § 362’s exceptions. We thus decline to decide that issue.
49
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every administrative or enforcement action brought against a bankrupt entity,” and
that “[s]uch a reading is problematic, both because it conflicts with the broad
discretion Congress has expressly granted many administrative entities and
because it is inconsistent with the limited authority Congress has vested in
bankruptcy courts.” Id. at 40 (emphasis added).
Importantly, the Court rejected MCorp’s broad reading of 28 U.S.C. §
1334(b), holding that “[s]ection 1334(b) concerns the allocation of jurisdiction
between bankruptcy courts and other ‘courts,’ and, of course, an administrative
agency such as the Board is not a ‘court.’” Id. at 41-42. That is precisely the
situation here: Bayou Shores’ provider agreement was terminated by the Centers
for Medicare & Medicaid Services (“CMS”), which is an administrative agency
within HHS and not a “court.” Thus, § 1334(b) does not concern the allocation of
jurisdiction between the bankruptcy court and HHS, and cannot trump the § 405(h)
jurisdictional bar.
Bayou Shores raises an additional argument relating to the 1984
amendments to § 1334. Bayou Shores points out that the Bankruptcy Amendments
and Federal Judgeship Act of 1984, Pub. L. No. 98-353, 98 Stat 333 (July 10,
1984) (the “Bankruptcy Act”) was passed only eight days prior to passage of the
DRA, and among other things significantly enlarged the scope of bankruptcy court
50
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jurisdiction. 47 According to Bayou Shores, because “28 U.S.C. § 1334 was
enacted first, and 42 U.S.C. § 405(h) was enacted days later,” Congress’s failure to
include § 1334 in § 405(h) indicates a positive intent to expand the scope of
bankruptcy court jurisdiction. Appellant’s Br. at 45. We disagree. See N. L. R. B.
v. Plasterers' Local Union No. 79, Operative Plasterers' & Cement Masons' Int'l
Ass'n, AFL-CIO, 404 U.S. 116, 129-30 (1971) (“The Court has frequently
cautioned that it is at best treacherous to find in Congressional silence alone the
adoption of a controlling rule of law.”) (quotation marks omitted).
As an initial matter, reading too much into the significance of the timing of
the passage of these acts is at best speculative, particularly since the DRA had
nothing to do with bankruptcy court jurisdiction, nor does Bayou Shores point to
any evidence suggesting that Congress had the Bankruptcy Act in mind when
passing the DRA. 48 Moreover Bayou Shores’ timing argument also cuts the
opposite way: one would equally expect that if Congress were inclined to expand
the jurisdiction of bankruptcy courts to include hearing Medicare and Social
Security claims, it would have done that in the Bankruptcy Act that it had just
47
The Bankruptcy Act added subsection 1334(b), discussed supra. See Bankruptcy Act at §
101(a).
48
Approximately forty-some public laws were passed by Congress in July of 1984. See
https://www.congress.gov/public-laws/98th-congress. We are skeptical of the suggestion that the
temporal proximity between any one of these laws and the Bankruptcy Act, standing alone, has
any particular significance in interpreting any of these laws.
51
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passed, rather than burying it as a “Technical Correction” in a bill wholly unrelated
to bankruptcy courts (i.e. the DRA).
3. Barring bankruptcy court jurisdiction is consistent with
Congressional Medicare policy
The bankruptcy court also relied on what was essentially a policy argument
about the wisdom of allowing a bankruptcy court rather than HHS to adjudicate
Medicare claims:
Consider the following hypothetical: a debtor that operates a
skilled nursing facility has its Medicare provider agreement
terminated because it was improperly cited for noncompliance.
The debtor immediately appeals the finding of noncompliance. But
because CMS stops payment for Medicare residents, the debtor is
forced to file for bankruptcy. If the Court were to adopt HHS's
view, the debtor in that hypothetical scenario could never assume
its Medicare provider agreement since it is highly unlikely the
appeals process will be complete before the debtor files for
bankruptcy.
See In re Bayou Shores, 525 B.R. at 169. 49 In other words, unless the bankruptcy
court can take jurisdiction over the provider agreements, Bayou Shores would
49
See also Samuel R. Maizel & Michael B. Potere, Killing the Patient to Cure the Disease:
Medicare's Jurisdictional Bar Does Not Apply to Bankruptcy Courts, 32 Emory Bankr. Dev. J.
19, 27-29 (2015) (noting that because of the length of the HHS appeals process, a hospital could
be faced with the “fatal dilemma” of being put out of business before being able to challenge an
adverse HHS decision); but see Oakland Med. Grp., P.C. v. Sec'y of Health & Human Servs.,
Health Care Fin. Admin., 298 F.3d 507, 511 (6th Cir. 2002) (“[T]he government has a strong
interest in expediting provider-termination procedures because: (1) the Secretary’s responsibility
for insuring the safety and care of elderly and disabled Medicare patients is of primary
importance, and (2) the government has a strong interest in minimizing the expenses of
administering the Medicare program.”) (internal quotation marks and citations omitted);
Northlake Cmty. Hosp. v. United States, 654 F.2d 1234, 1242 (7th Cir. 1981) (explaining that “a
52
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cease to exist as a going concern long before the HHS administrative appeals
process could complete. 50
While we are not unsympathetic to this argument, the choice of whether the
bankruptcy court or HHS is best positioned to adjudicate Medicare claims is a
policy decision that the bankruptcy court was not empowered to make. As
explained at length above, § 405(h) and (g) restricts the role of district courts to a
limited review of final HHS decisions, thus reflecting Congressional policy to let
HHS adjudicate those claims in the first instance. The Supreme Court explained in
Illinois Council that the review provisions of § 405(h) and (g) give HHS a greater
opportunity to “apply, interpret, or revise policies, regulations, or statutes without
possibly premature interference by different individual courts.” See 529 U.S. at 13.
Indeed, the bankruptcy court’s actions here illustrate the kind of “premature
interference” that Illinois Council had in mind. While the bankruptcy court went
to great length to deny that it was reviewing the merits of HHS’s findings or
decisions (see e.g. In re Bayou Shores SNF, 525 B.R. at 168), that is effectively
what the bankruptcy court did. After holding an evidentiary hearing on the
provider’s financial need to be subsidized for the care of its Medicare patients is only incidental
to the purpose and design of the (Medicare) program.”) (internal quotation marks and citations
omitted).
50
This assumes of course that Bayou Shores will be successful in regaining the provider
agreements in the administrative appeals process. That in turn is a dubious proposition as an
administrative law judge in that appeal has already granted summary judgment against Bayou
Shores on the issue of the termination of the provider agreements. See Bankr. ECF No. 261-1,
Administrative Law Judge Ruling on Motion for Partial Summary Judgement (Dec. 16, 2015).
53
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conditions at Bayou Shores’ facility, the bankruptcy court apparently decided that
the three deficiencies Bayou Shores was cited for were not particularly serious. Id.
at 163. The court also decided that Bayou Shores had corrected each of the
deficiencies it was cited for and provided adequate assurances that it would be in
compliance with the Medicare regulations in the future. Id. at 170-171.
Notwithstanding HHS’s determination to the contrary, the bankruptcy court
deemed the health and safety of Bayou Shores’ patients free of immediate
jeopardy. The practical outcome of the bankruptcy court’s decision was thus a
reversal of HHS’s decision: the bankruptcy court rolled back the termination, gave
Bayou Shores back its provider agreements, and effectively prevented HHS from
terminating Bayou Shores from the Medicare/Medicaid program for its repeated
deficiencies. That was functionally a decision on the merits of the underlying HHS
decision, and an interference with HHS’s role in deciding who is eligible to
participate in Medicare/Medicaid.51
The Government for its part disputes the bankruptcy court’s version of the
facts. With respect to the three violations, the picture painted by the Government
suggests far more serious issues with the care provided by Bayou Shores to its
51
We have explained previously that where both parties to a Medicare claim dispute “engage in
extensive discovery and presentation of their whole cases on the merits, the district court does
exactly what [HHS] is expected to do,” and therefore “[i]t is simply not realistic to say that the
district court in such a case does not address and decide the merits of the case.” V.N.A. of
Greater Tift Cty., Inc. v. Heckler, 711 F.2d 1020, 1032 (11th Cir. 1983). Such a merits-review is
contrary to the policy embodied by the Medicare Act’s limited judicial review provisions. See id.
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patients. Federal Appellee Br. at 14-16; State Appellee’s Br. at 3-4. 52 Moreover,
the Government argues that simply coming back into compliance after each
violation was not the issue. Rather, terminating repeat offenders like Bayou
Shores was a key part of Congress’s overhaul of nursing home regulations, and
was intended to stop “instances in which substandard providers had avoided
termination from Medicare by claiming that they had cured serious violations of
safety standards, only to lapse back into noncompliance after the threat of
administrative sanction was removed.” Federal Appellee’s Br. at 50-51.
In any event, we do not need to decide whose version of the facts is correct,
nor do we need decide whether the bankruptcy court’s decision on the merits of
HHS’s action was correct. HHS, not the bankruptcy court, has been charged by
Congress with administering the Medicare Act and regulating Medicare providers.
Indeed, the bankruptcy court’s action here stymied the direct statutory mandate
from Congress to HHS to take appropriate action (including potentially terminating
a provider agreement) when, as here, a survey determines that a nursing home’s
condition “immediately jeopardize[s] the health or safety of its residents.” See 42
52
Most disturbingly perhaps, the bankruptcy court’s opinion describes the result of the second
incident somewhat innocuously: “[T]he patient with the history of abuse—who was in the
facility for less than 24 hours—did not touch or otherwise harm the other resident.” In re Bayou
Shores SNF, 525 B.R. at 163. But the Government contends that the “patient with the history of
abuse” “sexually molest[ed]” his roommate during those 24 hours. Federal Appellee Br. at 14-
16; State Appellee’s Br. at 3-4. According to the underlying report, the roommate reported in an
interview that the patient with the history of abuse “put his hand under the curtain and moved his
hand on the sheet to about ¼ inch from my private parts.” See In re Bayou Shores, Bankr. ECF
No. 42-2 at 17.
55
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U.S.C. § 1395i-3(h)(2). 53 And though charged with broad jurisdiction to deal with
issues related to a debtor’s bankruptcy estate, bankruptcy courts generally lack the
institutional competence or technical expertise of HHS to oversee the health and
welfare of nursing home patients or to interpret and administer a “massive,
complex health and safety program such as Medicare.” See Illinois Council, 529
U.S. at 13. Or at least, that is the judgment of Congress we derive from the
enactment of § 405(h) in 1939 (and the recodification in 1984).
4. § 405(h) clearly requires administrative exhaustion
Finally, while much of the above dispute concerns the third sentence of §
405(h) and whether it completely bars bankruptcy jurisdiction under § 1334, we do
not overlook the effect of the first two sentences as well. The bankruptcy court
dismissed the second sentence as merely limiting “the ability of federal courts to
review the findings of fact or an agency decision.” In re Bayou Shores SNF, 525
B.R. at 167. Though correct in a minimalist sense, we think that is an overly
narrow understanding of the statute. The Supreme Court made clear in Salfi that
the first two sentences of § 405(h) “assure that administrative exhaustion will be
required” and “prevent review of decisions of the Secretary save as provided in the
53
If the deficiencies immediately jeopardize the health and safety of a facility’s residents, “the
Secretary shall take immediate action to remove the jeopardy and correct the deficiencies
through the remedy specified in subparagraph (B)(iii), or terminate the facility's participation
under this subchapter and may provide, in addition, for one or more of the other remedies
described in subparagraph (B)).” 42 U.S.C. § 1395i-3(h)(2) (emphasis added).
56
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Act, which provision is made in § 405(g).” 422 U.S. at 757. The third sentence,
according to the Court in Salfi, means that no action may be brought pursuant to
any jurisdiction other than § 405(g), even where administrative remedies have been
exhausted. Id.; see also Illinois Council, 529 U.S. at 13.
Bayou Shores does not dispute that its claims have not been administratively
exhausted; in fact, as of the date of the oral argument, Bayou Shores’
administrative appeal was still pending in front of an administrative law judge at
HHS. See Oral Argument, March 29, 2016. Putting aside the jurisdictional
question then, neither Bayou Shores nor the bankruptcy court has explained why
standard principles of administrative exhaustion should not prevent a district court
from hearing Bayou Shores’ case. See e.g. In re Rodriquez, No. 09-93431-JB, 2010
WL 2035733, at *3-5 (Bankr. N.D. Ga. Mar. 23, 2010) (relying on § 405(g) and
(h) to hold that bankruptcy court would not entertain non-administratively
exhausted Social Security claims). Bayou Shores has also not shown that any
exception to standard administrative exhaustion principles should apply here. See
McCarthy v. Madigan, 503 U.S. 140, 146-149 (1992) (explaining the “three broad
sets of circumstances” in which exceptions to administrative exhaustion may
apply).
57
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Thus, even if we were to assume that § 405(h) does not bar jurisdiction
under § 1334, the bankruptcy court erred by not dismissing Bayou Shores’ claim
for failure to exhaust Bayou Shores’ administrative remedies first.
IV. OTHER ARGUMENTS
Bayou Shores raises a number of other issues that it contends warrant
reversal of the district court’s Order. For the reasons below, we do not find these
arguments persuasive.
A. Mootness
Bayou Shores argues that this dispute is either constitutionally moot or
equitably moot. With respect to constitutional mootness, Bayou Shores contends
that because the bankruptcy court’s injunction and automatic stay have been
dissolved, no live controversy between the parties remains. The Government
contends that at least two live issues remain. First, the bankruptcy court’s stay and
injunction (even if now dissolved) prevented the Government from stopping
payments to Bayou Shores during the pendency of the bankruptcy case. The
Government argues that it intends to seek recoupment of these payments if the
bankruptcy court’s orders are found to be invalid. Second, contrary to Bayou
Shores’ contention that the injunction and stay have dissolved, the Government
58
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contends that the bankruptcy court’s Confirmation Order continues to indefinitely
enjoin the Government from terminating the provider agreements.54
A case is constitutionally moot when “when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486, 496 (1969). Put another way, “[a] case is
moot when it no longer presents a live controversy with respect to which the court
can give meaningful relief.” Florida Ass'n of Rehab. Facilities, Inc. v. State of Fla.
Dep't of Health & Rehab. Servs., 225 F.3d 1208, 1216-17 (11th Cir. 2000) (internal
quotations and citations omitted). Here, a holding that the bankruptcy court lacked
subject matter jurisdiction would allow the Government to go forward with its
efforts to terminate Bayou Shores from the Medicare/Medicaid program, as well as
allow the Government to try and recover payments made to Bayou Shores since the
filing of the bankruptcy court action. 55 Meaningful relief is thus available, and this
case is not constitutionally moot.
54
For example, we note that the Confirmation Order contains the following: “Nothing set forth
in the Amended Plan or this Order shall limit the power and authority of AHCA to take action
related to the renewal or revocation of the Debtor’s license necessary to protect public health,
safety and welfare, provided however, that any such actions related to the renewal or
revocation of the license may not be based upon the termination of the Medicare and Medicaid
provider agreements that have been assumed by the Debtor.” In re Bayou Shores, Bankr. ECF
No. 285 at 14. At oral argument, Bayou Shores conceded that this second issue was not
constitutionally moot.
55
Bayou Shores argues that the Government has no claim to damages because the Government
“would be required to pay for the care of Bayou’s patients, if not at Bayou, somewhere, because
the vast majority of Bayou’s patients are indigent.” Appellant’s Reply Br. at 28. That argument
misses the mark though. The Government is not seeking to claw back the money merely to
pocket the funds or to avoid paying for the care of Bayou Shores’ patients. Rather, the
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Bayou Shores argues alternatively that the case is equitably moot because its
Chapter 11 plan has been substantially consummated. Equitable mootness is a
discretionary doctrine that permits courts sitting in bankruptcy appeals to dismiss
challenges (typically to confirmation plans) when effective relief would be
impossible. See In re Nica Holdings, Inc., 810 F.3d 781, 786 (11th Cir. 2015).
Central to a finding of mootness is a determination by an appellate court that it
cannot grant effective judicial relief. Id. (quoting from First Union Real Estate
Equity & Mortg. Invs. v. Club Assocs. (In re Club Assocs.), 956 F.2d 1065, 1069
(11th Cir.1992)). The equitable mootness doctrine seeks to avoid an appellate
decision that “would knock the props out from under the authorization for every
transaction that has taken place and create an unmanageable, uncontrollable
situation for the Bankruptcy Court.” Id. at 787 (citing Miami Ctr., Ltd. P'ship v.
Bank of NY, 838 F.2d 1547, 1555 (11th Cir.1988)).
Here however, we are reviewing whether the district court was correct in
dismissing for lack of subject matter jurisdiction. “Subject-matter jurisdiction
properly comprehended … refers to a tribunal’s power to hear a case, a matter that
can never be forfeited or waived.” See Union Pac. R. Co. v. Bhd. of Locomotive
Government (as required by statute) will not pay a facility such as Bayou Shores that fails to
comply with health and safety regulations. In other words, while the Government may be
required to pay for the care of Bayou Shores’ patients, it reasonably wants to pay someone other
than Bayou Shores for that service.
60
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Engineers & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81,
130 (2009) (internal quotation marks omitted; citations omitted; emphasis added).
Because we agree with the district court that the bankruptcy court lacked subject
matter jurisdiction over the assumption of Bayou Shores’ provider agreements, that
must end the inquiry. When the lower court “lack[s] jurisdiction, we have
jurisdiction on appeal, not of the merits but merely for the purpose of correcting
the error of the lower court in entertaining the suit.” See Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541 (1986). “Without jurisdiction the court cannot
proceed at all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of announcing the
fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,
94 (1998). The Supreme Court in Steel Co. characterized this threshold inquiry as
“inflexible and without exception.” See id. at 94-95 (quoting from Mansfield, C. &
L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)).
Thus, even assuming for the sake of argument that Bayou Shores is correct
that this situation justifies the application of equitable mootness, the absence of
jurisdiction precludes the exercise of that discretionary authority. Our only role
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here is to correct the bankruptcy court’s error by affirming the district court’s
Order. 56
B. Bayou Shores’ claims “arise” under the Medicare Act
Bayou Shores additionally argues that its claims do not “arise” under the
Medicare Act, and thus are not subject to the § 405(h) jurisdictional bar.
According to Bayou Shores, “[n]either the September 5 Order nor the
Confirmation Orders had anything to do with recovering a claim (a right to
payment) arising under the Medicare Act.” Appellant’s Br. at 58.
Bayou Shores’ position however has already been rejected by the Supreme
Court. In Illinois Council the Court rejected the argument that claims “arising
under” the Medicare Act were limited to monetary claims:
Nor can we accept a distinction that limits the scope of § 405(h) to
claims for monetary benefits. Claims for money, claims for other
benefits, claims of program eligibility, and claims that contest a
56
Of course, we are addressing only the issue of the bankruptcy court’s authority to adjudicate
Bayou Shores’ claim to ownership of the provider agreements terminated by the Government. To
the extent Bayou Shores has other property in its bankruptcy estate, nothing in this opinion
addresses or reaches the bankruptcy court’s actions with respect to that property.
Further, while we do not rule on the equitable mootness issue, we note that the limited factual
record in front of us suggests it would not be appropriate to do so in this situation. Although the
Government did not obtain a stay, it appears from our review of the record that it was not for
lack of trying. See In re Nica Holdings, 810 F.3d at 787 (“On this record, we cannot fault
[appellant] for not getting a stay.”). Moreover, the simplicity of the transactions and amounts of
money involved here appear more akin to the “simpler” transactions in In re Nica Holdings, 810
F.3d at 788 (no equitable mootness) than in the complex multi-million dollar transactions that
justified equitable mootness in In re Club Assocs., 956 F.2d 1065 and Miami Ctr., Ltd. P'ship v.
Bank of NY, 820 F.2d 376 (11th Cir.1987). Finally, the reliance interests of Bayou Shores’
creditors, who we must presume understood they were lending money to a nursing home that the
Government was attempting to shut down for violating health and safety regulations, also do not
weigh much in favor of applying equitable mootness.
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sanction or remedy may all similarly rest upon individual fact-
related circumstances, may all similarly dispute agency policy
determinations, or may all similarly involve the application,
interpretation, or constitutionality of interrelated regulations or
statutory provisions. There is no reason to distinguish among them
in terms of the language or in terms of the purposes of § 405(h)…
Nor for similar reasons can we here limit those provisions to
claims that involve “amounts.”
Id. at 14 (emphasis added).
Here, the determination of whether Bayou Shores is allowed to keep its
provider agreements could be characterized as either a “claim[] of program
eligibility” (i.e. whether Bayou Shore is eligible to participate in Medicare) or a
“claim[] that contest[s] a sanction or remedy” (i.e. the sanction of terminating
Bayou Shores from the Medicare program). In either case, the Supreme Court
made clear in Illinois Council that Bayou Shores’ claims fall within the ambit of §
405(h)’s “claim[s] arising under” the Medicare Act.
C. Bayou Shores’ Medicaid claims rise and fall with its Medicare claims
The parties also dispute whether the termination of Bayou Shores’ Medicare
provider agreement resulted in the termination of Bayou Shores’ Medicaid
provider agreement. In its briefing, Bayou Shores contends that AHCA failed to
use the required procedures under Florida state law to terminate a Medicaid
agreement. The Government argues that Medicaid agreements terminate by
operation of law when Medicare agreements terminate. See 42 U.S.C. §
1396a(a)(39).
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Case: 15-13731 Date Filed: 07/11/2016 Page: 64 of 66
Without resolving this dispute, we note that the only issue necessary to
decide is whether the bankruptcy court was barred by § 405(h) from taking
jurisdiction over Bayou Shores’ Medicaid provider agreements. Courts have held
that the Medicare and Medicaid statutory and regulatory provisions “provide that
when a dually certified facility challenges a determination that it is not in
substantial compliance with the common Medicaid and Medicare regulations and a
termination of its participation in both programs, the facility must seek review of
this determination through the Medicare administrative appeals procedure.”
Cathedral Rock of N. Coll. Hill, Inc. v. Shalala, 223 F.3d 354, 366 (6th Cir. 2000);
see also Michigan Ass'n of Homes & Servs. for Aging, Inc. v. Shalala, 127 F.3d
496, 503 (6th Cir. 1997) (“The Medicaid Act's inclusion of § 405(g) is clear textual
support for the proposition that Congress intended the exhaustion of administrative
remedies to apply in cases [involving dual Medicare/Medicaid providers]); Health
Equity Res. Urbana, Inc. v. Sullivan, 927 F.2d 963, 967 (7th Cir. 1991).
Bayou Shores cannot avoid the jurisdictional bar in § 405(h) by attempting
to re-characterize its claim to the Medicaid provider agreement as separate from its
claim to the Medicare provider agreement. See Cathedral Rock, 223 F.3d at 366-
67. Indeed, it can hardly be said that Bayou Shores has a separate Medicaid claim,
notwithstanding the two separate provider agreements: the sole reason for
termination of Bayou Shores’ Medicaid provider agreement was the termination of
64
Case: 15-13731 Date Filed: 07/11/2016 Page: 65 of 66
its Medicare provider agreement for Bayou Shores’ failure to comply with
Medicare laws and regulations. Allowing Bayou Shores to go forward with only
its Medicaid claims would thus put the bankruptcy court in the untenable position
of adjudicating a dispute fundamentally about Medicare laws and regulations (i.e.
whether Bayou Shores was in compliance with the relevant Medicare laws and
regulations), despite being barred from adjudicating Bayou Shores’ Medicare
claims. See Rhode Island Hosp. v. Califano, 585 F.2d 1153, 1162 (1st Cir. 1978)
(“Were we to assume § 1331 jurisdiction over the Hospital’s Medicaid claim we
would find ourselves in the peculiar posture of hearing a case that consists entirely
of a challenge to the limits promulgated under [the Medicare Act], when we are
expressly barred by [the Medicare Act] from entertaining that challenge at this
time.”).
Accordingly, Bayou Shores “cannot avoid the Medicare Act’s administrative
channeling requirement simply because as a dual Medicare and Medicaid provider,
its claims also fall under Medicaid Act.” Cathedral Rock, 223 F.3d at 367. 57
D. Termination of the provider agreements
On appeal, the parties continue to dispute whether the provider agreements
in question terminated before or after the filing of Bayou Shores’ bankruptcy
petition. Because we have determined that the bankruptcy court lacked jurisdiction
57
We do not need to decide here whether a different result would accrue in a case where a party
presents only Medicaid claims to a bankruptcy court.
65
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over the termination of the provider agreements, we decline to rule on the issue of
whether or not the agreements terminated prior to the filing of the bankruptcy
petition.
V. Conclusion
We agree with the district court that the bankruptcy court erred as a matter
of law when it exercised subject matter jurisdiction over the provider agreements
in this case. The bankruptcy court was without § 1334 jurisdiction under the §
405(h) bar to issue orders enjoining the termination of the provider agreements and
to further order the assumption of the provider agreements.
Thus, finding no reversible error in the district court’s June 26, 2015, Order
(In re Bayou Shores, 533 B.R. at 343) we AFFIRM.
66 | 01-03-2023 | 07-11-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428166/ | The appellee herein filed a complaint in the Marion Superior Court against the appellants, *Page 322
John T. Andrews and the London and Lancashire Indemnity Company of America, in which it is alleged: That the appellee is engaged in the retail coal business in the city of Indianapolis; that, on or about September 25, 1926, this appellee employed appellant John T. Andrews as cashier, bookkeeper and office manager of the appellee's office in said business; that said appellant had charge of the office, the making of all collections of money, and the keeping of the books, entries and papers of every kind and character concerning said business; that one of the conditions of said Andrew's employment was that he furnish a bond in the sum of $5,000 guaranteeing the faithful performance of his duties as such cashier, bookkeeper and office manager, and, in consideration of said employment, said appellant and the appellant indemnity company, executed and delivered a bond to this appellee, a copy of which bond is attached to the complaint and made a part thereof; that, by the terms of said bond, said appellant promised and agreed to make good and reimburse the appellee to an amount not exceeding the sum of $5,000 for any and all pecuniary loss of money, securities or other personal property belonging to the employer or in his possession (and for which he is legally liable) sustained by said employer by reason of any fraudulent or dishonest act or acts amounting to larceny
or embezzlement committed by the employee during the term of such bond in connection with the duties of said position; also that appellant Andrews continued in the employment of the Minter Coal and Coke Company until about June 27, 1927, during which time Andrews was acting as cashier, bookkeeper and office manager; that said Andrews stole and embezzled from this appellee the sum of $5,000; that this appellee has performed all the conditions precedent on its part to be performed, and demands judgment for $5,000.
To this complaint the appellants filed separate answers *Page 323
in general denial. Appellant indemnity company filed a second paragraph of answer, alleging that the appellee became aware of acts of the employee, Andrews, which could have been made the basis of a claim under said bond, and failed to notify the appellant indemnity company, of said acts as provided in said bond, and says there is no liability on said bond for any act of Andrews after appellee became aware of said acts.
Appellant indemnity company also filed a third paragraph of answer, in which it is alleged that, in accordance with the provisions of the bond, it did, on March 18, 1927, give notice to appellee that said bond was cancelled, to become effective as of March 17, 1927, and says that there is no liability on said bond after March 17, 1927.
There was a trial by jury and a verdict rendered in favor of the appellee against both the appellants, upon which the court rendered a judgment of $2,029.27. The appellants filed separate motions for a new trial, in which it was alleged that the verdict of the jury was not sustained by sufficient evidence; was contrary to law; the damages assessed by the jury were excessive, and the verdict of the jury was erroneous, in that the assessment of the amount of recovery was too large. Motion for a new trial was overruled, to which ruling of the court, the appellants at the time excepted, and assigned as error the overruling of the separate motions for a new trial.
The bond provides that "the surety shall not be liable hereunder unless such loss shall be discovered while this bond is in force or within six months after the cancellation or termination thereof in accordance with its terms, provided, however, if the employee shall die or retire or be dismissed from the service of the employer while this bond is in force, the surety shall not be liable hereunder for any act or acts committed by the employee after the employer shall have become aware of any act *Page 324
of the employee which could be made the basis of a claim hereunder. The employer, upon discovering within the time herein provided, any act of the employee which might or could be made the basis of a claim hereunder, shall immediately notify the surety thereof at the Administration Office of the surety in Hartford, Connecticut. Such notice shall be given in writing and sent by registered mail. The employer shall, within ninety days after discovering that a loss covered hereunder has been sustained, file with the surety an itemized and duly sworn statement of the claim therefor. The surety may at any time terminate the obligation which it has assumed under this bond by giving the employer written notice of its election so to do, stating when such termination shall be effective and the surety shall not be liable for any act or default thereafter committed."
There was ample evidence to sustain the verdict of the jury against the appellant John T. Andrews. It appears in evidence that he began to work for the appellee, September 14, 1926, and continued until June of 1927. Gertrude C. Minter testified that she was the secretary and treasurer of the appellee company herein, and worked in the office while the appellant Andrews was there; that she managed the office and was also a bookkeeper; that she checked from the cash book, cash on hand, cash deposits in bank and in cash box and in the cash register for the month of September after Andrews came, and, in auditing and checking, found a discrepancy in the cash shown by the books and the actual cash on hand of $41.61; she then told Andrews there was a discrepancy in the cash book, and Andrews said he would find it, that it was in bookkeeping, and he worked on it constantly; discrepancies occurred each month until July 1, of the following year; one month, the books showed that, instead of being short, the company owed Andrews, and Andrews said it was simply a mistake in *Page 325
bookkeeping; at one time, Mrs. Minter told him that she was going to tell her husband, Otto Minter, president of the company, about it, and he said, "Don't tell him," that it was simply a mistake, and allayed her suspicions, and he said at one time to her, "You don't think I got it, do you?" and she said, "No, if I did I would not have you here"; the first time that she actually saw him take any money was in June, 1927.
It is claimed by the appellant that, upon these facts, as testified to by this witness, and the other circumstances set out in the evidence, about which there seems to be no dispute, it was the duty of the appellee herein to notify the appellant surety of this shortage within a reasonable time after the discovery of the discrepancies in the account, that the surety might take steps to protect itself in the premises.
It has been held that, under an employee's indemnity bond providing that the employer shall, on discovery of any fraudulent act on the part of the bonded employee, immediately give 1, 2. notice thereof to the indemnity company, the employer is not bound to report his suspicions to the company even though they are strong enough to justify, in his opinion, the discharge of the employee, but, after suspicion is aroused, reasonable diligence must be used in pursuing inquiries as to the facts. Fidelity Guaranty Co. v. Western Bank (1906), 29 Ky. Law Rep. 639, 94 S.W. 3; American Surety Co. v. Pauly (1898),170 U.S. 133, 18 Sup. Ct. 552, 42 L. Ed. 977; PerpetualBuilding, etc., Assn. v. Fidelity Guaranty Co. (1902),118 Iowa 729, 92 N.W. 686; Fidelity Deposit Co. v. Courtney
(1900), 103 Fed. 599; Donahue v. Insurance Co. (1883), 56 Vt. 374; Remington v. Fidelity Deposit Co. (1902), 27 Wash. 429, 67 P. 989. Unless the lapse of time is so long as to be obviously a noncompliance with the contract, the question whether the notice was timely is one for the jury. *Page 326 Fidelity Guaranty Co. v. Western Bank, supra.
The object of the bond or policy of insurance, as was said by Justice Harlan in the case of the American Surety Co. v. Pauly, supra, at page 144, was to indemnify or insure 3. against loss arising from any act of fraud on the part of the insured. To require of the employer to report every act that looks suspicious would be to make the employer an insurer of his own employees.
This policy is to cover acts that amount to larceny or embezzlement, and the employer is required to report to the surety company, not discrepancies in bookkeeping, but acts that would be the basis of a claim against the surety, to wit, larceny or embezzlement. To report anything short of that would be reporting something outside of the policy and of no concern to the surety.
Aetna Insurance Co. v. Fowler (1896), 108 Mich. 557, 66 N.W. 470, was a case where an insurance agent collected money and invested money in real estate, and the principal did not report. It was held surety was not liable, the court stating that failure alone to remit was not sufficient to require that the facts be reported to surety. The surety guarantees the fidelity of the agent, and it is not the duty of the employer to be actively vigilant over the agent, but good faith is required. Cases where it is the duty to report are illustrated in Gemble-Robinson Co.
v. Mass. Bonding, etc., Co. (1910), 113 Minn. 38, 129 N.W. 131, which was a case where the shortage was clearly known and agreed upon between the employer and the employee, who had started paying back amounts due, and the employer failed to notify the company. The question was beyond mere suspicion. It was standing out as a positive fact, and there was no ground for hesitancy.
We are of the opinion that it was a question for the jury to decide, under proper instructions, as to whether *Page 327
it was the duty of the treasurer of the appellee company to 4. report the shortage of the insured, and whether the explanations and reasons given by the insured as to clerical errors and mistakes in bookkeeping were sufficient to cause a reasonably prudent person to delay in reporting to the surety that the appellant was guilty of acts sufficient to be the basis of a claim against the company, to wit, larceny or embezzlement.
The evidence in regard to the notice to the appellee that the indemnity company intended to cancel the bond was that a registered letter, deposited in the United States mail, was sent to the appellee with a request for a return receipt indorsed thereon. The letter was delivered at the office of the appellee, and the return receipt was signed "Minter Coal and Coke Company by John T. Andrews." Andrews testified that he placed the envelope unopened on the desk of the president of the company, Otto Minter, who testified he did not see the letter, nor did Andrews say anything about having received or receipted for a registered letter from the indemnity company, and did not know of the purported cancellation of the bond until June 28, 1927.
Whether the notice of cancellation of the bond by the surety was effective or not, it has been held in the case of OrangeCounty, etc., Fire Assn. v. Frost (1920), 74 Ind. App. 193, 128 N.E. 768, (Nichols, J., quoting from Schmidt v. GermanMut. Ins. Co. [1891], 4 Ind. App. 430, 30 N.E. 939, saying): "Where one is entitled to notice by the terms of a contract and has not stipulated that it may be given through the mails or some other mediumship, he is entitled to actual notice, and anything short of this is equivalent to no notice at all." This rule is firmly intrenched in the jurisprudence of this country.Merriman v. K.M.B. Assn. (1893), 138 N.Y. 116, 33 N.E. 738;Kavanaugh v. *Page 328 Insurance Co. (1906), 117 Tenn. 33, 96 S.W. 499, 7 L.R.A. (N.S.) 253, 10 Ann. Cas. 680.
In Courtney v. U.S. Masonic Benevolent Assn. (1892), 53 N.W. (Iowa) 238, a notice of assessment was mailed to the assured on a certain date, and taken by an authorized person from the post office to the assured's residence; at this time, he was ill and unable to understand or transact any business, and so remained until his death, before which time the envelope containing the notice was not opened. Held, that the certificate of insurance was not forfeited for non-payment of assessments, since the assured had no actual notice thereof.
In the case of Fritz v. Penn. Fire Ins. Co. (1913), 85 N.J. Law 171, 88 A. 1065, 50 L.R.A. (N.S.) 35, it was held, by a divided court, that notice of the cancellation of an insurance policy inclosed in a postpaid registered envelope addressed to the insured and received but unopened by him, bearing upon its face the card of an insurance company other than the one in which the insured held a policy, although having upon it the name of the same agents as those of the company in which he was insured, was not, in and of itself, notice of cancellation. The insured might have concluded the letter was a solicitation for other insurance in another company, he might have refrained from opening it, thinking it to be some soliciting or advertising scheme in which he was not interested.
The question whether a notice has been received is for the jury. Miner v. Mutual Fire Ins. Co. (1908), 153 Mich. 594, 117 N.W. 211; Hartford Fire Ins. Co. v. Tewes (1907), 5-8. 132 Ill. App. 321; Condon v. Exton-Hall, etc., Agency
(1913), 142 N.Y. Supp. 548, 80 Misc. Rep. 369; Pauley
v. Sun. Ins. Co. (1916), 79 W. Va. 187, 90 S.E. 552, L.R.A. 1918E 473. Where notice is required, and no mode is provided, a personal notice is necessary, unless the same purpose may otherwise *Page 329
be accomplished. Schmidt v. German Mut. Ins. Co., supra;Wachtel v. Noah Widows and Orphans' Beno. Soc. (1881), 84 N.Y. 28, 38 Am. Rep. 478; Antrim v. Telegraphers' Ben. Assn.
(1919), 93 N.J. Law 213, 107 A. 458; Protection Life Ins. Co.
v. Palmer, Admr. (1876), 81 Ill. 88; Orange Co. Fire Ins. Co.
v. Frost, supra; see Annotations, 7 L.R.A. (N.S.) 253. Notice must be given to the person upon whom rests the obligation to pay the premium. Farnum v. Phoenix Ins. Co. (1890), 83 Cal. 246, 23 P. 869, 17 Am. St. 233. It must be given to the insured or by some one authorized by him to receive it. Kinney v.Rochester German Ins. Co. (1908), 141 Ill. App. 543; Kinney
v. Caledonian Ins. Co. (1909), 148 Ill. App. 256; Von Wien v.Scottish, etc., Ins. Co. (1887), 54 N.Y. Super. Ct. 276.
An employee who keeps a record of the insurance policies belonging to the insured is not necessarily one to whom notice of cancellation may be given. Edwards v. Home Ins. Co. (1902), 100 Mo. App. 695, 73 S.W. 886. In the case of the AmericanSurety Co. v. Pauly, supra, it was held that the presumption that the agent informed his principal of that which his duty and the interest of his principal required of him to communicate does not arise where the agent acts or makes declarations, not in execution of any duty that he owes to the principal, or within any authority possessed by him, but to subserve his own personal ends or to commit some fraud against his principal.
The rule that notice to an agent is notice to the principal does not apply when the circumstances are such as to raise a clear presumption that the agent will not transmit his 9. knowledge to his principal, as in cases where his interest is antagonistic to that of his principal. Innerarity v.Merchants' Nat. Bank (1885), 139 Mass. 332, 1 N.E. 282;Lanier v. Little Rock Cooperage Co. (1909), 88 Ark. 557, 115 S.W. 401; *Page 330 Merchants Nat. Bank v. Nichols Co. (1906), 223 Ill. 41, 7 N.E. 38, 7 L.R.A. (N.S.) 752.
In such cases the position he assumes conflicts entirely with the idea that he represents the interests of the principal.Findley v. Cowles (1895), 93 Iowa 389, 61 N.W. 998; Hummel
v. Bank (1888), 75 Iowa 689, 37 N.W. 954.
So, in this case, when notice of cancellation was sent to the appellee, the return receipt was signed by John T. Andrews, the man whose honesty was assured to the appellee, and it 10. cannot be said that notice to him and under such circumstances was such personal notice to appellee as the law requires. The evidence further on this point is that the letter was placed by Andrews on the desk of the president, Otto Minter, who testified he never received the letter.
The notice to the appellee of the appellant's intentions to cancel the bond falls short of being personal notice required by law, and the question of whether the appellee had 11. sufficient knowledge of the misconduct of the insured amounting to embezzlement or larceny was, under the facts in this case, a question for the jury. We must, therefore, conclude that the court committed no error in overruling appellants' motion for a new trial.
Judgment affirmed. *Page 331 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428167/ | Action by appellee against appellant on an insurance certificate insuring appellee against loss resulting directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means. Trial by jury resulted in a verdict and judgment for appellee in the sum of $840.
Appellant contends that the verdict is not sustained by sufficient evidence, that it is contrary to law, and that the court erred in giving and in refusing to give certain instructions.
Appellee, at the time of his injury, was an employee of appellant, and held a contract of insurance whereby appellant had insured him "against loss resulting directly and independently of all other causes from bodily injuries and death effected solely through external, violent and accidental means." Referring to the benefits payable under the policy, the contract provides that:
"Such benefits shall not accrue except for such bodily injuries and death as are sustained by said insured while he is actually engaged in the service of said company, and on duty, nor unless immediate notice of such injury and death shall be given by said insured or his beneficiary to said insured's superior officer. . . . No benefits shall accrue hereunder for any injury or death that may be sustained by said insured . . . as the result of his own violation of the rules of said company."
Appellee, during the two weeks immediately prior to the day on which he was injured, had been making student trips as a fireman between Evansville and Terre Haute, and, while so doing, stayed at a boarding house in Terre Haute. After making such trips for two *Page 153
weeks, he was employed as a regular fireman, and on December 29, 1924, was working as a fireman at Sieffert. There is no town or houses at Sieffert, only a coal yard and dispatcher's office. He came to his work on a passenger train, got off at Farmersburg, and walked to Sieffert, a distance of about a mile. He began work at 12 noon and quit work at 8 p.m. When he quit work, he left his engine in the yard where he had been working and went to the dispatcher's office and made out his time. Appellant had issued to its employees, including appellee, meal tickets that would be accepted as cash by a certain boarding house at Terre Haute where appellee had been boarding. Through an arrangement with the boarding house, these tickets were turned over to appellant, and the amount thereof deducted from the employee's wages each pay day for the use of the proprietor of the boarding house. Sieffert is 10 or 12 miles from Terre Haute. It was the custom of the employees of appellant working at Sieffert at the end of the day's work to "deadhead" their way on locomotives and trains of appellant to Terre Haute. On the night when appellee was injured, after having quit his work, and after having turned in his time, he walked out onto the platform in front of the dispatcher's office, and, while attempting to get on the engine of a slowly moving freight train, for the purpose of going to Terre Haute, was injured. After turning in his time and being checked out, appellee had nothing to do and was not subject to call until 12 o'clock noon the next day. He was free to do as he desired and to go where and how he pleased.
Appellant's first contention is that appellee was not engaged in any service for appellant at the time he was injured, was not on duty, and, therefore, not entitled to recover.
Appellant relies principally upon cases construing the federal "Hours of Service Act" (45 USCA §§ 61-64) *Page 154
and the order of the Interstate Commerce Commission, which make it unlawful for any common carrier subject to the act of Congress "to require or permit any employee subject to this Act to be or remain on duty for a longer period than sixteen consecutive hours."
In United States v. Chicago, etc., R. Co. (1912), 195 Fed. 783, it was held that an employee was on duty within the statute when he was at his post of duty in obedience to rules or requirements and ready and willing to work, whether actually at work or awaiting orders. In discussing "duty" as used in the statute, the declared purpose of which was "to promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon," the court said: "An employee is on duty when he is at his post in obedience to rules or requirements of his superior, and ready and willing to work, whether actually at work or waiting for orders or for the removal of hindrances from any cause. The words `on duty' appear to have been intelligently chosen and used in the composition of the statute to bar all excuses for noncompliance with its requirements by any pretext of misunderstanding its meaning." To the same effect, see United States v. Denver, etc., R. Co.
(1912), 197 Fed. 629.
In St. Louis, etc., R. Co. v. Harvey (1906), 144 Fed. 806, a servant of the railroad was injured in a collision between a hand-car on which he was riding and another hand-car operated by other servants of the company. The question at issue was whether the servants on the car negligently causing the collision were within the scope of the duty assigned to them under their employment, that is, whether the acts were done during the time of their employment about the business of their master. It appeared that the servants whose negligence caused the injury had taken the hand-car and gone to a station on the line of the railroad and returned several *Page 155
hours after the time of their employment for the day had ended. There was no evidence as to the purpose these men had in using the hand-car, and, under the evidence, the court held the presumption was that they were not engaged in any business of the company, but were attending to their own affairs exclusively, and that the evidence was not sufficient to sustain the verdict. Other cases of like character cited by the appellant are of no controlling influence in the instant case.
A telegrapher not released from duty at lunch time, but who is subject to call is on duty under the 16-hour law. United States
v. New York, etc., R. Co. (1921), 274 Fed. 321. But in UnitedStates v. Atchison, etc., R. Co. (1911), 220 U.S. 37, 31 Sup. Ct. 362, 55 L. Ed. 361, it was held that where a telegrapher was employed for six hours, and then, after an interval of three hours, was employed for a period of three hours, was not employed for a longer period than nine hours.
The question under the 16 hours of service act seems to be whether the time the employee is released from call to duty is for a substantial and opportune period of rest. Southern Pac.Co. v. United States (1915), 222 Fed. 46; United States v.Atchinson, etc., R. Co. (1916), 232 Fed. 196; United States
v. Minneapolis, etc., R. Co. (1918), 250 Fed. 382.
In Brown v. Pere Marquette R. Co. (1927), 237 Mich. 530,213 N.W. 179, a brakeman, who had been on duty for 16 consecutive hours, went off duty and went to sleep in the caboose of the train, which was unable to proceed because of a defective engine, was held not on duty at the time of his injury, an hour and 50 minutes after he had gone off duty, so as to render the company liable under the Federal Employer's Liability Act. In discussing "on duty" as used in the act, the court, at p. 537, said: "An employee may be inactive, and yet on duty. He is on duty if at his post and ready and willing *Page 156
to work, though he may be but awaiting orders or the removal of hindrances which prevent him from performing his duties.
The federal statute was enacted for the safety of the employee, and was so construed as to give the employee time for rest and sleep, as a matter of protection to himself and others. None of the cases cited by appellant deal with a contract insuring the employee against injuries occurring while on duty.
In Kephart v. Continental Casualty Co. (1908), 17 N.D. 380, 116 N.W. 389, the casualty company had issued a policy of insurance insuring against loss by reason of accidental injury of a railroad brakeman while in the line of his duty. The train upon which the insured was working had been backed in on a side track to permit another train to pass. It was the duty of the insured to open the switch and to close it after his train had been backed upon the side track. He did this. The evidence was to the effect that while not employed, it was his duty to remain on the engine. He did not return to the engine after closing the switch, but waited 30 or 40 minutes for the other train to pass. The true cause of his injury was not shown, but the passing train passed over his feet and he died as a result of his injuries. It was there held that he was in the line of his duty.
In Erie R. Co. v. Winfield (1917), 244 U.S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann Cas. 1918B 662, an employee took his engine to the place where it was to remain for the night, and started to leave the yard. His route lay across some of the tracks, and while passing over one, he was struck by an engine and died as the result of his injuries. It was there held that the deceased workman, in leaving the yard at the close of his day's work, was discharging a duty of his employment, and that it was a necessary incident of his day's work. *Page 157
In Kinney v. Baltimore, etc., Employee's Assn. (1891),35 W. Va. 385, 14 S.E. 8, 15 L.R.A. 142, the association had issued to an employee of the railroad a certificate of membership or policy insuring him against injury "by accident while in the discharge of duty, and in the service" of the railroad. The insured had quit work at the hour for quitting, and in from five to 15 minutes thereafter, while crossing the tracks on his way home, in passing through an opening between cars, he was caught between them and killed. In discussing the objects of the organization in issuing the policy, the court said: "It was to afford members indemnity or relief in case of accidents naturally incident to their service, accidents likely to befall them, accidents fairly attributable to that service, accidents occurring because of their being in the service, traceable to no other cause, which would not have happened but for that service. Now, here is a man who but a few minutes before had stopped work for that day, and was but going from the place of his work to his home, was yet on the railroad grounds, and in crossing the track was killed by cars of the railroad company while used in the business of the company — the very thing against which it was intended to provide — a thing within the true spirit and intent of the guaranty or insurance, if even not within its very letter. . . . But he is killed while performing the indispensable act of going from his work at the day's close to his home, before yet he had gotten from the railroad tracks and from among the cars, and out of the field of the transaction of the company's business. Was he not, while passing over the railroad tracks in going to and returning from his home in the course of his labors, as much in the discharge of his duties and in the service of the company as when he had the tools with which he worked in his hands, for the purposes of the question before us? It does seem to me that to say that he was *Page 158
not in the discharge of his duties in the service of the company, within the spirit and meaning and purposes of this organization and its constitution, would be very technical and refined."
In Chicago, etc., R. Co. v. Schraeder (1928), ante 100, 103 N.E. 534, a companion case to this, and between the same parties, we held that appellee, in leaving the place of his 1 employment at the close of the day, was discharging a duty of his employment. We believe the provisions of the contract of insurance should be given a liberal construction in order that the purpose of issuing it may be realized. There is no question but that appellee's injury arose out of his employment. As was held by this court in Indian, etc., Co. v. Wehr (1920),74 Ind. App. 141, 127 N.E. 202, 128 N.E. 765, the period of employment generally includes a reasonable time for ingress to and egress from the place of work while the employee is on the master's premises.
We hold that appellee was injured while on duty within the meaning of that term as used in the contract of insurance. And, having so held, it follows that the court did not err in 2. giving or in refusing to give any instruction of which complaint is made.
Appellant, without referring to any rule of the company or any part of any rule, calls attention to the provision of the policy which provides that no benefits shall accrue for any injury 3. or death sustained by the insured as the result of his violation of the rules of the company. We assume appellant refers to the rule which forbids the jumping on and off trains while in rapid motion. The train which appellee boarded was, according to the evidence, moving "about as fast as a man could walk." Whether appellee violated this rule by jumping on a train or engine while in rapid motion was a question of fact. And we cannot *Page 159
say the jury was not justified in finding that appellee did not violate the rule in getting on the train, in view of the speed it was going.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444984/ | Affirming.
On a day in the latter part of February, 1931, at about noon, the appellant and defendant below, Mark Hanna, shot and killed Sherman Bellamy in Ohio county. *Page 585
He was later indicted by the grand jury of that county and charged with murder. At his trial he was convicted of voluntary manslaughter and punished by confinement in the penitentiary for five years. His motion for a new trial was overruled, and from the verdict and judgment pronounced thereon he prosecutes this appeal. In his motion for a new trial numerous alleged errors were relied on, but on this appeal his counsel abandoned all of them except two, and which are: (1) Error in the admission and rejection of testimony, and (2) improper argument of prosecuting counsel. Before taking them up for discussion and determination, it might be proper to state that none of the grounds contained in the motion, and not argued on this appeal, are meritorious; but, since they are not relied on in brief for appellant, we will neither mention nor discuss them, but will at once proceed to a consideration of the two alleged errors above mentioned and dispose of them in the order named.
1. The disposition of error 1 calls for a statement of the substance of the material facts developed by the testimony. The deceased, Sherman Bellamy, his brother John Bellamy, and the defendant were neighbors; the first two owning farms through which or along which ran east and west a public road. A creek separated the farms of the two brothers on the south of that road and it ran for some distance from the road almost due south and at practically right angles to it. Less than half a mile south of the road was another country road somewhat parallel to the public one, and not far from that point the defendant resided on a farm bordering on or near to the creek. For a great number of years the public had traveled the bed of that creek as far as the public road, and up to about 1910 the county authorities did some work on it in the way of repairing it; but there was never any court order opening any public road along and over the bed of the creek, the bottom of which was practically covered with gravel, and we conclude from the testimony that the passway over the bed of the creek was nothing more than a neighborhood road. But whether that be true or not is not material, as will become apparent in the course of this opinion.
The creek where it formed the line between the farms of the deceased and his brother, John, became filled with gravel due to washings and floods until it became greatly impaired as a natural drainage, and the *Page 586
two Bellamys determined to clean it out so that it would carry away the water of ordinary rains and prevent the overflow of their contiguous farms. Pursuant thereto they did lower the bed of the creek by removing accumulated gravel at points and which greatly enraged defendant, who claimed the right to travel the creek bed as a road, even contending that it was a public one, but that his right to travel it existed whether or not it was a public one, and he determined to take steps looking to the enforcement of such rights. The first one was the swearing out of a warrant against the two Bellamys, which of course was upon the theory that the creek bed was a public road and that the two persons whom he sought to have arrested were guilty of unlawfully obstructing it. Notwithstanding such criminal proceedings, defendant conceived the idea that he had the right to restore the bed of the creek by filling in the excavations that the two Bellamys had made, and on the morning of the fatal day he took his team and necessary implements for that purpose and began the work of restoration. He carried along with him his automobile, his wife, and his five-year-old daughter, together with a shotgun and a number of shells.
The deceased, whose residence was about 400 yards away, and upgrade from the spot where defendant was so engaged, when he returned from his work on the farm for the noon meal discovered the location of defendant, and also what he was doing, and went into his house and procured a pistol and started across his field to where defendant was; but the two eyewitnesses to the transaction introduced by the commonwealth testified that he put his pistol in his pocket and never drew it therefrom until after he was shot the first time by defendant. Those witnesses stated that about halfway from where defendant was, and the residence of deceased, was a cross-fence, and the part of the separated field contiguous to the creek was ploughed; that when deceased crossed the fence he was discovered by defendant, who went to his nearby automobile and procured his shotgun and then returned to the creek and stationed himself therein so as to be partially obscured by undergrowth, and when deceased got within about 30 yards of him he shot deceased in the breast and front part of his body; and that the latter did not have his pistol drawn nor had he taken it from his pocket. Upon being shot the witnesses stated that he did then draw his pistol, but the cylinder fell from it and he never fired a shot, although he pointed it *Page 587
towards defendant, who shot the second time, and deceased turned with his back to defendant and started away, when the latter shot him the third time, taking effect in his back.
The physician witness testified that both the wounds in the front and in the rear were sufficient to produce his death, but which did not occur until the next day. Defendant testified that when he saw deceased cross the fence coming toward him, he released his team from the implement he was using to fill up the creek and went to his automobile with the intention and purpose of departing from the scene, but that he was so excited he could not start it. Whereupon he took his gun from it, and the shells he had carried along, and returned to the creek; that deceased on arriving in speaking distance of him cursed him, and that "he acted like he was going to draw the gun on me and I shot up in the tree top"; that deceased then came closer to the creek and again cursed him and began snapping his pistol at defendant, who then fired the first shot at him; that deceased then fell behind a tree but arose and again snapped his pistol, and defendant fired his third shot, and which the commonwealth's witnesses stated was while deceased was running away, and defendant did not in terms contradict that testimony. There was abundant proof of bad feeling between defendant and the Bellamys growing out of the latter cleaning out the creek and thereby, as defendant contended, obstructing his right to pass over it from his residence to the public road. There was proof of some threats made by deceased as to what he would do if defendant attempted to restore the bed of the creek, and the latter know of such threats, and which, no doubt, explains the presence of his shotgun at the place and upon the occasion of the killing. In fact, one of the complaints made under error 1 is the refusal of the court to allow defendant and some county officers to testify that defendant asked them if he had the right to restore the creek as he attempted, and that he was informed that he did possess such right, but at the same time he was also warned, in substance, that if he attempted it he had better prepare for trouble, since the Bellamys were determined to prevent it.
It is seriously contended that the court erred in excluding such testimony offered to be given by not only defendant himself, but also by the officers whom he consulted. *Page 588
The argument is that the court has the right to be placed in the situation of the parties and that the advice attempted to be proven bore on defendant's good faith as well as showing his peaceable and law-abiding disposition. It is furthermore claimed that it tended to destroy any illegal motive on the part of defendant in repairing to the scene of the homicide and engaging in the work he was doing. Whether that would be true if defendant had peaceably engaged in the work he was doing as would become a bona fide peaceable individual, i. e., without arms and implements of war, is a question that is not presented to us, since the fact of the warning that he attempted to prove, and his preparation therefor by going armed and providing himself with the necessary implements of war, indisputably establishes that "Barkis was willing," and that he intended, and actually attempted, to enforce his supposed rights by sheer force and without resorting to peaceable legal remedies, conceding, of course, that he possessed the right to travel the creek as a passway, and to require any obstructions thereto removed — a question that it is not necessary to determine in this case.
Voluntary manslaughter, as is everywhere held, may be committed where one willingly enters into a "mutual combat" with his antagonist, and while so engaged kills him. The homicide in such case is voluntary manslaughter, unless there is a good-faith abandonment, although the deceased may have first inflicted upon the defendant, or attempted to inflict upon him, bodily harm. It is made so in such circumstances upon the ground that defendant voluntarily entered into the affray and willingly engaged in the fight which would not be one unwillingly thrust upon him by deceased or by the wounded one if he was not killed. It is entirely unnecessary that we should cite cases from this and other courts or text-writers in substantiation of that principle of criminal homicide, since it is everywhere recognized and nowhere denied. Therefore, the evidence above referred to, if it had been admitted by the court, would have been more prejudicial to defendant than in his favor, and in such circumstances it would be unreasonable to contend that its exclusion operated to his prejudice. With it in the record, plus the proven threats of the deceased and the established ill feeling between the two combatants, it is perfectly clear that defendant made up his mind to undo the work that *Page 589
had been performed by the two Bellamys in the bed of the creek, even if it brought about a personal encounter, and he carried along with him a weapon capable of inflicting death, and which he employed for that purpose. The whole engagement was thus voluntarily entered into on his part and was but the natural result of his purpose on that fatal morning and against which he was warned through the rejected testimony he offered to introduce and of which ruling he now complains. In the circumstances it is our conclusion that the court did not err in rejecting it; but if we were incorrect in that conclusion, then the rejected testimony was against defendant and his rights were not prejudiced by its exclusion.
In further support of this error it is also argued that the court should have permitted defendant to prove, as he offered to do, that after he had procured the warrant of arrest hereinbefore referred to, he made a statement that if the creek bed was restored to its former condition he would recommend that the prosecution be dismissed; but just what relevancy that statement, made by defendant in his own favor, could have on the merits of this prosecution, it is impossible for us to see. At any rate, no such proposition was accepted and defendant voluntarily undertook to redress his supposed wrongs in a manner that he knew would be calculated to bring on a combat which he prepared himself to prosecute by carrying along his gun. Of course, if the creek road should be restored, all of his preparation and activities looking to that end would become useless, but, after all, the essence of the inquiry is not what defendant desired to accomplish, but the method he employed to accomplish it and his intention and purpose to bring about that result at any cost, that constitutes the guilty facts in the case.
Neither did the court err in disallowing John Bellamy to testify to a threat that he had made against defendant. Not only is that true for the reasons we have already discussed, but for the additional one that there is no testimony connecting the deceased with any such threats made by his brother in his absence. It is, however, argued that the testimony was sufficient to show a conspiracy between John Bellamy and the deceased, and for that reason the threat made by the former was competent and admissible; but we do not so construe the testimony. If, however, it was otherwise and a conspiracy *Page 590
was proven which had for its purpose the cleaning out of the creek by the two brothers, there is no testimony to show any conspiracy to prevent defendant, or any other person from restoring it.
It is also argued in support of this error that the court erred in refusing to permit John Bellamy to testify that he and his deceased brother had consulted the justice of the peace of the district as to whether they had the right to clean out the creek and that the officer declined to give permission for them to do so. Just why the court so ruled is not explained, since the officer was introduced and he testified fully on the subject, and stated that "I told him I hardly thought the Governor of the state could let him dig a ditch down the public road." So that, defendant got the full benefit of that testimony whether competent or incompetent. We believe that the foregoing discussion disposes of all of the rulings covered by error 1, but if not those overlooked are of the same unprejudicial nature and equally unmeritorious.
2. Scott Minton, an eyewitness to the homicide, and who testified for the commonwealth, was asked on cross-examination if he had not since the killing made a statement to Alfred Fitzgerald and his wife at their home that, "If Hanna would give you $250.00 you could clear the boy and would not have to swear a lie to do it." The answer was: "No, but they told me I could have got that out of him." No objection was made to that answer, but on re-examination of that witness on that subject the commonwealth's attorney sought to have him repeat it, but the court sustained defendant's objection thereto. The commonwealth's attorney in his closing argument in commenting on that testimony said:
"Scott Minton never thought of such a thing as taking money from the defendant. It was Fitzgerald and not Minton who suggested that Minton could get money out of Hanna if Minton would testify to Hanna's advantage."
The attorney also in his argument in discussing the testimony to prove malice on the part of defendant referred to the fact that he had procured the prosecution against deceased but had not instigated one against his brother, John Bellamy, when the fact was that the prosecution inaugurated by defendant was against both. The *Page 591
same attorney in his closing argument characterized the killing of the deceased as an assassination and said:
"Talk about him being a peaceable boy! Mr. Barnes (defendant's counsel) knows what we could show about this defendant's general reputation if they had opened it up, but they dare not open it up. We could not show it unless they first tried to show it was good. We had plenty of witnesses, any number of them. Some of them his kinspeople and we could show plenty, but they dare not let us do it. This defendant, this boy, as Mr. Barnes called him, is no angel. He has sprouted no wings."
It is contended in support of error 2 that all of the remarks of counsel referred to were improper and sufficiently prejudicial to authorize a reversal of the judgment, but we do not think so. The only argument referred to that could possibly be classified as improper is the one relating to defendant's reputation. Strictly construed it did not in terms charge defendant with a bad reputation. Moreover, the bill of exceptions points out that those remarks were made in response to an argument made by counsel for defendant in which he extolled the good reputation of his client whom he characterized as a "peaceable boy." If the language of prosecuting counsel had been sufficiently explicit to charge defendant with possessing a bad reputation, it was improper and the court should have excluded it.
However, section 340 of our Criminal Code of Practice prescribes, in substance, that a judgment of conviction in a felony case should not be reversed for any error committed at the trial, unless this court is satisfied "that the substantial rights of the defendant have been prejudiced thereby." That section of the Code is eminently proper and possibly has been disregarded in some cases to which it was intended to apply. In the trial of a case it is almost impossible for it to be conducted exactly in accordance with prescribed and approved rules of procedure, a departure from which creates a technical error and if a reversal should be ordered in every such case it would be practically impossible to enforce the punishment imposed for infractions of the criminal laws. The members of the jury are not mere automatons, since they are presumed to be, and usually are, men of experience and intelligence. In this case they were defendant's fellow countians, and some of whom were perhaps, his acquaintances. *Page 592
They also knew, as the court so instructed them, that they should try the case upon the evidence adduced at the trial; and to hold that under the facts of this case a reversal should be ordered solely because of the improper statement of counsel now under consideration would be but little short of making a mockery of the administration of the criminal laws. On the other hand, we think the case is one to which the provisions of section 340 of the code, supra, were intended to apply.
The other arguments referred to are plainly without merit, and upon the whole case it is our conclusion that defendant did what he purposed to do and what he had prepared himself to do if the occasion arose requiring it, and to the arising of which he was more or less indifferent. He extinguished a human life, which is the most sacred right that his victim possessed. He went prepared to do it, and if his rejected evidence had been admitted it proved that he had been previously warned as to the probabilities, and he accordingly prepared himself for it. Human life would be cheap if in such circumstances the excuses here offered for taking it were upheld, and the errors relied on for a reversal should be given that effect by this court.
We, therefore, conclude that upon the whole case the substantial rights of defendant were not prejudiced at his trial, and for which reason the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4059795/ | ELECTRONIC RECORD
COA# 01-13-00769-CR OFFENSE: 19.03 (Capital Murder)
Mona Yvette Nelson v. The State
STYLE: ofTexas COUNTY: Harris
COA DISPOSITION: AFFIRM TRIAL COURT: 182nd District Court
DATE: 03/10/2015 Publish: YES TC CASE #: 1394964
IN THE COURT OF CRIMINAL APPEALS
Mona Yvette Nelson v. The State of
STYLE: Texas CCA#:
33Q-/5
APPELLAhiT^S Petition CCA Disposition:
FOR DISCRETIONARY REVIEW IN CCA IS: DATE:
~^&FU$e1> JUDGE: •
'(^PtP/S^ SIGNED: PC:
tTdtfy/tVAi U/oUCj)^fPDBLISH: DNP:
MOTION FOR
REHEARING IN CCA IS:
JUDGE:
ELECTRONIC RECORD | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428190/ | Action by appellee against appellant for damages to a motor truck caused by a collision of the truck with appellant's locomotive and train, at a railroad and street crossing in the city of Rensselaer. It is alleged in the complaint that defendant was negligent: (1) In permitting certain freight cars to stand upon a side track within a few feet of the traveled portion of the street at or near the crossing; (2) in failing to station a flagman at the crossing; (3) in failing, as required by statute, to sound the whistle of the locomotive when not less than eighty nor more than 100 rods from the crossing, and to ring the bell attached to the locomotive; and (4) in failing to give "reasonable and timely warning" to travelers on the street of the approach of the train.
Trial resulted in a verdict and judgment for plaintiff.
Questions requiring consideration arise upon the action of the court in overruling motion for new trial.
The court, by an instruction given on its own motion, submitted to the jury the question as to whether or *Page 195
not the crossing where the collision occurred was located 1. in a thickly populated part of the city, although there was no allegation in the complaint, and no evidence on the trial, that it was so located. Clearly the instruction was not within the issues, and should not have been given. Hatton v.Hodell Furniture Co. (1920), 72 Ind. App. 357, 125 N.E. 797.
By the court's instruction No. 4, the jury was authorized to find the defendant guilty of actionable negligence if it found from the evidence that at the time of the collision no 2. flagman was stationed at the crossing, no reference being made in the instruction as to the speed of the train, or the manner in which it was being operated. This was error. TerreHaute, etc., Traction Co. v. Phillips (1921), 191 Ind. 374, 132 N.E. 740; Lake Erie, etc., R. Co. v. Johnson (1922),191 Ind. 479, 133 N.E. 732; Ohio Electric Co. v. Evans (1922),77 Ind. App. 669, 134 N.E. 519. Also, and for the same reason, the trial court erred in refusing to give instruction No. 3 tendered by appellant. The law governing the question is fully discussed in the cases cited.
It was error for the court to instruct the jury, as it did, that the defendant railway company was required to use "all the facilities it had to give reasonable warning of the 3, 4. approach" of its trains upon the crossing. It was the duty of the company to use reasonable care to give warning, and in so far as that duty had not been defined by statute or ordinance and had not been fixed by an order of the Public Service Commission, it was for the jury to determine what would constitute reasonable care.
Other errors presented are not likely to arise on a retrial.
Reversed. *Page 196 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428201/ | Pursuant to Section 12 of Chapter 50 of the Acts of the General Assembly of 1933, Sec. 64-2612 Burns' Ind. St. 1933, § 15992 Baldwin's Ind. St. 1934, the appellee filed this action against the appellant to recover the sum of $331.55 paid as gross income tax upon the receipt of $33,155 as the appellee's distributive share of the corporate assets of the Crowder-Cooper Shoe Company, upon voluntary liquidation of the corporation.
Facts are alleged showing a compliance with the section of the statute which entitled appellee to maintain this action. Appellant's demurrer to the complaint was overruled; answer in general denial was filed; trial and judgment was rendered in favor of appellee.
The errors assigned are: Overruling appellant's demurrer to the complaint and motion for a new trial, based upon the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law.
The question presented involves a construction of Chapter 50, Acts 1933, Sections 64-2601 to 64-2629 Burns' Ind. St. 1933, §§ 15981-16010 Baldwin's Ind. St. 1934. If the distributive share of appellee, paid to him on dissolution of the corporation, is taxable, the cause should be reversed, otherwise affirmed.
The corporation was duly dissolved by the action of its directors and stockholders in the manner provided by statute. After all debts were paid, the net capital assets remaining were distributed to the stockholders. The appellee owned 349 shares of the capital stock, par value $100 each, and received as his share of the net assets distributed to him during the taxing period ending December 31, 1933, the sum above named. Said sum was paid to him solely on account of his rights as a stockholder in said corporation. *Page 254
It is the appellee's position that the distributive share received by him does not constitute gross income and is not within the purview of the Gross Income Tax Act, for the reason that it defined the term "gross income" as "all receipts by reason of the investment of capital," and, therefore, the Legislature intended to tax the resultant of an investment, the accrual, gain or accretion, and did not intend to tax the investment or the capital; that the phrase, "receipts by reason of the investment of capital," is limited to interest, accrual, or other emoluments; that any other construction would be inconsistent with the position which the Department of Treasury of Indiana has placed upon the act; that the transaction, which is the subject of this litigation, was never intended to be taxed by the Legislature, nor included within the provisions of the statute.
The term "gross income" is defined by clause (f), Section 1, of the act as follows:
"The term `gross income,' except as hereinafter otherwise expressly provided, means the gross receipts of the taxpayer received as compensation for personal services, and the gross receipts of the taxpayer derived from trades, businesses or commerce, and the gross receipts proceeding or accruing from the sale of property, tangible or intangible, real or personal, or service, or any or all of the foregoing, and all receipts by reason of the investment of capital, including interest, discount, rentals, royalties, fees, commissions or other emoluments, however designated, and without any deductions on account of the costs of property sold, the cost of materials used, labor cost, interest or discount paid, or any other expense whatsoever, and without any deductions on account of losses."
The gross income tax constitutes one of the ordinary and general burdens of government from which persons and corporations are not exempt. For the purpose of taxation there is no 1-4. distinction between a person and a corporation. The corporation is an independent *Page 255
legal entity, separate and distinct from its stockholders. The Crowder-Cooper Shoe Company and the appellee are separate and distinct entities or persons. Appellee owned shares of stock in the corporation. He did not own the capital. As stated inMargle v. Burgess (1911), 176 Ind. 25, 27, 28, 95 N.E. 308:
"The capital stock belongs to the corporation, considered as a legal person, and the shares are the property of the individual shareholders. . . . The capital stock is to be distinguished from the amount of property owned by the corporation. Generally the capital stock does not vary, although the actual property of the corporation may fluctuate widely in value. . . .
"A share of stock may be defined as a proportional part of certain rights in the management and profits of the corporation during its existence, and in the assets upon dissolution. . . . It is evidence of his ratable share in the distribution of the assets of the corporation on the winding up of its business. The capital stock is a liability of the corporation to its shareholders, after creditors' claims have been liquidated. All the property of the corporation, including its capital stock, is liable for the payment of corporate debts."
State v. Krasher (1908), 170 Ind. 43, 83 N.E. 498.
When the appellee received funds on the final liquidation of the corporation, he received it from another distinct legal entity. The appellee, as a stockholder, had no claim to 5, 6. the corporate property until all the debts and obligations of the corporation had been paid in full, and the officers had directed the distribution of the net assets to the stockholders. The individual stockholder had no claim to the corporate property of the corporation which would have enabled him to convey, assign, or mortgage it. All he could do was to assign his shares of stock. Humphreys v. McKissock
(1891), 140 U.S. 304, 11 S. Ct. 779, 35 L. Ed. 473.
The appellee has sought to limit the application of the Gross Income Tax Act to income, receipts or emoluments, *Page 256
and for that reason argues that it cannot apply to the transaction herein. This act was before the court in Miles v.Department of Treasury (1935), 209 Ind. 172, 199 N.E. 372, wherein the court said (p. 195):
"It is contended that the word `income,' as used in the title of the act, is not broad enough to cover gross receipts or gross income within the intent of the act. But the term `gross income' is used in the title. This term is understood by lexicographers, and in common usage, to mean total receipts."
It is a tax upon total receipts without deductions of any sort, either "on account of the costs of property sold, the cost of materials used, labor cost, interest or discount paid, or any other expense whatsoever, and without any deductions on account of losses." The purpose of the Gross Income Tax was to levy a tax upon the receipts of all sums coming into the hands of the taxpayer, without regard as to whether or not he may have suffered an actual loss in the transaction. It includes "the gross receipts of the taxpayer derived from trades, businesses or commerce . . . and all receipts by reason of the investment of capital." This language, from clause (f), supra, indicates that the Legislature meant something more than gain, increments, or additions which flow from the investment of capital. Clearly the Legislature did not mean to tax only earnings from investments.
The appellee argues that because the phrase "all receipts by reason of the investment of capital" is followed by the phrase "including interest, discount, rentals, royalties, fees, commissions or other emoluments," the property of the taxpayer subject to taxation is limited by the use of the word "including." After clause (f) enumerated all the property subject to tax, it then added the phrase beginning with the word "including," which clearly is used with the intent and purpose of enlarging the act rather than limiting it.
Clause (g) of Section 1 clearly indicates the intention *Page 257
and purpose of the Legislature in respect to gross income upon certain investments, wherein the tax is not levied except upon the gross earnings. For example, under clause (g), a party may loan the sum of $1,000, bearing six per cent. interest and due in one year. Upon maturity the debt is paid. The principal is not subject to the Gross Income Tax, but the $60 is subject to it.
It is unnecessary to discuss the distinction between a corporation and a partnership. Suffice to say that the receipts of a corporation are subject to the gross income tax, while Section 8 of the act expressly provides that copartnerships are not subject to the tax, but the receipts are taxed to the individual partners.
Rules and regulations promulgated by the Department of Treasury, and referred to in oral argument, do not affect the particular question considered in this opinion.
Upon the whole, Chapter 50 of the Acts of 1933 clearly shows its scope and purpose to be to levy a tax upon all income and not to limit the tax to accretions flowing from invested property, except as herein pointed out. Had the appellant company continued to function as a corporation and declare dividends to its stockholders, it would hardly be denied that such dividends were subject to the tax. Since it ceased to exist as a separate entity and chose to dissolve the corporation and pay its debts as required by statute, no legal reason is apparent why the net assets of the corporation, remaining for distribution to the stockholders, should not be subject to the tax, under clause (f), and the court holds that the lower court committed reversible error in overruling the appellant's demurrer to the appellee's complaint.
It is therefore ordered that the cause be reversed and the lower court directed to sustain appellant's demurrer to the complaint. *Page 258 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428203/ | This was an action to recover on a depository bond, the complaint alleging that the appellants signed a certain bond as sureties for their principal, the Lakeville State Bank. To the complaint there was filed a plea of non est factum verified by appellants, Eastburn and William Shafer. The appellants, Olinger, Henry Shafer and How did not verify the answer and *Page 311
the appellant, Lee Wolff did not join in such answer. There was a trial by court, without a jury, and a finding and judgment for appellee in the sum of $4084.20. The appellants filed a motion for a new trial, the grounds therefor being that the decision of the court is not sustained by sufficient evidence and that the decision of the court is contrary to law. The overruling of this motion is the only error relied on for reversal.
Under this assignment the appellants set out three propositions, the first two being that there was never a delivery of the bond so as to bind the appellants as sureties and consequently there was no right of recovery, since the plea ofnon est factum was filed, and that because of the plea of nonest factum there was no proof of the fact that the principal, Lakeville State Bank, ever became a party to the bond as alleged in the complaint, and since the principal did not become a party there is no liability on the part of the appellants as sureties, although the bond may have been actually delivered.
In appellants' proposition three they say that since there is a plea of non est factum the burden was upon the appellee to show substantial compliance with all the steps imposed by the statute preliminary to and culminating in the appointment of the bank as a public depository, and since the record is barren of the evidence that the bank was designated and appointed there has been a failure of proof of a substantive matter alleged and appellee can not prevail. As authority under this proposition the appellant cites foreign cases to the effect that the statute must be strictly construed and in effect that the same is mandatory. While this may be the law in the jurisdiction cited our Supreme Court has held otherwise. In the case of State ex rel. Rowe v.Britton (1885), 102 Ind. 214, 216, 1 N.E. 617, the court said, "The failure to approve the bond did not *Page 312
invalidate it. Having accomplished the purpose it was intended to accomplish, and the parties having secured the consideration upon which it was founded, it is not rendered ineffective by the failure to formally approve it." And also in the case ofMowbray, etc. v. State, etc. (1882), 88 Ind. 324, 325, the court said, "The question is not whether the bond could take effect for the purpose of rendering the sureties liable for acts done before the approval of the bond. The officer is alleged to have entered upon the duties of the office after the approval, and all the breaches charged are alleged to have occurred thereafter. The bond is a contract by which the obligors engaged at the time of its execution to be responsible for violations of official duty occurring thereafter. Upon its execution it became in force, as against the obligors, for the purpose for which it was given. If there was a violation by the principal of any duty for the faithful performance of which the bond was conditioned, the surety would be liable upon his contract. From the time of the execution of the bond the surety and his estate were bound. Here, as before said, there was approval, and the breaches were subsequent thereto; but, indeed, approval of an official bond is not required for the benefit or protection of the sureties; and however important it might be for one asserting his rights as an officer to show his compliance with the requirements of law for induction into office, the statutory provisions for the approval of the securities given by him will, in an action on the bond against a surety, be regarded as directory, and the complaint thereon, showing a breach, will not be bad though it fail to state that the bond was approved. The fulfilment of the purposes for which such bond is required by law should not be dependent upon the acts or omissions of other officers. It is sufficient, however, for the purposes of this case, to say that if it were true that the *Page 313
bond was not approved until after the death of a surety who had executed it, this would not invalidate the bond as his contract."
Further to the same effect is 21 R.C.L. 973 which says, "As ageneral rule it appears that statutes providing that the bond or sureties shall be approved, and limiting the time in which it may be done, are directory merely, being for the convenience, security, and protection of the public, and not directly for the benefit of the principal in the bond and his sureties. Hence, if a bond is delivered for approval, it becomes a binding obligation, unless actually disapproved, and a dereliction of duty on the part of officers appointed by law to pass on the sufficiency of the security, and approve or reject it, cannot be taken advantage of by the bondsmen. If such officers fail to act in the manner or time prescribed, or if they fail to act at all, or if the wrong officers act, the sureties are, nevertheless, bound." (Our italics.)
Conceding that it be unimportant whether these steps are directory or mandatory the bank, and the appellants here, received the benefits from the designation of the bank as a depository and the actual deposit of the public funds and the language used by the Supreme Court of Missouri in the case ofSchool District et al. v. Security Bank, etc. (1930), 325 Mo. 1, 26 S.W.2d 785, is persuasive reasoning in holding the appellant liable under the bond. The language is as follows: "Whether the legislature intended to invalidate a bond given under such circumstances, that is, whether the statutory provisions referred to are mandatory or merely directory, we need not decide. Where, as here, faith and credit have been given to a depository bond and it has performed the function of a statutory bond, the sureties on such bond cannot escape liability upon the ground that their principal was not duly selected as a depositary, *Page 314
nor upon the ground that such bond was not executed and delivered within the time prescribed by the statute. The evidence in this case shows, and the bond in suit recites, and appellants do not deny, that the defendant bank was selected as a depositary of one-eighth of plaintiff's funds. The evidence further shows, and appellants do not deny that, upon the execution, acceptance, and approval of the bond, the bank became such a depository, `assumed and acted that role,' received one-eighth of plaintiff's funds as such a depositary, and thereby, to all intents and purposes, became such a depositary de facto. By signing and delivering the bond, the sureties, including appellants, intended that the bank should become such depositary. That act enabled the bank to get hold of one-eighth of plaintiff's funds. Under such circumstances, it becomes immaterial whether the bank was selected as such a depositary exactly as prescribed by statute, or whether the bond was executed within the time prescribed by the statute. The engagement of the sureties on the bond in suit was to stand sponsor for the bank — to answer for its default. That default could arise whether the bank was a depositary defacto or de jure. The default has arisen, and appellants, as sureties on the bond, must answer therefor."
Since we have arrived at the conclusion above there is no need for discussing the first two propositions set out by appellant as they are effectively disposed of insofar as it is necessary to do so by the result reached under the third proposition.
The application of the act of 1933, Chapter 78, to this case has not been presented to us. We are not apprised as to whether or not the appellants are released by virtue of said act.
The court did not err in overruling the motion for a new trial. Judgment of the St. Joseph Superior Court No. 2 is in all things affirmed. *Page 315 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428181/ | This is an appeal from an award of the Industrial Board which granted compensation to appellee as the surviving dependent husband of Sarah Robinson who died as a result of an industrial accident. The sole question involved is whether there is evidence to sustain the finding of the board that appellee was neither physically nor financially able to support himself at the time of decedent's death.
The statute, § 40-1403, Burns' 1940 Replacement, § 16414, Baldwin's 1934, provides that a husband who is both physically and financially incapable of self-support shall be conclusively presumed to be dependent upon his wife with whom he is living at the time of her death.
The pertinent facts, supported by the evidence most favorable to appellee, are as follows:
For 12 years prior to May, 1942, appellee worked at a tin mill. On January 17, 1939, his rate of pay was $60 to $65 every two weeks. In 1935, he developed a gastric ulcer which prevented him from working steadily. On several occasions he had to be taken to the company hospital. Finally, in May, 1942, he was laid off because of ill health. The evidence is silent as to the amount of time he worked during this period and as to his earnings. It is also silent as to his rate of pay except as to January 17, 1939, the date when he married the decedent. After being laid off by the tin mill he did not work for about three months. Then he obtained another job and worked for approximately two months, earning about $190. He then collapsed on the *Page 301
job as a result of his ulcerous condition and was taken to a hospital. There he underwent an operation for hernia and appendicitis. He was in the hospital for a period of from one to two months. From the time he left the hospital until March, 1943, he worked three weeks at one place and irregularly at another, earning $18 per week at the first place and $12 per week at the other. In March, 1943, he went to work at the Tubular Alloy Steel Corporation at a rate of pay which was around $6 per day. His total earnings for the year 1943 were about $1770. On February 29, 1944, he quit because of illness. From that time to the date of the hearing in this case, May 23, 1944, he worked one week, earning $30. At the time of the hearing he was unable to work. During the time he worked at the Tubular Company he complained to his foreman daily that he was sick but he was not discharged or sent to a hospital and he was permitted to continue working.
On January 17, 1939, appellee married the decedent. At that time she was working and she continued to work until the time of her death. From January 17, 1939, to July 1, 1943, she earned from $18 to $25 per week. From July 1, 1943, to March 30, 1944, the date of her death, her average weekly wage was $49. During their married life appellee gave his pay to decedent and she paid their bills from the fund made up of their combined earnings.
In 1937, appellee consulted a private physician who continued to treat him off and on until the time of the hearing in this case. The treatment consisted of a restricted diet and intravenous treatments. He consulted the physician and took the treatments irregularly but whenever he felt he could afford to. His physician testified that gastric ulcer is more or less a chronic *Page 302
affair which causes a general weakening, the extent of which is dependent upon how far the ulcer has developed and how much it interferes with the ability to digest and assimilate food; that the ability to work of one suffering from it depends upon whether he is able to build up his strength by assimilating food, and so long as he has the proper diet and can assimilate food, he should have sufficient strength to carry on the ordinary work of a laboring man. It was his opinion that in January or February, 1944, appellee was in better condition than he had been in 1942 and 1943, but that it was worse at the time of the hearing and at that time he was not able to work. The doctor attributed this set-back to the death of the wife.
Appellee testified that since 1937 he has been unable to earn enough money to support himself and that after his marriage he depended on his wife for support, but these statements cannot be considered by us as substantial evidence where clear undisputed facts admit of nothing but an opposite conclusion.
It clearly appears that appellee's financial resources are limited to what he earns. The factual question presented therefore is whether he was physically able to support 1, 2. himself at the time of his wife's death. We do not understand that this means a mere temporary disability to work at the moment of death. The evidence in this case is silent as to whether appellee's condition at the time of his wife's injury and immediately prior thereto was merely temporary. The ends of justice will be best served if evidence is heard on that subject.
The finding and award is set aside and this cause is remanded with instructions to hear additional evidence on the question as to whether or not appellee's *Page 303
condition at the time of his wife's injury was temporary, and for further proceedings.
NOTE. — Reported in 58 N.E.2d 937. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428184/ | The appellant brought this action to vacate and set aside as illegal, and to enjoin operations under, certain orders of the Public Service Commission authorizing the appellee, Yankee Coach Lines, Inc., to operate a line of busses over a certain route upon which the appellant was operating a line of busses under a certificate of public convenience and necessity issued by the Public Service Commission. There was a trial, and judgment for the defendants.
The appellant assigns as error the overruling of its motion for a new trial. *Page 223
It appears that the appellant operates a line of busses for the transportation of passengers from the City of Chicago to the City of Indianapolis, through the City of Lafayette; that the appellee, Yankee Coach Lines, Inc., formerly operated a line of busses for the transportation of passengers from Chicago eastward and south to the City of Lafayette, over a different route. The controversy here arises upon an order of the Commission authorizing the Yankee Coach Lines, Inc., to operate from Lafayette into Indianapolis upon the same route on which the appellant operates, and to transport passengers locally between Lafayette and Indianapolis. There was much evidence, pro and con, as to the necessity of the additional service and the local stops. The appellant offered evidence that it was in a position to supply additional facilities if ordered by the Commission.
The statute, § 47-1217, Burns' 1933 (Supp.), § 11232-7, Baldwin's Supp. 1935, provides: "The applicant shall, at all times, have the burden of proving, by a preponderance of 1. the evidence, except as hereinbefore provided, that public convenience and necessity requires the proposed operation, and that the proposed operation will not unreasonably impair the existing public service of any authorized common carrier, or common carriers by motor vehicle, or by railroad, steam or electric, then adequately serving the same territory." It must be concluded that the Commission found the necessary facts, and it cannot be said that there is not some evidence to support the finding. We are not concerned, nor was the trial court below, with the question of whether or not the court would have reached the same result upon the same evidence. Public ServiceCommission of Indiana et al. v. City of La Porte (1935),207 Ind. 462, 193 N.E. 668. *Page 224
The appellant complains because certain temporary orders were made without notice, and without the appellant having an opportunity to be heard, as provided by the statute, but this action does not question those orders. The appellant complains that the evidence that was heard when the first order of the Commission was made, the one that was set aside, was considered and treated as in the record at the time of the orders complained of. It seems, however, that the appellant was given a full opportunity to present its evidence.
It is contended that there is no evidence to sustain the Commission's finding that the operation will not unreasonably impair the existing public service of any common carrier 2, 3. then adequately serving the same territory. The Commission was within its jurisdiction in considering the evidence and the reasonable inferences to be drawn therefrom. There is some evidence that the service being rendered was not adequate, and some evidence that, at the hours at which the Yankee Coach Lines, Inc., was permitted to furnish service, the appellant's busses were often so full that they could not pick up waiting passengers. The appellant's representatives testified that they had facilities for supplying additional busses. The appellee Yankee Coach Lines, Inc., served territory north of Lafayette that was not reached by the appellant. It operated through busses into Indianapolis from the territory which it served north of Lafayette. The Commission may have concluded that the public interest was better served by permitting these busses to furnish local service between Indianapolis and Lafayette than would be the case if the appellant was permitted or required to operate additional busses. The statute, supra, provides that, in determining whether a certificate is to be granted, the Commission may consider *Page 225
the volume of traffic existing over the route, and the effect and burden upon the highways and bridges, and whether the operation will threaten the safety of the public. It may have been concluded that the through busses were necessary in order to adequately serve the public on the route of the Yankee Coach Lines, Inc., north of Lafayette, and that, since these busses were using the highway in any event, the public safety and the public good would be better served by permitting it to furnish local service than by the operation of additional busses by the appellant. No good purpose would be served in reviewing all of the evidence. It is sufficient that it cannot be said as a matter of law that there is insufficient evidence to sustain the finding.
The appellant seems to feel that its property rights are involved, but we find nothing in the statute or in the authorities which gives the appellant an exclusive and 4, 5. monopolistic right to use the highway in question. The Legislature has vested discretion in the Public Service Commission to issue certificates of convenience and necessity, and, unless an abuse of discretion is shown or some unlawfulness upon the part of the Commission, the courts may not interfere to substitute their judgment for that of the Commission.
Judgment affirmed.
NOTE. — Reported in 27 N.E.2d 348. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4014656/ | J. S44014/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ANDREW P. GLUSHKO, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
THE HENRY LAW FIRM; : No. 3219 EDA 2015
TODD EDWARD HENRY AND :
DANIEL McGARRIGLE :
Appeal from the Order Entered August 31, 2015,
in the Court of Common Pleas of Monroe County
Civil Division at No. 2438-CV-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016
Andrew P. Glushko appeals, pro se, from the order entered August 31,
2015, denying his petition for reinstatement of in forma pauperis (“IFP”)
status. We dismiss the appeal.
On July 16, 2009, following a jury trial, appellant was found guilty of
multiple counts of unlawful contact with a minor, criminal attempt and
criminal solicitation counts related to various sexual offenses, corruption of
minors, and criminal use of a communication facility. Appellant was
sentenced to 4 to 8 years’ imprisonment. This court affirmed the judgment
of sentence, and appellant did not file a petition for allowance of appeal with
the Pennsylvania Supreme Court. Commonwealth v. Glushko, 26 A.3d
J. S44014/16
1190 (Pa.Super. 2011) (unpublished memorandum). Appellees represented
appellant on his direct appeal.
Subsequently, appellant litigated a PCRA1 petition which was denied.
This court affirmed the denial of PCRA relief, and our supreme court denied
allowance of appeal. Commonwealth v. Glushko, 102 A.3d 544
(Pa.Super. 2014) (unpublished memorandum), appeal denied, 104 A.3d 2
(Pa. 2014). On March 28, 2014, while his PCRA appeal was pending in this
court, appellant filed a professional liability complaint alleging malpractice
and breach of contract based on appellees’ purported mishandling of his
direct appeal. However, appellant did not file a certificate of merit (“COM”)
as required by Pa.R.C.P. 1042.3.
On January 5, 2015, the trial court sustained appellees’ preliminary
objections in part and struck Counts 6, 7, & 8 of appellant’s complaint.
However, the trial court reserved ruling on appellees’ demurrer to give the
parties time to brief the issue. Subsequently, on January 27, 2015,
appellees filed a praecipe for judgment of non pros for failure to file a COM,
and on January 29, 2015, the prothonotary entered judgment of non pros.
On February 2, 2015, appellant filed a notice of appeal from the
January 5, 2015 order, as well as a petition for leave to file a COM and a
petition to strike off judgment of non pros. Appellant’s appeal was
docketed at No. 720 EDA 2015. In an opinion and order filed April 2, 2015,
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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J. S44014/16
the trial court determined that the February 2 appeal was interlocutory and
premature, and therefore, the trial court retained jurisdiction to decide any
outstanding issues. (Opinion and Order, 4/2/15 at 8-9.) See
Pa.R.A.P. 1701(b)(6) (“After an appeal is taken or review of a quasijudicial
order is sought, the trial court or other government unit may: Proceed
further in any matter in which a non-appealable interlocutory order has been
entered, notwithstanding the filing of a notice of appeal or a petition for
review of the order.”). The trial court denied appellant’s motion to continue
IFP status on the basis that the appeal was frivolous. (Id. at 9-10, citing
Pa.R.C.P. 240(j)(1) (“If, simultaneous with the commencement of an action
or proceeding or the taking of an appeal, a party has filed a petition for
leave to proceed in forma pauperis, the court prior to acting upon the
petition may dismiss the action, proceeding, or appeal if the allegation of
poverty is untrue or if it is satisfied that the action, proceeding or appeal is
frivolous.”).) See also Bell v. Mayview State Hosp., 853 A.2d 1058,
1060 (Pa.Super. 2004) (“Under Rule 240(j), an action is frivolous if, on its
face, it does not set forth a valid cause of action.”) (internal quotation marks
and citations omitted). In addition, the trial court determined that appellant
failed to set forth sufficient factual averments to support his claim of
indigence. (Opinion and Order, 4/2/15 at 10 n.5.)
The trial court also denied appellant’s motion to open/strike judgment
of non pros, finding that he had ample opportunity to file a COM and failed
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to do so. (Id. at 19.) Furthermore, the trial court determined that even if
the judgment was opened, appellees’ preliminary objections in the nature of
a demurrer would be sustained and the complaint stricken because appellant
failed to plead or establish claims upon which relief may be granted. The
trial court found that under Bailey v. Tucker, 621 A.2d 108 (Pa. 1993),
which governs actions in criminal malpractice, appellant was unable to plead
a legally sufficient claim of professional negligence. (Opinion and Order,
4/2/15 at 12-14.)2 Therefore, the trial court denied appellant’s motion to
continue IFP status; denied his petition to strike off judgment of non pros,
and, in the alternative, sustained appellees’ preliminary objections in the
nature of a demurrer; denied appellant’s motion for reconsideration of the
January 5, 2015 order; and dismissed appellant’s remaining motions and
requests as moot. (Id. at 22.)
The trial court’s April 2, 2015 order denying appellant’s petition to
strike the judgment of non pros and dismissing the complaint was a final
and immediately appealable order. Pa.R.A.P. 311(a)(1);
Pa.R.A.P. 341(b)(1). Appellant filed an appeal on May 1, 2015 at No. 1436
2
Under Bailey, a criminal defendant/legal malpractice plaintiff must prove,
inter alia, that the attorney’s culpable conduct was the proximate cause of
an injury suffered by the defendant/plaintiff, i.e., “but for” the attorney’s
conduct, the defendant/plaintiff would have obtained an aquittal or a
complete dismissal of the charges; and he has pursued post-trial remedies
and obtained relief which was dependent upon attorney error. Bailey, 621
A.2d at 114-115. Appellant would be unable to satisfy this standard where
his judgment of sentence was upheld on direct appeal, and he was denied
PCRA relief.
-4-
J. S44014/16
EDA 2015.3 Appellant also filed another motion for continuation of IFP
status on appeal, which was not ruled upon by the trial court. On May 27,
2015, this court granted appellant’s motion to withdraw the February 2,
2015 appeal at docket number 720 EDA 2015, filed from the order of
January 5, 2015.
On August 10, 2015, appellant filed a “Motion for Documents/
Transcripts, Reinstatement of [IFP] Status, and Retraction of Costs.” This
motion was denied on August 31, 2015, “for the reasons set forth in the
prior orders and opinions issue[d] by this Court, especially those that have
addressed [appellant]’s recent requests for [IFP] status.” (Order, 8/31/15
at 1; docket #9.) Appellant filed an appeal from that order on
September 29, 2015. On November 6, 2015, appellant was ordered to file a
concise statement of errors complained of on appeal within 21 days pursuant
to Pa.R.A.P. 1925(b); appellant complied on November 20, 2015, asserting
that the trial court was without authority to deny appellant’s motion for
continuation of IFP status pursuant to Pa.R.A.P. 551 and Nevyas v.
3
Appellant is currently incarcerated and so the “prisoner mailbox rule,” in
which a pro se prisoner’s appeal is deemed filed on the date that he delivers
the appeal to prison authorities and/or places his notice of appeal in the
institutional mailbox, applies. See Smith v. Pa. Bd. of Prob. & Parole,
683 A.2d 278, 281 (Pa. 1996); Thomas v. Elash, 781 A.2d 170, 176
(Pa.Super. 2001) (holding that the prisoner mailbox rule applies to all
pro se legal filings by incarcerated litigants, including civil actions).
Appellees contend that appellant’s appeal notice was not filed until May 6,
2015, beyond the 30-day filing deadline. (Appellees’ brief at 7.) However,
appellant averred that he deposited his notice of appeal with prison officials
for mailing on May 1, 2015. Therefore, it is deemed filed on that date.
-5-
J. S44014/16
Morgan, 921 A.2d 8 (Pa.Super. 2007). (Docket #7.) On December 21,
2016, the trial court filed a Rule 1925(a) opinion. Therein, the trial court
opined that the appeal should be dismissed or quashed as moot since the
underlying appeal at No. 1436 EDA 2015 has been dismissed. (Trial court
opinion, 12/21/16 at 1-2.) Alternatively, the trial court found that
appellant’s prior appeals are frivolous and his applications lack sufficient
averments of indigence. (Id. at 3.) The trial court noted that appellant has
a history of filing frivolous motions and appeals. (Id. at 2.)
On November 16, 2015, this court had dismissed the appeal at
No. 1436 EDA 2015, which was the appeal from the April 2, 2015 order
denying appellant’s petition to strike off judgment of non pros. This court
dismissed the appeal due to appellant’s failure to pay the appropriate filing
fees. We noted that on August 31, 2015, the trial court had denied
appellant’s motion for reinstatement of IFP status, citing the frivolous nature
of appellant’s complaint. Glushko v. The Henry Law Firm, et al., No.
1436 EDA 2015, per curiam order (Pa.Super. filed November 16, 2015).
Appellant filed a petition for allowance of appeal with the Pennsylvania
Supreme Court which was denied on May 3, 2016.
Appellant has raised the following issue for this court’s review:
“Whether the lower court erred in denying [appellant]’s motion for
reinstatement of [IFP] status?” (Appellant’s brief at 1.) Appellant argues
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J. S44014/16
that the trial court was without authority to deny continuation of IFP status
while his appeal was pending. (Id. at 3.)4
(a) General rule. A party who has been granted
leave by a lower court to proceed in forma
pauperis may proceed in forma pauperis in
an appellate court upon filing with the clerk of
the lower court two copies of a verified
statement stating:
(1) The date on which the lower court
entered the order granting leave to
proceed in forma pauperis.
(2) That there has been no substantial
change in the financial condition of
the party since such date.
(3) That the party is unable to pay the
fees and costs on appeal.
Pa.R.A.P. 551(a). Appellant is correct that the trial court has no authority to
revoke IFP status while an appeal is pending. Nevyas, 921 A.2d at 13-14.
Here, however, the underlying appeal from the April 2, 2015 order denying
appellant’s petition to strike off the judgment of non pros in the criminal
malpractice action has been dismissed and appellant’s petition for allowance
of appeal has been denied. There is no longer an appeal pending. Appellant
failed to respond to this court’s September 15, 2015 show cause order, and
we dismissed the appeal at No. 1436 EDA 2015. The earlier, interlocutory
appeal was withdrawn by appellant. The underlying litigation has come to
4
As appellees observe, appellant uses the terms “continuation” and
“reinstatement” interchangeably. (Appellees’ brief at 11 n.4.)
-7-
J. S44014/16
an end. Therefore, we agree with the trial court that the issue of appellant’s
IFP status is moot.
Furthermore, as explained by the trial court in its April 2, 2015 opinion
and order, appellant failed to comply with the COM requirements and he
cannot possibly prove legal malpractice where he was found guilty and has
exhausted all of his appeals and state post-conviction remedies. Appellant
cannot meet the third element required in Bailey; i.e., that he did not
commit any of the unlawful acts with which he was charged. Appellant
cannot prove that “but for” the allegedly negligent acts of his attorneys, he
would have obtained an acquittal. As a matter of public policy, a guilty
plaintiff cannot collect damages in a criminal malpractice trespass action.
See Bailey, 621 A.2d at 113 (“First, as for the possibility of a defendant
actually profiting from his crime, we require that as an element to a cause of
action in trespass against a defense attorney whose dereliction was the sole
proximate cause of the defendant’s unlawful conviction, the defendant must
prove that he is innocent of the crime or any lesser included offense.”). See
also Hill v. Thorne, 635 A.2d 186, 190-191 (Pa.Super. 1993) (“[P]ublic
policy should not allow an actually guilty defendant to profit from his crime
by attacking peripherally negligent aspects of his defense attorney’s
performance. The heightened pleading standards also discourage frivolous
litigation, while leaving intact the criminal defendant’s access to other
-8-
J. S44014/16
systemic remedies, such as appeals and post-conviction proceedings.”),
citing Bailey, 621 A.2d at 112-113.
Appellant also could not establish the fifth element of criminal legal
malpractice required by Bailey, the successful pursuit of post-trial relief
dependent upon attorney error. As set forth above, appellant’s PCRA
petition was denied, and this court affirmed. The Pennsylvania Supreme
Court has recently denied allocatur. Appellant was not entitled to IFP
status to pursue this wholly frivolous lawsuit. See Conover v. Mikosky,
609 A.2d 558, 560 (Pa.Super. 1992) (“Courts should not allow a litigant
seeking in forma pauperis status to use the court’s time and the
taxpayer’s money to support a frivolous claim.”).
Appeal dismissed. Appellant’s application to file a reduced number of
copies of his reply brief is denied as moot, appellant having already filed the
requisite number of copies (4).
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
-9- | 01-03-2023 | 07-11-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428226/ | Action by appellee against the estate of appellant's decedent on a claim for services rendered decedent, and a second paragraph for damages for breach of alleged contract to make a will bequeathing to appellee all of decedent's estate. Without demurrer, issues were joined on the claim by a general denial. There was a trial by jury which resulted in a verdict in favor of appellee on the first paragraph of the claim for $2,965, on which judgment was given against the estate. The second paragraph of claim was withdrawn by the court's instruction from consideration by the jury. By this paragraph of claim, it was averred that the decedent promised and agreed with appellee, who was a niece of the decedent, that if she would come from her home in the city of Detroit, Michigan, and live with the decedent, and move her family and household goods from said city of Detroit to the home of decedent in *Page 465
Hamilton county, Indiana, and become her housekeeper and nurse, and assist her in the management of her farm and business affairs, she would, at her death, give and devise to appellee all of her property both real and personal of which she might die the owner. It is averred that appellee accepted the terms of said offer, and, because of such promises, appellee did move from her home in the city of Detroit to the home of the decedent, resided therein, and performed for the decedent the above services as required of her; but that the decedent breached her contract, and wholly failed to give and devise to appellee her estate, which was of the value of $8,000, or any part thereof.
While there is no cross-error assigned by appellee because of the court's action in withdrawing this second paragraph of complaint from the consideration of the jury, we have 1, 2. set it out in substance as above because of the influence which, as it seems to the court, it must have had upon the jury in the verdict rendered by the jury. It is to be observed that this second paragraph of claim was before the jury until the close of appellee's evidence, at which time appellant's motion to withdraw from the jury was sustained, and thereafter, the court, by an instruction, withdrew the paragraph from the consideration of the jury. Before its withdrawal, evidence was heard to sustain its averments, but such evidence, being oral, except one letter written in 1919, and the contents of another letter in which were the promises that appellee should have the estate left, evidently the court deemed the same insufficient either for the enforcement of the contract or damages for its breach. The court's ruling in withdrawing the second paragraph might have been questioned in view of proof of the contents of the letter containing the promise, but this question is not before *Page 466
us. After the withdrawal of this paragraph of complaint from the consideration of the jury, there was no question of a contract, or of a breach of a contract, for the jury's determination. The only question which the jury had to consider thereafter was that of the value of appellee's services under the allegations of the first paragraph of the claim. Whether appellant's decedent had at any time promised appellee that, at the death of such decedent, appellee should have the whole of her estate, or any part thereof, and whether such promise and agreement on the part of appellant's decedent had been breached was not for the jury's consideration. We do not determine as to whether the court erred in sustaining appellant's motion to withdraw the second paragraph of the claim from the consideration of the jury for, as above mentioned, no cross-error is assigned. Appellant earnestly and forcefully contends that the recovery is grossly excessive. It is a well-established rule of law that a verdict will not be set aside for excessive damages or excessive recovery where the same is not so excessive as to induce the belief that the jury acted from partiality, prejudice, corruption, or other improper motive, and that the verdict of the jury should not be disturbed unless it appears to the court at first blush to be grossly excessive.Alexander v. Thomas (1865), 25 Ind. 268; Kawneer Mfg. Co.
v. Kalter (1918), 187 Ind. 99, 118 N.E. 561; Citizens Tel.Co. v. Prickett (1919), 189 Ind. 141, 125 N.E. 193;Grabowski v. Benzsa (1923), 80 Ind. App. 214, 140 N.E. 76. But it follows as the converse of this rule of law that if a verdict of the jury is so large as to induce the belief that the jury was moved by prejudice, partiality, or corruption, or that some improper element was taken into account in its determination, then it becomes the duty of the court on appeal to intervene by reversal, or in a proper case order a remittitur. *Page 467
By the undisputed evidence in this case, it appears that appellee, with her three children, came to the home of decedent in the latter part of June, 1920, and that her husband came 3. in September following. They lived together as a family, the husband farming the land after he came and dividing the products with decedent until in November, 1921, at which time, the decedent, having married Mr. Dickover, administrator appellant herein, she moved to Arcadia. During the seventy-four or seventy-five weeks that decedent remained on her farm, she was once sick with pneumonia for two weeks and called a physician who attended her during that sickness. At another time she was sick for three or four days and called her physician again. This physician testified that the value of appellee's services as he saw them were worth thirty-five dollars per week. Another witness testified that her services for seventeen weeks until her husband came were worth thirty-five dollars per week. Appellee's witnesses did not testify to the value of her services when the decedent was not sick, and after her husband came, but appellant's witnesses put the value of such services from five dollars to seven dollars per week. After the decedent moved to Arcadia, appellee's services consisted in assisting the decedent to clean house occasionally and in making some curtains, pillow cases, and in washing some bedding for two beds twice a year. Appellee, contending that the verdict is not excessive, says that for the first seventy-four weeks, or until the decedent moved to Arcadia, appellee should receive thirty-five dollars per week, and for the fifty weeks from the time that she moved to Arcadia until her death, she should have received ten dollars per week. It must be kept in mind that the allowance to appellee under the issues as they stood at the time the jury returned its verdict must be for services rendered and not for a *Page 468
breach of contract, and this court is suspicious, under the facts and circumstances, that the jury may have taken into consideration some improper element. By instruction No. 1, the court informed the jury that, "as to the several items for the claim for services * * * it will be your duty to determine what services were performed by the complainant for the decedent and the nature and extent of the services, and it will also be yourduty to determine whether there was any contract price," etc.
(Our italics.) The only contract that was mentioned was that contained in the second paragraph of the claim, evidence of which was given to the jury, and which evidence was not withdrawn from the jury unless it may be said to be withdrawn by the court's instruction that appellee was not entitled to recover on her second paragraph of claim for the reason that the facts would not support a verdict thereon. The only contract price mentioned in the evidence was to the effect that if appellee would move to the home of appellant's decedent and render her such service as she required, she should have all of decedent's property at her death. By the second instruction, the court includes an element of board and lodging which it does not appear by the evidence was furnished by appellee. By this instruction, the jury was instructed that if it found from the evidence that, during the period mentioned, appellee rendered services to the decedent in living with her, or nursing, boarding and caring for her, and in looking after her farm, her property and her business affairs, and that the decedent promised and intended that said claimant should be paid therefor, such promise would be sufficient to remove any presumption of gratuitous service. So far, this instruction correctly stated the law and was in harmony with the court's instruction in which the court properly charged that appellee, before she will be entitled to recover, must establish, by *Page 469
a fair preponderance of the evidence, that the alleged services, or some of them, were performed by her for the decedent; that they were performed at the instance and request of the decedent; what the value of such services were; that the decedent was to pay therefor; that they have not been paid for, or that a balance remains unpaid for such services. But such instruction proceeds to say that appellee should be entitled to recover the contractprice if any contract price was agreed upon. Again, we have the jury's attention called to the evidence concerning the agreement of the decedent that appellee should have all of her property. Under the facts and circumstances of this case, these instructions were erroneous, and the jury must have been confused thereby and led to take into consideration an improper element in assessing the amount of recovery.
The court erred in giving instruction No. 1 on its own motion by including therein the element of board furnished and the expense of moving from Detroit, Michigan, to the home of 4. decedent, for there was no evidence of such board or of the expense incurred in moving.
Appellant complains that it was error to admit proof of the value of decedent's property. At the time, however, that such evidence was admitted, the second paragraph of the claim 5, 6. was pending before the jury, and as it was averred therein that appellee was to receive all of the decedent's property at her death, the value of the same was a proper element for the jury in determining the amount of damages for the breach of the contract. Later, and when the second paragraph of complaint was withdrawn from the jury, had a proper motion been made by appellant to withdraw the evidence of the value of the property from the consideration of the jury, it would have been error for the court to overrule the motion. But no such motion *Page 470
was made and, having failed to make it, appellant waived its right to have the evidence withdrawn.
For the errors above pointed out, the judgment is reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428228/ | This is an action for damages arising out of the sale of a used automobile by appellant to appellee. Appellee's complaint is in two paragraphs, the first being based upon the theory of false representations knowingly made by appellant with intent to deceive and which were relied upon by appellee. The second paragraph is based upon an express warranty made by appellant that the automobile was in good working and mechanical condition.
Trial by jury resulted in a verdict for appellee in the sum of $650. The jury also answered certain interrogatories and stated that the damages awarded were compensatory and not punitive. From the overruling of its motion for a new trial appellant prosecutes this appeal, assigning such action as error. The grounds of the motion are: (1) the insufficiency of the evidence; (2) that the verdict is contrary to law; and (3) that the damages assessed are excessive.
The jury could have found the following facts from the evidence: Appellee owned a 1939 Pontiac automobile which he "traded in" to appellant on a 1941 Buick two-door sedan on January 9, 1948. On that day he went to appellant's place of business and talked with one of appellant's salesmen, a Mr. Curry. Curry *Page 589
put two gallons of gasoline in the Buick, and they drove four or five blocks. The car had been driven over 100,000 miles. Appellee knew something about automobiles as to driving, but not as to mechanical parts, such as transmissions and rear ends. Appellee testified that the gears sounded like they were going out of it and asked Curry if they were all right. Curry said they guarantee they were O.K. Appellee heard a growl in the transmission, but did not know if it was in the transmission or not. He asked Curry about it and Curry said, "Mr. Reynolds, I'll guarantee you it is in A-1 shape." Curry also said he would guarantee the car for 30 days. Appellee asked how long they had had the automobile and was told that they had just received it in a trade-in; that it had been a one-owner car owned by an old gentleman who lived out of town; and that it had not been driven hard. Appellee took Curry's word about the automobile and believed he was telling the truth. Appellee had no knowledge that the statements were not true, and believed the car to be in A-1 condition.
The jury, in answer to interrogatories, stated that the Buick was not in as good condition as it was represented to be by appellant, but that the officer or agent of appellant who made the representations did not know at the time of making them that the automobile was not in as good condition as was represented.
Appellee signed a printed purchase order which makes no reference to warranties or representations as to the condition of the car. In fine print the document provides: "All promises, verbal understandings or agreements of any kind pertaining to this purchase not specified herein are not binding on the seller."
That evening appellee took the car to a filling station, and when they attempted to put gasoline in the tank one side of the tank fell to the ground. The tank *Page 590
was wired up and later a new tank installed. Appellee had the oil changed in the motor and also had the grease in the rear end and transmission changed. There was heavy grease or what appeared to be 70 weight oil in the car. The grease in the transmission was heavy grease, 140 weight, and was difficult to remove. Regular weight oil and grease were put in the car, whereupon appellee could not drive the car at all because "the transmission had gone clear out of it after I changed the oil and grease in the transmission. It wasn't heavy enough to hold." Appellee had a new transmission installed. He found the undercarriage had been burned where the car had been in a Wreck. New rings were installed after appellee found that the car used four quarts of oil to every ten blocks.
The Buick had been at appellant's place of business from approximately a month to two or three months, and had been driven roughly by it. One of appellant's employees, Walter Brewer, drove it and pulled other automobiles with it. Brewer brought the car to a service station a day or two before the sale and told an attendant that the transmission was going out and he was going to put it on the lot and sell it, and he wanted heavy grease. Heavy grease, 140 weight, a truck grease, was put in it, instead of the normal weight of 90, so that it wouldn't growl so much.
The verdict in this case was general, and the judgment will not be disturbed for insufficiency of evidence if the evidence sustains either paragraph of the complaint. Ohio Finance
1. Co. v. Berry (1941), 219 Ind. 94, 37 N.E.2d 2; Union Traction Co. v. Smith (1921), 76 Ind. App. 487, 130 N.E. 813; Anthoulis v. Patiniotis (1940), 108 Ind. App. 130,27 N.E.2d 375.
Appellant urges that there were no implied warranties *Page 591
as to freedom from defects. We do not consider this proposition, inasmuch as neither paragraph of the complaint is based upon an implied warranty.
Appellant next asserts that the written purchase order did not contain any express warranties, and precludes any assertion of representations as to the fitness of the automobile.
When a contract is reduced to writing, all oral negotiations between the parties which preceded or accompanied the execution thereof, in the absence of fraud or mistake, are regarded 2-4. as merged in it, and it will be treated as the exclusive medium of ascertaining the contract between the parties. The general rule is that oral matters may not be shown if they contradict, add to or take from a written contract. McCaskeyRegister Co. v. Curfman (1910), 45 Ind. App. 297, 90 N.E. 323;Diddel v. American Security Co. (1932), 94 Ind. App. 639,161 N.E. 689. Therefore, in the absence of fraud or mistake an express warranty cannot be shown by parole evidence, where the written contract is complete in all its parts. King v. EdwardThompson Co. (1914), 56 Ind. App. 274, 104 N.E. 106; MichiganPipe Co. v. Sullivan County Water Co. (1920), 190 Ind. 14, 127 N.E. 768, 129 N.E. 5; Conant et al. v. The National State Bankof Terre Haute et al. (1889), 121 Ind. 323, 22 N.E. 250.
Where there is a charge that the written contract was procured by fraud, then such conversations as to extrinsic warranties and representations may be heard for the purpose of 5, 6. determining whether there was such fraud as invalidates the contract of sale or constitutes a cause of action for damages. Paxton-Eckman Chem. Co. v. Mundell (1916),62 Ind. App. 45, 112 N.E. 546; Tribune Co. v. Red Ball TransitCo. (1926), 84 Ind. App. 666, 151 N.E. 338, *Page 592 151 N.E. 836; Citizens National Bank v. Kerney (1915),59 Ind. App. 96, 108 N.E. 139; Marker v. Outcault Advertising Co. (1919),69 Ind. App. 344, 122 N.E. 32; 7 Blashfield, Cyc. of AutomobileLaw and Practice, § 4240.
In a case involving the sale of a stallion which had bone spavin, this court said, in Martin v. Shoub (1916),62 Ind. App. 586, 113 N.E. 384:
"If appellant made statements as to the horse's condition which he knew or should have known were false, and thus induced appellee to purchase him, relying on such statements, the effect of such fraud can not be overcome merely by a contract expressly omitting warranties. Because the fraud was so successful as to induce the buyer to take a contract without a warranty is all the more reason that there should be liability on the fraud."
The fact that the officer or agent of appellant who made the representations did not know of their falsity, does not bar appellee's recovery. As was said by our Supreme Court in 7, 8. Kirkpatrick v. Reeves et al. (1889), 121 Ind. 280, 22 N.E. 139:
"An unqualified statement that a fact exists, made for the purpose of inducing another to act upon it, implies that the person who makes it knows it to exist, and speaks from his own knowledge. If the fact does not exist, and the defendant states of his own knowledge that it does, and induces another to act upon his statement, the law will impute to him a fraudulent purpose."
See also: Williams v. Hume (1925), 83 Ind. App. 608,149 N.E. 355; Wheatcraft v. Myers (1914), 57 Ind. App. 371, 107 N.E. 81; Romine v. Thayer (1920), 74 Ind. App. 536, 128 N.E. 456; 7 Blashfield, Cyc. of Automobile Law and Practice, § 4232.
Appellant insists that the evidence shows that appellee purchased the automobile "as is"; that he knew it was defective in spite of the fact that the salesman *Page 593
said it was not, or at least had ample reason to doubt the truth of the salesman's statement. In our opinion the jury was not required to accept this as the only reasonable conclusion inferable from the evidence.
The evidence was sufficient to sustain the verdict under 9. the first paragraph of complaint, and the verdict is not contrary to law.
Appellant's only claim as to the damages being excessive is that appellee is not entitled to recover anything at all, and therefore any damages assessed are excessive. This 10. contention is disposed of by our holding as to the other specifications of the motion for new trial.
Finding no error, the judgment is affirmed.
NOTE. — Reported in 88 N.E.2d 775. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428233/ | The controlling facts herein, each established by at least some competent evidence, are substantially as follows: Prior to January 1, 1930, the State Bank of Warsaw, hereinafter referred to for brevity as the State Bank, and the Indiana Loan and Trust Company, hereinafter for brevity referred to as the Trust Company, had been operating as two separate and distinct state banking institutions in the City of Warsaw, Indiana. On that date both banks were solvent going institutions, at which time there was executed a written contract in which all of the stockholders of each of said two banks joined. This contract made provision for the unification of said two banks into one institution. This unification was accomplished; and the name of the new institution was Indiana State Bank and Trust Company, which for the sake of brevity is hereinafter referred to as the Unified *Page 688
Bank. The important provisions of the said contract provided that the capitalization of the Unified Bank should be $200,000.00 in paid-up capital stock and $25,000.00 in surplus; that the banking plant of the said State Bank was to be abandoned and the plant of the Trust Company would be used to carry on the banking business of the Unified Bank. Paragraph 11 of the said agreement provided that each of said banks was required to put into the Unified Bank $112,500.00 of the $225,000.00 Unified Bank aggregate banking capital. Said contributions were to consist of the said banking plant used and assets to be valued and approved by a joint committee named in the agreement. A sufficient amount of approved assets of each of said banks, to equal and cover their respective deposits and all other liabilities, was likewise to be selected and placed into the Unified Bank. We now quote paragraph 23 of said agreement as follows:
"All property of every kind belonging to The Bank and all property of every kind belonging to the Trust Company, which is not put into the Consolidated institution in accordance with paragraph 11," (providing the mode of making up capital, surplus and banking assets to cover liabilities) "shall become respectively the joint property of the stockholders of The Bank and the Trust Company, in proportion to their several stock interests, immediately prior to the consolidation, and shall be managed as trusts by the trust department of the consolidated institutions, in the usual way and at the usual and established compensation, and reports of such property held in trust shall be rendered to each of such stockholders from time to time by the consolidated institution."
Provision was also made in the said agreement authorizing the committee named therein to take the necessary steps either to form a new corporation or to amend the charter of the Trust Company so as to *Page 689
bring the said union into legal being at the time the agreement was to be consummated. The committee was granted full power to carry the provisions of the agreement to a completion, and was to have power to arrange and determine the details of procedure where no specific provision was made in the agreement, and to meet any contingency that might arise. As paragraph 24 of the said agreement has some relation to the matter under consideration, we now set it forth as follows:
"24. Taxes under either Federal or State laws, on account of property owned or business done, prior to January 1, 1930, by The Bank and by the Trust Company shall be the obligations of the respective stockholders of these corporations in proportion to their several stockholding interests on January 1, 1930, immediately prior to the consummation of the merger. Primarily such taxes shall be paid by the trust department of the consolidated institution and it shall be entitled to immediate reimbursement from the funds of the respective trusts described in paragraph 23. If funds for that purpose are not available from said respective trustee, then each such stockholder hereby promises to pay his proportionate shares on demand, and on failure so to do, the amount with interest at the prevailing rate shall be a lien on his interest in the consolidated institution, and shall be deducted from his next ensuing dividend."
In carrying out its powers, the committee caused the name of the Trust Company to be changed and the capital stock to be increased from one thousand shares of common stock of the par value of $100.00 each to two thousand shares of common stock of the par value of $100.00 each, and made the required exchange of stock certificates to all former stockholders of the two institutions who were issued stock proportionate to *Page 690
their holdings in the respective banks. In carrying out the agreement, each bank duly delivered to the Unified Bank approved assets to cover its portion of the capital structure of the Unified Bank, to wit, $112,500.00, together with other sufficient approved assets to cover the deposits and liabilities of each, all of which assets were placed upon the books of the Unified Bank pursuant to such agreement.
Each bank had assets which, at the time of the unification, were not needed for use to form its respective portion of said new capital structure and to cover completely its respective deposits and other liabilities. During the trial of this cause, these remaining assets were called and referred to as overplus. This so-called overplus was treated as in the nature of a dividend in kind, declared by the stockholders of each institution and held in trust by the Unified Bank for them respectively under the provisions of paragraph 23, above quoted.
There was a record made by the committee of these so-called dividends in kind of the Trust Company. This record was lost or destroyed and not produced at the trial, but there was oral evidence from a member of the committee that such said so-called dividend in kind was made up substantially of the items of property listed and set forth in the petitioner's amended petition and consisted of specifically described real estate and choses in action and the like. These overplus assets were carried on the statement of the Unified Bank as a trust fund and dealt with by it as a trust account for the benefit of the shareholders of the Trust Company and of the State Bank respectively, the evidences of debts being filed in separate portfolios. There was some evidence that meticulous care was not exercised entirely in the segregation, but that in the main there *Page 691
was substantial segregation. The overplus account in the Trust Company (the one under consideration herein) consisted of choses in action, promissory notes, certificates of deposit, and five separate parcels of real estate which the Trust Company owned at the time of the unification. There never was any formal conveyance of this real estate to the Unified Bank as Trustee, but the title continued in the name of the Trust Company. It appears from the evidence that the trust ledger items were not accurately described; and the principal evidence of identification at the trial consisted of personal recollection of the officers of the Trust Company and of the Unified Bank, who were actively in contact with the said items both before and after the unification. At no time were any of the assets, which were segregated into the trust fund as provided by said section 23 of the contract, carried as assets of the Unified Bank other than in its trust capacity, except in a few instances where exchanges and transfers from one to the other were made. The evidence also shows that from time to time some questionable items of debts due to the Trust Company would be charged off as worthless. In some instances these items that were charged off would later be paid, and the cash so taken in would be treated as if it were a time deposit made by a stranger to the transaction, except that certificates of deposit would be issued on the same.
A year or more after the unification was completed and the Unified Bank was functioning as such, it was discovered that certain items which were passed on by the joint committee as acceptable for the Unified Bank were questionable as sound assets; and in the overplus there were discovered good sound assets. Without any authority of the beneficiaries of the trust and over the objection of some of the members of the Board of *Page 692
Directors of the Unified Bank, which objections were on the ground that the items in the trust funds could not be interchanged for items in the Unified Bank, as accepted by the joint committee, certain officers and directors of the Unified Bank substituted or interchanged certain questionable assets contained in the assets of the Unified Bank for certain sound items in the trust funds, placing the latter on the books of and among the Unified Bank's assets and the former among the trust assets, which would thenceforth be carried as trust property for the respective shareholders. It was also shown by the evidence that, in effecting the segregation of the overplus trust fund from the assets transferred to the Unified Bank, occasion would arise where some assets would be "split," that is to say, a part of the said assets would be retained in the trust fund and a part passed on to the Unified Bank. When collections were made on such items, the Unified Bank would take all of the collections thereon until its share or part was liquidated, and the balance left over would be credited on the liquidation of the trust assets in the overplus account. Two trust records were set up, one in favor of the stockholders of the State Bank and one in favor of the stockholders of the Trust Company; one of said trust records being kept by one of the employees of the Unified Bank and the other record being kept by another employee of the Unified Bank.
Some two years after the unification was completed, a resolution was adopted by the directors of the Unified Bank directing specified officers to prepare and execute trust certificates for each of the shareholders of the State Bank and of the Trust Company, respectively, evidencing their respective interest in the two funds. It does not appear that such certificates were ever delivered to any of such stockholders of the Trust Company, *Page 693
although such certificates were prepared. The Unified Bank functioned as a banking institution from on or about January 1, 1930, until the latter part of December, 1932, at which time it was taken over by the then State Banking Commissioner; and in January, 1933, said Unified Bank, on the application of the commissioner, was adjudicated insolvent by the Kosciusko Circuit Court, and the appellant was appointed as its receiver. The appellant duly qualified as such receiver and has been acting as such since that time.
The appellees filed the petition which is the basis of this action in said receivership proceedings as stockholders of the Trust Company, for themselves and all other stockholders thereof similarly situated, to have a trust declared of said overplus items in the Trust Company, and for the appointment of a trustee thereof, it being alleged in said petition that the receiver had declined to recognize the integrity of the said trust fund and had used some of the assets therein in conducting the said receivership. This petition was later amended, setting forth in detail the names and holdings of the various stockholders of the Trust Company, and setting forth the said procedure of reorganization and unification, and the contract under which such unification was completed, and likewise, setting forth the specific items that were originally segregated into the trust account for the benefit of the Trust Company's shareholders, and praying that all items of the trust so enumerated should be declared as a special trust deposit and held for the use and benefit of the Trust Company's shareholders, and not otherwise, and that a trustee be appointed to accept and administer the same, and for an accounting. To this petition the appellant filed an answer in general denial, after which the cause *Page 694
was submitted to the court for trial without the intervention of a jury.
The trial court found for the petitioners. The finding was, in effect, that the prayer of the petitioners should prevail, and that the appellant had acquired possession of substantially all of the property described in the petition as a trust estate and subject to said trust, and not otherwise. The finding then detailed the property by items, the detail of which we need not set out. The court further found that a trustee should be appointed for such trust property, and that the appellant should be required to deliver unto said trustee all of said items described in the finding, and that the appellant should on or before July 1, 1939, file a full and complete report of not only what he has done as such receiver, but of each and every act of the Unified Bank as a going bank with relation to said trust fund. It was further found that William S. Rogers should be appointed as trustee, and that he should file bond in the sum of $50,000.00, with surety to the approval of the court, and that he should qualify as such trustee on or before July 31, 1939, and that he be empowered to accept said trust estate and to administer the same as provided in said written agreement heretofore mentioned, and that the appellant should deliver and transfer unto said trustee all of the said trust estate. The record shows that the said Rogers qualified as such trustee. The judgment followed the finding.
In due time, the appellant filed a motion for new trial upon the following causes or grounds:
1. That the court erred in granting the intervening petitioners herein a change of venue.
2. That the court erred in overruling the motion of the appellant to strike out said intervening petition. *Page 695
3. That the decision of the court is not sustained by sufficient evidence.
4. That the decision of the court is contrary to law.
The appellant in his brief has abandoned the first two causes in the motion for new trial, heretofore set out, by a failure to present the same in his brief. No further consideration 1. will be given these two causes. The said third and fourth causes of the motion for new trial are the only ones attempted to be presented by the appellant.
The appellant, in support of his assignment of error, presents and argues three propositions, as follows:
"First: That the stockholders of the Indiana Loan and Trust Company (Trust Company) could not by any arrangement between themselves withdraw a part of the assets and capital of the corporation, and provide for its distribution among themselves to the injury of the creditors of the corporation."
"Secondly: That the burden of proof as to the existence of a trust rests on the party who alleges it and the burden of identifying the trust property in a satisfactory manner, and the items thereof rests on the party seeking to establish the trust. This requirement has not been met by the Appellee."
"Third: At most, the Appellees are only entitled to an undivided share jointly with the stockholders of the State Bank of the withdrawn assets."
With reference to the last proposition, it seems entirely clear that the agreement, under which the two banks were unified into the Unified Bank, established clearly that the overplus in 2. each of said banks was to be kept in separate trusts and be administered separately for the respective stockholders in each bank. If there could be any ambiguity in the *Page 696
language of said paragraph 23, which made such provisions, this ambiguity was cleared up by the acts of the parties themselves. There was an abundance of evidence before the trial court upon which it could conclude that these trusts were entirely separate. We therefore find no merit in the said third proposition of the appellant. In the case of Central Pharmacal Co. v. Salb
(1939), 106 Ind. App. 495, 503, 13 N.E.2d 875, this court said: "It is proper for the parties to a contract to place a practical construction upon it which the courts will recognize and follow where it is legally possible to do so." The court there cites several Indiana cases to that point.
The appellees concede that the first sentence of the appellant's Proposition 2 is a correct abstract statement of law, but takes issue with the last sentence as to this 3. requirement not having been met by the appellees. It is true that the evidence as to the specific items of the alleged trust might have been clearer if the written record of these items of property made by the committee had been produced at the trial. It was shown, however, that this record was either lost or destroyed and could not be produced, and accordingly oral evidence of one member of the committee was heard identifying substantially the items of the property listed in the petitioner's amended petition. We think the trial court was justified in concluding that there was a sufficient identification of the trust res. This identification was complete enough so that the trial court had no apparent difficulty in enumerating said items in its finding. When the trust res is set up, if perchance there may be some item or items that get into the inventory that do not belong there, the law affords an ample remedy for their removal from the inventory. *Page 697
It is also to be remembered that the written agreement which is the basis of the trust herein contended for, was executed by all of the stockholders of each of the two banks involved and 4. ratified by the board of directors of each of said banks. With reference to the five parcels of real estate, it may be said that these parcels were never transferred to the Unified Bank but always remained in the name of the Trust Company. While it is true that there has been no conveyance of said five items of real estate from the Trust Company, it has always been the law that where a declaration of trust is made, however informal, for the benefit of designated beneficiaries, realty embraced in the declaration vests in the trustee although there be no formal conveyance thereof. See Richards v. Wilson (1916),185 Ind. 335, 112 N.E. 780; Nesbitt v. Stevens (1903), 161 Ind. 519, 69 N.E. 256; Kintner v. Jones (1890), 122 Ind. 148, 23 N.E. 701. See also Ransdel v. Moore (1899), 153 Ind. 393, 53 N.E. 767, in which many of the cases of this country and of England are collected, sustaining the above proposition.
The appellees also concede that the appellant's first proposition is correct as an abstract proposition of law, but say that the evidence overwhelmingly shows that it is not 5. applicable to the instant case. It is to be noted in this connection that when the two banks decided to unite, the evidence shows that both were solvent going institutions and that after the Unified Bank was organized on or about January 1, 1930, it continued as a solvent going banking institution for almost three years thereafter, and that the evidence failed to show that at the time of the unification, there was any forewarning or portent as to what was later to happen in the banking world. *Page 698
We doubt the propriety and the legal right of the appellant at this time to question the unification of the banks, it being remembered that he is a receiver now of the Unified Bank. To question this unification, he would in a sense be impeaching his own title and status as receiver, and besides we think that nothing has been presented by the appellant to show that the unification was either unfair or illegal.
The record is such as to warrant the trial court in concluding that the unification of the two banks was fully accomplished and in entire good faith, and acted upon by all of the interested parties for almost three years. We think the court was correct in its conclusion that the said appellant has no rights in the trust property involved herein. The plan of setting up the two trusts and keeping them separate is to be commended. In our opinion it was the best way of carrying out the said contract between the parties.
Upon the record as a whole, we conclude that the trial court was amply justified in reaching the conclusion it reached. The court, therefore, did not err in overruling the appellant's motion for new trial, and the judgment is therefore affirmed.
NOTE. — Reported in 38 N.E.2d 900. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247129/ | William Alsup, United States District Judge
INTRODUCTION
In these challenges to the government's rescission of the Deferred Action for Childhood Arrivals program, the government moves to dismiss plaintiffs' complaints for failure to state a claim. For the reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART .
STATEMENT
This order incorporates the statement set forth in the order dated January 9, 2018, largely denying dismissal under FRCP 12(b)(1) and largely granting plaintiffs' motion for provisional relief (Dkt. No. 234). This order, however, addresses a separate motion by the government to dismiss all claims for failure to state a claim for relief under FRCP 12(b)(6). This order sustains three claims for relief but finds that the rest fall short.
ANALYSIS
1. APA CLAIMS UNDER 5 U.S.C. § 706(2)(A).
For the same reasons that plaintiffs are likely to succeed on their claim that the rescission of DACA was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in violation of the Administrative Procedure Act, as explained in the January 9 order, the government's motion to dismiss plaintiffs' APA claims under 5 U.S.C. § 706(2)(A) is DENIED .
2. APA CLAIMS UNDER 5 U.S.C. § 706(2)(D).
The original DACA program began in 2012 without any notice or opportunity for public comment. Likewise, the rescission in question ended DACA without notice or opportunity for public comment. One issue now presented is whether the rescission is invalid for having been carried out without notice-and-comment procedures.
Under the APA, an agency action must be set aside if it was done "without observance of procedure required by law." 5 U.S.C. § 706(2)(D). An agency is required to follow prescribed notice-and-comment procedures before promulgating certain rules. 5 U.S.C. § 553. The Regulatory Flexibility Act further requires that notice-and-comment *1309rulemaking include an assessment of the impact on small entities. 5 U.S.C. § 604(a). These requirements do not apply, however, to general statements of policy. 5 U.S.C. § 553(b)(A).
A general statement of policy "advis[es] the public prospectively of the manner in which the agency proposes to exercise a discretionary power." Mada-Luna v. Fitzpatrick , 813 F.2d 1006, 1012-13 (9th Cir. 1987). Such policies also "serve to educate and provide direction to the agency's personnel in the field, who are required to implement its policies and exercise its discretionary power in specific cases." Id. at 1013 (quotes and citations omitted). "The critical factor" in determining whether a directive constitutes a general statement of policy is "the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case." Ibid. Thus, to qualify as a statement of policy two requirements must be satisfied: (1) the policy operates only prospectively, and (2) the policy does "not establish a binding norm," and is not "finally determinative of the issues or rights to which [it] address[es]," but instead leaves officials "free to consider the individual facts in the various cases that arise." Id. at 1014 (quotes and citations omitted). Under this standard, the rescission memorandum is a general statement of policy.
This order rejects plaintiffs' contention that the rescission could only be done through notice and comment. For the same reasons that the promulgation of DACA needed no notice and comment, its rescission needed no notice and comment.
Almost this exact problem was addressed in Mada-Luna . There, our court of appeals held that the repeal of an INS policy under which applicants could seek deferred action was not subject to notice and comment. It rejected the argument that the repeal could not constitute a general statement of policy because it diminished the likelihood of receiving deferred action for a class of individuals. Id. at 1016. Rather, because the original policy allowed for discretion and failed to establish a "binding norm," the repeal of that policy also did not require notice and comment. Id. at 1017. So too here. The DACA program allowed but did not require the agency to grant deferred action, and upon separate application, travel authorization, on a case-by-case basis at the agency's discretion. Therefore, neither its promulgation nor its rescission required notice and comment.
Parco v. Morris , 426 F.Supp. 976 (E.D. Pa. 1977), on which plaintiffs heavily rely, does not warrant the conclusion that the rescission policy is a substantive rule. Parco also addressed whether the rescission of an INS policy required notice and comment. Notably, the government in Parco stipulated that the policy's precipitous rescission was the sole reason for denial of the plaintiff's application for immigration relief. Id. at 984. The district court determined that the repeal therefore left no discretion, explaining that "discretion" was stripped of all meaning where "one contends that under a certain regulation 'discretion' was exercised favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in each such case." Ibid. Here, by contrast, plaintiffs do not allege that all deferred action applications under DACA were approved but now, after the rescission, all requests for deferred action will be denied.
Plaintiffs argue that the rescission memorandum is more than a policy because it creates a blanket prohibition against granting deferred action to DACA applicants. Plaintiffs are correct that the rescission policy contains mandatory language on its face. It is also true that the rescission *1310memorandum categorically eliminates advance parole for DACA recipients. This comes closer to resembling a substantive rule. However, it remains the case that because the original promulgation of the discretionary program did not require notice and comment, a return to the status quo ante also does not require notice and comment. Mada-Luna , 813 F.2d at 1017.
Defendants' motion to dismiss plaintiffs' claims pursuant to Section 706(2)(D) of the APA and the Regulatory Flexibility Act is accordingly GRANTED .
3. DUE PROCESS CLAIMS .
To assert a due process claim, a plaintiff must first show that he or she has an interest in liberty or property protected by the Constitution. See Bd. of Regents v. Roth , 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Plaintiffs fail to make the threshold showing that they have a protected interest in the continuation of DACA and, accordingly, their due process claims based on the rescission must be dismissed. Plaintiffs have adequately alleged, however, that the agency's changes to its information-sharing policy are "fundamentally unfair."
A. Deferred Action.
Because discretionary immigration relief "is a privilege created by Congress, denial of such relief cannot violate a substantive interest protected by the Due Process clause." Munoz v. Ashcroft , 339 F.3d 950, 954 (9th Cir. 2003) (citing INS v. Yang , 519 U.S. 26, 30, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996) ). Moreover, "aliens have no fundamental right to discretionary relief from removal" for purposes of due process. Tovar-Landin v. Ashcroft , 361 F.3d 1164, 1167 (9th Cir. 2004). Our court of appeals has accordingly held there is no protected interest in temporary parole, since such relief is "entirely within the discretion of the Attorney General." Kwai Fun Wong v. United States , 373 F.3d 952, 967-68 (9th Cir. 2004). Nor did an INS policy which allowed the agency to recommend deferred action as "an act of administrative choice" create substantive liberty interests. Romeiro de Silva v. Smith , 773 F.2d 1021, 1024 (9th Cir. 1985). These authorities foreclose any argument that plaintiffs have a protected interest in continued deferred action or advance parole under DACA.1
Plaintiffs reply that even absent a protected interest in the initial, discretionary grant of deferred action, there is a protected interest in the renewal of DACA and its associated benefits. Yet a benefit is not a "protected entitlement" where "government officials may grant or deny it in their discretion." Castle Rock v. Gonzales , 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). Rather, an individual has a protected property right in public benefits where the rules conferring those benefits "greatly restrict the discretion" of the people who administer them. Nozzi v. Hous. Auth. of City of Los Angeles , 806 F.3d 1178, 1191 (9th Cir. 2015). Plaintiffs' authorities confirm that the same principle applies in the context of renewing or retaining existing benefits. Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz. , 24 F.3d 56, 64 (9th Cir. 1994) ; Stauch v. City of Columbia Heights , 212 F.3d 425, 430 (8th Cir. 2000). No such limitations on agency discretion are alleged to have applied under DACA. Rather, the USCIS DACA FAQs referenced by plaintiffs in their complaints make clear that "USCIS retain[ed] the ultimate discretion to determine whether deferred action *1311[was] appropriate in any given case even if the guidelines [were] met" (Garcia Compl. ¶ 24 n.16; Santa Clara Compl. ¶ 58; UC Compl., Exh. B; State Compl., Exh. E).
Next, plaintiffs argue that once DACA status was conferred, and recipients organized their lives in reliance on the program's protections and benefits, they developed interests protected by the Constitution. Plaintiffs' authorities, however, stand only for the uncontroversial proposition that once in possession of a particular benefit, the alteration, revocation or suspension of that benefit may implicate due process.2 Such a principle has no application where, as here, extant benefits are not impacted by a change in policy. Indeed, there is no dispute that the rescission acts only prospectively. That is, all existing DACA recipients will receive deferred action through the end of their two-year terms. What they will not receive, if the rescission endures, will be DACA renewal, thereafter. For this reason, Ixcot v. Holder , 646 F.3d 1202 (9th Cir. 2011), and Arevalo v. Ashcroft , 344 F.3d 1 (1st Cir. 2003), which addressed whether amendments to the INA were impermissibly retroactive, do not compel a different result.
Plaintiffs contend that the government's communications with plaintiffs regarding renewals, its operation of the program, and the public promises of government officials "together created an understanding that DACA recipients were entitled to the continued benefits of the program so long as they met the renewal criteria" (Dkt. No. 205 at 29). Plaintiffs are correct, of course, that claims of entitlement can be defined by "rules or mutually explicit understandings." Perry v. Sindermann , 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Importantly, however, a person's belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a protected right if that belief is not mutually held by the government. Gerhart v. Lake Cty., Mont. , 637 F.3d 1013, 1020 (9th Cir. 2011). An agency's past practice of generally granting a government benefit is also insufficient to establish a legal entitlement. Ibid.
This order empathizes with those DACA recipients who have built their lives around the expectation that DACA, and its associated benefits, would continue to be available to them if they played by the rules. That expectation, however, remains insufficient to give rise to a constitutional claim under the Fifth Amendment. Because plaintiffs have failed to allege facts demonstrating a protected interest in DACA's continuation or the renewal of benefits thereunder, defendants' motion to dismiss plaintiffs' due process claims based on the rescission must be GRANTED .
B. Information-Sharing Policy.
Plaintiffs fare better with their substantive due process claim that DHS allegedly changed its policy with respect to the personal information provided by DACA recipients during the application process. Plaintiffs allege that the government repeatedly represented that information provided by DACA applicants would not be used for immigration enforcement purposes absent special circumstances, and that DACA recipients relied on these promises in submitting the extensive personal information needed to meet the program's requirements.
Defendants insist that the agency's information-sharing policy remains unchanged.
*1312On a motion to dismiss, however, the well-pled factual allegations in a complaint must be accepted as true. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Plaintiffs have clearly alleged that DHS changed its information-sharing policy such that now, rather than affirmatively protecting DACA recipients' information from disclosure, the government will only refrain from "proactively" providing their information for purposes of immigration enforcement proceedings (Garcia Compl. ¶ 126; Santa Clara Compl. ¶ 58; State Compl. ¶ 122).
Plaintiffs have also adequately alleged a "mutually explicit understanding" giving rise to a protected interest in the confidentiality of DACA recipients' personal information. They allege that throughout DACA's existence, DHS made affirmative representations as to how this information would (and would not) be used. The policy stated (Garcia Compl. ¶ 126; Santa Clara Compl. ¶ 58; State Compl. ¶ 121 (citing USCIS DACA FAQs) ):
Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS' Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.
The language contained in the policy's caveat, that it could "be modified, superseded, or rescinded at any time," is ambiguous. One reading advanced by the government is that this caveat allows the agency to change how it treats information already received from DACA applicants. Another reading, however, is that it simply allows the government to change its policy in connection with future applicants. Secretary of Homeland Security Jeh Johnson's December 2016 letter to United States Representative Judy Chu supports the later reading. He stated that, "[s]ince DACA was announced in 2012, DHS has consistently made clear that information provided by applicants ... will not later be used for immigration enforcement purposes except where it is independently determined that a case involves a national security or public safety threat, criminal activity, fraud, or limited other circumstances where issuance of a notice to appear is required by law" (Garcia Compl. ¶¶ 36-37; State Compl. ¶ 98, Exh. F). This ambiguity presents a question of fact that cannot be resolved on the pleadings.
Taken as true at this stage, as must be done on a FRCP 12(b)(6) motion, plaintiffs' allegations regarding the government's broken promise as to how DACA recipients' personal information will be used-and its potentially profound consequences-"shock[s] the conscience and offend[s] the community's sense of fair play and decency." Marsh v. County of San Diego , 680 F.3d 1148, 1154 (9th Cir. 2012)
*1313(quotes and citations omitted). Defendants' motion to dismiss plaintiffs' due process claims based on changes to the government's information-use policy is DENIED .
4. EQUITABLE ESTOPPEL .
Plaintiffs bring claims for equitable estoppel, arguing that the government should not be permitted to terminate DACA or use the information collected from applicants for immigration enforcement purposes.
Defendants first contend that plaintiffs' equitable estoppel claims fail because there is no recognized claim for relief based on estoppel. The Supreme Court has refused to adopt, however, "a flat rule that estoppel may not in any circumstances run against the Government," noting that "the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government." Heckler v. Cmty. Health Servs. of Crawford Cty., Inc. , 467 U.S. 51, 60-61, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984). Moreover, our court of appeals has addressed such claims on the merits, and has held that the government may be subject to equitable estoppel if it has engaged in "affirmative misconduct." Watkins v. U.S. Army , 875 F.2d 699, 706-07 (9th Cir. 1989).
To state an equitable estoppel claim against the government, a party must show (1) that the government engaged in "affirmative conduct going beyond mere negligence"; and (2) "the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage" if the requested relief is granted. Id. at 707. "Neither the failure to inform an individual of his or her legal rights nor the negligent provision of misinformation constitute affirmative misconduct." Sulit v. Schiltgen , 213 F.3d 449, 454 (9th Cir. 2000). Moreover, our court of appeals has defined "affirmative misconduct" to mean a "deliberate lie" or "a pattern of false promises." Socop-Gonzalez v. I.N.S. , 272 F.3d 1176, 1184 (9th Cir. 2001). The allegations in the complaints fail to meet this standard, inasmuch as no affirmative instances of misrepresentation or concealment have been plausibly alleged.
Plaintiffs are correct that estoppel "does not require that the government intend to mislead a party," Watkins , 875 F.2d at 707, but plaintiffs fail to explain how contradictory policies under two different administrations add up to "affirmative misconduct beyond mere negligence."
Plaintiffs fail to allege, for example, that the government's past statements regarding DACA's legality were a "deliberate lie" or more than mere negligence. Nor have plaintiffs pleaded that the alleged change in the agency's information-use policy was the result of an affirmative misrepresentation. Rather, they have merely alleged a change in policy. Under plaintiffs' theory new administrations would almost never be able to change prior policies because someone could always assert reliance upon the old policy. Defendants' motion to dismiss plaintiffs' equitable estoppel claims is GRANTED .
5. EQUAL PROTECTION CLAIMS .
To state an equal protection claim plaintiffs must show that the rescission was motivated by a discriminatory purpose. Arce v. Douglas , 793 F.3d 968, 977 (2015) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 265-66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ). Determining whether discrimination is a motivating factor "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be *1314available." Arlington Heights , 429 U.S. at 266, 97 S.Ct. 555. A plaintiff need not show that the discriminatory purpose was the sole purpose of the challenged action, but only that it was a "motivating factor." Ibid. In analyzing whether a facially-neutral policy was motivated by a discriminatory purpose, district courts must consider factors such as whether the policy creates a disparate impact, the historical background and sequence of events leading up to the decision, and any relevant legislative or administrative history. Id. at 266-68, 97 S.Ct. 555.3
First, Individual Plaintiffs and Santa Clara clearly allege that the rescission had a disproportionate impact on Latinos and Mexican nationals. Indeed, such individuals account for 93 percent of DACA recipients (Garcia Compl. ¶¶ 100, 151; Santa Clara Compl. ¶¶ 9, 75). Defendants reply that this disparate impact is an accident of geography, not evidence of discrimination. True, a disparate impact of a facially-neutral rule, standing alone, cannot establish discriminatory intent. See Washington v. Davis , 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Individual Plaintiffs and Santa Clara, however, have alleged a discriminatory impact only as a starting point. They also allege a history of bias leading up to the rescission of DACA in the form of campaign statements and other public comments by President Trump, as next discussed.4
Second , plaintiffs allege that President Trump has, on multiple occasions since he announced his presidential campaign, expressed racial animus towards Latinos and Mexicans. When President Trump announced his candidacy on June 16, 2015, for example, he characterized Mexicans as criminals, rapists, and "people that have lots of problems." Three days later, President Trump tweeted that "[d]ruggies, drug dealers, rapists and killers are coming across the southern border," and asked, "When will the U.S. get smart and stop this travesty?" During the first Republican presidential debate, President Trump claimed that the Mexican government "send[s] the bad ones over because they don't want to pay for them." And in August 2017, he referred to undocumented immigrants as "animals" who are responsible for "the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, MS 13" (Garcia Compl. ¶¶ 102-13, 124; Santa Clara Compl. ¶¶ 75-76).
Circumstantial evidence of intent, including statements by a decisionmaker, may be considered in evaluating whether government action was motivated by a discriminatory purpose. Arlington Heights , 429 U.S. at 266-68, 97 S.Ct. 555. These statements were not about the rescission (which came later) but they still have relevance to show racial animus against people south of our border.
*1315Should campaign rhetoric be admissible to undermine later agency action by the victors? This order recognizes that such admissibility can readily lead to mischief in challenging the policies of a new administration. We should proceed with caution and give wide berth to the democratic process. Yet are clear cut indications of racial prejudice on the campaign trail to be forgotten altogether?
Our court of appeals recently confirmed that "evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims." Washington v. Trump , 847 F.3d 1151, 1167 (9th Cir. 2017). Washington found that President Trump's statements regarding a "Muslim ban" raised "serious allegations and presented significant constitutional questions," although it ultimately reserved consideration of plaintiffs' equal protection claim. Id. at 1167-68. Citing to Washington , at least two district courts have since considered President Trump's campaign statements in finding a likelihood of success on Establishment Clause claims. See, e.g. , Aziz v. Trump , 234 F.Supp.3d 724, 736 (E.D. Va. 2017) (Judge Leonie Brinkema); Hawai'i v. Trump , 245 F.Supp.3d 1227, 1236 (D. Haw. 2017) (Judge Derrick Watson). This order will follow these decisions and hold that, at least at the pleading stage, campaign rhetoric so closely tied to the challenged executive action is admissible to show racial animus.
Third , a final consideration is the unusual history behind the rescission. DACA received reaffirmation by the agency as recently as three months before the rescission, only to be hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality). This strange about-face, done at lightning speed, suggests that the normal care and consideration within the agency was bypassed (Garcia Compl. ¶ 154; Santa Clara Compl. ¶¶ 8, 77).
That President Trump has at other times shown support for DACA recipients cannot wipe the slate clean as a matter of law at the pleading stage. Although the government argues that these allegations fail to suggest that the Acting Secretary (as the purported decisionmaker) terminated DACA due to racial animus, plaintiffs have alleged that it was President Trump himself who, in line with his campaign rhetoric, directed the decision to end the program (Garcia Compl. ¶¶ 11, 124; Santa Clara Compl. ¶ 21).
Construed in the light most favorable to plaintiffs, as must be done at the pleading stage, these allegations raise a plausible inference that racial animus towards Mexicans and Latinos was a motivating factor in the decision to end DACA. The fact-intensive inquiry needed to determine whether defendants acted with discriminatory intent cannot be made on the pleadings. Accordingly, defendants' motion to dismiss Santa Clara's and Individual Plaintiffs' equal protection claims must be DENIED .
State Plaintiffs allege an equal protection claim on the alternative theory that the rescission "violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and further their education" (State Compl. ¶¶ 172-77). Plaintiffs do not respond to the government's arguments that this theory fails to state a claim under FRCP 12(b)(6). Defendants' motion to dismiss State Plaintiffs' equal protection claim is accordingly GRANTED .
6. DECLARATORY RELIEF .
Defendants move to dismiss the Individual Plaintiffs' claim for declaratory relief. Individual Plaintiffs' request for declaratory *1316relief is also contained in their prayer for relief and, accordingly, the standalone claim is superfluous. Defendants' motion to dismiss this claim is GRANTED .
CONCLUSION
Consistent with the foregoing, defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART as follows:
• Plaintiffs' APA claims are sustained, except for the following: Garcia Complaint-Fifth Claim for Relief; UC Complaint-Second Claim for Relief; State Complaint-Second Claim for Relief; San Jose Complaint-Second Claim for Relief.
• Plaintiffs' Regulatory Flexibility Act claims are dismissed.
• Plaintiffs' due process claims are sustained, except for the following: UC Complaint-Third Claim for Relief; Garcia Complaint-First Claim for Relief (to the extent based on the rescission); Santa Clara Complaint-First Claim for Relief (to the extent based on the rescission).
• Plaintiffs' equal protection claims are sustained, except for the following: State Complaint-Sixth Claim for Relief; San Jose Complaint-First Claim for Relief.
• Plaintiffs' equitable estoppel claims are dismissed.
• Individual Plaintiffs' declaratory relief claim is dismissed.
Plaintiffs may seek leave to amend and will have 21 CALENDAR DAYS from the date of this order to file motions, noticed on the normal 35-day track, seeking leave to amend solely as to the claims dismissed above. Proposed amended complaints must be appended to each motion and plaintiffs must plead their best case. Any such motion should clearly explain how the amendments to the complaints cure the deficiencies identified herein and should include as an exhibit a redlined or highlighted version of the complaints identifying all changes.
CERTIFICATION UNDER 28 U.S.C. § 1292(b)
The district court hereby certifies for interlocutory appeal the issues of whether (i) President Trump's campaign statements are properly considered in evaluating plaintiffs' equal protection claims, (ii) whether the Individual Plaintiffs' and County of Santa Clara's allegations as pleaded state an equal protection claim, (iii) whether plaintiffs' allegations concerning changes to the government's information-sharing policy state a due process claim; (iv) whether plaintiffs have failed to state a claim under 5 U.S.C. § 553 ; and (v) whether plaintiffs have failed to state a due process claim based on the rescission of DACA. This order finds that these are controlling questions of law as to which there is substantial ground for difference of opinion and that their resolution by the court of appeals will materially advance the litigation.
IT IS SO ORDERED.
Plaintiffs' attempt to distinguish Romeiro de Silva on the ground that the INS policy there involved "unfettered discretion," whereas the exercise of prosecutorial discretion under DACA was guided by standard operating procedures, is unconvincing.
See Bell v. Burson , 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) ; Gallo v. U.S. Dist. Court For Dist. of Arizona , 349 F.3d 1169, 1179 (9th Cir. 2003) ; Medina v. U.S. Dep't of Homeland Sec. , 2017 WL 5176720, at *9 (W.D. Wash. Nov. 8, 2017).
The Supreme Court's decision in United States v. Armstrong , 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), which addressed the showing necessary for a defendant to be entitled to discovery on a selective-prosecution claim, has no application here. Plaintiffs' claims cannot fairly be characterized as selective-prosecution claims because they do not "implicate the Attorney General's prosecutorial discretion-that is, in this context, his discretion to choose to deport one person rather than another among those who are illegally in the country." Kwai Fun Wong , 373 F.3d at 970. Rather, plaintiffs allege that the agency's decision to end a nationwide deferred action program was motivated by racial animus towards a protected class.
The City of San Jose's equal protection claim falls a little short. Rather than alleging a disparate impact on a protected class, it alleges only that "[d]efendants' actions target individuals for discriminatory treatment based on their national origin, without lawful justification" (San Jose Compl. ¶ 54). For this reason, defendants' motion to dismiss San Jose's equal protection claim is Granted . | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7247130/ | Defendant Humana Insurance Company ("Defendant" or "Humana") has filed a Motion to Dismiss the Plaintiffs Prime Healthcare Services, Inc. et al.'s1 ("Plaintiffs")
*1318Fourth Amended Complaint ("4AC"). (Doc. No. 83.) Plaintiffs filed their Opposition on February 26, 2018 (Doc. No. 84) and Defendant filed its Reply on March 5, 2018 (Doc. No. 85).
On March 14, 2018, Plaintiffs filed a Motion for Leave to File a Sur-Reply to Defendants' Reply. (Doc. No. 86.)
The Court determined Defendants' Motion to be appropriate for resolution without oral argument pursuant to Local Rule 7-15 and vacated the hearing originally set for March 19, 2018. (Doc. No. 87.) After considering all papers filed in support of and in opposition to Defendant's Motion, the Court rules as follows.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. THE MEDICARE ACT
The Medicare Act (hereinafter, the "Act" or "Medicare") was enacted in 1965 as a federal health insurance program primarily benefitting those 65 years of age and older. See 42 U.S.C. §§ 1395 et seq. Courts in this district have noted that the Act has been described as "among the most completely impenetrable texts within human experience," requiring "dense reading of the most tortuous kind." See Prime Healthcare Huntington Beach, LLC v. SCAN Health Plan, 210 F.Supp.3d 1225, 1227 (C.D. Cal. Sept. 27, 2016) (citing Rehab. Ass'n of Virginia, Inc. v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994) ).
This case concerns Part C of the Medicare Act, enacted in 1997 and creating the Medicare Advantage ("MA") program. 42 U.S.C. §§ 1395w-21 - 29. Under Part C, Medicare enrollees can receive Medicare benefits through private organizations called Medicare Advantage Organizations (individually "MAO," or collectively "MAOs") instead of the government. Id. The government pays MAOs monthly fees in exchange for assuming the risk of providing covered services to enrollees. 42 U.S.C. § 1395w-23. The amount that MAOs receive per enrollee is based on contracts with the Centers for Medicare and Medicaid Services ("CMS"), an agency within the Department of Health and Human Services. SCAN Health, 210 F.Supp.3d at 1226-27 (citing 42 U.S.C. § 1395w-27 ).
MAOs contract with certain health care providers to provide Medicare services. SCAN Health, 210 F.Supp.3d at 1226-27 (citing 42 U.S.C. § 1395w-22(d)(1) ). MAOs also must provide coverage for emergency services without regard to the emergency care provider's contractual relationship with the MAO, however. Id. MAOs reimburse non-contracting providers who provide these emergency services based on rates set by the Medicare Act and related regulations. SCAN Health, 210 F.Supp.3d at 1227-28. Payment amounts due to a non-contracted emergency provider are limited to what "the provider would collect if the beneficiary were enrolled in original Medicare." 42 C.F.R. § 422.214(a). Conversely, contracting providers, who enter into signed agreements with MAOs, may "establish[ ] payment amounts for services furnished to a beneficiary enrolled in an MA coordinated care plan, an MSA plan, or an MA private fee-for-service plan" even above the Medicare cap. See 42 C.F.R. § 422.214. 42 U.S.C. § 405(h), made applicable to the Medicare Act by 42 U.S.C. § 1395ii, provides that 42 U.S.C. § 405(g) is "the sole avenue for judicial review" for claims " 'arising under' the Medicare Act." Heckler v. Ringer, 466 U.S. 602, 614-15, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984).
In 2003, Congress amended Part C's preemption provision to read as follows:
*1319The standards established under this part shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to MA plans which are offered by MA organizations under this part.
Do Sung Uhm v. Humana, Inc., 620 F.3d 1134, 1148 (9th Cir. 2010) (quoting 42 U.S.C. § 1395w-26(b)(3) ). "The Conference Report accompanying the Act explains that ... Congress intended to broaden the preemptive effects of the Medicare statutory regime." Id. (citing H.R. Rep. No. 108-491, at 447 (2003) (Conf. Rep.) ).
B. FACTUAL BACKGROUND
Plaintiff Prime Healthcare Services, Inc. owns and operates hospitals throughout the country, including the 17 plaintiff-hospitals in this case. (4AC ¶¶ 4-20.) Defendant is a health insurance company and a MAO. (Id. ¶¶ 22, 28-19.)
Plaintiffs and Defendant entered into a series of Letters of Agreement (individually "LOA," and collectively "LOAs")2 under which Plaintiffs agreed to provide hospital services to Defendant's Medicare Advantage health plan members ("MA Members"). (Id. ¶ 29.)
Plaintiffs maintain that from January 1, 2012 through February 29, 2016, Defendant underpaid and failed to pay for emergency and other health care services that Plaintiffs provided to Defendants' commercial health plan members ("CP Members") and MA health plan members. (Id. ¶¶ 1, 32.) Plaintiffs allege Defendant achieved such underpayment by unilaterally, systematically altering codes related to the medical services for which Plaintiffs had billed Defendant, and replacing those codes with codes pertaining to lower-cost services or procedures ("downcoding"). (Id. ) Such billing manipulation allegedly resulted in reduction of payments for the actual services provided by Plaintiffs to Defendant's CP Members and MA Members. (Id. ¶¶ 1, 33) Plaintiffs further allege that Defendant "failed to properly pay Plaintiffs for the inpatient services rendered to Defendants' health plan members at the appropriate inpatient rates" and that "Defendants were improperly recouping their payments for Plaintiffs' services in breach of the aforementioned contracts. (Id. ¶¶ 1, 35.)
As a result of the alleged billing manipulations, Plaintiffs contend that they have been damaged in an amount not less than $75,000, exclusive of interest. (Id. ¶ 37.)
C. PROCEDURAL HISTORY
Plaintiffs initiated this action on May 25, 2016 (Doc. No. 1) and filed the First Amended Complaint ("FAC") on August 32, 2016 (Doc. No. 19). The FAC contains the following six claims: (1) breach of written contract; (2) breach of oral contract; (3) breach of implied-in-fact contract; (4) breach of implied covenant of good faith and fair dealing; (5) negligent misrepresentation; and (6) violation of California Unfair Competition Law ("UCL"), Bus. & Prof. Code § 17200. (FAC at 9-14.) On September 14, 2016, Defendant filed its Motion to Dismiss the FAC (Doc. No. 22), which the Court granted on November 4, 2016 (Doc. No. 30).
Plaintiff filed their Second Amended Complaint ("SAC") on November 18, 2016, re-alleging the same claims as those contained in the FAC. (Doc. No. 31.) On December 2, 2016, Defendants filed a Motion to Dismiss the SAC, which the Court *1320granted on January 27, 2017 (Doc. No. 43). In its Order, the Court, the Hon. Beverly Reid O'Connell presiding, found that Plaintiffs' MA claims arose under the Medicare Act, and that the Court could only exercise jurisdiction over the MA claims if Plaintiffs adequately pleaded exhaustion of the Medicare Act's requirements. (Doc. No. 43 at 10-11.)
Plaintiff filed their Third Amended Complaint ("TAC") on February 13, 2017, re-alleging the following claims: (1) breach of oral contract; (2) breach of implied-in-fact contract; (3) negligent misrepresentation; and (4) violation of the UCL. (Doc. No. 45.) On February 27, 2017, Defendant moved to dismiss the negligent misrepresentation claim in the TAC, which the Court granted on April 7, 2017 (Doc. No. 50).
On December 18, 2018, the parties filed a Stipulation for Leave to File a Fourth Amended Complaint. (Doc. No. 78.) In the Stipulation, Plaintiffs indicated that new evidence demonstrates their claims are not subject to an exhaustion requirement under Medicare laws or regulations. (Id. at 2.) The Court approved the Stipulation on January 10, 2018, and as a result, the 4AC was deemed filed as of January 8, 2018. (Doc. No. 81.) Plaintiffs add the allegation that they "have appealed the claims and either exhausted their administrative remedies (if any), or Defendants have refused to act on appeals, making the process futile" (4AC ¶ 35), and assert the following claims in the 4AC: (1) breach of written contract; (2) breach of oral contract; (3) breach of implied-in-fact contract; (4) breach of the covenant of good faith and fair dealing; and (5) violation of the UCL. (Id. at 12-16.)
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to bring a motion to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6) is read along with Rule 8(a), which requires a short, plain statement upon which a pleading shows entitlement to relief. Fed. R. Civ. P. 8(a)(2) ; Bell Atl. Corp. v Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When evaluating a Rule 12(b)(6) motion, a court must accept all material allegations in the complaint-as well as any reasonable inferences to be drawn from them-as true and construe them in the light most favorable to the non-moving party. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). "The court need not accept as true, however, allegations that contradict facts that may be judicially noticed by the court." Schwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). Rather, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id.
To survive a motion to dismiss, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ; Ashcroft v. Iqbal, 556 U.S. 662, 697, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.' " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ).
*1321The Ninth Circuit has clarified that (1) a complaint must "contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively" and (2) "the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
III. DISCUSSION
Defendant moves to dismiss the 4AC on the grounds that the Medicare Act preempts all of Plaintiffs' claims. (Doc. No. 83-1 at 5.) The Act provides, in relevant part, that its standards "shall supersede any State law or regulation ... with respect to the MA plans which are offered by MA organizations. 42 U.S.C. § 1395w-26(b)(3) (effective Dec. 8, 2003); see also 42 C.F.R. § 422.402 (2005). Defendants point out that this Court has already found that Plaintiffs' breach of written contract claim to be "inextricably intertwined with a claim for Medicare benefits, and as such, arises under Medicare." (Doc. No. 83-1 at 14 (citing Prime Healthcare Servs. Inc. v. Humana Ins. Co., Case No. CV 16-01097-BRO (JEMx), 2016 WL 6591768, at *10 (C.D. Cal. Nov. 4, 2016).) Defendants argue that all of Plaintiffs' claims in the 4AC are likewise inextricably intertwined with a claim for Medicare Benefits, and therefore, are preempted. (Id. at 14-15.) Plaintiffs raise one main point in their Opposition-they contend that because neither the Act nor CMS regulations "set[ ] the standards for payment terms and disputes [between MAOs and contracted providers], state law applies." (Doc. No. 84 at 17.) "Since there are no administrative remedies available to contracted providers to address disputes over payment under their contracts," and "if state law does not apply, then Humana can breach its contracts with providers with impunity because providers will have no avenue to address any such breach." (Id. (emphasis in original).)
The Court again agrees with Defendant's position that Plaintiffs' claims are "inextricably intertwined" with claims for Medicare benefits, thus arise under the Medicare Act, and are subject to preemption. See Heckler, 466 U.S. at 624, 104 S.Ct. 2013 (2004). This conclusion is not altered by Plaintiffs' additional allegations regarding the futility of administrative exhaustion, as state law claims are not the proper mechanism by which to obtain relief for their Medicare claims. The weight of controlling authority-most notably the Ninth Circuit's decision in Uhm v. Humana Health Insurance Company, 620 F.3d 1134 (9th Cir. 2010) and the district courts that have interpreted and applied Uhm-support Defendants' position. The authorities cited by Plaintiffs are either outdated, inapplicable, or non-binding.3
*1322In Uhm, the Ninth Circuit found that state law claims similar to those raised by Plaintiffs here were preempted by the Act. 620 F.3d at 1148-1158. The Uhm panel's reasoning applies to all of Plaintiffs' state law claims in this case. In each LOA, each plaintiff-hospital agreed to "comply with all Medicare and other federal health care program laws, regulations and program instructions that apply to the service furnished to the Members including the Medicare Advantage Provisions Attachment to this Agreement." (Defendant's RJN, Declaration of Daniel M. Glassman, Doc. No. 83-2, Exs. A-N.)4 Plaintiffs' allegations regarding downcoding or underpayment thus require analysis of the Medicare Advantage Provisions Attachments and the relevant provisions of the Act itself that define the Medicare rate for the provided service. As Defendant points out, these provisions include: 42 U.S.C. § 1394l (t), which defines Medicare allowable rates for outpatient hospital services; 42 U.S.C. § 1395ww, which defines Medicare allowable rates for inpatient hospital services; and 42 U.S.C. § 1394w-22(k), which requires non-contracting providers to accept from the MAO the amount the provider could collect from the Medicare program if the member was not enrolled in the MAO. (See Doc. No. 83-1 at 13.) Indeed, the Act, which sets forth the reimbursement standards and rates for MA members, governs all of Plaintiffs' claims alleged in the 4AC. Other district courts confronting similar scenarios have found Rule 12(b)(6) dismissal appropriate. See, e.g., Shakespeare v. SCAN Health Plan, Inc., Case No. 3:17-CV-568-BTM-MDD, 2018 WL 340422, at *6 (S.D. Cal. Jan. 8, 2018) ("in order to determine Plaintiff's tort claims, the Court would necessarily need to determine whether Plaintiff was entitled to the Watchman Device in the first place, a decision that is governed by detailed CMS standards ... As such, Plaintiff's claims are preempted"); Phillips v. Kaiser Foundation Health Plan, 953 F.Supp.2d 1078, 1090 (N.D. Cal. 2011) (UCL claims preempted). Accordingly, this Court follows their reasoning and finds that Plaintiffs have failed to state any claims upon which relief can be granted.5
IV. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant's Motion. Plaintiffs shall have one final opportunity to amend their complaint and must do so by no later than April 16, 2018. Furthermore, as the Court VACATES the April 16, 2018 hearing on Plaintiffs' Motion for Leave to File a Sur-Reply.
IT IS SO ORDERED.
The Plaintiffs are: (1) Alvarado Hospital LLC dba Alvarado Hospital Medical Center; (2) Veritas Health Services, Inc. dba Chino Valley Medical Center; (3) Desert Valley Hospital, Inc. dba Desert Valley Hospital; (4) Prime Healthcare Services-Garden Grove, LLC dba Garden Grove Hospital & Medical Center; (5) Prime Healthcare Huntington Beach, LLC dba Huntington Beach Hospital; (6) Prime Healthcare Services-La Palma, LLC dba La Palma Intercommunity Hospital; (7) Prime Healthcare Services-Montclair, LLC dba Montclair Hospital Medical Center; (8) Prime Healthcare Paradise Valley, LLC dba Paradise Valley Hospital; (9) Prime Healthcare Services-San Dimas, LLC dba San Dimas Community Hospital; (10) Prime Healthcare Services-Shasta, LLC dba Shasta Regional Medical Center; (11) Prime Healthcare Services-Sherman Oaks, LLC dba Sherman Oaks Hospital; (12) Prime Healthcare Anaheim, LLC dba West Anaheim Medical Center; (13) Prime Healthcare Services-North Vista, LLC dba North Vista Hospital; (14) Prime Healthcare Services-Reno, LLC dba Saint Mary's Regional Medical Center; (15) Prime Healthcare Services-St. Mary's Passaic, LLC dba St. Mary's General Hospital; (16) Prime Healthcare Services-Garden City, LLC dba Garden City Hospital; (17) Prime Healthcare Services-Pampa Regional Medical Center, LLC dba Pampa Regional Medical Center; and, (18) Prime Healthcare Foundation, Inc.
Defendant has requested that the Court take judicial notice of all LOAs between itself and the plaintiff-hospitals. As the Court had previously taken judicial notice of the LOAs in connection with ruling on Defendants' first motion to dismiss (see Doc. No. 43 at 3), the Court again GRANTS Defendants' request.
Despite the Court's finding in its earlier order that "Plaintiffs' reliance on [Rencare, Ltd v. Humana Health Plan of Texas, Inc. 395 F.3d 555 (5th Cir. 2004) ] is inapposite; the case is not binding on the Court, its reasoning is based on a former Medicare statutory framework, and it has been rejected by the SCAN Health court in view of the Ninth Circuit's conclusion in Kaiser that Medicare reimbursement to providers should also be considered, broadly speaking, a 'claim for benefits' (Doc. No. 30 at 10-11), Plaintiffs again cite to Rencare in their Opposition. Furthermore, Plaintiffs cite to the earlier version of the Uhm v. Humana decision that was later withdrawn by the Ninth Circuit following its grant of re-hearing in the case. (See Doc. No. 84 at 20 (citing Uhm v. Humana Health Plan Inc., 540 F.3d 980 (9th Cir. 2008).) Plaintiffs subsequently filed a Motion for Leave to File a Sur-Reply, set the hearing for April 16, 2018, and apologized for the mis-citation. (Doc. No.86.) The Court has reviewed the proposed sur-reply, which consists of one paragraph re-hashing an argument contained in the Opposition brief. Thus, although the sur-reply will be deemed filed, the Court finds that it does not alter the determination that Plaintiffs' claims are preempted. Thus, the Court VACATES the April 16, 2018 hearing on Plaintiffs' Motion.
For this reason, the Court rejects Plaintiffs' argument that state law governs the LOAs. Each plaintiff-hospital explicitly agreed to comply with the Medicare Act.
The Court rejects Plaintiffs' baseless assertion that the Court need not consider Defendants' Motion as it relates to the fourth and fifth claims because "[i]f a party wishes to dispose of allegations contained within a claim, they must bring a motion to strike." (Doc. No. 84 at 26.) Defendants' Motion was proper under Rule 12(b)(6). | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4260888/ | Fourth Court of Appeals
San Antonio, Texas
March 29, 2018
No. 04-18-00003-CR
Christine RUSSELL,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 11-0695-CR
Honorable William Old, Judge Presiding
ORDER
On February 8, 2018, the court reporter responsible for preparing the record in this case
filed a notification of late record, indicating that the appellant had failed to designate the
reporter’s record and had failed to pay the reporter’s record fee or to make arrangements for
preparing the reporter’s record. On February 9, 2018, we ordered the appellant to provide written
proof that she had filed a designation of record with the court reporter, and either had paid the
reporter’s record fee, had made arrangements to pay the reporter’s record fee, or was entitled to
appeal without paying the reporter’s record fee. We further ordered that if the appellant failed to
respond within the time provided, the appellant’s brief would be due within thirty days of the
date of our order.
Further review of the clerk’s record shows that the appellant’s court-appointed counsel
was permitted to withdraw from this case on January 2, 2018, and no counsel was appointed in
his place. On March 27, 2018, Gregory Sherwood filed a notice of appearance as appellant’s
court-appointed counsel on appeal. Mr. Sherwood filed a copy of the trial court’s March 26,
2018 order appointing him as the appellant’s counsel. In its order, the trial court found that
appellant is “too poor to employ counsel” for her appeal. Mr. Sherwood also filed a copy of a
request to the court reporter designating the reporter’s record on appeal.
The appellant was without the benefit of counsel at the time we issued our February 9,
2018 order. We, therefore, WITHDRAW the portion of our February 9, 2018 order stating that
the appellant’s brief would due in the absence of proof that she had filed a designation of record
within fourteen days of this order.
Additionally, in light of the trial court’s March 26, 2018 finding that the appellant is too
poor to appoint counsel in this appeal, we conclude that the appellant is entitled to appeal
without paying the filing fee for the reporter’s record. We ORDER the court reporter to file the
reporter’s record on or before April 27, 2018. The appellant’s brief will be due thirty days after
the reporter’s record is filed.
_________________________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 29th day of March, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court | 01-03-2023 | 04-04-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3428206/ | The appellant brought this action against the appellees to recover the possession of certain real estate owned by her.
The complaint alleges that the appellees leased the real estate for a period of one month beginning December 15, 1937, which tenancy expired on January 15, 1938. The complaint charges that the appellees have unlawfully held possession of said premises since said date. To this complaint an answer in general denial was filed. The case was submitted to the court for trial, and the court, after hearing the evidence, found for the appellees and against the appellant on her complaint. Judgment was entered accordingly. A motion for new trial was filed and overruled, and this appeal has been perfected. The only error assigned on appeal is the alleged error in overruling the appellant's motion for a new trial. Under this assignment, the appellant challenged the sufficiency of the evidence to sustain the decision.
A review of the evidence discloses that the appellees, in October, 1937, purchased from a former tenant the household furnishings with which a rooming house was being operated on the leased premises. At that time the appellees leased the property from the agent of the owner under a contract to pay $40.00 a month for the same with heat and water furnished. No definite term was fixed for this lease and nothing was said as to the time for the payment of the monthly rental. About a week after the appellees entered into possession of the leased premises, the heating plant became defective and no heat was furnished for some time. The appellees paid to the former tenant $19.98 in payment of rent until November 15th, 1937. The rent beginning November *Page 59
15th was paid by a check of $25.00 and a credit of $25.00 for lack of heat was allowed, in discharge of the rent to December 15th. On December 15th a payment of $25.00 was made, and on January 14th or 15th another $25.00 was paid.
The appellant received a deed to the premises in question on January 20th, 1938, and this suit was instituted on the 31st day of January, 1938.
The appellant contends that the evidence conclusively established a contract which created a tenancy from month to month with rent payable in advance. The appellant further contends that failure to pay the rent on January 15, 1938, operated to terminate the tenancy, and no notice to quit was necessary.
We cannot say, as a matter of law, that the evidence conclusively establishes the facts on which the appellant bases her contention. The evidence is in conflict as to the 1. length of the tenancy agreed upon between the parties, and it is also in conflict as to the stipulation that rent was to be paid in advance. The burden was upon the appellant to establish these facts, in order to dispense with the necessity of written notice to terminate the lease. Our statute provides that:
"Where the landlord agrees with the tenant to rent the premises to him for a specified period of time; or where the time for the determination of the tenancy is specified in the contract; or where a tenant at will commits waste; or in the case of a tenant at sufferance; or where, by the express terms of the contract, the rent is to be paid in advance, and the tenant has entered and refuses or neglects to pay the rent; and, in any case, where the relation of landlord and tenant does not exist — no notice to quit shall be necessary." § 3-1620, Burns' 1933. *Page 60
It is our opinion that the evidence in this case is insufficient to conclusively establish any one of the above statutory provisions which renders unnecessary the service 2. of a notice to quit. In the absence of such proof, no reversible error was committed in overruling the appellant's motion for a new trial. Finding no reversible error, the judgment of the trial court is affirmed.
Judgment affirmed.
NOTE. — Reported in 40 N.E.2d 387. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428212/ | The appellants petitioned the Public Service Commission for authority to discontinue the operation of a train serving miners living in Terre Haute who work at a mine located in Vigo County.
Appellants alleged in their petition that the train serves miners exclusively and that it does not serve the *Page 3
general public; that the operation results in great and unreasonable financial loss; that only a small percentage of the miners employed in the mine in question use the train; that there are improved public highways affording convenient routes of travel to the mine; that there is not sufficient public necessity to justify the operation of the train; and that neither the public nor the operation of the railroad will be injuriously affected by the discontinuance of the train.
Evidence was heard by the commission and the petition was denied.
This action was begun in the court below seeking to set aside and enjoin the enforcement of the commission's order and ruling on the ground that the same is unreasonable and unlawful. There was a trial at which a transcript of the evidence taken before the commission and the commission's order was the only evidence offered. There was judgment for the defendants.
Error is assigned upon the overruling of a motion for a new trial, which is upon the ground that the decision of the court is not sustained by sufficient evidence and is contrary to law.
The commission found that the petitioner had failed to show that the expense incurred in the operation of the miners' train in 1938 was $9,756.19, and that the petitioner had suffered a loss of $7,283.69 in the operation as alleged, and found that the petitioner should immediately effect economies in the operation of the train, and that the discontinuance of the train will not be in the public interest. The evidence of expense was largely theoretical, based on averages as shown by experience. The train crew expense included hours of service far in excess of the actual hours spent in operating the train. It was shown that all of the miners using the train used monthly commutation tickets; that there *Page 4
was an annual expense of $420 per year for ticket sellers; $475 per year was expended for a coach cleaner, who cleans the old-style coaches used; and $280 per year for a fire builder to build fire in the stoves in the coaches. Fuel was charged for at $4.00 per ton which cost $2.10 per ton. A special engine and crew were always used to pull the two coaches, although coal cars, empty and loaded, were pulled to and from the mine. The appellants' superintendent testified that it was not good practice to haul the cars in a coal train, but no reasons or facts were given to sustain this view.
The appellants contend that the train did not serve the general public, but only one class of the public, that is, miners working at a particular mine. But the service is none the less a 1, 2. public service, rendered under a public franchise. The train has been operated for a long period of years. The appellants contend that the evidence shows adequate means of transportation to the mine without the train, but this may be doubted. There is a good automobile highway part of the way, but it may be reasonably concluded from the evidence that for a considerable distance the highway is difficult and sometimes impractical. There is also evidence that many of the miners did not have motor vehicles or the means of procuring them.
The fact, if it had been clearly shown, that the train was operated at a loss does not alone necessarily require the commission to consent to its discontinuance. In N.Y.
3. Central Railroad Co. v. Pub. Service Com. et al. (1937), 212 Ind. 329, 336, 337, 7 N.E.2d 957, 960, we said regarding profitable or non-profitable operation of a given service: "This is only one element of the case. The railroad company possessed the power of eminent domain. It condemned property and brought its line across the country wherever *Page 5
and whenever it chose. Having been granted that authority by the Legislature, it owed to the public the reciprocal right of service. It was not only its privilege to make a profit from its operation, but it owed a duty of service to each community through which it passed. It is a matter of common knowledge that some communities are more profitable to the company than others, depending on population and business enterprises. Not all persons or corporations engaged in business in the commercial world, or operating a public utility, are able to realize a profit from each item of business. Merchants sometimes carry a line of goods, unprofitable as to that particular line, but necessary to accommodate customers. A railroad company operating through a community, enjoying the rights of eminent domain, should be more responsible to the community than a concern engaged in private commercial lines of business." There was no effort to show that the appellants' operation in the community, or in the state, or in its whole system, was unprofitable so that isolated operations at a loss might amount to confiscation.
The Public Service Commission is vested with discretion in requiring service. We said in Public Service Commission et al.
v. City of LaPorte et al. (1935), 207 Ind. 462, 466, 467, 4. 193 N.E. 668, 670: "Courts will recognize that the commissioners are selected with a view to their special qualifications, knowledge, training, and experience pertinent to the subject-matter committed to their administration, and that different inferences may be reasonably drawn from given facts; that rates and regulations cannot be fixed with exactness. The power of the commission is not so limited that it is required in its orders to reach the same result that the court would reach under the same circumstances." *Page 6
The train serves the miners. The mine at which the men work serves the community with fuel. It also seems to furnish tonnage, and, consequently, revenue to the appellant railroad. The 5. commission seems to have believed that the train had not been operated economically. It may have disagreed with the opinion of the superintendent as to the propriety of hauling coal cars in the miners' train. It may have believed that the operation of an engine out of the Terre Haute yards, a six-mile shorter distance, would be less expensive than from West Clinton. It cannot be said as a matter of law that the order of the commission upon the evidence and lack of evidence is so unreasonable as to be unlawful.
Judgment affirmed.
NOTE. — Reported in 46 N.E.2d 230. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428154/ | The defendant was indicted, tried, and convicted of the crime of sodomy as defined by section 10-4221 Burns' Ind. St. 1933, section 2603 Baldwin's Ind. St. 1934. The indictment is in the language of the statute and charges the crime as therein defined. *Page 320
Sodomy is a crime the meaning of which is well known, and, as many courts have stated, its nature is too disgusting to be further defined.
This court has held many times that an indictment charging a crime in the language of the statute is sufficient. Further, it is held in Glover v. State (1913), 179 Ind. 459, 101 1, 2. N.E. 629, 45 L.R.A. (N.S.) 473, that particularity is not required in a charge of this nature (page 461):
"But by reason of the vile and degrading nature of this crime it has always been an exception to the strict rules requiring great particularity and nice certainty in criminal pleading, both at common law and where crimes are wholly statutory. It has never been the usual practice to describe the particular manner or the details of the commission of the act and where the offense is statutory a statement of it in the language of the statute, or so plainly that its nature may be easily understood, is all that is required."
It clearly appears that the appellant could not have been misled as to the nature of the offense charged. The indictment is sufficient as against a motion to quash.
Appellant asserts that the verdict of the jury is contrary to law and is not sustained by sufficient evidence. It is the position of appellant that the crime charged is intended to be brought within the first sentence of the statute defining sodomy: "Whoever commits the abominable and detestable crime against nature with mankind or beast . . ." The principal position taken by appellant is that the testimony of the prosecuting witness did not bring the case within the quoted clause of the statute, for the reason that she was a female 23 years of age, and the crime could not be committed in the manner testified to by her, and, therefore, the evidence fails to establish a crime, or the guilt of the appellant. In this contention the appellant is without support. Much of the testimony and language used in appellant's brief is *Page 321
too vile and obscene to be recorded in the reports of this court. It is proper to say that the degrading detailed description fully sustains the verdict and judgment. Glover v. State, supra;Talbot v. Meyer (1915), 183 Ind. 585, 588, 109 N.E. 841.
The appellant asserts that the court erred in refusing to give his tendered instruction No. 2. The instruction was properly denied for the reason that its construction of the sodomy 3. statute is too narrow, in that it asserts that that statute could be violated only by the commission of the abominable and detestable crime therein described between human beings of the same sex. This is not the law. A woman is included under the term "mankind." 38 C.J. 958, Notes 2 and 3; 58 C.J. 787, 788;Lewis v. State (1896), 36 Tex. Cr. 37, 35 S.W. 372, 61 Am. St. Rep. 831; State v. Guerin (1915), 51 Mont. 250, 152 P. 747; State v. Murry (1914), 136 La. 253, 259, 66 So. 963.
The acts established by the proof in this case fully justify the verdict of the jury and the broad definition of sodomy as defined by many authorities, which includes an act known to 4. the law as "cunnilingus." 58 C.J. 788, Note, 7; Young v. State (1924), 194 Ind. 221, 141 N.E. 309.
The foregoing statement and the authorities cited disapprove appellant's tendered instruction No. 10, upon the same grounds that instruction No. 2 was disapproved.
The appellant filed a motion to suppress certain evidence obtained in a search of the defendant's room at the time he was arrested upon the charge herein, and evidence as to 5, 6. conversations with the defendant while he was under arrest. Concerning the evidence asked to be suppressed, it should be sufficient to say that the articles desired to be suppressed as evidence were not named or identified as exhibits. This *Page 322
motion was made prior to the beginning of the trial upon evidence heard by the court in the absence of the jury. It is disclosed that the officers were armed with a warrant for the arrest of the appellant. The search of his room in the Claypool Hotel followed the arrest, and was only an incident thereto. It is unnecessary, under those circumstances, that the officers be armed with a search warrant. As far as the record discloses the officers had reasonable and probable cause for believing that a felony had been committed by the person arrested. The appellant's constitutional rights were not invaded by the search of his room. If evidence was discovered bearing upon the charge against the appellant, it would be proper evidence. Pettit v. State
(1935), 207 Ind. 478, 188 N.E. 784; Hanger v. State (1928),199 Ind. 727, 160 N.E. 449; Hart v. State (1924),195 Ind. 384, 145 N.E. 492; Williams v. State (1929), 201 Ind. 175,166 N.E. 663; Wishmire v. State (1925), 196 Ind. 104,147 N.E. 278; Chappelle v. State (1925), 196 Ind. 640,149 N.E. 163.
There was no error in overruling the appellant's motion for a directed verdict at the conclusion of the state's evidence. To have sustained such motion would have been error under the facts in this case.
The foregoing comment with reference to the introduction in evidence of exhibits applies equally to state's Exhibits 9, 10, and 11. These exhibits were used by the witness Rae in making certain scientific tests concerning which he testified. This was proper. Deal v. State (1895), 140 Ind. 354, 39 N.E. 930.
State's Exhibit No. 12 was a letter written by the appellant to a Miss Bolin who was present and occupied the room with the appellant in the Claypool Hotel at the time the offense is 7. alleged to have been committed. The appellant makes reference to the prosecuting witness in that letter. It also serves to *Page 323
identify him. Miss Bolin identified certain other writings as those of the appellant. It was proper to introduce the exhibit upon the ground stated. Bush v. State (1920), 189 Ind. 467, 128 N.E. 443; Davidson v. State (1933), 205 Ind. 564,187 N.E. 376; Jacoby v. State (1937), 212 Ind. 465,8 N.E.2d 978.
The state's Exhibits Nos. 13, 14, 15, and 16 were properly introduced in evidence as being in explanation of Exhibit No. 9.
The appellant's objections as a whole are built around and based upon a narrow definition of sodomy as given by some courts, but the better reasoning will be found in the authorities which give to that word a broader construction. If the appellant were right in his contention that sodomy can be committed only between persons of the same sex, then he would be entitled to a release. Holding, as this court does, that the term includes a number of relations described in 58 C.J., supra, and other authorities, the appellant is without any foundation for a demand for a reversal of this cause.
Other questions arising in the course of the trial are discussed by appellant. It is charged that the prosecuting attorney was guilty of misconduct in repeating certain 8. questions, but no showing is made that the defendant objected at the time and requested the submission of the cause to be set aside, nor has he brought the facts sufficiently before the court to present any question. Questions concerning the admissibility of certain evidence are discussed. An examination discloses that objections made are without merit.
A careful study of the record and the appellant's brief convinces the court that no reversible error is shown in this appeal. Therefore, the judgment of the lower court is affirmed.
Roll, J., absent. *Page 324 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428158/ | This action was begun by Conrad and Lizzie Hitzemann against the appellant and the appellee Ona Olds, his wife. The complaint was filed in April, 1935, and alleges that on or about the first day of February, 1929, the plaintiffs were indebted to divers persons who threatened suit against them; that they employed Hugh B. Olds, a practicing lawyer, as their attorney, and that he continued to represent them for several years thereafter; that they placed great reliance in him as their counselor and adviser in regard to their business affairs; that the plaintiffs had been residents of Allen County for 64 and 62 years, respectively; that they had been engaged in the occupations of farming and housewife; that they had only a rudimentary education and were ignorant of the law; that on the 19th day of February, 1932, Mr. Olds procured them to sign a deed for certain described real estate to a bank as trustee, and at the same time procured them to execute an agreement with the bank as trustee, by the terms of which the bank agreed to hold the legal title to the real estate conveyed by the deed for Hugh B. Olds, and to convey the property to, and account for the proceeds of the property to, him, or to such other person as he might designate; that there was a clause in the trust agreement to the effect that Hugh B. Olds had paid in full the consideration for the conveyance. It is further alleged that in fact Mr. Olds paid no consideration for the real estate, either at the time of the conveyance or afterward; that on the 24th day of *Page 304
January, 1934, he procured the bank to execute a deed conveying the real estate to Hugh B. Olds and Ona Olds, his wife; that thereafter, on the 26th day of January, 1934, Hugh B. Olds and Ona Olds filed a complaint against the Hitzemanns in the Superior Court of Allen County, seeking to eject the said Hitzemanns from the premises and to recover possession of the real estate; that in connection therewith the said Hugh B. Olds filed an affidavit that he and his wife were the owners of the real estate and entitled to immediate possession; that pursuant to this proceeding the Hitzemanns were removed from the premises. It is alleged that at the time of this action in ejectment the Hitzemanns were without funds to defend themselves, were ignorant of their rights, and did not appear and defend said action; that they were defaulted, and that the Olds procured a judgment and possession of the property; that in fact Hugh B. Olds paid no consideration for the real estate, but procured the deed to the bank and the trust agreement by representing that he would hold the real estate for the Hitzemanns and they would continue to be the owners and remain in possession thereof; that the conveyance to the bank and the trust agreement were procured for the sole purpose of defrauding plaintiffs of their real estate; that they had great confidence in their attorney, and executed the instruments only because of his false representations that as soon as he procured a settlement of their legal difficulties he would cause said real estate to be reconveyed to them. It is alleged that the reasonable value of the real estate as of the 26th day of January, 1934, was $8,000; that the reasonable rental value thereof on said date was $500. There was prayer for judgment in the sum of $10,000 and for all other proper relief. *Page 305
The defendant, Hugh B. Olds, demurred to this complaint upon the ground that the action sued upon in plaintiffs' complaint had been finally adjudicated and determined in the action in ejectment referred to in the complaint. The demurrer was overruled. There was a trial, and special findings of facts in which the court found that there was a consideration for the conveyance consisting of an agreement to pay mortgages and liens upon the property and the satisfaction of claims of Mr. Olds for money advanced and for attorney fees; that these items amounted to $4,809.80; that the fair market value of the real estate on the date of the conveyance was $6,000; that the defendant Olds had profited unfairly in the transaction in the sum of $1,190.20, and there was judgment for this amount.
Error is assigned upon the overruling of a demurrer and the overruling of a motion for a new trial, and in the conclusions of law.
It is generally said that transactions between an attorney and client are presumed to be fraudulent, so that the attorney has the burden of proving the fairness and honesty thereof. 1. This is upon the theory that an attorney is a fiduciary, and that during the continuance of the relationship of attorney and client a confidence is reposed in the attorney, which may be abused to the disadvantage of the client, and hence, if the client complains that a transaction was unfair and inequitable, the attorney has the burden of proving that it was fair and honest.
". . . when a transaction with, or transfer to, an attorney is regarded as unfair or constructively fraudulent the client has the right to avoid the same either by an affirmative suit 2-6. in equity to set the same aside, or by asserting the fraud or *Page 306
confidential relationship in defense to any attempt by the attorney to enforce his rights under the transaction. If the client does not make timely application, however, he may be barred from obtaining relief by the equitable doctrine of laches or by the statute of limitations; and a client who, with full information, has acquiesced in or ratified a transaction with, or transfer to, his attorney cannot thereafter avoid the same. Delay or laches will not, however, preclude the client from defending on the ground of confidential relationship at any time during the period the attorney can enforce his rights under the transfer or transaction. Moreover, it has been said that the defense of laches based on mere delay is not favored in suits to set aside such transactions; and mere delay does not amount to laches which will preclude the client from setting the transaction aside where there was nothing to arouse the suspicions of the client or move him to action.
"The client's right to avoid the transaction may often be conditioned upon the client's restoration of the status quo, or payment of the fees and disbursements of the attorney." 7 7. C.J.S. § 127(d), Attorney and Client, pp. 968, 969.
"The rule requiring the attorney to establish the fairness and honesty of the transaction does not apply where the attorney has openly assumed an attitude hostile to the client, before 8. the transaction was entered into, so that thereafter the parties are put at arm's length and the client could not possibly have been acting under the influence of the confidence which he had reposed in the attorney." 7 C.J.S. § 127(b), Attorney and Client, p. 967.
The complaint is upon the theory of express fraud and misrepresentation as to the purpose and effect of *Page 307
the conveyances and the complete lack of consideration 9-13. for the conveyances. But it alleges that the appellant and Ona Olds, his wife, began an action in which they asserted ownership of the land in question, and by their assertions in this action, filed in 1934, there could be no misunderstanding or mistake or misrepresentation as to the interest they claimed in the land. The Hitzemanns were served with summons, but defaulted. They were then in possession of the land, and had been since the deed was made. Their default in that action cannot be charged to the fraud or misrepresentation of Mr. Olds, since he was not acting as their attorney in that action. The judgment in that action is not void, and if the default was taken through their mistake or excusable neglect, relief may be had only by a statutory proceeding for relief from the judgment. It cannot be collaterally attacked. The facts which are asserted in the complaint in the case at bar might have been proven as a defense to the suit in ejectment. All legal and equitable defenses are provable under the general denial, and any state of facts which would invoke the aid of equity for relief against the claim of title put forward would be a defense. East v. Peden
(1886), 108 Ind. 92, 8 N.E. 722. It is firmly settled that resjudicata embraces not only what was actually determined, but every matter which the parties might have litigated in the cause. The judgment in the former action is conclusive and bars a subsequent action if an opportunity was presented to litigate the entire subject-matter in the former action. Jarboe v. Severinet al. (1887), 112 Ind. 572, 14 N.E. 490; Burrell v. Jean etal. (1925), 196 Ind. 187, 146 N.E. 754. When a party is sued he must make all the defenses he has, and as to such defenses, whether plead or not, the judgment is conclusive. Reichert v. *Page 308 McCool, et al. (1931), 92 Ind. App. 406, 169 N.E. 86, 170 N.E. 84.
The injury of which the Hitzemanns complain was not accomplished by the deed and contract. They were still in possession of their land, and their possession was 14, 15. notice to the world of their claims to ownership and right to possession. Mishawaka St. Joseph Loan Trust Co. et al. v. Neu, Guardian, et al. (1936),209 Ind. 433, 196 N.E. 85. The deeds were merely a cloud upon their title. So long as they held possession, they had the right to assert the fraud upon them and their equitable rights as against any one seeking to assert ownership or gain possession by virtue of the deeds. The Olds asserted their title and right to possession in an action in a lawfully constituted public tribunal. At that time Mr. Olds was not acting as attorney for the Hitzemanns, but assuming a position actively antagonistic to them. In that action it was openly, actively, and antagonistically asserted that he and his wife were the owners and entitled to possession of the land. If the Hitzemanns had been deceived before, and believed that the title was held for their benefit, and that Olds would not claim to be the owner, and would not disturb their possession, but would reconvey to them when their business was settled, this public notice was sufficient to advise them to the contrary. They had the option then to publicly assert the fraud arising out of the confidential relationship as a defense. They could no longer claim that they were misinformed and did not know that their former attorney was claiming to be the owner and entitled to the possession of the land. No longer could they truthfully say that he was representing to them that he was holding the land for them. Having failed to appear and assert their defense, they are barred. The judgment *Page 309
is valid and cannot be collaterally attacked. If the judgment was taken through mistake, inadvertence, surprise, or excusable neglect, there is a statutory remedy for relief in a direct proceeding. § 2-1068, Burns' 1933, § 173, Baldwin's 1934. The complaint does not allege fraud in procuring the judgment in ejectment, but only fraud in inducing the conveyance two years before. The demurrer should have been sustained.
The judgment in favor of the Hitzemanns was not based upon the theory of their complaint, but, from the findings of facts and conclusions of law, it seems to have been based upon a different and inconsistent theory, that is, upon the theory that the real estate was sold to Mr. Olds, and that the deed to the bank was intended to convey title for his benefit, but that the agreed consideration was not fair in that it was too small; that the consideration agreed upon was paid; that the land was worth more than the contracted price, and that therefore Mr. Olds had profited unfairly, and that the plaintiffs were entitled to recover an additional sum, which was the fair value of the property which they had sold. It appears from the findings of facts that Mr. Olds had advanced money, paid taxes and mortgages, and satisfied his claims for legal services. These findings do not support the allegations of the complaint, but if the facts alleged in the complaint are untrue, and the facts found by the court are true, the Hizemanns might have asserted the true facts as a defense to the action in ejectment and for possession. Fraud upon the part of the attorney in inducing them to part with their property for an inadequate consideration would have been an equitable defense, and the court trying the case might have drafted a decree conditioning the validity of the conveyance and *Page 310
the right to possession upon the payment of such additional amounts as might be necessary to make the compensation adequate, or the conveyance might have been set aside and a decree entered that would protect Mr. Olds to the extent of his advancements. The fraud and unfairness alleged in the complaint, or the different and inconsistent fraud and unfairness found by the court, or any other fraud or unfairness which was a defense to the enforcement of the conveyances which vested legal title in the Olds, were a defense to the assertion of the right to the consummation of the transfer of the land by reducing it to possession. Defenses must be made when a right is asserted. If they were prevented from making the defenses, the remedy was by a proceeding to vacate the judgment. The right of the Hitzemanns to assert the facts alleged in the complaint, or the facts found by the court in the special findings, as a defense against the legal title of the Olds to the land in question, is effectively barred by the judgment in ejectment.
Judgment reversed, with instructions to restate the conclusions of law in conformity to this opinion, and enter judgment for the defendants.
NOTE. — Reported in 42 N.E.2d 35. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3436867/ | The workman alleged to have been injured was William McKinney, who instituted this proceeding in his lifetime. The defendant the Central Iowa Fuel Company was the employer, and the other defendant was the insurer. The alleged injury occurred on March 13, 1924. On the following day a surgical operation was performed upon the plaintiff, from the effects of which he never recovered. He died pending the proceedings, on February 17, 1925. A few days before his death, his deposition was taken, and this was used in evidence at the hearing before the commissioner. After his death, his widow intervened in the action, and prosecuted the same to a final hearing. The following from the deposition of the deceased workman will indicate the general nature of the claim made in his behalf: *Page 399
"I was working for Central Iowa Fuel Company, and had been with them about four years. I sustained an injury while working for the company when I was making rollers, and had one on my arm, a good big-sized 8-foot bar; and just as I went to raise it up, to throw it over on the sawrig, it caught on the saw, and then caught me right across the abdomen. It was a circular saw, located outside of the building, and operated by steam, and was used to saw 8-foot bars off, which were then taken inside and lathed. The average length of these bars was 8 or 9 feet, and anywheres from 6 to 8 or 9 inches thick; and these bars were cut by the circular saw to a length of about 22 inches. There was a frame on the saw, about 3 1/2 feet high, on which the bar was laid, and then just pushed into the saw. On the day of my injury, I was cutting these bars into 22-inch pieces, and at the time I got hurt, I was lifting a bar to put it on the frame to cut it off. I had hold of the bar about the middle."
"Q. What was it that caused the bar to strike you in the abdomen, you spoke of?
"Mr. Mabry: Well, now, that is objected to as leading and suggestive, and assuming that the bar struck him in the abdomen.
"A. When I lifted the bar upon the frame, it hit the corner of the frame, and gouged me right in the abdomen. I couldn't just exactly say what part of the 8-foot bar hit the frame, but I think it must have been about the middle, because that is where I was lifting on it. The saw was running, but the bar didn't come in contact with the saw. I figure, the bar weighed anyway 200-150 pounds. I was lifting it alone, and it was all I could do to handle it. I had the bar up on my arm, and threw it up on the saw frame, and it hit the corner of frame and bounced back, catching me across the abdomen about 5 inches below the navel, and a little to the right. Was operated upon afterwards. At the time it struck me, I experienced plenty of pain, and it was severe. I continued working for a little while, then went home and to Albia. I did not go home until an hour and a half after the bar struck me, and that was before the blood started coming. After the bar struck, I stopped work for about five minutes, and then went back to work. The pain continued from the time the bar struck me, and increased in severity. Before I went home, I started bleeding a lot of blood, and must have bled *Page 400
a half pint or more, because I bled all time from that on until I got to Albia. I didn't pass a lot of blood before I started from the mines, — probably 4 or 5 ounces."
On the day following the alleged injury, Mr. McKinney went to the hospital at Albia and submitted to an operation upon the urinary bladder. This was found to be full of blood and blood clots, which were removed by the surgeon, and a drainage established. According to the operating surgeon, infection resulted in the bladder, and extended therefrom to the kidneys. This infection resulted in abscesses in the kidneys, which completely destroyed them; and this was the immediate cause of death.
The major contention of the appellants is that the evidence, when fairly considered, does not disclose that McKinney suffered any actual personal injury; and that, if he suffered any blow at all, it could not have sustained any causal relation to McKinney's condition as it was found by the surgeon on March 14th. Appellants present a plausible argument on the general merits of their contention. But it is predicated upon evidence and circumstances contradictory to the testimony of the claimant. In that respect, the argument of the appellants is of less aid to us than it would have been if it had been predicated wholly upon the testimony most favorable to the support of the claim. It is true that there were no external evidences of injury. No contusions were found upon the skin or upon the muscles, but the testimony of the surgeon was that the internal injury could have been sustained through traumatic causes without any external contusion. If we assume the truth of the evidence of the claimant, it was clearly sufficient to establish the fact of injury. The industrial commissioner having accepted it as true, in the light of all the circumstances appearing in the record, such evidence becomes conclusive upon us. On the question of the causal relation between the trauma and the internal conditions found by the surgeon, such surgeon testified that a traumatic cause would explain the condition that he found, and that he could find no other apparent cause which could account for the same. The internal condition of the bladder was not chronic, but was recent and acute. His testimony also attributed the fatal abscesses in the kidneys to infection from the bladder and from the surgical wound made therein. This opinion was sustained by that of *Page 401
other surgeons. We are not at liberty to accept contradictory opinions of other experts in order to reject the finding of the commissioner.
It is earnestly argued by appellants that the claimant had been suffering from kidney disease for several years, and that he had passed blood at various times prior to such alleged injury. Upon this hypothesis of fact, it is argued that the claimant died solely as the result of disease from which he had suffered for many years before the injury. The fault of this argument is that this also is predicated upon evidence which is contradictory to the testimony of the claimant himself. It avails nothing here to array evidence against evidence. We must accept as true the evidence which supports the finding of the commissioner. Under this rule, this record is quite conclusive against the appellants, and we would not be justified in discussing the pros and cons of conflicting evidence. Sufficient to say that the record will not justify our interference with the finding below.
The order of the district court is, accordingly, — Affirmed.
De GRAFF, C.J., and ALBERT and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428463/ | Appellants brought this action to vacate a judgment which they allege to have been taken because of their mistake, surprise, inadvertence, and excusable neglect. A demurrer to the complaint was sustained, and the ruling is assigned as error.
The complaint alleges that the appellants were the owners of certain property which was mortgaged to the appellee Tony Genduso to secure a loan; that, when the indebtedness became due, the appellants offered to deed the property to the appellee, who is the brother of the appellant Josephine Ferrara, but that the appellee then suggested, and agreed with appellants, that, if they would make certain repairs on said building, he would refrain from foreclosing his mortgage and permit them to procure a federal loan upon the premises with which to pay the indebtedness to him; that they then agreed to make the repairs, and expended approximately $3,700 in repairing the premises, in paying taxes, and procuring insurance thereon; and that, when the repairs were completed, and before they could effect a loan, the appellee fraudulently violated his agreement and brought an action to foreclose his mortgage; that the representations were made by the appellee to his sister, the appellant Josephine Ferrara, for the fraudulent purpose of deceiving them and procuring them to expend large sums of money on the premises; that, because of the *Page 101
action to foreclose appellee's mortgage, they were unable to procure the loan contemplated by their agreement with appellee; that, when advised of the action to foreclose the mortgage, they employed attorneys, who were authorized to appear for them, and consulted with said attorneys about their defense, and advised their attorneys about the oral agreement with the appellee, and requested their attorneys to make a defense to said action upon the basis of the oral agreement; that they believed their attorneys had set up a defense to the action based upon the oral agreement, and relied upon their attorneys so to do; that they did not know the cause was set for trial, nor that their attorneys had failed to file an answer except in general denial; that, in fact, their attorneys did not appear in court on the day said cause was assigned for trial; and that their attorneys agreed with the plaintiff's counsel that judgment should be entered in favor of the appellee, all without their knowledge and consent; "that the plaintiffs are laymen, and relied solely and entirely upon their said counsel for guidance and the method of said procedure for their defense"; but that, if they had known the attorneys had not set up the defense referred to, they would have insisted upon its being pleaded.
There is no allegation of fraud upon the part of the appellants' attorneys, nor is there an allegation that the failure to present the defense in question was procured 1, 2. by the connivance or fraud of the appellee. In Thompson et al. v. Pershing et al. (1883), 86 Ind. 303, 310, it is said: "An attorney may, without express authority, bind his client by agreement that judgment may be taken against him, and that, too, though the attorney know that his client has a good defence [defense] to said action. If he acts contrary to the express directions of his client, or to his injury, the client must look to the attorney for redress." And in Moore v. *Page 102 Horner (1896), 146 Ind. 287, 289, 45 N.E. 341, 342, it is said: "It is a general rule that no mistake, inadvertence or neglect attributable to an attorney can be successfully used as a ground of relief unless it would have been excusable if attributable to the client. The acts and omissions of the attorney in such case are those of the client." In Sharp et al. v. Moffitt, Adm'r,et al. (1884), 94 Ind. 240, 242, the following language is quoted with approval: "But usually the rule is, that where an attorney is employed in a cause, the fact that his client is not in fault, and that judgment goes against him through the laches or bad faith of the attorney, will furnish no ground of relief. The acts and omissions of the attorney in such a case are those of the client. The attorney is the agent of the party employing him, and in court stands in his stead. This is the rule, unless there be some fraudulent combination or collusion between the attorney and the other side." The case of Cory v. Howard etal. (1929), 88 Ind. App. 503, 164 N.E. 639, relied upon by the appellants, involves the breach of an agreement between the defendants and the plaintiff's attorney, and the dictum quoted in that opinion from Pepin et al. v. Lautman (1901),28 Ind. App. 74, 62 N.E. 60, must be treated as referring to an attorney who fraudulently and corruptly connives with the adverse party for the defeat of his client. Fraud, which might have been available as a defense to the original action, will not avail as a cause for setting aside the judgment if there was opportunity to plead such fraud as a defense to the original action. Under these authorities it is clear that the facts alleged in the complaint do not make such a case of mistake, surprise, inadvertence, or excusable neglect as will authorize the vacation of the judgment. In view of our conclusion, it is unnecessary to consider whether the facts alleged concerning *Page 103
the oral agreement would have constituted a defense to the original action.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428189/ | This is an appeal from a judgment rendered against appellant in a bastardy proceeding.
The overruling of appellant's motion for new trial is the sole error relied upon for reversal.
The causes for new trial assigned in the motion therefor, and discussed in appellant's brief, are: (1) The verdict is not sustained by sufficient evidence; (2) errors in the giving of certain instructions.
One of the instructions given by the court, and complained of by appellant, reads as follows:
"If you find from the evidence that the 1. relatrix had intercourse with some person or persons, other than the defendant, at about the time the child was begotten, and you further find from a preponderance of all the evidence that the defendant is the father of such child, your verdict should be that the defendant is the father of the child, notwithstanding your finding, if you do so find, that the relatrix had intercourse with some person or persons other than the defendant."
Appellant says, in his brief, with reference to said instruction:
"If it is shown that about the time the relatrix became pregnant, that she had intercourse with others, and can give no particular reason why any one of the acts was the one in which the child was begotten, the evidence will be insufficient to justify a finding against the defendant." (Our italics.) Citing Whitman v. State ex rel. Hemminger
(1870), *Page 149 34 Ind. 360; and Kintner v. State ex rel Ripperdan
(1873), 45 Ind. 175.
We agree with said statement as an abstract principle of law, but that principle is not applicable as a test of said instruction, because said instruction does not assume that the relatrix could "give no particular reason why any one of the acts was the one in which the child was begotten."
By that instruction the court told the jury, in effect, that if they found that other persons, besides appellant, had intercourse with the relatrix at about the time the child was begotten, such finding would not, of itself, prohibit a finding by them that defendant was the father of the child. Such a statement is supported by former decisions of this court. (See Goodwine v.State ex rel. Dove [1892], 5 Ind. App. 63, p. 68, 31 N.E. 554.) Said instruction is not inconsistent with the decision of the court in either of said authorities cited by appellant.
Appellant has not cited any authorities in support of any other of his contentions.
We deem it unnecessary to specifically discuss any of the other contentions made by appellant with reference to the instructions, but deem it sufficient to say that we have carefully considered the instructions, and in our opinion the instructions, taken as a whole, fairly and sufficiently advised the jury as to the law of the case before them.
The relatrix testified that she had intercourse with appellant on two occasions, the first time the latter part of February, 1931, and on or about March 11, 1931; that the child was 2. born alive December 31, 1931; that the child was living at the time of the trial and that appellant is the father of the child; and that she had never had intercourse with anyone except appellant. That evidence, of itself, is sufficient to *Page 150
sustain the verdict. See Michael v. State ex rel. Pearson
(1914), 57 Ind. App. 520, 108 N.E. 173.
Appellant testified that he did not have intercourse with relatrix at any time, and he introduced evidence which showed that at about the time of the conception of the child, relatrix had intercourse with two other men.
The evidence as to whether or not relatrix had intercourse with appellant at said time, and as to whether or not she had intercourse with other men at about that time, being conflicting, this court will not disturb the finding which the jury presumably made as to said issues of fact.
No reversible error having been shown, the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428193/ | During the years 1925 and 1926, appellee Flesher was a building contractor in the city of Kendallville, and, in February, 1926, entered into a contract with appellees Burger and Burger, husband and wife, to build for them a residence on a city lot owned by them as tenants by entireties; by the terms of the contract, Flesher was to furnish, for an agreed price, all necessary labor and materials. At the time of the execution of the contract with the Burgers, Flesher had under construction a residence for Ronald Jones with whom he had a similar contract. The building material for the two jobs was purchased by Flesher from appellant lumber company. As the material was delivered, appellant charged the same to Flesher, the material for the Burger job being specifically designated on separate ledger sheets of its books for that job, and the material for the Jones job was so designated on other ledger sheets. As the work progressed, the Burgers paid Flesher for the lumber he had purchased of appellant for their job, except a balance of $73.29. A much smaller payment had been made by Jones. On July 10, 1926, Flesher paid to appellant $1,686.55, but did not at the time give any directions as to which account the payment was to be applied. Thereupon, appellant gave credit to Flesher on his account for materials purchased for the Jones job and so notified Jones. On October 4, 1926, Flesher made inquiry of appellant as to which of his accounts had been given credit for the $1,686.55 paid, and, upon being informed that the Jones account had received the credit, Flesher stated that it had been his intention to have the payment applied to the Burger account, because the Burgers had been prompt in paying him. It was *Page 614
then agreed between appellant and Flesher that the credit should be transferred on the books of appellant company from the Jones account to the Burger account, and it was so transferred. Thereafter appellant, without the knowledge of Flesher or the Burgers made a second transfer on its books of the $1,686.55 credit, transferring the same back to the Jones account, where it had been entered originally.
Notice of the filing of a lien having been given, suit was commenced by appellant Kendallville Lumber Company against appellees Burger and Burger to foreclose its lien for the material furnished for their job.
On the trial of the cause, with issues properly formed, the above facts were established by the evidence, and the court found for appellant, but gave credit for the $1,686.55.
The question for determination by this court is whether the Kendallville Lumber Company, the creditor, and Flesher, the debtor, could, by agreement, without Jones' consent, change the credit of $1,686.55 from the account for the Jones job to the account for the Burger job; and, if so made, could the lumber company change the credit back to the Jones account without the consent of the Burgers.
It is a well-established principle that a debtor in making a voluntary payment to a creditor to whom he owes more than one debt may direct the application of the payment. 1-3. Conduitt v. Ryan (1891), 3 Ind. App. 1, 29 N.E. 160. The reason for the rule is that up to the time of payment the money is the property of the debtor, and subject to his control. Baum v. Trantham (1894), 42 S.C. 104, 19 S.E. 973, 46 Am. St. 697. If, however, the debtor does not direct the payment, then the creditor may apply it to the payment of any fixed and past-due money obligation of the debtor. Barrett v.Sipp (1912), 50 Ind. App. 304, 98 N.E. 310. *Page 615
So, in the case at bar, Flesher could have directed the payment to be credited to either of the accounts, but, having failed so to do, appellant could, as it did, apply it on the account for materials furnished for the Jones contract. Appellant concedes the law to be as stated, but contends most earnestly that the application of the payment of July 10 was irrevocable, that it could not have been changed, even by agreement of the debtor and creditor. We do not so understand the law. It is not contended that there was any fraud, and none is shown. It does not appear that Jones or any third party was misled to his disadvantage by reason of the application of the payment as first made; and neither Jones nor any other third party was made a party defendant, or is now making any formal objection to the application of the payment as agreed upon by the debtor and creditor. The Supreme Court of Maine, in Rundlett v. Small
(1845), 25 Me. 29, a case involving the same principle as the instant case, stated the law to be: "Whenever a legal appropriation of a payment has been made upon one of two or more claims of a creditor against the same debtor, one of the parties cannot change the appropriation; but it may be changed by the consent of both, and in such case the indebtedness first discharged is revived by implication of law, when there is no express promise." In a like case, the Supreme Court of Minnesota, in Florsheim v. Brestrup (1890), 43 Minn. 298, 45 N.W. 438, used the following language: "It is immaterial what application of the payments was directed when they were made, or what application the law would make if the parties had made none. If a particular application was directed at the time of the payment, it was competent for the parties, by mutual consent, to change it afterwards; or, if no application was made at the time, it was competent for the parties afterwards to agree on one different from what the law would have made." *Page 616
See, also, Hughes v. McDougle (1861), 17 Ind. 399; Hahn
v. Geiger (1900), 96 Ill. App. 104; Mack v. Adler (1884), 22 Fed. 570.
We hold that, under the facts of this case, the debtor and creditor, on October 4, 1926, had the right, by mutual consent, to change, as they did, the application of the payment 4. previously made, and, having done so, it was not thereafter within the power of the creditor at its own instance to change the credit so made.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428194/ | Appellee brought this action against appellant to have vacated a resolution of the board of school trustees of appellant of July 24, 1931, in cancelling the indefinite contract of appellee as a permanent teacher in the public schools of appellant, and to recover the sum of $270.00 alleged to be due appellee from appellant for salary as a permanent teacher for the first month of the school year beginning September 8, 1931. Appellant filed a demurrer to appellee's complaint for want of facts. The demurrer was overruled, and upon appellant's refusal to plead further, judgment was rendered in favor of appellee. The error assigned relates to the action of the court in overruling the demurrer.
It appears from the facts set forth in the complaint that appellee was employed by appellant as a public school teacher for the year beginning September 2, 1930, at a salary of $2,700.00 for the school year, to be paid in ten equal monthly payments, said employment being evidenced by a written contract which was entered into on May 5, 1930. On July 13, 1931, the board of school trustees of appellant, pursuant to notice to appellee, held a hearing, at which appellee was present, to determine whether or not the permanent contract of appellee as such teacher should be cancelled. It was *Page 694
further alleged that evidence was introduced at said hearing showing without contradiction that appellee holds a life license as a teacher, said license having been issued December 16, 1923, and that continuously prior to July 13, 1931, appellee served under contract as a teacher in the public schools of appellant for 30 years or more, and on said date was a permanent teacher of such school corporation; that appellee served under his contract of May 5, 1930, until the end of the school year beginning September 2, 1930, that no written contract was entered into between appellee and appellant after the contract of May 5, 1930; that appellee attained the age of 70 years on April 14, 1930. Evidence was also introduced at said hearing to the effect that appellant had a rule requiring all teachers to retire from service when they reach 70 years of age and that appellant refused to retire as required by said rule.
It was further alleged that the board of school trustees of appellant, at the conclusion of the hearing on July 13, 1931, took the matter under consideration until July 24, 1931, and on that date found appellee guilty of insubordination in that he wilfully refused to obey the reasonable rules prescribed for the government of the public schools of appellant, namely, the rule that every teacher must retire at the age of 70 years, and resolved that the contract between appellee and appellant was cancelled because of such insubordination. Appellee notified appellant in writing on September 5, 1931, that he was ready and willing to perform such services as were assigned him for the school year beginning September 8, 1931, which offer appellant refused. Appellee also made demand for one monthly instalment of salary which had become due under his alleged contract with appellant, and which appellant refused.
Appellant contends that its rule providing that all teachers, principals and supervisors must retire from *Page 695
service when they reach 70 years of age is a reasonable rule prescribed for the government of its public schools, and that appellee was guilty of insubordination in that he wilfully refused to obey said rule, and that the indefinite contract of appellee as a permanent teacher was lawfully cancelled by its (appellant's) board of school trustees because of such insubordination.
On the other hand, appellee says that this rule is invalid and unreasonable, and cite that part of section 1 of the Acts of 1927, chapter 97; section 6967.1 Burns' Ann. St. Supp. 1929, which says in part that,
"any person who * * * shall serve under contract as a teacher in any school corporation * * * for five or more successive years, and who shall * * * enter into a teacher's contract for further service with such corporation, shall thereupon become a permanent teacher of such school corporation. * * * Upon the expiration of any contract between such school corporation and a permanent teacher, such contract shall be deemed to continue in effect for an indefinite period and shall be known as an indefinite contract. Such * * * contract shall remain in force unless succeeded by a new contract signed by both parties or unless it shall be cancelled as provided in section 2 of this act."
and further contend that such a rule tends to violate the spirit, purpose and terms of the above act, which is known as the Teachers' Tenure Law.
From the foregoing greatly abbreviated but, for present purposes, we think sufficient statement of the views of the respective parties, it is apparent that in the last 1. analysis the question we are called upon to decide is this: Is appellant's rule requiring all teachers attaining the age of 70 years to retire from service a just and reasonable rule, and does it violate or conflict with the statute in question?
The Teachers' Tenure Law specifically enumerates the causes for which a teacher may be removed or dismissed, *Page 696
the said causes being incompetency, insubordination (which shall be deemed to mean a wilful refusal to obey the school laws of this state or reasonable rules prescribed for the government of the public schools of such corporation), 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. It is also provided that "the decision of the school board shall be final," and by reason of this provision appellant has also presented the question of whether the court below had jurisdiction of the subject-matter of this action.
In the very recent case of School City of Elwood et al. v.State ex rel. Griffin et al. (1932) 203 Ind. 626, 180 N.E. 471, which case is somewhat analogous to the case at bar, the school trustees attempted to cancel the indefinite contract of a teacher because of the fact that she was a married woman, and a resolution had been adopted to the effect that no married women should be employed as teachers in the Elwood schools. Quoting the language of the court therein, it was said, "Where the statute specifically enumerates the causes for which a teacher may be removed or dismissed, the teacher cannot be removed or dismissed for any other cause," citing Kennedy v. San Francisco Bd. ofEducation (1890) 82 Cal. 483, 22 P. 1042; Butcher v. Charles
(1895) 95 Tenn. 532, 32 S.W. 631, "and, where the school board in removing or dismissing the teacher acted outside of its jurisdiction or power under the statute, the action of the board is not final, but is subject to the review of the courts", citingCourtright v. Mapleton (1927) 203 Iowa, 26, 212 N.W. 368;Custer v. School District of Borough of Prospect Park (1899)12 Pa. Super. 102.
Appellant relies to some extent, in justification of its action, upon the words "other good and just cause." *Page 697
Quoting further from the School City of Elwood case, supra, the court said, "If a teacher after marriage, becomes inefficient, impaired in her usefulness, neglectful or otherwise incapable of performing her duties as a teacher in a proper manner, then good reason — "other good and just cause" — would exist for her dismissal; but marriage, in itself (in the absence of a statutory provision to the contrary), does not constitute a good and just cause (as provided in the Teachers' Tenure Law) for the discharge of a teacher." The court then quoted the following language from the case of Richards v. School Dist. (1916) 78 Or. 621, 153 P. 482, 485, L.R.A. 1916C, 789, Ann. Cas. 1917D, 266, wherein it was said: "It is impossible to know in advance whether the efficiency of any person will become impaired because of marriage, and a rule which assumes that all persons do become less competent because of marriage is unreasonable because such a regulation is purely arbitrary. If a teacher is just as competent and efficient after marriage, a dismissal because of marriage would be capricious. If a teacher is neglectful, incompetent, and inefficient, she ought to be discharged whether she is married or whether she is single." This language clearly expresses our views regarding the situation in the instant case, and we think that, by the same reasoning, the mere fact that a teacher attains the age of 70 years does not indicate that such teacher's competency or efficiency has been impaired. Appellant particularly stresses the fact that it did not cancel the contract of appellee for incompetency, but that the contract was cancelled for insubordination, consisting of a willful refusal to obey a reasonable rule prescribed for the government of the public schools, and contends that the fact that a permanent teacher has reached the age of 70 years is a good and just cause for the cancellation of his indefinite contract without regard to the question *Page 698
of actual competency, and that, because the attainment of that age is a good and just cause for the cancellation of such contract without regard to the question of actual competency, a general rule providing for compulsory retirement at that age is a reasonable rule and that, because such a rule is a reasonable one, a willful refusal to obey such rule is insubordination within the meaning of the statute. With this contention we cannot agree. It is our opinion, and we believe that any fair reasoning would lead to the inevitable conclusion, that the 70 year retirement rule was created with the view that the efficiency or competency of teachers should not be impaired by the infirmities which quite often accompany old age, and it appears here that appellant has resorted to the charge of insubordination as a substitute for a charge of incompetency, in order to cancel the indefinite contract of appellee. At this point we might say that the complaint avers that appellee had a success grade of 96%, and no attempt was made to charge appellee with incompetency. Were appellee guilty of the latter, the statute affords appellant a remedy for the cancellation of the contract as this is specifically provided for in the act. We therefore hold that a refusal to comply with the rule requiring retirement at the age of 70 years is not such "other good and just cause" as would justify a cancellation of a teacher's indefinite contract, and further hold that such a rule is unreasonable, in that it indirectly attempts to establish a limit to the tenure of every teacher, and would not permit a permanent teacher's indefinite contract to continue in effect for an indefinite period, as provided by sec. 6967.1 supra.
As to the question of jurisdiction, we have but to say that school authorities do not have the right to determine finally and conclusively as to whether rules passed by them are 2. reasonable or unreasonable. That question is one to be passed upon *Page 699
by the courts. Fertich v. Michener (1887), 111 Ind. 472, 11 N.E. 605, 14 N.E. 68, 60 Am. Rep. 709; 24 R.C.L. 575; 56 C.J. 343.
We find no error in the overruling of appellant's demurrer to the complaint and the judgment of the Vanderburgh Superior Court is therefore in all things affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428195/ | This is an action by appellee against appellant to recover damages for an alleged breach of her indefinite contract as a teacher in the public schools of appellant school township.
The complaint was in one paragraph, to which appellant filed an answer in general denial and four affirmative paragraphs, to which appellee replied in general denial. There was a trial by jury and a general verdict in favor of appellee for $155.00. The court submitted thirty-three interrogatories which were answered by the *Page 358
jury and upon motion of appellee the court rendered judgment in favor of appellee for $1,240.00, upon the answers to the interrogatories notwithstanding the general verdict. This action of the court is assailed on appeal and presents the principal question in this case.
The complaint, insofar as material to the question here presented, alleges, in substance, that appellee had served under contract as a teacher in the public schools of appellant township for five successive years immediately prior to September, 1928, and on the first day of September, 1928, she entered into a contract for further services with said township and did teach in the public schools of said township during the school year beginning in September, 1928, and thereby became a tenure teacher under the law of Indiana. That on and prior to the beginning of the school in September, 1929, she requested Charles E. Curtis, Trustee of Haddon School Township to assign her to a school for the school year beginning in September, 1929; that said trustee refused to assign her to any school in said township and refused to permit her to teach in any school in the township during that year, and told her that he would not employ her to teach in any of the schools of said township during the school year of 1929. Appellee alleged that she was ready, able and willing to teach school in such school corporation, and that the trustee employed another teacher to take the place of appellee. That the compensation as fixed by her contract the previous year with appellant was $1,240.00, a copy of said contract was attached to and made a part of the complaint. That she has demanded payment of the compensation due her under her indefinite contract but that appellant refused to pay the same.
Appellee's prayer to her complaint is as follows: "Wherefore plaintiff says that she has been damaged in the sum of $1,240.00, and she demands judgment *Page 359
therefor with 6 per cent interest from and after the time that each monthly installment thereof became due and all other proper relief."
The affirmative answers filed by appellant need not be set out, as they have no influence on the question here presented.
The first twenty-nine interrogatories and the answers thereto relate to the formation and existence of Haddon School Township, the election of Charles E. Curtis as trustee, the services rendered by appellee to appellant under previous contracts, the qualifications of appellee to teach in the public schools of Indiana; the various times appellee signed contracts to teach for appellant. There were also questions and answers that found that appellant had not attempted to give notice of his intention to cancel appellee's indefinite contract as provided by statute and no such cancellation was attempted, and there was no agreement between the parties to cancel the contract; that appellee requested appellant to furnish her a school for the year beginning in September, 1929, and that appellant refused, and that appellee did not teach school for appellant township during the school year of 1929-1930, and no compensation was paid appellee by appellant for the school year 1929-1930; that appellee was ready, able and willing to teach school in appellant school township during the school term beginning in the month of September, 1929. Interrogatories Nos. 30 and 31 and the answers thereto are as follows:
"No. 30. Did the written contract entered into between the plaintiff and the defendant on the first day of September, 1928, provide that the defendant should pay the plaintiff the sum of $1240.00 for the school year of eight months?
"Ans. Yes.
"No. 31. Did the contract entered into between plaintiff and defendant on the first day of September, 1928, provide that the defendant should pay *Page 360
the plaintiff the sum of $1240.00 in eight equal payments during such school year?
"Ans. Yes."
It is upon these answers that the question here involved must be determined. The questions and answers to the first twenty-nine interrogatories follows and supports the complaint, and appellant bases no contention upon them. It is appellant's contention that there is no irreconcilable conflict between the general verdict and the answers to the interrogatories returned by the jury and therefore the general verdict must stand; while appellee contends that the general verdict cannot stand in the face of interrogatories Nos. 30 an 31, and the answers thereto. Appellee argues that the jury by its general verdict found every material and issuable fact in its favor; that there is no conflict between the general verdict and the answers of the jury to the interrogatories except as to the amount of recovery, and under such circumstances the court can consider the pleadings and the answers to interrogatories and see that the proper judgment is rendered; and since one of the material facts alleged in the complaint was: "That under the terms and provisions of aforesaid contract there is due to the plaintiff and is unpaid the sum of $1240.00," and since the jury returned a general verdict in favor of appellee it necessarily found that the above allegation was true, and did in fact find that plaintiff should recover of and from the defendant $1240.00, and that the trial court was justified in concluding that the jury by mistake returned a verdict for $155.00, when the amount should have been $1240.00, and therefore there was no error in entering judgment for the proper amount. The error in appellee's statement is in assuming that a general verdict is a specific finding in favor of appellee on each averment of the complaint. The general rule is that, when a jury returns a general verdict in favor of the plaintiff, 1. it necessarily *Page 361
finds that the plaintiff has proven every material averment needful for a recovery. But we do not understand that it necessarily finds that the plaintiff is entitled to recover the amount alleged to be due. If it be so construed, then the jury must, if it finds for the plaintiff assess the amount of recovery at the exact amount alleged in the complaint, and if they do not the court would have the right to change the amount to correspond to the allegations of the complaint. We find no authority to support such a proposition.
It appears that appellee had a valid and binding contract to teach school in appellant township. It further appears that appellant refused to carry out this contract and so 2-5. informed appellee. That appellant refused to assign appellee to any school in the township and caused said school to be taught by another person. This action on the part of appellant constituted a breach of contract for which appellant was liable to respond in damages. A teacher has a right to recover damages suffered by reason of the breach of a contract of employment by the proper officials. Hornbeck v. State (1904),33 Ind. App. 609, 71 N.E. 916, and cases therein cited. But the amount of damages recoverable must be determined from the fact of each particular case. 17 C.J., § 173, p. 859, states the general rule thus:
"Where a contract involves the furnishing of personal services by plaintiff, and performance is prevented by defendant, although plaintiff is at all times ready and willing to perform, the measure of damages is prima facie the consideration agreed to be paid, although it may be shown in mitigation that plaintiff might have secured other employment for his services during the contract period. From this it appears that the true measure of damages is not in such cases the contract price but the amount of the actual loss." *Page 362
This rule is supported by this court in Hamilton v. Love
(1899), 152 Ind. 641, 53 N.E. 181, 54 N.E. 437, and cases there cited. In determining whether the answers to interrogatories should override the general verdict, the court can only consider the pleadings, answers to the interrogatories, and the general verdict. The special findings must stand in such clear antagonism to the general verdict that the two cannot co-exist. See McCoy
v. Kokomo R., etc., Co. (1902), 158 Ind. 662, 64 N.E. 92, and cases cited. The court is not permitted in ruling on a motion for judgment based on answers to interrogatories to consider the evidence in the case, and the motion should be refused where the conflict between the answers to the interrogatories and the general verdict is not such on the face of the record as to be beyond the possibility of being removed by any evidence legitimately admissible under the issues. Shoner v.Pennsylvania Co. (1891), 130 Ind. 170, 28 N.E. 616, 29 N.E. 775; Indianapolis, etc., R. Co. v. Lewis (1889),119 Ind. 218, 21 N.E. 660; Louisville, etc., R. Co. v. Creek (1892),130 Ind. 139, 29 N.E. 481; McCoy v. Kokomo R. Co., supra, and cases cited.
In order to justify the action of the lower court in sustaining appellee's motion for judgment upon the answers notwithstanding the general verdict, we must be able to say, from the facts 6. found, that appellee was, as a matter of law, entitled to $1240.00. Sage v. International Harvester Co. (1910),46 Ind. App. 90, 90 N.E. 17.
In this case, under the answer of general denial, evidence in mitigation of damages was admissible. Smith Smith v. Lisher
(1864), 23 Ind. 500; Mosier v. Stoll et al. (1889), 7, 8. 119 Ind. 244, 20 N.E. 752; Mug v. Ostendorf (1911), 49 Ind. App. 71, 96 N.E. 780. Under the authorities herein cited, we must conclusively presume that evidence in mitigation of *Page 363
damages was introduced and considered by the jury. When so considered, there is nothing in the answers to the interrogatories that could not be reconciled with the general verdict. Interrogatories Nos. 30 and 31 and the answers thereto, found that the contract between appellee and appellant for the year 1928 provided that appellant should pay appellee the sum of $1240.00 for that school year payable in eight equal payments. Even if it could be said under the facts that appellee's contract for the year 1928 was extended and constituted an indefinite contract and became the contract between the parties for the school year beginning in September, 1929, yet we would not be justified in holding that this fact, as a matter of law, caused appellee to suffer damages to the full contract price of her services. To so hold would be to deny appellant the right to show that appellee, during the period here in question, earned money that should effect the amount of loss actually suffered by appellee. Under the issues in this case appellant had the right to introduce such evidence. We can see no conflict between the general verdict returned by the jury and the answers to the interrogatories. Consequently we hold that the court committed reversible error in sustaining appellee's motion for judgment on the answers to the interrogatories, notwithstanding the general verdict.
Appellant questions the sufficiency of plaintiff's complaint to withstand a demurrer for want of facts. The complaint alleges sufficient facts to show a valid contract of employment 9. between appellee and appellant and a breach thereof on the part of appellant. We think the complaint states a good cause of action for a breach of contract and there was no error in overruling the demurrer to the complaint.
Appellant in its brief questions the constitutionality of the teacher's tenure statute, being Chapter 97, Acts *Page 364
1927, p. 259. But since this case was filed the constitutional question has been decided adversely to appellant, and appellant in his reply brief expressly waives this question.
Judgment reversed with instructions to overrule appellee's motion for judgment on the interrogatories notwithstanding the general verdict, and to render judgment on the general verdict. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428186/ | Appellant was charged, by affidavit, in five counts, with the crime of embezzlement under § 2470, Burns 1926, § 10-1704, Burns 1933, § 2467, Baldwin's 1934. Appellant filed separate motions to quash the second, third, fourth, and fifth counts of the affidavit which were overruled. Appellant waived arraignment and entered a plea of not guilty. The case was submitted to a jury which returned a verdict of guilty as charged in the affidavit. Appellant's motion for a new trial was overruled. *Page 290
Appellant assigns as error the overruling of his motion to quash the second, third, fourth, and fifth counts of the affidavit and in overruling his motion for a new trial.
The first count of the affidavit charges in substance: That on, or about, the 17th day of August, 1929, one William P. Kennedy, being then and there the agent of one Minnie Fields, did then and there, by virtue of such agency, have control and possession of the sum of two thousand three hundred eighty-seven and 43/100 Dollars ($2,387.43) in money, to the possession and ownership of which the said Minnie Fields was then and there lawfully entitled; that the said William P. Kennedy, while so acting as agent aforesaid and being in the possession and control of said money as aforesaid, did then and there unlawfully, feloniously, and fraudulently take, purloin, secrete, embezzle, and appropriate to his own use, and the use of Adelaide K. DuBois, Emmazetta K. Bonnelle, Samuel Lambert and Flora Kennedy, the money aforesaid, contrary, etc.
The second count is in substance the same as the first, except it charges the embezzling of a check made payable by the said Minnie Fields to William P. Kennedy in the sum of $2,387.43.
The third count charges:
"That on this day before Foster Osborn, Clerk of the Circuit Court of Union County, in the State of Indiana, personally came Minnie Fields, who being first duly sworn, upon her oath, says: That on the 17th day of August, 1929, at said County and State aforesaid, one William P. Kennedy, Adelaide K. DuBois, Emmazetta K. Bonnelle, Samuel Lambert and Flora Kennedy were partners doing a banking business as such partnership under the firm name of J.P. Kennedy Co., and owning and operating a private bank under the laws of the State of Indiana, which bank was known and designated as the Citizens Bank in the town of Liberty, said county and State; that said William P. Kennedy *Page 291
was then and there the active manager of said partnership, its affairs and business, and the cashier of said Citizens Bank owned by said partners; that at said county and State aforesaid said J.P. Kennedy Co. was then and there acting as the agent of Minnie Fields, and by virtue of being then and there the agent of said Minnie Fields, did then and there have control and possession of the sum of Two Thousand Three Hundred Eighty-seven and 43/100 Dollars ($2,387.43) in money, to be used by said partnership in the purchase of United States, Municipal, or Gravel Road non-taxable bonds, and for no other purpose, to the possession and ownership of which money the said Minnie Fields was then and there lawfully entitled; that said William P. Kennedy, as manager of said partnership, and cashier of said Citizens Bank owned by said partners, did then and there cause said bank and partnership to unlawfully, feloniously, and fraudulently take, purloin, secrete, embezzle, and appropriate said sum of money to the use of said William P. Kennedy, Adelaide K. DuBois, Emmazetta K. Bonnelle, Samuel Lambert and Flora Kennedy, as partners, in the firm of said J.P. Kennedy Co., and as owners of said Citizens Bank contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana."
The fourth count is in substance the same as the third except the fourth count charges the embezzlement of the check, and that he appropriated said check, money, proceeds and credit derived therefrom to the use of the parties named.
The fifth count of the affidavit charged that appellant and the other members of the partnership, naming them, were doing business under the firm name of J.P. Kennedy Co. and owned and operated a private bank, designated the Citizens Bank, and that appellant was the active manager of said partnership and the cashier of said bank and as such had charge of the business and affairs of said partnership and bank. The affidavit further charged that Minnie Fields delivered to William *Page 292
P. Kennedy as cashier of said bank a check for $2,387.43, payable to William P. Kennedy as cashier for the sole and only purpose of buying bonds. That the said J.P. Kennedy Co. and William P. Kennedy as the manager and cashier was the agent of the said Minnie Fields and by virtue thereof had possession and control of said check and the money, proceeds and credit derived therefrom; that appellant while so acting as agent aforesaid and while in the possession of said check and, etc., did then and there unlawfully, feloniously and fraudulently take, purloin, secrete, embezzle, and appropriate the same to his own use and to the use of the different partners and owners of said bank, etc.
Appellant filed separate motions to quash each count of the affidavit which were overruled by the court and this is the first error assigned for reversal of this cause. Appellant has 1, 2. waived any question as to the sufficiency of the first, second, and fifth count, but urges the insufficiency of third and fourth counts. It is appellant's position that the evidence affirmatively shows that the verdict must have been upon the third or fourth count and not upon the first, second, or fifth and therefore if the third or fourth count is bad the case must be reversed. The point urged as to the insufficiency of the third and fourth counts is on the ground of uncertainty, in that neither of said counts directly or positively alleges that either the partnership or the bank did unlawfully, feloniously, or fraudulently take, purloin, secrete, embezzle, or appropriate said property, and for that reason the said third and fourth counts are too indefinite and uncertain to state a public offense. We cannot agree with appellant's position on this point. Appellant erroneously assumes that the theory of the third and fourth counts is that appellant is charged as an accessory and not as a principal. The third and fourth counts of the affidavit charge that, *Page 293
"William P. Kennedy, as manager of said partnership and cashier of said Citizens Bank owned by said partners, did then and there cause said bank and partnership to unlawfully, feloniously and fraudulently take, purloin, secrete, embezzle and appropriate said sum of money to the use of said William P. Kennedy, Adelaide K. DuBois, Emmazetta K. Bonnelle, Samuel Lambert and Flora Kennedy, as partners, in the firm of said J.P. Kennedy Co. and as owners of the said Citizens Bank."
This we think is a direct and positive charge that appellant, as acting manager of the J.P. Kennedy Co. and as cashier of the Citizens Bank, appropriated and embezzled the money of Minnie Fields to the use of himself and the other members of said partnership, and to the use of the Bank. Under § 2224, Burns Ann. St. 1926, § 9-1126, Burns 1933, § 2205, Baldwin's 1934, an affidavit is sufficient if the offense charged is stated with such degree of certainty that the court may pronounce judgment upon a conviction according to the rights of the case. And under § 2225, Burns Ann. St. 1926, cl. 10, § 9-1127, Burns 1933, § 2206, Baldwin's 1934, an affidavit should not be quashed for any defect or imperfections which does not tend to the prejudice of the substantial rights of the defendant upon the merits. These provisions of our criminal code must be kept in mind in considering the sufficiency of an affidavit as against a motion to quash. Unless we can say that the third and fourth counts of the affidavit are so uncertain and indefinite that appellant was not apprised of the character and nature of the charge against him, the motion to quash was properly overruled. Agar v.State (1911), 176 Ind. 234, 94 N.E. 819; Hart v. State
(1914), 101 Ind. 23, 103 N.E. 846. Neither the bank nor the partnership as such could commit the crime of embezzlement. They act only through their officers. Hence appellant, as the agent or manager and who performed the *Page 294
alleged unlawful acts as herein set forth, is charged with the crime. We have read these counts very carefully and have concluded that they are sufficient to apprise the appellant of the nature and character of the charge against him, that appellant's substantial rights have not in any way been prejudiced by any indefiniteness or uncertainty in the affidavit.Williams v. State (1919), 188 Ind. 283, 123 N.E. 209; Hart
v. State, supra. We find no error in overruling appellant's motion to quash the third and fourth counts of the affidavit.
Appellant's second error relied upon is the overruling of his motion for a change of venue from the county. We learn from the record that appellant herein was charged with 3, 4. embezzlement by a grand jury indictment which was docketed as cause No. 995, upon which a trial was had but the jury failed to agree upon a verdict. Afterwards the indictment was dismissed and the present affidavit was filed and docketed as cause No. 1020. Appellant filed his affidavit for a change of venue from the county in cause No. 995, and did not refile said motion in cause No. 1020. It is insisted by the State that even if there was error in overruling the motion for a change of venue from the county in cause No. 995, it could not be presented in this appeal for the reason it was not refiled in cause No. 1020. It is appellant's position that the dismissal of the indictment in cause No. 995, and the refiling of the affidavit in cause No. 1020, was one continuous action and it was not necessary to refile the motion for a change of venue from the county in cause No. 1020. We need not decide this question as the record shows that the motion was supported by an affidavit to the effect that owing to the fact appellant was a cashier of a bank and that a great number of depositors in Union county would suffer financial loss on account thereof they were prejudiced against this defendant. Also that certain articles concerning *Page 295
the indictment of defendant appeared in a newspaper printed and published in the town of Liberty, Union county, Indiana, and that said article tended to prejudice the minds of the people of said county against him. We do not find a copy of the newspaper article anywhere set out in appellant's brief nor do we find it in the record. Appellee filed a counter affidavit to the effect that the affiant was well acquainted with the citizens of Union county and that after the indictment herein had been returned against the defendant he had been in every township of the county and had talked with a large number of citizens of said county about William P. Kennedy and about the matters alleged in the indictment. That he did not discover any prejudice against him that would prevent him from having a fair trial in Union county. Section 2239, Burns 1926, § 9-1305, Burns 1933, § 2226, Baldwin's 1934, 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),177 Ind. 234, 97 N.E. 792; Hinkle v. State (1910),174 Ind. 276, 91 N.E. 1090. 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 presents an issue of fact to be determined by the court and is conclusive on appeal. Scheerer
v. State (1925), 197 Ind. 155, 158, 159, 149 N.E. 892;Hinshaw v. State (1919), 188 Ind. 447, 124 N.E. 458. It was not error to refuse to grant a change of venue.
Appellant's third error relied upon for reversal was the overruling of his motion for a peremptory instruction *Page 296
directing the jury to return a verdict in favor of 5. defendant, which instruction was tendered at the close of the state's evidence. The court overruled this motion whereupon the trial was resumed and appellant proceeded to introduce his evidence in defense of the action.
In the case of Wukina v. State (1920), 189 Ind. 535, 128 N.E. 435, the defendant at the close of the state's case in chief filed a motion to be discharged on the ground of the insufficiency of the evidence, which motion the court overruled. After the court's refusal to discharge him he introduced evidence. The refusal of the trial court to discharge him was one of the causes assigned in his motion for a new trial. In passing upon this question the court said (p. 536):
"If he desired to contest the sufficiency of the state's case in chief, he should have stood on his exception to that ruling of the court. His failure to do that leaves for our consideration only the sufficiency of the evidence to sustain the conviction."
In Bowen v. State (1920), 189 Ind. 644, 128 N.E. 926, this court said (p. 651):
"The refusal of the trial court to give the jury a peremptory instruction in favor of the defendant at the conclusion of the state's evidence is assigned as error. . . . However, by proceeding with the introduction of evidence after his motion was overruled, the defendant waived the motion."
Appellant's fourth proposition relates to the introduction of certain evidence which the trial court permitted to be introduced over the objection of appellant. Samuel P. Good, a bank 6. examiner, was asked the question, "Was then that sum of $88,625.00 a liability of the Citizens Bank in March, 1929, when you examined the bank?"
The evidence shows that Mr. Good was employed by the State of Indiana as a bank examiner, and as such *Page 297
bank examiner he examined the books of the Citizens Bank in March, 1929. That some forty or fifty customers had left bonds or money with the J.P. Kennedy Co. for safe keeping, or had left money with this firm with which to purchase bonds. That William P. Kennedy would place such bonds or money to the credit of the J.P. Kennedy Special Account. The record of this account was kept separate from the records of all other accounts. It was kept in a small black book but the money itself went in the general funds of the bank and became a part of the general assets of the bank. The black book containing the record of J.P. Kennedy Co. Special Account was not turned over to the bank examiners, nor did they know of any such account when they examined the bank. This account, in March, 1929, amounted to $88,625.00 and it was in reference to this account that the question objected to was directed. The question was whether or not this account was a liability of the bank. If the state meant to have the witness to state his opinion as to whether the account listed in the black book was, as a matter of law, a liability of the Citizens Bank in March, 1929, we think it was incompetent. But we do not so interpret this question. When the record is read in the light of all the facts developed by this witness, it is apparent that what the state intended by this question and was so understood by the court and jury was whether or not the witness, had he known the $88,625.00 represented bonds and money deposited with the bank or the J.P. Kennedy Co. for safe keeping, would have listed these items on the liability side of his report. In other words whether or not, as a bookkeeping proposition, the items making up the $88,625.00 should be listed as liabilities. Under this view we are of the opinion that the witness, as an expert book accountant and as a bank examiner was competent to answer the question and that the question was proper. *Page 298
It is further shown that Elmer F. Bossert in response to questions put to him by counsel for appellant testified that the account of J.P. Kennedy Co. Special, constituted a 7. liability of the bank, which rendered the evidence given by the witness Good, harmless, even though improperly admitted. The trial court did not commit reversible error in admitting this evidence. Shockley v. State (1924),194 Ind. 321, 142 N.E. 850; Dillon v. State (1924), 194 Ind. 600, 142 N.E. 643; Lee v. State (1922), 191 Ind. 515, 132 N.E. 582.
Appellant objected to the question, "Didn't you know, during the year 1929, that it was improper and unlawful for a bank to loan more than 20 per cent of its capital to any one 8. customer?" "I did not." It has been held in Perfect v. State (1923), 197 Ind. 401-408, 141 N.E. 52, that even though appellant was erroneously required to answer a question and where the answer was negative and favorable to appellant, he could not be harmed thereby. Shears v. State (1897),147 Ind. 51, 46 N.E. 331.
Appellant objected to the introduction in evidence of State's exhibit No. 50, which was a financial statement of J.P. Kennedy
Co., prepared by appellant, which statement was shown 9, 10. to be false. Appellant's objection was that this evidence was immaterial and irrelevant. This statement of the financial condition of the partnership of the J.P. Kennedy Co. to the Fletcher American Bank of Indianapolis, Ind., did not show any item listed in the black book which was the Special Account of the J.P. Kennedy Co. carried in the Citizens Bank. The statement did not show any liabilities at all. In the trial of this case appellant testified that the reason he did not exhibit the black book, carrying the J.P. Kennedy Special Account, to the bank examiners, was because this account was not the liability of the bank, but was the liability of the *Page 299
J.P. Kennedy Co. That the bank and the partnership were two distinct entities. The financial statement (exhibit No. 50) of the J.P. Kennedy Co., prepared by appellant, tended to contradict appellant's contention, and to show at the time he prepared this statement, he did not recognize that the Special Account kept in the black book was a liability of the bank. Under the objection made by appellant to the introduction of State's exhibit No. 50, the general rule is that the objection must be specific and that a general objection that it is immaterial and irrelevant presents no question for consideration on appeal unless the evidence offered is palpably not admissible for any purpose or under any circumstances. Williams v. State (1907),168 Ind. 87, 89, 79 N.E. 1079; Musser v. State (1901),157 Ind. 423, 430, 61 N.E. 1, and cases there cited. We find no reversible error in the admission of evidence.
Appellant complains of certain instructions given to the jury by the court and also the refusal to give certain instructions tendered by him. The first instruction complained of is 11. the first part of instruction No. 9. The part objected to by appellant reads as follows:
"In order to warrant a conviction of the defendant in this case, the burden is on the State to prove beyond a reasonable doubt, that said defendant was at the County of Union, and State of Indiana, on or about the 17th day of August, 1929, acting as the agent for Minnie Fields, either in his individual capacity, or as an officer of the Citizens Bank or manager of J.P. Kennedy Company, and that by virtue of such agency, he did then and there have control and possession of the sum of $2,387.43 in money, or check, or the credit or proceeds of the same, to the possession and ownership of which the said Minnie Fields was then and there lawfully entitled. That said defendant, while so acting as agent aforesaid, and being in possession of said property, as aforesaid, did then and there unlawfully, *Page 300
feloniously and fraudulently take, purloin, secrete, embezzle or appropriate to his own use, or to the use of Adelaide K. DuBois, Emmazetta K. Bonnelle, Samuel Lambert, Flora Kennedy, the Citizens Bank, and J.P. Kennedy Company, or one of them, said fund or some part thereof, all as alleged in one or the other of said counts of the affidavit."
Appellant's objection to this instruction is stated in his brief as follows:
"The relationship of principal and agent can only exist in the individual capacity of the parties, and cannot arise or exist by reason of the fact that a person has deposited money in a bank and that a partner in said banking business or an officer or manager thereof has been instrumental in the deposit of said funds as such partner or officer. In the case at bar, the appellant did nothing excepting to receive, on behalf of J.P. Kennedy Co., the funds of Minnie Fields, and execute a receipt therefor in the name of J.P. Kennedy Co., and then see that the moneys were deposited in its account in the Bank owned and operated by said J.P. Kennedy Co. From these facts it cannot be contended that the appellant was the agent of Minnie Fields in the handling of said funds."
It will be noted that appellant's objection argues the sufficiency of the evidence to establish the relationship of agency between appellant and Minnie Fields, rather than any misstatement of the law in this instruction. Whether appellant in his individual capacity or in his capacity as cashier of the Citizens Bank or manager of the J.P. Kennedy Co. acted as the agent of Minnie Fields in the transaction here in question was a fact to be proven by the evidence and submitted to the jury for its determination. This is the theory of instruction No. 9. We do not think appellant's objection is well taken.
Appellant next urges that the trial court erred in refusing to give to the jury his tendered instruction No. 10, which reads as follows: *Page 301
"You are further instructed that where 12. money is deposited with another person or firm for the purpose of being invested in bonds, to be delivered to the depositor upon thirty days' notice by the depositor, the effect of such deposit is that the said other person or firm is not required to deliver such bonds or the moneys so deposited until such thirty days' notice has been given by the depositor and the time of such notice has expired, and such receipt has been duly endorsed by the depositor and surrendered."
The evidence showed that Minnie Fields went to the Citizens Bank, of Liberty, Indiana, for the purpose of purchasing some non-taxable government, gravel road, or municipal bonds. That appellant was the cashier and general manager of the Citizens Bank; that she told appellant what she wanted and was told by appellant that they did not have the bonds on hands but would get them for her in a few days. Appellant filled out a check for the sum of money she desired to invest, to-wit: $2,387.43, payable to W.P. Kennedy, or bearer, Citizens Bank, Liberty, Indiana, which check was signed by her and delivered to appellant. Appellant made out a receipt for the same, which was introduced in evidence as State's exhibit No. 10, and is as follows:
"CITIZENS BANK, J.P. KENNEDY CO., LIBERTY, INDIANA. August 17th, 1929. Received of Minnie Fields, twenty-three hundred eighty-seven Dollars and forty-three cents ($2387.43) to be invested in U.S. Gravel Road or other non-taxable municipal bonds bearing 4 1/4 or 4 1/2%, deliverable upon thirty days' notice on the return of this receipt properly endorsed. Not Negotiable. Said bonds at market value or at least on a 4.40 basis. J.P. KENNEDY CO. By Wm. P. Kennedy."
The evidence further shows that appellant told Mrs. Fields at the time the check was delivered and the receipt was made out, that she should come in, within a few days and he would have the bonds. That she did call at the bank within a week or so, but was informed *Page 302
by appellant that the bonds had not come in yet, but that they would probably be in in a few days and for her to come in the next time they were in town. Mr. Fields, husband of Minnie Fields, did go to the bank in a few days thereafter and repeated his call at the bank some four or five times before the bank closed. Appellant told Mr. Fields on one occasion that the bonds had come in, but they were not the right kind so he sent them back. The evidence further shows that the Citizens Bank or J.P. Kennedy Co. at the time Mrs. Fields first went to the bank to purchase bonds did have government bonds such as she wanted to buy, and the evidence further shows that gravel road bonds or municipal bonds such as Mrs. Fields desired were available in the market within a very few days. The record further shows that appellant took the check of Mrs. Fields and deposited it to the credit of J.P. Kennedy Co. Special Account. That the proceeds of said check became a part of the general funds of the Citizens Bank, and was used in the business of the bank. That the cash reserve of the bank was far below the legal requirement and that appellant used the J.P. Kennedy Special Account in the following manner. That when the Bank needed additional cash, a check would be drawn against the J.P. Kennedy Co. Special Account, for whatever amount was determined upon. This check would be used to purchase a like amount of notes held by the bank. These notes so purchased by J.P. Kennedy Co., a partnership, which owned and operated the Citizens Bank, would be forwarded to some corresponding bank as collateral security along with a note executed by the J.P. Kennedy Co. to such corresponding bank. The bank making the loan would then place the amount of the loan to the credit of the Citizens Bank and would hold the notes so purchased by J.P. Kennedy Co. by a check drawn against the J.P. Kennedy Co. Special *Page 303
Account as collateral security. In August, 1929, there was deposited in the J.P. Kennedy Co. Special Account almost $90,000.00, which belonged to various people who had turned over to the J.P. Kennedy Co. money, bonds, and other valuables for safe keeping or for some specific purpose.
It will be seen from the above facts that the provision in the receipt that the bonds would be delivered to Mrs. Fields upon thirty days' notice, had nothing to do whatever with the crime of embezzlement charged against appellant. It in no way authorized appellant to appropriate the check or the proceeds thereof to his own use or to the use of some one else. Appellant's instruction No. 10 was in no way applicable to the facts in the case nor to the crime charged and was very properly refused. Collins v.State (1921), 192 Ind. 86, 131 N.E. 390; Males v. State
(1927), 199 Ind. 196, 156 N.E. 403; Cole v. State (1922),192 Ind. 29, 134 N.E. 867.
Appellant's tendered instructions Nos. 11, 13, 14, 16, 20, 22, 24, and 26, were sufficiently covered by the instructions given. They attempt to instruct the jury on the law of agency as 13. it relates to this case, and the law of fraudulent intent on the part of appellant. These subjects were fully and fairly covered by the court in other instructions and we think the jury was fully informed as to the law on these subjects.
Appellant's instructions Nos. 15, 19, 21, and 27 were properly refused. Instructions Nos. 15, 19, 21, and 27 have no application to any principle of law involved in this case, and said 14. instruction No. 27 is clearly not applicable to the facts and was correctly refused. Reading the instructions given to the jury in this case we are thoroughly convinced that the jury was fully and fairly instructed in the law and that appellants rights under the law was in no wise prejudiced or unprotected. *Page 304
Appellant contends with much seriousness that the evidence is insufficient to support the verdict. He says that the evidence does not show a conversion nor does it show criminal 15. intent. He however admitted in oral argument that the evidence does show a trust relationship and contends that her claim against the receiver should be allowed as a preferred claim on the ground that it was a trust fund. It is his position, as stated in oral argument, that inasmuch as Minnie Fields gave a check to appellant, it was given with the understanding on her part, and so received by appellant, that the check should be converted into cash, and in so doing appellant was carrying out the contract, and therefore there was no wrongful conversion of the funds. If he did only that which he was directed to do, such act could not be construed as a conversion. While it is true we think appellant had the right to place the check of Minnie Fields in the proper channels for the purpose of collection, but this he did not do. Instead of sending this check through for collection, he sent it to the Fletcher American Bank for credit, and the evidence shows that the Citizens Bank was given proper credit for the amount of the check. The proceeds of this check went into the general funds of the bank, the same as any other general deposit. This was a violation of the trust relationship and therefore a wrongful conversion of the proceeds of the check. Minnie Fields did not give appellant the check for the purpose of using the proceeds thereof in his own business or the business of J.P. Kennedy Co. It was given to him as cashier, for a different purpose. She understood as well as he that the proceeds were to be used for one purpose and one purpose only, and that was, for the purchase of certain kinds of bonds. Any other use of the proceeds by appellant would be wrongful and would amount to a conversion. Appellant had no more right to turn over to J.P. *Page 305
Kennedy Co. the proceeds of that check for general banking purposes and to mingle it with the general funds of the bank than he would to have used it in the purchase of a horse or a farm. This wrongful appropriation of the proceeds of the check is the second essential element of the crime with which appellant was charged.
Appellant further contends that the evidence is insufficient to show conversion for the record shows that when the bank was closed on account of insolvency, there was a cash reserve of over three thousand dollars in the bank, and which passed into the hands of the receiver, and that this fact shows conclusively that appellant never converted the funds at all, but that they were left in the bank and are now in the hands of the receiver, and that Mrs. Fields is entitled to have her claim paid out of this fund for the reason that the appellant received her check in trust, and therefore the proceeds thereof would constitute a trust fund in her favor.
We cannot agree with the first part of appellant's contention. The proceeds of the check, we agree, constituted a trust fund, and appellant had no right or authority to use said funds in any other manner or for any other purpose than in accordance with the trust agreement, to-wit, to purchase non-taxable bonds. But appellant did not do this. He caused it to be deposited, in effect, with his bank and the proceeds of the check became mingled with the general funds of the bank, and was used by the bank for banking purposes. This, we again say, constituted a wrongful conversion of the fund.
It was said in the case of Milbrath v. State (1909),138 Wis. 354, 120 N.W. 252, that (p. 362):
"One may convert money of another to his own use by paying it out upon his private or personal debt. Guenther v. State, 137 Wis. 183, *Page 306
118 N.W. 640. If this is true, he can convert the money to his own use by putting it into the treasury and mingling it with the funds of an insolvent corporation which is under his control and management and of which he is a stockholder and officer in charge."
The conversion in the instant case took place when he violated his trust relationship and put the proceeds of the check to the use of himself and others instead of using it for the benefit of Mrs. Fields as he had agreed.
Having shown that the evidence establishes a trust relationship between appellant and Minnie Fields and that appellant wrongfully converted said trust funds, it remains to be shown that 16. the evidence sufficiently supports the third element, that of criminal intent, which is necessary to constitute embezzlement under the statute. If appellant or the partnership of J.P. Kennedy Co. was a trustee of funds derived from the collection of the check, and wrongfully converted said funds with a felonious intent, appellant is guilty of embezzlement under the statute. The jury in determining the question of criminal intent must look at all the facts and circumstances shown by the evidence. The evidence shows that the cash reserve of the Citizens Bank at the time the check in question was delivered to appellant, was far below the legal requirement and continued to become smaller until the bank was closed by the State Banking Department. Under such circumstances it was altogether human for appellant to make a strong effort to raise the cash reserve as much as possible. This condition furnished a strong temptation for appellant to overreach the bounds of propriety and use the funds intrusted to him for a specific purpose, for the use of the bank in its general banking business. The evidence further shows that at the time Minnie Fields attempted to buy non-taxable bonds, J.P. Kennedy Co. or the Citizens Bank had on *Page 307
hands available for sale government bonds, in the approximate amount and kind which she desired to purchase, but appellant made no mention of this fact to Mrs. Fields but on the contrary told her in substance that they did not have the kind of bonds she desired, but could and would secure them for her in a few days. The evidence shows that Mrs. Fields or her husband called at the bank five or six times thereafter and inquired about the bonds, and was told that they had not come in, but that he would have them within a few days. On one occasion appellant told Mr. Fields that the bonds came in but that they were not the kind he wanted to purchase for her and for that reason he returned them. It was shown by the evidence, that appellant made no effort to purchase any bonds for Mrs. Fields. He had not corresponded with any bank or brokerage firm concerning bonds such as Mrs. Fields desired. That no bonds were in fact received by appellant and returned by him as he had told Mr. Fields. The conduct of appellant after he received the money from Minnie Fields certainly was of such a character that the jury was abundantly justified in finding that appellant converted said trust fund with a felonious intent to deprive her of her money.
We think the evidence sufficient to support the verdict. We have examined every alleged error assigned by appellant and find no reversible error.
Judgment affirmed. *Page 308 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428423/ | Appellant was charged by affidavit with having violated the prohibition law in many different ways, but he was found guilty only as charged in the *Page 641
first and fifth counts of the affidavit, and not guilty as to the other counts. The first count alleged, substantially in the language of § 1, ch. 23, Acts 1923 p. 70 (amending § 8356d Burns' Supp. 1921), that on August 27, 1923, at Marion county, State of Indiana, the defendant did a number of acts forbidden by said section of the statute, one of which was that he, "did then and there unlawfully manufacture * * * intoxicating liquor," etc. And the fifth count charged, substantially in the language of § 20, ch. 4, Acts 1917 p. 15 (§ 8356t Burns' Supp. 1921), that at said time and place he "did then and there unlawfully maintain and assist in maintaining a common nuisance, to wit: a room, house, building, boat, structure, club and place where intoxicating liquors were then and there manufactured * * * in violation of the laws of this state * * * and the said defendant did then and there keep intoxicating liquor in, and use the same in maintaining said place, contrary," etc.
Overruling the motion for a new trial is the only error properly assigned. Whatever error (if any) the trial court may have committed in overruling a motion to suppress evidence, 1. and in thereafter admitting such evidence against appellant, should be specified as a cause for a new trial, under the 1st subd. of § 2825 Burns 1926, § 2158 Burns 1914, Acts 1905 p. 584, as being an irregularity in the proceedings by which the complaining party was prevented from having a fair trial, and not as an independent error. Volderauer v. State (1924),195 Ind. 415, 143 N.E. 674. Witnesses testified that, in a house occupied by appellant, the police officers seized two gallons of grain alcohol, two quarts of gin, ten gallons of beer, a pint bottle of coloring matter, ninety-five empty quart bottles, some new gin bottles, a bottle capper and a ten-gallon *Page 642
jar with yeast and sugar in it that was foaming, its contents being (a witness testified) "beer in the making"; that appellant said of such contents: "That is a little beer I am making," and that the officers had a search warrant issued by the city judge. It was also proved without objection and without conflict that his house where these things were found had a bad reputation as a place resorted to for the purpose of drinking intoxicating liquor as a beverage.
Appellant does not challenge the sufficiency of the evidence, if received and acted on, to sustain the finding of guilty, but says that for certain alleged reasons all evidence of what 2-4 the officers learned by searching his premises should have been suppressed, and that, without this evidence, there is not enough to sustain the verdict. The record shows that, on the morning of the trial and before it commenced, the defendant filed a motion in writing asking that all such evidence be suppressed, and then continues: "The State files general denial. Evidence on motion heard, and the court, being fully advised in the premises, finds against the defendant on his motion," etc. But no attempt has been made to bring to this court, by bill of exceptions or otherwise, any of the evidence so heard, on which the court based its ruling. No objections were made nor exceptions saved to any of the evidence introduced at the trial of the issue joined by defendant's plea of "not guilty." And the only information which the record affords as to the basis of appellant's contention that the evidence was obtained in an unlawful manner is certain statements in the motion which the court overruled. That the action of the trial court in overruling a motion was erroneous can only be established on appeal by presenting a record affirmatively showing the existence of facts which imposed a duty to sustain the motion. Averments in the motion itself cannot be *Page 643
accepted as establishing the truth of what is therein stated, especially where it appears, as it does here, that evidence was heard on which the court acted in overruling the motion. Peto
v. State (1922), 193 Ind. 103, 105, 136 N.E. 556; JacksonCivil Tp. v. Darrow (1922), 192 Ind. 136, 143, 134 N.E. 779.
The trial court is not shown to have erred in overruling appellant's motion to suppress the evidence.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428204/ | Appellee is a Pennsylvania corporation which operates plants outside the State of Indiana and one plant at East Chicago, Indiana. The Indiana plant is engaged in the manufacture of silica refractory material which is sold to steel manufacturers who use the material for lining open hearth furnaces devoted to the refining of steel where the material is exposed to terrific heat which reduces the metal to a molten condition and to the action of corrosive dust, slag and fumes. These physical and chemical reactions are such that the use of some of the material is frequently limited to a period of less than two weeks after which that portion of same which remains is useless for all purposes. In many instances, however, the life of the material is substantially longer, the testimony varying in that regard between a four months and a six and one-half months period. From the testimony it is also apparent that the useful life of the material varies with its thickness, i.e., a 24-inch thickness is much longer lived than a 12-inch thickness, etc. For convenience in application the material is supplied in the form of bricks which are cemented together with a binder composed of the same material. The only use to which the material is devoted is that herein described.
The Gross Income Tax Division taxed the gross receipts derived from the sale of this material at the rate of one per cent for the years 1938 and 1939 which tax the appellee paid under protest.
The cause was tried to the court below on the complaint and answer, the stipulations of the parties and the depositions of two expert witnesses, the trial resulting in a judgment for appellee, that it was entitled *Page 698
to recover, on account of taxes and interest previously paid by it, the sum of $4,314.82 with interest thereon at the rate of 3% per annum from the dates of payment thereof until paid and costs.
The sole error assigned is the overruling of appellant's motion for a new trial which questions the sufficiency of the evidence and asserts that the decision of the court below is contrary to law.
The question here presented is whether gross receipts from the sale of this material shall be taxed at the rate of one-fourth of one per cent or at the rate of one per cent.
The answer turns upon the construction of the Gross Income Tax Act of 1933 as amended by the Acts of 1937, § 3 (a) that portion of same pertinent to the issue here being:
"(a) With respect to that part of the gross income of every person which is received from wholesale sales; except as hereinafter provided in subsection (d) of this section, the tax shall be equal to one-fourth of one per cent of such part of the gross income. The term `wholesale sales' means and includes only the following: . . . (2) Sales of any tangible personal property as a material which is to be directly consumed in direct production by the purchaser in the business of producing tangible personal property by manufacturing, processing, refining, repairing, mining, agriculture, or horticulture: . . . Provided, further, That price or quantity shall not be considered in the application of this definition: . . . Provided, further, That the term `consumed' as used herein shall refer only to the immediate dissipation or expenditure by combustion, use, or application, and shall not mean or include, the obsolescence discarding, disuse, depreciation, damage, wear or breakage, of tools, dies, equipment, rolling stock or its accessories, machinery or furnishings." *Page 699
Appellant contends that the refractory material hereinbefore described is not consumed within the meaning of the statute so as to fall within that classification of materials the sale of which is taxable at the lower rate and further asserts that the material constitutes "equipment" within the meaning of the fifth proviso of said section 3 (a) (the second proviso in the section as quoted above) and that its destruction is by obsolescence, depreciation, or wearing out and not by consumption.
It is to be noted that the statute defines "consumed" as the immediate dissipation or expenditure by combustion, use orapplication. (Italics ours.)
Since the statute provides its own definition of the term we cannot here attempt another but must confine ourselves to a 1. construction of the one given as it concerns this instant case.
The appellant does not contend that the material herein described is not directly used in direct production by the steel manufacturer, but, as above stated, asserts that it is not "consumed."
That there is here involved a dissipation or expenditure by use is a certainty beyond the realm of conjecture. The term "immediate," however, is one admitting of a wide variety of definitions. It is the indicium of a time interval as well as that of an interval of space. It can indicate relativity or continuity. It is the opposite of ultimate. It is qualitative, not quantitative, relative, not absolute. In its strictest sense as a time referent it means the present instant, instantaneously, without appreciable lapse of time; but to give the term this literal interpretation would strip the section here in controversy of all practical sense and applicability. That the Gross Income Tax Division *Page 700
itself does not adopt such a theory is indicated by its own regulations wherein, among other things, coal and lubricating oils were classified, in effect, as materials "immediately dissipated or expended by combustion, use or application." There is an appreciable lapse of time involved in the consumption of these materials.
If, as appellant urges, the term "immediate" as used in the statute is a time referent then his argument falls under the weight of authority in this and other states for it has 2. been held generally that the construction of the term when it occurs in contracts or in statutes is, that the act referred to shall be accomplished within such convenient time as is reasonably requisite. Pacific Mut. Life Ins. Co. v.Branham (1904), 34 Ind. App. 243, 70 N.E. 174; The InsuranceCompany of North America v. Brim (1887), 111 Ind. 281, 12 N.E. 315; Martin et al. v. Pifer (1884), 96 Ind. 245; Fidelity Deposit Co. v. Courtney (1900), 103 F. 599, 43 C.C.A. 331.
Certainly the process of dissipation or expenditure involved here is accomplished within such time as is reasonably requisite to accomplish the object. This process begins with the 3. first application of heat in the furnaces and is continuous and unabated until the refractory material is rendered as useless as the ash from burned coal. This is especially true in the instant case where the evidence shows that the furnaces are being pushed to capacity under the necessities of the times.
However, the term may also be considered as applying to causation as well as duration of time. Viewed in this light the term should, as we believe, be understood not in reference to the time which the act occupies, or the space through which it passes, or the place from which it is begun, or the intention with which it is done, *Page 701
or the instrument or agent employed, but in reference to the progress and termination of the act, to its being done on the one hand, and its having been done on the other. If, in the instant case the dissipation of the refractory material is accomplished by the act of manufacture, at any moment of its progress, from the commencement to the termination thereof, then the dissipation is direct or immediate; if it arises after the act has been completed, though occasioned by the act, then it is consequential or collateral, or, more exactly, a collateral consequence.
Here the process of dissipation is set in motion by the first step in the manufacturing process, i.e., the first application of heat. The evidence shows that after this first heat the material is rendered useless for all other purposes. It cannot be removed, nor can it be re-sold. From thence forward its dissipation continues until it is useless for all purposes. The whole process of manufacture is one continuous, entire, immediate act, embracing in its progress the destruction of the refractory material. Its dissipation or expenditure is, therefore, immediate within the definition indicating causation.
Some additional light is cast on the present controversy by the decision of the Supreme Court of the State of Michigan in the case of Hertzler v. Manshum (1924), 228 Mich. 416,200 N.W. 155, wherein it was stated that the term "for immediate consumption" was intended to and did signify that the consumable goods in question had reached that consumer where it was withdrawn from the marts of trade.
We are constrained to the opinion that the refractory material here involved is properly classified as that consumed by "immediate dissipation or expenditure by combustion use or application." *Page 702
See: Old People's Home Society v. Wilson (1898), 176 Ill. 94, 52 N.E. 41; Robbinston v. Lisbon (1855), 40 Me. 287;Thompson v. Gibson (1841), 8 Mees Wels. 281; Konrad v.Casualty Surety Co. (1897), 49 La. 636; Lyon v. TheRailway Passenger Assurance Co. (1877), 46 Iowa 631; Fidelity Deposit Co. v. Courtney (1902), 22 S. Ct. 833, 186 U.S. 342, 46 L. Ed. 1193; Sawyer v. Perry (1895), 88 Me. 42, 33 A. 660;Foreman v. Louis Jacques Const. Co. (1932), 257 N.Y.S. 45,235 A.D. 494; United States v. Hawley Letzerich
(1908), 160 F. 734; Albuquerque Lumber Co. v. Bureau ofRevenue of New Mexico (1938), 42 N.M. 58, 75 P.2d 334.
The sole question remaining is whether the exception set out in the fifth proviso of said section 3 (a) should apply here, i.e., "shall not mean or include, the obsolescence, discarding, 4. disuse, depreciation, damage, wear or breakage of tools, dies, equipment, rolling stock or its accessories, machinery or furnishings." The assumption that the exception is here applicable can rest only upon the premise that the material is "equipment." Obviously, it is not tools nor dies nor rolling stock or its accessories, nor machinery or furnishings. We are compelled to admit, however, that it may possibly be classified as equipment and that its disintegration, if we may so term it, may be attributed to "damage" or "wear."
However, for the purposes of taxation it must fall into one or the other classification; it cannot occupy both. We have concluded that it is material gross receipts from the sale of which are taxable at the rate of one-fourth of one per cent. If such gross receipts also can be taxable at a higher rate under another classification then the doubt must be resolved by giving the statute that construction most favorable to the taxpayer. *Page 703 Department of Treasury of Indiana v. Muessel et al. (1940),218 Ind. 250, 32 N.E.2d 596.
Judgment affirmed.
NOTE. — Reported in 48 N.E.2d 834. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428205/ | This is an action by the appellee, against *Page 52
the appellant for damages for the death of appellee's intestate alleged to have occurred as a result of the negligent operation of an automobile by the appellant. There was a verdict and judgment for appellee in the sum of $4,000.
The error relied on for reversal is that the court erred in overruling appellant's motion for a new trial. In the motion for a new trial, it is alleged that the court erred in the admission of certain evidence, and in the giving and refusing to give certain instructions. It is also alleged that the verdict is not sustained by sufficient evidence, and that it is contrary to law.
The complaint, among other things, alleges:
"`The plaintiff Bertha Wilson, administratrix of the estate of Harry D. Wilson, as such administratrix, complains of the defendant Clarence Johnson and for a cause of action alleges:
"`That on the 8th day of March, 1930, about 9 P.M., plaintiff's intestate was driving a Ford roadster east on a public highway known as New Augusta Free Gravel Road or 71st Street; that said street or public highway runs east and west from State Highway Number 29, through New Augusta and connects with State Highway Number 52; that said highway is a part of the Dandy Trail that encircles the City of Indianapolis, and traffic was heavy thereon, on said date, which fact was well known to the defendant in that it was being used by many vehicles in passing from said State Road No. 29 over to State Road 52, and the traffic had been heavy on said road for many months before.
"`That said 71st Street is intersected about one mile west of New Augusta by a road running North and South known as the Zionsville Road; that while plaintiff's intestate was so driving East on 71st Street the defendant with three boys as companions was carelessly and negligently driving a model A Ford sedan south on said Zionsville Road at a terrific, dangerous and unlawful rate of speed; to wit: 50 miles per hour; that the defendant saw the roadster as it was being driven by plaintiff's intestate from the west toward said intersection when *Page 53
it was 100 yards or more from said intersection and continuously until it reached said intersection or could have so seen it by the exercise of reasonable care; that said intestate drove to the intersection of said Zionsville Road and said 71st Street and had his roadster at or to the east of the center of said intersection and while he was traveling east at that point the defendant carelessly, and negligently and with great force and violence drove said Ford Sedan into and against the north side of the roadster so being driven by the plaintiff's intestate and knocked or shoved said roadster and plaintiff through fence and many feet into a field to the southeast of said intersection; that by reason of the negligence of the defendant as aforesaid his sedan turned over a number of times and rested bottom side up with its rear end on the rear end of the roadster, and both machines caught fire.
"`That by reasons of the negligence of said defendant, as aforesaid, and without any fault or negligence of plaintiff's intestate, plaintiff's said intestate was crushed and burned to such an extent that he died from said injuries within a few minutes after being so crushed and burned; that the defendant's negligence as aforesaid was the proximate cause of plaintiff's death.'"
It is contended by appellee that none of the instructions are properly in the record, and, therefore, no question is presented as to them. It is the contention of appellant in his reply 1. brief that the instructions are properly in the record under section 2-2010 Burns 1933, section 343 Baldwin's 1934. The court of its own motion gave twenty-four instructions. The plaintiff tendered six instructions, and the defendant tendered seven. The foregoing section requires that all instructions requested shall be signed by the party or his counsel. It also requires that "the court shall indicate, before instructing the jury, by a memorandum in writing, at the close of the instructions so requested, the numbers of those given and of those refused, and such memorandum shall be signed by the judge." The record fails to show that the requested instructions were signed by the *Page 54
respective parties or their counsel. Neither does it show any memorandum in writing, at the close of the instructions so requested, signed by the judge, the numbers of those given and those refused. It is clear that the appellant has not followed the provisions of said section 2-2010, supra, in properly bringing his instructions in the record.
In the recent case of Penn. R.R. Co. v. Hemmer,Administratrix (1934), 206 Ind. 311, 186 N.E. 285, 189 N.E. 137, we find a state of facts similar to those in the instant case. In passing upon the question as to whether the instructions were in the record, the court said (p. 317):
"An examination of the record shows a complete absence of a written memorandum at the close of appellee's requested instructions indicating the numbers of the instructions to be given or to be refused. . . . An appellant may bring up instructions by a special bill of exceptions or as a part of the record which `may be included in the transcript on appeal.' If he chooses to bring them up as a part of the record they must be made a part of the record; and this can be done only by substantial compliance with the provisions of the statute."
It was held that the instructions were not properly in the record.
The case of Morgan Construction Company v. Dulin (1916),184 Ind. 652, 109 N.E. 960, was cited, in which there was a like state of facts, and the same conclusion reached.
In the case of Schamahorn et al. v. Gehlhausen (1928),88 Ind. App. 93, 95, 163 N.E. 289, it is said:
"Appellants undertook to present error as to instructions under the provisions of § 586 Burns 1926. This section provides that: `The court shall indicate before instructing the jury, by memorandum in writing at the close of the instructions so requested *Page 55
the numbers of those given and refused, and such memorandum shall be signed by the trial judge.' These steps were not taken. Nothing is therefore presented as to alleged error in giving instructions."
See also Halstead v. American Magnestone Corporation (1926),84 Ind. App. 205, 149 N.E. 698, to the same effect. Based upon the foregoing authorities and the statute, we are compelled to hold that the instructions are not in the record, and we cannot consider any questions based upon alleged errors in giving or refusing to give instructions.
The fourth reason assigned for a new trial is "that the court erred in admitting in evidence over the objection of the defendant the testimony of the witnesses, W.J. Pray and 2, 3. Bertha Pray, that they heard an automobile driving at an excessive rate of speed past their house on the evening of the accident alleged in plaintiff's complaint when such automobile was not identified or shown to have been the automobile driven by the defendant. It appears from the evidence that the Prays lived on the Zionsville Pike north of 71st street twenty or twenty-five rods. The witness, Bertha Pray, was asked what first attracted her attention to the accident at the intersection and she answered "the roar of the car" that came from the north. No objection was made to the question. Later in the examination, the following questions were asked and answers given:
"Q. I believe you said you didn't even see the car? A. No, I didn't see it. Q. You just heard it? A. I just heard it. Q. Can you describe that noise to the jury? A. It just sounded to me like a car running wide open; that was the way it sounded to me."
There was no objection made to the last question, but a motion to strike out the answer as not being responsive *Page 56
to the question was made by appellant. The motion was overruled and properly so. The answer was responsive to the question asked. The witness was asked if she had some notion about the speed, and she replied, "No, I couldn't say as to that." She at no time, as shown by the evidence, stated that she heard an automobile driving at an excessive rate of speed.
The witness, W.G. Pray, testified that a noise attracted his attention just immediately before the accident. He was asked to describe the noise to the jury. His answer was:
"A machine came past our house fast — it sounded like it was fast. It sounded like it was wide open."
No objection was made to the question. The appellant moved to strike out the answer on the ground that "It is simply a conclusion of the witness." The motion was overruled. The only questions asked of this witness as to speed were asked by appellant on cross-examination as to the car coming from the west, which was the decedent's car. The witness was asked on cross-examination by appellant if he could tell anything about the speed the automobile from the west was traveling, and he said he could not. The witness was further asked if the machine was running fast or slow, and he said, "I believe it was running a pretty good gait. I thought it to be speeding along pretty fast." This evidence was brought out by appellant on cross-examination, and, even if harmful, he cannot now complain. In view of the evidence of the Prays as above set out, there is no merit in the fourth assignment of appellant for a new trial for the reason that neither of the witnesses testified that they heard an automobile driving at an excessive rate of speed past their house, unless it be the evidence brought out on cross-examination of Mr. Pray by appellant as to the speed of the car of the decedent going east, and as to this appellant cannot complain. *Page 57
The cases cited by appellant in support of the fourth assignment of error are not applicable under the facts in this case.
It is further contended by appellant that the verdict 4, 5. of the jury is not sustained by sufficient evidence, and that it is contrary to law.
It appears from the evidence that on the night of March 8th, 1930, the appellant and three other young men were out riding in a Ford sedan, having gone from the city of Indianapolis north to Zionsville; and near 8:30 p.m. they started to return to Indianapolis on what is known as the Zionsville gravel road, which runs north and south; that south of Zionsville about five miles there is a paved road known as 71st street which crosses the Zionsville gravel road; that appellee's decedent was going east on said 71st street in a Ford roadster, and, while so crossing said intersection, there was a collision of said cars; and, as a result thereof, Harry D. Wilson was killed; that the appellant was also badly injured, and both automobiles greatly damaged.
The four young men when in Zionsville were in a restaurant eating, and there was evidence by the proprietor of the restaurant that one of the boys had a flat whiskey bottle, one-third full, and it was placed on the counter, but at the request of the proprietor, it was returned to the boy's pocket. Mr. Hypes, the proprietor of the restaurant, testified that appellant was partly under the influence of intoxicating liquor. Another witness, Mr. Williams, testified he was in the restaurant at the time all four of the boys were, and that he smelled whiskey on one of the boys, Elza Kennedy. All of the young men denied they had any whiskey or had been drinking. Mr. Hypes further testified that one of the boys, as they left the restaurant, said, "We will be in Flackville in nothing flat." Flackville is located about six miles south of 71st street. *Page 58
John E. Williams, a witness, testified that while in the restaurant, Elza Kennedy, one of the four boys, said that he would be in Flackville in six minutes. Williams followed the Johnson car for about two miles after leaving the restaurant, and testified that he, Williams, was running about fifty miles per hour, and the distance from the Johnson car varied from time to time during the two miles.
It further appears from the evidence that, as the boys in the Johnson car were just south of the Prays' home, they saw a car coming from the west on 71st street. Some of the boys testified that the car coming from the west was from 275 to 300 feet west of the intersection, and it was claimed by them that they were nearer the intersection than the car of the decedent coming from the west. Robert Miller, one of the boys in the Johnson car, testified that "just about the time we got into the intersection, it looked like he (Harry D. Wilson) was about fifty feet from us, he hit us in the side." Robert Lakin, who was also in the Johnson car, testified that "when we first came to the intersection, he (Harry D. Wilson) was about fifty feet away; we were traveling twenty or twenty-five miles an hour, I imagine; we thought we had plenty of time so we started across and got about three-fourths of the way; it looked as though he picked up speed; I seen we were going to hit, and I ducked." The appellant testified that he saw the car coming from the west, and that it was running fifty miles per hour while he was running thirty miles.
The cars, when they collided, were knocked about twenty-five feet south of 71st street, and about the same distance east of the Zionsville road. A.H. Smith, a Ford dealer of Zionsville, who viewed the cars, testified that "the sedan was laying on the back of the roadster with its front wheels on the ground and the rear end laying on the back of the roadster. The roadster was standing *Page 59
upright. It had been badly charred. The top had been burned practically off; there was a dent in the left running board, and the left side, and the tires almost burned off. The dent in the running board was between the left front wheel and the left rear wheel, the running board, splash board and side of the car. The motor in the sedan had been set back in the frame, the fenders were crushed up, and the right wheel crushed out of shape."
It is provided by statute that every motor vehicle traveling upon any public highway shall have the right of way to any other motor vehicle approaching along an intersection highway from the right. Section 47-549 Burns 1933, § 11182 Baldwin's 1934. As between the parties here involved, the appellee's decedent had the preferential right. In the case of Blasengym v. GeneralAccident, Fire and Life Assurance Corporation, Ltd. (1929),89 Ind. App. 524, 528, 165 N.E. 262, it is said:
"We think that both drivers should exercise reasonable care to avoid coming into a collision, and that when a driver who is approaching a street or highway intersection, even though he arrived at the intersection at the curb line first, sees a vehicle approaching from the right and near enough that there is a reasonable probability that a collision will occur if both proceed, then it is the duty of such driver to yield the right of way to the one approaching from the right."
It is well settled that, where more than one inference may be reasonably drawn from the facts, the question is one of fact for the jury, under proper instructions from the court. As said in the case of Indianapolis Traction and Terminal Company v.Miller (1913), 179 Ind. 182, 184, 100 N.E. 449, "Where more than one inference can be drawn from the facts, the question of negligence is one of fact for the jury to determine." And also inIndiana Union Traction Company v. Love, Administrator (1912),180 Ind. 442, 447, 99 N.E. 1005, it is said: *Page 60
". . . where the court can perceive that reasonable men might honestly differ in their conclusions, and the facts are of a character to be reasonably subject to more than one inference or conclusion, as to whether negligence or contributory negligence exists, the question is one for the jury, and cannot be determined as one of law."
It is strenuously insisted by appellant that the evidence does not show that appellant was guilty of negligence, and that it does show that appellee was guilty of contributory negligence; and therefore, there is no liability against appellant.
It can not be said that the facts in the instant case are undisputed, and the inferences which can be drawn from them are unequivocal, and can lead to but one conclusion. We think that the facts as presented by the record in the instant case are of such a character as to be reasonably subject to more than one inference or conclusion; and, therefore, the question of negligence and contributory negligence is one of fact for the jury to determine. The jury returned a verdict for appellee, which amounts to a finding that appellant was guilty of negligence, which was the proximate cause of the death of the decedent; and that the decedent was free from contributory negligence. Louisville Southern Indiana Traction Company v.Lottich (1915), 59 Ind. App. 426, 106 N.E. 903.
We have carefully examined the evidence in the case, and believe that it is sufficient to sustain the verdict. The verdict is not contrary to law.
Judgment affirmed. *Page 61 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428207/ | Action by appellee against appellants for damages for the alleged breach of contract. The action was commenced in November, 1922, and the appellee filed an affidavit and bond, and asked that writ of attachment issue against the goods and chattels of appellants, the grounds for the issuance of such writ, as stated in the affidavit for attachment, being the nonresidence of said appellants. The writ of attachment was issued as prayed and by virtue thereof the sheriff of said county seized goods and chattels, the property of appellants, of the value of several thousand dollars, and such proceedings were thereafter had in said cause that on April 21, 1923, a judgment was rendered upon default against appellants in the sum of $12,275 and costs, and the property which had been attached was sold by the sheriff, and proceeds applied in part satisfaction of said judgment.
Thereafter on May 9, 1923, the appellants, who, as appears by the record, had been notified of the filing and pendency of said suit by publication only, — constructively served, — filed their verified application, or complaint, to set aside said judgment, open up said case and to permit them to defend said action, and in said application they alleged that they had a meritorious defense to said action. To this application the appellee appeared by its attorney and resisted the same. On a hearing this application of appellants was sustained, *Page 557
and said judgment vacated, the said default set aside, and appellants permitted to defend said action.
Later the appellants by leave of court filed an answer in general denial to the said complaint, and also thereafter filed their cross-complaint against the appellee in three paragraphs.
The appellee, in its complaint, had alleged that in December, 1920, it was engaged in the general business of owning and holding oil and gas leases and of developing the same, by drilling and exploring for oil and gas; that the appellants at said time were a partnership, and as such engaged in the business of drilling oil and gas wells as contractors; that appellee was, at said time, the owner and holder of a certain oil and gas lease covering a farm, known as the Henry Mauck farm, in Gibson county, Indiana, and on the 13th day of December, 1920, it entered into a contract, in writing, with appellants under which they were to drill a well on said lease, exploring for oil or gas, the said written contract being set out in full in said complaint.
The complaint then alleges that appellee "had done and performed all things required by the terms of said contract to be by it done and performed"; that the appellants had entered upon said premises and commenced the drilling of a well, and had drilled the same to a depth of about 1,250 feet, but, that on the 4th day of September, 1921, appellants quit work on said well and had abandoned said well and all work thereon, although said well had not been drilled to the depth specified and required by said contract; that though often requested so to do, appellants had refused to resume work thereon and complete said well.
Two elements, as damages, were alleged in said complaint as having been suffered by the appellee, namely, — that it was the owner and holder of a number of other *Page 558
oil and gas leases on farms in the vicinity of the Mauck farm, and that in order to hold said leases and prevent the lapse and forfeiture of the same, it had been compelled to expend, and had expended the sum of $5,000, in carrying said rentals, — also, — that it had been put to an expense of more than $10,000, in erecting the drilling rig, procuring and delivering casing on the ground at said well, all of which had been wholly lost to appellants.
The contract entered into by the parties, under date of December 13, 1920, was as follows:
"Preston Oil Co., Pittsburgh, Pa.
Gentlemen: — We hereby propose to drill, in search of oil or gas, a well on lease known as Henry Mauck farm, situated in Montgomery Township, Gibson county, Indiana, to and through the second McCloskey sand, unless oil or gas in sufficient paying quantities may be found at a lesser depth, for a price of three dollars and fifty cents ($3.50) a foot, you to furnish rigs and casing on the ground. We agree to do the drilling, provide all equipment, tools, fuel, and water at the aforementioned price of $3.50 per foot. Any expense incurred by us in drawing or reseting of casing or extension of same by other methods after the same has been set at or in the McCloskey No. 1 sand to be paid by you.
"The drilling of said well to begin as soon as derrick can be erected thereon. If this meets with your approval, please signify by accepting this letter in writing.
Yours very truly, Schaffner Bros., By Chris Schaffner.
"The above proposal accepted by us this 13th day of December, 1920.
Preston Oil Company, By A.B. Loucks, President." *Page 559
The first paragraph of cross-complaint alleged the execution of said contract, pleading the same haec verba, that under and in pursuance of said contract, and at the request of appellee, they had expended money to a large amount, in placing casing, lumber and materials on the ground; that said money was so expended in January, 1921; that appellees, though requested, had neglected and refused to reimburse appellants for the money so expended; that appellants had commenced the drilling of said well and had requested the appellee to pay, at the end of each month, for the work done in drilling said well during the previous month, but appellee refused so to do; that appellee refused to pay to appellants any money whatever so due, though often requested so to do, and that because thereof appellants ceased work on said well on September 4th, 1921. Damages were asked in the sum of $10,000.
The second paragraph was for work and labor done, money expended and materials furnished, and claimed a balance due thereon of $6,877.50.
The third paragraph of cross-complaint sought to reform the said contract, alleging a mutual mistake therein, so that said contract would specifically provide for the payment of said work of drilling said well, as the said work progressed; it also alleged that said well had been drilled to a depth of 1,565 feet, and that there was due therefor the sum of $5,477.50, and that there was also due appellants for labor, money paid, and materials furnished, in and about erecting and placing "rigs" and casing on the grounds, the sum of $1,400.
Reply in general denial, and of payment, closed the issues which were submitted to the court for trial with a request that the court make a special finding of the facts and state its conclusions of law thereon, which was done, the court stating eight conclusions of law, to each *Page 560
of which, except the 2nd and 3rd, the appellants duly excepted; they also filed a motion for a new trial, and a motion to modify the judgment, each of which was overruled, with exception to appellants.
At the conclusion of all of the evidence the court, over the objection of appellants, permitted the appellee to amend its complaint by inserting therein as an additional element of damage the following allegation viz — "And that by reason of the breach of contract aforesaid, and by reason of the negligence in the care of said casing on the part of the defendants, the casing has depreciated in value and has been damaged in the sum of $1,990.90." Error is predicated also upon this action of the court.
The special findings, so far as they are material to the decision of the questions involved, as to the validity of the several conclusions of law, were in substance as follows: — That on and prior to the 13th day of December, 1920, the appellee was the owner and holder of an oil and gas lease on the Henry Mauck farm in Gibson county, Indiana (describing the premises); that it was also the owner of other oil and gas leases on farms located in the vicinity of said Mauck farm; that on December 13, 1920, appellants and appellee entered into a contract in writing, for the drilling of a well, exploring for oil and gas, on said Mauck farm (said contract as found being herein before set out); that appellants commenced drilling said well in March, 1921, and continued work thereon, except for intervals when stopped on account of shortage of labor and water, until September 4, 1921, when, at a depth of 1,565 feet, they discontinued all drilling operations; that said drill, when work stopped on said well, had not reached second McCloskey sand, nor had any oil or gas in paying quantities been found in said well; that as items of expense required *Page 561
by the terms of said contract to be borne and furnished by appellee, the appellants dismantled a certain "oil rig" owned by appellee, located in the state of Pennsylvania, hauled the same to the railroad station, and shipped the same to Owensville, Indiana, and transported the same onto said lease, and erected the same on said lease preparatory for drilling operations; that the labor so expended, materials used on said rig, and money paid for freight was reasonably worth $2,745.95, of which sum appellants have been paid $1,000; that said work was done, said materials furnished, and said money paid, with the knowledge and consent of appellee and for its use and benefit, and that said work was done, materials furnished, and freight paid under and pursuant to an oral agreement, made between appellants and one James L. Adams, an agent of appellee. The court further found that said written agreement contained the whole contract between the parties, and that there was no agreement relating to the payment of the work of drilling said well as the work progressed, either weekly, monthly, or otherwise; that between September, 1921, and August, 1922, the appellee, at various times, requested appellants to continue work on said well and complete the same according to said contract, but they refused so to do, and on August 22, 1922, appellee notified appellants that said contract was terminated. The court further found, that the appellee did not complete said well or have the same done, but had the casing pulled from said well, the rigging dismantled and removed, and it abandoned said well, although at the time said well was in good condition and could have been completed according to specifications in said contract at said time.
The court also found that appellee had paid $938.94 on account of other leases held by it, and to prevent a *Page 562
forfeiture thereof. The 23rd finding so far as now material was as follows: "That by reason of defendant's failure to properly care for and protect the said casing left on the ground at said well, . . ., the same depreciated in value in the sum of $1,473.26, which depreciation was caused by the negligence of the defendants."
The conclusions of law, to which exceptions were taken, were as follows:
1st. "The plaintiff is entitled to recover of and from the defendants, for rentals on leases paid by plaintiff, the sum of $938.94."
4th. "The defendants are not entitled to have said written contract of December 13, 1920 reformed in any particular."
5th. "The defendants are not entitled to recover of the plaintiff for the drilling done by them at the rate of $3.50 per foot, or for the reasonable value of such drilling."
6th. "The defendants had no just cause to discontinue said drilling."
7th. "The plaintiff is entitled to have the proceeds of sale of said goods and chattels under said writ of attachment and former judgment of this court applied towards the satisfaction of the judgment to be rendered herein, less, however, the amount of recovery of defendants against the plaintiff on defendants' cross-complaint herein. And the defendants are entitled to have refunded to them any surplus remaining after plaintiff's judgment is satisfied as herein provided."
8th. "Plaintiff is entitled to recover of the defendants on account of damage to casing left on the ground the sum of $1,473.26." We shall first notice the first conclusion of law stated by the court.
Under the facts found, was the appellee entitled to recover, as damages incident to the breach of the contract *Page 563
in question, the money it had paid out on account of lease rentals?
It is elemental that, in an action for damage for the breach of a contract, only such damage may be recovered as can be said to be the natural and proximate consequences of the breach, 1. and such as can be fairly said to have been contemplated by the parties as damages in case of a breach of said contract. Fuller v. Curtis, 100 Ind. 237. In the case of Coy v.Gas Co., 146 Ind. 655, 46 N.E. 17, it was said: "In actions on contract, as said by counsel, the damages that may be recovered for a breach of the covenants and conditions are, (1) those that result from the usual, natural, and probable consequence of the breach, and which, therefore, the parties may be thought to have had in mind when they entered into the contract; and (2) special damages referred to in the contract, and which actually occur, although not such as might naturally and probably be expected to arise out of the breach of the contract. It is to be observed that such special damages are also in contemplation of the parties in making the contract, as well as the damages of 2. the first which naturally flow from a violation of the contract. The difference is, that damages naturally arising from the breach of the contract need not be mentioned in theagreement made, but will be presumed to have been in contemplation of the parties, whereas, special damages, or thosenot naturally or usually arising from a breach of the contract,
though contemplated by the parties, must be specially referred to in the contract itself." (Our italics.)
The damages claimed were special, and were not mentioned in the contract. If the appellee, under the facts of this case, was entitled, as a matter of law, to recover as damages the money paid as rental on its oil leases, by the same token it was also entitled to recover the *Page 564
money by it laid out and expended, — $1,000, — in shipping the aforementioned property from Pennsylvania to Indiana, or any other expense which it incurred in the matter of the drilling of said well. We hold that appellee was not entitled to recover any sum of damages on account of rentals paid, and that the court erred in its first conclusion of law.
It will be noted that, although the court found that said well was in good condition and could have been completed, the appellees elected to abandon said well and had the casing pulled therefrom, and in this action made no claim for damages for completing said well, — for doing the thing which the appellants, by their contract had obligated themselves to do, and we need not, therefore, give any consideration to this element of damages, as no claim is made therefor.
We next consider the element of damage to casing, as a result of its being left lying on the ground, etc., after appellants had ceased work on said well.
This was an action, not in tort, but for damage for breach of a contract. Section 286, Burns 1926, provides what actions may be joined, but we find no authority therein for joining a 3. demand for damages alleged to arise from the breach of a contract, with a demand for damages to personal property, arising out of neglect, — a tort. See Boyer v. Tiedman,34 Ind. 72, Bank v. State, 61 Ind. App. 360, 112 N.E. 40. At the conclusion of all the evidence, the court, over the objection of appellants, permitted the complaint, which was in one paragraph, to be so amended as to include the above last mentioned element of damages. This, to say the least, was an unusual proceeding, but, as this cause must be reversed for other errors, we shall not further consider it.
Was the appellee entitled to recover anything as damage because of the failure of appellants to care for said *Page 565
casing? The court found that the entire contract between 4-6. the parties was in writing, and we read said contract in vain to discover any agreement therein binding the appellants to care for said casing, and pile and protect the same from the elements, there was no duty resting upon them so to do, and in the absence of said duty there could be no liability, on their part, or as against them, to respond in damages. When appellants ceased work on said well, the casing was then upon the premises; the appellee knew this fact; and if said casing, for its protection, should have been piled and sheltered, that was the business and duty of appellee, not of the appellants. Also, it is settled law, as said by the Supreme Court of Florida, inSullivan v. McMillan, 37 Fla. 134, that the damages may be said to be fixed by the law of the contract the moment it isbroken, and cannot be altered by collateral circumstances independent of, and totally disconnected from it, and from the party occasioning it." Under this rule, when the appellants ceased work on said well in violation of this contract, the damage to the appellee then and there became fixed. This being a construction contract, — the drilling of a well, — the measure of damage to the appellee was the cost, if any, in excess of its contract price with the appellants, reasonably necessary to complete said well according to said contract. But appellee did not elect to complete said well and therefore could not claim this damage, but tried to hold appellants for special damages as before noted. We hold that the court erred in its said 8th conclusion of law.
As to the 4th conclusion of law stated by the court, — this conclusion was based upon 10th and 19th special findings, and these findings are sufficient to sustain said conclusion of law.
The findings of the court disclose that there were two contracts between the parties hereto, — one for the drilling *Page 566
of said well, which was the written contract in suit, and 7-9. the other, a verbal contract under which appellants dismantled and took down certain "rigs" in Pennsylvania, and shipped the same to Indiana, all at the expense of appellee. As this contract was separate and distinct from the contract for drilling the said well, the breach of this latter contract by the appellee, by failing to pay for said work, materials, and freight paid, could not justify the appellants in breaching their contract for the drilling of said well. If the work done by the appellants in the matter of drilling said well was of any value to the appellee, so as to entitle appellants to recover therefor, the burden was upon the appellants to establish that fact. There is no finding that the work so done was of any value, and under the well settled rule, the absence of such a finding has the effect of a finding against the appellants upon that issue. It follows that there was no error in the court's said 5th and 6th conclusions of law. It also follows, from what we have hereinbefore said, that the court erred in its said 7th conclusion of law.
The appellee herein has assigned cross-error in that the court erred, (a) in sustaining appellants motion to open up and vacate the original judgment rendered in this case, and (b) error of the court in overruling appellee's demurrer to the application of appellants for leave to file answer and defend.
The contention of the appellee is, as stated in its brief, that "the court did not have jurisdiction of appellee, because no notice had been served on appellee of the proceedings to 10-11. open the judgment": that as the statute, — section 423, Burns 1926, — requires notice to the adverse party, "as in an original action," and as the record does not show that any such notice was given, the court was without jurisdiction to set aside said judgment. *Page 567
The record in this case discloses the following steps taken herein by the parties, the record, under date of May 9, 1923, being as follows:
"Come now the defendants Chris Schaffner, Frank Schaffner, and Jacob Schaffner, by Claude A. Smith and T. Morton McDonald, their attorneys, and comes also the plaintiff, Preston Oil Company, by James J. Robinson, its attorney, . . ., and now the defendants file their verified application to have the judgment heretofore rendered against them in the above entitled case on the 21st day of April, 1923, opened. And said application is now submitted to the court for hearing and determination and the court, having seen and impected said motion and being duly advised in the premises, now sustains said motion and said application is granted, to which ruling of the court the plaintiffs each separately at the time excepts, . . ., and now the defendants offer to file their answer in general denial to the complaint herein, to the filing of which answer the plaintiff objects, and the court takes said offer and objection under consideration."
On the next day, May 10, 1923, the transcript shows proceedings in this cause as follows: "Come again the parties and the defendants file verified application to file answer and defend."
On May 16th, 1923, the record of proceedings had herein is as follows: "Come again the parties and the plaintiff files demurrer to the application of the defendants to be permitted to 12. file answer and defend." The demurrer so filed by the appellee was, by the court, held under consideration until June 8, 1923; when the same was overruled and permission given appellants to file answer and to defend, "to which action of the court appellee duly excepted."
Upon this record, the objection of the appellee to the jurisdiction of the court cannot be sustained. The statute *Page 568
provides, as to such an application, that it shall be by complaint, and that notice shall issue, "as in an original action." The court, by statute, was expressly given jurisdiction of the subject matter; jurisdiction of the court over the person was to be acquired by notice; but notice, even by summons, may be waived by the party appearing in court and participating in the proceedings. College Corner, etc., Co. v. Moss, et al.,77 Ind. 139. In the case of McCormack v. Bank, 53 Ind. 466, it was said: "The filing of the complaint and the issuing of the summons do not confer jurisdiction over the person of the defendant. This may be done in four ways: 1st, by reading the summons to the defendant . . . . 4th, by the voluntary appearance of the defendant, either in person or by attorney." It has also been held that the procuring of a formal entry to be made by the court on its docket, as of the filing of a motion, a demurrer, or a plea, is an appearance by the party. Shirley v. Hagar, 3 Black, 225; Scott v. Hull, 14 Ind. 136; Voss v. Lewis,126 Ind. 155, 25 N.E. 892; Eaton v. Bank, 141 Ind. 159, 40 N.E. 693. Tested by the rule laid down in these decisions, the appellee entered its appearance herein to said proceeding and the court had jurisdiction not only of the subject matter, but of the person of appellee.
As to appellee's second assigned error: It will be noticed that the action of the court of which complaint is made, was the overruling of the demurrers to the application of 13. appellants for leave to file answer. The complaint of appellants, asking the court to set aside said default and judgment, had theretofore been heard and considered, and said judgment had been set aside, and appellants were now asking for leave to defend, — to file answer. In Buck v. Havens,40 Ind. 221, it was said: "We are of the opinion that under the 99th section of the Code as amended, . . ., no further proceedings are contemplated than the complaint or *Page 569
motion, and that the matter should be heard in a summary manner by the court." See also, Graves v. Kelly, 62 Ind. App. 164, 112 N.E. 899. The complaint to have said judgment vacated and set aside, having been sustained and said judgment set aside, we know of no rule of law, or statute, which requires the "request for leave to file answer" to be in writing, or any law or rule of practice which authorizes or sanctions the filing of a demurrer thereto, if such request should happen to be in writing. Such an application is in no proper sense a "pleading" in the case, and the court did not err in said ruling.
Having reached the conclusion which we have as to the foregoing matters, the seventh conclusion of law, as stated by the trial court becomes superfluous, and the same should be omitted from the conclusion hereafter to be stated by the trial court.
For the errors indicated this cause is reversed with direction to the trial court to restate said first (1) and eighth (8) conclusions of law in harmony with this opinion, and to render judgment accordingly, and the death of appellants Frank Schaffner and Jacob F. Schaffner having been suggested, this cause is reversed as of the date of submission. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428209/ | Appellant filed with the Industrial Board of Indiana his application for an adjustment of his claim for compensation against appellee, alleging therein that, by reason of accidents arising out of and in the course of his employment, he sustained injuries to his left eye, resulting in a complete loss of vision of said eye.
In due course the application was set for hearing before one member of the board who, on August 9, 1939, heard the evidence proffered by the parties, but made no award at that time.
The record further discloses that on August 18, following the hearing, the Industrial Board, through its chairman, (who in the instant case was also the hearing member) sent to the attorneys for the applicant (appellant) a letter, which, omitting its formal parts, is as follows:
"In re: Claude Boyer vs. Overhead Door Corporation, Claim No. 28644.
"Gentlemen: —
"After studying the evidence in the above entitled cause, I am of the opinion that it will be necessary for me to have a further examination of Mr. Boyer's eye. Therefore, I am asking you to send Mr. Claude Boyer to the office of Dr. E.W. Dyar, 307 Hume-Mansur Building, this city, on Tuesday, August 22, 1939, at 2:15 P.M., o'clock for an examination of his eye at no expense to him."
Thereafter, on August 26, 1939, the Industrial Board received and filed a written report from Dr. *Page 681
E.W. Dyar, from which it appears that appellant was examined by the doctor on August 22, and the facts concerning the loss of vision in the left eye of appellant, as discovered by such examination, are set forth in detail therein, and the opinion of the doctor is stated as follows:
"It is therefore, my opinion from an absolutely unbiased standpoint, that this individual has been unfortunate enough to contract some disease of his left eye, which was taking place at about the time which (when) the two accidents occurred. The injuries were purely coincidental. I took the liberty to see Dr. Lester Smith and read his report upon the x-ray findings, which showed no foreign metal within the eye, or even about the eye. It therefore appears to me, that the weight of the evidence in this case from a medical point of view, is against the injury as being the cause of the loss of vision."
After the receipt and filing of this report, submitted by means of a letter to the board, the member of the board before whom the application was heard made a finding and award, which, in so far as it need be set forth is as follows:
"Said Member having heard the evidence and having examined the report of the specially appointed eye specialist now finds, that the plaintiff was in the employ of the defendant on the 8th day of October, 1936, and also on the 3rd day of June, 1937, at an average weekly wage of $29.40; that on said dates plaintiff received injuries by accident arising out of and in the course of his employment to his left eye; that on June 30, 1939 plaintiff filed his application for compensation on Form No. 9.
"Said Member further finds that since said accidental injuries plaintiff has lost the sight of his left eye as the result of a cataract; and *Page 682
further finds that said cataract was not the result of an accidental injury, but is the result of disease.
"ORDER
"It is therefore considered and ordered by the Industrial Board of Indiana that plaintiff take nothing by his application herein."
An application for review was duly filed by appellant, and on December 19, 1939, after a hearing held on November 2, 1939, the full Board, by a majority of its members, made its finding and award, the pertinent part of which is as follows:
"And the Full Industrial Board . . . now finds that plaintiff was in the employ of the defendant on October 8, 1936, at an average weekly wage of $24.20, and on June 3, 1937 at an average weekly wage of $28.60; that on October 8, 1936 and on June 3, 1937 plaintiff received injuries to his left eye by accident arising out of and in the course of his employment, of which the employer had knowledge and furnished medical attention; that plaintiff's vision of left eye was entirely gone on December 25, 1938; that on June 30, 1939 plaintiff filed his application for the adjustment of a claim for compensation.
"And the Full Industrial Board by a majority of its members now finds for the defendant on plaintiff's application, that plaintiff's loss of vision in the left eye is not directly or indirectly due to any accidental injury arising out of and in the course of his employment with the defendant.
"AWARD
"It is therefore considered and ordered by the Full Industrial Board of Indiana, by a majority of its members that plaintiff shall take nothing by his complaint herein and that he shall pay the costs of this proceeding." *Page 683
From this award appellant appeals, assigning as errors, among others, that the award is contrary to law; and that the board "erred in receiving as evidence the unverified report of Dr. E.W. Dyar, without giving appellant opportunity to examine or cross-examine said Dr. E.W. Dyar."
Appellee to sustain the award contends that "inasmuch as the record does not show that the Full Industrial Board admitted the letter of the member asking for a physical examination, and the letter of Dr. E.W. Dyar reporting the result of the physical examination of appellant, the assumption of appellant in his brief that the Full Industrial Board considered such letter as evidence, or based their award thereon, is wholly unwarranted and unsupported." It is further contended "that such letters are not properly in the record and cannot be considered for any purpose."
It is true that neither letter appears in the bill of exceptions containing the evidence heard on August 9, 1939, when the application was first submitted by the parties for 1. determination by the hearing member. Neither had then been written. It does not necessarily follow, however, that because of this fact, this court should refuse to consider if error was committed when the Industrial Board received and filed as a part of its record in this proceeding, the written report of Dr. Dyar, embodied in his letter to the board, and did not provide for any open hearing in respect to the examination of appellant made by said doctor.
While we cannot definitely determine from the record as to whether Dr. Dyar's report concerning the result of his examination of appellant's eyes, and stating his opinion as to the cause thereof, was or was not considered as evidence by the full Board, it *Page 684
does affirmatively appear that the same was in the files of the cause and was available to the full Board when the appellant's application for compensation was heard by it.
When we consider the finding and award made by the member of the board who conducted the original hearing, and who was one of the majority of the board who joined in the final award, denying compensation, it can scarcely be doubted that he considered the report in question as persuasive evidence bearing upon the question of whether the cataract occasioning the loss of vision was caused by the injuries suffered by appellant, or by disease, and that his judgment concerning the matter was influenced by the statements made in such report.
Our Compensation Law contains a provision as follows:
"The board or any member thereof may, upon the application of either party, or upon its own motion, appoint a disinterested and duly qualified physician or surgeon to make any necessary medical examination of the employee and to testify in respect thereto. Such physician or surgeon shall be allowed traveling expense and a reasonable fee, to be fixed by the board, not exceeding ten dollars for each examination and report, but the board may allow additional reasonable amounts in extraordinary cases.
"The fees and expenses of such physician or surgeon shall be paid by the state only on special order of the board or a member thereof."
Section 64 of The Indiana Workmen's Compensation Act of 1929; Acts of 1929, ch. 172, p. 536; § 40-1515 Burns' Ind. Stat. Anno. 1933.
This statute should receive a reasonable construction consistent with orderly procedure. It authorizes *Page 685
the board, or any member thereof who has heard the 2, 3. evidence on an application for compensation, to appoint a duly qualified physician or surgeon to make a "medical examination" of the applicant for the further information of the board, but, if this be done, we are of the opinion that, in view of the provisions of the statute, the information thus obtained and the facts disclosed by the examination can only be properly brought to the attention of the board in a manner authorized by proper legal procedure. The board should fix a time and place, when and where it will hear the testimony of the physician or surgeon appointed, giving due notice thereof to such person and to the parties to the proceedings, or, if this be impracticable for any legal reason, then the board should arrange for the taking and transmission to it of the deposition of the examiner appointed, in manner and form as provided by statute, thus giving the parties interested an opportunity to examine such witness. The context of the statute is such that it seems apparent if an examination is made upon the order of the board of its own motion pursuant to the authority conferred, the one making such examination shall "testify in respect thereto." To testify, in the meaning of the term as used in this statute, means that the person appointed shall, after due notice to him and to the parties, appear before the board, or before some officer authorized to take depositions, as a witness, and there subject himself under oath to any pertinent inquiry concerning the material facts involved in the controversy pending which may be addressed to him by any party whose rights will be affected by his testimony, or by the board, or any member thereof.
After an examination and consideration of the entire *Page 686
record in this cause, we conclude that the award should be reversed. We express no opinion on the sufficiency of the evidence to sustain the finding of facts upon which the award is based, but reverse because, in our judgment, when the board once decided to exercise its statutory authority to have "a necessary medical examination of the employee," made by some one of its own selection, it (such board) should, either then or within a reasonable time thereafter, also have fixed a time and place for the person so appointed to appear and "testify in respect thereto." We hold that such is the plain import of the statute, and that the facts ascertained and discovered by any such medical examination should be imparted to the Industrial Board only after an open hearing where both the employee and the employer shall have an opportunity to examine the witness. It was the duty of the board to provide for such an examination of the person appointed, and this it did not do.
Award reversed with instructions to grant a new hearing of appellant's application for compensation, and that further proceedings be consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428210/ | This is an original action filed in the Supreme Court of Indiana by Charles Cassel, relator, as executor of the last will and testament and estate of Nancy J. Ranck, deceased, against G. Edwin Johnston, judge of the Fayette Circuit Court, and against the Fayette Circuit Court. On February 3, 1933, the relator, Charles Cassel, filed a petition in said court to obtain a writ of mandate and prohibition against the defendants, requiring said defendants to grant a change of venue in a matter then pending in the Fayette Circuit Court, the same being exceptions to a current or partial report in the estate of Nancy J. Ranck, deceased, and to prohibit the defendants herein from hearing said exceptions to said current or partial report. Said affidavit and motion for change of venue was filed on February 2, 1933. On February 3, 1933, this court made and entered an order for an alternative writ of mandate and prohibition and made the same returnable on February 20, 1933. On February 20, 1933, the defendants filed their return and answer, and, on March 17, 1933, the relator filed a reply to the return of the defendants.
On the 6th day of February, 1933, the relator filed a second petition in this court to obtain a writ of mandate and prohibition against the defendants to prohibit them from disposing, or attempting to dispose, of any legal matters connected with, or pertaining to, the estate of Nancy J. Ranck, deceased, which is pending in the Fayette Circuit Court, and to have G. Edwin Johnston, judge of the Fayette Circuit Court, to show cause why he should not be adjudged guilty of contempt of the Supreme Court. Said petition also asks that said Johnston be mandated to expunge, cancel, vacate, and set aside the order of February 3, 1933, assuming and *Page 565
purporting to remove the relator as executor of said estate. The petition filed on February 6, 1933, proceeds upon the theory that the defendant, G. Edwin Johnston, judge of the Fayette Circuit Court, had violated an order of this court in summarily removing Charles Cassel as executor of the estate of Nancy J. Ranck, deceased. The petition avers that said Charles Cassel was summarily removed as executor of said estate on February 3, 1933, by the said G. Edwin Johnston, as judge of the Fayette Circuit Court.
The relator's petitions, the returns of the defendants thereto, and the reply of the relator, are very voluminous and it would unnecessarily extend this opinion to quote at length from either of them.
As to the alternative writ issued by this court on February 3, 1933, the defendants' return thereto shows that the defendants had granted the change of venue which had been applied for prior to the time said writ of mandate and prohibition was issued out of this court and prior to the time of the service of any writ, or notice of any writ, to the judge in said cause and that the defendants took no action of any kind relative to the hearing of the objections and exceptions to the current or partial report filed in the estate of Nancy J. Ranck, deceased.
This court will not do a useless thing, and as the office of the writ of mandate is to compel action it will not issue if the duty sought to be enforced has already been done. It is 1. conceded by all the parties hereto that the change of venue was granted on February 3, 1933, and it sufficiently appears that the defendants did not hear or attempt to hear the exceptions to the current, or partial report, on February 4, 1933. The relator herein contends that the defendant Johnston is in contempt of this court for the reason that he, as judge of the Fayette Circuit Court, summarily *Page 566
removed the relator, Charles Cassel, as executor of the Nancy J. Ranck estate, and that in doing so he assumed to pass upon and decide the matters with reference to the said partial or current report filed by said relator as executor of said estate. It appears from the petition and return that on the evening of February 3, 1933, at about 9:45 p.m., the said G. Edwin Johnston, as judge of the Fayette Circuit Court, prepared and had delivered to the clerk of said court an order purporting to summarily remove relator as said executor, and in said order of removal he considers and discusses at some length the partial or current report filed by the relator in said estate, and his reasons for the removal of said executor are based partly on said report.
The defendants, for answer and return to the writ issued out of this court, say that they removed said executor on February 3, 1933, prior to and before any writ was issued out of this court, and before any notice of any kind was served upon these defendants, and prior to and before any notice came to the knowledge of the defendants; that on the morning of February 4, 1933, after the Fayette Circuit Court was duly opened and the clerk had commenced the reading of the record for the previous day, to-wit: February 3, 1933, that Albert Heeb, one of the attorneys for the relator, laid a paper on the bench of the judge, but did not inform the court what it contained or what to do with it; that the court asked said Heeb to have a chair until the clerk had finished reading his record; that Heeb sat down in the court room for a few minutes, but then left the court room, and did not remain until the minutes of February 3d had been read; that after the record had been read, and there being no objections, it was signed; that after the record had been read and signed, Heeb re-entered the court room, picked up the papers he had laid on the judge's bench and read to the defendants *Page 567
a writ of mandate and prohibition in open court on February 4, 1933; that the said Heeb, in answer to the defendant, said that he was not deputized to serve the papers; that a short time later the sheriff of Fayette county read said writ of mandate and prohibition to said Johnston.
Albert P. Heeb, one of the attorneys for the relator, as part of the reply to the defendants' return and answer, under a sworn statement, says that on the morning of February 4, 1933, and before the clerk began the reading of the record of February 3, 1933, and before the judge had taken his chair, he handed to the judge the writ of mandate and prohibition issued out of this court, and that he announced to said judge and said court that he was handing said judge and court a copy of the writ of mandate and prohibition in the matter of the estate of Nancy J. Ranck, deceased, as issued out of the Supreme Court of Indiana. William K. Stoops, who was the clerk of said county on February 4, 1933, in an affidavit which is made a part of the reply to the defendants' return and answer, confirms the foregoing statement of Albert P. Heeb.
After giving due consideration to the petition of the relator, the return and answer of the defendants, and the reply of the relator to the return and answer of the defendants, we can 2. not say with confidence that the defendant, G. Edwin Johnston, as judge of the Fayette Circuit Court, had notice or knowledge of the issuing out of this court of the alternative writ of mandate and prohibition on February 3, 1933, relative to the Nancy Ranck estate, but his conduct, as shown, strongly suggests that he did. The fact that the order removing the executor was delivered to the clerk at 9:45 P.M. on February 3, 1933; that he apparently kept himself secretly cloistered in his office, and refused any one admittance on the morning of February 4, 1933, *Page 568
until the exact minute for him to go on the bench, and the fact that E. Ralph Himelick, one of the attorneys for the defendants, learned on February 3, 1933, about 3 P.M., that the Associated Press dispatch carried the news that a writ of mandate and prohibition had been issued out of this court directed to the defendants relative to the estate in question and the fact that E. Ralph Himelick brought to the clerk's office at 9:45 P.M., February 3, 1933, a typewritten order of G. Edwin Johnston, judge of the Fayette Circuit Court, removing the relator as executor of the estate of Nancy J. Ranck, deceased; the fact an emergency was found to exist for the removal of the relator just at the particular time, and, as we view the facts, there was no such emergency. All of these facts strongly point to the conclusion that the said Johnston had some knowledge of the fact that a writ had been issued, even though it had not been served on him, and that he was attempting to evade the process of this court.
The Supreme Court derives its authority to issue writs of mandate and prohibition from Section 1244 Burns 1926, as follows: "That such writs of mandate may issue out of the Supreme 3. Court to the Circuit, Superior, or Criminal courts of this state respectively, compelling the performance of any duty enjoined by law upon such Circuit, Superior, and Criminal courts respectively, including the granting of changing of venue from the county in cases where such change of venue is allowed by law, and timely, proper and sufficient motion and affidavit have been filed therefor, and such change of venue has been refused; also writs of prohibition may issue out of the Supreme Court to such Circuit, Superior, and Criminal courts respectively to restrain and confine such Circuit, Superior, and Criminal courts respectively to their respective jurisdiction."
The question now presented is, Can this court by mandate *Page 569
compel the defendants to expunge, cancel, vacate, and set aside the order of February 3, 1933, assuming and purporting to remove said Charles Cassel as executor of the last will and testament of the estate of said Nancy J. Ranck, deceased?
In the removal of said executor the said G. Edwin Johnston, judge of the Fayette circuit, and the Fayette Circuit Court relies upon cl. 6 of Sec. 3090 Burns 1926, which section, as far as applicable here, provides: "On a written application, verified by oath of any person interested in the estate or of any co-executor, co-administrator, or surety of such executor or administrator, specifying the grounds of complaint, any executor or administrator with the will annexed or administrator may be removed, and his letters superseded by the court in which such letters issued, . . . cl. 6. Where he shall fail to give additional bond and sureties as required by the court; or the court may without such application, for any such cause, in caseof an emergency, remove such executor or administrator instantly, without citation" Section 3091 provides: "On the filing of such application, or upon the order of the court, the clerk shall issue a citation to the person complained against, requiring to appear and answer, which citation shall be served on him ten days before the hearing of the cause." Section 3093 provides: "At the term of the court next after notice has been given, the court shall proceed to hear the proofs and allegations of the parties; and, upon such hearing, may examine such executor or administrator on oath."
Under these sections, except where there is a clear emergency, the decisions of this court uniformly hold that the statute contemplates that an answer may be filed and the formation 4. of an issue on the allegations of the petition as in ordinary civil actions. McFadden v. Ross (1884),93 Ind. 134. *Page 570
"The writ of mandamus is an extraordinary writ which can be issued only to compel the performance of a clear legal duty. The duty to do an act must be absolute and imperative and not 5. dependent upon the exercise of discretion or judicial determination." State, ex rel., v. Wrigley, Judge
(1918), 187 Ind. 78, 118 N.E. 353; State, ex rel., v.Leathers (1925), 197 Ind. 97, 149 N.E. 900.
Under clause 6 as above set out the court may, in case of emergency, remove an executor or administrator without citation. The emergency, however, should be clear and imperative 6. before a court should take such a drastic measure to remove an executor or administrator without a citation so that the parties in interest may have their day in court.
In the instant case the defendants, in the removal of the relator as executor of said estate, acted under clause 6, supra. They were attempting to exercise their right of 7, 8. discretion and judicial determination and under such circumstances a writ of mandamus will not lie. This right may be abused (and in the instant case we think it has been) and, if it has, the relator has a right under the law to have a review of the action of the defendants in removing him as executor of said estate.
We conclude that the writ of mandate and prohibition should be set aside and dissolved and that the defendant G. Edwin Johnston should not be held in contempt of this court, and it is so ordered. *Page 571 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428213/ | On January 8, 1927, Rufus A. Eudaly, appellee herein, was discharged as teacher and principal of the Keener Township schools, which were located at DeMotte, after a hearing before Frank M. Hart, then trustee of Keener Township, on a petition filed by certain patrons against appellee.
Appellee Eudaly, under § 6790 Burns 1926, Acts 1865 p. 3, appealed from the order of dismissal of the township trustee to the county superintendent of schools of Jasper County. On January 25, 1927, a hearing before such superintendent of schools was completed, and Morgan L. Sterrett, county superintendent of schools, sustained the finding of Frank M. Hart, trustee, and confirmed the order of dismissal of appellee as teacher and principal of such school.
This action was brought by appellee against appellants to set aside the order of dismissal of appellee by appellant Hart, trustee of Keener Township, and appellant *Page 630
Sterrett, county superintendent of schools of Jasper County, Indiana, and to recover a money judgment for services as teacher against Keener Township which he tendered the township as a school principal under his written contract of employment. His claim was that the order of dismissal was fraudulent.
Trial was had before the court on the third paragraph of amended complaint, to which each appellant had filed a separate demurrer and which had been overruled. Appellant Sterrett filed three paragraphs of answer, appellant township filed two paragraphs of answer, and appellant Hart filed one paragraph of answer to the third paragraph of amended complaint. Appellee filed reply to each of the several answers of appellants. The court found for appellee, rendered judgment for $1,046.20 in appellee's favor and ruled that the order dismissing appellee be set aside.
Appellants appealed and separately assign as error the overruling of each appellant's separate demurrer to the third paragraph of amended complaint and the overruling of each appellant's separate motion for new trial. The motions for new trial cover 36 different specifications, but appellants argue in this court but 10 causes under their motions for new trial.
Appellee's original complaint was in three paragraphs, to which a motion was made and sustained to make certain parts more specific, whereupon appellee filed his amended complaint in three paragraphs. Previously, however, the court had ordered the third paragraph of amended complaint docketed as a separate cause of action. Each of the appellants had addressed a separate demurrer to the third paragraph of the amended complaint. This accounts for the fact that some of the specifications in the memoranda filed with the demurrers refer to other paragraphs of the amended complaint. *Page 631
Appellants, in their Points and Authorities, however, discuss only the following pertaining to the alleged error of the court in overruling each of the separate demurrers of the appellants to the third paragraph of the amended complaint so docketed: (1) The appellant, Keener School Township, was not liable for the wrongful acts of its officers; (2) the presumption is that the trustee observed the law; (3) the facts alleged disclose that the procedure by which appellee was dismissed was regular in every way and the decision of the county superintendent after an appeal by the appellee was final; (4) the appellee, having accepted a license, is bound by all the provisions of law surrounding the same, and when the jurisdiction of the county superintendent is shown as disclosed by the complaint, the allegations with reference to his bias and want of judicial capacity are without force in law, for the county superintendent is answerable only to those who elect him.
Appellee's third paragraph of amended complaint, after alleging that Frank M. Hart now is and since January 1, 1927, has been the elected, qualified and acting township trustee of Keener Township, Jasper County, and that Morgan L. Sterrett now is and for more than five years last past has been the duly elected, qualified and acting superintendent of schools of Jasper County, alleges that, on May 4, 1926, he, appellee, was the holder of a life license to teach in the high schools of Indiana, and, on that day, entered into a written contract and agreement with appellant Keener School Township by the terms of which appellee agreed to teach in the public schools of Keener School Township for the school term of eight months beginning September 13, 1926, for which services appellee was to receive $1,800 and an additional compensation for attending teacher's institutes; that on September 13, 1926, appellee entered upon his duties as teacher and principal *Page 632
in the public school of Keener Township, that, on January 1, 1927, a petition was filed with Frank M. Hart as trustee of Keener Township by some of the patrons of the Keener Township schools against appellee asking his dismissal for alleged incompetence; that, on January 8, 1927, a hearing was had before the trustee and appellee was dismissed as such teacher; that appellee took an appeal to Morgan L. Sterrett, county superintendent of schools of Jasper County, who, on January 25, 1927, after a hearing, sustained the finding of Hart as trustee, and confirmed the dismissal of appellee as a teacher in the De Motte High School, being Keener Township High School.
It is further alleged that appellee continued to teach in the Keener Township School in the village of De Motte, where he had theretofore been teaching, until January 8, 1927; that, on January 10, 1927, he presented himself at the schoolhouse and offered to teach in compliance with his contract, but at that time was wrongfully ordered from such school grounds by appellant Hart, who at that time informed appellee that, if he returned to the school grounds, he (appellee) would be arrested and prosecuted; that, after January 8, 1927, because of such dismissal, appellee rendered no further services as a teacher in that school; that appellee had performed all the conditions of the agreement on his part to be performed, except as he had been prevented and prohibited from so doing by defendants; that, after such dismissal, appellee made diligent and earnest effort to obtain employment elsewhere, but was unable to obtain other employment.
The third paragraph of amended complaint further alleges that, prior to the filing of the petition against appellee, no facts existed which supported the pretended charges; that no evidence was offered or given at the hearing before appellant Hart, trustee, or at the *Page 633
hearing before appellant Sterrett, county superintendent, which would show or tend to show that appellee had been incompetent or had breached his contract in any way; that the charges against appellee were not heard or determined by appellant Hart or appellant Sterrett in good faith; that such charges were wholly false and untrue and were known to both Hart and Sterrett to be false and untrue, and that such finding and attempted dismissal by Hart and Sterrett were wholly arbitrary and were so done unlawfully and maliciously for the purpose of depriving appellee of his rights under the contract; that "said Hart and Sterrett advised and counseled with certain patrons of the Keener Township School and wrongfully and maliciously brought about the circulation of and filing of the petition for the discharge of the plaintiff" (appellee); that, before the hearing on January 8, 1927, Hart and Sterrett wrongfully and fraudulently conspired and agreed with each other and with divers other persons to find the pretended charges true as against appellee; that the pretended dismissal of appellee was brought about "wholly by the corrupt and fraudulent agreement and conspiracy of the said Hart and Sterrett and by reason of their personal and political malice and prejudice against this plaintiff (appellee), which malice this plaintiff says existed, and not by reason of any consideration of the evidence or as a result of honest and sound judgment and discretion based upon the evidence given at either of such hearings"; that, under the law, no appeal lies from the judgment dismissing appellee; that such judgment was rendered by reason of the fraudulent, illegal, oppressive and unwarranted acts of Hart and Sterrett.
It is further alleged that Keener School Township, since January 8, 1927, has refused to pay appellee the monthly installments of $225; that there remains due him $978.75, being the unpaid balance of his contract *Page 634
salary of $1,800 and interest thereon of $90 and compensation for the institutes. The prayer of the third paragraph was that the judgment of dismissal be declared void and vacated, and appellee be given judgment against appellant Keener School Township for $1,800
Section 6790 Burns 1926, § 4, Acts 1865 p. 3, provides:
"Appeals shall be allowed from decisions of the (township) trustees relative to school matters to the county superintendents, . . . and their decisions of all local questions relating to the legality of school meetings, establishment of schools, and the location, building, repair or removal of school-houses, or transfers of persons for school purposes, and resignation and dismissal of teachers, shall be final." (Our italics.)
The amended third paragraph of appellee's complaint upon which trial was had would be unavailing and insufficient and demurrable if the order of dismissal of the county superintendent is final and conclusive. This paragraph proceeds upon the theory that the order of dismissal was fraudulent, and that the hearing officer did not act in good faith in such dismissal, and that the dismissal is void on account of such conspiracy and corruption.
The question to be decided is whether a judgment of such county superintendent of schools is conclusive when such judgment is made final by statute, in a direct attack, as in the instant case, when attacked on the ground of fraud.
The Supreme Court, in the case of Kegerreis, Trustee, v.State, ex rel. (1924), 195 Ind. 589, 146 N.E. 390, in construing the statute in question as to some of its other provisions, said: "It follows that when the county superintendent, on appeal from the township trustee, had heard the matter and decided that the school petitioned for should be established, and nothing was done toward taking a further appeal within the time allowed for that *Page 635
purpose, his decision was final and conclusive, unless and untiloverthrown by a direct attack on the ground of fraud." (Our italics.)
Custer v. School District (1899), 12 Pa. Super. 102, is a case in which a teacher sued for salary because her appointment as teacher had been revoked by the board of school directors, who had power to dismiss such teacher for cruelty, negligence or immorality. The court said: "The action of the board, if it be properly entered upon the minutes in the form and manner required by the statute in the case of a dismissal, is conclusive, unless the board can be shown to have acted corruptly or in bad faith, or to have clearly abused their powers." See, also, McCrea v.School District (1891), 145 Pa. 550, 22 A. 1040; Whitehead
v. School District (1891), 145 Pa. 418, 22 A. 991.
In the case of Finch v. School District (1924), 225 Mich. 674,196 N.W. 532, appellant was discharged for immorality and sued for one month's salary. The court said: "Such finding and determination of the board are conclusive unless the board acted corruptly, in bad faith, or in clear abuse of its powers."
As was said in Christmann v. Coleman (1927), 117 Ohio St. 1,157 N.E. 482, a case in which the facts were similar to the facts in the instant case, "The general rule is that, where power has been conferred upon an administrative officer or board to remove another officer, a teacher, or appointee, for cause, and the procedure is provided for such removal, and the procedure has been followed, the finding of such administrative officer or board dismissing another officer, a teacher, or appointee, is final and conclusive and not reviewable by the courts, either in a direct proceeding to reverse or by collateral attack, exceptwhere such administrative officer or board has acted in badfaith, corruptly, fraudulently, or has grossly abused itsdiscretion." (Our italics.) See, also, *Page 636 State, ex rel., v. Superior Court (1913), 72 Wash. 444, 130 P. 747.
In the instant case, it is alleged that the appellant officers acted in bad faith and fraudulently, and the specific acts in that regard are pleaded. This is sufficient to take the 1, 2. instant case out of the general rule that the decision of such officer is conclusive and not subject to review. The facts alleged are sufficient to overcome the presumption that the officers observed the law. We hold the court did not err in overruling each appellant's demurrer.
It is argued by appellants that Keener School Township is not liable for the wrongful acts of its officers, and that, therefore, no judgment should be had against it. In this 3. contention we do not concur. It will be noted that, so far as Keener School Township is concerned, this action is for appellee's wages alleged to be due appellee as teacher under a written contract with such township, and that it is alleged appellee was prevented from performing his contract by the order of dismissal by its trustee, which dismissal was confirmed by the county school superintendent. This action is clearly an action for breach of contract. This court has recently recognized the liability of a school township for damages sustained by a teacher who was dismissed by the township trustee where no good and valid ground existed. Jefferson School Tp. of Miami County v.Graves (1926), 84 Ind. App. 84, 150 N.E. 61. And this law is applicable in the instant case. The decision of the county superintendent is binding on the township trustee, and Keener School Township. Knight, Trustee, v. Woods (1891),129 Ind. 101, 28 N.E. 306; Kegerreis, Trustee, v. State, ex rel.,supra.
Appellants also contend that appellee, having accepted a license, is bound by all the provisions of law surrounding the same, and that the allegations with reference to *Page 637
the bias and want of judicial capacity of the county 4. superintendent are without force in law, for the county superintendent is answerable only to those who elect him. Section 6509 Burns 1926, provides, inter alia: "Nothing in this act, however, shall be construed so as to change or abridge the jurisdiction of any court in cases arising under the school laws of this state; and the right of any person to bring suit in any court, in any case arising under the school laws, shall not be abridged by the provisions of this act." This section has been construed in Stone v. Fritts (1907), 169 Ind. 361, 82 N.E. 792, 15 L.R.A. (N.S.) 1147, 14 Ann. Cas. 295, wherein it was, in effect, held that a school teacher accepting a license to teach under the school laws of this state is not estopped from applying to the courts for the enforcement of his rights thereunder.
Appellants next urge that the trial court erred in permitting appellee, on his direct examination, to testify (1) concerning an occurrence with reference to some of the girls leaving the school during school hours, and (2) pertaining to an incident of a broken leg sustained by one of the pupils. In each of the instances, the court permitted appellee to testify originally and directly as to what the occurrences were and what he did. In other words, it was original evidence at this hearing, and was not given before the county superintendent. In permitting this evidence to be given, the court said: "I will allow some degree of latitude on both sides. I will be pretty liberal in allowing the introduction of evidence. I am not going to keep anything out here on either side that may have a bearing on this, unless it is positively wrong or erroneous." The court, also, in commenting on other evidence sought to be introduced, said: "I don't know what it will show or tend to show. I have been proceeding in this matter on the theory that the *Page 638
good faith of the officers was subject to attack and review in a matter of this kind; that is, where it was charged that they acted fraudulently and no causes existed for his removal and no real causes were shown in the hearing. In other words, the good faith of the officers is attacked. I have proceeded on the theory that it was subject to review and that opens up a good deal of latitude. In other words, in order to determine whether they had acted in good faith, I would have to get as much of this back of the conditions that existed there as existed to them — as existed to the officers, for the purpose of determining whether they were actuated by proper motives and in good faith. And I think, under the circumstances, most everything pertaining to this transaction may be gone into as bearing upon that issue. It is not my purpose to place my judgment in the place of officers who are clothed with power to act and who have acted within the scope of their authority and to review their acts and to say that under the circumstances I would have acted differently. I am only going into these questions far enough to enable me to say whether or not in my opinion they were acting in good faith in doing what they did do, and recognizing a condition or a state of affairs where different individuals who might be called upon to act and who might honestly entertain differences of opinion, and in that kind of case I would not be inclined or disposed to interfere with the officers who were discharging a duty. That is, in a case where such matters were submitted as a man of ordinary judgment and integrity might, in the exercise of good faith, have reached the decision that these men did, why, it is not my purpose to dispense with or set aside their decision and substitute my judgment for theirs, if a case is presented here where they could, in the exercise of good faith, have reached *Page 639
the conclusion they did. So, with that understanding, we will proceed."
Appellants, in the oral argument before this court, virtually admitted the trial court's theory above set forth was probably correct, but they insist that the court did not adhere to 5. the theory above set forth, for the reason that the above complained-of evidence was original and not given at the former hearing before the county superintendent. Even if we should conclude that the evidence above complained of was improperly admitted and incompetent (which we do not), yet we do not look upon it as prejudicial error, particularly in view of the fact that, where there is competent evidence in the record to sustain the finding of the trial court, the admission of incompetent evidence will not require a reversal. See Bowers v.Headen (1853), 4 Ind. 318; Shira v. State, ex rel. (1918),187 Ind. 441, 119 N.E. 833; Grasselli Chemical Co. v. Simon
(1925), 84 Ind. App. 327, 150 N.E. 617.
Appellants next complain of the action of the court in admitting in evidence a typewritten transcript of that portion of the evidence heard by the county superintendent at the 6. hearing before him at one of the sessions held by him. The court reporter who took this evidence testified that it was all of the evidence heard at the afternoon session, but that it was not all the evidence heard by the county superintendent, as he, the court reporter, was unable to attend and take the evidence heard at the night session before the county superintendent. In admitting the above evidence, the court said: "Now there is an allegation here in their complaint that charges were preferred against him and a hearing had and that the charges were not sustained by evidence, there was no evidence introduced sustaining the charges; that the officer did, in fact, act arbitrarily *Page 640
without evidence. I think those allegations in substance are made. I think I will permit the introduction of it and give you an exception. It appears here it is not all the evidence. Its value is impaired, impaired greatly, unless some evidence is introduced as to what further evidence was heard by the officers. But I think I will be warranted in admitting it in evidence as showing it was at least part of the evidence that was heard, and perhaps it is not in the form it could all be offered at one time. I understood you to say you would follow it up by some proof," etc. Mr. Halleck, appellee's attorney, replied: "We will follow it up by proof of what transpired at the evening session," whereupon the court said: "With that understanding, I will permit its introduction and give the defendants an exception." The court also permitted the appellee to prove by two witnesses who were present at the evening session before the county superintendent what the evidence was at that session. We do not believe the court erred in the admission of any of this complained-of evidence. See Wolfe v. Scott (1923), 275 Pa. 343, 119 A. 468; Kansas Texas Coal Co. v. Galloway (1903), 71 Ark. 351, 74 S.W. 521, 100 Am. St. 79.
Appellants also offered to prove by the witness, George Parker, a conversation he had had with DeKoker, former trustee of Keener Township, with reference to re-employment of appellee. This 7. conversation was not shown to have been had in the presence of the appellee, and, coming as it does from appellant, it falls either in the class of purely self-serving or hearsay evidence or both, and, in any such case, it was inadmissible and correctly excluded.
In the ninth ground of the motion for new trial, the appellants say the court erred in admitting testimony of Robert A. Mannon, clerk of the Jasper Circuit Court, who testified that he had a conversation with appellant *Page 641
county superintendent Sterrett, which conversation he 8. thought was before the county superintendent rendered his decision. The conversation was as follows: "Mr. Sterrett was telling me about the hearing and regarding that the matter had come up to him for decision and I said to him, `Why don't you sidestep the whole matter and refer it to some other county superintendent for a hearing?' And he said he couldn't do that, for, if he did, we would be beat." Appellants have not discussed this last mentioned alleged error under their Points and Authorities, and, under the rules and decisions of this court, they have waived the same by such failure.
There was other evidence of like import also tending strongly to question the good faith and fairness of the county superintendent and township trustee who were the dismissing 9. officers. The evidence was also in conflict as to whether or not the appellee held the grade of license required. The court, however, will not weigh conflicting evidence, and there is abundant evidence to sustain the finding of the trial court.
We find no reversible error.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428214/ | Appellee Dixie Bee Coal Corporation was operating a coal mine on and prior to and after April 1, 1932, and will hereinafter be referred to as "appellee." Appellee Lynch Coal Operators Reciprocal Association was the insurance carrier. On that date the miners, who were union members, went out on a strike, and appellee employed appellant and other non-union miners to work in the mine. Appellant continued to work in the mine until August 2, 1932, and the strike continued until after that date.
On that day long before the usual quitting time appellant and his co-workers were ordered by the foreman to stop working and come to the top. When they reached the top, the mine was surrounded by pickets, and the mine guards and bosses passed out rifles, ammunition and dynamite to the workers and told them to protect the mine property in the event the pickets entered upon the premises. The mine officials also told appellant and his co-workers to stay at the mine under cover until the sheriff arrived to escort them to their homes.
Appellant remained in the tipple for several hours and until he was shot in the arm by one of the pickets.
This is an appeal from an award of the Industrial Board, by a majority of the members, denying appellant compensation, the majority of the members of the Industrial Board having found that appellant's injuries "were not the result of an accident sustained by plaintiff while in the course of his employment, nor did they arise out of his employment."
The errors assigned are that the award is contrary to law, and is not sustained by the evidence. *Page 338
There was no material dispute as to the circumstances under which appellant was injured. Appellant was the only witness who testified as to those circumstances, and his testimony clearly showed the facts as herein set forth.
This appeal presents but one question — and that is whether or not an injury received by an employee in the manner, and under the circumstances which attended appellant's injury, as a matter of law, arises "in the course of, and out of his employment." It is a new question for this court.
Appellee contends the decision of the Industrial Board is correct because an injury, to be compensable, must result from an "unlooked for mishap or untoward event not expected or designed," and appellee contends the evidence shows that appellant knew or should have known that there was a "continuing probability of personal violence even unto rifle fire," and appellee calls our attention to evidence which shows that for several days prior to August 2, 1932, appellant saw from twenty-five to one hundred fifty pickets, picketing the mine, and that appellant knew that appellee had employed guards to defend the premises.
As authority for the rule of law that an injury, to be compensable, must result from an unlooked for mishap or untoward event not expected or designed, appellee cites five cases, viz:Moore v. Service Truck Co. (1924), 80 Ind. App. 668, 142 N.E. 19; Townsend and Freeman Co. v. Taggart (1924),81 Ind. App. 610, 144 N.E. 556; Stacey Bros. Gas Co. v. Massey (1931),92 Ind. App. 348, 175 N.E. 368; Brewer v. Veedersburg Paver Co.
(1931), 92 Ind. App. 547, 177 N.E. 74; Chapman Price Steel Co.
v. Bertels (1931), 92 Ind. App. 634, 177 N.E. 76. In each of said cases this court recognized said rule of law, but none of said cases are determinative of this case, because of the dissimilarity of facts. *Page 339
We do not consider said rule of law a proper test of compensability in this case.
The strike was called because appellee and its regular employees had disagreed as to the wages to be paid the regular employees. Appellant had no connection with the wage agreement.
Employers are required by law to furnish their employees with reasonably safe places in which to work. Appellee certainly expected that the strikers would make some trouble if 1-3. they (appellees) operated the mine with non-union labor. As the mine was being operated by non-union labor, and the pickets became more numerous and more troublesome, appellee knew that the mine premises were becoming a more dangerous place in which to work. Quite probably appellee did not expect that the pickets would go so far as to shoot into the tipple, but the mere fact that appellee was mistaken in its judgment as to the extent to which the pickets would go should not relieve it of liability. The question of liability of an employer for injuries received by an employee in the course of his employment is not determined by the good or bad judgment of the employer as to the continuing safety of the place in which its employees work under growing hazards; the place must be in fact reasonably safe at alltimes during the period of employment. Appellee having elected to continue the operation of the mine in spite of the growing hazard until the mine premises became no longer a reasonably safe place in which to work, appellee should be held liable for appellant's injury.
Having in mind the purpose of the Workmen's Compensation Act to require industry to carry the burden of injuries to its employees arising out of and in the course of their employment, we 4. are constrained to hold that the Act covers appellant's injury as being compensable. *Page 340
We hold that the award is contrary to law, and that the evidence conclusively shows that appellant's injury arose out of and in the course of his employment by appellee, therefore the award is reversed with instructions that the Industrial Board enter an award of compensation in favor of appellant in an amount which said Board deems proper. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428221/ | This appeal is from a judgment in favor of appellee and against appellant rendered in an action brought by appellee to recover on a life insurance policy issued by appellant to one Magnus Erickson, then the husband of appellee, wherein appellee was named as the beneficiary. The policy was of a dual nature in that it was therein contracted that appellant, in the event of the insured's death, would pay the beneficiary (appellee) according to its terms $10,000, and also, in the event the insured's death was due to "bodily injury effected directly through external, violent and accidental means (Suicide, sane or insane, or any attempt thereat, sane or insane, not included) exclusively and independently *Page 399
of all other causes" appellant would pay to said beneficiary double that sum. Upon the death of the insured $10,000 was paid appellee, but appellant denied further liability and this proceeding was begun.
The complaint sought recovery under the "Double Indemnity Benefit" provisions of the policy, alleging among other necessary averments, "that the death of the said Magnus Erickson resulted from bodily injury effected directly through external, violent and accidental means, exclusively and independently of all other causes . . .; that on or about the 23rd day of November, 1928, said Magnus Erickson went into a barber shop to be shaved and that a barber, while shaving the insured, accidentally cut and punctured the skin of the insured upon his face, and that unknown to and unsuspected by said insured, or said barber, the instrumentality which caused said wound was accidentally infected with streptococci; that as a result of said cut, abrasion, or puncture a streptococcic infection started in the face of said insured and spread throughout his system and as a result he became infected and died on the 30th day of November, 1928." Appellant's answer to the complaint was a general denial. The cause was tried with a jury, which returned a verdict in favor of appellee for $11,420. Appellant filed it's motion for a new trial, which was overruled, and appellant excepted. Judgment was rendered on the verdict, and this appeal thereafter perfected, appellant assigning as error the overruling of its motion for a new trial.
The causes stated in the motion for a new trial that are presented by appellant under "Points and Authorities" as reasons why the court erred in overruling said motion, are that the verdict of the jury is not sustained by sufficient evidence; that such verdict is contrary to law; that the court erred in refusing upon the motion *Page 400
of appellant made at the close of appellee's evidence, to instruct the jury to return a verdict for appellant; that the court erred in refusing, upon the motion of appellant made at the close of all the evidence, to instruct the jury to return a verdict for appellant; that the court erred in overruling appellant's objections to certain hypothetical questions propounded by appellee to certain witnesses testifying as experts, and erred in excluding from the evidence appellant's exhibit nine, such offered exhibit being the proofs of death of the insured, made by appellee and physicians attending the insured in his last illness.
Whether a new trial should have been granted for either of the first four causes above mentioned depends upon the sufficiency of the evidence to prove the material allegations of the 1. complaint. In determining this question on appeal we consider only the evidence favorable to appellee.
There is evidence to establish that the death of the insured resulted from a streptococcic infection which started at a place on his chin where a small cut had been inflicted; that 2. death occurred on November 30th, 1928, and the policy was in full force and effect at that time; that any cut or breaking of the outer skin will provide a port of entry for streptococcic germs; that these germs have no particular habitat; that they are prevalent and may be carried on the hands, or on instruments or any object which comes in contact with a wound; that on the 23rd day of November, 1928, the insured was in good health, and when he left home on that morning there was no cut, pimple, or abrasion on his face; that he, accompanied by his father-in-law, drove by automobile to a town about twelve miles distant from his home, and while there the deceased was shaved by a barber at approximately 11:30 a.m.; that the barber who shaved the decedent *Page 401
kept his tools, including the razor with which he shaved the deceased, in a cabinet which contained formaldehyde in order to keep such instruments sterilized; that he (the barber), when shaving the deceased, stropped the razor he was using two different times upon a leather and canvas strop which hung on the side of the barber chair; that such stropping of the razor made it non-sterile; that the deceased, after being shaved, returned to his automobile and thereafter still accompanied by his father-in-law, drove to various places to look after business interests, returning to the home of his father-in-law about five o'clock p.m. where he remained for the evening meal, following which he and his wife returned home, the decedent going to a store which he conducted; that about seven or seven-thirty p.m. on this day an employee working at the store noticed a cut on decedent's chin a little to the right of the center of his chin; that the next morning at breakfast decedent's wife observed the cut and at this time it was "kind of reddish"; that the deceased went to his store on the morning of November 24th, and remained there until about two o'clock, p.m. when he returned home and went to bed; that a physician was called who examined the deceased about 4:30 p.m. and found him with a temperature of 101 and a pulse rate of about 100, and a small inflamed area on his lower chin, on the right side close to the mid-line with a surrounding redness and swelling, also a slight cough; that the insured's condition did not improve, and other physicians were called in consultation, but his condition became progressively worse until his death about 11 o'clock, a.m. on the morning of said November 30th; that the seat of the streptococcic infection which caused his death was at the place on his face where the cut appeared.
The testimony of the barber who shaved the insured on the morning of the 23rd, is to the effect that if he *Page 402
cut the insured he did not notice it; that he did not observe any signs of any such cutting; that he gave him a close shave and might have cut or "nicked" him without knowing it. There is no direct evidence to prove any such fact, but the record does disclose where the insured went and what he did from the time he left the barber shop until the cut on his chin was noticed some hours later on the same day, and no facts or circumstances are disclosed by the record from which the jury might have concluded that the insured received the cut at any other time or place. We can not say as a matter of law that the jury, from the facts proven, had no right to draw the inference and find as an ultimate fact that the insured was accidentally cut by the barber while being shaved; neither can we say it was not justified in inferring from other facts proven that the razor used was the instrument that carried the streptococcic germs, which caused the infection resulting in death.
Evidence is not to be considered in fragmentary parts, but all facts and circumstances proven are to be considered together. The probative force of all the proved facts when so 3-5. considered is determinative of the result which should be reached by the court or jury trying the cause.
It is not required that facts be proved by direct and positive evidence. The court or jury trying the cause may draw any reasonable inference, and if a fact may reasonably be inferred from the facts and circumstances which the evidence tends to establish, it is sufficient on appeal. Carter v. Richart
(1917), 65 Ind. App. 255, 114 N.E. 110; Indian Creek Coal etc.,Co. v. Calvert (1918), 68 Ind. App. 474, 496, 119 N.E. 519, 120 N.E. 709; Hinshaw v. State (1897), 147 Ind. 334, 47 N.E. 157; Gears v. State (1932), 203 Ind. 380, 396, 180 N.E. 585; Wigmore on Evidence (2nd Ed.) Section 41. *Page 403
Appellant claims error by the court in overruling its objections to hypothetical questions which appellee propounded to certain of her witnesses (physicians testifying as 6, 7. experts) and in permitting such questions to be answered. It is asserted that such questions embraced and assumed as true facts of which there was no proof. Upon a consideration of the questions asked and the evidence introduced, we find that there is at least some evidence tending to prove all facts embraced in such questions. Moreover, the jury was instructed that it was not to be bound or concluded by the opinions expressed in the answers given, and were further told that "you are not to assume that the facts stated in such hypothetical question were true, merely because they were stated in such question. Upon the contrary, you are not to take them as true, unless they are established by the evidence; and the burden of proof rests upon the party assuming a state of facts in such hypothetical question to prove that they actually existed; and if you shall believe from all the evidence in the case that material and substantial portions of the facts assumed in the question did not in point of fact exist, then the value of such opinion is destroyed." An instruction to this effect would usually make harmless any error occurring by permitting an answer to a hypothetical question where some of the facts assumed were not sustained by proof. Taylor v. Taylor (1910), 174 Ind. 670, 93 N.E. 9.
The remaining alleged error presented relates to the exclusion from the evidence of appellant's offered "Exhibit Nine" (the formal proofs of insured's death made by appellee to 8. appellant) appellant's contention being that in these "proofs" there was a statement that insured's death was complicated by influenza, and that the exhibit should have been admitted because this statement was a declaration against interest. *Page 404
The forms used in making proofs of death contained among others the following questions: "Was last illness complicated with or induced by any previous illness or infirmity? If so what and when?" The exhibit consisted of statements made by way of questions and answers the answers being made either by the appellee, or by one of three physicians who attended insured in his last illness. The answer given by one of the physicians was: "Influenza"; the answer given by each of the other two physicians was: "No." All persons whose statements are contained in Exhibit Nine testified as witnesses, and were subject to cross-examination. One of these physicians, the one who was first called to attend the deceased, admitted on cross-examination that he had assigned influenza as a contributing cause of death, and that in the death certificate he had given influenza as a contributing factor; he also testified that he had made a statement to appellant to the same effect. We are of the opinion that the court's ruling in sustaining the objection to the admission of the offered exhibit, under the facts disclosed by the record, if erroneous, was not such error as to require a reversal of this cause.
The court did not err in overruling the motion for a new trial. Judgment affirmed. *Page 405 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428236/ | This cause, originally filed in the Putnam Circuit Court, is a proceeding for partition and to quiet title to real estate in that county. It was venued to the Hendricks Circuit Court and there tried to a jury, who returned a verdict in favor of the appellees on May 24, 1943, and judgment was entered thereon the following day.
The decree, which was entered by agreement of counsel representing the several parties, included the following paragraph:
"And now all parties, by their several attorneys, waive all rights of appeal and to modify the judgment herein, and all and severally consent that the venue of this cause may be changed back to the *Page 280
Putnam Circuit Court, and accordingly, the court now orders the venue be changed to the Putnam Circuit Court, and the Clerk of the Hendricks Circuit Court is directed to transcript and certify all the record of this cause in the Hendricks Circuit Court, together with all pleadings and papers herein to said Putnam Circuit Court; all reports and further proceedings in this cause to be had in said court."
On June 5, the change of venue was perfected and the Putnam Circuit Court assumed jurisdiction of the cause.
On June 11, the appellants filed in the Hendricks Circuit Court their separate verified motions to set aside the judgment and decree and to modify and correct it by striking therefrom their waivers of their right to appeal, and they also filed their separate motions for a new trial.
On July 16, the Hendricks Circuit Court granted the motions to modify and correct the decree and modified the same by striking therefrom the paragraph above quoted, and further ordered: ". . . that all the papers in this cause heretofore sent to the Putnam Circuit Court, under that part of the order which is now stricken out, be returned to the Circuit Court of Hendricks County, Indiana."
The motions for new trial were overruled on the same day, and steps were taken to perfect this appeal. All dates above mentioned were within the May term of the Hendricks Circuit Court.
The appellees move to dismiss the appeal, contending, among other things, that at the time of the filing of the motions for new trial in the Hendricks Circuit Court, there was pending there no cause of action in which an appeal could be prosecuted.
The appellants insist that jurisdiction remained in the Hendricks Circuit Court despite the proceedings *Page 281
above shown, and that no change to Putnam County could be granted without first setting aside the submission of the cause.
It makes no difference, as we view it, whether either party could have compelled a change of venue from the county upon the filing of an application therefor correct in form at 1, 2. that stage of the proceedings when the agreement was shown of record. No application was filed. The title to lands was in issue in the case, and the judgment, ordering as it does the sale of indivisible real estate, had sufficient finality to support an appeal to this court, Stauffer v. Kesler
(1920), 191 Ind. 702, 127 N.E. 803; Jones v. Jones (1926),84 Ind. App. 176, 149 N.E. 108, 150 N.E. 65, yet under our statutes governing partition of real estate (§ 3-2401 et seq., Burns' 1933) the court after the entry of this judgment had further duties to perform before the litigation could be considered finally disposed of, and the cause was, to that extent at least, a pending cause of action. For the reason, according to the briefs, that it would be more convenient and economical to transcript the proceedings to the county where the land was situated, there to complete this litigation in which further steps were necessary to be taken, the parties voluntarily agreed to and the court approved the change of venue, and we know of nothing in our law which condemns such procedure. The law gives the Putnam Circuit Court general jurisdiction of the subject matter. The agreement of the parties conferred upon that court jurisdiction of their persons. Garrigan v. Dickey (1890),1 Ind. App. 421, 27 N.E. 713. We therefore conclude that the change was properly granted to the Putnam Circuit Court, but even though erroneous, the appellants, having themselves been acquiescent actors in procuring the change to a *Page 282
court having jurisdiction of the subject matter, may not now successfully assail it. Coleman v. Floyd (1892),131 Ind. 330, 31 N.E. 75; Ritenour v. Hess (1929), 201 Ind. 327,166 N.E. 657.
As to the effect of the court's order of July 16, granting appellants' motions to modify and correct the decree and attempting to recapture jurisdiction, it may be said that, 3. generally speaking, a court has unlimited power over its judgments during the entire term at which they are rendered, Livingston v. Livingston (1921), 190 Ind. 223, 130 N.E. 122, and during such term, for good cause, may correct, modify or vacate any of its judgments or orders made therein,State ex rel. v. Superior Court of Marion County (1931),202 Ind. 456, 174 N.E. 732, but after a court has divested itself of a jurisdiction which has been lawfully acquired by another court, it cannot vacate or set aside the order by which it did so, SunPublishing Co. v. Bonifas (1939), 106 Ind. App. 607, 19 N.E.2d 879, nor recall the case nor exercise any further jurisdiction therein. State ex rel. v. Superior Court ofMarion County, supra.
An attorney represents his client in the management of a case and has implied authority to bind him by stipulations and agreements relative to procedure. Terre Haute Brewing
4, 5. Company v. Ward (1914), 56 Ind. App. 155, 102 N.E. 395, 105 N.E. 58. On the face of the record in this case the proceedings leading to the change of venue were in all things regular. If in fact the circumstances were such that the appellants should not be bound by the agreement made for them by their attorneys, that situation should have been presented, after the change of venue had been perfected, to the Putnam Circuit Court, which court had full jurisdiction to make any appropriate *Page 283
order or ruling. Sun Publishing Co. v. Bonifas, supra. See also State ex rel. Karsch v. Eby, Judge (1941), 218 Ind. 431, 33 N.E.2d 336.
We find no merit in appellants' contention that the cause must have remained in the Hendricks Circuit Court so as to permit the Judge of that court to pass upon the motions for new trial. 6. Under Rule 1-9 of the Supreme Court, 1943 Revision, the Judge of the Hendricks Circuit Court, having presided at the trial, would pass upon those motions in whatever court they were properly filed.
The Hendricks Circuit Court having lost and never regained jurisdiction of the cause, we conclude that all steps taken there after the change of venue was perfected were ineffective 7. for any purpose and there is, therefore, no foundation upon which to base this appeal.
Appeal dismissed.
Royse, J. not participating.
Note. — Reported in 57 N.E.2d 591. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3208961/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID N. OSOLINSKI, No. 15-16219
Plaintiff - Appellant, D.C. No. 1:14-cv-01895-AWI-
SAB
v.
MARISA BIGOT; DOE, MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted May 24, 2016**
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
California civil detainee David N. Osolinski appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state
law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). Barren v. Harrington, 152 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1193, 1194 (9th Cir. 1998) (order). We affirm in part, reverse in part, and remand.
The district court properly dismissed Osolinski’s Fourth Amendment claim
because Osolinski failed to allege facts sufficient to state a claim. See Bell v.
Wolfish, 441 U.S. 520, 559 (1979) (setting forth elements); Hebbe v. Pliler, 627
F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be liberally
construed, a plaintiff must still present factual allegations sufficient to state a
plausible claim for relief).
The district court dismissed Osolinski’s state law claims on the ground that
violations of state law do not give rise to a claim for relief under 42 U.S.C. § 1983.
However, California’s constitution provides a right of privacy cause of action, see
Hernandez v. Hillsides, Inc., 211 P.3d 1063, 1073 (Cal. 2009), and Osolinski
expressly brought such a claim pursuant to the district court’s supplemental
jurisdiction under 28 U.S.C. § 1367. On remand, the district court should exercise
its discretion as to whether it will exercise supplemental jurisdiction over
Osolinski’s state law claims.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
2 15-16219 | 01-03-2023 | 06-02-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3208962/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARRELL JAMES PARKS, No. 15-55357
Plaintiff-Appellant, D.C. No. 5:12-cv-01353-SVW-
JCG
v.
WREN, Mailroom Supervisor; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted May 24, 2016**
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Federal prisoner Darrell James Parks appeals pro se from the district court’s
judgment dismissing his action under Bivens v. Six Unknown Named Agents of the
Bureau of Narcotics, 403 U.S. 388 (1971), alleging various constitutional claims.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Resnick v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A);
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal
under 28 U.S.C. § 1915(e)(2)). We affirm in part, vacate in part, and remand.
The district court properly dismissed Parks’ claims against defendants
Brody, Rene Galaz, Julie Galaz, Smith, Kwan, Scearce, Casey, Gonzalez, Palos,
Martinez, James, and Hamilton, because Parks failed to allege any specific
wrongdoing by these defendants. See Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002).
The district court properly dismissed Parks’ access-to-courts claim against
defendant Villegas because the dismissal of Parks’ civil actions was not caused by
Villegas’ alleged conduct. See Lewis v. Casey, 518 U.S. 343, 348-54 (1996)
(access-to-courts claim requires showing that the defendant’s conduct caused
actual injury to a non-frivolous legal claim).
The district court properly dismissed Parks’ claims against defendants Miller
and Schouten because mail from the courts and the United States Parole
Commission is not legal mail. See Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir.
1996), amended by 135 F.3d 1318 (9th Cir. 1998) (mail from courts not legal
mail); Mann v. Adams, 846 F.2d 589, 590 (9th Cir. 1988) (mail from public
agencies not legal mail).
The district court properly dismissed Parks’ claim alleging that defendants
2 15-55357
violated his constitutional rights in the processing and handling of Parks’ prison
grievances because prisoners do not have “a constitutional entitlement to a specific
prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003).
The district court did not abuse its discretion in dismissing Parks’ complaint
without leave to amend. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003
(9th Cir. 2010) (setting forth standard of review); McQuillion v. Schwarzenegger,
369 F.3d 1091, 1099 (9th Cir. 2004) (district court may deny leave to amend where
amendment would be futile).
However, the district court failed to address Parks’ First Amendment
retaliation claim. Parks alleged that defendant Villegas searched his cell,
destroyed his property, and left his cell in “total discombobulation” in retaliation
for Parks’ filing of a grievance against Villegas. These allegations are sufficient
to state a retaliation claim under the First Amendment. See Rhodes v. Robinson,
408 F.3d 559, 567-68 (9th Cir. 2005) (listing elements of retaliation claim in the
prison context).
Parks has waived any claims of error relating to the dismissal of his initial
complaint because it was dismissed with leave to amend, and Parks subsequently
filed an amended complaint. See Chubb Custom Ins. Co. v. Space Sys./Loral, Inc.,
710 F.3d 946, 973 n.14, 974 n.15 (9th Cir. 2013) (failure to replead claims after
3 15-55357
dismissal with leave to amend amounts to waiver). To the extent that Parks
argues that the district court erred by dismissing with leave to amend claims that he
repled in his amended complaint, any such error was harmless.
We do not address Parks’ contention regarding appointment of counsel
because Parks failed to raise this issue before the district court. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
In sum, we affirm the dismissal of Parks’ claims to the extent that the district
court addressed them, but we vacate in part and remand for further proceedings on
Parks’ retaliation claim.
AFFIRMED in part, VACATED in part, and REMANDED.
4 15-55357 | 01-03-2023 | 06-02-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031160/ | Fourth Court of Appeals
San Antonio, Texas
September 2, 2016
No. 04-06-00630-CR, 04-06-00631-CR; 04-06-00632-CR; 04-06-00633-CR; 04-06-00634-CR &
04-06-00635-CR.
Melchor HAWKINS, Jr.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 06-01-11867-CR, 06-01-11868-CR, 06-01-11869-CR, 06-01-11870-CR, 06-01-
11871-CR & 06-01-11872-CR
Honorable Ricardo H. Garcia, Judge Presiding
ORDER
The motion filed by appellant on August 24, 2016 is dismissed for lack of jurisdiction.
See Tex. R. App. P. 19.1.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 2nd day of September, 2016.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4058710/ | JUDGMENT
Court of Appeals
First District of Texas
NO. 01-14-00288-CR
STEPHEN WILLIAM SIROS, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 337th District Court of Harris County. (Tr. Ct. No. 1323111).
This case is an appeal from the final judgment signed by the trial court on March
27, 2014. 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 June 30, 2015.
Panel consists of Justices Jennings, Higley, and Huddle. Opinion delivered by Justice
Higley. | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428223/ | This is an appeal from a judgment in favor of the plaintiff in an action to recover damages upon an attachment bond executed by the appellants to obtain the issuance of a writ of attachment, and which writ of attachment was alleged to have been wrongful and oppressive.
The facts involved are as follows: On August 21, 1942, appellants, Anna Fetter and Estate of Archy Campbell, doing business as Campbell Fetter, Bankers (a private bank at Kendallville, Indiana), filed their action before one LeRoy Starmer, a Justice of the Peace in Wayne Township, Noble County, Indiana, against Milo Powers and Addie Powers, residents of Milford Township, LaGrange County, Indiana, to recover upon a promissory note. At the time of filing the action the plaintiffs filed an affidavit in attachment alleging that the defendant Milo Powers, was a non-resident of the state of Indiana, and they also filed their written undertaking *Page 371
and bond in attachment in said action, which bond was signed by Campbell Fetter, Bankers, by Donald M. Campbell, its president. The bond was approved by the Justice of the Peace, and a writ of attachment duly issued and delivered to one Lester Workman, a special constable, to be served. Said Workman, as special constable, with the assistance of one Jay C. Williams, a disinterested householder of Noble County, executed said writ of attachment and levied upon a valuable race horse, known as Hal C., one four-door Oldsmobile sedan; one set of racing harness, and one sulky, belonging to Milo Powers, and made due return upon said writ of attachment. Thereafter, on August 26, 1942, a default judgment was rendered against the defendants, Milo Powers and Addie Powers, in the sum of $199.99. As a part of the default judgment the Justice of the Peace ordered that the above mentioned attached property, or enough thereof as necessary to pay and satisfy the judgment and costs, be sold as other personal property is sold on execution.
On August 27, 1942, the Justice of the Peace issued and delivered to said Workman, as special constable, an order of sale directing and commanding said special constable to sell and dispose of as upon execution the goods and chattels attached under the order of attachment issued in said action, or so much as necessary to make the sum of $199.99, with interest and costs. Thereafter, on the — day of February, 1943, said special constable Workman proceeded across the county line between Noble and LaGrange Counties to the home of Milo Powers in Milford Township, LaGrange County, and seized and took into his possession the race horse, Hal C., and removed him into Noble County, where he was kept at a boarding stable for a period of six weeks, until April, 1943, during which period of time it was *Page 372
claimed said race horse received injuries which rendered him worthless as a race horse. In March, 1943, Milo Powers filed in the Noble Circuit Court his verified complaint to vacate and set aside the default judgment rendered against him by said Justice of the Peace on August 26, 1942, and to enjoin the sale of the personal property levied upon under the writ of attachment and order of sale entered August 27, 1942, heretofore described. Thereafter such proceedings were duly taken in said action as resulted in a judgment vacating and declaring null and void said default judgment and all other proceedings had therein relative to the attachment and levy and enjoining the threatened sale of the race horse Hal C. Thereafter said Milo Powers instituted this action as heretofore stated.
Issues were joined upon a second amended complaint and a second amended answer in one paragraph, admitting and denying as provided by Rule 1-3. The venue having been changed to the LaGrange Circuit Court, the cause was submitted for trial to a jury, which returned its general verdict in favor of the plaintiff and assessed his damages in the sum of $1500. Judgment was rendered upon the verdict, and upon the overruling of a motion for a new trial, this appeal was perfected.
After the trial and verdict of the jury, the plaintiff, Milo Powers, died on April 4, 1947, and upon proper motion the appellee, LeRoy K. Schultess, administrator of the estate of Milo Powers, deceased, was substituted as party plaintiff in said action.
The errors assigned and not waived are: 1. That the court erred in sustaining a demurrer to appellants' plea in abatement. 2. That the court erred in overruling appellants' demurrer to the second amended complaint. 3. That the court erred in sustaining a demurrer to the *Page 373
second paragraph of appellants' answer. 4. That the court erred in striking out appellants' cross-complaint and answer of set-off. 5. That the court erred in overruling appellants' motion for a new trial. These alleged errors will be considered and discussed in the order above mentioned.
In their plea in abatement filed in the second amended complaint, which named as the defendants therein "Anna Fetter and Estate of Archy Campbell, doing business as Campbell Fetter, Bankers; Campbell Fetter, Bankers; Donald M. Campbell," the defendants alleged in substance that the plaintiff had totally abandoned the theory of the original complaint, which was based upon a claimed illegal judgment and unlawful detention of personal property under the alleged illegal judgment; that the second amended complaint is based upon the theory of a wrongful attachment and is an action upon the attachment bond; that the defendants named in the second amended complaint are not the defendants named in the original action; that no process of summons has been issued against any of the defendants named in the amended complaint and by reason thereof no defendant has been brought into court.
Under Proposition I and points and authorities thereunder appellants claim no action was ever commenced against the estate of Archy Campbell, one of the defendants; that no claim had 1. ever been filed against the estate in the clerk's office wherein said estate was pending; and no summons was ever issued against the estate or its representative upon the filing of the amended complaint and therefore said defendant estate was never properly brought into court and is not a proper party defendant in the action, citing *Page 374
§ 2-802, Burns' 1946 Replacement, and § 6-1001, Burns' 1933.
The record discloses that the defendants to the second amended complaint, viz: Anna Fetter and Estate of Archy Campbell, doing business as Campbell Fetter, Bankers; Campbell Fetter, Bankers; Donald M. Campbell; were on and prior to August 21, 1942, engaged in the business of conducting and operating a private bank at Kendallville, Indiana.
Section 18-2711, Burns' 1933, which is § 12, ch. 113, Acts 1907, entitled "An act to regulate and supervise the business of banking by individuals, partnerships or unincorporated persons," expressly provides that "any bank organized and doing business under the provisions of this act shall have the right to sue and be sued under the name under which such bank is authorized to transact its business. Service of summons or other process of court upon the officer or agent in charge of the business of such bank shall be good and sufficient service to give the court jurisdiction, and any judgment obtained against such bank shall be valid and binding against all the persons interested therein."
In view of said statute and the facts in this cause the court did not err in sustaining the demurrer to said plea in abatement.New Amsterdam Casualty Co. v. New Palestine Bank (1915),59 Ind. App. 69, 76, 107 N.E. 554; Kimmel v. Captain (1940),107 Ind. App. 621, 625, 24 N.E.2d 435.
Under Proposition III of appellants' brief, we find the following statement: "The appellants rely on their Assignment of Error No. 3 to-wit: `The Court erred in overruling the demurrer filed by defendants to plaintiff's second amended complaint.' The appellants also rely under Proposition III upon their Assignment of Error No. 8, to-wit: `The Court erred in overruling *Page 375
defendant's motion for a new trial' and with reference to the following causes in said motion for a new trial to-wit: `4. The Court erred in overruling the motion of the defendants, at the close of plaintiff's evidence, for a directed verdict for the defendants.' `5. The Court erred in overruling at the close of the evidence given in this cause, the written motion by the defendants, requesting the Court to direct a verdict for the defendants.' `6. The verdict of the jury is not sustained by sufficient evidence.' `7. There is no evidence to support said jury verdict.' `8. The verdict of the jury is contrary to law.' Appellants' assignment of error No. 3 and Causes No. 4, 5, 6, 7 and 8 of Assignment of Error No. 8 will be discussed under Proposition III (Assignment of Error No. 8 being hereinafter also treated under other propositions)."
It will be noted that the above quotation from appellants' brief involves two different propositions, to wit: 1. A question as to the sufficiency of a pleading — the second amended 2. complaint; 2. The question as to the sufficiency of the evidence to sustain the allegations of the second amended complaint. Both propositions are so commingled in the points and authorities on pages 108 to 122, inclusive, of appellants' brief that we are unable to differentiate and determine the specific points and authorities intended to be in support of the alleged error in the ruling of the court in overruling the demurrer to the second amended complaint.
Rule 2-17 (f) of the Revised Rules of the Supreme Court provides in part: "The briefs shall contain under the heading, `Propositions, Points and Authorities,' a copy of each assigned error relied on, designated by number as in the original assignment of error, and in case the error assigned is the overruling of the motion *Page 376
for a new trial, then the causes relied upon shall be numbered as in the motion. Each assignment shall be supported by separately numbered propositions, concisely stating the basis of the objection to the ruling complained of. Each proposition shall be supported by separately numbered or lettered points or statements of rules of law applicable thereto, with citation of authorities in support thereof. Assigned error which is not set out in thispart of the brief and supported by propositions, points andauthorities, will not be considered." (Our emphasis.)
Therefore, we hold under the requirement of said Rule 2-17,supra, that appellants have waived any question as to any alleged error in the overruling of the demurrer to the second amended complaint. Pilgrim v. Pilgrim (1947),118 Ind. App. 6, 75 N.E.2d 159.
Under Proposition IV in their brief (assignment of error No. 4) appellants assert that the trial court erred in sustaining the demurrer to appellants' second paragraph of answer. 3. Appellants' second paragraph of answer is set forth on pages 27 to 37 of their brief, but nowhere in the brief is there a copy of appellee's demurrer to said second paragraph of answer or the memorandum attached thereto or a statement of the substance of said demurrer and memorandum. Under the requirements of Rule 2-17 (e) appellants' brief must contain a concise statement of so much of the record as fully presents every error and exception relied upon.
The rules of the Supreme Court have the effect of law, binding upon the court and litigant alike, and must be enforced. Franklin v. Lee (1902), 30 Ind. App. 31, 62 N.E. 78; 4. Iterman v. Baker, (1938), 214 Ind. 308, 15 N.E.2d 365; Earl v. State (1926), 197 Ind. 703, 151 N.E. 3;Thompson v. *Page 377 C.C.C. St. L. Rwy. Co. (1937), 105 Ind. App. 97,11 N.E.2d 81.
For the reasons stated, no question is presented for our consideration by said assignment of error No. 4.
What has been said with reference to assignment No. 4 applies with equal force to assignments of error Nos. 5 and 6 under Proposition V of appellants' brief. By these assignments of 5. error appellants assert that the court erred in striking out the cross-complaint and also in striking out their answer of set-off, but nowhere in their brief do we find a copy of the cross-complaint and answer of set-off, and under Clause (e) of Rule 2-17, supra, no question is presented for our consideration by said assignments of error Nos. 5 and 6.
The last error assigned requiring our consideration is the alleged error in overruling appellants' motion for a new trial.
The first specification in the motion for a new trial alleged "That court erred in refusing to vacate the appointment of Claude V. Barker, Special Judge, and to certify this cause to the 6. Supreme Court for appointment of a special judge to hear said cause." The same ruling is also assigned independently as error in assignment of error No. 2. The error, if any, is properly presented for review upon appeal by being assigned as a specification of the motion for a new trial and not as an independent error. Goodrich v. Stangland (1900),155 Ind. 279, 284, 58 N.E. 148; Burns v. State (1922), 192 Ind. 427, 430, 136 N.E. 857.
It appears from the record that on October 20, 1944, while the cause was pending in the Noble Circuit Court, the appellants filed a motion and affidavit for a change of venue from the regular judge of said court, which motion was sustained and a special judge was duly *Page 378
appointed, as required by statute. Thereafter, on January 9, 1946, the attorneys for the plaintiff filed a written motion showing that the special judge theretofore selected had failed to qualify and requested that a new special judge be selected to serve in said cause. Thereupon the regular judge of said court proceeded to submit a list of three names from which the parties could strike and select a new special judge. Defendants (appellants herein) failed to strike a name from the list so submitted and the court proceeded to appoint Hon. Claude V. Barker, a practicing attorney of the Noble County Bar as special judge, who qualified and assumed the jurisdiction as special judge in said cause. Thereafter, on March 26, 1946, the defendants filed written objections to said special judge acting as special judge, which objections were overruled. Thereafter, on June 5, 1946, the defendants filed their verified motion for a change of venue from the county, which motion was granted and the venue of said cause was changed to DeKalb County, and the transcript was filed in the DeKalb Circuit Court on June 11, 1946. The issues in said cause were completed in the DeKalb Circuit Court and on December 2, 1946, the plaintiff (appellee Milo Powers) filed his verified motion for a change of venue from DeKalb County, which motion was granted and the venue of said cause was changed to the LaGrange Circuit Court, where the cause was thereafter tried before the regular judge of said court.
In view of this record and the fact that appellants themselves divested the special judge, Claude V. Barker, of any and all further jurisdiction in said cause by filing and obtaining 7. change of venue from the Noble Circuit Court to the DeKalb Circuit Court as effectively as if their written objection to his appointment as the special judge had been sustained, *Page 379
we must hold that the error, if any, in overruling the objection to his appointment was rendered harmless by the subsequent changes of venue from the county. Burns v. State, supra, on *page 431.
Appellants contend that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, for the reason that there was no proof of execution of the 8. attachment bond sued upon in the second amended complaint and that the original bond was not offered in evidence and no proof was made to justify the introduction of a copy of said bond. It is the law as asserted by appellants that the attachment bond sued upon in the second amended complaint is the foundation of appellee's action and that it would ordinarily be necessary for the plaintiff to introduce in evidence the original bond, or a copy thereof, to establish the allegations of the complaint.Merrifield v. Weston (1879), 68 Ind. 70, 74; Cress v.Hook (1880), 73 Ind. 177, 178; Winship v. Clendenning
(1865), 24 Ind. 439, 442; Boden v. Dill (1877), 58 Ind. 273, 277; Killian v. State ex rel. Spayd (1895), 15 Ind. App. 261, 267, 43 N.E. 955.
The issues joined in this cause consisted of the second amended complaint and appellants' answer in denial, as provided by Rule 1-3, supra. No verified answer of non est factum,
9. denying the execution of the attachment bond, was filed. It is well settled that in an action upon a bond where the issue is joined by an answer in general denial and no answer ofnon est factum is filed, the bond may be given in evidence without proof of its execution. Boden v. Dill, supra, on page 277.
To establish the allegations of the second amended complaint, the plaintiff offered and introduced in evidence his exhibit No. 1, which was a duly certified *Page 380
transcript of the proceedings and record in the cause of "Anna Fetter and Estate of Archy Campbell, doing business as Campbell and Fetter, Bankers, v. Milo Powers and Addie Powers," before LeRoy Starmer, Justice of the Peace in and for Wayne Township, Noble County, Indiana. This transcript was admitted in evidence without any objections made thereto by the appellants. Said transcript showed the filing on August 21, 1942, of a complaint upon a note; that at the same time the plaintiffs filed their affidavit and bond for attachment, alleging as grounds for the issuance of a writ of attachment that the defendant, Milo Powers, was a non-resident of Indiana and a resident of the state of Michigan; a copy of the bond is set forth in the transcript and is in legal form as required by statute; the approval of the attachment bond by the Justice of the Peace is shown; the issuance of a writ of attachment and also a summons, returnable August 26, 1942; the delivery of the writ of attachment to Lester Workman, as special constable, to be served; that the writ of attachment was returned as served "by reading the same to Milo Powers, and by levying on and taking possession of one brown (bay) male race horse named Hal C. . . . the property of Milo Powers"; an inventory and appraisement of the personal property attached as made by the special constable and a disinterested householder was attached to and made a part of the return endorsed on the writ of attachment; the rendering of a default judgment against Milo Powers on August 26, 1942; that a part of said judgment ordered the property attached to be sold as other personal property is sold on execution; that on August 27, 1942, said Justice of the Peace issued and delivered to said special constable an order of sale directing and commanding said special constable *Page 381
to sell said personal property attached under the writ of attachment issued in said action, viz: one brown race horse named Hal C. and other property.
If a fact in issue is established by competent and relevant evidence, it matters not which party introduces the evidence or for what other purpose the evidence was offered. Inland
10. Steel Company v. Ilko (1913), 181 Ind. 72, 78, 103 N.E. 7; Wilson, Admx. v. Rollings (1938), 214 Ind. 155, 158, 14 N.E.2d 905.
Also it is settled law that a fact may be established by incompetent evidence, if relevant and material, where it is admitted without objection. Pooley v. State (1945), 11. 116 Ind. App. 199, 205, 62 N.E.2d 484; Metropolitan Life Ins. Co. v. Lyons (1912), 50 Ind. App. 534, 98 N.E. 824; Western Southern Life Ins. Co. v. Lottes (1946),116 Ind. App. 559, 574, 64 N.E.2d 405; Pittsburgh, etc., R.Co. v. Knox (1912), 177 Ind. 344, 354, 98 N.E. 295; Graves
v. State (1889), 121 Ind. 357, 358, 23 N.E. 155.
The question as to the admissibility and sufficiency of said transcript to prove the attachment bond without producing the original bond as against a timely and proper objection is 12. not before us and is a matter that we are not required to consider and do not decide in this opinion. The evidence as contained in the transcript is sufficient to prove the attachment bond.
Appellants next contend that there is no liability upon the attachment bond in this action for the reason that in the action filed by Milo Powers in the Noble Circuit Court to vacate 13. and set aside the default judgment rendered against him by the Justice of the Peace on August 26, 1942, the Noble Circuit Court found that the entire proceedings in the *Page 382
attachment action before the Justice of the Peace were null and void and that no levy was made under the writ of attachment, citing Trentman v. Wiley (1882), 85 Ind. 33; Faulkner v.Brigel (1884), 101 Ind. 329; Barnett v. Lucas (1901),27 Ind. App. 441, 61 N.E. 683.
We cannot agree with appellants' contention that the record in the action to vacate the default judgment is conclusive upon the fact that no levy was made under the writ of attachment 14. and that the evidence in the instant case fails to establish the necessary fact that such a levy was made. The record contains evidence sufficient to establish that on and for years prior to August, 1942, Milo Powers was a bona fide
resident of Milford Township, LaGrange County, Indiana, which township adjoins the county line between LaGrange and Noble Counties; that Milo Powers owned and raced a horse named Hal C.; that on August 21, 1942, said Milo Powers had said horse in his possession in Wayne Township, Noble County, Indiana, when the writ of attachment was issued and it was served by the special constable as shown by the return endorsed upon said writ of attachment. For some reason, not disclosed by the evidence, Milo Powers was permitted to and did keep the race horse, Hal C., in his possession and removed him from Noble County to the state of Michigan where he was raced during the late summer and fall of 1942, and then returned to the home of Milo Powers in Milford Township, LaGrange County, where he was kept in Powers' possession until some time in February, 1943, when the special constable who had the order of sale issued by the Justice of the Peace under the attachment proceedings, proceeded to the home of Milo Powers, took possession of the race horse and removed him to Wayne *Page 383
Township, Noble County, and placed him in a boarding stable pending the sale. While quartered in said stable the horse was injured and thereafter he was worthless as a race horse. There is evidence that at the time the special constable placed the race horse in the boarding stable the horse was reasonably worth the sum of $2000 and after the injuries and being returned to the possession of Milo Powers in April, 1943, said race horse was not worth to exceed the sum of $50.
The horse was returned to the possession of Milo Powers after the Noble Circuit Court vacated the default judgment returned by the Justices of the Peace and declared all of the attachment proceedings null and void and enjoined the sale of said race horse.
The foregoing facts, together with all reasonable inferences to be drawn therefrom, are sufficient to establish liability upon the attachment bond and to sustain the verdict of the jury and the court did not err in overruling appellants' motion for a directed verdict.
Appellants allege error in the giving to the jury of instruction No. 8, given upon the court's own motion. Appellants' brief fails to set forth the specific objections made to 15. said instruction No. 8, as required by Rule 1-7, and for this reason the error, if any, in said instruction is waived.
Appellants also allege error in the refusal of the court to give certain written instructions. We have examined the requested instructions and are unable to find any error in the 16. refusal of the court to give said requested instructions in the form in which they were submitted. It is not error to refuse tendered instructions unless it is the duty of the court to give the instructions precisely as tendered; there is no duty resting upon the court to rewrite, modify, or change a requested instruction. Pittsburgh, *Page 384 etc., R. Co. v. Farmers Trust, etc., Co. (1915),183 Ind. 287, 295, 108 N.E. 108; Chicago, etc., R. Co. v. Pritchard
(1906), 168 Ind. 398, 419, 79 N.E. 508; Knapp v. State (1907)168 Ind. 153, 161, 79 N.E. 1076.
From our examination of the record in this cause, we are convinced that the merits of the cause have been fairly tried and determined in the trial court and that the substantial 17. rights of the appellants have not been prejudicially affected by any error in the proceedings, and under the provisions of § 2-1071, Burns' 1946 Replacement, the judgment must be and is hereby affirmed.
NOTE. — Reported in 78 N.E.2d 555. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428235/ | DISSENTING OPINION.
Since I am firmly convinced that ruling precedents of the Supreme Court are being violated by the majority opinion in this case it is my duty to state what I conceive the law to be as applied to the facts in this case. In the first place the statute says specifically that all policies should be incontestable after two years except for non-payment of premiums. Conceding that the statute is written into and becomes a part of all policies it follows then that under the statute this policy could be contested only for non-payment of premiums. The Supreme Court and this court have said, many times, that the incontestable statute means exactly what it says.
Again this policy is ambiguous and since it is ambiguous such ambiguity must be construed strictly against the insurer where an exception is involved. The majority opinion also says that there is a difference in the risk assumed by the insurer as to suicide and murder and this is absolutely groundless. I will concede that if this was a question as to the coverage intended to be *Page 39
placed in force or omitted and there was no assumption of risk at all that there could be no liability and that it would be the better rule probably to allow the insurer to defend on the ground that the risk had never been assumed but this is not the situation here, and for a further reason that an identical situation has been decided by this court wherein it was held that one who is murdered without fault on his part, without his expectation and foresight and he did not intend it that it was accidental.
In addition to the fact that the legislature knew exactly what it intended when it adopted the incontestable clause, the accumulation of the cases show that this state has held not only once, but many times that an incontestable clause means that the policy is not to be contested for any purpose except for statutory reasons, contained in the act.
The people of Indiana in 1909 through their legislature in "defining their powers and prescribing their duties" of all life insurance companies "organized under . . . or doing business" in this state said that such policies should contain the following: "that the policy . . . shall constitute the entire contract between the parties and shall be incontestable after not more than two years from its date except for non-payment of premiums and except for violation of the conditions of the policy relating to naval and military service in time of war." The legislature at that time also had all of our language at its command. It used ordinary common everyday words that were familiar to and part of the vocabulary of at least every legislator and every high school student. They decreed, as the supreme law of state, that policies ("entire contract") shall be incontestable after the stated period except for non-payment of premiums and except for violation of conditions of the policy relating to certain service in time of war. If *Page 40
it had been the idea of the legislature that there should have been other exceptions it would have been very easy to have added another or other "except for" clauses. The only
conclusion that can be reached is that it did not want any other exceptions. Nor has any other legislature since that time deemed there was any need for any additional exceptions. And there have been seventeen meetings of that body in those twenty-eight years.
The insurer can, of course, make any contract that its agents can persuade a gullible purchaser to buy. The whole of the English language is at their disposal to be used as they dictate. Most of the words used in insurance policies have been interpreted judicially not once but many times. There is no necessity today for the use of uncertain terms in life insurance. It was because of the use of loose language and the consequent endeavor of the companies to avoid liability thereunder that the Hughes investigation in New York revealed such practice. Realization that some radical measures were necessary caused the better companies and others to write incontestable clauses into their policies and sponsor legislation that would stabilize and revitalize the toppling business of life insurance. One of the outgrowths of this investigation was statutory incontestable clauses. They were enacted first and last to guarantee to the world that thereafter policies upon which premiums were paid could be collected in full and without delay, costly, expensive and exasperating litigation.
In 1887, which is the date of the earliest case I have been able to find in this state, the Supreme Court used language from which the only inference is that the court at that time believed that a policy containing an incontestable clause should be absolutely indisputable for any reason than that contained in the incontestable clause and that the company should never make any other defense under such a clause except for those reasons. *Page 41 Kline v. National Benefit Association (1887), 111 Ind. 462, 11 N.E. 620.
In 1896 this court in a case wherein it was being asserted that this clause meant that the insurer was "precluded from the rightto make any defense whatever to the payment of the full amount"
the assumption of the court was that a policy containing such clause was incontestable. (Our italics.) The Peoples MutualBenefit Society v. Templeton (1896), 16 Ind. App. 126, 44 N.E. 809.
In 1908, the year before the statute was adopted in this state, this court held that suicide was no defense and that an incontestable clause in the policy prevented the defense from suicide being asserted. Court of Honor v. Hutchins (1908),43 Ind. App. 321, 82 N.E. 89.
The Supreme Court again in Federal Life Insurance Company v.Kerr (1909), 173 Ind. 613, 89 N.E. 398, expressed the idea that the incontestable clause in the policy cuts off the rights of the insurer to contest the policy for any reason other than that excepted to in the incontestable clause.
This court again in 1911 in Court of Honor v. Rausch
(1911), 50 Ind. App. 161, 95 N.E. 1018, said that "after the expiration of two years the defense of suicide became unavailable and the contract of insurance contained in the certificate becameincontestable for any reasons except those stated in the incontestable clause. . . ."
This court again in the same volume, page 630, in CommercialLife Insurance Company v. McGinnis reaffirmed and reiterated the same idea and held that in a policy containing an incontestable clause that the insurer could not, after the expiration of the time, avoid such policy for any cause not included within the exception and said, in effect, that the incontestable clause was a sort of statute of limitations in favor of the insured *Page 42
within which time the insurer must, if ever, test the validity of the policy.
In 1913 in the first case written by the Supreme Court after the statute in this state went into effect, and with the clause in the policy, the court followed the great weight of authority in the United States and cited some of the Indiana cases herein mentioned and said that at that time they conceived the law to be that an incontestable clause precluded every defense to the policy other than the defenses excepted in the provision itself.Indiana, etc., Life Ins. Co. v. McGinnis (1913), 180 Ind. 9, 101 N.E. 289.
The next time this court was called upon to pass upon such clause was in Ebner, Admr. v. Ohio, etc., Ins. Co. (1918),69 Ind. App. 32, 118 N.E. 829, wherein it again said that the insurer must, if ever, test the validity of the policy within the incontestable period.
This court followed the McGinnis case, supra, again in NorthAmerican Life Insurance Co. of Chicago v. Copeland (1929),91 Ind. App. 710, 170 N.E. 927. This court in the last case touching upon this subject quoted from the Ebner and McGinnis cases,supra, to the effect that affirmative action should be taken within the period named in the incontestable clause and held that the affirmative action must be taken within the time limit or not at all. Federal Life Insurance Co. v. Relias (1934),99 Ind. App. 115, 185 N.E. 319.
The policy here provides that double indemnity shall be paid if all premiums have been paid ". . . in the event of the death of the insured, resulting from bodily injury, sustained and effected directly through external, violent and accidental means (murder . . . not included) exclusively and independently of all other causes, provided such death shall occur within ninety days from the date of the accident." It is my contention that this is ambiguous in that under the decisions in this state *Page 43
one who meets his death through "external, violent and accidental means" even though such means be received by the insured while someone else was perpetrating the felony of robbery, it was accidental.
The earliest Indiana case on the question of ambiguous insurance contracts is Grant et al. v. The Lexington Fire,Life and Marine Insurance Company (1854), 5 Ind. 23, wherein the court said (p. 27): "Insurance policies are to be liberally construed in favor of the assured; and an exception is to be
STRICTLY construed against the underwriters." (Our italics.) In the same volume in the case of The Kentucky Mutual InsuranceCompany v. Jenks (1854), page 96, the court said (p. 103):"It is not good policy in the Courts to favor such cunninglydevised insurance policies, as that whatever event happens, the underwriters may reap the premium and escape the risk. On the contrary, some degree of acuteness should be called in to uphold and enforce such agreements, whenever there has been a fair contract and a substantial compliance." (Our italics.)
In the case of Pacific, etc., Ins. Co. v. Alsop, Exr.
(1922), 191 Ind. 638, 640, 134 N.E. 290, the court said: "The established rule is that an insurance policy prepared by the insurer, the form of which the insured can not control nor alter, which may not even be seen by the insured until it is delivered to him in final consummation of the contract of insurance, shall not receive a strained construction as against the insured, but that doubts as to its construction arising from contradictoryprovisions or ambiguous expressions which it may contain are to be resolved against the company that issued it." (Our italics.)
In the more recent case, if not the last expression of opinion by the Supreme Court, the court said the following with citation of authority for each statement: "Since the policy in the instant case insures generally *Page 44
by clear and comprehensive language against death from bodily injuries by accidental means, of which there are visible marks or wounds on the body, liability for such a death will not bedestroyed by language of exception, unless such exception shallbe clear, AND FREE FROM REASONABLE DOUBT. If a policy be ambiguous, the doubt will be resolved against the insurer. . . .
"An insurance policy should be so construed as to effectuate indemnification to the insured or his dependent beneficiary against loss, rather than to defeat it. . . . Where any reasonable construction can be placed on a policy that will prevent the defeat of the insured's indemnification for a loss covered by general language, that construction will be given . ..
"It is the duty of the court to give such construction to the policy, if the language fairly admits, as will make it of some substantial value and carry out the intention expressed therein that liability is incurred where death occurs from accidental injury." Masonic Acc. Ins. Co. v. Jackson (1929),200 Ind. 472, 481, 482, 164 N.E. 628.
If these rules of construction mean anything I believe that we should follow them. The appellee here in its brief and in oral argument admits that as to the deceased policy holder this wasdeath through injuries sustained and due to external, violent andaccidental means, exclusively and independently of all othercauses. If this was such to him, and it seems to be without dispute, then there is ambiguity in the policy. If the policy is capable of more than one construction and if one contracting party believes that the policy means one thing while the other contends that it means something else I can not understand why it can be anything else but ambiguous.
In the case of Atkinson, Admr. v. Indiana, etc., Ins. Co.
(1923), 194 Ind. 563, 143 N.E. 629, the Supreme *Page 45
Court had before it a case where the insurance company contended that an exception stated in language no clearer than the present case was not ambiguous but it was held that such an exception should not control. In that case the policy provided that "after one year from the date of issue this policy shall become incontestable if the premiums have been duly paid, except in case of self-destruction within two years, whether sane or insane, and except that military or naval service in time of war without a permit from the company, is a risk not assumed under this policy at any time." The insurance company contended that since the exception provided that one in military service in time of war without a permit from the company was a risk not assumed while the appellant contended that at the time the insured met his death he was not in military service in that he had been given a pass to absent himself from camp for a few hours, although he, during that time, was subject to call by the military authorities. The court there said that the possibility of such a construction by the insurance company in the face of the construction contended for by the insured discloses an ambiguity. If that policy was ambiguous the one in the case at bar is more so and we are bound by the prior decisions of the Supreme Court. The court there said (p. 568): "This very state of conjecture suggests the rule of law, long adhered to, that, in construing an insurance contract, which, by ambiguities, is capable of two reasonable interpretations, that interpretation will be adopted which is most favorable to the insured, and against the insurer," and cited a long list of authorities to sustain its view.
In the case of Travelers' Protective Association v. Fawcett
(1914), 56 Ind. App. 111, 104 N.E. 991, the identical question as presented in the instant case was before this court. The insurance company there contended *Page 46
that the condition relied upon exempted it from liability for injury or death resulting from intentional injury inflicted by another person on the insured and for the purpose of that case the court adopted that construction. The insurance company contended that a complaint that showed upon its face that the insured met his death from intentional injury inflicted by another when the policy specifically excepted it, was bad on demurrer. The court there said (p. 116): "It is true that this paragraph shows that the assured was assassinated by a person who was attempting to rob the bank, but this does not amount to a showing that his death did not result from accidental means within the terms of the certificate and by-laws" and that since the complaint alleged that Fawcett was shot through the body by a ball from a pistol and thereby instantly and accidentally killed by Thomas Hoal the other allegations are not sufficient to overcome this general allegation that the insured was accidentally shot and injured and that therefore the complaint is clearly sufficient. The majority opinion says that they agree with this proposition and then proceed to arrive at the opposite conclusion. Of course I will agree that this court can overrule any of its former opinions but certainly it can not do this by saying that it agrees with the result reached in the opinion attempted to be overruled as to the only question presented in that case, which question is identical to the one presented here, that is, whether or not the demurrer to the complaint here was properly sustained. I believe that, for one of many reasons, we are bound by the Fawcett case.
The majority opinion quotes from a Louisiana case using dicta of that court which is clearly outside the matter decided. The only question in the Louisiana case was whether or not the insured met his death by accidental means, and the court held that he did not because *Page 47
he had been the aggressor in the fight which caused his death. The citation of this case along with the case of State LifeInsurance Company v. Allison (1920), (C.C.A.), 269 Fed. 93, 14 A.L.R. 412 (cases which the insured cites) and also the cases ofState Life Insurance Company v. Little (1924), (Tex. Civ. App.), 264 S.W. 319; State Life Insurance Company v. Allen
(1936), (C.C.A. Tex.), 81 F.2d 618; State Life InsuranceCompany v. Parry (1935), (Tex. Civ. App.), 88 S.W.2d 763;State Life Insurance Company v. Barnes (1933), (Tex. Civ. App.), 58 S.W.2d 189; State Life Insurance Company v.Cumpton (1932), 144 So. 769 (La. App.); State Life InsuranceCompany v. Spencer (1933), (C.C.A. Tex.), 62 F.2d 640;State Life Insurance Company v. Wilson (1933), (Tex. Civ. App.), 57 S.W.2d 355; State Life Insurance Company v.Sullivan (1932), (C.C.A. Cal.), 58 F.2d 741; State LifeInsurance Company v. Nolen (1930), (Tex. Com. App.), 24 S.W.2d 22; State Life Insurance Company v. Coffrini (1922), (C.C.A. Pa.), 285 Fed. 560, which I found while investigating this matter show clearly that the insurer could not have meant the same thing in any one of these cases as to the attempt to exempt murder. These policies were issued in Texas, Louisiana, Alabama, California and Pennsylvania as well as the instant case in Indiana.
Murder as defined by their respective criminal codes is not the same in any of these states and this brings us to a discussion of what the average man, in common parlance, conceives murder to be. If the average man believes murder to be the statutory definition in Indiana as interpreted by the majority opinion it means that "whoever, in the perpetration of or attempt to perpetrate a rape, arson, robbery or burglary, kills any human being, is guilty of murder in the first degree. . . ." If it could be said that this was the average man's idea *Page 48
of "murder" it might be that there was no ambiguity in the use of this word and that a person meeting his death by violent, external and accidental means when there had been an attempt on the part of one unknown to the insured to perpetrate a rape, arson, robbery or burglary he was not covered by such a policy. But this is not all that the statute of Indiana regards as murder. If a railroad, interurban or street-car track is obstructed willfully and maliciously and as a result a person is killed in the crash it follows that if murder is to be interpreted as the majority opinion herein interprets it, anyone with a policy that provided that if he meet his death by violent, external and accidental means could not recover under such policy because that by statute is held to be murder in Indiana. Acts 1905, ch. 169, § 413, p. 584, § 10-3902 Burns 1933, § 2496 Baldwin's 1934. Or if anyone maliciously or even mischievously shoots a gun, rifle, pistol or other weapon, or throws a stone, stick, club or any other substance whatever, at or against any stage coach, or any locomotive, railroad car or train of cars, street car, or interurban car on any railroad or against any water craft and anyone is injured or wounded by such act from which death ensues, recovery could not be had under the majority opinion herein, because this would also be murder. Acts 1905, ch. 169, § 410, p. 584, § 10-4520 Burns 1933, § 2493 Baldwin's 1934. Or if there should be a duel and death resulted therefrom the beneficiaries of the deceased duelist could not collect under a policy under the majority opinion, although clearly he would have met his death by violent, external and accidental means. Acts 1905, ch. 169, § 348, p. 584, § 10-3402 Burns 1933, § 2405 Baldwin's 1934, whether the duel be fought in this state or in some other state where dueling might not be prohibited by law.
One of the strangest anomalies to be found is where *Page 49
any number of persons assemble for an unlawful purpose and intend to injure any person by violence and as a result thereof do actually injure or assault another person and that person thereby meets his death by violent, external and accidental means, his representatives could recover under this policy as such is deemed to be lynching and not murder within our statute. Acts 1905, ch. 169, § 440, p. 584, § 10-3306 Burns 1933, § 2526 Baldwin's 1934.
Neither the insurance company nor the insured had any idea that murder was as fixed by the majority opinion here. Had the policyholder, immediately after receiving this policy, some doubt as to whether murder was excepted and he resorted to a dictionary or encyclopedia to set his mind at rest, as to the probable definition of murder, after such search he would, no doubt, have concluded that if he met his death by violent, external and accidental means even at the hand of a third person as in this particular case, the definition that he found there could not have led to any such conclusion. Webster's New International Dictionary, 1931, defines murder as "The offense of unlawfully killing a human being with malice aforethought, express or implied." The foregoing is one of the two most usual definitions of murder occurring in the judicial decisions; the other is essentially that given by Blackstone, quoting Sir Edward Coke. In the United States this is stated as follows: The offense committed "where a person of sound memory and discretion unlawfully kills any reasonable creature in being and in the peace of the commonwealth with malice aforethought expressed or implied." At common law there were no grades or degrees of murder, but by statute in many states of the United States the offense is divided into two degrees; murder in the first degree being the most severely punished and restricted to those cases where the killing was willful, *Page 50
deliberate, premeditated, or especially cruel, or where it was done in the commission of some heinous felony, as arson, rape, etc. Murder is intentional and unlawful homicide."
"The unlawful killing of a human being with malice aforethought; the unlawful killing of another with malice; the killing of a human being directly or indirectly without excuse or justification and by any other means other than perjured or false evidence before a tribunal of justices." New Standard Dictionary of the English Language, 1932, Funk and Wagnalls.
"Murder, in law, the unlawful killing of a person with malice aforethought." The Ency. Brit. 14th Ed. 1929, Vol. 15.
"Murder is the unlawful and intentional killing of a human being by a human being." Chambers Ency.
"The unlawful killing of a human being with malice aforethought." The New International Ency. 1916.
From these definitions it is clear that the common idea of murder is not that malice is implied by law and in the interpretation of this word this court or any court is bound to interpret it as the man of the common ordinary understanding conceives it to be or as used ordinarily by the common man in everyday usage. As the majority opinion interprets it it is used in a highly technical or strictly statutory sense. The cases have held the word "murder" to be a technical word and as the Indiana cases have said a "term of art." This court should not so interpret it nor should it be so interpreted at all in a civil case. The parties here did not have the least idea that they were contracting to be bound by a criminal statutory definition.
In the beginning of incontestability clauses it was strenuously contended by the insurers that such a clause did not prevent them from relying on fraud because fraud had always been a defense to almost every conceivable *Page 51
situation, and they could not see how an incontestable clause could bar them from their right to set up fraud as a defense. In the beginning there was probably some doubt on the part of some of the courts as to whether or not fraud was excluded by this clause but today a vast majority of the jurisdictions hold that fraud is barred absolutely by the incontestable clause. Cooley (2) Volume 5, page 4501. "Life insurance companies long ago discovered that resistance to prompt and full payment of death benefit proceeds of policies was prejudicial to increase of business. Particularly was harmful resentment created when premiums had been paid for many years by an insured who confidently expected he would leave his dependents provided for. No matter how fraudulent had been the conduct of the applicant while procuring issuance of his policy, the public noted only the fact of refusal to pay.
"To overcome such fears and uncertainties on the part of persons solicited to invest in life insurance, the companies invented a so-called incontestable clause which was inserted in and made a part of the policy contracts. The insurer thereby covenanted that after a lapse of a specified period of time from date of issuance the validity of the policy never would be questioned by the company. Occasionally the status of incontestability was made to attach at the date of issuance, but usually the insurer reserved one or two years within which it might make an issue of the obligation to pay death benefits.
"Competition forced the old line life insurance companies to adopt the clause in some form two decades ago. The few companies which lingered outside the pale were drawn in by enactment of statutes in nearly all American states. It is well-nigh impossible to find a life insurance policy of recent date issued by any insurance company except some fraternal benefit organization, *Page 52
which does not contain an incontestable provision." 19 Ill. Law Review 226.
The same vigorous contention was made in the first suicide cases but today a majority of all the states follow the well recognized weight of authority that the incontestable clause also bars the defense of suicide. Here the insurance company is starting the same cycle and eventually the same result will be reached, so why should not the sane and modern viewpoint be adopted and the rule be declared to be that the incontestable clause covers murder as well as fraud and suicide.
The majority of the court in their opinion say that they think that the incontestability clause should not be applied to murder in Indiana although they concede that it is applied to suicide, and that the incontestability clause should not be allowed to be set up against the defense of murder "because of the differences in the risks assumed by insurance companies when they insure against suicide or murder." By this they inferentially say that there is a greater risk assumed by the insurer in murder cases than in suicide. This statement was evidently made without any regard to the facts, as all the figures available in any compilation of statistics show conclusively that there are many, many more suicides than murders. In a compilation based on the combined mortality experience of companies having 83.2% of the number of ordinary policies outstanding on December 31, 1935 in all U.S. legal reserve life insurance companies it was found that in the total number of deaths for ten months in 1935 that suicide was accountable for 4,084 and that homicides of all grades totaled only 501; and that there were 25 suicides to each 100,000 deaths and only three homicides of all degrees to each 100,000 deaths and that in 1936 for a period of ten months there were 3,768 suicides and only 470 in all degrees of homicide. *Page 53
From data based on the combined mortality experience of companies having 86.9% of the number of industrial policies outstanding on December 31, 1935, in all U.S. legal reserve life insurance companies for 10 months of 1935 there were 3,187 deaths all due to suicides and 1,684 due to all degrees of homicide. For 10 months in 1936 suicides accounted for 3,010 while all degrees of homicide totaled 1,483.
The statistical abstract of the United States in 1935, table 78, page 83, shows that out of 1,342,106 deaths in 1933, 19,993 were due to suicide while there were only 12,124 due to all grades of homicide.
These figures disclose that if all these 1,342,106 people had been insurable risks that the probability of an insurance company having to pay for one murdered as to the probability of its having to pay in case of those committing suicide would be about 1 to 25, or, in other words, there are 25 times as many suicides as murders. From these figures it is more than clear that the inference in the majority opinion that the risk is greater in murder than in suicide is absolutely without foundation in fact.
As a further indication that the legislature conceived incontestable clauses to be exactly what the courts had interpreted them to be, namely, that the policy should be incontestable for any purpose except those stated in the Act of 1909, supra, the legislature in 1935 (Acts of 1935, ch. 162, § 151, at page 683) added to the former act by making it possible for the insurance companies, at their option, to add to the incontestable clause provisions which granted additional insurance specifically against death by accident. If this could have been done under the 1909 act as interpreted by the courts there would have been no reason or necessity for adding this to the law in 1935.
The interpretation placed upon the incontestable clause by the United States District Court for the Northern *Page 54
District of Indiana and the Circuit Court of Appeals for this circuit is the same as that placed thereon by the Indiana courts, and this is an additional and further reason why the incontestable clause should govern here. Columbian Nat. LifeIns. Co. v. Wallerstein (1936), 13 F. Supp. 865; FederalLife Ins. Co. v. Zebec (1936), 82 F.2d 961.
The appellee contended in oral argument and there was some discussion in this court to the effect that this was the first opportunity that the appellee had had to have this ambiguous language construed. Four years before this policy was issued the legislature made it possible to have such contract construed by the judgment of a competent court under the declaratory judgment act of 1927. The insurance company here could have had, at any time after the policy was issued, these words construed by a court but they preferred rather to let this ambiguous language stand until after the death of the insured and then attempt this contest, which contest the incontestable statute says they should not have.
From all of the above it seems clear to me that the complaint in the instant case states a good cause of action and the demurrer thereto should have been overruled.
See also the following cases: Travelers Insurance Company ofHartford, Conn. v. McConkey (1888), 127 U.S. 661, 8 S. Ct. 1360; The Imperial Fire Insurance Company of London, England v.The County of Coos (1894), 151 U.S. 452, 14 S. Ct. 379;Northwestern Mutual Life Insurance Company v. Johnson (1920),254 U.S. 96, 41 S. Ct. 47; Mutual Life Ins. Co. v. HurniPacking Co. (1923), 263 U.S. 167, 44 S. Ct. 90; Aschenbrenner
v. U.S. Fidelity Guaranty Co. (1934), 292 U.S. 80, 54 S. Ct. 590, 78 L. Ed. 1138; Kascoutas et al. v. Federal Life InsuranceCompany (1922), 193 Iowa 343, 185 N.W. 125, 22 A.L.R. 294;Myers v. Liberty Life *Page 55 Ins. Co. (1927), 124 Kan. 191, 257 P. 933, 55 A.L.R. 542, and annotation following; Fore v. N.Y. Life Ins. Co. (1929),180 Ark. 536, 22 S.W.2d 401, 67 A.L.R. 1358, and annotation following; New York Life Ins. Co. v. Adams (1931),202 Ind. 493, 176 N.E. 146; Metropolitan Life Ins. Co. v. Conway
(1930), 252 N.Y. 449, 169 N.E. 642; Tulane Law Review, Vol. 6, page 634, and Virginia Law Review, Vol. 19, page 744. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428238/ | Action by appellee against appellants to recover for damages to appellee's automobile, alleged to have been caused by the negligence of appellant Raymond Epperson, the 15-year-old son of appellant William A. Epperson, in the operation of the latter's car, it being the theory of the complaint that the automobile of appellant William A. Epperson was, at the time, being operated by the boy in the business of his father and with his father's knowledge and consent, in violation of § 24 of acts of 1925 (Acts 1925 p. 570, § 10125 Burns 1926) which prohibits the operation of a motor vehicle on a public highway by a person under the age of 16 years. Trial resulted in a finding and judgment for $300, against both appellants.
On the trial, evidence was introduced by appellee showing that, at the time in question, appellant Raymond Epperson was 15 years of age, was the son of appellant William A. Epperson, and that the automobile driven by Raymond was the property of appellant William A. Epperson. This evidence having been submitted, appellee, as a witness in her own behalf, made a detailed *Page 10
statement of the manner in which her automobile, operated by herself, came into collision, on a certain street of the city of Evansville, with another automobile which was being operated on the same street by appellant Raymond Epperson; she also described the resulting damages to her car, which she stated amounted to $300. Further testimony of appellee was that, when appellant William A. Epperson was called by telephone and questioned with reference to the accident, and as to payment of the damages which had resulted to appellee's automobile, he responded to the call, admitted that he was William A. Epperson, but denied that his son was at fault. At the close of the telephone conversation, after he had heard what appellee had to say, and when he was speaking in reference to the damage to the car, said that he would "call later," and that he would "take care of it."
It is urged by appellant William A. Epperson that the court erred in admitting in evidence the testimony of appellee as to the telephone conversation, the contention being that the 1. proper foundation for his identification had not been laid. The contention cannot prevail. It appears from the evidence that appellee, desiring to communicate with appellant William A. Epperson in reference to the collision which resulted in the damage to her car, examined the telephone directory of the city of Evansville, and finding a number listed therein as that of appellant, she called the central station and asked to be connected with the number so listed; and, when so connected, the man who responded stated that he was William A. Epperson. These facts and circumstances were sufficient to make a prima facie
case of identity. In the case of Theisen v. Detroit Taxicab,etc., Co. (1918), 200 Mich. 136, 166 N.W. 901, L.R.A. 1918D 715, the question is ably discussed, and the reasons for the rule stated. See, also, Godair v. *Page 11 Ham. Nat. Bank (1907), 225 Ill. 572, 80 N.E. 407, 116 Am. St. 172, 8 Ann. Cas. 447.
It is further contended by William A. Epperson that the evidence does not show that the car driven by his son was, at the time, being used in his business or with his knowledge or 2. consent, so as to bring the case within the rule laid down in the case of Repczynski v. Mikulak (1927), 157 N.E. (Ind. App.) 464. The only evidence, if any, tending to prove that the boy was operating the car with his father's knowledge and consent, or that it was being used in the father's business, is the testimony of appellee that appellant William A. Epperson told her in the telephone conversation, when she was speaking to him of the damage to her car, that he would "take care of it." Appellants submitted no evidence to disprove that in the driving of the car Raymond was the agent of his father, nor that he was driving it with the knowledge and consent of his father. In fact, neither of the appellants testified, nor did they on the trial offer to introduce any evidence. It is apparent from the record that appellants preferred not to submit to the court the facts within their knowledge. We hold that the promise of appellant William A. Epperson that he would take care of the damages to appellee's car was in the nature of an admission of his liability, from which the trial court might infer that the son was, at the time of the collision, operating the car, either as agent of his father or with his knowledge and consent. Dennison
v. Swerdlove (1925), 250 Mass. 507, 146 N.E. 27; Wiseman v.Rome (1925), 250 Mass. 505, 146 N.E. 28; Jasman v. Meaney
(1925), 250 Mass. 576, 146 N.E. 257.
In an extended discussion of the evidence, it is contended by appellant Raymond Epperson that, as to him, the evidence is insufficient to sustain the court's decision. No good purpose would be subserved by a discussion of *Page 12
that evidence in this opinion. It is sufficient to say that we have read the evidence with care and find that there is competent evidence to sustain the decision.
Affirmed.
Lockyear, J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428242/ | Appellant was convicted and adjudged guilty of keeping a house of ill fame. § 2562 Burns 1926. The overruling of her motion for a new trial, specifying that the finding is contrary to law and not supported by sufficient evidence, is the error here assigned.
In the trial of all criminal prosecutions, the trial court is charged with the responsibility, in case of a motion for a new trial for insufficient evidence or because contrary to 1, 2. law, of determining whether or not the evidence to support a conviction meets the requirements of the law. Such responsibility, in the interest of justice, calls for a review of the evidence as well as the law justifying a conviction. On appeal, this court presumes correct action of the trial court, or, in other words, that a fair trial was had and a correct conclusion reached, but when, as here, there is a showing of no evidence to warrant a conviction, and for that reason the finding is contrary to law, a question of law is presented for review on appeal. Under such circumstances, it becomes the duty of this court to examine the evidence, not weigh it, giving credit to that only most favorable to the state.
On behalf of the state, three witnesses testified, two lived at Hammond and one at Indianapolis. One of the Hammond witnesses and the one from Indianapolis were connected with the United States Public Health Service. The business of the other Hammond witness is undisclosed.
First, as to the house generally. It is known as the "Chicago Hotel." Soft drinks were sold in the front room downstairs and back of it was a dining room and kitchen. The second floor had seven bed rooms, two *Page 55
lounging rooms and bath room. The health service witness from Hammond made five trips to this place between April 7, and June 16, and gave a detailed account of his experiences there on each trip. On each of these trips, he was upstairs and talked with the girls, two in number, except at one time three were there. He described their manner of dress and their attention to and talk with him and other men. Upon one occasion, he looked into each of the bed rooms and accompanied one of the girls to her room, but said nothing occurred while there except she removed his hat and told him she was examined each week. In answer to the question calling for the reputation of the house, said that it was reputed to be a house of prostitution, but it clearly appears from the evidence that this answer was based upon his own knowledge. The other Hammond witness and the witness from Indianapolis, one of them having been there three times and the other once, detailed what they heard and saw of the girls, and if we were to exclude, which we do, what the witness said as to the reputation of the house, the evidence remaining would warrant the court in finding that it was a house of ill fame, and, second, that it was a house where the sexes resorted for the purpose of prostitution and lewdness. However, there must be proof of the further fact that appellant kept the house. The Hammond health officer, in substance, testified that upon the completion of his interview with the girl in her room, she, leaving first and going to appellant, said: "That fellow that is in my room just coming out is a government man"; that he then approached appellant and told her he was looking over conditions in Gary, and she replied that she was not the houselady but was acting for her while she was in Detroit, and, in answer to a question by the witness as to how often the girls were examined, said, "once a week"; that she walked downstairs with him and called the other girl down so that *Page 56
the witness might get her name. Appellant denied telling the health officer that she was the acting landlady, but, on the contrary, testified that she told him she was merely the cook employed at $80 a month, board and room; that she prepared the meals for the boarders and lunches for the patrons of the soft-drink parlor, and had nothing to do with the upstairs. It was in charge of the bartender.
Such was the evidence bearing upon the question as to who kept the house. It must be conceded that the evidence to support the material fact under consideration was weak. It rested 3, 4. upon giving the testimony of the health officer full credit and excluding everything else. This the trial court must have done, and whether right or wrong, it would require us to weigh the evidence in order to change the result, and this we cannot do.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428243/ | Appellee Solon B. Selleck, administrator with the will annexed of the estate of John H. Gercke, deceased, brought this action against his co-appellees, Jennie C. Gercke, the widow, and Walter Davis, stepson, of deceased, and against the appellant, Mabel L. Waters, daughter of deceased, praying for a judgment construing Item 1 of decedent's will. This item reads as follows:
"I bequeath to my daughter, Mabel L. Waters, Salt Lake City, Utah, or to her heirs, if she shall die before me, five thousand dollars, ($5,000.00) in cash out of the Burbank Estate, Pittsburgh, Pennsylvania."
Item 2 of the will bequeathed $100 to Walter Davis and provided that: "All of the residue of my estate both real and personal of which I may die the owner, I will, bequeath and devise to my beloved wife, Jennie C. Gercke, absolutely and without any conditions whatsoever." *Page 595
The complaint alleges that "Jennie C. Gercke contends that . . . item one . . . gives to . . . Mabel L. Waters a specific legacy wholly payable from the assets of the Burbank Estate and, in the event said Burbank Estate shall fail, that such legacy would fail or fail in the same proportion as said Burbank Estate fails," and that "Mabel L. Waters contends that . . . item one . . . gives to her a legacy which, even though there be a total failure of assets from said Burbank estate, should be paid wholly from the estate of the decedent." The administrator then alleges that all of the assets of the Burbank estate that are to come into his hands will not exceed $2,500.
Mrs. Gercke and Mr. Davis filed an answer alleging that the language of Item 1, taken in connection with the entire will and the surrounding circumstances and statements made by decedent prior to, at, and subsequent to the making of the will, shows that the bequest to Mrs. Waters was to be paid in cash out of the Burbank estate, but not otherwise, and that the testator meant and intended such legacy to be a specific legacy. This answer also alleged that decedent believed his interest in the Burbank estate would yield his estate $16,000 or more. Appellant's answer alleged that, under the terms of the last will and testament of Andrew Jackson Burbank, probated in Allegheny County, Pennsylvania, John C. Gercke, at the time of his death, was the owner of an undivided one-eighth distributive interest in that estate, and alleged that "the interest of the testator (Gercke) . . . shown by item one . . . in connection with the language and wording of the entire will . . . (is) . . . that if said Burbank estate did not pay to . . . Gercke's estate sufficient funds to pay said legacy, that all or any balance of said legacy . . . should be paid from and become a charge upon the general *Page 596
assets of the estate of John H. Gercke," etc. Replies to the several answers closed the issues.
At the request of both parties, the court made a special finding of facts and stated its conclusions of law thereon. Finding No. 1 found the date of death of John H. Gercke, set out a copy of his will, the probate of the same and the appointment of Selleck as administrator. No. 2 found that the parties to this action (other than Selleck) are the only beneficiaries. No. 3 reads in part as follows:
"That Solon B. Selleck was called by the decedent to write his said will. That said Selleck was ordered and directed by said Gercke to prepare his said will so as to provide that his said daughter Mabel L. Waters should receive the sum of Five Thousand Dollars, ($5,000.00) in cash to be paid out of money derived from the Burbank estate, Pittsburgh, Pennsylvania, . . ."
and finds that, pursuant to said order and direction, Item 1 of the will was prepared. No. 4 found that the will of Andrew Jackson Burbank giving John H. Gercke one-eighth of his estate has been probated, that the Gercke estate had received from the Burbank estate approximately $900, and that both estates are still pending. No. 5 found that the widow, Jennie C. Gercke, is the residuary devisee and legatee under the will and had renounced her right to take under the law and had elected to take under the will. No. 6 referred to the bequest of $100 to Walter Davis. No. 7 reads as follows:
"That the defendant, Mabel L. Waters, is a daughter of John H. Gercke, deceased, by a former marriage and by item one of the will of said decedent she receives a bequest of five thousand dollars, ($5,000.00) in cash to be paid out of receipts from the estate of Andrew J. Burbank, deceased."
No. 8 finds that the administrator of Gercke's estate has *Page 597
filed a current report showing charges of $3,593.47, credits of $1,193.68, leaving him chargeable with a balance of $2,400.79.
The conclusions of law (except No. 5, which taxed the costs against Mabel L. Waters) were as follows:
"1. That under the will of John H. Gercke, deceased, the defendant, Mabel L. Waters, receives a bequest of five thousand dollars, ($5,000.00) payable in cash from the avails of the estate of Andrew J. Burbank, deceased, and not otherwise.
"2. That the said bequest to the defendant, Mabel L. Waters, is a specific legacy, payable out of the avails of estate of Andrew J. Burbank, deceased, and not otherwise. It is not a demonstrative legacy and cannot participate in the assets of the estate of John H. Gercke other than assets derived from the estate of Andrew J. Burbank, deceased.
"3. That if the estate of Andrew J. Burbank, deceased, shall fail to yield Five Thousand Dollars, ($5,000.00) the legacy of the defendant, Mabel L. Waters, will fail to the extent of the deficit.
"4. That the defendant, Jennie C. Gercke, is the residuary legatee and entitled to receive all of the assets of said estate after the payment of necessary expenses and all special bequests to the defendant Walter L. Davis, except the funds derived from the estate of Andrew J. Burbank, deceased."
The only errors assigned are that the court erred in each of its several conclusions of law.
A SPECIFIC legacy is a bequest of some definite, specific part of the testator's estate which is capable of being designated and identified, and distinguished from other 1-3. like things. It may consist of money if it is designated with sufficient certainty. A GENERAL legacy is one payable out of the general assets of a testator's estate, such as a gift of money or other thing in quantity and not in any way separated or distinguished from other things of like kind. ADEMONSTRATIVE legacy partakes of the nature of both *Page 598
a general and specific legacy, it is a gift of a sum of money payable out of a specifically described fund primarily and out of the general estate if the fund designated proves insufficient. Rood, Wills §§ 705, 707; 40 Cyc 1869, 1870; 28 R.C.L. 289-292,Roquet, Admr., v. Eldridge (1889), 118 Ind. 147, 20 N.E. 733.
If the testator here had said in his will: "I bequeath to my daughter . . . out of the money coming to me from the Burbank Estate and not otherwise the sum of $5,000 in cash," there 4. would be no question but that such bequest is a specific legacy. If the testator had said: "I bequeath to my daughter . . . $5,000 in cash and direct my executor to pay it out of the money coming to me from the Burbank Estate, if possible, otherwise out of any funds in his hands," there would be no question but that such bequest is a demonstrative legacy. Item 1 of the testator's will does not express as definitely and completely as it should the testator's intent, but the trial court, for the purpose of ascertaining that intent, may look to the other parts of the will and examine the circumstances which surround the making of the will. 40 Cyc 1872. The court found as a fact that the testator directed the scrivener to prepare his will so as to provide that his daughter "should receive the sum of $5,000 in cash to be paid out of money derived from the Burbank Estate." No error has been assigned on these findings, the evidence is not in the record, and we must accept the findings as true and correct.
The appellant, in contending that the bequest made in Item 1 is a demonstrative legacy relies upon the application of two well-settled rules of testamentary construction, viz.: 5-7. (1) That the courts are inclined against holding legacies to be specific; and (2) that if a legacy of a certain amount is given, *Page 599
payable out of a specific fund, the court will presume that its designation of the fund is demonstrative only. 40 Cyc 1874, n. 9; Rood, Wills § 707; 28 R.C.L. 293. But whether a legacy is general, specific or demonstrative is not governed by any arbitrary rules, Rood, Wills § 707, it depends entirely upon the intention of the testator (40 Cyc 1871, citing Walls v.Stewart [1851], 16 Pa. St. 275, and other cases), and the rules of construction contended for by appellant do not control as against the intent of the testator when that intent is ascertained. Thus, where it appears to be more in accord with the intention of the testator, a legacy naming a particular fund out of which it is to be paid will be held to be specific and not demonstrative, Stilphen's Appeal (1905), 100 Me. 146, 60 A. 888, 4 Ann. Cas. 158, 10 Prob. Rep. Ann. 482; or may be treated as a general legacy notwithstanding such designation, 40 Cyc 1875, citing Byrne v. Hume (1891), 86 Mich. 546, 49 N.W. 576;Glass v. Dunn (1867), 17 Ohio St. 413. In Stilphen's Appeal,supra, it was said:
"The distinction between a specific and a demonstrative legacy involves not merely a technical question depending for its solution solely upon the precise language of the bequest, but a substantial inquiry respecting the intention of the testator as shown by the terms of the particular legacy, examined in connection with all of the other provisions of the will."
If a legacy is given payable only out of a specified fund, it is a specific, not a demonstrative legacy, Rood, Wills § 708, and a bequest designated by its source or origin, as the 8. proceeds of a certain sale, or the sum received or obtained from a certain estate, is ordinarily regarded as specific. We have collected in *Page 600
the footnote1 quotations from the wills involved in numerous cases, illustrative of this principle.
Under the facts as found by the court, the legacy contained in Item 1 of testator's will was a specific legacy and the 9. court's conclusions of law were correctly drawn.
Judgment affirmed.
1 Bequests in the following words have been held to be specific and not demonstrative legacies:
"I give and bequeath out of the portion or share of my father's estate that may come to me, one thousand dollars to my brother, Joseph Gelbach." Gelbach v. Shively (1887), 67 Md. 498, 10 A. 247.
"I wish my executors . . . to proceed to obtain the sum of $5,000 from my share of Dr. Dempster's estate, and place it in the care of the Methodist Episcopal Conference," etc. Estate ofGoodfellow (1913), 166 Cal. 409, 137 P. 12.
"I have and own in my own right the sum of two thousand dollars, received from the estate of my father, which I will and bequeath to my daughters Amanda and Adeline," etc. Smith v.McKitterick (1879), 51 Iowa 548, 2 N.W. 390.
"I hereby will and bequeath to the Presbyterian church at Cooksville, Illinois, the sum of five hundred dollars, the same to be paid out of any moneys or notes which I may have on hand at the time of my death," etc. Baber v. Baker (1925), 319 Ill. 320, 150 N.E. 284, 42 A.L.R. 1514.
"I give and bequeath to Mary D. White . . . six hundred dollars of said $1,100, . . . (now in the hands of my brothers Charles A. and James D. White)." In re Stilphen (1905), 100 Me. 146, 60 A. 888, 4 Ann. Cas. 158.
"I direct my daughter Isabella, out of the moneys belonging to me on deposit in her name, to pay my said son the sum of fifteen hundred dollars." Crawford v. McCarthy (1899), 159 N.Y. 514, 54 N.E. 277.
"I will and desire that such portion of the purchase money of my old home plantation which I sold to my son Clarkson as may still be owing me at my death, and any of this money then on hand, shall be equally divided between my said children," etc.Starbuck v. Starbuck (1885), 93 N.C. 183.
"I direct my executor to sell . . . my two properties, numbered 1721 and 1723 Reed street . . . and to hold the proceeds of sale in trust until my granddaughters, Emily . . . and Florence . . . shall respectively reach the age of twenty-one years, when he shall pay to each of them the sum of $2,000," etc. Devine'sEstate (1901), 10 Pa. Dist. Rep. 273, 25 Pa. C. 260.
"To J. Elbert Davis `the sum of $243.92, a portion of the debt due me from the said James Davis secured by his notes.'" Davis
v. Crandall (1886), 101 N.Y. 311, 4 N.E. 721. *Page 601 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3218078/ | [Cite as Lehigh Gas-Ohio, L.L.C. v. Cincy Oil Queen City, L.L.C., 2016-Ohio-4611.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
LEHIGH GAS-OHIO, LLC, : APPEAL NO. C-150572
TRIAL NO. A-1104166
Plaintiff-Appellant, :
vs. :
CINCY OIL QUEEN CITY, LLC, :
and :
CINCY OIL HOPPLE ST., LLC, :
Defendants-Appellees. :
___________________________ :
TRIAL NO. A-1106892
LEHIGH GAS-OHIO, LLC, :
Plaintiff-Appellant, : O P I N I O N.
vs. :
SOLOMON BELAY :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: June 29, 2016
Dinsmore & Shohl, LLP, and H. Toby Schisler, for Plaintiff-Appellant,
Benjamin, Yocum & Heather, LLC, Bradford C. Weber, Gary F. Franke Co., L.P.A.,
and Gary F. Franke, for Defendants-Appellees.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is our second go-round with this dispute. It involves two
properties, which each contain a gas station, an am/pm convenience store and a
Subway restaurant.
{¶2} The owner of the properties, Lehigh Gas, sold the opportunity to
operate the sites to Solomon Belay. The deal went bad quickly—among other things,
problems arose when Subway refused to approve Belay as a franchisee. Litigation
ensued.
{¶3} The trial court initially found that both parties had breached their
contracts and ordered Lehigh to return a portion of $300,000 in key money that
Belay had put up to run the sites. Lehigh appealed, and we reversed. We determined
that the court erred in finding that Lehigh had breached by interfering with Belay’s
attempts to get approved as a Subway and am/pm franchisee. We sent the matter
back to the trial court because the court had not considered other alternative
contractual and quasi-contractual theories asserted by Belay.
{¶4} On remand, the trial court again ordered part of the key money
returned, relying upon both contract theory and the principle of unjust enrichment.
We find neither theory applicable to the facts before us, so we reverse the court as to
the key money. There are also various issues relating to refunds sought by Belay for
security upgrades, inventory and fuel deposits, which we sort out in the opinion that
follows.
I. Background
{¶5} The initial framework for the deal was set forth in a nonbinding letter of
intent signed by Lehigh Gas-Ohio (“Lehigh”) and Belay in April 2010. Mr. Belay would
2
OHIO FIRST DISTRICT COURT OF APPEALS
pay “key money” for the “business opportunity” to lease multiple properties and operate
the gas stations, am/pm convenience stores and Subway restaurants at the locations.
Mr. Belay eventually decided to purchase the opportunity to operate two of the four
properties listed in the letter of intent—one on Queen City Avenue and one on Hopple
Street. He paid $300,000 in key money, which consisted of $200,000 in cash and
$100,000 financed through two promissory notes with Lehigh.
{¶6} Mr. Belay set up two limited-liability companies, Cincy Oil Queen City
and Cincy Oil Hopple St. (collectively, “Cincy Oil”), to operate the businesses. The
parties formalized their arrangement with a set of three agreements for each property: a
lease agreement, a management-and-security agreement and a management agreement.
The lease provided for an initial five-year term that would be renewable for an additional
five years upon Cincy Oil’s election. The management-and-security agreement covered
the retail-gas sales at the properties. Cincy Oil was to pay a $40,000 fuel deposit
($20,000 per property) and receive commissions for selling Lehigh’s gasoline. The
management agreement allowed Cincy Oil to sell alcoholic beverages at the convenience
stores under Lehigh’s liquor permit until the permit was transferred to Cincy Oil. Cincy
Oil agreed to provide a monthly accounting of alcohol sales and to send Lehigh an
amount equal to the sales taxes tied to alcohol sales. Lehigh would in turn send the
taxes to the state. Importantly, none of the agreements referred to the key money.
{¶7} Cincy Oil took over operations in August 2010 upon execution of the
agreements. Things went quickly south. Because Belay had not yet been approved as a
franchisee of either am/pm or Subway, he operated under Lehigh’s franchise
agreements. He had received verbal approval of his am/pm franchise application, but
his attempt to get approval as a Subway franchisee was not successful. To be approved,
Mr. Belay needed to pass a Wonderlic intelligence test, and neither he nor his wife could
3
OHIO FIRST DISTRICT COURT OF APPEALS
manage to do so. Further problems arose involving Cincy Oil’s sale of alcoholic
beverages at the locations. In violation of the management agreement, Cincy Oil did not
provide Lehigh with a monthly accounting of the alcohol sales and did not forward the
sales tax payments to Lehigh. Because of this failure, Lehigh sent Cincy Oil a letter in
November 2010 stating that it was in default of the management agreement. Lehigh
also notified am/pm of Cincy Oil’s default, and am/pm rescinded its franchise approval.
{¶8} Despite the default notice, Cincy Oil continued to refuse to send the
alcohol sales taxes to Lehigh. Lehigh filed an eviction action, asserting that Cincy Oil’s
failure to forward the taxes to Lehigh was a breach of the lease. Cincy Oil
counterclaimed, alleging breach of contract, tortious interference, fraud and unjust
enrichment. After a hearing, the court granted the eviction but held off on determining
the remaining claims and counterclaims. Cincy Oil vacated the properties in July 2011,
and Mr. Belay stopped paying on one of the promissory notes that he had signed to
finance part of the key money. Lehigh filed a breach-of-contract complaint against
Belay. Mr. Belay filed counterclaims mirroring the counterclaims filed by Cincy Oil in
the eviction action. The eviction case and the breach-of-contract case were consolidated.
{¶9} The trial court held a hearing on the claims that remained following the
eviction. After a hearing and a review of briefs, the court issued a decision finding that
both parties had materially breached the agreements—Lehigh by interfering with Belay’s
attempts to get approval as a franchisee of am/pm and Subway, and Belay by failing to
forward the alcohol sales taxes. The court determined that Lehigh was entitled to
recover $125,019 in alcohol sales taxes. Cincy Oil was to be refunded $99,210.91 for
what it paid for inventory, $40,000 for fuel deposits, and $30,000 for safes it had
installed to upgrade security at the properties. Additionally, the court concluded that
Lehigh should return $67,631.55 for gas commissions that it had withheld from Cincy
4
OHIO FIRST DISTRICT COURT OF APPEALS
Oil. As for the key money that Belay had paid up front for the business opportunity, the
court decided that $250,000 should be divided evenly between the parties, so that
Lehigh would return $125,000 to Cincy Oil.1 The net result of the court’s determination
was that Lehigh owed Cincy Oil $236,823.44. The court also specifically found that
there had been no fraud and dismissed Cincy Oil’s remaining counterclaims.
{¶10} Lehigh appealed. Cincy Oil did not. In Lehigh v. Cincy Oil Queen City,
LLC, 1st Dist. Hamilton No. C-130127, 2014-Ohio-2799 (“Lehigh I”), we decided that the
trial court erred when it determined that Lehigh had breached the parties’ contracts by
interfering with the franchise-approval process. We noted that “after finding that
Lehigh had materially breached the agreements, [the court] declined to consider the
defendants’ claim for restitution under alternative theories.” Id. at ¶ 52. Thus, we
remanded for the court “to determine whether the defendants would be entitled to a
return of any of the ‘key money’ and deposits, or compensation for the inventory or
security upgrades, under the terms of the agreements or under a quasi-contract
theory.” Id.
{¶11} On remand, the trial court concluded that Cincy Oil should recover
under two alternative theories—the doctrine of impossibility of performance and unjust
enrichment. The court found that “[t]he contract is silent as to what happens to the ‘key
money’ if the assets/‘opportunity’ cannot be transferred.” Despite the contract’s silence
on the issue, the court determined that “when it became impossible for [Cincy Oil] to
become the franchisee and license holder, a reasonable interpretation of the agreement
between the parties is that [Cincy Oil] receive a pro rata share of the ‘key money’ back.”
The court continued,
1 The trial court apparently reduced the amount Belay had paid in key money ($300,000) by
$50,000 to account for the promissory note that he had not yet paid.
5
OHIO FIRST DISTRICT COURT OF APPEALS
Even if [Cincy Oil] could not recover under a contract theory, [it] would
be entitled to recover under an unjust enrichment claim. * * * In this case,
[Cincy Oil] conferred a benefit on [Lehigh] with the ‘key money’ and
payments for security to the premises and unused inventory. Plaintiff
clearly knew of the benefit. And for the reasons discussed above, it would
be unjust for [Lehigh] to retain the funds.
{¶12} As a result, the court determined that Lehigh should pay the outstanding
gas commissions to Cincy Oil and return four-fifths of the money Cincy Oil had paid for
the key money2, fuel deposits, inventory and safes. The court arrived at the four-fifths
share by reasoning that Cincy Oil only had operated the convenience stores for one year
out of the initial five-year lease term. The court also concluded that the question of the
promissory note debt was resolved by its damages award. Lehigh now appeals, arguing
that Cincy Oil was not entitled to damages under either a contract or unjust enrichment
theory.
II. Cincy Oil Isn’t Entitled to Return of the Key Money Under a
Contract Theory
{¶13} In their counterclaims, Mr. Belay and Cincy Oil alleged that Lehigh had
breached the parties’ contracts in four ways: failing to transfer liquor permits, interfering
with the franchise approvals, failing to work with Cincy Oil with respect to business
operations and retaining ATM and gas-revenue commissions, fuel deposits and
inventory. In Lehigh I, we found that the evidence did not support a finding that Lehigh
had interfered with the franchise-approval process. On remand, the trial court did not
find that Lehigh had committed any of the other breaches alleged by Cincy Oil in its
2On remand, the trial court stated that the amount of key money paid was $350,000, but the
parties seem to agree that the amount was actually $300,000.
6
OHIO FIRST DISTRICT COURT OF APPEALS
counterclaim. Nonetheless, it found that Belay had a contractual right to a refund of a
portion of the key money.
{¶14} As noted in the trial court’s decision, none of the agreements signed by
the parties mentions the key money that was provided for in the nonbinding letter of
intent. While Lehigh and Cincy Oil agree that the money was for a business opportunity,
they disagree about what the business opportunity encompassed. Cincy Oil maintains it
paid for the franchises and that, without approval to run the franchises, the contract was
void. Lehigh counters that Cincy Oil got what it paid for—the chance to operate the
franchises pending approval. Cincy Oil’s failure to obtain approval, Lehigh argues, did
not invalidate the contract. We think Lehigh has the better argument. There is no
evidence in the record that the parties reached any agreement that the key money would
be returned in the event that the franchises did not approve Belay as a franchisee. The
written agreements between the parties contain no such provision, and there is no
evidence that the parties reached any oral understanding that the key money would be
returned should things not work out.3 Absent an agreement, Cincy Oil cannot
demonstrate a breach of contract on Lehigh’s part with respect to the key money.
{¶15} Despite the lack of an agreement, the trial court relied upon the contract
doctrine of impossibility of performance to order a refund of the key money. In simple
terms, the doctrine excuses performance under a contract because it has been rendered
impossible due to the occurrence of an unforeseeable event. See Mth Real Estate, LLC v.
Hotel Innovations, Inc., 2d Dist. Montgomery No. 21729, 2007-Ohio-5183. See also
Skilton v. Perry Local School Dist. Bd. of Edn., 11th Dist. Lake No. 2001-L-140, 2002-
Ohio-6702. The doctrine is an affirmative defense to a breach-of-contract claim. See
3Even if there was evidence of an oral agreement between the parties, we are not convinced the
agreement would satisfy the statute of frauds. See R.C. 1335.05.
7
OHIO FIRST DISTRICT COURT OF APPEALS
J.I.L. One LLC v. Kemper, 1st Dist. Hamilton No. C-130555, 2014-Ohio-4932, ¶ 19-20.
It cannot be used, as done here, as a means of recovering damages under a contract.
{¶16} Further, the doctrine may only be used to excuse performance under a
contract when the event that makes performance of the contract impossible is
unforeseeable. Skilton at ¶ 28. In this case, the lack of franchise approval was not
unforeseeable. Indeed, Mr. Belay acknowledged that when he signed the agreements, he
knew he still needed to get Subway’s approval, and that he had been told by Subway that
it had “every right to approve or disapprove—for any reason—[his] potential to become a
Subway franchisee.”
{¶17} In essence, the trial court used the doctrine to fill in what it found lacking
in the agreements—provision for the refund of money if the deal didn’t work out. But
“where the terms in an existing contract are clear and unambiguous, [a court] cannot in
effect create a new contract by finding an intent not expressed in the clear language
employed by the parties.” Alexander v. Buckeye Pipeline Co., 53 Ohio St.2d 241, 246,
374 N.E.2d 146 (1978). The parties entered into six separate contracts governing their
relationship—none of which expressed any intent for the key money to be returned if the
deal went bad. The trial court erred when it used the doctrine of impossibility to create
such a term.
III. Cincy Oil Cannot Show Lehigh was Unjustly Enriched
{¶18} In the alternative, the trial court concluded that Cincy Oil was entitled to
damages based on an unjust-enrichment theory. As an initial matter, Lehigh argues that
the trial court erred in even considering unjust enrichment because Cincy Oil did not
appeal or cross-appeal the trial court’s initial decision which dismissed all of Cincy Oil’s
counterclaims except its breach-of-contract claim. In Lehigh’s view, Cincy Oil waived
any argument about unjust enrichment, and the trial court could not consider whether
8
OHIO FIRST DISTRICT COURT OF APPEALS
unjust enrichment applied. But Cincy Oil, as the prevailing party, was not required to
cross-appeal. See App.R. 3(C)(2). And the trial court was required to follow our remand
order. See Nolan v. Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410 (1984), syllabus (“Absent
extraordinary circumstances * * * an inferior court has no discretion to disregard the
mandate of a superior court in a prior appeal in the same case.”). Thus we conclude that
the applicability of unjust enrichment was properly before the trial court on remand.
{¶19} The gist of Cincy Oil’s equitable claim was that Lehigh was unjustly
enriched by Cincy Oil’s payment of key money. To make a case of unjust enrichment,
Cincy Oil needed to show that (1) it conferred a benefit on Lehigh, (2) Lehigh was aware
of the benefit and (3) it would be unjust for Lehigh to retain the benefit. Here, Cincy Oil
clearly satisfied the first two elements: the $300,000 that it gave to Lehigh conferred a
benefit of which Lehigh was aware. At issue is the third element—whether Lehigh’s
retention of the key money in light of the failed business deal was “unjust.”
{¶20} “It is not sufficient for the plaintiff to show that it has conferred a benefit
upon the defendants. It must go further and show that under the circumstances it has
the superior equity so that, as against it, it would be unconscionable for the defendant to
retain the benefit.” Cincinnati v. Fox, 71 Ohio App. 233, 239, 49 N.E.2d 69 (1st
Dist.1943). The difficulty in defining what is sufficiently “unjust” to warrant restitution
has been addressed in the Restatement:
In reality, the law of restitution is very far from imposing liability for
every instance of what might plausibly be called unjust enrichment. The
law’s potential for intervention in transactions that might be challenged
as inequitable is narrower, more predictable, and more objectively
determined than the unconstrained implications of the words “unjust
enrichment.” Equity and good conscience might see an unjust enrichment
9
OHIO FIRST DISTRICT COURT OF APPEALS
in the performance of a valid but unequal bargain, or in the legally
protected refusal to perform an equal one (as where the statute of
limitations bars enforcement of a valid debt).
***
The concern of restitution is not, in fact, with unjust enrichment in any
such broad sense, but with a narrower set of circumstances giving rise to
what might more appropriately be called unjustified enrichment.
Compared to the open-ended implications of the term “unjust
enrichment,” instances of unjustified enrichment are both predictable
and objectively determined, because the justification in question is not
moral but legal. Unjustified enrichment is enrichment that lacks an
adequate legal basis; it results from a transaction that the law treats as
ineffective to work a conclusive alteration in ownership rights.
Restatement of the Law 3d, Restitution and Unjust Enrichment Section 1 (2011).
{¶21} Cincy Oil cannot show that it had superior equity such that Lehigh’s
retention of the key money was “unjustified.” It was Cincy Oil’s breach that brought
about the termination of the agreements. And, as we determined in Lehigh I, there was
no evidence that Lehigh bore legal responsibility for Belay’s failure to be approved as a
franchisee. Putting the best light on Belay’s position, the most that can be said is that he
entered into a “valid but unequal bargain”—a circumstance the Restatement tells us is
not cause for restitution.
{¶22} We conclude that the evidence does not demonstrate that Lehigh was
unjustified in retaining the key money. The trial court’s determination that Cincy Oil
should recover a portion of the key money under either the doctrine of impossibility of
performance or unjust enrichment was error.
10
OHIO FIRST DISTRICT COURT OF APPEALS
IV. The Contracts Resolve the Question of Fuel Deposits, Inventory
and Security Improvements
{¶23} Along with the key money, the trial court also determined that Lehigh
should return four-fifths of the amount that Cincy Oil had paid for fuel deposits,
inventory and the safes it had installed. The court apparently applied the same logic to
these items as it applied to the key money issue: since Cincy Oil had only operated the
sites for one-fifth of the lease term, it should get four-fifths of its money back. Although
not explicit in its reasoning, the court appears to again rely both on the contract doctrine
of impossibility and the alternative concept of unjust enrichment.
{¶24} In doing so, the court overlooked the fact that there were explicit
contractual terms covering the fuel deposits, inventory and safes. It is axiomatic that a
court cannot create new terms that contradict the terms of the parties’ contractual
agreements. Similarly, “[i]t is clearly the law in Ohio that an equitable action in
quasi-contract for unjust enrichment will not lie when the subject matter of that
claim is covered by an express contract[.]” Ryan v. Rival Mfg. Co., 1st Dist. Hamilton
No. C-810032, 1981 Ohio App. LEXIS 14729, *3 (Dec. 16, 1981). Thus, rather than
invent new contractual terms or rely upon an unjust-enrichment theory, the court
should have looked to the terms of the contracts. Our review of these contracts
convinces us that only money paid for fuel deposits should be returned to Cincy Oil.
{¶25} Under Section 7 of the Management and Security Agreements, Cincy Oil
agreed to pay a $20,000 fuel deposit for each property. According to the agreements,
“[t]he deposit shall be returned to [Cincy Oil] ninety days following the termination of
this Agreement, subject to the deduction for any sums due [Lehigh] from [Cincy Oil] but
unpaid at the time of termination.” Lehigh made no claim for any sums to be withheld
from the deposit. Consistent with the contract, Lehigh should have returned the
$40,000 deposit following the termination of the agreement.
11
OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} The parties’ agreements are also determinative of the question of the
inventory and the safes. Article 8 of the Lease Agreements for both properties provides
that
[u]pon expiration or termination of this Lease, Tenant shall have the
right to remove from the Premises * * * any * * * moveable personal
property of Tenant, provided that Tenant repair any damage to the
Premises or to Landlord’s equipment cased by the removal of the
same. If within ten (10) days after expiration or termination of this
Lease, Tenant shall have failed to remove any of Tenant’s * * *
moveable personal property from Premises, Landlord shall
automatically become owner of such * * * moveable personal
property, and shall have the right to keep, sell in place, or remove the
same in any manner.
{¶27} In the face of such clear contract language, the only question is whether
the safes and the inventory were “personal property” subject to the provisions in Article
8. They were: Black’s Law Dictionary defines personal property as “any movable or
intangible thing that is subject to ownership and not classified as real property.”
Black’s Law Dictionary 1254 (8th Ed.2004). Under the contract, following
termination of the lease agreement, Cincy Oil had ten days to remove its personal
property, which by definition includes any inventory it had purchased and its safes.
When it didn’t remove the property, it became Lehigh’s, and Lehigh was not required
to compensate Cincy Oil for the abandoned personal property.
{¶28} Thus, we conclude that the court erred when it ordered four-fifths of the
money paid for fuel deposits, inventory and safes paid to Cincy Oil. Instead, Lehigh
12
OHIO FIRST DISTRICT COURT OF APPEALS
must return the full $40,000 paid for fuel deposits. It need not, however, repay Cincy
Oil for the inventory and the safes it left behind.
V. Conclusion
{¶29} We overrule Lehigh’s first assignment of error to the extent it challenged
the award of the fuel deposits under the contract. In all other respects, we sustain it and
the second assignment of error. That leaves us with the following:
Lehigh is liable to Cincy Oil for:
$67,631.55 for gas commissions
$40,000 for fuel deposits.
Cincy Oil is liable to Lehigh for:
$125,019 for withheld alcohol sales taxes
$31,799.85 plus interest for its default on the promissory note.4
We therefore affirm the trial court’s judgment in part, reverse it in part, and
remand the case to the trial court for entry of judgment in accordance with this opinion.
Judgment accordingly.
C UNNINGHAM , P.J., and M OCK , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
4 The part of the trial court’s initial order that Lehigh was liable for the gas commissions and
Cincy Oil for the alcohol sales taxes was not appealed and remains valid.
13 | 01-03-2023 | 06-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031168/ | ACCEPTED
03-15-00262-CV
12463245
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/31/2016 10:36:10 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00262-CV
FILED IN
3rd COURT OF APPEALS
In the Court of Appeals AUSTIN, TEXAS
Third District of Texas — Austin 8/31/2016 10:36:10 AM
JEFFREY D. KYLE
Clerk
TEXAS ASSOCIATION OF ACUPUNCTURE
AND ORIENTAL MEDICINE,
Appellant,
v.
TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND PATRICIA GILBERT,
EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY,
Appellees.
On Appeal from 201st District Court, Travis County, Texas
Cause No. D-1-GN-14-000355
APPELLANT’S UNOPPOSED MOTION FOR EXTENSION
OF TIME TO FILE MOTION FOR REHEARING
Pursuant to Texas Rules of Appellate Procedure 49.8, Appellant Texas
Association of Acupuncture and Oriental Medicine (“Association”) files this
unopposed motion for extension of time seeking an additional 15 days, until
September 19, 2016 to file its motion for rehearing.
1. On August 18, 2016, this Court issued an Opinion affirming in part
and reversing and remanding in part the trial courts judgment.
2. Appellant’s current deadline to file a motion for rehearing is
September 2, 2016.
1
3. Appellant seeks a 15-day extension until and including September 19,
2016, to allow its counsel an opportunity to fully analyze and brief the issues for a
motion for rehearing.
4. This is the Association’s first request for an extension of time and it is
sought in the interest of justice and not for purposes of delay.
5. Counsel for Appellees does not oppose this motion.
PRAYER
Appellant Texas Association of Acupuncture and Oriental Medicine
respectfully prays that this Court grant this unopposed motion for extension of time
until and including September 19, 2016, for the filing of its motion for rehearing,
and award it all further relief to which it may be justly entitled.
Respectfully submitted,
By: /s/ Craig T. Enoch
Craig T. Enoch (SBN 00000026)
[email protected]
Melissa A. Lorber (SBN 24032969)
[email protected]
Shelby O’Brien (SBN 24037203)
[email protected]
ENOCH KEVER PLLC
600 Congress Avenue, Suite 2800
Austin, Texas 78701
512.615.1200 / 512.615.1198 fax
ATTORNEYS FOR TEXAS ASSOCIATION OF
ACUPUNCTURE AND ORIENTAL MEDICINE
2
CERTIFICATE OF CONFERENCE
As evidenced by my signature below, counsel for the Appellant has
conferred with counsel for Appellees. Appellees do not oppose this motion.
/s/ Shelby O’Brien
Shelby O’Brien
CERTIFICATE OF SERVICE
I hereby certify that, on August 31, 2016, the forgoing document was served
via electronic service on the following:
Joe H. Thrash
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
[email protected]
/s/ Shelby O’Brien
Shelby O’Brien
3 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428244/ | This was an action by a complaint in one paragraph to recover damages for breach of a statutory bond executed by appellees in favor of the building and loan company. The specific charge was that Wiley, while secretary-treasurer of the building and loan company, purchased certain debentures of the General Theatre Equipment, Inc., without authority of the *Page 439
board of directors as alleged to have been necessary as per the by-laws.
The appellees pleaded a general denial and estoppel by reason of the fact that the acts of Wiley had been approved by subsequent ratification and acceptance of benefits thereunder.
The court, upon proper request, found the facts specially and rendered conclusions of law thereon, first, that the law is with the defendants and that plaintiff is not entitled to recover, and second, that defendants are entitled to recover costs. This appeal is perfected upon an assignment of error that the court erred in its first and second conclusions of law.
The finding of facts necessary to a decision of this case were as follows: that the loan company was organized under the Rural Saving and Loan Act; that the stockholders held a meeting before incorporation and discussed and agreed upon and adopted by-laws, among which was: "Section XXXIII. Should there, at any time, be money in the treasury, not called for by borrowing or withdrawing members, the Board of Directors, on recommendation of the Finance Committee, may loan or invest the same upon such rates, terms and securities as the Board may from time to time prescribe." That the board of directors' minutes of a meeting contained the following: "Minutes of meetings of March 27, April 17 and April 19, were read and upon motion of Ben Larrimer, seconded by Harry Goldthwaite and carried same were approved." That the meeting on March 27 was adjourned until April 1 and concluded on that day. That there was no finance committee appointed from March 7, 1927, to December 31, 1930; that Wiley was the duly elected, qualified, and acting secretary from October, 1925, to June 1, 1931, and sometimes during that period the treasurer; that he gave the bond in question; that such bond was an official *Page 440
bond required by statute; that Wiley, as secretary, on March 7, 1927, invested $5,000.00 without the prior order of the board of directors and from time to time thereafter invested other funds; that on May 8, 1930, after consulting with the president of the loan company and obtaining his consent and approval, he invested $3994.67 of the funds of the corporation in General Theatre Equipment, Inc. 6% convertible debenture bonds of the par value of $4,000.00. That in October, 1930, the General Theatre Equipment, Inc. paid to the loan company the sum of $120.00 as the semi-annual interest on said bonds and again in April, 1931, paid a like amount for the same purpose; that these amounts were credited into the earnings of the loan company. Finding of fact number 8 discloses: "That the board of directors of said corporation had knowledge of all of said investments, and of the collection of all interest items thereon, including the interest on said General Theatre Equipment, Inc. bonds, and never made any objection thereto or criticism thereof, but at all times, until December 31, 1930, acquiesced therein." That this purchase was made without a prior order thereof made of record by the board of directors.
The statute provides that the power to make and amend the by-laws shall be in the board of directors. § 5131, Burns 1926, § 18-2806, Burns 1933, § 8112, Baldwin's 1934. Where the 1, 2. stockholders proposed certain by-laws, as shown by the findings of fact, and the board of directors approved their acts, it means that the board of directors adopted the by-laws as proposed by the stockholders. Since the board of directors have power to adopt the by-laws they, of necessity, have the power to waive the by-laws unless this right is restricted by statute. 8 Fletcher Ency. Corp. § 4200 page 771;Farmers State Bank v. Haun (1923), 30 Wyo. 322, 222 P. 45;Bank of Holly *Page 441 Springs v. Pinson (1880), 58 Miss. 421, 38 Am. Rep. 330;National Life Ins. Co. v. Headrich (1916), 63 Ind. App. 54, 112 N.E. 559; Indianapolis, etc. v. St. Louis, etc. R. Co.
(1887), 120 U.S. 256, 7 Sup. Ct. Rep. 542; Pittsburgh, etc. R.Co. v. Keokuk, etc. Bridge Co. (1889), 131 U.S. 371, 33 L. Ed. 157, 9 Sup. Ct. Rep. 770. This investment was made by the secretary-treasurer by and with the advice and consent of the president. The findings specifically show that there was no finance committee in existance. The corporation accepted the interest on the investments and the reports made by the secretary-treasurer were approved by the board of directors in several different meetings and by the stockholders in at least one meeting.
This court has said in at least two cases that acts of this kind may be ratified. In National Life Ins. Co. v. Headrich,supra, the court said (p. 58): "Ratification means the adoption of that which was done for and in the name of another without authority. It is in the nature of a cure for lack of authorization. When ratification takes place the act stands as an authorized one and makes the whole act, transaction, or contract good from the beginning. Ratification is a question of fact and ordinarily may be inferred from the conduct of the parties. The acts, words, silence, dealings, and knowledge of the principal as well as many other facts and circumstances may be shown as evidence tending to warrant the inference or finding of the ultimate fact of ratification. 1 Mechem, Agency, Secs. 347, 349, 430, 434; Indiana Union Traction Co. v. Scribner (1910),47 Ind. App. 621, 630, 93 N.E. 1014; Minnich v. Darling (1893),8 Ind. App. 539, 544, 36 N.E. 173. Knowingly accepting benefits of an unauthorized employment amounts to a ratification of such contract of employment, and is in the nature of an estoppel to deny the authority to make such contract. Ratification by a corporation *Page 442
may be shown by conduct without any formal action of its board of directors. Corporations act only by and through their officers and agents and ratification may be inferred from affirmation or from passive acquiescence, or from the receipts of benefits with knowledge. Knowledge like other facts need not be proven by any particular kind or class of evidence and may be inferred from facts and circumstances. Indiana Union Traction Co. v.Scribner, supra, pp. 629, 630 and authorities cited; Wilson
v. McKain (1895), 12 Ind. App. 78, 80, 39 N.E. 886; AmericanQuarries Co. v. Lay (1905), 37 Ind. App. 386, 392, 73 N.E. 608; Voiles v. Beard (1877), 58 Ind. 510, 511."
In Bossart v. Geis (1914), 57 Ind. App. 384, 392, 107 N.E. 95, an action wherein the ratification of an officer's unauthorized act was involved, this court said: "In deciding this question we are not losing sight of the fact that, as a general rule, the president of a corporation has no power to bind the company by incurring indebtedness, or by his signature to commercial paper, unless the authority to do so is expressly conferred by the articles of incorporation or by-laws, or by an order of the board of directors. Elkhart Hydraulic Co. v.Turner (1908), 170 Ind. 455, 459, 84 N.E. 812; Louisville,etc. R. Co. v. McVay (1884), 98 Ind. 391, 393, 49 Am. Rep. 770; National State Bank v. Vigo County Nat. Bank (1895),141 Ind. 352, 355, 40 N.E. 799, 50 Am. St. 330; 2 Thompson, Corporations §§ 1454, 1455, 1458, 1460, 1465, 1468, 1473, 1478, 1485. But it is also true that the authority of a president or other officer of a corporation may be conferred other than by express action of the board of directors. It may be shown that the president for a long time prior to the transaction in question acted as the chief executive officer of the company; that he executed the notes and other contracts of the company and had general charge of its *Page 443
business with the full knowledge and acquiescence of the directors; that he had habitually been permitted to borrow money, or that he had furnished it, for the company. Likewise, if warranted by the issues it may be shown that his acts had been ratified by the board of directors, or that the company was estopped to question the validity of his acts by having received and used the money in the payment of the debts of the company.National State Bank v. Sanford Fork, etc., Co. (1901),157 Ind. 10, 15, 60 N.E. 699; Elkhart Hydraulic Co. v. Turner,supra; National State Bank v. Vigo County Nat. Bank, supra; 2 Thompson, Corporations Secs. 1257, 1515." See also Pittsburgh,etc. R. Co. v. Keokuk, etc. Bridge Co., supra. Thompson on Corporations 3rd. edition, §§ 2140 to 2148, more especially 2145 to 2148 and cases there cited.
Finding no reversible error the judgment of the Huntington Circuit Court is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428245/ | This was an action by the appellee against the appellants upon a promissory note and to foreclose a real estate mortgage securing same. Each appellant filed a general denial to the complaint and the appellant, Courtney G. Minter, also filed a second paragraph of answer to the complaint. There was also filed a cross-complaint in which both appellants joined. Each appellant also filed a separate cross-complaint in two paragraphs. To each paragraph of cross-complaint the appellee filed a reply in general denial. The cross-complaint filed by each appellant asked "that plaintiff's claim be declared null and void and that the cross-complainant's title to said real estate be quieted." The appellee filed a demurrer to the second paragraph of the answer of the appellant, Courtney G. Minter, which was sustained, and this ruling of the court is assigned as one of the errors relied upon for reversal.
Upon the issues as finally formed, as above indicated, the cause was submitted to the court for trial. There was a general finding for the appellee upon which judgment was entered against each appellant for the amount found due upon the note sued upon, and a foreclosure of the mortgage upon the entire real estate was decreed. Joint and several motions for a new trial were filed seasonably and overruled, and exceptions taken, and this appeal prayed and perfected.
The errors relied upon for reversal are the ruling of the court upon the demurrer to the second paragraph of the answer of the appellant, Courtney G. Minter, and *Page 206
the overruling of the several motions for a new trial. We 1. are not apprised by the appellant in his brief as to what the several motions for a new trial contained, and, hence, no questions are presented by the assignment of error in relation thereto. The independent assignment of error as to the ruling of the court upon the demurrer to the second paragraph of the answer of the appellant, Courtney G. Minter, presents a question for determination.
At the outset we may say that the appellee has failed to furnish us a brief, and, under the rules and decisions of the Supreme Court and this Court, this will be taken to be a 2. confession of error, provided the appellant has made a prima facie showing of reversible error.
With the said second paragraph of answer of the appellant, Courtney G. Minter, she filed a copy of the will of her father, Russell E. Minter, by item 4 of which she was given a certain interest in certain of his real estate which was later included in the mortgage sought to be foreclosed in the instant case. Item 4 of said will is as follows: "I give, devise and bequeath all my real estate and all interest therein, to my said daughter Courtney G. Minter (subject to the provisions of Item 3 hereof as to that part described in said Item 3, and subject to the rights given to my said wife by Item 3 hereof) my said daughter to have the use, rents and income thereof during the period of fifty (50) years from my death and at the end of fifty years from my death the same to go to her in fee simple if she be then living, but she shall not have the power to convey or incumber the same during said period of fifty years. And if my said daughter shall die within said period 50 years, my said wife if living shall have such use and income during her life time not exceeding said period of 50 years. And if my said daughter shall die within *Page 207
said period of 50 years after my death, leaving issue by her, or their descendants, such issue shall take said real estate in fee simple in the same proportions as the law would cast it if my said daughter had died intestate owning it in fee. But if my said daughter shall die without issue within said period of 50 years from my death, and without such issue or their descendants surviving her, then and in that event I give and devise said real estate to the heirs and next of kin of my sister Hattie A. Harper who are of my blood, in the same proportions as such kindred would have inherited by law from said Hattie A. Harper in case she had died intestate owning the same in fee." The paragraph of answer under consideration further alleged that immediately after said will was probated the appellant, Mary E. Minter, who was the widow of Russell E. Minter, elected in writing, as provided by law, to take under the law, and did take under the law and received one-third of the real estate of her husband in fee simple, and that the appellant, Courtney G. Minter, took the remainder of said real estate conditionally as provided in said Item 4; that said will was duly probated and recorded before the date of the mortgage sued upon and that the appellee had full knowledge of said will and the limitations thereof at the time said mortgage was taken by it; that Courtney G. Minter had no other title and interest in said real estate other than that received and given to her in said will, and that she had no power to convey or encumber said real estate, and that by reason thereof said mortgage is as to her void and unenforceable.
The demurrer is for want of sufficient facts to constitute a defense. The memorandum filed with the demurrer relies upon three grounds as follow: (1) Estoppel; (2) "The statement in the will of Russell E. Minter attempting to limit the right of said defendant to convey or encumber her interest in said real estate for the *Page 208
period of fifty years is invalid and not enforceable and does not prevent said defendant Courtney G. Minter from selling or transferring whatever title she had in said real estate by virtue of said will or otherwise. The interest in said real estate which passed to said defendant Courtney G. Minter by virtue of her father's will was a vested interest and gave her the right of possession, including the rents and profits therefrom and including the right to dispose of such interest and such rents and profits, notwithstanding the provision in said will attempting to restrict her right of conveyance or to mortgage said real estate; (3) If it should be claimed or contended by the defendant Courtney G. Minter that her title to said real estate is not vested in her but is vested in others, the persons in whom the title is vested would be the only ones who could claim any right thereto. Whatever title she had by virtue of said will or otherwise, either vested or contingent, could be conveyed by her by a mortgage and she would be estopped after executing such mortgage from denying her title thereto or her right to convey or encumber the same." We think the appellant has made a prima facie showing of reversible error in the ruling of the court in sustaining the demurrer to the said second paragraph of answer.
We see nothing in this paragraph of answer that would, as a matter of law, work an estoppel, and, if we concede (without deciding) that the appellant, Courtney G. Minter, has 3-7. such an interest in the rents and profits of the real estate in question as distinguished from the fee, as would entitle her to mortgage them, yet that is not the theory of the mortgage. It purported to mortgage the fee. It appears, at least prima facie, that said 4th item of the father's will does not violate either section 13416 Burns 1926 as to the suspension of the power of alienation of real estate, nor has there been pointed out any rule of construction *Page 209
of wills that would require any interpretation of the plain provisions of the item to permit the making by the appellant, Courtney G. Minter, of the mortgage sued upon. If she had no power to bind the two-thirds of the fee of the real estate covered by the mortgage, then a foreclosure as to the two-thirds is a nullity and should be set aside. The third specification in the memorandum of the demurrer is beside the question. SeeHayes v. Martz (1910), 173 Ind. 279, 89 N.E. 303, wherein it was said: "We cannot make a rule to fit a hard case in violation of the plain intent of the testator. Besides, it seems to us that a flaming signal was set up in the face of every purchaser, by the language that the farm `is not to be sold, or disposed of by the said John Horsely Hayes.'"
Mary E. Minter, one of the appellants, appears to have owned the one-third of the real estate covered by the mortgage. Her death since the submission of this cause has been suggested, and as to her, we believe no question is presented, and the judgment against her is affirmed as of the date of submission. The judgment against Courtney G. Minter, the other appellant, is reversed with instructions to overrule the demurrer to her second paragraph of answer, and for further proceedings not inconsistent with this opinion.
Bridwell, J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4057402/ | In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00227-CR
HARRISON HOOD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court at Law No. 2
Lubbock County, Texas
Trial Court No. 2012-471,374, Honorable Drue Farmer, Presiding
October 21, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Harrison Hood, appealed his conviction for the offense of driving while
intoxicated. Appellant was sentenced to 3 days’ confinement in the Lubbock County
Jail. On October 14, 2015, appellant filed a Motion to Dismiss.
Because the motion meets the requirements of Texas Rule of Appellate
Procedure 42.2(a), and this Court has not delivered its decision prior to receiving it, the
motion is hereby granted and the appeal is dismissed. Having dismissed the appeal at
appellant’s request, no motion for rehearing will be entertained and our mandate will
issue forthwith.
Mackey K. Hancock
Justice
Do not publish.
2 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1874343/ | 318 B.R. 1 (2003)
In re SPOOKYWORLD, INC., Debtor.
Spookyworld, Inc., Appellant,
v.
Town of Berlin, Town of Berlin Fire Department, Asst. Fire Chief Duncan Baum, Building Inspector Lawrence Brandt, Town of Berlin Board of Selectmen, Selectmen Valary Bradley, Phillip Bartlett, and David Marble, Appellees.
No. CIV.A. 01-40179-NMG.
United States Bankruptcy Court, D. Massachusetts.
January 23, 2003.
Gary S. Brackett, Brackett & Lucas, Worcester, MA, Adam J. Brand, Peter J. Camp, Brand & Associates, Wellesley, MA, for Berlin, Town of, David Marble, Duncan Baum, Lawrence M. Brandt, Phillip Bartlett, Robert Tervo, Valary Bradley, Appellees.
Stephen J. Gordon, Stephen Gordon & Associates, Worcester, MA, for Spookyworld Inc., Appellant.
MEMORANDUM AND ORDER
GORTON, District Judge.
The appellant, Spookyworld, Inc. ("Spookyworld"), appeals the August 2, 2001 Order of the Bankruptcy Court which entered summary judgment in favor of the appellees, Town of Berlin, Town of Berlin Fire Department, Asst. Fire Chief Duncan Baum, Building Inspector Lawrence Brandt, Town of Berlin Selectmen Valary Bradley, Phillip Bartlett and David Marble (collectively, "Appellees").
I. Factual Background
Spookyworld, the plaintiff below, is a Massachusetts corporation which operates an amusement park in the Town of Berlin during the month of October each year. It employs more than 500 employees and operates various Halloween haunted houses and amusement rides.
On September 30, 1998, the Town of Berlin Building Inspector, Lawrence M. Brandt, issued certificates of inspection to Spookyworld. One week later Brandt rescinded the certificates for two buildings at Spookyworld, the Simonini House of Horror and the Haunted Mine Shaft, because Spookyworld had failed to install fire sprinklers on those premises. Spookyworld immediately appealed the rescission but failed to close the allegedly unsafe buildings. The Town filed a complaint in state court seeking a temporary restraining order ("TRO") as well as monetary *2 damages. The state court granted injunctive relief.
In response, Spookyworld filed for bankruptcy protection under Chapter 11 in an effort to continue operations by virtue of the automatic stay. Spookyworld continued to operate but Town officials arrived at the premises on Saturday, October 17, 1998 and insisted on the closure of the buildings. When Spookyworld refused the Town threatened to arrest the violators of the TRO, whereupon Spookyworld ceased operations.
The following week Spookyworld, pursuant to the automatic stay provisions of the Bankruptcy Code, requested the United States Bankruptcy Court to enjoin the Town from continuing to seek relief in state court. The Bankruptcy Court declined to hear the issue on the merits, citing its lack of jurisdiction under the Rooker-Feldman doctrine, which precludes lower federal courts from reviewing state court decisions. Thereafter, the state court converted the TRO into a preliminary injunction order and the two subject buildings did not reopen that year.
Spookyworld subsequently filed adversary proceedings against Appellees alleging that they 1) violated the automatic stay provisions of 11 U.S.C. § 362, 2) violated its due process and equal protection rights under 42 U.S.C. §§ 1983 and 1985 and M.G.L. c. 12, §§ 11H and I, 3) defamed it, and 4) interfered with its contractual and prospective business relations. Appellees filed a motion to withdraw the reference on February 23, 1999, which this Court allowed on April 14, 1999 on the condition that all pretrial matters be resolved in the Bankruptcy Court pursuant to MLBR 9015-1(c).
Appellees thereafter moved for summary judgment in the Bankruptcy Court on all of Spookyworld's claims. On August 2, 2001, the Bankruptcy Court entered summary judgment for appellees on Spookyworld's core bankruptcy claim that they had violated the automatic stay provisions of 11 U.S.C. § 362.[1] The Bankruptcy Court also submitted to this Court findings of fact and conclusions of law in support of its recommendation that summary judgment be granted on the remainder of Spookyworld's non-core bankruptcy claims.
Spookyworld timely appealed the Bankruptcy Court's proposed findings of fact and conclusions of law on the non-core claims and entry of summary judgment in favor of Appellees on the core claim. On December 19, 2001 this Court, after de novo review, accepted and adopted the Bankruptcy Court's findings of fact and conclusions of law in support of its recommendation that summary judgment be granted on the remainder of Spookyworld's non-core bankruptcy claims (Case No. 99-40033-NMG, Docket No. 8). Spookyworld's appeal from the Bankruptcy Court's entry of summary judgment on the core bankruptcy issue of whether Appellees violated the automatic stay provisions of 11 U.S.C. § 362 is all that remains for this Court to decide.
II. Analysis
A. Standards of Review
1. District Court Review of Bankruptcy Court Orders
This Court reviews de novo the Bankruptcy Court's rulings of law. In re LaRoche, 969 F.2d 1299, 1301 (1st Cir.1992).
*3 2. Summary Judgment Standard
The Bankruptcy Court below granted summary judgment in favor of the Appellees. The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990)). The burden is upon the moving party to show, based upon the pleadings, discovery and affidavits, "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue, Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), which exists only when the non-moving party provides evidence "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
The Court must view the entire record in the light most hospitable to the non-moving party and indulge all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.1993). If, after viewing the record in the non-moving party's favor, the Court determines that no genuine issue of material fact exists, summary judgment is appropriate.
B. Corporations Have No Claim Under 11 U.S.C. § 362(h).
Spookyworld seeks damages for Appellees' alleged violation of the automatic stay under 11 U.S.C. § 362(h), which provides that,
[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorney fees, and, in appropriate circumstances, may recover punitive damages.
Appellees assert several grounds for summary judgment on this claim, the first of which disposes neatly of Spookyworld's claim for damages. They argue that only an individual, not a corporation, may recover damages under § 362(h) for willful violation of the automatic stay and that, therefore, Spookyworld, undisputedly a corporation, is not entitled to relief under that section. That argument is well-taken and the Bankruptcy Court's allowance of summary judgment will be affirmed on that basis.[2]
The Courts of Appeals have split on the question of whether the reference in § 362(h) to an "individual," which the Bankruptcy Code ("the Code") does not define, includes corporations. The Second, Eighth, Ninth and Eleventh Circuits have held that corporations cannot recover under that section. See In re Just Brakes Corporate Sys., Inc., 108 F.3d 881, 884 (8th Cir.1997); In re Jove Eng'g, Inc. v. I.R.S., 92 F.3d 1539, 1550 (11th Cir.1996); In re Goodman, 991 F.2d 613, 619 (9th Cir.1993); In re Chateaugay Corp., 920 F.2d 183, 185 (2d Cir.1990). The Third and Fourth Circuits have held that corporations can recover under § 362(h). See In *4 re Atl. Bus. & Cmty. Corp., 901 F.2d 325, 329 (3d Cir.1990); Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir.1986). The apparent trend is to hold that a corporation does not qualify as an "individual" within the meaning of § 362(h). In fact, since the Second Circuit first held in 1990 that a corporation is not an "individual" no circuit court addressing the question for the first time has held otherwise. See Just Brakes, 108 F.3d at 884; Jove, 92 F.3d at 1550; Goodman, 991 F.2d at 619.
The First Circuit Court of Appeals has yet to address the issue but district and bankruptcy courts in this Circuit have held that corporations have no claim for relief under § 362(h). See, e.g., In re A & J Auto Sales, 223 B.R. 839, 844 (D.N.H.1998) (affirming bankruptcy court's decision holding that § 362(h) does not allow a corporate debtor to recover damages caused by a willful violation of the automatic stay); In re Shape, Inc., 135 B.R. 707, 708 (Bankr.D.Me.1992) (holding that § 362(h) does not allow a corporate debtor to recover damages caused by a willful violation of the automatic stay); In re American Chem. Works Co., 235 B.R. 216, 220 (Bankr.R.I.1999) (same).
The courts which have found § 362(h) inapplicable to corporate debtors logically begin their analysis with a plain meaning approach to the text of the statute. See, e.g., Just Brakes, 108 F.3d at 884-84; Jove, 92 F.3d at 1550-52; Chateaugay, 920 F.2d at 184-86; see also United States v. Ron Pair Enters., 489 U.S. 235, 240-41, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989) ("[A]s long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the [Code].").
In Ron Pair, the Supreme Court held that when interpreting the Bankruptcy Code, courts should determine the plain meaning of the statutory language. Ron Pair, 489 U.S. at 242, 109 S. Ct. 1026. The plain meaning of the language used is "conclusive," except in rare cases not applicable here. Id. The plain meaning of the word "individual" does not ordinarily include a corporation. Jove, 92 F.3d at 1550-51 (citing Webster's New Collegiate and Black's Law dictionaries). Thus, corporations such as Spookyworld presumptively are not entitled to relief under § 362(h).
Interpreting "individual" in § 362(h) to exclude corporations is "coherent and consistent" with the rest of the Code and there is thus no need "to inquire beyond the plain language of the statute." Ron Pair, 489 U.S. at 240-41, 109 S. Ct. 1026. In fact, it is clear that Congress intended the plain meaning to control. First, the definitional provision of the Code, § 101, contains at least 67 detailed definitions, yet "individual" is not among them. 11 U.S.C. § 101. Had Congress intended "individual" to include entities not contemplated within its plain meaning, surely it could have made that clear. But see Better Homes, 804 F.2d at 292 ("[I]t seems unlikely that Congress meant to give a remedy only to individual debtors . . . as opposed to debtors which are corporations. . . . ").
Second, the term "person" is defined to include "individual, partnership, and corporation." 11 U.S.C. § 101(41). This is a clear implication that corporations do not fall within the discrete category of "individuals," whatever they may be. See Jove, 92 F.3d at 1551; Chateaugay, 920 F.2d at 184. Similarly, some provisions of the Code treat "persons" and "individuals" differently. See Chateaugay, 920 F.2d at 184 (citing § 109, which applies in some circumstances to "persons" and in others to "individuals").
*5 Third, the Code defines the term "corporation" in part as an "association having a power or privilege that a private corporation, but not an individual or partnership, possesses." 11 U.S.C. § 101(9)(A)(9)(i) (emphasis added). It would be internally inconsistent to read "individual" as including corporations when the Code clearly defines corporations as having powers and privileges that individuals do not.
Fourth, the Code defines a "relative" as an "individual related by affinity or consanguinity within the third degree as determined by the common law, or [an] individual in a step or adoptive relationship within such third degree." 11 U.S.C. § 101(45) (emphasis added). Surely a corporation cannot be, as can individuals, related by affinity or consanguinity or exist within a step or adoptive relationship. See Chateaugay, 920 F.2d at 184-85.
Based on the foregoing analysis, this Court concludes that § 362(h) does not authorize corporations to seek damages for willful violations of the automatic stay provisions of § 362. Summary judgment against Spookyworld was therefore properly entered because it is undisputed that Spookyworld is a corporation.
C. Conclusion
Because Spookyworld, as a corporate debtor, is not entitled to damages under § 362(h) regardless of whether Appellees violated the stay, and because Spookyworld does not request injunctive relief in connection with its allegation that Appellees violated the automatic stay provision of the Code, there is no genuine issue of material fact that precludes this Court from affirming the Bankruptcy Court's entry of summary judgment in Appellees' favor.
ORDER
For the foregoing reasons, the August 2, 2001 order of the Bankruptcy Court entering summary judgment in favor of Appellees is AFFIRMED.
So ordered.
NOTES
[1] In their motion for summary judgement, Appellees argued that the automatic stay issue is a non-core claim but they did not appeal the Bankruptcy Court's finding to the contrary and Spookyworld's appeal does not raise that issue. For purposes of this appeal, therefore, this Court treats as conclusive the Bankruptcy Court's finding that the stay issue is a core claim.
[2] Although the Bankruptcy Court did not consider that argument, this Court is not bound by the rationale of the Bankruptcy Court and may affirm the judgment below on any valid basis for which there is support in the record. Cf. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 217 F.3d 8, 10 (1st Cir.2000) (stating the foregoing proposition in connection with the appellate court's review of a district court decision). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3428265/ | The question involved in this case depends on the constitutionality of an Act of 1909, ch. 188, *Page 144
p. 454, which is entitled "An Act concerning municipal corporations and to amend sections 42, 43, 45, 54, 82, 87, 91, 92 and 93 of an act entitled `An Act concerning municipal corporations,' approved March 6, 1905." The Act of 1905, ch. 129, p. 219, which was so amended in 1909, contains 272 sections which relate exclusively to the operation of the various functions of municipal governments. Section 45 of this act concerns vacancies in elective offices. It empowers the mayor to fill any vacancy excepting that of mayor or councilman. Section two of the 1909 Act is likewise confined to the subject of vacancies in elective offices, and empowers the mayor to fill vacancies in any office excepting that of mayor, city judge or councilman. The exception was thus increased to include three offices.
In the 1905 Act, § 45 specifically provides for the filling of vacancies in the offices of mayor or councilman, the two offices named in the exception. In the 1909 Act there are provisions for the filling of vacancies in any of the three offices of mayor, city judge or councilman. It provides that any vacancy in the office of city judge shall be filled by the Governor of the State of Indiana. This change has the effect of removing the appointing power from the mayor, in case of a vacancy in the office of city judge, and conferring it on the Governor.
In 1945, a vacancy occurred in the office of City Judge of the City of Michigan City, Indiana. Shortly after the death which caused the vacancy, the mayor appointed appellee to the office and he immediately qualified and assumed the duties of the office. Thereafter the Governor of Indiana, having received an opinion from the Attorney General of Indiana, wherein it was stated that the appointing power to fill the vacancy was lodged in the Governor, appointed appellant to fill out the unexpired *Page 145
term of the former city judge who died while in office. The appellant thereupon furnished bond and attempted to qualify and assume the duties of the office, but his bond was rejected and the appellee refused to turn over the office to the appellant.
To test the right of appellee to the office in question the appellant filed this proceeding in quo warranto in the Circuit Court of LaPorte County. The third amended complaint in two paragraphs, on which the judgment depends, alleged the above facts together with other allegations to the effect that from 1909 to the present date all persons had recognized the 1909 Act as a valid governing act in all like situations.
The appellee demurred to the complaint, and the court having sustained the demurrer, the appellant refused to plead further and judgment was entered in favor of the appellee. Appeal was prayed, and the question which now confronts us is, does the Governor of the State of Indiana have the right and duty to fill such vacancy under the amendatory act of 1909, or is that act unconstitutional, thus leaving the 1905 act unamended?
The claim of the appellee is that the 1909 Act is violative of Sections 19 and 21 of Article 4 of the Constitution. It is claimed that the 1909 Act is drawn to amend §§ 42, 43, 45, 54, 82, 87, 91, 92 and 93 of the Act of 1905; that it does not pretend to amend §§ 80 (sixth subsection) and 218 of the Act of 1905, which are as follows:
"Sec. 80. It shall be the duty of the mayor: . . .
"Sixth. To fill by appointment vacancies for unexpired terms in the offices of such city, except in case of vacancy in the office of mayor or councilman, as in this act hereinbefore provided. . ..
"Sec. 218. In the case of a vacancy in the office of city judge, the mayor shall appoint a successor, who shall hold such office during the unexpired term." *Page 146
Section 21, of Article 4 of the Constitution of Indiana prohibits the legislature from amending a statute by a mere reference to the title. Under this section it is made necessary that "the act revised, or section amended, shall be set forth and published at full length."
In the instant case this section of the Constitution was fully satisfied by the enactment. The title disclosed the intent of the legislature and the section amended was set out at full 1. length. This has been held sufficient. Taelman v. Bd. of Fin. of School City of South Bend (1937), 212 Ind. 26,6 N.E.2d 557.
Section 19, of Article 4 of the Constitution reads as follows:
"Every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title."
The title to this act covers but one general subject to-wit, municipal corporations. True, its also refers to § 45 and other sections of the Act of 1905, but each section covers some 2. subdivision of the general subject of municipal corporations. It is not indicated or pointed out in what way the title of the act refers to two subjects. We are unable to find any justification for the assertion that the Act of 1909 violates either of the §§ 19 or 21 of Article 4 of the Constitution.
It is stressed that there can be no amendment by implication and with this we agree. But it is admitted that there can be a repeal by implication and that is supported by the 3, 4. authorities. State ex rel v. Montgomery Circuit Court (1945), 223 Ind. 476, 62 N.E.2d 149; Taelman
v. Bd. of Fin. of School City of South Bend, supra. *Page 147
It is claimed by appellee that since the amending act did not refer to §§ 80 and 218 of the Act of 1905, it therefore does not disturb them and we must construe the amending act with the above mentioned two sections in such way as to make a complete and workable law. This is true if there is no irreconciliable conflict, but to so construe the amending act in the instant case would do violence to the express language of the act.
In the case of Reed v. The State (1859), 12 Ind. 641, this court was concerned with an amending act in two sections which amended § 11 of the original act. The amending act was entitled "An act to amend section eleven of an act entitled `An act to establish Courts of Common Pleas, and defining the jurisdiction and duties of, and providing compensation for the judges thereof,' approved May 14, 1852 — so as to extend the jurisdiction of said Court in certain cases." Section 11 of the original act conferred and defined jurisdiction of that court in civil cases. In the amending act there were two sections, one which conferred and defined jurisdiction in civil cases, and the other which conferred criminal jurisdiction on that court. In the above opinion on p. 647 this court said:
"We think, therefore, that, as before stated, the subject of the eleventh section of the old statute was in relation to the jurisdiction of the Court; and as the subject of the statute under consideration was an increase of the jurisdiction of that Court, the whole of said act upon that subject was properly included under the title set forth; and that the whole of the enactment, in that respect, is an amendment of that section, expressed, it is true, in a very inartificial, bungling, and awkward form, but conforming substantially to the constitutional requirement."
In the Reed case, supra, the claim was made that the statute under consideration embraced two subjects in *Page 148
violation of the constitutional mandate. However, the court decided otherwise. It decided that the subject-matter of the general act and of the section of that act which was amended constituted but one subject-matter of jurisdiction. In Draper
v. Zebec (1942), 219 Ind. 362, 37 N.E.2d 952, 38 N.E.2d 995, the opinion which denied a rehearing clearly covered our question. In commenting on the Reed case, supra, on p. 385, it was said:
"In the discussion the court concerned itself only with the question of whether or not criminal jurisdiction came within the purview of section 11 of the original act. There would have been no concern with this question unless the amending act, having provided that its purpose was to amend section 11 only, must be limited in its operation to the purview of section 11."
On p. 387 of the opinion on rehearing in the Draper case it was plainly stated that the Reed case merited approval.
From these and other authorities it seems clear that if the subject-matter of the amending act is within the purview of 5. the subject-matter of the section to be amended, the amendment is valid.
The original Act of 1905 was voluminous and covers 191 pages of the published acts of the legislature for that year. Section 45 of that act is entitled, "Vacancy in Elective Office." Section 80 is entitled, "Mayor — Powers and Duties." Section 218 is in that part of the act containing §§ 215 to 227 both inclusive which is entitled, "Judicial."
From the above it can readily be seen that the legislature rightfully went to that section of the act that was drawn on the subject of vacancies in elective offices and proceeded to change the power of appointment in case of a vacancy in the office of city judge. *Page 149
If it were possible to so construe the three sections so that all would stand we would do so. But § 80 gives to the mayor, the power and duty to fill all vacancies excepting that of mayor or councilman. Section 218 specifically, in case of a vacancy in the office of city judge, authorizes the mayor to appoint a successor. Section 2 of ch. 188 of the Act of 1909 just as specifically empowers the mayor to fill all vacancies in city elective offices excepting that of mayor, city judge or councilman and then authorizes and directs that any vacancy in the office of city judge shall be filled by an appointment from the Governor.
It is argued that the proviso in § 45 of the 1905 Act and in the amendment in the 1909 Act can be so construed that the appointing power of the Governor will be exercised only in 6. case there is an acting or appointed mayor. Such construction would recast the statute, and it is not the province of this court to read into a legislative enactment words or intent that are contrary to the expressed desire and intent of that body. See State, ex rel. v. Greenwald (1917),186 Ind. 321, 116 N.E. 296.
The issue is the constitutionality of the act in question. In Sutherland's Statutory Construction (3rd ed.), Vol. 2, § 3601, it is said:
". . . When the issue in litigation is the constitutionality of the act it is classified by its form and not by its effect; but for purposes of interpretation the effect of the act and not its form is controlling."
After a careful examination of the form of the act in question we are forced to the conclusion that it does not violate the prohibitions of the Constitution, and ch. 188 of the 1909 7. Acts being the later enactment of the legislature controls and supersedes the prior enactments on the same limited subject. *Page 150
There being an irreconcilable conflict between the three sections, it is now held that §§ 80 and 218 of the Act of 1905, being ch. 129 thereof, are by implication repealed by the Acts of 1909, ch. 188 thereof, in so far as there is conflict in the appointing power to fill vacancies in the office of city judge.Pitzer v. Ind. State Board (1932), 94 Ind. App. 631,177 N.E. 876.
The judgment of the LaPorte Circuit Court is reversed with instructions to overrule the demurrer to both paragraphs of complaint, and for further proceedings in conformity with this opinion.
Note — Reported in 65 N.E.2d 245. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428267/ | DISSENTING OPINION.
After having read all the briefs, every word of evidence and examined and read every authority cited, I cannot agree with the majority opinion herein. The following statement explains my theories:
Rees commenced his duties on January 3, 1922, and continued to serve until the early part of October, 1922, at which time he went on his vacation. Rees had never been required to provide himself with a uniform. While on his vacation he was called on the telephone by the chief of police and told that he had been discharged from the department. No charges of any nature hadbeen preferred against Rees, and he was not given a hearing before being discharged. It is true Rees did not demand a hearing and evidence was introduced at the trial showing that he opened and operated a private detective agency subsequent to his dismissal. Appellee contends that this action constitutes an abandonment of office.
Many questions have been raised in this case, but it appears to me that the principal questions involved are: was the appellant a duly appointed member of the police force and a police officer, and, if so, was his discharge legal? Appellee maintains that appellant's dismissal was due to the fact that he was a "detective" and that the office of detective was abolished and abrogated by the board, reducing the police force for economic reasons, and further maintains that the dismissal was proper and legal, and rely upon Sec. 158 of the Towns and Cities Act, Acts of 1905, p. 336, being Sec. 10859 *Page 485
Burns Ann. St. 1926, which they claim expressly excepts the office of detective from the provision providing for dismissal only for cause and a hearing.
It is shown that the city of Muncie operated under the Metropolitan Police Laws and had a Metropolitan Board of Police Commissioners until April 1, 1920, when said board ceased to exist. On this same date a Board of Public Safety was duly appointed and regularly qualified as provided by law. It was stipulated by the parties that Muncie was a second class city of more than 40,000 and less than 50,000 ever since the 4th day of March, 1920.
The Metropolitan Police Laws of this state make specific provisions for the appointment of captains, sergeants, detectives, etc., which provisions, in effect, designate these various officers as separate classes of appointees. A careful study of the statutes applying in the instant case, being the Towns and Cities Act of 1905, reveals that no specific provision is made for the appointment of "detectives" as a separate class of officers. The language used in Sec. 159, Acts 1905, p. 338, being Sec. 10862 Burns Ann. St. 1926, is as follows: ". . . The board shall appoint a chief of police, a chief of the fire force and all other officers, members and employees of such fire andpolice forces, together with a market master, station-house keeper, and other officials that may be found necessary for such department of public safety. . . ." (My italics.) As already stated, appellee strongly urges and relies upon Sec. 10859,supra, which says, "Such commissioners shall have power, for cause assigned on a public hearing and on due notice according to rules to be promulgated by them, to remove or suspend from office, or for a definite period deprive of pay, any officer or member of such police force, except that detectives may be dismissed at any time by said commissioners." Immediately following *Page 486
the section above quoted is Sec. 160 of the Acts of 1905, p. 339, which is Sec. 10864 Burns Ann. St. 1926, which section is entitled "Fire and Police Forces — Removals — Procedure," a part of which section is as follows: "Every member of the fire andpolice forces, and all other appointees of the commissioners ofpublic safety, shall hold office until they are removed by the board. They may be removed for any cause other than politics after an opportunity for a hearing is given, if demanded, and the written reasons for such removal shall be entered upon records of such board. . . ." (My italics.) I cannot reconcile the language of this section with that of Sec. 10859, supra, which provides for the dismissal of detectives. Where no specific provision is made for the appointment of detectives as a distinct class and a man is appointed by a Board of Safety as "a detective of the police force," I cannot, by the widest stretch of imagination, conceive of a situation whereby he would not be a "member of the police force." It will also be noted that Sec. 160, supra,
deals specifically with the removal of firemen and policemen and all other appointees of the commissioners of public safety. It certainly cannot be denied that appellant was an appointee of the Board of Safety. It seems to me that inasmuch as Sec. 160 is a later section than 10859, and there is an irreconcilable conflict between the two, the rule should be invoked that where there is a conflict between different sections or provisions of the same act the last in order of time or local position must prevail. Quick
v. Whitewater Township (1856), 7 Ind. 570; Curless et al. v.Watson (1913), 54 Ind. App. 110, 100 N.E. 576; Woodring etal. v. McCaslin et al. (1914), 182 Ind. 134, 104 N.E. 759. The appellant was appointed, as evidenced by his certificate of appointment, a "detective of the police force of the city of Muncie," took oath of office as a "detective of the *Page 487
police force of the city of Muncie," and gave bond as such. However, it cannot be denied that he was a "member of the police force," and as such he was entitled to a hearing or could only be dismissed for cause as heretofore stated. On the other hand there was introduced in evidence a special order of the Board of Safety containing the following language: "The following are hereby appointed to the police force," and then appears the names of several men, including that of appellant. The order continued by saying that "Upon recommendation of the chief of police the following assignments to duty are hereby announced," and then appears the name of appellant and another whom were both assigned as detectives on the night force. There was also introduced in evidence another record of the Board of Safety as of the same date as the one above, wherein it was stated that "Upon the recommendation of Chief Benbow the following new members of theforce were appointed and properly sworn in and bonds approved," and that "the recommendations of Chief Benbow as to the assignments was read and approved by the board." All this shows without a doubt that appellant was a member of the police force and he is entitled to every consideration as such. Were this court to hold that the provision for the dismissal of detectives in Sec. 10859, supra, is effective and applies to persons in the situation of this appellant it would then open an easy way for a Board of Public Safety to evade the plain provisions and intent of the statute. The board would merely have to designate any member of the police force a detective and thereafter he could be removed without cause and without a hearing. In making these suggestions, however, I am not to be understood as imputing, or attempting to impute, any such evasion to appellee in the instant case, but simply make them in support of the view with which I am impressed *Page 488
in respect to the interpretation to be placed upon the statute in question.
It is further claimed by appellee that the office of detective was abolished and abrogated by the Board of Safety for economic reasons, and particular stress is laid upon an order of the board, which reads as follows: "Upon recommendation of Van Benbow, chief of police, it was ordered by the board that the night force of the police department be reduced by laying off two plain clothes men, to wit: Jerry Curran and Albert Rees. Said order to become effective on Saturday, October 15, 1922." It is plainly evident from the language of this order that appellant was unequivocally recognized as a "member of the police force." It is my opinion that the order fails absolutely to state the alleged intention of appellee, namely, that the police force be reduced for economic reasons. The action of the board was not to abolish the office of appellant, nor to reduce the policeforce, but only "that the night force of the police department be reduced." Neither do I find at any place any mention of the existence of an economic necessity for such a reduction. The appointment of appellant to the police force, whether as a detective or in any other capacity, made him an officer or member of the police force and an appointee of the Board of Public Safety, and he could be removed only for cause after notice and an opportunity to be heard, and it was necessary for the board toenter the grounds of his removal upon the record. Sec. 10864,supra; Leonard v. City of Terre Haute (1911),48 Ind. App. 104, 93 N.E. 872; Roth v. State, ex rel. (1902),158 Ind. 242, 63 N.E. 460. I am not attempting to encroach upon the rule that when the city has the power to create an office it also has the implied power to abolish the same, but I believe that where there is a statute regulating the removal of certain classes of office *Page 489
holders such statute must be followed when a removal is attempted. In view of the fact that the statute specifically states that the written reasons for removal shall be entered upon the records of the board, and said records fail absolutely to state the alleged intention of the board to dismiss appellant from the police force or that an economic necessity existed, I fail to find any competent evidence to sustain the finding of the trial court that such an economic necessity existed.
Appellee maintains that there is no such office as "member of the police force" created by law or ordinance of the city of Muncie, and that there was no such office as detective created by charter law of the city or the statutes of Indiana applicable to Boards of Public Safety in cities of the second class, and that the council may create the same and fix a salary therefor, or not, as it may determine, and if there is no such salary or office created there could be no valid appointment, no de jure office and appellant could not recover salary during the time he was removed and rendered no services. This contention is correct in part, but not in its entirety. There is no denying that appellant was a "member of the police force," and Sec. 10862 Burns Ann. St. 1926, part of which I have already quoted and which appellee cites, says clearly that the Board of Safety shall appoint a chief and all other officers, members and employees ofsuch police forces. This certainly gives the Board of Safety the right to create any office on the force which they deem necessary and it follows that the office held by appellant herein was legally created by the board that appointed him to same. It is my opinion that every appointee who possesses the qualifications laid down by the statutes and who has completed the necessary requirements as to the matter of furnishing bond, taking oath, etc., is a de jure officer of the police force. Bear in mind that this relates to *Page 490
appointees only and not employees. Every member of the force, where the law permits promotions or reductions in rank at the will of the chief, Board of Safety, or mayor, as the case may be, is basicly a member of the force of the lowest rank, which, in the instant case, would be a patrolman. The uncontradicted and unqualified evidence shows that appellant was appointed to the police force by the board and that he was treated as a member thereof until October 12, 1922. He was never legally removed, and he therefore became and continued to be an officer of the city and entitled to the salary of the office. I concede that the order of the board was effective for the purpose of reducing the night force of the police department but it did not abolish any office or reduce the number of men in the police department, therefore, in the absence of any specific assignment to duty on some other shift as a detective or in any other capacity, appellant automatically reverted to the lowest ranking position as a "member of the police force" to wit, a "patrolman" and is entitled to salary as such. The salary is an incident of the office and not to its occupancy. It follows the true title to the office. City of Indianapolis v. Martin (1909),45 Ind. App. 256, 89 N.E. 599; Board of Commissioners of Allen County v.Chapman (1898), 22 Ind. App. 60, 53 N.E. 187; Nichols v.MacClean (1886), 101 N.Y. 526, 5 N.E. 347, 54 Am. Rep. 730;State v. Walbridge (1899), 153 Mo. 194, 54 S.W. 447.
As to the question of abandonment which was interposed by appellee as a defense, it appears to me that same in this instance is an extremely technical subterfuge to the main issues which I have heretofore discussed. Intent is a very important factor in establishing abandonment, and there is nothing in theevidence which tends to show that appellant intentionallyrelinquished his office. True, appellant complied with the *Page 491
order of his chief to turn in his badge, but it is reasonable to assume that his refusal so to do would not have availed him anything at the time. It was only necessary for appellant to show that he was ready and willing to perform the duties of his office. U.S. v. Wickersham (1906), 201 U.S. Rep. 390.
In Selby v. City of Portland (1886), 14 Oregon 243, 12 P. 377, 58 Am. Rep. 307, the court said: "I presume instances have occurred in which officers have abandoned their offices, but they have been so rare that it requires cogent proof to establish them as matters of fact. An officer, doubtless, might legally abandon his office when wrongfully ousted therefrom. His permanent removal from the territorial jurisdiction of the office would necessarily have that effect; but his failure to keep up a clamor for reinstatement could not certainly be urged as evidence of abandonment.
"The mayor, with the consent of a majority of the common council, had the appointment of these officers, and could remove or suspend them. He, with the consent of that body, did appoint other persons to supersede them, and they were formally installed and remained in these positions. What, therefore, could theappellant and his assignors do in the premises but submit to theaction of those officials, or institute legal proceedings toannul their acts? I have read the testimony in the bill of exceptions, and do not think it tends to show an acquiesce in the removal or abandonment of the officers by the appellant and his assignors — do not find that they ever proposed to relinquish them. It appears that the most that can be said in regard to their conduct is that they did not attempt to contend about going out of their places, or about being let in again. There is certainly nothing to show that they relinquished any right, or did anything to estop them from claiming the offices. If the mayor and common council had offered *Page 492
to restore them to their positions, and they had refused such restoration, there would be grounds upon which to claim an estoppel, but as the case stood, I am unable to discover that there was any such ground." (My italics.) In the instant case it is shown that appellant served notice on the proper parties, that he still believed himself a member of the police force and demanded his salary as such. The fact that appellant resorted to other means of earning a livelihood in the interim is not sufficient to establish an abandonment of the office. Neither was appellant required to intrude himself upon the officers responsible for his attempted dismissal and offer his services or demand a reinstatement. Gracey v. St. Louis (1908), 213 Mo. 384, 111 S.W. 1159, 19 R.C.L. p. 942; Selby v. Portland,supra; Seifen v. City of Racine (1906), 129 Wis. 343, 109 N.W. 72.
Granting that the facts as found by the trial court are true, it remains, however, for this court to say, as a matter of law, whether or not such facts constitute an abandonment, and I am decidedly of the opinion that they do not. As to appellant's failure to demand a hearing as provided by statute I have but to say that the same statute provides that the written reasons for removal shall be entered upon the records of the board. In view of this, appellant had a right to rely on whatever reasons were entered on the records and base his action thereon, and it was not necessary that he demand a hearing. The board attempted to dispose of him by assigning written reasons. When appellant knew that the attempted assignment of reasons was not sufficient, can it be said that it was necessary for him to then immediately object and show the board wherein they were wrong. Appellant, knowing the temper of the administration, knew that such a move would be futile. All the board would have to then do would be to amend their reasons to comply with the facts and the statute *Page 493
and appellant would have been effectively removed. Knowing their pretended reasons were faulty he certainly had the right to wait until such time as he could secure counsel. Certainly ten months is not an unreasonable time to secure counsel to engage in a suit involving the numerous and difficult questions found here.
The majority opinion says the court found that "in order to provide funds to aid in certain necessary repairs and augment the motor equipment of said department the said Board of Public Safety reduced the night force of the department by laying off two detectives." The court did find this but the board did not assign this as a reason upon the record.
The majority call attention to the fact that the court found that appellant made no inquiry as to whether or not any charges had been preferred. He did not have to make inquiry. If charges had been preferred he would have been given notice. This finding of fact does not lend any strength to the majority opinion. The records were public and everyone is presumed to know what they contain. Rees knew that the records said, he did not have to inquire.
The entire court agrees that Rees was a police officer of the city, and, in my opinion, there is an appalling lack of evidence to sustain a finding that he abandoned the office. There are two essential acts necessary to constitute a legal finding of abandonment, namely, the intention to abandon and the external act by which it is carried into effect. Intention is a paramount factor and there is an absolute failure to show that Rees intended to relinquish the office. As to his acts, I have but to say that whatever action he may have taken was practically forced upon him. It is my opinion that the judgment of the Delaware Circuit Court should have been reversed. *Page 494 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428366/ | This is an action against appellee to recover $1,850.15, the cost of the construction of a new bridge. Briefly stated, it is averred in the first paragraph of complaint, so far as here involved, that said company was the owner of certain real estate formerly owned by the United States Board and Paper Company over which real estate ran an old mill race constructed in about the year 1856, and abandoned as such in 1887. Such mill race crossed a public highway of Rush county, and in 1864 a turn-pike company constructed a toll road on said highway with a bridge over the mill race in the same location as the bridge here in controversy. In 1887 Rush county purchased the toll road and it became a part of the free gravel road system of the county, and said county thereafter maintained and repaired the bridge. The highway is a much traveled road, and it is necessary to keep it in a high state of repair for use as a part of the United States Rural Mail route, it being necessary for rural carriers to pass over the bridge. In 1923 the bridge became out of repair, and it became necessary to rebuild and reconstruct such bridge, and on August 6, 1923, the board of commissioners entered the following order: "It having been brought to the attention of the Board that the bridge across the race southwest of Carthage where the old mill race crosses the county highway near the southeast corner of the southwest quarter of Section 24, township 15 north, range 8 east, is in bad condition and dangerous to travelers *Page 283
over said highway, the Board now orders the County Surveyor to prepare plans and specifications of a new bridge in conference with the American Paper Products Company, and said American Paper Products Company is hereby ordered to proceed to the erection of a new bridge across said race at said point in compliance with the agreement heretofore entered into between said Board and the predecessor of said company in accordance with the plans and specifications mutually agreed upon."
Upon receiving said order, appellant proceeded immediately to the construction of such bridge as in said order directed and completed the same at an actual cost for material and labor of $1,850.15. But there was never any contract or arrangement of any description between appellant and appellee, or any prior owners of mill race, that such owners should participate in the repair or construction of such bridge, or any agreement of any kind concerning the same as mentioned in said order. The company wrote appellee requesting a copy of any contract or agreement between the company or its predecessors which had to do with the upkeep or repair of the bridge. Receiving no answer, it wrote a second letter with a like request, which was answered by the auditor to the effect that no such agreement could be found. The company had no knowledge that there was no contract or agreement between it or its predecessors and appellee until the receipt of the letter from the auditor, at which time it had completed the bridge. The material and labor were furnished at the special instance and request of, and by such written order and direction of appellee, and appellee had received the full value of the service, and was at the time using the bridge but refused to pay for the same though requested so to do. It is further averred that appellee knew that the company was so constructing the bridge under the *Page 284
order above set out, and made no objection to the work as done. A demurrer was sustained to this paragraph of complaint, and successively to four other paragraphs thereafter filed averring substantially the same facts, except that the fifth paragraph embraced the element of fraudulent representation by the board of commissioners. The company refused to plead further, but elected to stand upon the respective paragraphs of complaint, and judgment was rendered against it, from which this appeal. The only error assigned is the action of the court in sustaining the respective demurrers to each of the five paragraphs of complaint.
It is to be observed that the action in the trial court was prosecuted to final judgment in the name of American Paper Products Company, while the appeal to this court is by the receivers of such company. We find no record or averments, however, of the appointment of such receivers and nothing that indicates the authority by which they appeal to this court.
Appellee also calls attention to the fact that, though appellants are relying for reversible error upon the court's ruling in sustaining the respective demurrers to each of 1. the paragraphs of complaint, they have wholly failed to set out the demurrers or the substance thereof in their brief. Such failure to comply with the rules of the court constitutes a waiver of the error assigned. But, appellants have set out the memoranda to the demurrers which indicate that they were for want of facts. However, if we ignore these defects in the record and the brief, we do not see how appellants can prevail in their appeal.
It seems that appellants rely upon § 7 of ch. 39 of the act of the special session of the legislature, 1920, for their right of recovery. This section provides that it shall be the duty 2-5. of boards of commissioners, highway superintendents, and *Page 285
trustees to keep in repair, in passable condition, all highways, bridges and culverts over which they respectively have control, along or on which United States Rural free delivery mail routes have been or may hereafter be established or maintained, giving preference to highways over which such rural mail routes pass, it being made their duty to keep such highways free from obstructions, including snow drifts, and in condition to be safe and readily passable to ordinary travel. Such section makes it the duty of such respective officers upon receiving notice of defective or impassable condition of highways, bridges or culverts used by mail routes to repair the same at once or cause them to be repaired. The county commissioners are authorized to make such repairs when necessary regardless of the fact that there is no appropriation therefor, and to pay the same out of the county treasury. There is a penalty for violation of the section. That such section was not intended to include the construction of a new bridge at an expense of $1,850 to the county, during which time it was necessary to build a detour around the place of constructing the new bridge, as here, is evident from the fact that those in charge were required to repair or cause to be repaired the highway or bridge within five days from the time of their notice of the necessity of such repair, and failing to make such repair within five days, such defaulting person is made guilty of a misdemeanor, and subject to a fine of $2 for each day he fails to complete the repair after notice of such necessity. If a new bridge costing $1,850 is within the compass of this statute, then a new bridge costing many thousands of dollars may be constructed under its provisions, and thereby the statute commonly known as "the County Reform Act" would be done away with, and boards of county commissioners, township trustees or county superintendents could, without advertising for bids and *Page 286
without limitation upon their expenditure of the funds of the township or county, build highways, bridges and culverts. It is not averred in any paragraph of the complaint that the county surveyor furnished the company with any plans and specifications, and it affirmatively appears in the second paragraph of complaint that he did not furnish such plans and specifications, and the company went forward with the construction of the bridge without plans or specifications, and without there having been any advertisement for bids, or any bids received or contract entered into. By §§ 6109, 6110 Burns 1926, §§ 5893 and 5954 Burns 1914, the board of county commissioners is expressly prohibited by law from letting any contracts for or engaging in the construction or reconstruction or material alteration of, any bridge except where plans and specifications have been prepared and adopted and bids advertised for and contract let as required by law. We do not understand that § 7, supra, abrogates or repeals the provisions of this section. The question is not, Did the company perform a work from which the county is receiving benefits, but did it perform that work pursuant to any contract that appellee had a right to make? The answer to this question must be in the negative, and hence there can be no recovery. Ness v. Board,etc. (1912), 178 Ind. 221, 98 N.E. 33, 1002. It was the company's duty to know whether it was performing work for the board of commissioners, appellee, under a statute that would authorize it to pay therefor, and failing to learn its rights, it cannot now be heard to complain that the county was benefited by such work. Nor can it be heard to complain, as in its fifth paragraph of complaint, that appellee made fraudulent representations. Boards of county commissioners are creatures of the statute, and as such, in order to bind the county, must *Page 287
act within their statutory authority, and such boards are not authorized by statute to make fraudulent representations.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428442/ | ON PETITION FOR REHEARING.
Both appellees and appellants have petitioned for a rehearing. Appellees in their petition assert that prior to the beginning of the instant case the administrators of the life tenant's 15, 16. estate brought a proceeding to determine the right to possession of $20,000 of bank stock, which had been part of the estate of William B. Hutchinson; that the trial court adjudged that the bank stock continued to be the property of the William B. Hutchinson estate, and that the appellee Amy Arnt, administratrix de bonis non with the will annexed, was entitled to the stock and required to liquidate it and distribute it in accordance with the will; that no appeal was taken, and that therefore the question of the right to possession of all of the property that was part of the estate of William B. Hutchinson was adjudicated, and that in this action the parties are bound by the adjudication. No such question was presented by the briefs prior to this petition for rehearing. No cross-errors were assigned, nor is it now pointed out that there was any finding of fact or conclusion of law concerning the question. A failure to find the necessary facts would be a finding against appellees on this issue if it was presented, but in any event it is too late to present the question upon a petition for rehearing. By not presenting it in their original brief, the question has been waived by appellees. The only question of res judicata referred to in appellees' original brief involves a ruling *Page 527
on an answer in abatement. It is contended by appellees in their original brief that, since, upon the determination of the issue raised upon the answer in abatement, the court held that Amy Arnt, administratrix de bonis non with the will annexed, might maintain an action, and, since no error was assigned upon that ruling, and the evidence heard upon that issue not having been made a part of the record, the ruling is res judicata upon her right to recover. This contention was not taken seriously, since the difference between a right to maintain an action and to recover in the action are obviously different.
Appellees say that the question of who has the liquidation of the residue of the estate after the life tenant is not suggested by the opinion. But there need be no liquidation. The heirs may, if they desire, hold the property intact in joint ownership. Questions are also suggested as to the effect of the opinion in case there were unpaid legacies or debts of the estate. But no such question is presented by the record here, since it does not appear that there were any unpaid debts or legacies, but, on the contrary, all debts and legacies have been paid. Under such a state of facts, the question whether recovery should be had by the administratrix or the residuary heirs is but a technicality at best, since a recovery by the administratrix would be for the benefit of the heirs and the result would be the same.
Appellants in their petition suggest that the competency, as a witness, of Charles E. Arnt, the husband of Amy Hutchinson Arnt, was not passed upon in the original opinion. He 17, 18. testified to many things that are irrelevant and immaterial in the light of the law as laid down in the opinion. He kept books for Mrs. Hutchinson and acted as her agent while she was executrix of her husband's will, and acted as her *Page 528
adviser and agent in the management of her own business after her husband's death. There does not seem to be any dispute as to the material facts involving the amount and character of the William B. Hutchinson estate and the personal estate of Mrs. Hutchinson. The statute, which makes parties to the issue and record incompetent as witnesses in cases like the one at bar, provides that the court may in its discretion require such parties to testify, and that the discretion of the court thus exercised may be reviewed by this court. It is only where there is an abuse of discretion that a judgment will be reversed because the court permitted such a witness to testify. Mrs. Hutchinson apparently imposed implicit confidence in the witness. He seems to have kept all of her records and transacted all of her business for her. Since she permitted him, a party in interest, to transact her business for her and keep her records as executrix, rather than intrust those duties to a stranger, she may have made it impossible for an accounting of the property of the estate to be had without recourse to his testimony. Under such circumstances, we see no abuse of discretion in permitting him to testify, nor does it appear that appellants were injured or their rights prejudiced thereby.
Appellants contend that the trial court cast the burden of proving ownership of certain chattels upon appellants, and that this was error. Appellees established, and it is not 19. disputed, that the household furniture and equipment were the property of William B. Hutchinson at the time of his death, and that the widow continued to occupy the home as it was furnished and to use it during her lifetime. Appellants contend that much of the household equipment had become worn out and obsolete and had been replaced. Expenditures for such replacements should be treated as having been made in maintaining the household *Page 529
equipment as a whole, especially as recourse was had to the corpus of the estate for funds for that purpose, and all household equipment should be treated as part of the corpus of the estate of William B. Hutchinson. A distinction should be made in respect to the strictly personal effects of Mrs. Hutchinson. Articles of personal property can be readily allocated to one group or the other. It is unimportant whether particular articles of household equipment were purchased before or after the death of William B. Hutchinson, and therefore appellees were not required to make proof concerning that matter.
Appellants assert that the mandate of this court is so indefinite and uncertain that it cannot be carried out. They stress particularly a note for $1,500, which is part of 20. the assets of the Emma Hutchinson estate, and contend that it was taken as part purchase price for her own property. If the widow held this note, which represented part of her own estate, which she might have disposed of and used for her own support, it was not necessary for her to spend an equal amount out of the corpus of the estate of her husband, and therefore equity will require that this be treated as part of the residue of her husband's estate.
Appellants contend that the mandate should be modified and a new trial ordered, but it appears that there is no substantial controversy as to the facts, and that, under the law as declared, a decree which will terminate the controversy can be readily written. Disputed facts involve unimportant chattels, the value of which is less than the expense of a new trial.
The petitions for rehearing are denied. *Page 530 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031169/ | MANDATE
THE STATE OF TEXAS
TO THE COUNTY COURT AT LAW NO. 8 OF BEXAR COUNTY, GREETINGS:
Before our Court of Appeals for the Fourth District of Texas on June 22, 2016, the cause upon appeal to revise
or reverse your judgment between
The State of Texas, Appellant(s)
V.
Richard Michael Donohoo, Appellee(s)
No. 04-15-00291-CR and Tr. Ct. No. 453259
was determined, and therein our Court of Appeals made its order in these words:
In accordance with this court’s opinion of this date, the part of trial
court’s order suppressing evidence obtained after appellee Richard Michael
Donohoo’s arrest is AFFIRMED. The part of the trial court’s order that
suppresses evidence obtained before Donohoo’s arrest is REVERSED. This
case is REMANDED to the trial court for further proceedings consistent with
this opinion.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth
District of Texas, in this behalf and in all things have the order duly recognized, obeyed, and executed.
Witness the Hon. Sandee Bryan Marion, Chief Justice of the Court of Appeals for the Fourth District of Texas,
with the seal of the Court affixed and the City of San Antonio on August 31, 2016.
KEITH E. HOTTLE, CLERK
____________________________
Cynthia A. Martinez
Deputy Clerk, Ext. 53853 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428378/ | This is the second appeal of this case. See Maddox v. Yocum
(1941), 109 Ind. App. 416, 31 N.E.2d 652. The opinion in the first appeal relates the issues and disposes of alleged error in the overruling of appellant's demurrer to the complaint. The cause was remanded for a new trial which was held and resulted in a verdict for appellee in the sum of $4650.
There is evidence from which the jury could have found the following facts:
In 1933 appellee, Lawrence Yocum, was a distributing agent for the Lincoln Oil Company, and as such agent sold gasoline and oil from a truck to farmers in Marshall County, Indiana. One of his customers was Edward Heyde who owned a farm located at the southeast corner of the intersection of U.S. Highways No. 6 and No. 31. Heyde desired to build a gasoline filling station at the intersection corner but did not want to operate it himself. He therefore agreed orally with appellee that appellee should lease the station for a period of five years and pay as rental one cent per gallon of gasoline sold there. Appellee prepared the plans for the filling station building. Heyde furnished the money for its erection and appellee performed part of the *Page 393
work. Heyde and the Lincoln Oil Company signed a written agreement to the effect that Lincoln products should be sold at the station for five years, and that the Lincoln Oil Company should install certain gasoline pumps and have the right to remove them when the station ceased to sell its products. When the station was ready for business appellee arranged with appellant to operate it for him and agreed that appellant should receive two cents per gallon on all gasoline sold and twenty cents on all oil sold. Appellant proceeded to operate the station under such arrangement and appellee paid the rental of one cent per gallon to Heyde from June 15, 1933, to October 1, 1934, at which time Heyde sold the station property to appellant and notified appellee to pay the rent thereafter to appellant. After October 1, 1934, appellant continued operating the station under his arrangement with appellee and appellee paid him one cent per gallon rental in addition to the two cents per gallon he was to receive for running the station. This continued to the middle of November, 1934, at which time appellant refused to receive any more products from appellee or the Lincoln Oil Company, refused to deliver possession of the station to appellee, and proceeded to operate the business as his own. Appellant has been in exclusive possession of the station since.
Appellant contends that the agreement between Heyde and the Lincoln Oil Company provided for sale of gasoline and oil to Heyde; that it was inconsistent with any oral lease from 1. Heyde to appellee, and that since appellee assisted in procuring the contract he was bound by it and it superseded any oral lease which he may have had.
The contract between Heyde and the Lincoln Oil Company was prepared by taking a form of contract *Page 394
used by the Lincoln Oil Company, and known as a "Reseller's Contract," and striking provisions therefrom and adding provisions thereto. The result was inconsistency and confusion. As finally executed it provides that the Lincoln Oil Company shall be the sole source of supply for petroleum products sold through Heyde's station; that Heyde shall pay all taxes and assessments; that the Lincoln Oil Company shall deliver its products and that Heyde shall purchase, receive and pay for the same at the prevailing prices; that the Lincoln Oil Company shall furnish the pump equipment and have a right to remove it upon termination of the contract; and that in consideration of the premises being used for storing and distributing its products, the Lincoln Company shall pay Heyde one cent per gallon on all gasoline sold there. On the margin of the contract is the following provision:
"It is further understood and agreed between the parties hereto that L. Yocum is furnishing and delivering to first party the petroleum products called for under this contract and the said Yocum is to pay first party the discount and rent as provided herein. Second party shall not be liable for any discount or rent under the contract during the time that the said L. Yocum is furnishing and delivering the petroleum products to said first party."
The meaning of this contract can only be discovered by examining its background. The evidence establishes the fact that the only purpose the parties desired to accomplish was on the part of Heyde to get the Lincoln Company to furnish and install the pumps, and on the part of the Lincoln Company to make certain its right to remove its pumps when its products were no longer sold at the station. Heyde testified that when the contract was prepared he read it and protested that it provided that he was going to sell and distribute petroleum *Page 395
products at the station and that he did not intend to do any such thing. The representatives of the Lincoln Company told him that they were not going to make him sell gas; that they wanted to be sure they could take out their equipment when Lincoln products were not sold there any more; and that this was the only contract form they had. He then signed the contract, but told them he was not going to run the station. He did not run it. Thereafter, until he sold the property, he received monthly the rental from appellee which appellee had agreed to pay under the oral lease. When he sold the station to appellant, Heyde gave appellee a written notice to thereafter pay the rent to appellant and appellant did receive the rent from appellee for a period of six weeks thereafter. When the contract between Heyde and the Lincoln Oil Company is read against the background of these surrounding circumstances it seems clear that it does not in any way conflict with or supersede the oral lease between Heyde and appellee.
Appellant next says that the evidence does not show sufficient performance on the part of appellee to remove his oral lease from the operation of the statute of frauds. We cannot agree 2. with appellant's contention. The possession of appellant under his contract with appellee was the possession of appellee and this possession continued for over a year. During all that time appellee paid the agreed rental. He also planned the station and helped build it. We think the evidence is ample to show sufficient performance on the part of appellee to remove the oral lease from the operation of the statute of frauds. SeeSourbier v. Claman (1936), 101 Ind. App. 679, 200 N.E. 721;Nash v. Berkmeir (1882), 83 Ind. 536; Railsback v. Walke
(1882), 81 Ind. 409. *Page 396
Appellant next contends that appellee, by his answer to certain questions propounded to him on conditional examination before trial, made a judicial admission that the only lease he 3. claimed to have was the contract between Heyde and the Lincoln Oil Company hereinabove referred to. We need not consider the question as to whether an answer to a question propounded in a conditional examination can constitute judicial admission for we are forced to conclude that the answers referred to do not amount to an admission of any kind.
The conditional examination discloses that appellee testified to the facts showing his oral arrangement with Heyde to lease the station, the planning and building of the station, his arrangement with appellant to operate it, its operation, etc., as we have heretofore set forth the facts in this opinion. Appellant's attorney then by a series of questions sought to have appellee give his legal opinion as to whether his rights flowed from his oral arrangement with Heyde or from the written agreement between Heyde and the Lincoln Oil Company. The only thing disclosed by the answers was that appellee is a layman and is confused over legal causes and effects. His legal opinion concerning the subject of the inquiry is of no value whatsoever and could not result in giving to the facts an effect exactly opposite that given them by application of the rules of law.
Appellant complains of the admission and exclusion of certain items of evidence. However, a careful examination of these items and the entire record discloses that they are of such a nature that the items admitted over objection could not possibly have been harmful to appellant, and those excluded could not have been helpful to him had they been admitted. *Page 397
Appellant's final contention concerns the matter of damages. He says that the only evidence of damage is the testimony of appellee that his average monthly net profit from the operation of the station while he was in possession was $93 per month; that this evidence was insufficient to show his actual net profit because appellee made no allowance for his own services; that in any event appellee was not entitled to recover lost profits during the balance of the term of the lease because such future profits were speculative, remote and contingent on extraneous factors; and that appellee had the duty to mitigate damages by seeking another location, which duty he did not discharge.
The rule is well established that future profits, speculative and contingent in their nature, are not to be considered in estimating damages. It is also the rule that the proper 4-7. measure of damages because of deprivation of the use of property is the value of such use. 25 C.J.S., p. 514; 15 Am. Jur., p. 537. This is ordinarily measured by the property's fair rental value. New York Central R. Co. v. Reidenbach
(1919), 71 Ind. App. 390, 125 N.E. 55. However, the law does not exclude profits in determining the value of the loss of the use of property merely because they are profits. They are generally excluded because by their very nature they are usually impossible of ascertainment to any reasonable degree of certainty. But where the reason for the rule of exclusion ceases to exist, the rule does not apply. So, where the loss of the use of property involves a known and established business, the value of such loss of the use of the property may be determined from the loss of profit if such profits can be shown with a reasonable degree of certainty. 15 Am. Jur., pages 556 et seq. and 572 et seq.; 25 C.J.S., p. 516 et seq.; City of Terre Haute *Page 398
v. Hudnut (1887), 112 Ind. 542, 13 N.E. 686; Cleveland, etc.,R. Co. v. Woodbury Glass Co. (1923), 80 Ind. App. 298, 120 N.E. 426.
In the instant case the value of the loss of the use of the involved property would have to be determined from loss of profits or by ascertaining the fair rental value of the 8. property on the market and deducting therefrom the amount of rent which appellee was required to pay under his lease. The property here was a filling station located on the corner of a farm. It was of value as such a business site only because of being at the intersection of two busy United States highways. Its rental value depended entirely upon the business it could attract as a filling station. The rent paid under the lease was a percentage of the business done. The gross profit of appellee was a percentage of the business done. From the gross profit was deducted only the cost of delivering the gasoline and oil in order to arrive at the net profit. This cost of delivery remained in almost constant proportion to the volume of business done. Under these circumstances the profit could be ascertained with as reasonable accuracy as could the loss measured by ascertaining the rental under the lease and the fair rental value of the property on the market and deducting the one from the other. It is true that the loss of use was for a period of more than three and one-half years. But these years had passed when this case was tried. During the time involved the appellant was in possession of the property and in the same business in which appellee had been engaged. Any pertinent change in conditions were within his knowledge and he could have informed the jury concerning them. The situation seems to be one in which it is quite proper to consider *Page 399
the loss of profits in determining the value of the loss of use of the property.
Appellant says that appellee should have deducted some allowance for his own services in arriving at his net profit. That, it seems to us, was a question for the jury to 9. determine. If they concluded that a deduction should have been made, they were in a position to make it.
We cannot agree with appellant's contention that appellee could and should have found a new location and thereby reduced his damage. This is not a case where an established mercantile 10. business could be moved to a new location and continue with limited loss. Appellee's business was dependent upon the peculiar location of this particular filling station.
We find no reversible error in the record.
Judgment affirmed.
NOTE — Reported in 52 N.E.2d 636. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428394/ | Before the State Board of Health, in a proceeding entitled, "In the Matter of the Condemnation of Public School Buildings and Premises in School District No. 1, Greene Township, St. Joseph County," the board, having heard the evidence, found as to the condition of the building and premises the following facts: Site not well drained; no walks leading to schoolhouse or outside privies; foundation and brick walls of school building cracked and crumbling; single roof leaks; window frames and sash in bad condition; seats stationary, old and dilapidated; no cloak room provided; door opens inwardly; schoolroom cross-lighted and light area of schoolroom insufficient. There were other conditions of the buildings and premises which were found to exist, but for the purposes of this opinion it is unnecessary to set them out.
Upon its finding, the board made and caused to be entered upon its records the following decision and order: "The State Board of Health hereby finds that, by reason of the above conditions, said schoolhouse and premises are unfit for use as a school; that the schoolhouse and school premises are insanitary and in an insanitary, unsafe and dangerous condition. * * * Wherefore the State Board of Health * * * hereby condemns said schoolhouse * * * and orders and directs that said schoolhouse * * * shall not be used for school purposes after May 1, 1924, unless and until the above insanitary conditions shall have been remedied."
Seven other proceedings, each similarly entitled, except as to the number of the school district, were heard at the same time, and there was substantially the same *Page 262
decision and order as to each of the seven school buildings as was made in reference to School District No. 1. From these several orders, the township trustee, appellee herein, appealed to the St. Joseph Circuit Court. The appeal was by complaint averring the facts as to the proceedings had before, and the finding and order of, the State Board of Health as to each of the eight schoolhouses; that the order in each instance was contrary to the evidence, and asked that the several orders be set aside. To the complaint, the State Board of Health appeared and filed answer in denial. On a trial in the St. Joseph Superior Court, to which court the venue had been changed, the appeal was sustained, and the eight several orders of the State Board of Health were each set aside. Motion for a new trial on the grounds that the decision is contrary to law and is not sustained by sufficient evidence was overruled, and the ruling of the court is the one error assigned on this appeal.
The important question for our consideration is the right of a township trustee to appeal to the circuit court from an order of the State Board of Health, in a case where the facts are as shown by the record in this cause. It is contended by appellant that the appeal of the trustee to the circuit court is without authority of law.
It is a well-settled principle, conceded by appellant, that there can be no appeal from a ministerial action of an administrative board, unless the right of appeal is 1. specifically given by statute. Cushman v. Hussey
(1918), 187 Ind. 228, 118 N.E. 816. It is provided by § 8122 Burns 1926, that the State Board of Health shall have power "to condemn and abate conditions causative of disease"; and from a decision of the board under that act no appeal was provided; but the 1919 session of the General Assembly enacted a statute (Acts 1919 p. 471, § 8157 Burns 1926) which specifically *Page 263
provides: "That an appeal shall hereafter lie from all decisions of the State Board of Health of Indiana, in any matter involving the * * * changing or condemnation of any school building in the state of Indiana." (Our italics.) Further provisions of the act are as to the procedure, and that the appeal shall be to the circuit court, and that final appeal may be taken to any court of last resort in the state.
Appellant points out that the several orders stipulate that the buildings shall not be used after a certain date "until the above insanitary condition shall have been remedied," and argues 2. that they are orders condemning conditions "causative of disease"; that they are not orders which in any way condemn the buildings; do not come within the act of 1919, supra; and that, therefore, the appeal is unauthorized. It may be as suggested that the order was intended by the board to condemn only such condition in each building as would cause disease. It may be, for example, that the order in reference to the lighting was intended by the board to abate a condition which caused eye trouble among the pupils; but if the orders, as they affect the lighting, are carried out, then, to say nothing as to the other matters, the school building must to some extent be remodeled. We hold that the orders of the State Board of Health as to the schoolhouses referred to are orders which involve the "changing" of the buildings, within the meaning of the act of 1919, supra,
and that the appeal to the circuit court was authorized.
Not only was much evidence submitted to the trial court as to the condition of the school buildings, but, as shown by the record, the judge of the trial court made a personal inspection of the buildings and premises. There is competent evidence to sustain the decision.
Affirmed. *Page 264 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428407/ | This was an action brought by the appellants to cancel and set aside a certain assessment lien, and to quiet title to real estate, freeing it from the effect of said lien, levied by the board of public works of appellee city of Gary against said real estate for the purpose of defraying its proportion of the cost of construction of a certain sewer within said city. The issues consisted of appellants' amended complaint in one paragraph, to which appellee city of Gary filed an answer in two paragraphs, the first being a general denial, the second alleging facts in estoppel. The appellees, George Pontarelli and Citizens National Bank of South Bend, filed a joint answer in two paragraphs, the first being a general denial, the second alleging facts in estoppel. The appellants filed a reply to each of the second paragraphs of answer respectively of the appellees. Upon the issues thus formed, the cause was submitted to the court for trial. Judgment was rendered against appellants; motion for a new trial was overruled. They have appealed to this court, assigning as error the overruling of their motion for a new trial. *Page 39
On the trial of the cause, the facts were stipulated between the parties, or consisted of documentary proof, so there is no conflict in the evidence.
It appears from the record that, on March 16, 1925, the board of public works of the city of Gary passed a declaratory resolution providing for the construction of a district sewer within said city, designated as "district sewer number 47"; this resolution defined the boundary lines of the sewer district; it also set out in separate and distinct paragraphs the beginning, course, distance, size and termini of eight lines of sewer, all of which were connected together, forming a system of sewers within said district; the board of public works did not pass any declaratory resolution for the construction of any of the lines of sewer separately, or creating separate districts to be drained by them, except the one resolution above referred to; after the adoption of the declaratory resolution, all proceedings required by the statute for the final accomplishment of the project, up to the time of the letting of the contract for construction, were complied with; notice was given that the board of public works would and it did receive bids for the construction of said system of sewers as one contract; defendant Pontarelli was the successful bidder, and the construction of the system of sewers was awarded to him as one contract; in his bid, and in the contract entered into with the board of public works, there was set out the number of lineal feet, size, material and price of each kind of sewer pipe, also the number, kind and price of manholes required for the construction of the sewer system; the work was completed according to contract; the assessment roll was adopted. Appellants owned land within the sewer district. The construction work on the system of sewers was commenced within one month after the letting of the contract therefor, continued for about one year, and, during that time, was visible from the lands of the appellants; *Page 40
the board of public works assessed benefits against appellants' land in the sum of $19,170.01; appellants filed a remonstrance against said assessment; this was overruled and appellants appealed to Lake Superior Court Room No. 1, where the assessment was reduced to $13,514.86; appellants did not, within 10 days after the letting of the contract to Pontarelli, or before the actual commencement of the work, bring any proceeding to enjoin the performance of the contract, and never until the bringing of this action questioned the validity of the proceedings; appellants did not sign any agreement waiving irregularities, if any, in the proceedings.
In order to obtain funds with which to prosecute the work under the contract, appellee Pontarelli made loans from his co-appellee, Citizens National Bank of South Bend. For the purpose of securing such loans, he made an assignment of the funds to be received by him under the contract to the bank.
It is the contention of appellants that the board of public works had no authority under the law to provide in one single proceeding for the establishment of a sewer district and for the construction therein of a system of sewers consisting of one main line, and several (in this instance seven) collateral sewers; to let the contract for the construction of all said lines of sewer under one bid, on the whole system as an entirety, without asking for and receiving separate bids on each separate branch thereof; to assess benefits against the property of the appellants for the construction of said sewer system as an entirety, it being an impossibility because of the manner in which the contract was let, to properly allocate the cost of the different branches of the sewer system among the various property owners affected thereby. As supporting their contention the appellants have citedPrevo v. City of Hammond (1917), 186 Ind. 612, 116 N.E. 584, 117 N.E. 642; Southern R. Co. v. City of *Page 41 Huntingburgh (1924), 81 Ind. App. 279, 143 N.E. 294; Bancroft
v. Town of Chesterton (1927), 86 Ind. App. 5, 155 N.E. 624;People v. City of Kingston (1904), 189 N.Y. 66, 81 N.E. 557.
The board of public works of the city of Gary, in the establishment of said sewer district and the construction of the sewer system therein, proceeded under Acts 1905 ch. 129, § 1. 117, p. 302, as amended Acts 1911 p. 419, and Acts 1915 p. 608, being §§ 10566-10569 Burns 1926. Unless said board, in the method pursued by it in accomplishing said improvement, exceeded the authority conferred under the statute, then appellants must fail in this action, since it is a collateral attack upon the proceedings, McEneney v. Town of Sullivan
(1890), 125 Ind. 407, 25 N.E. 540; Martindale v. Town ofRochester (1908), 171 Ind. 250, 86 N.E. 321; Johnson v. Cityof Indianapolis (1910), 174 Ind. 691, 93 N.E. 17; and the stipulated facts show that all necessary steps to acquire jurisdiction in the first instance were fully complied with.
Section 10566 Burns 1926, supra, provides that: "Whenever any sewer or drain shall, from its size and character, be intended and adapted not only for use by owners of abutting property along the line thereof, but is also intended and adapted for receiving sewage from collateral drains already constructed or which may be constructed in the future, then the said board of public works shall cause to be prepared a map which will show thereon the exact course of such proposed sewer, its appurtenances andbranches, if any, (our italics), and which will clearly show by boundary lines the total area or district to be beneficially affected by such sewer and to be assessed for the construction thereof, and shall prepare all necessary profiles, drawings and specifications for such work, which map, profiles, drawings and specifications shall be placed on file in the office of said *Page 42
board." Also that: "On the day named, all persons owning property within said district who shall appear before said board and so desire shall be fully heard, and may introduce evidence on the questions above set forth. The city engineer shall, on or before the day set for such hearing, file with the board his estimate of the total cost of such work, and no contract shall be let under such resolutions which shall exceed said estimate. If the board shall decide after such hearing that the area or district to be drained is properly bounded, that the special benefits to the property within such district or area, and the benefits, if any, to the said city, will be equal to the estimated cost of the improvement as aforesaid, such finding shall be entered of record, and shall be final and conclusive on all parties, and the said resolution shall be confirmed or modified."
Notice was given by publication of the adoption of the resolution ordering the construction of said sewer, as "providedin the case of local sewers," (our italics), describing the general character of the sewer, its termini, and general course, including all branches, the boundary lines of the district or area to be drained thereby, or assessed therefor, also fixing a date when the board would receive and hear remonstrances from persons interested in or affected by the construction of said sewer, and when it would hear and determine the questions whether the district or area was properly bounded for the purpose of such drainage, whether territory should be added to or excluded from said district, also whether the special benefits to be assessed to the lands within the area, and to the city would be equal to the cost of the improvement. Thus appellants were given an opportunity to appear before the board, and be fully heard, including the right to introduce evidence on the questions under consideration. Appellants did not appear at this hearing. After the hearing, the necessary *Page 43
findings were made and the preliminary resolution was confirmed. The statute says that this shall be final and conclusive on all parties.
Whether the sewer system, which it was proposed to construct, was a local or district sewer was a question which, under the statute above quoted, had to be decided in the first 2. instance by the board of public works. "That decision having been made is, as against a collateral attack, final." City of Greensburg v. Zoller (1901),28 Ind. App. 126, 60 N.E. 1008; Johnson v. City of Indianapolis, supra;Daly v. Gubbins (1905), 35 Ind. App. 86, 73 N.E. 833.
The appellants did not see fit to question the validity of the contract entered into by the board of public works with the appellee Pontarelli, within 10 days thereafter, or before 3. the actual commencement of the work. In their complaint, the appellants seek to attack the validity of this contract, alleging that notices were given, bids were received, and the contract was let for all of the branches of sewer comprehended within said system as one job and one contract, that no bid was received upon any one branch of said sewer separately as a separate contract or job. We do not hold that the method pursued in letting the contract in this case was irregular or invalid in any way, but, if it was, appellants are estopped to attack same collaterally in this action. Acts 1905 p. 219, § 118, as amended Acts 1921 p. 324, § 10440 Burns 1926; Anheier v.Fowler (1913), 53 Ind. App. 535, 102 N.E. 108; Griggs v.City of Vincennes (1922), 78 Ind. App. 21, 134 N.E. 503; Peck
v. Wm. M. Birch Co. (1923), 80 Ind. App. 58, 139 N.E. 696.
Section 10568 Burns 1926, supra, sets out specifically and in detail the method to be pursued in making assessments on land for the construction of district sewers. The officials are presumed to have followed the law in *Page 44
making the assessments against appellants' property. There 4. are no facts in the record from which this court would be justified in concluding otherwise. After the sewer system was fully constructed and accepted by the board of public works, a preliminary assessment roll was prepared and notice of hearing on such assessments was given and held. Appellants appeared at this hearing and remonstrated against the assessment on their property with results as heretofore stated.
The estimate for the construction of the sewer, the contract and the assessment roll, contained a detailed statement of the cost per foot, of each size of sewer pipe, the number of 5. feet, also the price per unit of each kind of manhole, and the number of each, so it is reasonable to conclude that the board of public works had the necessary information, from which it could allocate the cost of each portion of said sewer, including main line and branches, among the property owners within the sewer district as provided by the section of the statute above referred to. We are justified in assuming under the stipulated facts that the officers followed the plain provisions of the law and allocated the cost of the construction of said sewer as therein provided. "It is thoroughly settled that on collateral attack irregularities will not make void the proceeding and the contract for the improvement of a street, and this has been extended to the irregularities in what has been termed the acquiring of jurisdiction." Martindale v. Town ofRochester, supra. The same rule has been applied by this court in making assessments for the construction of district sewers.Griggs v. City of Vincennes, supra.
It required about a year to construct this sewer. The work was visible from appellants' property; they stood by during the entire time, with full knowledge that the *Page 45
improvement was being made, that their land was located 6. within the sewer district and would undoubtedly be assessed benefits by reason of said improvement, still they did not see fit to question the validity of the proceeding or the assessment in any manner whatsoever until they brought this action. "`It is a general rule, now fully accepted in this State, that where the owner of property subject to assessment for public improvements stands by and makes no objection to such improvements which benefit his property, he may not deny the authority by which the improvements are made, nor defeat the assessment made against his property for the benefits derived. And this is true, both where the proceeding for the improvement are attacked for irregularity, and where the validity is denied, but color of law exists for the proceedings.'" This rule stands in such high favor with the courts that it has been held to apply where the improvement proceedings were had under an unconstitutional law or a law that had been repealed.Martindale v. Town of Rochester, supra, and many authorities there cited, Phillips v. Kankakee Reclamation Co. (1912),178 Ind. 31, 98 N.E. 804, Ann. Cas. 1915C 56; Wilt v. Bueter
(1916), 186 Ind. 98, 111 N.E. 926, 115 N.E. 49; Woolley v.Indiana Asphalt Pav. Co. (1918), 187 Ind. 575, 120 N.E. 579.
The case of Prevo v. City of Hammond, supra, is not applicable to the facts in this case. There the city was attempting to establish a sewer district upon the north and south sides of the Grand Calumet River with a pumping station to serve both districts. The territories to be drained by the two main sewers and their branches were in no way situated so that the sewers furnished drainage to the entire territory comprehended within the district; the Supreme Court, on rehearing, saying: "The fact that the two districts are separated by a river is not decisive or material. The material thing is that the *Page 46
territory lying south of the pumping station will not be drained through or benefited by any of the sewers to be constructed in the territory lying north of the pumping station, and viceversa. The opinion holds that when two main sewers are to be constructed, which with their tributary sewers will drain two separate and distinct districts of a city, that a separate drainage district must be formed for each, and that the sewers contemplated by the proceeding in each district must be let and constructed under separate contracts so that the cost of the construction of the sewers in each district may be ascertained and kept separate from the cost of sewers to be constructed in the other district, to the end that the lots and parcels of land in each district may be assessed with the cost of the sewers only which drain the district and benefit the lands located therein."
It is also worthy of note that in said case suit was brought before actual construction had commenced. In this case, the board of public works found, and the record shows, that the system of sewers furnishes drainage to the entire district.
In Southern R. Co. v. City of Huntingburgh, supra, this court held that the facts alleged in the complaint submitted for its consideration were sufficient, if proved, to entitle the appellants to relief, but the facts in that case and the present one are so different that it cannot be accepted as determining the rights of the parties here.
In the case of Bancroft v. Town of Chesterton, supra, theaction was instituted before the construction of theimprovement, which contemplated the building of a single filtration plant, pumping station, main outlet sewer, extending outside of the town of Chesterton, and within the corporate limits of the town of Porter, and three district sewers, having no relation to each other, all in one proceeding. The court held that the improvement *Page 47
could not be carried on in this manner. The facts and circumstances are so much at variance with those in the instant case that the opinion of the court there cannot be regarded as having any controlling weight here.
Judgment affirmed.
Curtis, J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247131/ | EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
*1325Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. The parties' cross-motions for summary judgment are pending. For the reasons discussed below, plaintiff's motion is granted, the Commissioner's motion is denied, and the matter is remanded for further proceedings.1
I. Background
Plaintiff filed an application for SSI, alleging that she had been disabled since October 1, 2011. Administrative Record ("AR") at 203-21. Plaintiff's application was denied initially and upon reconsideration. Id. at 124-29, 133-39. On November 18, 2014, a hearing was held before Administrative Law Judge ("ALJ") Mary Gallagher Dilley. Id. at 50-92. Plaintiff appeared, was represented by counsel and plaintiff and a vocational expert ("VE") testified. Id. On June 19, 2015, the ALJ issued a decision finding that plaintiff was not disabled under section 1614(a)(3)(A) of the Act.2 Id. at 12-25. The ALJ made the following specific findings:
1. The claimant has not engaged in substantial gainful activity since September 25, 2012, the application date ( 20 CFR 416.971 et seq. ).
* * *
*13262. The claimant has the following severe impairments: chronic pain syndrome on narcotic therapy; depression; and anxiety disorder ( 20 CFR 416.920(c) ).
* * *
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.416.920(d), 416.925 and 416.926).
* * *
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b), i.e., lift/carry twenty pounds occasionally and ten pounds frequently, stand/walk for six out of eight hours, and sit for six out of eight hours, except the claimant should avoid concentrated exposure to hazards and not climb ladders, ropes, or scaffolds. She is able to perform work that is simple and routine with no public contact.
* * *
5. The claimant is unable to perform any past relevant work ( 20 CFR 416.965 ).
* * *
6. The claimant was born [in] 1981 and was 30 years old, which is defined as a younger individual age 18-49, on the date the application was filed ( 20 CFR 416.963 ).
7. The claimant has at least a high school education and is able to communicate in English ( 20 CFR 416.964 ).
8. Transferability of job skills is not material to the determination of disability because using the Medical-Vocation Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2 ).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform ( 20 CFR 416.969 and 416.969(a) ).
* * *
10. The claimant has not been under a disability, as defined by the Social Security Act, since September 25, 2012, the date the application was filed ( 20 CFR 416.920(g) ).
Id. at 14-25.
Plaintiff's request for Appeals Council review was denied on December 1, 2016, leaving the ALJ's decision as the final decision of the Commissioner. Id. at 1-6.
II. Legal Standards
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin. , 223 F.3d 968, 973 (9th Cir. 2000) ; Morgan v. Comm'r of the Soc. Sec. Admin. , 169 F.3d 595, 599 (9th Cir. 1999) ; Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler , 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater , 94 F.3d 520, 521 (9th Cir. 1996). " 'It means such evidence as a reasonable mind might accept as adequate *1327to support a conclusion.' " Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. N.L.R.B. , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari , 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002).
III. Analysis
Plaintiff argues that the ALJ erred (1) by failing to find that Lyme disease was a severe impairment, (2) weighing the medical opinion evidence, (3) by finding plaintiff's statements regarding the severity of her symptoms not credible, (4) and rejecting lay testimony absent sufficient reasons. ECF No. 20-1 at 39-61. As explained below, the court finds that the ALJ erred in finding that plaintiff's Lyme disease was not a severe impairment. The error was not harmless, requiring the matter be remanded for further proceedings.3
A. Relevant Legal Standards
"The step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater , 80 F.3d 1273, 1290 (9th Cir. 1996). The purpose is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education, and experience were not taken into account. Bowen v. Yuckert , 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). At step-two the claimant has the burden of providing medical evidence of signs, symptoms, and laboratory findings that show that his or her impairments are severe and are expected to last for a continuous period of twelve months. Ukolov v. Barnhart , 420 F.3d 1002, 1004-05 (9th Cir.2005) ; see also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). A severe impairment is one that "significantly limits" a claimant's "physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). "An impairment is not severe if it is merely 'a slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.' " Webb v. Barnhart , 433 F.3d 683, 686 (9th Cir. 2005) (quoting Social Security Ruling ("SSR") 96-3p).
When the ALJ determines that a claimant has at least one severe impairment, he must consider all impairments, including non-severe impairments, at all subsequent steps of the sequential evaluation. Smolen , 80 F.3d at 1290 ; see also Burch v. Barnhart , 400 F.3d 676, 682-82 (9th Cir. 2005) (ALJ's failure to find claimant's obesity severe at step two was harmless error where it was considered in determining claimant's RFC).
B. Background
From January to November 2012, plaintiff received treatment from Dr. Raphael Stricker, a hematologist in San Francisco, California. AR 55, 607. Plaintiff reported that she was bit by a tick at age 9, which resulted in a rash, mood swings, and fatigue. Id. at 606. Her symptoms initially improved with medication, but she subsequently experienced burning muscle pain, headaches, stiff neck, blurred vision, tinnitus, cognitive issues, nausea, and shortness *1328of breath. Id. She reported that in 2008, she experienced swelling in her knee, joint pain, and muscle aches. Id. Dr. Stricker's examined plaintiff in January 2012, which showed pain in plaintiff's knees, wrists, ankles, and shoulder on range of motion. Id. at 607. Dr. Stricker order significant lab work and serologic testing, which included Western blot tests.4 AR 465-88, 499-513. Plaintiff tested positive on the IgM Western blot test, but negative on the IgG Western blot test. Id. at 465-66. Serologic testing also reflected that plaintiff was positive for Babesia.5 Id. at 468. Based on his examination of plaintiff and the results of blood tests, Dr. Stricker diagnosed plaintiff with chronic Lyme disease ; Babesia positive; chronic fatigue syndrome ; and fibromyalgia. Id. at 606-609. Dr. Stricker prescribed long-term antibiotic treatment with Amoxicillin for plaintiff's Lyme disease.6
Plaintiff subsequently was seen by Dr. John Bakos. Dr. Bakos treated plaintiff for chronic pain, including back, neck, joint, and "overall body" pain. Id. at 536-52, 561-66. In addition to chronic pain syndrome, Dr. Bakos diagnosed plaintiff with migraines, insomnia, bipolar disorder, panic disorder, and Lyme disease. Id. at 532, 550, 552.
After the administrative hearing, the ALJ served interrogatories on Dr. Don Clark, a non-examining physician who reviewed plaintiff's medical records. AR 623-634. Dr. Clark noted that plaintiff had been diagnosed with chronic Lyme disease, among other things, but stated that he personally could not make the same diagnosis. Id. at 627. He provided the following explanation as to why he was unable to diagnose Lyme disease :
[Plaintiff] did report a history of tick bite, and one doctor reports a history ECM, a migratory skin rash associated with Lyme disease. None of the physical examinations report synovitis of the joints which is characteristic of chronic Lyme disease. A recent study shows that chronic fatigue occurs in only about 3% of chronic Lyme disease patients. Antibiotic treatment does not seem to have changed symptoms. I am unable to make the diagnosis of Lyme disease. The electrocardiogram (2F) is normal and I don't find any cardiac complications of Lyme disease. Caveat on all Lyme lab work says diagnosis should not be made on lab results alone.
Id.
At step-two the ALJ determined that plaintiff's severe impairments included chronic pain syndrome on narcotic therapy; depression; and anxiety. AR 14. She noted that plaintiff's treatment records show a "history of Lyme disease," but concluded that the impairment, as well as other impairments, "caused only transient and mild symptoms and limitations," were well controlled, persisted for less than a year, or were otherwise not adequately supported by medical evidence. Id. Specific to plaintiff's history of Lyme disease, the ALJ stated that "later records do not confirm [Lyme disease,] so [it is] not currently medically determinable from the record." Id.
The ALJ further addressed evidence of Lyme disease in her step-four finding in *1329relation to weighing the medical opinion evidence. She determined that the treating opinions of Dr. Bakos and Dr. Stricker deserve less weight than Dr. Clark's opinion because their opinions are inconsistent with the entire medical record. Id. at 21. The ALJ noted that Dr. Clark is Board Certified in Internal Medicine and is qualified to render a medical opinion on plaintiff's impairments, including Lyme disease. Id. She also repeated Dr. Clark's findings that there was no evidence of cardiac complications from Lyme disease or synovitis of the joint, and that lab results alone could not support a diagnosis of Lyme disease. Id. at 20. The ALJ then provided the following discussion regarding Dr. Stricker's diagnosis:
While Dr. Clark found that antibiotics did not seem to change her symptoms, it was noted that she was post Lyme disease, which indicates resolution but it is not clear to what this resolution should be credited. Nonetheless, Dr. Clark was unable to make a diagnosis of Lyme disease for these reasons. This weakens Dr. Stricker's diagnosis based solely on lab results. Although treatment with antibiotics is consistent with Lyme disease, there are minimal records from Dr. Stricker and they indicate improvement by July 2013 [sic].7
Id.
The ALJ also relied on her finding that Lyme disease was not a medical determinable impairment to discount Dr. Bakos's treating opinion.8 Id. at 23. Specifically, she found that "physical examinations were generally benign and do not support the extreme limitations found by Dr. Bakos....In fact, treatment notes indicated Lyme disease was resolved...by July 2014." Id. at 24.
C. Discussion
Plaintiff argues that the ALJ erred in finding that Lyme disease was not a severe impairment. ECF No. 20-1 at 39. First, she argues that the ALJ improperly rejected Dr. Stricker's diagnosis, which was supported by objective medical evidence establishing Lyme disease as a medical determinable impairment. Id. at 40-41. She further contends that the ALJ erred in adopting Dr. Clark's opinion that Lyme disease could not be diagnosed. Id. at 41-42. Lastly, she argues that the ALJ erroneously determined that plaintiff's Lyme disease had resolved based on a misunderstanding of relevant terminology. Id. at 41.
To qualify for disability benefits, a claimant must establish an inability to engage in substantial gainful activity "by reason of any medically determinable physical or mental impairment...." 42 U.S.C. § 423(d)(1)(A). The existence of a medically determinable impairment "must be established by medical evidence consisting of signs, symptoms, and laboratory findings...." Ukolov v. Barnhart , 420 F.3d 1002, 1005 (9th Cir. 2005) (quoting SSR 96-4p). This requires the record to contain "the results of medically acceptable clinical diagnostic techniques." Id.
Here, there is objective medical evidence, derived from medically acceptable diagnostic techniques, establishing plaintiff's diagnosis of Lyme disease. As noted above, plaintiff tested positive on the IgM Western blot test, a test used to help *1330confirm Lyme disease. That test result constitutes objective medical evidence supporting Dr. Stricker's diagnosis of Lyme disease. See Moores v. Colvin , 173 F.Supp.3d 989, 997 (E.D. Cal. 2016) (Brennan, E.) (citing Morgan v. Colvin , 2013 WL 6074119 (D. Or. Nov. 13, 2013) (concluding that positive blood test for Lyme disease provided an objective basis for physician's opinion that plaintiff was functionally limited due to aches and pains caused by Lyme disease ). Moreover, the fact that the test result may not definitively establish the diagnosis of Lyme disease (as suggested by Dr. Clark) does not negate Dr. Stricker's opinion. "[A] positive blood test is not required to diagnose Lyme disease ; the existence of signs and symptoms are adequate." Morgan , 2013 WL 6074119 at *11. Plaintiff was under Dr. Stricker's care for nearly a year. He personally examined plaintiff, prescribed her long-term antibiotic treatment, and monitored her progress and symptoms. Dr. Stricker was able to personally observe plaintiff's symptoms, which included pain and fatigue, as well as the results of blood testing. Accordingly, the record shows that Dr. Stricker's diagnosis was supported by objective evidence through medically acceptable diagnostic techniques.
Plaintiff further argues that the ALJ erred in adopting the opinion of Dr. Clark over the opinion provided by Dr. Stricker. ECF No. 20-1 at 41-43. She contends that there are differences of opinion in the medical community as to the proper methods and considerations for diagnosing Lyme disease, and that the ALJ impermissibly selected Dr. Clark's view on diagnosing Lyme disease over the view of Dr. Stricker. Id. at 42-43.
In social security cases, more weight is given to the opinion of a treating physician, who has a greater opportunity to know and observe the patient as an individual. Lester v. Chater , 81 F.3d 821, 834 (9th Cir. 1995) ; Smolen v. Chater , 80 F.3d 1273, 1285 (9th Cir. 1996). If the treating physician's opinion is contradicted by another doctor, the treating opinion may only be rejected for "specific and legitimate" reasons that are supported by substantial evidence. Lester , 81 F.3d at 830. However, "[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of...a treating physician." Id. at 831.
Because Dr. Stricker was plaintiff's treating physician, his opinion as to plaintiff's impairments was entitled to greater weight than the opinion of Dr. Clark. The ALJ, however, failed to accord such weight to Dr. Stricker's opinion, instead adopting Dr. Clark's completing opinion to support her finding that plaintiff's Lyme disease was not a medically determinable impairment. In doing so, the ALJ erred as Dr. Clark's non-examining opinion does not constitute substantial evidence justifying the rejection of Dr. Stricker's opinion. Id. ; Cf Orn v. Astrue , 495 F.3d 625, 632 (9th Cir. 2007) ("When an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not 'substantial evidence.' "
In addition to ignoring Dr. Stricker's status as a treating physician, the ALJ also failed to consider that Dr. Stricker's training rendered him more qualified to assess plaintiff's impairment. The ALJ explicitly noted that Dr. Clark was a board certified internist and qualified to render an opinion, but failed to acknowledge that Dr. Stricker is a hematologist. Aside from his status as a treating physician, Dr. Stricker's specialty entitles his opinion to greater weight. Smolen , 80 F.3d at 1285 ("[T]he opinions of a specialist about medical issues related to his or her specialization *1331are given more weight than the opinion of a non specialist.").9
Lastly, plaintiff argues that the ALJ's conclusion that her Lyme disease did not cause functional limitations is based on an erroneous finding that her Lyme disease had resolved by July 2014. ECF No. 20-1 at 43-44. Plaintiff claims that the ALJ's finding that her Lyme disease had resolved is due to misinterpretation of a treatment note's reference to "post Lyme disease." Id. Plaintiff contends that statement "post Lyme disease" does not establish that her symptoms have resolve. Rather, she contends that it is shorthand for "post Lyme disease syndrome," which is used to refer to patients that continue to experience symptoms after completing treatment for Lyme disease.
In her decision, the ALJ found that by July 2014, plaintiff was considered "post lyme disease." AR 19. The treatment note referenced by the ALJ provides that plaintiff's medical conditions include chronic pain, anxiety, "post Lyme disease," and 7 months pregnant. AR 561. The ALJ interpreted the statement to mean that plaintiff either no longer had Lyme disease or no longer had any symptoms. See id. at 20 (evidence of record "suggesting resolved Lyme disease" ("it was noted that she was post Lyme disease, which indicates resolution...."), 21 ("treatment notes are limited and indicated the claimant's Lyme disease resolved).
Although the ALJ's interpretation of phrase "post Lyme disease" superficially appears reasonable, other evidence contradicts the ALJ's reading of the treatment note. According to the Center for Disease Control, physicians describe patients who have non-specific symptoms-including fatigue, pain, and joint and muscle aches-after treatment as having "post treatment Lyme disease syndrome" or "post Lyme disease syndrome."10 With that knowledge in mind, the appropriate interpretation of the July 2014 treatment note is that plaintiff was diagnosed with post Lyme disease syndrome. This is especially true considering plaintiff's symptoms, which included fatigue, muscle weakness, and muscle and joint pain. See AR 541-42 (severe fatigue, no energy, joint pain); 545-47 (back, neck, and joint pain); 549-50 (fatigue, muscle weakness, and back, neck, and joint pain). Such symptoms are consistent with post Lyme disease syndrome.
More significantly, the ALJ's interpretation is not plausible in light of other medical records. The July 2014 treatment record noting "post lyme disease" is from Dr. Bakos. Id. at 561. The following month, Dr. Bakos completed a Medical Source Statement, which reflects a diagnosis of Lyme disease as well as significant limitations resulting from the disease. Id. at 532-35. It cannot reasonably be concluded that Dr. Bakos found that plaintiff's Lyme disease was resolved in July, but resulted in debilitating impairments the following month.
Accordingly, the ALJ's finding that plaintiff's Lyme disease was resolved, and thus not a severe impairment, is not supported by substantial evidence. Moreover, the ALJ's error is not harmless. In assessing the medical opinion evidence, the ALJ concluded that Dr. Bakos and Dr. *1332Stricker's opinions deserved less weight than Dr. Clark's because their opinions are not consistent with the entire medical record. AR 21. But to support that finding, the ALJ consistently noted that plaintiff's Lyme disease had resolved and medical records reflected "normal to mild sings on physical examination." Id. at 20. As just discussed, substantial evidence does not support the ALJ finding and plaintiff's Lyme disease resolved and medical records reflect severe symptoms consistent with Lyme disease. See, e.g., id. at 541-42; 545-47; 549-50; 570; 575; 582.; see also Morgan , 2013 WL 6074119 at *6 n.6 ("Lyme disease can cause long-term symptoms such as loss of muscle tone on one or both sides of the face, severe headaches and neck stiffness due to meningitis, shooting pains, heart palpitations and dizziness, pain that moves from joint to joint, numbness and tingling in the hands or feet with concentration or short term memory.")
In assessing plaintiff's ability to work, the ALJ was required to consider all impairments. Smolen , 80 F.3d at 1290. The ALJ failed to adequately consider the impact of plaintiff's Lyme disease on plaintiff's ability to work. Accordingly, remand is appropriate to allow the ALJ to consider impact plaintiff's Lyme disease has on her ability to work. See Dominguez v. Colvin , 808 F.3d 403, 407 (9th Cir. 2015) ("A district court may reverse the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing, but the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.") (internal quotes and citations omitted).
IV. Conclusion
Accordingly, it is hereby ORDERED that:
1. Plaintiff's request for oral argument on the cross-motions for summary judgment is denied;
2. Plaintiff's motion for summary judgment is granted;
3. The Commissioner's cross-motion for summary judgment is denied;
4. The matter is remanded for further administrative proceedings consistent with this order; and
5. The Clerk is directed to enter judgment in plaintiff's favor and close the case.
Plaintiff filed a request for the court to hold a hearing on the cross-motions for summary judgment. ECF No. 23. The court finds that oral argument would not be of material assistance to resolution of the pending motions, and therefore plaintiff's request for a hearing is denied.
Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income ("SSI") is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment." 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert , 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.
Lester v. Chater , 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert , 482 U.S. at 146 n.5, 107 S.Ct. 2287. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
As the matter must be remanded on this basis, the court declines to address plaintiff's additional arguments.
The Western blot test is a lab test that identifies antibodies to the bacteria to help confirm a diagnosis of Lyme disease. See Mayo Clinic, Lyme Disease Diagnosis & Treatment, https://www.mayoclinic. org/diseases-conditions/lyme-disease/diagnosis-treatment/drc-20374655
Babesia are parasites typically spread through tick bites. Center for Disease Control, Parasites-Babesiois, CDC, https://www.cdc.gov/parasites/babesiosis /epi.html.
Dr. Stricker also prescribed Biaxin, but plaintiff's insurance denied coverage. AR 609.
Throughout her decision, the ALJ cites to a July 2014 treatment note to support her contention that plaintiff's Lyme disease resolved. See AR 19, 20, 23. The court therefore presumes the ALJ intended to state that plaintiff's Lyme disease improved by "2014," not "2013."
Dr. Bakos assessed limitations significantly more limiting than those contained in the ALJ's RFC determination. Compare AR 16 with AR 532-35.
Not only is Dr. Stricker a hematologist, but he is a Lyme disease expert. See also Morgan , 2013 WL 6074119 at *10 ("[P]laintiff sought treatment with Dr. Stricker, a Lyme disease specialist."); Fallstead v. Astrue , 2013 WL 5426223, *1 (N.D. Cal. Sept. 27, 2013) ("Rafael B. Stricker, M.D., [is] a Lyme disease expert."). Although his expertise in Lyme disease is not apparent from the record, and therefore the ALJ may have been unaware of this fact, the record does establish that he practices hematology. AR 55.
Center for Disease Control and Prevention, Post-Treatment Lyme Disease Syndrome, https://www.cdc.gov/lyme/postlds/index.html | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4058715/ | JUDGMENT
Court of Appeals
First District of Texas
NO. 01-14-00589-CV
ROSEMARY THOMPSON AND TIMOTHY E. THOMPSON, Appellants
V.
HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR ACE
SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2004-HE3 ASSET
BACKED PASS-THROUGH CERTIFICATES, Appellee
Appeal from the 80th District Court of Harris County. (Tr. Ct. No. 2013-14050).
This case is an appeal from the final judgment signed by the trial court on June 12,
2014. 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 the appellants, Rosemary Thompson and Timothy E.
Thompson, jointly and severally, pay all appellate costs.
The Court orders that this decision be certified below for observance.
Judgment rendered June 30, 2015.
Panel consists of Justices Jennings, Bland, and Brown. Opinion delivered by Justice
Jennings. | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486831/ | This is an appeal from a judgment rendered against the appellant in favor of the appellee for injuries sustained by J. Herbert Ambrose, the husband of the equitable plaintiff, which resulted in his death, and which it is alleged were caused by the negligence and want of care on the part of the defendant (appellant) in operating an automobile. Mr. Ambrose was riding on the back seat of a motorcycle, owned and operated by Clarence Frey, which it is alleged in the narr, collided with and was struck by an automobile being driven by the defendant. The accident occurred on the 22nd day of August, 1914, and Mr. Ambrose died on May 22d 1915.
At the beginning of the trial below it was "stipulated and agreed that the death of J. Herbert Ambrose resulted from sarcoma, leaving the cause of the sarcoma open for determination under the evidence in this case." The appellee claims that it was the result of the injury, while the appellant contends: First, that there was no legally sufficient evidence of any negligent act or omission by her causing the accident; and second, that there was not sufficient legal evidence *Page 420
from which a jury could have properly found that the injury caused sarcoma.
There are seven bills of exception relating to the admissibility of evidence, and an eighth which presents the rulings on the prayers. The plaintiff offered two prayers, which were granted, and the defendant offered twenty; the ninth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, sevententh and eighteenth of which were granted, and the others rejected. The defendant also filed special exceptions to the granting of the plaintiff's first prayer, which were overruled. The first exception was to allowing a hypothetical question to be asked and answered by Dr. John S. Manger, and the second was to overruling a motion to strike out his answer to that question. The question was as follows: "Now, then, it has been testified that J. Herbert Ambrose, prior to August 22, 1914, was a young man of apparently good health and physical condition and apparently had no trouble with his left leg; that in a collision that occurred on that day between an automobile and a motorcycle, upon which he was riding, he was hurled with great force either against the automobile or upon the ground, and badly jarred and shaken up and bruised upon the left knee; that he was confined to his house for several days, and then resumed work; that shortly thereafter he began to experience trouble with his left leg which caused him to limp; that the condition of his leg gradually grew worse and the leg began to swell between the knee and the thigh; in the latter part of November, 1914, the leg was opened and it was discovered that he was suffering from osteoid sarcoma. Assuming all these facts to be correct, will you state what, in your opinion, was the cause of the osteoid sarcoma?"
The answer was: "It was due to traumatism." Without deeming it necessary to discuss separately the ruling in the first exception, we are forced to the conclusion that there was error in not striking out the answer to the hypothetical question. Dr. Manger had testified in chief that sometime prior to Christmas of 1914, J. Herbert Ambrose called at his office *Page 421
and asked him to examine his leg — stating that he had been injured. Two or three weeks after he first examined him he had him taken to the hospital, where an exploratory incision was made and his leg opened up for examination. He was present when the leg was opened and he described the conditions that were found, and said that "there was a culture made of it and the growth was found to be malignant." He further testified that: "The diagnosis, when I first seen it, was a probably simple periostitis. We mean by that an inflammation of the tissues surrounding the bone, the periosteum, the covering, and we sometimes have that with an ordinary injury, a blow or anything of that kind. After the leg was opened up, and the culture made, it was determined to be a form of sarcoma. There is a difference in sarcomas; some of them we do not know where they come from. They are malignant growths that appear at certain ages and places. Susceptibility probably has something to do with it, and there is another kind called osteoid cancer, which is a cancer produced by a blow or an injury more frequently than any other way. There are a few cases where they can come without an injury, but these are the ones that develop the most rapidly. In this case I diagnosed it as osteoid cancer. * * * Osteoid sarcoma is a malignant growth which develops very rapidly — one of the most rapid developments we have where there is an injury received."
He also said: "Traumatism is an injury — the coming together of the limb or bone with anything, any hard substance — rock, iron, stone or anything. It was due to the injury. Sarcoma is more progressive when produced by an injury. It is very much more rapid." Then on cross-examination he said: "Sarcoma is perfectly painless at times. There is no way to determine its presence until the swelling begins. It varies in rapidity of growth with the conditions and the persons, developing slowly sometimes and rapidly sometimes. In the same person it may start slowly and then develop rapidly. We cannot tell by examination when *Page 422
the sarcoma really began." In his cross-examination the following also appears: "Q. Now, the ordinary history of sarcoma of the great — the vast majority of the cases of sarcoma, has no reference to any traumatism at all, has it? A. No. * * * Sarcoma is occasionally associated with an accident, in my mind. The cause of sarcoma is not definitely known. It is caused by an injury at times. We know that, but other conditions we do not know. Accident does not always cause sarcoma. Q. The form of sarcoma that Mr. Ambrose died from could have developed in a purely natural manner — that is, without the connection of any traumatism or injury, could it not? I do not mean in this case, but just taking another case, that type of sarcoma could have developed without any accident at all? A. Oh, yes, yes. It would not have had as rapid a termination, of course. When you asked me the question, I was bound to say they are not all due to traumatism, not all caused by injury; but as I say, they can come without any injury at all to any parts of the body, the legs, arms, mouth, anywhere. Q. (Mr. Poe): But you say they would not have had such a rapid termination as in this case? A. No, not usually. The rapidity of the growth of sarcoma, even where it comes without traumatism varies, and varies in the same patient sometimes. As with every disease, it may start slowly, and later become rapid. Time does not play an important part, except where there is an injury, and then the time is very much less. Q. Doctor, in order to assume that a previous traumatism has any bearing on the development of a sarcoma, I would have to state to you the time when the traumatism occurred, or the accident occurred, the place where the accident occurred, and the extent of the injury, would I not? A. Yes. Q. So in order for you to, especially in this class of sarcoma of the periosteum, say, you would have to know the injury to the periosteum in order to decide whether that sarcoma had anything to do with the accident, would you not? A. Yes. Age is a great factor there. * * * There must be an *Page 423
injury to the particular tissue in which the sarcoma develops. Q. That is, in order for the sarcoma to develop in the periosteum, the covering surrounding the bone, there must be an injury to that periosteum, or an injury to the bone? A. Yes, sir. Q. The injury must not only be to the covering surrounding the bone, but it must be right at the place where the sarcoma develops? A. Yes, sir. The sarcoma developed in probably the middle third of the thigh, right along the outside. I would not attempt to connect up an injury to the knee with a sarcoma in the middle third of the thigh. Of course, there are ligaments attached to the knee joint, with the possibility of the injury extending up here (indicating the thigh), but in this particular case I know the sarcoma developed right at that particular place."
Then after repeating the hypothetical question, and his answer, counsel for the defendant inquired of the doctor as follows: "Now, what particular fact in that question serves as the basis for your opinion of traumatism? A. The most particular fact which stands out there is the short duration by which it caused his death. Q. You had never treated this young man before he came to you at this time? A. No, sir. Q. To determine the duration, you, of course, took his statement as to the period of time? A. Yes, I do not know whether he said a week or two prior to that; I do not know now what time he left from the time he was injured until he consulted me in regard to his injury. Q. That is the salient fact in that question, then, which enables you to say the sarcoma was due to traumatism? A. Yes, sir; he said the injury was right there (indicating the thigh)."
The further testimony of the doctor shows clearly that he understood the accident had occurred a week or two before Ambrose called on him, and he was asked the question: "Now, if time was essential in making and drawing the conclusion that the sarcoma resulted from an accident, any mistake as to the length of that time would, of course, affect your conclusions, would it not? A. Yes, sir. Q. In other *Page 424
words, if the young man, instead of coming to you a week after the accident, came three or four months after the accident, it would make a big difference in your opinion, would it not? A. Undoubtedly, yes; it depends upon the severity of the injury. Q. So the answer you gave to Mr. Poe's hypothetical question was also based upon your assumption that at the time you saw him he had been injured about a week before? A. About a week or ten days; yes, sir. I had no history of any previous injury. He did not give me that. People are confined to bed many times for three or four days without having sarcoma. Q. Would it be possible for you to examine a man suffering from sarcoma, without any history of the case, and to determine from the condition of his bone and the cells what caused that sarcoma? A. No, sir . Q. It would not? A. No, sir. Q. So without a history you could not say whether traumatism had anything to do with it? A. We customarily ask them, Have you been injured? Q. That is necessary in order to determine whether traumatism has anything to do with it? A. Yes, it helps us in our diagnosis, and it has a bearing on the case."
It is manifest then that Dr. Manger was mistaken as to the facts and answered as he did because of that mistake, and he relied on what he assumed to be facts, which were not in the question. Although the hypothetical question assumed that the accident occurred on August 22d 1914, the doctor for some reason misunderstood or overlooked that, and said it would make a "big difference" in his opinion if Ambrose went to him three or four months, instead of a week, after the accident. The accident was in point of fact on the 22nd of August, instead of in November. Moreover, his cross-examination shows that he based his opinion on what he said Ambrose told him as to when and where the injury was, instead of upon what was in the question.
There is apparently some confusion in the Record, as according to it, after the Court had overruled the motion to strike out the testimony of Dr. Manger, given in answer to *Page 425
the hypothetical question, other testimony was given by him and then the Court asked if counsel desired to argue the motion. The attorney for the defendant replied that he did. The jury then retired and there was an argument on the motion. What happened is thus shown by a certificate of the judge: "It is stipulated by counsel, and here certified to by the Court, that after motion was duly made to strike out the testimony of Dr. Manger in answer to the hypothetical question propounded by the plaintiff's counsel, the Court reiterated its refusal to strike out its said answer, but, during the absence of the jury counsel for plaintiff agreed that the aforesaid answer of Dr. Manger should be stricken out, whereupon the Court said: `Then I will strike out the answer of Dr. Manger to the hypothetical question.' That the aforesaid statement of the Court was made in the absence of the jury, and through inadvertence, was not communicated to the jury upon their return to the Court room, nor at any other time. It is further certified that counsel for neither plaintiff nor defendant mentioned in the argument the aforesaid answer of Dr. Manger, and that each treated the answer as having been eliminated, and the fact that its elimination had not been communicated to the jury by the Court did not occur to either counsel until the jury had rendered its verdict."
It is contended on the part of the appellee that under the circumstances the first and second bills of exception are not properly before the Court for determination, as the appellant is estopped from raising any question about the hypothetical question. When evidence which has been improperly admitted is afterwards stricken out by the Court, the well established rule is that in order to correct the error the jury should be clearly informed that it has been stricken out, and many of the authorities hold that the jury must be specially instructed not to consider the testimony so stricken out. See Washington GasLight Co. v. Lansden, 172 U.S. 534; Raisler v. Benjamin,
118 N.Y. Supp. 223; Groh's Sons v. Groh, *Page 426 177 N.Y. 8, S.C. 68 N.E. 992; Allen v. Boston El. Ry. Co.,212 Mass. 191, S.C. 98 N.E. 618; Southern Ry. v. Simmons,105 Va. 651, S.C. 55 S.E. 459. Numerous other cases could be cited, but the subject is fully discussed and many authorities cited in 38 Cyc. 1440, etc. It is there said: "The general rule is that, if evidence erroneously admitted during the progress of a trial be distinctly withdrawn by the Court, the error is cured, except in extreme instances where it is manifest that the prejudicial effect of the evidence on the jury remained despite its exclusion and influenced their verdict. On the other hand, it is held in some cases that error in admitting improper evidence is not cured by striking out, unless it appears that such evidence did not affect the verdict. In order to effect a cure the withdrawal must be as broad as the admission, and the charge must be sufficiently definite to clearly identify the portion to be withdrawn, and so explicit and unequivocal as to preclude the inference that the jury may have been influenced thereby. Moreover, the withdrawal must be by act of Court and not of counsel; it may be made of the Court's own motion, or at the request of a party." Again on page 1441 it is said: "The general rule is that, if inadmissible evidence has been received during a trial, the error of its admission is cured by its subsequent withdrawal before the trial closes, and by an instruction to the jury to disregard it, or even by an instruction to disregard without more, the view being taken that such an instruction is equivalent to striking the improper evidence out of the case." See also 2 Ency. of Pl. andPr. 560, to the same effect.
In Boone v. Purnell, 28 Md. 607, evidence objected to was ruled admissible by the Court, and afterwards withdrawn with the consent of the Court by the party offering it. It was held that "it being withdrawn and the jury directed not to consider it inmaking up their verdict (italics ours), we can not see that any harm resulted to the appellants, or any error was committed requiring the intervention of this Court in *Page 427
their behalf." See also Prov. Life Ins. Co. v. Martin,32 Md. 310, which approved Boone v. Purnell. After a most diligent search we have been unable to find any case which held that the error was cured under such circumstances as we have before us. The evidence was very important, as the other two physicians who testified differed in their views of sarcoma, and inasmuch as Dr. Manger testified that the sarcoma was due to traumatism it may have had great effect on the jury — especially as he had attended Ambrose. While the certificate of the Judge shows that neither attorney mentioned it in the argument, the fact that the answer had been stricken out was not communicated to the jury. As the Court had admitted the evidence over the objection of the defendant and it was still before the jury, without any knowledge on their part that there was any question about its competency, it was not only the right but the duty of the jury to consider it. While the certificate of the Judge does not refer to the other testimony of Dr. Manger, or show how much it was relied on in argument, a considerable part of it was material, relevant, and unobjectionable, and presumably some of it was referred to in the course of the argument. That would naturally suggest this most important item of evidence, even if not referred to. We are, then, of the opinion that the error in refusing to strike out the answer to the hypothetical question asked Dr. Manger was not cured by what was done out of the presence of the jury, and we can not say it was harmless. We have not thought it necessary to further discuss the form of the question — as to whether it trespassed upon the province of the jury, etc., — as what was brought out on cross-examination showed clearly that it should have been stricken out.
The third exception is not pressed, as we understand, and we see no objection to the question and answer contained in it. The fourth, fifth, sixth and seventh relate to a hypothetical question asked Dr. Fisher. The facts stated in it were for the most part similar to those in the one asked Dr. Manger *Page 428
with some additional ones. It stated that Ambrose "received numerous bruises on his body, and that two small bruises appeared four or five inches above the left knee"; that "the leg was opened up about midway between the knee and the hip and it was discovered that he was suffering at that locality from osteoid sarcoma of a malignant type. He died May 22, 1915, after an amputation of the leg at the thigh in the latter part of November, 1914, or the early part of December." The question was: "Assuming all these facts to be correct, state whether or not in your opinion, the injury from the collision was the predisposing cause for the development of the sarcoma." The question was objected to and the objection overruled as shown by the fourth bill of exceptions. Counsel for the defendant said: "I would like Mr. Poe to ask the doctor whether he had given him sufficient facts in that question from which he can answer it with a reasonable degree of certainty." The witness answered: "Yes, I think that is enough information. I should say that if the growth developed in the region in which the injury had occurred, that the injury would have to be considered as the predisposing cause." A motion was made to strike out that answer which was overruled, and that constitutes the fifth exception. That motion was renewed later on and again at the conclusion of all the testimony. Those motions were overruled and the rulings are presented by the sixth and seventh exceptions.
The term used in the question is unusual — when it speaks of the injury from the collision as "the predisposing cause," etc. It may have some special meaning to the medical profession, but, if it has, it is not explained in the record. The attorney for the appellant criticised it but did not, so far as the record discloses, find it necessary to inquire of the doctor what it meant. The word "dispose" is defined in the New InternationalDictionary, amongst other definitions, "to give a tendency to; to make liable; as to predispose the mind to friendship; debility predisposes the body to disease." In the Standard Dictionary
under the second head, it is defined, *Page 429
"To make liable or susceptible." It might thus be said to mean, in the connection it was used in this question, whether the injury caused Ambrose's leg to have a tendency to or to be liable to the development of the sarcoma, or, adopting the definition in the Standard, it would apparently mean, whether the injury caused the leg to be liable or susceptible to the development of the sarcoma. While it would have been better to have used a more familiar term, which could be more readily understood by the jurors, the attorneys apparently understood it, as they did not ask the doctor to explain what he meant, and presumably explained it to the jury. Without prolonging the discussion of Doctor Fisher's testimony, we find no reversible error in any of the exceptions in reference to it.
There was no error in granting the plaintiff's prayers, or either of them. The defendant's first, second and third were properly rejected. There was evidence tending to show that the appellant was at the time running the automobile, and that there was negligence on her part. The witness Chaney, who was driving another automobile and saw the accident, testified that he distinctly heard the driver of the motorcycle blow the exhaust whistle, which was very loud and shrill, when the motorcycle was between a hundred and a hundred and fifty feet from the intersection of Park Heights Avenue and the Valley Road, where the accident occurred. He said: "There was a machine coming towards me, over a small grade, about three hundred feet away from the intersection. A young lady was driving it, with a chauffeur sitting beside her. I heard no signal from the automobile. It was going about as fast as the motorcycle, between fifteen and eighteen miles per hour." Again he said: "She had slowed down some, but I imagine she was going between ten and twelve miles per hour when she attempted to make the turn. It is very sharp, a right-angle turn. You have to slow down any way, because the roads are narrow — eighteen feet, I think — and if you don't slow down considerably you have to cut the *Page 430
corner very much to get in. Any one coming over fifteen miles per hour could not make it at all." On cross-examination he said: "If Mrs. Rosenburg had blown her horn I would most likely have heard it, as I could have heard any horn sounded at that distance and I did not. I watched the motorcycle all the way up. I saw Mrs. Rosenburg in the driver's seat at the time of the accident. I was fifteen or twenty feet from her. Her chauffeur was not driving the machine; she was driving it herself. He could not drive it if she was in the driver's seat. I saw her have hold of the wheel just as she made the turn. The chauffeur did not have hold of the wheel. * * * The automobile came from the centre of the road and cut directly in as she attempted to turn into Park Heights Avenue. The accident occurred nearly in the centre of the road." Clarence H. Frey, who was driving the motorcycle, testified that he was sitting on the front seat and Ambrose on the rear seat — that Ambrose was not directing or controlling it in any way; that he blew the exhaust horn three times and got no response, and as he got no response he thought the road was clear and just as he got to the intersection an automobile "jumped out". He said: "When I told her it was her fault she said she carried no bulb horn and that her electric horn was broken. According to her statement, she had no means of notifying us, by sounding her horn, at all. She said something about being a beginner; that she had not run it long; but was just a learner at it." The fourth prayer was likewise properly rejected. There is evidence tending to show that the death of Ambrose "was proximately caused by the accident as alleged in the declaration." If the appellant's theory must prevail, it will be impossible to establish liability on the part of a negligent defendant, unless the plaintiff affirmatively excludes every possibly way by which death may have resulted, or an injury could have been sustained. Such is not the law. It would be very difficult to persuade any twelve men that the injury in this case was not the cause of the sarcoma, which it is admitted *Page 431
produced the death. There is ample evidence to sustain such a verdict. The fifth prayer is manifestly defective because it ignores the evidence offered by the plaintiff, that the appellant was running the car. The sixth ignores the evidence of the appellant herself that she was in the driver's seat in control of the horn, which the evidence of the plaintiff tends to show was not blown, if she had one, that she had one or both hands on the wheel, that the chauffeur could not reach the hand brake, and could only reach the foot brake "by reaching across her in a very awkward position," to use her language — in short, she was at least assisting in running the car at the time of the accident, according to her own admissions. The seventh is faulty because it ignores the facts just spoken of, that she had charge of the horn, and did not use it, according to the plaintiff's evidence, and she had control of the brakes. When it required the jury to find that the defendant "interfered" with the operation of the automobile that was liable to mislead them under the circumstances. What we have already said is sufficient to show that in our judgment the eighth was properly rejected. The tenth was also, as there was some such evidence. The nineteenth and twentieth were clearly properly rejected, and the special exceptions to the plaintiff's first prayer were properly overruled. The defendant's prayers which were granted were as favorable to her as she could ask under the evidence, and the law applicable to the case.
It follows that the judgment must be reversed, for the error pointed out in reference to the testimony of Dr. Manger, although we find no other reversible errors.
Judgment reversed and new trial awarded, the equitableappellee to pay the costs in this Court, the costs below to abidethe final result. *Page 432 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428397/ | ON PETITION FOR REHEARING
Appellant in its petition for rehearing has pointed out that the authority cited by this court in the original opinion ofCurran v. A.H. Stange Co., (1898), 98 Wis. 598, 74 N.W. 377, involved the interpretation of the word "ought" as used in an interrogatory rather than in an instruction as stated in the original opinion, which is correct.
However, the reasoning used by the Wisconsin court in setting forth that the word "ought" is considered as the 17. equivalent to "would" in the textbooks and decisions is equably applicable to the use of such word in an instruction.
The appellant's petition for rehearing is denied.
NOTE. — Reported in 85 N.E.2d 368. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3210709/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
ECDUARD PAREDES,
Appellee.
No. 4D14-3503
[May 11, 2016]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara McCarthy, Judge; L.T. Case No. 13-7382CF10A.
Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for appellant.
Samuel R. Halpern, Fort Lauderdale for appellee.
CONNER, J.
The State appeals the trial court’s order granting Paredes’s motion to
dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The
State argues that the trial court erred in granting the motion because there
is a dispute of fact regarding the timing of events, and there are inferences
from the facts that, when taken in a light most favorable to the State,
likewise create a dispute of material fact. The State also argues that where
the State’s evidence is all circumstantial, whether it excludes all
reasonable hypotheses of innocence may only be decided at trial and
cannot be resolved by a “(c)(4)” motion. We agree and reverse.
Factual History and Trial Court Proceedings
The State charged Paredes with attempted burglary and driving while
license suspended or revoked. Paredes filed a sworn motion to dismiss,
pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), as to the
attempted burglary charge.
The following facts relevant to this appeal are quoted from the motion:1
1. The Defendant is charged by Information with
Attempted Burglary of a Dwelling. It is alleged the
Defendant attempted to gain entry to the home of [J.S.]
with the intent to commit theft on May 2, 2013.
2. On the date in question, [J.S.]’s 15-year-old daughter,
[M.S.], had stayed home from school as she was not
feeling well. She was resting in her bedroom at the rear
of the house when she heard knocking and banging on
the front door. Initially, she ignored the knocking as
she thought it may have been coming from a neighbor’s
house. When it continued, she got up to investigate.
3. When [M.S.] looked out of the front window, she saw a
black four-door Honda backed into her driveway. She
was not expecting anyone that morning. She called her
mother who was at work to ask if perhaps she was
expecting someone and reported that this car was in the
driveway and someone had been knocking at the door.
She was informed that no one was expected and to call
911, which she did.
4. [M.S.] did not see anyone either outside of the car or
driving the car. She did see the car drive slowly away
and back into a neighbor’s driveway across the street
and a couple of houses away. She was able to obtain a
partial license tag.
5. While [M.S.] was on the phone with the 911 operator,
her father was on the way to the home. When her father
arrived, she hung up with the operator, walked outside
and pointed to where the car had backed into the
neighbor’s driveway.
....
1For ease of reading, all of Paredes’s citations to depositions and reports are
omitted from the quoted text.
2
11. Soon after this incident, Officer Hess of the Pembroke
Pines Police Department responded to [J.S.]’s residence.
He saw a crack/split in the front double doors. [J.S.]
noted other damage to the door which he interpreted to
be “like a pry mark.” See attached photos of the door.
No fingerprints or other physical evidence was collected
which connect [Paredes] to the door. A canvass of the
area yielded no additional witnesses and no tools were
discovered.
Additionally, in the argument section of the motion, the following factual
assertions are made:
12. There is no physical evidence such as fingerprints
which ties the Defendant to the front door of [J.S.’s]
residence. The Defendant did not attempt to disguise
himself. He was not wearing gloves. The events in
question happened in broad daylight at approximately
11:30 a.m. The front door of the residence is in plain
view of the street and neighboring houses. The evidence
suggests someone banged on the front door and
possibly used something to pry it open, however, no
witness saw the Defendant at or near the front door. No
burglary tools were found at the scene. Neither [M.S.]
nor [J.S.] ever saw the Defendant exit the car, either at
[J.S.]’s residence or across the street. The car sped off
only when [J.S.] tried to block it in a driveway. Applying
the facts to the law, it is respectfully submitted the State
will be unable to establish a prima facie case of guilt.
The State filed a traverse in which it admitted many of the factual
allegations in the motion, but denied the following:
The State specifically DENIES paragraph twelve (12) of the
Defendant’s Sworn Motion to Dismiss, and further alleges that
taken [sic] all inferences of the facts in light most favorable to
the State and against the Defendant, the State can prove a
prima facie case of Attempted Burglary. Within a few moments
after [M.S.] last hears someone attempt to forcefully pry open
her front door (she hears wood split and the door jingle), she
sees the Defendant’s car slowly leave [M.S.]’s driveway. [M.S.]
knows that nobody is expected at the house during the day.
[M.S.] never loses sight of the Defendant’s car as it backs out
of her residence even until the Defendant backs into another
3
driveway 5-6 houses down the street. [J.S.] sees the
Defendant’s car pass him as [J.S.] approaches his residence.
[M.S.] points out the Defendant’s car to [J.S.] as both see the
Defendant back his vehicle into another driveway down the
street into a house that is not the Defendant’s.
(emphasis added).
Paredes filed a response to the traverse in which he agreed, as
discussed below, with the State’s denials of paragraph twelve.
During the hearing on the motion to dismiss, the trial court specifically
pointed the State to the case law quoted in the motion to dismiss, stating:
“It’s not sufficient that the facts create a strong probability of guilt. They
must also eliminate all reasonable hypothesis [sic] of innocence.”
Additionally, Paredes argued that “at bar what we have is a situation
where, if established, the case can never survive a JOA.” Paredes also
argued that “there’s no evidence” that it was only seconds between when
the daughter heard the noises at the door and when she looked out of the
window. Specifically, Paredes stated: “[T]here’s no facts that that [sic]
supports the State’s assertion that it was within seconds, not minutes,
because that’s just not the evidence in the case.” The State argued that
the facts of the case can be undisputed, but the inferences from the facts
can still create a dispute as to material facts.
The trial court orally ruled:
Based on what the defense has stated, I’m going to take the
leap. I agree with the defense. I’m granting the Sworn Motion
to Dismiss. The case is dismissed. Okay. I completely agree
with the defense on this. There’s not sufficient facts to get this
case to a jury on attempt [sic] burglary. And I understand the
Court’s burden is similar to a Summary Judgment. And, as a
matter of law, the Court is dismissing the case. The Sworn
Motion to Dismiss is granted.
(emphasis added). The trial court subsequently entered a written order
granting the motion. The State gave notice of appeal.
Appellate Analysis
“‘The function of a ‘(c)(4)’ motion is to ascertain whether the undisputed
facts which the state will rely on to prove its case, establish a prima facie
case, as a matter of law, so as to permit a jury to determine the defendant
4
guilty of the crime charged.’” State v. Santiago, 938 So. 2d 603, 605 (Fla.
4th DCA 2006) (quoting State v. Walthour, 876 So. 2d 594, 595 (Fla. 5th
DCA 2004)). “‘The appellate standard of review is de novo.’” Id. (quoting
Walthour, 876 So. 2d at 595).
Florida Rule of Criminal Procedure 3.190(c)(4) allows for the filing of a
motion to dismiss on grounds that “[t]here are no material disputed facts
and the undisputed facts do not establish a prima facie case of guilt
against the defendant.” “The purpose of such a motion is to test the legal
sufficiency of the underlying case, i.e. whether there is a dispute of
material fact (not just a dispute of unsupported conclusory allegations) or
whether there exists a legal defense that would summarily decide the
case.” State v. Nunez, 881 So. 2d 658, 660 (Fla. 3d DCA 2004) (footnote
and citations omitted).
In response to a motion to dismiss filed under rule 3.190(c)(4), the State
may file a traverse. See Fla. R. Crim. Pro. 3.190(d). “A Traverse requires
more than a did not, did so swearing match. The State is required
to specifically dispute the material facts alleged by defendant or add
additional material facts that meet the minimal requirements of a prima
facie case of guilt.” Nunez, 881 So. 2d at 661 (citations and footnote
omitted). It has been held that motions filed pursuant to rule 3.190(c)(4)
“are treated like summary judgment motions in civil cases.” Id. at 660
(citation omitted). Therefore,
as in civil cases, the State is entitled to the most favorable
construction of the evidence with all inferences being resolved
against the defendant, [however,] this rule presumes that
some evidence exists and that the State will provide this
evidence in a clear and specific fashion to dispute the material
facts posited by the defendant.
Id.
The main question, as Paredes admits in his answer brief, was whether
Paredes was at the front door of the house trying to break in. “[T]he State
may rely on circumstantial evidence” in traversing a motion to dismiss,
and “all inferences to be drawn therefrom are resolved in the State’s favor.”
State v. Jaramillo, 951 So. 2d 97, 98 (Fla. 2d DCA 2007) (emphasis added).
Therefore, although there was no direct evidence that Paredes was at the
front door of the residence trying to break in, there was circumstantial
evidence of such fact.
5
In the traverse, the State alleged that: “Within a few moments after
[M.S.] last hears someone attempt to forcefully pry open her front door (she
hears wood split and the door jingle), she sees the Defendant’s car slowly
leave [M.S.]’s driveway.” Although Paredes did not specifically address this
issue in his response to the traverse, he stated:
The State denied paragraph 12 of the Defendant’s motion to
the extent it is stated that within minutes of hearing “wood
split and the door jingle” [M.S.] saw the Honda slowly leave
her driveway. Initially, paragraph 12 was in the Argument of
Law section of the motion and is not subject to a traverse.
That said, the Defendant does not disagree this was her
testimony. She testified in her sworn statement to the police
that “they started pulling on the door and prying at the door
and I heard wood breaking.” Sworn statement of [M.S.]’s
statement, p. 3, given to police on May 20, 2013. The
Defendant agrees this is true.
(italicized emphasis added). However, at the motion to dismiss hearing,
Paredes argued that “there’s no facts that that [sic] supports the State’s
assertion that it was within seconds, not minutes, because that’s just not
the evidence in the case.”
The issue of time span (seconds versus minutes) raises two points.
First, when the State indicated that M.S. heard the sounds a few
“moments” before she saw Paredes’ car leave, it interprets “moments” as
seconds. In opposition, Paredes takes the position that “moments” is
synonymous with minutes, not seconds. Therefore, the time span issue is
either a disputed fact, that would have defeated the motion to dismiss, or
Paredes did in fact agree that time span was only a few seconds, when it
agreed in his response with the State’s traverse regarding “moments.”
Likewise, if taken as true (moments are a matter of seconds), this fact
also makes the trial court’s order denying the motion to dismiss improper.
In viewing this evidence in a light most favorable to the State, it is clearly
circumstantial evidence that it was Paredes who was at the front door of
the house. Since this testimony establishes such a very short time period
between the sound of prying at the door, evidencing an attempt to enter
the house, and the observation of Paredes in the driveway, there was
sufficient circumstantial evidence that it was Paredes who was attempting
to break into the house. 2
2
Additionally, in its traverse, the State also specifically alleged “that between
[M.S.] and [J.S.] the Defendant’s vehicle is never out of sight, due to the proximity
6
The second point, regarding the temporal significance of the
circumstantial evidence, is that the trial court, in its ruling, seemed to
heavily rely upon the fact that there was no direct evidence (forensic,
eyewitness, or admission evidence) placing Paredes at the front door. The
trial court was concerned that the facts, as presented by the motion,
traverse, and response to the traverse, did not refute every reasonable
hypothesis of innocence. In other words, that it could have been someone
else that caused the damage to the door, and Paredes just happened to be
in the driveway at that time, or at least at a time near when M.S. thought
the damage was being done to the door.
The trial court’s concern that the circumstantial evidence did not
adequately negate every reasonable hypothesis of innocence transformed
into a concern that “[t]here’s not sufficient facts to get this case to a jury
on attempt [sic] burglary.” Thus, it appears that the trial court was making
a determination regarding whether the case would survive a motion for
judgment of acquittal. Paredes led the trial court down this path with the
argument that “at bar what we have is a situation where, if established,
the case can never survive a JOA and here’s why.” Such analysis by the
trial court, however, was in error.
A trial court cannot dismiss criminal charges simply because
it concludes that the case will not survive a motion for
judgment of acquittal at trial. Moreover, if the State bases its
charges on circumstantial evidence, whether that evidence
excludes all reasonable hypotheses of innocence may be
decided only at trial, after the evidence has been presented.
Jaramillo, 951 So. 2d at 99 (emphasis added and citations omitted); see
also State v. Ortiz, 766 So. 2d 1137, 1142 (Fla. 3d DCA 2000) (quoting
State v. Paleveda, 745 So. 2d 1026, 1027 (Fla. 2d DCA 1999)) (“‘Even if the
trial court doubts the sufficiency of the state’s evidence, it cannot grant a
motion to dismiss criminal charges simply because it concludes that the
case will not survive a motion for judgment of acquittal.’”).
This is also why, although discussing circumstantial evidence, the
cases cited by Paredes in his answer brief, and to the trial court, are not
in time between what [M.S.] heard and saw, no one saw anybody in [the] vehicle
that was in [M.S.]’s driveway other than the Defendant.” This also serves as
either evidence to support that there was only a short time period between the
events or at the least, there is a material fact placed in dispute.
7
persuasive. Those cases dealt with courts analyzing whether a judgment
of acquittal should have been granted, not whether a motion to dismiss
should have been granted.
We also join the three other districts and hold that “if the state’s
evidence is all circumstantial, whether it excludes all reasonable
hypotheses of innocence may only be decided at trial, after all of the
evidence has been presented,” and the issue cannot be resolved by a rule
3.190(c)(4) motion to dismiss. See State v. Cadore, 59 So. 3d 1200, 1203
(Fla. 2d DCA 2011) (quoting State v. Bonebright, 742 So. 2d 290, 291 (Fla.
1st DCA 1998)); see also State v. Taylor, 16 So. 3d 997, 1002 (Fla. 5th DCA
2009); Ortiz, 766 So. 2d at 1142; cf. State v. Law, 559 So. 2d 187, 189 (Fla.
1989) (explaining that it is the jury’s duty to determine whether
circumstantial evidence is sufficient to exclude every reasonable
hypothesis of innocence beyond a reasonable doubt).
Therefore, since the motion to dismiss, the traverse, and the response
to the traverse indicate that there are either disputed facts in the case, or
at least, inferences from undisputed facts that establish a prima facie case
of attempted burglary by Paredes, the trial court erred in granting the
motion to dismiss. Although the case law cited by Paredes indicates that
the facts of this case may not survive a motion for judgment of acquittal
at trial, this determination by the trial court was premature at the motion
to dismiss stage.
Reversed and Remanded.
STEVENSON and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
8 | 01-03-2023 | 06-08-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031191/ | NUMBER 13-16-00068-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
IN THE INTEREST OF C.M.R., A CHILD
____________________________________________________________
On appeal from the County Court at Law No. 5
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion Per Curiam
Appellant, father of C.M.R, perfected an appeal from a judgment concerning the
conservatorship of C.M.R. On July 26, 2016, the Clerk of this Court notified appellant
that the clerk’s record in the above cause was originally due on July 25, 2016 and that
the deputy district clerk, Maria Flores, had notified this Court that appellant failed to make
arrangements for payment of the clerk’s record. The Clerk of this Court notified appellant
of this defect so that steps could be taken to correct the defect, if it could be done. See
Tex. R. App. P. 37.3, 42.3(b),(c). Appellant was advised that, if the defect was not
corrected within ten days from the date of receipt of this notice, the appeal would be
dismissed for want of prosecution.
Appellant has failed to respond to this Court’s notice. Accordingly, the appeal is
DISMISSED FOR WANT OF PROSECUTION. See TEX. R. APP. P. 42.3(b), (c).
PER CURIAM
Delivered and filed this
2nd day of September, 2016.
2 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486832/ | On the 2nd day of August, 1907, the appellant brought suit in the Superior Court of Baltimore City against Andrew Thomas, contractors, as principals, and the appellee, as surety on a bond, conditioned for the faithful performance of a building contract for the erection and construction of a church at the northwest corner of North avenue and St. Paul street, in the City of Baltimore.
On the 25th of September, 1909, a judgment was entered in favor of the defendants, Andrew Thomas, on a plea of discharge in bankruptcy, and the case was subsequently tried against the surety, the American Bonding Company of Baltimore City, the appellee here.
The particular breach of the bond assigned by the amended declaration is that Andrew Thomas, the principals named in the bond did not do and finish the work on the church according to the plans and specifications in the contract, in that * * * they * * * did defective work and used improper materials in plastering the church; that the plastering became loose, a part of it fell, and other parts thereof became, and were liable to fall at any time, and that the plaintiff was compelled to remove the defective plaster and replace it, with good and proper plaster at a large cost and expense.
The bond, contract, specifications and a bill of particulars were filed with the amended declaration and appear in the record.
To this declaration the defendant pleaded nineteen special pleas, and to these were interposed in turn by the plaintiff and defendant, numerous demurrers, replications and rejoinders, *Page 537
and finally resulted in twenty-six issues in form being joined, but which, as stated by the appellant in its brief, actually and in fact can be treated as six issues.
We have examined the voluminous pleadings, as set out in the record in this case, with considerable care, and we find no reversible error in the rulings of the Court thereon. None were seriously urged at the hearing of the case in argument, and none are pointed out or insisted upon in the appellant's brief.
The principal questions before us for review are presented by a single exception, and they appear from the rulings of the Court in granting the defendant's motion at the close of the testimony upon both sides to strike out the testimony of the witness Garrettson, which had been admitted in the course of the trial subject to exceptions, and in granting the defendant's six prayers.
In the view we take of the case, the ruling of the Court upon the motion to strike out the witness Garrettson's testimony becomes unimportant, because neither its admission nor rejection would reflect upon the conclusion we have reached upon the record before us.
Nor do we deem it necessary to discuss or consider all the questions presented by the very able and carefully prepared brief of the counsel for the appellant, because we are of the opinion that the Court below was entirely right upon the whole proof in granting the defendant's first prayer, which instructed the jury that there was no legally sufficient evidence under the pleadings in this case to show an indebtedness by the defendant to the plaintiff under its bond, and their verdict must be for the defendant.
The substantial facts, as disclosed by the record, appear to be as follows: The contract price for the work, materials, construction and erection of the church, was $52,550.00, and was to be paid in four payments only upon the certificate of the architect; the first three of $11,750.00 to be paid as one-fourth, one-half and three-fourths of the work was completed, and the remaining fourth and final payment of *Page 538
$17,300.00 was to be made within thirty days after the architect had certified that the entire work contemplated by the contract had been wholly completed and the building turned over by the contractors to the owner, and before each of the payments the architect should also certify in writing that all the work upon the performance of which the payment was due had been done to his entire satisfaction.
It appears from the evidence that the first, second and third payments under the contract was paid by the appellant to the contractors upon certificates of the architect.
On December 20, 1905, the appellant wrote the appellee the following letter:
"GENTLEMEN:
Messrs. David M. Andrew and George H. Thomas have this day notified us that they have completed the work under their contract with us dated December 16th, 1904, for the faithful performance of which you are surety, see bond No. 173826.
We hereby give you due notice, as provided in lines 53, 54 and 55 of said bond, that we will make the last payment due Messrs. Andrew and Thomas under said contract in about thirty days from this date.
Yours very truly,
By CHARLES T. BAGBY, President."
On January 1, 1906, the appellants took charge of the church, and it was used for church purposes until the first day of March, 1907, when the ceiling of the main auditorium of the church was condemned by the Inspector of Buildings of Baltimore as a menace to the safety of persons and property, in that the plastering on the ceiling was cracked all over, very loose and portions of it had already fallen."
It appears that the final payment, amounting to $18,776.16 was paid the contractors on the first day of February, 1906, as shown by their receipt. *Page 539
"BALTIMORE, MD., February 1, 1906.
Received of the Trustees of the Seventh Baptist Church of Baltimore Eighteen thousand, seven hundred and seventy-six dollars and sixteen cents in full settlement of all claims and demands growing out of or connected with the erection of the church at St. Paul street and North avenue, and remodeling the chapel in the rear thereof under contract dated the 16th day of December, 1904, or otherwise. This receipt is to cover all charges for extra work.
DAVID M. ANDREW,
GEO. H. THOMAS.
Test as to both:
S. SCOTT BECK."
While this payment was made without the final written certificate of the architect, he testified that he gave his approval of the plastering and reported that the plastering was a first-class job and was done in accordance with the contract.
The original specifications as to plastering provided for the use of lime mortar plaster, but this was changed by the sub-contractor Litzinger with the approval of the architect to what is known as ivory or hard wall plaster, being a patent plaster with a sand coat finish. There was no specification for the installation of the patent plaster, and this change or alteration of the contract was made without the written order of the owner and without the consent of the surety. By the fifth paragraph of the contract it was provided "that no alteration should be made in the work shown or described by the drawings and specifications except upon the written order of the owner, and such addition or omission in the work required by the owner shall be carried out by the contractors without making void or in any manner affecting the contract."
The substantial ground of the plaintiff's action here is that the patent plaster had not been mixed according to the manufacturer's directions by the sub-contractor, and that it fell for this reason. While the plaintiff's testimony tended *Page 540
to show that there was too much sand put in the plaster, it failed to show that the contractors were responsible for the defective condition of the plastering. On the contrary, the evidence shows that the roof of the church was supported by two 70-foot trusses of wood, which ran from the front of the church to the rear of the church and which were supported at each end by steel columns. These trusses had sunk and "had to be jacked up" and tightened before the plastering could be replaced.
But even if it be conceded that the alteration and change of the contract without the written order of the owner would bind the contractors in his case it was not made in a manner to bind the appellee, because the bond guaranteed the installation of lime mortar plaster called for by the contract and specifications and not that of a different character of plaster, a patent plaster, such as was adopted and put in the church.
In Wehr v. St. Matthews' Cong., 47 Md. 177, it is said, it is perfectly well settled that a surety has the right to stand upon the very terms of his contract, and if such contract be altered or varied in any material point without his consent, so as to constitute a new agreement varying substantially from the original, he is no longer bound.
In Plunkett v. Sewing Machine Co., 84 Md. 532, it was said, the liability of a surety or a guarantor is created entirely by his contract, it is therefore strictly confined and limited to his contract. No material change can be made in them without his consent. All Courts have maintained that his responsibility cannot be extended by construction beyond the limits which he has himself fixed. Leppert v. Flaggs, 101 Md. 74; George v.Andrews, 60 Md. 26; Lake v. Thomas, 84 Md. 608; Schaeffer
v. Bond, 72 Md. 501; Mayhew v. Boyd, 5 Md. 102; McConnell
v. Poor (Iowa), 52 L.R.A. 312; Gibbs v. Girardville, 195 Pa. St. 396.
Besides this, it will be seen that by paragraph 4, of the contract the decision of the architect, on all matters referred to him, should be final and conclusive. *Page 541
In this case the architect gave his approval of the plastering. He testified: "I did make a report, stating that the plastering was well executed and a very nice looking piece of work."
Mr. Bagby, the chairman of the board of trustees of the plaintiff church, testified, "that the architect reported, except as to some small matters, that the entire work had been done to his satisfaction. He reported that the plastering was a first-class job and had been done in accordance with the agreement." There was no allegation or proof of fraud, collusion or mistake on the part of the architect, as to his action in this regard, and his report was accepted as conclusive, at the time of the completion of the building and at the final payment by the appellant, that the work had been performed according to the contract. The building was accepted by the trustees and used for church purposes until the first day of March, 1907, when the ceiling of the main auditorium of the church was condemned by reason of the defective condition of the plastering. It was not until the 19th day of March, 1907, that notice was given the appellee of the alleged breach of the contract and a demand to have the plastering replaced.
We think, upon the whole record, the case was devoid of legally sufficient evidence to permit the plaintiff to recover under the pleadings and evidence in the case, and the case was properly withdrawn from the jury by the defendant's first prayer. As this conclusion disposes of the case, it will not be necessary for us to pass upon the other granted prayers or the other questions represented on the record.
For the reasons stated, the judgment will be affirmed, with costs.
A motion for re-argument of this case, was overruled onJanuary 17th, 1911. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031179/ | ACCEPTED
04-16-00113-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
8/30/2016 10:12:39 AM
KEITH HOTTLE
CLERK
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
08/30/2016 10:12:39 AM
KEITH E. HOTTLE
Clerk | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428412/ | On August 12, 1948 appellants, the mother and stepfather, filed their verified petition for writ of habeas corpus in the Lawrence Circuit Court, seeking to obtain the care and custody of an infant child, Elizabeth Sue Leroy, from appellees, her paternal grandparents. A writ of habeas corpus was duly issued on said date and was served by the sheriff of Lawrence County on appellees on August 17, 1948. Appellees appeared and were given until September 13, 1948 in which to file a return to the writ. On September 10, 1948, appellees filed their verified return to the writ, which appellants answered by general denial.
The cause was tried by the court on April 7th and 8th, 1949, and the cause was taken under advisement until April 19, 1949, at which time the court found against appellants in favor of appellees, that the best interest and general welfare of the child will be best served by placing her custody with the grandparents, the appellees, with rights to the mother to visit the *Page 125
child, and to have it visit her at reasonable times. Judgment was rendered accordingly.
Appellants' motion for new trial was overruled, and the appeal was perfected. The error assigned is that the court erred in overruling the motion for new trial.
That part of the motion for new trial not expressly waived by appellants is that the decision is not sustained by sufficient evidence, and is contrary to law.
The evidence reveals substantially the following facts. On November 24, 1939, Elizabeth Sue Leroy was born to Abe Leroy and Ruby Leroy, husband and wife. Abe Leroy was killed in an accident September 4, 1943. In June, 1944 his widow, Ruby Leroy, brought the child, Elizabeth Sue, to the appellees, who are her paternal grandparents, and she has resided with and has been supported by them continuously since that time, except for occasional visits with her mother and one occasion when her mother went to the school and took the child away with her.
So far as shown by the evidence these grandparents have no living children and they are fully capable financially and otherwise to rear, care for, and educate the child, and that they greatly wish to do so.
On May 7, 1947 Ruby Leroy was married to her co-appellant, Amos Beach. She has another child now, and the evidence indicates that she and her husband are likewise now capable financially and otherwise to rear, care for and educate the child, Elizabeth Sue Leroy, and they greatly desire to do so.
There was some evidence also of some indiscreet conduct of the mother, appellant; there was also some evidence of indiscreet conduct on the part of the grandfather, appellee. We do not deem either of these indiscretions of sufficient importance to recite them here.
If not divorced, parents have the natural right to the custody of their children, and when either parent *Page 126
dies this right goes to the survivor. Sections 8-110, 8-109, 1. Burns' 1933. These statutes are largely declaratory of the Common Law. Brown v. Beachler (1946), 224 Ind. 477, 480, 68 N.E.2d 915, 916; Gilchrist v. Gilchrist (1947),225 Ind. 367, 371, 75 N.E.2d 417; Orr v. State (1919),70 Ind. App. 242, 255, 123 N.E. 470; Berkshire v. Caley (1901),157 Ind. 1, 8, 60 N.E. 696; Schleuter v. Canatsy et al. (1897),148 Ind. 384, 388, 47 N.E. 825; Jones v. Darnall (1885),103 Ind. 569, 572, 2 N.E. 229, 53 Am. Rep. 545.
These legal rights will always be considered and respected by the courts, but they are not absolute. They are secondary and subordinate to the welfare and happiness of the child. The 2. law will not allow that either parent may have such an interest in their child as will conflict with its present or future welfare. Brown v. Beachler (1946), 224 Ind. 477, 480, supra; Gilchrist v. Gilchrist (1947), 225 Ind. 367, 371,supra; Duckworth v. Duckworth (1932), 203 Ind. 276, 282,179 N.E. 773; Berkshire v. Caley (1901), 157 Ind. 1, 7, 60 N.E. 696, supra; Schleuter v. Canatsy et al. (1897), 148 Ind. 384, 388, supra; Hussey v. Whiting (1896), 145 Ind. 580, 582, 44 N.E. 639; Bryan v. Lyon et al. (1885), 104 Ind. 227, 233, 3 N.E. 880, 54 Am. Rep. 309; Jones et ux. v. Darnall (1885),103 Ind. 569, 574, 2 N.E. 229, supra; Joab et al. v. Sheets
(1884), 99 Ind. 328, 331; Julian v. Julian (1916),60 Ind. App. 520, 525, 111 N.E. 196. See also Scott v. Scott (1949),226 Ind. 396, 86 N.E.2d 533.
When interested parties contend for their rights in the custody of a child a difficult matter is posed for the courts. The situation presents a vital question and upon its reasonably 3. correct solution the future safety, character, happiness and usefulness of a human life may depend. Judges to whom the *Page 127
question is presented realize the weight and importance of the decision they must make. In the end they must use the highest judgment with which they are endowed in determining the question at the time and under the evidence presented. In other words they must exercise a sound discretion in its determination, having in view always that which is best for the present and future welfare and happiness of the child.
The principles of the welfare of the child may be applied to defeat the claim of a parent when the parent has voluntarily relinquished to others the care and custody of the child 4. until the affections of the child and its foster parents have become so interwoven that to sever them would seriously mar and endanger the future welfare and happiness of the child. Brown v. Beachler (1946), 224 Ind. 477, 482,supra; See also Gilmore v. Kitson (1905), 165 Ind. 402, 407 and cited cases, 74 N.E. 1083; Combs v. Gilley (1941),219 Ind. 139, 36 N.E.2d 776, supra; Duckworth v. Duckworth
(1932), 203 Ind. 276, 285, supra; Luellen v. Younger (1924),194 Ind. 411, 416, 143 N.E. 163.
Appellant recognizes that in the matter of fixing the care and custody of an infant, the finding and judgment of the trial court is conclusive unless from the record it appears that the 5. trial court has abused its discretion. This we approve as a correct statement of the law. Brown v. Beachler (1946),224 Ind. 477, 482, supra; Gilchrist v. Gilchrist (1947),225 Ind. 367, 372, supra; Combs v. Gilley, (1941), 219 Ind. 139, 148, supra.
It does not follow that because the appellant mother is now a fit person, and that she is now financially able and naturally and materially equipped to have the care and custody of the 6. infant child, that the judgment must be for her. There are many *Page 128
other things incident to the life-history, and the disposition of the child in question, and to the home life and dispositions of the contending parties, their relations to one another, and even to the neighborhood in which they live and many other things that the courts must consider in fixing the present care and custody of the child. These matters were all before the trial court to assist it in making its finding and judgment.
This child has been fortunate in having grandparents who love her. She is fortunate in having a mother who also loves her. She cannot live at both homes. The trial court very properly 7. made provisions for the mother to visit her child and for the child to visit its mother at proper times.
From the record we are unable to say there was any abuse of discretion by the trial court. Scott v. Scott (1949),226 Ind. 396, 86 N.E.2d 533, 537, supra. The judgment is, therefore, affirmed.
NOTE. — Reported in 89 N.E.2d 912. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428418/ | George Bernhard, late of South Bend, St. Joseph County, Indiana, died testate on the 9th day of December, 1926. So much of his will as is pertinent to the questions presented by this appeal reads as follows:
"Item 6.
"In the event there is an institution in the City of South Bend at the time of my death or within two years after the time of my death, which has for its purpose of its existence the maintenance of a home for old people irrespective of their religious beliefs upon at least a partial charitable basis then I desire and direct my said executor to turn all the rest and residue of the property of which I may die seized to said institution.
"In the event however there be no such institution located within the said city of South Bend at the time of my death or within two years thereafter then I give, devise and bequeath all the rest and residue of the property of which I may die seized equally between `Ebenezer's Old People's Home of the Evangelical Association' of Ebenezer, New York, and `The Ebenezer Orphans Home of the Evangelical Association' located Flat Rock, Seneca County, State of Ohio, and `The Western Old People's Home of the Evangelical Association' located Cedar Falls, Iowa. Said funds so going to the said respective institutions to become a perpetual fund for said institutions of which the interest thereof shall be used as the officers of said institution may see fit for the good of their respective institutions."
The appellants brought this suit to recover possession of the money, bonds and other securities constituting the residue of said estate now in the hands of the appellees who claim to have qualified to receive it under the first paragraph of said Item 6. A joint and several demurrer for want of facts was filed to the complaint which was sustained by the trial court. The appellants refused to plead further and thereupon it was adjudged *Page 385
that they take nothing by reason of their complaint and that the appellees recover costs.
As the sole question presented by this appeal goes to the sufficiency of the complaint the material allegations thereof are important. The testator's will is set out in full but as Item 6, above quoted, controls the entire controversy we make no mention of its further provisions. With such exception the material allegations of said complaint may be summarized as follows: Some time prior to the complete administration of the estate of George Bernhard, deceased, the executors thereof filed a petition in the St. Joseph Circuit Court seeking a declaratory decree construing Item 6 of his will and determining, under its terms, the beneficiary of his residuary estate. The appellants and appellees herein filed petitions in said proceeding claiming said residue and after a hearing and trial upon the issues thus joined the court found that the appellee, South Bend Old People's Home, Inc., under the terms of said Item 6, was the testator's residuary legatee and entitled to the residue of his estate and entered its decree accordingly. In the final administration of the estate and in compliance with the court's order said residue was paid and distributed to the appellee Roland W. Goheen, who represented himself as being the treasurer of said South Bend Old People's Home, Inc. This corporation, it is alleged, never perfected its corporate existence or became a legal entity capable of possessing or holding title to property. Its alleged incorporators never met to elect officers, none were ever otherwise chosen and no meeting of any kind was ever held after its pretended incorporation. Such incorporation was for the sole purpose of taking the residue of the testator's estate under said Item 6 of his will with no intention *Page 386
whatever of carrying into effect the purpose of the gift as therein expressed. Said residue is insufficient to maintain an institution of the character contemplated by the testator, and the appellees have made no effort to acquire other necessary assets and have no intention of ever doing so. Most of the original incorporators of said pretended corporation are now dead or have resigned and those remaining disclaim any responsibility in connection with the institution except the appellee Goheen. In using the word "institution" in Item 6 of his will the testator had in mind an established and permanent enterprise with resources in addition to those constituting his gift and one which was engaged, or able to engage, in the successful conduct of the charity in which he was interested. The South Bend Old People's Home, Inc., is not such an institution and wholly unable to qualify as such — a situation that has resulted in the nonuser of the property in controversy for a period of more than 16 years. Wherefore, it is asked that the appellants be declared to be the testator's residuary legatees and that the appellees be required to account to them for the residue of said estate.
This complaint is attacked by the appellees on the theory that it shows on its face that all questions concerning their rights in and to the property involved have been fully and finally adjudicated in their favor and, since said Item 6 contains no condition subsequent through which such rights might be divested, their title to the property in controversy is shown by the complaint to be absolute and unconditional. The appellees further urge that it appears from said complaint that said property is the subject of a charitable bequest which cannot be defeated through inadequacy of funds to carry out its purpose, the violation of its terms or otherwise, *Page 387
and that the appellants' remedy is not through forfeiture but by an action to compel fulfillment in which, if need be, the cypres doctrine will be applied.
In rhetorical paragraphs 9 and 10 of the complaint it is alleged that the executors of the last will and testament of the said George Bernhard, deceased, filed a petition in the St. 1. Joseph Circuit Court, in which said decedent's estate was being administered, asking a declaratory decree determining which corporation or corporations named in said Item 6 of the will was entitled to the residue of said estate and that the appellants and appellees herein each filed petitions in said proceedings asking that said residue be set off to them. That in the final determination of the questions thus presented the court adjudged that the appellee, South Bend Old People's Home, Inc., was entitled to said residue and ordered it so disposed of. Said judgment eventually came before this court for review in the case of Ebenezer Old People's Home v. Bernhard (1935),100 Ind. App. 636, 196 N.E. 129, and it was there held to be a final judgment binding upon all parties thereto. As the complaint in the instant case alleges that the appellants and appellees were parties to said action for a declaratory judgment determining their respective rights in the residue of said estate, all matters litigated or which could have been properly litigated in that action must be considered res adjudicata. Said judgment determines for all time that not later than two years after the testator's death the appellee, South Bend Old People's Home, Inc., came into legal existence and is an institution in said City of South Bend which has for its purpose the maintenance of a home for old people irrespective of their religious is the sole residuary legatee under the testator's will beliefs upon at least a partial charitable basis; that it *Page 388
and not being barred by fraud, either actual or constructive, from taking the residue of his estate the same vested in the appellee, South Bend Old People's Home, Inc., upon the final administration of said estate.
The appellants contend, however, that even though the above be true the facts alleged in the complaint show that such title as the appellee, South Bend Old People's Home, Inc., acquired in said residuary estate has been divested because (1) said appellee has not devoted the property of which the residuary estate consists to the purposes for which it was bequeathed to it for a period of more than 16 years; (2) ever since its incorporation said appellee has been and still is wholly unable to carry out the testator's purposes in making the devise which therefore lapsed; and (3) said property was devised to said appellee upon the condition subsequent that it be used to maintain a home for old people and that such condition has not been met.
We are unable to discover anything in Item 6 of the testator's will that expressly constitutes or constructively imports a condition subsequent. By its terms he does nothing more 2. than direct his executors to turn over the residue of his estate to an institution in the City of South Bend which has for its purpose the maintenance of a home for old people irrespective of religious beliefs upon at least a partial charitable basis, if there be one in said city at the time of his death or within two years thereafter. In the absence of a qualified donee said residue is to go to the appellants. The words "which has for its purpose of its existence the maintenance of a home for old people irrespective of their religious beliefs upon at least a partial charitable basis" were used by the testator merely as a means of identifying his residuary legatee. They mean nothing more than that it *Page 389
was his desire that such an institution should have what was left of his property after the payment of the costs of administration, last sickness and burial, just debts and specific legacies. Assuming, for the purpose of discussion only, that the appellants are correct in their contention that the words above quoted are a direct declaration by the testator of the purposes for which he desired his property to be used, nevertheless a condition subsequent is not created thereby. In the case of Heaston v.The Board of Commissioners of Randolph Co. (1863), 20 Ind. 398, 402, the conveyance was by deed, rather than by will as in the instant matter, to "`the Board of Trustees of the County Seminary of Randolph County, and their successors in office forever. To have and to hold the premises aforesaid, with all the appurtenances to the only proper use, benefit and behoof of said Board of Trustees for the use of said Seminary forever.'" It was contended that this created a condition subsequent and, as the premises were not being used as a seminary, the grantor was entitled to recover the land. The court held that the corporation received an unconditional title, which was not defeated by failure to use the premises for the purpose of a seminary, or by using it for other purposes; that had the grantor intended that the property conveyed should be used for a seminary edifice only, and in case it should be used otherwise, the estate should be forfeited and revert, such condition should have been expressed or fairly implied from the language used. In the course of its opinion the court said: "A condition is said to be a qualification or restriction annexed to conveyance of lands, whereby it is provided that in case a particular event does or does not happen, or in case the grantor or grantees do, or omit to do, a particular act; an estate shall commence, be enlarged or be defeated. *Page 390
The words usually employed to create a condition are, `on condition.' But the phrases, `so that,' `provided,' `if it shall happen,' are of the same import."
Item 6 of the testator's will contains no such words and, although no definite or particular form of expression is absolutely essential to the creation of a condition 3-5. subsequent, it must be manifest from the terms of the will that the devise or bequest was made on condition and the absence of the words usually used for such purpose is significant. Sumner v. Darnell (1891), 128 Ind. 38, 27 N.E. 162, 13 L.R.A. 173. In the case of Sheets v. Vandalia R. Co.
(1921), 74 Ind. App. 597, 603, 127 N.E. 609, the court said: "The true rule is that `conditions subsequent, having the effect in case of a breach to defeat estates already vested, are not favored in law and hence always receive a strict construction.' . . . A condition subsequent will not be raised by implication from a mere declaration in the deed that the grant is made for a special purpose, without being qualified with words appropriate to make such a condition." This is the generally recognized rule running through all decisions on the subject in Indiana and, although it is usually announced in the connection with the construction of deeds, it is equally applicable to the devise or bequest of property by will. It is our opinion that the testator failed to express a condition subsequent in connection with the property in controversy either by the language used in Item 6 of his will or that used in the testament as a whole, and this court cannot supply what he himself failed to provide. Summer v.Darnell, supra; Heaston v. The Board of Commissioners ofRandolph Co., supra; Schipper v. St. Palais (1871),37 Ind. 505; Scantlin v. Garvin (1874), 46 Ind. 262; Aldred v.Sylvester (1916), 184 Ind. 542, 111 N.E. 914; Van DeBogert *Page 391
v. Reformed Dutch Church (1926), 220 N.Y.S. 50, 128 Misc. 603.
In their brief the appellants cite many cases from this jurisdiction and elsewhere treating of charitable trusts and circumstances under which the corpus thereof will 6, 7. revert for nonuser. These cases would all be influential in our consideration of this appeal if it could be said that a charitable trust is here involved. We are not in accord, however, with such a theory for the reason that the mere statement in a will of the purpose for which the subject property is to be used does not create a trust. Ramsey v. Hicks
(1910), 174 Ind. 428, 430, 91 N.E. 344, 345. In the case just cited land was conveyed by general warranty deed to the "trustees of the Washington congregation of the Cumberland Presbyterian Church, in Daviess County, Indiana." It was contended that this deed was upon a special limited trust and that title was forfeited by the consolidation of the said Cumberland Presbyterian Church with another and the creation thereby of a new and different religious institution in which the identity of the cestui que trust was lost. The court said at p. 455, "it is entirely clear that no trust, express or implied, is attached to the title." It is apparent to us that in the instant case the testator intended to give the residue of his estate to some institution in South Bend which had for its purpose the maintenance of a home for old people to be used by such institution in the carrying out of its purposes and not in trust for another. The charity in which such an institution was engaged appealed to the testator and he gave to it the residue of his estate to aid in the carrying out of its purposes without other restriction or limitation. Such a bequest has none of the characteristics of a trust and amounts to nothing more than a gift to a charitable *Page 392
institution in whose purposes and objects he was sympathetic. Inthe Matter of Griffin (1901), 167 N.Y. 71, 84, 60 N.E. 284, is a case very much in point. There the testator gave the residue of his estate to "the Round Lake Association, . . . to be prudently invested by it, and the income and profits arising therefrom to be devoted and applied by said association to the support and maintenance of the school at said Round Lake known as the Round Lake Summer Institute." It was contended that this created a trust and in deciding the question the court said:
"His gift to the Round Lake Association was doubtless for the purpose expressed in his will of maintaining a school by the association, as had been done for some time before the incorporation of the academy, but still for the purpose of maintaining a school which should be a part of and entirely dependent upon the association, and not for a separate corporation that in the future might become wholly disassociated from the Round Lake Association. In other words, he intended to give his property to the Round Lake Association, to maintain its own school, not as trustee for the benefit of another, though doubtless it may use the other for the purpose so long as the parties contract therefor. Such a gift, though the corporation may be instructed to maintain the principal intact and use the income only for a specific purpose, does not create a trust."
Notwithstanding all this, the appellants say their complaint alleges that the bequest to the appellees was for a specific purpose which they have failed to carry out for 16 years through inability to supplement the testator's gift with such additional funds as were necessary to the fulfillment of such purpose; that they, the appellants, are ready, able and willing to do so and therefore said complaint repels a demurrer on the theory that the law, under such circumstances, will decree the *Page 393
gift to the appellees forfeited and vest the property in controversy in them as the testator's residuary legatees.
In support of this theory the appellants have referred us to many cases all of which we have examined with care. In each of them either a trust or a condition of some character is 8. involved, and it seems well settled that the breach of a condition subsequent will usually divest title and that public policy will not permit the nonuser of trust funds. As heretofore said, however, we are not concerned with either a trust or a condition subsequent and, in the absence of both, we find no authoritative sanction for a principle of law that takes an unconditional title in property from one in whom it has vested, even though the use thereof is limited to certain designated purposes by the instrument through which such title was acquired and such use had failed. We are not to be understood as holding that had the appellee, South Bend Old People's Home, Inc., been organized for the purpose of taking the testator's residuary estate with no intention of using it as he intended, there would be no remedy. Such action would savor of fraud and vitiate the whole transaction but, as said earlier in this opinion, that question has been adjudicated against the appellants.
Whatever be the remedy for the situation disclosed by the complaint, it is elementary that the appellants must show an interest in the subject-matter of the litigation if their complaint is to be held sound. It seems clear to us that quite the contrary is shown thereby. They are neither the heirs or next of kin of the testator and their interest in his residuary estate was entirely dependent upon the absence in South Bend of an institution which had for its purpose the maintenance of a home for old people of any religious faith on a wholly or partially charitable basis. If such an *Page 394
institution did not exist at the time of the testator's death, or come into existence within the time prescribed by the terms of his will, the appellants became the residuary legatees. That contingency however never arose as the appellee, South Bend Old People's Home, Inc., met the requirements of the will and took title and possession of such estate. Ebenezer Old People's Home
v. Bernhard, supra. All this is shown by the appellants' complaint and therefore as a matter of law they never were and never can be the testator's residuary legatees. As there was no lapse of the legacy to the appellee, South Bend Old People's Home, Inc., with a consequent acceleration of the contingent bequest to the appellants and as the property in dispute will revert to the testator's heirs at law in the event the present title is forfeited, it must be held that the appellants have no interest in the subject-matter of this litigation.
It appears from the complaint that the appellee Roland W. Goheen has no interest in the property involved except as treasurer of the corporate appellee and therefore what we have said disposes of his responsibilities in the premises.
For the reasons indicated the appellants' complaint does not disclose a cause of action and the judgment of the trial court is in all things affirmed.
NOTE. — Reported in 48 N.E.2d 851. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428419/ | On August 25, 1920, appellants, as partners, owned and operated a store for the sale of furs at retail. On that day appellee issued to appellants a policy of insurance by which appellee agreed to indemnify appellants against loss by burglary. This action is by appellants to recover on the policy. The complaint, which is in the usual form in such cases, contains an averment that on August 26, 1920, "furs and goods of the value of $8,418.09 of the property of said plaintiffs covered by said insurance, and being a part of their stock of goods in their said store, were feloniously taken and carried therefrom in the nighttime." In addition to a formal answer in denial, appellee filed an answer setting up that the policy sued on contained the following provision: "This policy shall not cover any loss . . . if the assured or any associate in interest . . . is implicated as principal or accessory in effecting or attempting to effect the loss"; and that if there were any articles of merchandise removed from the premises during the night of August 26, 1920, as averred in the complaint, such merchandise was removed "by the plaintiff Harry Lyons, in person, or with the full knowledge, consent, and by the express authority and direction, of the said Harry Lyons." To this paragraph of answer appellants filed a reply in denial. Verdict and judgment for appellee.
Overruling motion for a new trial is the only error assigned, and the only reason for a new trial presented to this court as a cause for reversal is the action of the trial court in refusing to give instruction No. 12 tendered *Page 516
by appellants. By this instruction, the court was asked to instruct the jury that in order to defeat a recovery "upon the issue" presented by the special paragraph of answer, "it was necessary for the defendant to establish by a preponderance of the evidence" that the goods alleged to have been taken from the store, "had been removed from the premises by the plaintiff Harry Lyons, in person, or by his authority and direction."
On the trial of the cause, it was the theory of appellee, defendant below, that there was no burglary, no felonious removal of the goods, as averred in the complaint. In support of 1. this theory there was much evidence, and the court, on its own motion, by its instruction No. 8, instructed the jury that there could be no recovery unless plaintiffs by a preponderance of the evidence had established "the fact that their store was burglarized, and that a portion of their goods was stolen and carried away by such burglary," and that if the jury should find from the evidence "that no goods of plaintiffs were stolen or carried away in such burglary," its finding should be "for the defendant." The correctness of this instruction is not questioned. That it is a correct statement of the law, seeFidelity Casualty Co. v. Dulany (1914), 123 Md. 486,91 A. 574; National Surety Co. v. Redmon (1917), 173 Ky. 294, 190 S.W. 1081; Stich v. Fidelity Deposit Co. (1916), 159 N Y Supp. 712; Kansas City Regal Auto Co. v. Old Colony Ins.Co. (1915), 187 Mo. App. 514, 174 S.W. 153; Valley MercantileCo. v. St. Paul, etc., Ins. Co. (1914), 49 Mont. 430,143 P. 559. There could, of course, be no recovery on the policy unless there had been a burglary — unless, as averred in the complaint, the goods "were feloniously taken and carried away from the store." One cannot burglarize his own store. If Harry Lyons, in person, removed the *Page 517
goods, or if by his authority and direction the goods were removed by another, there was no burglary.
The court did not err in refusing to give the requested instruction. The special answer, upon which the instruction is based, is but an argumentative denial. This answer does 2. not, as assumed by appellants, set up affirmative matter which under an exemption clause of the policy would relieve appellee of liability, if appellants as insured were otherwise within the provisions of the insurance contract. Such a case would be presented if this action were on a life policy, which contained a general engagement to pay beneficiary in the event of death of insured, but, in a subsequent paragraph of the policy, death by suicide was made an exception to the general coverage, and defendant had pleaded that death of insured was the result of suicide. In a case of that kind, the burden of proving the suicide would be upon defendant, when plaintiff had made a primafacie case by proving the death of insured. See Modern Woodmen
v. Noyes (1902), 158 Ind. 503, 64 N.E. 21. Or, if this were an action on a fire policy, and defendant had pleaded arson on the part of the insured, the rule would be as contended for by appellants, for, in such a case, the insured could prove the happening of the contingency, namely, the fire, and the burden would be upon the insurer to prove the arson. Morley v.Liverpool, etc., Ins. Co. (1892), 92 Mich. 590, 52 N.W. 939. In the case at bar, however, if the defense averred in the answer is true, the contingency, that is the burglary, could not have happened, for as we have said, one cannot burglarize his own store.
Affirmed. *Page 518 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428421/ | While appellee was in the employment of appellant Southern Railway Company, he sustained personal injuries through the alleged negligence of the company. He was afterwards induced by the alleged fraud of appellants to compromise his action for the injuries sustained, and this action is to recover the damages occasioned by the fraud, the damages alleged being the loss of the original action.
Trial resulted in a verdict and judgment for appellee. Errors assigned in this court are: (1) Overruling demurrer to complaint; (2) overruling motion for new trial.
It is averred in the complaint, in substance, among other things, that appellee was employed by appellant Southern Railway Company as a section hand, and with the rest of the section crew was regularly engaged in repairing the tracks used by appellant Southern Railway *Page 454
Company in interstate commerce; that for use in transporting appellee and the other section men to and from work, the company had provided a motor car which was at all times operated and controlled by the section foreman; that on September 10, 1920, appellee "received lasting and permanent injuries by and through the negligence of the Southern Railway Company," in this, that the section men had quit work for the day, and were returning home on the motor car, when a freight train appeared on the tracks ahead of, and was coming towards, the motor car, which was at the time being negligently operated by the section foreman at a high and dangerous rate of speed, and that the foreman and the "defendants each carelessly applied the brakes to the motor car suddenly and without warning, and without any knowledge or notice on the part of plaintiff of his intention so to do, so that the motor car was stopped suddenly and with a violent jerk," throwing appellee from the car, breaking his right leg, and so injuring him that he was confined to his home for a period of three months. It is further averred that while appellee, because of his injuries, was in a weakened condition, both of body and mind, and that while he was greatly worried about the future support of his family, and was incompetent to transact business, as appellants knew, appellants, by and through their agents, falsely and fraudulently represented to him that they had consulted appellee's physician who had informed them that his injuries were temporary and that "he would be fully and completely recovered in one year"; that, if he would discharge his attorney, they could and would be able to secure for him a much better settlement than he by his attorney could get through court; that, by reason of the false representations of appellants' agents, appellee discharged his attorney, and agreed with appellants to compromise his claim for damages *Page 455
in consideration of $500 cash and the promise that he would receive from appellants "a lifetime job," which agreement was to be reduced to writing by appellants' agents; that, in reducing the agreement to writing, appellants' agents omitted therefrom the stipulation that appellee was to be given a lifetime job, and in lieu thereof inserted in the settlement contract a provision releasing appellants from any liability to take or retain appellee in their employment in any capacity whatever. The paper having been so prepared was signed by appellee, who did so relying upon the false representations of appellants' agents that it contained all the provisions agreed upon, including the provision that appellee was to be given employment for life. At the time appellee signed the compromise agreement, and at all times, appellee, as appellants' agents knew, was illiterate, uneducated and unable to read and was trusting appellants' agents; that by reason of the fraudulent acts of appellants, appellee lost his original cause of action against appellant Southern Railway Company, to his damage in the sum of $35,000.
It is urged that the complaint is defective in that it does not show that the section foreman operated and controlled the motor car in the discharge of any duty under his employment. 1. Aside from the general allegation that the "plaintiff received lasting and permanent injuries by and through the negligence of the defendant Southern Railway Company," it is specially averred that, while returning home at the close of the day's work, the "defendants each carelessly and negligently applied the brakes * * * suddenly without warning, and without any knowledge or notice on the part of plaintiff of his intention so to do, so that the motor car was stopped suddenly, and with a violent jerk, thereby throwing" appellee from the car. From these facts and the inferences reasonably to be *Page 456
drawn therefrom, it is sufficiently averred that the negligence alleged is chargeable to the railway company.
It is further urged that the facts are not alleged in the complaint showing that appellee's cause of action is of any value — that the complaint contains no ad damnum clause. The 2. nature and extent of appellee's injuries are alleged in detail, and it is averred that by reason of the loss of the cause of action appellee is damaged in the sum of $35,000. That is sufficient.
Other objections to the complaint are that the facts averred show that the negligence was that of a fellow servant, that appellee assumed the risk, and that there was no disaffirmance of the release.
Since the averments of the complaint show that at the time appellee received the injuries complained of, both appellee and the Southern Railway Company were engaged in interstate 3-6. commerce, it follows that appellee's original cause of action was under, and governed by, the federal Employers' Liability Act of 1908. See San-Pedro, etc., R. Co. v. Davide
(1914), 127 C.C.A. 454, a case very similar to the case at bar. The federal act abrogates the fellow-servant rule in actions governed by its provisions. Chesapeake, etc., R. Co. v. DeAtley (1916), 241 U.S. 310, 6 L.Ed. 1016. It is a well-settled rule that an employee may assume that his employer has exercised proper care for the employee's safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily prudent person, under the circumstances, would observe and appreciate them. Chesapeake,etc., R. Co. v. De Atley, supra. Under the circumstances averred in the complaint, appellee had a right to assume that the car would not be operated at a dangerously high rate of speed, and while being so operated would not without warning to him be *Page 457
stopped suddenly. The situation did not make the doctrine of assumed risk a defense. Chicago, etc., R. Co. v. Ward (1920),252 U.S. 18, 64 L.Ed. 430.
If this were an action to recover damages resulting from the negligence of the railway company, then the unrescinded contract of settlement which appellee has affirmed would preclude a 7. recovery; but this is not an action based upon the negligence. It is an action for damages based upon the alleged fraud. By it appellee affirms the contract of release, and proceeds upon the principle, well supported by judicial authority, that a person so circumstanced may retain what he has received and sue whomsoever is liable for the consequences of the deceit by which the compromise was brought about, and recover whatever damages resulted therefrom. Rochester Bridge Co. v.McNeill (1919), 188 Ind. 432, 436, 122 N.E. 662; Home Ins.Co. v. Howard (1887), 111 Ind. 544, 13 N.E. 103; Bailey v.London Guarantee, etc., Co. (1918), 72 Ind. App. 84, 121 N.E. 128.
Demurrer to the complaint was properly overruled.
It is contended by appellants that instruction No. 19 is an incorrect statement of the law, in this, that it permitted the jury, in fixing the amount of appellee's damages, to 8, 9. take into consideration such evidence as had been produced upon the trial showing his suffering, both of body and mind, if any, which he would undergo in the future on account of his injuries, and "such other facts pertinent to the question of damages as the evidence presented." Since permanent injuries are averred in the complaint and shown by the evidence, future suffering was a proper element of the damages. The language of the instruction above quoted limits the jury to the evidence "pertinent" to the question of damages, but does not in express terms tell the jury what evidence would be pertinent; although the elements of *Page 458
damage to be considered by the jury are previously set out in this instruction covering the measure of damages. The instruction is subject to criticism, but the giving of it in its incomplete form was not prejudicial to appellants. Broadstreet v. Hall
(1907), 168 Ind. 192, 80 N.E. 145, 10 L.R.A. (N.S.) 933, 120 Am. St. 356. Pittsburgh, etc., R. Co. v. Collins (1907),168 Ind. 467, 80 N.E. 415; Pittsburgh, etc., Co. v. Montgomery (1898),152 Ind. 1, 69 L.R.A. 875, 71 Am. St. 300, 49 N.E. 482.Louisville, etc., Lighting Co. v. Holsclaw (1913),55 Ind. App. 85, 101 N.E. 750.
We have examined the other instructions of which complaint is made; also all instructions tendered by appellant, and which were by the court refused. The requested instructions which 10. stated the law correctly were covered by others given by the court. The instructions given by the court when taken as a whole fairly state the law of the case.
The verdict is sustained by sufficient evidence.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4073854/ | ACCEPTED
01-15-00161-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/23/2015 4:02:01 PM
CHRISTOPHER PRINE
CLERK
Kelly, Durham & Pittard, LLP
1005 Heights Boulevard • Houston, Texas 77008 FILED IN
1st COURT OF APPEALS
Telephone: (713) 529-0048 • Facsimile: (713) 529-2498 HOUSTON, TEXAS
11/23/2015 4:02:01 PM
CHRISTOPHER A. PRINE
November 23, 2015 Clerk
Via Electronic Filing
Mr. Christopher A. Prine, Clerk
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002
Re: Oral Argument
Cause No. 01-15-00161-CV, Camillo Martinez o/b/o deceased,
Yolanda Martinez v. Nabeel “Bill” Arafat d/b/a Texas Car Stereo; In
the First Court of Appeals, Houston, Texas
Dear Mr. Prine:
Peter M. Kelly will present oral argument on behalf of Appellant Camillo
Martinez o/b/o deceased, Yolanda Martinez on December 2, 2015, at 1:30 p.m.
Sincerely,
/s/ Peter M. Kelly
Peter M. Kelly (00791011)
[email protected]
Attorney for Appellant
PMK/ra
cc:
Robin N. Blanchete
Troy A. Williams
GERMER, PLLC
333 Clay St., Suite 4950
Houston, Texas 77002
713.739.7420 - facsimile
[email protected]
[email protected]
Joseph M. Heard
HEARD & MEDACK, P.C.
9494 Southwest Freeway, Suite 700
Houston, Texas 77074
713.772.6495 - facsimile
[email protected]
Counsel for Appellee | 01-03-2023 | 09-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486833/ | A motion has been filed and submitted on behalf of the appellant for a re-argument of this case. We have carefully *Page 542
examined the motion and the appellant's brief in support of it, and we find no reason to disturb the conclusion reached by us as heretofore announced in an opinion filed in the case.
The reason for the motion is stated to be: First, that the principal point upon which the Court decided the case is one that was not passed upon by the Court below, was not discussed in the appellant's brief or oral argument, and is a point upon which the Court fell into error by overlooking a provision of the contract. Second, that the change from lime mortar plaster to ivory hard wall plaster was a change of material and not of work and is not covered by section 5 of the contract, which provides that no alteration should be made in the work shown or described by the drawings and specifications except upon the written order of the owner. Third, that the owner authorized this change in writing, and Fourth, the Court was in error in holding that the testimony does not show that the contractors were responsible for the defective condition of the plastering.
As to the first objection, we need only say, that it will be seen, upon an examination of the opinion itself, that the decision of the case was not based upon any single ground, but after stating a number of reasons for our conclusion, we said, upon the whole record, the case was devoid of legally sufficient evidence to permit the plaintiff to recover under the pleadings and evidence and the case was properly withdrawn from the jury, by the granting of the defendant's first prayer.
The conclusion reached by us upon this prayer, for the reasons we gave, disposed of the case, and made it necessary for us to consider the other prayers. The defendant's second prayer was a demurrer to the evidence, and properly instructed the jury there was no legally sufficient evidence, under the pleadings, to show an indebtedness by the defendant Bonding Company to the plaintiff under its bond filed in the case, and directed a verdict for the defendant. *Page 543
As a matter of fact, however, the point or ground here objected to was discussed both in the oral argument and upon the appellee's brief, under point 3, page 14 of the brief.
The second and third objections will be considered together. By reference to the 5th paragraph of the contract, it will be seen, that the contract provides, in terms that no alteration should be made in the work, shown or described by the drawings and specifications except upon the written order of the owner.
Now while it is conceded, that as to the plastering work, ivory hard wall plaster had been substituted for lime and mortar plaster, without the written order of the owner it is contended that this alteration or substitution was a change of material and not of work, and is not covered by section 5 of the contract.
The word work, obviously, has a very broad and general meaning but is defined as applied to contracts to be the product of labor and material combined which terminates in the execution of the contract, and applies to all the work done under the contract. This meaning of the word, it will be seen, runs through the whole contract and specifications in this case and it is in this sense that the word is here used. This meaning is supported by certain expressions in the contract itself for example, "Take down thework which the architect shall condemn," "The contractor shall cover and protect the work from damage by the weather," "The contractor shall maintain insurance on the work." And in the specifications will be found similar expressions, to wit, "The contractor shall have some competent person on the work," "The contractor must protect his work," and "Work shown on the drawings." It is, therefore, clear, we think, that the fifth paragraph of the contract refers to the plastering work, and a change of materials was a change of this work.
The paragraph from the specifications under the head of changes relied upon by the appellant refer to extra work, and is the usual provision in building contracts. There was no written order of the owner as required by the contract to *Page 544
make the alteration as agreed upon. The approval of the change by the architect of the building could not bind the surety the appellee here. The architect, Glidden, was in no sense the agent of the church for this purpose and could not act as agent for the church except under the contract and this clearly required a written order of the owner. This question is fully discussed in the opinion and need not be further considered here.
The fourth objection is also covered by the opinion. By paragraph 4 of the contract it is provided, that the decision of the architect on all matters referred to him, shall be final and conclusive. In this case, the architect gave his approval of the plastering, and his decision is shown by the opinion filed in the case to be conclusive between the parties. Filston Farm Co. v.Henderson Co., 106 Md. 335; Lynn v. B. O.R.R. Co.,60 Md. 415; Pope v. King, 108 Md. 44; 16 L.R.A. (U.S.) 489; Smith Sons v. Jewell, 104 Md. 270; Potomac Steamboat Co. v.Harlan, 66 Md. 42.
We have carefully reviewed the case and discover no reason for granting another argument, as we think the case is fully covered by the opinion, and for the reasons stated the motion for a re-argument will be overruled.
Motion overruled, with costs. *Page 545 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486834/ | This action was brought in the Circuit Court for Baltimore County by John H. Morgan and Frank B. Smith, receivers of the Maryland Storage Company, a corporation under the laws of Maryland, duly adjudged to be insolvent, against Fairfax S. Landstreet, to recover the sum of $30,000, being the amount of the defendant's written subscription made June 10, 1907, for 600 shares of the capital stock of said company of the par value of $50 per share. The proceeding was by way of attachment against the defendant as a non-resident, who entered a voluntary appearance in the summons case. The short note contained one count for money due on account stated, and a special count on the contract of subscription. The defendant filed the two general issue pleas in assumpsit, and a third plea, "that the subscription mentioned in the plaintiffs' declaration was subject to a condition precedent, that said subscription was not to be binding on the defendant until all of the original capital stock of the said Maryland Storage Company was duly subscribed, and that *Page 583
subscriptions were never obtained for all of said original stock, and said condition precedent never complied with, whereby the defendant's subscription never became effective or binding." The plaintiffs joined issue on the defendant's first and second pleas, and to the third plea filed two replications — first, that said subscription was not subject to the condition precedent pleaded; and, second, that the defendant, by his acts, had waived any and all defense on account of the alleged fact that all of the original capital stock of the Maryland Storage Company was not subscribed.
The defendant joined issue on the first replication to the third plea, and as to the second replication, rejoined that he had not, by his acts, waived any defense on account of the alleged fact that all of the said original stock had not been subscribed. And the plaintiffs joined issue by way of surre-joinder on the defendant's rejoinder to the plaintiffs' second replication to the defendant's third plea. It thus appears that the fact of the subscription was admitted, and also that no part of the same has been paid, and under the pleadings two questions only were in issue — first, whether the contract of subscription was subject to the condition precedent pleaded; and, second, if so, whether such condition had been waived by the acts of the defendant.
At the close of all the testimony on both sides of the case, the defendant moved to strike out certain items of testimony which had been admitted subject to exception, and the plaintiffs moved to strike all the testimony adduced at the trial which tends to qualify the written subscription, whether contained in the defendant's own statements or in his letters offered in evidence, or in the testimony of the witnesses Timanus and Brady; also defendant's statement of what he told Timanus as to taking the last $30,000 of stock, when he, Timanus, had secured the balance, and also what he said either to Redwood or Brady, as to any subscription to be made to this stock by the Western Maryland Railroad Company. Both these requests were refused.
The plaintiffs then offered five prayers, all of which were *Page 584
rejected, and the defendant offered three prays, of which the second and third were rejected, and the first was granted, as follows: "The Court instructs the jury that by the uncontradicted evidence in the case the stock of the Maryland Storage Company authorized by its charter was never fully subscribed, and their verdict must be for the defendant, there being no evidence in the case legally sufficient to estop the defendant from setting up the defense of partial subscription to stock," thus withdrawing the case from the jury. The rejected prayers will be set out by the Rejorter. The defendant excepted specially to the plaintiffs' second prayer on the ground that there was no evidence that defendant subscribed to any increased capital stock of the storage company, and not its formative or original stock, and this special exception was sustained; all of these rulings being embraced in the single exception taken.
A brief statement of the history of the case will throw material light upon the situation, before going into the law applicable to the case.
The storage company was incorporated under the laws of Maryland, Nov. 18th, 1904, to carry on a forwarding and warehouse business, there being seven directors, and the authorized stock being 3,000 shares of the par value of $50 each. Mr. Timanus was then President of the storage company, and Mr. Landstreet was then Vice-President of the Western Md. R.R. Co. This company had recently established a tidewater terminus at Port Covington, and one of the principal objects of the organization of the storage company was to secure the storage business incidental to the new tidewater terminus. This appears in Mr. Timanus' letter of July 1st, 1904, to Mr. Landstreet as Vice-President of the railroad company. On November 17th, 1904, Timanus, learning that the railroad company was about to acquire the possession of Brown's wharf, on the north side of the harbor of Baltimore City, proposed to Landstreet to take a lease of the warehouse then on that wharf. This permitted, without further cost for building, a small active business, requiring nine or *Page 585
ten clerks and laborers and doing a business of about $1,800 a month. He testified they were trying to get the railroad company or Landstreet interested in the storage company. No agreement was reached in the matter of the lease until June 12, 1906, when a lease of Brown's wharf was executed for five years, containing a covenant on the part of the storage company to erect a storage house on York Street, to be completed, if possible, by January 1st, 1907. At that time there was no actual subscription by Landstreet, either for the railroad company, in his own name, or for any other individual. In May, 1905, the charter was duly amended, so as to increase the number of directors from seven to nine. In July, 1906, a stockholders' meeting was called for the purpose of increasing the capital stock from $150,000 to $250,000 and the number of directors from nine to twelve. It appears from the minutes of that meeting that stockholders were present representing sixty-five shares of stock, that being more than two-thirds of the whole number of shares then issued, and that these voted to increase the amount of capital stock and the number of directors as above proposed. These proceedings, however, were abortive, both because the requisits notice was not properly addressed to the stockholders, and because the proposed amendment was not acknowledged and recorded as required by secs. 51, 52 and 55 of Art. 23 of the Code.
In May, 1907, Landstreet resigned as Vice-President of the railroad company, and Brady, Vice-President of the storage company, testifies that at that time he asked him when he would sign a subscription, as some who had subscribed would not pay until they felt sure of his subscription, as he had resigned from the railroad company, and he said he would let him hear in a few days. Later he told Landstreet they wanted him as a director. On June 10, 1907, he signed the subscription and consented to be elected a director. At that time there were ten directors elected and serving, being one more than the charter allowed. Landstreet never qualified *Page 586
as director, and never attended any stockholders' or directors' meeting.
At the date of his subscription, Brady testifies there were subscriptions, including Landstreet's, of about $101,000, and no greater amount was ever subscribed.
Mr. Morgan, one of the receivers, testified from the books and papers that came into his hands as receiver, that at that time $40,000 had been paid in on subscriptions, about $36,000 unconditional subscriptions, unpaid, including Landstreet's $30,000, and some conditional subscriptions, unpaid, the whole amounting to about $101,000, as stated by Brady.
On July 1, 1907, there being then only $76,000 unconditionally subscribed, including the $30,000 of Landstreet, the directors resolved to build the York Street storage house at a cost not to exceed $145,000. The York Street lot was subject to two mortgages aggregating $51,000, and the building contract called for an expenditure of $136,000. The lot sold for barely enough to cover these mortgages. Brady in the latter part of July, 1907, tried to induce Landstreet to go to see the building, then started, but he declined to go. In September, 1907, he asked Landstreet for a payment on the subscription, and he told Brady that, under the business and financial conditions existing they ought to hold off the work, and Brady explained they had gone too far to stop. Later, and early in October, Landstreet did go with Timanus and Brady and examine the work in progress, and he said he thought it was a good building. Brady did not then ask for any payment and did not hear Timanus ask for any; and Brady never afterwards saw him on that subject.
Timanus testified that he asked Landstreet several times in the summer and fall of 1907 for payments on account, and his answer was that money was hard to get, and once, in September, 1907, he said he was not liable and would not pay it at all.
He also testified that Landstreet told him that when he subscribed Brady told him that all the stock had been either subscribed or promised. Brady, however, denied this, and *Page 587
said that he told Landstreet that his binding subscription would enable them to get many others, but did not say they could complete the total authorized capital. Landstreet testified that when the organization of the storage company was under duscussion between Timanus and himself, he said that if he would get a strong management and have the finances in unquestionable form before undertaking the enterprise, the railroad company would co-operate with him and would take the last $30,000 of its stock of $150,000, and that in all the negotiations throughout he acted in behalf of the railroad company, and at no time and in no way as an individual, and that it was so understood by all concerned. He states that as early as January, 1907, when informed by Brady of their plan to acquire property on the south side of the harbor that he advised against any additional enterprises, and that after his resignation as Vice-President of the railroad company he remained one of its directors, and told both Timanus and Brady they would have to take up the subscription of the railroad company with other officials and that if the storage company complied with the previous understanding, he saw no reason why the matter should not be concluded. That shortly after this Brady came to see him, and said that he had responsible men in Baltimore, mentioning a number of them, who were only waiting for the signature of the railroad company, and who would then sign subscriptions to the full amount of the authorized capital stock of the company, and urged him to sign personally for this $30,000, which he did upon those assurances, and the further assurance that their finances were in condition to meet any undertaking entered into.
He also says, that in signing he expressly stated to Brady that he was not signing his name as an individual that would engage him in any financial obligation, and that Brady replied nothing was to be paid on that subscription until business conditions would warrant it. He also says that when he visited the building in October, 1907, no reference was made to his subscription, but Messrs. Timanus and *Page 588
Brady stated that they wished to arrange with the Western Md. R.R. Co. to take over this building, and some of the officials advised them to get him to examine it, so that he could report thereon to the executive board.
We have thus condensed the most material testimony in the case, and will now consider the propriety of the granted instruction, which constitutes the principal and controlling question in this appeal.
We could not expect, and do not understand the appellants to deny the general rule, that where the capital stock and the number of shares are fixed by the act, or certificate, of incorporation as in the present case, no assessment can be lawfully made on the share of any subscriber until the whole number of shares has been taken. This principle was early adopted both in England and in this country, and is now firmly established as a rule of law. Two of the earliest cases in this country are Salem Mill Dam v. Ropes, 6 Pick. 23, andStoneham v. Gould, 2 Gray, 277, in both of which the reasons for the rule were given by eminent Chief Judges of the Supreme Court of Massachusetts, PARKER and SHAW. No more convincing reasons could be given than those stated by CHIEF JUDGE SHAW in 2Gray, supra. He says: "This is no arbitrary rule. It is founded on the plain dictate of justice and the strict principles regulating the obligation of contract. When a man subscribes for a share of stock, consisting of one thousand shares, in order to carry on some designated enterprise, he binds himself to pay one-thousandth part of the cost of such enterprise. If only five hundred are subscribed for, and he can have no assurance whichhe is bound to accept, that the remainder will be taken, he would be held, if liable to an assessment, to pay one-five hundredth part of the enterprise, besides incurring the risk of the entire failure of the enterprise itself, and the loss of the amount advanced towards it."
This rule, with the reasons which led to it, were adopted in this State in Hughes v. Antietam, 34 Md. 331, and has been laid down consistently since in Cleveland v. Hager, *Page 589 36 Md. 476; Garling v. Baechtel, 41 Md. 305; Dougherty v.Gilman, 44 Md. 380; Morrison v. Dorsey, 48 Md. 472;Musgrave v. Morrison, 54 Md. 164, and Gettysburg Bank v.Brown, 95 Md. 367. In the last-mentioned, the latest case upon the point in this State, JUDGE PAGE said: "These rules apply to subscriptions made before and after the company is chartered. They are founded upon the theory that the subscription is made upon the implied understanding that the entire amount of stock fixed by the charter is necessary for the successful prosecution of the business for which the company was incorporated. It is not to be supposed that a reasonably prudent person will invest in a corporation which is not to be supplied with sufficient capital with which to prosecute its affairs; and therefore it is that a presumption arises that the amount fixed in the charter shall be raised before the corporation creates any liabilities."
There are substantial differences, it is true, in this regard between "original or formative" stock and "increased" stock, but that question does not arise here, because the attempt to increase the stock was not operative.
It is sufficient that the Maryland rule is as stated, but, as indicating its soundness and universality, it may be stated that it prevails in New York, Missouri, Connecticut, New Hampshire, Wisconsin, Iowa, Georgia, California, Illinois, Maine, Tennessee, Ohio and generally throughout the United States.
It will be observed that it is spoken of generally as an implied rule, but it may of course be expressed, and in this case the uncontradicted testimony of Mr. Landstreet is that he expressly agreed to take only the last $30,000 of the wholeamount of $150,000, so that his subscription was upon the express condition that the whole residue of the stock should be taken before his subscription became binding. This condition not having been incorporated in the written subscription, might, perhaps, not have been available as a defense, if the residue had been fully and unconditionally subscribed; but the uncontradicted evidence in this case shows that there *Page 590
were never over $76,000 unconditional subscriptions, and the cases are uniform that for this purpose there can be counted only unconditional subscriptions, payable in cash. Troy v. R.R.Co.. 8 Gray, 596; Oscaloosa v. Parkhurst, 54 Iowa 357;Brand v. Lawrenceville R.R., 77 Geo. 506; Cal. SouthernHotel Co. v. Russell, 83 Cal. 277.
While the appellants, as we have said, do not deny the general rule invoked, they do contend that "if the corporation is already a going concern at the time of the subscription, and is continuing to create liabilities to the knowledge of the subscriber, and the subscriber also knows that its stock fixed in its charter is not fully subscribed," then the presumption which this Court, in Gettysburg Bank v. Brown, 95 Md. 386, said arises, "that the amount fixed in the charter shall be raised before the corporation creates liabilities," cannot arise, and the rule has no application. This contention seems to us to cnofound the general rule with the subsidiary rule, equally well settled, that this defense may be waived, or the subscriber be estopped from setting it up. The appellants cite in support of their contention what they concede to be a dictum of this Court in Musgrove v. Morrison, 54 Md. 161, in which JUDGE ROBINSON said: "We do not mean to say that this rule applies to corporations of every kind without regard to the objects and purposes for which they are chartered. * * * In this case, the company was chartered for the purpose of buying, selling and leasing property and also as a hamestead and building association, and at the time of the appellant's subscription was engaged in the prosecution of its business, and he knew at thesame time that its whole capital stock had not been taken, and under these circumstances it might well be argued that his subscription was not made upon the condition that the company was not to organize until the whole number of shares had been taken." But the learned Judge, nevertheless, placed the decision squarely on the ground that during three years that he was a member, he not only regularly paid his weekly dues, but accepted his proportion of the profits earned, and through an attorney *Page 591
voted his stock at all meetings, whether for the election of directors or the transaction of other business, and the Court expressly states that all this time he knew the whole capital stock had not been taken.
Another case cited for their contention is Arkadelphia Mills
v. Trimble, 54 Ark. 519, in which the Court said: "The fact was that the corporation began business as soon as the $14,500 was subscribed, and after that Trimble agreed to take and pay for the $500 subscribed by him. From this it is evident that there was and could be no implied condition in his agreement that the corporation should not begin business until all the capital stock was taken. The corporation was engaged in business when he subscribed. It was evident it would need money in the prosecution of its enterprise, for if it would not, there was no necessity for his subscription. He was not to be an honorary member." A little further examination of that case will show, however, that far from supporting the appellants' contention as applied to the facts of this case, it bears out the application of the general rule as inherent in the appellee's subscription, and shows it as avoidable only by waiver or estoppel. The articles of association in that case which were subscribed by Trimble contained the following provision: "The amount of capital stock of said association shall be $50,000, of which $14,500 have been subscribed by corporators aforesaid, and the residue may beissued and disposed of as the board of directors may from time totime order and direct;" and the Court said: "No implication arises from this provision that the corporation was to postpone its enterprise until all the capital stock had been subscribed. The most reasonable inference to be drawn from it is that the $14,500 was all the money needed for the purpose. The fact was that it began business as soon as the $14,500 was subscribed, and after that Trimble agreed to take his stock." These articles of association could well be construed as fixing the formative or original stock at $14,500, with power to increase the same from time to time as the directors should see fit, up to $50,000, and this is precisely *Page 592
what it is fair to presume JUDGE ROBINSON meant in Musgrave v.Morrison, supra, when he said, on page 164: "It may be obvious from the face of the charter itself, that the whole capital stock is not in any manner necessary to the organization of the company, and that the subscriber knew, or had reason to know, this at the time of subscription."
We can perceive nothing in the case before us in the nature or kind of business for which the storage company was incorporated (if that can in any case be a proper subject of inquiry), nor in the time when, or the circumstances under which, the appellee made the subscription in suit which should take this case out of the general rule. It appears from the subscription blank that the capital stock was then designed to be $250,000, presumably upon the supposition that the attempted increase from $150,000, as fixed by the certificate, to $250,000 was regular and effective. The original stock, however, was $150,000, and there is no evidence, as in the Arkansas case, supra, that the charter authorized the organization of its main enterprise before the full amount was subscribed. The subscription in this case was made June 10, 1907. Prior to June 12th, 1906, the company was doing a small business, principally in towing and lighterage, requiring comparatively small capital. In July, 1906, it leased Brown's wharf and began a storage business there, but at that time it contemplated the expenditure of a large amount in the erection of a modern storage warehouse, to which it bound itself in that lease in pursuance of negotiations with the appellee representing the railroad company. The erection of that warehouse, for that purpose, then became and continued to be its main enterprise. The appellee's subscription was made June 10, 1907, and the building contract, made in July, 1907, called for an expenditure of $136,000, nearly the whole of the authorized capital. In addition to this, the storage company purchased ground on which to erect the warehouse, and mortgaged the same for $50,000. All this was done without the concurrence of the appellee, who at the time of making the subscription advised against undertaking any construction under *Page 593
existing business conditions, and continued so to advise. In considering this situation it must not be forgotten, as said inHager v. Cleveland, 36 Md. 487, that "there is a wide difference between the existence of the company as a corporate body, and the liability of parties for their subscriptions to its capital stock;" and, as repeated in Gettysburg Bank v. Brown,95 Md. 385, that "this rule applies to subscriptions made before and after the company is chartered." The fact that the appellee knew that the storage company was about to involve its stockholders in this large financial undertaking is conclusive that he was entitled to the benefit of the rule he now invokes. We cannot imagine a situation in which this rule could apply with more peculiar force if the reasons so forcibly assigned by JUDGE SHAW in 2 Gray, supra, and so fully approved by this and other Courts, are in themselves sound and satisfactory.
But it remains to enquire whether this defense has been waived, or the appellee estopped to claim its benefit.
In considering this question it must be kept in mind that there is not only no evidence to show that Landstreet did not know all the stock was not subscribed, but that he subscribed in reliance upon Brady's assurance that it was all either actually subscribed or promised to be subscribed immediately upon his subscription being made, as indicating the co-operation of the railroad company. Technical estoppel, it may be conceded, is not required, and any acts which constitute waiver will be sufficient.
It is uncontradicted that Landstreet never qualified as a director, and never attended any directors' or stockholders' meeting, nor participated in any way in the incurring of any obligation or the transaction of any business of the company.
In Garling v. Baechtel, 41 Md. 305, it was held that where a stockholder attends meetings of the company, knowing the wholecapital stock has not been taken, and votes for the expenditure of money for the purchase of property and materials to carry on the business of the company, he will not be *Page 594
permitted to set up the defense that the capital stock had not all been taken. And to the same effect is Hager v. Cleveland,36 Md. 476; Stillman v. Dougherty, 44 Md. 380. But inGarling v. Baechtel, 41 Md., supra, which was a suit to recover of Garling as a stockholder a debt due Baechtel by the company, JUDGE ROBINSON also said: "The mere fact that he paid his subscription, knowing that the whole capital stock had not been paid in, and that the company was incurring debts for property and material, were not such acts of participation as to estop him from setting up in this action the partial subscription of the capital stock." And this was held also in Bray v.Farwell, 81 N.Y. 600, in a similar case, where defendant never attended a stocholders' meeting or assented in any way to the commencement of the enterprise before all the shares were taken.
In Ridgefield R.R. v. Reynolds, 46 Conn. 375, Reynolds attended stockholders' meeting to elect directors and was himself elected a director and accepted. He was present at a meeting of directors when an assessment of forty per cent. was laid, and when a report was made by the President of a contract for construction, and work actually begun; but it did not appear he participated in any action taken at the meeting. It was held none of these things constituted a waiver. CHIEF JUSTICE PARK said: "The case is silent as to his conduct. His simplepresence is as much in accord with one supposition as the other. The burden of proof is on the appellees."
In Masonic Temple v. Channell, 43 Minn. 353, the Court said: "It is to be regretted that there has been any relaxation of this rule. The acts as stockholder which will constitute a waiver are those which constitute a part of the business for which the corporation is formed, and which evince a willingness to enter upon that business with the stock already subscribed." This is a clear and plain statement of the principle upon which all such questions should be resolved.
In that case the defendant was a director, attended meetings as such, and was chairman of a committee to select a *Page 595
building site, and only resisted payment when the site he favored was not selected. This was held a waiver. The facts in this case do not, in our opinion, bring it within any well-considered decision under which a waiver could be found, and we think the learned Judge below correctly granted the defendant's first prayer.
As this necessarily requires the affirmance of the judgment, there is no occasion to consider the other prayers, nor the disposition of the motions to strike out evidence, all of which were refused.
Judgment affirmed with costs to the appellee above and below. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486667/ | Three indictments were returned by the grand jury of Baltimore City against the appellant, Milton B. Delcher, a vice-president of the Chesapeake Bank of Baltimore City, for certain alleged criminal transactions whereby the accused obtained money from said bank prior to the appointment of the receiver.
In the first of these indictments, No. 173 on the 1931 docket of the Criminal Court of Baltimore City, the accused was charged with larceny and false pretense in respect of certain transactions whereby "Young's System, a corporation," obtained certain funds from the bank. The appellant, *Page 478
by the second indictment, No. 174, was charged with said offenses in respect of two transactions whereby he received certain funds of the bank, which were used by him in the purchase, through W.W. Lanahan Co., brokers, of certain shares of stock for his individual account. The third indictment, No. 175, charged larceny and false pretense in respect of certain transactions whereby "Charles Decorators, Inc., a corporation," in which the accused was financially interested, obtained certain funds from the bank on the strength of an alleged false representation made by the accused to the bank's board of directors. The State and defense agreed that the three indictments should be tried by the same jury at the same time.
The verdict of the jury upon the charges contained in indictment No. 173 was not guilty. The verdict as to the second indictment, No. 174, was guilty on the second and fourth counts, the larceny counts, but not guilty on the first and third, the false pretense counts. As to the third indictment, No. 175, the jury found the accused guilty on the first, third, fifth, seventh, ninth and eleventh counts of the indictment, the false pretense counts, but not guilty on the others, the larceny counts. The defendant was thereafter sentenced to a term of five years in the Baltimore City Jail on the conviction in each of said indictments, the sentences to run concurrently. From that judgment an appeal was taken to this court. Thereafter, motions to strike out the verdicts, judgments and sentences upon those counts in the two indictments upon which the appellant had been found guilty were filed, and overruled by the court. And from the rulings of the court thereon appeals were taken to this court. The four appeals were subsequently consolidated in one record by order of this court passed on July 2d 1931.
The indictments being filed, bills of particulars were demanded by the defendant, and, upon the filing of the same, exceptions taken thereto were overruled. Whereupon a demurrer was filed to each count of the indictments, and these, *Page 479
too, were overruled. Thereafter the defendant moved to quash the indictments, which motions were also overruled.
The indictment in No. 174 contained four counts. The first and third charged the larceny of the respective sums therein named, alleging the same to be the property of the Chesapeake Bank. The second and fourth counts charged, in the usual form, the obtaining of the sums named therein by false pretense.
The bill of particulars was furnished the defendant under section 555 of article 27 of the Code, which gave to him a statement of the false pretense intended to be given in evidence, as well as the names of the witnesses, and it is, we think, in full compliance with the statute; but, should it be held otherwise, the defendant was not thereby hurt, inasmuch as he was acquitted upon those counts of the indictment (Burgess v.State, 161 Md. 162, 155 A. 153; 31 C.J., sec. 553, page 880, note 2); and the same may be said as to the action of the court in its ruling upon the motions to quash. With the false pretense counts eliminated from consideration, the demurrer to the remaining larceny counts, which were in the usual form, was properly overruled. In fact, the defendant in his brief is silent upon the action of the court in its rulings upon the bill of particulars, the motion to quash, and the demurrer to the indictment, in No. 174. He confines his discussion therein to the action of the court in overruling the bill of particulars, the motion to quash, and the demurrer to the indictment, in No. 175.
This last-mentioned indictment contained twelve counts. In the first, third, fifth, seventh, ninth and eleventh, the traverser was charged with obtaining the respective sums of money therein named by false pretense, and upon these counts he was found guilty. In the other counts he was charged with larceny, and was found not guilty.
The State, in its bill of particulars, in answer to the demand of the defendant, as to the first count of the indictment, No. 175, stated that the traverser, Milton B. Delcher, vice-president of the Chesapeake Bank, engaged in the banking *Page 480
business in that city, did from on or about the 7th of November, 1928, up to and including the 31st day of December, 1928, obtain from the bank the sum of money therein named upon the representation made by him to the bank and its directors "that one Bruno H. Buckholz, who was then and there the president of the Charles Decorators, Inc., was an antique dealer having a place of business on North Charles Street, in said city, by the name of Buckholz, and that the said Bruno H. Buckholz was a man of substantial means and financial responsibility; whereas, in truth and in fact, as he, the said Milton B. Delcher, then and there well knew, the said Bruno H. Buckholz was not an antique dealer on North Charles Street, and was not a man of substantial means and financial responsibility, and was not the antique dealer named Buckholz on North Charles Street;
"And that the said Milton B. Delcher did, in addition, during the above-mentioned period, approve, okay and direct the honoring and payment by the bank of certain checks of the Charles Decorators, Inc., drawn on the Chesapeake Bank of Baltimore, a corporation, as and when the same were received by or presented at the said bank for payment, when he, the said Milton B. Delcher, then and there well knew that the said Charles Decorators, Inc., did not (when the said checks were received and presented for payment as aforesaid) have sufficient money on deposit with or at the said Chesapeake Bank of Baltimore, a corporation, to meet and pay the same, and knew that the financial condition, status and circumstances of the said Charles Decorators, Inc., was not such as to warrant said bank honoring, meeting and paying said checks, as aforesaid."
The other counts of the indictment, wherein the traverser is charged with obtaining money under false pretense, differ from the first only as to the period in which the money was obtained and in the amount so obtained.
Exceptions were filed to the bill of particulars as to the first, third, fifth, seventh, ninth and eleventh counts of the indictments, whereby the defendant was charged with obtaining money under false pretense, the grounds of the exceptions being: *Page 481
(1) Because the said alleged bill of particulars does not "sufficiently inform the defendant of the charges in said counts that he has to answer in the trial of said cause."
(2) Because it "does not clearly, properly and sufficiently designate or describe the means, instruments, methods or instrumentalities alleged to have been used in the perpetration of the alleged false pretense so that there can be no mistake as to the identification of the means, instruments, methods and instrumentalities that may be produced in evidence by the State in support of said" counts of the indictment.
(3) Because the allegations of the bill of particulars contained therein "are insufficient in law to sustain" said counts in the indictment and the offenses charged therein.
(4) Because the allegations in said bill of particulars as to the counts of the indictment "do not constitute a criminal offense under the Laws of the State of Maryland, nor do the allegations * * * constitute the offense of false pretense" under said laws.
There was a further ground contained in the exceptions — that the bill of particulars did not contain a list of names of the witnesses, as required by the statute, but it is admitted by the defendant in his motion in arrest of judgment that the names of such witnesses were furnished him.
In Jules v. State, 85 Md. 312, 36 A. 1027, 1029, where the defendant was charged with obtaining money under false pretenses, this court said: "The office of a bill of particulars like this is — First, to inform the defendant of the names of the witnesses the State expects to call; and, secondly, to furnish him with a statement of the false pretenses intended to be relied on, and given in evidence. Code, art. 27, sec. 288. It was the theory of the State, and during a part of the argument also that of the defense, that a bill of particulars of this kind is no part of the pleading, and therefore not subject to demurrer. And that this view is correct is apparent from the nature of the statement of particulars, which, as we have seen, is intended only to furnish the false pretenses *Page 482
intended to be given in evidence, and the names of the witnesses. As is said in section 702, Whart. Cr. Pl.: `The adoption of such bills, instead of the exacting of increased particularity in indictments, is productive of several advantages. It prevents much cumbrous special pleading and consequent failures of justice, as no demurrer lies to bills of particulars; and it gives to the defendant, in plain, unartificial language, notice of the charge he is to meet'."
In this case the bill of particulars, we think, fully meets the requirements above stated. The statement of the facts found in the bill of particulars furnished under the statute sufficiently enabled the defendant to prepare his defense, 31 C.J. 751 and 752. And we find no error in the court's action in overruling the defendant's motion to quash, the grounds of which were practically the same as those contained in the exceptions to the bill of particulars.
The demurrer to the indictment is based chiefly upon the grounds: (1) That the false pretense counts of the indictment, when read in conjunction with the bill of particulars, show each count to be bad because it attempts to charge a series of false pretenses rather than the one act of false pretense; (2) that, by an examination of the second paragraph of the bill of particulars taken in conjunction with each false pretense count of the indictment, it will be shown that the charge therein stated is larceny rather than false pretenses; and (3) that there was not only a mingling in the same count of separate and distinct crimes of false pretenses, but there was a mingling in the same count of the crime of false pretenses with the crime of larceny.
A bill of particulars is no part of the indictment or pleading, and it is, we think, well settled that, where the indictment is in the usual form and not demurrable on its face, it does not become so when considered in connection with the bill of particulars. Nor can a defective indictment be made sufficient by a bill of particulars. Dunlop v. United States, 165 U.S. 486, 17 S. Ct. 375, 41 L. Ed. 799; Com. v. Davis, 11 Pick. (Mass.) 432; Jules v. State, 85 Md. 305, 36 A. 1027; State v. LehighValley R. Co., 94 N.J. Law, 171, *Page 483
111 A. 257; State v. Dix, 33 Wash. 405, 74 P. 570; 31 C.J. 753; and we do not find that the indictment violates the rule that not more than one offense can be charged in one count of the indictment.
Each of the false pretense counts charges that the alleged offense was committed at the specific time therein stated. In the first count, the offense is alleged to have been committed on the 31st day of December, 1928; the third count on the 29th day of June, 1929; the fifth on the 31st of December, 1929; the seventh on the 19th of May, 1930; the ninth on the 7th of October, 1930; and the eleventh on the 14th of November, 1930. It is true that the bill of particulars alleges, and the proof shows, that the amount alleged in each of the false pretense counts was received on various days and times preceding, and inclusive of, the day named in the indictment. In other words, the amount named in the indictment was the aggregate amount obtained by the traverser at different times through a period immediately preceding and inclusive of the date mentioned therein; for which reason it is contended by the appellant that the indictment is defective because of duplicity, he going so far as to claim that there should have been a count for each of the items obtained at the different times, which would have necessitated, as disclosed by the evidence, the insertion of 554 counts in the indictments. The disclosures made by the bill of particulars or the evidence offered, or by both, that the amount named in the indictment was obtained at times prior to and inclusive of that date, would not, for the reasons already stated, render the indictment, in which the time was specifically alleged, demurrable. And, while we do not decide, as there is no necessity for so doing, it would hardly seem essential to the validity of the indictment that there should be a separate count covering each of the items in a series of continuing offenses, had those facts appeared upon the face of the indictment.
After the disposition of the exceptions to the bill of particulars, and the motion to quash and the demurrer to the indictment, one Franklin Cole, sales manager for W.W. *Page 484
Lanahan Co., investment brokers, was called to the stand as a witness by the State, and testified that he, on or about the 4th day of September, 1930, had a transaction with Mr. Delcher, the defendant, in which the latter placed an order with him for two hundred shares of the General Theatre Equipment. The defendant at this point moved to strike out the answer of the witness, unless the State agreed to follow it up and prove the corpus delicti. This objection, as stated, was made in conjunction with the motion to quash and the exceptions to the bill of particulars. In response thereto, the court ruled that it would admit the evidence subject to the condition that the State offered evidence establishing the corpus delicti. "Thereupon the motion to strike out the answer of the witness was overruled and an exception noted by the defendant."
This evidence was offered in support of the charge against the traverser in indictment No. 174, which, we have said, contained four counts, in two of which (the first and the third) the defendant was charged with the larceny of money, the property of the Chesapeake Bank, and in the other two (the second and fourth) with obtaining money from the bank under false pretense.
In the bill of particulars to the second count of the indictment, it was alleged that the traverser, a vice-president of the bank, "did issue a check for $7,230.90, dated September 4, 1930, drawn on the said Chesapeake Bank, payable to the order of W.W. Lanahan Co., and signed Milton B. Delcher, he, the said Milton B. Delcher, not having at said time a checking account with the said bank, and not having on deposit sufficient money for the payment of said check; that said check, on or about the 6th day of September, 1930, was honored and paid by the said Chesapeake Bank; * * * the said check for the said sum of $4,230.90, having been issued in payment of the purchase price of certain stock bought personally and individually by the said Milton B. Delcher, then and there well knowing that at the time of the issuance of said check, and the payment of said check, he did not have a checking account with the *Page 485
said Chesapeake Bank, and that he did not have sufficient funds on deposit at the time said check was paid, to meet the payment thereof."
It is alleged in the bill of particulars to the fourth count that the defendant "did induce and cause Guy W. Meeks, who was then an employee of said bank, to issue a cashier's check in the amount of $5,831.46, drawn by the said bank on the said bank, and signed G.W. Meeks for Cashier, payable to the order of W.W. Lanahan Co., and dated October 2, 1930, which said check was on or about October 3, 1930, honored and paid by the said Chesapeake Bank; * * * the said Milton B. Delcher, at the time of the issuance of said check pretending that the said check was issued in payment of and in connection with a regular bank transaction; whereas in truth and in fact, as he, the said Milton B. Delcher, then and there well knew, the said check was issued in payment of and in connection with the purchase of stock by the said Milton B. Delcher, personally and individually, the said Milton B. Delcher not having at the time of the payment of said check by said Chesapeake Bank, * * * deposited with or delivered to the said bank sufficient money for the payment of said check."
To meet the facts as they might be developed by the evidence when offered, the defendant, in respect to each of the two transactions, was charged with both larceny and false pretense.
In this state, the jury are both the judges of the law and the facts, and it was for them in this case to determine, upon the evidence adduced, the offense of which the traverser was guilty, or whether he was guilty of either, while the admissibility of the testimony offered was a question for the court to decide.
The witness, whose answer the defendant asked to be stricken out, had started to tell of the transaction resulting in the purchase by the traverser through W.W. Lanahan Company, investment brokers, of the stock mentioned in the bill of particulars, when he was interrupted by the objection of the defendant. The admissibility of the evidence offered *Page 486
depended upon the question whether it tended to prove facts essential to be proved, in any one of the three cases which were being tried together, including the corpus delicti. This evidence had such a tendency, and should have been admitted unconditionally and not subject to the conditions imposed by the court, and, when admitted, it was for the jury, and not the court, to determine whether the corpus delicti had been established. The jury and not the court were to determine the weight of the evidence, and they were to apply to it the law as they interpreted it, and, as a result thereof, determine the innocence or guilt of the traverser. In the event of an error or abuse in the exercise of that power by the jury, the traverser's remedy was by application to the court for a new trial. He made such application, but withdrew it before any decision was had thereon. Rasin v. State, 153 Md. 431, 138 A. 338; Myers v.State, 137 Md. 482, 113 A. 87; Garland v. State, 112 Md. 83,75 A. 631.
In the course of the trial, other objections were made by the defendant to testimony of a like character offered in the two cases, Nos. 174 and 175 indictments, which was also admitted subject to the condition above mentioned. At the conclusion of the evidence in the cases, motions were made to strike out the evidence so admitted subject to exception. They, however, were overruled, and exceptions were taken thereto. These motions are very general and indefinite as to the evidence sought to be stricken out, and are, we think, objectionable for that reason.Worthington v. Worthington, 112 Md. 141, 76 A. 46; Jessup v.State, 117 Md. 119, 83 A. 140. But we need not dwell or pass upon same, because as we have already said, the evidence should have been admitted unconditionally and not subject to the conditions imposed. Consequently the court was right in refusing to strike out this evidence.
In these cases 108 exceptions were noted to the action or rulings of the court. These are not specifically discussed by the appellant, but are grouped by him under the heading of "questions in controversy," and we will discuss them in the *Page 487
order presented by his brief, without undertaking to refer specifically to each of the exceptions.
The first question presented is whether the court was right in refusing to strike out the evidence of Cole and others admitted subject to the condition above mentioned. This question we have already decided.
The second question goes to the refusal of the court to permit Mr. William L. Rawls to testify that he, prior to the indictment, and before any criminal proceeding had been instituted against the defendant, had offered on behalf of the traverser to pay to the bank or the receiver the sum of $6,500 in settlement of the balance due by the accused to the bank as a result of his purchase, through W.W. Lanahan Co., of the stock of the General Theatre Equipment Company in September and October of 1930. The appellant contends that this evidence should have been admitted because of the defense made by him that it was a loan. The fact that such offer had been made to the bank or to the receiver does not, we think, support that defense; it goes only to the extent of the offer. It may have been that the traverser had told Mr. Rawls that the amount owing was a loan, and he wished to pay it, treating it as a loan, but Mr. Rawls certainly could not have testified to what was told him by the traverser in relation to its being a loan, as this would have been mere hearsay evidence, and not admissible. And the fact that an offer was made to restore the money, if stolen, would have been no defense to the charge against the traverser. Deibert v. State, 150 Md. 687,133 A. 847. We find no error in the court's ruling upon this exception.
The third question is whether the demurrer to the indictment No. 175 should have been sustained when considered in conjunction with the bill of particulars. This question, too, we have passed upon, sustaining the ruling of the court below.
The fourth question is like the first, except the fourth refers to indictment No. 175, and the first to No. 174. Our answer to that question applies with equal appropriateness to this question. *Page 488
The fifth question involves the rulings of the court in not allowing directors of the bank to testify on cross-examination as to their personal and official dealings with their bank, and the bank's dealings with other banks and corporations doing business with their bank; the purpose or object of which, as stated by the defendant, was to show their bias, animus and interest in the outcome of the prosecution. There are thirty or more exceptions involved in this question, all of which we have carefully examined, and we are impressed with the fact that in most instances the evidence sought to be introduced is altogether collateral to the issue, and we fail to discover how such evidence would show bias or animus or such an interest as would in any way affect the credibility of the witness.
The sixth question is upon the rulings of the court in refusing to allow directors of the bank to be questioned by the defendant as to their knowledge, or rather their want of knowledge, of the affairs of the bank generally. It is not disclosed by an examination of the record that the court in so ruling committed any prejudicial error.
And the same may be said of the seventh question, where Frederick H. Buckholz was allowed to give in evidence the property owned by him. The traverser, as alleged, had falsely represented to the bank's directors, at the time of an application made to the bank for a loan by the Charles Decorators, Inc., in which corporation the traverser was interested, that the Buckholz connected with and interested in that corporation was the witness — the antique dealer on North Charles Street, known to be a man of substantial means; when, as a fact, he was not interested in that corporation, but the one so interested was one Bruno Buckholz, who was shown to be without means and of no financial responsibility, which fact was known to the traverser. We think it was proper in that connection to show the extent of Frederick Buckholz's means or responsibility.
The eighth question involves the ruling of the court in not allowing Schuck, the bookkeeper of the bank, to answer the question: "Will you state whether or not to your knowledge *Page 489
Mr. Delcher, the defendant here, had occasion to discharge him (Daily) for drunkenness last year, and, if so, state the circumstances"; and in not allowing Dashiell, the night teller, to answer the question: "Do you know whether or not he (Daily) was discharged by Mr. Delcher for drunkenness last year?" It is claimed by the defendant that, inasmuch as Daily had testified as to facts damaging to the traverser, it was proper to show bias affecting his credibility. Daily, on cross-examination, had testified that "Mr. Delcher said I was drunk, and I said I was sick. Mr. Delcher said, Get out, we are done with you." This was followed on redirect examination by Daily, saying: "I had this misunderstanding with Mr. Delcher in February, 1929. I continued on from that time until the bank closed. Mr. Delcher during that time was my superior officer, and I was in daily contact with him. I never lost any time from that time until the bank closed." The evidence sought to be elicited by these questions was that Daily had been discharged by the traverser. If the witnesses had been permitted to testify, they would have done no more than corroborate Daily's admission. Consequently, we discover no prejudicial error in these rulings.
In the ninth question are embraced seventeen exceptions, 10 to 26, inclusive, to questions asked Guy W. Meeks, paying teller of the bank, as to the custom of the bank in purchasing stock for customers or officials when they had no funds available in the bank. This evidence sought to exculpate him from any wrongdoing in purchasing stock and having same paid for in the manner he did, and to establish the transaction as a loan to the defendant from the bank. As stated by the trial court: "If the act in respect to the present defendant was a criminal act, its criminality would be in no degree affected by the perpetration of similar crimes in respect of a similar transaction" for others. In addition to the reason stated, it may also be said that the questions asked were as to the custom of the bank in such cases, assuming or implying thereby that the acts with which the traverser was charged were the action of the bank, when the evidence tends to show that these were the acts of the traverser, for *Page 490
which he alone was responsible. We find no error in the rulings of the court upon these exceptions.
The tenth and last question arises from a motion to strike out the verdict, judgment and sentence in each of the cases, 174 and 175, which was overruled by the court. The ground of the motion was that the trial court permitted and allowed the state's attorney, during his closing argument, to hand over to the foreman of the jury a piece of paper upon which was typewritten the following:
"174 Lanahan Transaction First and third count — Larceny
"173 Young's System First count — False Pretense
Fourth, sixth, eighth, tenth, twelfth count — Larceny
"175 Charles Decorators First, third, fifth, seventh, ninth, eleventh counts — False Pretense."
The record contains the following stipulation in respect to this paper:
"It is stipulated and agreed that the above paper was not offered to the traverser's counsel for their inspection, nor was it offered to the court for inspection. No objection was made by traverser's counsel to the action of the state's attorney in handing this paper to the jury, which was done openly in their presence. The state's attorney held said paper in his hand during his closing argument to the jury and commented thereon, but did not read same to the jury. No objection was at any time made by the defendant, or the defendant's counsel, to the action of the state's attorney in handing said paper to the jury or to the paper itself, nor did the defendant or the defendant's counsel, at any time, take an exception to said action or to the said paper."
It is further disclosed by the record, which contains a photostatic copy of this paper, that the jury in rendering their verdict read from this paper upon which they had marked or indicated their conclusions by placing after the *Page 491
counts of the indictment therein contained the letter G where their verdict was guilty, and N.G. where their verdict was not guilty. It was after their verdict had been taken and enrolled that the court's attention was called by counsel for the appellant to the delivery of this paper by the state's attorney to the foreman of the jury, and the court then said: "It was done in open court, and I particularly observed at the time that it seemed to be done with the knowledge of counsel for the defense, who made no point of it at that time." The counsel for the appellant then said: "Now, if your Honor pleases, we may want to file a formal motion on that matter and we would ask that the paper which the foreman has be made a part of the record." This was done upon the direction of the court.
The verdict was rendered on the 24th day of March, 1931, though the motion to strike out the verdict, judgment and sentence was not made until April 30th, 1931.
In Cahill v. Baltimore, 129 Md. 27, 98 A. 235, 238, where the jury, at the request and dictation of the counsel for the appellant, had taken a written memorandum of the amounts testified to by the witnesses in the case as to the damages and benefits in connection with the widening and opening of the Key Highway, the court said:
"We see no objection in a juror taking notes in a case complicated with figures, during the examination of testimony, and being permitted to take these to the jury room, for the purpose of refreshing his recollection, provided the trial court is satisfied that such action will not delay the trial, or interfere with the juror following the evidence. But making such notes from the dictation of counsel is an entirely different matter, and about which the court should be extremely cautious in permitting it to be done, in the absence of consent of counsel.
"We have found only one state where in the absence of statute such practice is allowed as a matter of right. In all the other states where the question has arisen it has been held, as we have stated, not a right, but a discretionary power, of the trial court, with the exception of Indiana, where it is *Page 492
held to be a reversible error to permit it. We think, however, from reason that the better rule is with the weight of authority and so hold."
In this case the paper writing, which was handed to the jury by the state's attorney, and which was carried by them to their room, was no part of the evidence, but merely a written memorandum containing only the counts in the three indictments upon which the state's attorney, in his closing argument, had asked for conviction. And this, he said, was fully explained to the jury in the presence of the court and the counsel for the appellant. As to the other counts he had told them he did not ask for a conviction. The counsel for the appellant, though present and hearing the explanation made by the state's attorney, made no objection to the paper being handed to the foreman of the jury until after the verdict was rendered and enrolled. The jury in their verdict did not do as they were asked by the state's attorney as to all the counts of the indictment. In No. 173 indictment, where he asked for a conviction in both the larceny and false pretense counts, the verdict was not guilty as to all of them. This fact is alluded to as showing that the jury were not influenced or misled by this paper handed to them.
Without expressing our approval of the practice in so doing, it would seem that it was within the discretionary power of the trial court to permit the paper to be handed to the jury, as above stated; and, had objection been seasonably made, an opportunity would have been afforded the court to pass upon the same, and, had it sustained the objection, the alleged wrong would have been averted. But, the objection being delayed as it was, no such opportunity was afforded the court. Luray v.State, 157 Md. 635, 147 A. 599.
As we find no prejudicial errors in any of the rulings of the court, the judgment appealed from will be affirmed, with costs.
Judgment appealed from affirmed, with costs. *Page 493 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428399/ | This is an action for mandate, § 1244 Burns 1926. Appellee Smock brought this action against appellees Hendrich, Stalnaker and O'Brien, as members of the board of election commissioners of Vigo County, Indiana, and as the board of election commissioners of said county, praying for a judgment in mandate against the board to place his name upon the Republican ticket as a candidate for the office of county commissioner upon the official ballot which was to be voted at the general election in November, 1928. Thereafter, upon request by others except appellee Smock, Jacob L. Jones was made a party defendant in the action. After appellant Jones was ordered by the court to be made a party defendant in the action, appellee Smock *Page 330
filed with the court interrogatories in two sets, one to be answered by appellant Jones, and the other to be answered by appellees, the members of the board of election commissioners. Appellant Jones filed his answers to the interrogatories submitted for him to answer, and appellees, the members of the board of election commissioners, filed answers to the interrogatories submitted to them to answer. The interrogatories submitted to appellant Jones covered every material allegation in the complaint filed by appellee Smock. Thereafter, appellant Jones filed his separate answer of general denial. Appellee Smock moved that the answer in general denial be stricken from the files in this case for the reason that every material allegation of his complaint had been answered by appellant Jones in the affirmative, and that the answer in general denial would be in diametric opposition to the answers made by appellant Jones. Thereupon, the court made its finding against appellant Jones and in favor of appellee Smock, and rendered its judgment of mandate which required the board of election commissioners to have printed upon the Republican ticket of the official ballot the name of appellee Smock for the office of county commissioner in Vigo County.
The questions presented for determination here are: (1) Did the court commit error in striking appellant's answer in general denial from the files; and (2) was the finding of the board of county commissioners, sitting as a tribunal to try an election contest, sufficient to support the judgment or order here in question that appellant Jones had received the highest number of votes, and further, if it did, was the purported judgment valid, having been made more than twenty days after the trial of the contest began. § 7615 Burns 1926.
Concerning the action of the court striking appellant's answer in general denial from the files, it is contended *Page 331
that at least one of the answers to one of the 1. interrogatories was such that an issue might be formed by an answer in general denial which would require a trial upon a question of fact. Appellant Jones answered the question as to whether or not a demand had been made by the plaintiff (appellee Smock) upon the board of election commissioners to place his name upon the Republican ticket of the official ballot as a candidate for that office by saying that he did not know. The succeeding question to Jones was, did the board of election commissioners refuse to place the name of appellee Smock upon such official ballot as above indicated, to which he answered that they had so refused. It is the opinion of the court that notwithstanding his reply that he did not know whether a demand had been made, the answer made to the succeeding question that the appellee board had refused to place the name of appellee Smock upon the official ballot, is sufficient to sustain the action and is sufficient to amount to a demand by Smock upon the board.
It appears in the record by the questions submitted to the appellee board, whether a demand had been made upon it by Smock to place his name, etc., as above stated, that Smock had 2. made such a demand upon the members of the board. A demand upon appellant Jones would be for naught, for the reason that it could not be required that a demand be made upon him. No relief as prayed for can be gained by a judgment of mandate against Jones. He could not be mandated to do a thing that it was impossible for him to do in law. He could not himself, or require that the board of election commissioners, place Smock's name upon the ballot. If demand was to be made it could be made only of one against whom a judgment could be rendered. And judgment of mandate in this action could only be rendered *Page 332
against the board and its members, not against Jones. The question of demand being decided, it appears that every material allegation of plaintiff's (appellee Smock's) complaint was answered affirmatively by appellant Jones.
The law (§ 409 Burns 1926) provides that an answer or other pleading shall be rejected as sham either when it plainly appears upon the face thereof to be false in fact and intended 3. merely for delay, or when shown to be so by the answers of the party to special written interrogatories propounded to him to ascertain whether the pleading is false. All of the material allegations having been answered in the affirmative, there was nothing left upon which appellant Jones could base a general denial. There was nothing pleaded that he could deny unless such denial was in direct conflict with his own answers to the interrogatories submitted. The practice afforded by the law in relation to sham pleadings (§ 409, supra) is similar to the practice afforded by the statute entitling a judgment for a party though a verdict has been found against him. § 617 Burns 1926.
The law provides that the board of commissioners shall try and determine an election contest such as the one here in question, and that they may adjourn and continue the trial from time to time, not exceeding twenty days altogether. § 7615 Burns 1926. The election contest here in question was filed before the board of commissioners sitting as a tribunal to try the case May 16, 1928. And the actual trial began May 28, 1928, and on June 8, the trial was concluded, and the commissioners made a finding upon which it is questioned whether or not they ever entered a judgment. Thereafter, August 18, 1928, two members of such board sitting as such a tribunal certified to the board of election commissioners that they had adjudged that appellant Jones had received *Page 333
the highest number of legal votes cast at such primary election for the candidates for the office here in question.
It is unnecessary to decide the points raised by counsel, whether the finding made by the board of commissioners sitting as such tribunal is sufficient upon which to base a judgment. 4. It is only necessary to consider the question of the construction of the statute (§ 7615, supra), which provides a limitation of twenty days within which to try the action. It is unnecessary for the court at this time to present reasons for its holding upon this question, for the reason that this court, in a former case, considered the question with such profound reasoning upon which it based its decision, that the language used by this statute fixed the life of this tribunal as of twenty days and no longer, and that the tribunal itself expired at the end of that period of time, and that with it the cause of action before it expired also. English v. Dickey
(1890), 128 Ind. 174, 27 N.E. 495.
A motion for a change of venue from the county had been filed by appellant Jones prior to the rendering of the judgment. The court withheld action upon the motion until after the 5. issues of the case had been formed. After striking appellant's answer of general denial from the files, no question was before the court which required a trial of a question of fact, except a dispute that might have arisen between the answers to the special interrogatories and the allegations of the complaint which were well pleaded. There was no such dispute. Therefore no question of fact was left to try. The only matter before the court was a question of law, and it was proper under such a state of the record to deny appellant's motion for a change of venue from the county after judgment had been rendered, as was the action in this case. Matlock v. Fry (1860), 15 Ind. *Page 334
483. No reversible error has been pointed out by the appellant. Judgment is affirmed.
It is ordered by the court that the judgment in this case by this court be certified to the clerk of Vigo Circuit Courtinstanter notwithstanding the sixty days granted by statute in which the losing party may file a petition for a rehearing. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428402/ | Appellant and others were charged by the first count of an indictment with having feloniously conspired with certain other persons "to commit a felony, to wit: To then and there unlawfully and feloniously, without the consent of the owner take, haul, carry and drive away a certain automobile," describing it, and naming the owner; and he was charged by the second count with having feloniously conspired with the same persons "to commit a felony, to wit: To then and there unlawfully receive, buy, conceal and aid in the concealment of a certain automobile" of the same alleged description and ownership "knowing the same to have been unlawfully taken." He was tried separately. The jury returned a general verdict finding him guilty as charged. Overruling his motions to quash the second count of the indictment and for a new trial, respectively, are assigned as errors.
The objection urged against the sufficiency of said second count is that it does not charge a conspiracy to conceal, etc., an automobile with knowledge that it had been unlawfully 1, 2. taken "without the consent of the owner." But while it would be proper for the indictment to so charge, we think the allegation that the defendants "feloniously" conspired "to commit a felony" by "unlawfully" receiving, concealing, etc., an automobile, knowing it to have been *Page 451
"unlawfully" taken, sufficiently informed the defendants that they were charged with conspiracy to receive, conceal, etc., an automobile taken without the owner's consent. The words charging that they "did feloniously" so conspire "to commit a felony," as described, supply the more formal allegations of an indictment which might more specifically describe the alleged offense. That they conspired to "receive, conceal," etc., could not be felonious unless the automobile so received and concealed had been taken without the consent of the owner. Kaufman v. State
(1874), 49 Ind. 248, 249, 250; Owen v. State (1876),52 Ind. 379, 381, 382; Semon v. State (1902), 158 Ind. 55, 57, 62 N.E. 625. To aver that an act was feloniously done "has the effect, as matter of pleading, to characterize the act complained of as having been done in a manner prohibited by the statute."Semon v. State, supra. It was not reversible error to overrule the motion to quash.
Appellant did not testify as a witness, and the statute giving accused persons the right to testify expressly enacts that, "if the defendant do not testify, his failure to do so shall 3. not be commented upon or referred to in the argument of the cause, or in any manner considered by the jury trying the same." § 2267 Burns 1926, Subd. 4, § 2111 Burns 1914, Acts 1905 p. 584, § 235. Appellant had been indicted jointly with ten others, among whom was Rex Schug, but was tried separately. Much of the evidence consisted of testimony relating what Rex Schug had said and done and what had been said and done by other alleged conspirators at his place of business in Hartford City, Indiana, when defendant Davis was not there. Witnesses testified that at the time of the trial Rex Schug was not living in Hartford City, and that they did not know where he then was. After the close of the evidence, an attorney representing the state, speaking of Rex *Page 452
Schug in his argument to the jury, said: "None of these amiable defendants have taken the stand and testified where he is." An objection to this language being interposed, he added, "other than the defendant now on trial." Nothing was done by the court in the way of admonishing the attorney that such language was improper, or instructing the jury that it was not proper and should not be considered; the court neither saying nor doing anything to indicate to the jury that counsel had no right to use such language in his argument or that they ought to disregard it. The defendant immediately moved that the case be withdrawn from the jury, and then moved that the jury be discharged, but each of his motions was overruled and he excepted. These rulings were erroneous. Counsel for the state had clearly violated a right expressly given to defendant by statute, and on objection being made had added a reference to "the defendant now on trial" which made the allusion to his failure to testify even more emphatic than before. Defendant did not waive the error, but promptly asked for relief by having the submission set aside and the jury discharged. And the court did nothing to cure the error, if, indeed, it were capable of being cured by an instruction or otherwise. Long v. State (1877), 56 Ind. 182, 186, 26 Am. Rep. 19; Showalter v. State (1882), 84 Ind. 562, 566; Blume
v. State (1900), 154 Ind: 343, 355, 56 N.E. 77.
Over objections and exceptions by defendant, witnesses were permitted to testify that intoxicating liquor was drunk at Rex Schug's place of business at different times when defendant 4. was not shown to have been present or participating, some of the times being when the witnesses who gave the testimony said he was not there, others when it appeared by inference he could not have been present, and others when no attempt was made to show that he was present, *Page 453
or participated, or had any knowledge of what was done. It was not shown nor was there any attempt to show that this drinking of intoxicating liquor was in furtherance of the alleged conspiracy to commit either of the crimes charged, or had anything whatever to do with the alleged crimes or the conspiracy to commit them. It was error to admit this evidence.
As was stated above, defendant did not testify as a witness. But he called nine witnesses who testified that his reputation for honesty and integrity in the community where he 5, 6. resided was good before and up to the time this indictment against him was returned. In rebuttal, the state called a witness who testified that defendant's said reputation was bad, and, in answer to further questions, stated that he (the witness) was at the scene of the automobile accident in which defendant was injured in May, 1922, seven months before the automobile described in the indictment was stolen and a full year before it was shown to have been concealed in the stone quarry, and that defendant seemed to be badly hurt. He was then asked whether or not defendant was intoxicated at that time, and, over an objection and exception, answered that he thought he was. Such proof of his intoxication did not tend to rebut the testimony that his general character for honesty and integrity was good. Evidence of specific acts is not competent to prove general reputation. Griffith v. State (1895), 140 Ind. 163, 39 N.E. 440; Dunn v. State (1904), 162 Ind. 174, 182, 70 N.E. 521. And while the fact that defendant had been seen intoxicated could not have any probative value to establish whether or not his general character for honesty and integrity was good or bad, it might be highly prejudicial before a jury. This evidence should not have been admitted.
A conversation between the witness Locker and Rex Schug after the car in question was stolen and before *Page 454
it was put into the stone quarry, in which Schug said that 7. part of it had been stolen, was competent on the issue formed by defendant's plea of not guilty to the charge of conspiracy to conceal said car with knowledge that it was unlawfully taken. If the fact that it was a stolen car was being concealed at that time by means of changes made in its structure, and such concealment was finally consummated by acts of defendant and the witness in chiseling off the engine number and sinking the car in deep water in the stone quarry, as this witness testified, anything said by a party to the conspiracy before its final consummation was admissible against all parties thereto. And the direct testimony of Locker that defendant Davis afterward helped to remove the engine number and put the car in the quarry in order to conceal it justified the admission of this evidence.Card v. State (1886), 109 Ind. 415, 418, 9 N.E. 591.
The admissibility of testimony that the next Sunday after the car had been concealed in the stone quarry, Rex Schug told the witness, Locker, to report the car to the highway policeman 8. as stolen, is not clear. But, so far as appellant's brief has pointed out, carrying that report to the officer may have been part of the plan to conceal the car in question, by inducing persons who otherwise might search for stolen automobiles to believe that this one had been driven away out of the neighborhood. In order to show on appeal that an error was committed in the admission of evidence which might be competent under any state of facts, appellant must make it affirmatively appear that such a state of facts as would render it competent did not exist at the time it was introduced. Appellant's brief does not show this evidence to have been inadmissible. *Page 455
The judgment is reversed, with directions to sustain defendant's motion for a new trial. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3208958/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JATINDER SINGH, No. 14-71031
Petitioner, Agency No. A200-941-919
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2016 **
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Jatinder Singh, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Our
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings, applying the standards governing adverse credibility
determinations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,
1039-40 (9th Cir. 2010). We dismiss in part and deny in part the petition for
review.
Substantial evidence supports the agency’s adverse credibility determination
based on inconsistencies between Singh’s testimony and his declaration regarding
alleged police visits and Singh’s father’s party affiliation. See Shrestha, 590 F.3d
at 1048 (adverse credibility determination reasonable under the “totality of
circumstances”). Singh’s explanations do not compel a contrary result. See Lata
v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). In the absence of credible testimony,
Singh’s asylum and withholding of removal claims fail. See Farah v. Ashcroft,
348 F.3d 1153, 1156 (9th Cir. 2003).
Singh’s CAT claim also fails because it is based on the same statements the
agency found not credible and Singh does not point to any other evidence in the
record that compels the conclusion that it is more likely than not he would be
tortured by or with the acquiescence of the government if returned to India. See
Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006). We do not have
jurisdiction to review Singh’s contention that the agency failed to consider country
conditions evidence in evaluating his CAT claim because he did not raise this issue
2 14-71031
to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (no
jurisdiction over claims not presented below). We reject Singh’s contention that
the agency’s CAT analysis was deficient. Thus, Singh’s CAT claim fails.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3 14-71031 | 01-03-2023 | 06-02-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031189/ | THE THIRTEENTH COURT OF APPEALS
13-16-00068-CV
In the Interest of C.M.R., a Child
On appeal from the
County Court at Law No. 5 of Nueces County, Texas
Trial Cause No. 2014-FAM-60148-5
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be DISMISSED. The Court orders the appeal
DISMISSED in accordance with its opinion. Costs of the appeal are adjudged against
appellant.
We further order this decision certified below for observance.
September 2, 2016 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4059801/ | ACCEPTED
03-14-00693-CV
4495923
THIRD COURT OF APPEALS
306 WEST BROADWAY A VENUETEXAS
AUSTIN,
FORT WORTH, T3/13/2015
EXAS 76104
JEFFREY
3:03:30 PM
D. KYLE
817.332.8505 MAIN/817.332.8548 FAXCLERK
LABORCOUNSEL.NET
March 13, 2015
FILED IN
3rd COURT OF APPEALS
Jeffrey D. Kyle, Clerk AUSTIN, TEXAS
Court of Appeals 3/13/2015 3:03:30 PM
Third District of Texas JEFFREY D. KYLE
Post Office Box 12547 Clerk
August, Texas 78711
RE: Court of Appeals Number: 03-14-00693-CV
Trial Court Case Number: C2014-0928A
Style: City of New Braunfels; Jan Kotylo, in her official capacity; Pat Clifton, in his
official capacity; and Fritz Welsch, in his official capacity v. Joseph Tovar
Dear Mr. Kyle:
On behalf of the City of New Braunfels, Jan Kotylo, Pat Clifton and Fritz Welsch, in their
official capacities, please accept this letter as our firm’s intention to orally argue the above case
before the Court on April 22, 2015 at 1:30 P.M. Additionally, as requested in your correspondence
of March 12, 2015, our office is in the process of compiling three copies of each brief filed on
behalf of our clients. Those copies will be forwarded no later than the deadline of March 23rd and
will be in compliance with the rules of this Court.
As always, should you have any questions concerning this matter, please do not hesitate to
contact my office.
Very truly,
/s/ Bettye Lynn
Bettye Lynn
[email protected]
Direct Dial: 817.332.8504
BL/jc
Electronically Serve:
Mr. Chad Hyde, TMPA
6200 La Calma Drive, Suite 200
Austin, Texas 78752
[email protected] | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4059803/ | MANDATE
The Fourteenth Court of Appeals
NO. 14-13-00848-CV
Cindy Do, Individually a/n/f David Do, a Appealed from the 125th District Court of
Minor, Appellant Harris County. (Tr. Ct. No. 2012-42980).
Memorandum Opinion delivered by Justice
v.
Busby. Justices Boyce and Wise also
Minh Nguy, Appellee participating.
TO THE 125TH DISTRICT COURT OF HARRIS COUNTY, GREETINGS:
Before our Court of Appeals on December 30, 2014, the cause upon appeal to
revise or reverse your judgment was determined. Our Court of Appeals made its order in
these words:
This cause, an appeal from the judgment in favor of appellee, Minh Nguy, signed
September 16, 2013, was heard on the transcript of the record. We have inspected the
record and find no error in the judgment. We order the judgment of the court below
AFFIRMED.
We order appellant, Cindy Do, Individually a/n/f David Do, a Minor, to pay all
costs incurred in this appeal.
We further order this decision certified below for observance.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court
in this behalf and in all things have it duly recognized, obeyed, and executed.
WITNESS, the Hon. Kem Thompson Frost, Chief Justice of our Fourteenth Court
of Appeals, with the Seal thereof affixed, at the City of Houston, March 13, 2015. | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428405/ | Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428403/ | DISSENTING OPINION.
The second count of the indictment charges that the appellant with certain other persons named therein, conspired to commit a felony to wit: to then and there unlawfully receive, buy and conceal and aid in the concealment of a certain automobile, knowing the same to have been unlawfully taken.
The felony attempted to be charged as the purpose of the alleged conspiracy described in the second count of the indictment is defined by § 2460 Burns 1926, § 2301c Burns' Supp. 1921, Acts 1921 p. 494. Section 1 of that act provides that, whoever unlawfully without the consent of the owner takes, hauls, carries or drives away any vehicle, automobile, car truck, aeroplane or airship, operated by electricity or steam explosive power, or any accessory or appurtenance contained in, on, or forming a part thereof, of the value of twenty-five dollars, or more, or whoever receives, buys, conceals, or aids in the concealment of such or any one or more of such, knowing the same to have been taken, shall be guilty of the crime of vehicle taking, and upon conviction thereof, shall be imprisoned in the state prison not less than three years nor more than five years and be disfranchised and rendered incapable of holding any office of trust for any determinate period to which may be added a fine of not less than $100 nor more than $5,000.
This count of the indictment is insufficient in that it does not charge that the defendants conspired to receive, buy, conceal, aid in the concealment of the automobile, knowing the same to be unlawfully taken without the consent of the owner. *Page 456
In Hinshaw v. State (1919), 188 Ind. 147, it is held that all the elements of the felony which is the purpose and object of the conspiracy must be alleged so directly and positively that the defendant may know what he has to meet and that the court may readily see what felony is purposed, and know how to limit the evidence. Indictments must be particular and specific enough in their charges that the grand jury may not base an indictment on evidence of one crime and the petit jury base a verdict on evidence of another crime. An indictment must be so plain that an acquittal or conviction can be pleaded in bar of a subsequent prosecution for the same offense.
In State v. McKinstry (1875), 50 Ind. 465, the court held that an indictment under such statute, charging a combination unlawfully to prevent the course of justice, and secure the acquittal of a certain person charged with a criminal offense, is insufficient, though perjury is shown to be the means by which it was proposed to accomplish the purpose.
In Landringham v. State (1874), 49 Ind. 186, it is held that the averments of an indictment for combining to commit a robbery should be as specific and full in describing the robbery as in an indictment for that felony and to charge a combining for the purpose of taking from the person forcibly and feloniously is not sufficient, but it is necessary also to allege that it was to be done "by violence" or "putting in fear."
In McLaughlin v. State (1873), 45 Ind. 338, the court held that the legislature has not the power to dispense with such allegations in an indictment as are essential to reasonable particularity and certainty in the description of the offense.
In Williams v. State (1919), 188 Ind. 283, the court said: "This court has consistently held that an indictment, as here in question to be good as against a motion *Page 457
to quash, must not only state facts showing the conspiracy, but also charge the felony with the same particularity as though the accused were to be tried for the felony alone." The crime being a conspiracy to commit a felony the purposed felony must be charged as specifically as though the defendant were on trial for that felony. Williams v. State, supra; Hinshaw v. State, supra;Green v. State (1901), 157 Ind. 101; Barnhart v. State
(1900), 154 Ind. 177.
By § 1, Acts 1921 p. 494, supra, the offense of vehicle taking is described and the punishment fixed for the commission of such offense. In order to convict a person of the felony described in this section every essential element of the offense must be alleged and proved. One of the essential elements of the offense is that the taking shall be without the consent of the owner.
This defect in the indictment renders it insufficient to withstand the motion to quash. The motion to quash should be sustained. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428404/ | Appellant, by an indictment in two counts returned by the grand jury of Delaware County, was charged in each count with the crime of murder in the first degree. It was alleged therein that he and George Anderson, on or about August 14, 1925, unlawfully, feloniously and purposely, with premeditated malice, killed and murdered Benjamin Hance by shooting him. The homicide occurred on a public highway about eleven miles from the city of Muncie. He died a short time later at a hospital in that city. Mary Hance, his wife, was shot and killed at the same time and place. Appellant entered a plea of not guilty. George Anderson, indicted with appellant, was deceased at the time of the latter's trial. The jury found that appellant was guilty of the crime of murder in the first degree and fixed his punishment at imprisonment at the Indiana State Prison for and during life. Judgment was rendered on the verdict.
The only error assigned and now presented is that the court erred in overruling appellant's motion for a new trial. In the motion for a new trial, sixty causes are stated, but only seven of same are relied upon for reversal of the judgment. The causes for a new trial will be considered in the order in which they arose during the trial, and not in the order presented in appellant's brief.
One of the witnesses for the state was Fred T. Loftin, who testified concerning dying declarations made by Benjamin Hance at the scene of the shooting. The witness was asked the 1-7. following question: "I wish you would go ahead and tell the jury what he said about that?" He answered: "As I remember the question, I said, `Who did the shooting?' He said, `Dutch Anderson.' Whether he said `Charles Wolfe' or `One Arm Wolfe,' I am not quite sure, and I think I asked the question, `Why did they do it?' He said, `I told on them.' I said, `Who are they, who are *Page 561
these, who are Anderson and Chapman?' At that time it didn't occur to me at all. He said, `They are highwaymen.' `Who is Anderson?' `Who is Wolfe?' `Pals of Gerald Chapman.' As I remember the answer that he gave." The defendant moved to strike out the answer and certain parts of same, which motion was overruled by the court. This ruling is assigned as error. The validity of the dying declaration was questioned, but its competency as such is admitted in appellant's brief. Appellant claims that part of it should not have been admitted, because it was a narrative of a former event. That part was the statement, "I told on them," made by Hance, and referred to Anderson and Wolfe. Appellant correctly contends that the rule is that statements of facts and circumstances not immediately connected with the act of killing, but relating to previous distinct transactions, are not admissible as dying declarations. 1 R.C.L. 535, § 78; Underhill, Criminal Evidence (3rd ed.) § 178; Wharton, Criminal Evidence (10th ed.) § 278. The name of the person who committed the homicide as well as the name of his victim may be proved by the dying declarations of the latter. Boyle v.State (1886), 105 Ind. 469, 5 N.E. 203, 55 Am. Rep. 218. It was competent for the injured party in his dying declaration to state who had shot him. It was also competent for him to state that they were highwaymen and were the pals of a well-known criminal. The only purpose of the statement, "I told on them," was to show a motive for the commission of the crime by the persons who committed it. Proof of motive is not essential to the conviction of one charged with murder, and motive may be inferred from the commission of the crime. Hinshaw v. State (1897),147 Ind. 334, 47 N.E. 157. In the trial of this case it was not necessary for the state to show that defendant had a motive, if he committed *Page 562
the crime. The defendant attempted to prove an alibi and presented no other defense. The statement, "I told on them," should not have been admitted in evidence as it related to a former transaction; but the admission of same was to prove a fact which it was unnecessary to prove. Where evidence has been erroneously admitted to prove an undisputed fact the error has frequently been held nonprejudicial. 2 R.C.L. 250, § 206. Illegal proof of what need not be proved at all will not vitiate a verdict. Beagles v. Sefton (1856), 7 Ind. 496, 498. The admission of immaterial evidence will be treated as harmless, unless it is made to appear that the appellant was probably injured thereby in some material respect. Ewbank, Manual of Practice (2nd ed.) § 257. Where it affirmatively appears, or where it may be fairly inferred, that, in the particular case, the erroneous admission of evidence could not have influenced the verdict, the error is always to be regarded as harmless. Elliott, Appellate Procedure § 641. While perhaps the courts are more likely to hesitate in applying the harmless error doctrine against one accused of crime, still, even in criminal cases, when it can be clearly seen that the accused was not prejudiced by the erroneous admission of the evidence objected to, a reversal will be refused. 2 R.C.L. 247, § 205. As the alibi of defendant did not prevail, then it did not matter what motive entered into the commission of the crime. The objectionable statement erroneously admitted in evidence could not under the circumstances have changed or influenced the verdict. The error was harmless.
Appellant contends that the court erred upon the trial in permitting F.L. Thornburg, while testifying for the state, upon his direct examination, to answer, over the objection and 8. exception of the defendant, the following question: "Did you hear distinctly what Mr. Booher told you?" To which question the *Page 563
witness made the following answer: "Yes, sir, I am sure I understood what Booher told me because I remember very distinctly hearing him say `Anderson,' but then I wasn't acquainted with the name `Wolfe' and I said then, I says, `Who was the second party,' and he says, `He says his name is Wolfe.'" Mr. Booher was the marshal of Middletown and was questioning Mr. Hance prior to his removal to the hospital, and the witness was writing down the answers he made. The record does not show that any objection was made to the question, and there was no objection after the question was asked to the witness answering same. He also claims that the court erred in refusing to strike out said answer. It is not necessary to decide if the part of the evidence which Mr. Booher repeated to him, which purported to be a statement of Hance and which the witness did not hear was hearsay and incompetent. Even if not competent evidence, appellant could not have been harmed by same, as there was the competent, uncontradicted testimony of several witnesses to the same fact. The admission of incompetent evidence to prove a given fact will be treated as harmless when the same fact is fully established by competent evidence that is not contradicted. Ewbank, Manual of Practice (2nd ed.) § 257.
Appellant complains of instruction No. 18, given by the court on its own motion, as being erroneous. Same reads as follows: "Any fact necessary to be proved in this case may be proved 9. by direct evidence of eye witnesses, or by circumstantial evidence, or by both circumstantial evidence and direct evidence of eye witnesses. Circumstantial evidence is to be regarded by the jury in all cases. When it is strong and satisfactory, the jury should so consider it, neither enlarging nor belittling its force. It should have its just and fair weight with the jury and if, when it is all taken as a whole, and fairly and candidly weighed, *Page 564
it convinces the guarded judgment, the jury should act upon such conviction. You are not to fancy situations or circumstances which do not appear in the evidence, but you are to make such just and reasonable inferences from the circumstances proved as the guarded judgment of a reasonable man ordinarily would make under like circumstances."
It is appellant's contention that this instruction erroneously directed the weight to be given by the jury to circumstantial evidence, placed a limitation upon the constitutional right of the jury as judges of the law and facts, disregarded the rule of reasonable doubt, and was out of harmony with that part of criminal procedure that presumes that a defendant is innocent until the contrary is proved beyond a reasonable doubt. A like instruction was approved in Smith v. State (1901),61 Neb. 296, 85 N.W. 52, in which the court said: "We do not think the exception (which was to the instruction) well taken. The instruction fairly states a rule applicable to the force and effect to be given circumstantial evidence. It occurs to us that it is a conservative statement of the rule announced. . . . The rule as announced has received judicial sanction in many other jurisdictions." A similar instruction was approved in State v.Seymour (1895), 94 Iowa 699, 708, 63 N.W. 661. The objections of appellant to this instruction cannot be sustained.
Objection is made to the following instruction (No. 19), given by the court on its own motion: "Evidence may be either direct or circumstantial. Direct evidence is evidence of a 10, 11. particular fact or circumstances which forms a subject of judicial investigation. Circumstantial evidence is evidence of other or collateral facts and circumstances from which the particular fact, which forms the subject of judicial investigation, is or may be inferred to justify a conviction of the *Page 565
defendant. In any case on circumstantial evidence alone the circumstances disclosed by the evidence must be of such character and strength as to exclude every reasonable hypothesis except that of defendant's guilt; if the circumstances disclosed by the evidence can be explained on any reasonable hypothesis except that of defendant's guilt, if the circumstances disclosed by the evidence can be explained on any reasonable theory consistent with defendant's innocence, he is entitled to an acquittal. But circumstantial evidence alone is enough to support a verdict of guilty of any crime provided the jury believe beyond a reasonable doubt from the evidence given in the case that the accused is guilty as charged. The proof must not only coincide with the hypothesis of guilt, but it must be consistent with every other rational conclusion. No greater degree of certainty is required where the evidence is circumstantial than where it is direct, for, in either case, the jury must be convinced beyond a reasonable doubt of such defendant's guilt as charged." It is claimed that this instruction was wrong for the reason that the word "consistent" was used instead of the word "inconsistent" in the following sentence: "The proof must not only coincide with the hypothesis of guilt, but it must be consistent with every other rational conclusion." This court has held that where the evidence is circumstantial, the proof must not only coincide with the hypothesis of guilt, but it must be inconsistent with every other rational conclusion. Cavender v. State (1890),126 Ind. 47, 25 N.E. 875; Hampton v. State (1903), 160 Ind. 575, 67 N.E. 442; Robinson v. State (1919), 188 Ind. 467, 124 N.E. 489. In 1 Greenleaf, Evidence (15th ed.) § 34, it it said: "And where a criminal charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner's guilt, but inconsistent with any other rational conclusion." In Hampton *Page 566
v. State, supra, the instruction, as does the one under consideration, stated: "The proof must not only coincide with the hypothesis of guilt, but it must be consistent with every other reasonable conclusion." The court said that it was apparent that the court below inadvertently used the word "consistent" instead of "inconsistent" and that it was very clear that the instruction as given was erroneous. In that case, the judgment was reversed on account of the error in the instruction; but the verdict was based upon circumstantial evidence. Instruction No. 19 was both contradictory and erroneous.
But, in the instant case, it cannot be said that the defendant was convicted entirely upon circumstantial evidence. Appellant's brief contains the following statements: — "The State 12, 13. relied for conviction upon the dying declaration of the man who was shot, together with testimony of persons who claimed they had seen the appellant at points from one mile to nine miles away from the place of the tragedy. Appellant at first objected to the detailing of the dying statement offered by the State, but when it was disclosed that the dying declaration was obtained under such circumstances as would justify the court in admitting it in evidence, he did not press his objections further." It will be noted that the court was instructing on the subject of "circumstantial evidence alone," when the objectionable statement was made. Dying declarations constitute direct evidence of the facts they are relevant to prove as distinguished from circumstantial evidence of such facts. Underhill, Criminal Evidence § 170; State v. Sexton (1898), 147 Mo. 89, 48 S.W. 452. In his dying declaration, Benjamin Hance stated that he was shot by Dutch Anderson and Charles Wolfe. By Dutch Anderson was meant George Anderson, who was jointly indicted with appellant. That evidence was *Page 567
direct and not circumstantial. There was evidence by a witness who saw what happened that Hance and his wife were shot by one man, and another man who was with him said: "Come on, let's get out of here," and that they got in an automobile and left. That evidence and the evidence that appellant had been seen at points from one to nine miles away from where the murder was committed and near that time was circumstantial and merely in corroboration of the direct evidence. In 1 Branson, Instructions to Juries (2nd ed.) § 54, it is said: "Instructions on circumstantial evidence should be given where the case of the state is based wholly on circumstantial evidence, but not where the evidence of guilt is direct and positive, or where some evidence is direct and some circumstantial." In 1 Randall, Instructions to Juries § 227, the following is stated: "So, where the state relies on direct evidence of the offense charged, and circumstantial evidence is introduced only for the purpose of corroboration, it is not error to refuse to instruct as to what would be necessary to warrant a conviction on circumstantial evidence." In 1 Blashfield, Instructions to Juries (2nd ed.) § 394, the rule is thus stated: "If there is direct evidence to prove that defendant committed the crime charged, the court may properly refuse to give instructions based on the hypothesis that the case is purely one of circumstantial evidence, and stating the rules as to the weight and conclusiveness of such evidence."
In Herrera v. State (1914), 75 Tex.Crim. Rep.,170 S.W. 719, it was held that where one witness identified defendant as the person who fired the fatal shot, an instruction on circumstantial evidence was properly refused. In Moore v.State (1926), 198 Ind. 547, 153 N.E. 402, 154 N.E. 388, this court decided that the refusal to give instructions as to the degree of proof required to convict on circumstantial evidence was not error where *Page 568
conviction was sought on direct testimony of witnesses as to the facts, although evidence of corroborating circumstances was introduced. The following cases in support thereof were cited:State v. Wilson (1924), 32 Wyo. 37, 228 P. 803; Aday v.State (1924), 28 Okla. Cr. 201, 230 P. 280; State v.Johnson (1923), 252 S.W. (Mo.) 623. The defendant tendered and requested the giving of six instructions, all of which were given by the court. None of them was on the subject of circumstantial evidence. It was provided in § 2136 Burns 1914, subd. 5, that, in charging the jury, the court must state to them all matters of law necessary for their information in giving their verdict. In the instant case, it was not necessary for the court to instruct on the subject of circumstantial evidence alone, as there was direct evidence before the jury. It is needless to say that when the court attempted to instruct on that subject, the instruction should have been free from error. But, as the defendant was not entitled to have an instruction in regard to proof required to convict entirely upon circumstantial evidence, and as the verdict of the jury rested on direct evidence and on circumstantial evidence merely corroborative thereof, the appellant could not have been harmed by that instruction, which was not correct. The giving of same did not constitute reversible error.
It is claimed by appellant that instruction No. 27 given by the court on its own motion was erroneous. Same reads as follows: "The constitution of this state makes the jury the judges 14. of the law as well as of the facts. But this does not mean that the jurors may willfully and arbitrarily disregard the law, nor that they may make and judge the law as they think it should be in any particular case. It means that jurors, under their oaths, should honestly, justly and impartially judge the law as it exists, and as it is found upon the statutes of our state, in each particular case. *Page 569
It does not mean that jurors may so judge the law in any case so as to make it null and void and of no force, but that they shall so judge the laws as to give them all a fair and honest interpretation, to the end that each and every law in each and every case may be fairly and honestly enforced. Any other interpretation of the law would weaken the safeguards erected by society for its protection; for by the nonenforcement of the law and its penalties in all criminal cases where it is shown by the evidence to have been violated, contempt for the law is bred among the very class that it is intended to restrain. The facts must be judged and found by the jury from a careful consideration of all the testimony given by the witnesses in the case, and under your oaths you have no right to arbitrarily disregard either the law or the facts in this case, without just cause, after a fair and impartial consideration of both." Appellant says this instruction imposes a restriction on the jurors not imposed by the Constitution. The principles of law in regard to jurors as judges of the law and facts stated in the instruction are in accord with the following cases: Anderson v. State (1885),104 Ind. 467, 4 N.E. 63, 5 N.E. 711; Blaker v. State (1892),130 Ind. 203, 29 N.E. 1077; Dean v. State (1897),147 Ind. 215, 46 N.E. 528; Bridgewater v. State (1899), 153 Ind. 560, 55 N.E. 737; Cunacoff v. State (1923), 193 Ind. 62, 138 N.E. 690. In Dean v. State, supra, the court said: "The jury, it is true, under our constitution, are the exclusive judges of the facts, and have also the right to determine the law, but this does not give them the right to disregard the law. Under their oaths they are required to determine the law correctly." In the cases cited, no mistakes in law on this subject are found. Difficulty may arise from the reasoning in some of them in support of the conclusions reached, which ordinarily are not proper to be used as an instruction to a jury. This court has said *Page 570
that it is one thing to state an abstract legal doctrine in an opinion by the court, and quite another to incorporate the same language, unqualified, in an instruction to a jury. UnionTraction Co. v. Moneyhun (1922), 192 Ind. 288, 299, 136 N.E. 18, 28 A.L.R. 211. This instruction as to the power of the jury to determine the law reaches the limit which this court is willing to approve. Same is not subject to the objection urged by appellant, and it was not error to give same.
Another cause stated in the motion for a new trial was that the court erred in giving to the jury orally, and not in writing, an instruction which was given after the written 15-17. instructions in the cause had been read and which oral instruction was taken down in shorthand by the official court reporter. Same is as follows: "The court instructs you, gentlemen of the jury, that the indictment in this case is not to be taken as any evidence in the case against the defendant. The indictment is allowed to be taken by you by the court into the jury room for your guidance only as to what this defendant is charged with. If you care to, you have the right and privilege of reading the indictment and looking it over, but it is not to be taken as any evidence whatever in the case." The defendant had requested the court to instruct the jury in writing as provided in § 2136 Burns 1914. In Lindley v. State (1926),198 Ind. 360, 153 N.E. 772, this court held that the giving of oral instructions after a proper and timely request for written instructions is reversible error, in the absence of showing of waiver of the request. It must be determined if what the court said orally after delivering written instructions to the jury in this cause was an instruction within the meaning of the statute. In Lett v. Eastern, etc., Plow Co. (1910), 46 Ind. App. 56, 91 N.E. 978, it was said: "Instructions to the jury, within the meaning of the statute, have reference to the law bearing *Page 571
upon the merits of the controversy." Instructions proper are directions as to the law of the case. Lawler v. McPheeters
(1881), 73 Ind. 577, 579; Dodd v. Moore (1883), 91 Ind. 522. A statement not bearing upon the question of law or fact involved in the issue is not to be taken as a part of the instruction.Lehman v. Hawks (1890), 121 Ind. 541, 23 N.E. 670; Ohio,etc., R. Co. v. Stansberry (1892), 132 Ind. 533, 32 N.E. 218.
In Lehman v. Hawks, supra, this court said: "Literally, the word `instruction' may apply to any direction given to a jury by the court, but as used in the statute making it incumbent on the court to reduce its instructions to writing, it relates to the law of the case, and may properly be said to mean an exposition of the principles of the law applicable to the case, or some branch or phase of the case which the jury are bound to apply in order to render a verdict establishing the rights of the parties in accordance with the facts proven." A direction to the jury as to its duties, not involving any principle of law affecting the merits of the case, cannot be regarded as an instruction required to be in writing. Lett v. Eastern, etc., Plow Co., supra;
Ewbank, Indiana Criminal Law § 509. In State v. Marion
(1912), 68 Wn. 675, 124 P. 125, it was held that oral remarks of the court, after reading an instruction containing a statement of the charge against the accused, that the information was not evidence and that the information was merely to inform the jury of the nature of the crime charged, were not violative of the statute requiring the court to reduce the charge to writing. It was stated therein that it was manifest that the court was not giving an instruction to the jury upon the principles of law, but was explaining orally what he had read. The alleged oral instruction under consideration did not state any principle of law to guide the jury in reaching its verdict. It was only directory as to the right and privilege of the jury to read *Page 572
the indictment. It was not such an instruction as is required by the statute to be in writing. It was not error to give same orally.
The ruling on the motion for a new trial was not erroneous for any of the reasons presented to this court. The judgment is affirmed.
Travis, J., concurs in conclusion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428406/ | This appeal arises out of the filing of a claim by the appellant in the court below against appellee administratrix' estate after the expiration of one year from the date of issuance of letters of administration upon the estate. Appellee, thereafter, filed her verified motion to strike the claim from the files which motion was sustained by the trial court. Issues raised by appellee's motion were (a) that appellee had filed a final report at the end of one year from the date of issuance of letters upon her decedent's estate (b) that appellant's claim was not filed according to law, in that *Page 497
it was not filed more than thirty days prior to the filing of appellee's final report.
The facts involved are undisputed and may be stated briefly. Appellee's decedent, Howard J. Evers, died intestate on February 16, 1942, and letters of administration were issued by the clerk of the proper court to appellee on February 19, 1942, who caused first notice of same to be published on February 20, 1942. On January 29, 1943, appellee filed inheritance tax schedule and the matters therein were ordered referred by the court. On March 3, 1943, appellant filed his claim and on March 26, 1943, appellee filed her final report and notice thereof was given in due form. On May 24, 1943, the court determined the amount of inheritance tax due pursuant to notice previously given and ordered same paid. Appellee filed no petition to obtain the consent of the court to close the estate in less than one year.
The only matter presented to this court for review by appellant's assignment of errors is the action of the court below in striking appellant's claim from the files, which was done, according to the record, after hearing and submission of evidence.
Appellant first insists that he had one year and twenty-one days from the date of publication of notice of appellee administratrix' appointment within which to file his claim and in support of this proposition asserts (a) that the date of publication of the notice of appointment of appellee as administratrix starts the running of the limitation period within which appellant must file his claim and that appellant's claim could not be barred if filed within that period (b) that the estate could be finally settled only at the end of one year from the issuance of letters and the giving of notice thereof, the appellee not having obtained the consent of the court *Page 498
to settle the estate at the end of six months after the date of said notice (c) that appellee's filing of her final settlement account was premature and could not shorten the time allowed for filing the claim.
Appellant's second contention is that appellee could not file a final report because the estate had not been fully administered for the reason (a) that claims had been properly filed against the estate and were pending and unallowed (b) that appellee was not entitled to a final accounting in the absence of a receipt showing the payment of inheritance tax.
The filing of claims against estates is governed by chapter 81, § 1, Acts 1931, § 6-1001, Burns' 1933, the presently pertinent portion of which is:
". . . but the holder thereof . . . shall file a succinct and definite statement thereof in the office of the clerk of the court in which the estate is pending; . . . if such claim be filed after the expiration of six (6) months from the giving of notice by the executor or administrator of his appointment, it shall be prosecuted solely at the cost of the claimant, and if not filed at least thirty (30) days before final settlement of the estate, it shall be barred. . . ."
It is to be noted that the term "final settlement" as used in the statute has been construed by the courts of this State as meaning the filing of the final report. Heitman, Rec., v. 1. Scales (1942), 111 Ind. App. 68, 38 N.E.2d 890; Beasley's Estate v. Rauch, Rec. (1937),104 Ind. App. 312, 11 N.E.2d 60.
Section 2 of the same act, § 6-1401, Burns' 1933, provides:
"After six (6) months from the date of giving of notice by such executor or administrator of his appointment every executor may, with the consent of the court *Page 499
in which such estate is pending, and at the end of one year fromthe date of such letters . . . shall file in such court his final account." (Italics ours.)
It is plainly apparent, therefore, that appellee, in the instant case, was under a legal obligation to file her final report on February 20, 1943, which was the end of the year 2. next ensuing from the date of her letters of administration, unless excused for cause by the court below. Appellee filed her final report on March 26, 1943, and, since the question has not been raised here we may assume she was excused for cause for the delay in filing.
Appellant, therefore, so far as his first contention is concerned, was clearly outside the time limitation within which his claim could have been properly filed and considered 3, 4. since he did not file same within thirty days before the filing of the final report as provided by statute. Claims against an estate cannot be enforced except in the manner provided by the statute. Beckelhimer v. Babcock (1929),88 Ind. App. 493, 164 N.E. 635. Unless a claim has been filed thirty days before final settlement, which means thirty days before the filing of the final report as provided by statute, the claimant has no standing as a creditor of the estate and his claim is barred. In re: Wainwright's Estate (1941), 109 Ind. App. 214,34 N.E.2d 164; Beasley's Estate v. Rauch, Rec. (1937),104 Ind. App. 312, 11 N.E.2d 60; Heitman, Rec. v. Scales
(1942), 111 Ind. App. 68, 38 N.E.2d 890.
Appellant's position with respect to other propositions is untenable by reason of the fact that, having lost his status as a creditor of the estate, he had not thereafter such an 5. interest therein as would entitle him to raise objections to appellee's final *Page 500
report. Johnston, Admx. v. Wabash Valley Trust Co., Admr.
(1928), 87 Ind. App. 288, 161 N.E. 685.
Affirmed.
NOTE. — Reported in 51 N.E.2d 889. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031190/ | NUMBER 13-16-00068-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
IN THE INTEREST OF C.M.R., A CHILD
____________________________________________________________
On appeal from the County Court at Law No. 5
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion Per Curiam
Appellant, father of C.M.R, perfected an appeal from a judgment concerning the
conservatorship of C.M.R. On July 26, 2016, the Clerk of this Court notified appellant
that the clerk’s record in the above cause was originally due on July 25, 2016 and that
the deputy district clerk, Maria Flores, had notified this Court that appellant failed to make
arrangements for payment of the clerk’s record. The Clerk of this Court notified appellant
of this defect so that steps could be taken to correct the defect, if it could be done. See
Tex. R. App. P. 37.3, 42.3(b),(c). Appellant was advised that, if the defect was not
corrected within ten days from the date of receipt of this notice, the appeal would be
dismissed for want of prosecution.
Appellant has failed to respond to this Court’s notice. Accordingly, the appeal is
DISMISSED FOR WANT OF PROSECUTION. See TEX. R. APP. P. 42.3(b), (c).
PER CURIAM
Delivered and filed this
2nd day of September, 2016.
2 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4059804/ | ACCEPTED
03-12-00474-CR
4484628
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/13/2015 8:16:41 AM
JEFFREY D. KYLE
CLERK
NO. 03-12-474-CR
CHRISTINA LYONS * IN THE COURT OF APPEALS
FILED IN
Appellant * 3rd COURT OF APPEALS
AUSTIN, TEXAS
VS. * OF THE THIRD 3/13/2015 8:16:41 AM
* SUPREME JUDICIAL JEFFREY D. KYLE
* DISTRICT OF TEXAS Clerk
THE STATE OF TEXAS *
Appellee * AT AUSTIN TEXAS
MOTION FOR EXTENSION OF TIME TO FILE
MOTION FOR REHEARING AND RECONSIDERATION
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, CHRISTINA LYONS, Appellant, and files this Motion for an Extension in
which to file a Motion for Rehearing and Reconsideration. In support of this motion, appellant
shows the Court the following:
I.
The Appellant was convicted in the District Court of Hays County, Texas of the offense of
Capital Murder. The Appellant was assessed life without the possibility of parole
II.
The deadline for filing the Motion for rehearing and reconsideration is March 15, 2015 and
Appellant has requested no previous extensions.
III.
Attorney for the Appellant would further show the Court that he has been diligent in
preparing a motion for rehearing in this case. Counsel has reviewed the Court’s opinion and is
drafting Appellant’s response, but will be unable to file said response by the deadline due to a his
trial and appellate docket.
WHEREFORE, Appellant prays the Court grant this Motion and extend the deadline for
filing a Motion for Rehearing and Reconsideration to April 15, 2015.
Respectfully Submitted,
ARIEL PAYAN
Attorney at Law
1012 Rio Grande
Austin, Texas 78701
(512) 478-3900
(512) 472-4102 (fax)
/s/ Ariel Payan
ARIEL PAYAN
State Bar No. 00794430
[email protected]
CERTIFICATE OF SERVICE
By my signature above, I hereby certify that a true and correct copy of the above and
foregoing Motion for Extension of Time to File Motion for Rehearing and Reconsideration has been
delivered to the Criminal District Attorney of said County Texas, on March 13, 2015. | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428369/ | Upon appellants' petition for a declaratory judgment, evidence was heard, followed by a special finding of facts, conclusions of law and judgment for appellees. The conclusions are here assigned as error. It is found that each appellant is incorporated under and pursuant to ch. 246 of the Acts of 1921, §§ 25-1101-1109, Burns' 1933, for purposes authorized by the Act and has acquired and owns valuable property, including real estate, the net income from which is used exclusively for the authorized educational, religious or charitable purposes. Included in the real estate described in the findings are the Odd Fellow Building at Pennsylvania and Washington Streets, the English Hotel Building on Monument Circle and the Indiana Pythian Building at Pennsylvania Street and Massachusetts Avenue, all in Indianapolis. The real estate involved in the controversy is rented for secular purposes, some of the rent received being used to reduce mortgages but otherwise being applied to the corporate purposes. After its acquisition by the respective corporations, all of the real estate was taken from the tax duplicate as exempt pursuant to § 9 of the Act of 1921. In 1937 the Act of 1921 was amended by provision that such property should continue to be exempt until March 1, 1944, but thereafter the exemption should not apply unless the property be "occupied and used exclusively for such (corporate) purposes and objects." *Page 578
Acts 1937, ch. 146, p. 814, § 25-1109, Burns' 1933 (Supp.). This proceeding was begun prior to that date in anticipation of action of the appellee taxing officials in assessing and levying taxes upon the real estate. It is contended by appellants that their property, though rented for secular purposes, is still within the exemption of the 1921 Act which by their respective acceptances and incorporations thereunder became contracts protectable by both State and Federal Constitutions against any impairment of the Act of 1937.
Authority for legislation exempting property from taxation 1. is found in Art. 10, § 1 of the Indiana Constitution, reading:
"The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation; and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only for municipal, educational, literary, scientific, religious, or charitable purposes, as may be specially exempted by law."
It permits without restraint the enactment of a statute exempting any or all of the six kinds of property mentioned. Not only is it so stated but it was so intended as is clearly shown by discussion of the section in the Constitutional Convention. The thought of the founders (there were a few dissenters) is summed up by Mr. Maguire who "thought it the duty of the Convention, if any section about taxation should be adopted, to recognize the principle of exemption for such purposes leaving the details to the sound discretion of the legislature." Debates of Indiana Convention, 1850, p. 1290. See pp. 1285-1291, inclusive and particularly comments by Messrs. Read, author of the section, Colfax and Kilgore. The words "by law" at the end of the section may *Page 579
be thought to imply that exemption may not be made by legislative contract but nothing was said in the convention to that effect. Mr. Read no doubt was thinking of the ordinary function of the General Assembly which is to make laws, not to make contracts.
It is settled, we think, that an act of the legislature may at the same time be both a law and also an obligation of the State within the protection of the contract clauses of our 2. Constitution. This is true both of special and general acts. Of the latter class was the contract sustained inThe Piqua Branch of the State Bank of Ohio v. Knoop (1853),57 U.S. 369, 14 L. Ed. 977. See Stanislaus County v. SanJoaquin K.'s R.C. I. Co. (1904), 192 U.S. 201, 48 L. Ed. 406. See also Indiana ex rel. Anderson v. Brand (1938),303 U.S. 95, 82 L. Ed. 685.
The intent of the Legislature to enter into a contract with an artificial body of its creation ought to be apparent from the law which is alleged to constitute the contractual obligation. 3. When that law is a special act addressed to a particular group of incorporators to meet a specific need or purpose the intent to contract is more easily discerned than when the law is general, addressed to no one in particular but available to all of a class as a vehicle for incorporation so long as it stands unrepealed. The cases we have found wherein the legislative contracts have been sustained as inviolable by the United States Supreme Court were, with the exception of the Knoop case, supra, in the former category. Upon several of these cases appellants rely, particularly Northwestern University v.People (1878), 99 U.S. 309, 25 L. Ed. 387. But even a special act applying to one charitable corporation only and providing that certain of its real estate and ground rents *Page 580
"so long as the same shall continue to belong to the said hospital shall be and remain free from taxes" was held not to constitute an irrevocable contract. Christ Church v.Philadelphia County (1861), 65 U.S. 300, 16 L. Ed. 602. The opinion states:
"This concession of the legislature was spontaneous, and no service or duty, or other remunerative condition, was imposed on the corporation. It belongs to the class of laws denominated privilegia favorabilia. It attached only to such real property as belonged to the corporation, and while it remained as its property; but it is not a necessary implication from these facts that the concession is perpetual, or was designed to continue during the corporate existence."
This was the earliest case we have found in which the Supreme Court enunciated this view. It was a new conception and therefore without direct authority. Three cases are cited in support thereof by Mr. Justice Campbell but the analogy between either of them and the case then before the court was not very close. Eleven years later the court was considering a general act of the State of Michigan, the first section of which authorized the incorporation of companies to bore for and manufacture salt. The next section provided, "All property, real or personal, used for the purpose mentioned in the 1st section of this act, shall be exempt from taxation for any purpose." The court said: "Such a law is not a contract except to bestow the promised bounty upon those who earn it so long as the law remains unrepealed. There is no pledge that it shall not be repealed at any time." EastSaginaw Salt Manufacturing Co. v. City of East Saginaw (1872),80 U.S. 373, 20 L. Ed. 611, 2 Am. Rep. 82.
These two and other cases were before Mr. Justice Holmes when he wrote the opinion in Wisconsin Michigan *Page 581 R. Co. v. Powers (1903), 191 U.S. 379, 48 L. Ed. 4, 5. 229, which dealt with a general act of the State of Michigan levying a specific tax upon railroads but providing that it should "not apply to any railway company hereafter building and operating a line of railroad within this state north of parallel forty-four of latitude until the same has been operated for the full period of ten years. . . ." The learned justice first undertook to apply to the facts the elementary rules used by courts and law writers to determine the existence of a contract. He said that "the building and operating of the railroad was a sufficient detriment or change of position to constitute a consideration if the other elements were present." But he added that "the promise and the consideration must purport to be the motive, each for the other, in whole or at least in part. It is not enough that the promise induces the detriment or that the detriment induces the promise, if the other half is wanting." He added that in the case before him "the two things are not set against each other in terms of bargain," but he declined to put the decision on this ground alone saying:
"The broad ground in a case like this is that, in view of the subject matter, the legislature is not making promises, but framing a scheme of public revenue and public improvement. In announcing its policy, and providing for carrying it out, it may open a chance for benefits to those who comply with its conditions but it does not address them, and therefor(e), it makes no promise to them. It simply indicates a course of conduct to be pursued until its views of policy change."
Whether the statute offers "privilegia favorabilia," or a "bounty" or a "chance for benefits," or something similar by some other name, the principle is the same. We think these cases rule the case before us, for we are not *Page 582
able in the Act of 1921 to find any suggestion that the Legislature intended to or did promise complete and permanent exemption from taxation. Such a promise is out of harmony with the previous public policy of the state as declared by every General Assembly since 1842 that has assumed to deal with tax exemption. We might add that this public policy, which is for the Legislature to declare, was evidently approved by certain judges of this court who let their own views creep into their opinions. See Orr v. Baker (1853), 4 Ind. 86 (construing an 1843 statute); City of Indianapolis v. The Grand Master etc.
(1865), 25 Ind. 518. With the exception of property of governmental units or institutions Indiana tax exemption statutes usually if not universally have made the exemption of real property depend upon the use to which the property is put. The last general revision of the tax laws of the state was made in 1919 — ch. 59, Acts 1919. The exemption section, § 5, was amended in 1920 and this section in turn amended in 1921 by the same General Assembly that is now supposed to have promised appellants unrestricted and permanent exemption. Chapter 222, Acts 1921, pages 638-646, § 64-201, Burns' 1943 Replacement. This act contained an emergency clause which made it effective March 10, 1921, the same day the Foundation and Holding Company Act was approved by the Governor. Chapter 4 of the Acts of 1921 also seeks to amend § 5 of the 1919 act which amendment was doubtless deemed ineffective because that section had already been amended. This brief legislative history shows that four times within two years ending March 10, 1921, the Legislature had exemptions under consideration without making any substantial change as to religious and charitable institutions. The exemption of religious societies provided *Page 583
in § 64-201, supra, is confined to the building used for religious worship, its furniture, the parsonage "occupied as such," and "the land whereon said building or buildings are situate, not exceeding fifteen acres. . . ." The predecessor of this section was held in Orr v. Baker, supra, not to exempt leased store buildings next door to its church on a lot of less than 15 acres owned by the Methodist Church of Evansville. A "fraternal beneficiary association" under the eleventh clause of the 1921 amendment is exempt as to its property "except real estate not occupied by such association in carrying on its business." These illustrations are sufficient to show the general policy as to tax exemption of real property held for benevolent purposes. We have insuperable difficulty in finding that this general public policy was intended to be changed or exceptions thereto created by the Act of 1921 upon which appellants rely as a contract. It does not meet the test of promise set against detriment or change of position in terms of bargain. But as Mr. Justice Holmes said, "the broad ground" is that the act makes no promise but "simply indicates a course of conduct to be pursued until its views of policy change." Reading it in pari materia
with ch. 222 it might reasonably be argued that the exemption in § 9 of ch. 246 was to be limited by the use to which the real estate should be devoted. Administrative officials, however, construed it differently and removed appellants' real estate from the tax duplicate. Assuming that they were right in its construction we still are unable to see that the exemption was intended to be permanent. The argument in support of that view is that the life of corporations organized under the Act is not limited in time and therefore may be deemed to be perpetual. From this premise the argument is made *Page 584
that because the exemption contained in § 9 is not limited in time it therefore must also be deemed to be perpetual. Against this view is the principle that a contract containing no specific termination date is terminable at will and the further rule that where the parties fix no time for the performance or discharge of obligations created by the contract they are assumed to have had in mind a reasonable time. It cannot be doubted that an exemption created in 1921 and extended in 1937 to 1944 has existed for a reasonable time.
We are aware that in Home of the Friendless v. Rouse
(1869), 75 U.S. 430, 19 L. Ed. 495, it was said that to add the word "forever" after the clause "all property of said corporation shall be exempt from taxation" could "not make the meaning any clearer." But against this case we set Christ Church v.Philadelphia County, supra, wherein Mr. Justice Campbell, after stating, as above quoted, that there was no necessary implication that freedom from taxation was to be "perpetual, or was designed to continue during the corporate existence," made the following statement:
"Such an interpretation is not to be favored, as the power of taxation is necessary to the existence of the state, and must be exerted according to the varying conditions of the commonwealth. The act of 1833 belongs to a class of statutes in which the narrowest meaning is to be taken which will fairly carry out the intent of the legislature. All laws, all political institutions, are dispositions for the future, and their professed object is to afford a steady and permanent security to the interests of society. Bentham says `that all laws may be said to be framed with a view to perpetuity; but perpetual is not synonymous to irrevocable; and the principle on which all laws ought to be, and the greater part of them have been established, is that of defeasible perpetuity — a perpetuity defeasible by an alteration *Page 585
of the circumstances and reasons on which the law is founded.'"
In Northwestern University v. People, supra, the special act under which the corporation was chartered was amended with a clause reading: "That all property, of whatever kind or description, belonging to or owned by said corporation, shall be forever free from taxation for any and all purposes." This inclusive, emphatic statement leaves no room for doubt or construction as to the legislative intent. But it was addressed and made with respect to a specific corporation and, we may assume, with its needs and objectives fully in mind. We are unwilling to apply such a precedent to a general act addressed to no one in particular, the principal purpose of which obviously was to furnish a method of organization for corporate activity. The person who drafted it may have had the learning and foresight to anticipate reliance upon it sometime as a contract for perpetual exemption but we doubt if any legislator had any such conception. From beginning to end it contains no suggestion of a contractual obligation to be assumed by the state. The title is, "An Act concerning the organization of foundation or holding companies and prescribing their powers and duties," which obviously contains no warning that the legislature in its enactment intends to surrender permanently any part of the sovereign power of taxation. The only mention of taxation is in the last sentence of the last section: "Property held by such corporation exclusively for religious, educational or charitable purpose shall be exempt from taxation." The word "exclusively" suggests a limitation which appellees contend relates to use. It may be so, although the word "held" is not synonymous with "used." See Northwestern University v. People, supra. If it were *Page 586
given such a meaning the act would be consistent with general public policy as found in previous and concurrent legislation as to tax exemptions. But against this construction is the administrative interpretation, in keeping the real estate off the tax duplicate from 1921 to 1937, despite its known use for secular purposes, and the legislative interpretation manifest in the Act of 1937 which provides "that all real and tangible personal property now held by such corporations . . . but not occupied and used exclusively for such purposes and objects shallcontinue to be exempt from taxation . . . until March 1, 1944." (Our italics.) we prefer, therefore, not to put our decision on a strained construction of the language of this sentence, even though so to do would make it harmonious with the public policy declared by previous statutes and the one in pari materia which amended the 1919 act.
Looking at the holding company act of 1921 as a whole, in the light of the opinions of the United States Supreme Court above quoted, and particularly the decision in Christ Church v. 6. Philadelphia County, we are unable to find in it the intent to promise these corporations more than a present tax exemption, a privilege that might in the wisdom of a future General Assembly be and was taken away by the Act of 1937.
Judgment affirmed.
NOTE. — Reported in 70 N.E.2d 19. *Page 587 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428373/ | This was a suit by administrator de bonis non, in a second amended complaint in one paragraph, answered by a general denial, wherein the administrator recovered a $1,500.00 judgment after a verdict by *Page 204
jury which also answered twenty-three interrogatories. Following the general verdict appellant moved for a judgment on the interrogatories which was overruled, and which action is assigned as error here.
In considering the question as to whether the court erred in overruling appellant's motion for judgment on the answers to interrogatories we can look only to the complaint, the 1. answer, the general verdict and proper and relevant interrogatories and their answers eliciting material and substantive facts, reasonably construed as a whole.
The complaint as applicable is as follows:
". . . That on the 26th day of November, 1925, one William H. Otte was driving and operating an automobile on and over the public highway known as Fort Harrison Road which runs from a point east of 25th street to a point west of Lafayette Avenue, in said county and which crosses the tracks of said defendant at a place about eighty yards west of the intersection of said Fort Harrison Road with said 25th street in said county.
"That said William H. Otte approached said crossing from the east driving said automobile at a rate of speed of about ten miles per hour, and when said decedent reached said intersection he looked toward the north; that said decedent while driving from said intersection to said crossing looked and listened for approaching trains on the tracks of said defendant; that said decedent when about fifteen feet from said crossing again looked and listened as aforesaid.
"That at said time and place defendant's tracks extended in a northeasterly direction from said crossing.
"That at said time commencing at a point about four feet north of and about eight feet west of said crossing *Page 205
running then northeast from said point along a line parallel to said tracks for about twenty-four hundred feet and also running thence east from said point along a line parallel to said Fort Harrison Road for about three hundred and fifty feet, there was located in the triangular area bounded on two sides by the aforesaid lines and starting at the point aforesaid the following: one orchard, one line of telegraph poles, one line of telephone poles, several dwellings, chicken houses and outbuildings, a number of shade trees, one field of weeds, one embankment; that because of the same thus set out, located and described it was difficult for the said William H. Otte to see or hear any engine or train approaching said crossing from the northeast.
"That just as said William H. Otte was crossing over the tracks of said defendant on said highway and while he was on said tracks and crossing, the defendant negligently and carelessly ran a locomotive and a train up to and over said crossing from the northeast, at a high rate of speed of about fifty miles per hour without sounding the whistle or ringing the bell on said locomotive and negligently failed to give any signal or warning of the approach of said engine and train to said crossing and thereby negligently ran said locomotive and engine against the automobile of said William H. Otte with great force and violence as he was crossing the defendant's tracks on said highway.
"That said defendant while approaching said crossing as aforesaid, and when said engine was not less than eighty (80) nor more than one hundred (100) rods from said crossing, did not sound the whistle on said engine distinctly three times and did not ring the bell attached to said engine continuously from the time of sounding such whistle until said engine has passed said crossing.
"That by reason of the aforesaid negligence of the defendant *Page 206
the said William H. Otte was then and there and thereby killed."
The interrogatories and answers are as follows:
"No. 1. Did the whistle blow when the engine was east of the home of Mrs. Dierdorf?
Answer. No.
No. 2. Did the engineer sound the whistle three times when the engine was at a point not less than 1,320 feet and not more than 1,650 feet from the Fort Harrison crossing?
Answer. Yes.
No. 3. Did the bell on the engine ring continuously from the time the train left Jackson Yards until it crossed the Fort Harrison Road crossing?
Answer. No.
No. 4. Was the train visible to the decedent had he looked as he approached the crossing?
Answer. Yes.
No. 5. Did Fort Harrison Road run east and west over the crossing?
Answer. Yes.
No. 6. Was the distance along Fort Harrison Road from the east right of way fence to the railroad track 26 feet?
Answer. Yes.
No. 7. On reaching a point on the Fort Harrison Road 25 feet east from the track could a traveler by looking see a train up the track as far as Dewey Tower?
Answer. Yes.
No. 8. Was the distance along the center line of the Chicago and Eastern Illinois Railway track from the Fort Harrison Road up to the Dewey Tower approximately 800 feet?
Answer. Yes.
No. 9. Was the distance along the center line of the Chicago and Eastern Illinois Railroad track from the Fort Harrison crossing up to 25th Street crossing approximately 500 feet?
Answer. Yes.
No. 10. Was the train approximately 800 feet long?
Answer. Yes. *Page 207
No. 11. Was the distance from the intersection of Fort Harrison Road and 25th Street over to the railroad crossing on Fort Harrison Road approximately 240 feet?
Answer. Yes.
No. 12. Was the distance from the intersection of Fort Harrison Road and 25th Street up to the railroad crossing over 25th Street approximately 410 feet?
Answer. Yes.
No. 13. Was the dining car of the train taken from the train at Evansville for repairs to the air and steam line?
Answer. Yes.
No. 14. Was the air line on the dining car broken as a result of the automobile coming in contact with the dining car?
Answer. No.
No. 15. Did the decedent look for an approaching train as he approached the crossing?
Answer. Yes.
No. 16. Could the decedent have seen the approaching train in time to have stopped his car had he looked with reasonable care?
Answer. Yes.
No. 17. Was the noise or rumble of the train heard by other persons in the vicinity as the decedent approached the railroad crossing?
Answer. Yes.
No. 18. Could the decedent have heard the noise and rumble of the approaching train had he actually listened with reasonable care when he was at a point 50 feet from the crossing?
Answer. Yes.
No. 19. Did the decedent slow down his automobile as he approached the railroad crossing?
Answer. Yes.
No. 20. At what rate of speed was the automobile of decedent traveling at the time of the collision?
Answer. 25 miles.
No. 21. At what rate of speed was the train traveling at the time of the collision?
Answer. 45 miles. *Page 208
No. 22. Were the steel rails of defendant's railroad track visible to a traveler as he approached the Fort Harrison crossing from the east?
Answer. Yes.
No. 23. Did the decedent make any effort to avoid the accident?
Answer. Yes."
Appellee complains particularly of 16 and 18 saying that they are improper because they call for conclusions of law. They each call for but one ultimate fact and not conclusions of 2, 3. law. Waking v. Cincinnati, I. W.R. Co. (1920), 72 Ind. App. 401, 125 N.E. 799.
The important question here is the one of contributory negligence. That the decedent was guilty of contributory negligence as a matter of law is definitely established by 4. the answers of the jury to interrogatories 16 and 18. This has been clearly and definitely established by Waking v.Cincinnati, supra; New York, C. St. L.R. Co. v. Leopold,Adm'r. (1920), 73 Ind. App. 309, 127 N.E. 298, and the answers to said interrogatories are in irreconcilable conflict with the general verdict.
Our Supreme Court, in Cleveland, etc. v. Baker (1920),190 Ind. 633, 128 N.E. 836, 839, by Lairy, J., said: "It can not be stated as a general proposition of law that ordinary 5, 6. care requires a traveler on a highway to stop before entering on the track of a steam railway company, and neither can it be generally stated as a matter of law that ordinary care does not require that precaution. Whether such precaution is or is not required in the exercise of due care depends on the conditions and circumstances disclosed in the particular case. In the vast majority of cases the question is one of fact, and the cases must be rare which require the court to decide it as a question of law, but there can be no doubt that such cases *Page 209
have arisen, and that they will continue to arise." This case goes on to hold that appellee was guilty of contributory negligence.
This, when applied here, means that the judgment must be for the appellant. Here the jury returned a verdict for $1,500.00 and answered interrogatories. They are in irreconcilable conflict. It is then a pure question of law. The Vermillion Circuit Court is hereby directed to enter judgment for the appellant. And it is so ordered. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428374/ | This action was brought by appellee against appellant to recover $500 on a certificate of life *Page 222
and accident insurance for the loss of the sight of the right eye, which certificate was issued by appellant to appellee pursuant to and in conformity with a policy of group insurance issued to appellee and the Louisville Nashville Railroad Company for the benefit of its employees, wherein the railroad company and the appellee each paid one-half of the premium for the insurance.
The case was tried on appellee's second paragraph of complaint and appellant's answer in two paragraphs thereto and appellee's first and second paragraphs of reply to the appellant's second paragraph of answer. The jury returned a verdict in favor of appellee in the sum of $500.
Appellant filed a motion for a new trial on the grounds, among other things, that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. The court overruled the motion for a new trial, and the action of the court in that behalf is assigned as error. The evidence in this case shows that one of the terms and conditions of the group policy of insurance under which this appellee was insured provided: "If any employee while in the employ of the employer and insured under this policy shall sustain impairment as a result directly and independently of all other causes of bodily injuries, effected solely through external, violent and accidental means and occurring within 90 days of the accident, the company will pay to such employee the disability benefit hereinafter provided in addition to any other disability benefit under this policy; immediately upon receipt of due proof of such impairment. Sight of one eye ____ $500."
The only evidence in this case as to when the appellee lost the sight of his right eye is found in the testimony of Abe Sanders, the appellee, and he says, in substance, that, on November 17 or 18, 1925, he was hit in the right eye with a cinder, that the cinder was taken out of the eye, and he bathed it with salt water and went back on *Page 223
his job; a short time after that, he was laid off, but he did not know how many days; his eye hurt him for about five days, and then it did not hurt him so much; it quit hurting in about two weeks; at the time of the accident, he did not have any doctor and never made a report of the accident to anyone; the first report that he made was in August, 1926, when he was sent to Dr. Ravadin, who found the eyesight gone; after he was hurt in the eye on November 17 or 18, 1925, he continued to work until about August, 1926, when he quit. The appellee was examined under oath before the trial, and his examination is introduced, in evidence, in which he testified that he noticed his eye was failing right along and noticed for several days before he quit work on August 17, 1926, that he was totally blind in the eye and that he thought it was best for him, and the company as well, to resign. The appellee does not testify nor is it contended that he knew when he lost the sight of the eye.
The burden was on the appellee to allege and prove in his complaint a right to recover under the policy sued on. Kent v. White (1866), 27 Ind. 390; Continental Life Ins. Co. v. 1. Kessler (1882), 84 Ind. 310; Weaver v. Nat. Casualty Co. (1924), 81 Ind. App. 421, 143 N.E. 608; Lyons v.United States Fidelity, etc., Co. (1924), 87 Ind. App. 514,145 N.E. 440; Fuller v. Supreme Council, etc. (1917),64 Ind. App. 49, 115 N.E. 372; Continental Casualty Co. v. Lloyd
(1905), 165 Ind. 52, 73 N.E. 824; Sharpe v. Commercial, etc.,Accident Assn. (1894), 139 Ind. 92, 37 N.E. 353; Nat. Life,etc., Ins. Co. v. Ritchie (1927), 86 Ind. App. 291,157 N.E. 103; 22 C.J. 70, citing Judah v. Trustees of VincennesUniversity (1864), 23 Ind. 272.
In this case it was incumbent upon the appellee to prove that he lost the sight of the eye solely through external, *Page 224
violent and accidental means, and that he lost the sight 2. thereof within 90 days of the accident. This he wholly failed to do.
Judgment is, therefore, reversed, with instructions to grant appellant's motion for a new trial. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428375/ | Appellant was convicted in the Vigo Circuit Court of maintaining a nuisance, as defined by *Page 3
§ 20, Acts 1917 p. 15. In this court, he assigns as error the overruling of his motion for a new trial, and, for causes therein, he asserts that the court erred in overruling his motion to suppress evidence; in admitting the alleged evidence sought to be suppressed; insufficient evidence to support the finding of the court and that the finding of the court was contrary to law.
The affidavit charging the offense was filed in the Vigo Circuit Court June 27, 1923. It appears from the evidence that on May 14, 1923, appellant, with his family, resided in the second story of a building, the first story of which was numbered 214 Wabash avenue, Terre Haute, Indiana, and occupied by him as a restaurant and soft drink parlor. On the latter date, the judge of the city court of Terre Haute, pursuant to an affidavit that day filed in that court, issued to the superintendent of police or any peace officer a search warrant authorizing the search of the house, room and premises of Frank Hess and Clara Hess at 214 and 214 1/2 Wabash avenue, Terre Haute, Indiana, for intoxicating liquor and gambling devices. The search warrant, as shown by the return of George Marshall, a police officer, was executed four days later by reading same to a named person in the Hess restaurant kitchen, "after Frank Hess had run upstairs * * *; and found a pint bottle with a small amount of white mule whisky in it; took to the office; arrested Hess and took him into the office." Unquestionably, the bottle mentioned in the return was a milk bottle which contained a small quantity of liquor having the odor of white mule whisky.
The motion to suppress was directed to the milk bottle, its contents, and testimony concerning what the officers saw and discovered on May 18. It is shown by the motion to suppress and by the evidence, in addition to the above, that on the day of the search, Michael *Page 4
Casey and Ray Hiatt, policemen, with officer Marshall who had the search warrant, between 7 and 9 o'clock in the evening, entered appellant's place of business. Marshall stopped in the restaurant kitchen and Casey and Hiatt continued on upstairs by way of a stairway leading from the kitchen. The door at the head of the stairway was closed. When Casey reached the head of the stairs, without any showing of any attempt to open the door in the usual and ordinary way, he kicked the door in, or rather kicked the panels out of the door. Appellant, who was then upstairs in his residence, protested against the action of the officer and demanded of Casey to know whether he had a search warrant. There is evidence to the effect that Casey responded by knocking appellant down, breaking his arm, without any apparent reason for such treatment. Officer Casey testified that appellant said: "Hell, Casey, you broke my arm. I said I don't give a damn if I broke your neck. After this when a man tells you to stop, stop. Don't be running. I didn't find any intoxicating liquor at that time." There is also evidence that, when these officers entered appellant's place of business, he was near the soft drink counter, but left and went upstairs to his residence, followed by the two officers.
The testimony of officer Casey is here especially mentioned for the reason that it indicates, as appellant claims, his general violent disposition. Appellant seems to be of the opinion 1. that the testimony of Casey should have but little influence even on appeal. We agree with him that this witness' own story, when considered with the other facts in the case, might convict him of reprehensible conduct, or at least, it certainly called for some action or investigation by the prosecuting attorney, or instructions from the court to the grand jury, but that matter, like the weight to be given his testimony, must be left to the trial court. *Page 5
The objection urged in the motion to suppress, and to the testimony at the trial pertaining to the May 18 search, was that the description of the place to be searched — 214 and 214 2-4. 1/2 Wabash avenue — in the affidavit and search warrant was ambiguous, uncertain and insufficient to authorize the officer to enter appellant's dwelling house and by force wrongfully compel him to furnish evidence against himself, in violation of Art. 1, § 11 of our Bill of Rights. It is true, certainty of the place to be searched is a constitutional mandate, and, we may add, that a single search warrant will not authorize a search of distinct premises each occupied by a different person. State v. Duane (1905), 100 Me. 447, 62 A. 80. Here, the insistence of ambiguity and uncertainty arises from the statement designating the place by two street numbers. In 19 Ency. Pl. Pr. p. 331, it is said: "If a building is known by two numbers, and is as well known by the one as the other, it may be described by either." The sole purpose of describing the place to be searched is to certainly and definitely point out the same to the officer who is to execute the warrant. In the instant case, the affidavit and search warrant directed the officers to a certain building, at least the ground floor of which was designated by No. 214 on a certain street in a certain city of this state, and authorized them to search only "the house, room and premises of Frank Hess and Clara Hess." That part of the description last quoted should be construed as meaning the house, etc., occupied by Frank Hess and Clara Hess. Wright v.Dressel (1885), 140 Mass. 147, 3 N.E. 6. The fact that the affidavit and the instrument to be executed also designated the place as No. 214 1/2, a number of which there seems to be no proof, cannot affect the validity of the affidavit or of the warrant, when it is shown that both the first and second story of the premises *Page 6
searched, and designated by street No. 214, were connected by a stairway and occupied by Frank Hess and his wife Clara Hess.Steele v. United States (1925), 267 U.S. 498, 45 Sup. Ct. 414, 69 L. Ed. 757; Commonwealth v. Intoxicating Liquors
(1889), 150 Mass. 164, 22 N.E. 628; Donnelly v. State (1924),195 Ind. 411, 144 N.E. 472. As said in State v. Moore (1904),125 Iowa 749, 101 N.W. 732: "A description which points out or identifies the place to be searched with such reasonable certainty as will obviate any mistake in locating it is all the Constitution or statute requires."
Appellant also insists that it was error to admit the evidence obtained by virtue of the alleged search and seizure, in that the affidavit and search warrant were illegal, for the reason 5. that it was not then unlawful to keep or possess intoxicating liquor for the purpose of sale, and hence the affidavit failed to state a public offense. True, at that time, the mere possession of intoxicating liquor, or possession thereof with intent to sell, was not a public offense. Darbyshire v.State (1925), 196 Ind. 608, 149 N.E. 166; Smith v. State
(1924), 194 Ind. 686, 144 N.E. 471. However, it was unlawful to manufacture, transport, sell, barter, exchange, give away, furnish or otherwise dispose of such liquor. Acts 1923 p. 70, § 1. Keeping or maintaining a place for the doing of any of those unlawful acts is by statute declared a nuisance. § 20, supra;Manley v. State (1925), 196 Ind. 529, 149 N.E. 51.
The affidavit upon which the search warrant was issued, in substance, stated that Frank Hess "is in possession of intoxicating liquors and gambling devices which are now kept for the purpose of unlawfully selling, bartering and giving the same away, in violation of the law of the State of Indiana," and describing the house by street number where the same is kept. The *Page 7
language of this affidavit, fairly interpreted, stated facts sufficient to warrant the magistrate in issuing a search warrant on the theory that appellant was engaged in maintaining a place where certain intoxicating liquor was being unlawfully sold, bartered and given away, which, as we have seen, are prohibited acts, and hence it was not reversible error to admit the questioned evidence over the objections made thereto.
The affidavit upon which appellant was tried charged, among other facts, that appellant did then and there unlawfully keep and maintain a room, house, building, structure and place 6. where intoxicating liquors were then and there kept for sale, and where persons were then and there permitted to resort for the purpose of drinking intoxicating liquors as a beverage in violation of law. Our attention is called to evidence from which it may be inferred that appellant's place of business was searched on June 26 and two quart bottles of white mule whisky were found in a stove pipe under the back porch of his restaurant and soft drink place, just outside of the back door; that, when the officers entered the place, they observed several people there and one Robert Butler in charge, to whom they read the search warrant. Moreover, a dishwasher in appellant's employ testified that white mule whisky was kept in a soda bottle in the kitchen of appellant's restaurant and that customers would go there and get it and then pay Hess or Butler twenty-five or thirty-five cents a drink. He never saw Hess serve any of the whisky but had seen Butler do so.
Appellant's motion to strike from the record all evidence pertaining to the liquor found in the stove pipe, for the reason that there was no evidence showing that this liquor 7. belonged to appellant or that he had any knowledge of its being there, was overruled, and this ruling is one of the causes assigned *Page 8
for a new trial. The liquor found in the stove pipe as a result of the search and, for aught appearing, on premises of which appellant was in possession and within the description of the place to be searched, would be sufficient to justify the court in admitting the questioned circumstances in evidence. The fact of the search and the finding of the liquor were circumstances proper to be considered in connection with the evidence of liquor being kept in the kitchen and there permitted to be drunk by persons who paid for the same. It seems to us the question thus presented challenges the weight of the evidence rather than its admissibility. The overruling of the motion to strike out was not error.
Whether the evidence is sufficient to support the finding of the trial court, according to the insistence of appellant, depends upon whether or not the ruling of the trial court 8. in admitting evidence is sustained. Aside from this, we still would have evidence showing that white mule whisky was kept or allowed to be kept in a room occupied by appellant at his place of business; that he sold it or permitted it to be sold and received the money therefor, and permitted it to be there drunk as a beverage by various persons who may be properly denominated his customers. Under this state of the record, we would not be authorized to say that the finding of the court was not sustained by the evidence or for that reason that it was contrary to law.
Judgment affirmed. *Page 9 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428376/ | Oliver B. Harrison was the owner of a restaurant. In September, 1887, he sold the same to McNutt Bros. for $850. They paid him $300 cash and gave to him their note, secured by a chattel mortgage on the restaurant property purchased by them, for the balance, $550. McNutt Bros. afterwards paid Harrison on the note and mortgage $300.
On December 19th, 1887, the McNutts mortgaged the same property to John Seisler, the appellee, for a bill of $90 for meat sold to McNutts by Seisler for the restaurant, executing a note and mortgage for said $90, due in one week after date. On December 20th, 1887, McNutts owed to Harrison a balance of $250 and interest on the note and mortgage, and on said day Harrison purchased the restaurant of McNutts, paying them $25 in money and surrendering the note and mortgage. On December 21st Harrison sold the restaurant to the appellants, Daniel and Bart McCarthy, for $250. Harrison testifies that the goods were worth at the time he sold them to McCarthy $450 to $500, and that he turned the goods over to McCarthy at 2 o'clock the 21st of December, 1887. The mortgage to the appellee, Seisler, was acknowledged, and was recorded in the proper county on the 21st day of December, 1887, at 2:30 o'clock p. m.
There was a finding and judgment for the appellee.
The mortgage to the appellee was executed by one member of the firm of McNutt Bros., George McNutt signing the firm name by himself, and acknowledging the mortgage. The mortgage was valid. The one partner had the right to execute the mortgage on the partnership property to secure the debt of the firm, and it was executed in proper form. Says Jones on Chattel Mortgages, section 46: "One partner may execute a valid mortgage of partnership goods to secure *Page 65
a partnership debt by signing the firm name." Woodruff v. King, 2 N. W. Rep. p. 452.
Indeed, counsel for appellants do not seriously controvert the right of the one partner to mortgage the property. The debt due the appellee for meat furnished in running the restaurant, and the extension of time given for the payment, were a valid consideration for the mortgage.
It is insisted by counsel for the appellants that, the appellee's mortgage being executed on the 19th of December, and not having been recorded until 2:30 p. m. on the 21st of the same month, the appellants having purchased the goods for a valuable consideration on the 21st of December before the hour when the appellee's mortgage was placed on record, without any knowledge of the mortgage, they received a valid title to the goods as against the appellee's mortgage. In other words, it is contended that under our statute a mortgage of chattels is not valid as against innocent purchasers until it is actually recorded, notwithstanding it is recorded within the ten days fixed by the statute; that until a mortgagee places his mortgage on record an innocent party may purchase the goods of the mortgagor for value and hold them free from the mortgage. We can not agree with this position of counsel. Under our statute, section 4,913, R. S. 1881, the mortgagee has ten days within which to record his mortgage in the county where the mortgagor resides, and if he records it within that time it becomes a lien from the date of its execution against all persons, and the person purchasing the property after that date purchases the same subject to the lien of the mortgage. Ten days' time is given to the mortgagee within which to record his mortgage and preserve his lien, and this continues its validity from the time of its execution. Hoadley v. Hadley, 48 Ind. 452;Krutsinger v. Brown, 72 Ind. 466; McFadden v. Hopkins, 81 Ind. 459.
If the theory of counsel for the appellant be correct, there *Page 66
would be no security whatever to the mortgagee in accepting a chattel mortgage as security for money loaned, or as security for a debt, for notwithstanding he had his mortgage, it during the time he was taking or transmitting it to the county recorder for record the mortgagee made a sale of the property to an innocent person, the lien of his mortgage would be divested and non-enforceable as against such purchaser. This is against the theory of our registration laws. The time for recording has been universally treated as a time within which the mortgagee might have his mortgage recorded and preserve his lien against all persons purchasing or taking a lien upon the same property subsequent to the execution of his mortgage.
There is no error in the record.
Judgment affirmed, with costs.
*Page 147 | 01-03-2023 | 07-05-2016 |