Steven S. Springer, Jr., appeals from the jurys verdict finding him guilty of Criminal Recklessness, a Class C felony. See footnote He presents two issues for our review which we restate as: (1) whether the trial court erred in refusing three of Springers tendered jury instructions and (2) whether the restitution order was appropriate.
The facts most favorable to the judgment reveal that Phillip Crain had a party on the night of November 5, 1999 at his parents home. Springers son, who was not invited to the party, showed up and was told to leave. When he refused, he was attacked and beaten by Phillip. Springers son then left the party and went home. The following morning, Springer learned that his son had been beaten-up. He and his wife went to the Crain residence to confront Phillip. Before leaving his home, Springer retrieved his handgun to carry with him.
Upon arriving at the Crain residence, Springer loaded a bullet into the chamber of the handgun. Springer knocked on the door and hollered at the boys inside to answer the door. Springer gained entry into the home after one of the boys who was at the residence opened the door. Once inside, Springer heard noise coming from behind the basement door. He approached the door and opened it. According to Springer, as he opened the door, he stepped back and stumbled. When he stumbled, the gun fired.See footnote The bullet passed through a refrigerator and a wall before striking an individual in the chest. Springer then took the wounded individual to the hospital.
Springer contends that the trial court erred in refusing his tendered jury instructions on negligence and accident. Springer contends that the instructions were necessary to explain his defense to the criminal recklessness charge.
Trial courts are given broad discretion in instruction of the jury. Patton v. State, 760 N.E.2d 672, 674 (Ind. Ct. App. 2002). The trial courts decision in instructing the jury is reviewed for an abuse of discretion. Id. In instructing a jury, the trial court has a statutory duty to state to the jury all matters of law which are necessary for its information in giving its verdict. Ind. Code § 35-37-2-2(5) (Burns Code Ed. Repl. 1998); Dayhuff v. State, 545 N.E.2d 1100, 1102 (Ind. Ct. App. 1989), trans. denied. As a general rule, a defendant in a criminal case is entitled to have the jury instructed on any theory of defense which has some foundation in the evidence. Dayhuff, 545 N.E.2d at 1102. This is so even if the evidence supporting the defense is weak and inconsistent. Id. However, the evidence must have some probative value to support the defense. Id.
 Whether the evidence in this case establishes that the deaths alleged in the indictment occurred from a mere accident, from negligent conduct or from willful and/or wanton misconduct so as to amount to recklessness, is dependent on the weight given the various aspects of the case and the evidence by the jury. The very purpose of the jury is to determine, after deliberation and pursuant to the courts instructions, the legal category into which the jury feels the defendants conduct falls. The appellants theory of the evidence and the law establishing such theory was never given to the jury in any instructions. Chicos, 243 Ind. at 192, 184 N.E.2d at 3.
The Supreme Court concluded by determining that the trial courts failure to give the tendered instructions constituted reversible error and remanded for a new trial. Id.
Thus, the courts refusal to give instructions as to what does not constitute recklessness is not rendered harmless because of the instruction given as to what would constitute recklessness. Indeed, I have no quarrel with holding that in cases where the understanding of a particular term is crucial, the court may not refuse a correctly drawn instruction that serves to amplify the definition by insuring that the jury understand the difference between the crucial conduct and some closely similar conduct. The purpose of instructions is to fairly advise the jury on the law applicable to the case. Id.
In refusing to give tendered instructions Number 2 and Number 3 to the jury, the trial court stated that the case was not about negligence. Transcript at 437. The trial court further stated that the State did not have to prove negligence so the instructions concerning negligence go to something that is not an issue before the jury. Id. As the trial court further elaborated, to say that Springer was negligent is the same as the jury finding that the State had not proved that Springer was reckless. To the trial court, finding Springer negligent is the same as the State not proving his recklessness.
The trial courts reasoning has merit. It is true that the State had to prove that Springer was reckless, and if it failed, the jury would be required to acquit Springer. It would not matter if the jury found that Springer was negligent so long as it did not find that he was reckless. However, as was true in Sipp and Chicos, the jury was dealing with an issue in which it was imperative that the jurors understand the difference between a party being negligent and a party being reckless. Springer argued throughout the trial that he was only negligent. During deliberations, the jury sent a note to the trial court requesting the legal definition of negligence. From this, we can deduce only that there was some question among the jury about whether Springer was negligent or reckless. Had the jury received an instruction defining negligence, the decision of the jury may have been different because the jury could have used the legal definition of negligence to aid in its deliberations. Based upon the holdings in Sipp and Chicos, Springer was warranted in his request to have the jury instructed on the negligence theory of his defense.
However, while the jury should have been instructed on Springers negligence defense, the tendered instructions should have been given only if they meet the requirements set out for our review of the failure to give such instructions. When reviewing a trial courts decision to refuse a tendered instruction, this court considers: (1) whether the refused instruction is a correct statement of the law; (2) whether evidence supported giving the instruction; (3) whether the instruction repeats material adequately covered by other instructions; and (4) whether the substantial rights of the tendering party were prejudiced by the failure to give the instruction. McCarthy v. State, 751 N.E.2d 753, 755 (Ind. Ct. App. 2001), trans. denied.
A person engages in conduct recklessly if he engages in the conduct in plain, conscious and unjustified disregard of the harm that might result therefrom, and the disregard involves a substantial deviation from acceptable standards of conduct. This requires the State to prove more than mere negligence on the behalf of the Accused. Appendix at 175.
The State contends that the instruction was an incorrect statement of the law because the last sentence of the definition noted that the State was required to prove more than mere negligence and that the instruction was adequately covered by Final Jury Instruction No. 5 which defined recklessly. There is no dispute that the evidence supported the instruction. Also, the instruction as tendered defining recklessly was a correct statement of the law as it follows the statutory definition of recklessly. See Ind. Code § 35-41-2-2(c) (Burns Code Ed. Repl. 1998).
The States contention that the last sentence to the instruction made it an incorrect statement of the law is unfounded. While the statutory definition of recklessly does not include a reference to negligence, it cannot be disputed that to prove a defendant was reckless the State must prove that the party was more than merely negligent. See Warner v. State, 577 N.E.2d 267, 269 (Ind. Ct. App. 1991) (stating that to prove reckless homicide, State must show that defendant acted recklessly and not merely negligently). To include that negligent conduct is not the equivalent of reckless conduct in a jury instruction defining recklessly does not make the definition an incorrect statement of law. On the contrary, the tendered instruction correctly stated that the State must prove more than mere negligence to prove recklessness.
Turning to whether the tendered instruction was adequately covered by the other instructions which were given, it is undisputable that the definition of recklessly itself was adequately covered. However, the portion of the instruction which discussed negligence was not included in any instructions. Because the jury should have been instructed on the theory of Springers case, and that theory of negligence was not covered by any other instructions, Instruction No. 2 should have been given to the jury as Springers substantial rights were most likely prejudiced by the failure of the trial court to explain the legal concept of negligence.
 Negligence is the failure to do what a reasonably careful and prudent person would have done under the same or like circumstances, or the doing of some thing which a reasonably careful and prudent person would not have done under the same or like circumstances; in other words, negligence is the failure to exercise reasonable or ordinary care. App. at 176.
The State challenges Instruction Number 3 by arguing that the instruction contained a term of art reasonable and ordinary care which would have required a further instruction. See footnote The State contends that according to the holding of Smith v. State, 422 N.E.2d 1179 (Ind. 1981), the trial court did not abuse its discretion in denying the instruction because of the failure of Springer to tender an additional instruction defining reasonable and ordinary care. In Smith, our Supreme Court held that an instruction was properly refused because it contained a term of art for which a further instruction was not tendered, and the tendered instruction did not place the crime of criminal recklessness in proper context in the case. Our Supreme Court determined that this combination of factors made the instruction confusing. Id. at 1184.
While no further instruction was tendered which defined the term reasonable and ordinary care, such an instruction was not necessary as the definition of negligence which was tendered would not have confused the jury. Rather, defining negligence for the jury would have aided the jury in determining whether the State had proved that Springer was reckless in his actions in shooting the handgun. It is doubtful that defining the phrase reasonable and ordinary care would have provided any additional clarity to the jury in determining whether Springer was reckless as the State charged or negligent as he claimed. Even if an additional instruction would have provided clarity to the jury, the tendered instructions were not confusing without the additional instruction.
The State concedes that the instruction was a correct statement of the law; therefore, the only issue left for our determination is whether any of the instructions which were given to the jury covered the tendered instruction. As stated earlier in the discussion of Instruction No. 2, none of the instructions which were given referred to negligence. Also, as stated before, the jurys questioning of the trial court during deliberations indicates that the jury was unclear about the definition of negligence and that there may have been some dispute among the jury about whether the State had proved that Springers acts were reckless. Based upon this review, Springers tendered Instruction Number 3 should have been given to the jury.
3. The act must not have been done recklessly, carelessly, or in wanton disregard of the consequences.
Indiana Pattern Jury Instructions 10.19. App. at 177.
The trial court denied this instruction in part because of the view that the instruction was already included because it was the negative of what the State had to prove. If the State proved that Springer was reckless, then Springers conduct was not an accident. The trial court also relied upon its belief that the instruction was confusing because carelessly is very much like being negligent, and therefore, the instruction seemed to imply that Springer may be guilty if he was negligent. Finally, the trial court noted that the instruction had been withdrawn from the pattern jury instructions.
While the published version of the Indiana Pattern Jury Instructions (Criminal) 10.19 (2d ed. 1991) still contains the accident instruction, the version of the instructions found on the internet at http://www.in.gov/judiciary/center/docs/crim_pat_jury_instruct_ 0902.pdf, which will be the third edition when published, reflects that the instruction has been withdrawn. The comments indicate that the Indiana Judges Association Criminal Instructions Committee withdrew the instruction because it could not conceive of a situation where the principles incorporated in the accident instruction would not be covered by other instructions which discussed the elements of the crime and the States burden of proof. The comment also indicated that the Committee considered that the decision from which the accident instruction originated, Gunn v. State, 174 Ind.App. 26, 365 N.E.2d 1234 (1977), was based upon law which was in place prior to the adoption of the current Indiana Penal Code as revised in 1976. Since that time, the comment states that no Indiana case has considered whether the accident instruction is appropriate or how the instruction should be worded.
We agree with the trial court and the Committee that the principles established in the accident instruction are included in the instructions given defining the elements of the crime. At this point, it is necessary to draw a distinction between our reasoning regarding the accident instruction and the negligence instructions, as we previously stated that similar reasoning, while it had merit, did not preclude the giving of the negligence instructions. The key distinction is that negligence and recklessness are concepts without much distinction, especially when one has not been informed of the legal definitions of each term. To the mind of the layman, they are difficult to distinguish. However, accident is a term which a layman can quickly and reasonably understand to be different than reckless conduct. As recklessly is defined, there is little concern that reckless conduct could be considered to be accidental conduct.
We also note agreement with the trial court that the accident instruction as given in the Pattern Jury Instructions could be confusing. Even to those trained in the law, it is reasonable to say that careless conduct seems very similar to negligent conduct. While there may very well be a distinction between an accident and negligence, neither will give rise to liability in this case. To the extent that accident could be considered as negligence, it is covered by the negligence instructions. To the extent that accident is something less than negligence, the principle behind the instruction is included the reckless instruction for the reasoning espoused by the trial courtif the State has not proved reckless conduct, there is no guilt upon the part of Springer whether the act was committed through an accident or negligence.
The question of whether the instruction as written was a correct statement of the law or how it should have been worded is not one that this court must or will decide today. While in the future a situation may be presented in which an accident instruction would be appropriate, such is not the case here. Any information which could have been given through a separate accident instruction was included in the other instructions which were given. Also, Springer cannot show that his substantial rights were prejudiced by not giving such an instruction because were the jury to decide that the shooting was a result of an accident, there is no question that the jury could not find that he was reckless. The trial court did not err in refusing to give the tendered accident instruction.
Based upon the errors in refusing to instruct the jury on defendants theory of the case that he was not reckless, but instead was negligent, we reverse and remand to the trial court for a new trial. However, as the second issue which was raised by Springer may arise upon retrial, we will also address it.
Springer challenges the restitution order which was entered against him to the extent that it requires that he reimburse Phillip Crains father, Daniel Crain, for the cost of airline tickets to return home from vacation following the shooting. Springer asserts that the trial court was without statutory authority to enter the challenged portion of the order. The amount of the $4,551.00 order which Springer challenges is $2,132.00.
In Roach v. State, 711 N.E.2d 1237 (Ind. 1999), our Supreme Court addressed whether a restitution order could include reimbursement for expenses which were not itemized in Ind. Code § 35-50-5-3 (Burns Code Ed. Supp. 1994), the restitution order statute. In that case, the Court was reviewing a prior version of the restitution statute which authorized restitution orders for property damage, medical and hospital costs, and lost earnings. The Court determined that because funeral and burial expenses were not included within the plain and ordinary meaning of the statute, and because the legislature had amended the statute to include restitution for funeral and burial expenses after the restitution order was entered, the defendant could not be ordered to pay restitution for those expenses. Roach, 711 N.E.2d at 1238.
None of these four categories includes any language which could be construed to authorize a trial court to include in a restitution order a reimbursement to an individual for airline travel as a result of returning home following the commission of a crime at ones residence. Because the General Assembly has not authorized the trial court to include such in its restitution order, the trial court erred in requiring Springer to reimburse Daniel Crain for the cost of the airline tickets.
The trial court erred in refusing to give Springers tendered instructions on negligence to the jury. The tendered instructions were correct statements of the law, were based upon the evidence, the material in the tendered instructions was not covered by any other instructions, and Springers substantial rights were most likely prejudiced by the failure to give the instructions. Following retrial, should Springer be found guilty, the trial court is to refrain from including any costs for the airline tickets in a restitution order.
We reverse and remand for proceedings not inconsistent with this opinion.
BAILEY, J., dissents with opinion.
I respectfully dissent from the majoritys determination that the trial court erred in refusing to give Springers tendered instructions on negligence to the jury. This is not a case about negligence. Negligence law presupposes that an individual is engaged in lawful conduct which can be undertaken with due care for the safety of another person. The cases relied upon by the majority, Sipp, 514 N.E.2d at 330 and Chicos, 184 N.E.2d at 1, involve such conduct, that of operating a motor vehicle. The mere negligent operation of a motor vehicle does not render one operating it criminally liable should harm ensue. Id. at 3.
Here, in contrast, Springer was engaged in conduct that he had no legal right to engage in; specifically, entering anothers home in a confrontational manner, holding an unlicensed weapon, which he admitted was locked and cocked with one in the chamber. (Tr. 386.) Springer was in a course of criminal conduct from the moment he demanded entry to anothers home, armed and on a mission to intimidate the person he believed to be responsible for the beating of his son. Had the course of conduct ended with the victim fatally wounded, Springer would properly have been tried on a charge of felony murder.
The majority accepts as uncontroverted the factual contention that Springer stepped back and stumbled while holding the gun and that when he stumbled, the gun fired. Majority Op. at 2. However, these were claims made by Springer and contested by the State, which presented evidence that the trajectory of the bullet was consistent with the deliberate firing of a warning shot into a wall. The State also presented evidence that the gun had a safety mechanism and was not defective, and that deliberate pressure on the trigger was required for firing. However, even assuming that Springer stumbled once inside the house, upon failing to exercise due care to avoid tripping, this does not render all his foregoing conduct merely negligent.
Considering either Springers version  that he took a locked and cocked gun into a residence and thereafter stumbled  or the States version  that he took his gun into a residence and fired a warning shot while demanding to know the whereabouts of his sons attacker  the discharge could not be lawful. Springer had no right to be in the residence; he was not acting in defense of a person or property; he had no excuse or justification for his actions recognized by law and did not suffer from diminished capacity. The illicit activities that had taken place in the residence, as well as the illegal conduct directed toward Springers son, had already terminated before Springer appeared. Springer elected not to summon police, but to seek retribution on his own. To allow negligence instructions under such circumstances would be tantamount to accepting vigilante justice without an imminent threat to person or property.
Moreover, assuming that an instruction including language that This requires the State to prove more than mere negligence on the behalf of the Accused, App. at 175, is relevant to an issue before the jury, the jury would not have been adequately apprised of negligence law by the instructions tendered. The tendered instructions omit a definition of reasonable and ordinary care for obvious reasons  there is no definition of reasonable and ordinary care that encompasses the circumstance of an uninvited person seeking confrontation in the occupied residence of another person, while wielding a loaded, cocked weapon without the safety mechanism engaged. Ultimately, Springer may argue a particular version of the facts in support of his theory of the case. However, under the circumstances of this case, he is not entitled to have the support of the law to further his theory.
Finally, error in failing to give an instruction does not warrant reversal absent prejudice to the defendant. Bragg v. State, 695 N.E.2d 179, 180 (Ind. Ct. App. 1998). Springer was not prejudiced by the omission of negligence instructions. The jury could not have found Springer negligent under either factual scenario presented.
I would affirm the refusal of the negligence instructions. In all other respects, I concur with the majority.
Footnote: Ind. Code § 35-42-2-2 (Burns Code Ed. Repl. 1998).
Footnote: There was no evidence that the incident occurred other than as described by Springer. Of course the jury was free to disbelieve the version given by Springer.
Footnote: The State contends that reasonable and ordinary care is a term of art because there is a pattern jury instruction defining the phrase.
Footnote: We do not, as perceived by the dissent, accept the factual contention that Springer stepped back and stumbled and that when he stumbled, the gun fired. Slip op. at 17. (Bailey, J., dissenting). We hold merely that Springers assertion of the facts, if accepted by the jury, would constitute negligence in the discharge of the firearm. Accordingly, he was entitled to an instruction upon his theory of defense. Although the conduct preceding the firing of the weapon may have been reckless, or even intentional, that characterization of Springers conduct does not necessarily extend to the firing of the weapon.


[265 U.S. 219, 220] Messrs. Harry McCall and George Denegre, both of New Orleans, La., for petitioner.
Mr. Richard B. Montgomery, of New Orleans, La., for respondent.
On March 3, 1923, the Director General of Railroads sued the respondent Coal Company in a City Court of New Orleans, for damages done by it to a railroad wharf on January 9, 1920, while the wharf was under federal control. The Coal Company pleaded the prescription of one year under the statutes of Louisiana. Civil Code, art. 3536. This defence was upheld by the City Court and by the Court of Appeals and a review was denied by the Supreme Court on the ground that the ruling below [265 U.S. 219, 222] was correct. A writ of certiorari was granted by this Court. 264 U.S. 578 , 44 Sup. Ct. 403, 68 L. Ed. --.
In E. I. Dupont De Nemours & Co. v. Davis, 264 U.S. 456 , 44 Sup. Ct. 364, 68 L. Ed. --, April 7, 1924, it was held that the Director General was not barred by the statutes of the United States in an action on behalf of the United States in its governmental capacity to recover upon a liability arising out of his control. The familiar rule was repeated that the United States should not be held to have waived any sovereign right or privilege unless it was plainly so provided. The reasoning of that case excludes the notion that there was any intentional waiver by the United States of its sovereign right to collect its claims, irrespective of any statute, 'as soon as practicable.' The provision of section 10 of the Federal Control Act of March 21, 1918, c. 25, 40 Stat. 451, 456 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, 3115 3/4 j), subjecting carriers 'to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except,' etc., rightly was said by the counsel for the petitioner to do no more than subject operations of the carriers to existing laws, not to adopt from the States their several limitations to suits that this Government might bring, while the United States applied no limitations of its own. The distinction in the statute between carriers and the Government is pointed out in the above cited case. Also it is established that a state statute of limitations cannot bar the United States, at least when a suit is brought in the United States courts. United States v. Thompson, 98 U.S. 486 ; United States v. Nashville, Chattanooga & St. Louis Ry. Co., 118 U.S. 120 , 6 Sup. Ct. 1006; Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 123, 125 , 39 S. Sup. Ct. 407. The only question that requires a further word is whether thn Courts below were right in thinking that the lex fori imposed a different rule if the United States saw fit to sue in a state court.
Perhaps it was not quite fully remembered that the laws of the United States are a part of the lex fori of a [265 U.S. 219, 223] State. But however that may be, it has been decided by a series of cases that when the courts of a State are given general jurisdiction over a certain class of controversies the power of the State over its own courts cannot be used to exclude a party from what otherwise is a constitutional right. International Text Book Co. v. Pigg, 217 U.S. 91, 111 , 30 S. Sup. Ct. 481, 27 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103; Kenney v. Supreme Lodge of the World, 252 U.S. 411, 415 , 40 S. Sup. Ct. 371, 10 A. L. R. 716; Missouri ex rel. Burnes National Bank v. Duncan, 265 U.S. 17 , 44 Sup. Ct. 427, 68 L. Ed. --, April 28, 1924. If the section of the Louisiana Code after the limitation that it expresses went on to say that the United States is forbidden to sue in the courts of the State upon such claims over a year old, although but for this limitation it might, the exception could not be maintained. But we hardly believe that if the matter were baldly presented the Code would be construed in that way. The ruling below was based upon the belief, since shown to be mistaken, that the United States had waived its immunity from the state laws.


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The original idea for an art center in Dunedin dates back to more than 40 years ago in 1969. Recognizing the importance of the arts to everyday life, five women from the Junior Service League of Clearwater-Dunedin sought to create a space within the community where the arts could be perpetuated and celebrated. These women resolved to work toward the creation of a cultural climate and the eventual building of a fine arts and cultural center. Both the League and the city agreed that an art center would be a beneficial heritage for the city of Dunedin and set forth the motions to put the plan in action. Five years later in 1974, the vision and commitment of the City of Dunedin, its citizens and the members of the League, came to fruition when ground was broken on the Dunedin Fine Art Center.
When the doors to the first 2000 square foot facility were opened in February of 1975, a commitment to excellence and a welcoming spirit were the guiding lights that you can still see in DFAC’s nearly 50,000 sq. ft of facilities.
Today, the Dunedin Fine Art Center is built on strong foundations within the community. Through donations, endowment and memberships, the center is able to exist and expand to serve the community and meet the needs of our society.
The mission at the Dunedin Fine Art Center is to enrich lives through educational experiences in the visual arts.
The vision is to make the Dunedin Fine Art Center a leading visual art center providing unparalleled educational, cultural & creative experiences.
The Dunedin Fine Art Center offers more than 1000 class sessions and workshops each year for both children and adults. Our staff is comprised of more than 70 professional artists who are among the most respected in the community and teach a variety of artistic mediums.
At the Dunedin Fine Art Center, we present exciting and challenging exhibits in an accessible way. Be sure to view our current exhibits, as well as past exhibits and those to come.
There’s always something exciting happening at the Dunedin Fine Art Center, whether a special event, film, lecture or other offering in between. You can also inquire about renting our space for your own special event.
As Picasso once said, “Every child is an artist.” The Dunedin Fine Art Center emphasizes the importance of art education for children. This is why we are proud to have the Kid’s Corner, which includes the David L. Mason Children’s Museum, youth classes, summer camps, student tours, a teen art club and more.
Our fabulous Palm Cafe offers delicious food and drinks for your next visit to the Dunedin Fine Art Center. Also offered are catering options for your next event.
Most of our art is the result of the fine work of local artists. In our store you will be able to buy unique gifts and decoration for you to cherish forever. In the Gallery Shop, our selection includes jewelry, paintings, pastels, glass, ceramics, wood, fiber artwork and much more.
The Dunedin Fine Art Center offers a little something for everyone! We hope you come out to play and see why people say the Dunedin Fine Art Center is where the art is! For more information on planning your visit to the Dunedin Fine Art Center, click here, or contact us for more information.

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Chad has extensive experience handling complex commercial disputes, and advises on environmental matters both foreign and domestic. Chad has tried cases in state and federal courts, and before international tribunals. He joined Summit Law Group from Kirkland & Ellis LLP in Chicago.
Defending Taiwanese company in $80 million toxic tort class-action lawsuit, the first of its kind in Taiwan.
Defended Greek company in $85 million International Chamber of Commerce (ICC) arbitration in London regarding privatization of satellite imaging.
Represented one of the world’s leading manufacturers of household products in a post-closing purchase price adjustment before a German arbitral tribunal (ICC).
Represented auto-industry OEM in post-closing purchase price adjustment dispute against French company in ICC arbitration seated in Toronto.
Represented client in challenges and response to cleanup orders from Taiwan’s regulators and oversight of cleanup of former manufacturing facility in Taiwan.
Drafting and negotiating arbitration provisions in commercial agreements.
Advising on the recognition and enforcement of foreign judgments.
Hanford Challenge, et al. v. Perry, et al., (E.D. Wash. 2016): Successfully defended Washington River Protection Solutions in a preliminary injunction brought by the State of Washington, Hanford Challenge and Local Union 598 pursuant to RCRA’s citizen-suit provisions regarding Hanford Tank Farms and chemical vapors.
Columbia Energy & Environmental Services v. Washington River Protection Solutions, et al. (Benton County Superior Court): Representing defendants WRPS, AECOM, and Atkins in defense of Plaintiff’s breach of contract, tortious interference, and trade secrets claims related to clean-up of the Hanford Tank Farms.
EFT Holdings, Inc., et al. v. Meifu Development Co., Ltd., et al. (Los Angeles County Superior Court): Represented two foreign defendants who challenged the court's jurisdiction and also moved to have the case tried in Taiwan per forum non-conveniens. After filing those pleadings, the case was dismissed by plaintiffs who sought approximately $22 million in damages.
Plymouth Grain Terminals, LLC, et al. v. Lansing Grain Company, LLC, et al. (E.D. Wash.): Two-week jury trial that settled mid-trial. Represented defendants in a multi-million dollar breach of contract action regarding corn merchandising.
EnergySolutions, LLC v. ABW Technologies, Inc. (Benton Co. Superior Court, Wash.): Representing EnergySolutions in contract dispute involving fabrication of gloveboxes for remediation of Savannah River Site in South Carolina.
Heckler and Koch, Inc. v. Precision Airsoft, Inc. (E.D. Wash.): Represented plaintiff in trademark and trade dress dispute, which was favorably settled.
Numbers Licensing, LLC v. bVisual USA, Inc. (E.D. Wash.): Defeated motion for preliminary injunction (reported at 643 F. Supp. 2d 1245) and successfully settled matter for defendants.
Winthrop Construction Inc. v. Terra Blanca Vintners, Inc. (Wash.): Using streamlined arbitration proceeding, obtained favorable award for plaintiff, including nearly $250,000 in attorneys’ fees and costs.
International Game Technology v. Casino Data Systems, Inc. (D. Nev.): Counsel for plaintiff electronic gaming manufacturer in lawsuit for patent infringement claims and defended against anti-trust counterclaims.
Shapo v. Engle (N.D. Ill.): Defended client against $200 million RICO claims in connection with liquidation of Illinois insurance company. Successfully had complaint against client dismissed.
Independent Trust Corp. v. Capriotti (Ill.): Represented plaintiff as receiver for Illinois trust company. Obtained $68 million summary judgment rulings for fraud, breach-of-contract, and breach-of fiduciary-duty claims.
In re Exide Technologies, Inc. (Bank. D. Del.): Represented debtor at Bankruptcy Confirmation Hearing for public company with over $2.5 billion in revenues.
Miller v. Material Sciences Corporation (N.D. Ill.): Defended public company in securities fraud class action.
Represented multiple clients in connection with post-closing purchase price adjustment disputes.
Advised client on response to cleanup orders from Taiwan’s regulators (EPA and EPB) and remediation of former manufacturing facility in Taiwan.
W.R. Grace & Co. v. Goodyear Tire and Rubber Co. (W.D. Mich.): Successfully obtained summary judgment for plaintiff seeking contribution for responding to an EPA emergency administrative order under the Safe Drinking Water Act.
Represented client in federal (C.D. Ill.) and state (Ill.) cost recovery lawsuits and federal grand jury investigation (C.D. Ill.) in connection with environmental incident resulting in a fish kill.
Represented multiple clients in connection with CERCLA actions and environmental regulatory matters.

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Ostensible owner is not the real owner but one who can represent himself as the real owner to the third parties for such dealings. He has acquired that right by the willful neglect or acquiescence by the real owner of the property thereby conferring on him the status of ostensible owner. For instance, when the property is in wife’s name however the husband taking care of it and entering into transactions on her behalf is the ostensible owner and has the authority to dispose it off.
The phenomenon of appointing an ostensible owner is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself our shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing, either that he had direct notice, or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted would have led to discovery of it.
There should be either implied or express consent from the owner of the property.
The transfer should be for some consideration in return.
Reasonable care has to be taken by the transferee regarding the authority of the transferor to effectuate the transaction and also of the fact that he has acted in good faith.
The doctrine of transfer by ostensible owner is based on the doctrine of estoppel that when real owner of property makes some one apparent to be the owner to third parties and they act upon it, he cannot go back his representation.
These rules and the section is available only to immovable property and not on the movables.
Firstly the documents concerned with the property has to be checked whether they contain the name of transferor as owner or not. Secondly, whether the person having his name in the documents of the property in question has any intention to purchase the same or not. Thirdly, it is the most important test for determining whether a person is ostensible owner is that who is the possession of the property and who is enjoying it. If the person who is the owner as per the records and the documents of the property in the matter at hand the chances of being it a property of an ostensible owner or he being an ostensible owner is quite less. However if the person whose name is there in the property documents is not similar then it enhances the chances of it being a property of ostensible owner who is full filing the wishes of the real owner.
However enjoying the property here does not only mean the mere enjoyment of the property being in the possession of the property but includes the selling rights, right to lease out the said property and get the consideration from the same , to enjoy the benefits out of the said property etc. Enjoyment has been given a broader aspect in this aspect and particular case. Fourthly, the reason behind it being given the aspect of ostensible ownership, i.e the reason why the real owner has not purchased same in his own name.
Looking at examples of such transactions, a benami transaction is one where one buys property in the name of another or in the disguise of a beneficiary transfer, without indicating an intention to benefit the other. The benamidar though has a property in his name, has no beneficial interest existing in the same. He represents in fact the real owner and as far as their relative legal position is concerned, he is a mere trustee for him. Benami transaction results in creation of a trust. The general rule and principle of the Indian law as to resulting trusts differs a little from the general rule of English law upon the same subject. In India, a benamidar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title. But from this it does not follow that the benamidar has real title to the property, he is merely an ostensible owner thereof.
Actions of owner also establish whether he has authorized an individual as ostensible owner or not. Consent of owner over this authority is the prerequisite of this provision to apply. If an owner with his free consent gives apparent authority to some -one to enter into transactions on his behalf, then that apparent authority is deemed to be real authority. In the case Ananthula Sudhakar v. P.Bucha Reddy , the defendant Damodar Rao negotiated with plaintiffs, for sale of the two sites, on behalf of his sister Rukminibai, representing that his sister was the owner thereof . He attested the sale deeds in the favor of plaintiffs as witness and by making his sister as vendor executant. Those acts of Damodar Rao supported the claim of Rukmanibai that there was an oral gift. However even there has not been an oral gift in favor of Rukmanibai and Damodar Rao still remains the owner, the aforesaid acts of Damodar Rao showed that he has given implied consent for her representation as ostensible owner of the suit property and to transfer the same to plaintiffs for consideration. This attracted the provision of section 41 of Transfer of Property Act, 1882 and therefore the transfers in favor of plaintiffs was not voidable at the instance of Damodar Rao or his successor alleging that Rukmanibai was not the owner of the property. For being an ostensible owner, not the title but the authority arising from either express or implied consent of owner is needed.
In the landmark case Shafiquallah v. Samiulah, after the death of owner, the property was in possession of his illegitimate sons who were legally ineligible to hold the property. The real heir filled a suit claiming his rights of inheritance. However the possessors retained the possession and sold it to a third party, claiming themselves to be ostensible owners. However present legal position cannot attract section 41 as the possession was not neither with express nor implied consent of the legitimate owner. Additionally consent must not be understood to be including an intention to deceive the transferee on the part of the real owner nor is the need to prove it.
This section only applies to voluntary transfers not to involuntary or legally mandated transfers like ones by the order of the court such as an auction sale.
For the provision to apply there is no necessary sale or exchange to take place. It just denotes to a transfer of interest which could be mortgage, lease etc. and hence an ostensible mortgagee could be held as an ostensible mortgagee.
The transaction entered by ostensible owner has to be for consideration. There has to be an element of quid pro quo. This section does not contemplate gratitutious transfers.
Also the rights of the transferees making a purchase from ostensible owner depends upon the extent to which the ostensible owner has rights in the said property. In the case State of Punjab v. Surjit Kaur, owner’s widow had an authority over his estate as an ostensible owner, however it being limited only to life interest. Hence the rights of the transferee purchasing the property from her would be co-extensive with her and hence will cease to exist with her life time.
Section 41 along with mentioning nature of authority of an ostensible owner also lays emphasis on intention of transferee and the duty of care he has to oblige to during the transaction. It provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorized therefor, subject to the condition that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and to act in good faith before a benefit thereof is claimed by him.
The burden of proof is on the transferee to prove that the person making the transfer was infact the ostensible owner and had the requisite authority for such transactions. He should at least prove that is a benami transaction. Also he must prove that he took reasonable care to protect his interest. And hence also must make relevant inquiries.
When a transfer is made by ostensible owner this section provides that the transfer shall not be voidable on the ground that the transferor was not authorized to make it ; provided the transferee has taken due care and must have acted in good faith. The principle applies when the whole transaction is not voidable.
The essay stresses on the legal provision in Transfer of Property Act, 1882 defining the powers of ostensible owner and discussing the nature of transactions entered by him. Ostensible owner has as its more prominent characteristic the authority given by the owner of the property to enter transactions on his behalf. The consent for this authority could be either express or implied which could be understood by various landmark case laws. However consent does not include an intention to deceive. Also once made the transfer of property is not voidable at the option of the owner. This transfer also include partial transfers like mortgage, lease along with complete transfer of rights like sale, exchange. Also the law places burden of proving that the transferor is ostensible owner, on the transferee. He must also act bona fide in good faith and make proper inquiries as to the status of transfer and be vigilant.
 Ramcoomar Koondoo v. John and Maria Mcqueen (1872) 11 Beng LR 46, p 52.
 Baidya Nath v. Alfeian AIR 1923 Cal 240.
 Jote Singh v. Ram Das Mahto , Air 1966 SC 2773.
 Suraj Ratan Thirani v. Azamabad Tea Co., AIR 1965 SC 295.
 Sethumadhva v. Bacha Bibi , AIR 1928 Mad 778.

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Justia › US Law › US Case Law › US Supreme Court › Volume 303 › Myers v. Bethlehem Shipbuilding Corp.
(1) That the District Court had no jurisdiction of a suit by the corporation to enjoin the Board from holding the hearing. P. 303 U. S. 47.
(2) That the District Court had no jurisdiction of a suit by employees of the corporation who were officers of a labor organization at the plant to enjoin the Board from holding the hearing, the bill in this case alleging further that the employees are satisfied with their existing contracts of employment, and desire to retain the existing plan of representation without change; that the holding of the proposed hearing will discredit the plan and destroy its usefulness to the employees; that they will be deprived of their right to negotiate by the method of their choice, the value of which has been proved by years of operation; that alteration of the plan will cause dissatisfaction among the employees; that operation of plant will be disrupted by labor disturbances; that employment will be interrupted, and that the damage to the employees will be irreparable. P. 303 U. S. 53.
2. In the National Labor Relations Act, Congress provided for appropriate procedure before the Labor Board and an adequate opportunity, through review by the Circuit Court of Appeals, to secure judicial protection against possible illegal action by the Board, and the grant to the Board and the Circuit Court of Appeals of exclusive jurisdiction "to prevent any person from engaging in any unfair labor practice affecting commerce" is constitutional. P. 303 U. S. 48.
3. The conclusion that the District Court is without jurisdiction to enjoin the holding of a hearing by the Labor Board, even though it be claimed that interstate or foreign commerce is not involved and that the holding of a hearing would cause irreparable injury, does not deny any rights guaranteed by the Federal Constitution. P. 303 U. S. 50.
4. The rule requiring exhaustion of the administrative remedy cannot be circumvented by a claim that the charge on which the complaint rests is groundless, and that the mere holding of the prescribed administrative hearing would result in irreparable damage. P. 303 U. S. 51.
has no application where there is an insuperable objection in point of jurisdiction to the maintenance of the suit, and where it clearly appears that the decree was the result of an improvident exercise of judicial power. In such case, dismissal of the bill should be directed. P. 303 U. S. 52.
held the contrary. [Footnote 1] Because of the importance of the questions presented, the conflict in the lower courts and alleged conflict with our own decisions, we granted these writs of certiorari.
12, 1937. 88 F.2d 154. Petitions for a rehearing, based upon the conflict with the decisions of other circuit courts of appeals, were denied. And the court denied also motions for leave to file a second petition for rehearing, based upon the decisions of this Court in Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, and other cases rendered April 12, 1937. 89 F.2d 1000. The District Court denied the motions to dismiss the bills. 15 F.Supp. 915. But the review by the Circuit Court of Appeals dealt only with the decrees for a preliminary injunction.
"This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise. [Footnote 5]"
"do not offend against the constitutional requirements governing the creation and action of administrative bodies. See Interstate Commerce Comm'n v. Louisville & Nashville R. Co., 227 U. S. 88, 227 U. S. 91. The act establishes standards to which the Board must conform. There must be complaint, notice and hearing. The Board must receive evidence and make findings. The findings as to the facts are to be conclusive, but only if supported by evidence. The order of the Board is subject to review by the designated court, and only when sustained by the court may the order be enforced. Upon that review, all questions of the jurisdiction of the Board and the regularity of its proceedings, all questions of constitutional right or statutory authority, are open to examination by the court. We construe the procedural provisions as affording adequate opportunity to secure judicial protection against arbitrary action in accordance with the well settled rules applicable to administrative agencies set up by Congress to aid in the enforcement of valid legislation."
is involved, but the Circuit Court of Appeals concludes that such finding was without adequate evidence to support it, or otherwise contrary to law, the Board's petition to enforce it will be dismissed, or the employer's petition to have it set aside will be granted. [Footnote 7] Since the procedure before the Board is appropriate, and the judicial review so provided is adequate, Congress had power to vest exclusive jurisdiction in the Board and the Circuit Court of Appeals. Anniston Manufacturing Co. v. Davis, 301 U. S. 337, 301 U. S. 343-346.
See § 11 of the Act and article II, §§ 20 and 21, of the Rules and Regulations issued April 27, 1936. Compare Federal Trade Commission v. Claire Furnace Co., 274 U. S. 160; E. I. Dupont De Nemours & Co. v. Boland, 85 F.2d 12.
In support of that contention the following cases were cited: Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287, 253 U. S. 289; Bluefield Water Works Co. v. Public Service Comm'n, 262 U. S. 679, 262 U. S. 683; Phillips v. Commissioner, 283 U. S. 589, 283 U. S. 600; Crowell v. Benson, 285 U. S. 22, 285 U. S. 60, 285 U. S. 64; State Corporation Comm'n v. Wichita Gas Co., 290 U. S. 561, 290 U. S. 569; St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 298 U. S. 51-52.
The rule has been most frequently applied in equity where relief by injunction was sought. Pittsburgh &c. Ry. v. Board of Public Works, 172 U. S. 32, 172 U. S. 44-45; Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 211 U. S. 230; Dalton Adding Machine Co. v. State Corporation Comm'n, 236 U. S. 699, 236 U. S. 701; Gorham Mfg. Co. v. State Tax Comm'n, 266 U. S. 265, 266 U. S. 269-270; Federal Trade Comm'n v. Claire Furnace Co., 274 U. S. 160, 274 U. S. 174; Lawrence v. St. Louis-San Francisco Ry. Co., 274 U. S. 588, 274 U. S. 592-593; Chicago, M., St. P. & P. R. Co. v. Risty, 276 U. S. 567, 276 U. S. 575; St. Louis-San Francisco Ry. Co. v. Alabama Public Service Comm'n, 279 U. S. 560, 279 U. S. 563; Porter v. Investors' Syndicate, 286 U. S. 461, 286 U. S. 468; United States v. Illinois Central Ry. Co., 291 U. S. 457, 291 U. S. 463-464; Hegeman Farms Corp. v. Baldwin, 293 U. S. 163, 293 U. S. 172; compare Red "C" Oil Mfg. Co. v. North Carolina, 222 U. S. 380, 222 U. S. 394; Farncomb v. Denver, 252 U. S. 7, 252 U. S. 12; Milheim v. Moffat Tunnel District, 262 U. S. 710, 262 U. S. 723; McGregor v. Hogan, 263 U. S. 234, 263 U. S. 238; White v. Johnson, 282 U. S. 367, 282 U. S. 374; Petersen Baking Co. v. Bryan, 290 U. S. 570, 290 U. S. 575; Pacific Tel. & Tel. Co. v. Seattle, 291 U. S. 300, 291 U. S. 304. But because the rule is one of judicial administration -- not merely a rule governing the exercise of discretion -- it is applicable to proceedings at law, as well as suits in equity. Compare First National Bank of Fargo v. Board of County Comm'rs, 264 U. S. 450, 264 U. S. 455; Anniston Mfg. Co. v. Davis, 301 U. S. 337, 301 U. S. 343.
Dalton Adding Machine Co. v. State Corporation Comm'n, 236 U. S. 699; Federal Trade Comm'n v. Claire Furnace Co., 274 U. S. 160; Lawrence v. St. Louis-San Francisco Ry. Co., 274 U. S. 588; St. Louis-San Francisco Ry. Co. v. Alabama Public Service Comm'n, 279 U. S. 560. Compare Western & Atlantic R. v. Georgia Public Service Comm'n, 267 U. S. 493, 267 U. S. 496, and cases cited in note 1 supra.
Such contentions were specifically rejected in Bradley Lumber Co. v. Labor Board, 84 F.2d 97; Clark v. Lindemann & Hoverson Co., 88 F.2d 59; Chamber of Commerce v. Federal Trade Commission, 280 F. 45; Heller Bros. Co. v. Lind, 66 App.D.C. 306, 86 F.2d 862, and Pittsburgh & W.Va. Ry. Co. v. Interstate Commerce Comm'n, 52 App.D.C. 40, 280 F. 1014. Compare United States v. Los Angeles & S.L. R. Co., 273 U. S. 299, 273 U. S. 314; Lawrence v. St. Louis-San Francisco Ry. Co., 274 U. S. 588; Dalton Adding Machine Co. v. State Corporation Comm'n, 236 U. S. 699; McChord v. Louisville & Nashville Ry. Co., 183 U. S. 483; Richmond Hosiery Mills v. Camp, 74 F.2d 200, 201.
The cases cited by the corporation are not opposed. Watson v. Sutherland, 5 Wall. 74; Pierce v. Society of Sisters, 268 U. S. 510; Walla Walla v. Walla Walla Water Co., 172 U. S. 1; Vicksburg Water Works Co. v. Vicksburg, 185 U. S. 65, 185 U. S. 82; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 245 U. S. 248; Pennsylvania v. West Virginia, 262 U. S. 553, 262 U. S. 592-593; City Bank Farmers' Trust Co. v. Schnader, 291 U. S. 24, 291 U. S. 34; Truax v. Raich, 239 U. S. 33; Terrace v. Thompson, 263 U. S. 197, 263 U. S. 215-216.
Meccano Ltd. v. John Wanamaker, 253 U. S. 136, 253 U. S. 141; Lawrence v. St. Louis-San Francisco Ry. Co., 274 U. S. 588 (semble); compare Prendergast v. New York Telephone Co., 262 U. S. 43, 262 U. S. 50-51; National Fire Insurance Co. v. Thompson, 281 U. S. 331, 281 U. S. 338; Alabama v. United States, 279 U. S. 229, 279 U. S. 231; Rogers v. Hill, 289 U. S. 582, 289 U. S. 587.
Smith v. Vulcan Iron Works, 165 U. S. 518, 165 U. S. 525; Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 177 U. S. 494; Metropolitan Water Co. v. Kaw Valley Drainage Dist., 223 U. S. 519, 223 U. S. 523; United States Fidelity & Guaranty Co. v. Gray, 225 U. S. 205, 225 U. S. 214; Denver v. New York Trust Co., 229 U. S. 123, 229 U. S. 136; compare In re Tampa Suburban R. Co., 168 U. S. 583, 168 U. S. 588; Ex parte National Enameling & Stamping Co., 201 U. S. 156, 201 U. S. 162; Meccano Ltd. v. John Wanamaker, 253 U. S. 136, 253 U. S. 141.


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1. The a decedent's domicile may impose a succession tax on the transfer of his intangible property by will or inheritance under her laws, even though the evidences of such property be outside of the state at the time of his death, and even though the transfer be subject to taxation in another jurisdiction. Mobilia sequuntur personam. P. 277 U. S. 8.
2. The interest of a deceased partner in a limited partnership governed by c. 408, N.Y.Laws, 1919, among whose assets are buildings and land, is an interest in the surplus of assets with a right to an accounting -- a chose in action. It is intangible property subject to succession tax in the state of his domicile. P. 277 U. S. 10.
3. Bonds and certificates of indebtedness of the United States, payable to bearer and transferable from hand to hand, though having some of the qualities of physical property, are nevertheless intangible property -- choses in action -- subject to succession tax by the the deceased owner's domicile, although physically they have been in another state ever since he acquired them. State Tax on Foreign-Held Bonds, 15 Wall. 300; Frick v. Penna., 268 U. S. 473, and other cases distinguished. P. 277 U. S. 12.
never been within its borders, a savings deposit in another state, and life insurance collected there by the decedent's estate. P. 277 U. S. 18. 5.
5. But banknotes and coin kept by the decedent in a safe deposit box in another state are tangible property, and not subject to transfer tax by the state of his domicile. Id.
6. A testator, resident in Connecticut, died possessed of an interest in a New York partnership, stocks, bonds, and a bank account in New York, and a life insurance policy in a New York company. The will, which devised most of the property to New York charities, was probated in New York, and the estate largely settled there, including the payment of debts and legacies and the fixation and payment of the New York transfer and federal estate taxes. Held that subsequent proceedings in Connecticut by which a tax was imposed on the succession to the intangibles mentioned did not deny full faith and credit to the public acts, records, and proceedings of New York. Id.
7. The full faith and credit clause does not make judgments binding on those who were neither party nor privy to the proceedings in which they were rendered. P. 277 U. S. 19.
105 Conn.192 affirmed in part, reversed in part.
Review of a judgment of the Superior Court of Connecticut levying a succession tax pursuant to the opinion and advice of the Supreme Court of Errors, 105 Conn.192, on the transfer of property under the will of a resident of the state. The executors sued out a writ of error from this Court upon the ground that the taxing statute, as applied, violated the Fourteenth Amendment and the full faith and credit provision of the Constitution. The Connecticut Tax Commission applied for a certiorari to so much of the judgment as denied to the state, because of the Fourteenth Amendment, the right to tax the transfer of certain securities of the United States and banknotes and coin.
certificates of indebtedness of the United States, appraised at $615,121.17; (4) a small savings bank account in New York; (5) a life insurance policy in the Mutual Life Insurance Company of New York payable to the estate, and (6) a small amount of bank bills and coin in a deposit box in New York. All the bonds and certificates of stock at the time of the decedent's death, and for a long time prior thereto, had been physically placed and kept in safe deposit boxes in New York City, and were never in Connecticut. The partnership assets consisted of real estate in New York and also in Connecticut, merchandise, chattels, credits, and other personal property. The testator bequeathed the larger part of his estate to charitable and educational corporations organized under the laws of New York and existing in that state. The executors offered the will and codicils for probate in New York. They were admitted to probate in the Surrogate's Court in the County of New York, and thereafter the executors proceeded in the settlement of the estate in New York. They have paid from the funds of the estate legacies provided in the will and codicils amounting to $299,297.45. They have also paid the debts, the federal estate tax, and the New York transfer or inheritance tax, which amounted to $19,166.04. The transfer report in that court exempted the legacies bequeathed to charitable and educational institutions in accord with New York law. The executors have paid to the trustees named in the will and codicils the amount therein mentioned for the benefit of certain persons named. The executors sold the stocks standing in the name of the decedent and made transfer of the same to the purchaser, and the Mutual Life Insurance Company paid to the executors the proceeds of the policy. The National City Bank of New York paid to the executors the amount of a small deposit account therein to the credit of the decedent at the time of his death.
On January 8, 1925, the executors presented to the Court of Probate for the Stamford District of Connecticut an exemplified copy of the will and codicils from the record of the proceedings in the Surrogate's Court in New York, and on January 15, 1925, that court received the will and codicils, and accepted a bond for the executors and issued to them letters testamentary, made an order limiting the time for the presentation of claims, directed the filing of an inventory of all the property, including choses in action of the estate of the decedent, and appointed appraisers who made and filed the inventory of all the foregoing items of property belonging to the decedent at the time of his death.
On September 1, 1925, the executors filed in the Probate Court for the Stamford District, and with the Tax Commissioner for Connecticut, a statement under oath covering the property of the estate and the claimed deductions therefrom, all this for the purpose of determining the succession tax, if any, due the State of Connecticut. The Tax Commissioner thereafter filed a copy of his computation of the tax with the probate court, to which the executors made objection, but that court, on December 4, 1925, made its order and decree approving the computation of $188,780.58, and directed the executors to pay this amount to the state treasurer.
From this order the plaintiff executors took an appeal to the Superior Court of Fairfield County, and then, by stipulation of the parties, the case was reserved for the advice and direction of the Supreme Court of Errors as to what judgment, decree, or decision should be made or rendered thereon by the Superior Court.
were to be deemed tangible property in New York, and beyond the taxing jurisdiction of the State of Connecticut. There were other questions of taxable jurisdiction over other items of the estate, but we shall consider these two first.
The Supreme Court of Errors held, first, that the interest of the decedent in the partnership was a chose in action and intangible, and the transfer thereof was subject to the tax imposed by the law of the decedent's domicile; second, that the bonds and certificates of the United States were tangible property having a situs in New York, and were not within the taxable jurisdiction of Connecticut, but were to be regarded as in the same class of tangibles as the paintings, works of art, and furniture considered in the case of Frick v. Pennsylvania, 268 U. S. 473. In that case, Pennsylvania, the state of Mr. Frick's domicile, sought to impose a transfer or succession tax on the paintings and other tangible personalty, which had always been in New York City, and it was held that they had an actual situs in New York, and that, under the Fourteenth Amendment, Pennsylvania could impose no transfer or succession tax in respect of them. Applying what it conceived to be the principle of that case to the bonds of the United States and certificates of its indebtedness in this, the Supreme Court of Errors held that their transfer could not be taxed in Connecticut.
The Superior Court, following the advice of the Supreme Court of Errors, entered a judgment giving full effect to it. That is the final judgment in the case, and it is the judgment now to be reviewed.
as the highest court of the state in which a decision in the suit could be had, because there was drawn in question therein the validity of Chapter 190 of the Public Acts of 1923 of Connecticut, on the ground of its being repugnant to the Constitution of the United States, and especially to the Fourteenth Amendment thereof, in that the statute as construed and applied by the Superior Court levied a succession tax on the transfer and succession of property and choses in action of the decedent which were within the jurisdiction of New York and not within the jurisdiction of Connecticut, the decedent's domicile.
In No.190, the State Tax Commissioner applied for a writ of certiorari to the same consolidated judgment, and sought a reversal of that judgment insofar as it denied to the State of Connecticut, because of the Fourteenth Amendment to the federal Constitution, the power and right created by its statute, Chapter 190 of the Public Acts of 1923, to tax the transfer of the United States bonds and certificates of indebtedness and of $287.50 in bank notes and coin, all in a safe deposit box in the City and State of New York, as not within the taxing jurisdiction of Connecticut.
"All property and any interest therein owned by a resident of this state at the time of his decease, and all real estate within this state owned by a nonresident of this state at the time of his decease which shall pass by will or inheritance under the laws of this state, and all gifts of such property by deed, grant, or other conveyance made in contemplation of the death of the grantor or donor, or intended to take effect in possession or enjoyment at or after the death of such grantor or donor, shall be subject to the tax herein prescribed."
"Taxes of this general character are universally deemed to relate not to property eo nomine, but to its passage by will or by descent in cases of its intestacy, as distinguished from taxes imposed on property, real or personal as such, because of its ownership and possession. In other words, the public contribution which death duties exact is predicated on the passing of property as the result of death, as distinct from a tax on property disassociated from its transmission or receipt by will, or as the result of intestacy."
states. The Supreme Court of Errors, in its opinion in this case, says that at the present time the inheritance tax laws of over four-fifths of the states impose a tax similar to that imposed by Connecticut. Frothingham v. Shaw, 175 Mass. 59; In re Estate of Zook, 317 Mo. 986; In re Sherwood's Estate, 122 Wash. 648; Mann v. Carter, 74 N.H. 345; People v. Union Trust Co., 255 Ill. 168; In re Lines' Estate, 155 Pa. 378; In re Estate of Hodges, 170 Cal. 492; Commonwealth v. Williams' Executor, 102 Va. 778. The same principle was recognized by this Court in Carpenter v. Pennsylvania, 17 How. 456; before the adoption of the Fourteenth Amendment, and the principle was reaffirmed thereafter in Orr v. Gilman, 183 U. S. 278; Keeney v. New York, 222 U. S. 525, and Bullen v. Wisconsin, 240 U. S. 625. In the latter case, the question arose as to the power of Wisconsin to impose a tax upon the succession to certain intangible property of one of its citizens, the evidences of which were held by a trust company in Illinois upon a revocable trust at the time of his death, and the power was sustained. Reference to the record in the case shows that the property included shares of stock in Missouri, New Jersey, and Illinois corporations; stock in a national bank organized under the National Banking Act; mortgage bonds and debentures issued by New Jersey, Illinois, Missouri, Utah, and Kansas corporations; promissory notes of residents of Illinois and Minnesota; insurance policies issued by New York, Canadian, and Wisconsin insurance companies, and money on deposit in two Illinois banks. The same principle was affirmed in the Frick case.
evidenced in writing or otherwise and whether the papers evidencing the same are found in the state of the domicile or elsewhere, and is so fully sustained by cases in this and other courts, that it must be treated as settled in this jurisdiction, whether it approve itself to legal philosophic test or not.
Further, this principle is not to be shaken by the inquiry into the question whether the transfer of such intangibles, like specialties, bonds, or promissory notes, is subject to taxation in another jurisdiction. As to that, we need not inquire. It is not the issue in this case. For present purposes, it suffices that intangible personalty has such a situs at the domicile of its owner that its transfer on his death may be taxed there.
This brings us to the question whether the partnership interest of the decedent in William Openhym & Sons was a chose in action, and intangible personalty. The partnership was a limited partnership organized in New York, the last agreement therefor having been executed in December, 1921. The New York partnership law then in force was Chapter 408, Laws of 1919.
Under Section 51 of this law, a partner is a co-owner with his partner of specific partnership property, holding this property as a tenant in partnership. Such tenancy confers certain rights with limitations. A partner has a right equal to that of his partners to possess specific partnership property for partnership purposes, but not otherwise. His right in specific partnership property is not assignable, nor is it subject to attachment or execution upon a personal claim against him; upon his death, the right to the specific property vests not in the partner's personal representative, but in the surviving partner; his right in specific property is not subject to dower, curtesy, or allowance to widows, heirs, or next of kin.
"A partner's interest in the partnership is his share of the profits and surplus and the same is personal property. "
Under Section 73, when any partner dies and the partnership continues, his personal representative may have the value of his interest at the date of dissolution ascertained and receive as an ordinary creditor an amount equal to the value of his interest in the partnership with interest.
"A limited partner's interest in the partnership is personal property."
as personalty for all purposes, effect will be given thereto. In respect to real estate purchased for partnership purposes with partnership funds and used in the prosecution of the partnership business, the English rule of 'out and out' conversion may be regarded as properly applied on the ground of intention even in jurisdictions which have not adopted that rule as applied to partnership real estate acquired under different circumstances and where no specific intention appeared. The investment of partnership funds in lands and chattels for the purpose of a partnership business, the fact that the two species of property are, in most cases of this kind, so commingled that they cannot be separated without impairing the value of each, has been deemed to justify the inference that, under such circumstances, the lands as well as the chattels were intended by the partners to constitute a part of the partnership stock, and that both together should take the character of personalty for all purposes, and Judge Denio, in Collumb v. Read, expressed the opinion that to this extent the English rule of conversion prevailed here. That paramount consideration should be given to the intention of the partners when ascertained is conceded by most of the cases."
It thus clearly appears, that both under the partnership agreement and under the laws of the State of New York, the interest of the partner was the right to receive a sum of money equal to his share of the net value of the partnership after a settlement, and this right to his share is a debt owing to him, a chose in action and an intangible. We concur with the Supreme Court of Errors that as such it was subject to the transfer tax of Connecticut.
decedent at the time of his death, were intangibles which come within the rule already stated.
The argument is that such bonds payable to bearer and transferable from hand to hand have lost their character as choses in action, and have taken on the qualities of physical property, and cases are cited to indicate that they can be made the subject of execution, and constitute a basis for the jurisdiction of the courts and of taxing officers of the state in which the paper upon which the evidence of the debt or obligation is written is found, although their owner lives and dies in another state.
Foreign-Held Bonds case was that the law of Pennsylvania, in requiring the railroad company, which issued the bonds, to pay the state tax on them and deduct it from the interest due the nonresident owners, was as to them a law impairing the obligation of contracts under Murray v. Charleston, 96 U. S. 432. The case therefore is not authority for the proposition for which the Supreme Court of Errors cites it, to-wit: that such bonds are to be completely assimilated to tangible personal property. The other cases cited by the Supreme Court of Errors are New Orleans v. Stempel, 175 U. S. 309, 175 U. S. 321, and like cases which follow it in which a state not that of the domicile of the owner has been held to have the right to tax bonds, promissory notes, and other written evidences of choses in action with which business is there carried on for the owner giving them what is sometimes called "a business situs," but such cases have little or no bearing on the power of the state of a decedent's domicile to tax the transfer of his bonds which we are now considering.
their destruction physically will not destroy the debt which they represent. They are representative, and not the thing itself.
"The question does not seem to us to be very difficult of solution. The creditor, it is conceded, is a permanent resident within the jurisdiction of the state imposing the tax. The debt is property in his hands constituting a portion of his wealth, from which he is under the highest obligation, in common with his fellow-citizens of the same state, to contribute for the support of the government whose protection he enjoys."
"That debt, although a species of intangible property, may, for purposes of taxation, if not for all others, be regarded as situated at the domicile of the creditor. It is nonetheless property because its amount and maturity are set forth in a bond. That bond, wherever actually held or deposited, is only evidence of the debt, and if destroyed, the debt -- the right to demand payment of the money loaned, with the stipulated interest -- remains. Nor is the debt, for the purposes of taxation, affected by the fact that it is secured by mortgage upon real estate situated in Illinois. The mortgage is but a security for the debt, and, as held in State Tax on Foreign-Held Bonds supra, the right of the creditor"
"to proceed against the property mortgaged, upon a given contingency, to enforce by its sale the payment of his demand . . . has no locality independent of the party in whom it resides. It may undoubtedly be taxed by the state when held by a resident therein,"
residence, both he and it are, for the purposes of taxation, within the jurisdiction of the state."
"In this class of cases, the tendency of modern authorities is to apply the maxim mobilia sequuntur personam, and to hold that the property may be taxed at the domicile of the owner as the real situs of the debt, and also, more particularly in the case of mortgages, in the state where the property is retained."
"The arguments in favor of the taxation of intangible property at the domicile of the owner have no application to tangible property. The fact that such property is visible, easily found, and difficult to conceal, and the tax readily collectible, is so cogent an argument for its taxation at its situs that, of late, there is a general consensus of opinion that it is taxable in the state where it is permanently located and employed and where it receives its entire protection, irrespective of the domicile of the owner. We have ourselves held in a number of cases that such property permanently located in a state other than that of its owner is taxable there. Brown v. Houston, 114 U. S. 622; Coe v. Errol, 116 U. S. 517; Pullman's Car Co. v. Pennsylvania, 141 U. S. 18; Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530; Railroad Co.
v. Peniston, 18 Wall. 5; American Refrigerator Transit Co. v. Hall, 174 U. S. 70; Pittsburg Coal Co. v. Bates, 156 U. S. 577; Old Dominion Steamship Co. v. Virginia, 198 U. S. 299."
"There are doubtless cases in the state reports announcing the principle that the ancient maxim of mobilia sequuntur personam still applies to personal property, and that it may be taxed at the domicile of the owner, but, upon examination, they all or nearly all relate to intangible property, such as stocks, bonds, notes, and other choses in action. We are cited to none applying this rule to tangible property, and, after a careful examination, have not been able to find any wherein the question is squarely presented. . . ."
The discussion in the Union Refrigerator case shows what this Court meant in the Frick case in holding that personal property in the form of paintings and furniture having an actual situs in one state could not be subjected to a transfer tax in another state, and emphasizes the inference that it did not apply to anything having as its essence an indebtedness or a chose in action, and could not apply to property in the form of specialties or bonds or other written evidences of indebtedness, whether governmental or otherwise, even though they passed from hand to hand. The analogy between furniture and bonds cannot be complete, because bonds are representative only, and are not the thing represented. They are, at most, choses in action and intangibles.
We think therefore that the Supreme Court of Errors, in extending the rule of the Frick case from tangible personal property, like paintings, furniture, or cattle, to bonds is not warranted, and to that extent we must reverse its conclusion in denying to Connecticut the right to tax the transfer of the bonds and Treasury certificates.
Of course, this reasoning necessarily sustains the different view of that Court that the transfer of certificates of stock in corporations of other states than Connecticut was taxable in the latter as the transfer of choses in action.
Among the other items is a savings bank account in New York, which is certainly a chose in action and was properly treated as subject to the same rule. So too, a life insurance policy payable to the estate was also of that character.
There was a small amount of cash, $287.48, in bank notes and coin in a safe deposit box in New York which the Supreme Court of Errors held not taxable in Connecticut. As to this, the contention on behalf of Connecticut is that it should be treated as attached to the person of the owner and subject to a transfer tax at the domicile. It is argued that it was not like coin or treasure in bulk, but like loose change, so to speak. To money of this amount usually and easily carried on the person, it is said that the doctrine of mobilia sequuntur personam has peculiar application in the historical derivation of the maxim. But we think that money, so definitely fixed and separated in its actual situs from the person of the owner as this was, is tangible property, and cannot be distinguished from the paintings and furniture held in the Frick case to be taxable only in the jurisdiction where they were.
The results thus stated lead to our reversing the judgment of the Superior Court of Connecticut in respect to the tax on the transfer of the bonds and certificates of indebtedness of the United States, and to our affirming the judgment in other respects.
United States. We do not think there is anything in this point. There is nothing in the proceedings in the Connecticut court that is inconsistent with those in the New York court. There is nothing to indicate that the New York court decided, assuming it had jurisdiction to decide, that there was no power in the State of Connecticut to impose a tax on the transfer that was taxed in Connecticut. More than that, the proceedings and judgment in New York were not such as would conclude Connecticut even with the aid of the full faith and credit clause of the Constitution. Connecticut was not a party to those proceedings or to that judgment, nor was it in privity with anyone who was a party.

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