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https://www.courtlistener.com/api/rest/v3/opinions/3428868/ | Dismissed, on authority of Dudley v. State (1928),200 Ind. 398, 161 N.E. 1. *Page 712 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428871/ | Appellant, Beardslee Chandelier Manufacturing Company, instituted this action against appellee, Chester A. Evans (doing business as "Evans *Page 447
Electric Company"), to recover the purchase price for certain electric lighting fixtures alleged to have been sold by appellant to appellee. To appellant's complaint, appellee filed an answer in three paragraphs, the first paragraph being in general denial, the second a plea of payment and the third, in substance, as follows: That the plaintiff is engaged in the business of wholesale selling of lighting equipment, electric light fixtures, etc., to dealers, and that this defendant, under the name and style of the Evans Electric Company is engaged in the business of selling lighting equipment, wiring, etc., and installing the same for customers, in and about the city of Bloomington, Indiana; that, about the times mentioned in plaintiff's complaint, the Kirkwood Amusement Company built and equipped a house for the purpose of a picture show in the city of Bloomington, Indiana, and, in so doing, required for their needs certain lighting fixtures, chandeliers, etc.; that the representative of the plaintiff company coming to Bloomington about that time was directed by this defendant to the Kirkwood Amusement Company, and that the said representative of the plaintiff, by his own solicitation and agreement with the Kirkwood Amusement Company, sold to said Kirkwood Amusement Company a bill of merchandise in the sum of $435.50, being the same merchandise mentioned in plaintiff's complaint, it being understood, by and between the plaintiff and the defendant herein, that this merchandise ordered by the Kirkwood Amusement Company was to be billed and shipped to the Evans Electric Company at the wholesale price, the said Kirkwood Amusement Company paying the retail price; that this defendant had nothing to do with making this sale, or fixing the price at which the goods were sold to the Kirkwood Amusement Company; that thereafter, the said Kirkwood Amusement Company, being in financial difficulties, refused to accept the said *Page 448
goods, the plaintiff attempted, and is now attempting, to collect said bill from this defendant; wherefore, defendant prays judgment for costs. A reply in general denial to appellee's second and third paragraphs of answer closed the issue. The case was submitted to the jury for trial and a verdict was returned in favor of appellee. Appellant filed its motion for a new trial, which was overruled, and judgment was rendered on the verdict, from which judgment appellant prosecutes this appeal. The error assigned and relied upon for reversal is the action of the court in overruling the motion for a new trial, which motion was upon the following grounds: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law.
In determining whether a new trial on the ground of insufficiency of the evidence to sustain the verdict ought to have been granted, this court cannot weigh conflicting 1, 2. evidence, but can consider only the evidence favorable to the successful party, and, where this evidence when considered alone sustains the verdict, the court on appeal will not reverse the judgment on the evidence. Indianapolis Traction,etc., Co. v. Croly (1911), 54 Ind. App. 566, 96 N.E. 973, 98 N.E. 1091.
The evidence favorable to appellee tends to prove the following facts: Appellee was a dealer in electric light equipment, in the city of Bloomington, Indiana; appellant was a manufacturer of electric light equipment and ornamental bronze, located in Chicago, Illinois. In 1925, Mr. Latimer, an employee of appellant, attempted to place its line of fixtures with appellee. He was referred to one Miss Tobin, an employee of appellee, and she informed him that Beardslee fixtures were too expensive to carry in stock, but that he might sell appellant's fixtures through the Evans Electric Company, and she would call on him at any time it looked like a Beardslee *Page 449
job, and thereafter, and prior to October 28, 1927, appellant was notified of prospective customers at different times, and, when so notified, Mr. Latimer would then come to Bloomington for the purpose of an interview with any such prospective customer; after making estimates, etc., if a sale could be made, he filled out an order blank, sent it to appellant, and a copy was left with appellee; the goods ordered would then be sent to appellee, and, when they were installed and collected for, appellee paid appellant, and this had been the method followed in all prior transactions of like nature between the parties.
On October 28, 1927, Mr. Latimer was in Bloomington at Miss Tobin's suggestion to interview a Mr. Wells who was the president of the Kirkwood Amusement Company, which was then 3. constructing a new theater building. He saw Mr. Wells, made an estimate on the fixtures, and made out an order for the goods, which order he sent to appellant and a copy of such order was left with appellee. Neither the Kirkwood Amusement Company nor appellee signed the order that was sent in, and the goods ordered were special in design and character, therefore, not marketable. On defendant's Exhibit 1, introduced in evidence, said exhibit being estimate No. 535 of appellant, made by Mr. Latimer, following an itemized statement and description of fixtures, these words appear: "Ordered by M.D. Wells," and Latimer, the agent of appellant, testified that such words were written thereon by him. In due course of time, the merchandise arrived, appellee paid the freight charges and thereafter notified the Kirkwood Amusement Company of such fact, but the company denied making the order and at all times refused to accept the merchandise. There is also evidence that on one occasion, after the Kirkwood Amusement Company had refused to accept the merchandise, Mr. *Page 450
Latimer made the statement, "Oh, they (appellant) will take them back, they will have to take them back," and the appellant, in one letter addressed to appellee, wrote, "We understand that we will have to go along until the matter of the theater people is straightened out, but, of course, this does not apply to the other invoices that are shown on the enclosed statement," etc., and, in another instance, appellant wrote, "We would appreciate a check, covering the two August invoices, and we also wish you would advise just what progress is being made on the December 27th charge for fixtures for the theater. We think this matter should be pressed. We seem to be holding the bag in the matter, and we are the innocent parties."
There is also evidence that, in prior orders for merchandise secured by Mr. Latimer and billed and shipped to appellee, in each instance, appellant had not been paid until the retail price had been collected from the customer by appellee, and that no different arrangement was made concerning the particular shipment out of which this controversy arises.
We make no summary of the evidence favorable to appellant. It is of sufficient probative force that had the jury reached a different conclusion and returned its verdict for 4. appellant, a judgment on such a verdict would not have been reversed on account of insufficiency of the evidence to sustain the same. The evidence hereinbefore set out is also sufficient to sustain the verdict returned. It is the jury's province to determine the facts and, where different conclusions upon facts proved may be reasonably reached, a judgment rendered upon the verdict will not be disturbed on appeal on the ground that the evidence does not sustain the verdict.
There was no error in overruling appellant's motion for a new trial. Judgment affirmed. *Page 451 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428839/ | This is an action in replevin, brought by appellants against appellee, to gain possession of "twenty imported Oriental rugs of assorted sizes."
Appellants' verified complaint alleged that they, as receivers of the Black Panther Oil and Refining Corporation, were duly and legally appointed, with authority to sue for the recovery and possession of any and all property of the corporation, and that the Black Panther Oil and Refining Corporation is the owner and entitled to the immediate possession of the rugs in question; and that the defendant, appellee, came into possession of the *Page 584
rugs because she was the alleged wife of Max W. Friedell, president of the Black Panther Oil and Refining Corporation; and that while acting in such capacity, Max W. Friedell purchased the rugs in question and paid for them wholly out of the funds of the corporation, and that the rugs have at all times been the property of the corporation by reason of their having been purchased with the funds of the corporation; that the rugs were unlawfully taken and secreted from the corporation and had been unlawfully detained from the corporation and from its receivers.
The issue upon appellee's plea of general denial was tried by the court, which resulted in conclusions of law, that the law of the case is with appellee, and that appellants are not entitled to recover, and that appellee is entitled to recover costs, which were based upon a special finding of facts at the request of appellants. Judgment for appellee, and that appellants take nothing, upon the conclusions of law. Appellants moved for a new trial for the causes: (1) The decision of the court is not sustained by sufficient evidence; and (2) is contrary to law.
The errors assigned and relied on for appeal are: (1) The overruling of appellants' motion for a new trial; and (2 and 3) that the court erred in each of the conclusions of law.
The evidence consists solely of the testimony of two witnesses: Seraph Ashjian, whose testimony came to the court by deposition, and Carrie W. Friedell, the appellee, who testified before the court. The appellee did not present any evidence.
The condensed recital of the evidence as it appears in appellants' brief, which pertains to the errors on appeal, is as follows: Deposition of Seraph Ashjian: My name is Seraph Ashjian and I am engaged in the rug business . . . in the city of Indianapolis, and was so engaged *Page 585
on January 18, 1921. Prior to this date, I had business dealings with Mr. M.W. Friedell and sold him some Oriental rugs; how many I do not remember, but quite a few. I personally made delivery of these rugs to the Friedell house at Marion, Indiana, and was there personally to see the arrangement of it. I saw Mr. and Mrs. Friedell, who were man and wife, jointly, either at my place of business or at their home, and took my orders from both of them. I understood Mr. and Mrs. Friedell to say that that was their home. The paper marked Exhibit 1, is a check which came to me through the mail in payment of the Friedell rugs, and it was the final payment for the rugs; he made two payments, I think the entire account was around $10,000 and was for Oriental rugs which I personally placed in this house.
Plaintiff's Exhibit 1, being the check in final payment of the Oriental rugs in question is as follows:
"No. 119 FRANKLIN NATIONAL BANK "3-44 Pltfs. Ex. 1 "N.E.M. Notary 3-10-25
"Philadelphia, Jan. 18th, 1921. No. 110
"Pay to the Order of Ashjian Bros. of 210-212 "North Meridian St., $5,017.00. Five Thousand "and Seventeen and No-100 Dollars.
"Black Panther Oil and Ref. Corp. "By M.W. Friedell, Pres.
"Payable in current "bankable funds. "(For cash)"
Carrie W. Friedell, the appellee, testified at the trial that: "I am the defendant in this action, and was at my home in the city of Marion, when Ashjian delivered the Persian rugs, and have been living there ever since that time. I was present when a writ of replevin was served upon me by the sheriff. I was not there when the rugs were taken away by the sheriff, but was there when *Page 586
the rugs were returned. My signature is attached to plaintiff's Exhibit B, the delivery bond in replevin. It describes the rugs as one 12 x 15 Mulberry Oriental rug, one 9 x 12 Blue Oriental rug, four small rugs, all of the value of $1,150, and this correctly describes the rugs in question. These rugs were part of the rugs purchased of Ashjian. I have disposed of some of the rugs purchased of Ashjian, two large rugs and some small ones. I could not say whether the small ones I disposed of were from Ashjian or not; the large ones were from Ashjian."
Referring to the bill of exceptions of the evidence, witness Ashjian in reply to the question, "What was the nature of the business?" Answer: "Sold him (M.W. Friedell) some floor covering. Oriental." And further, questions by appellant to witness Ashjian were an admission that the rugs were sold to "him," M.W. Friedell. Ashjian made three or four trips to Marion to be there on the ground, so as to give the right sizes of rugs.
By the bill of exceptions, Mrs. Friedell, sole defendant, testified that she was present at their home in Marion when Ashjian delivered the rugs, and that she had been living there ever since that time. Appellant asked her the question: "These were part of the rugs you purchased of this man?" Answer: "Yes sir"; question: "The rugs described in this delivery bond were part of the rugs you purchased from this man Ashjian?" Answer, "Yes sir."
The court found the facts to be: (1) That plaintiffs were the duly appointed, qualified and acting receivers of the Black Panther Oil and Refining Corporation; (2) that such receivers were duly authorized to prosecute any and all actions on behalf of such insolvent in their own names; (3) that sometime during the month of June or July, 1920, one Max W. Friedell, who was then president of the Black Panther Oil and Refining Corporation, *Page 587
purchased of Ashjian Brothers Rug Company of Indianapolis, Indiana, certain Oriental rugs and caused same to be delivered to a residence property then occupied by him at No. 709 West Fourth street in the city of Marion, Indiana; (4) that the defendant herein, Carrie W. Friedell, is the wife of the said Max W. Friedell and was at the time of the delivery of said rugs and is now occupying the said residence at 709 West Fourth street in the city of Marion, Indiana, and is now and was at the time of filing this action, in possession of certain of said rugs, to wit: The rugs described in defendant's delivery bond filed in this action; (5) that said rugs so described in defendant's delivery bond filed in this action were some of the rugs so purchased by the said Max W. Friedell of Ashjian Brothers Rug Company as aforesaid; (6) that the total purchase price of all of the Oriental rugs so purchased by the said Max W. Friedell of Ashjian Rug Company was about Ten Thousand ($10,000) Dollars.
Conclusions of law: (1) That the law is with the defendant in this action and the plaintiffs are not entitled to recover; (2) that the defendant is entitled to recover costs.
Based upon the second assignment of error, that "The court erred in its conclusion of law No. 1 upon a special finding of facts," appellants assert the sole proposition, "it is 1. elementary that where there is no evidence to support the findings of the court in this case that the case should be reversed and the court ordered to restate its conclusions of law and render judgment for appellants." In answer, we say that it is elementary that an assignment of error based upon an exception to the conclusion of law does not question the special finding of facts, but for the purpose of the exception and the error declared thereon, admits the special finding of facts to be full, complete, and true. Appellants' proposition of law might apply under a motion for *Page 588
a new trial for the reason that the special findings are contrary to law. Livingston v. Livingston (1921), 190 Ind. 223, 130 N.E. 122; Barney v. Yazoo, etc., Land Co. (1913),179 Ind. 337, 342, 101 N.E. 96; Kline v. Dowling (1911), 176 Ind. 521, 524, 96 N.E. 579; Conner v. Andrews Land, etc., Co. (1904),162 Ind. 338, 349, 70 N.E. 376; Blair v. Curry (1897),150 Ind. 99, 101, 46 N.E. 672, 49 N.E. 908; McCrory v. Little,Gdn. (1893), 136 Ind. 86, 98, 35 N.E. 836; Kinsey v. State,ex rel. (1884), 98 Ind. 351; Maxwell v. Vaught (1884),96 Ind. 136; Gregory v. VanVoorst, Aud. (1882), 85 Ind. 108;Robinson v. Snyder (1881), 74 Ind. 110, 113; Lockwood v.Dills, Admr. (1881), 74 Ind. 56; Cruzan v. Smith (1872),41 Ind. 288, 293; Williams v. New Albany Salem R. Co. (1854),5 Ind. 111, 113.
No question was presented by the proposition under the second assignment of error.
Appellants' proposition is stated thus upon the third assignment of error: "That the court erred in its conclusion of law No. 2 upon the special finding of facts, it is appellants' contention that the undisputed evidence in this case entitles appellants to a judgment in their favor and therefore the court erred in its second conclusion of law."
It is apparent that an attack upon the correctness of the special finding of facts is sought to be founded upon error pleaded upon the conclusion of law. This is not the practice, as held by the authorities last cited. Appellants made no other proposition of law pertaining to the third assignment of error, therefore the question of law is not presented for review.
Appellants attack the special findings of the court because the decision of the court, as exemplified by the special findings, is not sustained by sufficient evidence and is contrary to law, in the motion for a new trial, and make the proposition that the court failed to find certain *Page 589
pertinent and material facts which were proved, to wit:
(1) That "the undisputed evidence in this case discloses that one Max W. Friedell was president of the Black Panther Oil
Refining Corporation and used $5017.00 of the moneys of the Black Panther Oil Refining Corporation with which to purchase the Oriental rugs in question."
(2) That "the undisputed evidence also disclosed that Max W. Friedell is making no claim to the rugs in question, and the only claimant is the defendant Carrie W. Friedell."
(3) That "this defendant admits that she furnished no part of the consideration for the purchase of the rugs and is purely a volunteer, nor does she deny that the purchase money for said rugs was furnished by the Black Panther Oil Refining Corporation."
Concerning the first of appellants' asserted proved facts not found by the court: there was no evidence that Max W. Friedell was president of the corporation. Max W. Friedell is not a 2. party to this action. He was not a witness in this case. The only evidence in relation to the check was that contained in the deposition of witness Seraph Ashjian. His evidence in no way connects Max W. Friedell with the check in question, except that the name M.W. Friedell appeared on the check as set out in the facts given in this opinion. The witness testified that the check came to him through the mail from out west, without connecting in any way Max W. Friedell with it as the sender or as its maker. The amount of the check was insufficient, according to the evidence, to buy the rugs that were purchased by Max W. Friedell. Neither the facts as specially found nor the evidence as presented by appellants' bill of exceptions disclose that the check in question was ever presented for payment, or that it was paid, or that any money or funds of appellants insolvent were *Page 590
paid to vendor Ashjian or to any other person for the rugs. The evidence of the language composition of the check and of its receipt by Ashjian is insufficient to support an inference that the funds of the insolvent paid the check. Two other payments had been made on the account of the purchase of the rugs prior to the receipt by the vendor of the purported check in question.
Concerning the second of appellants' asserted proved facts not found by the court: the fact that Max W. Friedell makes no claim to the rugs in question is by inference only, founded upon 3. the fact, as shown by the record, that he was not made a party to this action, and therefore was not present to make a claim. It was not incumbent upon him to claim the rugs. There is nothing in the inference, if it were necessary, to aid in giving the relief sought by the prayer of the complaint, which is that "Plaintiffs ask judgment that they are entitled to the possession of said property and $1,000 damages for its detention."
Concerning the third of appellants' asserted proved facts not found by the court: we compare this third contention with appellants' recital of the evidence and say that no 4. statement is made in the recital of the evidence upon which to base such contention. Neither she nor Ashjian said that she furnished no part of the consideration and that she is purely a volunteer. By the third contention it is further asserted that the defendant did not deny that the purchase money for the rugs was furnished by the corporation. It is not shown that she had the opportunity to deny that all the purchase money was furnished by the corporation, but it is perfectly plain to be seen from the evidence disclosed by appellants' brief that the corporation did not furnish all of the purchase money for the rugs.
It seems by the above contention that the plaintiff *Page 591
in this action is seeking to recover upon a failure by the defendant to establish the legal title to the rugs in 5. herself. In replevin, the right of possession must be affirmatively shown to exist in favor of the plaintiff, and the plaintiff's right to recover cannot be predicated upon the failure of defendant affirmatively to establish in her own favor a superior right. A plaintiff in replevin must recover on the strength of his own title, and not the weakness or even the failure of title in the defendant. Simcoke v. Frederick
(1848), 1 Ind. 54; Davis v. Warfield (1872), 38 Ind. 461;Johannsen v. Miller (1895), 45 Neb. 53, 63 N.W. 141.
Appellants assert upon these facts not found by the court, a foundation in equity for a constructive trust. If it were necessary here to establish a constructive trust, which 6, 7. it is not necessary to decide, the facts thus mentioned and which it is alleged ought to have been found as facts specially by the court, are not full, clear, and convincing, and are insufficient to lay a foundation to establish a constructive trust. To establish a constructive trust by parol, the evidence must be convincing, and to be convincing, it must be full and clear. It must be such as to go beyond the ordinary rule of preponderance of evidence. The evidence in this case, outside the special findings of facts, falls far short of this rule.Tillar v. Henry (1905), 75 Ark. 446, 88 S.W. 573; Crosby
v. Henry (1905), 76 Ark. 615, 88 S.W. 949.
The court did not err by its action overruling appellants' motion for a new trial.
Judgment affirmed.
Gemmill, J., not participating. *Page 592 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428841/ | The appellant, on behalf of the State Highway Commission, filed this cause against the appellees for the appropriation of a parcel of real estate for the construction of the highway known as the Circum-Urban *Page 321
Highway, which extends from U.S. Highway 52 to Shadeland Avenue, Marion County, Indiana. This improvement involved the widening of existing highways.
The appellant has joined Bankers Trust Company as an appellee herein. The record discloses that this cause was dismissed as to said Company in the trial court; this appeal is therefore, dismissed as to it.
The remaining appellees, Albert J. Stabb and Lula P. Hooper Stabb, at all times mentioned herein, were husband and wife. The involved real estate was used by them as their residence and upon which they also operated a retail store and gasoline station.
Appraisers, under the order of appropriation, were appointed who filed their report fixing damages in the sum of $12,500. Appellees filed their exceptions to this appraisement and were awarded a jury trial which resulted in a verdict in favor of the appellees in the sum of $18,000 upon which judgment was rendered. It is from this judgment this appeal was taken.
Each of the rulings on the giving or refusal of certain instructions and the admission of certain evidence, as hereinafter set out, was specified as a reason for asking for a new trial.
It was not error, as claimed by the appellant, to permit the appellee, Lula P. Hooper Stabb, to testify as to how many gallons of gasoline a year had been sold on the involved premises 1. and as to the annual volume of business done at the store located thereon. This evidence was properly admitted to prove that the property appropriated was suitable for business purposes; it was also competent for its bearing on damages due to loss of business.
Appellant next urges that it was improper to permit the witness, Frank E. Gates, to answer a question *Page 322
as to a certain provision in an ordinance relating to a 2. building line. No error could possibly have been committed by this ruling as the witness answered that he did not know.
Appellant has presented no question as to the admission in evidence of a certain bank check as part of the cross examination of appellant's witness, George T. Wheldon, as appellant's objection thereto was not sufficiently specific; furthermore, if it was error to admit this check, the same was harmless.
It was not error for the Court to refuse the appellant's tendered instructions No. 7, 8, 9, 10 and 11. Each of these instructions requested the Court to instruct the jury that 3. the benefits conferred by the improvement, if any, to the residue of the lands of the owner, could be considered as determining the question of compensatory damages, all as provided by § 3-1706, Burns' 1946 Replacement. The refusal to give each of these instructions was proper as there was a total lack of evidence as to what, if any, benefits from the improvements were conferred upon any lands herein involved which were not condemned.
The appellant complains of the Court's refusal to give its tendered instruction No. 13. This offered instruction was to the effect that the appellees were not entitled to recover for any loss of business or profits; and that if any evidence had been introduced tending to prove such loss of business or profits, the jury should disregard the same in rendering its verdict.
As heretofore pointed out, the appellees introduced evidence as to how many gallons of gasoline a year had been sold on the involved premises and the annual volume of business done at the store located thereon. Appellees also produced evidence that by reason of the *Page 323
loss of their business they had suffered damages in the sum of not less than $3,000.
Section 3-1706, supra, sets out the measure of damages in an action of this kind. The first three clauses of this section provide the measure of damages to be followed shall be the fair market value of the land appropriated, the fair market value of the improvements on the land taken, and, lastly, the damages, if any, to the residue of the land caused by the taking out of the part sought to be appropriated.
The fourth clause of said section so defining the measure of damages is in words as follows:
"Fourth. Such other damages, if any, as will result to any persons or corporations from the construction of the improvements in the manner proposed by the plaintiff."
It is generally held that no damages should be allowed in a case of this kind for the loss of business, good will or profits from the business where only the land and not the business 4. is being taken unless the statute under which the proceedings is had provides for such an element of damage. See 18 Am. Jur., Eminent Domain §§ 259, 261; 29 C.J.S. EminentDomain § 162; Mitchell v. United States (1924),267 U.S. 341, 69 L.ed. 644, 45 S. Ct. 293; 2 Lewis, Eminent Domain (3rd ed.) § 727; 41 A.L.R. 1026 Note.
In order to determine, therefore, whether it was error to refuse this tendered instruction it is necessary to interpret the meaning of the fourth clause above set out. Appellant 5, 6. argues the clause is not applicable to the appellees. With this contention we cannot agree. When our legislature used the words "any person or corporation" (our italics) they were using the broadest language possible and intended to *Page 324
include all persons suffering consequential damages. Nor can we agree with the appellant's further contention that this clause limits compensation to the value of the property taken and the improvements thereon, and the damages to the residue. Clauses one, two and three of this section cover all the damages sustained by the property taken and the residue; therefore, clause four must refer to damages other than damages to the property involved. It includes any direct consequential damages suffered by any person due to the construction of the improvement.
Our interpretation of clause four that damage and compensation are not limited to the fair market value of the property taken, and the improvements thereon, and the damages to the residue, is further borne out by the last provisions of said § 3-1706,supra, which provides:
"For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the service of the notice provided in section three (§ 3-1703), and its actual value, at that date, shall be the measure of compensation for all property to be actually taken and the basis of damages to property not actually taken but injuriously affected, except as to the damages stated in the fourth clause hereof." (Our italics)
In examining the statutes of our sister states which provide for items of damage other than damage for the real estate taken and to the residue thereof, we find that some are special statutes expressly providing for compensation for injury to business, and others, like ours, for damages for any and all detriment which may be directly occasioned by the taking; and that in most jurisdictions these particular provisions have been liberally interpreted. See Mitchell v. United States, *Page 325 supra, and City of Oakland v. Pacific Coast Lumber MillCo. (1915), 171 Cal. 392, 153 P. 705, for a discussion of these statutes.
In so interpreting this fourth clause we are aware of the fact that this Court has decided that evidence of profits derived from a business conducted by the owner on the land sought to be 7. appropriated cannot be considered in ascertaining its value, and that this decision was made at a time when our statutes, in providing for the measure of damages in a suit of this kind, contained exactly the same provision as is provided in said fourth clause of said § 3-1706. Illinois Central R. Co. v.Howard (1925), 196 Ind. 323, 147 N.E. 142. This clause was not considered or mentioned in that opinion, and insofar as that opinion may indicate that evidence of compensatory damages for any and all detriment which may be directly occasioned by the taking is not competent for any purpose, the same is disapproved. This tendered instruction was properly refused.
Appellant has failed to present any question as to the refusal of the Court to give its tendered instruction No. 15. This instruction purports to deal with a certain ordinance and 8. its effect on this case. Appellant has not seen fit to set out in its brief sufficient portions of this ordinance or the substance of same as would be necessary for a correct determination of the correctness of this tendered instruction. This was the duty of the appellant. This Court cannot be expected to search the record to ascertain what this ordinance covers and what, if any, bearing it has on this case.
Appellant's tendered instruction No. 16 was to the effect that in an action involving damages to property *Page 326
it is the duty of the party claiming damages to mitigate or 9. lessen damages by reasonable action rather than to increase the same; and that if the appellees, with knowledge of appellant's intent to acquire the property in question for the construction of a highway, did or performed acts that would tend to increase the amount of the damages, then any damages flowing from such acts could not be recovered. Appellant insists this instruction should have been given for the reason that the evidence discloses that the retail store was closed from 1942 until the spring of 1946, and that it was reopened only after appellees had been approached by the appellant with reference to the procuring of the property on which the store was located for the construction of the highway. All this evidence discloses is that appellees had knowledge of the fact that a public improvement was proposed which would result in the taking of their land. Such knowledge did not deprive the appellees of the right in good faith to make the best use of their property. 18 Am. Jur., Eminent Domain § 256. There is not the slightest evidence of bad faith on the part of the appellees in so reopening their store. This proposed instruction had no application to the facts in this case and was properly refused.
Appellant questions appellees' tendered instruction No. 2 which was given by the Court. This instruction related to the measure of damages, and reads as follows:
"You are further instructed that under the law of the State of Indiana the damages suffered by the defendants is to be determined —
"1. By ascertaining the fair market value of each parcel of property appropriated by the State and the value of the estate of the interest of the defendants or either of them therein. *Page 327
"2. The fair market value of all improvements pertaining to the real estate so appropriated on the portion of the real estate so condemned by the State.
"3. The damages, if any, to the residue of the land of the owner caused by taking out the part condemned.
"4. Such other damages, if any, as have resulted to the defendants or either of them from the condemnation and appropriation of such real estate and the construction of the improvements in the manner proposed by the State in this case."
Appellant's objection to this instruction is as to clause four thereof, for the reason that clauses one, two and three set forth all the elements of damages to which the defendants would 10. be entitled. For the reasons heretofore stated in approving the trial court's refusal of appellant's tendered instruction No. 13, the objection to this instruction was not well taken. If said instruction was defective for any other reason or reasons, the same was not set out in appellant's objection thereto.
Appellant objects to appellees' tendered instruction No. 7 on the subject of interest. This instruction was given and informed the jury that it must allow interest on any damages awarded from the date the State took possession of the condemned property. This instruction was a correct statement of the law. Schnull v.Indianapolis, etc., R. Co. (1921), 190 Ind. 572, 131 N.E. 51;State ex rel. McNutt v. Orcutt (1936), 211 Ind. 523,199 N.E. 595, 7 N.E.2d 779; State v. Coridan (1944), 222 Ind. 545,54 N.E.2d 649; State v. Ahaus (1945), 223 Ind. 629,63 N.E.2d 199.
Appellant insists, however, that since the above cases were decided, our legislature has adopted an act *Page 328
which clearly determines that interest cannot be collected 11. in this case. Acts 1947, ch. 105, p. 300. Article 1, § 21 of our State Constitution prevents the taking of private property for public use without just compensation. One of the elements of just compensation is the allowance of interest. This being an essential element it cannot be excluded even by legislative enactment. Schnull v. Indianapolis, etc., R. Co.,supra. We hold, therefore, that the act of our legislature, last above cited, does not exclude interest on damages in eminent domain proceedings. To hold that this statute does include a matter such as here involved, it would be necessary to declare said act unconstitutional.
The next ground for a new trial is that there was error in the assessment of the recovery in that the amount of recovery was too large for the reason that it is based on improper items of damages. This contention is without merit as we have heretofore determined in this opinion.
Lastly, it is contended that the verdict is not sustained by sufficient evidence and is contrary to law. Whether this verdict is sustained by the evidence was not briefed by the appellant. No error of law occurring at the trial of this cause which improperly affected the verdict herein has been called to our attention. The verdict is not contrary to law.
Judgment Affirmed.
Emmert, C.J. not participating.
NOTE. — Reported in 79 N.E.2d 392. *Page 329 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428842/ | On September 29, 1927, the same being the 22nd judicial day of the September term, 1927, of the Henry Circuit Court, one Clarence Belt (hereinafter called "the defendant"), upon his arraignment, plead guilty to the charge of driving an automobile while under the influence of liquor. The court did not pronounce sentence immediately, but entered an order which reads as follows: "And now said defendant is ordered released upon recognizance to be approved by the sheriff of Henry county, to appear Monday, October 10th, 1927." Thereupon, a recognizance bond was executed by the defendant and appellants as sureties thereon. On October 1, 1927, the sheriff filed with the clerk of the court the defendant's recognizance bond taken and approved by the sheriff, which bond reads as follows omitting the caption:
"We, Clarence Belt as principal, and John A. Knecht and Chester M. DeWitt as sureties, owe the State of Indiana Two Thousand Dollars to be levied of our property.
"THE CONDITION OF THE ABOVE RECOGNIZANCE IS:
"That if the said Clarence Belt shall personally be before the judge of the Henry Circuit Court, on the first *Page 48
day of the next term thereof, and at each succeeding term of such court thereafter, to answer to a charge of driving automobile while intoxicated, and abide the order of the court until said cause is determined, and not depart without leave, then this recognizance to be void, else to remain in full force.
"Clarence C.W. Belt "John A. Knecht "Chester M. DeWitt."
The defendant was thereupon released from custody of the sheriff and the bond filed with the clerk. On October 22, 1927, and at the September term of the court, the court assumed to forfeit the bond. The sureties were defaulted, the bond forfeited and the clerk ordered to issue notice thereof accordingly. The clerk thereupon issued and mailed a notice to each of the appellants, addressing John A. Knecht at Rushville, Indiana, and Chester M. DeWitt at New Castle, Indiana. On November 2, 1927, the prosecuting attorney filed proof of the mailing of notice to each appellant, which proof is in the words as follow, to wit: "Taylor I. Morris, being duly sworn, upon his oath says that he is deputy clerk of the Henry Circuit Court, residing at New Castle, Indiana; that on the 22nd day of October, 1927, he deposited in the United States mail at New Castle, Indiana, notices of which the attached is a full, true, complete and correct copy, addressed to Chester H. DeWitt, New Castle, Indiana, and John A. Knecht at Rushville, Indiana, and that he placed the proper and necessary postage thereon, and further affiant saith not." The notice directed to appellant reads as follows:
"To: John A. Knecht, Rushville, Indiana, and Chester M. DeWitt, New Castle, Indiana:
"You and each of you are hereby notified that, on the 22nd day of October, 1927, in a certain action entitled *Page 49 State of Indiana vs. Clarence W. Belt, Number 4917, pending in the Henry Circuit Court of Henry County, Indiana, in which you and each of you entered into a recognizance bond as sureties for the appearance of the said defendant in the Henry Circuit Court on the 10th day of October, 1927; that, said defendant then and there failing to appear and having since failed and refused to appear; upon the said 22nd day of October, 1927, said bond was ordered by the court to be forfeited, and that if you and each of you do not produce said defendant within ten days after the mailing of this notice and pay all costs and satisfy the court that the defendant's absence was not with the consent or connivance of you and each of you, that the court shall enter judgment at once against you and each of you for the amount of the bond herein.
"Signed Clark F. Reece "Clerk of Henry Circuit Court."
Thereupon, the court, without pleadings and without opportunity for a legal hearing, found that the appellants had been duly notified of the forfeiture of the bond by the mailing of the notices upon October 22, 1927, and that they had failed to produce the body of the defendant in open court in discharge of the recognizance, and that judgment should be rendered against them upon said recognizance in the sum of $2,000, which was accordingly done.
The appellants separately and severally objected and excepted to the finding and judgment of the court, prayed an appeal, and, in this court, jointly and severally assign the following errors: (1) The trial court had no jurisdiction to pronounce the judgment appealed from; (2) the judgment of the trial court is contrary to law; (3) the decision of the trial court is not sustained by *Page 50
sufficient evidence; (4) the decision of the trial court is contrary to law.
This is a proceeding purporting to be taken under § 2 of an act approved March 9, 1927 (Acts 1927 p. 411), which expressly provides for an appeal to this court as in other civil cases without moving for a new trial, and further providing that, on such appeal, the evidence, if any, shall be reviewed.
In the absence of this statute, or the inability to comply with its provisions, the enforcement of a forfeited recognizance would be a civil action and would be controlled by civil 1. procedure. There is no pretense in this case to follow the practice in civil actions. Unless there has been a compliance with its provisions, the attempted forfeiture of such bond, and the judgment based thereon without pleading, summons, or trial, are erroneous. §§ 255, 332, 417 Burns 1926; State v.Robb, Exr. (1861), 16 Ind. 413; Acts 1927 p. 411.
The only proof of the giving of notices of default is to be found in the proof of mailing such notices as evidenced by the affidavit of the deputy clerk. It will be observed that the 2. affidavit does not state that the notices were addressed to the sureties at their last or usual residence, or to their known post-office address. There is no evidence from which it may be inferred that the notices ever reached the appellants.
There is no evidence that the amount of the bond was fixed by order of the court, or by it in open session or by indorsement on the warrant, or that the sheriff had authority to name it. 3. On the contrary, the evidence discloses that the recognizance bond was taken and approved by the sheriff of Henry county. It has been held that fixing the amount of the bond is a judicial act and cannot be delegated. Gregory v. State,ex rel. (1884), 94 Ind. 384, 48 Am. Rep. 162; State v.Winninger (1881), 81 Ind. 51; McGuire v. State (1889), *Page 51 124 Ind. 536, 23 N.E. 85, 25 N.E. 11. See § 2166 Burns 1926.
If we were to hold, in face of the defects above mentioned, that the bond was valid, we would then be confronted with the proposition that the bond was conditioned upon the 4. appearance of the defendant, Clarence Belt, at the next term of the Henry Circuit Court; that the bond was executed on September 29, 1927, the same being the 22nd judicial day of the September term, 1927, of said court; that the next term of court would begin in January, 1928. It, therefore, necessarily follows that a default could not occur on October 22, 1927, which was still in the September term, at which time the court assumed to order a forfeiture. Hesselgrave v. State (1902),63 Neb. 807, 89 N.W. 295; Wheeler v. State (1857), 21 Ga. 153;Parlan v. State (1862), 19 Ind. 455. See Joelson v. UnitedStates (1923), 287 Fed. 106; State v. Cerscirnello (1920),105 Neb. 314, 180 N.W. 591; Roberts v. State (1924),32 Ga. App. 339, 123 S.E. 151; Allen v. White (1824), 1 Ala. 289.
Two remedies have been recognized for the enforcement of the forfeited recognizance. The first was by scire facias directed to the sureties requiring them to show cause why judgment should not be entered upon the debt acknowledged in the recognizance, and having an execution issue on the judgment; the other remedy was by an action in the nature of a debt. (Tanquary v. People
[1914], 25 Colo. App. 531, 139 P. 1118.) The remedy adopted by this state, down to the enactment of the acts of 1927, was by an action upon the forfeited recognizance, and a trial scirefacias without an issue was erroneous. Shiel v. Ferriter
(1845), 7 Blackf. (Ind.) 574.
We conclude that the evidence fails to show a compliance with the provision of the acts of 1927 (Acts 1927 *Page 52
p. 411) in regard to the forfeiture of a recognizance bond; 5. that the amount of the bond was not fixed by the court as by the law required, and the bond was prematurely forfeited. The conclusions, collectively considered, require a reversal of the judgment.
Judgment reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428844/ | Action by appellee against appellant to recover for services as agent. Complaint in two paragraphs; first based on an express contract of employment; second on quantum meruit. Answer in two paragraphs; denial and payment. Reply in denial to plea of payment. Trial resulted in a finding and judgment for $1,185.03.
On appeal, the only question presented is that the amount of recovery is too large.
It is averred in the complaint, and there is evidence to prove, that from March 1, 1924, to December 18, 1926, appellee was employed by appellant as solicitor of automobile insurance, during which time appellant was attorney-in-fact of the Old Trails Automobile Insurance Association, a reciprocal under the laws of this state, appellee's father being the president, and a part of the time general manager, of appellant company; that, under appellee's contract, he was to receive a certain bonus in addition to a stipulated commission; that, by a recognized practice of the company, an agent was authorized to appoint subagents, for whose work the appointing agent would receive credit; that the rating for bonus purposes was determined on coverages rather than policies; that is, a policy insuring against fire, theft, collision, property damage and public liability would be considered five coverages, and not a single policy; that, for *Page 448
all coverages written by an agent and his subagents in excess of 500 during one year, the agent received a bonus of twenty-five cents each; for all over 1,000, fifty cents each; for all over 1,500, seventy-five cents each; and for all over 2,000, $1 each; that from March 1, 1926, until appellee left the employ of appellant, he and his subagents of whom no question is made wrote 1,187 coverages; that Rozelle, one of appellee's subagents who had been working as such in Indianapolis, went to the city of Anderson, February 4, 1926, where he worked for the remainder of the year, in which city, from February 4, 1926, to August 1, 1926, he wrote 325 coverages.
As to the foregoing facts there was no controversy on the trial, and there is no controversy on appeal. The facts in dispute are, first, that appellee was employed for the fiscal year, and having terminated the employment before the end of the year, he was entitled to no bonus; and, second, that Rozelle was not appellee's subagent after he went to Anderson, and appellee was not entitled to any credit for the 325 coverages written by Rozelle in that city.
As to the first question, the evidence to sustain appellant is the testimony of certain officers of the company to the effect that an agent who left the service of the company during 1. the fiscal year was, under his contract of service, not to receive any bonus. On the other hand, the decision of the court is supported by the testimony of appellee and his father, who at the time was president and general manager of appellant company, that, when appellee was employed, the bonus provision was included in his contract, nothing being said to him about his not being entitled to the bonus except when service for a fiscal year was completed. On this issue, there certainly is evidence to sustain the court's decision.
As to the second question, the evidence shows that in *Page 449
September, 1925, appellee appointed Rozelle as his subagent, in which capacity he worked in the city of Indianapolis till 2. February 4, 1926, at which time he went to the city of Anderson, where he continued to solicit insurance for appellant company. Between Rozelle and appellee there was an agreement that the subagency should continue until August 1, 1926, to the end that, in fixing the amount of his bonus, appellee would have the benefit of all coverages written by Rozelle up to that time, of which contract the company had notice. With knowledge of the fact that appellee and Rozelle had agreed that the subagency should continue until August 1, 1926, the company listed Rozelle as "district manager" at Anderson, and furnished him advertising matter carrying such title. At a meeting of the board of directors of the company in March, 1926, the question as to Rozelle's continuing as subagent till August 1, came up and was discussed, but no action was taken in reference to the matter. On the trial, H.M. Glossbrenner, who it appears from the evidence had general charge of all business of appellant during all of the time from February 4, 1926 to August 1, 1926, testified that during all of that time Rozelle was subagent of appellee.
Appellant calls attention to the rule of the law of agency, that the agent must not put himself into such relations that his interests become antagonistic to those of his principal, 3. and argues that the agreement between Rozelle and appellee, and approved by the general manager of the company, by which agreement the subagency of Rozelle was to continue till August 1, 1926, was antagonistic to the interests of appellant, was fraudulent, citing Hammond v. Bookwalter (1895),12 Ind. App. 177, 39 N.E. 872; Bedford Coal, etc., Co. v. Parke CountyCoal Co. (1909), 44 Ind. App. 390, *Page 450
89 N.E. 412. There would be merit in this contention if the facts as shown by the evidence were sufficient to bring the case within the rule stated. The evidence shows that very soon after appellee and Rozelle had agreed between themselves to continue the relation of agent and subagent, the matter was brought up at a meeting of the board of directors of appellant company, the general manager being present, and, after a full discussion, no action was taken, and the contract as agreed upon permitted to stand. This amounted to a ratification of the contract by the board of directors.
It follows that the subagency of Rozelle continued after he took up his work at Anderson, and until August 1, 1926, and that the recovery is not too large.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428845/ | Chapter 48, of the acts of 1925, page 144, is an act concerning intoxicating liquors, approved March 4, 1925.
The second section of that act provides that "the words `liquor' and `intoxicating liquor' wherever used in this act shall be construed to mean all malt, vinous, or spirituous liquors, containing as much as one-half of one per cent of alcohol by volume, and every other drink, mixture, or preparation of like alcoholic content, whether patented or not, reasonably likely or intended to be used as a beverage; and all other intoxicating beverages, drinks or preparations whether alcoholic or not, intended for beverage purposes."
The seventh section provides that: "Any person who shall transport intoxicating liquor in or upon any wagon, buggy, automobile, water or air craft, or in any other vehicle of any kind, shall be guilty of a felony and, upon conviction, shall be imprisoned in the State Prison not less than one year nor more than two years, to which may be added a fine in any sum not exceeding one thousand dollars ($1,000): Provided, however,
that nothing herein *Page 467
contained shall affect the transportation of intoxicating liquor for such purposes or uses as are not unlawful," etc.
The indictment in this case charges that, on or about the 30th day of April, 1926, at and in the county of Marion, State of Indiana, this appellant and another did then and there unlawfully, knowingly, and feloniously transport intoxicating liquor in an automobile within the county of Marion and state aforesaid.
To this indictment, the appellant waived arraignment and entered a plea of not guilty. The case was tried by the court without a jury, and the court found the appellant guilty as charged and that his punishment be assessed in the sum of $100 and costs and imprisonment in the Indiana State Prison for a term of not less than one year nor more than two years. Appellant moved for a new trial and alleged as reasons: (1) That the finding of the court is not sustained by sufficient evidence; and (2) that the finding of the court is contrary to law. Other reasons were assigned, but they are expressly waived in appellant's brief. Judgment was rendered on the finding of the court, and from such judgment, this appeal is taken.
The appellant contends that there is no evidence tending in any manner to show that appellant transported anything but alcohol and that the State has wholly failed to show that the alcohol transported was such a liquid as could be used as a beverage, and if the alcohol referred to in this case was such as could not be used as a beverage, it is not within the prohibition of the statute, although its ingredients contain spirituous liquor.
Appellant further says that pure alcohol is not in common parlance a spirituous liquor, although it is the basis of all spirituous liquors.
It is evident that the second section of chapter 48 of the act concerning intoxicating liquors, Acts 1925 p. 144, *Page 468
(§ 2715 Burns 1926) includes alcohol as an intoxicating 1. liquor. This section of the law defines what shall be and what shall come within the Prohibition Law, when it concerns the violation of the Prohibition Law of this state. The only question to determine in this appeal is whether the naked, bald statement by the officers who found the alcohol, describing the article found as alcohol, is sufficient to convict a person under the law of this state.
The appellant expressly waived every specification except reasons No. 1 and No. 2, which are in his motion for a new trial, and says that, in the instant case, the only evidence purporting or attempting to show what the article transported was, is the testimony of the police officers, and that is that the article transported was alcohol.
But this court, in the case of Hall v. State (1928),200 Ind. 149, 162 N.E. 51, has held adversely to the claim of this appellant. It is held that alcohol is an intoxicating 2, 3. liquor and it may be easily diluted so as to be capable of being used freely as a beverage, and that courts take judicial notice that it is a spirituous and intoxicating liquor.Snider v. State (1888), 81 Ga. 753, 7 S.E. 631, 12 Am. St. 350; State v. Kollar (1920), 17 Okla. Crim. 132,186 P. 968; State v. Clancy (1921), 121 Me. 83, 115 A. 609. See, also, Miller v. United States (1927), 21 F.2d 32;Brown v. United States (1926), 16 F.2d 682; Robinson
v. State (1925), 197 Ind. 148, 149 N.E. 888.
In State v. Clancy, supra, the court said: "It is idle at this late day, in view of the world-wide knowledge and action upon the matter of suppression of the liquor traffic, to further discuss or to seek to refine a phase of the subject settled ages ago. What all the world knows and discusses, the trial court and jury may be presumed to know. It is a matter of common knowledge that *Page 469
alcohol is an intoxicating liquor; used in sufficient quantity with other ingredients to produce intoxication, under our law it is an intoxicating liquor. When the question is submitted as in this case, in addition to the affirmative evidence, the jury had the right to take judicial notice of the fact that alcohol is an intoxicant."
In the case of Snider v. State, supra, it is held that alcohol is a spirituous and intoxicating liquor and that it was not necessary for the State to prove that it was intoxicating, because it is a fact known to every person of common understanding and will be taken judicial cognizance of.
In the case of State v. Kollar, supra, the court said: "Courts take judicial notice that alcohol is an intoxicating liquor. It forms the basic principle . . . of all liquors . . . it is a constituent element in each of said liquors. Pure alcohol may be easily diluted so as to be capable of being used freely as a beverage."
There is no error in the record and the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428850/ | Appellant brought this action against appellees for damages for the death of her decedent resulting from a railroad crossing accident in which the automobile wherein said decedent was riding was struck by one of appellees' trains at a railroad crossing in Rensselaer, Indiana. Trial to a jury resulted in a verdict in favor of appellees. Judgment that appellant take nothing.
The only error assigned here is, the trial court erred in overruling appellant's motion for a new trial. The questions presented by said motion relate to the giving or refusal to give certain instructions.
Appellees assert the bills of exceptions containing the evidence and objections to instructions are not *Page 428
before this court because the Clerk's certificate does not 1. cover them. Appellant's praecipe, omitting formal parts, is as follows:
"You are hereby requested to prepare a complete transcript of the entire record of the above entitled cause except the bills of exceptions containing the evidence and the bill of exceptions containing the objections to the instructions and the courts ruling thereon which shall be included therein without copying and certify the same to be used on appeal to the Appellate Court of Indiana."
The certificate of the Clerk is as follows:
"I, V.C. Rinebarger, Clerk of the Pulaski Circuit Court of Pulaski County, Indiana, do hereby certify that the above and foregoing transcript contains a full, true and complete copy of all entries in said cause required by the above and foregoing praecipe.
"IN WITNESS WHEREOF, I hereunto set my hand and affix the Seal of said Court, this 25th day of April, 1946.
V.C. RINEBARGER, Clerk, Pulaski Circuit Court, Pulaski County, Indiana."
When this certificate is considered with the praecipe we believe it is sufficient. Marshall v. Matson (1908),171 Ind. 238, 86 N.E. 339.
In view of the conclusion we have reached, we deem it necessary to consider only the second specification of the motion for a new trial. This specification asserts the trial court erred in giving appellees' tendered instruction No. 17 over the objection of appellant. This instruction is as follows:
"The mere fact that the plaintiff's decedent was not the driver of the automobile in question does not constitute him an invited guest. As an occupant of the automobile other than the driver, he may have been either an invited guest or engaged *Page 429
in a joint enterprise with the driver, and whether he was an invited guest or engaged in a joint enterprise, is a question of fact for you to determine from the evidence. If you find from the evidence that he was engaged in a joint enterprise with the driver, or with the driver and another occupant of the automobile, then I instruct you that he is chargeable with negligence of the driver. And in determining whether or not plaintiff's decedent was engaged in a joint enterprise with the driver of the automobile, you may consider the position of the occupants of the automobile, the place where the trip was started, if shown by the evidence, the destination of the automobile, if shown by the evidence, the purpose of the trip, if shown by the evidence, the common interest of the parties, if a common interest is shown by the evidence, together with any and all other facts and circumstances shown by the evidence in this case."
The objection to this instruction was, in part, as follows:
"the plaintiff objects to the giving of defendant's tendered instruction No. 17 for the reason that it singles out bits of evidence in determining whether or not the plaintiff's decedent and the driver of the automobile were engaged in a joint enterprise and that the evidence so pointed out is not sufficient to constitute joint enterprise and for the further reason, there is not evidence upon which the court can instruct the jury on the issue of joint enterprise; the burden of proof on the question of joint enterprise, being upon the defendant."
This court, in defining a joint enterprise in the case ofHogle v. Reliance Manufacturing Company (1943),113 Ind. App. 488, at page 504, 48 N.E.2d 75, 81, said: "There is a joint enterprise where all the parties have a community of interest in the purposes and objects of the undertaking and an equal right in its control and management."
In Blashfield's Cyc. of Automobile Law, Vol. 4, § 2372, pp. 493-495, it is stated: *Page 430
"An essential, and perhaps the central, element which must be shown in order to establish a joint enterprise is the existence of joint control over the management and operation of the vehicle and the course and conduct of the trip. There must, as said in another connection, in order that two persons riding in an automobile, one of them driving, may be deemed engaged in a joint enterprise for the purpose of imputing the negligence of the driver to the other, exist concurrently two fundamental and primary requisites, to wit, a community of interest in the object and purpose of the undertaking in which the automobile is being driven and an equal right to direct and govern the movements and conduct of each other in respect thereto."
As between the parties to a joint enterprise, there must be a contract either express or implied. Lee Brothers, Inc.
2. v. Jones (1944), 114 Ind. App. 688, 711, 54 N.E.2d 108; 30 Am. Jur. 681, § 9.
With this understanding of a joint enterprise we proceed to a consideration of the evidence to determine if from it any reasonable inference of the existence of a joint enterprise may be found.
The record discloses the following facts: Decedent lived with his wife and three children on a farm he rented on shares from his father. For some time prior to January 14, 1942, the 3, 4. day of the accident, he worked on building a home for his father on the latter's farm. His father paid him for this work $3.00 per day, room and board. The father owned and drove an automobile. On the day of the accident the father, decedent and his younger brother Harold, left the father's home in an automobile to take Harold to the Draft Board at Rensselaer for examination and then to go to Wolcott to get a man to sand the floors in the new home. Returning from Wolcott the collision occurred and all three were instantly killed. *Page 431
There was no evidence as to who was driving the automobile at the time of the accident.
In our opinion no reasonable inference can be drawn from this evidence that decedent was engaged in a joint enterprise. Therefore, the trial court erred in giving to the jury appellees' tendered instruction No. 17.
It is not likely other questions raised by appellant as to certain repetitious instructions will arise on a new trial. Therefore we do not deem it necessary to pass on these questions.
Judgment reversed with instructions to sustain appellant's motion for a new trial.
NOTE. — Reported in 70 N.E.2d 439. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428852/ | Appellee instituted a replevin action against the appellant. The issues in the case were closed by the parties, and a trial by the court resulted in a finding and judgment in favor of the appellee. Appellant filed his motion and reasons for a new trial on the grounds that the finding of the court is not sustained by sufficient evidence and is contrary to law. Motion for a new trial was overruled, and appellant excepted and consummated this appeal, assigning as error the overruling of such motion.
This appeal presents for decision a controversy between the parties growing out of the following facts admitted to be true by both appellant and appellee, and concerning which there is no conflict in the evidence, such evidence consisting of a promissory note, a chattel mortgage securing same, and a stipulation of facts made by the parties.
The facts are as follows: On December 11, 1925, the appellee sold to one Verl O. Horton two horses, and said Horton executed to appellee a promissory note for $200, and a chattel mortgage mortgaging said horses to appellee to secure the payment of said note, said note and mortgage each being executed and delivered on said date; possession of the horses so sold was taken by the said Horton at the time of purchase and retained by him until January 16, 1930, when he sold such horses to the appellant, at public auction, for the sum of $210, which amount was paid by appellant and was the actual value of the horses at that time; at the time of this sale by Horton to appellant, the note and mortgage given by Horton to the appellee had not been fully paid, and, at the time of trial, there was due and unpaid on said note the sum of $129.78 and attorney fees; at the time appellant purchased said horses from Horton, he did not have actual knowledge that said mortgage existed; appellee demanded of appellant the return of said horses, *Page 285
and was refused and the horses were in the possession of appellant on trial day and at that time were of the value of $200; the chattel mortgage, among other things, provides that the mortgagor Horton shall retain possession of the horses mortgaged and have the use of same until the note secured becomes due, and that, if the note it secures is not paid at maturity, the appellee "shall then have the right to take and keep possession of said property wherever it may be found without any process of law and the same shall become the absolute property of the said John R. Nash" (appellee); Horton, the mortgagor, further agrees "not to sell" the property without the consent of mortgagee and by the terms of such mortgage it is provided that, should he so do, the mortgagee "shall have the right to take immediate and unconditional possession" of the property mortgaged "wherever the same can be found," and rights of sale by mortgagee are given; the note secured by this mortgage was due and payable February 1, 1926; the face of the mortgage shows that V.O. Horton, the mortgagor, is "of Hamilton County in the State of Indiana," and the mortgage was recorded in Chattel Mortgage Record 41 of the records of the recorder's office of said Hamilton County on February 2, 1926, more than 50 days after the date of its execution.
The question is as to the rights of the parties under the law of this state where personal property is sold that is encumbered by a chattel mortgage that was not recorded within the time required by statute, but was recorded prior to the date of sale.
Our statute (§ 8055 Burns 1926), which has been in force for many years, being amended the last time in 1897 (Acts 1897 p. 240) provides that "no assignment of goods by way of mortgageshall be valid against any other person than the parties thereto, where such goods are not delivered to the mortgagee or assignee and retained *Page 286
by him, unless such assignment or mortgage shall be acknowledged as provided in case of deeds of conveyance, and recorded in the recorder's office of the county where the mortgagor resides, if he resides in this state, and if not a resident of the state, then in the county where said property is situated, within ten days after the execution thereof.
Appellee insists that, notwithstanding the positive terms of this statute, a mortgage recorded after the 10-day period of time has elapsed should be held valid as between the 1, 2. mortgagee and any person acquiring the mortgaged property, or any interest therein, after the mortgage was in fact recorded. To so hold would nullify the statute, and this we cannot do. Since 1843, our statutory law has contained a provision similar to that contained in our present statute requiring, where the possession of the goods mortgaged is not delivered to the mortgagee and retained by him, that a chattel mortgage be recorded within 10 days after its execution in order to be valid against any person not a party thereto, and our Supreme Court and this court have consistently held that there must be a strict compliance with the terms of the statute on the part of the mortgagee, or no claim under the mortgage can be legally asserted against any person not a party thereto.Chenyworth v. Daily (1855), 7 Ind. 284; Lockwood v.Slevin (1866), 26 Ind. 124, Kennedy v. Shaw (1872),38 Ind. 474; Seavey v. Walker (1886), 108 Ind. 78, 9 N.E. 347;Granger v. Adams (1883), 90 Ind. 87; Stengel v. Boyce
(1896), 143 Ind. 642, 42 N.E. 905; Ross v. Menefee (1890),125 Ind. 432, 25 N.E. 545; Scarry v. Bennett (1891),2 Ind. App. 167, 28 N.E. 231; Morris v. Ellis (1897),16 Ind. App. 679, 46 N.E. 41; Wolf v. Russell (1914), 55 Ind. App. 660, 104 N.E. 603; Bergman v. Columbia Securities Co. (1926),84 Ind. App. 403, 151 N.E. 367. *Page 287
The decision of the court was contrary to law, and the court erred in overruling appellant's motion for a new trial.
The judgment is reversed, with instructions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4066124/ | ACCEPTED
04-15-00548-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/16/2015 3:05:21 PM
KEITH HOTTLE
CLERK
NO. 04-15-00548-CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
FOR THE FOURTH DISTRICT OF TEXAS09/16/15 3:05:21 PM
SAN ANTONIO KEITH E. HOTTLE
Clerk
RUFINA REYES YANEZ
Appellant,
v.
AMERICAN GENERAL LIFE INSURANCE CO.
Appellee.
ON APPEAL FROM THE 341ST JUDICIAL DISTRICT COURT OF WEBB COUNTY, TEXAS
Trial Court Cause No. 2014CVF000504 D3
APPELLEE’S MOTION TO DISMISS
David T. McDowell EDISON, MCDOWELL & HETHERINGTON LLP
State Bar No. 00791222 Phoenix Tower
Jason A. Richardson 3200 Southwest Freeway, Ste. 2100
State Bar No. 24056206 Houston, Texas 77027
Robert P. Debelak III Telephone: 713-337-5580
State Bar No. 24078410 Facsimile: 713-337-8850
david.mcdowell@emhllp.com
jason.richardson@emhllp.com
bobby.debelak@emhllp.com
Counsel for Appellee
I. Introduction.
1. Plaintiff-Appellant Rufina Reyes Yanez filed her notice of appeal
long after it was due. Her motion for an extension was also untimely. The Court
lacks jurisdiction to hear her appeal, and should therefore dismiss it in its entirety.
II. Procedural History.
2. The trial court granted summary judgment in favor of Appellee
American General Life Insurance Company on May 13, 2015 (the “Judgment,”
attached as Exhibit 1). Pursuant to the Judgment, all of Appellant’s claims were
dismissed with prejudice. Judgment, ¶ 3. The Judgment further provides that it “is
a final order that dispenses with all claims before the Court.” Id.
3. Appellant filed her “Motion to Set Aside the May 13, 2015 Order
Granting Defendant’s Traditional Motion for Summary Judgment” on June 5, 2012
(the “Motion for New Trial,” attached as Exhibit 2). That motion was denied on
July 20, 2015 (the “July 20 Order,” attached as Exhibit 3).
4. Appellant filed her Notice of Appeal on September 3, 2015 (attached
as Exhibit 4). On that same day, she also filed a Motion for Extension of Time to
File Appellant’s Brief, in which she sought an extension of 15 days to file her
Notice of Appeal.1
1
The title of Appellant’s motion is obviously erroneous.
2
III. Legal Argument.
A. Plaintiff Failed to File Her Notice of Appeal Within 90 Days of the Date
the Judgment was Signed.
5. In Texas, a court of appeals only “has jurisdiction over an appeal if
the appellant timely files an instrument in a bona fide attempt to invoke the
appellate court’s jurisdiction. In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). If
an appellant fails to file a timely notice of appeal, she will not invoke the court’s
appellate jurisdiction. Ex parte Matthews, 452 S.W.3d 8, 14 (Tex. App.—San
Antonio 2014, no pet.). Further, “[w]hen a notice of appeal is filed late and
appellant fails to timely file a motion for extension of time, the appellate court
lacks jurisdiction.” Torres v. State, 04-03-00913-CR, 2004 WL 572346, at *1
(Tex. App.—San Antonio Mar. 24, 2004, no pet.).
6. Appellant’s Notice of Appeal is impermissibly late. Pursuant to Rule
26.1(a) of the Texas Rules of Appellate Procedure, “the notice of appeal must be
filed within 90 days after judgment is signed if any party timely files … a motion
for new trial. TEX. R. APP. P. 26(a)(1) (emphasis added). Here, the Judgment was
signed on May 13, 2015. Accordingly, Appellant only had until August 11, 2015
to file her Notice of Appeal. She did not do so until September 3, 2015. Even if
the Court grants Appellant’s request for an extension of 15 days (up to August 26,
2015), Appellant’s Notice of Appeal would still be untimely. Her appeal should be
dismissed for lack of jurisdiction.
3
B. The Order Denying Appellant’s Motion for New Trial Does Not Trigger
Her Appellate Deadlines.
7. Appellant is attempting to create the illusion of a timely filed appeal
by purporting to appeal the wrong court order. Here, Appellant states that she
desires to appeal “the final summary judgment that was rendered on July 20,
2015.” See Notice of Appeal (Exh. 4). Her characterization of the July 20 is
incorrect and misleading.
8. The Judgment, which granted summary judgment in American
General’s favor, was the only final, appealable order from the trial court that could
trigger the appellate deadlines. See Judgment. The July 20 Order was an
interlocutory order that merely denied Appellant’s Motion for New Trial, and did
not deny any of Appellant’s claims. See July 20 Order. Sechrest v. Blackwell, No.
11-11-00271-CV, 2012 WL 690222, at *2 (Tex. App.—Eastland Mar. 1, 2012, no
pet.) (“The May 26 written order denies a motion for new trial and is, therefore,
not a final judgment or an appealable order.”).
9. In a case directly on point, the First Court of Appeals explained that
“the deadline for filing her notice of appeal does not run from the date of the denial
of her motion for new trial, but rather from the date of the signing of the summary
judgment granted for appellees.” Powell v. Linh Nutrition Programs, Inc., 01-03-
00919-CV, 2005 WL 375334, at *1 (Tex. App.—Houston [1st Dist.] Feb. 17,
2005, no pet.); Burnett v. DRO IP, Ltd., 13-14-00518-CV, 2014 WL 4952767, at
4
*1 (Tex. App.—Corpus Christi Oct. 2, 2014, no pet.) (“the deadline for filing the
notice of appeal does not run from the date of the denial of the motion for new
trial, but rather from the date of the judgment.”); J.E. Shaunfield Family Ltd. P'ship
v. BMW of Dallas, 05-12-00880-CV, 2012 WL 4753523, at *1 (Tex. App.—Dallas
Oct. 4, 2012, no pet.) (same). This is an error that cannot be cured with a motion
for extension or excused as a result of good faith error. See Burnett, 2014 WL
4952767, at * 1 (Holding that although appellant provided a reasonable
explanation regarding his late filing of the notice of appeal, the appellate court
lacks jurisdiction after the expiration of the 15-day grace period provided by Rule
26.3); J.E. Shaunfield Family, 2012 WL 4753523, at *1 (same).
IV. Conclusion.
10. Appellant has failed to invoke this Court’s jurisdiction because she
failed to timely file her Notice of Appeal. She is not saved by her motion for an
extension because she filed it outside the 15-day window permitted by Rule 26.1.
American General respectfully requests pursuant to Rule 42.3(a) of the Texas
Rules of Appellate Procedure that the Court grant this motion and dismiss this
appeal in whole for want of jurisdiction.
5
Respectfully submitted,
EDISON, MCDOWELL & HETHERINGTON LLP
By: a
David T. McDowell
State Bar No. 00791222
Jason A. Richardson
State Bar No. 24056206
Robert P. Debelak III
State Bar No. 24078410
3200 Southwest Freeway, Suite 2100
Houston, Texas 77027
Telephone: 713-337-5580
Facsimile: 713-337-8850
Attorneys for the Appellee
CERTIFICATE OF CONFERENCE
I hereby certify that I attempted to meet and confer with Appellant’s counsel
regarding this motion as follows:
On Thursday, September 10, 2015 at 4:42 PM, I sent an email to Appellant’s
counsel, Armando Trevino, setting forth the issues identified in this motion, and
requested an appointment to speak with him the next day. Mr. Trevino did not
respond.
On Tuesday, September 15, 2015 at 2:25 PM, I called Mr. Trevino’s office, but
was told he was unavailable to speak with me. Immediately after that call I sent
another email to Mr. Trevino to follow up on my prior email and once again
request an appointment to speak about the foregoing issues. Mr. Trevino did not
respond.
On Wednesday, September 16, 2015 at 2:30 PM, I again called Mr. Trevino’s
office, but, like before, was told that he was unavailable.
6
Given Mr. Trevino’s lack of responses to my communications, I cannot make a
representation to the Court regarding Appellant’s position on this motion. Given
that the motion seeks a complete dismissal of the appeal, it is highly likely that
Appellant does not agree to the relief requested herein.
a
Jason A. Richardson
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served
on the 16th day of September, 2015, on the following counsel of record by US Mail
and email:
Armando Trevino
1519 Washington St., Suite One
Laredo, TX 78042-0544
armando_trevinolaw@hotmail.com
armandotrevinolaw@gmail.com
a
Jason A. Richardson
CERTIFICATE OF COMPLIANCE
Per Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this
document has 929 words, as calculated by Microsoft Word, the word processing
software used to create the document.
a
Jason A. Richardson
7 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4066126/ | THE STATE OF TEXAS
MANDATE
TO THE 71ST DISTRICT COURT OF HARRISON COUNTY, GREETINGS:
Before the Court of Appeals for the Sixth Court of Appeals District of Texas, on the 1st
day of July, A.D. 2015, the cause upon appeal to revise or reverse your Judgment was determined;
and therein our said Court made its order in these words:
Nancy Elizabeth Bowman, Appellant No. 06-14-00094-CV
v. Trial Court No. 13-0618
Jerry Davidson and Diana Davidson,
Appellees
As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
We further order that the appellant, Nancy Elizabeth Bowman, pay all costs of this appeal.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court in this
behalf, and in all things to have it duly recognized, obeyed, and executed.
WITNESS, the Hon. Josh R. Morriss, III, Chief Justice of our said Court of Appeals, with
the seal thereof annexed, at the City of Texarkana, this the 16th day of September, A.D. 2015.
DEBRA K. AUTREY, Clerk | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486843/ | Three cases have been consolidated for the purposes of this appeal. In the suits as separately tried judgments were recovered by the Receiver of the Lafayette Bank, of Baltimore, upon individual promissory notes for $1,500 each, payable to its order, made by the respective appellants. Upon one of the notes a bank deposit of the maker to the amount of $392.90 had been credited. The appellants were three of the twelve directors of the bank. The notes were given in pursuance of a plan for the directors to finance the subscription and payment for the previously unissued portion of the capital stock of the bank, in order that the entire amount of its authorized capital might be paid within a year after its organization as required by law. (Code, art. 11, sec. 20.) It was necessary that the stock should be sold for twelve dollars per share, so as to yield ten dollars for its par value and two dollars for surplus, and as there were five thousand shares to be subscribed and paid for, the total amount to be received by the bank was $60,000. The twelve directors borrowed $50,000 from the Farmers' and Merchants' Bank of Baltimore, on a promissory note made by them in their individual capacities, with the agreement that $8,000 of the amount should be immediately repaid. The check of the Farmers' and Merchants' Bank to the directors for the $50,000 loaned was deposited in the Lafayette Bank, and after $8,000 had been paid to the former bank, in accordance with the agreement, the balance was applied in partial payment for the 5,000 shares of stock for the purchase of which the money was borrowed. For the payment of the remaining $18,000 of the purchase price of the stock each of the twelve directors gave the Lafayette Bank his promissory note for $1,500. The certificate for the stock was issued *Page 608
in the name of J. Shorb Neale, one of the directors, and was pledged as collateral security for the note to the Farmers' and Merchants' Bank. An entry on the books of the Lafayette Bank shows that the payment for the stock was credited as having been made by J. Shorb Neale "et al.," and the proof is conclusive that all of the directors participated equally in the subscription. Subsequently the appellee, who is the State Bank Commissioner, became Receiver of the Lafayette Bank under the decree of the Circuit Court of Baltimore City, and the appellants having refused to pay their notes for $1,500 each given to the bank under the circumstances described, the suits which have resulted in the judgments appealed from were instituted.
The only exception in the record was taken in each case because the trial court declined to instruct itself, sitting as as jury, that there was no evidence of any consideration for the promissory note which was the subject of the suit, and that the verdict should be for the defendant.
It is contended on behalf of the appellants that the notes in question were given simply for the accommodation of the Lafayette Bank, in order that its operations might be continued, and with the understanding that they were to be paid out of the proceeds of the future sales of the stock for which they were ostensibly accepted in payment, but for which the appellants and the other directors were not to be regarded as actual subscribers. The transaction is said to have been designed to enable the bank to nominally comply with the law, and the notice of the Bank Commissioner, as to the full subscription and payment for its capital stock. It is argued that the notes sued on were not only without consideration, but were illegal as part of a plan to mislead the Bank Commissioner into the belief that the requirements of the law had been fulfilled.
The appellants' notes to the Lafayette Bank were unquestionably executed with the intention that they should be paid out of the proceeds of subsequent sales of the stock for which *Page 609
they were given, and with the expectation that they would consequently not have to be paid by the respective makers. But they were delivered to the bank in part payment for shares of stock which it thereupon actually issued, and which represented a substantial interest in the assets of the corporation. There was no concealment in the method by which the subscription and the payment for the stock were accomplished. The nature of the transaction is disclosed by entries on the bank's records. While no formal application for the stock appears to have been signed, and the certificate was issued in the name of only one of the directors, who was president of the bank, the payments and notes received for the shares were credited in an account which indicated that the stock was held for the common interest of those contributing to its purchase. It was proved that the certificate was issued in Mr. Neale's name alone to facilitate transfers as resales of the stock were negotiated. The payment of $42,000 to the bank on account of the stock purchase was certainly not fictitious, and the accompanying delivery of the notes which represented the remaining $18,000 of the purchase price was no less real and effectual. The record wholly fails to show that the appellants gave the notes with any intent to deceive. They acted in evident good faith, in order to provide for the continued existence of the corporation in which they were already interested as stockholders and directors. It was their own as well as the corporate interest which they were thus promoting.
It has been decided in a number of cases that notes or other obligations given by persons financially interested in a bank, to make good a depletion of its capital or assets, are based upon sufficient consideration. Decisions to that effect are cited in a note to State ex rel. Lattanner v. Hills (94 Ohio St. 171), in L.R.A. 1917 Barb. 688. The individual interest which the persons assuming the liabilities have in the bank, and the benefit resulting to themselves from the promotion of its financial welfare and the continuance of its operations, *Page 610
constitute an adequate consideration for the agreement sought to be enforced. 8 C.J. 230.
In Union Bank of Brooklyn v. Sullivan, 214 N.Y. 332, the suit was on a note given to the bank by directors and stockholders to avoid a reduction of its surplus, which would otherwise have been necessary because of the presence of a worthless note of large amount among its assets. In discussing the defense that the note was without consideration, the court said: "They gave their note, and the bank's surplus was not depleted. Thus a contract was made upon a sufficient consideration between the makers and indorsers of the note on the one hand and the bank, a body corporate, on the other. Certainly those who became liable on the note secured a distinct benefit which accrued directly from the contract. Each share of stock which they held represented an aliquot part of the bank's assets, and whatever increased the assets benefited the holders of the stock."
The Supreme Court of Pennsylvania, in State Bank of Pittsburg
v. Kirk, 216 Pa. 452, held that directors of a bank who gave it their notes, on account of an impairment of its capital resulting from bad loans, with the understanding that the notes were to be paid out of the profits of the bank's business, were not entitled, upon the theory of a want of consideration, to resist a recovery on the notes by a receiver subsequently appointed.
In the present case the liabilities of the appellants were contracted, not merely because of their existing interest as stockholders and directors of the bank, but also in consideration of the issuance of five thousand shares of its capital stock for their use and disposition.
If, as the appellants contend, the transaction was unreal so far as any contractual liability to the bank on their part was concerned, it nevertheless accomplished its practical purpose of satisfying the requirements of the law, and of thus authorizing the bank to continue in business. In view of that purpose and result, the principle of estoppel might be sufficient to preclude the present defense. Lyons v. Benney, *Page 611 230 Pa. 117, 34 L.R.A. (N.S.) 105, and note; Federal ReserveBank v. Crothers, 289 Fed. 777; Lyons v. Westwater, 181 Fed. 681; Skagit State Bank v. Moody, 86 Wash. 286, L.R.A. 1916 A. 1215, and note. But we rest our decision on the ground that there was a substantial consideration for the appellants' notes to the bank in the actual issuance of the stock for which the notes were given and accepted, and in the pre-existing interest of the appellants as stockholders and directors in the object thereby achieved.
The case of Rankin v. City National Bank, 208 U.S. 541, which the appellants cite, upon the theory that their notes were not real but only ostensible promises of payment to the bank, is not sufficiently analogous to support their contention. That was an unsuccessful suit by a receiver of an insolvent bank to recover the amount of an apparent deposit, in its name, in another bank, which was the result of a mere bookkeeping device and represented no value received or interest served on behalf of the defendant. There is a wide difference between the issue there decided and the one presented by this record. The other cases cited by the appellants are likewise distinguishable from the case at bar on the controlling facts. It is a real and not a fictitious consideration upon which the notes in suit are based, and the failure to realize the expectation that they would be paid with money produced by resales of the stock for which they were given could not justify us in refusing to give them effect according to their terms.
The court below, in our opinion, was right in declining to direct verdicts for the defendants on the ground that there was no consideration for the notes on which they were sued.
Judgments affirmed, with costs. *Page 612 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3486845/ | This is an appeal from a judgment entered on a verdict rendered in favor of the appellee (plaintiff) against the appellant (defendant). The declaration originally contained seven common counts and was afterwards amended by adding an eighth count. A demurrer to it having been sustained, the first seven counts were stricken out and the eighth, as amended by interlineations, was refiled. That count is on an agreement under seal, by which the appellant agreed to hire the appellee for eleven months — from the first day of April, *Page 346
1912, to the last day of February, 1913, inclusive, for $60 per month, to be paid in cash bi-monthly, and in addition appellant was to furnish appellee a dwelling house, garden, fire wood, feed for one cow, and the right to the use of a horse for driving at times to be agreed upon between the parties. The appellee was employed to do general farm work under the direction of the appellant, and in the absence of the latter he was to exercise supervision over the work on the farms, also to supervise and assist in the care of the orchard and the trimming and spraying thereof, and to do other necessary work in connection therewith. He was also to do such other work on the farms named in the agreement as might be suggested by the appellant. The narr. alleges that the plaintiff entered upon the service and so continued until the defendant, before the expiration of the eleven months, dismissed him from his service, and refused to retain him for the remainder of said time; whereby he was deprived of the wages, profits and privileges which he would have derived, except $25 per month, which he had been able to earn elsewhere.
The plaintiff offered three prayers and the defendant two, all of which were refused. The only exceptions in the record are to the refusal of the lower Court to grant the defendant's two prayers and to pass upon his special exception to the plaintiff's first prayer, but as the Court rejected the plaintiff's prayer, that special exception is immaterial. As all of the prayers were rejected, the case went to the jury without any instructions by the Court, but while that is to be regretted and is not a desirable practice, especially in cases of this kind, we are only called upon to determine whether there was reversible error in rejecting the defendant's prayers, which are as follows:
Defendant's First Prayer. — "If the jury find that the plaintiff was employed by the defendant under the contract of May 1st, 1912, offered in evidence, then it became and was the duty of the plaintiff to obey all reasonable orders of the defendant, and to be loyal to, protect and safeguard the interests *Page 347
of the defendant in every reasonable way, and if the jury find that a difference arose between the defendant and the plaintiff, over the services of the plaintiff at the instance of the defendant to Joseph T. Hoopes, the father of the plaintiff, in the use of a sprayer for apple trees, and over the use of said sprayer and the bill for repairs thereto, and the plaintiff took the side of his father in said controversy and tried to force defendant to pay the bill for repairs to said sprayer presented by the said Joseph, and told the defendant he would believe the said Joseph in preference to believing the defendant in reference to said bill for repairs, and the defendant thereupon discharged the plaintiff and paid him up to the date of his discharge, then the plaintiff is not entitled to recover in this action, and the verdict of the jury must be in favor of the defendant."
Defendant's Second Prayer. — "If the jury find that the plaintiff was employed by the defendant under the contract of May 1st, 1912, offered in evidence, and that the plaintiff worked under said contract until July 8th, 1912, and that on or about said last named date differences arose between the defendant and the plaintiff growing out of the services of the plaintiff to Joseph T. Hoopes, the father of the plaintiff, the use of a sprayer for apple trees and the repairs thereto, and on said date the plaintiff brought up the question of the defendant's paying for said repairs, and insisted that the defendant should pay the same for the relief of said Joseph, and the defendant then and there declined to pay the same because not according to agreement, but the plaintiff insisted that the defendant should pay the same, and said he, the plaintiff, would believe the said Joseph in preference to the defendant, whereupon the defendant discharged the plaintiff and paid him his wages to the date of said discharge, then the plaintiff is not entitled to recover, and the verdict of the jury must be in favor of the defendant."
The only testimony in the case which tended in any way to question the faithful performance of the contract by the plaintiff, in respect to the manner and character of his work, *Page 348
was that of the defendant himself. As the prayers offered do not rely on that, and as that was unquestionably for the jury and not for the Court to determine, we do not deem it necessary to refer to it further than to say that there was ample evidence tending to show that the plaintiff was competent and attentive to his duties. The defendant's testimony as well as that of the plaintiff and his father showed that the work done by the plaintiff on his father's orchard was by virtue of the contract between the defendant and Mr. Hoopes, Sr., and there was no dispute or difference between the plaintiff and the defendant on that subject. The question in dispute was whether the defendant or Mr. Hoopes, Sr., was to pay for the repairs of the sprayer. The defendant claimed that he was not to pay for them, while Mr. Hoopes, Sr., claimed that he had agreed to do so. The plaintiff bought some hose for the sprayer which the defendant paid for, apparently without objection. Later the plaintiff purchased some materials for repairs to the sprayer amounting to $11.23, which were charged to the plaintiff by the people in Rochester who furnished them. The dispute arose about those repairs. The plaintiff presented the bill for them to the defendant in June, but he declined to pay for them, and the plaintiff had promised the parties who furnished them that he would pay for them on July 10th. On July 9th he asked the defendant for some money which was due him for wages, as he said he did not have any, and could not pay the people in Rochester for the repairs unless he could obtain the money from the defendant. His testimony in the record is then as follows: "Besides that, I didn't feel it was my place to pay that bill; I got it for repairs to the sprayer that we would need to have to do the spraying properly. He said he had nothing to do with that; that was my father's place to settle that bill, that he had paid for the hose at Forest Hill and he thought that was enough. He hadn't paid for the hose. Q. He was charged with it, wasn't he? A. Yes, sir. Q. Go on. A. I told him I understood and believed he agreed to settle the account. He says, `You mean I am a liar *Page 349
then.' I says, `I would take my father's word in preference to yours any time.' `You are too G____ d____ smart; you can go hunt another job; I will settle with you.' That is all that was said. I didn't reply to him." That is the plaintiff's version of the dispute which resulted in his discharge. The defendant was asked: "When you explained to Mr. Hoopes this morning your position with reference to those bills, what did he say?" and replied: "He said, I would rather believe my father than you.' I said, `Do you mean to say I am lying to you?' `Well,' he said, `I would rather believe him than you,' in a surly way. I said, `You can look for another job.'" On cross-examination he said, "I discharged him because he called me a liar. Q. He didn't call you a liar? A. He did — the same thing," and later said, "I discharged him because he was insolent to me, intimated I was lying about his old sprayer. Q. Didn't you intimate his father was lying? A. Wait until I get through — I discharged him because he was incompetent and not on the job. He professed to be in the orchard business, and he didn't know any more about it than I do, and I don't know anything about it." Mrs. Dorrance, the wife of the defendant, testified in substance to the same effect as her husband as to what occurred at that time. Mr. Ray Thompson, who was the only disinterested witness present testified that "the plaintiff gave the bills to the defendant and defendant said he had nothing to do with them; that plaintiff told defendant that he had and said, `Father says you did.' When the defendant said he had nothing to do with them, the plaintiff told defendant that he would believe his father before he would believe defendant; that defendant then said, `You call me a liar, do you;' that there was some swearing after that, and defendant said, `I will settle with you today, and you can look for another job.'"
Inasmuch as the main ground relied upon by the defendant for his right to discharge the plaintiff was what took place on July 9th, we have thus referred, somewhat at length, to the testimony of the witness who was present. It is, of course, conceded that although there is an agreement *Page 350
employing a servant for a definite period, he may be discharged by the master before the expiration of that period for sufficient cause. What is a sufficient cause has been before the courts of England and this country frequently, and without attempting to state all of the obligations that arise out of and are implied from the relation created by such a contract, it is well settled that "It is only for breaches of an express or implied condition of the contract that either party can put an end to it; anything less than that is not a legal excuse." Wood on Master andServant, sec. 83, p. 166; Ibid, sec. 116, p. 220.
In section 109, on page 210, of that volume it is said: "Mere misconduct, not amounting to insubordination, or involving moral turpitude, or exercising a bad influence over other servants, or producing injury to the master's business, or members of the master's family, is not enough to warrant the discharge of a servant. The misconduct must be gross, or such as is incompatible with the relation, pernicious in its influence, or injurious to the master's business; and, in determining the question, reference must always be had to the business or employment in which it arose, and the relative social condition of the master and servant. What might be regarded as improper or insolent in a servant toward one master, might not be so regarded toward another." While the appellee was employed to do general farm work, he was to have supervision over the farms in the absence of the appellant and was not an ordinary, menial servant. When the appellant was asked as to the duties of the appellee with reference to the trimming of the trees, etc., he said: "He was to do that, of course. I certainly would not have paid him $60 a month for ordinary farm work, and he was represented to me by his father as being an expert on fruit. I knew very little about the business, and hired him for that purpose."
In reference to a servant's duty to refrain from insolent, offensive and threatening words and behavior, it is said in 1 *Page 351 Labatt's Master and Servant (2nd Ed.), sec. 299, p. 930: "Every servant impliedly stipulates that both his words and his behavior in regard to his master and his master's family shall be respectful and free from insolence. A breach of this stipulation is unquestionably a valid reason for dismissing the servant, especially when it is accompanied by other conduct which would of itself justify a rescission of the contract. In order to justify his dismissal on this ground, it must be shown that what he said or did was incompatible with the continuance of the relationship. Previous provocation by the master will sometimes render excusable words or behavior which, apart from that element, would constitute a good ground of dismissal."
Many cases are cited in the notes to sustain the several rules announced in that section, and on page 932 it is said in reference to the provinces of Court and jury in determining whether a breach of duty has been committed: "As the various kinds of language and behavior which constitute a breach of the duty now under discussion are described by terms which are not susceptible of any precise legal definition, the question whether, in any given instance, a breach was committed, is essentially one of fact, and therefore primarily for the jury. In determining this question the nature of the occupation to which the given services had relation, and the social status and environment of the parties are material elements for consideration."
In 26 Cyc. 1016, the rule as to questions of law and fact is thus stated: "In general, in an action for wrongful discharge, as in other actions for breach of contract, questions of law are for the Court, while questions of fact or mixed questions of law and fact, are for the jury, under proper instructions by the Court. * * * What constitutes good and sufficient cause for the discharge of a servant is a question of law, and where the facts are undisputed, it is for the Court to say whether the discharge was justified. But where the facts are disputed, it is for the jury to say upon all the evidence whether *Page 352
there were sufficient grounds to warrant the discharge." See also 20 Am. Eng. Ency. of Law, 32; and in Burroughs v.Langley, 10 Md. 248, it was said that, "What constitutes good cause to justify a party in breaking his contract is for the Court to determine, and not the jury; matters set up in discharge are facts to be found by the jury, but their effect upon the contract is for the Court." In Balto. City v. Schaub Bros.,96 Md. 534, it was held that the question whether the defendant's failure to perform its contract, if found as a fact, was sufficient in law to justify the plaintiffs in rescinding the contract on their part. In Adams Express Co. v. Trego,35 Md. 47, at 64, JUDGE ALVEY said: "Whether there existed, as matter of fact, sufficient ground for the discharge of the appellee, was, of course, a question for the jury; but, as a principle of law, it may be stated generally, that the appellee, by the nature of his employment, was impliedly bound to serve the appellant faithfully, and to refrain from doing any act knowingly and wilfully which might affect injuriously the business of his employer." See also Spencer v. Trafford, 42 Md. 1, at page 20, where it was said, that the propositions in defendant's ninth prayer, which submitted to the jury to find whether the plaintiff violated his duty and so conducted himself that it would have been injurious to the interest of his employers to have kept him, were unobjectionable.
It is not altogether free from difficulty under these, and other authorities which might be cited, to draw the line between the province of the Court and that of the jury in cases of this character. There are cases where the acts of the servants are so flagrant and so manifestly contrary to the implied conditions arising from the relation of master and servant which should exist between them, that they can be decided by the Court as matters of law, but in a case involving alleged insolence, such as this, it would be almost impossible to lay down a general rule of law. If a servant without any provocation called his master a liar, especially *Page 353
in the presence of other servants and concerning some dealings between them, we could not hesitate to say that, "It was incompatible with the continuance of the relationship," and declare as a matter of law that the master would be justified in discharging him, but in a case such as this, the Court was not authorized to instruct the jury that the defendant was justified in discharging the plaintiff if the jury found the facts in either of those prayers. In the first place, it was perfectly natural for the appellee to believe his father in preference to the appellant. His father had told him that the appellant had agreed to pay the repairs, and the appellant had paid for the hose without objection. As there was nearly three times as much spraying done that season for the appellant as there was for the appellee's father, and the sprayer belonged to the father, it was not unreasonable to expect the appellant to pay for the repairs. Then the inference from the appellant's denial that he meant to say that the appellee's father was telling an untruth, was as strong as that of the appellee that the appellant was. What the appellee said might well have been intended in vindication of his father's veracity, and not with any intention to be insolent to the appellant. The appellant apparently owed the appellee $125.00, over two months' wages, on July 9th (at least that is what he said he paid him on the 13th), although by the contract the appellee was entitled to his money bi-monthly, and he wanted money to pay the bill for repairs which he had promised to pay the next day, although he was under no obligation to pay for them, whether his father or the appellant was correct in their understanding of the agreement between them. He not only did not let him have the money, but he flatly contradicted what the appellee told him his father said. When then he made the remark to the appellant, it can not be said it was made without considerable provocation.
Then the meaning of his remark might depend very much upon the manner in which it was uttered. So under all the *Page 354
circumstances, we think the jury, and not the Court, should have determined whether the appellee was insolent to the appellant to such an extent that it was incompatible with the continuance of the relationship, and whether there was such provocation as would excuse his remark, but the Court should have instructed the jury as to what the law was upon their finding certain facts. In 1Labbatt's Master and Servant. sec. 272, on page 819, the author says: "By some authorities it has been laid down broadly that, when the facts have been ascertained, it is for the Court to say whether they import a breach of duty on the servant's part. On the other hand, we find categorical statements to the effect that this question is always one for the jury. But it will be apparent, from an examination of the decisions reviewed in the following sub-titles of this chapter, that neither of these doctrines can properly be said to be of universal applicability." On page 823 of that volume it is said, "In any case where the sufficiency of the master's justification of a dismissal is deemed to raise an issue of fact, the proper course is to submit that issue to the jury under suitable instructions, informing them, in general language having relation to the evidence introduced, what kind of acts or omissions on the servant's part constitute a good cause for discharge."
So without further discussion of the subject, we are of opinion that both of the prayers of defendant were properly rejected. Some of the questions submitted by them were improperly embraced in them because there was no legally sufficient evidence of them. But if we disregard that defect we do not think that if the jury found all of the facts therein stated in favor of the defendant, the plaintiff would have been by reason of such finding disentitled to recover, and hence the judgment will be affirmed.
Judgment affirmed, the appellant to pay the costs. *Page 355 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211168/ | This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0844
Ronald D. Van Riper,
Respondent,
vs.
Bonnie L. Roy,
Appellant.
Filed April 18, 2016
Affirmed
Ross, Judge
Carver County District Court
File No. 10-CV-15-369
Racheal M. Holland, Melchert Hubert Sjodin, PLLP, Waconia, Minnesota (for respondent)
Bonnie L. Roy, Waconia, Minnesota (pro se appellant)
Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
The contract-for-deed purchaser of a townhouse faces contract cancellation and
eviction because she failed to meet her payment obligation. Bonnie Roy appeals the district
court eviction order allowing Ronald Van Riper to take possession after the court found
that Roy defaulted on the contract and held over when the seller properly canceled the
contract. Roy argues, among other things, that her efforts to resolve the default prevent her
eviction and that the seller’s failure to record a contract modification mitigates her payment
duty. The arguments are not convincing, and we affirm.
FACTS
In February 2009, Bonnie Roy entered into a contract for deed to purchase a
townhouse from a construction company for an eventual total payout of $210,900. The
terms of the contract required Roy to pay the construction company $1,169 each month
with an added “bumper payment” of $37,180 in August 2009, pay real-estate taxes, and
maintain homeowner’s insurance. The construction company assigned its contract interest
to Ronald Van Riper.
Roy defaulted, and in August 2011 Van Riper responded by serving a notice of
cancellation. The next month, however, Roy and Van Riper filed a reinstatement and
amendment of contract for deed with the Carver County recorder. The amended contract
had no bumper-payment obligation, but it required Roy to make the same monthly
payments. About three years later, in May 2014 Roy and Van Riper again amended the
contract. Under the latest amendment, Roy’s monthly payment obligation reduced to $800
but the contract required her final payment of $192,771 to be due in December 2015.
During the course of Roy’s difficulties to keep up her payments, Fritz Jordan,
representing the charity Just a Little Somethin’ Inc., offered to help with monthly
payments. Jordan met with Roy and Van Riper and discussed an arrangement in which the
charity would pay if Roy was unable to make a monthly payment. Whatever promise
Jordan made on behalf of the charity did not involve Van Riper, who never acknowledged
2
Jordan as a guarantor or entered into a written agreement with him. Jordan did send Van
Riper a check of $800 to cover Roy’s October 2014 payment obligation, but the check
bounced. Roy did not cover the October 2014 obligation or make her November and
December payments.
Van Riper served Roy with a notice of cancellation in January 2015, based on her
failure to pay monthly installments, late fees, and real-estate taxes. Sixty days later, Roy
moved the district court to temporarily enjoin the cancellation proceeding. A district court
judge denied the request, citing Roy’s failure to notify Van Riper. Van Riper recorded the
notice of cancellation. Roy stayed in the home anyway, prompting Van Riper to file an
eviction action.
Roy appeared at the evidentiary hearing on the eviction proceeding, raising several
defenses. She first argued that her failure to pay was reasonable because mechanics’ liens
encumbered the property. She also maintained that Jordan had guaranteed the contract
payments. Roy argued that Van Riper failed to provide certain tax forms, impeding her
efforts to file her tax returns. And Roy asserted that she tried but was unable to meet with
Van Riper or his attorney to resolve the issues.
The district court found that Roy made no monthly payments from October 2014
through May 2015, that Roy defaulted on the contract for deed and held over after Van
Riper’s proper cancellation, and that Van Riper’s notice to vacate the property was properly
served. It entered judgment for Van Riper and issued a writ of recovery of the premises.
Roy appeals.
3
DECISION
Roy challenges the district court’s eviction judgment. Eviction proceedings are
summary in nature and limited in scope. Usually the only question in an eviction
proceeding is whether the facts in the complaint alleging the plaintiff’s extant possessory
interest are true. Cimarron Vill. v. Washington, 659 N.W.2d 811, 817 (Minn. App. 2003).
We review the district court’s fact-finding for clear error. Id. And we review its legal
conclusions de novo. W. Insulation Servs. v. Cent. Nat’l Ins., 460 N.W.2d 355, 357 (Minn.
App. 1990). All defenses and counterclaims in eviction actions must fall within this limited
scope. Deutsche Bank Nat’l Trust Co. v. Hanson, 841 N.W.2d 161, 164 (Minn. App. 2014).
Applying this standard to Roy’s beyond-the-scope challenges, we have no ground on which
to reverse the district court.
I
Roy appears to argue that her attempts to meet with Van Riper or his attorney to
resolve disagreements or to discuss mechanics’ liens on the property prevented Van Riper
from evicting Roy. The argument implies a defense that is ineffectual to prevent a seller’s
eviction action following a proper cancellation of the contract for deed.
Van Riper met the contract cancellation requirements. To properly cancel a contract
for deed, the seller must serve the purchaser with a notice laying out the reasons for default.
Minn. Stat. § 559.21, subd. 2a (2014). Van Riper’s notice accomplished this by listing
Roy’s failure to pay the November and December $800 monthly installments, the
November and December association dues, the accrued late fees and insufficient-funds
fees, the 2013 real-estate-tax late fees, the 2014 real-estate taxes, and other penalties and
4
late fees. It also included Roy’s failure to maintain evidence of homeowner’s insurance.
The seller’s notice must state that the contract will terminate 60 days after service. Id. Van
Riper’s notice also met this requirement. We see no error in the district court’s holding that
Van Riper followed the statute to cancel the contract for deed.
We also see no error in the district court’s conclusion that Roy’s attempts to meet
with Van Riper or his attorney did not discharge her statutory obligations to prevent the
pending cancellation. The purchaser can avoid the cancellation if, within a 60-day cure
period after the cancellation notice, she does five things (none of which Roy
accomplished): (1) remedy the reasons for the default; (2) make all payments that are due
and owing; (3) pay the cost of serving the notice; (4) pay two percent of any amount in
default; and (5) pay the seller’s attorney’s fees. Id. The record supports Roy’s assertion that
she tried to meet with Van Riper’s attorney to discuss mechanics’ liens that she believed
encumbered the property. But she unconvincingly argues that Van Riper’s failure to discuss
the liens or any alleged disagreement inhibits his right to terminate the contract. She
identifies no provision in the statute or any caselaw that suggests that a contract seller must
participate in negotiations or otherwise attempt to settle differences with the purchaser after
the seller has served notice of cancellation. Although Roy was in contact with Van Riper
after he served the notice, the record does not indicate that she took the necessary steps to
comply with the statutory terms to cure her default. Roy’s argument about her postnotice
efforts does not lead us to reverse.
5
II
Roy next appears to argue that Van Riper’s failure to record the 2014 contract
modification mitigated her duties under the contract for deed. Van Riper acknowledged
that he did not record the amended contract, asserting that he believed Roy would do so.
Roy maintains that she could not have recorded it because she lacked the original
document. The controversy does not affect our decision.
The seller must deliver a copy of the contract for deed to the purchaser in recordable
form with original signatures. Minn. Stat. § 507.235, subd. 1a (2014). But the duty to record
the contract falls to the purchaser, who must record it within four months. Id., subd. 1
(2014). The record does not inform us whether Van Riper provided Roy with a recordable
version of the contract. But it does not matter here. That Van Riper failed to give Roy the
document in recordable form neither invalidates the contract nor prevents cancellation.
Failing to record a contract for deed results only in a civil penalty under the statute, to be
paid by the purchaser. See id., subd. 2(a) (2014). And the purpose of recording property
interests is generally to protect those who might later seek an interest in it, Graves v.
Wayman, 859 N.W.2d 791, 808 (Minn. 2015), not the parties to the transaction that created
the recordable interest. Failing to record the amendment to the contract does not impact its
cancellation.
III
Roy identifies several alleged defects in the district court proceeding and supposed
shortcomings in Van Riper’s effort to meet his duties under the contract for deed. None of
these warrants reversal.
6
For example, Roy argues that Van Riper failed to provide her with completed 1098
amount-of-interest tax forms for her contract payments and that a meeting with Van Riper’s
attorney would have resolved the omission. “Parties generally may not litigate related
claims in an eviction proceeding.” See Deutsche Bank Nat’l Trust Co., 841 N.W.2d at 164.
Roy does not identify any rule of law that brings the omitted-forms issue within our limited
scope of review in this proceeding.
Roy also complains that Van Riper’s attorney objected to the admission of e-mails
between the parties, but the district court said that unless Van Riper objected to the e-mails
in writing, it would accept them. No written objection appears in the record, and Roy does
not identify any adverse evidentiary ruling. The issue therefore presents no evidentiary
decision for our review.
Roy maintains that the charity, Just a Little Somethin’, guaranteed her payments.
This too presents no issue for our review. A guaranty contract is a collateral agreement
between the guarantor and a debtor. Geneva JPM 2003-PM1, LLC v. Geneva FSCX I, LLC,
843 N.W.2d 263, 266 (Minn. App. 2014). It does not bind the creditor, who generally is
not a party to it. The district court concluded that Van Riper is not a party to any guaranty
agreement between Roy and the charity, and so he could not be bound by it. The conclusion
is unassailable. Even if it were not, a guaranty contract is subject to the statute of frauds
and requires evidence of the contract in writing. See Minn. Stat. § 513.01(2) (2014). This
sort of evidence does not appear in the record. We appreciate Roy’s conviction that she
deserves relief for her reliance on the charity’s unfulfilled promise to make her payment,
7
but any remedy she might have against the charity or its agent does not include relief from
eviction.
Roy also argues that Van Riper inappropriately denied the existence of their
agreement to remove from the contract Roy’s duty to make the $37,000 bumper payment.
But Van Riper’s claim of Roy’s default in the notice of cancellation does not rely on Roy’s
failure to make the bumper payment, and the district court’s decision also does not include
it. It is therefore not relevant to our review.
And Roy asserts that inaccurate district court file numbers have resulted in error.
Roy’s motion for a temporary restraining order and Van Riper’s eviction proceeding were
assigned different file numbers. We need not consider the alleged confusion because it does
not appear either that the numbering is erroneous or that any error affected Roy’s
possessory interest. Because Roy has not shown that the alleged confusion impacted the
decision prejudicially to either party, we do not address it further.
Affirmed.
8 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428893/ | The appellant was convicted of direct contempt of court and fined in the sum of $100, and ordered imprisoned for a period of 30 days on the Indiana State Farm. From this judgment he appealed.
The record shows that on June 27, 1924, in the Clay *Page 144
Circuit Court of Clay County, Indiana, the following proceedings were had before the Honorable Thomas W. Hutchison, sole judge of said court:
"In the Matter of the Contempt Proceedings No. 686 Against Felix Blankenbaker. CONTEMPT OF COURT.
"Felix Blankenbaker, the accused, being present in court, the clerk thereof, by the direction of the judge, read to him a statement by the judge, charging him with direct contempt of court, which statement by the court, and the statement of his defense by said Felix Blankenbaker, are as follows:
"State of Indiana, County of Clay — ss:
"In the Matter of the contempt proceedings against Felix Blankenbaker.
Charges.
"The said Felix Blankenbaker, being present in court, the court makes the following statement of the contempt of court of which the accused is now and has been guilty:
"That he filed in the Clay Circuit Court of Indiana, on the 13th day of June, 1924, a motion for a new trial in the case of the State of Indiana against Edward Barber, Cause No. 669 of said court, containing certain false, willful, malicious, impertinent, scandalous, insulting, and contemptuous language, charges and insinuations and libels, not inuring in any way for the benefit of said defendant, the record disclosing and affirmatively showing that no proper objection was made at the time of such incidents, or exception reserved for the purpose of reviewing the same; but the same being inserted in said motion for a new trial for the sole and only purpose of belittling and injuring the dignity of the court, insulting the judge thereof, and to vent the feelings of a spiteful and malicious heart. *Page 145
"The said language constituting such offense is as follows:
"`Fifth: The court erred in announcing from the bench, when a motion for continuance was filed in said cause, that defendant would not be given time to prepare his defense in said cause, as threats were being made to tear down the jail and release the defendant, and that an extra guard had to be employed to guard the defendant, at the expense of the county.
"`Sixth: The court erred in fixing the time for the defendant to be tried on the 5th day of May, the first day of the May term, in this to wit: That said motion for continuance was filed on the ____ day of April, 1924, and that in said motion was shown to the court that defendant's counsel would be required to go to St. Louis, Missouri, and make an investigation and find witnesses' names and addresses and arrange to take depositions of witnesses, after an investigation, and that notice would be required to be given to the state; that the court sustained motion for continuance on the ____ day of April, 1924, and set the time for trial for May 5, 1924, allowing only a period of nine days to elapse, which was not a reasonable time to get ready, and which made it impossible for defendant to prepare his defense and get his evidence.
"`Tenth: The court erred in demonstrating his bias and prejudice against defendant by announcing to the jury that he knew enough outside of the record to send the defendant to the electric-chair, which statement was false and untrue, and showed the biased mind of the court in trying said cause.
"`Eleventh: The court erred in interrogating jurors by requiring them to state that they would inflict the death penalty as readily as they would life imprisonment.
"`Twelfth: The court erred in requiring each juror *Page 146
to state that he would not shrink from assessing the death penalty any more than he would hesitate to assess a life sentence in this case.
"`Fourteenth: The court erred in demanding the sheriff to bring the defendant into court before the jury without giving him an opportunity to get shaved or fully dressed.
"`Fifteenth: The court erred in producing defendant, over defendant's objection, into open court before the jury with several weeks' growth of beard on his face, in tatters and rags and almost barefooted.
"`Sixteenth: The court erred in refusing defendant to file an amended special plea of insanity, before the jury was sworn to try the cause.
"`Eighteenth: The court erred in stating in open court that he had observed defendant, had had him in court to plead, and had noticed him in the court room and his eyes looked all right, and he therefore pronounced him to be of sound mind.
"`Twentieth: The court erred in striking out parts of witness Rothmeir's evidence after defendant had rested, and the court was informed that the witness had left the state.
"`Twenty-first: The court erred in ruling on State's motion to strike out the testimony of John Rothmeir for leaving the state. In saying in the presence of the jury that it was not the law that he could do that, but that Wigmore, the greatest authority on evidence, said it ought to be, and immediately proceeded to strike it out.
"`Twenty-second: The court erred in refusing to try defendant in the same manner as though the indictment had been returned in the Clay Circuit Court.
"`Twenty-third: The court erred in refusing to permit defendant to inquire of prospective jurors whether or not they belonged to any secret organization, for the purpose of exercising a peremptory challenge. *Page 147
"`Twenty-fourth: The court erred in not making an order that Fred Tosser, who was confined in the State Prison at Michigan City, be produced in court to testify on behalf of defendant; his evidence was very material.
"`Twenty-fifth: The court erred in not giving defendant an opportunity to get an order from court to produce Mike Murphy, who was confined in prison at Michigan City, in court to testify for defendant.
"`Thirtieth: The court erred in not appointing a local attorney of the Clay County Bar to assist in his defense.'
"Whereupon the said Felix Blankenbaker and the said Hon. Thomas W. Hutchison, sole judge of said court had the following conversation, to wit:
Statement of Mr. Blankenbaker.
"Mr. Blankenbaker: `I want to take exceptions to the court ordering this part of the motion read, and want to inquire what is the nature of this proceeding.'
"Judge: `I said the paper will speak for itself and you now have an opportunity to make a statement.'
"Mr. Blankenbaker: `Is there a charge filed here against me? If there is, I want an opportunity to answer.'
"Judge: `The statement was read to you and was made out according to law, and the reporter is here to take down whatever statement you have to make.'
"Mr. Blankenbaker: `I will state to the court that if there has been a charge filed against me here for indirect contempt of court I am ready to meet the charge, and that in reference to this part of this motion that has been read by the clerk to the audience —'
"Judge: `That is the statement of the court, read by the clerk at the direction of the court.'
"Mr. Blankenbaker: `— that I am asking that these charges be reduced to writing and that I be furnished a copy of the same and given an opportunity to file answer. *Page 148
And I want to further state that this motion for a new trial that has been filed here, if the time comes during the progress of this case, that it becomes necessary to file a bill of exceptions, that I expect to present a bill of exceptions, embodying each error set out in the motion, and I expect the judge of this court to sign the bill of exceptions even though it becomes necessary to appeal to the Supreme Court to get it done. If I am to be charged here with any offense by this court, I expect the court to make his record and give me an exception to his ruling, and give me a trial and an opportunity to appeal my case.'
"After which the Hon. Thomas W. Hutchison, sole judge of said court, pronounced the following judgment, to wit:
"And now the court, having listened to the reading of said charges of contempt, and to the statement of the accused in his own defense, and being sufficiently advised in the premises, finds the accused guilty of direct contempt of this court, as set out in the statement of the court above; that the statements contained in said motion for a new trial were made by the said Felix Blankenbaker, that they were false, willful, malicious, impertinent, scandalous, insulting, libelous, irrelevant, scurrilous, and serve no legal purpose in said motion; that they in no way inure to the benefit of said defendant, Edward Barber, as the record discloses affirmatively and truly that no objection whatever was made at the time of such incidents, nor any exception reserved at any time for the purpose of having the same reviewed by the appellate court on behalf of said Edward Barber, in determining whether any error had been committed by the trial court, and any error contained therein, if the facts were true, had been waived; that said contemptuous language had been inserted in said motion for a new trial by said Felix Blankenbaker for the sole and only purpose of belittling *Page 149
and injuring the dignity of the court, insulting the judge thereof, outraging the majesty of the law, and giving vent to the feelings of a spiteful and malicious heart; that the statement of said pretended defense of said Felix Blankenbaker is a mere reiteration of the false and contemptuous conduct and language of the accused, with the assertion of the right to make the same, and itself constitutes direct contempt of court by belittling the authority of the court and the dignity of the law, and calculated to bring and which does bring the authority of the court into disrepute.
"It is therefore considered, ordered and adjudged by the court that the said Felix Blankenbaker, as punishment for the offense committed against the majesty of the law and the dignity of the court, be and he is hereby fined in the sum of one hundred ($100.00) dollars, and, in addition thereto, he is further ordered imprisoned for a period of thirty (30) days and that he be confined during said imprisonment, on the Indiana State Farm, as directed by law. To which sentence the defendant, Felix Blankenbaker, at the time excepts.
"And now the defendant moves the court for leave to file a certified [verified] answer, which answer is filed by the clerk of this court and is in the words and figures as follows, to wit:
"State of Indiana, County of Clay — ss:
"In the Clay Circuit Court, May Term, 1924.
"In the Matter of the Contempt Proceedings against Felix Blankenbaker.
"Felix Blankenbaker, after having been presented with a copy of the charges against him, and after having consulted attorneys, presents and files this as his answer to the charges against him.
"Felix Blankenbaker says that the motion for a new trial filed in the case of State of Indiana v. Edward Barber, *Page 150
contains, as he remembers and understands the facts, a correct statement, in so far as it goes, of the record and proceedings in said cause; that if there is any fact or circumstance set out in said motion which is incorrect in whole or in part, he will, upon the fact being pointed out, withdraw same and apologize to the court; that the matters and things set forth in said motion for a new trial do not, as the defendant understands it, constitute direct contempt, or contempt of any kind, and was not so intended."
This answer of defendant was filed June 27, 1924, and the record shows further as follows: "And the court having considered same and being sufficiently advised in the premises overruled the application as coming too late and because issues have already been closed by defendant's answer, and the application is a departure from proper practice, and the answer is insufficient and in itself constitutes contempt of court, to which ruling of the court, the defendant at the time excepts.
"And now defendant files a motion for a new trial as follows:
"State of Indiana, County of Clay — ss:
"In the Clay Circuit Court, May Term, 1924.
"In the Matter of Contempt Proceedings against Felix Blankenbaker.
"Comes now Felix Blankenbaker and moves the court to reconsider its opinion and judgment, in above cause, upon the facts and moves the court for a rescission of its judgment in this cause; and moves the court for a new trial in said cause for the reason, first, the decision of the court is not sustained by the evidence; second, the decision is contrary to law.
"And afterwards, to wit, at the court-house in said county, on Saturday June 28th, 1924, the following proceedings *Page 151
were had before the Hon. Thomas W. Hutchison, sole judge:
"Comes now the defendant by counsel, and the court overrules the defendant's motion for a new trial, to which ruling the defendant at the time excepts, and defendant now asks time to file bills of exceptions and ninety (90) days are given in which to file said bills of exceptions.
"And now the defendant prays an appeal of said cause to the Supreme Court of Indiana, which prayer is granted."
The defendant filed an appeal bond, which was approved, and execution of sentence stayed during the pendency of the appeal. On the 23rd day of August, 1924, the appellant tendered his bill of exceptions No. 1, which was approved and signed by the court and filed and made a part of the record. And on the same day he tendered his bill of exceptions No. 2, which was approved and signed by the court. The errors relied on for reversal are: The court erred in overruling appellant's motion for a new trial, and the court erred in refusing to rescind its judgment.
An examination of the record shows that the facts stated in this case as contempt of court do not show any direct contempt of court and there is no evidence or statement in the record showing why the making of a motion for a new trial was in contempt of court.
Every person who shall, by the commission of any felony, misdemeanor, or other unlawful act, or who by talking, moving about, or by signs or gestures, or in any other manner in any court of record, while the same is open for the transaction of business, and engaged therein, creates any noise or confusion therein, whereby the business and proceedings of said court shall be disturbed, shall be deemed to be guilty of a direct contempt of said court. § 1076 Burns 1926. *Page 152
Section 1082 Burns 1926 provides for trial for a direct contempt of court. This section provides that when a person shall be arraigned for direct contempt in any court of record of this state, no affidavit, charge in writing, or complaint shall be required to be filed against him, but the court shall distinctly state the act, words, signs or gestures, or other conduct, of the defendant which is alleged to constitute such contempt; and such statement shall be reduced to writing, either by the judge making it or by some reporter authorized by him to take it down when made; and the same shall be substantially set forth in the order of the court on the same, together with any statement made in explanation, extenuation or denial thereof, which the defendant may make in response thereto; and the court shall thereupon pronounce judgment, either acquitting and discharging the defendant or inflicting such punishment upon him as may be consistent with the provisions of this act; and if found guilty, the defendant shall have a right to except to the opinion and judgment of the court. And in all cases where the defendant may be adjudged to pay a fine of $50 or more, or to be imprisoned for such contempt, he shall have a right, either before or after the payment of such fine or undergoing such imprisonment, to move the court to reconsider its opinion and judgment of the case, upon the facts before it, or upon the affidavits of any or all persons who were actually present and heard or saw the conduct alleged to have constituted such contempt; and, if the defendant shall fail to present the affidavit of every person present, in support of his motion, the court may direct the affidavits of all such persons as were so present to be procured; and upon all such affidavits and the original statements of the court and himself touching such contempt, the defendant may move the court for a new trial and rescission of its judgment against him; and, if the court shall thereupon overrule such motion, *Page 153
the defendant may except and file a bill of exceptions, as in other criminal actions; and in all cases an appeal shall lie thereupon to the Supreme Court; or in case such judgment shall have been rendered in any special term of any superior court, an appeal shall lie in the first instance to the general term thereof, and thence, as in other cases, to the Supreme Court.
In cases of direct contempt, the Supreme Court will accept as true the statement entered of record by the lower court of the matter constituting the contempt. Holman v. State
1. (1886), 105 Ind. 513, 5 N.E. 556; Mahoney v. State
(1904), 33 Ind. App. 655, 72 N.E. 151, 104 Am. St. 276.
It will, therefore, be presumed that the statement filed in this case as provided by § 1082 Burns 1926, contains all of 2. the facts upon which the conviction for contempt was had.
In Ex parte Davies (1903), 73 Ark. 358, 84 S.W. 633, in discussing that subject, the court said: "When a judgment of that kind is entered against an offender, the statement in the record must be taken in a proceeding of this kind as absolutely true and we cannot interfere unless it clearly appears that the judgment is wrong. We therefore indulge the conclusive presumption that the learned chancellor recited in his judgment all of the facts constituting the alleged contempt of court, and, as the face of the judgment does not disclose any finding that the petitioner's manner in presenting his motion was discourteous or disrespectful to the court, or that the was guilty of any contemptuous conduct, unless the presentation of the motion be found, in itself, to constitute contempt, we presume that there was no objectionable conduct other than the mere filing of the motion." See, also,Tracy v. State (1906), 28 Ohio Cir. Ct. Rep. 453.
The record in this case shows no evidence that the *Page 154
appellant did any act that obstructed or interfered with the proceedings of the court, or in any manner violated the 3. provisions of § 1076 Burns 1926. The contempt charge against the appellant herein was based wholly upon certain reasons set out in a motion for a new trial, which had been filed in the court in a case pending therein 11 days prior to said time, which had not been stricken from the files at the time appellant was charged by the court with contempt. The court heard the argument on the motion for a new trial, and after the argument singled out the appellant from the counsel representing the defendant in that cause and charged him with doing certain acts which the court charged were a direct contempt. The record does not show that the appellant herein filed the motion for a new trial in the case of State v. Barber, Cause No. 669, the filing of which the court held to be in direct contempt of court. The record does not show that the appellant prepared and signed the motion for a new trial filed in the case of State v.Barber, Cause No. 669 of said court, containing certain reasons which the court held were a direct contempt of court.
Any attorney for any person charged with crime in any court after the finding of guilty, acting in good faith, has the legal right to prepare and set out any reasons for a new trial, 4. which he, as an attorney, believes prejudiced the defendant in the trial of the cause.
The only way in which the rights of a defendant who has been convicted in a trial can be preserved and the doings of the trial court passed upon by a court of review is by assigning such acts of the court as are desired to be reviewed as reasons in a motion for a new trial filed in the trial court. There is no evidence to show that any of the reasons contained in the motion for a new trial and which were objectionable to the judge contained any false, unlawful, malicious, impertinent, scandalous, insolent *Page 155
charges. And there was no evidence to show that the reasons set out in the motion for a new trial and which were objectionable to the judge would not inure to the benefit of the defendant.
This court takes judicial notice of its own records, and such records show that, in the matter of the trial of the State v. Barber, Cause No. 669 in the Clay Circuit Court, in an 5. original action in the Supreme Court, by the State, State, ex rel., v. Hutchison, Judge (1924), 197 Ind. 84,145 N.E. 923, praying the court to issue a mandate commanding and directing the said judge, Honorable Thomas W. Hutchison, sole judge of the Clay Circuit Court, and Charles E. Harris, clerk of the Clay Circuit Court, to cause to be entered in the order book of said circuit court all orders and rulings of the court not theretofore entered pertaining to all motions, petitions and papers filed in said court, and all exceptions taken to such rulings in the cause of the State of Indiana v. EdwardBarber, in which the relator was adjudged guilty of the crime of murder, except as to matters and rulings of the court made during the actual progress of the trial. The petitioner's exhibits were submitted to the chief justice of the Supreme Court of Indiana, who ordered that defendants be and appear before the Supreme Court of Indiana on the ____ day of October, 1924, and show cause why they should not be mandated to do and perform the matters and things mentioned in said petition; and on the return day of the order, the parties appeared and evidence was heard and the court, being advised in the matter, issued the mandate to the court as follows:
"Come now the parties and evidence is heard, and the court, being advised, now finds for the relator that he is entitled to relief as hereinafter set out. It is thereupon ADJUDGED, DECREED, AND COMMANDED that a peremptory WRIT OF MANDAMUS issue to the defendant, *Page 156
and that as judge of the Clay Circuit Court, of Clay County, State of Indiana, he be and hereby is directed, ordered and commanded forthwith to cause the records of said court relating to the proceedings in said court on the 5th day of May, 1924, in cause No. 669 of the causes then pending in said court, wherein the State of Indiana was plaintiff and the relator herein, Edward Barber, was defendant, to be so amended and corrected that said record shall be made to recite that, upon the overruling of the motion for a change of venue from the judge, as filed by said defendant, Barber, the said defendant, excepted to such ruling.
"And that forthwith he also, as judge of said Clay Circuit Court, shall cause the said record of the proceedings in said action in said court on the 15th day of July, 1924, to be so amended and corrected as to recite that one hundred and ninety (190) days from that date are allowed in which to present and file all bills of exceptions.
"And that forthwith he also, as such judge, shall certify and sign each of the bills of exceptions numbered one (1), two (2), three (3), four (4), and five (5) respectively, as prepared and presented to him by the attorneys for said defendant, and shall cause the same to be filed with the clerk of said Clay Circuit Court.
"And that forthwith he also, as such judge, shall certify and sign a bill of exceptions containing the evidence introduced, and also that which was offered and excluded at the trial of said action, noting that exceptions were taken wherever the official reporter's notes show that to be the fact, and shall cause to be set out therein, as part of the evidence given, copies of all exhibits introduced in evidence, and, as part of the evidence excluded, copies of all exhibits offered to be introduced in evidence and excluded, together with a recital of what was said by the attorneys in making offers *Page 157
and objections, and by the court in ruling thereon, as taken down at the time by the official reporter.
"And that forthwith, he also, as such judge, shall cause to be entered of record in the order-books of his court entries reciting the action of the court as the same occurred on each day that said cause was pending therein.
"And that he cause the clerk of said court to make out and certify a transcript of said record for an appeal to the Supreme Court of Indiana, which it is hereby commanded the said clerk shall do without delay.
"And that, as such judge, he receive and act upon the petition of said defendant for leave to appeal to the Supreme Court as a poor person," etc.
It further appears from the records of this court that an appeal was taken in the case of State of Indiana v. EdwardBarber, Cause No. 669 in the Clay Circuit Court, and the bill of exceptions as ordered by the mandate of this court was filed.
The record discloses that the judge of the Clay Circuit Court found appellant guilty of direct contempt of court on the 27th day of June, 1924. The appellant had been counsel for the defense in a murder case, State of Indiana v. Edward Barber, Cause No. 669 of the Clay Circuit Court, and said Barber had been sentenced to death. The record shows that appellant, together with other counsel, filed a motion for a new trial on behalf of said Barber, that the motion for a new trial was argued before the judge of the Clay Circuit Court, June 27, 1924, and that the appellant had been present in the court room but had not participated in the argument. The filing of the motion for a new trial in the Barber case was necessary to protect the rights of the defendant in that case, and it may be noted that, after the judge of the Clay Circuit Court had been required to sign a bill of exceptions showing the facts necessary to be shown to present the alleged errors of the trial court, such bill of exceptions *Page 158
was filed in the trial court, and, on appeal, this court reversed the judgment in said case of Barber v. State, and gave as a reason for such reversal that the trial court erred in overruling such motion for a new trial. Barber v. State (1925),197 Ind. 88, 149 N.E. 896.
The statement filed by the judge under the provisions of § 1082 Burns 1926 recites the facts constituting the alleged contempt of court, and from such statement it appears that the 6. appellant in this case was charged with being in contempt of court because he joined in the filing of the motion for a new trial, as alleged in said statement of facts, but it does not disclose that the appellant was discourteous or disrespectful to the court or that he was guilty of any contemptuous conduct in his actions and manners at the time. It will therefore be presumed that there was no objectionable conduct by defendant at the time of the filing of the motion.
Members of the bar cannot be punished for contempt for presenting a motion for a new trial when they act in good faith and in the interest of their clients, and the filing of the motion is necessary to protect the rights of their clients in the cause. It was therefore not contempt of court to file the motion.
When there is no legal evidence to sustain a conviction for contempt, the conviction is contrary to law. In re Watts
7. (1903), 190 U.S. 1, 23 Sup. Ct. 718, 47 L.Ed. 933.
The judgment is reversed, with directions to the judge to rescind said judgment and discharge the defendant. *Page 159 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428915/ | These are separate actions by the appellees against the appellant for damages because of injuries incurred in an automobile accident. The plaintiffs were guests of the appellant's decedent, and the action is controlled by § 47-1021, Burns' 1940 Replacement, § 11265, Baldwin's Supp. 1937, known as the "guest statute." Recovery against the estate is authorized by § 2-403, Burns' 1933 (Supp.), § 50, Baldwin's Supp. 1937, Acts 1937, p. 1341, which provides for the survival of the action for personal injuries and limits recovery to an amount not exceeding reasonable medical, hospital, or funeral expenses, and the sum of $1,000.
There is but little conflict in the evidence. From that most favorable to the appellees, it appears that Mr. Ridgway, who was about 65 years of age, met the appellees and another woman, all of whom were employees of a restaurant in the City of Fort Wayne, at a basketball game. Mr. Ridgway was a customer of the restaurant and well acquainted with the employees, although he had had no relations with them except in his capacity as a customer and theirs as employees of the restaurant. At the end of the basketball *Page 20
game, which was at approximately 11 o'clock p.m., Mr. Ridgway invited the three restaurant employees to go with him in his car to a restaurant at the edge of the City of Fort Wayne to meet some friends of his, agreeing to return them to the place of their employment. They accepted his invitation, entered his car, and started on the journey. Miss Yenny occupied the front seat with Mr. Ridgway. The other two were in the rear seat. It was a bad night, rain and hail had fallen in the early evening and turned to sleet and then to snow. The streets and highways were slick and covered with sleet and snow. There was a wind blowing and a steady drop in the temperature. The car passed several other cars traveling in the same direction before reaching the city limits, and upon turning onto Maumee Avenue he almost collided with a car parked at the curb. All of the guests cautioned Mr. Ridgway about his driving, suggesting that it was a bad night and he should drive slowly and keep in his driving lane. None of the guests had ever ridden with Mr. Ridgway before, and none of them knew the location of the restaurant to which they were going. All were unfamiliar with the streets over which they traveled and with State Highway 30 on which they traveled outside the city limits. Mr. Ridgway increased his speed upon leaving the city limits and began to drive in and out of the three lanes of traffic on the highway. The car skidded once or twice, and they again asked him to slow down and to be careful and watch other cars. Frequently he headed diagonally across the road, and Miss Yenny grabbed the steering wheel on one occasion and straightened the car. He then stopped the car, with the right wheels on the berm and the left wheels on the pavement, and while thus stopped the guests remonstrated with him about his *Page 21
speed and manner of driving. He started the car again and drove faster than before, again driving in and out of the three lanes of traffic. The guests again protested and cautioned him about oncoming cars and his speed and the danger of skidding on the icy pavement. He again headed the car off the road, and at the suggestion of one of the guests in the back seat, Miss Yenny straightened out the car as he stopped it. Ice and sleet had now formed on the windshield and the windows had become cloudy. Mr. Lombardo got out and endeavored to clean the windshield, but was not successful, and it was suggested that they leave the car and go to a place where they thought they saw some lights and call a cab. Miss Salyers suggested that Mr. Lombardo drive, but he said he did not have an Indiana driver's license. All of them told Mr. Ridgway that he had no right to jeopardize their lives and that they wanted to leave the car and call a cab. Mr. Ridgway did not agree. He said that it was no use to walk over where the lights were as no one was there. He told Mr. Lombardo to get in the car, that he did not want any back-seat driving, and that he could take care of the car himself, that there was only a little way to go and he would get them there safely. While the guests were yet protesting he put the car in motion and was gone. He began to drive even faster in and out of the lanes of traffic. He passed a "slow" sign and the guests called his attention to it. He paid no heed and increased his speed. After passing the crest of the hill his speed was again accelerated by the down grade. As they came to a left curve he drove far to the left of the lane for oncoming cars and almost sideswiped a truck. After passing this truck at between 35 and 40 miles an hour, the car continued in the lane of traffic and collided head-on *Page 22
with a heavy tractor and semi-trailer. Mr. Ridgway was killed and the guests seriously injured in the collision.
The actions are based upon a charge of wanton and wilful misconduct on the part of the driver.
Error is assigned upon the overruling of the motions for a new trial, which question the sufficiency of the evidence.
Under proper instructions the jury concluded that the driver was guilty of wanton and wilful misconduct, and it cannot be said that the evidence is insufficient to support that 1. conclusion. Bedwell v. DeBolt (1943), 221 Ind. 600, 50 N.E.2d 875.
It is contended that the evidence discloses that the guests assumed the risk, or, as it is sometimes said, incurred the risk. In so far as the facts at bar require, the doctrine 2-5. referred to may be stated as follows: "One who knows of a danger arising from the act or omission of another and understands the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure." White, etc. v. McVicker (1933), 216 Iowa 90, 93, 246 N.W. 385, 386; Pierce v. Clemens (1943),113 Ind. App. 65, 46 N.E.2d 836; Edwards, Admr. v. Kirk (1939),227 Iowa 684, 288 N.W. 875. The incurring of the risk must be really voluntary. If the continued exposure to a known risk of injury is due to a lack of reasonable opportunity to escape after the danger is appreciated, or if continuance of exposure to the danger is the result of influence, circumstances, or surroundings, which are a real inducement to continue, the doctrine does not apply, since the exposure is not in a true sense voluntary. Edwards v. Kirk, supra, and cases cited. The *Page 23
burden of establishing the assumption of the risk is upon the defendant. There is no controversy concerning these principles, but much contention as to their proper application to the facts. But we think that the question was properly submitted to the jury and that the decision of the jury must stand. If it be assumed that the guests had knowledge that the danger would continue, there is still to be considered the question of whether there was a reasonable opportunity to abandon the journey and avoid the dangers; whether reasonable minds might differ upon the advisability of taking the risk involved rather than be subjected to other, perhaps equal or greater, dangers.
Continuing to ride as a guest in a deep and dangerous fog, the continuance of which must be anticipated, or in a defective car, such as one without lights, after a reasonable opportunity 6. to abandon the journey, or to continue to ride with an obviously drunken driver, have been suggested in the decisions as sufficient to charge the guest with having assumed or incurred the risk involved in the venture. Under such circumstances it can be reasonably assumed that the risks will continue unabated. There are cases, however, in which it need not be assumed that the risk will continue. When protests against driving at an excessive rate of speed under dangerous conditions result in stopping the car and indications of a willingness to drive more carefully, it cannot be said that the guest must anticipate a resumption of the dangerous driving.
Here the parties were in an unfamiliar neighborhood, where they were informed there was no opportunity to acquire other transportation. The weather was most inclement, they 7, 8. were a considerable distance from familiar surroundings, *Page 24
and it may be assumed that conditions made it dangerous to attempt to proceed on foot. The temperature had been falling steadily, and all of the guests were clothed in their ordinary garments, which were not adequate to protect them from exposure to the weather. These are facts which the jury might, and probably did, give consideration. If there had been opportunity to abandon the journey at some point which provided shelter and an opportunity to procure another conveyance to the city, the jury might have concluded that the guests had assumed or incurred the risk by continuing. But such is not the case. They were not required to abandon the journey because of the danger that the driver would not heed their admonitions to proceed more carefully, when it involved exposure to other and perhaps greater risks. There may be cases in which it can be said as a matter of law that a guest, with full appreciation of the dangers involved, has voluntarily and willingly taken the risk because of refusal to take advantage of a reasonable and safe opportunity to abandon the journey. But if reasonable men might disagree upon the question, it must be left to the determination of the jury.
The surgeon who attend Miss Yenny testified as to the care of her injuries and her treatment. His diagnosis was made in part with the aid of X-ray pictures made under his direction. 9. Objection was made to his testimony upon the ground that the X-ray pictures were not in court; that they were the best evidence of what they disclosed, and that they were not available for use in cross-examination. The overruling of this objection is assigned as error, but we find it unnecessary to consider the merits of the question. It is clear beyond controversy that she was hospitalized for approximately six months, that she *Page 25
was unable to work for a year, that lacerations upon her face and eyelid required plastic surgery so that the eyelid would function, that she was unconscious for a week after the accident, that she suffered greatly while in the hospital, and at the time of the trial was still suffering from dizziness and headaches, and the doctor testified that these pains would continue for perhaps a long time. Two ribs were fractured and the ends displaced. There were two other fractures. The undisputed evidence shows that she was most seriously injured, and that no examination of the X-ray pictures, or cross-examination based upon them, could conceivably have reduced the jury's impression of her sufferings and injuries to such an extent as to have justified a verdict for less than the $1,000.00 to which recovery was limited by the statute. If there was error in this respect, the defendant was not prejudiced thereby. Eckart v. Ft. Wayne,etc., Traction Co. (1914), 181 Ind. 352, 104 N.E. 762.
Error is assigned upon the giving of a mandatory instruction which the appellant contends "entirely omitted the element or issue of contributory acts of wanton or wilful 10, 11. misconduct on her own part." But there is no evidence of any wanton or wilful misconduct on the part of Miss Yenny, and the jury would not have been justified in denying her recovery upon that ground. The appellant asserts that the driver "had been subjected by his guests to an almost continuous round of that annoying, irritating and dangerous practice known as `back-seat driving' advice, warnings, protests, exclamations and even some screams; and that on two occasions, at least, after reaching the highway . . . the appellee herself" grabbed the wheel. On the occasions when Miss Yenny grabbed the wheel, it resulted not in injury, but in bringing *Page 26
the car to the edge of the road and stopping it at a place of safety. The warnings of danger and supplications to desist from reckless driving methods were not wanton or wilful misconduct. They did not contribute to the injury, but rather a failure to heed these warnings brought about the injury. Assuming that the question of contributory wanton and wilful misconduct on the part of the plaintiff was in issue under the pleadings as a defense, the burden of establishing it was upon the defendant. There was no evidence tending to establish such a defense, and a peremptory instruction upon the subject would have been proper.
The judgment in No. 28,042 provides that it shall bear interest at the rate of 6 per cent per annum. The appellant sought to have it modified upon the theory that the only authority for 12. the allowance of interest on a claim against an estate is contained in § 6-1016, Burns' 1933, § 3134, Baldwin's 1934, which provides for interest upon the allowing of a claim, "if allowed by the provisions of this act." The provision referred to is part of the general law providing for the filing of claims against estates, and applies therefore to any claims filed under that statute. The survival statute, § 2-403, Burns' 1933 (Supp.), § 50, Baldwin's Supp. 1937, supra, provides that "in event the action be brought subsequent to the death of the party against whom the cause existed, then the same shall be prosecuted as other claims against said decedent's estate." It was clearly the legislative intention that the procedure and rules governing actions and judgments in the case of claims generally against estates should apply.
We find no error.
Judgments affirmed.
Note. — Reported in 57 N.E.2d 581. *Page 27 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428916/ | This action was instituted by the appellee to recover on an oral contract of insurance alleged to have been effected between Ida Thiel, wife of the appellee, and the appellant in which contract of insurance the appellee was named beneficiary. *Page 77
The original complaint was in six paragraphs. Subsequently all were dismissed except the third and the sixth, to each of which, answers in general denial were addressed.
The case was submitted to a jury for trial which returned a verdict for the appellee in the sum of $2488.71. The court rendered judgment on this verdict, a motion for new trial was filed and overruled, and this appeal has been perfected. The assignment of errors contains four specifications but only two of these are discussed by the appellant in his brief and relied upon as grounds for reversal.
This appeal presents the legal question as to whether or not a life insurance agent engaged in selling life insurance is a general agent in the sense that he has authority to conduct all the business of the company he represents, so that his actual authority need not be proven.
The evidence discloses that the appellee for some time prior to January 2, 1932, was a farmer living with his wife, Ida Thiel, in Vanderburgh County, Indiana. That Victor C. Besing was a life insurance agent who at that time was selling life insurance for the State Life Insurance Company, the appellant herein. He resided about six miles from the home of the appellee and in Gibson County. Mr. Besing had talked to the appellee and his wife three or four times about purchasing insurance and these negotiations eventually resulted in the signing of applications for contracts of insurance by both the appellee and his wife.
The application signed by Ida Thiel contained, among others, the following statement:
"It is hereby agreed that all the foregoing statements and also those I make to the Company's Medical Examiner, which are hereby *Page 78
made a part of this application, are offered to the Company as a consideration for the policy applied for, which policy I agree to accept, if issued as applied for, but the same shall not take effect until this application, which I agree to complete by submitting to a medical examination, has been accepted by the Company, at the Home Office in Indianapolis, Indiana, and the first premium shall have been paid to and accepted by the Company, or an authorized agent, during my life and good health; provided, that if the premium on the policy herein applied for shall be paid by me at the time of making this application, the insurance shall be in force from the date of the acceptance of this application by the Company's Medical Department at the Home Office."
In addition to this paragraph the following statement also appears in the application:
"I hereby declare that the following settlement has been made and receipt No. 447808 for same has been furnished me to make the insurance herein applied for effective from the date of approval by the Company's Medical Department at the Home Office."
The record of the case discloses that this application was signed by Ida Thiel on the 2nd day of January, 1932, and on that day she gave the agent, Victor C. Besing, her note in the sum of $51.80, this sum being the amount of the first annual premium, and took from him their receipt No. 447808 which reads as follows:
"No. 447808 $2000 Policy 1932
"The State Life Insurance Company, Indianapolis
"The Agent has no authority to collect for more than the first year's premium. All subsequent premiums must be paid at the Home Office, Indianapolis. *Page 79
"Received of ___________________ $51.80 Dollars _______________ in full for the first ______________ annual premium on $2000 insurance.
"The Insurance will be in force from the date of approval of the application by the Company's Medical Department at the Home Office. In case the Policy shall not be issued the money paid will be refunded; provided, a completed application for such insurance is made and submitted to the company, at its Home Office, and that the applicant, if he shall not receive his policy within thirty days from date hereof, shall notify the Company.
"Not valid unless countersigned by
Albert C. Zahm, Secretary.
V.C. Besing, Agent."
The appellee offered evidence tending to prove that at the time this application was signed and the premium paid, Mr. Besing stated to the applicant that she was insured from the date of the application if she passed the medical examination. The evidence further discloses that the said Ida Thiel was examined by the company physician on the same day and the doctor reported that she passed the physical examination. The evidence further discloses that she died on January 9, 1932, and before the application was approved by the company at the home office. The question presented, therefore, is whether or not the appellant is bound by the statement made by their agent who solicited the insurance to the effect that the applicant was protected from the date she passed the physical examination.
This issue, whether there was an existing oral contract of insurance, depends for its solution upon whether Victor C. Besing had authority to enter into contracts for interim insurance on appellant's behalf.
The record discloses that Victor C. Besing was *Page 80
engaged in soliciting applications for insurance for the appellant company; that he selected doctors to examine applicants physically who made reports on the regular printed forms furnished by the appellant. That he delivered the policies when they were written; that he collected the first premiums due on policies and looked after the renewals.
The appellee contends that under this evidence the question of the authority of Besing to bind the appellant as a general agent was a question of fact for the jury.
The appellant contends, however, that there was no evidence offered from which the jury could lawfully find that a general agency existed or that the said Besing had ostensible authority to bind the appellant on an oral contract of insurance; that the court accordingly erred in overruling the appellant's motion for a directed verdict. This is the first of the alleged errors relied upon by the appellant for reversal.
Whatever was said by Besing to the deceased Ida Thiel at the time of the taking of her application which might tend to create an oral contract of insurance, the appellee had the burden to offer some proof as to the authority of the agent Besing to make such contract. The second assignment of error relied upon for reversal challenges the sufficiency of the evidence on this issue.
The burden of proving the authority of agents to enter into oral contracts of insurance is a question that has been frequently before the courts.
In the case of Mutual Benefit Health and Accident Assn. v.Edwards (1935), 174 Oklahoma 210, 50 P.2d 144, the plaintiff made application for insurance in which applicant agreed that the application should not become binding on the association until *Page 81
accepted by the association nor until the policy is accepted by the insured while in good health and free from injury. The plaintiff contended that the insurance company through its agent Wells had entered into an oral contract of insurance and that the defendant was bound from the date of the application. In discussing the sufficiency of the evidence and the burden of proof in this case, the court said (p. 212):
"The burden of showing the power and authority of the agent, and the nature and extent of his agency, was upon the plaintiff. He has not discharged it. This general rule is stated in Wood on Insurance thus (section 17): `The burden is upon the person seeking to enforce a parol contract of insurance to establish, not only the making of a contract, but also the authority of the agent to make it, and, if any waiver is relied upon, both the waiver and the authority of the agent to make it . . .' The general rule stated in 16 A. E. Ency. Law (2nd Ed.) 915, regarding the power of soliciting agents, seems to be supported by the current of decisions. It is: `A soliciting agent, who is authorized to receive applications for insurance and to transmit them to the company for its approval, but who has no authority to pass on risks or to make contracts of insurance, cannot bind the company by an oral agreement for. . . . or consent to additional insurance. . . .'"
Again in the case of Sommerio v. Prudential Ins. Co. ofAmerica (1937), 289 Ill. App. 520, 7 N.E.2d 631, 633, the agent Ditore took from Sommerio an application for insurance and gave him a receipt which provided that on payment of the initial premium, the insurance should take effect from the date of application "provided said application is approved and accepted at the home office of the company in Newark, N.J.". The evidence disclosed that at the time the *Page 82
application was signed and the premium was paid, Ditore assured the appellant that the policy would be effective as of that date. In passing upon the authority of Ditore to waive the provisions of the receipt and to bind the company by an oral contract, the court said (p. 524):
". . . It is argued that Ditore had authority to take applications, collect the premiums, forward the applications to the home office, and deliver the policies when issued, and that this constituted him a general agent. It is known from common experience that all solicitors of insurance, no matter how limited their authority may be, are authorized to accept an application and the payment of the initial premium, and to forward same to the proper office, and, when the policy is issued, to deliver it to insured, but this does not constitute them general agents if their authority is in fact otherwise limited, and in order to show that a solicitor has broader powers, or the powers of a great agent, it is incumbent upon the party so contending to show, by competent evidence, other than the testimony of the agent himself, the specific authority claimed."
In the case of Patterson v. Prudential Ins. Co. of America
(1930), (Mo. App.), 23 S.W.2d 198, the application signed contained the statement that the policy should be in force from the date of the application "provided this application is approved and accepted at the home office of the company in Newark, N.J." The agent who took the application assured the applicant that the applicant would be insured from that date on. In discussing the oral contract contended for in this case and the authority of the agent to make the same, the court said (p. 201):
"We know of no exception in this state to the rule that evidence of an insurance agent's power to take applications for insurance, collect the *Page 83
premiums, forward the applications to the company for its acceptance or rejection, and deliver the policies when issued to the applicants, does not show authority on the part of such agent to make contracts of insurance. . . . . .
"There is no doubt about the general rule of law upon which counsel relies, namely, that an insurance agent possesses such powers as either have been expressly conferred upon him by the company, or as third persons have the right to assume that he possesses under the circumstances of the case; and that the company will be bound by all his acts, contracts, and representations which are within the scope, either of his real, or of his apparent, authority, notwithstanding that they may be in violation of private limitations upon his power of which the person dealing with him in good faith has neither actual nor constructive knowledge. Shelby
v. Connecticut Fire Ins. Co., 218 Mo. App. 84, 262 S.W. 686; Shook v. Retail Hardware Mutual Fire Ins. Co., 154 Mo. App. 394, 134 S.W. 589; Beswick
v. National Casualty Co., supra; Van Cleave v. Union Casualty Surety Co., 82 Mo. App. 668.
"The ultimate question in this instance, therefore, is whether there was a substantial showing of anything from which plaintiff, acting as an ordinarily prudent person, might have had the right to assume that Fritz had the apparent authority to bind the company by the agreement for preliminary or temporary insurance which she claims was made. Nothing of such nature is pointed out or relied upon by her counsel save the receipt which the agent gave, containing the provision for an immediate death benefit which conformed in a measure to her idea of the contract; and consequently it is upon the legal effect to be ascribed to the giving of such receipt that our final conclusion in the case must depend."
The court held that there was nothing in the receipt showing authority of the agent to bind the company on an oral contract of insurance. Such being *Page 84
true, the court held that the "plaintiff had no right to rely upon the agent's apparent authority and there is no claim of proof of express authority."
In the case of West v. Metropolitan Life Ins. Co. (1936),144 Kan. 444, 61 P.2d 918, the application for insurance stated that "the company shall incur no liability under this application until it has been received, approved, and the policy issued and delivered and full first premium stipulated in the policy has actually been paid to and accepted by the company during the lifetime of the applicant. . . ." The agents who solicited this application promised the applicant that the insurance would be in force as soon as the doctor examined him and passed upon his application. The agents' names were Bybee and Lucas. In the state of Kansas the statute required all insurance agents to be authorized in writing before any business was transacted for their company. In discussing the sufficiency of the evidence to show authority on the part of the agent to bind the company by oral contract the court said (p. 449):
". . . . When the plaintiff offered her proof, she made no attempt to procure and show this authority in writing as part of her proof. On the question of sufficiency of proof, we must hold there was a failure to prove that either Bybee or Lucas were any but insurance agents, as distinguished from general agents, and were only what is usually called soliciting agents.
"We next pass to the question as to whether, in making the claimed statements as to when the applied for insurance was effective, including therein the claimed waiver of payment of premium, Bybee and Lucas were acting within their authority or apparent scope of it. This needs no extended discussion, for under the statute mentioned above, their authority had to be in writing. It was capable of definite ascertainment, West was presumed to know the law, and knowing *Page 85
it, he knew that neither agent had the power to make a contract of insurance binding on the company unless one of them was specifically authorized so to do. It can be seen that under the statute, there can be no act within the apparent scope of authority; either the agent is authorized or he is not, at least so far as the question before us is concerned."
In the case of Ivie v. International Life Ins. Co. (1928), 217 Alabama 559, 117 So. 176, the insured applied to the company for life insurance and the application provided that if the premium be paid in full in cash with the application, such insurance if issued should be in force from the date of the unconditional approval of the completed application by the company's medical director. Upon the payment of such premium, the insured was given a receipt which stated that "if full cash settlement has been made with the application and if insurance is issued as applied for, such insurance shall be in force from the date of unconditional approval of the completed application by the company's medical director." The applicant died four days after signing the application and before the same had been approved. The claimant sought to rely upon an oral promise of an authorized agent to the effect that the insured would thereafter be protected from the date of the payment of the premium. In passing upon this contention, the Supreme Court of Alabama said (p. 560):
"In Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175, it was held, with citation of numerous authorities, that, in the absence of statute law to the contrary, an agent, duly authorized to bind the insurer by the delivery of contracts of insurance, may make such contracts by parol. But where the application enters into a definite agreement that the insurance applied for shall not be in effect until the policy is delivered, *Page 86
that such insurance shall be in force from the date of the unconditional approval of the application by the insurer's medical director, and that, if the premium be paid with the application, such payment is made subject to the conditions stated in a receipt which refers to and adopts the conditions stated in the application, the insurance becomes effective only when the conditions have been fulfilled . . . In that case the alleged parol agreement is in contradiction of the terms of the application, and the receipt and did not affect them."
It will be seen from the above authorities and it is our opinion that the burden is on the party seeking to enforce such a parol contract of insurance to prove authority on the part 1. of the agent to enter into such agreement.
The appellee insists that he has discharged this burden by showing that Besing was the only agent of the appellant in his county and he accordingly acted for the appellant in all 2. matters as general agent. In support of this statement he invokes the rule that a general agent is one who is authorized to transact all the business of his principal or all his business of some particular kind at some particular place. In support of this proposition he cites many cases. We have read the cases cited but in none of them do we find facts analagous to the case at bar.
In many of the cases relied on by the appellee the agent was possessed with broad general powers either as a managing agent or as one having the general conduct of the business of his principal, as in Manning and others v. Gasharie and others
(1866), 27 Ind. 399; or with general authority to enter into contracts of insurance, as in the case of Commercial UnionAssurance Co. v. The State ex rel. Smith et al. (1888),113 Ind. 31, 15 N.E. 518. In other cases the principal *Page 87
had clothed the agent with apparently broad powers designating him as "superintendent", as in Public Savings Ins. Co. v.Manning (1916), 61 Ind. App. 239, 111 N.E. 945; Western andSouthern Life Ins. Co. v. Vale (1938), 213 Ind. 601, 12 N.E.2d 350; Indiana Fibre Products Co. v. Cyclone Mfg. Co.
(1924), 81 Ind. App. 682, 143 N.E. 169, or as "resident vice principal"; Cleveland, etc. R. Co. v. Moore (1908),170 Ind. 328, 82 N.E. 52, 84 N.E. 540.
In none of the cases cited by the appellee do we find authority for holding that a local agent for a life insurance company who engages in soliciting applications for insurance is held to have authority to bind his principal by an oral contract of insurance. The case of Rankin v. Northern Assurance Co. (1915),98 Neb. 172 152 N.W. 324, relied upon by the appellee involves an interpretation of a "binding receipt" which formed the basis of the contract between the parties. The authority of the local agent to bind the company is not discussed except to state that the agent was acting within the ostensible scope of his authority.
The record in this case contains no facts upon which the appellee could rely as disclosing either actual or apparent authority on the part of Besing to enter into an oral 3. contract of insurance on the part of the appellant. The evidence discloses that if such a procedure had ever been attempted before by any agent, the company had no knowledge that such promises were being made. Before there can be ostensible authority possessed by an agent sufficient to bind his principal there must be an appearance of authority caused by the principal, and the agent must have acted within the scope of such authority. (McCaskey Register Company v. Curfman (1910),45 Ind. App. 297, 90 N.E. 323, Indiana Fibre Products Company v. CycloneMfg. Co., supra. *Page 88
In the case at bar, the deceased Ida Thiel knew the agent Besing as an insurance agent engaged in selling insurance contracts in the community. She was presumed to know that under our law his authority to represent the appellant company 4. was required to be in writing. Sec. 39-1001 Burns Ind. Statute 1933, § 9558 Baldwin's 1934; § 39-4601 Burns Ind. Statutes, 1933, Pocket Supplements, § 9508-1 Baldwin's Supp.
She signed an application on a printed form furnished by the appellant company in which she agreed that the insurance applied for "shall be in force from the date of the acceptance of this application by the company's medical department at the home office." She was given a receipt which stated that "The insurance will be in force from the date of the approval of the application by the company's medical department at the home office."
These facts are sufficient, in our opinion, to give notice to the applicant that the local agent was without authority to contract that the insurance applied for should be effective 5. at once. West v. Metropolitan Ins. Co., supra; King et al. v. Mutual Life Ins. Co. (1937), (Mo.), 105 S.W. (2) 994; Patterson v. Prudential Ins. Co., supra; Newton v.The Gulf Ins. Co. (1937), 55 Ga. App. 330, 190 S.E. 69;Mulhbach v. Omaha Life Ins. Co. of Omaha (1921), (Neb.), 185 N.W. 447; Field v. Missouri State Life Insurance Company
(1930), 77 Utah 45, 290 P. 979; Encyclopedia of Insurance Law, Couch, Vol. 2, Sec. 521; Hartline v. Mutual Benefit Health Accident Assn. (1938), 96 F.2d 174.
It is our opinion therefore that the evidence in this case discloses only such authority vested in Besing as would render him a special agent for the appellant company authorized to 6. solicit applications *Page 89
for insurance contracts, and under the authority of Cruzan v.Smith, et al., supra, "the principal is not bound by the acts of a special agent, if he exceeds the limits of his authority. And it is the duty of every person who deals with a special agent to ascertain the extent of the agent's authority before dealing with him. If this is neglected, such person will deal at his peril, and the principal will not be bound by any act which exceeds the particular authority given."
The court was accordingly in error in submitting the case to the jury and in not instructing a verdict for the appellant.
Substantially the same questions are again presented in the appellant's motion for new trial, and the overruling of this motion is assigned as error. Here again the sufficiency of the evidence to show authority to bind the appellant company is challenged. We hold that there was no evidence from which the jury could have reasonably inferred the existence of such authority on the part of the agent Besing.
We are not unmindful of the decision of our Supreme Court in the case of Western and Southern Life Insurance Co. v. Vale,
supra. While this case recognizes the validity of parol contracts of insurance yet the question of the authority of the district superintendent of the Western and Southern Life Ins. Co. to make such contract was not in question and the receipt given at the time the application was signed and the premium paid provided that the insurance, if and as issued, should commence as of the date of the application. Neither of these elements is present in the case at bar.
There are many other questions raised in the motion for new trial with respect to the admissibility of evidence. But since these may not arise upon a retrial *Page 90
of this case, we accordingly refrain from discussing them.
Judgment is reversed with instructions to the trial court to sustain the appellant's motion for new trial and for further proceedings not inconsistent with this opinion.
Judgment reversed. | 01-03-2023 | 07-05-2016 |
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