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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 |
https://www.courtlistener.com/api/rest/v3/opinions/3428920/ | Appellant was charged by affidavit with assault with intent to kill and murder, and was found guilty by the verdict of the jury of assault and battery. He seeks to reverse the judgment which followed the verdict for the alleged errors of the court: (1) In failing to pass upon the answer in abatement; (2) in overruling the motion to quash the affidavit; (3) in overruling the motion for a new trial.
The affidavit which charged the offense was filed in the Martin Circuit Court November 1, 1921, upon which day appellant appeared in open court, was arraigned, and pleaded not guilty, and executed bond for his appearance. Thereafter on January 5, 1922, appellant filed a motion to quash the affidavit, which motion was overruled by the court. Thereafter, the transcript discloses by way of recital of the file mark thereon, appellant filed his plea in abatement, which, according to the file mark of the clerk of the court, showed that it was filed January 5, 1922, after which time, to wit, April 4, 1922, upon the affidavit of appellant, the venue was changed to the Daviess Circuit Court, and trial had on September 19, 1922.
It will be noted that appellant did not present his plea in abatement until after he had been arraigned and entered *Page 301
his plea thereon, and filed a bond for his appearance. 1. There was no order of the trial court, neither does the transcript show either the time or the filing of such plea in abatement by appellant, but granting that the filing were regular, it is too late to file a plea in abatement raising the question of jurisdiction over the person after a full appearance to the action. Eel River R. Co. v. State, ex rel. (1900),155 Ind. 433.
Whereupon it would follow that appellant is in no position to complain, because his answer in abatement was not ruled upon by the court. Furthermore, neither appellant's brief nor the 2. transcript shows but that the appellant waived any action by the court upon his answer in abatement or the demurrer thereto, for the reason that he proceeded with the trial without calling the matter to the attention of the court or making any objection to proceeding with the trial before such answer in abatement and the demurrer thereto were ruled upon.
Appellant, by his argument in his brief under his points and authorities, insists that his motion to quash the affidavit ought to have been sustained and that the overruling of the same 3. was error. Appellant's brief fails to set forth his motion to quash or to refer to the page in the transcript where the same may be found. Upon searching the record it is found that the motion is not therein. The motion to quash will not be considered upon appeal if it is not set out in the brief or a reference made thereto in the record. Neither will it be considered, although the overruling of the same is assigned as an error, if such motion is not set forth in the record.
Appellant's motion for a new trial was based upon the insufficiency of the evidence to sustain the verdict, *Page 302
and that the verdict was contrary to law, and for alleged 4. errors in permitting witnesses to testify over the objection of the defendant. Before the error predicated upon the overruling of the motion for a new trial can be considered, it is necessary that the transcript of the evidence be made a part of the record by a proper bill of exceptions. Appellee maintains that the evidence is not brought into the record for the reason that no time was given for the filing of bills of exceptions. The transcript of the evidence itself discloses that although the trial judge signed and approved the purported bill of exceptions containing the evidence at a term of court subsequent to the term at which the trial was had, and that the same was thereupon filed with the clerk, no application was made by appellant for time within which to tender a bill of exceptions. A bill of exceptions cannot be brought into the record at a term of court subsequent to the term at which the trial was had, except upon permission therefor given by the court at or before the time of its ruling upon the motion for a new trial. There being no order of the court, as shown by the record, that time was given beyond the term at which the trial was had, to file a bill of exceptions of the evidence, such purported bill of exceptions is not a part of the record, even though it recites that it was presented to and signed by the judge within a time allowed as therein set forth. Taylor v. State (1921),191 Ind. 200, 132 N.E. 294; Pierson v. State (1921),191 Ind. 206, 131 N.E. 397; Flannigan v. State (1922), 192 Ind. 662, 137 N.E. 179.
No errors are presented by the record, wherefore the judgment of the trial court ought to be affirmed.
Judgment affirmed. *Page 303 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3211258/ | 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
A14-1772
State of Minnesota,
Respondent,
vs.
Jermaine Sylvester Watkins,
Appellant.
Filed March 28, 2016
Affirmed
Reilly, Judge
Hennepin County District Court
File No. 27-CR-13-16209
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
J. Anthony Torres, Minneapolis, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
REILLY, Judge
On appeal from his convictions of aggravated robbery and kidnapping, appellant
argues (1) the district court erred when it allowed the state to introduce the complainant’s
prior hearsay statement as substantive evidence; (2) he was denied his right to confrontation
when the court denied his motion to impeach the state’s primary witness with his numerous
felony convictions; and (3) he is entitled to a new trial because the prosecution suppressed
favorable evidence. We affirm.
FACTS
In May 2013 complainant J.T. ran into his friend Pierre Cooley at a gas station in
North Minneapolis. Cooley invited J.T. to his house to “hang out.” When J.T. arrived at
the house he was “bum rushed” by Cooley and two other men. J.T. identified one of the
men as his friend appellant Jermaine Watkins.1 The men brought J.T. to the basement of
the home and tied him to a folding chair with cords and duct tape. They stole his wallet, a
piece of jewelry, his cell phone, a pair of Louis Vuitton tennis shoes, and $5,000. Appellant
made J.T. call his parents to arrange a meeting to get more money. They planned to escort
J.T. to the meeting, but when they brought him outside he escaped. J.T. fled to a nearby
house where he kicked in the door, and begged the resident to call 911. The police arrived
at the scene approximately 15 or 20 minutes later, and J.T. was taken to the police station.
At the station he gave a statement and identified appellant and Cooley in photographic
lineups.
Fifteen months later, at appellant’s jury trial, J.T. testified he could not remember
most of what happened on the evening in question, even after having his recollection
refreshed. When presented with his statements to the officers he said
I’m not denying that I probably said that in that paper, but I’m
telling you right now I don’t remember. If I . . . answer your
questions and say yes, no, I’d be lying. So by me telling you
1
J.T. was unable to identify the third man.
2
that I can’t recall I’m giving you the best honest answer
because if I just sit here and try to make up something I’ll be
misleading people.
J.T. testified he remembered some of the details of that evening including that he was taken
to the basement of the home, duct taped to a chair, and assaulted, that his wallet, shoes, and
$5,000 were stolen, that he escaped when he was let outside, and that he broke into a
neighbor’s house. However, at trial, he was unable to identify appellant as one of his
assailants. The prosecutor appeared surprised by the memory loss, but J.T. testified that
he told the prosecutor about his memory loss at a meeting six weeks before trial.
After J.T.’s direct examination, the trial broke for lunch. During the break the
prosecutor sent an e-mail to defense counsel and the district court to provide notice that he
would move to admit J.T.’s prior police statements as substantive evidence under the
residual exception to the hearsay rule. After lunch, the district court briefly heard
arguments from the parties, and reserved its ruling so defense counsel could have time to
“take a look at” the rule. J.T. then returned to the stand and was extensively cross-
examined about his statements to the officers. The district court ultimately allowed the
officers to testify about J.T.’s prior statements.
DECISION
I.
Appellant argues the district court erred in admitting J.T.’s out-of-court statements
as substantive evidence. We review evidentiary rulings under an abuse of discretion
standard. State v. Matthews, 779 N.W.2d 543, 553 (Minn. 2010). For reversal based on a
3
district court’s evidentiary ruling, an appellant must prove that the admission of evidence
was erroneous and prejudicial. State v. Loving, 775 N.W.2d 872, 879 (Minn. 2009).
J.T.’s out-of-court statements are hearsay. See Minn. R. Evid. 801(c) (defining
hearsay as an out-of-court statement offered to prove the truth of the matter asserted).
Although under Minn. R. Evid. 802 hearsay is generally not admissible at trial, it may be
admissible if it is covered by an exception to the hearsay rule. State v. Robinson, 699
N.W.2d 790, 794 (Minn. App. 2005), aff’d, 718 N.W.2d 400 (Minn. 2006). The residual
exception to the hearsay rule provides that a statement with “circumstantial guarantees of
trustworthiness,” is not excluded by the hearsay rule, if the court determines that: (1) “the
statement is offered as evidence of a material fact”; (2) “the statement is more probative
on the point for which it is offered than any other evidence which the proponent can procure
through reasonable efforts”; and (3) “the general purposes of these rules and the interests
of justice will best be served by admission of the statement into evidence.” Minn. R. Evid.
807. Additionally, there is a notice requirement, such that the statement is not admissible
unless “the proponent of it makes known to the adverse party, sufficiently in advance of
the trial or hearing, to provide the adverse party with a fair opportunity to prepare to meet
it, the proponent’s intention to offer the statement and the particulars of it.” Id. Appellant
argues J.T.’s statements are inadmissible under this rule because they are not trustworthy
and he did not have proper notice.
Trustworthiness
We apply a totality of the circumstances approach to determine whether a statement
has circumstantial guarantees of trustworthiness. State v. Keeton, 589 N.W.2d 85, 90
4
(Minn. 1998). State v. Ortlepp provides nonexclusive factors to consider when determining
if “circumstantial guarantees of trustworthiness” are present including whether (1) there is
a confrontation problem, (2) the declarant admits making the prior statement, (3) the
statement is against the declarant’s penal interest, and (4) the statement is consistent with
all the other evidence presented by the state. 363 N.W.2d 39, 44 (Minn. 1985).
Appellant argues that J.T.’s prior statements lack circumstantial guarantees of
trustworthiness because “[u]nlike [in] Ortlepp, [J.T.] denied speaking with the officer in
any detail[,]” and J.T. denied telling the officer who was holding him against his will.
However, these assertions are not supported by the record. At trial, J.T. did not deny
speaking with the officer in detail, he testified he “[didn’t] really recall” having a detailed
conversation, but acknowledged that he “probably did.”2 J.T. also admitted to identifying
appellant in a photographic lineup.3
2
J.T. testified:
Q. Do you remember identifying Pierre Cooley to the
officer at the scene as one of the individuals who robbed
you?
A. I probably told him that that’s how I got there but I
don’t recall really having a detailed conversation with
the officer about what was going on.
Q. So if that officer wrote a report though he would, he
would have down the notes?
A. What I said to him probably.
Q. What you said at that time?
A. Right, right.
3
J.T. testified:
Q. [D]o you remember what happened when you were at
the police station?
A. Set there for a minute and then had a conversation.
5
Appellant next argues that J.T.’s statements lack circumstantial guarantees of
trustworthiness because J.T. was under arrest for breaking into an occupied house before
he gave the statement to the officer.4 This argument is not persuasive, because while it is
plausible that the arrest could provide a motive to fabricate the robbery and kidnapping, it
does not provide motive to make a false identification regarding his assailants.5
Appellant next argues that J.T.’s statements lack circumstantial guarantees of
trustworthiness because when one of the officers testified, he asked to refer to his reports
at least ten times on the stand. However, “[t]he focus of rule 807 is the statement, not the
testifying witness who heard the statement.” State v. Ahmed, 782 N.W.2d 253, 261 (Minn.
Q. Okay and you talked to a different officer at the police
station?
A. Yep.
Q. Do you remember going through several photographic
line-ups?
A. With the officer?
Q. Yeah.
A. Yeah, I can recall him pulling out some pictures.
Q. Yep and do you remember selecting specific
photographs of the people who robbed you?
A. Uh huh.
Q. Yes.
A. Correct.
Q. And do you agree that one of the individuals who you
identified in the photographic line-up was the
defendant?
A. Correct.
4
The officers briefly detained J.T. for breaking into the neighbor’s house while
investigating the incident. No charges were filed once it was determined that J.T. broke in
during his escape from the kidnapping.
5
DNA and other physical evidence in the basement of Cooley’s home corroborated J.T.’s
statements to the police.
6
App. 2010). “Similarly, the analysis required by the rule focuses on whether the statement
itself is reliable, not whether the person to whom the statement is made is reliable.” Id. It
is of no consequence to the rule 807 analysis that the officer relied on his report while
testifying.
The district court made findings on the record as to why J.T.’s statements had
circumstantial guarantees of trustworthiness. Specifically, it noted that J.T.
“acknowledged [in] his testimony . . . that the statements he made to police were truthful[,]”
that J.T. “repeated subsequent prior statements to police at least twice and those statements
were made shortly after the alleged offense[,]” and that J.T.’s “prior statements were
voluntary, recounted specific details based upon firsthand knowledge, . . . were
corroborated by other evidence and have not been recanted by [J.T.].” See Robinson, 718
N.W.2d at 410 (determining a statement was admissible under rule 807 when it was
volunteered without suggestive or leading questions); State v. Tate, 682 N.W.2d 169, 177
(Minn. App. 2004) (determining a statement was admissible under the catchall exception
when “it was made the day after the incident” and was “substantially consistent” with other
evidence offered by the state), review denied (Minn. Sept. 29, 2004). For the reasons
addressed by the district court, we agree that under the totality of the circumstances J.T.’s
statements to the officers had circumstantial guarantees of trustworthiness.
Notice
Appellant also argues that the statements are inadmissible because the state did not
comply with the notice requirement. Rule 807 requires notice “sufficiently in advance of
the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet
7
it . . . .” The state provided notice via e-mail during the trial, and, therefore, did not strictly
comply with the rule. However, under the circumstances, strict application with the notice
requirement was impractical. The need for the statements only became evident when J.T.
had unexpected memory loss on the witness stand. Appellant had copies of the police
reports and the transcripts associated with J.T.’s prior statements in advance of trial. It was
not an abuse of discretion to admit J.T.’s prior statements when appellant was aware of the
prior statements, and the state used them in response to J.T.’s memory loss on the stand.
See, e.g., United States v. Carlson, 547 F.2d 1346, 1355 (8th Cir. 1976) (noting a notice
requirement “should not be an inflexible and imposing barrier to the admissibility of
probative evidence when the peculiar circumstances of a case militate against its
invocation.”).
II.
Appellant next argues he was denied his right to confrontation under the Sixth and
Fourteenth Amendments when the court denied his motion to impeach J.T. with all seven
of J.T.’s prior felony convictions. The court ruled that defense counsel could not mention
any conviction by name, but allowed defense counsel to impeach J.T. by saying he had
been convicted of a felony “on at least one prior occasion.”
A similar argument was raised in State v. Lanz-Terry, where the Minnesota Supreme
Court addressed “whether the trial court violated Lanz-Terry’s right to confront witnesses
under the Sixth Amendment by precluding him from questioning [a witness] about [the
witness’s] five prior felony convictions.” 535 N.W.2d 635, 639 (Minn. 1995). In Lanz-
Terry, “[d]efense counsel sought to admit this evidence to impeach [the witness’s]
8
credibility as a witness.” Id. Similar to the present case, the witness’s “convictions did not
involve ‘dishonesty or false statement’ and, therefore, the trial court possessed the
discretion to restrict the use of the prior convictions.” Id. (citing Minn. R. Evid. 609(a)
(2)).
Felony convictions that meet certain requirements are admissible for “the purpose
of attacking the credibility of a witness” if “the court determines that the probative value
of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a). It is
generally within the district court’s discretion to sanitize a witness’s prior convictions. See
State v. Hill, 801 N.W.2d 646, 650 n.1 (Minn. 2011) (explaining a “sanitized” felony
conviction refers to “the admission of evidence that a witness has committed a prior felony
conviction without revealing the nature or details of the conviction at the time of
impeachment”). Here, the district court implicitly determined the probative value of the
convictions was low. It stated “I’m disinclined to allow impeachment using the
Aggravated Robbery, the Assault, the DWI, I don’t see frankly how any of the alleged
victim’s convictions related to his credibility and that they don’t involve convictions of
dishonesty. I’ll also say that convictions have marginal relevance. . . .” The district court
implicitly determined the low probative value was outweighed by the potential for unfair
prejudice. It noted “I’m concerned about harassment and confusing a jury or misleading a
jury.” The district court’s concern about confusing or misleading the jury is supported by
the reasoning in Lanz-Terry where the supreme court determined it was not an abuse of
discretion when the district court excluded all five of the witness-victim’s felony
convictions noting “the convictions might have led the jury to conclude that [the victim]
9
was a bad person who deserved to be the victim of a crime, which would amount to a
decision being made on an improper basis.” 535 N.W.2d at 639. The same concern was
present here.
However, in Lanz-Terry the supreme court also noted “the discretionary authority
of the judge to control the scope of cross-examination is limited by the Sixth Amendment.”
Id. at 640. Due process requires that every defendant be “afforded a meaningful
opportunity to present a complete defense.” State v. Richards, 495 N.W.2d 187, 191
(Minn. 1992). In the present case, J.T.’s prior felony convictions were sanitized, not
excluded, and they were of marginal relevance to his testimony. Additionally, the record
was replete with other, more relevant, evidence that was used to impeach J.T. The jury
heard that J.T. was on parole at the time of the kidnapping and burglary, that in the past he
had “sold weed,” along with ample other evidence that pointed to J.T. being a drug dealer.
Although the jury did not hear evidence related to J.T.’s felonies, appellant was able to use
other evidence to impeach the credibility of J.T. Appellant was not denied a meaningful
opportunity to present a complete defense when the district court sanitized J.T.’s felony
convictions, and therefore, his Sixth Amendment right was not violated.
III.
Appellant next argues that he is entitled to a new trial based on violation of Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). In Brady, the United States Supreme
Court held that “the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.
10
Ct. at 1196-97. There are “three components necessary for a ‘true Brady violation.’”
Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005) (citing Strickler v. Greene, 527 U.S.
263, 281-82, 119 S. Ct. 1936 (1999)).
First, the evidence at issue must be favorable to the accused,
either because it is exculpatory or it is impeaching. Second,
the evidence must have been suppressed by the state, either
willfully or inadvertently. Third, prejudice to the accused must
have resulted. All three components must be met in order for
a Brady violation to be found.
Id. (citation omitted).
Appellant claims there was a Brady violation because J.T. testified at trial that he
informed the state of his memory loss six weeks before trial. The district court held a Brady
hearing mid-trial. The state denied having any knowledge of J.T.’s memory loss before
J.T. testified at trial. The district court heard evidence from a victim advocate who was
present at the meeting where J.T. allegedly informed the state of his memory loss. The
victim advocate corroborated the state’s assertions that they had no such knowledge. The
district court did not find J.T. to be credible and “certainly” found the victim advocate to
be credible. We defer to the district court’s credibility determinations. State v. Miller, 659
N.W.2d 275, 279 (Minn. App. 2003), review denied (Minn. July 15, 2003).
The district court credited the testimony of the victim advocate and found the state
was unaware of J.T.’s memory loss until trial. It follows that when the state was unaware
of the alleged favorable evidence, the state did not withhold the evidence from appellant.
Because the state did not suppress any evidence, the second component was not met and
11
appellant has not shown that a “true Brady violation” occurred, and, thus, appellant is not
entitled to a new trial under Brady. Pederson, 692 N.W.2d at 459.
Affirmed.
12 | 01-03-2023 | 06-09-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4031240/ | THE THIRTEENTH COURT OF APPEALS
13-16-00042-CV
Happy Endings Dog Rescue, a Texas Non-Profit Corporation
v.
Jon Layne Gregory, DVM and Donna J. Gregory
On appeal from the
414th District Court of McLennan County, Texas
Trial Cause No. 2013-3278-5
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the judgment of the trial court should be reversed and rendered. The
Court orders the judgment of the trial court REVERSED and RENDERS judgment that
the Gregories take nothing. Costs of the appeal are adjudged against appellees.
We further order this decision certified below for observance.
September 2, 2016 | 01-03-2023 | 09-05-2016 |
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https://www.courtlistener.com/api/rest/v3/opinions/3428904/ | Relator brought an action for mandate to compel appellants to reinstate him as a teacher in the public schools of Clinton School Township, Elkhart County, claiming to be a tenure teacher under the terms of the Teacher Tenure Law and to have been discharged in violation of such tenure law. *Page 382
Appellants' demurrers to the complaint on the grounds of insufficient facts were overruled and an answer in general denial was filed. The cause was submitted to the court without a jury and the court found for and rendered judgment in favor of the relator. Appellants' motion for new trial was overruled. The errors assigned are that the court erred (1) in overruling the demurrers and (2) in overruling the motion for a new trial.
The first assigned error presents the same questions which were presented under the first error assigned by these appellants in the appeal taken in the case of Stiver, Tr. v. State ex rel.Kent, ante 370, decided by this Court on May 1, 1936. Upon the authority of that case we hold that the trial court did not err in overruling the demurrers to the complaint.
The grounds contained in appellants' motion for new trial and stated under Propositions and Authorities of appellants' brief, present the following points upon appeal:
1. No evidence was introduced in the trial below tending to show that the hearing held by the trustee was not in fact a fair hearing; and
2. Substantial evidence was introduced at the hearing before the township trustee to support the trustee's finding of the existence of one or more of the assigned causes for cancellation of relator's contract; therefore
3. The trial court's decision was not sustained by sufficient evidence and was contrary to law.
It is agreed that the hearing before the township trustee which resulted in the cancellation of relator's indefinite contract conformed to the procedural requirements of the Teachers' Tenure Law; and the record shows that evidence was heard upon that hearing and that relator was present at the hearing, in person and by counsel; that he cross-examined adverse witnesses *Page 383
and testified upon the hearing and examined witnesses in his own behalf. The causes for dismissal specified in the notice given relator were: (1) Incompetency, (2) insubordination, (3) neglect of duty, (4) lack of co-operation, and (5) general public sentiment.
The transcript of the evidence introduced at the hearing before the trustee was made a part of the evidence in the trial of the action for mandate in the Elkhart Circuit Court. From the transcript it appears that the evidence which was introduced to support cancellation of relator's contract tended to establish substantially the following facts:
Relator was principal of the Clinton Township school located at Millersburg, Elkhart County. In 1927 the high school received a continuous commission. The school was inspected in the school year of 1928-1929 and because of crowded conditions its commission was reduced to an annual commission. At about Christmas, 1928, the township trustee, county superintendent of schools and relator reorganized the school under the platoon plan which provided for the teaching of pupils of the 7th and 8th grades by the high school faculty, thus reducing the number of pupils taught by the grade school teachers and relieving the crowded conditions which existed in the lower grades. This system remained in effect during the remainder of the school year and was intended to remain in effect during the next school year. Relator opposed the adoption of the plan, but it worked out successfully. The next fall the relator, without consulting the county superintendent or the township trustee, discontinued the platoon plan and restored the school to the organization in effect prior to the adoption of the platoon plan, although the crowded conditions in the lower grades again resulted. Relator opposed the making of an inventory of laboratory equipment, although he was informed that an inspector *Page 384
from the State Department of Public Instruction had directed that more equipment should be purchased. More equipment was thereafter purchased, but relator caused it to remain unopened and unused. Relator failed to fill out papers, which came to him as principal of the school, for the purpose of enabling the township to obtain refunds from the State on account of vocational courses given in the school. The relator referred to such matters as "red tape" and sent them to the trustee, saying that the trustee could take care of them if he wanted to. The trustee did so and secured the refunds for the school township. Relator also opposed a plan of the trustee which was suggested by a state inspector and which was designed to reduce the number of transfers of pupils from the Clinton Township School Corporation to other school corporations and to thus save at least one-half of the money paid out to other school corporations for transfers. Relator failed to catalogue the school library, although he was instructed by the county school superintendent to do so in accordance with orders received from the State Department of Public Instruction.
There was testimony which was in sharp conflict with the foregoing but we have set out only that which tended to support the action of the trustee in cancelling relator's contract.
An action of mandate by a teacher to compel the rescission of an order of cancellation of a contract and the reinstatement of the teacher does not afford a review of the weight and 1, 2. effect of the evidence upon which the administrative decision is based. If the procedural requirements are followed, including the assignment of a legal cause for cancellation, and if there is substantial evidence presented which tends to support the legal cause, and if the hearing is, in fact, fair, the proceeding is lawful; and the discretion of the *Page 385
administrative officer or board cannot be reviewed by a court. The extent of and the limitation upon the power of courts to give relief in actions of mandate in a class of cases to which the instant case belongs, is indicated by the following statements of this court:
". . . and under the decision of this court no `cause' is a legal cause unless it bears a reasonable relation to the policeman's or fireman's `fitness for holding the office, or his incapacity to discharge the duties thereof.' (Roth v. State ex rel., supra.) On the other hand, unless a court can say that the cause assigned bears no reasonable relation to the fitness or capacity of the person on trial the judgment of the board of safety as to the validity of such cause will not be disturbed. Further, in an action for mandate, a court will not review a dismissal proceeding on the ground that the board of safety `reached an erroneous decision as to the weight and effect of the evidence heard.' (State ex rel. v. Davies (1926), 198 Ind. 30, 36, 152 N.E. 174.) . . .
"In short, the courts will not correct errors of judgment made during a hearing by a board of safety in weighing evidence presented to support a `cause' for dismissal of a policeman or fireman. But if the `cause' assigned bears no reasonable relation to the accused's fitness or capacity to hold the position in question, or if there is no evidence to support a finding of `cause' within the meaning of the statute as construed by this Court, or if the hearing, though regular in form, is in truth not a fair hearing, it is the plain duty of a court to declare void a dismissal under such circumstances, and to give relief in an action for mandate." State ex rel. Felthoff v. Richards (1932), 203 Ind. 637, 642, 644, 180 N.E. 596.
In the light of the foregoing discussion and principles we are compelled to conclude that the decision of the trial court was contrary to law. As already stated, the hearing 3, 4. conformed to all the procedural requirements of the Teachers' Tenure Law and there was substantial evidence tending to establish facts which would show the existence of legal *Page 386
cause for dismissal. It is true, as pointed out by appellee, that "the evidence relied upon by appellants consists almost entirely of the testimony of the Township Trustee, before whom the hearing for discharge was conducted, and the County Superintendent, to whom the appeal from the Trustee had to be taken." But the probative force of this evidence was such that the trial court could not say as a matter of law that it was not sufficient to support a conclusion that the relator in fact had neglected his duties and had failed to co-operate with school officials. Appellee states in his brief that he does not contend that his dismissal came about as a result of fraud. He does claim, however, that he was arbitrarily dismissed and that there was a gross abuse of discretion on the part of the school authorities. But in the face of substantial evidence tending to establish the existence of legal cause for dismissal, a court can not say as a matter of law that there was an abuse of discretion. It was the duty of the trial court, while examining the evidence introduced in the hearing before the trustee, not to consider any supposed interest of the trustee or county superintendent in securing the cancellation of relator's contract. To do this would have been to enter into the question of the credibility of the county superintendent and trustee. It would have been proper for the trial court to consider independent evidence for the purpose of determining whether the hearing was, in fact, a fair hearing.
It is a close question whether the evidence failed to support the charge of insubordination. We can not say, however, that there was not sufficient evidence to support the charges of 5. "neglect of duty" and "lack of co-operation." The latter cause is not one of the statutory causes which is expressly specified. But we think it is legal cause within the provision "other good and just cause." In accordance with our *Page 387
holding in State ex rel. Felthoff v. Richards, supra, "other good and just cause" would include any cause which bears a reasonable relation to the teacher's "fitness or capacity to discharge the duties of his position." A court can not say as a matter of law that ability and willingness to co-operate are not reasonably related to the fitness or capacity of a teacher for the performance of his duties.
It was error for the trial court to overrule appellants' motion for a new trial. Judgment reversed with directions to the trial court to sustain appellants' 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/3428905/ | ON PETITION FOR REHEARING.
In his petition for a rehearing appellant urges the following considerations upon the court: (1) That much of the evidence upon which the trustee relied to support his action in 6. cancelling relator's contract related to incidents which occurred prior to the last term of school which was taught by appellee; and (2) that the trial court was justified in concluding that the cancellation of relator's contract constituted "such a gross abuse of discretion upon the part of the trustee and superintendent as to require setting aside the dismissal of relator." It is true that some of the acts of relator which were relied upon by the trustee to support his action occurred prior to the school year 1929-30. But these acts were not so remote from and irrelevant to the charges against relator as to require their exclusion from consideration by the trustee. There was evidence before the trustee to support the charges of "neglect of duty" and "lack of co-operation"; and enough of this evidence related to conduct of the relator during the year 1929-30 to constitute substantial *Page 388
evidence of "neglect of duty" and "lack of co-operation" during that year.
Appellee insists that our refusal to affirm the judgment of the trial court is in effect to reverse "the line of decisions holding that if school authorities in dismissing a teacher acted in bad faith, arbitrarily, fraudulently, or in gross abuse of their discretion, their action is reviewable by the courts." And in support of the foregoing statement appellee cites School Cityof Elwood v. State ex rel. Griffin et al. (1932),203 Ind. 626, 180 N.E. 471; School City of Crawfordsville v.Montgomery (1935), 99 Ind. App. 526, 187 N.E. 57.
We see nothing in our opinion to justify appellee's foregoing construction of our decision. A hearing before a township school trustee obviously does not meet the common law and 7-9. constitutional requirements of a judicial hearing. But when a statute is the sole source of the character and form of a hearing, courts cannot impose additional requirements and cannot draw adverse inferences of fact from the non-judicial character or form of the hearing. Consequently the trial court was not free to draw the inference that the decisions of the trustee and the county superintendent were arbitrary or that the hearing was unfair simply from the fact that most of the evidence before the trustee was the "testimony of the trustee, before whom the hearing for the discharge was conducted, and the county superintendent, to whom the appeal from the trustee had to be taken." (Appellee's brief.) If the "cause" assigned is a legal cause, if the hearing is regular in form, and if there is substantial evidence to support the charge, the trustee's decision cannot be set aside by a court in an action of mandate. But the foregoing does not deny the power of the trial court to hear evidence for the purpose of determining whether an administrative hearing, though regular in form, is in *Page 389
truth a fair hearing. And we stated in our original opinion in this case that "it would have been proper for the trial court to consider independent evidence for the purpose of determining whether the hearing was, in fact, a fair hearing."
Petition for a rehearing is denied. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428906/ | This was an action to determine the extent of the interest of the defendants in, and to partition certain real estate located in Adams County, Indiana.
There was a trial by the court which made a general finding and rendered a judgment thereon, from which two of the defendants, Amanda Berning and Charles Berning, seek to appeal. The only error assigned by them in this court is assigned as follows:
"1. The Court erred in overruling appellants' motion for a new trial."
The brief of such appellants filed in this court relies upon and discusses only one error as a reason for reversal, and that is, "The court erred as to the appellants, Amanda Berning and Charles Berning, in overruling the appellants' amended motion for a new trial." (Our Italics.)
It will thus be noted that the appellants assigned but one error in their assignment of errors, and that they discuss but one error in their brief; but the error discussed in their 1. brief is wholly different from the error assigned. No question for our determination can be presented in this manner. *Page 158
We have carefully examined the transcript and we find that the general finding of the trial court and the judgment thereon from which appellants seek to appeal, were made and rendered on Friday, January 19, 1940, and that on Wednesday, February 14, 1940, and within thirty days, the appellants filed a joint and several motion for a new trial; and that thereafter and on Monday, March 11, 1940, and more than thirty days from and after the making of such finding and the rendition of such judgment, such appellants, over the objection of the appellees, filed an amended motion for a new trial. It is this amended motion alone that is mentioned and discussed in appellants' brief under that portion thereof devoted to "Errors Relied Upon For Reversal," and "Propositions and Authorities."
The original motion for a new trial is not set forth in the brief and no facts about the filing, contents or location thereof in the record is stated. Such brief does not show any facts concerning the trial court's ruling thereon or show any exception by appellants to any ruling. Under the rules of the Supreme and Appellate Court no question concerning the original motion for a new trial is presented for our determination by such a brief.Branson v. Branson (1935), 100 Ind. App. 81, 193 N.E. 686;Fluck, Jr. v. Dahlberg (1937), 103 Ind. App. 472,8 N.E.2d 1008; Washington Natl. Ins. Co. v. Hines (1935),101 Ind. App. 154, 198 N.E. 455; Rhodes, Trustee v. Dunn (1939),106 Ind. App. 367, 19 N.E.2d 876.
If the overruling of appellants' amended motion for a new trial had been properly assigned in this court, nothing would have been presented for our determination by the appellants' brief upon such assignment of error. *Page 159
The filing of an amended or supplemental motion for a new trial more than thirty days after the decision of the trial court on the merits of the cause, or after the rendition of the 2. verdict of a jury, is not authorized by statute, and when so filed such a motion, and the trial court's ruling thereon, presents no question for consideration. § 2-2403, Burns' 1933; H.W. Johns-Manville Co. v. South Shore Mfg. Co. (1919),70 Ind. App. 484, 123 N.E. 648; Smith v. First Natl Bk. ofHartford City, Exr. (1937), 104 Ind. App. 299, 11 N.E.2d 58;Income Guaranty Co. v. Zienlinski (1939), 107 Ind. App. 248,21 N.E.2d 87.
The appellants having pointed out no reversible error, the judgment is affirmed.
Devoss, C.J., not participating.
NOTE. — Reported in 40 N.E.2d 1005. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247137/ | Royce C. Lamberth, United States District Judge
Plaintiff Andy B. Vinh brought this action against the Washington Metropolitan Area Transit Authority ("WMATA") alleging that the defendant discriminated *77against him based on his race, gender, and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. , when he was rehired by the defendant, as opposed to reinstated, after his criminal conviction was overturned on appeal. Before the Court is defendant's motion for summary judgement on all claims. ECF No. 22. Upon consideration of the motion, the response and reply thereto, the entire record of the case, and the relevant case law, the Court GRANTS the defendant's motion for summary judgment.
I. BACKGROUND1
Plaintiff Andy B. Vinh, who is of Asian origin and of Vietnamese national origin, began working as a police officer for the Metro Transit Police Department (MTPD)-WMATA's police force-in 2008. On October 31, 2013, the plaintiff was convicted of second degree assault in Montgomery County, Maryland District Court. In response to the conviction, WMATA terminated the plaintiff's employment on November 25, 2013. He appealed his conviction and in January of 2014 the Montgomery County Circuit Court reversed his conviction and found him not guilty. At that point, the plaintiff reapplied for a position as a police officer with WMATA and was rehired, and not reinstated, on March 5, 2014.
At the time of his firing and rehiring, the plaintiff was a paying union member of the Fraternal Order of the Police ("FOP"). On the plaintiff's behalf, FOP only filed a Step One Grievance and failed to pursue any additional grievance procedures under the Collective Bargaining Agreement ("CBA"), including arbitration.
On September 18, 2015, the plaintiff filed a Complaint in the present action against WMATA. He alleges three counts of discrimination under Title VII (race, national origin, and gender based discrimination). The plaintiff's allegations center on the claim that WMATA should have reinstated him, as opposed to rehiring him, following the reversal of his second degree assault conviction.
II. LEGAL STANDARDS
A. Summary Judgement
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Courts must "view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor." Athridge v. Aetna Cas. & Sur. Co. , 604 F.3d 625, 629 (D.C. Cir. 2010) (internal quotation marks omitted). To show that a dispute is "genuine" and defeat summary judgment, the nonmoving party must present evidence "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. (internal citations omitted). Summary judgment is also appropriate when, "after adequate time for discovery," the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial ... since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
*78Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
B. Title VII-National Origin, Race, and Gender Discrimination
Federal employment discrimination is prohibited by Title VII of the Civil Rights Act of 1964, under which it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
Title VII claims that rely on circumstantial evidence-as opposed to direct evidence of discrimination-are analyzed under the burden-shifting framework found in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas , the employee "must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." Id. at 802, 93 S.Ct. 1817. In cases concerning disparate treatment based on national origin, race, or sex, a prima facie case consists of a showing that "(1) [the plaintiff] is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Chappell-Johnson v. Powell , 440 F.3d 484, 488 (D.C. Cir. 2006) (internal quotation marks omitted).
A plaintiff's "burden of establishing a prima facie case of disparate treatment is not onerous," Texas Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and the requirement of establishing a prima facie case "is 'not intended to be an inflexible rule.' " Young v. United Parcel Serv., Inc. , --- U.S. ----, 135 S.Ct. 1338, 1353, 191 L.Ed.2d 279 (2015). Thus, "an individual plaintiff may establish a prima facie case by 'showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under' Title VII." Id.
If the employee establishes a prima facie case of discrimination, the burden "must shift to the employer to articulate some legitimate, nondiscriminatory reason for the" adverse action. McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817. The employer "must clearly set forth, through the introduction of admissible evidence, the reasons for the [the action]" so as to "raise[ ] a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine , 450 U.S. at 254-55, 101 S.Ct. 1089.
If the employer succeeds in offering legitimate, nondiscriminatory reasons for the action, the "plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. at 252, 101 S.Ct. 1089. The plaintiff may demonstrate pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 255, 101 S.Ct. 1089. Either way, the plaintiff must show "both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Evidence of pretext may include "the employer's better treatment of similarly situated employees outside the plaintiff's protected group, its inconsistent or dishonest explanations, its deviation from established procedures or criteria, or the employer's pattern of poor treatment of other employees in the same protected group as the plaintiff, or other relevant *79evidence that a jury could reasonably conclude evinces an illicit motive." Walker v. Johnson , 798 F.3d 1085, 1092 (D.C. Cir. 2015).
In the context of a summary judgment motion where the defendant has offered a legitimate, non-discriminatory reason for the challenged decision the "question whether the employee actually made out a prima facie case is 'no longer relevant' and thus 'disappear[s]' and 'drops out of the picture.' " Brady v. Office of Sergeant at Arms , 520 F.3d 490, 493 (D.C. Cir. 2008). At that stage, "the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?" Id. at 494.
III. ANALYSIS
A. The Defendant Has Offered a Legitimate, Non-Discriminatory Reason for Rehiring, As Opposed to Reinstating, the Plaintiff
The defendant put forth evidence that it rehired, as opposed to reinstated, the plaintiff following his conviction being overturned based on its understanding of the CBA agreement between WMATA and FOP. Chief of Police Ronald Pavlik avers that he understood Article Five of the CBA to require the plaintiff's seniority be terminated when he was fired for just cause on November 25, 2013, following his conviction on second degree assault.2 ECF No. 22-2, ¶ 11. He subsequently decided to rehire the plaintiff following the reversal of his conviction and the expungement of his record. In his affidavit, Chief Pavlik states that he read Section Five of Article Five of the CBA to require that plaintiff's seniority start from the date of reemployment.3 ECF No. 22-2, ¶ 14. In other words, Chief Pavlik believed that the CBA explicitly disallowed him from reinstating the plaintiff and providing him with his previous level of seniority.
Plaintiff contends that WMATA's reasoning is "conclusory" and "bare bones." ECF No. 24-2, pg. 8. Plaintiff further argues that "there is no provision [in the CBA] stating that rehiring is the status quo under the CBA." Id. The Court finds these arguments unavailing. Chief Pavlik's reading of the CBA is reasonable and would offer a legitimate basis for his decision. Section Five of Article Five clearly indicates that where an employee is reemployed, the "employee's seniority date shall be the date of the employee's reemployment." ECF No. 22-2, pg. 16. Even if one could argue for a different reading of the CBA, the Court recognizes that "whether an employer's proffered non-discriminatory reason is 'legitimate' is a relatively lenient standard." Tabron v. Johnson , 21 F.Supp.3d 84, 87 (D.D.C. 2014) (citing Fischbach v. D.C. Dep't of Corrections , 86 F.3d 1180, 1183 (D.C. Cir. 1996). Moreover, the issue is not "the correctness or desirability of [the] reasons offered ...
*80[but] whether the employer honestly believes in the reasons it offers." Fischbach , 86 F.3d at 1183. Here, the defendant produced evidence that the individual responsible for the decision-Chief Pavlik-was motivated by a reasonable reading of the CBA. Accordingly, the Court finds that the defendant offered a legitimate, non-discriminatory reason for the decision.
B. The Plaintiff Has Failed To Provide Evidence That Defendant's Proffered Reason for Rehiring Was Pretext For Discrimination
Since the Court finds that the defendant proffered a legitimate, non-discriminatory reason for its action, the burden shifts to the plaintiff to establish that WMATA's reason was in fact pretext for discrimination. The plaintiff asserts three arguments in an attempt to carry his burden and the Court will address each one in turn.
First, the plaintiff points to the multiple interactions he had with FOP and WMATA officials following his conviction. He contends that "the assurances from both the union and WMATA officials that Plaintiff would be reinstated sheds doubt on the credibility of the statement that rehiring and not reinstatement is the standard procedure." ECF No. 24-2, pg. 10. Specifically, the plaintiff highlights that union representatives assured him that they would fight for his reinstatement and that Captain Gaddis, an MTPD official, informed him that if he successfully appealed his conviction he would be reinstated. According to the plaintiff "[t]he fact that the union and WMATA officials were so quick to assure Plaintiff that an overturned conviction would result in his reinstatement contravenes the Defendant's argument that the CBA and WMATA policy requires a rehire and not reinstatement." Id.
Plaintiff's second argument follows along the same lines. He alleges that from March 2014 to October 2014, WMATA delayed his full reinstatement. According to WMATA officials, while he was provisionally rehired in March, he could not be fully reinstated until after he acquired his Maryland Blue Card.4 Following months of delay, the plaintiff claims that he himself inquired into the status of his Blue Card and he learned that it was intact. Plaintiff contends that Captain Greg Hanna, an MTPD official, held up the process and that "[t]hese are not the actions of an organization that is merely adhering to a collective bargaining agreement. These actions were taken to discriminate against the Plaintiff based upon his race." ECF No. 24-2, pg. 11.
Even accepting all of the plaintiff's factual assertions as true, there is still no evidence that Chief Pavlik's offered reason for this action was pretext for discrimination. Notably, Chief Pavlik is absent from the plaintiff's account. Plaintiff does not allege that he offered assurances of reinstatement or that he took part in delaying the process. Nor does plaintiff contest the fact that Chief Pavlik was the official ultimately responsible for terminating and rehiring the plaintiff (even if other officials at WMATA would have been involved in the process). Therefore, neither of the arguments above call into question his decision making nor undercut that he legitimately believed that the CBA required rehiring as opposed to reinstating.
*81The crux of the plaintiff's third argument is that WMATA has a history of treating Asian-Americans worse than employees of other racial backgrounds. In support of that claim, plaintiff presents evidence of a number of similarly situated employees who were treated more favorably. Plaintiff also presents evidence of employees treated more favorably in order to support his claim that he was discriminated on the basis of his gender and his national origin. In total, plaintiff presents evidence of five comparators: T.H., S.B., M.S., I.N., and N.M. See ECF No. 24-2, pgs. 11-15.
Specifically, the plaintiff alleges that T.H., S.B., M.S., and I.N.-all African-American individuals-were treated more favorably than him due to his race. M.S. and S.B. were both reinstated despite having been fired for malfeasance uncovered in internal investigations. T.H.-who was involved in an act of malicious vandalism-remained an officer and was allowed to carry a firearm, despite her Blue Card having been revoked. And I.N.-who was arrested on charges of trespassing into an area where he had been previously arrested for soliciting sex from a prostitute-were never even terminated in the first place, only suspended. Id. , pgs. 4-5. Next, plaintiff contends that T.H., an African-American female, was treated more favorably due to gender. Id. , pg. 14. And finally, N.M.-who is of Filipino national origin-was treated more favorably than plaintiff-who is of Vietnamese national origin-as evidence by the fact that he was reinstated following his termination.5 Id. , pg. 15.
The defendant responds by noting that three of the five comparators-M.S., S.B., and N.M.-are not similarly situated to the plaintiff as a matter of law because they were only reinstated pursuant to an arbitration agreement. Unlike the plaintiff, those three officers pursued their labor remedies under the CBA and an arbitrator ultimately ordered WMATA to reinstate them to their former positions and seniority. See ECF No. 22-2, ¶¶ 17, 18. The plaintiff did not pursue arbitration. His union representatives failed to move past Step One of the grievance process (arbitration is only invoked after Step Four). Id. , ¶ 21.
The Court finds this argument persuasive and agrees that as a matter of law, those three officers cannot be considered mutually exclusive. In order for the plaintiff to be considered similarly situated to the other officers, he is "required to demonstrate that all of the relevant aspects of [his] employment situation were 'nearly identical' to those of the [the other officers]." Neuren v. Adduci, Mastriani, Meeks & Schill , 43 F.3d 1507, 1514 (D.C. Cir. 1995) (internal quotation marks and citation omitted). That the plaintiff did not pursue arbitration constitutes a major difference. Chief Pavlik attests that under his watch no officers, who were previously terminated, were reinstated unless he was ordered to do so by an arbitrator. Plaintiff argues that the "union let [his] case fall by the wayside." ECF No. 24-2, pg. 13. But *82even if true, that has no bearing on this analysis. The plaintiff's claims allege that WMATA officials treated him disparately from other officers by not reinstating him, not that his union representatives treated him poorly. It is also important to note another difference between the plaintiff and M.S., S.B., and N.M. Those three officers were terminated based on violations of internal policies not because they were criminally convicted, as the plaintiff was in this case.
Next, the defendant contends that I.N. is not a proper comparator to the plaintiff because he was not terminated for his conduct. The plaintiff's claims are about reinstatement, not termination. He explicitly acknowledges that he does not contest WMATA's decision to terminate him. See ECF No. 22-4, pg. 2. Therefore, the actions by the defendant pertaining to an individual who was not terminated are not relevant to the present case. As it relates to I.N., the defendant did not need to face the decision of whether to reinstate or rehire, which is precisely the decision that is under scrutiny here. As a matter of law, even if the Court accepts the plaintiff's testimony related to I.N. as true,6 it does not do any work in proving that the defendant's stated reason for its action was pretext for discrimination.
Finally, the Court agrees with the defendant that T.H. is also not a similarly situated employee for the purpose of proving that defendant's legitimate, non-discriminatory reason was pretext. Unlike the three officers discussed above, T.H. was reinstated without the benefit of an arbitration award. However, a major difference highlights that T.H.'s circumstances were not "nearly identical" to the plaintiff's circumstances. Neuren , 43 F.3d at 1514. T.H. was reinstated in 2007, roughly six years before the relevant facts in this case, and most importantly the decision to reinstate T.H. was made by then-Acting Chief David Shaw. Chief Pavlik avers that he was not privy to that decision and that he believes it was done contrary to the CBA. See ECF No. 22-2, ¶ 19. In fact, it is the only case in the last twenty years where an officer was reinstated not as a result of an arbitration award. Id. Since the plaintiff bears the burden of proving that Chief Pavlik's stated reason for rehiring was pretext, it is highly relevant that the comparatively more favorable treatment was under a different decision maker. See Mitchell v. Toledo Hosp. , 964 F.2d 577, 583 (6th Cir. 1992) ("[T]o be deemed "similarly-situated", the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it."); see also Phillips v. Holladay Property Serv. , 937 F.Supp. 32, 37 (D.D.C. 1996) (same).
The plaintiff alleges that since a reemployment decision must "go through WMATA's HR Department and ultimately be approved by the General Manager of WMATA" defendant's argument that the "comparators are not similar to Plaintiff because there were different decision makers does not hold water." ECF No. 24-3, pgs. 12-13. The Court disagrees. While other officials are involved in these personnel decisions, the evidence indicates that Chief Pavlik was the primary decision maker. In his affidavit, Chief Pavlik asserts that he made the decision to terminate and subsequently rehire the plaintiff. The plaintiff does not suggest that the *83decision to rehire could have been made independent of Chief Pavlik's viewpoint. But even if the Court did find T.H. to be similarly situated to the plaintiff that data point alone is not sufficient to carry the plaintiff's burden of demonstrating pretext. One incident in a twenty year period in which an officer was reinstated without an arbitration award does not prove much. And the Court is mindful of the principal that courts should "decline to second-guess an employer's personnel decision absent demonstrably discriminatory motive." Milton v. Weinberger , 696 F.2d 94, 100 (D.C. Cir. 1982).
In sum, the Court is not persuaded that any of the five comparators presented by the plaintiff are similarly situated such that they can prove that Chief Pavlik's offered reason for his actions was pretextual. In his sworn testimony, Chief Pavlik conveyed his belief that the language of the CBA required him to rehire, as oppose to reinstate, the plaintiff. The Court finds that to be a legitimate, non-discriminatory reason. And none of the evidence presented by the plaintiff proves "both that [his] reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. , 509 U.S. at 515, 113 S.Ct. 2742. The plaintiff has failed to meet his burden and the Court finds that there is no genuine dispute as to any material fact and that the defendant is entitled to judgment as a matter of law.
IV. CONCLUSION
For the reasons stated herein, the Court GRANTS the defendant's motion for summary judgment, ECF No. 22. The case is hereby DISMISSED . A separate Order accompanies this Memorandum Opinion.
It is SO ORDERED.
All facts in this section are drawn from the Statement of Material Facts Not in Dispute, ECF. No. 22, and the Opposing Statement of Genuine Material Facts In Dispute, ECF No. 24-1.
Section Three of Article Five of the CBA provides, "An employee's seniority shall be terminated or the following reasons: (a) Resignation, voluntarily quit, discharge for just cause or retirement; or (b) unauthorized absence for three (3) consecutive work days [...]." ECF No. 22-2, pg. 15.
Section Five of Article Five of the CBA provides, "Upon the reemployment of any employee, previously separated from the Department in good standing, the employee's starting salary, at the discretion of the Chief, may be established at the step the employee held at the time of the employee's separation. However, in accordance with Article 5, Section 1, of this Agreement, employee's seniority date shall be the date of the employee's reemployment." ECF No. 22-2, pg. 16.
MTPD police officers are required to have a valid Maryland Police Corrections and Training Commission Certification and Training Standards Compliance Card, know more commonly as a "Blue Card". The plaintiff lost his Blue Card following his conviction and it could only be reacquired following the expungement of his record. ECF No. 22-2, ¶¶ 6, 15, 16.
The Court notes an apparent contradiction in plaintiff citing N.M. as a comparator in this context. In alleging that WMATA has a history of mistreating Asian-Americans on the basis of racial discrimination, the plaintiff raised the example of N.M., an Asian-American, who was terminated for his conduct and went through a lengthy process for reinstatement. Plaintiff argued that he was treated worse than T.H. and I.N., who were both African-American. Now, plaintiff cites N.M. as a similarly situated employee treated more favorable on the basis of national origin. Plaintiff appears to be arguing both that N.M. was discriminated against due to his race and yet was treated more favorably than plaintiff based on his national origin.
The defendant argues that the Court should not even accept the evidence because it was presented by the plaintiff on the basis of a newspaper article, which is hearsay evidence. The Court need not reach this issue for the reason discussed above. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4031247/ | THE THIRTEENTH COURT OF APPEALS
13-16-00341-CR
EX PARTE JESSE RIOS TDCJ# 1812554
On Appeal from the
County Court at Law No 1 of Nueces County, Texas
Trial Cause No. 02-CR-1708-1
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion.
We further order this decision certified below for observance.
September 2, 2016 | 01-03-2023 | 09-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4057423/ | [pic]
BILL OF COSTS
TEXAS COURT OF APPEALS, TENTH DISTRICT, AT WACO
No. 10-14-00349-CV
Robert Williams
v.
Russell Parker, Individually and Heir of Lawanna Keeth
(No. C201100640 IN 249th District Court OF Johnson COUNTY)
|Type of Fee |Charges |Paid |By |
|Motion fee |$10.00 |E-PAID |Anna Maria Reilly |
|Motion fee |$15.00 |E-PAID |Endres |
|Supplemental clerk's record |$41.00 |UNKNOWN |ERIC REYES |
|Motion fee |$15.00 |E-PAID |Anna Maria Reilly |
|Motion fee |$15.00 |E-PAID |Anna Maria Reilly |
|Motion fee |$10.00 |E-PAID |Reyes |
|Motion fee |$10.00 |E-PAID |Reilly |
|Supplemental clerk's record |$45.00 |UNKNOWN | |
|Supplemental clerk's record |$44.00 |UNKNOWN | |
|Clerk's record |$660.00 |UNKNOWN |Reyes |
|Filing |$100.00 |E-PAID |Reilly |
|Supreme Court chapter 51 fee |$50.00 |E-PAID |Reilly |
|Indigent |$25.00 |E-PAID |Reilly |
|Required Texas.gov efiling fee |$20.00 |E-PAID |Reilly |
Balance of costs owing to the Tenth Court of Appeals, Waco, Texas: 0.00
Court costs in this cause shall be paid as per the Judgment issued by this
Court.
I, SHARRI ROESSLER, CLERK OF THE TENTH COURT OF APPEALS OF THE STATE
OF TEXAS, do hereby certify that the above and foregoing is a true and
correct copy of the cost bill of THE COURT OF APPEALS FOR THE TENTH
DISTRICT OF TEXAS, showing the charges and payments, in the above numbered
and styled cause, as the same appears of record in this office.
IN TESTIMONY WHEREOF, witness my hand and
the Seal of the COURT OF APPEALS for the
Tenth District of Texas, this November 12,
2015.
SHARRI ROESSLER, CLERK
By: ___________________________
Nell Hegefeld, Deputy Clerk | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428925/ | This is an appeal from a judgment of the Monroe Circuit Court, wherein appellant was adjudged guilty of the crime of embezzlement in receiving *Page 563
a deposit in the Exchange Bank of Spencer, Indiana, on June 15, 1929, at a time when the bank was alleged to be insolvent. § 2479 Burns 1926, Acts 1907 p. 14.
The error relied upon for reversal is the action of the court in overruling appellant's motion for a new trial, wherein it is contended the court erred: (1) In giving instruction No. 8 by the court of his own motion; (2) in refusing to give appellant's tendered instruction No. 9; (3) the verdict of the jury is contrary to law; (4) the verdict of the jury is not sustained by sufficient evidence.
Appellant was president of the Exchange Bank of Spencer, located at Spencer, Indiana, and was charged in the indictment herein with unlawfully, feloniously and fraudulently receiving from John E. Harrison $826.67, as a deposit with said bank, on June 15, 1929, and that said bank was then and there wholly insolvent, which fact was then and there known to said president, and whereby said sum was lost to said depositor. The bank closed at the usual closing hours on Saturday, June 15, 1929, and failed to open for business on Monday, June 17, or thereafter.
There was a change of venue from Owen County to Monroe County where the case was tried before a jury, which returned a verdict of guilty, and judgment was pronounced accordingly.
Appellant in his motion for a new trial challenges the correctness of certain instructions given by the court on its own motion; and also complains of the refusal to give instructions Nos. 20, 21, 22, 23 and 24 tendered and requested by him.
The record does not show appellant tendered any such numbered instructions, but does show he tendered instructions Nos. 1 to 9, inclusive. Instructions Nos. 20, 21, 22, 23 and 24 are 1, 2. not a part of the record and therefore no question as to the correctness *Page 564
of such instructions is presented to this court. Foreman v.State (1929), 201 Ind. 224, 167 N.E. 125. Likewise no question is presented to this court in refusal to give tendered instruction No. 9, as appellant did not assign such refusal as a cause in his motion for a new trial. § 610 Burns 1926, cl. 8;Reeves v. Plough (1872), 41 Ind. 204; Jones v. Layman
(1889), 123 Ind. 569, 573, 24 N.E. 363.
Appellant challenges instruction No. 8, given by the court of its own motion, which instruction reads as follows: "One of the questions for you to determine in this case is whether the Exchange Bank of Spencer, Indiana, was solvent or insolvent, on the 15th day of June 1929.
"This is a question of fact to be determined by you as any other fact; from the evidence in the case.
"I instruct you that a bank is solvent when it has enough assets to pay, within a reasonable time, all of its liabilities as they become due in the ordinary course of business; or in shorter terms, when it can pay its depositors on demand in accordance with its promises.
"When the actual cash market value of the assets of the bank is not sufficient to meet its liabilities in the manner and form above stated, such bank is insolvent." It is to the latter part of this instruction that appellant most seriously objects.
Is a bank insolvent when the actual cash market value of its assets is not sufficient to pay its depositors upon demand or in the usual course of business? We do not think that this is necessarily true. A bank may be solvent and yet not be able to pay all of its depositors upon demand or even in the ordinary course of business. If the rule is to be adhered to that a banking concern must keep its financial matters in such a condition that its assets could be turned into or required to be turned into cash at such short notice, it would be a matter of *Page 565
impossibility for a banking concern to exist as a business institution, or continue with any degree of safety to those connected therewith, and under such a rule its officers might and could at any time be adjudged criminals and made felons when there was no evidence of fraud or criminal intent on their part. Such a requirement of banks is not in accord with good judgment or sound reasoning.
The question, when is a bank insolvent within the meaning of a criminal statute is a question of first impression in this state but has been before the courts of last resort in several other states, and we find that two different rules have been applied in such courts. In the case of State v. Cadwell (1890), 79 Iowa 432, 44 N.W. 700, which is one of the first cases to decide this question, they adopted what may be designated as the "bankruptcy," or "traders and merchants" rule. In that case the court quotes with approval from Thompson v. Thompson (1849), 4 Cush. (Mass.) 127, as follows: "`By the term `insolvency,' however, as used in these statutes, [meaning insolvency statutes] we do not understand an absolute inability to pay one's debts at some future time, upon a settlement and winding up of all a trader's concerns, but a trader may be said to be in insolvent circumstances when he is not in a condition to pay his debts in the ordinary course, as persons carrying on trade usually do.'"
The court further said: "`In Toof v. Martin, 13 Wall. 40, the court, after referring to the more general and popular meaning of the word `insolvency,' adds: `But it is also used, in a more restricted sense, to express inability of a party to pay his debts as they become due in the ordinary course of business. It is in the latter sense that the term is used when traders and merchants are said to be `insolvent'; and, as applied to them, it is the sense intended in the act of congress.'" *Page 566
Other cases are cited in the Iowa case in support of the above rule, but it will be noted that all of them are civil cases, and the construction given by the different courts applies 3, 4. to the sense in which the word "insolvent" is used in bankruptcy and insolvency statutes, and not to criminal statutes. We think in the construction of the statute here involved, being a criminal statute, we should endeavor to give the meaning thereto intended by the Legislature. One of the cardinal principles employed in statutory constructions is to give to the words employed by the Legislature to express their intent their ordinary, general and usually accepted meaning, unless there is something in the statute that would at least indicate that the words were to be construed differently, and a more limited and restricted meaning was intended. State v.Shelton (1906), 38 Ind. App. 80, 77 N.E. 1052; Boyer v.State (1908), 169 Ind. 691, 83 N.E. 350. As we read this statute (§ 2479 Burns 1926), we find no reason for holding that the Legislature intended the word "insolvent" to be construed in a limited and restricted meaning, and we therefore hold that it should receive its general and most commonly accepted meaning.
We think an officer of a bank should not be held guilty, under our statute, if, at the time the deposit was received, the assets of the bank fully equaled in value the sum of its debts 5. even though it may require some time to realize on those assets. The gist of the matter is that a deposit is received by a banker, knowing or having good reason to believe that the money will be lost to the depositor, by reason of the inability of the bank to return it; but if the assets on a fair valuation are amply sufficient to pay all depositors, including the one in question, and all other debts of the bank, the bank could not be said to be insolvent in the usual sense of the term, nor is there any *Page 567
good reason for saying, in such a case, that the officer, so receiving deposits in the bank, knew or had good reasons to know that the bank was insolvent. Suppose a banker finds that his bank is low on cash reserve, and in such a condition, by reason of having failed to receive a large, expected deposit of money, is therefore unable to pay the demands made upon his bank in the ordinary course of business, but an inventory of all the assets of the bank appraised at a fair valuation if liquidated in a reasonable time in a reasonably prudent manner in his honest judgment would be equal to or in excess of its liabilities. Could it in justice and common sense be said that the receipt of a deposit by such a banker would under such circumstance be criminal? Yet under the limited and restricted meaning of "insolvency" he would. A banking institution in such condition might be a fit subject for a suit in equity for the appointment of a receiver to insure an equitable distribution of its property, on petition of its creditors, but certainly its officers would not necessarily be criminals. In the case ofGass v. State (1914), 130 Tenn. 581, 172 S.W. 305, in considering the two theories, the court said: "If the other theory [meaning the restricted and limited application] be held a correct one, and a banker must always feel that he stands within touch of the doors of the penitentiary if he shall accept a deposit, or fail to close the doors of the bank in every case where there is danger of not being able to meet the debts of the bank on demand, his ability to extricate the business from disaster will be to a great degree paralyzed by the apprehension for his personal safety which he will necessarily feel. . . . Every one knows how the assets of a bank shrink and shrivel where it is compelled to stop business. Many debtors who during the running of the bank would pay their debts in order to maintain their standing, even though not wholly solvent, would cease *Page 568
to try to pay on the cessation of its business. Many others who are able to pay will delay until forced to settlement after transfering their allegiance to some other institution. Such property of the bank as requires to be sold will lose in value because buyers are aware of the necessity of selling, and the inability of the bank to stand out for proper terms. . . . We repeat, safety cannot be secured by terrorizing the officers of banks, with a knowledge that if they should have to close their doors at any time under a sudden stress of circumstances by reason of a change in the financial aspects of the country, or by reason of inability to quickly realize upon assets, they would be subjected to indictment and conviction on a charge of felony. . . . Safety is secured by requiring officers having the control or management of banks to keep closely in touch with the assets, and to have a reasonable knowledge of their value, and to refuse to receive deposits when they find they are not amply sufficient to pay all debts exclusive of capital stock, surplus, and undivided profits of stockholders. If a bank continues to do business when it is not solvent in this sense, and it receives deposits, it is guilty of negligence of so hazardous a character as to amount to positive fraud and criminal liability under the statute."
In the case of Ellis v. State (1909), 138 Wis. 513, 119 N.W. 1110, 20 L.R.A. (N.S.) 444, 131 Am. St. 1022, the court had occasion to construe a similar statute. Appellant in that case was convicted of receiving deposits into a bank for the credit of a depositor with knowledge, or good reason to know, that the bank was unsafe or insolvent, contrary to § 4541 St. 1898 of Wisconsin, which was very much the same as our statute on this subject. The jury was instructed in that case that, whether the bank was insolvent on the particular days material to the case, turned on whether it had sufficient assets to meet its liabilities in the ordinary *Page 569
course of business, and whether the accused at such time had good reason to know the bank was unsafe or insolvent, was whether he had such reason to know it did not possess sufficient assets to pay all its liabilities as they matured and became payable in the ordinary course of business. The court refused to instruct the jury that the statutory test was whether the fair value of the assets on the particular days was sufficient to cover the liabilities, exclusive of liabilities to stockholders. The court in discussing the merits of the instruction given and the one refused said: "There is no question but that insolvency, as the subject is dealt with under the insolvent and bankrupt laws, regarding a condition where, by the theory of such laws, the person or concern should suspend and take such measures or submit to such, for the protection of creditors, as to insure equality of treatment, is as the court instructed the jury. That is the limited, not the common, popular, or general meaning of the term. The latter suggests, merely, a substantial deficiency of assets to cover liabilities. In a multitude of authorities involving administration of bankrupt and insolvent laws and situations properly classible therewith, authorities mainly relied upon by the prosecution, insolvency is viewed in the limited sense, while the general sense is universally conceded to be as indicated. So it will be seen that a bank may be insolvent in the limited sense and clearly not in the broad general sense.
"Must the limited meaning be given to the term `unsafe or insolvent,' as used in the statute? Is it true that, under all circumstances, the proprietors of a bank, though believing they have an abundance of assets to pay out within a reasonable time all liabilities to depositors, must close the doors and go into liquidation whenever they have good reasons to know they will, or probably may, not be able to pay all demands upon the *Page 570
bank in the usual course of business, and that every moment of time they keep open for business thereafter they are criminals before the law and liable to be prosecuted and punished by long terms of confinement in the state prison? If such is the law, the banking business is exceedingly unattractive and the more conscientious the banker is, the less attractive it is. . . .
"The reason for not adopting the drastic meaning attributed to the statute by the trial judge, suggested from the viewpoint of the banker, is reinforced by one quite as persuasive from the point of view of the patrons of the bank. It is a matter of common knowledge that liquidation of a bank in insolvency proceedings is inevitably attended with great loss which commonly falls on the depositors. So when a banker stands face to face with a condition of probable inability, merely to pay all liabilities `in the ordinary course of business,' he knows that to go into liquidation, unless that is absolutely necessary, is inviting disaster for the depositor often in far greater measure than to persist in going on."
We quote with approval the further excerpt from this same case. "We venture to say that, in all situations except in respect to the administration of bankruptcy and insolvency laws, the term under consideration is regarded as contemplating insufficiency of assets, in money value, to balance liabilities, such money value to be realized, not by a forced and involuntary sale, but by handling in the ordinary way as an ordinarily prudent man would generally conduct his business under the same or similar circumstances."
In substance the same rule was announced in the case ofHamilton v. Menominee Falls Quarry Co. (1900), 106 Wis. 352, 81 N.W. 876. In effect it may be stated thus: "Insolvency, in such connection, does not mean an insufficiency of quick assets to pay all debts at once, nor ability to meet commercial obligations as they fall due *Page 571
in the course of business, but that the property of the corporation, real and personal, estimated at a fair and reasonable valuation, is substantially less than its debts."
The above position finds support in the following cases:Fleming v. State (1911), 62 Texas Crim. 653, 139 S.W. 598;Appelget v. State (1926), 33 Okla. Crim. 125, 243 P. 251;Brown v. State (1913), 71 Texas Crim. 353, 162 S.W. 339. See discussion in 37 Central Law Journal 174.
Our attention has been called to the case of Federal ReserveBank, etc., v. Idaho Grimm Alfalfa Seed Growers' Assn. (1925), 8 F.2d 922. This was a civil action in which the limited and restricted meaning was given to the word "insolvent," in accordance with the rule almost if not universally recognized in such cases as has heretofore been pointed out in this opinion
In the case of State v. Hightower (1924), 187 N.C. 300,121 S.E. 616, the court said: "To require a bank to close its doors because of inability to pay depositors on demand, and not `as they become due in the regular course of business' or as a matter of right, would make the fabled position of doubly unfortunate peril most real — the banker while bending all of his energies to avoid the danger of closing, on the one hand, would be quite likely to fall into a still greater danger for himself, on the other, by drifting into the shades of prison walls."
The instruction given by the court in effect told the jury that the Exchange Bank of Spencer was insolvent on the day in question if the actual cash market value of its assets was not 6. sufficient to pay all of its depositors upon demand or to pay all of its liabilities as they became due in the ordinary course of business, as this was the manner and form stated in the first part of the instruction. As pointed out in the case of State v. Hightower, supra, there are two standards of insolvency advanced by this instruction: (1) The *Page 572
bank was insolvent if it was unable to pay its depositors on demand; (2) if it could not pay all of its liabilities as they became due in the ordinary course of business. As pointed out above, we think that neither of these tests is correct. In our opinion a bank might be solvent within the meaning of the criminal statute, here involved, and neither be able to pay all of its depositors upon demand, nor be able to pay its liabilities in the ordinary course of business. We think the better rule to be that a bank is solvent if the fair cash value of all the assets of the bank, on the particular day in question, realizable within a reasonable time, by reasonably prudent persons, would be equal to or be in excess of the total liabilities of the bank, exclusive of stock liability; but if the fair cash value of its assets, realizable as above stated and in the manner above stated, is not sufficient to pay within a reasonable time all of its liabilities exclusive of stock liability, such a bank would be insolvent. The question of intent was fully covered by other instructions given, and no question is presented thereon. Instruction No. 8, given by the court of his own motion, was reversible error, and this cause should be, therefore, reversed.
Other questions presented need not be discussed or decided as they may not be presented on the retrial of the case.
Cause reversed, with instructions of the lower court 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/3428926/ | The appellant attributes the loss of his decedent's life to the failure of the appellee to meet the requirements of § 20-304, Burns' 1933, the pertinent parts of which read as follows:
"It is hereby made the duty of all owners, contractors, subcontractors, corporations, agents or persons whatsoever engaged . . . in the transmission, generation or use of any electricity or other power, . . . to see and to require . . . that in the transmission, and use of electricity of a dangerous voltage, full and complete insulation shall be provided at all points where the public or any employee of the owner, contractor or subcontractor transmitting or using said electricity are liable to come into contact with the wire or wires." *Page 15
At the close of the appellant's evidence the court instructed the jury to return a verdict for the appellee and such action is the only error presented by this appeal of which we need take note.
The undisputed evidence establishes the following facts in substance: The appellee owns and operates an electric street railway system in the city of Gary, Indiana, and on the 24th day of July, 1944, maintained a set of tracks and trolley wires on Broadway in said city. Along the west curb line of said street the appellee had what it calls a "feeder cable" which was insulated and supported, at a considerable height above the sidewalk level, by a series of poles. This feeder cable carries 550 volts of electricity and is tapped into the trolley wires every 1,000 feet to furnish electricity thereto. The Chicago, South Shore South Bend Railway Company owns and maintains a large neon sign across and over the west sidewalk on Broadway near its intersection with 3rd Avenue, which sign is hung between two steel posts on either side of said sidewalk and from 20 to 25 feet above the same. The appellee's feeder cable passes by the west end of this sign and is guyed, by a bare wire at that point, to the west post supporting said sign. The evidence does not disclose the length of this guy wire but about halfway between the point where it leaves the feeder cable and the point where it is anchored to said post there is an insulator which prevents the flow of electricity over said guy wire and into said post. From the insulator to the feeder cable this guy wire is charged, carrying approximately the same voltage as does the feeder, but from the insulator to the post it is "dead."
On June 30, 1944, the appellant's decedent, Joseph Jakob, was employed by the Ad-Craft Sign Company which, at that time, had a contract with the Chicago, *Page 16
South Shore South Bend Railway Company to clean and repair said sign. While engaged in such work said Jakob, in some manner not made clear by the evidence, came in contact with the charged portion of said guy wire and fell to the sidewalk, 20 or 25 feet below, and was killed.
At the very foundation of the appellant's right to recover in this case, lies the question — did the appellee owe Joseph Jakob any duty, by virtue of § 20-304, Burns' 1933, above quoted, to fully and completely insulate the guy wire in question? The appellant makes no claim that his decedent, Joseph Jakob, at the time of this injury and death, was employed by the appellee, who owned and maintained the uninsulated wire involved, but insists that the mere fact that said Jakob, at such time, was a member of the public is sufficient to bring him within the protection of the statute.
We cannot agree that said statute can be so construed. The word "public," as used in the statute, means the general public — a great multitude of persons who would, in the course of 1. daily events, be exposed to danger by the presence of an uninsulated wire carrying a dangerous voltage of electricity. The word has no reference to an individual whose particular employment requires him to work in the proximity of a live wire with which there would be no likelihood of his coming in contact except for such employment. The exposure must be common to the concourse of people who make up the general public in any locality.
The case of Linn Grove etc., Power Co. v. Fennig (1927),86 Ind. App. 170, 154 N.E. 877, is analogous in its facts to the one at bar and is strongly urged upon us as supporting appellant's construction of the word "public" as used in the statute under consideration. In that case the appellee Fennig relied upon this same statute *Page 17
as applicable to the following facts, the statement of which we quote from the decision itself:
"Appellant owned and operated a line of poles along a public highway on which poles were strung bare uninsulated wires carrying 6,600 volts of electricity. Appellee was engaged in moving a house along the highway, and, in order that the house might pass under certain guy wires which were not far enough from the ground to permit the passage of the house, he climbed on the roof of the house to raise the guy wire, and in so doing accidentally came in contact with one of the uninsulated electric wires which was about three feet above the guy wire and the roof of the house, and thereby received an electric shock which resulted in a serious injury."
The appellee recovered judgment which this court affirmed but the question as to whether the duty the appellant owed the public, under the statute, included the appellee while working on the roof of a house inaccessible to the general public, was neither presented nor passed upon. The case was decided upon questions not involved in this appeal and so far as it might, through inference or analogy, be considered as holding that the word "public" included the appellee under the particular circumstances, it is disapproved.
It might be urged that, even though the appellant, in the present case, failed to bring himself within the protection of the statute he relies upon, he was entitled to go to the 2. jury on the theory of common law negligence. Whether he had the technical right to proceed upon the theory of statutory liability and recover at common law, we find it unnecessary to decide as a careful examination of the record discloses no evidence tending to prove common law negligence.
It is established law in this state that one who seeks the benefit or protection of a statute must bring himself *Page 18
within its scope. This, in our opinion, the appellant has failed to do.
Judgment affirmed.
NOTE. — Reported in 70 N.E.2d 753. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428927/ | Appellee recovered a judgment for personal injuries occasioned by reason of being struck by one of appellant's street cars at the crossing of Fifth and Main streets in the city of Evansville. Main street runs in a northeasterly and southwesterly direction and is crossed by Fifth at right angles. Appellant operates a double track on Main, and a single track extending from Main northwest on Fifth for a short distance. On the day of the accident, appellee had been at a store on the north side of Main, about a half block east of Fifth. She left this store, walking west on the north side of Main. When she reached Fifth, she saw a traction car on Fifth immediately north of Main. She crossed Fifth in front of this car and when she reached the northwest corner of Main and Fifth, she started to cross Main, when, hearing the gong on the traction car, she looked around and saw the car coming from Fifth onto Main. She waited for it to turn the corner and pass onto Main to the west and south of her, where it stopped on the south track immediately west of Fifth.
The evidence as to how appellee was injured is conflicting. It is sufficient, however, to establish the following facts: Appellee, when she started to cross Main street, crossed the north track and waited for the traction car to pass in front of her. At this instant, one *Page 518
of appellant's street cars, running west on the north track and coming from the east at a speed estimated from five to twenty miles an hour, struck and severely injured her. She was thrown into the air several feet and landed on the pavement, as some of the witnesses said, twenty-five feet from the place where she was standing when struck. The evidence as to whether the street car stopped before crossing Fifth is conflicting. Two of the witnesses testified that as they approached Main street from the south on Fifth, they saw the traction and the street car. That the traction car crossed Fifth immediately in front of them; that they saw the street car approaching on the north track from the east and waited for it to pass in front of them over the intersection; that they saw appellee crossing on the west side of Fifth and saw the street car strike her. The conductor on the traction car and a passenger on that car testified that appellee was struck by the street car just after the interurban car got started east or about the time it had gotten across Fifth. The motorman on the car that struck her testified that he saw appellee; that she had crossed over the north or inbound track on which he was running, and had passed in the rear of the traction car and out of his sight; that after passing in the rear of the traction car, she stepped back into the space between the two tracks and so close to the tracks on which he was running that the corner of his car struck her; that when she stepped back from behind the traction car, he was so close to her he could not avoid hitting her. The evidence is conflicting as to the distance the street car ran after striking appellee. There is some evidence that it ran as much as twice its length (sixty feet) after the accident. Appellee testified that she looked to the east before starting to cross the street and did not see the car that struck her and that there was no car on the intersection of the *Page 519
two streets at that time. The motorman on the car that struck her said he stopped his car on the east side of Fifth; that he saw the traction car on the other side of Fifth; that both cars were standing still at the same time; that he saw the other car start to cross Fifth; that he went across Fifth about as fast as a man could walk. He also said: "I saw the woman, and my car struck her just about the time that she stepped on the right hand rail of the inbound track; her face was toward the Bomm Drug Store, across Main; she walked hesitating like she was watching that Princeton traction car; she stepped up toward the back end of the car that was on the other track, which was moving at that time; she stepped behind the traction car and my car was moving at that time slowly; she stepped out of my sight; after she stepped out of sight, I thought she had gone ahead and didn't know any more until she stepped out in front of me and I applied my brakes and stopped; she stepped in front of the left hand corner of the car; I went across Fifth and up to the time she was struck, I would say five miles down to near a stop; when she stepped in front of the left hand corner of my car, she stepped back with her back to the car; I suppose the motorman on the traction car could see me and hear my gong; just as I started my car, I saw this woman in the safety zone, between these safety lines, and, about that time, I heard the gong of the Princeton car, and it started and I started toward the river going in the opposite direction; it would take the Princeton car a little longer to get under headway than my car; Mrs. Vaughn stepped behind the Princeton car just about the time I got to the safety zone."
The motorman, according to his testimony, saw appellee just as she started to cross the track on which he was running, 1-3. and when his car was standing still east of Fifth. He started his car *Page 520
just as she stepped on the right hand or north rail of the track. He saw her walking across and hesitating like she was watching the traction car. He says that when she got about on the inside rail of the inbound track, she stopped and he wondered why she did not go back to the sidewalk and wait until the other car got out of the way, and that when he got the signal from his conductor, he started and when he "got within a few feet the car hit her." Also, that when the traction car was leaving, she stepped behind it out of his sight and then stepped back so that his car hit her. Other witnesses, who were on the east side of Fifth watching for the traction car to pass in front of them, testified that the traction car had passed them before the accident and that they saw the street car strike appellee. It is quite evident that some of the witnesses were mistaken as to where the traction car was at the time of the accident. If this car had crossed Fifth before the accident, the motorman was in error when he said appellee stepped from behind that car so soon before the accident that he could not avoid striking her. With the confusion attending the movement of the two cars at this intersection, and the admitted confusion and hesitancy on the part of appellee, we are not prepared to hold that there was not sufficient evidence to sustain the jury in finding that the motorman was negligent. Indeed, appellant does not claim the evidence is not sufficient to sustain a finding that the motorman was negligent in the operation of the car. Its main contention is that appellee was guilty of negligence which proximately contributed to her injury. The jurors, however, found otherwise, and we cannot say they were not justified in so finding. Appellant calls attention to the testimony of appellee, where she said she looked the last time for a car other than the traction car just as she started across the street, and that, when she stepped *Page 521
off of the curb, she looked straight ahead and went straight ahead and did not again look for any other car, and insists this shows she was guilty of negligence as a matter of law. We are of the opinion, however, that the evidence was sufficient to warrant the court in submitting the question to the jury.
Instruction No. 16a, tendered by appellant and refused was to the effect that if, after appellee stepped from the curb and started across the street, she did not look in either 4. direction to learn if a car was approaching, but continued to look straight ahead while crossing and until she was struck, she could not recover. There is evidence that she looked. There is evidence that appellee took some precaution as she started to cross the street. She says when she started across the street, she was looking to her left, that being the direction from which the car came that struck her, and not seeing anything, she started across and then looked to see if anything was on the outbound track. The question as to whether she was negligent was for the jury. This being true, there was no error in refusing to give the tendered instruction.
Instruction No. 10, requested by appellant and which the court refused to give, is to the effect that the presence of railroad tracks is a warning of danger to any one attempting to cross them, and that it is the duty of such a person to use his eyes and ears to learn that the place is safe; that this duty must be performed at any point from which the presence of cars may be detected; and if the jury should find appellee failed to perform this duty, and by its performance she might have seen the car in time to have avoided the collision, such failure would be contributory negligence and would bar a recovery.
The Supreme Court, in Evansville, etc., Traction Co. v.Williams (1915), 183 Ind. 633, 109 N.E. 963, reversed *Page 522
the cause on account of the refusal to give a similar 5. instruction, and appellant insists that it follows, as a matter of law, that the refusal to give its said requested instruction is reversible error. Appellee, however, calls attention to instruction No. 9, given at the request of appellant, and says it covers all the elements of the requested instruction No. 10. Instruction No. 9 was to the effect that railroad tracks are warnings of danger and that it is unsafe to cross them without the exercise of care and watchfulness in order to be made aware of the approach of cars and thus avoid a collision. That if the jury found appellee did not give any heed to her surroundings, that she took no precautions, and made no effort to learn if a car was approaching, she was guilty of negligence and could not recover. In addition to this instruction, the court gave seven other instructions defining negligence, contributory negligence, and clearly telling the jury that if appellee failed to do anything a reasonably prudent person would have done under the circumstances, and if such failure proximately contributed to her injury, she could not recover. Taking the instructions of the court as a whole, there was no reversible error in the refusal to give instruction No. 10, requested by appellant.
Instruction No. 13, tendered by appellant was covered by other instructions, so there was no error in its refusal. Instruction No. 17, requested and refused was to the effect that if the injuries to appellee were not the result of an accident which was brought about by the negligence of appellant, there could be no recovery. The jury were in a number of instructions informed there could be no recovery if the injuries to appellee were not caused by reason of the negligence of appellant. With such instructions before them, there was no error in refusing this instruction.
Complaint is made of the refusal to give other instructions. *Page 523
A careful consideration of these contentions convinces us there was no error in the action of the court.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428907/ | This was an action of mandamus by the relator as clerk of the Circuit Court of Scott County, to require the auditor to call the county council into special session and to direct it to appropriate the sum of $600.00 to pay the salary of a deputy clerk of said Circuit Court. *Page 411
It is alleged in the complaint that the relator, Mark Hays, duly prepared and filed his budget and schedule of expenses of the office of clerk of the Circuit Court, and included therein a yearly salary in the sum of $600.00 for a deputy clerk of the Circuit Court for the calendar year ending December 31, 1934; that the relator demanded an appropriation of said sum of $50.00 per month for such deputy pursuant to section 2, chapter 21, of the Acts of 1933; that said Scott county had a population of less than fifteen thousand, according to the last preceding United States census; that pursuant to said act the clerk alleged that he was entitled to such deputy without the approval of the board of county commissioners; and, therefore, he demanded a mandate against the county council compelling such appropriation.
The respondents filed a demurrer to the complaint which was overruled and judgment was rendered in favor of relator, after the respondents refused to plead further, ordering the county council to appropriate the sum of $600.00 for the payment of the annual salary of a deputy clerk of the said Circuit Court.
The errors relied upon by respondents for a reversal are as follows: (1) The court erred in overruling the separate demurrers of the respondents; (2) the court erred in rendering judgment against the respondents and in behalf of the relator upon the refusal of the respondents to plead over.
The determination of the question involved requires an interpretation of said chapter 21 of the Acts of 1933, which is an act fixing the salaries of certain county officers and providing for deputies for such officers. Section 2 of said act divides the counties of the state into three classes: First, counties having a population of fifteen thousand or less; second, counties having a population *Page 412
of fifteen thousand one and not more than twenty-five thousand; and, third, counties having a population of over twenty-five thousand, all according to the last preceding United States census. The statute designates the salaries of such deputies in each of the counties falling within the above named classes. Section 2, containing said classification, is too long to be quoted in full. It provides:
"The several public officers named herein may appoint such number of deputies and other assistants, to be paid by the county, as may in the judgment of the officer, where not limited by this act, the number being approved by the board of commissioners of the county, be necessary for the proper discharge of the duties imposed by statute upon each of the several public officers."
As to those counties having a population of less than fifteen thousand, it provides that the county officers — auditor, treasurer, clerk of the Circuit Court, sheriff, and recorder — "may designate and appoint one deputy" whose salary shall not be less than $50.00 per month nor more than $100.00 per month. In counties having a population of fifteen thousand one and not more than twenty-five thousand, each of the county officials "shallbe entitled to designate and appoint one deputy," provided that in counties having two or more courts located therein, the clerk of the Circuit Court shall be allowed to appoint at least one deputy for each of said courts. The salary of the deputy in this class shall not be less than $75.00 per month nor more than $125.00 per month. In counties having a population in excess of twenty-five thousand, said officials "shall without the approval of the board of county commissioners designate and appoint one deputy and in addition thereto he shall appoint such other deputies and other assistants as may be necessary to discharge the duties imposed upon such officials. The number of such other additional *Page 413
deputies and assistants shall be determined by each of such county officials as hereinabove named, subject to the approval of the board of county commissioner(s), both as to full time and part time employment and said commissioners shall make recommendations to the county council as to the amount of salary that each of said deputies and assistants shall receive."
It is the contention of the relator that he is entitled to appoint one deputy without the approval of the board of county commissioners and that the county council should be mandated to make an appropriation therefor in the minimum sum of $600.00 per year. In answer to the proposition of the relator the respondents say that in counties (of which Scott is one) belonging to the first classification, the clerk is entitled to no deputy without the approval of the board of commissioners of the county; that as the complaint does not allege the approval of such board, the demurrer should have been sustained thereto.
It is a rule of statutory construction that in seeking the intent of an act, effect must be given to every word and clause therein, if it is possible to do so. Words and phrases 1, 2. must be given their plain, ordinary, and usual meaning, unless a contrary purpose is clearly manifested.Snider v. State ex rel. Leap (1934), 206 Ind. 474,190 N.E. 178; Morrison v. State (1914), 181 Ind. 544, 105 N.E. 113;State v. Weller (1908), 171 Ind. 53, 85 N.E. 761.
If the interpretation of the relator should be adopted, it would, in effect, give one deputy to each of the officials named in each county of the state without the approval of the 3, 4. board of commissioners. This court does not believe that such interpretation is warranted nor that the legislative intent was such. The beginning of section 2 provides that the number of deputies *Page 414
shall be approved by the board of commissioners of the county. Then follows the classification of the counties, and in classifying the larger counties with population of twenty-five thousand or more according to the last preceding United States census, the same section provides that the clerk of the Circuit Court, and other county officers, shall have the right to appoint one deputy "without the approval of the board of county commissioners," but all additional deputies in such larger counties shall be "subject to the approval of the board of county commissioners." If the legislature intended that the county officials in counties with a population of less than twenty-five thousand should have the unrestricted right to name one deputy, it certainly would have said so by language as plain as that used in reference to counties having a population of more than twenty-five thousand, wherein it is provided for the appointment of one deputy without the approval of the board of county commissioners. While the first sentence in section 2 of the act is not well constructed, yet it is clear that it was the intent to subject the number of deputies to the approval of the board of county commissioners. That limitation applies to the entire act, except as to one deputy in counties having a population of more than twenty-five thousand.
The act contains a number of paragraphs and fixes salaries of the county officers of the several counties of the state. The office of the clerk of the Circuit Court of Scott county is fixed at $1,200.00. The last preceding United States census shows the population of Scott county to be 6,664, of which the court will take judicial notice. Of the ninety-two counties in the state nineteen fall within the first class; thirty-eight in the second class, and thirty-five in the third class. It cannot be questioned that the legislature had authority to make *Page 415
such classification. It is clear that it was the legislative intent to leave it to the board of county commissioners to determine whether or not in the smaller counties a deputy was required in any of the offices. It is interesting to note that the salary of the clerk of the Circuit Court in Scott county under the statute preceding chapter 21 of the Acts of 1933, was $1,000.00 per year with no mandatory requirement for the payment of a deputy. In view of the condition existing at the time of the passage of the act and a general purpose and tendency to reduce salaries, it can hardly be believed that it was the intention of the legislature to increase the salary of the clerk from $1,000.00 to $1,200.00 per year, and in addition thereto, to make it mandatory upon the county commissioners to approve and the county council to make an appropriation for the payment of such deputy in a sum of not less than $50.00 nor more than $100.00 per month.
This court, in interpreting the act of 1925, providing for pay of a deputy county treasurer, in Applegate, County Auditor v.Pettijohn (1933), 205 Ind. 122, 185 N.E. 911, held that that act provided that certain officers may appoint deputies when necessary and when required, if provision shall be made for paying such deputies for their services from the funds of the state or the county, but holding that the act there in question did not purport to confer power upon the county council to appropriate county funds for the payment of deputies; that if such appropriations are made, there must be a statute expressly authorizing the same. The reasoning there employed applies with equal force to the interpretation of the 1933 act, now under consideration, in respect to the appointment of such deputies. Before the clerk of the circuit court of Scott county can claim the right to appoint a deputy and to have an appropriation *Page 416
made for his salary, he must show a clear and unequivocal authority to make such appointment without the approval of the board of county commissioners. This he has not done and cannot do under a fair interpretation of the act as a whole.
By giving meaning to each paragraph and provision thereof, it is clear that the legislature intended to place it within the discretion of the board of county commissioners as to 5. whether or not a deputy should be permitted in those counties falling within the first and second classifications. Since the relator's complaint does not allege that the county commissioners had approved a deputy clerk of the Circuit Court of Scott county, the demurrer should have been sustained.
Judgment reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428908/ | This is a proceeding to establish a drain, commenced by a petition filed in the court below.
Commissioners were appointed to view the proposed work and make report thereon. This report was filed on February 6, 1922.
Appellants' lands had been named in the petition as affected and they had been given notice thereof, and their lands were assessed as benefited in said report.
On February 18, 1922, appellants filed their several remonstrances to the report, as provided by § 6143 Burns' Supp. 1921, being the amendatory act of 1917, Acts 1917 p. 292. This statute provides that, "Upon the making of such report to the court ten (10) days, exclusive of the day of filing such report and Sundays, shall be allowed to any owner of lands affected by the work proposed and reported benefited or damaged, to remonstrate against the report."
Upon the motion of appellees these remonstrances were stricken out by the court, on the ground that they had not been filed within the time provided in said statute. This is the only question presented by this appeal.
It is apparent that more than ten days, exclusive of the day of filing such report and Sundays, had elapsed when the remonstrances were filed, but appellants call attention to the fact that Lincoln's birthday, to wit, February 12, came on the intervening Sunday that year; that by statute (§ 9086 Burns 1914, Acts 1915 p. 196) said day is made a legal holiday for all purposes, and it is further provided that when such legal holiday comes on a Sunday, the Monday following shall be a legal holiday. *Page 383
From this they argue that in computing the ten days given to file these remonstrances, Sunday, February 12, should be excluded, and also Monday, February 13, which in that year was a holiday on account of Lincoln's birthday coming on Sunday. If both of these days are excluded, then the remonstrances were filed in time. In our opinion appellants' contention is not well founded.
In the first place, the statute fixing the time for the filing of the remonstrance specifies just what days shall be excluded in the computation, namely, the day of filing the report and 1. Sundays, and under the familiar maxim, expressio unius est exclusio alterius, all days not specified in the statute are excluded from its provision. English v. Dickey (1891),128 Ind. 174, 13 L.R.A. 40; Board, etc., v. Tincher, etc.,Co. (1912), 49 Ind. App. 221, 26 R.C.L. 751. Therefore, since the statute does specify Sundays, but does not specify other holidays, only Sundays are within the statute and are to be excluded in computing the time.
It is also the general rule that when a statute provides the time within which an act shall be performed, intervening Sundays and holidays are to be included in computing the time, 2. unless expressly, or by necessary inference, the statute provides otherwise. The only exception to this rule seems to be that where the time is less than a week in duration, so that a Sunday would not necessarily intervene, courts will not presume that the legislature intended to further cut down so short a time. But subject to this exception, intervening Sundays or holidays are generally counted, unless there is something to show a contrary intention upon the part of the legislature.Womack v. McAhren (1857), 9 Ind. 6; State, ex rel., v.McGinnis (1870), 34 Ind. 452; Yocum, Aud., v. First *Page 384 Nat. Bank (1896), 144 Ind. 272; Am. Tobacco Co. v.Strickling (1898), 88 Md. 500, 41 A. 1083, 60 L.R.A. 909; 26 R.C.L. 751; 38 Cyc 332.
It follows that the remonstrances of appellants were not filed within the time specified by the statute and they were properly stricken out.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428909/ | The appellees, Maurice and Abe Lowenstein, as plaintiffs, brought suit in their individual names against appellant, as defendant, to recover damages for the alleged breach of two 1. written contracts of sale, signed by appellant and by the Hoosier Mercantile Company, in which name the complaint alleged plaintiffs were conducting business as partners. The errors properly assigned are: (1) Sustaining a demurrer to the second paragraph of defendant's answer; (2) overruling defendant's motion for leave to file a fourth paragraph of answer; and (3) overruling defendant's motion for a new trial. Appellant has attempted, also, by an independent assignment of error to challenge the refusal of the trial court to submit certain equitable issues for trial and finding by the court, as requested by its motions made at different stages of the proceedings. But the submission of issues *Page 67
for trial by the court or by a jury is part of the trial, and only those rulings upon motions to submit which were specified as causes for a new trial are presented for review on appeal.Childers v. First Nat. Bank (1897), 147 Ind. 430, 436, 46 N.E. 825.
Appellant specified thirty-one alleged causes for a new trial, and in its brief has noted thirty-one "points," relating to as many different rulings complained of, many being subdivided, so that appellee, in answering its propositions, one after the other, has stated seventy-one "points." Such diffuse treatment of the many subjects precludes a comprehensive statement of the positions taken by the parties, and the reasons on which the court bases its decisions of each question suggested. The court is not justified in writing so much in an opinion that would be of no permanent value to the legal profession.
The defendant pleaded in abatement that plaintiffs had not filed in the office of the clerk of the circuit court, at Valparaiso, where they transacted business under the 2, 3. name of the Hoosier Mercantile Company, a certificate stating the full name and residence of each partner, as is required by § 12160 et seq. Burns 1926, § 9711a Burns 1914, Acts 1909 p. 358. Issue being joined on this plea, the trial court made a special finding at the request of defendant, upon which it stated conclusions of law to the effect that one of the partners had duly filed a proper certificate in June, 1919, and that plaintiffs were not thereafter transacting business in violation of said statute when the contracts sued on were executed. The plea in abatement alleged affirmative matter which the complaint was not required to negative and defendant had the burden of proof as to such facts. Henwood v. State, ex rel.
(1895), 11 Ind. App. 636, 39 N.E. 289; Ruth v. Ruth (1906),39 Ind. App. 290, 79 N.E. 523; Humphrey v. City Nat. *Page 68 Bank (1921), 190 Ind. 293, 307, 308, 130 N.E. 273. And silence of the finding as to a fact in issue is a finding against the party having the burden of proof to establish such fact.National Surety Co. v. State (1913), 181 Ind. 54, 67, 103 N.E. 105; McAdams v. Bailey (1907), 169 Ind. 518, 534, 82 N.E. 1057, 13 L.R.A. (N.S.) 1003, 124 Am. St. 240.
The statute says nothing about payment of a fee for filing such a certificate, and even if the act relating to fees and salaries (§ 7876 Burns 1926, § 7324 Burns 1914, § 1, Acts 1913 p. 4. 235), cited by appellant, applies to such a case (as to which we decide nothing), it only requires that the clerks "shall tax and charge upon proper books, to be kept in their offices for that purpose, the fees and amounts provided by law." It says nothing about requiring the payment of filing fees in advance, or within any particular time, and contains no provision for annulling the legal effect of filing a paper if the fee (five cents) is not paid at any such time. The finding that "no fee was demanded by the clerk and none was paid for such filing" did not negative the fact otherwise found that a certificate was filed.
Appellant is in error in assuming that its verified plea in abatement, alleging that the statute had not been complied with by filing a proper certificate, was a plea "denying the 5-7. capacity in which the parties sued" (§ 389 Burns 1926, § 371 Burns 1914, § 365 R.S. 1881), and that it imposed on plaintiffs the necessity of introducing evidence at the trial showing that a proper certificate had been filed. Lacking "legal capacity to sue" as applied to individuals suing in their own names, as the plaintiffs did in this action, has reference to some legal disability, such as infancy or idiocy, or the like.DeBolt v. Carter (1869), 31 Ind. 355, 363; Coddington v.Canaday (1901), 157 Ind. 243, 253, *Page 69
61 N.E. 567; Pittsburgh, etc., R. Co. v. Iddings (1901),28 Ind. App. 504, 510, 62 N.E. 112; Fowler v. Ball, Exrs. (1924),82 Ind. App. 167, 141 N.E. 64. The issue joined on the plea in abatement having been decided against defendant, and that decision not being challenged, the plea was without further effect when the issues joined on the answers in bar came on for trial.
But counsel for appellant are in error when they assert that § 12160 et seq. Burns 1926, supra, prohibited the partnership from executing contracts until the required certificate 8. should have been filed. The act contains nothing whatever to that effect, but merely provides that certain persons, if conducting a business under any name other than their real names, "shall file" a certificate stating certain facts, and that a violation of the provisions of the act shall be punished by a fine. The decisions cited from states like Michigan and Washington, where statutes are in force that expressly forbid partners to enter into a contract by any other name than their own individual names, until after they shall have filed the required certificate, are not authorities in this case.Humphrey v. City Nat. Bank (1921), 190 Ind. 293, 304, 305, 130 N.E. 273. Each of the contracts purported to bind the plaintiffs to sell and deliver and defendant to purchase, for a price stated, a designated quantity of "fine granulated sugar."
Defendant filed a cross-complaint seeking to reform the contract sued on, dated May 22, 1920, by inserting a stipulation that the sugar agreed to be sold and purchased should be 9-11. manufactured by and bear the brand of Federal Sugar Refining Company, which it alleged had been part of the original agreement, but had been omitted by mistake when the agreement was reduced to writing and signed. Issue being joined on this cross-complaint, the trial court heard evidence, and, on proper request, made a special finding *Page 70
to the effect that there was no such agreement between the parties, that they never intended to incorporate such a stipulation in the contract, and that, as written, the contract states the agreement entered into; on which a conclusion of law was stated that defendant should take nothing by its cross-complaint, and that plaintiffs should recover their costs. The issues joined on the complaint and answer were then tried by a jury, and after the return of a verdict, a new trial was ordered. Two months after the close of the first trial, defendant moved for leave to file an additional (fourth) paragraph of answer. The motion was overruled, and that ruling is complained of. The answer thus offered and excluded alleged that there existed in and throughout the State of Indiana, at the time the contracts were entered into and for five years prior thereto, a custom and usage of the wholesale and retail grocery trade "that whenever it shall be specified in a contract for the sale and purchase of sugar * * * that delivery shall be contingent upon arrival of raw material at refinery as covered by raw sugar contracts of some specified sugar refining company therein named, it is understood and agreed by the parties that the seller shall deliver * * * sugar manufactured by and bearing the brand of the sugar refining company so designated in said contract"; that therefore a stipulation in each contract sued on that delivery should be "contingent upon arrival of raw material at refinery as covered by the Federal Sugar Refining Company's raw sugar contracts" bound the plaintiffs to deliver sugar manufactured by said company, although each contract recited only the sale of and agreement to deliver a quantity of "fine granulated sugar"; and that plaintiffs had not delivered, tendered or offered to deliver sugar manufactured by that particular company. With this paragraph, defendant presented a verified motion for leave to file it *Page 71
which recited that after the decision of the issue joined on the cross-complaint and before the trial was entered upon which resulted in the verdict that had been set aside, defendant had moved for leave to file this paragraph of answer, but that its motion was overruled and leave was refused; that defendant did not know that the alleged custom would be material until the court refused to reform the contracts as prayed by its cross-complaint; and that the offer to file such an answer two months before, together with the fact that by reason of certain alleged facts the cause could not come on for trial until after the lapse of more than two weeks (and really was not tried until three months had elapsed), precluded any objection to filing the answer on the ground of surprise. The offered answer did not state facts constituting a cause of defense, and appellant could not have been prejudiced by the refusal to let him file it. The express agreement in writing by defendant to purchase and pay for a quantity of "fine granulated sugar," delivery of which was alleged in the complaint, could not be controlled, and, in effect annulled, by proving a custom and usage that only such sugar from the factories of one particular company could be delivered under the contract or need be paid for by the purchaser. Proof of a custom or usage is sometimes admissible to supply an omission or to explain an ambiguity in a contract, even where the agreement has been reduced to writing. But where the written contract is complete and certain in its terms, the expressed intent of the parties cannot be controlled by evidence of a usage or custom. The very object of the parties in writing and signing a contract may be to avoid the effect of usages and customs that would otherwise control, and evidence cannot be allowed to establish a usage or custom repugnant to, or which, if given effect, would contradict, displace, control or alter *Page 72
the legal effect of any of the express terms written into the contract. Van Camp Packing Co. v. Hartman (1890),126 Ind. 177, 180, 25 N.E. 901; Scott v. Hartley (1890), 126 Ind. 239, 245, 25 N.E. 826; Sohn v. Jervis (1885), 101 Ind. 578, 581, 1 N.E. 73; High Wheel Auto, etc., Co. v. Journal Co. (1912),50 Ind. App. 396, 400, 98 N.E. 442; Napier Iron Works v.Caldwell, etc., Iron Works (1915), 60 Ind. App. 317, 322, 110 N.E. 714. And the agreement by defendant to purchase and pay for a quantity of "fine granulated sugar," which plaintiffs alleged they had delivered, could not be nullified by proof of a custom that they need not accept and pay for any such sugar unless it was refined at a designated factory.
Under § 437 Burns 1926, § 418 Burns 1914, § 409 R.S. 1881, when issues of exclusive equitable jurisdiction are joined with issues of law in the same action "the trial of both may be 12. at the same time or at different times, as the court may direct." The specification as cause for a new trial that "the court erred in refusing to submit the defendant's cross-complaint for trial and finding by the court, contemporaneously with the submission of the cause on the complaint" was not well taken. The court had the right, in its discretion to try the equitable issue joined on the cross-complaint seeking reformation of the contract, at a different time.
An objection having been offered to a question asked by counsel for the plaintiffs and to a remark of the trial judge, the judge said: "I will dispose of this matter. Gentlemen of the 13. Jury, the remarks that counsel may make, when not giving testimony from the witness stand, you may disregard. Those remarks are made simply for the disposal of questions here, and any remark that I have made or that counsel may make you are not to permit to influence *Page 73
you in any way." Later that same day, plaintiffs called a witness and proved by him that he was an attorney representing the defendant in July, 1920. He was then asked a question to which defendant objected, when counsel for plaintiffs stated what they intended to prove. The court then inquired "What is the materiality," when counsel stated that "He (defendant's attorney) took steps to defeat this contract long before it was time to put the sugar on the track," and added that the speaker had "the evidence here in his hands." An objection to the offered evidence was sustained, but counsel also excepted to the remarks of counsel and asked that the court should instruct the jury to disregard them. The court then stated that he thought he had "admonished the jury sufficiently," and that he had "sufficiently advised the jury as to remarks of counsel," and defendant excepted. At the close of the evidence, after argument had been heard, the court gave an instruction to the effect that the jury should consider only the evidence introduced and permitted to remain, and should discard all extraneous matters, statements and suggestions, and said: "Any statements of counsel as to what they expect to prove or offer to prove, or any attempt to prove a fact, the proof of which is not admitted by the court, or which has been ordered stricken from the record, must be entirely disregarded and dismissed from your minds." In view of what the court had said to the jury shortly before and the instruction he gave afterward, we do not think defendant could have been harmed by the remark of counsel concerning the evidence which he offered to introduce that the court excluded. Therefore, we do not find it necessary to determine whether or not the remark, made in answer to a question by the court, was improper under the circumstances.
Appellant insists that the verdict is not sustained by *Page 74
the evidence, but there was evidence which, if believed, fairly tended to prove performance except so far as defendant 14. refused to accept performance, and we cannot disturb the verdict on the weight of conflicting evidence.
The extent of the cross-examination to be permitted is subject to the control of the trial court, in the exercise of a sound legal discretion, and it is not made to appear that the 15. court abused its discretion in this case.
Refusal to permit a witness called by defendant to answer a question on direct examination was not available error where there was no offer to prove, and it does not appear what 16. evidence would have been given in answer to the question if an answer had been permitted. Shepard v. Goben
(1895), 142 Ind. 318, 319, 39 N.E. 506; Gunder v. Tibbits,Admr. (1899), 153 Ind. 591, 608, 55 N.E. 762; Fowler v.Newsom (1909), 174 Ind. 104, 112, 90 N.E. 9.
That defendant operated stores in several different cities, and had a "district manager" in charge of two of those stores in Indiana had been proved by defendant, in answer to 17. questions asked of its witness, and, on cross-examination, he had testified, without objection, that he was then operating a retail grocery store for defendant at Little Rock, Arkansas, and that defendant was a corporation with headquarters at Memphis, Tennessee. He was then asked if defendant "runs a chain of stores over the country," and, over an objection and exception by defendant, answered that it operated some stores — that it owned some and received royalties on stores operated by individuals. We fail to perceive wherein defendant was prejudiced by the answer to this question.
It was within the discretion of the trial court to permit a witness to be cross-examined as to his relations *Page 75
with the defendant company, and whether he was drawing a 18. salary for the time spent in coming from Little Rock to attend the trial, as tending to show his interest in the result of the trial.
After defendant's business manager had testified in chief that he rejected a half carload of sugar delivered in barrels for the sole reason that the contract of June 16, 1920, under 19. which it purported to be shipped, called for delivery in bags (plaintiff's witnesses having testified that he gave a wholly different reason at the time), it was not improper to ask him on cross-examination whether he knew at the time that defendant was under contract to take a half car of the sugar from plaintiffs, packed in barrels, in that same month. It went to the credibility of his testimony as to what reason was given at the time for rejecting the sugar delivered in barrels.
Overruling an objection to a question is not reversible error where no testimony was given in answer to it. Appellant complains of a question, the answer to which is not given in its 20. brief. But, on looking into the transcript, we find that the witness merely said that he could not answer it by yes or no. This was not harmful to appellant.
A witness called by appellant testified that he had a conversation in his office with plaintiff's business manager, the witness thought the first of June, but it was "in 1920, 21. either in June or July — it was the summer-time," but an objection was sustained to a question asking that he "give that conversation." The witness had nothing to do with the business of either the defendant or the plaintiffs, and they transacted no business at his office, but appellant insists that, in the conversation inquired about, certain admissions against the interest of plaintiffs were made. It is enough to say that the time when and circumstances *Page 76
under which the conversation occurred were not sufficiently proved to show that the supposed admissions by plaintiff's agent were made when acting within the scope of his authority in the transaction of plaintiffs' business. Other parts of the record indicate that, to be at all pertinent, the admissions must have been made in the last two or three days of July, and as the witness could only say that he thought it was the last of June, but it was either June or July — that it was summer-time, the pertinency was not sufficiently shown.
The only evidence that any of the sugar failed to measure up to the quality and grade of "fine granulated sugar" was the testimony of two witnesses that they saw one bag (100 22. pounds) "right in the doorway of the car," that had been "snagged" so that some of the sugar was spilled out, which was "off color," was "dark sugar," or "a little brown." One witness testified that a bag of "Gottschalk sugar near the door had quite a hole in it," and that he "took a sample of the Gottschalk sugar" and put it in a paper bag which he produced at the trial, and it was offered in evidence, but the court refused to admit it. The contracts called for a quantity of sugar equivalent to 601 bags, each shipment to be made with a like amount of sugar for another purchaser, being a total of about 1,200 bags. The sample taken from one bag near the car door that had been "snagged" was not shown to be a fair sample of the lot. Neither can we assume that the jurors had such expert knowledge of sugars that they could judge intelligently whether a sample of granulated sugar offered for their inspection would grade as "fine" granulated sugar, or was "off color" because too dark. The ruling complained of was not erroneous. Trego v. Arave
(1911), 20 Idaho 38, 116 P. 119, 35 L.R.A. (N.S.) 1021;Hagee v. Grossman *Page 77
(1869), 31 Ind. 223, 225; Pacific, etc., Co. v. Bravinder
(1896), 14 Wn. 315, 44 P. 544.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428910/ | On November 6, 1936, Edward P. Shipley was struck by an automobile operated by appellee, and suffered injuries from which he died. He left surviving him his widow, America Shipley. Appellant instituted this action against appellee to recover damages for the benefit of said widow, as authorized by our statutory law (Sec. 2-404 Burns' Ind. Stat. Anno. 1933, Sec. 51 Baldwin's Ind. Stat. 1934). Before any trial was had on the complaint filed, the surviving widow, America Shipley, died, and thereafter appellant filed a second paragraph of complaint, alleging, among other facts, the death of said widow, and by said second paragraph sought to recover hospital, medical and funeral expenses occasioned by the injury and death of said Edward P. Shipley, together with the costs of administration of the estate.
Appellee filed a plea in abatement which, omitting its formal parts, is as follows:
"Virginia Daly, the undersigned, represents and *Page 445
says that she is the defendant in the above-entitled cause of action; that the only dependent of plaintiff's decedent surviving him was his widow, America Shipley, as disclosed by both paragraphs of the complaint herein filed; that said America Shipley, the widow of plaintiff's decedent, departed this life on April 21st, 1937, before any trial of this cause and before any judgment was rendered in this cause.
"WHEREFORE, this defendant moves the Court to abate this action with respect to each paragraph separately of the complaint."
In due course appellant filed demurrer to the plea in abatement, and before any ruling thereon dismissed the first paragraph of complaint. Thereafter, the court overruled appellant's demurrer, and he excepted, refused to plead further, and judgment was rendered against him "that this action do in all things abate, and that plaintiff take nothing by his complaint in this action," also, that defendant recover costs. This appeal followed. The error assigned is the overruling of the demurrer to the plea in abatement.
The statute here involved is as follows:
"When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she (as the case may be) lived, against the latter for an injury for the same act or omission. The action shall be commenced within two (2) years. The damages can not exceed ten thousand ($10,000), and, subject only to the provisions of this act hereinafter contained, must inure to the exclusive benefit of the widow or widower (as the case may be) and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased; Provided, however, That if such decedent departs this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, such personal representative may nevertheless maintain such action and the damages, in such event, shall inure to the exclusive *Page 446
benefit of the person or persons furnishing hospitalization or hospital services in connection with the last illness or injury of decedent not exceeding two hundred dollars ($200), performing medical or surgical services in connection with the last illness or injury of the decedent not exceeding one hundred dollars ($100); to the undertaker for the funeral and burial expenses, not exceeding three hundred dollars ($300), and to the personal representative, as such, for the costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney's fee, not exceeding two hundred and fifty dollars ($250); and in case of a death under such circumstances, and when such decedent leaves no such widow, widower, or dependent children, or dependent next of kin, surviving him or her, the measure of damages to be recovered shall be the total of the reasonable value of such hospitalization of (or) hospital service, medical and surgical services, such funeral expenses, and such costs and expenses of administration, including attorney fees, not exceeding the total amount of eight hundred and fifty dollars ($850); Provided, however, That this act shall not in any way limit or lessen the liability or right of recovery under the law as it now exists before the passage of this act."
The right of action given by this statute is not a continuation of any action existing in favor of the deceased person prior to his death, but is a new right of action which exists only 1. by virtue of the statute creating it, and accrues on the death of the decedent. It must be prosecuted by the personal representative of the deceased, and since 1933, when the statute was amended to so provide, such representative may prosecute an action, and, if the facts warrant it, recover damages which will inure to the benefit of one or the other of three classes of persons. Prior to the amendment of 1933, there were but two classes of persons in whose interest such an action would lie, to-wit: First, the widow, or widower (as the case may be) and children, if there be such persons; and second, *Page 447
other persons who are next of kin and have suffered a pecuniary loss. Since then "if such decedent departs this life leaving no such widow, or widower, or dependent children, or dependent next of kin, surviving him or her, such personal representative may nevertheless maintain such action, and the damages, in such event shall insure to the exclusive benefit" of the third class of persons designated by the statute as among those who may derive benefit from the successful prosecution of such action. The damages recoverable "when such decedent leaves no such widow, widower, or dependent children, or dependent next of kin, surviving him or her" are limited to the reasonable value of the hospital, medical, and surgical service, funeral expenses, and costs of administration, not exceeding the total amount of $850.00. (By Amendment of 1937, this amount is increased to $1,150.00. Acts 1937, ch. 292, sec. 3, p. 1341.)
As heretofore stated, the right of action accrues upon the death of any person whose death results from injuries suffered by reason of the wrongful act or omission of another. In the 2. instant case, as appears from the allegations in the pleadings filed by the respective parties, a widow survived, and the right granted by the statute inured to her benefit, to the exclusion of all others. She, having died before trial, and there being other persons in whose behalf an action might have been maintained had there been no widow, does all right of recovery terminate with the death of the widow? We are of the opinion that the question should be answered affirmatively. Statutes of this character are in derogation of the common law, and may not properly be extended beyond the legitimate meaning of the words employed in them. In the instant case, when the right of action accrued, the widow was the surviving person named by our statute as the beneficiary *Page 448
of the right granted. The right of action existed for her benefit alone, and there was no right of action for the benefit of any other person or persons. We find nothing in the statute which can reasonably be construed as granting to any other person any right of action upon the death of the widow. No provision is made for a contingency of this character. To hold that, upon the death of the surviving widow, the special representative of the decedent might, either by an additional paragraph of complaint or by a new suit, prosecute an action to recover in behalf of those mentioned in the proviso of the statute, and for whom recovery is here sought, would be to disregard the plain and express wording of the statute which permits such recovery only when there is no widow, widower, children, or next of kin.
Our attention is directed by appellant to that part of the amendatory act of 1933 (hereinbefore quoted) which provides "that this act shall not in any way limit or lessen the liability 3. or right of recovery under the law as it now exists before the passage of this act." It is contended that it was the intention of the Legislature to "enlarge the liability of a person causing death by a wrongful act." This is undoubtedly true, and such is the result of the legislation. Prior to the passage of the amendatory act, both courts of review of this state by a unanimity of decision have held that no part of the funds recovered in such an action were available for the payment of indebtedness incurred by reason of the injury and death. There was no liability against the party who was chargeable with the wrongful act for hospital, medical, or surgical expenses under any condition which might exist. It is, and, at the time the statute involved was passed, it was a matter of common knowledge that many persons died as the result of injuries so inflicted, *Page 449
leaving no widow, widower, children, or next of kin surviving. The need for proper attention following the injury of any such person, and for his burial, furnished a sufficient motivating cause for the legislation in question.
There is but one cause of action created by the statute, and, as heretofore stated, it accrues upon the death of the injured party, and inures for the benefit of those named in the 4, 5. statute in the order therein stated, as of the date of death, and not otherwise. If there be no survivors of the first class, the right is for the benefit of those of the second class, if any, and if none, then for the benefit of those of the third class, but the right when it once accrues does not pass upon the death of those of one class of persons to the next class, since the right given is a statutory one, and the statute does not so provide.
For cases discussing phases of the subject-matter herein considered, and supporting the conclusion reached, see Dillier,Administratrix v. Cleveland, etc., R. Co. (1904),34 Ind. App. 52, 72 N.E. 271; Pittsburgh, etc., R. Co. v. Reed, Admr.
(1909), 44 Ind. App. 635, 88 N.E. 1080; Granick v. Rajcany,Administrator (1913), 54 Ind. App. 274, 101 N.E. 745; Lese v.St. Joseph Valley Bank, Administrator (1924), 81 Ind. App. 517, 142 N.E. 733; Cincinnati, etc., R. Co. v. McCullom, Admr.
(1915), 183 Ind. 556, 568, 109 N.E. 206; City of Indianapolis
v. Willows, Admr. (1935), 208 Ind. 607, 613, 614, 194 N.E. 343.
The judgment is affirmed. *Page 450 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4316725/ | Perez v Barling (2018 NY Slip Op 06419)
Perez v Barling
2018 NY Slip Op 06419
Decided on September 28, 2018
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on September 28, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
1061 CA 17-01751
[*1]MICHELY J. PEREZ, PLAINTIFF-RESPONDENT,
vCHARLES BARLING, DEFENDANT-APPELLANT, AND TERRY L. COLE, DEFENDANT.
DENIS A. KITCHEN, WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.
MARTIN J. ZUFFRANIERI, WILLIAMSVILLE, FOR PLAINTIFF-RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Thomas P. Franczyk, A.J.), entered June 20, 2017. The judgment awarded plaintiff money damages upon a nonjury verdict.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs for reasons stated in the "Decision and Verdict" at Supreme Court.
Entered: September 28, 2018
Mark W. Bennett
Clerk of the Court | 01-03-2023 | 09-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3428932/ | Appellee, John C. Sparks, was granted a final injunction by the court below perpetually enjoining the appellant, Carl L. Burton, from obstructing or in any way interfering with the use of a certain public highway. The highway in question was alleged to have been established by continuous user by the public for a period of more than forty years, and extended from a farm gate upon the eighty-eight acre improved farm *Page 533
of appellee, across land of appellant, to a public highway of Monroe County, Indiana, known as the "Buena Vista road."
Appellant, upon appeal, is relying upon the claimed error of the trial court in overruling his motion for a new trial. This motion for a new trial stated two grounds, namely:
1. The decision of the court is not sustained by sufficient evidence.
2. The decision of the court is contrary to law.
Numerous witnesses, on behalf of both appellant and appellee, testified at the trial. Their testimony showed that the appellee was the owner of an eighty-eight acre farm located in Indian Creek Township of Monroe County; that he had lived on this farm for forty years; that east of the farm was an improved highway which ran in a general north and south direction and which was known as the Breeden road or Buena Vista road; that the farm of appellee did not abut upon this improved highway, but between the east boundary line of such farm and such highway, was located the land of appellant; and that extending from a farm gate on the east boundary of the land of appellee, across the land of appellant, to the Breeden road or Buena Vista road, was a road which was used by various persons for the purpose of traveling to and from the farm of appellee. The land of appellant was the only land crossed by the same. Appellant had constructed a fence near the east end of the road in question, so that the use of the particular highway for travel to and from appellee's land was prevented.
A number of witnesses testified concerning the user of this particular road, or travel-way, at various times; and there is evidence that it had been used by neighbors and visitors in going to and from the land of appellee *Page 534
during a period of more than forty years. There is also evidence that there was a public road running along the south side of the land of both appellant and appellee, and that such public road intersected the Breeden or Buena Vista road, and that appellee had a means of ingress and egress to his eighty-eight acre farm over such road. There was also evidence of travel, by neighbors and visitors, to the land of appellee, and across the land of appellant, at places other than the public highway which appellant is alleged to have obstructed.
Appellant does not question the sufficiency of the evidence to show the establishment of the highway in question by continuous user, but he is contending that the evidence was not sufficient to justify the trial court in granting a permanent injunction upon the following grounds:
1. It was incumbent upon appellee to allege and prove that the acts of appellant in interfering with the user of the highway in question would produce great injury to appellee, and that there is no allegation or proof of any damage to appellee.
2. The evidence does not show an injury peculiar to appellee and not common to the public; and if appellee suffered any inconvenience because of the obstruction of the highway in question, he had an adequate legal remedy.
3. That the evidence was not sufficient to definitely locate the highway in question so that its exact location could be ascertained and entered of record.
There is an obvious distinction between injury and damage that is not always observed in dealing with the question of injunctive relief. Whatever invades a man's right of dominion over 1-4. his property is a legal injury whether damage ensues or not. *Page 535
It is a right for the violation of which the law imports damage, and courts of equity will interpose in a proper case to protect the right, without any reference to the question of actual damage. It is true that it is not every injury which will warrant the issuance of an injunction. It is a familiar principle that the remedy is available only where the injury is actual or positive and substantial, and is irremediable at law. Equity will not interfere by injunction where the damages suffered by the complainant are so small and the rights invaded so unimportant as to make the case a trivial one, but injury may be great or irreparable as far as a complainant's rights are concerned and yet no provable damage exists. The nonexistence of provable damage does not prevent the interposition of a court of equity and the granting of injunctive relief. The nonexistence of an adequate legal remedy by which the complainant may be fully compensated in damages is not only the foundation, but also an indispensable prerequisite for the exercise by equity of its power to grant injunctive relief. Warehouse Distributing Corp.
v. Dixon (1933), 97 Ind. App. 475, 187 N.E. 217.
In the case of Ross v. Thompson (1881), 78 Ind. 90, 94, the Supreme Court of this state points out that an individual may have a special right or interest in a public highway upon which his land abuts. In discussing certain instructions given in such cause, the court says:
"The instructions do not declare that an individual can have a private way by prescription in a public highway. They do assert that he may have a special right or interest in a public highway upon which his land abuts. This is good law. A man's interest in a public highway which affords means of getting to or from his land is a right which even the Legislature can not take from him without compensation." *Page 536
In the case of Strunk v. Pritchett (1901),27 Ind. App. 582, 586, 61 N.E. 973, this court considered an action where the appellee sought and obtained an injunction against appellant enjoining him from closing or obstructing a strip of ground sixteen feet wide, averred to be a public alley, and on appeal appellant contended, that granting the strip in question was a public alley, that the appellee must fail for the reason that she had failed to show a special or peculiar damage not sustained by her in common with the general public. This court says:
"The obstruction complained of not only materially interferes with appellee's access to her real estate but it takes it entirely away, so far as the way in question is concerned. It cannot be said that she can reach the front of her lot by the street, and therefore suffers no injury. If she is entitled to the use of the alley, the existence of a different way at another place cannot deprive her thereof. The special injury necessary to sustain the action is therefore made out."
In the case of City of Gary v. Much (1913), 180 Ind. 26, 32, 101 N.E. 4, the appellee obtained an injunction enjoining the city from vacating a highway which furnished appellee means of access to his home, although his property did not abut upon such highway. The Supreme Court says:
"Appellee, in his complaint, shows a special interest in the Clark Road as an appurtenance to his property. The closing of the road would deprive him entirely of access to his home except over the waters of Lake Michigan. The complaint avers a special and peculiar damage not sustained by the general public and such as to entitle him to injunctive relief."
It is plain that the injury suffered by appellee was different in kind from that suffered by the public in general. Appellee was the only property owner whose *Page 537
means of ingress and egress to his real estate was obstructed or interfered with by the closing of the particular highway. In some degree the closing of such highway interfered with appellee's dominion over and user of his real estate. No other individual was so affected.
Appellant is relying upon the case of Eads v. Kumley
(1918), 67 Ind. App. 361, 370, 119 N.E. 219, where this court held that the complaint of appellee did not state facts sufficient to show that the injury to the complainant was different in kind from that sustained by the public. This court, in such opinion, says:
"Nor does it appear from the complaint that the access to appellees' lands was substantially interfered with. The fact that appellees' lands abutted on the highway is not enough, of itself, to show special damages to appellees, but the obstruction must be upon a part of the highway, the fee in which is owned by the abutting owner, or the obstruction must interfere substantially with access to the abutting land."
There is evidence in this cause from which the trial court could determine that the obstruction of the highway in question substantially interfered with ingress and egress to and 5-7. from appellee's farm. It was within the province of the trial court to weigh the evidence; and the evidence was such, that we cannot say, as a matter of law, that it does not show a substantial interference with the access to appellee's property and his user thereof. Where there is evidence in the record to support the decision of the trial court, the decree will not be reversed unless the record clearly shows an abuse of discretion. Wasmuth-Endicott Co. v. Richmond Cabinet Co.
(1928), 86 Ind. App. 686, 159 N.E. 697.
Appellant also calls attention to the case of Eaton v.Locke (1909), 202 Mass. 324, 88 N.E. 838, and Robinson *Page 538
v. Brown (1902), 182 Mass. 266, 65 N.E. 377, in which the 8. Supreme Court of such state lays down the general proposition that a person cannot maintain an action for the obstruction of a public highway, unless he proves that he has sustained some special and peculiar damages, different in kind and not merely in degree, from that suffered by the public. With this general proposition we are in agreement, but there was evidence in this cause from which the trial court could find that the appellee suffered injury, which was different in kind, from that suffered by the general public.
Appellant does not cite any authorities or set forth any facts to sustain his contention that the description of the particular highway was insufficient to definitely locate the same.
The trial court did not err in overruling appellant's motion for a new trial.
The death of appellee herein, after the submission of this cause in this court, has been suggested, and the judgment is therefore affirmed as at the term at which submission was 9. made. § 2-3235, Burns' 1933, § 510, Baldwin's 1934.
NOTE. — Reported in 36 N.E.2d 962. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428933/ | This is an action instituted by appellee Lora E. Schrader against appellant Railway Mail Association to recover an "accidental death benefit" under a "beneficiary department certificate," hereinafter called "policy", issued by appellant, a fraternal beneficiary association, to William C. Schrader, appellee's husband, who died June 2, 1932.
It would serve no good purpose to discuss the pleadings. The cause was submitted to a jury for trial and the jury returned a verdict for appellee, plaintiff below, in the amount prayed for in the complaint. Judgment was rendered upon the verdict. *Page 237
The overruling of a motion for new trial, which was filed by appellant, is assigned as the only error upon appeal.
The causes for new trial contained in the motion therefor are: (1) the verdict is not sustained by sufficient evidence, (2) the verdict is contrary to law, (3) contended error in refusing to give a peremptory instruction to find for defendant, (4) contended error in giving each of several instructions, (5) contended error in refusing to give each of several instructions.
Substantially the same law question is presented under each of the grounds for new trial numbered one, two and three above, and that is the question whether or not, under the evidence in this record, as a matter of law, "disease, defect or bodily infirmity . . . (was) a contributing cause of (decedent's death) . . ." within the meaning of said terms as used in the policy.
The policy provided: ". . . Accidental death shall be construed to be . . . violent death from external violent and accidental means, resulting directly, independently and exclusively of any other causes. . . . There shall be no liability whatever whendisease, defect or bodily infirmity is a contributing cause ofdeath . . . ." (Our italics.)
The evidence shows that decedent was fifty four (54) years old at the time of his death; that continuously for more than twenty (20) years prior to the injury which resulted in his death he was a railway mail clerk; that during that period of time he lost only two days' work on account of sickness or disability and said two days' loss occurred about two years prior to his death; that he was at all times of a cheerful and sociable disposition and never complained of pain or suffering prior to said injury.
On May 14, 1932, he and his adult son were engaged in removing the bath fixtures in the bathroom of his *Page 238
home preparatory to laying new linoleum on the floor and while attempting to carry the bath tub through the door, he carrying it at one end and his son at the other end, decedent slipped and fell over and against the tub.
Immediately following the injury and continuously until his death, which occurred June 2, 1932, eighteen days later, decedent suffered severe pains in his chest, abdomen and side; he was weak, suffered from dizziness and cold sweats; and on account of pain and weakness was unable to sit or stand erect.
Within four days after the injury he was passing old blood through his bowels. On May 26th he vomited large quantities of blood. He continued to vomit large quantities until May 28th when an operation was performed upon him and it was ascertained that he had suffered a hemorrhage of the stomach at a place where there was a gastric ulcer. He contracted post-operative pneumonia shortly after the operation and died June 2, 1932, the pneumonia being the immediate cause of his death. Apparently he was recovering from the operation when the pneumonia set in.
The evidence shows further that the injury caused the hemorrhage; that without the injury there would not have been a hemorrhage; and that the ulcer would have yielded to treatment. The existence of the ulcer was unknown to the insured before the operation.
Appellant admits that under the rule laid down by our Supreme Court in Continental Casualty Co. v. Lloyd (1905),165 Ind. 52, 73 N.E. 824, the verdict of the jury would be sustained by the evidence if the policy did not contain the express clause, "There shall be no liability whatever when disease, defect or bodily infirmity is a contributing cause of death", but appellant contends that said clause being in the policy, the verdict of the jury is not sustained by the evidence, *Page 239
and the verdict is contrary to law, and the court erred in refusing to give the peremptory instruction for defendant. (As following Continental Casualty Co. v. Lloyd, supra, seeInter-Ocean Casualty Co. v. Wilkins (1933), 96 Ind. App. 231,182 N.E. 252.)
Appellant has cited several Indiana cases involving accident insurance wherein the decision was based upon clauses in accident insurance policies which clauses are similar in effect to the clause relied on here, but in none of said cases were the facts similar to the facts in the instant case. We have searched for but have not found such an Indiana authority. (In this connection see Sharp v. The Commercial Travelers' Mutual Accident Assn.of America (1894), 139 Ind. 92, 37 N.E. 353.)
Appellant has cited several foreign cases wherein a distinction is made between accident insurance policies which contain such further provisos, in effect that "there shall be no liability whatever when disease, defect or bodily infirmity is a contributing cause of death . . .", and such policies which donot contain such further proviso. See Fidelity and CasualtyCo. v. Meyer (1912), 106 Ark. 91, 152 S.W. 995; Korff v.Travellers Insurance Co. (1936), 83 F.2d 45; Ewing v.Equitable Life Assurance Society of the United States (1936), 320 Pa. St. 577, 82 A. 369; Kelley v. Pittsburgh CasualtyCo. (1917), 256 Pa. 1, 100 A. 494; Patterson v. The OceanAccident and Guarantee Corp. (1905), 25 App. D.C. 46. Appellant has also cited some foreign cases which indicate that the decisions were based primarily on such further provisos. SeeKorpf v. Travellers Insurance Co. supra; White v. StandardLife and Accident Ins. Co. (1905), 95 Minn. 77, 103 N.W. 735, 884; National Masonic Accident Assn. v. Shryock (1896), 73 Fed. 774; Fidelity and Casualty Co. v. Meyer, supra. *Page 240
In none of the cases cited by appellant are the facts more similar to the case before us than in Silverstein v.Metropolitan Life Ins. Co. (1930), 254 N.Y. 81, 83-86,171 N.E. 914, (Opinions by Cardozo, C.J.) We quote from the opinion as follows:
"Defendant issued its policy of insurance whereby it insured plaintiff's husband against the results of bodily injuries `caused directly and independently of all other causes by accidental means,' the insurance in the event of his death to be payable to his wife. The policy was not to "`cover accident, injury, disability, death or other loss caused wholly or partly by disease or bodily or mental infirmity or medical or surgical treatment therefor'."
"The insured, while lifting a milk can into an ice box, slipped and fell, the can striking him on the abdomen and causing such pain that he was unable to get up. A surgeon, opening the abdomen found a perforation at the junction of the stomach and the duodenum, through which the contents of the stomach escaped into the peritoneum, causing peritonitis and, later, death. At the point of perforation there had been a duodenal ulcer, about the size of a pea. The existence of this ulcer was unknown to the insured, and were it not for the blow, would have had no effect upon his health, for it was dormant, and not progressive, or so the triers of the facts might find. Even so, there had been a weakening of the wall in some degree, with the result that the impact of the blow was followed by perforation at the point of least resistence. The question is whether death was the result of an accident to the exclusion of other causes.
"We think the evidence sustains a finding that the ulcer was not a disease or an infirmity within the meaning of the policy. Left to itself, it would have been as harmless as a pimple or a tiny scratch. Only in the event that it was progressive would it become a source of pain or trouble. *Page 241
If dormant, as it was found to be, it was not only harmless in itself, but incapable of becoming harmful except through catastrophic causes, not commonly to be expected. In a strict or literal sense, any departure from an ideal or perfect norm of health is a disease or an infirmity. Something more, however, must be shown to exclude the effects of accident from the coverage of a policy. The disease or the infirmity must be so considerable or significant that it would be characterized as disease or infirmity in the common speech of men (Eastern Dist. Piece Dye Works v. Travelers Ins. Co., 234 N.Y. 441, 453). `Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract' (Bird v. St. Paul F. M. Ins. Co., 224 N.Y. 47, 51; Goldstein v. Standard Acc. Ins. Co., 236 N.Y. 178, 183; Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303). A policy of insurance is not accepted with the thought that its coverage is to be restricted to an Appollo or a Hercules. (Our italics.) . . .
"Any different construction would reduce the policy and its coverage to contradiction and absurdity. The infinite interplay of causes makes it impossible to segregate any single cause as operative at any time and place to the exclusion of all others, if cause is to be viewed a concept of science or philosophy (Schwarz v. Commercial Travelers Mut. Acc. Assn., 254 N.Y. 523, affg. 227 A.D. 711; 132 Misc. Rep. 200; Lewis v. Ocean Acc. G. Corp., 224 N.Y. 18, 20). The courts have set their faces against a view so doctrinaire, an estimate of intention so headed toward futility. `We are to follow the chain of causation so far, and so far only, as the parties meant that we should follow it. The causes within their contemplation are the only causes that concern us' (Goldstein v. Standard Acc. Ins. Co.,
supra)."
The rule of construction announced in the Silverstein *Page 242
case, supra, was approved in World Ex. Bank v. Com. CasualtyIns. Co. (1930), 255 N.Y. 1, p. 5, 173 N.E. 902; McMartin v.Fidelity and Casualty Co. (1934), 264 N.Y. 220, p. 221,190 N.E. 414; Preferred Accident Ins. Co. of N.Y. v. Combs
(1935), 76 F.2d 775. The case of Reynell v. IndemnityIns. Co. of North America (1932), 258 N.Y. 572, 180 N.E. 337, was reversed on authority of the Silverstein case, supra.
The similarity of the facts in that case and the facts in the case before us is apparent. There is no material difference between the provisos relied upon in the two cases, to the 1. effect that there shall be no liability when disease etc. is a contributing cause of the death. We think the rule of construction announced in the Silverstein case, supra, that, "The disease or the infirmity must be so considerable or significant that it would be characterized as disease or infirmity in the common speech of men" is the soundest and fairest rule of construction announced in such cases, and we adopt it.
Applying said rule to the instant case, we hold that the evidence sustains a finding that the ulcerous condition of decedent's stomach was not a condition which would be considered a disease, defect or bodily infirmity "in the common speech of men", and that appellant is not entitled to escape liability under the policy on account of said proviso relied upon by appellant.
In instruction seven the court told the jury, ". . . In order to entitle the plaintiff to recover anything in this action you must find . . . that the death of decedent . . . was 2. proximately caused by external violent and accidental means alone. If disease, defect or bodily infirmity was aproximate cause of the death . . . there is no liability. . . ." (Our italics.) *Page 243
Instruction ten given to the jury prescribed: "If you believe from the evidence that the death of said decedent was caused by said gastric ulcer alone or that the said gastric ulcer and said accident were both contributing proximate causes, . . . your verdict should be for the defendant. . . ." (Our italics.)
Each of said instructions construes said proviso, which is relied upon by appellant, as excluding liability in cases where disease, defect or bodily infirmity is a proximate cause of insured's death. Said proviso does exclude such cases, but it excludes other cases too, to-wit; cases where disease, defect or bodily infirmity is a contributing cause of the insured's death regardless of whether or not the disease, defect or bodily infirmity is a proximate cause of the death. Each of said instructions might reasonably have led the jury to conclude that under the law of the case before them, in order to find for the defendant on the basis of said proviso, it was not sufficient if the evidence showed that the condition of decedent's stomach was a contributing cause of his death, but that the evidence must show that it was a proximate cause thereof. Each of said instructions was improper.
Other questions are presented in support of contended error in the giving of each of several other instructions, and in the refusal to give each of several instructions.
It is our opinion that the evidence conclusively shows that the ulcerous condition of decedent's stomach was not a condition which would be considered a disease, defect or bodily 3. infirmity "in the common speech of men", — therefore we hold that each of said instructions seven and ten given by the court was harmless and that the giving or the refusal to give said other instructions complained of, or any of them, if improper, was harmless. *Page 244
The record shows that appellant's substantial rights were not affected by the giving or the refusal to give said instructions complained of or any of them and therefore the judgment 4. should not be reversed on account of the giving or the refusal to give instructions or any of them. Sec. 2-1071 Burns 1933, § 175, Baldwin's 1934.
No reversible error having been shown, the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428939/ | This action was brought by the appellant in the Marion Superior Court and through it she seeks to recover from the appellee, as an individual, the sum of $11,577.00 which she claims is her property and which she turned over to the appellee, as the executor of the estate of Emily Collison, deceased, now pending in the Marion Probate Court, under the mistaken impression that said money was legally an asset of said estate and which was accepted by the appellee, as such executor, under a like erroneous impression. The Marion Superior Court concluded that, even so, it had no jurisdiction of the subject matter of the litigation because it considered the money involved to be in the exclusive custody of the Marion Probate Court and entered judgment abating the action.
The appellant contends that her suit was properly instituted in the Marion Superior Court against the appellee in his personal character because (1) the things or occurrences of which she complains happened after the death of Emily Collison and do not constitute a claim against her estate within the meaning of § 6-1001, Burns' 1933, requiring claims to be filed in the office of the clerk in which said estate is pending; (2) she cannot sue the appellee in his representative capacity because the estate which he represents is not chargeable with his unlawful acts; and (3) as the money she seeks to recover is not an asset of the Collison estate and came into the appellee's hands as the executor thereof under the mistaken impression that it was such an asset, the appellee holds said money in his personal character and not as an officer of the Marion Probate *Page 652
Court and therefore the subject matter of this litigation is not in custodia legis.
We agree with the appellant in her first contention. The cause of action she asserts is not a claim against the estate of Emily Collison, deceased, and the procedure for its 1, 2. enforcement is not controlled by § 6-1001, Burns' 1933. In construing this statute the Supreme Court said inWilliams v. Williams, Admr. (1940), 217 Ind. 581, 29 N.E.2d 557, that the term "any claim" as used therein "is generally construed to mean debts or demands of a pecuniary nature which could have been enforced against a decedent in his lifetime and could have been reduced to a simple money judgment." The facts constituting the appellant's cause of action occurred after the death of Emily Collison and obviously such action could not have been enforced against her in her lifetime.
In reference to the appellant's second contention it may be said that it is the general rule that an estate cannot be held liable for a tort committed by the trustee, executor, or 3, 4. administrator thereof. Hankins, Adm'r. v. Kimball
(1877), 57 Ind. 42; Evans v. Hardy, Adm'r. (1881),76 Ind. 527; Berghoff v. McDonald (1882), 87 Ind. 549;Riley v. Kepler (1884), 94 Ind. 308; 34 C.J.S. Executors and Administrators, § 713, p. 699. When such representative "commits a tort he steps out of the line of his duty; in other words, in so far as he commits a wrong, he does not represent the estate, and therefore it should not be held liable." Note 44 A.L.R. 639. However, it was said in Isbell v. Heiny, Administrator
(1941), 218 Ind. 579, 33 N.E.2d 106, that the decisions in this state indicate "that an estate is sometimes answerable for the torts of the executor or administrator and the general rule has been and possibly should be relaxed *Page 653
in the interest of avoiding circuity of action." Whether the general rule is relaxed in the present case and the appellant's action should have been brought against the appellee in his representative capacity, we find it neither proper nor essential to decide because the basic problem involved in this controversy is a possible conflict of jurisdiction over the same property between two co-ordinate courts. Even though this action were brought against the appellee in his representative capacity in the Marion Superior Court, that court would still lack jurisdiction if the money involved were already in custodialegis when the action was begun.
This brings us to a consideration of the appellant's third contention that in the administration of a decedent's estate no property can be said to be in custodia legis when it does not belong to such estate and its possession is wrongfully obtained or withheld by the executor thereof.
In support of this contention the appellant relies chiefly upon five early Indiana cases, to-wit: Rodman v. Rodman,Administrators (1876), 54 Ind. 444; Hankins, Adm'r v.Kimball, supra; Rose v. Cash (1877), 58 Ind. 278; Hendrix
v. Hendrix, Executor (1870), 65 Ind. 329; Evans v. Hardy,Adm'r., supra. These cases all hold that when an administrator or executor unlawfully comes into possession of personal property belonging to a third person, or unlawfully withholds possession thereof, his possession is that of an individual and the owner's remedy sounds in tort and lies against such administrator or executor in his personal character. None of these decisions specifically discuss the doctrine of custodia legis although they clearly indicate that the property in controversy was not so held. In both the Rodman and Evans cases the question was presented, without objection, upon a claim filed in the office of the *Page 654
clerk of the court in which the estate was pending and subsequently transferred to the trial docket as provided by § 6-1001, Burns' 1933. Thus the question of the right of a co-ordinate court to determine the controversy was not involved.
We find a discussion of the question of jurisdictional conflict between co-ordinate courts, under circumstances somewhat similar to those at bar, in the case of Martz v. Putnam (1889),117 Ind. 392, 20 N.E. 270. William B. Dickson Company, being insolvent, made a voluntary assignment in the Marion Circuit Court for the benefit of its creditors and Martz was duly appointed assignee of such insolvent estate. Putnam sued Martz individually in the Marion Superior Court to recover possession of certain personal property he claimed to own and which Martz unlawfully withheld. Martz answered to the effect that he came into possession of the disputed property as an asset of the insolvent estate of William B. Dickson Company and therefore he should be sued in his representative capacity in the Marion Circuit Court where such estate was pending. The court held such position untenable because Putnam owned the property and had the right to its possession and the detention thereof by Martz was wrongful. He could not be heard to say that he acted unlawfully in his capacity as assignee and thus avoid being sued as an individual in the Marion Superior Court.
The above cases apparently leave the appellant free to sue the appellee as an individual in the forum of her choice. However, in two recent decisions, the Supreme Court has treated the fact that an administrator or executor is wrongfully in possession of another's property as unimportant in determining whether such property is in custodia legis. State ex rel. Tuell v. ShelbyCircuit Court (1939), 216 Ind. 231, 23 N.E.2d 425; *Page 655 Isbell v. Heiny, Administrator, supra. In the Isbell case the court was called upon to determine whether a replevin suit against an administrator will lie in a court other than that in which the estate he represents is pending. Replevin sounds in tort and when brought against an administrator for the recovery of personal property in his possession necessarily charges that such possession is unlawful. Under the early decisions such possession is held to be in the personal character of the administrator, with which the estate has nothing to do, but nevertheless the court said "the remedy for his wrongful possession as such administrator is by proceedings on the probate side of the court of his appointment because his possesion is the possesion of that court which aught not to be hampered in the administration of the estate by conflicting jurisdiction of another court wherein contrary decision might be made."
In State ex rel. v. Shelby Circuit Court, supra, the facts disclose that the administrator of the estate of Ray S. Tuell, deceased, by appointment of the Marion Probate Court, took 5. possession of certain property in Shelby County alleged to belong to a partnership composed of one Lowell G. Ash and the said Ray S. Tuell in his lifetime. Thereafter the said Ash, as the surviving partner, filed his affidavit in the Shelby Circuit Court for an order authorizing him to close out the partnership business under the provisions of the statute governing such matters. The order was granted and thus a conflict of jurisdiction between the Marion Probate Court and the Shelby Circuit Court was set up. Under the law of this state Ash, as the surviving partner, had the right to administer the assets of the firm and in that sense the possession of such assets by the administrator of the Tuell estate was unlawful. Nevertheless, the court held: "Property in the hands *Page 656
of an administrator or an executor is in Custodia Legis. The possession of such administrator is the possession by the Court.Hudson, etc. v. Wilber, Saginaw Circuit Judge, 114 Mich. 116, and cases therein cited. The law does not permit one Court to assume control over the representative of another Court or the property confided to his charge. . . . When a Court obtains jurisdiction over, and has the custody of property by an agent appointed by it, such as a receiver, a guardian, trustee, administrator, or executor, no other Court of co-ordinate jurisdiction has the power to interfere with the first Court's possession. This must be true to avoid conflict of jurisdiction between different Courts of co-ordinate jurisdiction."
Thus it is apparent that the latest decisions of the Supreme Court as to when property, involved in the administration of a decedent's estate, is in custodia legis sustain the 6. conclusions reached by the court below and constitute ruling precedents which we must necessarily follow.
The questions we have discussed arise on legal and factual issues joined on the appellee's answer in abatement of the appellant's cause. Over the appellant's objection the court 7. permitted the appellee to file such answer after he had appeared generally in the case. This the appellant contends was error. As the answer in abatement went to the jurisdiction of the court over the subject matter of the litigation the question was timely at any stage of the proceedings and could not be foreclosed by a general appearance.
Judgment affirmed.
Royse, P.J., not participating.
NOTE. — Reported in 66 N.E.2d 142. *Page 657 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429022/ | The following facts are material to a discussion of the propositions advocated by the parties involved. On July 19, 1921, the appellant owned 240 acres of land in Page County. Upon that date, he entered into a written contract in 1. VENDOR AND duplicate, whereby the Carl G. Wenstrand PURCHASER: Company, a corporation transacting business at remedies of Shenandoah, purported to buy said farm for a vendor: consideration of $78,000, payable: First, by the waiver and assumption of indebtedness on the land, loss of aggregating $48,000; and, second, by stock in lien. the corporation for the remaining equity, approximating $30,000. At or about the same time, a deed conveying the premises to the Carl G. Wenstrand Company, incorporated, was executed by appellant and his wife. Simultaneously therewith, an escrow agreement was signed by appellant and the Wenstrand Company, under which the deed was placed with the Farmers National Bank of Shenandoah, to be there held until the corporation stock was delivered, as provided in the land contract. Soon thereafter, Carl G. Wenstrand asked appellant for permission to remove from the deed the grantee's name, Carl G. Wenstrand Company, incorporated, and substitute therefor, as grantee, the name of the defendant-appellee Luther Younggren. Consent to the change was duly given by appellant. Immediately thereafter, on the 20th day of July, 1921, appellee Luther Younggren filed for record the deed containing his name as grantee. Following that transaction in the chain of title, appellee Luther Younggren, on October 1, 1923, deeded said realty to his mother, the appellee Emma Younggren, for a consideration whereby she canceled certain indebtedness held against her son, and assumed and agreed to pay the mortgages upon said 240-acre farm.
Appellant claims that he never received the stock from the Wenstrand Company, nor any other consideration for the land, except that the mortgage indebtedness named in the sale contract was assumed by the grantee, Luther Younggren, through acceptance of the deed. Many theories are advanced by appellant as a basis for his right to recover $32,000, which is the par value of the stock named in the contract; but, under the record here *Page 615
presented, we find it material to consider only two of them. Briefly stated, they are: First, that the appellee Luther Younggren in fact purchased the realty directly from appellant, and Carl G. Wenstrand and the Carl G. Wenstrand Company, incorporated, were merely the agents who negotiated the transfer; and, second, that, assuming appellee Luther Younggren did not buy directly from appellant, yet the deed aforesaid was in escrow, and while appellant consented to the substitution of names, as before explained, he did not agree that the escrow should be broken, and consequently the deed was delivered to the appellee Luther Younggren without appellant's knowledge or consent. Therefore, according to appellant's claim, his vendor's lien at all times remained, and now continues upon the land.
Replying to appellant's contention in that regard, the appellees assert: First, that neither Carl G. Wenstrand nor the Carl G. Wenstrand Company, incorporated, represented them in any way, and that the appellee Luther Younggren did not purchase the farm from the appellant, but, on the contrary, bought the same from Carl G. Wenstrand; second, that the appellant consented to the substitution of grantees in the deed, and permitted, ratified, and approved the delivery of that instrument; third, that the appellant, because of his conduct in the matter, is now estopped from claiming that the deed was not delivered in the manner and way claimed by the appellee Luther Younggren; and, fourth, that the appellee Emma Younggren was an innocent purchaser, without notice of appellant's alleged equities, and furthermore, it is asserted that she paid a valuable consideration for the property, and therefore has full and complete title thereto.
Such, in a broad way, are the arguments of the respective parties. A more detailed statement of facts will be made in connection with the discussion relating to each proposition above set forth.
I. To whom did appellant sell his real estate? That is the first question. While he maintains that the sale was directly to the appellee Luther Younggren, the record, as well as the testimony of this appellee and Carl G. Wenstrand, indicates that the transaction originally was with the Carl G. Wenstrand Company. By the express provisions of the contract itself, the Wenstrand Company was the vendee. Likewise, the deed, as *Page 616
originally executed, named the corporation as the grantee therein. Carl G. Wenstrand says that the sale transaction was entirely between appellant and the corporation. Luther Younggren, the appellee, also testified that Wenstrand, or the Wenstrand Company, was not his agent in this affair; and moreover, this appellee asserted that he did not buy from the appellant.
Although appellant, who now is about 46 years of age, had been a farmer most of his life, yet, a year and a half before the transaction under consideration, he was engaged in the automobile business, and thereby came in contact with the business world. So, when the contract and deed were made, he knew that, according to the written documents, the corporation, and not the appellee Luther Younggren, was obtaining the acreage above designated. Furthermore, there are many other facts and circumstances, in addition to the testimony of Carl G. Wenstrand and the appellee Luther Younggren, which indicate that the original transaction was between appellant and the corporation. Throughout appellant's testimony there is declaration after declaration to the effect that Carl G. Wenstrand led him to understand that Younggren was buying the land. Yet there is nothing anywhere to show that Younggren in any way caused the appellant so to believe. Mr. Wenstrand, at the time in question, was a practicing lawyer at Shenandoah. He was well acquainted with the appellant. In addition to the law practice, Wenstrand, his brother, and others operated the Farmers Loan Mortgage Company. No doubt the appellee Luther Younggren had many transactions with the Mortgage Company and with Wenstrand.
As before indicated, the appellant became heavily obligated financially because of adversities in the automobile business. Advice was sought from Carl G. Wenstrand, who suggested to the appellant that he sell the heavily mortgaged farm, and thereby escape the overweighing financial burden. The appellant accepted the advice, and sought a purchaser. About that time, Carl G. Wenstrand, his brother, and appellant were engaged in the organization of the Carl G. Wenstrand Company, a corporation. It is said by appellant that the appellee Younggren was also a promoter of this enterprise. Whether this is true, it is difficult to ascertain from the record. Anyway, appellant and Wenstrand were engaged in the promotion scheme, and as a *Page 617
part thereof, it appears, the land contract previously mentioned was prepared and executed. Something was said at the time about having the farm appraised by state officials, for the purposes of the stock transfer. Apparently this was never done. Obviously, appellant believed in the enterprise, assisted in its promotion, and entered into the agreement accordingly. Immediately thereafter, the appellant was employed by Wenstrands to perform certain duties connected with the operation of the Farmers Loan Mortgage Company, previously named. Stock was never issued by the Wenstrand corporation. Before the organization was completed in that respect, it appears that Wenstrand was indicted for certain offenses not connected with this transaction, and then later convicted, and sent to the penitentiary.
Younggren, at the time, did not own stock in the Carl G. Wenstrand Company, incorporated; for, as before indicated, none had been issued. Naturally, then, it is more plausible to believe that Younggren would not agree to deliver that which had no existence. All power to issue stock was in the corporation, and therefore that institution could agree with appellant to deliver him stock in exchange for properly appraised real estate. Not only did the corporation have the power, but it had the incentive and the purpose so to do; for it was through that method that the organization was to be completed. Undoubtedly Carl G. Wenstrand told Lindberg that the corporation would resell the land to Younggren. A reason given therefor by Wenstrand was that Younggren was financially responsible, and his assumption of the mortgage indebtedness would be a real protection. This is what the appellant desired. At no time, however, does it appear that the appellant ever had a contract with Luther Younggren whereby the latter agreed to buy the farm. Payment was never demanded from Younggren by appellant, although the latter knew the former had obtained the deed and filed it. Such information was received by the appellant, according to his testimony, soon after Younggren obtained the instrument. But when in the possession of such knowledge, he did not complain to Younggren. Rather than so doing, appellant inquired of Carl G. Wenstrand concerning why the deed was taken from escrow. Thereupon Wenstrand stated to the appellant that Younggren feared suits would be started and judgments obtained which might incumber the title. Both appellant and Wenstrand were *Page 618
anxious that Younggren assume the mortgages. Other reasons were stated by Wenstrand, which seemed satisfactory and agreeable to the appellant. His conduct in that regard and in other respects indicates that he approved and ratified the delivery of the deed by Wenstrand to Younggren. Another circumstance is a change made in the contract so that the instrument would include "feed bunks." Request for this was made by Younggren. Elof Wenstrand (a brother of Carl's) inserted the additional provision, and obtained appellant's written consent thereto. After the deed was delivered and appellant knew thereof, he moved from the land, which he occupied until March 1, 1922, and delivered possession thereof to Luther Younggren, the appellee. More than this, appellant met Younggren at Wenstrand's office, a long time after the deed was delivered, and there the following conversation took place:
"Well, he [Younggren] said: `I never can find them [the Wenstrands]. I can't get things straightened out.' He seemed to be quite peeved about it. I said: `* * * You haven't anything to be peeved about, for he [Carl G. Wenstrand] bought my farm out there, and I never had any settlement on that.'"
It is true appellant contends that Younggren said to him:
"* * * Carl [Wenstrand] and me [Younggren] will make that all right with you [appellant]. As soon as I settle up with Carl, I will pay you."
Nevertheless, appellant, even upon that occasion, declared that Wenstrand had bought the land; and, under the facts and circumstances previously set forth and many others contained in the record, it is obvious that, notwithstanding appellant's claim, Younggren did not agree to pay appellant for the land. Why should he, under the circumstances? For already payment had been made by Younggren to Carl Wenstrand, through the transfer of mortgages. In fact, Wenstrand was thus paid by Younggren in January, 1922, before appellant delivered Younggren possession of the premises. A contract purporting to settle the land transaction between appellant, Wenstrand, and Younggren was signed by Wenstrand and appellant. Younggren refused to execute the instrument, saying that he never had any connection at all with appellant. Under the terms of that agreement, appellant *Page 619
was to receive 125 shares of stock, "as a part of the consideration for said land, over and above the mortgage indebtedness," and for the balance thereof, appellant agreed to accept certain mortgages, after deducting specified obligations of appellant's.
Dispute arises concerning the amount due Wenstrand for financial outlays made in behalf of appellant, as contemplated by said agreement; and it is difficult, under the record, to arrive at a conclusion regarding this. Likewise, appellant denies that he received the 125 shares of stock in the Farmers Loan
Mortgage Company. Some of this stock, however, was procured by Wenstrand and placed in a deposit vault marked for appellant, Lindberg; and after the alleged settlement, appellant voted this stock at a meeting of the corporation. We do not find or decide whether there was a complete settlement between Wenstrand and appellant, but the incident has a significant bearing on the proposition that Younggren did buy from Wenstrand. Again, it appears that Annis Rohling Company brought an action to foreclose one of the mortgages on this land. Named in the original notice were the defendants Elmer C. Lindberg (the appellant), Sadie H. Lindberg (appellant's wife), A. Luther Younggren (appellee), and others. Recited in the original notice was the fact that Luther Younggren, the appellee, "had purchased said land" from "Carl G. Wenstrand." Denial of that fact was not made by appellant in any way.
The foregoing is related for the purpose of showing that, through various actions and in many ways, appellant indicated that Wenstrand had bought the farm and owed an obligation for it. No attempt has been made to set out all the facts and circumstances, but some of the outstanding points have been mentioned. On the whole record, we are constrained to hold that appellant sold to the Wenstrand Company, and not to the appellee Luther Younggren.
II. Assuming, without conceding, the foregoing conclusion, appellant next contends that the deed aforesaid, being placed in escrow, was never properly removed therefrom, and consequently he still has a lien on the land sold, for the purchase price thereof.
Of course, if the deed was in escrow, as contended, and the depositary wrongfully delivered it to the grantee or another "without the performance of the conditions upon which it was *Page 620
to be delivered," no title passes, and, as said 2. ESCROWS: in Tutt v. Smith, 201 Iowa 107: "* * * a wrongful subsequent purchaser from the grantee * * * delivery of acquires no title, and will not be protected." deed: To the same effect see Jackson v. Rowley, 88 effect. Iowa 184, and Jackson v. Lynn, 94 Iowa 151. Those authorities, of course, control where the facts make them applicable. Here, however, there is a distinction between the facts presented and those involved in the cited cases. As before indicated in the previous discussion, appellant consented to the substitution of grantees in the deed, and, in addition thereto, he ratified and approved the delivery of the deed to the appellee Younggren. Consequently, the rule of law contended for will not permit recovery, under the circumstances. Without such approval and ratification, the result would have been different. Moreover, with full knowledge of the facts, appellant permitted the appellee Younggren to take possession of the premises, pay the interest and taxes, and finally convey the land to another, without any indication at any time that the title was not perfect, or that there was any claim for the purchase price, growing out of the transaction between appellant and Carl G. Wenstrand. Silence in fact was continued by the appellant for long over two years. Appellant's delay, under the circumstances, must be considered before Younggren can be compelled to pay the purchase price the second time or lose the land. Such conduct on appellant's part estops him from obtaining the relief here sought. Haven v. Kramer, 41 Iowa 382. Therein it is said, on page 387:
"* * * we are of opinion that the plaintiff, by his laches [covering a period of seven months], is estopped to assert title against a bona-fide purchaser from James H. Haven."
Considering, then, the ratification and estoppel and all the other facts and conditions previously recited, it is apparent that appellant has no lien upon appellees' premises.
III. With appellant's authorization and approval thus established, it is apparent that title vested in the appellee Luther Younggren. Substitutions of grantees may be made in a deed, *Page 621
with the consent of the parties concerned. 3. ALTERATION McCleery v. Wakefield, 76 Iowa 529; Brown v.
OF Brown, 142 Iowa 125; Augustine v. Schmitz, 145 INSTRUMENTS: Iowa 591; Tallman v. Huff, 65 Colo. 128 (173 deed of Pac. 869); Tobey v. Kilbourne, 222 Fed. 760. conveyance: substitution of grantee.
Hence, as against appellant's claims here asserted, the appellees have a superior title. Whether, in any event, as suggested by appellant, a recovery can be had by him through the corporation against appellees because the consideration was paid by the appellee Luther Younggren to Carl G. Wenstrand, instead of to the corporation, we do not now suggest or decide. The corporation is not a party to this litigation, and appellant's suit was not prosecuted upon that theory.
Parenthetically, it is here noted that the index in the abstract simply refers to the exhibits by number, as they were introduced at the trial, without any explanatory note indicating to which exhibit an individual number refers. There were many exhibits, and consequently our labors were greatly increased by counsel's failure to observe the rules in that regard.
For the reasons previously named, the judgment and decree of the district court should be, and hereby is, affirmed. —Affirmed.
MORLING, C.J., and EVANS, FAVILLE, ALBERT, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429023/ | The defendant ran a restaurant in the town of Cumberland, Iowa. Peace officers visited his place of business on the night of May 14, 1932, and as a result of such visit he finds himself in his present difficulty. The officers say that upon arrival defendant was asked to surrender a bottle which he had in his pocket, but that, instead of complying with such demand, the defendant pulled the bottle from his pocket and proceeded to dump its contents on the floor. One of the officers grappled with defendant in an effort to prevent the dumping, with the result that the defendant and the officer both found themselves on the floor, and of course, the bottle was likewise thrown upon the floor. The bottle was picked up from the floor following the melée, and the officers say it was practically empty, but that, judging from the smell, its contents was alcohol. Some of the contents of the bottle was spilled on the officers' clothes and on the floor. The officers say that the fluid spilled on such clothes, judged by smell, was alcohol, and that the spots on the floor, where the liquid had been spilled, burned when a match was touched to them. Particular attention is called to the fact that the officers took the bottle, found by them on the floor, and produced it as an exhibit upon the trial of the case. It is described as an ordinary 8-ounce prescription bottle.
The defendant's version of the matter differs in some *Page 1157
particulars from that of the officers. He says that a day or so prior to the officers' visit he found a square tin can in the rear of his premises; that such can contained a small amount of liquid; that he told the mayor of the town of his discovery and asked advice concerning the disposition to be made of the can and contents; that the mayor told defendant to bring it to him in order that an analysis might be made of the contents. For some reason, not suggested by the record, the thought did not occur to either the mayor or the defendant that the difficulty could be solved by the simple process of pouring the contents of the can on the ground. But, be that as it may, the defendant concluded to follow the suggestion of the mayor and for that purpose poured the contents of the can into a bottle, not the bottle produced by the officers upon the trial, but into a thinner bottle, which bottle, it is to be noted, defendant produced as an exhibit upon the trial of the case.
On the night of the raid, it appears that a dance was scheduled to be held upstairs in the building in which defendant ran his restaurant. Defendant testified that he was apprehensive of trouble and concluded to get the liquid into the possession of the mayor. A friend of his, who was a witness, declined to do this errand, and the defendant says that he had just taken the bottle in his hand for the purpose of taking it to the mayor, when the officers arrived and his troubles began.
Upon the trial of the case defendant's wife was a witness, and introduced a third bottle into the picture. She testified that shortly before the raid she had purchased witch hazel in a bottle that looked like the one produced by the officers, that she had put the bottle of witch hazel on the ice box in the room where all the trouble occurred, and that she had not been able to find it since.
The situation may best be summarized by calling attention to the fact that the defendant defends the case made against him by the officers' testimony in relation to the 8-ounce prescription bottle and its contents, by bringing into the case another bottle and its contents. That the case of the state and the defense are not based on mistake as to the identity of the bottles is made certain by the fact that the state and the defendant each produced their bottle, and the defendant's witnesses all swore that the bottle into which the contents of the tin can were poured did not resemble the 8-ounce prescription bottle.
[1] I. Appellant complains because the court did not instruct *Page 1158
the jury that the facts disclosed by the evidence in relation to the discovery of the tin can and subsequent transfer of its contents into the bottle produced by the defendant, for delivery to the mayor, would, if found to be true, be a justification of the defendant. The trouble with defendant's contention lies in the fact that the state's case rests upon the 8-ounce prescription bottle and its contents. The state was not prosecuting the defendant because of his possession of the contents of the thinner bottle which the defendant produced upon the trial. It was prosecuting the defendant for the possession of the contents of the 8-ounce prescription bottle which it produced. Justification of possession of the contents of one bottle would not be justification for possession of the contents of the other. Defendant's contention might be tenable if he had not so conclusively proven that the bottle produced by the state did not contain the contents of the tin can.
[2] II. Over objection, witnesses for the state were permitted to testify that the contents of the bottle and the liquid spilled on the officers' clothes was alcohol, basing their opinions on the smell of such liquid. The witnesses were properly qualified by their answers, and there was no error in permitting them to express their opinion, based upon smelling the liquid. State v. Ling, 198 Iowa 598, 199 N.W. 285; State v. Eggleston, 201 Iowa 1, 206 N.W. 281; State v. Bourgeois, 210 Iowa 1129, 229 N.W. 231.
[3] III. It is provided by Code, section 1924:
"No one, * * * shall * * * have possession of any intoxicating liquor, except as provided in this title."
It is provided by Code, section 1952, that exceptions, which may be proper defense, need not be negatived in the indictment, and by section 1966-a2, that the possessor of liquor may show by way of defense that his possession of liquor is legal.
With this statement of statutory provisions we turn to a consideration of defendant's objections to an instruction in which the court told the jury that possession of intoxicating liquor was unlawful. As an abstract proposition, the instruction is not a complete statement of the law, for there are circumstances under which possession of intoxicating liquor is lawful. But, as applied to the facts disclosed by the record, the statement is a correct statement of the law, for there were no facts or circumstances in evidence which would justify the possession of the contents of the 8-ounce bottle by *Page 1159
the defendant, if such contents were intoxicating liquor. The statute makes the possession of intoxicating liquor an offense. State v. Bamsey, 208 Iowa 796, 223 N.W. 873; State v. Wareham,205 Iowa 604, 218 N.W. 145; State v. Boever, 203 Iowa 86, 210 N.W. 571.
[4] IV. The indictment alleged that the liquor was possessed by defendant for the purpose of disposing of the same unlawfully, by gift or otherwise, and for the purpose of bootlegging. The court instructed the jury that such allegations were immaterial and surplusage and were not in issue. Under the statutes alluded to in the preceding paragraph, the defendant's possession of the liquor was unlawful, unless the defendant held it in virtue of exceptions to the general prohibition, and the burden rested upon him to establish its legality. Consequently the allegations of the indictment above referred to were clearly surplusage and not in issue. The state was under no duty to prove such allegations. State v. Parsons, 209 Iowa 540, 228 N.W. 307.
[5] V. The court gave the usual instruction in relation to proof of the allegation of the indictment as to the time when the offense was committed. The defendant contends that under this instruction and the instruction under consideration in the third division of this opinion the jury were at liberty to convict him if they found that he had had possession of intoxicating liquor at any time or for any purpose within three years immediately preceding the return of the indictment. Instructions are given for the purpose of advising the jury of the law applicable to the facts disclosed by the evidence produced upon the trial. The testimony was confined to facts and circumstances which occurred on the night of the raid. In the instructions the court required the jury to base its verdict upon the evidence admitted upon the trial of the case and permitted the jury to return a verdict of guilty only after every material allegation of the indictment had been established beyond a reasonable doubt by such evidence. In this situation the defendant's objections are hypercritical. The officers testified that the raid was made on the night of May 14, 1932. The indictment charged the unlawful possession as being on or about May 14, 1932. The particular date when the raid was made was immaterial, if in truth and in fact it occurred within the period of limitations. There was no evidence in the record that the defendant possessed intoxicating liquor at any other time except the evidence of a prior conviction of a liquor offense. The *Page 1160
court specifically and strictly limited the jury in the consideration of this testimony to its proper purpose.
[6] VI. In an instruction defining reasonable doubt, the court told the jury that, "If the evidence satisfies you beyond areasonable doubt that the defendant is guilty of the offense charged, you should convict him." Appellant complains of the use of the word "satisfies," italicized above, and also complains because under the instruction a verdict of guilty could be returned on less proof than required by law. The objection goes to the choice of words. It seems to be appellant's contention that under the language used by the court a verdict of guilty could be returned by the jury even though the evidence did not establish every material fact beyond a reasonable doubt. The language used is frequently found in instructions upon this subject. It is impossible that a juror should be satisfied beyond a reasonable doubt that the defendant was guilty without first finding that every element of the crime was established beyond a reasonable doubt.
[7] VII. The defendant was a witness in his own behalf. The court gave an instruction on this matter. Appellant complains that in so doing the court singled out the testimony of the defendant and called attention to the interest of the defendant in the outcome of the case. The singleness of defendant's position as a witness was due to the fact that he was the defendant and his consequent interest in the outcome of the case. The situation is not the same as where the court singles testimony of a witness having no natural distinction out of a class or group for special consideration. Instructions of this character have been frequently approved by this court. State v. Conklin, 204 Iowa 1131, 216 N.W. 704; State v. Young, 104 Iowa 730, 74 N.W. 693; State v. Steidley, 135 Iowa 512, 113 N.W. 333; State v. Mecum, 95 Iowa 433, 64 N.W. 286.
VIII. Other errors are assigned which are in effect disposed of in foregoing divisions of this opinion. Appellant suggests that the verdict is not sustained by the evidence. The facts which the jury could find from the evidence have been stated. Such facts, aided by the presumptions warranted by Code, section 1966-a3, namely, that the contents of the bottle were intoxicating liquor and intended for unlawful purposes, are sufficient to sustain the verdict.
We find no error in the record, and affirmance of the judgment of the trial court is a natural consequence. — Affirmed.
ALBERT, C.J., and EVANS, KINDIG, and DONEGAN, JJ., concur. *Page 1161 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429121/ | Defendant was charged by county attorney's information, under section 723.1, Code, 1946, with the crime of interference with the administration of justice. After an application for bill of particulars had been denied and a demurrer to the information overruled there was filed an amendment to the information in which it was specified that the crime was committed by attempting "to improperly influence, intimidate, impede, or obstruct" the county attorney in relation to two pending criminal prosecutions against Donald Stanfel and Carl Robinson, respectively.
Attached to and filed with the original information were "minutes of evidence" setting out proposed testimony of witnesses Clinton Summers, Freeda Rowland, Moody Vineyard, and B.M. Soper, county attorney, stating substantially the facts that later developed on the trial.
The pending prosecutions against Stanfel and Robinson were for alleged rape upon Freeda Rowland, under the name Marie Summers. The informations were sworn to by Clinton Summers. Both Stanfel and Robinson, by defendant as their attorney, had waived preliminary hearing and had been bound over to the grand jury. *Page 417
Defendant urges eleven "points relied on for reversal," argued under seven divisions of his brief. We may save needless repetition by stating them as we proceed with their discussion.
We first brief the material facts. On or about October 29, 1946, while Clinton Summers and Freeda Rowland (Marie Summers) were hitchhiking near Nevada, the woman was attacked by two strangers. Later that evening she and Summers were taken by the sheriff of Story county to Des Moines where they identified Stanfel and Robinson as the attackers.
The two men were arraigned the next day in municipal court in Ames, defendant appearing for them, and they were bound over to await the action of the grand jury. Summers and Mrs. Rowland returned to St. Louis, Missouri.
On November 10th, according to the undisputed testimony, defendant approached them in St. Louis. He told them that he was the attorney for Stanfel and Robinson; that "the case was going to be throwed out, nothing to it; and that the people of Des Moines was * * * backing them up in their character and they had no records at all." He showed them pictures of a boy and girl he told them were Stanfel's children. He also produced already prepared statements for them to sign, remarking they "might as well get something out of this."
They told him they had identified the man in Des Moines and he said it did not make any difference, that both men were "wonderful characters and had never been in any trouble before." He was there approximately three hours.
He offered them $100 to sign the papers he had and promised them $500 more. He said: "All you have to do is not to identify the men" when asked to identify them. After the paper was signed by both Summers and Mrs. Rowland defendant gave Mrs. Rowland, or laid on the table, $100 in bills and said "he would be back in a week, if not that he would get the rest of the money, if he wasn't back in a week to call him up and reverse the charges." Summers did call back on November 20th and inquired of defendant when he was coming down.
We have set out above from the testimony of Summers. Mrs. Rowland's testimony closely parallels it. She adds that defendant told her "* * * to pack my things and leave St. Louis and go *Page 418
to California and that no one would know where I was at and I wouldn't have to come up here."
Mr. Soper, who was county attorney at that time but resigned the office effective November 15, 1946, testified that defendant came to him November 13th and said: "Well, our rape cases has blowed up. * * * I have a statement here that I got from Mr. and Mrs. Summers." He handed the county attorney the document he had obtained execution of in St. Louis, which was as follows:
"AFFIDAVIT.
"To Whom It May Concern:
"This is to advise you that we made a complaint to the authorities in Nevada, Iowa, on the 30th day of October, 1946, against Donald Stanfel and Carl Robinson, that we charged them with the offense of rape, that after having had time to consider the ordeal we have come to the conclusion that we are not sure of the identity of the two men charged, Donald Stanfel and Carl Robinson, and we would not care to further press the charges against these two men, and we do not intend to return to Iowa to do so. We further recommend and implore either the County Attorney, B.M. Soper, or Mr. Ed J. Kelley, who, we understand, will be the County Attorney, to use this Affidavit for the purpose of dismissing the charges we filed against Donald Stanfel and Carl Robinson.
Witness, our hand and seal this 10th day of November, 1946.
"(s) Marie Summers "Clinton Summers."
The county attorney told him, "I sent them a telegram this morning and hadn't received a reply," and defendant replied, "They are on their way to California." The county attorney said, "It must have cost somebody some money" to which statement defendant made no denial. Mr. Soper later the same day received a telegram from Summers: "I and my wife Marie Summers are still standing for affidavit and have not been contacted by anyone concerning the case * * *."
Mr. Soper's secretary was present at the meeting between defendant and Soper and corroborates his testimony in a general way. *Page 419
Defendant also told Mr. Soper that he had previously been to the office of Mr. Kelley, the incoming county attorney. Soper gave him to understand he (Soper) would not dismiss the charges against Stanfel and Robinson and defendant went his way. Kelley had already refused to have anything to do with it.
[1, 2] I. Section 723.1, Code, 1946, under which defendant was informed against provides, so far as pertinent here, as follows:
"Interference with administration of justice. If any person attempt in any manner to improperly influence, intimidate, impede, or obstruct any * * * officer in any civil or criminal action or proceeding * * * or any officer in, or of, any court or tribunal in relation to any cause or matter or proceeding pending in, or that may be brought before, such court or tribunal * * * in regard to which such officer is, or may be, required to act in his official capacity, or, if any person shall intentionally * * * attempt to improperly influence, obstruct, or impede the due administration of justice or the actions or conduct of any such * * * officer, he shall be punished * * *."
The original information charged defendant merely with the crime of "interference with the administration of justice" without stating what he did or giving any details of the alleged crime. The details were contained in the "minutes of evidence" accompanying it. The court overruled defendant's application for bill of particulars and demurrer to the information. These rulings are assigned as error here. Had the trial then gone forward on that information we would now be confronted by the necessity of ruling on the correctness of those decisions and on defendant's further contention that if the information, as drawn, was to be held sufficient under the statute, the statute itself would be invalid as violative of section 10 of Article I, of our State Constitution, and of the Fourteenth Amendment to the Constitution of the United States.
However, defendant was not tried under that information. Amendment was allowed upon proper notice. The amendment gave the names of the then pending criminal proceedings against Stanfel and Robinson and charged that defendant interfered *Page 420
with the administration of justice by attempting to improperly influence, intimidate, impede, or obstruct B.M. Soper, county attorney, by falsely representing to him that the witnesses could not identify Stanfel and Robinson as perpetrators of the alleged crime and would not appear as witnesses and were desirous of having the cases dismissed. We have first to determine whether the court erred in permitting such amendment. If it did not, then any question as to the rulings referred to is moot. Defendant argues that the ruling on the demurrer was an adjudication and the information could not thereafter be amended.
Six cases are cited. None of them goes to the length of holding that after a demurrer to an information is overruled the state is precluded from amending before trial. Under section 773.42, Code, 1946, amendment to an indictment may be made "to correct errors or omissions in matters of form or substance." Section 773.43 requires that, if the application for amendment be made before commencement of trial, service be made upon defendant or his attorney of the application and a copy of the proposed amendment. That was complied with in the instant case and resistance offered by defendant to the proposed amendment. These two Code sections are made applicable to county attorney's informations by Code section 769.11.
The question presented here, as applied to an indictment, was expressly reserved from the opinion in State v. Leasman, 208 Iowa 851
(at page 858), 226 N.W. 61, cited by appellant.
State v. Sexsmith, 200 Iowa 1244, 1245, 206 N.W. 100, and State v. Sexsmith, 202 Iowa 537, 538, 210 N.W. 555, are also cited. On the first Sexsmith appeal it was held that the indictment must specifically state the facts, "as distinguished from conclusions of fact and law." The case was reversed for error in overruling demurrer. Upon remand the demurrer was sustained, the trial court holding "the defects of the indictment can be remedied by either a new indictment or the filing of a county attorney's information." The county attorney thereupon filed such an information, based on the same facts as was the indictment. A plea of former judgment of acquittal was interposed and sustained and the State then appealed. 202 Iowa 537, 210 N.W. 555, supra. On this second appeal the *Page 421
decision of the trial court was affirmed on the ground that resubmission to the grand jury had not been ordered under sections 13797 and 13809, Code, 1924 (now sections 777.9 and 777.22, respectively, Code, 1946).
In State v. Herbert, 210 Iowa 730, 731, 231 N.W. 318, it was held the amendment charged the accused "with an offense which is different than the offense which was intended to be charged in the indictment as returned * * *." And in State v. Hyduck,210 Iowa 736, 231 N.W. 451, it was held the trial court erred in refusing to strike an amendment filed without service on defendant or giving him opportunity to resist as provided by section 13745, Code, 1927 (now section 773.43, Code, 1946).
The appellant also cites State v. Boysen, 214 Iowa 46, 238 N.W. 581. It is not in point. It merely says that the county attorney may not by a bill of particulars supply a material allegation of the indictment. We think none of these cases cited by defendant is in point.
We find no merit in defendant's contention as to the lack of authority of the trial court to authorize amendment of the information here. Section 769.11, Code, 1946, authorizes amendment to county attorney's informations "in the same manner and to the same extent that an indictment may be amended." We do not think that overruling of the demurrer made such amendment impossible if the court deemed it necessary to correct errors or omissions in matters of form or substance.
Sections 777.8 and 777.9, Code, 1946, prescribe the procedure when demurrer to an indictment is sustained. Under section 777.8, if sustained because the indictment shows on its face matter constituting a legal defense or bar, the judgment is final and the defendant must be discharged.
But under section 777.9, if the demurrer to an indictment is sustained on any other ground, the court, if it is shown the objection can be remedied or avoided in another indictment, may order resubmission to "the same or another grand jury." We have held that this does not authorize delegation to the county attorney of power to determine whether a new charge shall be presented after demurrer to an indictment is sustained. State v. Sexsmith, supra, 202 Iowa at page 544. *Page 422
Manifestly section 777.9 cannot apply when demurrer to a county attorney's information is sustained. If the original charge is not by indictment it cannot be "resubmitted to the same or another grand jury." But it is also clear that if such demurrer goes to matters that can be obviated by a new information or by amendment to the original information it is not the intention or spirit of the statute that the defendant shall escape trial. If sections 777.8 and 777.9 are not applicable to prosecutions under county attorney's informations there is no reason why amendment to such informations may not be authorized under sections 773.42, 773.43, and 769.11. And even in the absence of express statutory authority, we would uphold the right of amendment to county attorney's information where defendant is afforded reasonable opportunity to make resistance and where no question of former jeopardy is involved.
In State v. Doe, 50 Iowa 541, 542, the district court, on appeal from a justice court in a prosecution on information, refused to permit the information to be amended after demurrer thereto had been sustained. On appeal to this court the decision of the district court was reversed, the opinion citing State v. Merchant, 38 Iowa 375, 377, to the proposition that "an information stands upon different grounds from an indictment, and is amendable." 1 Bishop on Criminal Procedure, section 714, was also cited, and the proposition approved that such amendment is allowable "to any extent which the judge deems to be consistent with the orderly conduct of judicial business, with the public interest, and with public rights."
We are aware the information in the Doe case was one charging a misdemeanor, triable in justice court. But the precedent has value notwithstanding. The fact that our statute has extended the office of the information to cover felonies does not change its character. In 31 C.J., Indictments and Informations, section 423, and 42 C.J.S., Indictments and Informations, section 233, it is said:
"Even in the absence of a statute, informations, not being found upon the oath of a grand jury, but filed by the public prosecutor, may be amended either in matter of form or substance by leave of court at any time before trial, even after *Page 423
motion to quash, demurrer, or plea; and the rule applies toinformations for felonies under statutes allowing such mode ofprosecution, although at common law prosecution by informationwas limited to misdemeanors." (Italics supplied.)
See, also, 27 Am. Jur., Indictments and Informations, section 121; Secor v. State, 118 Wis. 621, 95 N.W. 942, 944.
We hold there was no error in permitting amendment to the information, nor is there merit in the technical objections to the procedure by which the order was procured. The statutory requirements seem to have been substantially met.
[3] II. The defendant urges that the court erred in failing to instruct, on its own motion, that the testimony of accomplices must be corroborated. Section 782.5, Iowa Code, 1946, requires such corroboration. In State v. Myers, 207 Iowa 555, 557, 223 N.W. 166, it is said the giving of such instruction in a proper case is required, even though not requested and though there be corroborating evidence in the record. State v. Carnagy, 106 Iowa 483, 76 N.W. 805, and State v. James, 198 Iowa 976, 200 N.W. 577, are cited in support of the proposition.
It is to be observed both these were rape cases and involved the statute requiring corroboration of the evidence of the person injured. Section 782.4, Code, 1946. In the Carnagy case emphasis is laid on the thought that the evident purpose of the statute is to guard against convictions based alone on the testimony of an injured party in cases where "interest and feeling are so apt to control, and the motives of revenge or sinister design so frequently exist." At page 490 of 106 Iowa, page 807 of 76 N.W.
Of course this particular reasoning is not applicable here where testimony of an accomplice is involved. In lieu of such consideration, however, a somewhat analogous one might perhaps be urged.
At any rate, without re-examining the broad statement of the rule as found in State v. Myers, supra, and even without determining whether the witnesses Summers, Rowland, and Stanfel were accomplices within the meaning of the rule, we are inclined to dispose of the question here upon another consideration. *Page 424
It may be first observed that the only exception taken to the instructions (pertinent here) related to the failure to instruct as to the testimony of Summers and Rowland and not to that of Stanfel. As to the necessity of specifying the ground of complaint in exceptions to instructions, see State v. Hofer,238 Iowa 820, 832, 28 N.W.2d 475, 481, and cases cited.
However, we think defendant expressly waived any right he may have had to predicate error on the court's failure to instruct on the necessity of corroboration. On the last day of the trial, according to the district court record certified to us, it is shown that the court gave counsel on each side a final form of the court's instructions and allowed them reasonable time to make objections thereto. It was the court's duty so to do. State v. Holder, 237 Iowa 72, 83, 20 N.W.2d 909, 915. But this did not require defendant to except before instructions were given. State v. Holder, supra. Neither did it require him to consent to the instructions as written. He still had the right, in motion for new trial to urge exceptions to the instructions. Section 787.3(7), Code, 1946. This does not imply, however, that the right could not be waived.
At the close of the argument the trial court asked: "Do you gentlemen desire to take any exceptions to the final draft of the instructions before they are given?" To this counsel for defendant responded, "None, Your Honor." The county attorney made similar reply.
Defendant was represented by experienced counsel and was himself an attorney. They must have known their action would lead the court to believe the instructions satisfactory to defendant. Certainly it did not indicate an intention of reserving the right to take later exceptions. We do not think defendant should be permitted thus to change his position after gambling on the verdict. He requested twenty-two different instructions without including one on the necessity for corroboration of the testimony of accomplices. He disclaimed any desire to except, and did so without reserving the right later to except.
It seems clear the defendant by his own and his counsel's conduct waived his right to assign error here for the failure so to instruct. That such right may be waived we entertain no *Page 425
doubt. See 23 C.J.S., Criminal Law, section 1341, where it is said:
"Objection to instructions given may be waived by action of accused's counsel, as by his stating at the close of the charge that he is satisfied with the instructions."
The text cites various cases which sustain it though none is particularly in point here in its facts.
But on principle, aside from exact precedent, we must hold the right is one that can be waived. It is not based on any fundamental principle, either constitutional or statutory. In many jurisdictions it is held not reversible error to fail to instruct, without request, on the necessity for such corroboration. 23 C.J.S., Criminal Law, section 1325e (Testimony of accomplice, page 953).
Needless to say, in light of the evidence we have set out there is ample corroborative evidence in the record. We are convinced the case cannot be reversed on the purely technical ground here discussed.
[4] III. Defendant requested an instruction that "if you find any witness in this case has knowingly sworn falsely in relation to any material matter or statement, then you may disregard the entire evidence of such witness * * *."
The principle embodied in the requested instruction is sound but has no application here. The request is based on the fact that the witness Summers signed the rape information against Robinson and Stanfel charging the crime as committed on "Marie Summers" instead of upon "Freeda Rowland"; also upon the fact that both Summers and Mrs. Rowland held themselves out as man and wife at the time the charges were filed.
We do not condone or excuse the conduct of these witnesses. But the subject matter of their admitted misrepresentation was entirely immaterial both here and in the charges against Robinson and Stanfel. Whether the victim of their attack was named Freeda Rowland or Marie Summers or whether she and Summers were wife and husband had nothing to do with her identity as the person attacked or with the guilt or innocence of her attackers. Nor do we find anything in their testimony *Page 426
in the instant case to warrant the giving of such an instruction.
There was no error in refusing it.
[5] IV. Defendant did not take the stand in his own behalf and offered no evidence except the testimony of five witnesses as to his general moral character. On rebuttal the State produced three witnesses. It is urged here that they were allowed to testify to defendant's general reputation.
A careful reading of the record convinces us that the trial court quite carefully guarded against just that situation. However, it is possible it was not entirely successful. While it is doubtful whether any reversible error resulted, even if it be held the evidence was incompetent, we prefer to meet squarely the question defendant presents, May testimony of his general good moral character, offered on behalf of a defendant who does not himself testify, be met by testimony of his general bad reputation for moral character?
There is, of course, a basic difference between the words "character" and "reputation." The distinction "roughly stated" in State v. Poston, 199 Iowa 1073, 1074, 203 N.W. 257, 258, is sound: "Character is what a man actually is; while reputation is what his neighbors say he is." If the basic meaning be too strictly insisted on, however, any testimony by one as to the real moral character of another would have to be excluded on the ground that in the very nature of things the witness cannot know
the fact. He can at most merely express an opinion, the weight of which depends on his opportunity for observation and his own standard of morality.
It is to be remembered we are speaking here of "character" and "reputation" as bearing not on the credibility of a witness but on the probability or nonprobability of a defendant being guilty of the crime with which he is charged. For this purpose the State cannot offer any evidence unless the defendant puts the matter in issue.
When a witness testifies to the good moral character of a defendant, we have held he may be cross-examined as to whether he has not heard rumors or reports concerning the defendant's bad character with reference to particular transactions. State v. Kimes, 152 Iowa 240, 249, 132 N.W. 180, 184. In the last-cited case it is said, "the cross-examination related to the very *Page 427
matter inquired about on direct examination, to wit, the repute
of the defendant in the community as to good moral character." (Italics supplied.)
In State v. Poston, supra, it is said that "for some purposes" the terms "good reputation" and "good character" are "recognized as expressing the same idea." In State v. Ferguson, 222 Iowa 1148, 1161, 270 N.W. 874, 882, after stating that in some jurisdictions evidence of character as distinguished from reputation may not be shown, the opinion says:
"In this state, however, the rule seems to be otherwise, and the real character of the defendant may be shown. This may be shown, it is true, by general reputation, but it may also be shown by what a witness knows of the defendant from his personal observation or experience with him." (Italics supplied.)
The real issue is the character of the accused. It is tendered by him "to establish a fact upon which the presumption of his innocence may be based." State v. Sterrett, 68 Iowa 76, 78, 25 N.W. 936, 937. The good character of the defendant "may be proven by witnesses who knew his character as distinguished from his reputation, as well as by testimony of general reputation."
(Italics supplied.) State v. Cather, 121 Iowa 106, 109, 96 N.W. 722, 723.
If defendant may support the issue of character either way, i.e., by opinion testimony of qualified witnesses or by proof of general reputation, we see no reason why the State in rebuttal, may not meet the issue by either form of proof.
Our statute provides that "the general moral character of a witness may be proved for the purpose of testing his credibility." Section 622.18, Code, 1946. Under it we have held that character, as therein used, is the equivalent of general reputation. State v. Gregory, 148 Iowa 152, 126 N.W. 1109; State v. Ferguson, supra (222 Iowa, at page 1159, 270 N.W., page 881).
Many cases might be cited in which it is said the two terms are synonymous or are used interchangeably. See 6 Words and Phrases, Perm. Ed., 551 (title "Character," subtitle "Reputation"). But we think there is no real confusion of terms here. Defendant brought in issue his general moral character to supplement *Page 428
the presumption of innocence the law accords him. It is true the proof he offered was the direct testimony of witnesses who claimed to know his character. But that did not limit the State as to the form of proof by which it might negative the tendered issue.
There was no error in admitting the evidence complained of.
[6] V. In a final division of his brief defendant argues various matters under an omnibus assignment of error in overruling motions for directed verdict, motion for new trial, and motion in arrest of judgment.
The principal argument under this assignment questions the constitutionality of the statute under which defendant was charged and convicted. The substance of the contention is that it denies due process of law under the Federal and State Constitutions because of uncertainty in the way it defines the crime to be punished. Particular stress is laid upon the argued uncertainty of the words "attempt" and "improperly" and use of the disjunctive "or" instead of the conjunctive "and."
We are not impressed by this argument. Any statute that would purport to enumerate in detail the acts constituting "obstruction of the due administration of justice" would have limited value. The common-law crime was well established and the terms well understood. Our statute uses general but not indefinite language.
Surely the word "attempt" is not unknown to the criminal law and no one has ever argued that there should be a statute enumerating the myriad acts which under varying circumstances might constitute "attempts." Nor is the word "improperly" lacking in definiteness when applied to an interference with the administration of justice.
No difficulty confronted the court here, and we anticipate none in future cases, in determining whether a given state of facts (if established) constitutes an attempt improperly to "influence, intimidate, impede, or obstruct" any court or officer thereof in performing the always difficult duty of administering justice.
The use of the disjunctive "or" is not confusing either in the statute or in the information. It does not denote different *Page 429
offenses. The act that constitutes an attempt is criminal whether it results in improperly intimidating, influencing, impeding, or obstructing. It may be designed to have any one or all four results. Had the conjunctive "and" been used defendant might conceivably have argued the lack of proof that all four results were intended.
Appellant cites and quotes from the opinion in Cline v. Frink Dairy Co., 274 U.S. 445, 47 S. Ct. 681, 685, 71 L. Ed. 1146, the language emphasizing that a penal statute creating a new offense must be explicit. That is, of course, true of any criminal statute but if it be one creating a new offense, e.g., the Anti-Trust Act considered in the Cline case, greater care in the use of language would be required to avoid possible vagueness.
The statute here is not entirely new though it enlarges the common-law concept of obstructing the due administration of justice. It has striking resemblance to the federal statute, Criminal Code, section 135, found in 18 U.S.C.A., section 241, the constitutionality of which seems never to have been questioned. That statute uses the word "corruptly" instead of "improperly" but we think with the same meaning. We cannot hold that the legislature used the word "improperly" in a merely ethical sense.
In Broadbent v. United States, 10 Cir., Utah, 149 F.2d 580, 581, it is said that the word "corruptly," while "capable of different meanings in different connections," means, as used in section 135 of the Criminal Code, "any endeavor to influence a witness or to impede and obstruct justice," citing Bosselman v. United States, 2 Cir., N.Y., 239 F. 82, 86, and United States v. Polakoff, 2 Cir., N.Y., 121 F.2d 333.
And in the Broadbent case, supra, it is said of the word "endeavor" in the same statute: "It describes any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent." Surely this may stand as a sound definition of the word "attempt" in the Iowa statute.
We are of the opinion that the context here renders the words "attempt" and "improperly" clear and definite and that neither the statute nor the information as amended is open to the attack made upon it. *Page 430
The arguments of counsel on both sides go far afield but we are content to limit the discussion to the statute in question here and are convinced of its validity.
[7] Appellant contends there were no criminal proceedingspending at the time he approached the county attorney, because the cases were not in the municipal court, the defendants having been bound over, and no indictment or information was yet pending in district court. The argument is not sound. The statute says:"pending in, or that may be brought before." Section 723.1, Code, 1946. It is unnecessary for us to decide whether the case was technically "pending" in either court. The allegation of the information says "pending in the district court" but we find no such material variance between the allegation and proof as to constitute error.
It is our judgment the case should be and it is hereby affirmed. — Affirmed.
MULRONEY, C.J., and OLIVER, BLISS, HALE, GARFIELD, MANTZ, and HAYS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428955/ | This appeal questions the action of the Madison Circuit Court in removing appellant as Administrator of the Estate of James W. Sansberry, deceased, without notice or citation.
Appellee James C. Sansberry filed his verified petition in said court charging appellant with various acts *Page 525
of misconduct and averring there was an emergency which required the immediate removal of appellant without citation as administrator of said estate. Said appellee was at the time the attorney of record for appellant in said estate.
The petition of said appellee filed September 23, 1948, takes up more than six pages of appellant's printed brief and we will set out only the portions necessary to a determination of the question presented by this appeal.
After alleging the appointment and qualification of appellant, and that said appellee is one of the heirs at law of said decedent, it avers appellant failed for nine months to comply with an order of the Madison Circuit Court to file an amended inventory and to sell certain personal property. It further charged that he had failed to comply with the statute which requires that at the end of one year from the date of first publication of notice of his appointment said administrator shall file his final account, nor has he made any showing as to why he has not filed a current report, although the estate has been opened for more than two years.
It further avers that there is a claim for $20,000 for services rendered decedent by one Inez John; that said claim is pending for trial in the Grant Circuit Court; that said claim was set for trial in said court on the 27th day of September, 1948. It avers appellant informed the Madison Circuit Court and the Grant Circuit Court that three law firms were representing the estate in the matter of said claimant. It shows the other heir of said decedent has employed counsel to represent her in connection with this claim. It avers said appellee is informed and believes that appellant had been advised said claim is a dangerous claim and it is possible that a substantial recovery can be made *Page 526
and that if a reasonable settlement can be made it should be considered, but that appellant refused to consider any possibility of settlement in excess of $2. It then alleges, in part, as follows:
"The petition would further show to the Court that this petitioner is an attorney at law practising at Anderson, Indiana and is the attorney of record in this Court of said Administrator and of said estate and has been representing the Administrator and said estate insofar as the Administrator will permit such representation and that this petitioner as such attorney has obtained from the claimant, Inez John, almost two (2) years ago an offer of settlement upon which negotiations could then have been had and that the Administrator refused to consider a settlement at that time and to the best of this petitioner's knowledge and belief at all times since that time has refused to consider any settlement with the claimant in any amount whatsoever, but continues to undertake the employment of additional counsel at the expense of said estate.
". . .
"This petitioner further shows to the Court that the Administrator, James S. May, refused to consult with this petitioner as to the affairs of the estate, and has unduly delayed the compliance with the Court's orders and his duties as such administrator without excuse or explanation.
"The petitioner would further show to the Court that for the reason that said claim of said Inez John is set for trial on Monday, September 27, 1948, before a Jury in the Grant Circuit Court and that the Administrator has failed to discuss settlement and refuses to consider the advise of counsel for the estate and is undertaking to charge said estate with great additional expense by the way of other and additional counsel, and for the further reason that much of the material heretofore ordered re-inventoried and reappraised consists of bits, drills, reamers and such like property which is decreasing in value and demand since such items are much more plentiful now than they *Page 527
were a year ago and which are continuing to decrease in value to the damage of this estate, that an emergency exists which is absolute and imperative that this Court take such steps as may be permitted under Clause six (6) of 1933 Burns' 6-601, to remove said Administrator, James S. May, without any application therefor, instantly and without citation, and that this petitioner believes that in view of the situation hereinabove outlined and the matters therein pointed out to the Court, many of which are within the personal knowledge of the Court, that the Court should recognize the clear emergency and remove said Administrator instantly and without citation and that the Court should appoint as Administrator of said estate some unbiased and unprejudiced stranger to handle the affairs of such estate in a prudent and business like manner under the direction of this Court."
The Court immediately granted said petition and made its order removing appellant as Administrator and appointing appellee Citizens Banking Company of Anderson, Administrator De Bonis Non of said estate.
Section 6-601, Burns' 1933 provides the causes for which an administrator may be removed. Section 6-602, Burns' 1933 provides that on the filing of an application for removal the clerk shall issue a citation to the person sought to be removed ten days before the hearing of the cause. Section 6-604, Burns' 1933 provides for the hearing.
Subd. 6 of § 6-601, supra, provides, in part, as follows: "or the court may, without such application, for any such cause, in cases of an emergency, remove such executor or administrator instantly, without citation."
"Emergency" is defined in Webster's International Dictionary as: "An unforseen combination of circumstances which calls for immediate action." *Page 528
In construing the foregoing provision of Subd. 6, supra, the Supreme Court, in the case of State ex rel. Cassel v. 1. Johnson et al. (1933), 204 Ind. 563, 570, 185 N.E. 278, said:
"The emergency, however, should be clear and imperative before a court should take such a drastic measure to remove an executor or administrator without a citation so that the parties in interest may have their day in court."
While the petition in this case alleges certain of the statutory grounds provided in the statute above referred to for the removal of an administrator upon citation and hearing, 2. in our opinion it wholly fails to show the existence of such an emergency as would justify the removal of appellant without such citation or hearing.
We cannot agree with the contention of appellees that the imminence of the trial of the John claim and the refusal of appellant to negotiate for a compromise of said claim 3-5. created such an emergency as to justify the action of the trial court. The petition on its face shows the other heir had employed private counsel to contest this claim. If appellant believed the claim was unjust it was his duty to contest it. Furthermore, the refusal to compromise a claim pending against an estate is not one of the statutory grounds for the removal of an administrator. The rule which controls such actions as this is stated in Henry's Probate Law Practice, p. 162, § 154 (5th Ed.), as follows:
"The causes for which an executor or administrator may be removed from his trust, and the mode by which his removal may be lawfully procured, and the persons who may make an application for his removal, are all accurately defined and pointed out in this statute; and from an examination *Page 529
of the statute it will be seen that the removal of an executor or administrator from his trust can only be procured upon the written application, to the proper court, verified by oath, of some person interested in the estate, or of his co-executor or co-administrator, if he has any, or a surety on his bond, specifying the grounds of complaint for such removal; and such written application must show that the applicant, if not a co-executor or co-administrator, or a surety, has a real and existing interest in the decedent's estate, and must allege some one or more of the statutory causes for removal, and ask for such removal. (Citing authorities)." (Our emphasis).
This cause is remanded to the Madison Circuit Court with instructions to set aside its order removing appellant as Administrator of the estate of James W. Sansberry, deceased, and for further proceedings in accord with the views herein expressed.
NOTE. — Reported in 86 N.E.2d 88. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428956/ | The appellant has assigned as error: The court erred in overruling the motion of the appellant for a new trial, and one of the causes is to the effect that the court erred in overruling appellant's objection to question No. 1 propounded to each of the twelve jurors by the appellee on his voir dire, to wit: "Mr. ____ (each of the twelve jurors selected), do you hold a policy in the State Automobile Insurance Association?"
Before we can consider the assigned error, two propositions advanced by the appellee must be answered, and if the answer be in the affirmative, the errors assigned cannot be considered in this appeal.
First: "The special bill of exceptions presents but one question propounded to each of the twelve jurors, and the objection to said question and the ruling of the court on 1. said objection, and does not contain the entire voir dire
examination of the jury. Therefore, no alleged error predicated upon the voir dire examination is presented to this court for decision." This identical proposition was answered by this court in the case of Annadall v. Union, etc., Lime Co.
(1908), 42 Ind. App. 264, 84 N.E. 35. We quote from the opinion: "Unless the record contains the entire voir dire examination of the jurors, the action of the trial court, as here sought to be presented, will not be reviewed." We adhere to the holding of the court in the above case, thus answering the first question.
The second: "The judge who signed the general bill of exceptions did not have authority to sign said bill of exceptions, and was not a judge pro tempore of the Pike Circuit Court. Therefore, the general bill of exceptions is not in the record."
The record reveals the following facts in regard to the *Page 478
appointment of the Hon. W.E. Cox, judge pro tempore: On August 30, 1928, the Hon. Bomar Traylor, judge of the Pike Circuit Court, appointed William E. Cox, a competent and reputable attorney of the fifty-seventh Judicial Circuit Court, to act as judge pro tempore of the September term of the court beginning on September 3, 1928; the Hon. Bomar Traylor was at the time unable to attend and preside at the September term of the court on account of sickness; on September 3, 1928, the Hon. W.E. Cox took the oath of office as judge pro tempore; the trial of the above-entitled cause was had before W.E. Cox, judge pro tempore
at the September term 1928, of the Pike Circuit Court; on November 12, 1928, the same being the first day of the November term of the Pike Circuit Court, Judge Bomar Traylor appointed Hon. W.E. Cox judge pro tempore; the appointment reads in part as follows: "Now, therefore, the undersigned judge of said court hereby appoints W.E. Cox . . . to act as judge pro tempore
thereof for said September term, 1928, of said Pike Circuit Court." (Our italics.) Appellant filed her motion for new trial in the cause on October 8, 1928, which was overruled by the Hon. W.E. Cox, judge pro tempore on November 19, 1928.
On November 24, 1928, Judge Bomar Traylor returned to court and appointed the Hon. William D. Curll, as judge pro tempore for the Pike Circuit Court for the third week of the November term, 1928, beginning November 26, 1928. Hon. W.D. Curll qualified as judge pro tempore. Appellant, on November 26, 1928, filed her appeal bond, which was approved by judge pro tempore, W.D. Curll. The certificate to the general bill of exceptions is to the effect that the same was presented to the court on January 7, 1929, and was signed by W.E. Cox, judge pro tempore, on the same day. The record fails to disclose that the Hon. W.E. Cox was *Page 479
ever appointed judge pro tempore except at the times and in the matter as herein set forth.
The court takes judicial notice of who the regular judges of the several judicial circuits are, including the Pike Circuit Court, and also takes judicial notice of the beginning 2-4. and end of the terms of court in the various circuits of the State of Indiana, including the Pike Circuit Court, and, therefore, that on January 7, 1929, W.E. Cox, or William E. Cox, was not the regular judge of the Pike Circuit Court; that the Fifty-Seventh Judicial Circuit is composed of Pike and Dubois counties; that the first day of January term of the Dubois Circuit Court commenced on January 7, 1929. Furthermore, this court judicially knows that the November term of the Pike Circuit Court ended prior to January 7, 1929. Stanley v. Stanley
(1921), 190 Ind. 528, 131 N.E. 35; H.W. Johns-Manville Co. v.South Shore Mfg. Co. (1919), 70 Ind. App. 484, 123 N.E. 648.
Section 1389 Burns 1926 makes provision for the appointment of a judge pro tempore, and so much of the section of the statute as applies, reads as follows: "If, from any cause, any judge of a circuit court shall be unable to attend and preside at any term of said court, or during any day or part of such term, such judge . . . may appoint, in writing, any other judge of a court of record of this state, or any attorney thereof eligible to the office of such a judge, to preside at such term, or during any day or part of said term. Such written appointment shall be entered on the order-book of such court, and such appointee shall, after being sworn, if he be not a judge of a court of record, conduct the business of such court, subject to the same rules and regulations that govern circuit courts in other cases, and shall have the same authority, during the continuance of his appointment, *Page 480
as the judge elect, or [the judge] making such appointment."
When Judge Curll assumed the bench on November 26, 1929, and approved appellant's appeal bond, the authority of Judge Cox ceased. The Pike Circuit Court could not have two judges 5. pro tempore at the same time. In face of the record, we are of the opinion that Hon. W.E. Cox was not judge protempore on January 7, 1929, at the time he signed the general bill of exceptions.
It has been repeatedly held by the Supreme and Appellate Courts that a person who has presided at the trial of a cause has no power to sign a bill of exceptions and make the same a part 6. of record after he has ceased to be judge (Cincinnati, etc., R. Co. v. Grames [1893], 8 Ind. App. 112, 34 N.E. 613, 37 N.E. 421); that no person except a judge can sign a bill of exceptions, for the signing of the bill is a judicial act.McCoy v. Able (1892), 131 Ind. 417, 30 N.E. 528, 31 N.E. 453.
In this case the general bill of exceptions could not become a part of the record without the signature of a judge authorized to sign the bill of exceptions. Aetna Indemnity Co. v. 7. Wassall Clay Co. (1912), 49 Ind. App. 438, 97 N.E. 562.
The several causes or reasons for a new trial properly presented by appellant depend upon the evidence for their consideration. Inasmuch as the Hon. W.E. Cox, did not have authority to sign the bill, the same is not a part of the record. See Peters v. Peters (1910), 45 Ind. App. 644, 91 N.E. 509;Beard v. Fenton (1918), 67 Ind. App. 605, 119 N.E. 495. It necessarily follows that each of appellee's propositions must be upheld in the instant case.
Appellee has filed a motion to dismiss the appeal, *Page 481
which is denied. No error assigned, however, can be considered on this appeal.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428961/ | This action was brought to recover the amount of a cashier's check which was issued by appellee, and on which check appellee afterwards stopped payment.
The following is a statement of facts agreed upon between Oris O. Kinder, plaintiff and appellant herein, and Fishers National Bank, defendant and appellee herein, and which statement of facts it was agreed should be used as evidence in the trial of this cause: "That, on the 13th day of December, 1929, the plaintiff conducted a sale and acted as auctioneer at a certain public auction sale in which certain real estate owned by one John C. Schultz was put up for sale to the highest and best bidder. That bids were received for said property, said sale being conducted by plaintiff, and the property was finally knocked down and bid in by one G.O. Edstrom, of Rush County, Indiana. That said property was bid in for the sum of $3,800.00, the purchaser making a down payment of $500.00. That, for the purpose of making said down payment, the said Edstrom executed his check for said sum of $500.00 in favor of the vendor, said Schultz, drawn on the First National Bank, Knightstown, Indiana. That said check bore date of December 13, 1929.
"That, on the 13th day of December, 1929, the plaintiff and said Schultz entered the office of the defendant bank, after banking hours, and requested of one A.P. Butz, the acting cashier of said bank, that he cash the said check, drawn on said Knightstown bank, mentioned aforesaid, at the time explaining that the check represented the down payment on the purchase price for the farm sold by said Schultz to said Edstrom and explaining *Page 215
further that the said plaintiff had conducted said sale as auctioneer and for his services was entitled from the proceeds of said check, to the sum of $114.00 as his commission. That plaintiff and said Schultz had by agreement theretofore agreed that plaintiff, in consideration for his services as auctioneer at said sale, was to receive a commission of three per cent of the purchase price, which said commission amounted to the sum of $114.00. That, after said Schultz had presented said check to cashier Butz, as heretofore alleged, and requested that said check be cashed, said Butz informed him and plaintiff that his cash had been locked up for the day, but that he had in the drawer of his desk a number of blank cashier's checks and that he would execute to plaintiff, a cashier's check for the amount to which plaintiff and said Schultz informed him plaintiff was entitled, in consideration of said Schultz indorsing the check drawn on said Knightstown bank and delivering the same to the defendant bank.
"That, pursuant to said agreement, said Schultz did then indorse said Knightstown check in blank and deliver the same to said Butz, and, in return therefor, said Butz, as cashier of the defendant bank, issued a cashier's check, payable to the order of plaintiff for the sum of $114.00.
"That said Butz, as cashier, then delivered said check to plaintiff and plaintiff received and accepted same.
"That thereafter said plaintiff presented said check for payment at the American National Bank, Noblesville, Indiana, and said plaintiff received credit therefor. That thereafter said cashier's check was returned and a notation entered thereon that payment had been stopped, whereupon, said check was returned to said plaintiff and his account charged and said amount was charged back on said plaintiff's account.
"That thereafter said plaintiff demanded payment of *Page 216
said check of A.P. Butz, cashier of defendant bank and payment was refused.
"That on the 14th day of December, 1929, the defendant bank, by and through its said cashier, said Butz, indorsed said check drawn on said Knightstown bank, and, in due course of business, presented said check through the clearing house to said First National Bank, Knightstown, Ind., which said bank refused payment of the same, for the reason that payment had been stopped.
"That said First National Bank caused said check to be protested and notice of protest issued on the 17th day of December, 1929, and on said day said defendant bank received the protest and also had returned to it the said check drawn on said Knightstown bank.
"That said bank has never received payment on said check."
Defendant's answer to plaintiff's complaint was in three paragraphs, the first being a general denial, the second alleging no consideration, and the third alleging that the consideration for the issuance of the cashier's check had failed.
The issues thus being formed, the cause was submitted to the court for trial. The court found for defendant bank and against plaintiff, and it was adjudged by the court that the plaintiff take nothing by his complaint and that the defendant recover of the plaintiff its costs, etc.
Plaintiff filed his motion for a new trial on the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law. The motion was overruled, and the cause is now before this court for our consideration. The error assigned is the overruling of appellant's motion for a new trial.
Appellant contends that, by accepting the cashier's check from appellee, he thereby released the person indebted *Page 217
to him and accepted the appellee as his debtor, and, in 1. support of this contention, has cited the case of Born v. First Nat. Bank (1890), 123 Ind. 78, 24 N.E. 173, 7 L.R.A. 442, 18 Am. St. 312. We have read this case carefully and are fully in accord with the principles stated therein, but we are of the opinion that it is not in point with the instant case. The Born Case, supra, sustains the proposition that, where a creditor accepts a check against a depositor's account, and procures such check to be certified by the bank upon which it is drawn, instead of presenting it for payment, the holder of the check thereby, by his own act, makes the bank his debtor and releases the depositor. In the instant case, none of the parties were depositors nor had accounts at appellee's bank. The court, in Born v. First Nat. Bank, supra, said: "There was no substitution of one debtor for another, in this instance, and the contention of appellant's counsel that there was a novation cannot prevail. The delivery of the check was simply a conditional payment. The release of the original debtor was dependent upon the condition that the check should be honored on presentation. He still remained the debtor, for he was bound for the debt as long as the check remained unpaid. Culver v.Marks, 122 Ind. 554." The acceptance of a cashier's check from the bank without an express agreement to consider the debt then and there discharged was not an absolute, but a conditional, payment, dependent upon final cash payment of the check, and acceptance of the check, in the absence of such an agreement, did not operate ipso facto as a discharge of the debt. Kraetsch
v. City of Chicago (1916), 198 Ill. App. 395; Dille v.White (1906), 132 Iowa 327, 109 N.W. 909, 10 L.R.A. (N.S.) 510;Smith v. Mills (1924), 112 Or. 496, 230 P. 350;Middlekauff v. State Banking Board (1922), 111 Texas 561[111 Tex. 561] [111 Tex. 561], 242 S.W. 442; State v. Tyler County *Page 218 State Bank (1925), 277 S.W. (Texas Com. App.) 625, 42 A.L.R. 1347.
Schultz, by his indorsement, promised the bank that the $500 check would be paid upon presentment, and, if it was not then paid, that he would pay the $500 in return for the bank's 2-4. promise to pay the two cashier's checks in the sum of $500. The bank has pleaded failure of consideration as it must do under the Negotiable Instrument Law if it relies thereon, and has proved that the check was not paid upon presentment and that it has never received payment upon said check. (This by the agreed statement of facts.) There is here a total failure of consideration. It has been held many times that a promissory note or a bill of exchange must be supported by a consideration, and that a plea of want or failure of consideration is a valid defense in an action between the original parties. Shireman v.Second Nat. Bank (1919), 72 Ind. App. 256, 124 N.E. 712; Story, Bills of Exchange (4th ed.) § 187; Columbia Nat. Bank v.Miller, Admr. (1919), 70 Ind. App. 187, 120 N.E. 711.
The law does not contemplate that the bank should be forced to sue the indorser and maker here when it can, by the simple method of refusing payment, accomplish all that justice requires and attain the same ultimate result that would be obtained through extended litigation.
Kinder has still retained all he ever had, namely, a right of action against Schultz, which he never relinquished. Having already discussed this subject, we shall not amplify further.
The general rule is that cashier's checks issued against a depositor's account are not subject to countermand except for fraud. When in the hands of a holder in due course, they 5, 6. are irrevocable. This case, however, does not come within this *Page 219
rule, as here Kinder was one of the original parties and not a holder in due course, nor did either Kinder or Schultz have an account at this bank against which the checks could have been issued.
Finding no reversible error, the judgment of the Hamilton Circuit Court is affirmed.
Neal, C.J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3216623/ | FILED
NOT FOR PUBLICATION JUN 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT HOLMES, III, No. 15-15468
Plaintiff - Appellant, D.C. No. 2:13-cv-01166-GMN-
GWF
v.
FRANK DREESEN; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted June 14, 2016**
Before: BEA, WATFORD, and FRIEDLAND, Circuit Judges.
Robert Holmes, III, a former Nevada state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging access-
to-courts and retaliation claims. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court properly granted summary judgment on Holmes’s
access-to-courts claims because Holmes failed to raise a genuine dispute of
material fact as to whether he suffered prejudice to a direct appeal of a criminal
conviction, a habeas petition, or a challenge to his conditions of confinement as a
result of defendants’ alleged conduct. See Lewis v. Casey, 518 U.S. 343, 348-355
(1996) (setting forth actual injury requirement).
The district court properly granted summary judgment on Holmes’s
retaliation claim because Holmes failed to raise a genuine dispute of material fact
as to whether defendant Smith took an adverse action against Holmes because of
his protected conduct. See Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015)
(setting forth elements of a retaliation claim in the prison context); see also Wood
v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (“[M]ere speculation that defendants
acted out of retaliation is not sufficient.”).
AFFIRMED.
2 15-15468 | 01-03-2023 | 06-23-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428963/ | In 1918, appellee Dowd commenced a suit against Andrews and Hamilton to recover damages for breach of a contract for exchange of real estate, and to *Page 183
set aside as fraudulent a conveyance by Andrews to Hamilton of the real estate now claimed by appellant Doty in the case at bar. At the time Dowd commenced his suit against Andrews and Hamilton, he filed lis pendens notice. Trial of that cause resulted in a judgment for defendants from which Dowd appealed to this court; and on February 24, 1922, this court reversed the judgment, holding that, under the facts which had been found specially, Dowd was entitled to a judgment against Andrews for $1,000 and interest, but held that the conveyance from Andrews to Hamilton was valid. The mandate of this court was to restate the conclusions of law in accordance with the opinion "and to render a personal judgment in favor of appellant against appellee Andrews for $1,000 and interest." See Dowd v. Andrews (1922),77 Ind. App. 627, 134 N.E. 294.
The decision and opinion of this court having been certified to the court which had tried the cause, that court, on June 8, 1922, made on its docket the following entry: "First. The 1, 2. court concludes the law to be that the plaintiff Jeremiah W. Dowd recover of and from defendant Emery Andrews the sum of $1,270, principal and interest. Judgment accordingly." At the time of making the entry, the question arose as to what the judgment should be and the court directed attorney for Dowd to prepare the judgment, but instructed the clerk of the court not to enter the judgment so prepared upon the order-book until further directed by the court, and if the parties could not agree the court would prepare the decree. The parties came to no agreement as to the judgment, but subsequently, and during the court vacation, the clerk of the court, at the suggestion of Andrews' attorney, made in the cause the following entry: "It is therefore ordered, adjudged and decreed by the court that the plaintiff Jeremiah Dowd recover of and from defendant *Page 184
Emery Andrews the sum of $1,270 principal and interest, together with costs herein, taxed at $ ____"
Thereafter at the October, 1922, term of the court, the trial court made a further finding and rendered judgment, the entry of the finding and judgment in the order-book being as follows: "As ordered by the Appellate Court in its opinion in reversal of this cause, the court, in addition to its conclusions of law entered June 8, 1922, now concludes the law further as follows: Second. That the plaintiff have and hold a lien upon the real estate described in the special findings of fact, to wit: * * * subject to the mortgage lien of John R. Hamilton. It is, therefore, adjudged and decreed by the court that plaintiff have and hold a lien upon (the real estate here described) and that the same be sold subject to the mortgage lien of John R. Hamilton, to satisfy plaintiff's claim."
On January 8, 1923, on motion of Dowd, the vacation entry of judgment was by the court stricken from the record. Thereafter, a motion for a new trial having been overruled, Dowd caused an execution on the judgment to be issued and placed in the hands of the sheriff. Thereupon appellant commenced the suit at bar, which is a suit to enjoin the levy of the execution and sale of the real estate to satisfy the judgment. At the time the suit was instituted, the court issued a temporary restraining order. On the trial to determine whether the temporary order should be made permanent, the court, by a special finding of facts, at request of plaintiff, found the facts to be as above set forth, and stated its conclusions of law to be that the law was with defendant. The temporary restraining order was dissolved, and judgment was rendered for Dowd, dismissing the suit. From the judgment appeal is prayed to this court.
The only assignment of error presented by this appeal is the action of the court in its conclusions of law; *Page 185
and in presenting the assignment, appellant bases his right to reversal upon one proposition, namely, that the jurisdiction of the court over its record ceases with the end of the term of court at which judgment was rendered. It is argued that the action of the court on June 8, in the cause of Dowd v.Andrews, supra, was the rendition of judgment, a judgment in which no lien on the real estate was decreed; that the action of the court in October, 1922, being at a subsequent term of court, is a nullity; and that it must necessarily follow that the court should have enjoined the levy of execution and sale of the land. There would be merit in appellant's contention if judgment had actually been rendered at the June term of court, but such is not the case. The sufficiency of the evidence not having been presented for review, the facts found specially must be taken as true. The court did not find that judgment was rendered in June, or during that term of court. On the contrary, the court found that on June 8, when the entry on the court docket was made, "the question arose as to what the judgment should be," and that the court directed attorney for plaintiff in that case "to prepare the decree," but "instructed the clerk not to enter the order in the order-book until further directed by the court, and that if the parties could not agree the court would prepare the decree." There was no agreement during the June term of court or at any time as "to what the judgment should be," and at the October term the matter being undisposed of, the court rendered its judgment, the judgment upon which levy of execution is now sought to be enjoined, and from which no appeal was prayed.
The court did not err in its conclusions of law.
Affirmed. *Page 186 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428966/ | Appellant brought this action against appellees in two paragraphs to recover on an account against them for $2,277.17 plus interest. The first paragraph *Page 216
of amended complaint alleged that the goods for which the account was incurred were purchased by Amos E. Kunderd under the name and style of "A.E. Kunderd" and that they were delivered to him at his special instance and request. That about May 12, 1933, he turned over and delivered to A.E. Kunderd, Inc., all his flower and bulb business and all his assets used and employed in said business, and that he withdrew therefrom and did not thereafter personally engage therein. That as part of the consideration for all said business assets the corporation assumed the business liabilities of Amos E. Kunderd and by a letter written June 3, 1933, acknowledged said debt as its own.
The second paragraph contains substantially the same allegations as to the nature of the debt, and that it was incurred by Amos E. Kunderd and then alleges that for the sole consideration of $85,000.00 of preferred stock in that corporation issued to him by A.E. Kunderd, Inc., that all his business assets were transferred and delivered to said corporation and that by reason of said facts the corporation became, as a matter of law, also liable for said account.
To this complaint appellees each answered in general denial. Trial was had to a jury and a verdict was returned for appellant in the sum of $2,277.17 against appellee Amos E. Kunderd and that the appellant take nothing by his complaint against the appellee A.E. Kunderd, Inc. Appellant's motion for new trial was overruled and judgment was entered in accordance with the verdict. This appeal was then perfected and the error properly assigned is the ruling on the motion, the grounds thereof being that the assessment against Amos E. Kunderd was too small, no interest having been added to the account; that the verdict of the jury as to *Page 217
the appellee A.E. Kunderd, Inc., was not sustained by sufficient evidence and that it was contrary to law.
Appellant first contends that inasmuch as appellee Amos E. Kunderd at the trial unqualifiedly admitted in open court that there was due appellant from him the sum of $2,277.17, 1, 2. which, with interest thereon up to the time of trial amounted to $2,379.62 and the court, at the request of both of the appellees definitely instructed the jury that appellant was entitled to judgment for $2,277.17 plus interest at six per cent from January 1, 1933, to time of trial, that the jury's act in ignoring this definite, unqualified admission and the court's instruction in returning a verdict for a less amount, is reversible error, as the instruction became the law of the case as to the amount of recovery. The appellant's brief fails to set forth the specific instruction discussed or any of the instructions, hence no question is presented for review on the instructions. Clause 5, Rule 22, of the Supreme and Appellate Courts; Cole v. McLean (1931), 93 Ind. App. 526,177 N.E. 348. However, since appellee Amos E. Kunderd in open court confessed that he owed the appellant $2,277.17, which with interest makes a total of $2,379.62, and there is no evidence in conflict therewith, the judgment herein as to Amos E. Kunderd is reversed and the trial court is instructed to enter judgment for the appellant against the appellee Amos E. Kunderd for the sum of $2,379.62.
Under the assignment of error that the verdict as to the appellee, A.E. Kunderd, Inc., is not sustained by sufficient evidence and is contrary to law, appellant contends that where a corporation takes over the business of another corporation, or of a partnership or individual, and as the sole consideration therefor issues stock in the corporation to the vendor, it is something more than a mere sale, and there is an implied liability *Page 218
on the part of the corporation for the debts of the one whose business was thus taken over by it, at least to the extent of the property and assets so acquired. Appellee corporation, however, says that not all of appellee Amos E. Kunderd's assets were transferred to appellee A.E. Kunderd, Inc., and that he had ample property left with and out of which to satisfy appellant's claim, therefore, no implied assumption existed.
Appellant cites no cases in point in support of its contention nor have we been able to find any. The evidence discloses that Amos E. Kunderd at the time of the sale to the 3, 4. corporation did not transfer to it certain real estate belonging to him and used in the business and that the value was more than sufficient to pay the account of appellant in full, and that the title to part of such real estate remained in him until January 7, 1935, and that he sold another part in the fall of 1935. Since all of Amos E. Kunderd's assets used in this business were not transferred to the corporation, in order for the corporation to become liable for the debt herein it must have assumed its payment, expressly or impliedly. There is no showing that it did so expressly and the evidence as to whether it impliedly assumed the debt is open to at least two reasonable inferences. Inasmuch as this court can not weigh the evidence and the inference drawn by the trial court from the evidence is a reasonable one, we are bound by the finding of that court, therefore the judgment herein as to A.E. Kunderd, Inc., is in all things affirmed. *Page 219 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428967/ | Appellant Esta Young filed with the Industrial Board an application for compensation as the dependent widow of Arthur Young, naming appellee General Baking Company as his employer. Appellees Bert Young and Viola Young, father and mother of *Page 660
said Arthur Young, also filed an application for compensation as partial dependents. Said applications were consolidated for hearing and the Industrial Board, upon review, found that on October 14, 1936, said Arthur Young received an injury as the result of an accident arising out of and in the course of his employment by appellee General Baking Company, of which injury he died on the same day.
The board found further: "That on June 16, 1927, one Esta Cutsinger and one Walter Hartlerode were married at Crown Point, Indiana; that they lived together until January 15, 1933, when they separated; that on September 21, 1934, Esta Hartlerode filed in the Lake Superior Court at Hammond, Indiana, her application for divorce from the said Walter Hartlerode, and that on January 22, 1935, an order was entered in said court granting a divorce as prayed for and restoring to said Esta Hartlerode her maiden name of Esta Cutsinger.
"It is further found that some time during the year 1933 the said Esta Hartlerode and one Arthur Young began living together, and that in 1934 this relation continued and they announced themselves as husband and wife; that subsequent to January 22, 1935, the said Esta Cutsinger and said Arthur Young continued to live together, and did so continue to live together until October 14, 1936, the date of the death of the said Arthur Young; that during all the period from some time in the year 1933 to October 14, 1936, plaintiff herein, Esta (Cutsinger) Young, held herself to be Esta Young.
"It is further found that the said Esta Cutsinger and the said Arthur Young were never formally married.
"It is further found that the relation existing between the plaintiff herein, Esta (Cutsinger) Young and the said Arthur Young were not of such nature as to constitute a common-law marriage." *Page 661
The board ordered that appellant take nothing by her application.
The board also found that appellees Bert Young and Viola Young, father and mother of decedent, "were not partially dependent upon said Arthur Young for support," and ordered that they take nothing by their application. Esta Young is the sole appellant. Appellees Bert Young and Viola Young filed a cross-assignment of error. In support of her assigned error that the award is contrary to law appellant contends that the evidence shows conclusively all the facts necessary to substantiate an award in her favor. This contention is disputed by appellee General Baking Company in its briefs only in that said appellee contends that the evidence does not show conclusively that the common-law relation of husband and wife between appellant and decedent had been established and existed at the time of the injury which resulted in his death. That question is determinative of this appeal.
The evidence indisputably shows that appellant married Walter Hartlerode on June 16, 1927; that they lived together until January 15, 1932, when they separated; that on September 21, 1934, appellant filed suit for divorce from her said husband and on January 22, 1935, a divorce decree was granted in said cause; that sometime in the year 1933, more than a year before the divorce was granted, appellant and decedent began living together and continued to live together until decedent died on October 14, 1936.
It is obvious that appellant and decedent could not establish a common-law marriage relation while she was the wife of Walter Hartlerode or until the divorce was granted. It is also 1. obvious that the relation between them before the divorce was illicit. The relation having been illicit in its origin and until the divorce was granted we would presume, in the absence *Page 662
of evidence to the contrary, that it continued as an illicit relation until decedent's death. Compton v. Benham (1909),44 Ind. App. 51, 85 N.E. 365; Meehan v. Edward, etc., Value Co.
(1917), 65 Ind. App. 342, 117 N.E. 265; Lawrence v. Lawrence
(1932), 95 Ind. App. 345, 182 N.E. 273; Dunlop v. Dunlop
(1935), 101 Ind. App. 43, 198 N.E. 95.
Appellant contends that the evidence shows conclusively that the relation was changed into a legal (common-law) relation of husband and wife. To establish such a relation there 2, 3. must be an actual contract of marriage entered into by the parties. Compton v. Benham, supra; Lawrence v.Lawrence, supra; Meehan v. Edward Value, etc., Co., supra.
There is no evidence in the record which directly shows that such a contract was entered into after the divorce was granted. Appellant testified concerning the relation which existed but she did not testify that she and decedent at any certain time or place, orally, or by written instrument, agreed to take each other as consorts. There is, however, some evidence in the record which tends to prove such fact indirectly; and such fact may be proven by circumstantial evidence. (Meehan v. Edward, etc.,Valve Co., supra; Lawrence v. Lawrence, supra).
It is not within the province of this court to determine whether such fact was proven. We are limited in that respect to a determination of the question whether or not the finding 4. made by the Industrial Board as to such fact is sustained by the evidence.
We deem it unnecessary and inadvisable to discuss the evidence in detail. There is very little conflict in the evidence as to whether or not the common-law marriage relation existed. It 5. is our opinion that the evidence would sustain a finding that such relation did exist, but we think the evidence, when considered *Page 663
with inferences which might reasonably be deduced therefrom would sustain a finding that appellant and decedent never considered themselves actually married; that they intended to be "formally married" (by ceremony) at some future date but were content to live together as husband and wife until they would be formally married; that they had not entered into an agreement of marriage. Therefore, we hold that the evidence is sufficient to sustain the finding of the Industrial Board "that the relation existing between . . . (appellant and decedent) . . . was not of such nature as to constitute a common-law marriage."
Appellees Bert Young and Viola Young contend in their brief in support of their assigned cross-error, that the award is contrary to law, that the evidence conclusively shows that they were 6. partially dependent upon Arthur Young for their support. There is evidence in the record which shows that said appellees were in poor financial circumstances and that decedent had on several occasions given them money with which to buy provisions. Appellee Bert Young testified that his son contributed an average of at least five dollars a week to their support, but was unable to state how much he so gave at any time or how much the son usually gave or how frequent the contributions were made. His evidence as to the various contributions was extremely vague. It is doubtful whether his said evidence had any probative force, but having considered all the evidence as a whole we find that it does not conclusively
prove that cross-appellants were partially dependent upon decedent.
Whether or not they were partially dependent was a question of fact for the Industrial Board to answer, and the evidence failing to conclusively show that the finding of the Industrial 7. Board as to such fact is wrong, we must sustain such finding. See Buhner *Page 664
v. Bowman (1924), 81 Ind. App. 395, 143 N.E. 366; Norris etux. v. Daniels and McVaugh Construction Co., Inc. (1932),95 Ind. App. 125, 182 N.E. 585.
No reversible error having been shown, the award is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428968/ | This is an appeal from a judgment rendered against the appellant upon his refusal to plead over after a demurrer to his complaint had been sustained. It was alleged in the complaint that the appellant was for a long time a policeman of the City of South Bend; that on August 19, 1939, he became ill with hay fever and asthma, whereupon he reported his condition to the appellee and requested that he be provided with medical attention and granted sick leave; that he went, next day, to Minnesota where he remained until September 19; and that upon his return he was informed *Page 541
by the chief of police that charges had been filed against him before the Board of Public Safety for absence from duty without leave, and that the hearing had been set for September 25. It was further alleged that on September 25 the appellant was wrongfully and unlawfully discharged without just cause by the board, over his objection, "to make room for quasi political preferred friends." The complaint sought damages for breach of the contract of employment. It was not alleged that the appellant demanded a hearing before the Board of Public Safety or that he sought to have the order of discharge reviewed by a court.
The appellant's tenure rights are controlled by § 48-6105, Burns' 1933 (Supp.), § 11478, Baldwin's Supp., 1935. Said act provides, among other things, that a member of a police force may be removed by the Board of Public Safety for absence without leave, but that a hearing shall be had on the charges, if demanded. One so dismissed may "appeal" from an order of discharge to the circuit court within 30 days. "The decision appealed from shall not be stayed or affected pending the final determination of such appeal, but shall remain in full force and effect until and unless modified or reversed by the final judgment of the court."
The contentions of the appellant are: (1) That the statute above referred to is unconstitutional because it undertakes to deny an appeal to this court from final judgments of circuit or superior courts entered in review of orders of boards of public safety, and because it impairs the obligation of contracts; and (2) that the appellant had the right to elect whether he would pursue the statutory remedy or bring a common-law action for breach of his contract of employment.
To maintain the proper balance between the departments of government, the courts have power to confine *Page 542
administrative agencies to their lawful jurisdictions. 1, 2. The act before us will not be construed as depriving the appellant of a judicial review of the order of discharge or as denying him the right of an ultimate appeal to this court. This subject was fully considered in Warren v. IndianaTelephone Co. (1940), 217 Ind. 93, 26 N.E.2d 399. The statute is not open to the first objection urged against it.
There is no element of the impairment of a contract here involved. Whatever rights the appellant possessed were by virtue of the statute, which he now attacks. If the statute is 3. void he was merely the employee of the city at sufferance and subject to discharge at will. City of Frankfort v.Easterly (1943), ante, p. 268, 46 N.E.2d 817, 47 N.E.2d 319. The appellant may not claim the benefits of this statute and, at the same time, challenge its validity on the ground that it impairs his contract rights. Swing v. Kokomo Steel and WireCo. (1921), 75 Ind. App. 124, 125 N.E. 471.
The appellant says that in 1923 when he became a member of South Bend police force the statute then in force (Acts 1905, ch. 129, § 160, p. 339) permitted him to bring an action for 4-7. breach of his contract of employment without bond within six (6) years. He reasons that the present statute impairs the obligation of his contract by limiting the time for bringing an action to review an order of discharge to thirty (30) days and by requiring a bond for costs. Ordinarily, the statute of limitations forms no part of a contract; it affects the remedy only, and that statute governs which happens to be in force when suit is brought. Winston v. McCormick (1848), 1 Ind. 56, Smith 8; State ex rel. Trimble v. Swope (1855), 7 Ind. 91. There is no constitutional inhibition against the *Page 543
Legislature shortening the limitation within which an action shall be commenced, so long as a reasonable time is provided; and what period of time is reasonable for that purpose is for the Legislature to determine, if there is no denial of justice. 34 Am. Jur., Limitation of Actions, § 21, p. 29. Costs are a part of the burden of litigation, and no litigant is deprived of a constitutional right by statutes which impose such costs upon him. Daniel v. Daniel (1921), 116 Wash. 82, 198 P. 728, 27 A.L.R. 177.
The cases of City of Evansville v. Maddox (1940),217 Ind. 39, 25 N.E.2d 321, and State ex rel. Shanks v. Common Council of the City of Washington (1937), 212 Ind. 38, 8-10. 7 N.E.2d 968, lend no support to the appellant's claim that he had a right to elect whether he would pursue the statutory remedies by demanding a hearing and a judicial review, or maintain a common law action for breach of contract. The Maddox case was for breach of contract, while the Shanks case was to mandate a municipality to reinstate wrongfully discharged firemen. In both cases it was held that the actions were proper although there had been no demand for a hearing. But these conclusions were based upon the fact that no charges had been preferred upon which a hearing might have been demanded. On the other hand, it was distinctly held in City of Michigan City v.State ex rel. Seidler (1937), 211 Ind. 586, 5 N.E. 968, that under the statute an employee may be removed without a hearing after charges have been made, unless a hearing is demanded. It follows that if charges are filed, no hearing is demanded, an order of discharge is entered, and no steps are taken to obtain a judicial review within the time allowed, the employee is bound by the order of discharge. This comports with the rule that one who *Page 544
seeks to avail himself of a remedy provided by statute must bring himself substantially within the provisions of the statute on which he relies. Fink v. Cleveland, C.C. St. L.R. Co.
(1914), 181 Ind. 539, 105 N.E. 116.
The judgment is affirmed.
NOTE. — Reported in 48 N.E.2d 649. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429076/ | The record has been carefully re-examined in the light of the argument upon resubmission.
There was testimony from two witnesses, Van Cleve and Jones, which, if sufficiently corroborated, and believed by the jury, was ample to sustain the verdict. The trial court instructed that Van Cleve and Jones were accomplices. This 1. TRIAL: instruction was undoubtedly correct as to Jones, verdict: who testified that he changed or obliterated the disregard of number on the engine of the car at appellant's instruc- request; but it might be open to question as to tions. Van Cleve, who testified that he stole the car and delivered it at a place designated by appellant. See State v.Boyd, 195 Iowa 1091. But we have no occasion to consider that question; for, whether right or wrong, the instruction became the law of the case, and the jury was required to consider these witnesses as accomplices. No *Page 654
complaint is made that the court did not properly instruct as to the corroboration required of the testimony of an accomplice, in order to warrant a conviction.
I. The principal question in the case is whether there was sufficient corroboration of the testimony of the accomplices tending to connect the defendant with the commission of the offense charged, to support the verdict.
The testimony of Van Cleve, in brief, was that he was indebted to appellant, who was pressing him for payment; that appellant said that if he (Van Cleve) would steal a car for him, he would pay him $50, and cancel the indebtedness; that 2. CRIMINAL he stole the car in question, a Ford roadster, LAW: in Des Moines, on the evening of May 10, 1921, evidence: and under direction of appellant, drove it to accomplices: appellant's house and left it; that, the next sufficiency morning, he and appellant went to the house, and of Van Cleve took the stolen car, by appellant's corrobo- direction, to what is spoken of in the testimony ration. as the Hull Avenue garage, where he left it; that appellant had given him a key to the garage, and paid him $50 in cash; that, a few days later, appellant told him to leave the state, and suggested that he go to California; that he consented to go to Eldon; that he went to Ottumwa and to Albia, and from the latter place called appellant, who asked him if he was broke, and said he would send him money, which he did by telegraph, to Frank Ford, a name that appellant had suggested he should use; that he returned to Des Moines; that appellant suggested that he go to Los Angeles, and bought a railroad ticket and gave it to him; that he did not go, and turned the ticket over to an officer; that later, appellant again asked him to go to California, and took him to Ames, where he purchased a ticket for him to San Diego, which Van Cleve signed in the name of S. Hudson; that he did not go to California, and turned this ticket also over to the officers. Van Cleve testified that he received the money at Albia about the middle of June, 1921. The ticket to Los Angeles appears to have been dated June 30, 1921, and the one to San Diego, October 2, 1921. Both tickets were in evidence.
The appellant, as a witness, denied buying the ticket to San Diego, but did not deny that he purchased a ticket to Los Angeles *Page 655
and gave it to Van Cleve, and claimed that he did so to assist Van Cleve in some trouble with a woman, and to have him look for a car upon which appellant had a mortgage.
The stolen car was recovered by the police on June 4, 1921, being found at what is spoken of in the testimony as the Hohn garage; and appellant was arrested on the same day. On the following day, the car was identified by the owner, W.E. Thomas, and his son, as the one stolen on the night of May 10th. W.E. Thomas testified that, about June 18, 1921, appellant called on him at his bank in Norwalk, and said "he wanted to talk about the Ford roadster I said I had stolen; that he had purchased it, and gotten an affidavit from the owner, and it cost him quite a bit of money to fix it up, and he didn't like to lose it. Wanted to know if I was sure of the identity of the car, and I told him yes; and he invited me to his office in Des Moines to talk it over. Said he had it in the garage with a man by the name of Hun."
Appellant's version of this conversation was that, after his arrest, he went to see Thomas, and asked him if he was sure his car was among certain cars taken from appellant; if he could identify his car. He testified that he did not tell Thomas he had bought the car; that he told him his car was not among those taken from appellant's place, but over at Hohn's garage.
Testimony of numerous officers tending to show that the car in question had been at the Hull Avenue garage between the time it was stolen and the time of its recovery, was 3. CRIMINAL stricken from the record, on the ground that the LAW: evidence was procured by illegal searches, evidence: notwithstanding the holding of this court in the evidence cases of State v. Tonn, 195 Iowa 94, and State
unlawfully v. Rowley, 197 Iowa 977. But again, the ruling obtained. became the law of the case, and the excluded testimony is not to be considered.
The Hull Avenue garage was an isolated building, with no artificial light, and with the windows barricaded or darkened; and there was testimony, aside from that of the alleged accomplices, that it was rented by the appellant. Testimony of one of the officers remained in the record, to the effect that, between May 17th and 20th, he saw a man in the garage, working on a Ford roadster. The car in question, at the time it was recovered, *Page 656
had had the engine number obliterated or changed, the tires changed, the radiator changed, and the rear fenders removed, and it had been painted red.
Van Cleve's mother testified, in substance, that appellant frequently called her by telephone, and came to the house, inquiring about Van Cleve; that he said they were both in trouble, and that he would buy the boy a ticket to California; and that she thought this was about the time appellant was arrested.
J.A. Brophy testified that, while he was operating a private detective agency in Des Moines, the appellant, in company with one Willets, came to his office, in the fall of 1921, and said that Van Cleve was to be a witness against him, and that he had bought him a ticket to California, and that Van Cleve had turned the ticket over to one of the police officers; that he wanted to "set" an automobile, and have Van Cleve and Willets steal it and bring it to their place, and proposed that Brophy was to be "planted" there, and that, when Van Cleve came up, he was not to make any arrests, but to call Van Cleve's name, and let him get away; that he would let Van Cleve get away, rather than stand a five-year sentence for stealing automobiles; that he said there was money in it; and that he came to the office several times, and that this was the subject of the conversation each time. Brophy's wife testified that appellant came to the office several times, inquiring for Brophy. The appellant testified that Brophy sent Willets to him, and made the proposition, which he refused to accept. Willets was not a witness.
The statute, Section 5489, Code of 1897 (Section 13901, Code of 1924), provides:
"A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof."
We have frequently held that the corroboration need not be as to every material fact testified to by an accomplice; that the requirements of the statute are met if the accomplice is corroborated in some material fact tending to connect the defendant with the commission of the offense. State v. Allen,57 Iowa 431; State v. Hall, 97 Iowa 400; State v. Dorsey, 154 Iowa 298 *Page 657
; State v. Patten, 191 Iowa 639; State v. Christie, 193 Iowa 482; State v. Seitz, 194 Iowa 1057.
If there be any corroborating testimony, as a general rule, the question of its weight and sufficiency is for the jury. State v.Miller, 65 Iowa 60; State v. Dietz, 67 Iowa 220; State v. VanWinkle, 80 Iowa 15; State v. Dorsey, supra; State v. Patten,
supra.
The essential elements of the offense with which the appellant was charged, were that he bought or received stolen property, knowing that it had been stolen. Testimony of his admission that he bought the car and had it in the "Hun" (Hohn) garage, where it was found by the officers, altered in the manner described, and that a car of that description was previously seen in the Hull Avenue garage, of which appellant had control, under circumstances tending to show an effort to conceal it, and that work was being done on it, and that appellant, after his arrest upon the charge of receiving the stolen car, made persistent efforts to get Van Cleve beyond the reach of a subpoena, tended to corroborate the testimony of Van Cleve that appellant received the car, knowing it to have been stolen, and therefore tended to connect him with the commission of the offense.
II. As to the sufficiency of the evidence to sustain the conviction, aside from the question of corroboration of the accomplices, it is a significant fact that, while appellant was a witness on his own behalf, and entered 4. CRIMINAL vigorous denials of the testimony of witnesses LAW: for the State upon certain collateral matters, evidence: such as the purchase of the ticket to San Diego, sufficiency. the conversation with Wilson, and the transaction with Brophy, he did not deny, as a witness, that he received the car from Van Cleve under the circumstances testified to by the latter; that it was in the Hull Avenue garage; that that garage was under his control; and that he procured Jones to obliterate the engine number, the day after the car was stolen, and to remove the tires, a few days later. The question of the credibility of the witnesses was for the jury. We are of the opinion that the verdict finds sufficient support in the evidence.
III. Complaint is made of the admission in evidence of a *Page 658
5. CRIMINAL key to the Hull Avenue garage, that Van Cleve LAW: testified appellant gave him at the time he took evidence: the stolen car there, and that was subsequently evidence taken from another person found at the garage by unlawfully the officers. As we understand the objection, it obtained. goes to the manner in which the State came into possession of the key. The complaint is without merit. State v.Tonn, supra; State v. Rowley, supra.
IV. Error is assigned on the admission in evidence of the railroad ticket to San Diego, which Van Cleve testified appellant purchased and gave to him at Ames. The complaint is predicated upon the idea, upon which stress was laid 6. CRIMINAL throughout the argument for appellant upon the LAW: original submission of the case, that, since the evidence: railroad agent who sold the ticket did not accomplices: positively identify appellant as the purchaser, corrobo- there was no corroboration of Van Cleve at this ration as to point, and the ticket was therefore exhibits. inadmissible. The statute does not require that no statement of fact by an accomplice can be accepted as true, or even received in evidence, unless corroborated. It is not necessary that such corroboration extend to every detail or item of evidence given or produced by the accomplice, to admit of its acceptance as true by the jury, — much less its introduction in evidence. See authorities cited above.
V. It is insisted that the court erroneously admitted in evidence a copy of a telegram by means of which Van Cleve testified he received money from appellant when at Albia, and it is said that the original telegram delivered to 7. CRIMINAL the telegraph company for transmission would LAW: have been the best evidence. It does not appear evidence: that any written message was delivered to the best telegraph company at Des Moines for evidence: transmission. In the absence of such a showing, telegrams. the telegram as received is the original writing. Bank v. Richardson, 47 N.C. 109. But even where a written message is delivered for transmission, it is not always true that it is to be considered the original. It has been held to depend upon whether the telegraph company was the agent of the sender or the recipient. 22 Corpus Juris 1019, 1020. Lyons Lbr.Co. v. Stewart, 147 Ky. 653 (145 S.W. 376). Assuming that the telegram was received by Van Cleve, it, so far as appears, was *Page 659
the original, and its loss is sufficiently shown to render admissible what the witness testified was a copy. But the copy is not in the record. It appears, so far as the record discloses, to have been nothing more than a means of transmitting money to Van Cleve by telegraph. If it was merely the writing out of a telegraphic order from the operator or office at Des Moines to the operator at Albia to pay money to Frank Ford, — the name Van Cleve was using, — there is no reason to infer that there was any other or original writing.
Van Cleve testified that he had arranged with appellant to use the name Frank Ford; that he communicated with the appellant by telephone or telegraph from Albia; and that appellant sent him money there in that name. Error was not 8. CRIMINAL assigned, on the first submission, on the LAW: admission of this testimony, but only on the evidence: admission of the copy of the telegram. The order accomplices: or telegram, on the strength of which the money permissible was paid to him, tended to corroborate him as to corrobo- the fact that he received money at that time and ration. place in that name. That the money was paid to him under a false name which appellant had suggested he should use, was sufficient, in connection with the testimony that he was communicating with appellant, who said he would send him money, to make it admissible as against appellant. Of course, since the whole transaction was shown by the testimony of Van Cleve only, it could not, in any event, be considered as corroboration required by the statute, tending to connect the appellant with the commission of the offense; but the State was entitled to corroborate Van Cleve's testimony, even though the corroboration did not tend to show appellant's connection with the crime charged, and was entitled to show appellant's acts by the accomplice, although such testimony, without the required corroboration, would not warrant a conviction. Were we in doubt as to the admissibility of the copy of the telegram, we would be constrained to say, in view of the fact that the copy is not in the record, and that Van Cleve testified to his communication with appellant and the receipt of money from him as the result of such communication, that no prejudice resulted from its admission. Appellant, as a witness, did not deny the transaction, or the sending of money to Van Cleve at Albia. *Page 660
VI. Numerous alleged errors not relied upon on the original submission are now urged upon our attention. It is well settled that a new case cannot be made on a petition for rehearing, and that matters cannot be then insisted upon that 9. APPEAL AND were not presented on the original submission. ERROR: Hintrager v. Hennessy, 46 Iowa 600; Mann v. S.C.
assignment P.R. Co., 46 Iowa 637; Long v. Garey Inv. Co.,
of errors: 135 Iowa 398. It is due to distinguished counsel additional to say that these matters are presented, not so assignment much as in themselves requiring a reversal, as on that, it is said, they show that appellant did rehearing. not have a fair trial. They relate to questions arising on the introduction of testimony. Our re-examination of the record leaves the impression that, while there was no error resulting in prejudice to appellant, the State was deprived of the benefit of testimony that, under our decisions, was admissible.
The testimony of Van Cleve and Jones is severely criticized, as is also the conduct of the officers of the law. It is admitted by Van Cleve that, after he turned the stolen car over to appellant, he informed the officers, and kept them informed of appellant's subsequent efforts to get him out of the state. These matters, and many others brought to our attention, were all before the jury; and it suffices to say here that we find nothing in the record requiring us to hold that the verdict is not supported by the evidence, or that it was the result of passion or prejudice.
The judgment is — Affirmed.
FAVILLE, C.J., and EVANS, STEVENS, ARTHUR, and De GRAFF, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428970/ | Appellant, in the first sentence of "Argument" in his brief, says, "This appeal raises the single question as to whether or not the trial court erred in appointing a receiver in this cause without notice to the defendants, including the appellant."
The appellant, Lawrence V. Meyering, and the appellees, Higgins, Remien and Camfield, are the owners of a half interest in four certain oil and gas leases, covering real estate in Pike County, Indiana. These parties are all residents of the State of Michigan and their interests are alike, except as to the proportion held by each, and they will be referred to hereafter in this opinion as the Michigan group. They have no agents in Indiana upon whom notice or process may be served. *Page 316
The appellee, Petroleum Holdings, Inc., is an Indiana corporation, with its principal office in Evansville, Indiana, and owns the other half interest in said leases. The appellees, McDonald, McDonald and Eads, are engaged in the business of purchasing oil from oil producers and the appellee, Farm Bureau Oil Company, Inc., is in the same business. The McDonald-Eads group and the Farm Bureau Oil Company, Inc., will be referred to as oil purchasers. They have purchased oil and gas taken from the ground covered by said leases.
The complaint in this case was filed by the appellee, Petroleum Holdings, Inc., against the appellant and the other persons constituting the Michigan group and the persons constituting the oil purchasers, who were made parties because they held money distributable to the persons constituting the Michigan group for oil and gas produced in the operation of said leases. The purpose of the action was to collect from the Michigan group $9,220.57 alleged to be due plaintiff from them as their share of the cost and expense of operating said leases, and to enforce a contractual lien upon the interests of the Michigan group in and under the four oil and gas leases above referred to, including the money belonging to them in the hands of the oil purchasers alleged to be $3,380.35. A receiver was asked to take control of the interests of the Michigan group in and under said leases to prevent loss and waste of the property to which plaintiff's lien had attached.
The complaint was filed on November 8, 1947. At the same time affidavit of non-residence of the defendants constituting the Michigan group was filed and publication of notice of said non-resident defendants was ordered. On November 9, the court made an entry, reciting that the first publication of notice to the non-resident defendants had been made and that summons *Page 317
for the resident defendants had been issued. This entry then shows that plaintiff's application for a receiver was submitted upon the verified complaint and that the court found that a receiver should be appointed to take over the interest in said leases of the defendants constituting the Michigan group, and a receiver was appointed to take charge of same during the pendency of the action to preserve such leasehold estates and to preserve the interests therein of the defendants constituting the Michigan group, upon which plaintiff held a lien. A receiver's bond was fixed and given and the receiver took oath and qualified.
The complaint is the only evidence before us and we may look to it alone for the facts upon which to decide the case. From it we have gathered all the facts stated in this opinion.
Appellant and the Michigan group are the owners of four described oil and gas leases, one of which is known as the Hunter lease, and another of which is known as the Alice Stewart lease. The Michigan group acquired their several interests in said leases by assignment from appellee Petroleum Holdings, Inc., and at or about the time of such assignment Petroleum Holdings, Inc., and each of the members of the Michigan group entered into a written contract governing the manner in which said leases should be developed and operated. By this written contract it was provided that all costs and expense in connection with the drilling, equipment and operating of said leasehold properties should be paid by the parties in proportion to their respective interests. The duty of operating said properties was delegated to Petroleum Holdings, Inc., subject to a provision that the operator before incurring any single item of expenditure in excess of $1,000, should obtain the consent and approval of the *Page 318
other parties. It was provided that the operator should pay and discharge all of the costs and expenses incurred in the development of the leasehold estates and charge the other parties their respective proportionate shares thereof, and the operator was, by the terms of said contract, given a lien upon the interest in said leases of each of said other parties, and upon the oil and gas produced therefrom, to secure the payment to the operating party of all amounts becoming due to him and that such lien should be subject to foreclosure in the event of default. Petroleum Holdings, Inc., was also given the privilege of requiring the other parties to advance their shares of development and operating costs upon estimates submitted.
Petroleum Holdings, Inc., as the operating party under said contract, drilled and completed four producing wells and has two additional wells in process of drilling and has rendered monthly statements to the Michigan group of the costs and expenses incurred in such drilling and operation but the Michigan group have failed to pay any part of their share of the costs of the drilling and operation since January 22, 1948, and there was owing from the members of the Michigan group to Petroleum Holdings, Inc., the operator, $9,220.57, as of October 31, 1948. The Michigan group have both verbally and in writing promised to pay their proportionate part of the cost of the development and operation of said leases but have wholly failed to do so, and the Petroleum Holdings, Inc., plaintiff in the case, is unwilling to continue to advance the entire cost of development and operation of said leasehold estates without reimbursement from the Michigan group.
The Hunter lease, by its terms, will expire and be forfeited unless the drilling of a well thereon is commenced on or before November 15, 1948, just one week *Page 319
after the date of the commencement of this action. This fact was called to the attention of the Michigan group and demand was made upon them for the deposit of their share of the cost of drilling the necessary well on said Hunter lease, but that defendants have wholly ignored such notice and demands and have failed to take any action with respect to said lease, either to authorize plaintiff to commence a well thereon or to notify plaintiff that they will not participate in the expense of drilling said well thereon. There are producing wells upon leases located north and south and west of said Hunter lease, all within a distance of approximately three-eights of a mile or less from the Hunter lease, and said Hunter lease is valuable and justifies the cost of drilling a test well thereon.
The Alice Stewart lease covers land immediately adjoining a forty acre tract, upon which a producing oil well had been completed within thirty days prior to the filing of the complaint herein. The production of this well is not less than 50 barrels per day and it is located only 330 feet from the north property line of the Alice Stewart lease and by virtue of this fact the oil and gas available through wells drilled upon said Alice Stewart lease is being captured by others and the value of said Alice Stewart leases is being depreciated and plaintiff alleges there is an obligation to lessor created by law to protect the Alice Stewart lease by drilling an offset well thereon within a reasonable time. The Petroleum Holdings, Inc., has called this situation to the attention of the Michigan group and has furnished them with estimates of their pro rata shares of the cost of drilling said offset well but they have not responded.
It is alleged in the complaint that because of the willful and deliberate failure of the Michigan group to *Page 320
comply with the terms of said operating agreement and furnish their proportionate costs of the development and operation of said leasehold estates, including the cost of a test well on the Hunter lease and the drilling of an offset well on the Alice Stewart lease, the interests of all the parties in said leasehold estates, including the plaintiff Petroleum Holdings, Inc., is in danger of being lost, or materially injured or reduced, and that all of said parties are suffering or are in imminent danger of suffering irreparable injury.
It is further alleged in the complaint that notice to the Michigan defendants may be had only by publication for 51 days in a newspaper. It is alleged that an emergency exists for the appointment of a receiver, for the interest of said Michigan defendants, without notice for the reason that the Hunter lease will expire by its terms before notice or intention to apply for a receiver could be given to said defendants by publication, and that it would be to the best interest of all concerned that a decision be reached as to the drilling of an offset well on the Alice Stewart lease before notice can be given to the defendants who constitute the Michigan group.
The prayer of the complaint is for judgment against the individual members of the Michigan group for the sums which the plaintiff has advanced for them and that plaintiff's lien be foreclosed against the interests of said defendants in said leasehold estates and that the monies being held by the oil purchasing defendants be first applied to the payment of said judgment and that the interests of said defendants in said properties be ordered sold to satisfy its judgment. Plaintiff further prays that a receiver for the interests of the Michigan group in said leasehold estates be appointed forthwith, and without notice, to conserve said properties *Page 321
and to cooperate with the plaintiff in the further orderly operation and development of said leasehold estates.
We approach a consideration of this case with full realization that upon very few occasions has this court affirmed the appointment of a receiver without notice. It has been said 1. that "Courts of equity exercise extreme caution in the appointment of receivers ex parte. They are averse to dispossessing a party of property prima facie his own, and placing it in the hands of a receiver without notice, and such action should not be taken except in cases of the greatest emergency demanding the immediate interference by the court. . . ." Kent, etc., Grocery Co. v. George Hitz Co. (1918),187 Ind. 606, 608, 120 N.E. 659; Hawkins v. Aldridge (1937),211 Ind. 332, 334, 7 N.E.2d 34; Morris v. Nixon (1945),223 Ind. 530, 533, 62 N.E.2d 772. Such appointments, however, have been affirmed and under our statutes receivers in proper circumstances may be appointed without notice. Section 3-2602, Burns' 1946 Replacement.
This court has held, however, that before a receiver is appointed without notice it must appear not only that there are reasons for appointment of a receiver but also that an 2. emergency exists which justifies such an appointment without notice. Morris v. Nixon, supra, and cases cited at p. 532; Henderson v. Reynolds (1907), 168 Ind. 522, 526, 81 N.E. 494; Hizer v. Hizer, (1929), 201 Ind. 406, 414,169 N.E. 47; Tormohlen v. Tormohlen (1936), 210 Ind. 328, 332,1 N.E.2d 596.
Our statute providing for appointment of receivers prescribes a number of grounds upon which receivers may be appointed. Section 3-2601, Burns' 1946 Replacement. Among the cases where a receiver may be appointed are actions by a creditor to subject any *Page 322
property or fund to his claim, and actions between partners or persons jointly interested in any property or fund and in all actions where it is shown that the property or fund in controversy are in danger of being lost or materially injured.
The case before us is an action by the appellee, Petroleum Holdings, Inc., to enforce a lien upon the interests of the defendants in and under certain leasehold estates. It is an action between persons jointly interested in these leasehold estates and it appears that at least two of the leasehold estates involved are in danger of being lost or materially injured. The rights of the lessees under the Hunter lease would terminate unless a well was begun on or before November 15, 1948, and the Stewart lease is being depleted and damaged by the taking of oil through wells upon adjoining property which can only be minimized by the drilling of an offset well on the Stewart lands.
It appears, therefore, that under the allegations of the 3. complaint this is a proper case for the appointment of a receiver.
Section 3-2602, Burns' 1946 Replacement provides that a receiver shall not be appointed without notice except upon sufficient cause shown by affidavit. It will be observed 4. that the statute does not define what will constitute sufficient cause, but our decisions have indicated when a receiver without notice properly may be appointed and when not. A leading case involving the appointment of a receiver without notice is Henderson v. Reynolds, supra, at p. 527, where it is said:
"By the established practice, independent of statute, courts of equity, being averse to interference ex parte, will entertain in ordinary cases an application for the appointment of a receiver only after *Page 323
notice to defendant or a rule to show cause. High, Receivers (3d ed.), §§ 111, 112.
"The exceptional cases are when the defendant is beyond the jurisdiction of the court, or cannot be found, or when some emergency is shown rendering interference before there is time to give notice, necessary to prevent waste, destruction, or loss; or when notice itself will jeopardize the delivery of the property over which the receivership is extended in obedience to the order of the court. It must be a case of imperious necessity, requiring immediate action and where protection cannot be afforded the plaintiff in any other way. Continental, etc., Min. Co. v. Bryson (1907), ante, 485, and authorities cited; Chicago, etc., R. Co. v. Cason (1892), 133 Ind. 49, 51; High, Receivers (3d ed.), §§ 113, 117; Beach, Receivers (2d ed.), §§ 140-143." (Our italics.)
For other cases to the same effect, see Hizer v. Hizer,supra, pp. 412, 413; Continental Clay, etc., Co. v. Bryson
(1907), 168 Ind. 485, 489, 81 N.E. 210; Hametic Lodge Bldg.Ass'n v. Esters (1947), 225 Ind. 118, 73 N.E.2d 46; LarguraConst. Co. v. Super-Steel Products Co. (1939), 216 Ind. 58, 61, 22 N.E.2d 990; Bookout v. Foreman (1926), 198 Ind. 543, 546, 547, 154 N.E. 387; Morris v. Nixon, supra. Each of the above cases holds directly or by necessary implication recognizes that where a defendant is a non-resident and beyond the jurisdiction of the court, a receiver in an emergency may be appointed without notice if a receiver otherwise may be justified.
It seems to us that the case before us is one of the exceptional cases referred to where the appointment of a receiver without notice is proper. The defendants are non-residents and beyond the jurisdiction of the court, and there was an emergency and need for immediate action. One of the leasehold estates upon which plaintiff's lien had attached was about to become forfeited *Page 324
for failure to drill a first well as required by the lease. The time for drilling such well was only a week away when the complaint was filed. Another leasehold upon which plaintiff's lien had attached was being wasted by failure to protect it by an offset well against depletion through wells on adjacent land. For a case holding that failure to drill an offset well in such a situation justified the appointment of a receiver without notice, see Ohio Fuel Oil Co. v. Burdett, Judge (1913), 72 W. Va. 803, 79 S.E. 667.
In our decisions a number of conditions precedent to the appointment of a receiver without notice have been pointed out. Before a receiver may be appointed without notice there 5-8. must appear the probability that he ultimately will be entitled to a judgment or decree. Hawkins v. Aldridge,supra. In the case before us the allegations of the positively verified complaint show an indebtedness of over $9,000 and the right to a lien to secure the payment of such indebtedness. In view of this situation there is the probability that the plaintiff will be entitled to recover and foreclose his lien on all four leases. Where a person's rights can be protected by a temporary restraining order, or he has another adequate remedy, a receiver without notice will not be appointed. Hawkins v.Aldridge, supra; Morris v. Nixon, supra. In the case before us a temporary restraining order would not be availing and no other adequate remedy occurs to us and none has been pointed out. Waste or loss must be threatened. Hizer v. Hizer, supra;Bookout v. Foreman, supra; Henderson v. Reynolds, supra;Continental Clay, etc., Co. v. Bryson, supra; Hametic LodgeBldg. Assn. v. Esters, supra. In the case before us we have already stated why we think there was a showing that waste or loss was threatened. Where the emergency could *Page 325
have been anticipated in time to have given notice a receiver will not be appointed without notice. Hawkins v. Aldridge,supra; Hizer v. Hizer, supra; Henderson v. Reynolds, supra;Hametic Lodge Bldg. Assn. v. Esters, supra; Tormohlen v.Tormohlen, supra; Morris v. Nixon, supra. Appellant in this case urges that the emergency here could and should have been anticipated in time for the service of notice of intent to apply for the appointment of a receiver. With this we cannot agree. It does not appear from the complaint, upon which it will be remembered we must rely for our facts, that the plaintiff was ever actually informed that the appellant and other members of the Michigan group would not furnish their pro rata share of the cost of drilling a well or the cost of an offset well on the Stewart lease and plaintiff could not assume that the Michigan group, even though delinquent in payment for work already done, would go so far as to permit a forfeiture and waste of leases which constituted a substantial part of the property in which they had invested their money.
Appellant also argues that the plaintiff could drill these wells itself and be secured by its contractual lien upon the interests of the Michigan group which could be foreclosed. This they contend constitutes an adequate remedy at law. We do not concur in this view. It is true that the plaintiff could have protected the leases and its lien thereon by drilling these wells with its own money, but there is no showing that the plaintiff was financially able to do so. But if it were and plaintiff is compelled to go ahead and drill the wells without the consent of the Michigan group, it cannot charge them for their share of the cost under the provision of the contract that no item of expenditure in excess of $1,000 shall be incurred without the consent and approval of the other parties. If the wells *Page 326
came in dry the loss would be entirely upon the plaintiff. If they happened to be gushers the Michigan group would profit without having taken a dime's worth of chance. This is hardly an adequate remedy and it is not an approach which appeals to a court of equity.
It is suggested by the Michigan group that the operating contract does not require them to help pay for drilling a test well on the Hunter lease or an offset well on the Stewart lease. This is probably true. They further contend that plaintiff, by receivership, seeks to require them to pay part of the cost of the new wells and that thereby their obligations under the operating contract will be enlarged. This latter contention is not sound. This action is not to require the Michigan group to pay their share of the cost of the new wells, or to impose on them any obligation not required by the operating contract. It is to collect what they admittedly owe for past operations of the four leases under the operating contract and, by receivership, to preserve property upon which, by the operating contract, they had given plaintiff a lien, upon the faith of which plaintiff had advanced for the defendants the large sum of money sought to be collected. Administration of the receivership will be under order of the court, and, when and if, in such administration, action be taken in contravention of the rights of the Michigan group, such rights may then be asserted and protected.
We think that under the facts in this case there was no abuse of discretion in the appointment of a receiver without notice.
The judgment is affirmed.
NOTE. — Reported in 86 N.E.2d 78. *Page 327 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428971/ | This is an appeal from a judgment setting aside a deed executed by Amos W. Beach on June *Page 234
24, 1944, to the appellant, Audrey L. Stayner, for 120 acres of land in Steuben County and quieting the title of the appellees to said real estate. The cause was tried by the court without a jury, and a general finding was made for all appellees upon the issues joined on various paragraphs of complaint which sought to quiet title to the real estate, and to set aside the deed thereto by reason of fraud and undue influence practiced upon the grantor. A commissioner was appointed to execute a deed to the appellees in conformity with the judgment.
The motion for a new trial, the overruling of which is the error assigned on appeal, challenges the sufficiency of evidence to sustain the finding, and the rulings of the trial court in permitting two physicians who attended the grantor to testify as to his physical and mental condition as observed by them during the time they were his physicians, after the appellees, who were the grantor's only surviving heirs, and the administrator of the estate of the grantor had waived objections as to the competency of the physicians.
On appeal, when the sufficiency of the evidence is questioned, this court will disregard conflicting evidence, and assume that the evidence to support the finding is true, "and will give 1. to it every favorable inference which may be reasonably and fairly drawn from it. Mazelin v. Rouyer (1893),8 Ind. App. 27, 35 N.E. 303; Chicago, etc. R. Co. v. Vandenburg
(1905), 164 Ind. 470, 73 N.E. 990." Klingaman v. Burch
(1940), 216 Ind. 695, 699, 25 N.E.2d 996. The trial court was justified in finding that the grantor decedent, Amos W. Beach, at the time he executed the deed in question on June 24, 1944, was 86 years of age, afflicted with senile dementia, arthritis, heart disease, arteriolosclerosis, and cancer. He had lost control of his bodily functions, and was disoriented and mentally *Page 235
confused. He was bedfast at the time the deed was executed in the Cameron Hospital, and his condition did not improve before the time of his death, August 9, 1944. He was a person of unsound mind when the deed was executed.
The deed purported to convey to the appellant, Audrey L. Stayner, a stranger to his blood and estate, the remainder in fee, subject to the life estate of the grantor, and all the grantor's interest in the crops and "his interest in all personal property now located on said farm, including household furniture and goods located in said dwelling house and other goods, including farm tools and other small articles on said farm." The deed provided the grantee should keep and furnish a home for the grantor, pay the cost of his last illness, $500 for funeral expenses and erect a monument to cost not less than $350, and to have inscribed thereon the name of the grantor and his former wife, with dates of the birth and death of each. The market value of the farm was $7,000, on which there was a mortgage lien in the sum of $675. The grantee cared for the grantor for a period of thirty-four days after he left the Cameron Hospital on July 6th. The consideration for the conveyance was so grossly inadequate that it shocks the conscience of the court. Such transactions have been condemned by this court.
In Ashmead v. Reynolds (1893), 134 Ind. 139, 142, 2. 143, 33 N.E. 763, this court stated the basis for granting relief in the following language:
"In Wray v. Wray, 32 Ind. 126, the following is quoted and approved: `Where a party is weak and enfeebled in mind by reason of age, or from any other cause, and another takes advantage of such weakness, and by any artifice, or cunning, or undue influence he may possess, or by any improper practices, induces such person to execute a contract *Page 236
which in the free use and exercise of his deliberate judgment he would not have entered into, such a contract would be set aside for fraud.'
". . .
"In Allore v. Jewell, 94 U.S. 506, a case similar to this, Mr. Justice Field, speaking for the court, said: `It is not necessary, in order to secure the aid of equity, to prove that the deceased was at the time insane, or in such a state of mental imbecility as to render her entirely incapable of executing a valid deed. It is sufficient to show that, from her sickness and infirmities, she was at the time in a condition of great mental weakness, and that there was gross inadequacy of consideration for the conveyance. From these circumstances, imposition or undue influence will be inferred.'"
The trial court properly found the deed was procured by undue influence and fraud. The finding is sustained by the evidence and is not contrary to law.
There was no error in permitting the two physicians to testify as to the physical and mental condition of the grantor. Under the common law communications between a physician and 3, 4. patient were not privileged. Myers v. State (1922), 192 Ind. 592, 137 N.E. 547, 24 A.L.R. 1196, and cases therein cited; 8 Wigmore on Evidence, § 2380 (3rd Ed.). The material part of our statute on competency of physicians now provides:
"The following persons shall not be competent witnesses:
". . .
"Fourth. Physicians, as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases." Section 2-1714, Burns' 1946 Replacement (Acts 1881 (Spec. Sess.), ch. 38, § 275, p. 240.)1 *Page 237
It has been consistently construed not to create an absolute incompetency, but a privilege for the benefit of the patient, which he may waive. Penn Mutual Life Ins. Co. v. Wiler
(1885), 100 Ind. 92, 100, 101, 50 Am. Rep. 769; Morris v.Morris (1889), 119 Ind. 341, 344, 21 N.E. 918; Lane v.Boicourt (1891), 128 Ind. 420, 423, 27 N.E. 1111, 25 Am. St. 442; P.C.C. St. L. Ry. Co. v. O'Conner (1908),171 Ind. 686, 85 N.E. 969; Schlarb v. Henderson (1936), 211 Ind. 1,4 N.E.2d 205.
The purpose of the statute creating the privilege has 5-7. been well stated by this court in Penn Mutual Life Ins. Co. v. Wiler (1885), supra:
"The purpose of the statute is not the suppression of truth needed for reaching correct results in litigation, though this may sometimes incidentally occur (as it may also in other instances of exclusion on the ground of wise policy), but the purpose is the promotion and protection of confidence of a certain kind, the inviolability of which is deemed of more importance than the results sought through compulsory disclosure in a court of justice. Notwithstanding the absolutely prohibitory form of our present statute, we think it confers a privilege which the patient, for whose benefit the provision is made, may claim or waive. It gives no right to the physician to refuse to testify, and creates no absolute incompetency. To hold otherwise would result in many cases in obstructing justice without subserving the purpose of the statute. . . ."
The effect of the statute in prohibiting the ascertainment of truth in many controversies has often subjected its policy to strong criticism. 8 Wigmore on Evidence, § 2380A (3rd Ed.). Because of this result, and under the rule that statutes in derogation of common law will *Page 238
be strictly construed, its prohibitions are not to be extended by implication. Myers v. State (1922), 192 Ind. 592, 137 N.E. 547, 24 A.L.R. 1196; General Acc. Fire Life Assur. Co. v.Tibbs (1936), 102 Ind. App. 262, 2 N.E.2d 229.
Upon principle, if the patient during his lifetime could waive the privilege, there is no reason why his heirs or personal 8. representative should not waive the privilege after his death.
The following language of Professor Wigmore in his treatise onEvidence (3rd Ed.), Vol. 8, § 2391, p. 840, is particularly applicable to the facts in this appeal:
"The personal representative of the deceased may waive the privilege. One who is entrusted with the management of the deceased's property may surely be trusted to protect the memory and reputation of the deceased, in so far as it is liable to injury by the disclosure of his physical condition when alive. It is incongruous to hold that the person who manages the litigation of the deceased's property-interest has no power to waive rules of evidence for the purpose of advancing those interests. The power of an heir may also be conceded, if we remember that the heir, first, is at least equally interested in preserving the ancestor's reputation, and, secondly, has an equal moral claim to protect the deceased's property-rights from unwarranted diminution. The futility, under the circumstances, of predicating any privilege is the more apparent when (as in the usual case) the issue turns upon the fact of the testator's sanity, which is so bruited publicly in the litigation that the pretense of preserving secrecy is a vain one. . . ." For an exhaustive discussion of the Indiana authorities, see Vol. 23 Indiana Law Journal (April, 1948), p. 295 et seq. *Page 239
The case of Studabaker v. Faylor (1912), 52 Ind. App. 171, 98 N.E. 318, involved facts very similar to the present appeal. All the heirs of Catherine Faylor sued to set aside a deed on the grounds that the grantor was insane and the conveyance was obtained through fraud. The administrator, though not a party to the action, expressly waived the privilege, and the Appellate Court, in holding it was proper for the physician to testify, said:
"Furthermore, under authorities above cited, the right to waive the privilege of confidential communications, after the death of Mrs. Faylor, in litigation affecting her estate, was lodged in those who represented her and stood in her place. Even if appellant could be considered her representative, he has, as we have seen, waived his right to object. It is generally conceded that heirs may waive this privilege. 4 Wigmore, Evidence § 2391. However, the heirs or devisees seeking to overthrow a will may not waive it as against other heirs or devisees. Towles
v. McCurdy, supra [163 Ind. 12, 71 N.E. 129]. In the case at bar all the heirs were plaintiffs, and they not only called Dr. Cook to testify, but the record in the present appeal shows that all of them expressly waived the privilege. It is unquestioned that the administrator has the power to waive the privilege in order to conserve the interests of the estate. Scott v. Smith (1908), 171 Ind. 453, 85 N.E. 774. The administrator of decedent's estate, though not a party to the suit, was present at the trial, testified, and likewise expressly waived the privilege. All the persons in whom there could be a right to insist on the privilege have either expressly waived the privilege, or have impliedly waived it by standing by and allowing the testimony to be given."
In actions involving the validity of a will, the personal representative may waive the privilege in support of his trust.Morris v. Morris (1889), 119 Ind. 341, 344, 21 N.E. 918,supra; Sager v. Moltz (1923), *Page 240 80 Ind. App. 122, 139 N.E. 687. The case of Heaston v. Krieg (1906),167 Ind. 101, 77 N.E. 805, 119 Am. St. 475, where the controversy involved the validity of a subsequent unprobated will, and the executor of the first will was not permitted to waive the competency of the physicians in an attack upon the last will, must be regarded as an anomalous exception to the general rule, and the authority thereof strictly limited to the peculiar facts of that case. In Towles v. McCurdy (1904), 163 Ind. 12, 71 N.E. 129, the controversy was between the children and heirs of the testator, which is not the case in the present appeal.
In this appeal, both the personal representative of the deceased and all of his heirs at law waived the privilege. Although the litigation involved the real estate, the 9. administrator had an interest in recovering it back for the heirs, since in the event the personal property becomes insufficient to pay debts and claims of the estate, the real estate would be subject to being sold to pay debts and claims. The same instrument which conveyed the real estate also transferred title to personal property. The children of the intestate would be presumed to have a greater interest in protecting the memory of their father than any strangers in blood, who, in this case, were guilty of fraud upon the intestate. To permit strangers to the estate to close the door to the ascertainment of the truth would encourage the perpetration of the grossest kind of fraud upon aged and infirm persons. It cannot be said that grantees, who are strangers to his estate, represent the decedent or his interests. The evidence was properly admitted.
Judgment affirmed.
NOTE. — Reported in 85 N.E.2d 496.
1 The earlier statute (Ch. 27, Acts 1861, p. 51) provided, ". . . physicians as to any matters confided to them in the course of the duties of their profession . . . shall not, in either case, be included in the second section of this act, or be competent witnesses, unless with the consent of the party making such confidential communications . . ." *Page 241 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3428973/ | Appellee brought this action in the Superior Court of Vigo County to recover damages for injuries alleged to have resulted from the negligent operation of *Page 159
an automobile by appellant. The complaint was in one paragraph and appellant, after his motion to strike out parts of the complaint and his motion to make the complaint more specific was overruled, filed his demurrer thereto which was overruled by the court. An answer in general denial closed the issues. The cause was tried to a jury and a verdict in favor of appellee was returned. Judgment was entered on the verdict. Appellant filed a motion for a new trial, assigning eighty-two reasons therein, which motion was overruled.
The errors assigned for reversal and not waived are: (1) The overruling of appellant's motion for judgment on interrogatories to the jury notwithstanding the general verdict; and (2) in overruling his motion for a new trial.
Appellant, in his brief, does not question the sufficiency of appellee's complaint, so we will very briefly state the substance of the complaint, as follows: That on the seventh day of July, about 6:30 p.m., appellee was walking in a northerly direction along a foot path at the west side of state road No. 63, a short distance south of the City of Terre Haute; that state road No. 63 is a paved highway and about eighteen feet wide; that appellant was at the same time driving his automobile north over said road and attempted to pass a truck going in the same direction when the truck was opposite appellee; that appellant drove his car to the west side of the road and ran his automobile over and against appellee; that the left front fender of appellant's automobile struck appellee causing injuries described in the complaint. The negligence of appellant is described as driving in a manner that was not safe and prudent and in such manner as to endanger the life and limb and the property of other persons lawfully using the highway; excessive speed; failure to slow down as he approached appellee; failure to have his automobile under *Page 160
control so as to avoid striking appellee while walking along and upon the west side of the highway; in attempting to pass the truck that was traveling in the same direction as appellee and appellant at a time when the truck was opposite appellee; failure to apply the brakes in time to avoid striking appellee; failure to keep a proper lookout for pedestrians upon and along the highway. It is alleged that state road No. 63 is a heavily traveled road, both by pedestrians and by automobiles.
Appellant contends that as the answers by the jury to the interrogatories show that at the time appellee was struck by appellant's automobile, appellee was walking on the foot 1. path along the west side of the road, and they further show that appellant's automobile did not get off the paved part of the highway, that the answers are in irreconcilable conflict with the general verdict and therefore the court should have entered judgment for appellant. Considering only the pleadings, the answers, and the general verdict, as stated by appellant, we find no trouble in sustaining the ruling of the trial court. It does not necessarily follow that because appellee was not, at the time of the accident, on the paved portion of the highway, and that appellant's automobile at that time was not off the paved portion, that appellant's left front fender could not and did not strike appellee. The answers and the general verdict found that appellant's automobile did strike appellee, and this fact is fully supported by the evidence. That appellee walking on the foot path near the pavement could be struck by the fender of appellant's car even though the left wheel of appellant's automobile did not leave the pavement is quite possible and easily understood. So the answers are not in irreconcilable conflict with the general verdict, and the trial court properly overruled appellant's motion. *Page 161
Appellant under his first proposition contends that the verdict is not sustained by sufficient evidence. Under his points he states certain abstract propositions of law, but makes no 2. attempt to make any application to the facts in this case. We are unable to determine in what way they affect the case under consideration. Under such conditions no question is presented for our determination.
Appellant contend that the court erred in giving to the jury instruction No. 1, tendered by plaintiff. In this 3. instruction the court quoted a part of a statute relating to the law of the road, as follows:
"In approaching a pedestrian who is walking or standing upon the traveled part of any highway, and not upon a sidewalk, and upon approaching an intersecting highway or curve or a corner on any highway where the operator's view is obstructed, every person driving or operating a motor vehicle or motor bicycle shall slow down and give a timely signal with the bell, horn or other device for signaling."
Appellant objects to the latter part of the above quotation that requires the driver to slow down upon approaching an intersecting highway, or curve or corner where the operator's view is obstructed, for the reason that that part of the instruction has no application to the facts in this case. That at the time of the accident appellant was not approaching the intersection of a highway and that the road was straight and the operator's view was unobstructed. It seems that appellant answers his own objection, that the latter part of the above quoted section of the statute could not have influenced the jury or prejudiced appellant's rights in the least. The jury was not misled by this instruction. The first part of the statute does have to do with the issues, and the fact that the court did not delete all of the statute that did not apply to the case, would not necessarily *Page 162
work a reversal of the case. The same objection in principal is made to instructions Nos. 2 and 3 tendered by appellee. For the same reasons we hold that the giving of these instructions do not require a reversal of this case.
Complaint is made of instruction No. 7, given by the court at the request of appellee. By this instruction the court told the jury that it is the duty of the driver of an automobile 4. upon a public highway to anticipate that pedestrians will be upon and along such highway and to look ahead to see and know that such pedestrians are not in a position to be struck by his automobile and to operate his automobile as required by statute and at such a rate of speed that a person lawfully using the highway shall not be injured by reason of the operation of his automobile or passing such pedestrian and it would be negligence to so run and operate his automobile that the same was not under control and that injury to such pedestrian cannot be avoided, provided the pedestrian was free from contributory negligence.
In this case the evidence was uncontradicted that appellant saw appellee walking along the highway when he (appellant) was several hundred feet away. Appellant himself testified that he saw appellee walking along the west side of the highway several hundred feet ahead. While the above instruction is not an accurate statement of the law as a general proposition, the objectionable part thereof is rendered harmless by the above facts. See Rump v. Woods (1912), 50 Ind. App. 347, 98 N.E. 369.
Instruction No. 8 is a similar instruction, and like objections are urged against it. The instruction defines the duty of a pedestrian using the highway to protect himself from injury by those driving automobiles, and the duty of motorists to protect pedestrians. This question was discussed in the case of Rump v.Wood, supra. *Page 163
The facts and the law as stated in instruction No. 8 comes clearly within the statements made in the above cited case. There was no error in giving this instruction.
Appellant's tendered instruction No. 20 was refused by the court. Of this ruling he makes complaint. There was no error in refusing this instruction. This instruction is a correct 5. statement of the law on the question of preponderance of the evidence. Instruction No. 17, given by the court, fully and fairly stated the law on this question and appellant had the benefit of the same rule of law as was contained in his instruction No. 20. Under such conditions it was not error to refuse to give appellant's instruction.
The court refused to give appellant's tendered instruction No. 25. By this instruction appellant requested the court to instruct the jury that the allegation in plaintiff's complaint, to 6. wit, that plaintiff was at the time of the accident walking on the foot path at the west side of the highway, was a material allegation and must be proven by the evidence before plaintiff would be entitled to recover. The court gave appellant's tendered instructions Nos. 1 and 3. By instruction No. 1, the complaint was embodied in this instruction with the exception of the caption. By instruction No. 3 the court told the jury that the burden of proving all the material allegations of the complaint was upon the plaintiff. We think this was a sufficient charge.
We have examined appellant's tendered instructions Nos. 47 and 64. No. 47 was upon the question of speed. We find that the court fully covered this subject by the instructions which he 5. gave. Appellant's instruction No. 64 relates to punitive damages. The court fully covered the question of damages and very clearly outlined the measure of damages to be considered in the event they concluded that plaintiff was entitled to recover. The court gave twenty instructions *Page 164
tendered by appellee and fifty-five instructions tendered by appellant, making a total of seventy-five instructions. If there was any criticism on instructions, the most serious one would be that the jury was much over-instructed rather than under-instructed.
The appellant has also assigned reasons in his motion for a new trial based upon alleged misconduct of the attorney for appellee in questioning certain jurors who owned automobiles if they had any financial interest in a certain insurance company, and certain remarks by appellee's counsel in his argument to the jury. The questions presented have many times been presented to this court and decided adversely to appellant's contention and in our judgment there is no merit in appellant's position. SeeInland Steel Co. v. Gillespie (1914), 181 Ind. 633, 104 N.E. 76, where this question is discussed and the cases reviewed.
We have discussed all the questions presented by appellant's brief and we find no reversible error.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429080/ | This appeal presents only the question of jurisdiction of the district court over the subject matter of the litigation as to the appellant, Policyholders Mutual Casualty Company. The question is presented on an appeal from a ruling on a special appearance. The facts appear solely in the pleadings and supporting affidavits.
On April 20, 1938, the plaintiff filed an unverified petition at law naming two defendants, the Great Lakes Forwarding Corporation and the Policyholders Mutual Casualty Company. The action was for damages for alleged wrongful death of the plaintiff's decedent. The petition is in two counts. Count No. 1 asserts the following facts: Plaintiff is the administrator of the estate of Ethel Kann, deceased. The Great Lakes Forwarding Corporation is engaged in the transportation of freight, particularly what is known as automobile carrier units, with its principal office in Chicago, Illinois; the state of its incorporation is unknown; it is operating under and by virtue of a permit of the railroad commission within the state of Iowa; *Page 1014
service cannot be obtained on it within the state of Iowa. The Policyholders Mutual Casualty Company is an insurance company with its principal place of business at Des Moines, Iowa; it issued a policy to the Great Lakes Forwarding Corporation, a copy of which polity is attached to the petition; the policy purports to afford the coverage required under the provisions of chapter 252-A1 or 252-C1 of the Code of Iowa, 1935, and is limited to the state of Iowa. On October 21, 1937, there was a collision between a motor carrier of the defendant Great Lakes Forwarding Corporation and a truck in which the decedent was riding; decedent was injured and died from such injuries; the injuries were caused by the negligence of said defendants; the decedent was free from contributory negligence. In count No. 1, negligence on the part of the Great Lakes Forwarding Corporation was asserted under the doctrine res ipsa loquitur. Count No. 2 of the petition incorporated count No. 1 and undertook to assert in addition thereto specific allegations of negligence. Recovery was demanded in the sum of $7,500.
On April 21, 1938, an original notice was filed showing service of the same on the Policyholders Mutual Casualty Company by serving its assistant secretary at Des Moines, Iowa, on April 13, 1938. Service upon the Great Lakes Forwarding Corporation was shown to have been made by filing a copy of the notice with the commissioner of the motor vehicle department on April 11, 1938, which filing was acknowledged by the commissioner. There was also filed a copy of a letter to the Great Lakes Forwarding Company dated April 12, 1938, and a return receipt acknowledging receipt of the letter on April 17, 1938, but there was no affidavit as to the mailing of the letter.
On May 2, 1938, the Policyholders Mutual Casualty Company filed a special appearance asserting that, under its policy, suit could not be instituted against it until judgment was secured against its assured, and the petition, showing on its face that no such judgment had been secured, failed to state *Page 1015
a cause of action against such defendant so that the court was without jurisdiction.
On June 3, 1938, the Great Lakes Forwarding Corporation filed a petition with the necessary notice and bond for the removal of the case to the federal court. On June 22, 1938, the plaintiff filed a resistance and objections to the petition for removal. On June 27, 1938, the court entered an order denying removal of the cause. On the next day, the two defendants filed separate special appearances, each asserting that the court was without jurisdiction because of the proceedings to remove the cause to the federal court.
Notwithstanding the order denying removal of the cause, the necessary transcript was filed in the federal court. On August 9, 1938, plaintiff's attorney executed an affidavit stating the facts in reference to the mailing of the original notice to the Great Lakes Forwarding Corporation, and a certificate was filed in the federal court showing the filing of such affidavit.
The Great Lakes Forwarding Corporation filed a special appearance in the federal court challenging the sufficiency of the return of service of the original notice, and the plaintiff filed a motion to remand. On September 22, 1938, the federal court entered an order overruling the special appearance, based on the alleged defective service, and also overruling the motion to remand, holding that there was a separable controversy asserted in the petition as against the Great Lakes Forwarding Corporation, and that the court had jurisdiction thereof.
On October 17, 1938, the action was dismissed as to the Great Lakes Forwarding Corporation, both in the state court and the federal court, and the federal court on its own motion remanded the cause to the state court because there was no diversity of citizenship then existing.
On February 14, 1939, the Policyholders Mutual Casualty Company, the sole remaining defendant, filed an amendment to its special appearance, asserting various matters. One ground was that the statement in the petition that plaintiff is unable to obtain service upon the Great Lakes Forwarding Corporation within the state of Iowa is a mere conclusion and the fact is *Page 1016
that, when the action was commenced, service was made upon the Great Lakes Forwarding Corporation by following the procedure for service upon a nonresident of Iowa; also the Great Lakes Forwarding Corporation in fact did have and has since continued to have a resident agent for service of process in Iowa in all matters growing out of the operation by it of trucks in Iowa, service of original notice in any action can be made upon said corporation in Iowa, and, accordingly, the defendant cannot be subjected to jurisdiction by the manner and means and at the time attempted by plaintiff herein.
The amendment to special appearance was supported by the affidavit of R.P. Roedell, asserting that, on and subsequent to October 21, 1937, the Great Lakes Forwarding Corporation had a resident agent in Iowa for the service of process in all matters growing out of the operation by it of trucks in Iowa, and service of process could have been obtained by plaintiff on April 13, 1938, and at any time thereafter on the Great Lakes Forwarding Corporation in Iowa by service upon such resident agent.
Plaintiff filed no resistance to the special appearance. On March 6, 1939, the court overruled the special appearance. The defendant Policyholders Mutual Casualty Company perfected its appeal from such ruling and secured a stay of proceedings.
[1] As heretofore stated, there is no question but that the court had jurisdiction of the appellant herein. However, for the court to have jurisdiction to decide a controversy, it is necessary that it not only have jurisdiction of the parties to the controversy, but also that it have jurisdiction of the subject matter of the controversy. Section 11088 of the Code, 1935, provides in broad language that a defendant may appear specially for the purpose "of attacking the jurisdiction of the court." The statute reads identically the same as it did when it appeared as section 3541 of the Supplement of 1913. In the case of Scott v. Scott, 174 Iowa 740, 747, 156 N.W. 834, 837, we state:
"Sec. 3541, Code Supp., 1913, provides that: *Page 1017
"`Any defendant may appear specially for the sole purpose of attacking the jurisdiction of the court. Such special appearance shall be announced at the time it is made and shall limit the party to jurisdictional matters only and shall give him no right to plead to the merits of the case.'
"This conferred the right on the defendant to appear and specifically object to the jurisdiction of the court, either over his person or the subject-matter of the suit."
The pronouncement above quoted was expressly followed in the case of Newcomer v. Newcomer, 199 Iowa 290, 292, 201 N.W. 579, 580, wherein we state:
"Under Section 3541 of the Supplement to the Code, 1913, the defendant is entitled to appear specially and object to the jurisdiction of the court. We have held, contrary to the current rule in most states, that this statute is broad enough to warrant the defendant in objecting to the jurisdiction of the subject-matter, as well as that of the persons. Scott v. Scott,174 Iowa 740, at 747."
Pursuant to the foregoing pronouncements, under the broad language of section 11088 of the Code, 1935, the defendant had the right to challenge the jurisdiction of the court over the subject matter of this action by a special appearance.
[2] The policy of insurance here sued upon was issued pursuant to section 5105-a26 of the Code, 1935 (section 5100.26 of the Code, 1939). It is a statutory policy and its obligations are to be measured and defined by the statute requiring it. Curtis v. Michaelson, 206 Iowa 111, 118, 219 N.W. 49. In the case last cited, it was held that the statute conferred a right of action against the insurance company independent from the cause of action against the carrier insured by it. Thereafter, the statute was amended so as to permit a right of action against the insurance company only when "service cannot be obtained on the motor carrier within this state." Chapter 130, Acts of the Forty-third General Assembly. This change in the statute *Page 1018
was recognized by us in the case of Ellis v. Bruce, 215 Iowa 308, 316, 245 N.W. 320, 324, wherein we state:
"The plaintiff cites the case of Curtis v. Michaelson, 206 Iowa 111
[219 N.W. 49], wherein the plaintiff brought his action directly against the insurance company and prevailed therein. That case involved no joinder. The tort-feasor had absconded and no service could be had upon him. The suit was prosecuted against the insurance company alone. Construing Section 5105-a26 as it appeared in the Code of 1927, we held that it permitted the action. Since that decision that section of the statute was amended by adding a proviso thereto. This proviso put a limitation upon the right of the injured party to sue directly the insurance company, and such proviso appears in the Code of 1931. This is the proviso which we have quoted above. Its effect was to limit the right of the injured party to sue the insurance company to a case where personal service could not be had upon the tort-feasor within the state. Such is the present state of the statute."
The statute here before us reads the same and the construction contained in the quotation last above set forth is applicable. Plaintiff had no right to sue the defendant insurance company if service could be obtained on the defendant motor carrier within this state. While plaintiff's unverified petition asserts that such service could not be obtained, the affidavit of defendant, filed in support of its special appearance, asserts that on and subsequent to October 21, 1937, the Great Lakes Forwarding Corporation had a resident agent in Iowa for service of process in all matters growing out of the operation of its trucks in Iowa. This affidavit was in no manner challenged by plaintiff.
In the case of Jermaine v. Graf, 225 Iowa 1063, 1066, 283 N.W. 428, 430, we state:
"Appellant's special appearance contained the allegations above quoted, was verified under oath, and asserted that appellant was not a person within the meaning of section 514. No *Page 1019
counter showing was made. No evidence or proof was offered of any facts showing that the non-resident appellant was one of the persons deemed to have agreed that a substituted service might be made upon it of the original notice of this suit. The special appearance was a direct attack. The burden rested on plaintiff to sustain by adequate showing the questioned jurisdiction. This he failed to do. Pendy v. Cole, 211 Iowa 199, 233 N.W. 47."
The position taken by us in the quotation last above set forth is controlling here. Pursuant thereto, the order appealed from must be and it is reversed. The cause is remanded with instructions to sustain the special appearance and dismiss the action. — Reversed and remanded with instructions.
HAMILTON, C.J., and SAGER, BLISS, STIGER, and HALE, JJ., concur.
MITCHELL and OLIVER, JJ., dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429082/ | On the 17th day of March, 1937, an information was filed by the County Attorney of Black Hawk County, accusing Thomas Hall of the crime of lascivious acts with a child under the age of sixteen years, and also of being an habitual criminal, setting out in said information the commission of two crimes, one on the 16th day of September, 1918, and the other on the 11th day of February, 1924, of which he was convicted.
Defendant pleaded not guilty. He was represented by counsel. The case was submitted to a jury, which returned a verdict of guilty. Defendant has appealed.
The evidence in this case consists of the testimony of a boy seven years of age, in 2-A grade of the public schools of Waterloo, who attended church and Sunday school. He testified *Page 1318
that on the 20th of February, at about the hour of five o'clock, he met Tom Hall at what was known as the Crawford Grocery Store, a neighborhood store, and that the defendant asked him to go to his home, which was next door, where, at the request of Tom Hall, he stayed all night. No good could possibly be accomplished by setting out in detail the testimony. Suffice it to say that this young child testified to acts on the part of the appellant, which, if true, were sufficient to convict him of the crime charged. In addition to this, there is a confession made by appellant which was admitted in evidence, and the testimony of the police officer who heard the confession.
The defense of appellant was that he was intoxicated; that he did not remember the boy coming to his room until the next morning, when he awakened and found the boy in his bed.
Courts are often criticised for delays in criminal cases. This case has been delayed more than eighteen months, but this was due to no fault whatever on the part of either the prosecuting attorney of Black Hawk County or the Attorney General's office. It was delayed each and every time upon a written application and plea on the part of the appellant and his counsel. The case is now submitted to us upon a so-called abstract, and upon a typewritten brief. There is a motion on the part of the State to dismiss the appeal. This being a criminal case, and it appearing that the appellant is without means, this court has carefully gone thru the entire record.
[1] The first error complained of is that the boy was not old enough to testify; that he did not know or understand the meaning of an oath. With this we cannot agree. Before he was permitted to testify the court itself examined the boy, whose answers showed that he knew what an oath was and understood that he was to tell the truth.
[2] The next objection is that the court erred in the admission of the confession; that at the time it was made appellant was intoxicated. From Hall's own testimony the jury could find that while he had been drinking in the afternoon before he had gone to his room, some time around five o'clock, between that time and the time that he was arrested some fifteen or eighteen hours later and taken to the police station, he had had no liquor. The question of whether appellant was intoxicated was for the jury, and it was so submitted. Appellant does not say that he did not commit the offense; he says that he has *Page 1319
no knowledge of it; that he was intoxicated.
Clearly, from the record before us, the question of the guilt or innocence of Tom Hall was for the jury. It was submitted on proper instructions. The jury found him guilty. The motion to dismiss is overruled.
It necessarily follows that the case must be, and it is hereby, affirmed. — Affirmed.
All Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429091/ | The plaintiff, Richard Lagerquist, while a minor, subscribed, by a written contract, for 40 shares of the capital stock of the appellant corporation, the Bankers Bond *Page 432
1. INFANTS: Mortgage Guaranty Company, at $125 per share. contracts: He executed two notes therefor, payable to the dis-affir- appellant, one for $3,750 and the other for mance of $1,250. This controversy has to do only with the promissory latter note. note: release of surety.
It appears from the record that the stock salesmen who made the sale of the stock, knowing that Lagerquist was a minor, refused to accept his subscription unless he obtained the signature of a responsible adult upon the note for $1,250. Lagerquist thereupon procured the appellee Mrs. Lundvick, his aunt, to sign the note, and delivered it to the salesmen. One of the salesmen indorsed it in the name of the appellant; the defendant Weitzel also indorsed it; and it was then sold to the defendant the Gowrie Savings Bank for its face. The bank issued a cashier's check or draft for the amount, payable to appellant, which was delivered at appellant's office. The draft was indorsed by appellant's treasurer, and paid in due course. No stock was ever issued to Lagerquist, and before he arrived at his majority he disaffirmed the contract, and began this action by a next friend against appellant and the bank, asking for the cancellation of the subscription contract and the note for $1,250.
The bank, in addition to its answer, filed a petition of intervention, asking that Mrs. Lundvick and Weitzel be made parties. The bank claimed to be a holder of the note in due course, and asked judgment against all parties, makers or indorsers of the note.
The decree below granted the relief asked in the petition of Lagerquist, and found that the bank was a holder in due course, and that the other parties to the note, aside from Lagerquist, were liable to the bank in the following order: (1) the appellant upon its indorsement, (2) Mrs. Lundvick as a surety, and (3) Weitzel upon his indorsement. The Bankers Bond Mortgage Guaranty Company alone appeals. Its only complaint is as to the order of liability fixed in the decree, its claim being that Mrs. Lundvick was primarily liable as a comaker or surety, and that its liability as indorser is secondary.
There can be no question, under the record, that Mrs. Lundvick was, as between her and Lagerquist, a surety only, and that appellant was chargeable with notice of that fact. The case *Page 433
turns upon whether, under the circumstances shown by the record, Mrs. Lundvick was released from liability to the appellant by the disaffirmance of the note and contract of subscription by Lagerquist, the principal on the note. It is not questioned that the general rule is that the release or discharge of the principal releases the surety. Appellant relies, however, on an exception to this general rule, stated by Judge Dillon in Jonesv. Crosthwaite, 17 Iowa 393, to exist where a person sui juris
guarantees the obligation of, or becomes surety for, a minor, or other person incapable of contracting. The existence of such an exception has been recognized by this court in subsequent decisions. Allen v. Berryhill, 27 Iowa 534; Keokuk County St.Bank v. Hall, 106 Iowa 540; Seeley v. Seeley-Howe-LeVan Co.,128 Iowa 294. The doctrine has abundant support in authority generally. Winn v. Sanford, 145 Mass. 302 (14 N.E. 119); Kyger v.Sipe, 89 Va. 507 (16 S.E. 627); Wiggins' Appeal, 100 Pa. St. 155;Gardner v. Barnett, 36 Ark. 476; Weed Sew. Mach. Co. v. Maxwell,
63 Mo. 486; Weare v. Sawyer, 44 N.H. 198; International Text-BookCo. v. Mabbott, 159 Wis. 423 (150 N.W. 429); Lee v. Yandell, 69 Tex. 34
(6 S.W. 665); Gates v. Tebbetts, 83 Neb. 573
(119 N.W. 1120, 20 L.R.A. [N.S.] 1000, and note). The fundamental reason for this exception to the general rule is that the defense of infancy, or other incapacity to contract, is one personal to the principal, and does not go to the validity of the contract itself. But it is recognized that this exception finds no application where the principal, being under the disability of minority, disaffirms the contract and restores to the other party all that he has received thereunder. In such case the defense ceases to be merely personal to the minor; for, by the disaffirmance of the contract and the placing of the other partyin statu quo by restoring what he has received, the consideration for the promise has failed, and the contract, so far as its enforcibility at the suit of the other party to it is concerned, is at an end.
In such a case, in Keokuk County St. Bank v. Hall, supra, we quoted from Baker v. Kennett, 54 Mo. 82, as follows:
"It would be a strange doctrine which would give him [the creditor] back his land and permit him to recover from the sureties the purchase money also." *Page 434
We said:
"If Hill [a minor] did in fact disaffirm the contract, and return the property received thereunder to Skinner Bros. [the payee], it would be a complete defense for the surety."
Again, in Seeley v. Seeley-Howe-LeVan Co., supra, we said:
"It is the settled law of this state that a mere disaffirmance of his contract by a minor does not release the obligation of his surety, * * * but such effect does follow a disaffirmance accompanied by a return or surrender of the consideration received for the contract."
This doctrine is recognized in decisions in other jurisdictions. Baker v. Kennett, supra; Kyger v. Sipe, supra;Evants v. Taylor, 18 N.M. 371 (137 P. 583, 50 L.R.A. [N.S.] 1113); Nations v. Gregg, 290 Fed. 157.
Counsel for appellant attempt to distinguish the instant case from the Hall and Seeley cases on the facts. While in the latter, it is true, fraud was shown, the decision on this point was not put upon that ground, but upon the disaffirmance by the principal, a minor, and the return of the property received. In both of these cases there was a return of the property received by the minor in connection with his disaffirmance, but this fact does not at all distinguish them in principle from the present case. Since Lagerquist had received nothing, he had nothing to return, to make his rescission complete. Appellant had parted with nothing, and on disaffirmance there was nothing to be restored to it, to put it in statu quo. If the surety cannot be held where the principal has disaffirmed and returned what he received, there can be no reason for holding the surety where the principal disaffirms and has received nothing to return.
Here, the only consideration for the note was the promise of the appellant, the payee, to issue its stock to 2. BILLS AND Lagerquist. Lagerquist had disaffirmed his NOTES: contract to purchase the stock, and appellant conside- has acquiesced in this disaffirmance. It offered ration: to return his note of $3,750, and marked his failure of subscription contract canceled. Appellant parted conside- with nothing as a consideration for the note, ration by and by the disaffirmance and its acquiescence dis- therein, there has been a complete rescission of affirmance. the contract, and appellant has been relieved of any and all obligation to ever issue *Page 435
the stock for which the note was given. There remains no consideration for the note. The defense of failure of consideration is not one that is personal to the principal, but it goes to the existence of the debt, the enforcibility of the note in the hands of the payee. All authorities agree that a defense of this character comes within the general rule, and releases both principal and surety at the suit of the payee. InEvants v. Taylor, supra, it is said:
"If the late infant, on arriving at his majority, may disaffirm the deed, and if such disaffirmance renders it void ab initio, —
propositions not questioned, — and if the deed tendered vests the payee in all that he ever parted with in consideration of the note, which it does, as far as the record in this case discloses, then the consideration of the note is wiped out or extinguished. The defense is failure of consideration, which is good as between the original parties to the note."
While the ultimate question here is as to the order of liability, as between appellant, the payee and indorser, and Mrs. Lundvick, the surety, to the bank as a holder in due course, that depends upon the existence of a present liability on the part of the surety to the payee. If the surety could not be held liable to the payee, the latter's liability on its indorsement to a holder of the note in due course, as between the payee and the surety, is the primary liability.
It is insisted that the surety signed the note knowing of the incapacity of the principal, and for the very purpose of removing the possibility that it might be invalidated by his disaffirmance. This is given by many authorities as a ground for the exception in such cases to the general rule that what releases the principal also releases the surety. But it cannot afford any basis for a recovery by the payee against the surety when the principal, by disaffirming and returning what he received, or by disaffirming where he received nothing, has put an end to the contract that furnished the only consideration for the note. Such a situation, as we have said, presents more than a defense personal to the principal.
The appellant transferred the note to the bank by indorsement, and received the proceeds in the form of a draft payable to its order. This draft it indorsed and turned over to the *Page 436
stock salesmen in payment of their commission for procuring the subscription. In so doing, it was merely discharging its own obligation to a third party. It received the full benefit of the note. To hold the surety primarily liable to the bank would not only be, in effect, to permit appellant, the payee, to recover upon a note the consideration for which has failed, but would result in allowing it to receive and retain the benefit and proceeds of the note for which it parted with nothing; while to hold it primarily liable is but to require it to return what it so received.
The decree below is right, and it is — Affirmed.
FAVILLE, C.J., and STEVENS, De GRAFF, and ALBERT, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429116/ | Plaintiff was the owner of two properties in Ottumwa, one called the "West End property," and the other the "Woodland Avenue property." The subject of this suit is the Woodland Avenue property only. The sheriff's deed attacked was executed to defendant Williamson. Defendants make no claim under the sheriff's deed, and no complaint of that portion of the decree setting it aside. That deed will, therefore, have only incidental consideration. The first tax deed involved was executed December 1, 1923, to defendant Williamson, on a certificate assigned to him by defendant L.A. Andrew. Williamson afterwards quitclaimed to Andrew, so that Williamson is out of the case. The second tax deed was executed March 9, 1926, to defendant Andrew, on a second tax sale to him. The defendants in interest are L.A. Andrew and the Citizens Savings Bank of Ottumwa, of which he is president. *Page 128
On March 24, 1917, plaintiff made to defendant bank a mortgage of both properties for $400, due March 24, 1918, with 8 per cent interest. At the date of this mortgage, Mr. Andrew held tax-sale certificate on the Woodland Avenue property, obtained at the December, 1916, tax sale. On March 24, 1917, there was also outstanding against the Woodland Avenue property a first mortgage held by Lindberg. The first mortgage was foreclosed and the property sold October 26, 1918. The sheriff's certificate thereon was outstanding September 18, 1919. Creditors' right of redemption had expired. On that date (September 18, 1919), plaintiff and wife executed a mortgage on the Woodland Avenue property to defendant bank for $1,705. Plaintiff's contention is that that mortgage was given to take up the sheriff's certificate of sale and the tax certificate held by Mr. Andrew, and that the balance of the $1,705 was to be applied on the $400 mortgage covering both properties. The defendants' contention is that the $1,705 mortgage did not include the amount of the tax certificate, but was given to take up the sheriff's certificate of sale and pay the $400 mortgage and expense of making the loan. None of the witnesses says that computations were made between the parties when the mortgage was made, amounting to $1,705 or any other sum. The plaintiff gives no explanation for the adoption of the peculiar amount, $1,705. According to his evidence, the amount to be paid on the $400 mortgage was indefinite. Hence the $1,705, on the plaintiff's theory, did not result from a computation. Mr. Andrew and the cashier testify that the $1,705 was made up of the amount due on the sheriff's certificate, $1,215.32; amount of renewal note for $455 represented by the $400 mortgage; additional interest thereon, $11.72; revenue stamps, 36 cents; recording mortgage, $1.35; notary fee, 25 cents; and abstract fee, $21. The correctness of these figures is not denied. Plaintiff testifies that he asked Mr. Andrew to make a loan so as to include the amounts of the sheriff's certificate and the tax-sale certificate; that Andrew wanted a payment on the other mortgage, "as it was too heavy a loan." He says: "Mr. Andrew was to cancel his tax certificate when I gave the mortgage for $1,705." The evidence respecting the likelihood of placing continued reliance for security on West End property is very meager. There is none as to its value or its condition as to incumbrances, except that plaintiff *Page 129
testifies that he had sold it in July, 1917, and had paid up the interest and taxes to date; that Andrew "assigned that tax certificate that was on the West End property that he was supposed to pay off to Delmar VanWinkle, and took a tax deed in the name of VanWinkle." Andrew testifies that the value of the West End property was rapidly depreciating, and that there was an outstanding tax certificate which he did not then hold. The certificate was originally issued to him. The bank considered that there was little or no equity in the West End property, and since the $1,705 mortgage was issued, has made no claim on the $400 or $455 note.
It is to be observed that plaintiff further says that:
"The $1,705 mortgage was supposed to pay off everything against the Woodland Avenue property * * * the indebtedness was all to be taken off the Woodland Avenue property."
This would require either full payment or a partial release of the $400 mortgage. Plaintiff makes no complaint that the $400 mortgage was to be, but was not, released as to the Woodland Avenue property.
Plaintiff called Mr. Andrew as a witness, who, testifying in plaintiff's behalf, says that plaintiff "came into the bank * * * That the holder of the sheriff's certificate of sale would soon get a deed; that he expected to have a deal made in a short time to sell this property, and he wanted to know if I wouldn't help him out by advancing enough money on the Woodland Avenue property to take up the Lindberg [sheriff's] certificate of sale, and include the amount due upon the mortgage against the West End property, which I had been complaining about as not being sufficient security for the other note." Andrew says that he had an agreement with plaintiff, when the $1,705 loan was made, that the $400 (or $455) note, with interest, should be paid out of the $1,705. The amount then required to pay off the tax-sale certificate on the Woodland Avenue property was $301.13.
The attorney foreclosing the Lindberg mortgage, also a witness for plaintiff, says that Lindberg and plaintiff "were in my office, talking over the matter of redemption from this sale. Mr. Proctor stated that he was to obtain a loan from the Citizens Savings Bank to take up Mr. Lindberg's certificate, less about $40 that Mr. Lindberg was to discount for costs, and the *Page 130
new mortgage to the Citizens Savings Bank was to include a second mortgage which the Citizens Savings Bank held on the Woodland Avenue property, and which would be cut off in the Lindberg foreclosure action. * * * I know that the mortgage that Mr. Proctor was to give to the Citizens Savings Bank was to include in some way the $400 mortgage which the Citizens Savings Bank held as a second mortgage against the Woodland Avenue property."
Thus plaintiff, in making his own case, left the question, to say the least, in doubt, with the burden of proof on himself.
The abstracter testifies that he returned the abstract to Mr. Andrew October 17, 1919; that "Mr. Proctor subsequently returned the abstract to me. He stated that he was attempting to procure another loan, to take up the loan made by the Citizens Savings Bank * * * Two or three years later, he again came into my office, and told me that he must have a new loan, because of a tax deed about to be issued, and he was then making another effort to get a loan, to take care of the amount due on the tax certificate."
The notice of expiration of time for redemption from the first tax sale was filed August 31, 1923. The tax deed is dated December 1, 1923. Plaintiff was then, therefore, apparently recognizing the fact that the tax sale certificate was not to be paid through the mortgage. His petition in this action was filed January 14, 1924. In that he alleged that Andrew, in furtherance of a scheme to avoid foreclosure and to defeat the right given plaintiff by statute, "purchased said property at tax sale, and was issued treasurer's certificate therefor, for the unpaid taxes thereon for the years 1916 and 1918, which said amounts, as plaintiff was advised and believed, were included in the mortgage and note executed by plaintiff * * * in October, 1919, for the sum of $1,705.00." He asks that the tax deed "be set aside, for the reason that, in the note and mortgage executed in October, 1919, by this plaintiff and his wife to the Citizens Savings Bank, was included a sufficient sum, in addition to the amount of the H.S. Lindberg judgment, to repay the defendant L.A. Andrew the sum paid out by him in taxes on said property." There is no allegation of any agreement to pay the tax-sale certificate. That allegation was first made nearly two years after the petition was filed, in an amendment filed December 14, *Page 131
1925. Plaintiff argues that the bank would not make a loan with a tax-sale certificate outstanding. The tax-sale certificate was held, however, by the president of the bank. The record is:
"It was the understanding with the bank and Williamson and with Andrew that, no matter who held the title to this property, the bank's mortgage was to be protected."
The president of the bank made the loan, advanced the bank's money upon it, and not only could not obtain a hostile title upon a tax certificate then held by him, but the record shows it was understood that the mortgage was to be protected.
It is further argued that, by taking an assignment of the sheriff's certificate of sale, and by assigning that and later the tax sale certificate to Williamson, and taking sheriff's and tax deed to him, and later another tax deed to Andrew, and the attendant circumstances, the defendants showed their purpose to deprive plaintiff of his right to a foreclosure and a year for redemption. The evidence seems to sustain this charge. Though the tax-sale certificates were held by Andrew, and not by the bank, they were apparently held, not in hostility to, but in the interest of, the bank. If the plaintiff were basing his case on the incapacity of the bank to take a valid tax title, and that, in substance, the tax deeds were held or controlled by the bank, and implied fraud had been the ground of action, a very different question would have been presented. Fair v. Brown, 40 Iowa 209;Lane v. Wright, 121 Iowa 376; Eck v. Swennumson, 73 Iowa 423;Gilman v. Heitman, 137 Iowa 336; Cowdry v. Cuthbert, 71 Iowa 733;Garrettson v. Scofield, 44 Iowa 35; Manning v. Bonard, 87 Iowa 648; Cone v. Wood, 108 Iowa 260. No such case, however, is presented in the pleadings. So far as we can discover, the defendants were not apprised of any such case in the court below, and had no day thereon there. No suggestion of such a case is made in the arguments here. The defendants' apparent efforts to bar plaintiff's rights by short cuts might have some bearing upon the credibility of the witness Andrew, had he been their witness. Mr. Andrew, however, was plaintiff's witness, and, though plaintiff is not concluded by Mr. Andrew's testimony, he is not permitted to impeach his credibility. The right of a mortgagor to foreclosure by suit in equity, his right to have the property offered at public auction to the highest bidder, and, in case of parcels and homestead, to have *Page 132
it offered in parcels, the homestead last, his right to a year in which to get a better price or to make redemption, are valuable rights, of which the mortgagor may not be deprived by such short cuts as seem to be in evidence here. But, as has been stated, the defendants have not had their day in court, either below or here, on such a case as that. The wrongfulness of defendants' conduct in such respects is not evidence of the existence of the express agreement upon which plaintiff founds his case. The alleged express agreement to pay the tax-sale certificate out of the $1,705 loan has not been proved.
This conclusion renders it unnecessary to consider other questions argued. — On plaintiff's appeal affirmed; ondefendants' appeal reversed.
EVANS, C.J., and De GRAFF, ALBERT, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429118/ | The accident happened about midnight on July 31, 1932, on the Lincoln Highway, which is known as Highway No. 30. Just east of the scene of the accident the Lincoln Highway runs east and west. There is a pavement connecting with the Lincoln Highway at this point which runs directly west, in line with the east and west portion of the Lincoln Highway, to the town of Chelsea, which is about three-fourths of a mile west of the scene of the accident. The Lincoln Highway at this point curves gradually to the north, forming a Y with the paved road which continues straight on into Chelsea. After curving to the north, the Lincoln Highway runs in approximately a northwesterly direction. It is a paved highway and 18 feet wide. The curve to the north which the highway makes at the Y is a five and a half degree curve. On the north side of the pavement, just after the Lincoln Highway starts to curve to the north, was a concrete flume or waterway, extending from the north edge of the pavement out across the shoulder of the road. Near this flume and at the extreme north edge of the shoulder was a guard post.
On the evening of the accident, about twenty minutes of twelve, Clarence Reimer, the appellee's decedent, had left Belle Plaine, a town to the east, in his 1930 Chevrolet coach. There was no one in the car with him. Prior to the collision, the appellant was driving his Model A Ford Tudor in a southeasterly direction around this curve. He was also alone. Clarence Reimer was driving in a general west or northwesterly direction on the Lincoln Highway.
The appellant was the only eyewitness to the accident. He testified that he was on the right-hand side or the southwest side of *Page 379
the black line at the time of the collision and was traveling about 35 miles an hour. There was no other evidence as to how the accident happened, except as shown by the physical facts. Clarence Reimer was killed in the accident. The appellee was appointed administrator of his estate and commenced this action to recover damages due to the negligence of the appellant.
It is the claim of the appellee that the physical facts in this case show that the appellant, immediately preceding and at the time of the collision between the two cars, was driving on the left-hand side of the center of the traveled portion of the highway, and upon meeting the car driven by Reimer, the appellant failed to give one-half of the traveled way thereof by turning to the right. This was the sole and only ground of negligence which the court submitted to the jury. It is the appellee's claim that the physical facts in this case squarely contradict the testimony of the appellant. The physical facts relied upon by the appellee are: First, the location of the two cars after the collision; second, broken glass scattered over the pavement, mainly on the north side and near the north shoulder; third, the condition of the cars, showing how they came together, after the accident; fourth, a certain diagonal black mark was found on the north curb, appearing to be made as by burning or sliding of the tire, with the brake set. This diagonal mark extended into the shoulder, leading up to the flume, beyond which lay the Reimer car.
At the end of the testimony, both sides having rested, the appellant made a motion for directed verdict, setting up among other grounds for sustaining the motion that the appellee had failed to prove by a preponderance of the evidence any negligence on the part of the appellant, and that any negligence on the part of the appellant, if there was any, was the proximate cause of the alleged accident and the appellee's decedent's resultant death. Other grounds were alleged in the motion for directed verdict, but it will not be necessary for us to consider same. The court overruled the motion for directed verdict, and submitted the case to the jury. A verdict was returned by the jury in favor of the appellee, and, from the ruling on the motion to direct the verdict and from the ruling on the motion for a new trial, the appellant has appealed.
The appellee's right to recover in this case is based entirely upon circumstantial evidence. Negligence may be based on circumstantial evidence, if the same reasonably supports the conclusion *Page 380
to be drawn therefrom. This court in a recent decision in the case of Stickling v. Chicago, R.I. P Railroad Co., 212 Iowa 149, 153, 232 N.W. 677, 679, said:
"The rule, well settled in this state, is that `a theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature, and are so related to each other, that it is the only conclusion that can fairly or reasonably be drawn from them.'"
Again, in the case of In re Hill's Estate, 202 Iowa 1038, at page 1039, 208 N.W. 334, 335, this court said:
"Plaintiff relies wholly on the circumstances and physical facts as revealed after the accident. Plaintiff's case is based on presumption and inferences, and the propositions present several pathways leading to fields of speculation and conjecture. As in all cases of this character there are two primary questions: (1) Has the plaintiff sustained the burden of proof as to the negligence charged against the defendant? (2) Has the plaintiff sustained the burden of proof as to freedom from contributory negligence? The onus in these two particulars rested on the plaintiff throughout the entire case. If plaintiff failed in either one of these particulars, the trial court properly sustained the defendant's motion for a directed verdict."
And at page 1043 of 202 Iowa, 208 N.W. 334, 336:
"Negligence cannot be predicated on presumption or inference, and the proffered evidence in this case would raise collateral and remote issues and, as said in Adams v. Chicago, M. St. P.R. Co., 93 Iowa 565, 61 N.W. 1059, `would lead to all manner of complications.' See, also, Gray v. Chicago, R.I. P.R. Co.,143 Iowa 268, 121 N.W. 1097."
In the case of Schmidt v. Hayden, 205 Iowa 1369, at pages 1371, 1372, 219 N.W. 399, 400, this court said:
"Where it is sought to establish by circumstantial evidence that the alleged negligence is the proximate cause of the injury, such evidence must exclude every other reasonable hypothesis. Asbach v. C., B. Q. Ry. Co., 74 Iowa 248, 37 N.W. 182; Neal v. C., R.I. P. Ry. Co., 129 Iowa 5, 105 N.W. 197, 2 L.R.A. (N.S.) 905; Tibbitts v. Mason City Ft. Dodge Ry. Co., 138 Iowa 178, *Page 381
115 N.W. 1021; Kearney v. Town of De Witt, 199 Iowa 530, 202 N.W. 253. We have also said that, where the evidence is in equipoise, the plaintiff must fail. George v. Iowa S.W. Ry. Co., 183 Iowa 994, 168 N.W. 322.
"Another rule of this court is that the cause of the accident must be clearly shown and cannot be left to speculation or conjecture. Pearson v. Wilcox, 109 Iowa 123, 80 N.W. 228; Martinek v. Swift Co., 122 Iowa 611, 98 N.W. 477; Anderson v. Wapello Coal Co., 151 Iowa 479, 131 N.W. 684."
Thus there appears to be no question about the general rule of law. What concerns us is its application, and to apply it to the case at bar we must carefully consider the record before us.
The appellee's first claim is the location of the two cars after the collision. There seems to be little dispute in the record in regard to the location of the cars after the accident. The Musel car was in the center of the paved portion of the highway, headed north, about 4 feet east of the flume. The Reimer car was north of the north edge of the pavement, headed south, about 6 or 8 feet west of the concrete flume. The undisputed evidence shows that the concrete flume was approximately 10 feet wide. So at the time these two cars came to rest after the collision, the Musel car, being about 4 feet east of the flume, and the Reimer car 6 to 8 feet west of the flume, they were at that time better than 20 feet apart. And no negligence on the part of the appellant is shown by the location of the cars. Where they were when they came to rest proves nothing whatever with reference to their location at the time of the collision.
The next physical fact which the appellee relies upon is the broken glass on the pavement after the accident. There is testimony in the record that there was broken glass on the pavement and a great deal of it on the north side and north shoulder of the pavement. Of course, when these two cars collided, the glass was broken in both cars and scattered over the pavement. The glass in the Reimer car was broken, and it may have been that, when the Reimer car crossed the flume, as it no doubt did, glass dropped out of the Reimer car onto the north side of the pavement and the north shoulder. There is nothing in the record, from the location of the glass, that proves the location of the cars at the time of the collision.
The next physical fact relied upon by the appellee is the *Page 382
condition of the cars after the accident. The record is not very clear in regard to this. But, there were offered two photographs, taken of the cars some little time after the accident. The record and the photographs show that the left front corner of the Musel car was struck, and also that the left front side of the Reimer car was struck. From the record before us, and from the photographs offered in evidence, we cannot say that the damage to the cars proves anything. Both cars were badly wrecked. There is nothing about the condition of the cars after the accident to indicate anything with regard to the location of the cars at the time of the collision.
Finally we come to the main physical fact upon which the appellee relies. The appellee was permitted to offer testimony relative to a black mark on the pavement, which, according to the witnesses the appellee offered, began about twenty feet east of the flume, showed on the pavement approximately three or four inches, with its general direction off the pavement onto the shoulder, towards the flume. The witness who was most favorable to the appellee's contention was George Cavalier, who testified as follows:
"I was not at the scene of the accident until 7:00 o'clock the next morning. The cars were not there at the time. I didn't see the accident happen. I didn't see either of the cars make any mark.
"I am acquainted with Highway No. 30. It is the Lincoln Highway. There is a great deal of travel over it at all times. I imagine there was a great deal of traffic and travel there at the scene of the accident. That is that passed it.
"Q. And things had been torn up considerably around this particular place and the wrecker had been there? A. Whatever they used to pull the car out with. I don't know what they used to pull it out with but after the broken piece of the car was pulled over the shoulder you could see the marks of that car.
"There were parts of those wrecked cars scattered around there. The pavement itself was open so you could travel and travel had been going over the pavement at all times after the accident. I drove up there in a car myself. Both cars had been removed and both boys had been removed. When I drove up there we parked our car on the right side of the highway coming from Chelsea. We came out of Chelsea on the old highway. It had rained when we came down there. It had been raining before we got there. We drove down in the rain. *Page 383
"I had sold Clarence Reimer the car which was in the wreck. The mark I have described was a black mark from the tire riding on the pavement starting about twenty feet east of the flume and it is on the pavement approximately three or four inches and its general direction is off the pavement onto the shoulder toward the flume. There was just one mark there. There was evidence that the driver of that car put on his brakes and that one wheel slid along the pavement and onto the shoulder and that was torn up. That was the right hind wheel. That had to be the right hind wheel otherwise the wheel would hit the post at the end of the flume.
"The Court: You say you followed this black line up to the flume?
"By the Witness: Yes, sir.
"The Court: Did it end there?
"The Witness: Yes, sir. There was no further mark because the flume was lower than the rest of the shoulder.
"The Court: Was there any mark beyond that of any wheels?
"The Witness: No, sir. That is where the marks in the dirt seemed to be, the wheel marks seemed to end there."
Several other witnesses testified in regard to the mark, but not a single witness saw the black mark on the pavement before 7 o'clock the following morning. It must be kept in mind that the accident happened somewhere around midnight. The record shows that it was dark that night, and no one saw the mark until the following morning. In other words, a period of some seven hours elapsed between the time of the accident and the time the witnesses saw the mark upon the pavement. The record also shows that the highway upon which this accident occurred, to wit, the Lincoln Highway, is a heavily traveled highway, and that between the time of the accident and the following morning when the witnesses first saw the black mark, a great number of cars had driven over this same highway, and one car, driven by the witness Chekal, drove in between the Musel car and the Reimer car shortly after the accident. He applied the brakes, his car skidded, and then went over the concrete flume, breaking one of his tires. The evidence of the witness Chekal is as follows:
"I approached the scene of the accident coming from the east going west. As I remember it it was close to midnight. I was driving about forty-five miles per hour. As I approached that curve I *Page 384
noticed there was a Ford coach in the center of the pavement just as I started to make the turn. There is a house located to the north of the pavement, a little bush in front, and there was a person waving at that place. I didn't stop. When I got up to the curve was when I saw the Ford in the center of the pavement. I then turned, applied my brakes and turned to the right to avoid hitting it. After I turned, I turned and went off the pavement on the north side and then I was opposite the Chevrolet coach and I turned back to the left to avoid hitting the Chevrolet coach.
"I know that I applied my brakes so as to skid my wheels as I went through there. The front tire on my car was blown out when I hit that water drain. My back tire was blown out also. I recognize Exhibit `B' as being a plat of this curve. The Ford car was just east of the flume on the pavement. The Chevrolet car was at a point just a few feet west of the flume and north of the pavement. As my car went through there I turned and missed the Ford and hit that flume and there I seen the Chevrolet and turned back left to avoid hitting that. I started to turn to the right at about twenty feet east of the Ford car, missed the Ford, and turned to the right onto the shoulder and left the shoulder just before I got to the flume. My car then went across the flume and turned to the left. My left front wheel was locked during that time. I stopped my car up the road a ways and went back to the scene of the accident."
It thus appears from the record that other cars went through there. It even appears that wheels on cars were locked as they went through there. The Chekal car may have made the mark, or some other car passing by may have made the mark. There is no evidence in the record that the mark was not there before the accident, nor is there any evidence in the record as to whether the mark was made between the time of the accident and the time the witnesses arrived, a period of some seven hours. There is no evidence in the record that either Musel's car or Reimer's car made this black mark, but it is the contention of the appellee the fact that the mark led up to the flume and pointed toward the Reimer car was proof that the Reimer car made the mark. The mark ended at the east side of the concrete flume or waterway. This concrete flume or waterway, according to the testimony introduced, was approximately ten feet wide. The Reimer car was six or eight feet west of the concrete flume. In other words, it was, at the time that the car came *Page 385
to rest, some sixteen or eighteen feet from the end of this black mark to the Reimer car. Both cars had been removed at the time that this mark was first observed. In view of the fact that this is a heavily traveled highway, that both cars had been removed, and the record shows beyond any question of a doubt that many other cars had driven up and pulled out on the shoulder, that more than seven hours had elapsed before this mark was observed, that there was a distance of sixteen feet between the end of the mark and where the Reimer car stopped, we cannot see where the mark proved the location of the cars at the time of the collision. This is the entire record upon which the appellee bases his right to recover. At the end of the testimony the appellant made a motion to direct a verdict on the ground, among others, that there was no proof of any negligence upon the part of the appellant and no proof of any negligence, if any, which was the proximate cause of the accident. There must have been doubt in the mind of the trial court as to whether or not this motion should be sustained at that time, for in ruling upon same, the learned trial court said:
"Motion for a directed verdict is overruled. That does not mean that I will not consider carefully a motion to set aside the verdict but I want to see what the jury will do first. Defendant excepts."
The burden of proof was upon the appellee to prove by a preponderance of the evidence the negligence of the appellant. We have time and again stated that verdicts should not be based upon mere theory or supposition. Negligence cannot be predicated on presumption or inference. It was the duty of the appellee to prove the cause of this accident; to prove that the accident was due to the negligence of the appellant. This the appellee has failed to do. The lower court should have sustained the motion for a directed verdict and its failure to so do was error. This case must be, and it is hereby reversed.
ALBERT, C.J., and EVANS, KINDIG, STEVENS, ANDERSON, CLAUSSEN, and DONEGAN, JJ., concur. *Page 386 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429087/ | The defendant Albert Langman constructed a house, which was purchased with the lot by the plaintiffs in 1. VENDOR AND 1924. The lot was owned by Solomon Langman, PURCHASER: father of Albert. The record before us is rescission: replete with drawings, maps, and blue prints, mutual but a statement of the facts is sufficient to mistake. call into operation the applicable legal principles decisive of this cause.
This parcel of real estate had, according to representation, specific boundary lines. Plaintiffs had a right to receive just what they contracted for; and if there was a mistake as to the subject-matter, then there was no meeting of minds, and no contract. Under such circumstances, equity will declare a rescission. Clapp v. Greenlee, 100 Iowa 586. The plaintiffs had the right to have the particular parcel of land purchased. The defendants had no right to offer or substitute another tract, "even though of equal value." Selby v. Matson, 137 Iowa 97. *Page 1098
The instant case is not one of mutual mistake. The contract of purchase was induced by fraudulent representation, viewed either in law or equity. Both the vendor Langman and 2. VENDOR AND his agents in the negotiations made material PURCHASER: misrepresentations as to the description of the rescission: land, its quantity, location, and the title in innocent the vendor. The owner of land is conclusively false presumed to know the boundaries of his own land. representa- Tott v. Duggan, 199 Iowa 238; Shuttlefield v.
tions. Neil, 163 Iowa 470. Furthermore, a purchaser is entitled to rely upon definite representations as to location, boundaries, title, etc., and is not bound to consult records or plats, or to employ a surveyor to ascertain the true boundaries or extent of the land.
False representations intentionally and knowingly made are fraudulent, and even though innocently and unwittingly made, if they deceive another to his injury, are fraudulent in equity.Scienter is not an essential element to constitute fraud in equity. It is elementary that, to entitle a party to reformation of a contract, he must prove the mutuality of the mistake by clear, convincing, and satisfactory evidence; and it is sufficient to state that the instant record affords the defendants no ground whatsoever to have the contract in question reformed.
Plaintiffs believed, and it was represented by the defendants, that the lot purchased was 40x140 feet, and that the lot had a front yard, and faced a city street known as Fair Avenue. Defendants represented, at the time of the purchase, that there was a driveway on the north side of the house; and when Mrs. Lorenzen, a little later, wanted the coal bin and fruit shelf put in the cellar "in the northwest corner," she was told that the drive was on the south side of the house, and that it was "a good ten feet wide."
It further appears that one Catherine Cahail contracted to buy from the Langmans the house south of the Lorenzen property, and that Mrs. Cahail was told that she had "a good ten feet" north of her house for a driveway. In other words, the defendants sold the Cahails a lot which included part sold to Lorenzens. See Cahailv. Langman, 204 Iowa 1011. The cross-petition of the defendants against the Cahails was properly dismissed. Eller v. Newell,159 Iowa 711.
The house purchased by the Lorenzens did not front upon *Page 1099
a regular and lawful street of the city of Davenport. The alleged street did not belong to the city, and the city refused to exercise jurisdiction over it. Albert Langman, when he built the house and sold this property to the Lorenzens, knew that his father had purchased in 1914 from one Elizabeth Wallerab a certain tract; including this particular parcel, as unplatted acreage, and that his father still owned it; and Albert testified that he acquired title to most of this Langman Addition from his father, sometime after the instant contract and deed were made, and that his father did not convey to him any part of Fair Avenue extended, but retained his rights to Fair Avenue extended.
There can be no serious question that the plaintiffs would not have executed this contract if they had known of the falsity of the representations made by the Langmans and their agents, to wit: that Fair Avenue in front of the house was a city street; that a ten-foot driveway existed south of the lot; and that the lot extended from the front walk on the west to the alley on the east. Plaintiffs were shown, and thought they were buying, a specific and definite parcel of ground. The record shows that the greatest distance between the Langman and Cahail houses is 14.26 feet, and consequently at no place is there room between the houses for two ten-foot driveways.
The undisputed evidence discloses that the Cahails were sold their house with a ten-foot driveway on the north side of the house, and this ten-foot drive would necessarily include the south 5.74 feet of the land plaintiffs purchased. The defendants need the legerdemain of some Houdini, rather than a court of equity, to solve the difficulty suggested by the instant record.
Enough has been indicated in this opinion determinative of this appeal. The decree entered by the district court is fully sustained by the law and the facts. It is — Affirmed.
EVANS, C.J., and ALBERT, MORLING, and WAGNER, JJ., concur. *Page 1100 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429089/ | The plaintiff, C.M. Taylor, brought suit against defendants, Frank Kral and Mrs. Frank Kral, claiming damages for injuries suffered by him by being struck by an automobile owned by Frank Kral, which automobile he claims was being negligently driven by Mrs. Frank Kral. The case was submitted to the jury and a verdict was rendered in favor of plaintiff and against both defendants. A motion by defendants to set aside the verdict and grant a new trial was overruled and defendants have appealed.
I. Appellants in this appeal have set forth four errors and on such claimed errors they ask that the judgment of the trial court be reversed and a new trial granted them.
Generally speaking, the assigned errors relate to appellants' claim that a verdict should have been directed against appellee in that he was guilty of contributory negligence as a matter of law; also, to the refusal of the trial court to give instructions requested by appellants and the giving by the court of certain instructions. These claimed errors have been set out and argued in separate divisions of appellants' brief and argument.
II. Before taking up and considering the claimed errors we think that it will be helpful to an understanding of the issues made and of the matters involved in this appeal to set forth a brief summary of the record facts.
Plaintiff-appellee was sixty-five years of age and lived at Clarion, Iowa, and since 1918 had worked as a freight brakeman for the Great Western Railroad, which has a line running through the city of Carroll, Iowa. His duties required much physical labor. About 3 p.m., October 6, 1945, he was assisting in the switching of some freight cars, and when injured was standing on a step of a coal car then being spotted for the Joyce Lumber Company of Carroll. It was a bright, clear day. A switch engine was pushing a string of cars eastward and the car on which appellee was riding was at the east end. As this train was moved eastward appellee stood on the stirrup step *Page 1021
on the north side of the car and was giving directions to those then operating the train as to what point the car was to be spotted. Appellee stood holding to a handhold on the northeast corner of the car and had his back to the north and east. He looked to the south as the car passed over and across Clark street. This street ran north and south, carried considerable traffic, and was one of the main streets of such city. Before the cars being switched arrived at the crossing the train conductor, Bartlett, testified that he stationed himself in the street north of the tracks about twenty-five feet, to act as a watchman and to warn traffic approaching the crossing, either north or south. He testified this was an act which he regularly performed when the cars being switched crossed the streets. When the car upon which appellee was riding was almost across the street, Mrs. Kral, driving an automobile, approached from the north at a speed of from fifteen to twenty miles per hour. Bartlett testified that he sought to stop her by making stop signs with his arms, but, disregarding such signs, she proceeded ahead, making it necessary for Bartlett to jump aside to avoid being struck. As the automobile came close to the train the driver swerved to her left and to the east and the automobile collided with the car at a point where appellee was holding onto the side of the car, pinning him against it and severely injuring him. As a result appellee was taken to a Carroll hospital, then home. At the hospital he received medical treatment. Later, at a Mason City hospital, he had an operation. Since that time appellee has not been able to carry on his regular work as a brakeman. He tried to resume his work on several occasions but was unable to do so.
He made claim in his petition for personal injuries, pain and suffering, loss of time, and also for permanent injuries.
III. The first error set forth by appellants is that the evidence was insufficient to warrant the court in submitting the case to the jury; also, that the evidence showed that appellee was guilty of contributory negligence as a matter of law. Inasmuch as appellants have argued both of these matters in one division we will follow a like order in considering them.
[1] If appellee has shown himself free from contributory negligence, then we are of the opinion that there was in the *Page 1022
record ample evidence to warrant the court in submitting the issues to the jury.
Appellants argue at length that the record shows that appellee was guilty of contributory negligence as a matter of law, and hence the court erred in overruling their motion for a directed verdict. This claim of appellants is largely predicated upon the testimony of appellee. He testified that he was standing on a stirrup step at the east end of the coal car, which was being pushed to a position just east of Clark street. He stated that he was on this step and was supporting himself in an upright position by holding a metal handhold just above the step; that he was facing east, with his back mostly to the north, and that as the car started to cross the street, and while it was crossing, and as it reached the other side, he did not look to the north, which was the direction from which Mrs. Kral was approaching in the automobile. He stated that he knew the conductor was on the north side of the track, standing in the street to warn approaching traffic. The stirrup upon which he was standing was approximately thirty to thirty-two inches from the ground. As the car on which appellee was riding approached the crossing on Clark street, and while it proceeded across to the place where the coal car was to be spotted, appellee looked ahead, also south down the street to observe traffic from that direction. He was in the position required in carrying out his duty of placing the coal car in a proper position. We quote from his testimony touching such matter:
"I was standing on the stirrup or step of the car on the east end of the car shoving up to the coal chute or coal shed. Exhibit B is exactly the type of car that I was riding on that day. * * * I was standing on that corner on the corner of the car going east. I was standing on the east end. We were shoving east and I was on the lead coach. * * * Q. Was your back to the north? A. Yes, I would say it would be more to the north than any other. * * * Q. Do you have any memory of seeing this car coming down the street? A. No, I never saw no car coming down the street."
[2] Taking into consideration the fact that there is evidence that the conductor was out in the street between the coal *Page 1023
car and the automobile driven by Mrs. Kral, the position of appellee on the coal car, his necessity of being there in the switching operation, the fact that this coal car was almost entirely across to the east side of the street when Mrs. Kral turned her automobile to the east just before it struck appellee, we do not see where appellee could be held negligent as a matter of law. We hold that the question of his negligence was for the jury and under proper instructions. It seems to us that under the situation appellee had no reason to apprehend danger. In the case of Downing v. Merchants Nat. Bk., 192 Iowa 1250, 184 N.W. 722, 20 A.L.R. 1138, a party brought suit, claiming negligence on the part of the defendant in having a door in the bank vestibule and that as plaintiff sought to enter the bank through the same he fell downstairs and was injured. The bank set up the claim that Downing was guilty of contributory negligence to such a degree that he could not recover. The claim was made that his failure to look resulted in his injury. This court denied such claim and quoted with approval from the case of Engel v. Smith, 82 Mich. 1, 7, 46 N.W. 21, 22, 21 Am. St. Rep. 549, as follows:
"It is a sound rule of law that it is not contributory negligence not to look out for danger when there is no reason to apprehend any."
In the case of Spiker v. City of Ottumwa, 193 Iowa 844, 849, 186 N.W. 465, 467, the rule above stated was approved. Further therein the court said:
"There is no rule by which failure to look out for or discover danger, when there is no reason to apprehend any, can rightfully be held contributory negligence, as a matter of law."
In support of such rule, see LaSell v. Tri-States Theatre Corp., 233 Iowa 929, 957, 11 N.W.2d 36.
In the case of Posener v. Long, Tex. Civ. App., 156 S.W. 591, the plaintiff was walking beside a street railway track looking in the direction from which a streetcar was approaching. She did not look in the other direction and was struck by an automobile coming from that quarter. Held that the plaintiff, *Page 1024
in failing to look, was not guilty of contributory negligence as a matter of law.
We hold that the trial court did not err in overruling appellants' motion to direct a verdict on the ground that appellee was guilty of contributory negligence as a matter of law.
In support of their claim as set forth in this division appellants have cited many cases. We do not find that they can have application here. Most of them deal with cases where pedestrians were struck by motor vehicles while crossing streets. Many of the cases cited are of no benefit here due to the fact situation.
We have no such situation here. In this case appellee was in a place where he had a right to be and where his duty required him to be. He had a right to assume that the driver of an oncoming automobile would pay heed to the warning sign being given by the conductor; also, to the crossing sign just north of the crossing. The train was in plain sight and appellee had a right to assume that drivers of motor vehicles would observe it and its position.
Whether appellee was guilty of contributory negligence under this record was a jury question. We have on numerous occasions held that the question of contributory negligence usually is one of fact for the jury. In the case of Nelson v. F.W. Woolworth
Co., 211 Iowa 592, 603, 231 N.W. 665, 670, this court quoted from Murphy v. Iowa Elec. Co., 206 Iowa 567, 571, 220 N.W. 360, 362:
"`The presence or absence of contributory negligence, generally speaking, is peculiarly a question for the jury, rather than the court, to detect and settle.'"
In support of the rule above stated, see Huffman v. King,222 Iowa 150, 268 N.W. 144. In that case, this court, speaking through Kintzinger, J., made an extensive review of the cases dealing with the matter of contributory negligence and when said issue should be submitted to the jury. See, also, Fitter v. Iowa Tel. Co., 143 Iowa 689, 121 N.W. 48; Roberts v. Hennessey,191 Iowa 86, 181 N.W. 798; LaSell v. Tri-States Theatre Corp., supra. *Page 1025
[3] IV. The next error urged by appellants is the failure of the court to give the jury requested Instruction No. 1. This requested instruction set forth the necessity of appellee to show his freedom from contributory negligence, and also set forth the contention of appellants that the ordinances of the city of Carroll, Iowa, governed the operation of locomotives in said city and particularly required the ringing of the bell when so operating. It dealt with the necessity of the appellee to exercise ordinary care for his own safety. We think the court properly refused to give the requested instruction. It was rather long, somewhat involved, carrying several distinct matters, and we think that it placed rather undue emphasis upon the matter of the ringing of the engine bell. In addition, we think that the instructions given by the court covered all of the essential parts of the requested instruction. Instruction No. 2, paragraph 5, told the jury that appellee must show that he was free from contributory negligence. The term was correctly defined in a later instruction. As to the part of the requested instruction dealing with the operation of the locomotive and the ringing of the bell, we are of the opinion that this matter was fully and fairly covered by other instructions given by the court. It was the claim of appellants that the sole proximate cause of the collision was the failure of the railroad company to ring the bell while switching, as required by the ordinance. In Instruction No. 13 1/2 given by the court this claim of appellants was set forth, and on this matter the court instructed:
"* * * and if it appears that the negligence of the railroad company, in not continually ringing its bell while in the operation of the switching process at the intersection, if there was such failure on its part, was the sole proximate cause of the accident the plaintiff may not recover and your verdict should be for the defendants."
We think that the instruction given on this point covered the point requested and was all the appellants were entitled to. In the instructions the court defined correctly the term "proximate cause."
Mrs. Kral said she did not hear any bell; other witnesses testified positively that it was being rung at the time the train *Page 1026
was proceeding over the crossing. Mrs. Kral testified she saw no watchman at any point. In this she is contradicted by other witnesses. She says that she slowed down to about fifteen miles per hour as she approached the railroad track; that as she proceeded she slowed down to some extent; that as she got down to the spur track of the Iowa Public Service (first track to the north) she saw the car being switched eastward on the next track. She said she thought it may have been forty feet ahead. The record shows that the street at that point was over thirty feet wide and that it is forty-seven feet from one track to another. Mrs. Kral said that she was familiar with the crossing; that her brakes were good; that she did not apply them; that she saw the car and a man standing on the side; that if she had applied the brakes she could have stopped; that at fifteen miles per hour she could have stopped within forty feet; that if she had been going from ten to fifteen miles per hour she could have stopped within twenty to twenty-five feet.
According to the undisputed facts, Mrs. Kral must have been at least fifty feet north when she saw the train and the car on which the appellee was riding. In fact, she saw him standing up against the car. When she saw the car and appellee on it she was fully apprised of the situation. The ringing of the bell would not have aided her.
Appellants claim that the court in the instruction should have told the jury that the speed of the train was limited by ordinance to fifteen miles per hour. It is difficult to see its application to the record facts. Mrs. Kral testified that she saw the car in time to have stopped if she had applied her brakes. All the witnesses testifying on that point gave the speed of the train at ten miles per hour or less. In view of the fact that the car on which appellee was riding was to be spotted just east of the crossing it can readily be inferred that it was almost to a stop when Mrs. Kral ran into it. The part of the requested instruction dealing with the care required by appellee is likewise fully covered and explained in the instruction given. We see no merit to the claim of appellants that the court erred in failing to give the requested instruction.
[4] V. The third error claimed relates to the refusal of the court to give requested Instruction No. 9. This requested *Page 1027
instruction deals with the situation wherein appellants asked that the jury be instructed that if appellee knowingly placed himself in a position of danger which could be seen and appreciated he was guilty of negligence as a matter of law. The court very properly refused to give such an instruction. By reason of the record facts, appellee in line of his duty was required to take the position he took in order to carry on the switching operation. A switchman riding on a car being switched can hardly be said to be in a position of danger. The danger arose by reason of the negligent — not to say reckless — conduct of Mrs. Kral in operating the automobile. The record shows that the court gave proper instructions on that point and properly refused the requested instruction. The court did not err in refusing to give the requested instruction.
VI. The final error urged is that Instruction No. 16 is erroneous. This instruction dealt with the matter of damages in case the jury found for the appellee-plaintiff. The third paragraph of said instruction is the part complained of. Such paragraph is as follows:
"And if you find that his injuries will continue you will consider the probable duration thereof and allow him for such future doctor's and nurse's services and hospital care, and for such future impaired ability to labor and earn money in the future, and for such future pain, suffering and mental anguish as the plaintiff is reasonably certain to suffer as the direct, proximate result of his injuries; and for such matters you may allow such sum as, based upon an impartial, approximate estimate thereof, being presently paid, will fairly and reasonably compensate the plaintiff for such future expenses and for such future impairment of earning capacity, and for such future pain and suffering and mental anguish."
[5] Appellants' objection to said paragraph was set forth in the first two paragraphs of objections and exceptions. In the first paragraph of said exception the appellants complain, "* * * that said instruction submits to the jury an issue of permanent injuries, whereas there is insufficient evidence in the record to warrant the court in submitting to the jury an issue of permanent injury." *Page 1028
As we read the third paragraph of the instruction given we do not find therein that the court instructed that they might allow for permanent injuries.
In stating the issues to the jury, and based upon appellee's petition, the court does not state that there is a claim made for permanent injuries.
Dr. Morrison, testifying for appellee as to whether the injuries suffered in the collision by appellee would result in permanent injuries, said: "Well that is a difficult question to answer because only time will tell."
[6] The second objection or exception to said paragraph 3 of Instruction No. 16 is:
"* * * that said instruction submits to the jury an issue of future pain and suffering whereas there is insufficient evidence in the record to warrant the court in submitting to the jury the issue of future pain and suffering * * * as an item of damages."
Dr. Morrison had charge of appellee for a few days while appellee was in the hospital at Carroll. After some treatment appellee went to his home in Clarion; later, upon advice of Dr. Lachmiller, he went to a hospital in Mason City, where he was operated on for an umbilical hernia. Dr. Lachmiller stated that in his opinion the hernia was brought about by a severe trauma. This physician attended appellee after the return to Clarion. He testified that ever since the accident appellee had suffered a great deal from back pains and sciatica and sciatic rheumatism. He said, "It is very disabling inasmuch as it is crippling."
Dr. Morrison examined appellee just before the trial (February 1947) and stated that there was a marked change. We quote:
"* * * and the examination seemed to reveal that he had certain signs and symptoms which I don't believe were put on. There is no question but what he had different changes from the first time I saw him. There is no question at least from the outward appearance that his condition is worse. I don't think it is for the better. It is for the worse from the first time I saw him." *Page 1029
This witness went on to say that appellee had arthritis before the accident; also that a severe injury would aggravate it; that such a condition would cause severe pains and in the case of appellee would prevent him from doing any heavy work. He was asked how long this disability would likely continue. He answered:
"That would be difficult to say. It has been aggravated over this past year without doubt but I couldn't put any time on it or anything else because only time will tell."
This witness testified that the injury had resulted in one of lumbosacral strain. This caused appellee to complain a lot of back pains. Dr. Morrison stated that in his opinion the back pains of appellee came from the injury.
Appellee testified that previous to the injury he had worked steadily as a brakeman and had done much heavy work. After telling of his injury and the time lost, he testified as to his present condition. We quote:
"I have felt terrible all the time I worked during this period. I have worked many a day and many a night that I didn't want to and I have worked every day that it was humanly possible for me to work. It is terrible. I have got to the stage where I can't work any more. Right down in the small of my back I have a very bad pain. As near as I can tell you, if you had some sand between the thumb and your finger and rubbed it hard it would make quite a grit and cut sensation. If I move around, and especially if I am jolted around, it seems like that is a grind in there and it goes right down to my hip and down to my heel, and so help me, now I can count the strokes of my heart beat in my heel right now. It is a very painful thing and it is a continuous pain, that hip and back is. It has got so I can't ride in trains or cars, the vibration. I can't ride twenty-five miles in an automobile. There seems to be a quiver about that and it is just terrible. It is hard to go through. I was working steadily up to the time of the accident and had no serious injuries."
We find no merit to the objections or exceptions of appellants to said Instruction No. 16 as above set forth. *Page 1030
[7] A further objection was made in argument to that part of said Instruction No. 16 wherein the jury, in estimating damages, were permitted to allow expenses for future doctors' and nurses' services and hospital care as the appellee would be reasonably certain to suffer as the direct and proximate result of his injuries. The argument of appellants is that there was no evidence to sustain that feature of the instruction.
No such objection or exception was urged until the motion for a new trial and for that reason we will not consider it. Rule 196 provides that objections or exceptions to instructions must be made or taken before the instructions are read to the jury. By reason of such rule we do not pass upon such claim of error. We hold that there was no error in the giving of Instruction No. 16.
As to the giving of instructions and refusal to give others requested, see Skalla v. Daeges, 234 Iowa 1260, 15 N.W.2d 638.
We find no error in the record and the case is affirmed. — Affirmed.
OLIVER, C.J., and BLISS, GARFIELD, HALE, HAYS, MULRONEY, and SMITH, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429090/ | The only specification of negligence in plaintiff's petition was that the right rear wheel of defendant's automobile was made so that the wheel fastened thereon with six lug bolts and nuts, and at the time of the accident the defendant was driving the same with only four nuts thereon, and one was loose *Page 270
and of no use in holding on the wheel. The wheel came off and the automobile was thrown into a cement culvert.
Defendant was a dealer in agricultural implements and had for sale a repossessed tractor which he was trying to sell to plaintiff's brother. Defendant brought the plaintiff and his brother to Osceola to examine the tractor for the purpose of attempting to sell the same to plaintiff's brother. The petition alleged that plaintiff was in the automobile at the time for the benefit of defendant and was not a guest. In his answer defendant asserted that the plaintiff voluntarily assumed all risk incident to the condition of the right rear wheel, and denied that plaintiff was riding in the car in any status other than as a guest, and denied that he (the defendant) was guilty of any reckless operation of the automobile.
Plaintiff is a farmer, living near Garden Grove, and he owned a tractor of the kind which his brother was considering buying. His father is also a farmer. The brother Clement, younger than the plaintiff, farmed with his father. Defendant had informed Clement of the repossessed tractor and had arranged with him to drive to Osceola on the day of the accident. Clement had asked his brother to accompany him to advise as to the merits of defendant's tractor. There was testimony to the effect that Clement had told defendant that he would expect his father and brother Kenneth to go with him, and that he would not go unless his brother Kenneth could go, because Kenneth owned a tractor identical to the one at Osceola and he wanted his judgment, that he would not go unless Kenneth could go with him.
On the day of the injury, July 30, 1938, defendant drove to the farm where Clement lived and took in Clement and his father, W.T. Mitchell. He then drove to Kenneth Mitchell's place, about 8 o'clock, and took Kenneth into the car. He then drove west to highway No. 69, and thence north to about the Decatur-Clarke county line, at about which point the right rear tire was observed to be down. At a point about 50 yards north of the Landis filling station the wheel was removed and Clement and the defendant took the wheel to the filling station, where the tire was repaired, and they then returned to defendant's automobile. Clement replaced the wheel upon the lug bolts *Page 271
attached to the hub. Kenneth started to replace the nuts and then discovered there were only four nuts instead of six. The four nuts were attached to the bolts, but one nut did not hold very well. Plaintiff called the attention of the defendant to this fact, stating, "I don't like the looks of that," and asked how long it had been driven that way; and further stated, "You had better put these on because you know how they go." Defendant then stated that he had been driving that way for approximately two months, and, according to the testimony, stated he would drive "careful and slow" and have new bolts put on at Osceola. The testimony of the plaintiff is that he asked whether or not the car was safe to drive in that condition, and received the information that it had been driven that way over cornfields and rough roads for over two months, and that the defendant would drive carefully, and that it would be perfectly safe. Plaintiff then admonished defendant to drive "slow and careful" because he did not want to get hurt, and defendant assured him that he would, and that it was all right. The testimony of Clement Mitchell is also that defendant stated that it was safe to drive from there to Osceola. This statement defendant does not deny, but states that he does not remember. His testimony is that, "The boys asked me to drive carefully, but I don't remember being asked the question whether it was safe to go on. I told them I thought it would be safe to drive on to Osceola. It wasn't safe for all driving, but to get down to Osceola on the straight road I felt we could do that all right with it."
The parties returned to the car and defendant proceeded to drive at the rate of about 25 miles an hour, which speed was increased as they approached a bridge where there was a descent in the road. South of the bridge, 100 to 200 feet, the right rear wheel came off and the right rear end of the car dropped to the pavement. The car turned to the west, crossed the pavement, and then turned back to the east, continuing north at a lower rate of speed. It collided with the south end of the abutment of the bridge, and stopped. The right rear door came open and plaintiff was thrown into the creek. Other parties in the car were also injured.
The defenses to plaintiff's claim for damages were that *Page 272
the plaintiff assumed the risk of being injured by remaining in the automobile after it left the filling station, and that plaintiff was a gratuitous passenger in the automobile at the time he was injured and that defendant owed him no duty except not to be reckless in the operation of the automobile and that he was not reckless.
At the conclusion of all the evidence defendant filed a motion for directed verdict on the grounds of assumption of risk and under the guest statute (Code, 1935, section 5026-b1; Code, 1939, section 5037.10), which motion was overruled, and on submission to the jury a verdict was returned for the plaintiff. Defendant's motion for a new trial on the same grounds was overruled, and defendant has appealed.
[1] I. The first assignment of defendant is that the plaintiff, knowing the condition of the right rear wheel and voluntarily exposing himself to the danger of riding in the car in such condition, is precluded from recovering for the injury which resulted from such exposure. This objection was made by ground 2 of the motion for directed verdict, ground 2 of the motion to withdraw issues, and grounds 1 to 3 of the motion for new trial.
The only specification of negligence relied upon by plaintiff in his petition is as to the right rear wheel of the car. We have called attention to the conversation just prior to the resumption of the journey after the mending of the tire, and defendant argues that 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 recovery for injury resulting therefrom; or, if a person, with knowledge and appreciation of the defective condition of a car, voluntarily assents to ride therein, he would be precluded from recovery. There is no question that the plaintiff in this case had knowledge of the condition of the right rear wheel and that he voluntarily rode in the car after he had knowledge of such condition. Defendant relies upon and cites various cases. There is not much dispute that, under such a situation, with nothing further shown, there would be an assumption of risk.
Defendant cites the case of White v. McVicker, 216 Iowa 90,246 N.W. 385, in which it was pleaded as a defense that the *Page 273
plaintiff, a guest, in a case involving recklessness, knew that the driver was incompetent, inexperienced, reckless, or intoxicated, voluntarily became a guest, and, with knowledge of the nature and extent of the danger, aided, encouraged, cooperated, or acquiesced in the operation of the car in a reckless manner. Motion to strike this defense was sustained, and on appeal it was held not prejudicial, since the evidence did not sustain it. There was no question here of any conduct tending to lull into security, or of representations on the part of the defendant.
Also is cited Helming v. Peoples National Bank, 206 Iowa 1213,220 N.W. 45; and the same may be said in this case, where it was the duty of the plaintiff to have such repairs made as were necessary. There was no suggestion of any representations or conduct on the part of the defendant such as would enable a person to avoid the effects of his own assumption of risk.
Douglas v. Scandia Coal Co., 161 Iowa 180, 141 N.W. 960, was an ordinary case of assumption of risk, where the plaintiff was fully aware of the dangers attending the driving of the animal assigned to him. The principal complaint in this case was failure of the defendant to warn the plaintiff, who was fully aware of the nature of the mule he had to drive.
Other cases cited by defendant only refer to the general rule as to assumption of risk as applying to guests in automobiles.
We have said that there is no dispute that the plaintiff saw the condition of the wheel, but plaintiff denies that he did appreciate the danger, and states that the defendant promised to drive carefully and failed to do so. There is evidence showing that after the replacement of the wheel the defendant stated that it was safe and promised to drive carefully. There is also testimony that plaintiff knew nothing about that make of car, and that he believed and relied on defendant's statements that it was safe and that he would drive carefully. There is further evidence that the defendant did drive with care until near the point of the accident, and that he increased the speed at that point and gave the car a turn to the left. In answer to defendant's claim that the danger was so obvious and plain that plaintiff was not justified in relying on defendant's assurances *Page 274
that the wheel was safe and that he would drive carefully, plaintiff cites Wittrock v. Newcom, 224 Iowa 925, 931,277 N.W. 286, 289, which holds that, under like circumstances, when, against the protest of a passenger, she is assured of safety by the salesman, there is not as a matter of law an assumption of risk, since reasonable minds could differ and it was for the jury to determine if it was unreasonable for her to rely on the salesman's assurances of safety. The language of the court in the Wittrock case is that:
"In master and servant cases assurances of safety ordinarily are held sufficient to carry the question of assumption of risk to a jury especially when reasonable minds may differ as to whether the peril is imminent, and if the rule in such cases is applied here, it would not create a situation where a court could say as a matter of law that the plaintiff, under this record, assumed the risk. At most it could only create a jury question * * *."
The opinion cites White v. McVicker, supra, and various other cases, holding to the general rule that, where reasonable minds might differ, the question is one for the jury. See also Edwards v. Kirk, 227 Iowa 684, 288 N.W. 875.
Defendant argues that the Wittrock case does not apply, but we fail to see any distinction in the principles governing the rule in that and the present case. It is apparent that the plaintiff in the Wittrock case was lulled into security by the assurance of the salesman that no harm would occur. It is there held that reasonable minds might differ upon the question as to whether the danger to the plaintiff by Hansen's driving the car, with her understanding that he would be assisted by Atzen (the salesman), was so obvious to her that reasonable minds could reach the conclusion only that it would be unreasonable for her to rely upon the assurances of Atzen.
"If reasonable minds could reach the conclusion only that it would be unreasonable for plaintiff to rely upon the assurances, then she should be held not entitled to recover in this action. However, if reasonable minds could differ, then it presented a jury question, and as we have suggested, it is fair to *Page 275
presume or assume that the court submitted the question to the jury under proper instructions." Wittrock v. Newcom, 224 Iowa 934,277 N.W. 291.
So in this case, no objection is made that this question was not properly submitted, and no objection is made to the instructions as a whole. We think, under the principles enunciated in the Wittrock case, that the court in this case was correct in holding it to be a jury question and the submission thereof was not erroneous.
[2] II. As to his second assignment of error that plaintiff was riding in defendant's car as a guest, and, there being no proof claimed or offered as to recklessness, there can be no recovery, the defendant relies upon our decision in the case of Sproll v. Burkett Motor Co., 223 Iowa 902, 274 N.W. 63, decided in 1937. We are of the opinion that the facts in this case do not bring it within the rule laid down in that case. An examination of the facts in the instant case as compared with those in the Sproll case will indicate the difference. The plaintiff in the Sproll case was a friend of one Montgomery who was negotiating for the purchase of a used automobile. The defendant company gave him a car to test, and Sproll, who was experienced, was asked by Montgomery to go along to advise as to the prospective purchase. Montgomery drove the car into the country and brought it back to the garage of the defendant. He informed the company that the car drove all right, but said that before making the deal he would like to get his wife and take her out in the car and see what she thought of it, and was given permission so to do. The record does not show that Sproll was requested by the defendant company to go on the second trip, or that it even knew that he was going. There is no showing that Montgomery was authorized in any way to do more than to show the car to his wife. In no sense was the taking of Sproll in the car beneficial to the defendant company. There was no showing of recklessness and, under the holding, Sproll was riding as a guest and was not a passenger for hire. The court in one place, page 907 of 223 Iowa, page 66 of 274 N.W., says:
"Although the petition in this case alleges that the plaintiff was requested by the defendant motor company to accompany *Page 276
Montgomery for the purpose of advising him as to the quality and efficiency of the car, the evidence does not sustain this allegation."
In the Sproll case it must be remembered that there were two trips. On the first, where Montgomery and Sproll went out together, Sproll was in an advisory capacity; but on the second trip, all that remained was for Montgomery to ascertain whether his wife was satisfied with the car, and Sproll was on that trip merely a guest.
The distinction is quite apparent if the evidence in this case is compared with that in the Sproll case. Here the defendant was interested in the sale to the plaintiff's brother, and had been told that there could be no negotiations for the sale, nor any trade made, unless the plaintiff was along; so that the trip in which plaintiff was injured was of necessity for the benefit not only of the plaintiff's brother but of the defendant himself. Plaintiff's presence in the car was, therefore, of benefit to both parties to the negotiations.
We think as to the facts the case comes more nearly within the rule laid down in Bookhart v. Greenlease-Lied Motor Co., 215 Iowa 8,244 N.W. 721, 82 A.L.R. 1359. This case was later reviewed in Knutson v. Lurie, 217 Iowa 192, 199, 251 N.W. 147, 151, which, while not agreeing with the statement in the former case that the mutual benefit amounted to a consideration for the transportation, yet held that the ruling therein was correct, on the basis, however, of mutual benefit to the parties concerned. The case then recites:
"Then, as a natural consequence of the rules above announced, if the facts are in dispute concerning the purpose of the transportation or the conditions under which it is made, a jury question, as is general in law actions, will be presented."
There is no question here made by either party as to any recklessness in the conduct of the defendant. See cases cited in Chaplowe v. Powsner, 119 Conn. 188, 175 A. 470, 95 A.L.R. 1177, and annotation, 1180 et seq. And see Wittrock v. Newcom, supra, decided in 1938. The Sproll case is distinguished in the Wittrock case, where the facts are much more analogous to those in the present case. In that case, at page 930 of *Page 277 224 Iowa, page 289 of 277 N.W., Atzen (the salesman) undertook to carry Hansen (the prospective purchaser) and his sister "over the road for the mutual benefit of all — for his benefit in attempting to sell the car, for Hansen's benefit in order to observe the operation of the car, and for the plaintiff's benefit in transporting her to the place of her employment, and to aid in selling the car to Hansen. Under these circumstances we are constrained to hold that the plaintiff was not a guest, within the meaning of the so-called guest statute, Code 1935, § 5026-b1, at the time of the accident." See also Doherty v. Edwards,227 Iowa 1264, 1268, 290 N.W. 672, 674, decided in 1940, and cases therein cited. In this latter case, the opinion by Justice Oliver refers to Wittrock v. Newcom, supra, and, in reference to that case, states:
"* * * we held that a lady passenger in an automobile which was being demonstrated to a customer was not a guest where she was requested to ride because she was related to and employed by the prospective customer and the salesman thought her presence would further his chances of making a sale. This expectation on the part of the salesman was recognized as sufficient to constitute the definite and tangible benefit to him referred to in Knutson v. Lurie, supra."
For the reasons given, we hold that under the evidence the court could not hold for defendant on either the question of assumption of risk or under the provisions of the guest statute (Code, 1935, section 5026-b1), and the rulings and judgment must be affirmed. — Affirmed.
MITCHELL, STIGER, BLISS, OLIVER, GARFIELD, and WENNERSTRUM, JJ., concur.
MILLER, C.J., takes no part. *Page 278 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429093/ | [1] The administrator of the estate of Nella P. Grindey, deceased, brought an action in equity against the administrator of the estate of John J. Walrath, deceased, wherein he sought an accounting and judgment by reason of the claimed collection of rentals by John J. Walrath during his lifetime from eighty acres of land belonging to Manley T. Dobler and his niece, Nella P. Grindey, for the period commencing March 1, 1932, and ending March 1, 1944. The trial court, after the allowance for credits for taxes paid by Walrath on the land, allowed the claim of the plaintiff for a portion of the rentals collected by Walrath for the years of 1939, 1940, 1941, 1942, and $143 collected in 1943, but denied any recovery for any rental collected during any prior years, holding that a recovery for the prior period was barred by reason of the statute of limitations.
Nella P. Grindey and her uncle, Manley T. Dobler, for the greater portion of the period for which the rental collections are in controversy each claimed an interest in eighty acres of land in Cerro Gordo County, Iowa. Dobler claimed to be the sole owner and Nella P. Grindey claimed an undivided one-half interest therein. Manley T. Dobler and Adah Bawden are brother and sister, both residing in the state of Illinois. In 1939 Adah Bawden deeded her then claimed share of the land to her daughter, Nella P. Grindey. It is shown *Page 229
by the record that John J. Walrath was the husband of Adah Walrath, who was an aunt of Adah Bawden. Walrath in 1932 was requested by Manley T. Dobler to rent the land, the rentals of which are now in controversy, and it is disclosed that Walrath thereafter informed Mrs. Grindey of this request. He thereafter looked after the land and collected the rentals therefrom from March 1, 1932, to March 1, 1944.
John J. Walrath died April 15, 1944, and Nella P. Grindey died April 27, 1944.
It is disclosed by the record that in 1933 Mr. Walrath made a statement to Nella P. Grindey that Manley T. Dobler claimed all of the rentals and that on the advice of his attorney he, Walrath, was holding the rent and would not give it to either of them until a settlement was made and it was decided to whom the rents received from the farm property should be paid. There is testimony to the effect that in 1943 John J. Walrath called Mrs. Bawden by telephone and offered to send a check for $650 in settlement of the rentals held by him. The record also discloses that there was found by his administrator, among Mr. Walrath's papers after his death, a check for $650 payable "to the Order of Deft Manley Dobler and Netta P. Grindey," which check was signed by J.J. Walrath. It was dated February 3, 1943. This check had never been delivered. It is also shown that Manley T. Dobler brought an action in partition against the heirs of Nella P. Grindey and that on December 18, 1944, a decree was entered holding that Manley T. Dobler was entitled to an undivided one-half interest in the land, the rentals of which are in controversy, and that the remaining one-half interest belonged to Nella Grindey and Leslie A. Grindey, heirs of Nella P. Grindey, deceased.
It is the contention of the appellant that the trial court erred (1) in holding that the rentals collected by Walrath from 1932 through 1938 were barred by the statute of limitations in that (a) said Walrath was holding the rentals in trust for the owners and consequently the running of the statute of limitations did not commence until the trust relation was repudiated (b) Walrath acknowledged the indebtedness *Page 230
for the rentals by the check previously referred to and that the same constituted a sufficient written acknowledgment to amount to a waiver of the statute of limitations under section 11018 of the Code of Iowa, and (c) that the transaction between the parties constituted a running account under the provisions of section 11011 of the 1939 Code of Iowa, and that under such circumstances the statute of limitations was not operative.
It is the contention of the appellant in this court that John J. Walrath was holding the rentals in trust for the owners of the real estate. When a landlord's agent receives rent money from a tenant he receives the landlord's money and holds it in trust for the landlord unless the relation of debtor and creditor is created by some agreement, expressed or implied. Boss v. Hardee,70 App. D.C. 50, 103 F.2d 751, 754. No such agreement is shown here and the record shows that Walrath expressly stated that he was holding the rent money for the rightful owner or owners. He was, therefore, trustee of it for the benefit of whoever might be established to be the owner of the real estate.
[2] The statement found in 34 Am. Jur., Limitation of Actions, section 386, is applicable to the fact situation found in the instant case. It is there stated:
"Where the relationship between principal and agent is that of trustee and cestui que trust, there must, as in other cases of trust, be a termination of the relationship by a demand and accounting or by a repudiation or other step having this effect. Thus, the statute of limitations will not begin to run in favor of a bailee until he denies the bailment, and converts the property to his own use. Similarly, where a person holdspossession or receives rents in a fiduciary capacity, time doesnot run in his favor against the beneficiary; and where the person who has acted as agent for an intestate continues to receive rents, professing to do so in behalf of the persons who shall be ascertained to be heirs at law, the true heir may, notwithstanding the lapse of the statutory limitation period, adopt the agency and make good his claim to the land and accumulations of rent." (Italics supplied.) *Page 231
In 37 C.J., Limitations of Actions, section 177, it is stated:
"In respect to the running of the statute there is a marked distinction between a general or continuing agency and a special one. If there is a general or continuing agency the statute will not commence to run until the agency is in some way terminated; but if the agency is special, and relates to isolated transactions, in regard to which the agent received special authority from his principal, the statute will commence to run from each transaction, the right of action as to which will be barred or not according to the time which has elapsed from its respective date to the commencement of the suit. Unless the death of one of the parties occurs, the termination of a general or continuing agency cannot be effected so as to set the statute in motion, until an accounting is had or a demand for an accounting made and refused, or until there is an express repudiation of the agency communicated to the principal; and the demand must be one intended to put an end to the agency and to withdraw the authority conferred."
As heretofore disclosed by the statement of facts, it is shown in the instant case that there was a question as to whom the rental should be paid. Walrath continued to collect this money for the owners of the property but because of the dispute as to the respective interests of the claimed owners he did not deem it advisable to make a payment to either of the parties. His estate should not now be permitted to benefit by a plea of the statute of limitations where he was holding the rentals collected and refused to make any payments to anyone.
Bearing somewhat upon this case is the statement found in Leach v. Farmers Tr. Sav. Bk., 204 Iowa 1343, 1346, 1347,217 N.W. 445, 447:
"As soon as the bank, the agent, received the money or its equivalent in each case, there was an augmentation of the funds of the bank, and since the money passed into the hands of the receiver, there has been an augmentation of the funds in his hands. There was no specific direction in any of the *Page 232
three cases as to how payment was to be made by the bank, andtherefore the relationship of principal and agent was neverchanged into that of creditor and debtor." (Italics supplied.)
Under the facts as disclosed by the record in the instant case, and the authorities heretofore cited, it is our conclusion that the statute of limitations did not start to run in the instant case during the lifetime of John J. Walrath. By reason of this conclusion we necessarily must hold that the trial court was in error in its ruling that the recovery of the rentals which were collected by John J. Walrath during his lifetime prior to 1939 was barred by the statute of limitations.
Our determination of this phase of the case makes it unnecessary for us to comment on the other claimed errors as presented by the appellant. The cause is reversed. — Reversed.
GARFIELD, OLIVER, MANTZ, SMITH, HALE, MILLER, and MULRONEY, JJ., concur.
BLISS, C.J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429094/ | On or about June 9, 1925, one Margaret C. Barnett borrowed the sum of $2000 of the appellant and gave her notes therefor, payable June 9, 1930, with interest at 7 per cent, and secured the same by a real estate mortgage on certain property in the city of Des Moines. On June 15, 1925, the appellant sold said notes to Katherine E. Frawley and assigned said mortgage to her. The assignment was not placed of record. In January, 1927, the debtor Mrs. Barnett, by her agent, delivered to the appellant a check for $2000 payable to his order, and a second check for $11.67, the two checks covering the total amount then due on said two notes. At that time the appellant was advised that the money was paid to the appellant in satisfaction of said notes and mortgage. The appellant endorsed the checks and cashed them. On January 10, 1927, the appellant released said mortgage of record. The purchaser of the notes, Mrs. Frawley, had never authorized the appellant to collect the notes. At the time appellant received the money he executed a receipt as follows:
"Des Moines, Iowa, January 10, 1927.
"Received of Margaret C. Barnett $2,011.67 of which $2000.00 is the principal of the loan of the amounts secured by a *Page 459
mortgage on the No. 47 feet, the north 80 feet of lot 12 of the property described in the mortgage, Exhibit No. `3'. Signed,
"B.J. Cavanaugh."
The material part of the county attorney's information under which the appellant was prosecuted, is as follows:
"Information for Embezzlement by Bailee.
"Comes now Carl S. Missildine, County Attorney of Polk County, State of Iowa, and in the name and by authority of the State of Iowa, accuses B.J. Cavanaugh of the crime of Embezzlement by Bailee Committed as follows:
"The said B.J. Cavanaugh on or about the 10th day of January, A.D., 1927, in the County of Polk and State of Iowa, embezzled and fraudulently converted to his own use or secreted with intent to embezzle and fraudulently convert to his own use about $2000.00, delivered to him by Margaret C. Barnett which the said B.J. Cavanaugh received into his possession and control as bailee for Katherine E. Frawley."
The appellant argues but one proposition in this court, and under a familiar rule the other errors which are assigned and not argued are deemed waived. State v. Neifert, 206 Iowa 384; State v. Harding, 204 Iowa 1135; State v. Gibson, 204 Iowa 1306; State v. Ivey, 196 Iowa 270; State v. Derry, 202 Iowa 352.
The sole question for our determination upon this appeal, then, is: Under the undisputed facts, and under the allegations of the county attorney's information, can the defendant be held liable for embezzlement as a bailee?
Code section 13030 is as follows:
"Whoever embezzles or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently convert to his own use, money, goods, or property delivered to him, or any part thereof, which may be the subject of larceny, shall be guilty of larceny and punished accordingly."
Code section 13031 provides for the punishment for embezzlement by officers, agents, clerks, servants, and other similar persons.
Appellant places reliance upon the case of State v. Cooper,102 Iowa 146. In that action the defendant was accused of larceny by embezzlement. The case turned upon the question as to *Page 460
whether or not, under the facts disclosed, the defendant received the money which he was charged with having embezzled as the agent of a certain party. The case is not controlling in the instant case for the very good and sufficient reason that it was decided before the statute under which the present information was filed was enacted. In the Cooper case the indictment was brought under the section of the statute referring to larceny by an agent, which is now embodied in Code section 13031 above referred to. Code section 13030, providing for the punishment for embezzlement by a bailee, first became a statute in the Code of 1897, and the Cooper case had no reference to it.
The appellant also relies upon State v. Folger, 204 Iowa 1296. In said case we clearly pointed out the distinction between the two statutes, one providing the punishment for embezzlement by an agent, where proof of agency is indispensable, and the other providing for punishment for embezzlement by a bailee, where proof of bailment is indispensable. We there held that the offenses are separate and distinct.
Under the evidence in this case it clearly appears that the appellant did the very thing which the statute in terms declares is a crime. He fraudulently converted to his own use money or property delivered to him which might be the subject of larceny. It is not a material inquiry in this case as to whether or not the appellant was the agent of Mrs. Barnett, who owed the notes and who paid the money to the appellant, or was the agent of Mrs. Frawley, who owned the notes and to whom the appellant was in duty bound to pay the money. The simple situation is that the money at no time belonged to the appellant, nor did he have any rights therein. It was turned over to him for the specific purpose of paying the notes and mortgage in question. He gave his receipt therefor to the debtor. He thereupon converted the money to his own use. He is charged as being a bailee of the fund and with having converted the same. He is not charged as being an agent who converted money coming into his hands.
In Bergman v. People, 52 N.E. Rep. 363 (Ill.), the court, in considering a similar statute referring to embezzlement by fraudulent conversion by a bailee, said:
"The doctrine of this statute is that if `the owner parts *Page 461
with the possession voluntarily, but does not part with the title, expecting and intending the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back, and make the taking and conversion a felony, if the goods were obtained with that intent.'"
The general rule is that under statutes of this character punishing embezzlement by a bailee, it is unnecessary to prove agency, and that a bailee, within the meaning of such a statute, is one who fraudulently converts to his own use, money, goods, or property delivered to him by another party to be held by him and returned to the bailor or delivered to another party. As bearing on this question, see People v. Andrews, 229 N.W. 401 (Mich.); Compton v. State, 143 S.W. 897 (Ark.); People v. Thorne,148 Mich. 203; Burns v. State, 145 Wis. 373; People v. Smith,219 N.Y. 222; State v. Lyons, 80 A. 976 (Del.).
We find no error in the record of which complaint is made. The judgment of the district court is therefore — Affirmed.
EVANS, KINDIG, GRIMM, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429096/ | I. Under the evidence for the State, three persons were implicated in the fraud which is the basis of the prosecution. These three were the defendant and Hinshaw and Gray. Gray has been heretofore convicted, and is serving his sentence. Gray was a nonresident, and was the prime actor in the transaction. He became a witness for the State in this prosecution. Both the defendant and Hinshaw resided on and operated farms, respectively, in the near vicinity of Singleton's residence. Both of them also engaged more or less in the real estate business. The fraud perpetrated on Singleton was gross. Hixson's defense was that he himself was deceived by Gray, and that he did not himself know the fraud that Gray was perpetrating. This fraud consisted in delivering to Singleton a spurious deed for land in Missouri, where Gray lived, purporting to be signed and acknowledged by the owner thereof; whereas in fact no such land existed, and no such persons existed as the purported grantor and the purported notary public. The defendant's guilt or innocence turned upon the question whether he himself was cognizant of the fraudulent character of the transaction.
Many assignments of error are laid. One of these is that the 1. CRIMINAL defendant was prevented from having a fair trial LAW: new by improper conduct on the part of the attorney trial: pre- for the prosecution in the cross-examination of judicial defendant's character witnesses. The record upon cross- which this complaint is predicated may be set examination. forth briefly: *Page 433
The defendant called five character witnesses, each of whom testified, on direct examination, unequivocally to the good reputation of the defendant. The first of these witnesses was Luithly, a bank cashier. His cross-examination was as follows:
"I have heard about this particular deal, — yes. Q. You have heard of others before this time? You remember of hearing about the time he and Hinshaw tried to swindle the Gaines Brothers out of their stock of hardware here in Fairfield?
"Mr. Munro: Object to that question as insinuating and improper question.
"The Court: Overruled. (Exception.)
"Q. You never heard of that? A. No, sir. Q. Now, you know as a matter of fact you have heard it frequently said in that community that Hixson is a dead beat, — don't pay his debts? A. No, sir. Q. You know there are judgments against him over in Keokuk County that are not satisfied? A. I don't know.
"Mr. Munro: Objected to as an improper question.
"The Court: Sustained. (Exception.)"
Morgan, also a character witness, was cross-examined as follows:
"Q. Who did you ever hear say anything for him in that respect? A. Well, I heard Ott Smitter, for one man. He said he thought he was all right. That is one I remember of. Q. And when was that you heard that? A. That is since this case come up. Q. That is, since it became advisable to try to show that Hixson had a moral character?
"Mr. Munro: Object to that argument and insinuation, and I object to it on the part of counsel, and ask the court to admonish counsel as an attempt to prejudice the jury.
"The Court: Sustained. (Exception.)"
Meacham, another character witness, was cross-examined as follows:
"What I understand goes to make up moral character is being a good citizen, — various things, — being a good neighbor, and doing as you wish to be done by, and so forth and so on. Q. Paying your debts? A. Yes, sir. Q. You know, as a matter of fact, Hixson don't pay his debts? A. I think he does. Q. *Page 434
You know, as a matter of fact, there are judgments in Keokuk County against him that have been standing there for years that have not been paid?
"Mr. Munro: Object to that as improper question.
"The Court: Sustained. (Exception.)
"Q. Just tell us again, so Mr. Munro can hear it, what you say you understand goes to make up good moral character? A. I beg your pardon, Mr. Munro. Didn't you hear what I said?
"Mr. Munro: Yes, sir.
"Q. Say it again. A. I said, being a good citizen, and paying your debts, and doing as you wish to be done by. Q. Do you know that Hixson pays his debts? A. As far as I know, he does, as far as he can. It's been pretty hard, the last five years, for a man to pay all his debts. Q. You know, as a matter of fact, that he hasn't paid his debts? A. No, sir, I do not.
"Mr. Munro: The court sustained the objections to that once, and I ask the court to admonish counsel, as an attempt to prejudice the jury.
"The Court: Objection sustained. (Exception.)
"Q. Well, as a matter of fact, haven't you heard that he does have — A. I have not. Q. — debts that he hasn't paid? A. No, sir.
"Mr. Munro: I think that counsel has practiced law long enough to know when he is going into the face of the rulings of the court, and I ask the court to stop this attempt to prejudice the jury. I object to it as improper.
"The Court: Objection sustained. (Exception.)"
Spanier, another character witness, was cross-examined as follows:
"Q. All right. What does good character mean? What do you understand it to mean? You know, as a matter of fact, there are some people over in that community at least that frankly express themselves as thinking he is a cheat and a crook, don't you? A. Well, I don't know about that. Q. You don't know about that? A. No. Q. You know there are a number of people over in that community that frankly express themselves as thinking he is a liar and a dead beat? A. (No answer.) Q. You have heard people so express themselves over there, haven't you? A. I haven't yet. Q. You haven't yet? A. No." *Page 435
Hadley, the last character witness, was cross-examined as follows:
"Q. Have you ever heard any remarks about the trading activities of he and a fellow by the name of Hinshaw? A. I have heard something about them, — yes. Well acquainted with them. Q. I say, you have heard considerable talk about the slippery deals that —
"Mr. Munro: I object to that insinuation, and I move to strike that remark out of the record, — improper.
"The Court: Sustained as to the slippery part of it. (Exception.)
"Q. You have heard about different deals or trades that Hixson and Hinshaw were implicated in, haven't you? A. I have known they were in partnership sometimes in trades. Q. Well, you have heard some of those trades questioned, haven't you, Mr. Hadley? A. Well, possibly some. I don't hear as much, though as some other folks, probably, and I haven't heard a great deal."
The impropriety of much of this cross-examination is self-evident. That its natural effect upon the jury would be prejudicial, is also self-evident. That it was not inadvertent, but was persistent and purposeful, must also be said. The State used no character witnesses in rebuttal. We must assume, therefore, that the State had no evidence upon which it could impeach the general reputation of this defendant for good moral character. This fact seriously challenges the good faith of the cross-examination. In their effect upon the jury, some of these questions were equivalent to assertions of previous evil transactions and of bad character. These questions were persisted in in spite of the adverse rulings of the court. Upon this record, they were wholly lacking in justification. We have repeatedly condemned this practice, and have been compelled thereby too frequently to reverse the judgment below. State v.Van Hoozer, 192 Iowa 818; State v. Poston, 199 Iowa 1073, and the cases therein cited.
II. The defendant demurred to the indictment on the ground that it did not sufficiently describe the property obtained from Singleton. The descriptive part of the indictment was in these terms:
"A stock of merchandise consisting of groceries, dry goods, *Page 436
drugs, and fixtures of the value of one thousand dollars ($1,000.00) in lawful money of the United States of America, and of the personal property, goods, and chattels of the said E.A. Singleton."
The general rule is that an indictment which charges the obtaining of property by false pretenses must meet substantially the same requirement of description as is required in an indictment for larceny. A description sufficient 2. FALSE to individualize the offense charged, is PRETENSES: required. We think that the description in the indictment: indictment before us clearly falls short in that indefinite regard. The description before us is certainly identifica- no better than that considered in the case of tion of State v. Jackson, 128 Iowa 543. There is nothing property. technical about this ruling, as contended for by the State. Under our statutes, the requirements of an indictment have been reduced to a minimum. But this minimum of requirement must be obeyed. We are not holding it necessary to describe the separate articles that make up the stock of goods. But the stock of goods itself, as a unit, should have been in some manner described, so as to individualize it from all other stocks of goods of like character. To say that it belonged to Singleton was proper, as far as it went. But this of itself was not a sufficient description. We have always so held. A stock of goods is usually contained in some store, at some particular location. If such was the case here, then such location ought to have been given by some proper description. This would have localized and individualized the said stock of goods, and distinguished it from all others, whether they were owned by Singleton or not.
We hold, therefore, that the indictment was insufficient in its description.
Other features of the record we do not find it necessary to consider. For the reasons herein indicated, the judgment below must be reversed. — Reversed.
De GRAFF, C.J., and ALBERT and MORLING, JJ., concur. *Page 437 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429098/ | The county attorney's information filed in this case charged the defendant with illegal possession of alcoholic liquor on the 12th day of December, 1935, in Page county, Iowa, in violation of chapter 93-F1, at section 1921-f3. To this information the defendant plead not guilty. Upon trial of the case the State introduced evidence showing that on the 12th day of December, 1935, under a search warrant duly issued, the deputy sheriff, a constable and a police officer searched a gasoline station operated by the defendant and also the home of the defendant, both in the town of Essex in Page county; that in the filling station they found five bottles of alcohol; that they found eight gallons of whiskey in an upstairs room of the defendant's home, and also one bottle of whiskey in the basement thereof; that in an out-building in the yard of the defendant's residence they found several empty liquor bottles and jugs, which had minute quantities of liquor in them which smelled like whiskey; that all of the liquor thus found in both the filling station and at the home of the defendant was intoxicating liquor; and that there were no state liquor seals on any of the bottles containing such intoxicating liquor. The defendant introduced no evidence, but, at the close of the State's evidence, he filed a motion for a directed verdict in his favor on the following grounds:
"That the testimony and all evidence introduced by the State fails to prove that the defendant is guilty of the crime charged.
"That no evidence has been introduced showing that the liquor was purchased in the State of Iowa or for sale in the State of Iowa."
It is the contention of the appellant that, under the liquor laws of the state of Iowa, as they existed at the time of the seizure of the liquor here involved, the mere possession of intoxicating liquor in this state, in bottles or containers which do not bear the liquor seals of the liquor commission of the state of Iowa, is not a violation of the law; that the evidence introduced in this case went no further than to prove that the defendant had in his possession intoxicating liquor in bottles which did not bear the seals of the liquor commission of the state of Iowa; and that, therefore, there was not sufficient evidence to submit to the jury under which they might find the defendant guilty of the offense charged in the information. *Page 1206
Section 1921-f3 of chapter 93-F1 of the Code of 1935, which the defendant is charged with violating, provides that, —
"It shall be unlawful to manufacture for sale, sell, offer or keep for sale, possess and/or transport vinous, fermented, spirituous, or alcoholic liquor, * * * except upon the terms, conditions, limitations and restrictions as set forth herein."
As appears in the indictment, this section is a part of chapter 93-F1 of the Code of 1935, and section 1921-f1, which is the first section in said chapter, provides that, — "This chapter shall be cited as the Iowa liquor control act, and shall be deemed an exercise of the police power of the state, for the protection of the welfare, health, peace, morals and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose, and it is declared to be the public policy that the traffic in alcoholic liquors is so affected with a public interest that it should be regulated to the extent of prohibiting all traffic in them, except as hereinafter provided for in this chapter through the medium of an Iowa Liquor control commission by this chapter created, in which is vested the sole and exclusive authority to purchase alcoholic liquors, as defined herein, for the purpose of resale."
Section 1921-f18 of this chapter provides for the establishment and maintenance of liquor stores for the storage and sale of liquor in accordance with the provisions of the chapter. Section 1921-f22 of this chapter provides that no sale shall be made except by such liquor stores or distributors as provided in the chapter. Section 1921-f24 provides that no liquor shall be sold by such liquor stores or distributors except in sealed containers with the official seal or label prescribed by the commission on such container. Section 1921-f54 provides that the state liquor commission is granted the sole and exclusive right of importation into the state of all forms of alcoholic liquor, and that no person, partnership, club, corporation or association shall import any such alcoholic liquor.
We think it apparent from a reading of all the laws of this state, in regard to intoxicating liquors, that the act known as chapter 93-F1 of the Code of 1935, which is entitled "Iowa Liquor Control Act", intended to place the complete control of all traffic in intoxicating liquors in this state, except beer, under the Iowa liquor control commission; that, under the provisions *Page 1207
of this act, all intoxicating liquors, except beer, manufactured, sold, kept for sale, possessed within this state, or transported into this state, are subject to the Iowa liquor control commission, except as otherwise provided in the act; and that, except as otherwise provided in the act, before any such liquors legally can reach the hands of private individuals, they must be in containers bearing the seals of the Iowa liquor control commission.
It is undisputed that the defendant in this case had in his possession a large quantity of intoxicating liquors in containers which did not bear the seals of the Iowa liquor control commission. There was nothing in the evidence which tended to show that these liquors were possessed "upon the terms, conditions, limitations and restrictions as set forth" in the Iowa Liquor Control Act. No claim is made as to the invalidity of any provision of the liquor control act, but it is contended by the appellant that, under section 1921-f24, the prohibition of possession of such alcoholic liquors in containers which do not bear the seals of the Iowa liquor control commission applies only to liquor bought or sold in this state. The provision referred to is that "possession of alcoholic liquors bought or sold in the state which do not carry such label or seal shall be considered a violation of this chapter." It is argued that because this provision, in regard to possession of intoxicating liquors without seals, refers only to such liquors as are bought or sold in this state, there is no prohibition of the possession of intoxicating liquors without seals, if such liquors are not bought or sold in this state but are brought into this state from the outside. With this contention of appellant we cannot agree. The liquor in the possession of the defendant was either bought within this state or it was brought into the state from outside of the state. If it was brought into the state by the liquor control commission it would have to bear the labels or seals of the commission before it could reach the hands of a purchaser. The fact that these liquors did not bear the seals of the Iowa liquor control commission is evidence that they were either bought in this state in violation of section 1921-f24, or that they were brought into this state in violation of section 1921-f54. State v. Arluno, 222 Iowa 1, 268 N.W. 179, and cases therein cited. In fact, while it is not shown in the evidence, it is admitted in appellant's argument that these liquors were bought in Missouri and brought into Iowa from Missouri. In either event, such liquors were in the possession of the defendant *Page 1208
in violation of section 1921-f3, and the possession thereof under said section did not come under any of the terms, conditions, limitations and restrictions set forth in the act.
Under the plain provisions of section 1921-f3, it is made unlawful for any person to "possess and/or transport * * * alcoholic liquor * * * for any purpose whatsoever, except upon the terms, conditions, limitations and restrictions" as set forth in the liquor control act. We see no reason why this provision should receive any different construction than the provision in regard to possession, contained in section 1924 of the Codes of 1924, 1927, 1931 and 1935. That section provides that, "no one * * * shall * * * have possession of any intoxicating liquor, except as provided in this title." Under that statute it was held that the mere possession of intoxicating liquor was a violation of the statute. State v. Boever, 203 Iowa 86, 210 N.W. 571; State v. Wareham, 205 Iowa 604. 218 N.W. 145; State v. Bamsey, 208 Iowa 796, 223 N.W. 873. It was further held under that statute that the proof of possession of intoxicating liquor made a case for the jury; that the burden was not upon the state to prove that such possession did not come within any of the exceptions referred to in the statute; and that the burden of proving that the possession did come within any of such exceptions was upon the defendant. See State v. Boever, 203 Iowa 86, 87, 210 N.W. 571, 572, wherein it is said:
"There is no reason for the application of any rule of construction. The prohibition of the law is plain that no one shall keep for sale or have possession of any intoxicating liquor except as provided by law. The defendant, as the possessor of liquor, was entitled to show, in defense, that the liquor found in his possession was legally in his possession. In brief, the statute prescribes certain defensive matter (section 2, chapter 42, Acts of the Forty-first General Assembly) which, if established by the defendant, constitutes a defense to the accusation. No obligation rests upon the State to allege and prove the provisos, or to negative the exceptions in the instant indictment. See State v. Kendig, 133 Iowa 164, 110 N.W. 463."
In the instant case, the possession by defendant of intoxicating liquors in quite large quantities was shown in the evidence and admitted by defendant in argument. No defense was plead and no evidence offered or introduced tending to show that the *Page 1209
liquors involved came within any of the exceptions to the liquor control act. No claim is made that any of the provisions of the Iowa Liquor Control Act is invalid. The only defense offered is that the provision of section 1921-f24, in regard to the possession of intoxicating liquors without seals, applies only to the possession of such liquors as are bought or sold in this state, and that there is no evidence tending to show that these liquors were bought or sold in Iowa. The evidence was amply sufficient to show that the possession was in violation of the plain provisions of the Iowa Liquor Control Act and to sustain the conviction of the defendant in this case. — Affirmed.
RICHARDS, C.J., and MITCHELL, ANDERSON, HAMILTON, PARSONS, and STIGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429102/ | John Phillips, at the time of his death in December 1934, was a member of the defendant brotherhood. The home office of the defendant, an affiliate of the American Federation of Labor, is in Cincinnati. Defendant is referred to in the record as the Grand Lodge, which had subordinate lodges in various parts of the United States. Mr. Phillips, a resident of Council Bluffs, joined the Chas. M. Owens' Lodge Number 1390 of Red Oak, Iowa, in January 1932, which local lodge was a subordinate of the Grand Lodge. The defendant maintained *Page 866
a "Death Benefit Department" which was governed by rules and regulations and was under the immediate supervision of the secretary-treasurer of the Grand Lodge.
The rules of the department provided that in order to become a member of the department it was necessary that a member of the Grand Lodge file a written application for membership in the death benefit department, and, on becoming a member, he received a certificate which agreed to pay on his death the sum of $300 to the person named as beneficiary. It is conceded that Mr. Phillips, a member of the defendant organization, did not make a special written application for membership to the department and never received a certificate agreeing to pay him $300.
The dues to the Grand Lodge were $1.25 per month payable quarterly. This sum included monthly dues, or premiums, to the death benefit department for insurance in the sum of thirty cents and the monthly dues to the Grand Lodge in the sum of ninety-five cents. A member of the Grand Lodge was required to pay the full monthly dues of $1.25, which included the thirty-cent premium for the insurance, though he was not, technically, a member of the department because of failure to file the application for membership therein. The constitution of the Grand Lodge, of which Mr. Phillips was a member, provided that all members of the brotherhood applying for membership in the death benefit department after October 1, 1931, would be given certificates in the amount of $300, regardless of age or physical disability.
Plaintiff, as administratrix of the estate of decedent, brought this action to recover from defendant the sum of $300 as a death benefit. Defendant sought to avoid payment on the ground that Mr. Phillips was not a member of the death benefit department, and as there was no contractual relation between him and the department,
there was no liability for death benefits to plaintiff. Plaintiff filed a reply pleading estoppel and waiver. A jury was waived and the cause tried to the court which entered judgment against the defendant for $300 and interest. Defendant appealed.
[1] Not only the lodge dues, but also the insurance dues were payable to the Grand Lodge and not to the department. Defendant required and accepted the premium for death benefits from all members regardless of whether they had made *Page 867
formal application for membership in the department. No physical examination was required and the record shows that any member of the Grand Lodge was admitted to membership in the department on application. As stated in the constitution of the defendant, "all members of the Brotherhood applying for membership in the Death Benefit Department will be given certificates in the amount of $300, regardless of age or physical disability". It is difficult to understand how defendant could in good faith believe that a member of the Grand Lodge, compelled to pay the insurance premium as a member of the Grand Lodge, holding a membership card in the Brotherhood which entitled him to all the benefits and privileges of the Brotherhood, if all the dues were paid, would not reasonably be of the opinion that he was entitled to the benefits and privileges of the Brotherhood for which he was paying. One of the main benefits and privileges of the Brotherhood is the insurance feature and the department was maintained by the Brotherhood for the benefit of its members. However, this technical and well-concealed defense of failure to apply for membership in the department is available to defendant in the absence of avoidance of the defense by the plaintiff.
[2] A.W. Carlson was secretary of the local lodge at Red Oak, and as such secretary, appointed Dan Sowden of Council Bluffs his assistant secretary whose duty was to collect dues, including death benefit dues, from members of the local lodge residing in Council Bluffs and forward them to Mr. Carlson. Mr. Carlson was the agent of the defendant to collect all dues and forward them to the defendant.
Mr. Phillips became ill in July 1934 and passed away in December 1934. The regulations of the Grand Lodge provided that while a member was ill he was relieved of the regular Grand Lodge dues and was required only to pay as dues, in order to keep in good standing in the lodge and department, the sum of thirty cents a month, which sum was the insurance part of the monthly dues required.
When Mr. Phillips became ill in July, Mrs. Phillips at once went to Mr. Sowden in regard to "keeping up the death benefits" and paid him ninety cents on behalf of Mr. Phillips for the quarter which included July, August and September. Sowden sent this sum of ninety cents to Carlson. Carlson, under the rules of the Grand Lodge, was required during the first *Page 868
quarter a member was ill to advance the regular dues from the local lodge funds and reimburse the local lodge for the advancement in his next quarterly report to the defendant.
When Carlson received the ninety cents as the insurance premium paid by Phillips to Sowden he sent to the Grand Lodge in the latter part of September the full quarterly dues from Phillips in the sum of $3.75 but for some unexplained reason failed to state in his report that Mr. Phillips was sick and was paying only the premium for death benefits. It was the duty of Carlson, however, to advise the defendant of the facts. Carlson, a witness for the defendant, testified:
"I told Mr. Sowden to collect 90c a quarter. I knew at the time I received 90c a quarter that Mr. Phillips was ill and just paying 90c a quarter for death benefits. It is the secretary's duty to advise the Grand Lodge as to a member of a subordinate lodge who is sick or out of work. I never reported to the Grand Lodge at any time that Mr. Phillips was sick."
Of course, if Mr. Carlson had performed his duty, defendant would have known that Phillips was ill and paying only the dues for insurance benefits. Mr. Carlson, testifying for defendant, said:
"I suppose if I had sent in the 30c to the Grand Lodge just as Mr. Sowden remitted it to me for the months of July, August and September, the Grand Lodge would have known back there and would have had actual notice that Mr. Phillip was just paying his death benefits and they would have sent out an application for him to fill out and sign and then he would be entitled to death benefits. The Grand Lodge would have sent out an application for him to sign, to fill out and sign it, then he would be entitled to death benefits."
Mr. Sowden testified for the plaintiff, without objection, that "all a member would have to do to get the death benefit would be to send in his name and application, no physical examination is required". The constitution of defendant states:
"All members of the Brotherhood applying for membership in the Death Benefit Department after October 1, 1931, will be given certificates in the amount of three hundred ($300.00) dollars, regardless of age or physical disability."
Mr. Phillips, at the time he became a member of the Grand *Page 869
Lodge in 1932, was given a membership card, good until September 30, 1935, and also received a traveling card which stated as follows:
"This is to certify that the Bearer hereof is a member of Chas. M. Owens Lodge No. 1390 and is entitled to all the benefits and privileges of the Brotherhood, provided proper stamps appear on reverse side indicating dues paid in full."
At the time of Mr. Phillips' death, the traveling card showed that all dues had been paid in advance up to and including December 1934. Phillips paid to Carlson thirty cents a month for insurance dues at the beginning of each month from July 1934 to January 1935 and he was in good standing in the local and Grand Lodge because of such payments at the time of his death.
In collecting the dues, Carlson was the agent of the defendant and not of Mr. Phillips. Payment to Carlson was payment to the Grand Lodge, which was charged with knowledge had by Carlson that Phillips was ill and was paying dues for death benefits.
The acceptance of the monthly insurance dues for 6 months by Carlson from Phillips was the acceptance of the defendant. The defendant and not the plaintiff must bear the responsibility for the failure of its agent, Carlson, to perform his duty and report to it the fact that Phillips was ill and paying only the required dues for insurance. Defendant cannot be heard to say that its agent, Carlson, did not know that Phillips had not made a formal application for membership in the department. Defendant, charged with knowledge of its agent, knew that plaintiff had not fulfilled the technical requirement of applying for membership in the death benefit department, and, furthermore, if Carlson had performed his duty to his principal, defendant would have been apprised of the situation.
[3] Phillips held a membership card from defendant stating that he was entitled to all the benefits and privileges of the Brotherhood provided that he paid his dues. He did pay his dues. In good faith he tendered the premium for the insurance feature of his lodge for six successive months, which dues were accepted. Palpably, by accepting the premium, defendant led decedent to believe that he would receive the consideration for the payment, that is, the death benefits. The conduct and acts of *Page 870
defendant lulled Mr. Phillips into a sense of security and contained all of the elements of estoppel.
[4] Furthermore, the repeated acceptance of these monthly premiums by defendant waived the technical requirement of an application. In the case of Fahey v. Ancient Order of U.W.,187 Iowa 825, 831, 174 N.W. 650, 652, the insured made belated payments of assessments to the financier of the local lodge. The court stated:
"A waiver is the intentional relinquishment of a known right, or such conduct as warrants an inference of such relinquishment; and, where conduct is relied upon to constitute a waiver, it must appear that the insured was induced by the association to do or omit some act which he would not otherwise have done or omitted. The financier testified that he made monthly reports and remittances to the proper officer of the Grand Lodge. Though an officer of the subordinate lodge, he was, in collecting and remitting assessments and dues levied for the maintenance of the association, its agent, and it is to be assumed to have been advised of what he did in the discharge of his duties. Trotter v. Grand Lodge, 132 Iowa 513, 109 N.W. 1099, 7 L.R.A. (N.S.) 569, 11 Ann. Cas. 533; Davidson v. Temple of the Supreme Tribe, 135 Iowa 88,111 N.W. 46; Wood v. Iowa Legion of Honor, 133 Iowa 33,110 N.W. 164; Conkling v. Knights Ladies of Security, 183 Iowa 665,166 N.W. 384." See Clark v. Supreme Council, 200 Iowa 699,205 N.W. 355.
The case is affirmed. — Affirmed.
MITCHELL, C.J., and SAGER, MILLER, OLIVER, HALE, HAMILTON, and BLISS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429104/ | The plaintiff and appellant owns a tract of about 40 acres of land in the northwest part of a quarter section in Des Moines County. The appellees Swiler hold the title to 1. EASEMENTS: the remainder of the quarter section, and the creation, other appellees are purchasers under contract existence, from them. There is no public road to and appellant's land. The main road between Fort termination: Madison and Burlington runs diagonally through subsequent the land of appellees. The controversy is over unity of a claimed right of way across appellees' land title: from the public highway to the land of effect. appellant. The following plat shows the general situation and the location of the claimed right of way.
[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 1135
Appellant contends that he is entitled to the right of way in question, (1) as a way of necessity, and (2) by prescription. The appellees insist that appellant has a right of way conveyed by a former owner of the land to a remote grantor of the plaintiff's, leading south from the point where appellant's south line crosses the north and south middle line of the southwest quarter of the quarter section, to the public road; and they deny all claim on his part to the right of way claimed by him.
I. The claim to a right of way of necessity is based on the following facts: In 1852, title to so much of the tract now owned by appellant as lies in the west half of the west half of the quarter section was acquired by Mary E. Parr, and, in 1857, her husband, Christopher Parr, acquired title to so much of such tract as lies in the east half of the west half of the quarter section, from George Chandler, who at that time owned the land between it and the public road. The appellant holds title to the whole tract so held by the Parrs, by mesne conveyances from the trustee of Christopher and Mary E. Parr, and appellees' title is derived from George Chandler.
Appellees' denial of a right of way of necessity is predicated on the contention that, at the time Mary E. Parr acquired her title, she had the right of way above referred to from the southeast corner of her land south to the public road. The record in respect to this road or right of way is as follows: In 1844, one Bailey held title to the west half of the west half of the quarter section, and conveyed to one Currie that portion thereof now belonging to appellant, and by the same deed conveyed "the privilege to construct a road 30 feet wide from the S.E. corner of the tract above conveyed due south until it intersects the road leading from Vance's ferry to Burlington." This is the same public road with which the right of way claimed by appellant connects. Currie, in 1845, conveyed the same tract to Brown, and the latter, in 1846, conveyed it back to Bailey. Neither of these conveyances contained any reference to the right of way previously conveyed by Bailey to Currie.
In 1847, Bailey conveyed so much of the west half of the west half of the quarter section as had not been conveyed by him to Currie, to George Chandler, with no reservation of a right of way thereover. In 1849, Bailey conveyed the same land previously deeded to Currie to one Green, and Mary E. Parr acquired *Page 1136
title thereto by conveyance from Green. Neither of the last mentioned deeds refers to a right of way.
It thus appears that Bailey conveyed a portion of the tract now owned by appellant, and a right of way across other land then owned by him; that he subsequently received a conveyance of the same tract; that he thereafter conveyed the tract over which such right of way had existed, — the servient estate, — without reservation, and later conveyed the tract originally owned and reacquired by him, — the dominant estate, — without mention of the right of way.
It is conceded that, after the conveyance to Currie of the one tract and an easement in the other, the easement ran with the land, and would pass by a conveyance that described only the land. Cassens v. Meyer, 154 Iowa 187. It is, however, contended by appellant that, on the reconveyance of the dominant estate to Bailey while he was still the owner of the servient estate, there was a merger, by reason of the unity of title in fee to both tracts in Bailey, with consequent unity of possession and enjoyment, and an extinguishment of the easement. This would be true so long as Bailey continued the owner of both tracts.
"No easement exists so long as there is a unity of ownership, because the owner of the whole may, at any time, rearrange the qualities of the several parts." Marshall Ice Co. v. LaPlant,136 Iowa 621.
But Bailey, by the conveyance to Chandler of the tract in which the easement had existed, severed the dominant from the servient estate. In the case last cited, we further said:
"But the moment a severance occurs, by the sale of a part, the right of the owner to redistribute the properties of the respective portions ceases, and easements or servitudes are created, corresponding to the benefits and burdens mutually existing at the time of the sale. This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude upon it."
See, also, Carrigg v. Mechanics Bank, 136 Iowa 261; Teachout v.Duffus, 141 Iowa 466; Keokuk E.R. P. Co. v. Weisman, 146 Iowa 679.
While the record is not clear as to when the use of the way *Page 1137
from the land now owned by appellant south to the public road began, or whether there were visible evidences of the existence of the way at the time Bailey conveyed the servient estate to Chandler, there are other circumstances from which, we think, it is clear that Chandler took the land conveyed to him burdened with the easement. Obviously, the most important of these circumstances is the fact that the appellees, who derived their title from Chandler, so concede. This alone would seem to meet the objection that, at the time of the conveyance, there were no visible evidences of the existence of the easement. The original grant of the easement by Bailey to Currie was of record. The description of the property conveyed in the deed to Chandler referred to the conveyance to Currie, and to the land therein conveyed as "Currie's land," although it had previously been reconveyed to Bailey. Bailey, after the conveyance to Chandler, had no way over his own land to the public road. There is testimony that this way was in use 50 or 60 years ago. Its use by former owners of the land now belonging to appellant, and by appellant himself, is shown to have been continuous, as occasion required, and to have been without dispute or interference by Chandler, who maintained a gate where the road entered the public highway. Owing to the topography of the land, the fact that a creek had to be forded, and the presence of a sand hill, the use of the road was very largely for the purpose of reaching the south part of the land now owned by appellant, from the public highway. It is doubtless true, as contended by appellant, that the right of way claimed by him lies over better ground, and would afford him a better road to his buildings. But the creek and the sand hill on the road to the south are both on the land owned by appellant, and between the south boundary thereof and his buildings. Work has, from time to time, been done on the road at these points by former owners. So far as appears, there are no natural difficulties or obstructions where the road is on the land of appellees, and it affords good access to appellant's land. It appears from the plat that the south road is on appellees' land for about 300 feet, — one witness said 200 feet, — while the road claimed by appellant traverses the land of appellees in a diagonal and somewhat winding course for over a quarter of a mile, and crosses parts of three 40-acre tracts. The right to a *Page 1138
way of necessity depends, as the term itself shows, on necessity, — not on the mere convenience of the claimant.
It is apparent that, unless Bailey's grantee, Green, and Mrs. Parr had a right of way over the tract conveyed by Bailey to Chandler, they had, as a matter of right, no way of access to their land. We are clearly of the opinion that there was a right of way from the tract owned by Mrs. Parr south to the public road at the time her husband acquired the adjoining tract from Chandler; that this afforded a way from the whole tract owned by them to the public highway; and that the appellant, holding title through the Parrs, is not entitled to another way as of necessity over the lands held by appellees, from Chandler. This conclusion is not in conflict with anything said in Rater v. Shuttlefield,146 Iowa 512. In that case, the land which it was claimed afforded an outlet had been subsequently acquired, and the way so afforded was substantially impassable.
II. The claim of a right of way by prescription has no evidence to support it, other than that of use. It is the contention of appellant that a right of way by prescription was acquired prior to the enactment of Section 2031, Code of 1873 2. EASEMENTS: Section 10175, Code of 1924), requiring adverse prescription: ossession of an easement to be established by permissive evidence distinct from and independent of its use. se. See Baldwin v. Herbst, 54 Iowa 168;McAllister v. Pickup, 84 Iowa 65; Ange v. Slitsinger, 96 Iowa 181. While much use of a roadway substantially on the line as claimed by appellant is shown, beginning at an early date, before the land was fenced, and continuing down to about the commencement of this action, by the proprietors of, and tenants on, the land now owned by appellant, as well as others, upon the whole record it is fairly shown that it was merely permissive on the part of the owners, and not under any claim of right. The appellant testified that he was told, before he bought the land, by Bertleshoefer, one of the prior owners, that Chandler, appellees' predecessor in title, had said:
"You do not need any road. You got one now, to travel as long as I live; and after I am gone, it will go to my ancestors (?), and it will be the same."
Bertleshoefer testified that Chandler had refused to sell him a road, and had said: *Page 1139
"As long as I live, you will have a roadway; but stay as near in one track as you can. When I am gone, I do not think you will have any trouble with Mr. Swiler."
He said that this was what he told appellant. There was other uncontradicted testimony that Root, appellant's immediate grantor, had said, when trying to sell the place, that there was no right of way; that this was told to appellant before he purchased, and he said that was what he understood. There is further testimony that, on one occasion, when appellant was using the south road, he said that Swiler would not "let him go through down there;" that he did not want any trouble with them, and rather than have any trouble, "he would just go around." This was not denied by appellant. He admitted that at one time a lock was put on the gate, and a key given to him. Not only was the use of the road merely permissive on the part of the owners, but it would appear that appellant, both before and after he purchased the land, understood this to be true.
We agree with the trial court, and the judgment is — Affirmed.
EVANS, C.J., and STEVENS, FAVILLE, and De GRAFF, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429105/ | The safe in a law office in Ottumwa was robbed and a small steel securities box, which was in the safe, was carried away by the robbers. This box contained securities owned by defendants, consisting of twenty registered United States Savings Bonds in the sum of $1,000 each, and certain recorded stock certificates for shares of stock of the value of approximately $5,200, in four corporations. Three days later the plaintiff found the box lying in a creek under a highway bridge outside Ottumwa. When the box was opened by plaintiff, the bonds and stock certificates, which were still in the box, were removed and dried out and then turned over to the sheriff who turned them over to the defendants. Plaintiff brought this suit for reward in the sum of ten per cent of the value of said bonds and shares of stock under the provisions of section 644.13, Code, 1946, which provides, so far as material here, as follows:
"As a reward * * * for finding lost goods, money, bank notes, and other things, before restitution of the property or proceeds thereof shall be made, the finder shall be entitled to ten percent upon the value thereof."
The case was tried upon a stipulation of facts which stated, "the bonds were each on the face of the bond registered in the name as follows: `Mr. George M. Foster, Guardian of the Estate of Mr. Gordon H. Bell, a minor.'" The stipulation also showed there was endorsed on the face of each bond "Not Transferable" and that "they were payable only to the owner named thereon * * * or the executor or administrator of the estate of the owner named on the face thereof." *Page 764
The stock certificates were recorded in the name of the defendant guardian on the books of the corporations and it was admitted no transfer of the shares could have been made on the corporations' books without his signature and without his executing other supporting documents.
It was admitted that letters and telegrams went to the corporations and the United States Treasury on the day of, and the day after, the robbery, reporting the theft, and that by fulfilling certain requirements defendants could have obtained from the corporations and the United States Treasury, duplicate certificates and bonds for those reported lost, stolen, or destroyed.
Upon this record the trial court held for defendants.
The trial court, in the course of his written opinion in the case, said:
"What if anything did the defendants lose by the theft of the securities? Did the defendants lose thereby the obligation of the U.S. Government to pay the amount of money loaned to it by the defendants, together with interest thereon? Did the defendants, by the theft of the certificates of stock, thereby lose their interests in the respective companies represented by such certificates? * * * Obviously the obligation of the Government to repay the loan made to it by defendants was not `taken [away] from defendants.' Certain evidence of that obligation was lost to the defendants, but by the regulations of the treasury department, other evidence of the obligation was recognized by the department. * * * The same may be said for the certificates of stock ownership. Only certain evidence of the ownership of a part of the corporation was stolen or lost. Each of the corporations recognized other and secondary evidence of such ownership. * * * Assuming that the statute applies to securities of the nature here involved, the only loss was that of the evidence of the ownership, and the record is entirely silent as to the value of such evidence. Such value would necessarily be the fair and reasonable market value thereof, and it is difficult to perceive how the mere evidence of the property ownership represented by these nonnegotiable securities would have any market value. Certainly neither the amount of the *Page 765
government obligation owed defendants, nor the value of the shares owned by the defendants in the respective corporations is the measure of the value of the evidence thereof lost to defendants and found by the plaintiff."
We agree with the reasoning and conclusion of the learned trial court. Without deciding whether such securities are within the statute providing for a reward for "lost goods, money, bank notes, and other things" (section 644.13, supra) we hold the plaintiff would not, under the statute and under this record, be entitled to a reward based on the obligation of the bonds or the market value of the shares of stock. The statute only reachesthings that are lost. Since the bond obligations and corporateshares were not lost, the plaintiff was not a finder of such obligations and corporate shares; hence he was not entitled to the reward claimed.
Both sides cite Flood v. City Nat. Bk., 218 Iowa 898, 253 N.W. 509, 95 A.L.R. 1168. In that case we held the finder of the money taken in a bank robbery was entitled, under this statute, to ten per cent of the money he restored to the bank. The opinion holds "stolen money" was "lost money" within the meaning of the above statute and the statute was constitutional as against the charge that it deprived a person of his property without due process of law. This opinion seems to be the only decision of any court which has passed squarely on the constitutionality of a statute providing for a reward to the finder of lost property. See annotation 95 A.L.R. 1176.
The Flood case is easily distinguishable from the instant case. The property involved in the Flood case was money, which is specifically mentioned in the statute, and the loser could not stop payment or secure substitute bills. The loser lost the government obligation with the bank bills that were stolen and it was only by restoration of the stolen bills that the bank recovered the lost government obligations. Here the bonds and stock certificates were not indispensable to the government obligations and corporation shares. They were of no value to the finder. They would soon have been rendered completely valueless by the issuance of duplicates to the defendants. Whatever might be our holding if the propositions decided in the Flood case *Page 766
were again before us as original propositions, we hold the opinion is not authority for the plaintiff's contentions in this case.
The judgment of the trial court is affirmed. — Affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429106/ | After the submission of the case to the trial court, the plaintiff, without notice and without leave of court, filed a purported amendment to her petition, which she brings here by way of amendment to the abstract. Defendants move to 1. APPEAL AND strike this amendment to abstract, on the ERROR: ground, in substance, that the purported record: amendment to petition is merely an intrusion unallowable into the record, and has no proper place there. amendment. The motion is sustained, and the purported amendment will be given no consideration.
To assist in the application of a lengthy detailed statement of the issues and evidence that seems to be necessary, assuming that the reader has a general acquaintance with the former opinion,Fleming v. Fleming, 194 Iowa 71, we preface the following résumé:
Defendants' main contention is that plaintiff's interest should be set off in kind, and that there is no issue upon which a personal judgment may be rendered. The statute reads (Code, 1897, Section 3364):
"The property itself shall be distributed in kind when that can be satisfactorily and equitably done. In other cases, the court may direct the property to be sold, and the proceeds distributed."
In the present case, the decedent and his defendant copartners were possessed of no individual holdings. All of their property was partnership property. The interest of each was *Page 1255
2. APPEAL AND merely his share of the residue after ERROR: liquidation of the partnership affairs. It was review: undoubtedly the policy of all the partners, parties before the death of Charles, not only to holdall entitled to of their property in partnership, but to exclude allege widows and heirs (other than themselves) from error: possible participation or interference in contradic- management. This policy was tenaciously adhered ting trial to by defendants after the death of Charles, theory. even to the extent of denying to plaintiff any property interest in the partnership assets. The defendants were not only surviving partners, but were the heirs of the deceased member. One of them is the administrator. Defendants were in possession of all property interests held by deceased at the time of his death. Their relationship to plaintiff was fiduciary. Their policy and purpose was to retain and themselves manage the property. If they should be defeated in their claim of exclusive ownership, their attitude was not to liquidate the partnership affairs, but, regardless of plaintiff's one-twelfth interest (as assumed), to continue the partnership business. The statute not only did not compel the plaintiff to accept or the defendants to insist upon division in kind, but, under the facts presented here, was inapplicable; for there was no property that might be sold, except plaintiff's one third of decedent's one fourth in the residue of the partnership assets after liquidation. The parties were at liberty to make their own issue and to adopt their own scheme of distribution. Defendants continued the business as if they were sole proprietors, sold and readjusted properties, and largely readjusted methods of holding and accounting. In this situation, plaintiff's petition asked that her interest in all the partnership property be decreed to be held in trust for her, and the amount determined and impressed upon all of it. The defendant administrator, who undoubtedly voiced the sentiment of his codefendants in his report and amended inventory, filed after their main contention was defeated, adopted, as administrator, the plaintiff's claim (though not altogether consistently), and asked for its determination. The suit in equity and the proceedings in probate were thereupon consolidated. Before consolidation, the trial of the suit in equity had been begun, on the theory that the matter to be determined, if defendants' claim to the property was decided adversely to them, *Page 1256
was "valuation of the items" of the property, — the assets and liabilities. The partnership property was held and the partnership conducted in different names and capacities, the more important part being the "Fleming Brothers, Inc.," a corporation which was owned exclusively by the partners, and which was merely an instrumentality for conducting their business. After the consolidation of the equity suit and the probate proceedings, the trial of the cause was resumed, and the case was presented to the referee, and by him determined pursuant to the theory adopted at the beginning, that plaintiff's interest should be valued and a trust for it impressed upon the partnership assets. One of defendants' contentions here is:
"As long as Fleming Brothers, Incorporated, was making money, during the fat years from 1916 to 1923, the judgment gives the plaintiff the benefit accruing to a stockholder; but suddenly and arbitrarily, at a convenient date, April 1, 1925, after the corporation has been operating at a deficit, due to a general business depression and consequent vacancies, the whole allowed claim is gallantly switched over into a fixed money demand, as of April 1, 1925, and made to draw interest, like any money debt. * * *"
A perusal of the record is convincing that this statement is a reflection of the defendants' own attitude toward the case, and that it was they who, after the referee's report, changed their position, and demanded a division in kind, — a division which, by reason of their persistence in continuing the partnership business after the death of one of the partners, and after the consequent legal dissolution of the partnership, and by reason of change in methods, could not be made satisfactorily and equitably. The parties were at liberty, not only to frame in the first instance, but to interpret the issues which should be tried. This they have done, and they are bound by practical issues thus formed and tried. The complications of the case demand rather a tedious discussion of the issues and evidence.
Plaintiff and decedent were married in 1880. Decedent died intestate January 15, 1916. There was no surviving issue. Decedent's only property is that involved in the present controversy.
The petition alleges that the husband died seized of an *Page 1257
undivided one-fourth interest in all the partnership property, "consisting of the stock of the corporation styled Fleming Brothers, Incorporated, and certain real estate, and that her husband carried $58,000" life insurance; that the surviving brothers claim to own all of the partnership property, under three written contracts set out and construed in Fleming v.Fleming, 194 Iowa 71. The petition alleges that:
"The three brothers of her [plaintiff's] deceased husband, who are named as defendants herein, claim that said stock is theirs, and turned in and had canceled each certificate of 2,500 shares, and have turned in and marked canceled certificate of 2,500 shares which this plaintiff alleges was the property of her deceased husband, and have had reissued to themselves the 10,000 shares in certificates of one third of 10,000 shares to each of them."
It alleges that defendants have collected the life insurance "and have converted the same to their own use;" that plaintiff's "husband died seized of an undivided one-fourth interest in all of the property of the Fleming Brothers, as a partnership, which partnership property includes all of the capital stock and property of Fleming Brothers, Incorporated, and also $58,000 of life insurance, and real property standing in the name of her deceased husband, all of which is claimed by the three brothers of Charles Fleming, deceased." The prayer of the petition is that the contracts be construed and be decreed to have no binding effect upon plaintiff; that all of the property now held by the defendants to the extent of plaintiff's interest be held in trust for her; that the amount of her interest as surviving widow of Charles Fleming be fixed and determined by the court, and be impressed in that amount upon said property in the hands of the defendants; and that plaintiff be decreed all such other, further, and different relief as to the court may seem just.
The answer alleges, in substance, that decedent was, in effect, one of four joint tenants, — not a copartner, — and that the interest of decedent ceased at his death, and plaintiff was not entitled to dower therein; that the insurance upon the life of decedent was payable to the individual defendants, and that plaintiff had no interest therein.
Defendant John A. Fleming was, in due course, appointed *Page 1258
administrator, and, on April 16, 1916, filed inventory. The inventory stated that there was no cash on hand, no funds on deposit, no accounts or bills receivable. It described the joint operations and property ownership of the defendants and the deceased under the name Fleming Brothers, setting forth the three contracts.
"In all the financial and domestic economies and enterprises the said four brothers at all times throughout the period of their business activities, and throughout the active life of Charles F. Fleming, have acted as joint tenants * * * that as such surviving contracting parties they [defendants] are the joint owners of all the property rights and interest of which the said Charles Fleming, deceased, was possessed * * * and * * * claimed to be the absolute joint owners of all the said property * * * that there was issued to Charles Fleming in his lifetime 2,500 shares of the stock of Fleming Brothers." (A full purported explanation of which follows.) "There are no right or interests of any sort belonging to the estate of Charles Fleming, deceased, save and except his exempt household effects * * * That the business policy of the Fleming Brothers as such joint owners is such that any and all known personal indebtedness, including the funeral expenses * * * has been paid and all proven claims against the estate will be paid by the survivors. * * *"
On June 18, 1924, there was filed "Report of John A. Fleming, Administrator," which made reference to the opinions of this court in the case and:
"That pending said litigation the surviving brothers have continued and are now continuing to operate and control the property formerly belonging to said four brothers and they understand that their right to do so has not been disturbed by the said court decision except to the extent of requiring them to turn over to Anna B. Fleming one half of the interest of Charles Fleming in all of the property jointly owned by said Fleming Bros. at the time of his death and to account to her therefor.
"To the end that such a settlement can be effected, your administrator has this day filed and does herewith file amendment to his inventory setting out the assets and liabilities of said joint tenancy as of January 15, 1916, which has been held *Page 1259
to be partnership, and of Fleming Brothers, Incorporated, as fully as same are known to your administrator and your administrator asks that said amendment to inventory be treated as a part of this report.
"That no claims have ever been filed against the estate of Charles Fleming, deceased."
The report here makes special reference to the Getchell property, the life insurance, the indebtedness growing out of them, and proceeds:
"That said debt was in reality the debt of Fleming Brothers Incorporated but was paid out of the avails of said policies and the cash balance was by the surviving brothers put into Fleming Brothers Incorporated. So that said surviving brothers are creditors of said corporation to the said amount of $55,482.26 on account of said `Charles Fleming Insurance' transaction, as between themselves and `the estate of Charles Fleming,' and are entitled to credit accordingly in a settlement with the surviving widow, Anna B. Fleming.
"That in so far as Charles Fleming was obligated to third persons his obligations have been carried on by his surviving brothers and Fleming Brothers, Incorporated.
"That the funeral expenses of the deceased have all been paid * * * That no regular dividends have ever been declared or paid by Fleming Brothers, Incorporated, but that the net earnings of said corporation have for the most part been intermingled with the funds of the four brothers during the lifetime of Charles Fleming and with the funds of his surviving brothers since his death, doing business under the name of `Fleming Bros.'
"That all of the expenses and disbursements incident to conduct of their business and their personal and family expenditures of all sorts, have always been paid from the common funds of `Fleming Bros.' and `Fleming Brothers, Incorporated.'
"That since the demise of Charles Fleming, January 16, 1916, the surviving brothers, Robert J. Fleming, Stanhope Fleming and your administrator have paid out to or for the benefit of Mrs. Anna B. Fleming, surviving widow of the aforesaid, the sums set forth in statement `Exhibit A' hereto attached and made a part hereof, amounting in all to $20,428.46. *Page 1260
"That for a long time prior to the death of Charles Fleming his wife Anna B. Fleming drew on Fleming Bros. $45.00 per week for her own use and the weekly amounts paid her since that time have been kept up by the surviving brothers in accordance with their understanding of the true intent and purpose of their joint or family arrangement or method of living. Said surviving brothers have at all times deemed Anna B. Fleming to be a member and a participant in said family arrangement but your administrator respectfully shows to the court that in view of the decisions or the courts touching the rights and obligations of said surviving widow and the surviving brothers of Charles Fleming, said weekly installments are discontinued from and after June 7, 1924. * * * However, your administrator and his surviving brothers by and through him respectfully submit that, in any accounting with or settlement ordered, account should be taken and credit given them for the aggregate amount paid by them to and on behalf of said surviving widow as shown by said `Schedule A.'
"Your administrator further shows to the court that the surviving brothers of Charles Fleming, deceased, including himself, being in control of all of the stock of Fleming Brothers, Incorporated, are ready, willing and able to cause the stock of said corporation to be issued to Anna B. Fleming in such amount as the court may determine and direct not in excess of one eighth of the whole thereof, subject, however, to a proper and lawful allocation of the liabilities of said corporation and the relation and obligation of Charles Fleming in respect thereto.
"And your administrator further shows that himself and his surviving brothers are ready, willing and able to make accounting and settlement with Anna B. Fleming, surviving widow in relation to the affairs of `Fleming Bros.'
"Your administrator however respectfully submits that in view of the situation as it stands in fact and also in view of the decision of the Supreme Court aforesaid holding their said joint contracts to be valid in part and in all respects except as to Anna B. Fleming, surviving widow, it is practically unnecessary and unlawful that one fourth of the property of Fleming Bros. and one fourth of the stock of Fleming Brothers, Incorporated, be set apart and segregated and administered upon in the ordinary manner as being the estate of Charles Fleming, deceased. *Page 1261
"Your administrator respectfully submits this whole matter should be adjusted by the court taking an accounting as to the ultimate interest of said surviving widow in said corporate stock and that the amount to be turned over and issued to her be determined and that the amount otherwise due her be determined and that the surviving brothers be permitted to make final settlement with such surviving widow on the basis of such order."
The report here sets out the prayer of the petition in the present equity suit, and a portion of the decree and opinions of this court and procedendo, and continues:
"That no further proceedings have been had in said cause. Therefore your administrator respectfully shows to the court that it should proceed in the said cause No. 25279 Equity, to modify the former decree so as to impress the property of Robert J. Fleming, John A. Fleming, Stanhope Fleming, a partnership, with a trust in favor of the plaintiff to the extent of a net undivided one eighth of the property held by them as property, subject to a dower interest in the plaintiff in accordance with the prayer of the plaintiff's petition as hereinbefore set forth; the court taking an accounting so far as necessary as to the assets and liabilities of Fleming Bros. and of the value of the stock of Fleming Brothers, Incorporated, to such extent as is necessary to ascertain and admeasure the actual dower interest of the surviving widow, Anna B. Fleming, in said stock and other assets of Fleming Bros."
In the amendment to inventory so filed, defendant John A. Fleming, as administrator, reported, under the heading "Description of Real Estate of Fleming Brothers," that, under the contracts attached to the original inventory, Charles Fleming "had acquired on behalf of Fleming Brothers an undivided one-half interest" in described property in Minnesota. (This item, for reasons not here pertinent, has been eliminated.) Under the same heading, the amendment to inventory listed the Okoboji property as "conveyed to Fleming Brothers * * * consisting of Robert J. Fleming, Charles Fleming, John A. Fleming and Stanhope Fleming." The amendment listed property known as the Getchell property, stating that, since the original inventory, the surviving brothers had sold a portion of it through Fleming Brothers, Incorporated, for $41,000. Under the same heading, *Page 1262
the residence property of Robert J. was listed as encumbered to the amount of $12,000. The amendment contained a division entitled "description of real estate owned by Fleming Brothers, Inc.," in which were listed described lots in Des Moines, "with the Fleming Building" and an adjacent property. Under this heading were listed various other real properties, among them the Getchell property, stating that, "as the title stands of record, the value of this unsold tract is reflected in the stock of Fleming Brothers, Incorporated, and it is here listed as corporate real estate for that reason; though it is a duplication * * *" In the amendment to inventory was another division, entitled "General Assets of Fleming Brothers, Incorporated," under which were listed various stocks, with their respective par values, and "miscellaneous bills receivable * * * $6,815.89." It states: "For cash on hand see general assets of Fleming Brothers." This amendment to inventory contained also a division entitled "Fixed indebtedness of Fleming Brothers, Incorporated," under which were listed the mortgages on the Fleming building and adjoining property in their several amounts, with the result: "Total fixed liabilities of corporation $355,000." There were also listed current liabilities $8,934.85, with the stated result, "total liabilities of corporation $363,934.85." It was stated, under the last mentioned heading, that, in erecting the Fleming building, and in acquiring the ground, "a large amount of borrowed money was used by the Fleming Brothers in addition to the proceeds of the mortgages described * * * The state of said liabilities on January 15, 1916 [date of death of Charles Fleming], was as follows:" (Here follow individually listed bills payable, amounting to $146,797.96, besides sums borrowed on policies on the lives of the surviving brothers, aggregating some $75,000.) The amendment to inventory proceeds:
"That the total amount of said funds borrowed by the four Fleming Brothers from the sources aforesaid and which went into the [Fleming building and ground] * * * as said indebtedness stood at the death of Charles Fleming was $240,578.96 "Add `Fixed Indebtedness' Item 4 363,934.85 ------------ "Total indebtedness of Fleming Brothers, Incorporated, 604,513.81 *Page 1263
"Of which Charles Fleming's interest is chargeable with one fourth, to wit, 151,128.45
"* * * that by the supplemental opinions of the Supreme Court * * * the whole insurance upon the life of Charles Fleming, as above enumerated, amounting in the aggregate $55,482.26, was the property of his surviving brothers, Robert J., John A., and Stanhope Fleming. That by reason of the matters above set forth, the said surviving brothers are entitled to have established as equitable interest in and claim against Fleming Brothers, Incorporated, to the full amount of the said insurance proceeds, namely $55,482.26, as between themselves and the surviving widow of said Charles Fleming, deceased.
"That such of the indebtedness enumerated in this item as existed at the death of Charles Fleming and as still exists has been merged in obligations signed by Fleming Brothers, Incorporated, and the three surviving brothers.
"General Assets of Fleming Bros.
"Jointly Owned by R.J. Fleming, Charles Fleming, John A. Fleming and Stanhope Fleming under contracts attached to original inventory and treated by the Supreme Court of Iowa as partnership property and subject to claim of Anna B. Fleming for dower.
"Item 1. 10,000 shares of stock Fleming Brothers, Incorporated, par value $100.00 per share of which 2,500 shares had been issued in the name of Charles Fleming and a like number of shares to each Robert J., John A., and Stanhope Fleming, all of which had been assigned in blank by each of the four brothers and was at, and prior to the death of Charles Fleming, kept in, a common receptacle. That the assignment in blank by Charles Fleming of said 2,500 shares, in so far as it affects the dower interest of Anna B. Fleming, has been held to be void by said Iowa Supreme Court decision. That prior to the commencement of the litigation between Anna B. Fleming and the surviving Fleming Brothers, the said certificates for said 10,000 shares of stock were canceled and in lieu thereof there were issued certificates for said number of shares of stock running to Robert J., John A., and Stanhope Fleming, or the survivor of them. This was done under the supposition and belief that the three contracts attached to the original inventory entitled said three surviving brothers to all of the stock of said corporation. *Page 1264
"That in view of the said decision of the Supreme Court of Iowa the outstanding stock of said corporation should be canceled and reissued."
Here follows an explanation of the authorized capital stock of Fleming Brothers, Incorporated, and the amount issued, with the statement "that, in consequence, there was, at the time of the death of Charles Fleming, deceased, no authorized basis for stock of said corporation in excess of $700,000." Following is a list of shares of bank stock, par value stated at $100. One item referred to as "sold since the demise of Charles Fleming for $3,155." Shares of insurance company stock are listed as producing, on liquidation, $282. There is listed an item "Miscellaneous bills receivable * * * $18,146.33," with the note that a considerable portion of them, since Charles Fleming's death, have proved worthless, and been charged off. Following these is:
"Item 7. Agency contract between the Massachusetts Mutual Life Insurance Company and Robert J., Charles, John A., and Stanhope Fleming, or the survivors or survivor of them, under which commissions upon renewal premiums were secured and have since been paid to the surviving brothers. The value of the contract at the time of the demise of Charles Fleming depended and has always since depended on the voluntary payment by the persons insured of the premiums stipulated in their policies. This ceased to be an active agency on or about December 31, 1917. The actual gross amount collected by the surviving brothers from said sources since January 15, 1916, is $57,346.63, without deduction for the services of the surviving brothers in making said collections.
"Item 8. Cash on hand $4,483.72
("Note 1: This item of Cash on Hand is made up of the intermingled funds of Fleming Bros. and Fleming Brothers, Incorporated, and it is impossible, in view of the business methods of the Fleming Brothers, to designate the exact amount of this Cash on Hand which should be allocated to the corporation and to Fleming Bros., respectively.) * * * I hereby certify that the foregoing is a full, true and complete inventory of the real estate and personal property jointly owned by Robert J., Charles, John A. and Stanhope Fleming, on January 15, 1916, the date of the demise of Charles Fleming, deceased, so far as the same *Page 1265
has become known to me, together with full and correct list of the heirs of the said Charles Fleming, deceased, as I verily believe. I further certify that all of the said property except as hereinbefore stated, or the proceeds thereof, is on this date, June 16th, A.D. 1924, in the hands of the surviving brothers of Charles Fleming, and is held subject to the rights of the surviving widow of said Charles Fleming, as defined and determined by the Supreme Court of Iowa in the opinions and decisions hereinbefore referred to."
The report and amendment to inventory are in evidence without objection.
On September 16, 1924, an order was entered consolidating the suit in equity and the probate proceedings. Thereupon "all of the issues of law and fact" were referred to William M. Wilcoxsen, "with full power to hear and determine and report to this court his findings of fact and conclusions of law * * *" The parties, with their witnesses, accordingly appeared, and, beginning March 16, 1925, introduced their evidence. There was some uncertainty as to what properties were carried by the corporation and what properties were formally owned by the partnership. There were disputes with respect to the propriety of entries in the corporation accounts; but the suit was never, as defendants now assume, a stockholders' suit, or a suit against a corporation for accounting, or one to wind up a corporation or partnership. Until the referee's report was filed and exceptions taken by defendants, defendants proceeded upon the theory that the value of the properties, including value of the stock of the corporation and its earnings, was the subject of the investigation, and was to be determined for the purpose of ascertaining the value of plaintiff's interest in all the partnership holdings, and for the purpose of impressing such interest as a trust on the partnership assets.
Decedent and defendants were in partnership. The corporation was a part of the partnership assets. Defendants were the heirs of decedent. There were no creditors. The plaintiff's interest as widow was alone involved. The administrator, in her interest, was entitled to have a partner's lien impressed upon the partnership assets, for her protection. Hoyt v. Sprague, 103 U.S. 613
(26 L. Ed. 585). The defendants sustained fiduciary relationships to plaintiff, and she might proceed as she did, with *Page 1266
defendants' acquiescence, to have a trust impressed, practically the equivalent of, though not in name, a partner's lien.
Ordinarily, the duty of the surviving partners to account is to the personal representative. 47 Corpus Juris 1160. The personal representative in this case is one of the partners. He, by virtue of his report and the consolidation of the proceedings in probate with the suit in equity, is demanding an accounting. While in his report he says that the surviving partners are ready to cause the stock to be issued to plaintiff in such an amount as the court may determine, not in excess of one eighth, subject to proper allocation of liabilities, he also says that they are ready to make an accounting; that "it is practically unnecessary and unlawful that one fourth of the property of Fleming Brothers and one fourth of the stock of Fleming Brothers Incorporated be set apart to secure and be administered upon in the ordinary manner as being the estate of Charles Fleming, deceased;" that "this whole matter should be adjusted by the court taking account as to the ultimate interest of said surviving widow in said corporate stock, and that the amount to be turned over and issued to her be determined, and that the amount otherwise due be determined;" that the court should proceed in the equity cause to "impress the property of Robert J. Fleming, John A. Fleming, and Stanhope Fleming with a trust in favor of the plaintiff to the extent of a net undivided one eighth of the property, in accordance with the prayer of the plaintiff's petition, the court taking an account so far as necessary as to the assets and liabilities of Fleming Brothers and of the value of the stock of Fleming Brothers Incorporated to such extent as is necessary to ascertain and admeasure the actual dower interest of the surving widow, Anna B. Fleming, in said stock and other assets of Fleming Brothers." The administrator, therefore, while formally offering to cause stock to be issued to plaintiff, was asking the court to impress the property with a trust in favor of the plaintiff "to the extent of a net undivided one eighth of the property." The prayer of the petition was to take an accounting of the value of the stock (which defendants are now complaining of) "to such an extent as is necessary to ascertain the dower interest in the stock and other assets." Clearly, "net undivided one eighth of the property" and the accounting necessary to ascertain and admeasure it envisaged the ascertainment of the value of plaintiff's *Page 1267
interest, the impressing of it as a trust, and plaintiff's recovery of the amount so ascertained from the assets, — just what the parties and the referee proceeded to do.
The suit in equity was originally brought on for trial December 11, 1916; whereupon plaintiff offered in evidence "a statement of the condition of Fleming Brothers financially furnished by them at the request of plaintiff as of the fifteenth day of January, 1916" (the contents of which are set out post). With this offer plaintiff rested her case, under stipulation "reserving the right to subsequently inquire further into the assets and liabilities of Fleming Brothers; but, of course, [defendants] do not wish to be understood as conceding that the relationship between the brothers was that of a partnership, in the technical sense of the word."
Plaintiff's counsel: "The only concession I asked of you was that, in the event there was a decree for the plaintiff, we might subsequently go into the question of the valuation of the items."
Defendants' counsel: "The defendants are content that that inquiry, if it ever becomes a subject of inquiry, may be reserved to a later time, following the decision of the court as to the legal status of the brothers as between themselves."
The determination of such legal status was thereupon accordingly submitted to and determined by the trial court, and, on appeal, by this court. Fleming v. Fleming, 194 Iowa 71. It will be seen, by reference to the contracts and the contentions of the parties as set out in the report of the former appeal, that the four brothers clearly intended that the death or disability of one of them should not interfere with the continuance of the organization and prosecution under it of the business, or with the accumulations and enlargement of the fortune which they were thereunder building up; particularly that such event should not interrupt the continued management of their properties and business by the survivors. It was the evident purpose of the four brothers that, in the event of the death of one, the survivors should continue, without interruption, the business in which they were engaged. It is manifest that the defendants believed that they had built up a valuable and prosperous business, in which valuable properties had been acquired, and they intended that there should be no division, with widow or heirs, of the stock of the corporation or other properties, and no intrusion into their *Page 1268
possession, operation, or management of their properties or affairs. The stipulation, therefore, made at the preliminary stage of the trial in 1916, by which there was reserved "the right to subsequently inquire further into the assets and liabilities of Fleming Brothers and the right" subsequently to go into the question of the "valuation of the items," was not inadvertent, but was in line with the clear purpose of the parties to ascertain (if plaintiff should be successful in the preliminary inquiry) the assets and liabilities of Fleming Brothers and the "valuation of the items." On the trial of the issues, defendants' attitude in respect to their possession, ownership, and management by entirety, without interference from plaintiff, was not changed.
Both parties offered in evidence before the referee a report made by an auditing company, dated June 26, 1925, "of Fleming Brothers joint accounts from January 1, 1916, to April 1, 1925." The report is addressed to Fleming Brothers, and states:
"In accordance with instructions, we have made an audit of the books and records of Fleming Brothers, Inc., Fleming Brothers Insurance Agency and Fleming Brothers Joint Accounts, for the purpose of determining the total income in which Mrs. Fleming has a dower interest, for the period from January 1, 1916, to April 1, 1925, and have compiled the following exhibits as submitted herewith:
"Exhibit A. Allocation of Apportionable Net Income.
" B. Profit and Loss Statement — Fleming Brothers, Inc.
" C. Summary of Apportionable Net Income of Fleming Brothers, Inc.
" D. Profit and Loss Statement — Fleming Brothers Insurance Agency.
" E. Summary of Apportionable Net Income — Fleming Brothers Insurance Agency.
" F. Profit and Loss Statement — Fleming Brothers, Regular.
" G. Summary of Apportionable Net Income — Fleming Brothers, Regular.
" H. Personal Expenses Chargeable to Joint Account. *Page 1269
Exhibit I. Salaries paid to Fleming Brothers, Joint Account.
"A definition of the terminology used in the above captions is as follows:
"Apportionable Net Income — Net Income to which Mrs. Fleming's dower interest attaches, all other income being reflected in Profit and Loss statements under caption of exclusions.
"Joint Account refers to Surviving Brothers.
"Salaries Paid — Executive salaries paid to the `Surviving Brothers' by the corporation, for services rendered in managerial capacity, being reflected as income on the `Fleming Brothers — Regular' records, and as exclusions on the P L statements.
"Personal Expenses refers to all expenses charged through `Fleming Brothers — Regular' records, which are chargeable to the `Joint Account,' and not charged against the `apportionable net income,' being reflected on the P L statements under the caption of exclusions.
"The net earnings of $285,714.34 as reflected by Exhibit A, and detailed in Exhibits B, D, and F, constitutes the total net earnings to which Mrs. Fleming's dower interest attaches. The allocation of this income to Mrs. Fleming and to the joint account of the `surviving brothers' results in a credit to the former of $23,809.79, and to the latter of $261,904.55. Mrs. Fleming, having received $20,874.04 in cash during the period under review, has a balance due her amounting to $2,935.75.
"We have given Mrs. Fleming credit for her pro-rata share of all gross income, excepting salaries credited to the `Joint Account,' dividends from Fleming Brothers, Inc., and insurance received on the policies of Charles Fleming at his death.
"We have charged Mrs. Fleming with her pro-rata share of all expenses resultant in the earning of the net income. All expenses which were not incurred in the regular operation of the business, that is, in producing the gross income, have been excluded and charged to the `Joint Account' of the `Surviving Brothers,' as reflected in Exhibit H.
"Personal Expenses chargeable to the `Joint Account' amounting to $410,792.14 are detailed in Exhibit H. In our recent conference, this item was somewhat confusing, inasmuch as it exceeded the amount of the total net apportionable income, and when compared to the portion of the earnings credited to *Page 1270
Mrs. Fleming, seemed erroneous. Against these withdrawals is a credit of salaries in the amount of $151,500.00, which salaries have been deducted from gross income. Our understanding is that the Fleming Brothers were entitled to salaries out of the earnings, before any apportionment of earnings was made. Hence, the withdrawals of the Fleming Brothers in the amount of $410,792.14 constitutes withdrawals of earnings to the amount of $259,292.14, and withdrawals of salaries in the amount of $151,500.00. This is detailed in Exhibit A."
The profit and loss statement of the corporation shows the income in 1916 from rentals $111,172.17 (omitting, for brevity's sake, 1917 to 1921, inclusive, and 1923); 1922, $204,257.26; 1924, $177,392.25; first three months of 1925, $37,363.91. It shows a net profit for 1916, $21,704.50; for 1922, $49,046.64; for 1924, a net loss of $1,374.06; and for first three months of 1925, a net loss of $14,726.34. The profit and loss statement of the insurance business shows a net profit in 1916 of $10,406.26; 1922, $5,267.09; 1924, $3,575.99; and for the first three months of 1925, $734.01. The profit and loss statement of "Fleming Brothers Regular" shows for 1916 a loss of $12,956.85; for 1922, gain of $26,583.93; for 1924, a loss of $502.47; for the first three months of 1925, a loss of $14.80. The statement of personal expenses chargeable to joint account "of Fleming Brothers Regular" account includes amounts paid for the years 1916 to March 31, 1925, "attorneys' fees Anna B. Fleming suit $4,988.68;" R.J. Fleming personal, $24,121.80; R.J. Fleming house expense, $78,979.54; J.A. Fleming personal, $59,988.12; J.A. Fleming house, $39,593.49; Stanhope Fleming personal, $25,088.56; Okoboji house account, $8,665.47; Fleming Brothers personal, $63,458.29; church, lodges, club dues, $31,849.57; and comparatively minor items for accident insurance, "Andover and Exeter school expense," "personal taxes," "cash advanced children," "lunch account," "investment children," and others, all totaling, for the period, $410,792.14. The statement of "officers' salaries received of the Fleming Brothers Regular account," showing salaries to each of the surviving brothers for 1916 and 1917 of $4,000 each, raised in 1918 to $5,000, and in 1919 and subsequent years to $6,000, totals, for each of the surviving brothers for the period 1916 to March 31, 1926, $50,500; for the three, $151,500. This auditing report summarizes the *Page 1271
total apportionable income as $285,714.34: one twelfth to plaintiff, $23,809.79; eleven twelfths to defendants, $261,904.55. Plaintiff was paid by defendants $45 per week to June 7, 1924, — a total of $20,874.94, — leaving, according to the auditor's statement, a balance due from the apportionable net income, $2,935.75. Defendants' withdrawals, including salaries of $151,500, are shown to have been $410,792.14, of which they are charged with the difference, $259,292.14, between these two items, leaving a balance due them, $2,612.41.
Defendants complain that, if plaintiff is to have a money judgment, it must be confined to the value in money of her distributive share, ascertained as of the date of Charles's death, January 16, 1916, with 6 per cent 3. PARTNERSHIP: simple interest, after deducting amounts paid death to her and income tax thereon. The case was of partner, tried upon the theory that its purpose was to and ascertain the value of plaintiff's surviving distributive share in the capital and in the partners: earnings up to March 31, 1925; the early part continuance of the trial was tacitly assumed as the of terminal date of the accounting, and the business: account was taken and the amount of effect. plaintiff's interest ascertained accordingly. The defendants' exceptions stated:
"These defendants, for the purposes of this accounting, accede to and acquiesce in the finding of the referee * * * as to the `apportionable income,' namely $285,714.34, and to the referee's additions thereto (specified), conceded total apportionable income $325,415.71; but these defendants expressly except to the addition thereto of specified items totaling $632,222.65."
Here follow the grounds of these exceptions, the result of which is in the exceptions stated to be, "ultimate corrected apportionable income, $225,088.31." It therefore appears that the complaint made here is not the complaint made below. Furthermore, defendants, while at decedent's death they had the right to wind up the firm business and make settlement with the administrator and plaintiff, did not do so. They elected to continue the business as if there had been no dissolution. They became trustees of decedent's interest. They have continued to use that interest as in a continuing partnership. The plaintiff had the right to elect to take the profits realized from the *Page 1272
continued use of her property in the partnership business. Youngv. Scoville, 99 Iowa 177. By mutual acquiescence the account was taken to March 31, 1925. Plaintiff was entitled to the payment of the amount of her distributive share as so ascertained as of that date, and consequently to interest since that date.
Plaintiff's claim is not bottomed on conversion. Her suit and the report or application of John A. Fleming, administrator, as consolidated, were accepted, and treated as a suit to impress a trust in favor of plaintiff to the amount of her one-twelfth interest, to take an account to the extent necessary to ascertain the value of that interest, with the object, necessarily, of establishing it and effecting its withdrawal. Though not always consistent, this is what is asked for by the administrator. By the acquiescence and active participation of both sides, the consolidated case has been fully tried upon this theory. The plaintiff and the referee were led to believe that such was the theory of the case on which the rights of the parties were to be determined. The referee made his report accordingly. The defendants cannot be permitted to speculate upon the result of the trial, and after the effort and expense have been made, and they have lost, to change front, and deny the right of the referee to do the very thing that they were inviting him to do.
Defendants now complain that the parties and pleadings were not such as to authorize the referee to investigate the corporate affairs or to correct, charge, or surcharge the corporate accounts and books — to review, 4. PARTNER- correct, or set aside, for instance, "unwise SHIP: death expenditures and excessive salaries." It is of partner, true that this is not a suit brought to remedy and the wrongs of a stockholder, perpetrated by surviving the corporation or by the officers in control. partners: The corporation under consideration here, liquida- however, was owned exclusively by the four tion: partners. The stock certificates, though made corporation out in four individual lots, to the four as part of individual partners (changed, after Charles's assets. death, to the three survivors), were held in their entirety as partnership property. The surviving partners are trustees for the liquidation of the partnership assets, and hold all the assets as such trustees. Fried v. Burk, 125 Md. 500
(94 A. 86). As trustees, they are entitled to such credits, whether *Page 1273
formally in the transaction of their business in form corporate, or business transacted outside of the corporate affairs, as they would be entitled to, were there no formal corporate organization. For the purpose of the present controversy, the mere form of corporate organization and the mere formality of keeping the accounts in part on corporate books are of no importance. The partners had the sole management, and were sole owners of the corporation. As between them, the corporate accounts are their accounts. The corporate assets, subject to corporate liabilities, are partnership property, which, to the extent of the interest of the deceased partner, are held in trust. The question here is, what are the respective rights and interests of the individuals, resulting from their ownership and operation of the corporation as their property, as well as of the business and property that were conducted and owned outside of the formal corporate affairs; not what are the rights of stockholders between themselves, as stockholders, or between them as stockholders and the corporation as a corporation.
The referee, in accordance with the theory of the trial, determined the value of the plaintiff's one-twelfth interest in the capital assets of the four partners and in the "apportionable income" therefrom. He fixed the net value of the 5. PARTNERSHIP: assets at $800,164.79, and of the plaintiff's death of one-twelfth interest at $66,680.40. In arriving partner, and at this amount, he found book value of the stock surviving of the corporation to be $700,000. It is now partners: objected that there was no evidence of the accounting: actual value of the corporate stock. No corporate objection, however, was made in the court below stock: book that the book value, which would be the value of value. the stock as it appeared on the books of the corporation, was not the actual value. At the trial before the referee, the only contention made with respect to the value of the corporate stock was that $300,000 of the authorized $1,000,000 was not taken up by the proposed addition to the building. It is objected that the liabilities must be deducted from the value of the assets, in order to find the actual value of the stock. The property of the partnership was left in the hands of the defendants by the death of plaintiff's husband. Thereby they incurred a fiduciary relationship to the plaintiff, or at least to the administrator for her. The duty is upon defendants to account. 47 Corpus Juris *Page 1274
1160. The books and accounts kept by them are not before the court. We have no balance sheet, or trial balance, before us, except one of January 15, 1916, purporting to be a trial balance of all the partnership property, including the corporate stock and other stocks, real estate of "Fleming Brothers," "Fleming Brothers firm." It lists all the liabilities, including mortgages. It lists "book value of stock, $700,000." "Book value" of stock means the value as it appears from the books of the corporation. It is a matter of common knowledge that the liabilities of a solvent corporation, including stock, surplus, and undivided earnings, if any, to the amount shown by the books, are the equivalent in amount to the assets as likewise shown. The book value of the assets on one side of the balance sheet is the equivalent of the stock value and other liabilities on the other side. It was the duty of the defendants, as between them and plaintiff, or the administrator, to keep books and accounts, including the books of the particular property of the corporation. Their book entries are evidence of actual value. As has been noted, the value of the Fleming Building, which the evidence shows is a large one, occupying valuable ground, and the value of the ground, are not shown, though, according to the amendment to the inventory, the proceeds of more than $604,000 of indebtedness went into the property. Excessive valuation of the stock by the referee does not appear.
It is objected that some of the properties charged were charged both in the list of partnership assets and in the list of corporate assets, and thus duplicated.
The burden of the accounting is upon the defendant partners. The account was taken by the referee. We may assume that such accounting was triable de novo before the 6. PARTNERSHIP: district court. Defendants, however, filed death of exceptions to the referee's report. The trial in partner, and the district court was the trial of those surviving exceptions. The record is silent as to whether partners: all the evidence before the referee was before accounting: the district court. Some of it was before the burden of district court, and evidence was taken on the proof. hearing of the objections in the district court.
The trial here, though de novo, is de novo of the trial before the district court. See Young v. Scoville, 99 Iowa 177. The defendants are not entitled to a review of a case or on a theory *Page 1275
7. APPEAL AND other than that presented to the district court. ERROR The trial de novo here is, therefore, a trial de
review: novo of the exceptions to the referee's report, trial de and is limited to those exceptions. novo:
limitation: accounting.
At the trial before the referee, objections that particular property was reflected in the value of corporate stock were made as to Minneapolis lots, as to Snyder property, and as to the unsold Getchell property, but not as to the other properties which are the subject of complaint made here. Defendants here complain that the R.J. Fleming residence, the Getchell property, and the Okoboji cottage were carried as corporate assets, and their value thus accounted for in the corporate stock, but were allowed by the referee as assets in addition to the corporate assets, and their value thereby duplicated. As stated, the corporate books are not before us. Defendant John A. Fleming says that the residence "has not been considered a resource of anybody. As a home, it was carried along, and I do not know how it appears on the books, but I do know how it was paid for, and it has always been regarded as a joint asset, like every other dollar we had at that time." John A. Fleming testifies that it was understood that the Getchell property was the property of Fleming Brothers; that the encumbrance "was paid out of Fleming Brothers, Incorporated, after Charley's death." It seems to have been assumed at the trial to have been property for which separate accounting would be made.
The amendment to inventory lists the Getchell property as acquired by Fleming Brothers, and states that a part of it has been sold; that the value of the unsold tract is reflected in the stock of Fleming Brothers, and is duplicated. The unsold part is appraised and charged at $500. Defendants' counsel stated before the referee, with respect to the Getchell property: "* * * At any rate, we have listed it here as it belonged to the partnership; that is the purpose of that listing. Mr. Miller: Well, I think that is about right." The Okoboji property is listed as conveyed to Fleming Brothers. John A. Fleming testifies that: "It is not the property of Fleming Brothers, Incorporated." Defendants complain that the allowance by the referee of "certain stock $23,808" is a duplication. We find no exception to this item. Defendants contend that insurance, surrender value of life insurance $93,781, belongs to the survivors; *Page 1276
and they seem to base their contention upon the former opinion, by which the insurance on the life of decedent was held to belong to the survivors. All this life insurance was paid for out of the partnership assets. Robert J. Fleming testifies:
"We were in a business in which we were preaching the uncertainty of life, so we assigned these policies. Sent them back. They were issued to the individual members of the firm, for the purpose of becoming the property of this joint arrangement of our survivorship. * * * The total surrender value of all the policies held on the lives of each of the four brothers was $93,781, being the surrender value of all these policies, — would be reduced by $18,000, or whatever was the exact amount of the surrender value of Charley's policy."
There is no exception to the failure to deduct the $18,000. The policies were pledged for liabilities which are allowed as corporate or partnership liabilities. In the balance sheet of January 15, 1916, among other assets, is "surrender value of life insurance, $93,781." The loans against the policies are shown, so that the policies were evidently carried on the books as partnership property; and defendants say they had no individual property. Defendants have failed to sustain their exceptions to the acts of the referee in allowing these items.
John Fleming, Jr., was employed by the corporation as superintendent, at a salary of $3,600 per year. The referee found that the "three surviving members of the firm were devoting their entire time to the conduct and management of the 8. PARTNERSHIP: business," and that the salary of John Fleming, death of Jr., totaling $15,300, was not a proper charge partner, and as against plaintiff. The exception is that the surviving expenditure was regularly authorized by the partners: board of directors for services actually accounting: rendered, was approved by the Federal treasurer rejecting department, and that there is no issue as to its salary of propriety. It is argued that this was purely a superin- matter of corporate management, within the tendent. discretion of the board of directors. The referee evidently found that the expenditure was unnecessary. There is no evidence of its value or necessity. Its necessity is not argued. Manifestly, the action of the Federal government in allowing or disallowing expenses in computing income has nothing *Page 1277
to do with the reasonableness or unreasonableness of charges made by defendants against the plaintiff. The exceptions filed and argued, for reasons that have been discussed, are not well taken.
The referee found that the surviving partners were entitled to reasonable compensation for their services, and allowed them salaries at the rate in force at the time of the death of Charles Fleming. This resulted in charging back 9. PARTNERSHIP: so-called excess salaries amounting to $40,500. death of Defendants argue that there is no evidence that partner, and the salaries drawn were excessive; that no issue surviving with respect to salaries was tendered; that the partners: increase was authorized by the Federal accounting: government; that salaries in all lines of salary of business have increased. There is no evidence of surviving the value of defendants' services. Defendants partners. were called upon to account as early as July 5, 1916, when the petition in this suit was filed. They had no right, as against plaintiff, to continue to carry on the business. The general rule (though there are exceptions to it) is that a surviving partner continuing to carry on the business is not entitled to compensation for his services. See Young v.Scoville, 99 Iowa 177; 47 Corpus Juris 1077. The question should be determined on equitable principles. While the plaintiff, as a result of the decree, obtains the benefit of the defendants' services, we are unable to find, on this record, that the net allowance for compensation actually made by the referee is inadequate, or that it should be increased.
The defendants' auditor credited among the expense items "depreciation, $125,387.75." The referee disallowed this item. Defendants argue that, in valuing the assets of a corporation for the purpose of ascertaining the net profits, a 10. PARTNERSHIP: deduction must be made for depreciation. The death of rule is inapplicable to the situation here partner, and presented. The deduction by defendants' auditor surviving is purely arbitrary, and for income purposes partners: only. The account taken here is with the accounting: defendants, as surviving partners, not only of disallowance the conduct of the business and its management of and earnings, but of the corpus of the assets. unsupported The corporation is a part of the assets. There depreciation is no evidence upon which a finding of in assets. depreciation in fact, or *Page 1278
the amount, if any, can be based. This record presents no foundation for an allowance for depreciation in the value of the partnership property either of the stock of Fleming Brothers Incorporated or other assets.
One of the statements comprising a part of the auditor's report, Exhibit H, entitled "Fleming Brothers — Regular-Personal expense chargeable to joint account," aggregates $410,792.14. This is made up of attorneys' fees 11. PARTNERSHIP: paid by defendants in this suit, personal, death of family, and household expenses of various partner, and kinds. The referee found that this sum was surviving not a proper charge, as against the interest partners: of the plaintiff. There appears also a charge: accounting: "Expense — Charles and Anna Fleming, unallowable $20,874.04." The referee found that this was credits. not a proper charge to expense account in the first instance, but that the $20,784.04 was advanced by the surviving partners to plaintiff, and should be charged against her distributive share. Defendants' exception is that these items "were excluded, and not deducted against the interest of plaintiff in income." This exception is based upon another sheet of the auditor's report, entitled "Fleming Brothers Regular-Profit and Loss Statement," which, after listing income amounting to $91,076.72, and expense amounting to $79,106.66, with the result "apportionable net loss or gain $11,970.06," proceeds: "Exclusions, salaries received, $162,300, dividends Fleming Brothers Inc., $45,055.32, expense Joint acct Ex. H. $410,792.14 expenses Charles and Anna Fleming $20,874.04." The footings of this sheet are, therefore, $431,666.18. To arrive at the correct amount of the net income, the auditor was under the necessity of adding what he calls "exclusions," and which more correctly would be "non-inclusions in above." It is clear from the facts and from the report, part of which, referring to the $410,792.14, has been quoted, that these sums withdrawn by plaintiff and defendants were withdrawn from the partnership income, and must be taken into account in ascertaining the income. This is what the referee has done.
The foregoing discussion covers in principle, though not in detail, all of the complaints urged in defendants' argument. The discussion has been protracted already to too great length. *Page 1279
The case had the thorough consideration of the referee and the district court. We find no ground for disturbing the account as stated by them. Personal judgment was rendered against the surviving partners for the amount of plaintiff's 12. PARTNERSHIP: interest. While this may be, in the deceased circumstances, nonprejudicial, it is in excess partner and of the issues as pleaded actually and the surviving practical issues. Plaintiff was entitled to have partners: the amount of her interest ascertained and accounting: impressed as a trust upon all the partnership proper form assets. She was entitled to decree for the of judgment. satisfaction of the amount of her interest as so ascertained out of the assets, but not entitled to personal judgment. The finding of the referee as to the amount due the plaintiff is approved, and the plaintiff is hereby given a judgment in rem against all of the property involved herein, and execution will issue to enforce the payment thereof. The decree will be modified accordingly, and as so modified, affirmed. —Modified and affirmed.
EVANS, STEVENS, De GRAFF, ALBERT, KINDIG, WAGNER, and GRIMM, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429107/ | I. The sale of corporate stock involved in this case is one of three sales made as a part of the transaction considered in the case of Pullan v. Struthers, 201 Iowa ___. Another sale of stock in the same corporation, and involved in an action based upon it, was before us in Reinertson v. Struthers, 201 Iowa ___. Most of the questions presented here have been *Page 710
disposed of by our opinions in those cases, and further discussion of them would be superfluous. The evidence here, as there, was ample to warrant the submission of the question of conspiracy to the jury.
II. The action by James Pullan and this action were brought against A.D. Struthers, S.F. Ellis, James H. Jameson, John C. Kudej, and the Bankers Loan Investment Company. The individual defendants named in each action filed a joint 1. TRIAL: answer, consisting of a general denial. In the verdict: present action, separate amendments in behalf of nonincon- each individual defendant were filed. In the sistent James Pullan case, the jury returned a verdict verdict. against Struthers, Ellis, and Jameson, but not against Kudej. The plaintiff in the present case dismissed as to Kudej. The jury returned a verdict in this case against Struthers and Ellis, but not against Jameson. It is assigned as error that the verdict, because not returned against Jameson, is inconsistent with itself; and it is argued that the evidence is the same with respect to the liability of each defendant, and that the verdict, having been returned in favor of one and against another, therefore, cannot be permitted to stand. We are not referred to any part of the record showing that this question was brought before the trial court. If it was raised by the motion for new trial, the abstract fails to show exception to the order overruling it. The question was argued as to Kudej in the James Pullan case. The evidence with respect to the complicity of James H. Jameson in the fraudulent transactions is quite different, in many respects, from that in respect to the complicity of Struthers and Ellis. The defendants must have considered this to be true, because the motion to direct a verdict, made at the close of the plaintiff's evidence, was, in respect to the sufficiency of the evidence, made separately in behalf of Jameson and the other defendants, as well as jointly. For these various reasons, the assignment of error is not sustained.
III. Errors are assigned to the instructions. The principal points made were argued and passed upon in the James *Page 711
Pullan case. Here, judgment was entered on the verdict at the time it was returned; and afterwards, motion for 2. APPEAL AND new trial embodying exceptions to the ERROR: instructions was filed. The abstract shows that exceptions: the motion for new trial and exceptions to necessity instructions were overruled, but does not show for. that any exception was taken. The exceptions to the instructions are, therefore, not reviewable. Gibson v. AdamsExp. Co., 187 Iowa 1259; Anthony v. O'Brien, 188 Iowa 802;Lutz v. Davis, 195 Iowa 1049. However, we have examined the instructions and exceptions to them, and find no prejudicial error.
3. APPEAL AND ERROR: exceptions: necessity for.
IV. Alleged misconduct of plaintiff's counsel in his argument to the jury was excepted to before submission of the case. The record shows that this was done by way of statement of defendants' counsel, taken down by the reporter, reciting counsel's interpretation of what was said in the absence of the court, and inferentially in the absence of the reporter. Plaintiff's counsel excepted to this statement by defendants' counsel, and stated that it was not true. Plaintiff's counsel then proceeded to recite what he claimed was his statement to the jury. There is no other record as to what in fact occurred. The statement of plaintiff's counsel, as an admission of what he said, as well as the alleged statement which he denied, is argued here, as constituting misconduct. Such statement by plaintiff's counsel was, however, not made the ground of an exception or of motion for new trial. The statement which defendants' counsel claims was made by plaintiff's counsel to the jury is not sustained by the record, and, as noted, no exception to the action of the court in overruling it as ground for new trial appears.
V. Appellants move to strike appellee's amendment to abstract. In this amendment, appellee denies appellants' abstract, and sets out nearly 40 pages of evidence and a certificate that the amendment, "together with the certification of 4. APPEAL AND the original transcript and all the papers and ERROR: exhibits to the Supreme Court, together with the abstracts pleadings and evidence set out in appellants' of record: abstract, constitute sufficient record," etc. amendment by Under Rule 17, if appellee deems the appellants' appellee: abstract incorrect or effect. *Page 712
unfair, he should furnish additional abstract. He will not be permitted merely to deny appellants' abstract and remit the court to an examination of the record below. His amendments will be accepted as true, unless denied and the denial sustained by certification of the record. In this case, the appellants do not deny the correctness of the amendments. There was, therefore, no necessity for certifying the record.
We find that the amendments are not, as is further claimed by appellants, unnecessary or a repetition. We must assume them to be correct, and they set out only such additional material as is proper and necessary to a correct understanding of the evidence. The motion is overruled. The judgment is — Affirmed.
EVANS, STEVENS, FAVILLE, and ALBERT, JJ., concur.
De GRAFF, C.J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429266/ | The facts in this case, which are not seriously in dispute, are as follows: *Page 767
In the early part of the year 1925, the deceased, Adelia A. Hanson, appeared at the Commercial Trust Savings Bank of Charles City, with something over $3,000 in currency. She wished to buy government bonds in the amount of $2,000, 1. GIFTS: gifts to be registered, and payable in cash on her causa death as follows: $1,000 to Nellie Mae Miller; mortis: $500 to Eldon Paul; and $500 to Raymond Paul. By delivery to reason of certain government regulations, these third bonds could not be registered in the way she person. wished, but were finally registered in the following form: Two bonds of $500 each were payable to "Mrs. Adelia A. Hanson or Nellie Mae Miller or the survivor;" two bonds of $500 each were payable as above set out, except that in one, Raymond Paul, and in the other, Eldon Paul, were named with Mrs. Hanson, as payees. The balance of the money, amounting to $1,035.75, was deposited in the Commercial Trust Savings Bank, the account (No. 2551) in the bank records reading: "In Account with Mrs. L.P. Hanson or in case of her death payable to Clara L. Paul." The cashier testifies that:
"She wished to have the amount deposited in the savings bank as a joint account, so that, in case of her death, Mrs. Paul would get the money. In response to her directions, I had her sign up a signature card, authorizing us to turn the money over to Mrs. Paul in case of her death. This card is as follows: `Your bank is hereby authorized to pay all the balance on deposit in Account No. 2551 to Mrs. Clara L. Paul, her heirs or executor in case of my death, her signature appearing herewith.' This card was signed by Mrs. Hanson and Mrs. Paul."
The cashier further testifies that the bank held this money in such a way that it would be necessary to have the signature of both, to withdraw any money from the account.
The bonds were delivered to Mrs. Hanson, and she retained them in her possession until she became ill, in July, 1926, when she decided to go to Charles City for treatment. She then requested a neighbor, Mrs. C.H. Miller, who seems to have been a very intimate and life-long friend, to take possession of a certain metallic box which contained these bonds, and the pass book for her deposit in the savings bank, and keep them until she came back. After going to Charles City for treatment, she returned to her home, and her illness continued to the date of *Page 768
her death, August 27, 1926. Mrs. Miller was an attendant at her bedside, and she testified that Mrs. Hanson at one time said to her: "I have arranged with Mr. Hauser, and he is the trustee." Mrs. Miller further testified:
"She said, a little while before she died, a couple of days or so, `I am afraid, Mrs. Miller, I will have to leave you the box, but all you have to do is to take it to Mr. Hauser, and not tell it to any person. I have instructed him what to do with it. This is my belongings, and I have instructed Mr. Hauser what to do with it.' This was said about two days before she died, and again the same day she died. I was with her all that evening, and she repeated again about the box. I delivered the box to Mr. Hauser about thirty-six hours after she died."
Mr. Hauser testified, with reference to the bonds and money:
"She asked me to obtain the bonds according to the instructions, and turn them over to her. The instructions were to make them payable to herself and those other parties, as the bond read, and in event of her death, they were to be turned over to the parties by me, the same as the deposits."
After the death of Mrs. Hanson, her executor and his attorney appeared at the bank, and requested that the box be opened. The key to the box was found among the personal belongings of Mrs. Hanson after her death. The box was opened, and in it were found the pass book for this savings account, and three envelopes, one addressed to Eldon Paul, one to Raymond Paul, and one to Nellie Mae Miller. These envelopes were stamped with uncanceled postage stamps. The one addressed to Nellie Mae Miller contained two of the bonds above described, and the one addressed to Raymond Paul, and the other to Eldon Paul, each contained the $500 bond above described. The bank, on demand of the executor of the estate of Mrs. Hanson, turned these bonds over to him, with the understanding that the court should determine the future disposition of the same. These respective parties are now demanding their bonds from the executor, as stated, and the bank is asking for an order for disposition of the funds in its hands. These two questions will be treated separately.
The first question is, Who is entitled to the possession of these bonds? The only real dispute between the parties is *Page 769
whether or not there was such a delivery of these bonds that they come within the rule governing gifts causa mortis.
In the case of Stokes v. Sprague, 110 Iowa 89, we said:
"Three things are necessary to such a gift: (1) It must be with a view to the donor's death; (2) the donor must die of that ailment or peril; (3) there must be a delivery."
As to the first two propositions, there can be no dispute in this case. The real bone of contention between the parties is as to the delivery.
It is a settled proposition of law that, under these circumstances, a delivery may be made to a third person for the benefit of the donee, and when this is done, the requirements necessary to a gift causa mortis have been satisfied. Stokes v.Sprague, supra.
The real question underlying this proposition is whether the donor parted with the title to the property. If she did, then, under the circumstances in this case, the gift was complete. Many cases have been cited to us on these propositions, and in some of the cases the question is discussed on the theory of agency, and whether or not the third party was the agent of the donor or the donee. Other cases discuss it on the question of a trusteeship, but in In re Estate of Podhajsky, 137 Iowa 742, we said:
"It is immaterial whether we call the transaction now under consideration a gift by the deceased to his daughters or a trust established by him for their benefit. Indeed, a voluntary trust is simply a device by which a donor effectuates a gift either of property or its beneficial use and enjoyment to the designated donee. Even a gift causa mortis may be effected by a delivery to a third person in trust for the donee, although the gift does not come to the knowledge of the donee, and is not accepted by him, until after the death of the donor. The acts of the trustee or third person receiving the property for the benefit of the donee are deemed to be in the interest of the latter, and the acceptance of the gift is presumed."
We reaffirmed this doctrine in Haulman v. Haulman, 164 Iowa 471.
It seems to be quite well settled that, in the absence of countervailing circumstances, the person to whom delivery is thus made takes the property as the trustee of the intended *Page 770
donee, and not as agent of the donor. 28 Corpus Juris 694, Note 76. We have announced this doctrine, if not in words, in substance, in Vosburg v. Mallory, 155 Iowa 165, at 172; In reEstate of La Grange, 191 Iowa 129; Gould v. Logan, 198 Iowa 935.
Appellants rely largely on the case of Stokes v. Sprague,
supra, but the facts in that case do not measure up with the facts in the case at bar. In that case, Mrs. Sprague, the decedent, told a friend who was with her in her last days that there was a certain pocketbook in a certain closet in the house, and directed the friend to take this pocketbook, and after her death to dispose of the contents to certain parties. The pocketbook was not delivered to the friend, nor did she obtain possession of the same until after the death of Mrs. Sprague. Therefore it could not be held in that case that the pocketbook and its contents were delivered to the friend for the benefit of the donees, as it was never in her possession until after the death of Mrs. Sprague. In the case at bar, there can be no dispute about this question. Before the death of Mrs. Hanson, the property had been delivered by her to Mrs. Miller, and a day or so before her death, she directed what disposition Mrs. Miller was to make of the same. This, to our minds, is very satisfactory evidence of a delivery of the property to Mrs. Miller for the benefit of the donees, and the surrounding facts and circumstances unquestionably show that Mrs. Hanson then intended to, and did, part with the title to said property. The testimony shows that she realized that she was in extremis, and she did not put any limitations whatever on her directions to Mrs. Miller. We have no hesitancy in holding that the delivery to Mrs. Miller was for the benefit of the donees, and was such a delivery as is required in cases of gifts causa mortis.
We do not deem the fact that the box was locked and the key was subsequently found among the possessions of Mrs. Hanson in any way controlling; because, under the testimony, the intent of Mrs. Hanson is quite apparent, when she directed the same to be turned over to Hauser, and said that he knew what was to be done with the same. This is reinforced by the fact that the respective bonds were inclosed in envelopes, sealed, and ready for delivery, and each carried a postage stamp.
We think the inevitable conclusion, under the facts in this *Page 771
case, and the rules above stated, is that this was a gift causamortis in each case, and that the respective claimants were entitled to their bonds, as claimed.
As to the deposit in the bank claimed by Clara L. Paul, we are equally satisfied that she was entitled to this money. When the deposit was made, the cashier was directed that, on the death of Mrs. Hanson, the money in this account was to be 2. GIFTS: gifts turned over to Mrs. Paul. The pass book causa apparently was in the same form as the account, mortis: bank and the bank officials say that the money could deposit: not be withdrawn prior to the death of Mrs. delivery. Hanson without the signatures of both Mrs. Paul and Mrs. Hanson. The bank also had written authorization to pay this money to Mrs. Paul on the death of Mrs. Hanson, and this was a signed direction by Mrs. Hanson, and carried with it the signature of Mrs. Paul, although the latter was placed thereon subsequent to the signature of Mrs. Hanson. More than this, the box above referred to contained the pass book for this account, the possession of which, under ordinary circumstances, controls the deposit. The delivery of the pass book, under the circumstances related, would complete the gift. This question is elaborately discussed in the case of Snidow v. Brotherton,140 Va. 187 (124 S.E. 182), with an exhaustive note in 40 A.L.R. 1246.
We might say that the facts in this case are sufficiently strong to support this as a gift inter vivos under the rule laid down in In re Estate of Fenton, 182 Iowa 346; In re Estate ofStockham, 193 Iowa 823; Miller v. Williams, 195 Iowa 1305.
We conclude, under this record, that Mrs. Paul was entitled to the money on deposit in the Commercial Trust Savings Bank of Charles City. — Reversed.
STEVENS, C.J., and De GRAFF, MORLING, and WAGNER, JJ., concur. *Page 772 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429268/ | Appellant owned three hundred sixty shares of the capital stock of the Citizens Trust Savings Bank of Davenport, Iowa. On the 27th day of April, 1931, that bank and the American Commercial
Savings Bank of Davenport, Iowa, entered into a contract, subject to the approval of their stockholders, called a contract of merger consolidation and capital readjustment. These banking institutions will be referred to herein as the Citizens Bank and the American Bank, respectively. This so-called merger contract provided that the American Bank was to purchase all the assets of the Citizens Bank, subject to the liabilities of said bank, on the basis of paying to the stockholders of the Citizens Bank a liquidating dividend of $160 per share. The contract further provided, however, that the stockholders of the Citizens Bank, collectively, were to purchase an aggregate of not less than nine hundred twenty-three shares of the additional capital stock of the American Bank at $260 per share, and that the liquidating dividend payable to the stockholders of the Citizens Bank, who subscribed for stock in the American Bank, should be applied first, on the stock subscription.
A stockholders meeting was called by each of the banking institutions to be held on the 29th day of May, 1931, to approve that contract. Prior to that date, and on or about the 23d day of May, the appellant signed a proxy authorizing the officers of the Citizens Bank to vote his stock at this stockholders meeting and at the same time signed a subscription for two hundred twenty-three shares of the additional capital stock in the American Bank, and at the same time turned over to the acting president of the Citizens Bank certificates covering three hundred sixty shares of stock in the Citizens Bank to be used in making settlement for the two hundred *Page 941
twenty-three shares subscribed for in the American Bank. The contract was approved by the stockholders of each bank on the 29th day of May, 1931, and on the following day all of the assets of the Citizens Bank were moved over and became a part of the assets of the American Bank, and on that date the Citizens Bank ceased to do business as a banking institution.
Thereafter, the claimant paid to the American Bank the difference required to complete the purchase of the two hundred twenty-three shares of stock in the American Bank and was listed as a stockholder on the books of that bank and received from that bank on July 1st a 4 per cent dividend on the two hundred twenty-three shares.
The American Bank, after acquiring the Citizens Bank, and having changed its name to the American Savings Bank Trust Company, in pursuance of the provisions of the merger contract, continued in operation until about the 1st day of October, 1931, when the superintendent of banking was appointed its receiver and took charge of it for liquidation as an insolvent institution.
Appellant in this case filed a claim in the receivership. The first count alleges that the American Bank took appellant's liquidating dividend of $160 per share on three hundred sixty shares of stock in the Citizens Bank, and the cash he paid in to complete the purchase, amounting to about $400, or a total of $58,020, as trustee. In a second count of his claim it is alleged that the American Bank took the assets of the Citizens Bank, as trustee, for the benefit of the creditors of the Citizens Bank, and asked that his claim be established against such assets. The claim is based upon the theory that the merger contract was never completed, and that pending its completion, the American Bank's relation to what it had received under it was merely that of trustee, and that ownership of the funds paid for the stock remained in the subscriber and that the ownership of the assets of the Citizens Bank remained in the bank until the merger contract had been completed in all its details.
Affiliated with the American Bank was an independent corporation doing a trust and investment business, all the stock of which was held for the benefit of the stockholders of the American Bank in the proportion that said stockholders held stock in the American Bank. The contract of merger and consolidation provided that the stockholders of the Citizens Bank, who purchased stock in the American Bank, were to acquire by such purchase a pro rata equitable *Page 942
interest in the stock of the affiliate. The contract further provided that the American Bank was to change its name to American Savings Bank Trust Company, was to acquire trust powers, and that subject to the approval of the banking department, it was contemplated that the trust business held by the affiliate should be transferred to the bank, some change made in the capital structure of the affiliate, its name changed to reflect its loss of trust powers, and that it should continue in business only as an investment company. The claim that the contract of merger and consolidation had not been completed is based upon a failure to carry out the provisions with reference to the affiliate.
The case is a companion case to that of the same title in which Frank J. Riling was appellant, No. 42109, 219 Iowa 921, 258 N.W. 911. Both cases were submitted on substantially the same record. The evidence as to the contract and what had been done to perform it is identical in both cases, and reference is made to the opinion in that case for a more detailed statement of the general fact situation. Appellant here occupies almost the identical situation in this case that Frank J. Riling did in that case and is making the same claim. What is held in that case with reference to the terms of the contract, what had been done in performance of the contract, and the relation of the American Savings Bank Trust Company to what it had received in pursuance of the contract, is equally applicable to this case. No useful purpose could be served by repeating it here. Suffice it to say that we held in that case that the merger contract had been performed according to its terms, that what the American Bank received in pursuance of the contract, both by way of subscription to its stock and as assets conveyed from the Citizens Bank, became the property of the American Bank, and that the fact that it became the property of the American Bank necessarily negatives the idea that it was held by the American Bank as trustee for claimant. We held further in that case that even though the merger contract had not been fully performed in all its details, it did not follow that the relation of the American Bank to what it had received with the consent of the other party to the contract and in a good faith effort to perform the contract was merely that of trustee. Our holding in that case is controlling here.
There is one circumstance which on the face of it might seem to distinguish this case from the one involving the Riling appeal. It will be noticed that the claimant describes himself as trustee. The *Page 943
stock which was in his name in the Citizens Bank was held by him as trustee, and that fact was known to the American Bank. It appeared, however, by the testimony of the claimant himself, that the real owner of the stock was the Peoples Gas Electric Company, and that the claimant, J.W. Walsh, and two other members of the Walsh family, to wit: Charley Walsh and Mark Walsh, constituted the board of directors of that company. It further appears from the testimony on behalf of claimant himself that when the merger contract was originally signed and before it was submitted to the stockholders of the Citizens Bank, the claimant met with the other directors of the company and went over the situation with them, and the claimant was instructed to execute the proxy and subscribe for stock in the American Bank, and that what he did in that respect was in pursuance of the authorization of the real owners of the stock. No question is, therefore, made on this appeal that the claimant, in dealing with the stock of the Citizens Bank or subscribing for stock in the American Bank to be paid for out of the liquidating dividend on the stock in the Citizens Bank, exceeded his authority or dealt with the trust property in a wrongful and unauthorized manner. It is not contended that the situation in that respect was any different from what it would have been if the claimant owned the stock in his own right.
There is one other respect in which the instant case differs somewhat from the Riling appeal. Riling was a resident of Burlington, Iowa, and the evidence in the case showed that he knew nothing of the failure to strictly perform all the provisions of the merger contract until after the failure of the American Bank. In the instant case, however, it appears that claimant had an office in the same building as the Citizens Bank, and that that building was either just across the street or in the same immediate neighborhood as the American Bank, and that he was familiar with what was being done to carry out the merger contract and knew what the situation was with reference to the affiliate when he received his dividend on July 1, 1931. In the instant case, this receipt and retention of dividends on the stock in the corporation with full knowledge of the situation would have to be held to be a waiver, at least as against creditors of the corporation, of any claim that the stock was not properly issued to him. Keyser v. Hitz, 133 U.S. 138, 10 S. Ct. 290, 33 L. Ed. 531. *Page 944
Since this court, upon the appeal of Riling, has determined the issues here involved adversely to appellant's contention, it follows that the judgment of the district court, approving the action of the receiver in disallowing appellant's claim, must be and is hereby affirmed.
All Justices concur, except DONEGAN, J., who takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429095/ | About 1881 the Missouri River shifted to the east, washing away a large portion of Section 15-80-45, including the Southwest Quarter of the Northwest Quarter, and establishing a new east bank near the east side of the section. Thereafter the river receded to the west, resulting in the formation of sand bar land where the Southwest Quarter of the Northwest Quarter formerly was, as well as in the space intervening between that and the new bank. It is the land that has by accretion replaced the Southwest Quarter of the Northwest Quarter that is here in controversy. Plaintiff was the owner of land abutting on the new bank on the east side of Section 15. He was also the owner of land abutting on the north of the Southwest Quarter of the Northwest Quarter, but when and how he acquired that land does not appear, unless it was through accretion.
[1] In 1907, in a suit in the Federal court, to which there were very many parties, a decree was rendered in favor of two cross-petitioners, quieting title in them to a large tract of accreted land, including the Southwest Quarter of the Northwest Quarter of 15. Though the basis of the title claimed by the cross-petitioners, or the connection of the parties to that suit to the title, except that the bill of complaint alleges title in plaintiff by adverse possession, does not appear, it is not questioned in this case that the necessary and proper parties were before the court. No question as to the sufficiency or validity of that decree is raised. It is shown without dispute that prior to the decree in *Page 345
the Federal court it was orally agreed between the two cross-petitioners in that case and the plaintiff in this case that plaintiff was to have the land covered by the decree which lay directly west of plaintiff's land. It was further shown without dispute that "prior to that litigation (plaintiff) had been in possession of a portion of that land." The Southwest Quarter of the Northwest Quarter of Section 15 was sold at tax sale in 1903 for the taxes of 1901 and 1902 to Ogden, and tax deed to him, dated April 10, 1911, was recorded April 11, 1911. Ogden's grantee conveyed to defendant by deed dated May 2, 1927. The abstract does not show who was the owner of the patent title, but inferentially the land was assessed in the name of such owner up to the years 1912 and 1913, when Ogden's name "was inserted." Thereafter the land seems to have been "listed in the name" of Ogden. Taxes appear not to have been paid until 1921, when the land was sold to plaintiff for taxes assessed to Ogden. Plaintiff paid taxes for 1922, 1923 and 1924 as purchaser at tax sale. In 1926 redemption was made in the name of Ogden, but the amount paid on redemption was not taken by plaintiff. The taxes for 1925 were paid by Ogden, those of 1926 and 1928 by plaintiff, and those of 1927 and 1929 by defendant.
[2] Plaintiff's testimony is undisputed that he "had been in possession of the forty acres in controversy prior to the time of the decree in the United States Court. At that time it was Missouri River land growed up with brushes, willows and cottonwood, overflowing every now and then in June. In 1905 was about the first time I went out to do any work and I sold riprap willows off it in the spring of 1905 and as fast as the land dried up and I could get over it I used it for pasture. * * * I never enclosed this forty with a fence in itself but it was enclosed with other land in my pasture by a fence for the first time in 1917. I first commenced to pasture it in 1909 or 1910. * * * I pastured it two or three years then it dried up and I enclosed it within a fence in 1917. Before 1917, I just used the land in such a way as the nature of it would permit. * * * Since 1917 I have continuously used this pasture including the forty acres in controversy. I have run from 60 head of stock to as high as 400 head of cattle and horses in there. They have been in there all of the time since 1917 except two years when the river was very high. * * * About three fourths of the forty acres in controversy is *Page 346
heavy timber with some natural wild grass but not very much. * * * From the time of the action in the Federal Court and down to the spring of 1927, when Clinkenbeard got his deed I was never disturbed or interrupted in my use or possession of this property and I have used it continuously since 1905. I was never served with notice of the tax deed by Rex Ogden in 1911."
There is no evidence of any possession taken or claim made under the tax deed to Ogden except defendant's testimony that since he got his deed he had cleared off 10 1/2 acres; that he had cut wood and brush every year since he got his deed, which as has been stated, was dated May 2, 1927. It is shown by the testimony of other witnesses as well as the plaintiff without contradiction that a large tract, including the land in controversy, was enclosed by fences constructed by plaintiff and by a ditch on the south side which prevented the passage of cattle, and was occupied by plaintiff as a pasture since 1917, and that the land had been used by plaintiff for pasture and other purposes before that time.
While plaintiff does not testify in terms, or as specifically as might be, that he was continuously and exclusively in possession as owner peaceably, under color or claim of title, in good faith, for more than 10 years, yet that such is the fact is the only conclusion that may reasonably be drawn from the record. Defendant argues that plaintiff failed to list the land for taxation, purchased it at tax sale, did not fence or use it "in any manner that he exercised dominion over it, * * * offered no evidence of an oral deed or verbal grant such as, had it been reduced to writing, would be a grant thereof," acquired no title by accretion, "furnished no evidence of actual possession upon adverse possession, * * * recognized the A.R. Ogden title, bought the land at tax sale, allowed redemption by Ogden." Defendant further argues that the taking by plaintiff of tax sale certificate and allowing redemption is conclusively inconsistent with the theory of right and adverse possession; that the fences surrounding a tract of different owners did not constitute evidence of possession; that occupancy without listing for taxation is not sufficient to establish adverse possession; that title by adverse possession cannot be acquired by acts "consistent with the idea of harmless encroachment without the thought of acquiring an interest therein;" that "possession must be taken or improvement made or *Page 347
something else done in pursuance of an agreement in parol fixing the boundary in order to render it binding on the parties;" "plaintiff, knowing his interest was not disclosed by the record, stood silently by and saw others in good faith discharging the obligations which, if his claim be true, the law (devolved?) upon him, and knew of the payment of taxes and of the claimant of the land, and * * * is thereby estopped * * *."
[3] As we have no statute making the payment of taxes essential to the acquisition of title by adverse possession, neglect to pay taxes does not preclude such acquisition. 2 C.J. 203. See Davidson v. Thomas, (Iowa) 86 N.W. 291 (not officially reported).
There is no evidence that plaintiff recognized title in defendant or his predecessors. His purpose in purchasing at tax sale might have been merely to fortify his claim to title by accretion. (Plaintiff did not accept the money for redemption.) See Kuh v. Flynn, (Neb.) 189 N.W. 280; Zweibel v. Myers, (Neb.) 95 N.W. 597.
Claim of right is distinct from claim "under color of title." We have said that claim of right or "hostile claim" need not be under color of title. Hamilton v. Wright, 30 Iowa 480, 485; Ratigan v. Ratigan, 181 Iowa 860, 871; Goulding v. Shonquist,159 Iowa 647, 650.
This is the general rule as respects land actually occupied. 2 C.J. 168.
But however this may be, the decree in the Federal Court is not attacked. (Plaintiff's right to claim under it only being in dispute.) That decree gave plaintiff color of title. 2 C.J. 196.
As against defendant at least, who is not in privity with the cross-petitioners in the Federal court case or to any agreement concerning that case, it is not necessary that the agreement between plaintiff and the cross-petitioners be in writing. Quinn v. Quinn, 76 Iowa 565; 2 C.J. 170; Ratigan v. Ratigan, 181 Iowa 860; Close v. Samm, 27 Iowa 503.
The undisputed evidence is that plaintiff was continuously and exclusively in possession at the time of the execution and recording of the tax deed and for more than 15 years thereafter. There is, therefore, no room for claim of constructive possession *Page 348
under the tax deed. Willcuts v. Rollins, 85 Iowa 247, 250; Libbey v. Young, 103 Iowa 258.
Whether or not plaintiff in fact acquired title by accretion we are not called upon to consider. See Payne v. Hall, 192 Iowa 780. Plaintiff was in fact in possession claiming ownership at the time the tax deed under which defendant claims was executed and recorded and for more than 15 years thereafter. Plaintiff, therefore, had the right to defend against the tax sale. Chandler v. Keeler, 46 Iowa 596.
[4] By the statute, Code, 1897, Section 1448 (Code, 1924, Section 7295):
"No action for the recovery of real estate sold for the nonpayment of taxes shall be brought after five years from the execution and recording of the treasurer's deed * * *."
This statute operates to bar an action by the holder of the tax title on the expiration of five years from the recording of the treasurer's deed. Barrett v. Love, 48 Iowa 103; Brown v. Painter,38 Iowa 456; Hintrager v. Hennessy, 46 Iowa 600; Innes v. Drexel,78 Iowa 253; La Rue v. King, 74 Iowa 288; Peck v. Sexton, 41 Iowa 566; Brett v. Farr, 66 Iowa 684.
In Innes v. Drexel, 78 Iowa 253, 254, it is said:
"And after five years from the time it begins to run not only is the tax title extinguished, but all rights which are dependent upon it."
The qualification annexed to the statute by the Code of 1897, "unless the owner is, at the time of the sale, a minor, * * * in which case such action must be brought within five years after such disability is removed," did not change its applicability to the owner of the tax title as settled by the decisions of this Court of long standing. Actual possession under claim of ownership and under the Federal Court decree and oral agreement made out a prima-facie case. 51 C.J. 257. Defendant, on this record, is a mere intruder, and not in position to question plaintiff's title. Keokuk Des Moines Railway Co. v. Lindley,48 Iowa 11, 14; Chandler v. Keeler, 46 Iowa 596; Williams v. Swetland, 10 Iowa 51, 57; Shaffer v. McCrackin, 90 Iowa 578, 581; Moore v. Kleppish, 104 Iowa 319, 322; Welch v. Jenks, 58 Iowa 694.
Defendant was a mere intruder, and so far as he appears to *Page 349
have acted at all, was a mere volunteer, to whom the plaintiff was under no duty and to whom plaintiff made no representation. Upon plaintiff's action or non-action defendant had no right to rely, and did not rely. Defendant has shown no ground for the alleged estoppel. — Affirmed.
WAGNER, C.J., and ALBERT, EVANS, and KINDIG, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429100/ | The American Trust Company was a corporation organized and existing under the laws of the state of Iowa with its principal place of business in Davenport, Scott county, Iowa. The will of one Pauline Strasser was admitted to probate in the district court of Scott county, Iowa, on the 2d day of April, 1928. The will created a trust estate for the use and benefit of a son and stepdaughter of the decedent, and devised such trust estate to the American Trust Company of Davenport, Iowa, in trust. In February, 1929, the said American Trust Company qualified as trustee under the said will, and letters of trusteeship were issued to it by the district court of Scott county. The said trust company continued to act as trustee of said estate until on or about December 27, 1932, at which time the superintendent of banking of the state of Iowa was appointed its receiver by the district court. The order appointing said receiver found that the trust company was insolvent, and directed the liquidation of its liabilities, the distribution of its assets, and the winding up of its affairs, and appointed a receiver for the purpose of making such liquidation, distribution, and dissolution. The trust company appeared in the proceeding in person and by written appearance of its board of directors, in conformity with a resolution duly adopted by said board. The receiver, after his qualification, filed an application in the proceedings in which he stated that "there are few, and perhaps no, claims existing in favor of depositors and that by far the greatest number of claims existing against American Trust Company are claims on account of net cash balances of moneys received by American Trust Company in the capacities of executor, administrator, guardian, trustee, or other fiduciary capacity," and that such claims should be made and filed by successors to be appointed to succeed the American Trust Company in such various fiduciary capacities, and the application further suggested or requested that claims on behalf of such trust estates be allowed in the amount shown by the inventory without requirement of filing proof thereof. Soon after the appointment of the said receiver the board of directors of the American Trust Company adopted a resolution reciting that the receiver had taken possession of the property and business of the American Trust Company, "including assets and property of the several trusts which make it impossible for American Trust Company to perform any acts in a fiduciary capacity," and reciting further that the company had been *Page 196
appointed and qualified in various fiduciary positions and relationships, and stating further, "that the Company does hereby resign each and every its office and position aforesaid" and authorized the receiver to file appropriate resignations and to turn over and convey the trust assets to its successors in trust and renouncing all right, title, and interest in and to the real and personal property of the estate or trust to which such successor shall be appointed.
The receiver presented a certified copy of the foregoing resolution to the court and procured authority from the court to act pursuant to and in accordance with the said resolution. The appellee Jennie Strasser, who was the sole surviving beneficiary under the Pauline Strasser trust, then filed an application in the probate proceeding for the appointment of a successor trustee, and the Davenport Bank Trust Company was by the court appointed such successor in trust, qualified as such, and letters of trusteeship were issued to it. Thereafter, the Davenport Bank Trust Company as successor trustee applied to the district court in the receivership proceeding for an order requiring the receiver to turn over the assets of the Strasser trust to it as successor of the American Trust Company. No notice of the filing of such application was served on any officer of the American Trust Company, but it was submitted to and approved by the receiver of the trust company. An order was made on said application directing the receiver to turn over to the Davenport Bank Trust Company the assets belonging to said trust estate.
The American Trust Company ceased to act as trustee when the receiver was appointed, and made no reports and performed no duties as such for more than a year. Nearly two years after the appointment of the receiver of the American Trust Company and more than a year and one-half after the assets in the Strasser trust had been turned over to the Davenport Bank Trust Company by the receiver, the board of directors of the American Trust Company met and adopted a resolution purporting to rescind the former action of the board of directors resigning all fiduciary positions, and soon thereafter the appellant herein, William A. Hickey, filed in the district court of Scott county an application for an order requiring the Davenport Bank Trust Company to turn over the assets of the Pauline Strasser trust to the American Trust Company, reciting in the said application that he was a surety on the bond of the American Trust Company *Page 197
as trustee under the will of Pauline Strasser, and that the American Trust Company had never been removed as trustee of such estate, and that the appointment of the Davenport Bank Trust Company was illegal and of no force and effect. A hearing was had upon this application, and the prayer thereof denied. The applicant, William A. Hickey, prosecutes this appeal.
The appellant contends that the order appointing the successor trustee was void for the reason that no vacancy existed in the trusteeship. The appellant insists that the insolvency of the American Trust Company and the appointment of a receiver therefor did not create a vacancy in the office of trustee in the estate involved, and several hundred others in similar situation; that no proceedings to remove the American Trust Company as trustee were had under the provisions of section 12066 et seq., Code 1931. The sections referred to provide for the removal of executors or administrators and provide that such may be removed by the court or judge, when the interests of the estate require it, for several causes, among which we find the following: "Or [for] any other cause, he becomes incapable of discharging his trust in such manner as the interest and proper management of the estate may require." The statute then provides for the filing of a petition for removal, the issuance of a citation or a notice of the pendency of the petition for removal, and a hearing thereon.
Section 11876 of the Code provides that trustees appointed by the provisions of a will or by an order of court must qualify and give bonds the same as executors, and shall be subject to control or removal by it in the same manner, and others appointed.
Section 10764 of the Code provides that the district court "shall have jurisdiction in all matters in relation to the appointment of executors and trustees, and the management and disposition of the property of and settlement of such estates."
Chapter 416 of the Code authorizes state banks and trust companies to be appointed as fiduciaries in the matter of estates or trusts, and section 9292 of the Code provides that in case any such corporation desires to retire from business "or in case of the dissolution of any such corporation, the court having jurisdiction of each of the several trusts and appointments held by such corporation shall, upon application of such corporation or its receiver, after such notice to the other parties in interest as *Page 198
the court may direct, and after a hearing upon such application, appoint another corporation as successor trustee or appointee."
The appellant does not dispute the insolvency of the American Trust Company and the appointment of a receiver therefor, but argues that this situation does not create a vacancy in the office of fiduciary in the estate in which the trust company had been appointed and qualified. The finding by the court of a condition of insolvency and the appointment of a receiver in the instant case certainly divested the trust company of the control of all of its assets, including property held in trust, and effectually prevented it from further continuing or acting in any fiduciary relation, and prevented it from continuing business as a banking or trust company. In the instant case, practically all, if not all, of the business assets of the trust company consists of trust funds, and if the appellant's position is sustained, then the appointment of a receiver for the trust company would be an empty gesture, as he would not have authority to take possession of and conserve the various trust funds constituting the assets of the insolvent company. This position cannot be sustained. We do not think that the Iowa Statutes (chapters 415 and 416 of the 1931 Code) contemplate that a bank or trust company shall continue to administer trusts or act in a fiduciary relation after it becomes insolvent and a receiver is appointed therefor. When a receiver is appointed for a bank or trust company, its affairs, including its relation in the handling of trusts, immediately fall under the direction of the court appointing a receiver. The receiver cannot act as successor trustee permanently, but must retain and conserve the trust funds until successors in trust are appointed. After the finding of insolvency and the appointment of a receiver for a bank or trust company trustee, there is no longer any trustee legally qualified to perform the duties as such, and a vacancy necessarily exists. When a state bank or trust corporation is placed in the hands of a receiver, its capacity to continue to do business and the capacity of its officers and agents to conduct its affairs cease under the provisions of Code section 9239, and thereafter the receiver becomes the managing agent of the insolvent corporation under direction of the court.
An office may not be said to be vacant so long as it is supplied with one legally qualified to exercise the powers and perform the duties thereof, and conversely, it is vacant in the eyes of the law whenever it is unoccupied by a legally qualified *Page 199
incumbent who has a lawful right to continue therein and exercise the duties and perform the obligations incumbent upon such officer. It has been held, under statutes similar to our own, that when a bank or trust company acting as trustee becomes insolvent and is placed in the hands of a receiver that it ceases to function, and fiduciary positions held by it become vacantipso facto. Young v. Bankers Trust Co's., Receiver, 250 Ky. 1,61 S.W.2d 904; Sullivan v. Kuolt, 156 Wis. 72, 145 N.W. 210; Wallace v. Guaranty Trust Co., 259 Mich. 342, 243 N.W. 49; Poindexter's Succession, 19 La. Ann. 22; Hebert v. Jackson, 28 La. Ann. 377; Busch v. Schuttler, 216 Ill. App. 212.
It has also been held that abandonment of an office creates a vacancy which may be filled without notice. See Stafford v. Cook,159 Ark. 438, 252 S.W. 597.
The only purpose of notice to the original trustee of the application for his removal, or the appointment of a successor, is to enable him to deny the existence of the grounds for removal. Failure to give notice cannot affect the validity of the removal when the cause is imperative and the existence of the cause confessed.
In the case under consideration, the insolvent trust company through its board of directors passed a resolution soon after the appointment of a receiver resigning "each and every its office and position aforesaid (fiduciary capacity and relation) and does hereby authorize and empower" the receiver to file such instruments of resignation as may be appropriate in the premises. The resolution further recites that the trust company "hereby renounces all rights, title and interest in and to the real and personal property which is a part of the corpus of the estate or trust to which such successors will succeed," and further authorizes the said receiver to make, execute, and deliver in behalf of the trust company such instrument of transfer and conveyance to successors in trust as may be necessary to carry out the purpose of this resolution. A certified copy of this resolution was delivered to the receiver and by him presented to the court, and the court authorized, by an order, the carrying out of the provisions of the said resolution. Later and more than a year after the appointment of a receiver and after the adoption of the foregoing mentioned resolution the board of directors of the trust company attempted to repudiate and annul the resolution above referred to. The appellant contends, first, that the *Page 200
action of the board of directors of the trust company in passing the former resolution was invalid for the reason that one of the eight or nine members of the board of directors was not notified of the special meeting in which the said resolution was passed. But the fact remains that the receiver and the court did act under the provisions of the said resolution, and the further important fact exists that for more than a year subsequent to the passage of the resolution the insolvent trust company filed no reports, performed no acts, and made no claim or pretention that it was still acting as trustee in the instant estate. The appellant further contends that the resignation of the insolvent trust company was not acted upon or accepted by the probate court, and therefore no vacancy existed in the office of trustee in the instant case.
An application for appointment of successor trustee was filed soon after the appointment of a receiver and soon after the passage of the first resolution referred to, by Jennie Strasser, the sole beneficiary under the Pauline Strasser trust, and under this application the probate court appointed Davenport Bank
Trust Company as successor in trust of the Pauline Strasser trust. The successor trustee immediately qualified and received from the receiver of the insolvent trust company the assets belonging to the Pauline Strasser trust and has since acted as such successor in trust. We are constrained to hold that the provisions of the statute for the removal of a trustee are directory only, and that where a vacancy exists either by resignation, death, incompetency, or by the appointment of a receiver for the trustee and the taking over of the trust assets by the court through such receiver, that no formal application for removal of such insolvent trustee is necessary; that such action would be a useless and needless action. We further hold that the appointment of a successor in trust upon the application in the instant case was, in effect, a holding that a vacancy in the office of trustee existed and that no formal finding of such fact was necessary. We must bear in mind in this connection that the property of the trust was at all times in custodia legis, that the probate court is but a branch or division of the district court, and that the district court must take notice at all times of its own records, and that the probate court in acting upon the application for the appointment of a successor in trust had before it all of the records referring to the creation of the trust in question, the insolvency of *Page 201
the trustee, and the appointment of the receiver, and with these records and facts before it we hold that the probate court had jurisdiction and authority to make the appointment of a successor in trust in the instant case. The probate court has jurisdiction to appoint an administrator or trustee when a vacancy exists, as well as to remove an administrator or trustee for cause. The law does not require a useless thing, and when a fiduciary has put it beyond his power to continue to act and has unequivocally indicated that he has abandoned the office and desires to have a successor appointed, it is not necessary that he be formally removed. It is our holding that a vacancy exists in a fiduciary relationship whenever such office ceases to be occupied by one legally qualified to act and perform the duties thereof, and that where a bank or trust company empowered to act under chapter 416 of the Code as trustee, or in any fiduciary capacity, ceases to be legally qualified so to act by reason of insolvency and the appointment of a receiver, a vacancy exists and the affairs of the bank or trust company pass immediately to the control of the district court. Trust funds and estates such as here involved are always under the solicitous care and meticulous attention and supervision of the courts. And with this in mind we are not prepared to hold that under a situation such as here disclosed the appointment of a successor in trust for the American Trust Company was invalid.
We have been greatly aided in the preparation of the opinion and in an understanding of the record in this case by the very careful and painstaking opinion filed by the learned trial court, the Honorable Wm. W. Scott.
It follows from the foregoing discussion that the ruling and judgment of the lower court must be, and it is, affirmed. — Affirmed.
KINTZINGER, C.J., and MITCHELL, HAMILTON, ALBERT, RICHARDS, PARSONS, and POWERS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429101/ | This is an original proceeding in certiorari, to test the jurisdiction of the respondent court to modify a decree of divorce with respect to the custody of children and the payment of alimony, as provided in said decree. The 1. DIVORCE: record before us discloses that, on October 29, decree: 1921, a decree of divorce was entered in the subsequent district court of Iowa in and for Polk County, modifica- wherein the plaintiff Ethel May Franklin tion: (petitioner herein) was granted an absolute retention of divorce from the defendant John Franklin, Jr., jurisdic- and by the terms of said decree plaintiff was tion. given the custody of the minor children, and judgment for alimony against the defendant was awarded for the support and maintenance of said children in the sum of $80 per month, due and payable each month from and after the date of said decree, and until the youngest of the four children, then two years of age, attained the age of eighteen years, and subject to the further provision that said monthly alimony should be reduced by $15 per month as each of said children attained the age of eighteen years.
On the 24th day of October, 1925, a motion was filed in said cause by the defendant therein, to modify the said decree of divorce with respect to the matters heretofore mentioned. *Page 518
With the statements and allegations as contained in said motion, we are not concerned.
Upon the filing of said motion, an order was entered, fixing the time of hearing October 31, 1925, at 10 o'clock in the forenoon of said day, and providing that five days' notice of such hearing be given the plaintiff. In response thereto, the plaintiff, for the sole and exclusive purpose of questioning the jurisdiction of the court to hear and determine the matter in said manner, entered her special appearance, and therein and thereby challenged the jurisdiction of the said court "to modify a decree after one year from the date of entry thereof, unless a petition is filed at a regular term of court and notice served for said term of court, as provided with respect to the commencement of any action." The court overruled the matter raised by the special appearance, and ordered the cause to proceed on said motion. This ruling is the provocation for the suing out of the instant writ of certiorari.
Courts constitute the agency by which judicial authority is made operative. The element of sovereignty known as judicial is vested, under our system of government, in an independent department, and the power of a court and the various subjects over which each court shall have jurisdiction are prescribed by law. We are dealing here with a question of jurisdiction, which may be defined as the power conferred upon a court to take cognizance of and to decide cases in law, equity, or special proceedings, and to carry its judgments and decrees into execution.
In brief, jurisdiction is the lawful exercise of judicial authority, and involves two elements: (1) the subject-matter of the action or proceeding, and (2) the parties thereto. Jurisdiction of the subject-matter is given to a court solely by the law. Consent cannot confer the right. Jurisdiction over the person is acquired by the service of process upon the defendant, as defined by law, or by his voluntary submission to the jurisdiction of the court. The object of process is to give a person notice that an action or proceeding has been commenced against him, and to afford him opportunity to contest the claim of the adverse party.
With these elementary propositions in mind, we turn to *Page 519
the challenge made by the petitioner to the jurisdiction of the court in the instant matter. It is obvious that a legal and timely notice is required. Hamman v. Van Wagenen, 94 Iowa 399. It is also obvious that the jurisdiction of the respondent is found in the provisions of Section 10481, Code of 1924. This section reads:
"When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right. Subsequent changes may be made by it in these respects, when circumstances render them expedient."
The salient words in the last sentence are "in these respects."
It is generally held that a court of chancery may expressly reserve control of a case of which it has jurisdiction, and keep it open for further relief or proceeding before final decree is entered. Lindquist v. Lindquist, 148 Iowa 259. But independently of this principle of equity jurisprudence, the quoted statute gives the court power, in certain particulars, to modify the original decree of divorce at a subsequent term of court. There can be no question that a decree rendered in a divorce case is a finality as to all matters which were at issue or which it was the duty of either party to present before the case went to final decree. Kwentsky v. Sirovy, 142 Iowa 385.
The statute, however, contemplates that subsequent changes may be warranted, and the authority is expressly conferred on the court to make subsequent changes, under proper conditions and upon a proper showing therefor. If this is not done, the decree, as originally entered, must be viewed as an adjudication.Jennings v. Jennings, 56 Iowa 288.
The petitioner subscribes to these propositions, but contends that the jurisdiction of the district court to modify a decree of divorce in the absence of any reservation in the decree must be exercised in the manner pursuant to the general 2. CONSTITU- statute relating to the modification of decrees, TIONAL LAW: and that the court is powerless to prescribe a due process: notice, in the absence of express statutory absence of authority. It may be observed that the statute statutory is silent on the question of notice to the provision adverse party when a for notice: power of court to prescribe. *Page 520
modification of a decree of divorce is sought in any of the particulars within the purview of the statute. Section 10481, Code of 1924. Clearly, this statute reserves in the court the jurisdiction of the subject-matter defined therein. Does it reserve the jurisdiction of the parties? We answer in the affirmative. An application to modify the terms of a decree of divorce is not an independent proceeding. It is not the commencement of an action. It is simply a proceeding supplementary or auxiliary to an action in which certain matters theretofore determined are, by the very terms of the statute, subject to modification. Wilde v. Wilde, 36 Iowa 319.
True, if a wife seeks alimony in a divorce action, and none is awarded, the effect is the same as though the decree expressly denied it. Under such circumstances, it is an adjudication binding upon the parties. Spain v. Spain, 177 Iowa 249.
In the Spain case, there was no reservation in the decree, and under its terms there was nothing to modify by a subsequent application with respect to an award of alimony to the wife. It was recognized, nevertheless, that the husband's duty to support his child was a continuing duty, and that in this respect the application for the allowance to support the child was proper. The jurisdiction to award same existed by virtue of the quoted statute.
In Delbridge v. Sears, 179 Iowa 526, it is recognized that a decree of divorce providing for a stated alimony is conclusive as to conditions existing at the date of the decree, but that a court, upon a showing of changed circumstances, has power to modify, within its reserved jurisdiction under the statute. This is not the granting of a new trial, or a retrial of the original case. It is said:
"A court of equity, having obtained jurisdiction originally, retains jurisdiction for the purpose of subsequent changes or modifications to meet new and changed conditions, but not otherwise."
This rule finds its basis in sound public policy. Schlarb v.Schlarb, 168 Iowa 364.
Under the quoted statute, full jurisdiction having been reserved in the trial court, the only requisite necessary to reassert control to act in the premises is the service of such notice as *Page 521
3. DIVORCE: may be said to be timely, reasonable, and within decree: the purview of the statute governing process. subsequent This might be done in the manner prescribed by changes: statute for the commencement of an original jurisdic- action, and it may be conceded that this would tion: how be a rule of better practice. However, it is not asserted. an essential requirement.
In Blachly v. Blachly, 169 Iowa 489, an application was filed by defendant in the original divorce cause to modify a decree as to the custody of a child. The plaintiff and the child at that time were nonresidents of Iowa, and the notice of the application, as ordered by the trial court, was by publication. This was held insufficient, for the reason that, although there was a publication, as ordered by the court, no authority for notice by publication existed, other than that prescribed by the general statute. Whether a notice given by publication in strict conformity to statute, under such circumstances, would be sufficient, we do not now determine. In opinion it is said,obiter dictum:
"* * * that, had personal notice been given to plaintiff of the hearing to modify the decree, the method pursued would have been sufficient, and that reasonable notice would be all that is required."
The adverse party and the subject-matter, under the circumstances of the case at bar, must be viewed as within the jurisdiction of the court, under the terms of the statute in question, and due process seems to require only that the method of service prescribed shall be one reasonably calculated to give the defendant knowledge of the proceeding and an opportunity to be heard. This is the fundamental limitation. This was recognized and respected. Wherefore, the writ is — Discharged.
STEVENS, FAVILLE, and VERMILION, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429103/ | I. Appellant Zora Roberts is the owner of a Studebaker automobile, and the appellee, S.S. Harriman, was the owner of a new Chevrolet. On June 28, 1928, a collision occurred between the two automobiles at a point on the Lincoln Highway about five miles west of Mt. Vernon, Iowa. Appellant's car was being driven west by Roy P. Roberts, and appellee's car east. The collision occurred near the foot of a hill down which the appellee's car was being driven. In the immediate vicinity of the accident, on the south side of the pavement, was a filling station, and on the north side, a Ford automobile, resting partly upon the shoulder and partly upon the pavement. The Chevrolet was tipped over and severely damaged. The damage to the Studebaker was not so great.
The negligence charged in the petition was the excessive rate of speed at which appellant's car was being driven, and that same was being operated to the left of the center of the pavement. It was also charged that the driver did not have the car under control. The appellants each filed a counterclaim for damages. Appellant Zora Roberts, who was the owner of the car, charged negligence in several particulars on the part of the driver of the Chevrolet, and asked judgment for damages to the automobile, loss of time, expense, and mental anguish.
The appellant Roy P. Roberts, who is the husband of his co-appellant, also filed a counterclaim, in which he charged the same acts of negligence as did his wife, and asked damages in one count for loss of time, expense, and mental anguish, and in another count, damages for malicious prosecution, based upon his arrest for the alleged reckless driving of the automobile.
Upon motion of appellee, both counterclaims were stricken. The ground upon which the ruling of the court was 1. SET-OFF AND based, as disclosed by appellee's argument, was COUNTER- that the cause of action pleaded in each of CLAIM: said counterclaims was a new and independent subject- one, and did not arise out of the transaction matter: upon which appellee predicates his misjoiner of damages causes of action. growing out of same transaction.
It must be conceded that the pleadings of all of the parties are rather scant; but it is obvious, we think, from the admissions and allegations of the answer and counterclaims of both appellants, that the claim for damages to the Studebaker automobile, *Page 1374
together with the expense and loss of time, if any, all arose out of the collision complained of by appellee. No other inference from the pleadings is possible. It is true that neither counterclaim specifically so alleged.
Subdivision 2 of Section 11151 of the Code of 1927 is as follows:
"Each counterclaim must be stated in a distinct count or division, and must be: * * *
"2. A cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contracts or transactions set forth in the petition or connected with the subject of the action."
Under this provision of the statute, each of the defendants had a right to plead their cause of action as a counterclaim in this case. It is, of course, true that only the appellant Zora Roberts could recover damages for the injury to the automobile, but it is readily conceivable that each of the appellants might have suffered damages which they would be entitled to plead separately as a counterclaim. A counterclaim in such case is in the nature of a set-off. Hogle v. Smith, 136 Iowa 32. New matter constituting a cause of action in favor of one of the defendants only could not be pleaded as a counterclaim against appellee.Shaw v. Ioerger, 203 Iowa 1256.
The ruling of the court, therefore, striking the first count of the counterclaim filed by the appellant Roy P. Roberts to recover damages for malicious prosecution was proper, and must be sustained. Some of the items at least of the 2. SET-OFF AND counterclaim filed by the appellant Zora Roberts COUNTER- were proper and permissible, and therefore the CLAIM: ruling of the court striking same was erroneous. subject- The ruling of the district court on the motion matter: to strike was not made by the judge before whom distinct the case was tried. A motion to vacate and set transaction: aside the prior ruling of the court was malicious overruled. If any of the items of damage alleged prosecution by Roy P. Roberts in the second count grew out growing out of the transactions complained of and were of auto properly recoverable against the appellee, the collision. counterclaim should not have been stricken. *Page 1375
The motions to strike assailed each of the counterclaims as a whole, and did not challenge any of the several items thereof separately. We are not, therefore, called upon to express any opinion as to the merits of the claims of either appellant. Apparently, some of the items are duplicated in the separate pleadings.
II. The next question that naturally presents itself is: Was the ruling of the court on the motions to strike the counterclaims filed in behalf of appellants prejudicial? It must be kept in mind that the damages to both 3. APPEAL AND vehicles grew out of the same accident, and were ERROR: the result of the collision that occurred. If review: the damages complained of by plaintiff were the harmless proximate result of the negligence of the error: defendants, then certainly they could not erroneous recover on their counterclaims. It is true that striking of the plaintiff might, even in that event, be counter- defeated by proof of contributory negligence, claim. but this has no bearing upon the question of prejudice. If, on the other hand, the collision and consequent damages to the defendant's automobile were due to the negligence of the plaintiffs, then the owner of the car at least would have been entitled to recover compensation for the injuries thereto. There is no theory upon which both the plaintiff and the defendants were entitled to damages. Every fact and circumstance bearing upon the accident was introduced in evidence. Both appellee and appellants were permitted to introduce testimony fully detailing their respective theories of the occurrence. Witnesses upon both sides described in detail what they saw. The testimony as to numerous material matters is in direct conflict. The question as to whether the negligence of appellants, or either of them, was the proximate cause of the injury was one of the major issues submitted to the jury. With all of the facts before them, the testimony upon both sides of the case, the jury found that appellant's negligence was the proximate cause of the accident, and that appellee was free from negligence contributing thereto. Every fact and every issue, except the amount of damages alleged to have been suffered by appellants, was before the jury. Having stricken the counterclaims, the court, of course, declined to permit appellants to introduce testimony for the purpose of proving any of the items of damages alleged. The verdict was against appellants and in favor of *Page 1376
appellee, and it is difficult to conceive how the result could have been rendered otherwise by the mere introduction of testimony as to the extent of the injury to the Studebaker car, or other items alleged. While the ruling on the motion to strike the counterclaim of Zora P. Roberts and possibly some of the items of her husband's counterclaim was erroneous, it was, in view of the verdict of the jury finding that the accident was the result of the negligence of the driver of appellant's car, clearly without prejudice.
III. At the conclusion of all of the testimony, appellants moved to withdraw from the petition and from the jury the following allegations of the petition: "It [the Studebaker car] was over the center of the pavement and over on 4. AUTOMOBILES: plaintiff's side of the pavement at the time he injuries [the driver of the Studebaker car] ran into from plaintiff's automobile;" and also the allegation operation: that "said wreck was caused by the reckless way pleading: in which the defendant was driving the car." The using wrong grounds upon which the foregoing motion was side of based were that the allegations did not road. constitute actionable negligence, and were incompetent, immaterial, and irrelevant. The motion was overruled, and of this ruling the appellants complain. The ruling was clearly right. As suggested, the pleadings on both sides are rather scant and somewhat incomplete. They were not, however, assailed by motion to strike or for more specific statements. The mere driving with the wheels of an automobile over the black line in the center of the pavement may not, in itself, constitute negligence, but the duty imposed by statute upon the drivers of motor vehicles is, when passing, to give one half of the traveled way by turning to the right. The driver of appellant's car testified that he observed appellee approaching downhill on the right-hand side of the road, with the right wheels of the car off the pavement and on the shoulder, and that the accident was caused by the inability of the driver to right the car when it was driven back onto the pavement. The danger of a collision was so imminent that Roberts, according to his own testimony, set the brakes on his car, and at the time of the accident it was moving at not to exceed ten miles per hour. This testimony was contradicted by appellee's witnesses. The testimony on behalf of appellee showed that the left wheels of the Studebaker car were some *Page 1377
distance south of the center of the pavement. In the circumstances shown, this was clearly negligence. It is true that the allegation of the petition "that the wreck was caused by the reckless way in which defendant was driving the car" was a mere conclusion, but it followed the brief recital in the petition of the ultimate facts.
IV. Appellant also complains of the statement of the issues by the court. The statement is very brief, but it includes substantially all of the allegations of the petition, particularly of the acts constituting the alleged negligence. The statement was sufficient.
V. Complaint is also made of several of the instructions. The instructions were brief, but we find nothing therein which could have misled or confused the jury. The criticisms urged are without any substantial foundation, and need not be discussed in detail.
We conclude, therefore, that, in the light of all of the facts and circumstances shown in evidence, the error pointed out in the ruling of the court was without prejudice, and that the judgment should be, and it is, — Affirmed.
EVANS, ALBERT, MORLING, KINDIG, and WAGNER, JJ., concur.
FAVILLE, C.J., and GRIMM, J., dissent, on the ground that the error of the court in striking the counterclaim was not without prejudice. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429280/ | During an automobile race at the Clay County Fair, on October 1, 1927, one of the automobiles driven by a Mr. Nichols, at a high rate of speed, crashed through the fence surrounding the track, and ran a distance thereafter of about 40 or 50 feet, striking the plaintiff and severely injuring him. This action was instituted against both the Clay County Fair Association and the World Amusement Service Association of South Dakota. Upon trial, verdict was returned in favor of the plaintiff against only the World Amusement Service Association, and judgment thereon rendered, from which said defendant has appealed.
The races were conducted pursuant to a written contract between the appellant and the Clay County Fair Association, and were to be conducted under the rules of the International Motor Contest Association. Under the contract between the Fair Association and the appellant, the former agreed to promote and conduct automobile races and advertise them as a special feature for the fair on October 1, 1927, to furnish the track and grounds and necessary police protection, to procure the sanction of the International Motor Contest Association at its own expense, and to assume the responsibility for complying with the rules and regulations of that association. The appellant agreed to have seven racing cars and professional drivers present *Page 1300
for the races, and to furnish a program of events. It was therein agreed that, in consideration of the appearance of the appellant with the racing automobiles and drivers to take part in the program of events, the Fair Association was to pay the appellant "a sum equal to 50 per cent of the gross gate, grand-stand, parking space, and infield receipts" of that day. It was therein further agreed that the advertising of the auto races should be conducted under the following plan:
"The first party [the Fair Association] shall furnish orders to second party [the appellant] for all billboard paper used in advertising auto races; the second party [the appellant] shall pay for same and ship to said first party [the Fair Association]; the second party [the appellant] shall order all small advertising, such as heralds, window lithographs, cards, signs, etc., and the said first party [the Fair Association] shall pay for same. The first party [the Fair Association] shall pay for posting all billboard paper and the second party [the appellant] shall furnish an expert publicity and advertising agent and shall distribute all small advertising."
It was therein further agreed that the appellant should have score cards printed, and direct the selling of same, and divide the profits with the Fair Association; and that, should either car or driver meet with accident during the holding of the races, the appellant should not hold the Fair Association for any damages done, either to the said car or driver.
The appellant and the Fair Association appeared separately, each denying, on its part, the allegations of negligence averred in the petition; each alleging that the appellee was guilty of contributory negligence; and each alleging other matters in defense of itself.
The appellant, in its brief, sets out alleged grounds of error, which are not argued. Under Rule Number 30 of this court, all such are deemed waived.
The secretary of the Fair Association was called as a witness by the appellee, and was examined relative to the written contract between the Fair Association and the appellant. His direct examination related only to the written contract. On cross-examination by the appellant, the court permitted him to answer whether there was any other written contract, but stated, *Page 1301
in substance, that, if the inquiry related to an oral contract, it was not proper cross-examination, and called for the conclusion of the witness. The witness answered that he knew of none. He was then asked by the appellant whether there was any other contract between the Fair Association and the appellant, and the objection by the appellee was sustained. There is no error at this point.
The appellant also complains of certain rulings by the court in sustaining appellee's objections to questions propounded to appellant's witnesses relative to the employment or arrangement between Nichols, the driver of the car in question, and the appellant. The court permitted the witnesses to testify as to any transaction relative thereto within their personal knowledge, but carefully excluded the conclusions of the witnesses. There is no merit in appellant's complaint at this point.
Another contention of the appellant's is that there is no evidence of negligence by the appellant, or of anyone in its employ, while acting within the scope of his employment. Nichols was the driver of the car in question. There is 1. AUTOMOBILES: testimony from which the jury could find that he injuries was employed by the appellant as a driver at the from time in question. One of the grounds of operation, negligence is that the driver of said car failed or use of to have the same under control, and failed to highway: have the steering apparatus securely or safely automobile connected, but carelessly and negligently race. fastened the wheel on the steering apparatus of the car in such a manner that it became loosened, and that, because of the defective steering apparatus, said car was driven off the track and against the plaintiff, causing his injuries. As to this ground of negligence, a number of witnesses gave testimony that, when the driver got into his car, the steering wheel was off, and he placed it in position, and attached the nut which was for the purpose of holding the wheel only with his fingers. The track upon which the races were run was a half-mile track, oblong in shape, and the accident happened at the southwest corner, just before making the turn for the "straight away" for the grand stand. The race was 20 laps around the track, and the accident occurred about the 11th lap. Some of the witnesses gave testimony that, as the driver was making the turn, they saw the steering wheel entirely disconnected from the shaft, and *Page 1302
the driver holding it above the shaft in his hands. One witness, who was standing on the sheep barn, where he could see the actions of the driver at the time in question, testified, "I could see the wheel was clear loose in his hands," and that, before the car hit the fence, he saw the driver jerk back, with the wheel in his hands and apart from the shaft. There is testimony that, at the time the car stopped, the steering wheel was disconnected from the shaft. Without further elaborating upon the testimony, we hold that there was ample evidence upon this ground of negligence to take the question to the jury. Likewise, there was evidence upon the other grounds of negligence submitted to the jury for consideration as against the appellant. This contention of the appellant's is devoid of merit.
Another contention of the appellant's is that the plaintiff was guilty of contributory negligence, as a matter of law. Neither can we agree with this contention. There were ten or fifteen thousand people on the fairgrounds at the time 2. AUTOMOBILES: in question. The appellee drove into the injuries fairgrounds with his automobile, and bought from tickets for himself and family. He parked his operation, car where the marshal directed him. He went to or use of the grand stand, for the purpose of procuring highway: grand-stand tickets, but the office was closed. contributory He endeavored to obtain a seat in the bleachers, negligence. but was informed by the man in charge that they were full. He then went inside of the track, and watched some of the races, and about 5 o'clock, he went to the outside of the track, where his car was parked, and found that, because other cars were parked in close proximity, he could not get out. Two of his children were standing with him. There were approximately 200 people in close proximity, and a wire had been stretched about 37 feet from the fence. Between the wire and the fence is what may be termed "neutral ground," and beyond it, "the zone of safety." He was standing about 10 feet behind the wire, in the "zone of safety." The car came crashing through the fence, which was made of cedar posts, with a 1 x 10 board about the height of the hub of a horse cart, and a 2 x 6 on top. The car would have missed him, but it was deflected in its course, — probably because of striking a post, — and smashed into the plaintiff.
These are the major things revealed by the evidence upon *Page 1303
the question of contributory negligence. Ordinarily, the question of contributory negligence is one of fact, for the determination of the jury. Under this record, we cannot say, as a matter of law, that the appellee did not exercise the same care, prudence, and caution which an ordinarily careful and prudent person would have exercised under the same circumstances, and this is the criterion by which negligence is determined. See Graves v.Chicago, R.I. P.R. Co., 207 Iowa 30. The question of contributory negligence was for the jury. See Lutz v. Davis,195 Iowa 1049.
The next and last proposition argued by the appellant is that the court erred in, and that it was prejudiced by, the submission to the jury of four forms of verdict, in one of which he permitted the jury to find for the appellee, as 3. TRIAL: against both defendants; in another of which he verdict: allowed the jury to find for both defendants; in submission another of which the jury could find for the of forms: appellee and against the Clay County Fair adoption of Association; and in another of which he trial permitted the jury to find for the appellee and theory: against the appellant, which was the verdict effect. returned. The appellant argues that the court should have submitted only two forms of verdict: one in favor of the plaintiff, and the other in favor of both defendants.
In the petition, the grounds of negligence were alleged as against both defendants. These allegations were separately denied by each defendant. Each defendant contended that the appellee was guilty of contributory negligence; each separately contended that it was not guilty of negligence. It is apparent from the pleadings and the record that each defendant was contending that, if either was liable, it was the other. We make no pronouncement as to whether the defendants were jointly and severally liable, but see Ellingson v. World Amusement Service Assn., 175 Minn. 563
(222 N.W. 335). The trial court did not adopt appellee's theory of joint liability, but conformed the instructions to the theories of the defendants. Neither defendant had moved for a separate trial. If it be conceded that the defendants were jointly liable, the appellee could have proceeded against either one separately. No instruction as to the forms of verdict now contended for was asked by the appellant. It is apparent from the record that it was not the appellant's *Page 1304
theory in the trial court that the defendants were jointly liable. Neither is the appellant consistent in his present contention. He herein argues:
"Nor was there any evidence to support any allegation of the other grounds of negligence which the trial court apparently held were chargeable to the defendant Amusement Company; but even if there had been any evidence to support the specific charges of negligence, yet the appellant contends that these acts were not of such a concurrent or contributing kind as could be the basis of a charge of joint and several liability."
If, in accordance with appellant's theory in the court below, and in accordance with the foregoing quoted argument in this court, there was no joint liability by the defendants, there certainly was no error committed by the court at this point. On the other hand, if the defendants were jointly liable (a point which we need not and do not pass upon), the appellant was liable, in accordance with the verdict returned. As to this contention of the defendants' we find no error of which the appellant can now complain.
Having considered the entire record and the propositions argued by the appellant, we find no reversible error, and the judgment of the trial court is hereby affirmed. — Affirmed.
ALBERT, C.J., and STEVENS, De GRAFF, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4033503/ | 15-2820-cv
Patterson v. Raymours Furniture Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
CORRECTED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 14th day of September, two thousand sixteen.
PRESENT:
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges,
ALVIN K. HELLERSTEIN,*
District Judge.
__________________________________________
CONNIE PATTERSON, on behalf of herself
and all others similarly situated, and DAVID
AMBROSE,
Plaintiffs-Appellants,
v. No. 15-2820-cv
RAYMOURS FURNITURE COMPANY, INC.,
Defendant-Appellee.
__________________________________________
FOR APPELLANT: MICHAEL RUBIN, Altshuler Berzon
LLP, San Francisco, CA (Eric P. Brown,
*
Judge Alvin K. Hellerstein, of the United States District Court for the Southern District
of New York, sitting by designation.
Altshuler Berzon, San Francisco; Justin
M. Swartz, Outten & Golden LLP, New
York, NY on the brief).
FOR APPELLEES: DAVID M. WIRTZ, Littler Mendelson
P.C., New York, NY (Ron Chapman, Jr.,
Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., Dallas, TX; Christopher C.
Murray, Ogletree, Deakins, Nash, Smoak
& Stewart, P.C., Indianapolis, IN on the
brief).
FOR AMICI CURIAE: JOEL A. HELLER, on behalf of National
Labor Relations Board, Washington, DC.
EVAN M. TAGER, Mayer Brown LLP,
Washington, DC, on behalf of The
Chamber of Commerce of the United
States of America (Andrew J. Pincus,
Archis A. Parasharami, Matthew A.
Waring, Mayer Brown LLP,
Washington, DC; Kate Comerford Todd,
Warren Postman, U.S. Chamber
Litigation Center, Washington, DC on
the brief).
Evan J. Spelfogel, Steven M. Swirsky,
Epstein Becker & Green, P.C., New
York, NY, on behalf of The National
Retail Federation.
James Reif, Gladstein, Reif & Meginniss,
LLP, New York, NY, on behalf of
certain labor law scholars.
Appeal from the United States District Court for the Southern District of New
York (Valerie Caproni, Judge).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
2
Defendant-appellee Raymours Furniture Company, Inc. (“Raymours”) requires all
its employees, as a condition of their employment, to participate in the company’s
Employment Arbitration Program (“EAP”), which requires that employees submit all
employment and compensation-related claims to arbitration. The EAP also mandates that
such claims be decided on an individual basis.1 The EAP does not, however, prevent
employees from filing charges or participating in investigations conducted by the Equal
Employment Opportunity Commission and/or state or local human rights agencies, nor
does it require employees to waive any rights they might have under the National Labor
Relations Act (“NLRA”) or prevent employees from filing unfair labor practice charges
under the NLRA. Plaintiff-appellant Connie Patterson, a Raymours employee, brought
this putative class and collective action, asserting claims against Raymours under the Fair
Labor Standards Act (“FLSA”) and the New York Labor Law.2 Raymours moved to
1
A relevant portion of the EAP’s collective action waiver reads as follows:
CAN CLAIMS BE DECIDED BY CLASS OR COLLECTIVE ACTION?
No. This section describes the “Class Action Waiver” of the Program. Claims
under this Program cannot be litigated by way of class or collective action. Nor
may Claims be arbitrated by way of a class or collective action. All Claims
between you and us must be decided individually. . . . Thus, the arbitrator shall
have no authority or jurisdiction to process, conduct or rule upon any class,
collective, private attorney general or multiple-party proceeding under any
circumstances.
(App’x 140.)
2
Plaintiff-appellant David Ambrose, a fellow employee, later joined the lawsuit as an
FLSA opt-in plaintiff.
3
compel arbitration pursuant to the EAP. The district court granted Raymours’s motion,
holding that the EAP’s class action waiver was enforceable. See Patterson v. Raymours
Furniture Co., 96 F. Supp. 3d 71 (S.D.N.Y. 2015). The district court rejected Patterson’s
claim that the EAP’s ban on class or collective litigation or arbitration of workplace
grievances violated the employees’ right under the NLRA to “engage in . . . concerted
activities for the purpose of . . . mutual aid or protection.” 29 U.S.C. § 157. It held that the
Federal Arbitration Act (“FAA”) mandated arbitration of Patterson’s claims because the
plaintiffs, by accepting the EAP, had agreed to arbitrate their claims according to its
terms.
The only question presented on appeal is whether the EAP’s prohibition of class or
collective adjudication of work-related claims illegally restricts employees’ substantive
rights under the NLRA and the Norris-La Guardia Act (“NLGA”), and is unenforceable
under the FAA.3 We assume the parties’ familiarity with the underlying facts, procedural
history, specification of issues for review, and positions espoused by amici curiae.
The National Labor Relations Board (the “Board”) has squarely addressed the
issue on appeal and repeatedly concluded that Sections 7 and 8(a)(1) of the NLRA4 and
3
Appellants do not claim a right to pursue collective action in every forum or even in any
particular forum. Instead, they seem to argue that Raymours must either (a) permit class
or collective arbitration, or (b) waive the arbitral forum to the extent an employee seeks to
invoke class or collective procedures in court.
4
Section 7 of the NLRA states:
Employees shall have the right to self-organization, to form, join, or assist labor
4
Sections 2 and 3 of the NLGA5 foreclose enforcement of arbitration agreements that
waive an employee’s right to pursue legal claims in any judicial or arbitral forum on a
collective action basis. See, e.g., D.R. Horton, Inc., 357 NLRB No. 184, 2012 WL 36274
(2012) (“Horton I”); Murphy Oil USA, Inc., 361 NLRB No. 72, 2014 WL 5465454
(2014) (“Murphy Oil I”). The circuit courts, however, are irreconcilably split on the
question. The Fifth and Eighth Circuits have reversed the Board’s rulings on three
separate occasions. See D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344 (5th Cir. 2013)
(“Horton II”) (reversing Horton I); Murphy Oil USA, Inc. v. N.L.R.B., 808 F.3d 1013,
1015 (5th Cir. 2015) (reversing Murphy Oil I and noting that the “Board will not be
surprised that we adhere, as we must, to [Horton II]”); Cellular Sales of Missouri, LLC v.
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection . . . .
29 U.S.C. § 157 (emphasis added). Section 8(a)(1) of the NLRA states, “[i]t shall be an
unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in [Section 7].” Id. § 158(a)(1).
5
Section 2 of the NLGA declares, as “the public policy of the United States,” that an
individual employee
shall be free from the interference, restraint, or coercion of employers of labor, or
their agents, in the designation of such representatives or in self-organization or in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
29 U.S.C. § 102 (emphasis added). Section 3 enforces Section 2: “any [] undertaking or
promise in conflict with the public policy declared in [Section 2] . . . shall not be
enforceable in any court of the United States and shall not afford any basis for the
granting of legal or equitable relief by any such court . . . .” Id. § 103.
5
N.L.R.B., 824 F.3d 772 (8th Cir. 2016); see also Owen v. Bristol Care, Inc., 702 F.3d
1050 (8th Cir. 2013). The Seventh and Ninth Circuits, on the other hand, have agreed
with the Board that clauses precluding employees from bringing, in any forum, a
concerted legal claim violate the NLRA, and have further held that such agreements are
unenforceable under the FAA. See Morris v. Ernst & Young, LLP, No. 13-16599, 2016
WL 4433080 (9th Cir. August 22, 2016); Lewis v. Epic Systems Corp., 823 F.3d 1147
(7th Cir. 2016).6
If we were writing on a clean slate, we might well be persuaded, for the reasons
forcefully stated in Chief Judge Wood’s and Chief Judge Thomas’s opinions in Lewis and
Morris, to join the Seventh and Ninth Circuits and hold that the EAP’s waiver of
collective action is unenforceable. But we are bound by our Court’s decision in
Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013), which aligns our Circuit
on the other side of the split. In considering an alternative argument made by the plaintiff
in that case, Sutherland “decline[d] to follow the [NLRB’s] decision” in Horton I “that a
6
These courts see no conflict between the NLRA and the FAA with respect to such
agreements. The saving clause of the FAA confirms that agreements to arbitrate “shall be
valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract.” 9 U.S.C. § 2 (emphasis added). The Seventh and
Ninth Circuits have held that an “illegal” arbitration agreement, one that is unlawful
under the NLRA, “meets the criteria of the FAA’s saving clause for nonenforcement.”
Epic Systems, 823 F.3d at 1157; see also Morris, 2016 WL 4433080, at *7 (“when an
arbitration contract professes the waiver of a substantive federal right, the FAA’s saving
clause prevents a conflict between the statutes by causing the FAA’s enforcement
mandate to yield.”).
6
waiver of the right to pursue a FLSA claim collectively in any forum violates the
[NLRA].” Id. at 297 n.8. We are bound by that holding “until such time as [it is]
overruled either by an en banc panel of our Court or by the Supreme Court.” United
States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004).
Appellants’ argument that this panel is not bound by Sutherland is unpersuasive.
Although the Sutherland court rejected Horton I in a brief footnote, it unquestionably
rejected the NLRB’s analysis and embraced the Eighth Circuit’s position in Owen. The
parties in Sutherland extensively briefed their arguments under the NLRA and the
NLGA, and the panel’s rejection of those arguments was necessary to its judgment.
Appellants also argue that the Board’s more recent rulings that continue, subsequent to
Sutherland, to uphold the Board’s position have undermined the authority of Sutherland
by developing more refined arguments not addressed by our Court in that case. But such
subtleties of argument do not change the fact that the controlling question in this case was
clearly presented in Sutherland, and this Court rejected appellants’ position.
We have considered appellants’ remaining arguments and find them to be without
merit. For the reasons stated above, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7 | 01-03-2023 | 09-14-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4033990/ | Filed 9/15/16 C.Z. v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
C.Z.,
Petitioner,
v. A148651
THE SUPERIOR COURT OF CONTRA
COSTA COUNTY, (Contra Costa County
Super. Ct. Nos. J15-00788,
Respondent; J15-00789)
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
Real Party in Interest.
Petitioner C.Z., the mother of three-year-old K.D. I and 14-month-old K.D. II,1
challenges the Contra Costa County juvenile court’s June 15, 2016 order terminating
family reunification services and setting a hearing, pursuant to Welfare and Institutions
Code section 366.26.2 For the reasons stated below, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
On July 15, 2015, the Contra Costa County Children and Family Services Bureau
(bureau) filed petitions for each child alleging that C.Z. (Mother) has a substance abuse
1
The two minors have the same initials.
2
Unless otherwise noted all statutory references are to the Welfare and Institutions
Code.
1
problem that impairs her ability to care for that child.3 According to the July 16, 2015
detention/jurisdiction report filed by the bureau, Mother arrived at Alta Bates Hospital by
ambulance, under the influence of alcohol, and delivered K.D. II in the hospital lobby.
On a scale of 1 to 10, Mother’s alcohol level was 9.3; K.D. II was born intoxicated. The
newborn was admitted to the neonatal intensive care unit for respiratory distress. Mother
later reported that she had a toothache the day she gave birth and consumed vodka, rather
than pain medication, due to her concern that she not take such medication when she was
two days overdue. She also stated that due to her high tolerance for alcohol, she did not
feel drunk.
After the delivery, the bureau received a referral alleging general neglect by
Mother. Mother agreed to attend counseling and support groups and to submit to random
drug and alcohol testing. She was already attending counseling and drug testing under
the terms of probation imposed in criminal proceedings. Her probation officer reported
that she had been convicted for physical abuse (described below) and then violated her
probation when she assaulted her oldest child in September 2015. Nonetheless, the
probation officer described Mother as a “model probationer,” keeping all her
appointments, completing parenting and life skill classes, and submitting to random drug
testing. The probation officer opined, however, that the testing did not include testing for
alcohol consumption. Because of the parents’ willingness to engage in services, the
willingness of the children’s paternal grandfather to allow the children to reside with him
if Mother experienced a relapse, and the father’s agreement to protect the children if
Mother relapsed, the children were returned to Mother’s care. Pursuant to a voluntary
3
The petition regarding K.D. I also alleges that Mother has a history of engaging in
domestic violence with the father, which places the child at substantial risk of emotional
harm and physical injury. That allegation was ultimately dismissed, with Mother
promising to engage in domestic violence classes. The analogous allegation in the
petition regarding K.D. II is crossed out.
The petitions also make allegations regarding the father. The current writ petition,
however, is only from Mother. Consequently, we focus on the facts relevant to her.
2
family maintenance plan, Mother enrolled in outpatient treatment at the Ujima West
Recovery Center and agreed to comply with her probation requirements.
However, after Mother began treatment at Ujima, the bureau learned that she
arrived at her program drunk three times within a seven-day period. Once she drove with
her children while intoxicated. Based on these developments, the bureau decided the
children should be placed in protective custody. The paternal grandfather indicated that
he was unable to care for them; no other family member could be approved for
immediate placement. Therefore, the children were placed in protective custody on an
emergency basis and petitions were filed on their behalf. K.D. I and K.D. II were
formally detained on July 16, 2015. On October 20, 2015, Mother pled no contest to the
allegation that her substance abuse problem impairs her ability to care for the children.
The bureau’s October 20, 2015 dispositional report recommended that family
reunification services be provided to Mother. The report reviewed the mother’s child
welfare history in two counties, which showed that there had been five previous
allegations of abuse/neglect between 2007 and 2014 concerning K.D.I and two older
children who are not the subjects of this petition. It also showed that Mother had a March
2010 misdemeanor conviction for corporal injury on a spouse or cohabitant and a
February 2013 felony conviction for inflicting injury on a child. The report also noted
that Mother has a total of four children—none of whom were in her care. Her oldest
child was conceived when Mother was raped. During a court-ordered visit, Mother
physically assaulted the child, resulting in her conviction for corporal injury upon the
child. The court issued a restraining order, prohibiting Mother from having contact with
the two older children. The paternal grandmother is the legal guardian of Mother’s
second child. The eldest child, who suffers from “ongoing behavioral and mental health
problems,” was placed in foster care.
When she was very young, Mother was exposed to extreme domestic violence.
Her father shot himself while attempting to murder her mother. Mother’s father was a
heavy drinker and very abusive towards Mother’s mother. As a child, Mother and her
siblings were the subjects of multiple child welfare referrals.
3
Mother began drinking alcohol when she was approximately 13 years old. She
recounts that her consumption was relatively sporadic until guardianships were
established for her older two children. She denies any other substance abuse and claims
that she did not drink when she was pregnant with K.D. II. She insists that she did not
have a consistent pattern of alcohol abuse before the bureau intervened with her family.
Mother also concedes that she has trouble managing anger, which has affected her
relationships with her eldest daughter and her romantic partners. There were incidents of
choking and hitting with her prior partner, especially when they were both drinking. She
denies any significant violence in her current romantic relationship, but admits that when
she is angry at her current partner, she has occasional affairs with her former partner. She
admits that this behavior is immature and is working to find other means of dealing with
her anger.
When Mother was released from custody, she entered an inpatient substance abuse
program at The Rectory Women’s Recovery Center in San Pablo, where she was
described as an actively engaged “model resident,” who sets a positive example for other
residents.
The report also stated that Mother had weekly visits with her children since she
had been released from custody, which went “exceptionally well.” The bureau
authorized overnight visits with Mother at her program, one of which had already taken
place. Again, it was assessed as having gone “exceptionally well.” The bureau
anticipated extending the visits and Mother continued to demonstrate her ability to keep
the children safe while addressing her substance abuse and anger management issues.
The bureau’s assessment of Mother acknowledged that she did “exceptionally well
in treatment” and was expected to graduate her current residential treatment in late
October 2015. She was to be honored as the “mistress of ceremonies” at the Ujima
Recovery Award Ceremony and her primary counselor described her participation in the
program as “exemplary.” She had already contacted an outpatient treatment center and
anticipated promptly entering the program when she graduated from The Rectory.
Mother’s probation officer “copiously laud[ed] her for her continued adherence to her
4
case plan and compliance with meetings, drug testing and all other components of her
probation case.” The bureau, nonetheless, was concerned about “her ability to maintain
her sobriety outside of a structured, program especially given her history of continued
alcohol abuse while still in outpatient treatment.” It noted that notwithstanding her
history of exemplary participation in programs, she continued to place the children at
risk. It specifically noted the July 7, 2015 incident, when she drove with the children
when she was drunk. The bureau was especially concerned that this had happened while
she was in treatment. Similarly, it expressed concern that her anger and emotional
problems presented an “exceptionally high” risk of relapse, given her relatively short
treatment, when seen in the context of her past trauma. In summary, the bureau wrote,
“While her compliance is admirable, she has not yet demonstrated her ability to
internalize lessons learned and use them to cope with stress and anger without resorting
to anger and substance abuse. . . . Thus far . . . she has not sufficiently demonstrated her
capacity to effectively resolve problems without destructive behaviors, and the bureau
contends that additional time is needed for her to demonstrate that she can make the
positive changes needed to keep her children safe from harm.”
The court adopted the bureau’s findings and recommendations contained in the
October 20 report. Mother was required to participate in mental health counseling
designed to address her past trauma and assist her in developing coping strategies to deal
with her anger and stress, to complete a mental health evaluation by a licensed therapist,
to participate in a domestic violence program aimed at developing positive
communication techniques to resolve conflict, to engage in parenting education to learn
appropriate ways to handle her children and, after successfully completing and graduating
from her residential treatment program, she was required to complete a substance abuse
outpatient program. The court set the six-month review hearing for April 12, 2016.
In its six-month report, the bureau reported that the children were stable in their
placement. K.D. II was growing and thriving; K.D. I was active, talkative, and nearly
potty-trained. Mother had started her outpatient treatment and all went well for the first
30 days. However, on December 5, 2015, when the foster mother picked up the children
5
after their visit with Mother, Mother appeared to be intoxicated. The social worker
attempted to contact Mother but Mother did not contact the social worker for eight days.
When she did she explained that she had been sick, so she had taken NyQuil cold
medication—which she had just learned, made her “look high.” By the end of December
2015, Mother was experiencing “a full-blown relapse”—arriving at group sessions drunk
and also testing positive for alcohol. On January 19, 2016, Mother was placed on a
“disciplinary contract,” which she signed in the presence of her drug counselor and
probation officer. Despite this effort, she was discharged from the Ujima West outpatient
program on February 1, 2016, because she abruptly left in the middle of a group session
without notifying staff. She had also violated her disciplinary contract and had not
consistently submitted to random drug testing. Mother had no further contact with the
bureau until February 24, when she called to say that she had been admitted to The
Rectory, an inpatient program. The bureau then arranged a multidisciplinary case
conference, held on March 10, 2016. At this meeting, Mother presented well; she seemed
well-organized and clean; she participated in the meeting freely.
At the beginning of this reporting period, the children were having unsupervised
visits with the parents on weekends. When Mother relapsed, the unsupervised visits were
discontinued. When she entered The Rectory, Mother began to have weekly two-hour
visits with her children. The report noted that the bureau could not determine whether
Mother had developed a domestic violence relapse prevention plan; the report noted that
she had not been able to control her negative behavior while intoxicated.
With respect to Mother, the bureau was concerned about her “ongoing substance
abuse issues” coupled with her “propensity to manifest exemplary conduct” in a
“program environment.” The report noted her simultaneously drinking alcohol, while
attempting to function normally, as if the professional staff were unaware of what she
was doing. Because the bureau believed that the children could not be safely returned to
either parent, it recommended that the court terminate reunification services.
The court held a contested hearing on June 15, 2016. There were multiple factors
that contributed to the bureau’s recommendation that services be terminated. The
6
testifying social worker agreed that one of the reasons was that Mother was “almost out
of time.” Her children were under the age of three and the bureau had to consider her
behavior over the entire six months of the reporting period. She had had two relapses.
Furthermore, Mother had two older children who were either placed with the bureau or
with their paternal grandparent.
Mother testified that her current treatment program, unlike earlier programs,
would prevent her from relapsing. She now had a sponsor. She was addressing issues
with her therapist that had previously been unaddressed. She intended to go to 90
meetings in 90 days and, unlike previously, to work the steps.
For the six months prior to her hearing, Mother had consistently visited with the
children once per week. She did not have any overnight visits with the children. Finally,
Mother expressed the hope that she and the children’s father would get back together.
The juvenile court terminated reunification services and set a section 366.26
hearing for October 5, 2016. In doing so, the court acknowledged that Mother loves her
children, but recognized the tragic effects of alcoholism. It recognized Mother’s efforts
and her relapses. Given the long-standing problem Mother faces, the juvenile court
opined it would “take a long time to cure” and, therefore, did not believe that the issue
would be resolved in the limited time remaining.
Mother timely filed a notice of intent to file a writ petition and filed the petition
on July 22, 2016. This court issued an order to show cause, the bureau filed its
opposition, both parties waived oral argument.
DISCUSSION
We review an order denying reunification services for substantial evidence. (In re
Harmony B. (2005) 125 Cal.App.4th 831, 839.) If the evidence relied on by the juvenile
court is “reasonable, credible, and of solid value, such that a reasonable trier of fact could
find the court’s order was proper based on clear and convincing evidence” the juvenile
court’s order is to be affirmed. (Id. at pp. 839-840.)
For children who are younger than three years old when first removed from their
parents’ physical custody, court-ordered services are to be provided for six months from
7
the dispositional hearing, but no longer than 12 months from when the child entered
foster care (unless the child is returned to the parents’ home). (§ 361.5, subd. (a)(1)(B).)
The juvenile court must order the physical return of the child to the parent unless it finds
by a preponderance of the evidence that the return would create “a substantial risk of
detriment to the safety, protection, or physical or emotional well-being of the child.”
(§ 366.21, subd. (e)(1).) If the court finds by clear and convincing evidence that the
parent failed to participate regularly and make substantive progress in the parent’s
treatment plan, the court may schedule a 366.26 hearing within 120 days. (§ 366.21,
subd. (e)(3).) However, if the juvenile court finds either that there is a substantial
probability that the child can be returned to the parent within six months or that
reasonable services were not provided, the court is to continue the case to the 12-month
hearing. (Ibid.; see also Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1027-
1028.)
For children who are older than three years old when removed from their parents,
the presumptive rule is that reunification services are to be provided for 12 months
(§ 361.5, subd. (a)(1)(A)); however, due to the “ ‘ “unique developmental needs of
infants and toddlers,” ’ ” the presumptive period for court-ordered services is only six
months when there is a relatively low likelihood of successful reunification. (M.V. v.
Superior Court (2008) 167 Cal.App.4th 166, 174-175, citing Daria D. v. Superior Court
(1998) 61 Cal.App.4th 606, 611-612.) Juvenile dependency cases require the court to
balance the goal of successful reunification, which involves meeting parental needs for
individualized support, versus the children’s needs for stability and permanency. By
distinguishing between children who are younger and older than three years old, the
Legislature has slightly tipped the balance in favor of meeting the young children’s needs
for stability and permanency as quickly as possible. This does not eliminate the
possibility of reunification with infants, but it does establish a strict timetable that does
not allow for second and third chances when a parent suffers a significant relapse.
In this case, Mother was seen by her parole officer as a model parolee even before
court-ordered services were initiated. When she was in an inpatient program at the
8
Rectory she was viewed as a “model resident.” At the program she was judged to be
doing “exceptionally well in treatment.” Her counselor described her participation in the
program as “exemplary.” Her probation officer “copiously laud[ed] her.” Yet despite
her exceptional efforts, she has been plagued by two relapses while in treatment: one in
July 2015, while in treatment at Ujima when she drove with the children while
intoxicated, and from December 2015 to February 2016, when she was discharged from
the Ujima West program. Due to Mother’s relapse her visiting privileges with the
children were curtailed—going from overnight to unsupervised to supervised visits. To
her credit, weeks after she was terminated from the Ujima West program, Mother seemed
to pull herself together again, attended a multidisciplinary case conference and re-
enrolled in an inpatient program.
The continuation of Mother’s pattern—excellent participation in organized
programs, but repeated periods of uncontrolled drinking, coupled with the need for
greater restrictions in her visiting privileges and her past inability to care for her older
children, provides substantial evidence supporting the juvenile court’s finding that
returning the children to Mother would create a substantial risk to their safety and
physical and emotional health. Moreover, these facts constitute clear and convincing
evidence that Mother failed to make “substantive progress” in her treatment plan,
justifying the setting of a section 366.26 hearing. Tragically, although Mother has made
genuine efforts to end her dependence on alcohol, as the juvenile court suggested, the
trauma she has endured apparently prevents her from demonstrating sufficient progress in
the short time frame allowed for the court to make the necessary findings to extend the
period for reunification services.
DISPOSITION
The petition for an extraordinary writ is denied. Our decision is immediately final
as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
9
_________________________
Pollak, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
A148651
10 | 01-03-2023 | 09-15-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429286/ | In this action the plaintiff, R.K. Phillips, the defendant, L.F. Catterson, and the interveners, Iowa Trust and Savings Bank and Mahaska State Bank, all claim some interest in certain cattle in the possession of the defendant, Catterson. By an amendment to his petition, the plaintiff, Phillips, asserted that the cattle were not being furnished sufficient feed, shelter, *Page 716
and care, as a result of which they had diminished in value and would continue to deteriorate in value unless they were furnished adequate feed and care; that the intervener Iowa Trust and Savings Bank holds liens on the cattle by reason of chattel mortgages, executed to secure promissory notes of $350 and $500 given by plaintiff to the bank; plaintiff is personally liable on the notes and will suffer loss if the security is destroyed; it is necessary that a receiver be appointed to take possession of the cattle, to protect the interests of both the plaintiff and the defendant, and substantial rights of neither would be infringed upon by the appointment of a receiver. The prayer of the amendment to petition was that a hearing be had and, upon such hearing, a receiver be appointed to take possession of the cattle.
The intervener Iowa Trust and Savings Bank admitted that it held chattel mortgages in the sums of $350 and $500 on forty heifers and six cows, which mortgages were signed by plaintiff and are past due and unpaid; asserted that the cattle were in the possession of defendant, were not being well cared for, have greatly diminished in value, a number have died, and, if permitted to continue in the possession of defendant, they will continue to deteriorate in value through lack of proper feed and care. The bank joined in plaintiff's prayer that a receiver be appointed.
The intervener Mahaska State Bank asserted that in August and September 1943, defendant, Catterson, executed and delivered to said bank two chattel mortgages on the cattle to secure purchase money notes of $900 and $1,587, which liens are superior to the interests of any of the parties to the litigation, and the notes are past due and unpaid; that a receiver should be appointed and the cattle should be sold under such receivership. The prayer was that a receiver be appointed to take possession of the cattle; that the intervener's liens on the cattle be adjudged to be prior, superior, and paramount to the interests of any other parties; that the cattle be sold and the proceeds therefrom be applied to pay the costs of the receivership and then applied upon the amounts due the bank, including interest and costs.
Defendant, Catterson, filed a resistance to the application *Page 717
for appointment of a receiver, asserting that the cattle were in his possession, were being properly cared for and would continue to be cared for in the best possible manner; that he is able to so care for them; that he is the owner of the cattle, and that neither the plaintiff nor the intervener Iowa Trust and Savings Bank has any interest therein. The prayer was that the application for the appointment of a receiver be dismissed.
Hearing was had, evidence was introduced, and on November 17, 1944, the court found that defendant, Catterson, had possession of the cattle, described in plaintiff's original petition, which had not been sold or disposed of before the commencement of the action; that it was for the best interests of all parties that a receiver be appointed to take possession of the cattle. The court appointed Harold Lisk such receiver, directed him to file a corporate surety bond in the amount of $4,000 to be approved by the clerk and, upon qualifying as receiver, to take possession of the cattle and have the same fed, housed, and cared for until further order of the court.
[1] On November 22, 1944, defendant, Catterson, filed notice of appeal from the order appointing such receiver. No proceedings were undertaken to have the right to so appeal granted by a justice of this court pursuant to Rule 332 of the Rules of Civil Procedure. On December 21, 1944, the plaintiff, Phillips, and the intervener Iowa Trust and Savings Bank filed a motion to dismiss the appeal, asserting that the order appealed from was not a final judgment or decision within the contemplation of Rule 331 of the Rules of Civil Procedure, but was an interlocutory ruling or decision, which required an order from a justice of this court granting the right to appeal therefrom; that no such order had been made and that more than thirty days had expired since the entry of the order appealed from. Resistance was filed by the defendant, Catterson, asserting that the order appointing the receiver was not an interlocutory order but was a final order and a final judgment, from which an appeal could be taken as a matter of right. As the question presented is one of general interest, we have undertaken to file a formal opinion herein.
Sections 12822 and 12823, Code, 1939, governed our appellate *Page 718
practice prior to the adoption of Rules of Civil Procedure by this court, pursuant to chapter 311, Acts of the Forty-ninth General Assembly. Said sections provided:
"12822 Appellate jurisdiction. The supreme court has appellate jurisdiction over all judgments and decisions of all courts of record, except as otherwise provided by law.
"12823 Appeals from orders. An appeal may also be taken to the supreme court from:
"1. An order made affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment from which an appeal might be taken.
"2. A final order made in special actions affecting a substantial right therein, or made on a summary application in an action after judgment.
"3. An order which grants or refuses, continues or modifies, a provisional remedy; grants or refuses, dissolves or refuses to dissolve, an injunction or attachment; grants or refuses a new trial; sustains or overrules a demurrer in a law action; or sustains or overrules a motion to dismiss in an equitable action.
"4. An intermediate order involving the merits or materially affecting the final decision.
"5. An order or judgment on habeas corpus."
The foregoing statutes have been superseded by Rule 331, Rules of Civil Procedure, which provides as follows:
"(a) All final judgments and decisions of courts of record may be appealed to the Supreme Court, except as provided in this Rule and in Rule 333.
"(b) No interlocutory ruling or decision may be appealed, except as provided in Rule 332, until after the final judgment or order. No error in such interlocutory ruling or decision is waived by pleading over, or proceeding to trial. On appeal from the final judgment, such ruling or decision may be assigned as error, where shown to have substantially affected the rights of the complaining party."
[2] In addition to the foregoing, Rule 332 provides for an application for leave to appeal from an interlocutory ruling or *Page 719
decision and such appeal may be granted by a justice of this court if the order involves substantial rights and will materially affect the final decision and a determination of its correctness before trial on the merits will better serve the interests of justice. Rule 333 requires a certificate from the trial court if the appeal involves less than $300.
It will be noted that paragraph 3 of section 12823, Code, 1939, permitted an appeal as a matter of right from an order which granted or refused a provisional remedy. Such appeals were entertained in cases involving orders appointing or refusing to appoint receivers in Callanan Ingham v. Shaw, 19 Iowa 183; Clark v. Raymond, 84 Iowa 251, 50 N.W. 1068; Davenport v. Thompson, 206 Iowa 746, 752, 221 N.W. 347. In the case last cited, we expressly held that the appointment of a receiver in a mortgage-foreclosure case is a provisional remedy and appealable under paragraph 3 of section 12823, Code, 1927, which was identical with that of the Code, 1939, in that respect. However, such provision does not exist in Rule 331, above quoted. The unqualified right to interrupt the proceedings by such an intermediate appeal has been abrogated. The right to an intermediate appeal is made permissive rather than absolute. Of course, the error, if any, would also inhere in the final judgment and might be raised on an appeal therefrom. However, under Rule 331, the only theory on which this appeal could be maintained would be that the order appointing the receiver was a final judgment or decision. Appellant contends that it was such. There is no merit in the contention.
Because of the fact that, since the Revision of 1860, appeals could be taken from orders which granted or refused a provisional remedy, we do not find that this court has been called upon to determine whether an order appointing a receiver is an interlocutory order. Fundamentally, it is clearly interlocutory. The New Century Dictionary defines the word interlocutory as "pronounced during the course of an action * * * not finally decisive of a case * * * pertaining to a provisional decision." Courts have repeatedly treated an order appointing a receiver as interlocutory. A. R. Realty Co. v. Northwestern Mut. L. Ins. Co., 8 Cir., Mo., 95 F.2d 703, 707; Kitchen v. *Page 720
Printz, Tex. Civ. App., 120 S.W.2d 881, and cases cited therein.
We are satisfied that the order appealed from was interlocutory and could be appealed from only by complying with the provisions of Rule 332. Since appellant has not seen fit to proceed in compliance with said Rule 332, the appellees' motion to dismiss the appeal must be sustained. — Appeal dismissed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429289/ | Plaintiff's original petition sought a divorce on the ground of adultery. By an amendment to her petition plaintiff added, as ground for relief, the assertion that defendant had been guilty of cruel and inhuman treatment, struck the prayer for a divorce, and prayed for separate maintenance in the amount of $35 per week to be secured by a lien upon property of defendant. Defendant filed an answer in the nature of a general denial and a cross-petition for divorce on the ground of cruel and inhuman treatment. Trial was had, resulting in a decree awarding plaintiff separate maintenance in the amount of $40 per month, $200 attorney fees and costs, the judgment to be secured by a lien upon defendant's shares of stock in the *Page 1274
Iowa Dress Club and the assets of said corporation. Defendant appeals.
[1] I. Defendant's first proposition asserts that the court erred in overruling his motion for more specific statement relative to plaintiff's allegations that defendant was guilty of adultery. We have held that, where a ruling on a motion for more specific statement materially affects the final outcome of the trial, it constitutes an appealable order. Dorman v. Credit Ref. Rep. Co., 213 Iowa 1016, 241 N.W. 436; New York Life Ins. Co. v. Clemens, 230 Iowa 279, 297 N.W. 253. In line with such decisions we held in McKeehan v. City of Des Moines, 213 Iowa 1351,1354, 242 N.W. 42, that, where a motion for more specific statement is erroneously overruled and defendant files answer, the error is waived. In addition to this proposition, the court did not grant plaintiff any relief upon the ground of adultery. In view of the situation here presented to us, we do not find it necessary to pass upon the correctness of the ruling upon the motion for more specific statement herein.
[2] II. Defendant's second proposition asserts that the court erred in admitting in evidence certain letters which plaintiff testified were in the handwriting of defendant's secretary, were sent to him through the mails but intercepted by plaintiff. The objection asserted that the exhibits are "incompetent, immaterial, irrelevant, hearsay, not the best evidence, not binding on the defendant and the record having shown that the defendant never received the exhibits."
Defendant relies upon State v. Loftus, 128 Iowa 529, 531,104 N.W. 906; Mitchell v. Mitchell, 193 Iowa 153, 156, 185 N.W. 62; Bruce v. Galvin, (Iowa), 171 N.W. 687. The cases are not in point. In the Mitchell case the only question discussed is the insufficiency of one letter to prove the charge of adultery. In the other two cases, the letters were held to be inadmissible because they were not properly connected with the defendant. Here the letters were addressed to the defendant, were secured from his mailbox and telegrams sent by him clearly indicate that the letters were invited by him.
The general rule is stated in 20 Am. Jur. 807, section 958, thus:
"Generally, correspondence of persons where offered as *Page 1275
evidence of the facts stated therein must be excluded under the general principle respecting res inter alios acta, unless the party against whom the communications are tendered is in some way connected therewith or knew and approved their utterance. Letters of third persons are receivable in evidence, however, when they are merely collateral, introductory, or incidental to, or in illustration of, the testimony which the witness gives, or are receivable to establish what one's intention was or where he was at a given time."
Here defendant was connected with the letters. They were addressed to him. They corroborated other evidence of his relations with his secretary. They tended to confirm plaintiff's suspicions. The statements of fact contained in them were obviously hearsay. In an action tried to a jury, their admissibility would be very doubtful. But, in an action in equity, tried to the court, with their weight as evidence limited by full appreciation of the narrow limits within which they might be considered, we think that the objection to their admission in evidence is not well taken.
[3] III. Defendant's third proposition is that plaintiff was not entitled to separate maintenance because she failed to establish cruel and inhuman treatment such as would endanger her life. He relies upon our recent decision in the case of Onthank v. Onthank, 230 Iowa 851, 299 N.W. 392, and other cases including Carlisle v. Carlisle, 99 Iowa 247, 68 N.W. 681; Veeder v. Veeder,189 Iowa 912, 179 N.W. 136; and Henriksen v. Henriksen, 205 Iowa 684,216 N.W. 636. The cases are not controlling because the record here made is different.
There was no claim of physical violence herein. However, in the case of Craig v. Craig, 129 Iowa 192, 194, 105 N.W. 446, 447, 2 L.R.A., N.S., 669, 671, where the charges made were similar to those involved herein, Judge Deemer, speaking for the court, states:
"Surely the conduct above described constituted such cruel and inhuman treatment as entitled plaintiff to a divorce. Possessed of no more than ordinary sensibilities, we can hardly see how defendant's conduct could do otherwise than deeply wound the wife whom he had promised to love, honor, and respect, and, *Page 1276
forsaking all others, cleave only unto her. Such wounds are deeper and more dangerous to health than blows, more harassing than profane language, and more distressing than vulgar talk. To trusting and sensitive women they are more brutal than bodily injury, and leave scars which never can be healed. That it justifies a divorce is too clear for argument or the citation of authority. But see, in this connection, Berry v. Berry,115 Iowa, 544; Shook v. Shook, 114 Iowa, 597; Douglass v. Douglass,81 Iowa, 258; Doolittle v. Doolittle, 78 Iowa, 694; Cole v. Cole,23 Iowa, 438; Aitchison v. Aitchison, 99 Iowa, 93."
The rule above announced has been adhered to and applied in later decisions of this court. Roach v. Roach, 213 Iowa 314, 321,237 N.W. 439. We do not deem it necessary to review the evidence in detail. The testimony of plaintiff and her witnesses is disputed by defendant. The trial court passed upon the credibility of the witnesses. We see no occasion to disturb his decision.
[4] IV. Defendant's fourth proposition is that the court erred in awarding plaintiff $40 per month separate maintenance because she was employed when married, has retained that employment and the earnings thereof, which are ample for her needs, and the award made to her is excessive, inequitable and unjust. He relies upon our decisions in the cases of Fitch v. Fitch, 207 Iowa 1193,224 N.W. 503; Ellsworth v. Ellsworth, 218 Iowa 957, 256 N.W. 690; Mitchell v. Mitchell, 193 Iowa 153, 185 N.W. 62. These decisions do not require a reversal herein.
In the case of Fitch v. Fitch, supra, we state (207 Iowa at 1195, 224 N.W. at 504) as follows:
"Numerous elements enter into the problem of fixing alimony. The wife's necessities are not alone the criterion, because the husband's ability to pay, as well as other contingencies, must enter into the equation. Zuver v. Zuver, 36 Iowa 190; Ensler v. Ensler, 72 Iowa 159; Evans v. Evans, 159 Iowa 338; Nelson v. Nelson, 193 Iowa 463; Black v. Black, 200 Iowa 1016; Schorr v. Schorr, 206 Iowa 334."
That was a case wherein a divorce was granted. Here all that plaintiff asked was separate maintenance. Defendant is still her husband and should contribute toward her support. *Page 1277
She was earning $34 per week. Her physician insisted that, because of her nervous condition, she continue working to occupy her mind. Defendant has a drawing account of $60 per week. In the year preceding the trial, his income was $4,631.17. We do not think that the allowance of $40 per month is excessive.
[5] V. Defendant's fifth and final proposition complains of the action of the court in establishing a lien upon the assets of the Iowa Dress Club for the payment of the judgment herein. Defendant owns all of the stock of the corporation. However, the corporation is a separate entity. We doubt the necessity or propriety of establishing the lien on the assets of the corporation. It should be limited to the corporate stock owned by defendant. The decree should be modified to that extent.
With the decree modified as directed in Division V of this opinion, it is affirmed in all other particulars. — Modified and affirmed.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429291/ | On a bright Sunday afternoon in November, 1936, plaintiff was riding astride on the seat of a motorcycle behind its driver. They were driving in a northerly direction on the right side of Mullan Avenue in the city of Waterloo, Iowa. When they reached Lafayette Street, which intersects Mullan Avenue, the motorcycle turned to the left and collided with the defendants car, which was being pushed southerly on the west side of Mullan Avenue by a truck driven by defendant Davis and owned by defendant Melrose Company.
The record shows that the motorcycle and the defendants' car and truck were within the plain view of the drivers of each vehicle. The evidence as to the speed of the vehicles was conflicting. Plaintiff's evidence tends to show that the speed of defendants' car and truck, as they approached the intersection, was from 30 to 40 miles an hour, while defendants' witnesses testified their speed was not over 10 or 15 miles an hour. The defendants' witnesses testified that the speed of the motorcycle as it approached the intersection was about 20 miles an hour, while the plaintiff and the driver of the motorcycle testified their speed was not over 10 miles an hour as they approached the intersection and turned to the left to go onto Lafayette *Page 1008
Street. There was also evidence tending to show that the street was icy in spots, that as the defendants' car and truck approached the intersection they were skidding for about 40 feet at 30 or 40 miles an hour, and that as the motorcycle was crossing the intersection defendants' car and truck were about 40 feet from the motorcycle sliding toward the intersection and colliding therewith on the west side of Mullan Avenue.
The driver of the motorcycle testified that he did not observe defendant's car approaching the intersection prior to the time he turned at the intersection, unless it was when about a block away. It must be conceded from the facts, however, that defendant's car was approaching this intersection and was in plain view of the driver of the motorcycle, had he looked when it was more than 40 feet away. Without setting out the evidence in detail, it may be conceded for the purposes of this appeal that the driver of the motorcycle was guilty of negligence in turning his motorcycle and traveling across the intersection in front of the approaching cars.
At the close of all the evidence, the defendants moved for a directed verdict upon the following grounds: (1) that plaintiff has failed to establish defendants' negligence; (2) that she has failed to establish her own freedom from contributory negligence in failing to keep a proper lookout for approaching vehicles just prior to the time the motorcycle turned across the intersection, and in failing to warn the driver of approaching automobiles; and (3) defendant Melrose Company also asked for a directed verdict because the evidence failed to show that its truck was driven with its consent.
It is clear from the record that this motion was sustained wholly upon the ground of plaintiff's failure to establish her freedom from contributory negligence. Plaintiff thereafter filed a motion for a new trial which the court also sustained wholly upon the ground that the question of plaintiff's contributory negligence was one for the jury.
[1] The question in this case, therefore, is whether or not the trial court erred in sustaining plaintiff's motion granting a new trial. The general rule is that the trial court is vested with a large discretion in passing upon a motion for a new trial, and unless that discretion is abused this court will not interfere. Greene v. Lagerquist, 217 Iowa 718, 252 N.W. 94; Western Fruit
Produce Co. v. Buzzard, 199 Iowa 834, 202 N.W. 759; *Page 1009
Thornton v. Boggs, 213 Iowa 849, 239 N.W. 514; Leake v. Azinger,214 Iowa 927, 243 N.W. 196; Manders v. Dallam, 215 Iowa 137,244 N.W. 724.
In Greene v. Lagerquist, 217 Iowa 718, l.c. 719, 252 N.W. 94, this court said:
"We are more reluctant to interfere with the granting of a new trial than with the refusal to allow the relief. A trial court is vested with a large discretion in passing upon a motion for a new trial. Unless that discretion is abused, this court will not interfere. Such abuse must affirmatively appear."
[2] The question arising in this case, therefore, is whether the district court abused its discretion in granting a new trial. In determining this question, a review of the evidence relating to the conduct of plaintiff at the time and place in question is necessary. In considering this question it must be remembered that the negligence of the driver of a motor vehicle is not ordinarily imputed to a passenger or guest in the car, and there is nothing in this case tending to take it out of the general rule. Therefore, although it be conceded for the purpose of this case that the driver of the motorcycle was guilty of negligence, his negligence is not imputed to plaintiff. The burden, however, is still upon plaintiff to show that she was free from any act of negligence on her part contributing to her injuries. Although the same degree of care and caution may not be required of a guest or passenger to constitute due care, such passenger or guest must show, however, that he exercised ordinary care on his part, and was not guilty of any negligence which in any manner contributed to the injuries.
[3] The evidence bearing upon her conduct shows that the motorcycle in question was equipped with only one large seat, and plaintiff and the driver were both seated thereon. Plaintiff was seated directly behind and close to the driver on the same seat. The motorcycle was traveling north on Mullan Avenue, and up to the time the driver started to make his turn into the intersection for the purpose of turning into Lafayette Street, plaintiff had no knowledge of the driver's intention to turn on Lafayette Street until he began to make the turn. As soon as plaintiff knew of the driver's intention to turn to the left, she held out her left arm. The testimony shows that the street in question was very icy in spots, and that there was more or less *Page 1010
danger of the motorcycle skidding on the icy street if plaintiff attempted to stand up for the purpose of looking ahead to see what was coming. This danger was, of course, increased when the motorcycle began to make its turn.
Plaintiff was only 5 feet 2 inches tall, while the driver of the motorcycle was 6 feet 1 inch tall. The evidence tends to show that on account of plaintiff's position immediately behind and close to the driver, and on account of his size, plaintiff was unable to see the vehicular traffic on the road ahead without hazard to the motorcycle. Up until the time plaintiff was apprised of the driver's intention to make a turn, it cannot be said as a matter of law that it was her duty to stand up for the purpose of looking at the roadway ahead. She did not know of the approach of defendants' car and truck from the opposite direction until the motorcycle began its turn to the left at the intersection, and at that time the approaching car and truck were only 40 feet away and sliding toward them at the rate of 30 or 40 miles an hour.
It is true we have held in some cases that where the passenger or guest in an automobile is seated on the front seat of an automobile with the driver and has as good a view ahead as that of the driver, it may constitute contributory negligence on the part of the guest if he fails to see approaching danger and warn the driver thereof. Sackett v. Chicago, Great Western R. Co.,187 Iowa 994, 174 N.W. 658; Hewitt v. Ogle, 219 Iowa 46,256 N.W. 755; Anderson v. Dickinson, 187 Iowa 572, 174 N.W. 402; Hutchinson v. Sioux City Service Co., 210 Iowa 9, 230 N.W. 387.
No such situation exists in this case. Plaintiff was seated behind the driver in such a position that it was impossible to see ahead of him without being in danger of upsetting the motorcycle on account of the icy street. A passenger or guest is not required to anticipate the movements of the driver and is only required to exercise the care of a reasonably prudent person under the same or similar circumstances.
[4] Ordinarily, the question of plaintiff's contributory negligence is peculiarly one for the jury. Carpenter v. Wolfe,223 Iowa 417, 273 N.W. 169; Stingley v. Crawford, 219 Iowa 509,258 N.W. 316; Schwind v. Gibson, 220 Iowa 377, 260 N.W. 853; Hamilton v. Boyd, 218 Iowa 885, 256 N.W. 290; Hewitt v. Ogle,219 Iowa 46, 256 N.W. 755; Rogers v. Jefferson, *Page 1011
Iowa, 272 N.W. 532; O'Hara v. Chaplin, 211 Iowa 404,233 N.W. 516.
In O'Hara v. Chaplin, 211 Iowa 404, l.c. 412, 233 N.W. 516, this court said:
"`If there is a conflict in the evidence as to what the person accused of contributory negligence did or did not do, the question is then one for the jury. Likewise, even though it is known what was done by that individual in this regard * * * yet, if his conduct is such that there may fairly be different opinions with respect to it, and one man honestly and reasonably says it was in accord with ordinary prudence, while another, just as sincerely, and with equal reason, contends it was not, then there is a jury question.'"
In Rogers v. Jefferson, Iowa, 272 N.W. 532, l.c. 534 [Opinion as modified, 223 Iowa 718], this court said:
"We have frequently held that whether or not an invited guest in an automobile over which he has no control is guilty of contributory negligence is peculiarly a question for the jury, as is the question of negligence of a guest riding in the back seat of an automobile."
Under the facts shown in this case, it is our conclusion that the question of whether or not plaintiff was guilty of contributory negligence is clearly one for the jury. As this was the only question considered by the lower court in its ruling on the motions for a directed verdict and for a new trial, it is unnecessary to consider other questions presented.
For the reasons hereinabove expressed, it is our conclusion that the lower court did not abuse its discretion in granting a new trial. The judgment of the lower court is, therefore, hereby affirmed. — Affirmed.
STIGER, C.J., and ANDERSON, DONEGAN, HAMILTON, SAGER, and MILLER, JJ., concur. *Page 1012 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4064558/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-15-00320-CR
IN RE
§ ORIGINAL PROCEEDING
JORGE GONZALEZ,
§ ON PETITION FOR WRIT OF
RELATOR.
§ MANDAMUS
MEMORANDUM OPINION
Relator, Jorge Gonzalez, has filed a petition for writ of mandamus against the Honorable
Annabell Perez, Judge of the 41st District Court of El Paso County, Texas. He challenges an
order which rescinded a prior order disqualifying Assistant District Attorney Lori Swopes
Hughes from prosecuting a criminal case against him1 and which denied Relator’s motion to
disqualify the entire 34th District Attorney’s Office from the case. We deny the petition for writ
of mandamus.
Mandamus relief is appropriate only when a relator establishes (1) that he has no
adequate remedy at law to redress his alleged harm, and (2) that what he seeks to compel is a
ministerial act, not a discretionary or judicial decision. In re Allen, 462 S.W.3d 47, 49
(Tex.Crim.App. 2015). The ministerial-act component is satisfied when the relator shows that he
has a clear right to the relief sought. Id. This showing is made when the facts and circumstances
dictate but one rational decision under unequivocal, well-settled, and clearly controlling legal
1
The criminal case is styled The State of Texas v. Jorge Gonzalez (cause number 20110D03080) and it is currently
pending in the 41st District Court of El Paso County.
principles. In re Allen, 462 S.W.3d at 49. A ministerial act, by its nature, does not involve the
use of judicial discretion. Id. Relator has failed to establish that he is entitled to mandamus
relief. Accordingly, we deny the petition for writ of mandamus.
December 16, 2015
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
-2- | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429284/ | This was an action at law upon a promissory note claimed to have been executed by D.E. Byam, Sr., and W.G. Hornung. The issues were between plaintiffs-appellees, Granner, and the defendant-appellant, Hornung. The defendant Hornung's answer, in substance, denied that the note in suit was signed by the said defendant, and, further, that if the signature of the defendant appearing thereon is in the genuine handwriting of the defendant, that it was procured by some trickery and deceit and without *Page 536
the knowledge on the part of the defendant that he was signing a note; that if the signature to the note is genuine, he never voluntarily or intentionally signed the same, and that he never had any intention that such signature would become a part of the note in question; that he never consented to having such instrument delivered to the plaintiffs as a note, and that the same is wholly without consideration. There was a trial to the jury resulting in a verdict for the plaintiffs upon which judgment was entered against defendant, Hornung, from which he appeals.
The record discloses that D.E. Byam, Sr., was a resident of Hubbard, Iowa, and had been engaged in the banking business for about 47 years; that he had done business with and for W.G. Hornung, the defendant, for many years; that Hornung had become a surety upon the bonds of Mr. Byam as school director for several years; that Byam had borrowed from the plaintiffs $2,500, for which they held his note signed by himself and one Swallum maturing April 8, 1930; that some time subsequent to the maturity of said note Byam had made an agreement with the plaintiffs as to the taking care of the indebtedness evidenced thereby. The agreement in effect was that Byam was to pay $1,000 in cash, execute a note for $500, signed by himself and his wife, and execute another note for $1,000, payable two years after April 8, 1930, and obtain a surety thereon. This agreement was not wholly consummated until on or about the 13th day of November, 1930. Byam had paid the $1,000 in cash, and he and his wife had executed the note for $500. There is a sharp conflict in the testimony as to the signing of the $1,000 note by the defendant, Hornung. Byam testified that he met Mr. Hornung and told him that he owed the Granner girls the money and that they wanted a signer on the note, and that he asked Hornung to sign the same as surety, and that Hornung consented to do so, and that the note in suit was then signed by Mr. Byam and Mr. Hornung in Byam's bank at Hubbard, Iowa; that this occurred on the 11th or 12th of November, 1930, but that the note was dated back to April 8, 1930, the date of the maturity of the $2,500 note. Mr. Hornung contends, and so testifies, that he at no time had any such conversation with Mr. Byam about the note in suit, and that he did not know that he had signed such a note until shortly before its maturity in the spring of 1931. Hornung also claiming that by reason of a personal injury he was unable to walk during the summer and fall of 1930, and that he was not in Byam's bank at any time, at least until after the time *Page 537
of the claimed execution of the note in question. There was other evidence, however, supporting the testimony of Mr. Byam in regard to the execution of the note by Mr. Hornung. The question was fully and fairly submitted to the jury resulting in a finding, as we have indicated, against the contentions of Mr. Hornung.
The $500 note signed by Mr. and Mrs. Byam and the $1,000 note signed by Byam and Hornung were sent to the plaintiffs by Byam in a letter dated November 13, 1930. This letter was identified as Exhibit B in the record both by Mr. Byam and by the plaintiffs, but was not offered in evidence until after a cross-examination of Mr. Byam by defendant's counsel in reference to its contents. Mr. Byam had testified that he met Mr. Hornung on the sidewalk in the morning telling him of his indebtedness to the Granner sisters, and that the sisters wanted a signer on a note for part of the indebtedness, and that he asked Hornung to sign the note with him, and that they then went into the bank and executed the note. He testified in cross-examination that upon a former trial of the case he had testified that he thought the note was signed in the forenoon but that he was not absolutely certain; it might have been in the afternoon. Cross-examination continued as follows:
"Q. Yes. You told the Granner girls that it was signed in the evening, didn't you? A. That's what the letter says.
"Q. Well that is what you told them, wasn't it? A. No, all I told them was what the letter says.
"Q. And that was that you got him to sign it that evening, isn't that it? A. That's what the letter says."
[1] On redirect examination the letter, Exhibit B, referred to in the cross-examination, was offered in evidence by the plaintiffs, to which an objection was interposed as being incompetent, irrelevant, and immaterial, hearsay, and self-serving, and such objection goes to each paragraph and each sentence of the exhibit, and a motion was made to strike the admission of each sentence and each paragraph upon the grounds of the objection. The trial court before ruling upon such objection and motion stated to defendant's counsel that the contents of the letter had been inquired into in the cross-examination of Mr. Byam, and that if counsel for the defendant would withdraw such testimony from the record the exhibit would be excluded. This the defendant's counsel refused to do. The objection was overruled, and the exhibit admitted into the record. Such action *Page 538
on the part of the court is the first assignment of error relied upon by the appellant; the appellant insisting that the letter contained a reference to the financial standing of Mr. Hornung and was highly prejudicial. No specific reference, however, was made to this statement in the objection interposed to the introduction of the exhibit. The letter did tend in some degree to refute the testimony of Mr. Byam, that the $1,000 note was signed in the morning. It, however, in the main, was corroborative of the testimony of Mr. Byam in reference to the consummation of the agreement between Mr. Byam and the plaintiff in reference to the taking up of the $2,500 note. We do not think there was prejudicial error in the admission of the exhibit. Section 11272, of the 1931 Code, provides that when part of an act, declaration, conversation, or writing is given in evidence by one party the whole on the same subject may be inquired into by the other. The exhibit in question would not have been admissible as a part of the plaintiff's case had it not been for the cross-examination in reference thereto by defendant. We have held that when a part of a conversation or writing has been inquired into in cross-examination the whole of the subject-matter may be inquired into by the other party. In such circumstances, we have held that the cross-examining party made the witness his own, and that the re-examination might be held to be cross-examination. Having gone into the matter under consideration, the appellant cannot be heard to object to a further exploration of a field which he has opened. Walker v. Stannis, 3 G. Greene 440; Spaulding v. Railway Co., 98 Iowa 205, 67 N.W. 227; Jones v. Hopkins, 32 Iowa 503; Courtright v. Deeds,37 Iowa 503; Hess v. Wilcox, 58 Iowa 380, 10 N.W. 847; Azeltine v. Lutterman, 218 Iowa 675, 254 N.W. 854.
The exhibit in question contained, as its subject-matter, reference to the making of the note, the time of actual signing thereof, the consideration, and the time and circumstances of delivery; all of which were material under the issues and the record in the case. We are constrained to hold against the contention of the appellant at this point.
[2] The next contention of the appellant is that the court erred in ignoring the plea of want of consideration and in failing to submit such defense to the jury. The court submitted the case to the jury upon the main questions pleaded in defendant's answer. First, that he, the defendant, denied ever signing the note in suit, and instructed that the burden of proving such fact was upon the plaintiffs. *Page 539
Second, that defendant claims that if the signature to the note in suit was in fact that of the defendant it was procured by some trickery and deceit, and without his knowledge, and that he never intended to sign any such note and never authorized its delivery, and that the burden of proof as to such questions was upon the defendant.
It is true that the defense of want of consideration was not submitted to the jury, but we do not believe it was necessary or proper under the pleadings and the record to submit such issue. It must be conceded as the law that where a first party signs a note as a gratuitous surety for a second party payable to a third party he is bound by the consideration moving between the second and third parties. There is ample evidence in the record that there was a consideration moving between Byam and the plaintiffs, and when the jury found as it did, that the defendant, Hornung, joined in the execution of the note in suit as a gratuitous surety, the question as to want or failure of consideration is taken out of the case. It is true that this rule does not prevail where the surety sought to be charged never intended to execute a note, was never asked to execute it, never consented to its execution, and never consented to its delivery; but as we have indicated, all of these questions were answered by the jury by its verdict contrary to the contention of the appellant.
There were in fact only two contentions made by the appellant that should have been submitted to the jury, and these were, as we have indicated, first, that the defendant never signed the note at all, and, second, that if his signature did appear thereon, it was procured by some trickery and deceit and without any knowledge on his part that he was signing a note. These questions were fully and fairly submitted to the jury, and by its verdict it found that the note was signed by the defendant, Hornung, and that such signature was not obtained by trickery and deceit and without the knowledge on Hornung's part that he was signing a note. There is evidence to support such findings.
The jury having properly found that the note in suit bore the valid and genuine signature of the defendant-appellant, the settlement of the pre-existing debt and the extension of time to Byam by the plaintiffs, furnished a valid and sufficient consideration at law. There plainly remains no disputed question of want of consideration which should have been submitted to the jury. Struebing v. Stevenson, 129 Iowa 25, 105 N.W. 341; Duncan v. Iowa Ry. *Page 540
Light Co., 194 Iowa 469, 187 N.W. 486; Wilkinson v. Queal Lumber Co., 203 Iowa 476, 212 N.W. 682; Seddon v. Richardson, 200 Iowa 763, 205 N.W. 307; Veith v. Cassidy, 201 Iowa 376, 207 N.W. 328; Millard v. Northwestern Mfg. Co., 200 Iowa 1063, 205 N.W. 979.
It is our conclusion that the issues properly raised were fully and fairly submitted to the jury, that no prejudicial or reversible error is found in the record, and that the finding of the jury and the action of the trial court in entering judgment thereon should not be disturbed. — Affirmed.
CLAUSSEN, C.J., and ALBERT, EVANS, STEVENS, KINTZINGER, and MITCHELL, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429375/ | The plaintiff, Sarah McCornack, aged about 63 years, and residing near Cromwell, Iowa, on September 7, 1935, was riding in an automobile owned by a relative, the defendant C.B. Pickerell, which car was at the time driven by one Flora Donner with the consent of the owner. The car in which she was riding was traveling east, and at a point about two miles west of Loekridge, Iowa, on highway No. 34, met a car owned and driven by one Maurice Worland, and a collision occurred in which the plaintiff was injured. The plaintiff was seated in the rear seat; Mrs. Donner was driving, and the defendant *Page 1078
was seated in the right front seat. The parties had started early in the day from Creston to go to Galesburg, Illinois, the defendant driving for about two hours, after which Mrs. Donner took the wheel and had been driving about one hour when they met the Worland car which was traveling west and was partly on its left, or south side of the road; how far on the wrong side of the center line of the road is not definitely shown, but it was so far on the south side that a collision would have been unavoidable if defendant's car had remained on its right side. Both cars were traveling at approximately 35 miles per hour, although the estimates vary somewhat as to the speed of the Worland Car. The road was the ordinary concrete highway, 18 feet wide, with dirt shoulders which the evidence shows were about 8 feet wide. The day was clear and the pavement dry.
When first sighted by the occupants of defendant's car the Worland car was some distance ahead, in the center and partly, at least, on the wrong side of the road. It appeared afterwards that the driver and another person on the front seat were examining a road map. Both the plaintiff and Mrs. Donner observed the movements of the approaching car. When the cars were in close proximity and it was apparent that if each continued in its course a collision was inevitable, Mrs. Donner turned defendant's car to the left; the collision occurred, each car striking the other on its right side. The plaintiff was thrown against the car and injured. Prior to the accident it is claimed by the plaintiff that she called Mrs. Donner's attention to the Worland car, which she says was weaving back and forth across the road, and it is undisputed that both plaintiff and defendant's driver saw the Worland car and saw that it was to some extent on the wrong side of the road.
Prior to the day of the journey the plaintiff was invited to make the trip to Galesburg with defendant and Mrs. Donner, where, she alleges, the defendant and Mrs. Donner were to be married, and that he wanted the plaintiff to be a witness. She states that she accepted the invitation, but told him that she would take a lunch along and would pay for one-third of the gasoline and oil. She did take the lunch, but defendant denies that she was to pay for gasoline, and it is undisputed that she did not pay for it but avers her willingness so to do.
As a result of the collision the plaintiff was injured, and she was taken to a hospital and afterwards to her own home. On *Page 1079
July 12, 1937, the petition was filed; issues were joined and trial was had. The allegations of the petition allege negligence on the part of the defendant's driver but do not make any claim under the guest statute.
At the conclusion of the plaintiff's testimony a motion for a directed verdict was made by the defendant, which will be referred to hereafter, and was overruled. The motion was renewed at the conclusion of all the testimony, and overruled. A verdict was returned in favor of the plaintiff and judgment entered thereon. Thereafter there were filed exceptions to the instructions, motion to set aside the verdict, and for a new trial, all of which were overruled and the case was brought to this court on appeal from the rulings on the various motions and exceptions.
The errors relied upon for reversal are: first, that the court erred in overruling defendant's motion for a directed verdict; second, in the giving of instructions Nos. 13, 14, and 15; and, third, misconduct of the plaintiff's attorney in argument. These will be noticed in their order.
One ground of the motion for a directed verdict is as follows:
"That there is no evidence to show that the plaintiff was occupying said car in any other capacity than as a guest of the defendant, and all of the evidence fails to show recklessness on the part of the driver of defendant's car."
It is the contention of the defendant that the case comes within the provisions of the guest statute, Code section 5026-b1:
"The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle."
This statute was enacted by the legislature in 1927, and has been reviewed several times in the opinions of this court.
It may be said here that the instructions of the court were based solely on grounds of negligence, as will be shown hereafter, and the action throughout, both in the pleadings and in the instructions, was confined to the question of negligence. Therefore, the question here is whether or not, as a matter of *Page 1080
law, the action is covered by the provisions of the guest statute. The plaintiff has contended throughout that she was riding as a paying passenger and that, on account of having contributed the lunch and agreeing to furnish a part of the gasoline, she would not come under the provisions of the statute quoted.
This court has several times since the enactment of the guest statute passed upon the question and distinguished between a passenger for hire and a guest. One of the most recent cases is that of Park v. National Cas. Co., 222 Iowa 861, loc. cit. 869,270 N.W. 23, loc. cit. 27, an action for recovery under an insurance policy, in which in an opinion written by Justice Richards, it is said:
"It is apparent that the authorities quite generally concede that money passing from the passenger to the operator of a car, though associated with the carrying of the passenger, may or may not be a consideration for such carrying, within the meaning of a policy provision such as we are considering. In making the distinction the courts take into consideration not alone the bare transaction but all its surrounding circumstances, including among other things the status and relations of the parties one to another, the existence or lack of common interest, pleasure or benefit in the making of the journey, and the relation of the amount of the money to the actual costs of carrying. In the instant case the testimony is that, as occasion arose for filling an engagement, some member of the orchestra would voluntarily drive his car, carrying himself and other members. There was no contractual obligation resting on any member so to do. Apparently mere convenience determined which member would drive his car. But on each occasion the resultant burden on the driver of being out of pocket for the expense was inconsistent with the intention of the membership of the orchestra. This intention was that all should share equally in the earnings of the orchestra, and without any member `going in the hole'. It was to avoid the unfairness and to carry out the intention of equal sharing that the arrangement was made that from the proceeds of each dance there should be turned over to whichever member happened to have driven his car four and one-half cents per mile traveled. The members estimated and agreed that the cost of driving such car amounted to four and one-half cents *Page 1081
per mile. They took into consideration as such cost the consumption of gas and oil and the wear on tires and car."
It is further said in the cited case, quoting from Clendenning v. Simerman, 220 Iowa 739, 747, 263 N.W. 248, 252:
"* * * it is a well-known fact that the outlay for gasoline is only one of the many expenses incident to the ownership and operation of an automobile."
[1] It has frequently been held that the mere division of expenses among members of a party riding in an automobile does not render the person so contributing a passenger for hire. It has so been held by our own court and by the courts of other jurisdictions. See Master v. Horowitz, 237 A.D. 237, 261 N YS. 722; Askowith v. Massell, 260 Mass. 202, 156 N.E. 875
(both cited in Clendenning v. Simerman, supra); Gross v. Kubel,315 Pa. 396, 172 A. 649, 95 A.L.R. 146. In the latter case it was held that the passenger had been transported for hire, and the court said:
"The arrangement for compensation under which he was carrying his passengers was more than a mere reimbursement for the gas and oil used by all in common on the trip. It went to the additional extent of compensating him for the use of the car. Had he been paid only a sum equivalent to the cost of the gas and oil used, a serious question might have arisen as to whether such payment would have constituted a carrying for hire."
It was also said, in the case of Reed v. Bloom, 15 F. Supp. 600,601, United States District Court, Western Division Oklahoma (which case is cited and quoted from in the Park case above referred to):
"The authorities seem to draw a distinction between a case where a private automobile, under a contract and agreement, is used for the purpose of transporting persons as passengers for a definite sum, and where a private automobile is used incidentally for the transportation of persons and the persons so transported contribute a sum for the purchase of oil and gas. In other words, if the owner of a private automobile agrees in advance to transport a passenger from one place to another for *Page 1082
a definite sum, then that is recognized as being within the exclusions enumerated in the policy."
This opinion quotes from Carlos v. Hartford Accident
Indemnity Ins. Co., 160 Va. 505, 169 S.E. 594, as follows:
"It may well be, as is suggested in Indemnity Ins. Co. of North America v. Lee, 232 Ky. 556, 24 S.W.2d 278, that, where persons who are guests in an automobile, or are engaged in a joint venture with the owner or operator of the car, put gas in the car or contribute to the cost of purchasing gas for the trip which they are making, the owner or operator of the car is not carrying passengers for a consideration within the meaning of the exception here under consideration. But, wherever the facts are such that the operator of the car has cast upon him the duties and high degree of care that a person carrying another for compensation owes to the person so carried, the risk of liability for injuries arising from the negligence of the operator is excepted from the coverage by the provisions here under consideration."
The case of Sullivan v. Harris, 224 Iowa 345, 359, 276 N.W. 88,95, in an opinion by Justice Parsons, analyzes the guest statute and holds that the plaintiff, who was injured during the trip, was a guest and that defendant was not liable to her for negligence, but only for recklessness. In this case the evidence was reviewed, and summarized in the opinion as follows:
"So in the consideration of all of these matters we think it sums up to this: that the plaintiff and defendant were personal friends; the companionship of each was agreeable to the other; there was no thought of hire of any kind. The defendant merely asked the plaintiff if she would like to go to Minneapolis with her, and the plaintiff was willing to go. It is true defendant said plaintiff should do some of the driving. Plaintiff was a competent driver, so was the defendant; they were frequently in the company of each other, because it was agreeable to each; and the simple statement that plaintiff should do some of the driving, and plaintiff assented to it, does not make a contract, and does not take this case from under the guest statute."
In this latter case the consideration, if any could be claimed, was that the person invited (the plaintiff) was to do part of *Page 1083
the driving. It was held, on the whole case, that this arrangement did not take the case out of the provisions of the guest statute.
In the instant case it appears from the testimony of the plaintiff herself that she was invited to go with the defendant on the trip to Illinois two or three weeks before the date of the trip, and that she volunteered to take the lunch along, and pay for one third of the gasoline and oil. She states in her testimony:
"I told Mr. Pickerell I would go if I could be permitted to pay a third of the gas and oil, take a lunch and help pay the expenses. I told him I would not go unless he would consent to that. He said, `Well, that is all right with me. You may do it.' I did furnish the lunch and have always been willing to pay a third of the gasoline and oil."
[2] She further testifies that she was requested to go for the reason that the defendant and Mrs. Donner were planning to be married and that the defendant wanted the plaintiff along. This does not seem sufficient, under the holdings of this court above referred to and the general rules laid down by other courts, to constitute the plaintiff a passenger for hire, but rather emphasizes the fact that she was a guest. There was no fixed sum of payment to be made, but a voluntary offer on the part of the plaintiff to pay for part of the gasoline and oil. Nor does it appear that she was to render any service, unless the fact that she was to act as a witness at the contemplated marriage might be so construed. She went by invitation, and in our opinion, following the rule which we believe to be the true one, she was a guest; and this being true the defendant could not have been held liable for mere negligence, and the motion for a directed verdict should have been sustained.
II. Our holding on the motion for a directed verdict renders it unnecessary to review at length the exceptions to the instructions which are relied upon by the defendant for reversal. The instructions given by the court to which exception was taken are Nos. 13, 14, and 15.
Instruction No. 13 refers to the duty of the driver to turn to the right and sets out the duty in the event of an emergency, and submits to the jury the question of whether or not the driver acted as a reasonably careful and prudent person in an emergency. We do not find serious objection to this instruction. *Page 1084
But plaintiff's principal objection is made to instructions Nos. 14 and 15. Instruction No. 15 is as follows:
"It is the claim of the plaintiff that she was riding in defendant's car as a paid passenger. Her claim is that on the trip when she was injured she was riding in defendant's car under a contract agreement and arrangement whereby she was to pay for a portion of the gasoline and oil consumed on said trip. Under such circumstances, if you find that plaintiff was riding in said car under the agreement and arrangement with defendant whereby she was to pay for a portion of the gasoline and oil used by defendant's car as a compensation for her transportation then she was a passenger for hire within the meaning of the law. The owner or operator of a motor vehicle is liable for damages sustained by reason of his negligence, or by reason of the negligence of the driver of his car, if such driver is operating the car with such owner's consent, to a person proximately injured as a result of such driver's negligence while riding as a paid passenger, if such person so injured is herself free from contributory negligence."
Instruction No. 14 refers mainly to the liability of the owner of a motor vehicle for the negligence of the driver of a car driven with his consent; and states that the car was so operated with defendant's knowledge and consent. It did submit to the jury the question of the liability of the defendant in the event that the plaintiff was a paid passenger, and the instruction would have been correct had it not been for instruction No. 15.
[3] Under our holding as to the status of the plaintiff we cannot approve of instruction No. 15. The court therein said:
"* * * if you find that plaintiff was riding in said car under the agreement and arrangement with defendant whereby she was to pay for a portion of the gasoline and oil used by defendant's car as a compensation for her transportation then she was a passenger for hire within the meaning of the law."
As indicated in division I of this opinion, we do not believe that such would be the law of the case under the facts as given. Therefore, on the question of plaintiff's status as a guest, and under this instruction, and the additional fact that there was nowhere presented to the jury, either in the pleadings or the instructions, the question of defendant's liability for *Page 1085
recklessness rather than for negligence, we are forced to hold that the plaintiff would not be entitled to recover.
[4] III. Objection is made, and was made at the time of the trial, to the remarks of counsel for plaintiff in his closing argument. While the errors complained of, and which we hold are properly so complained of, would necessarily result in the reversal of the case, we feel that some attention should be given to the argument referred to, which seems to us to go further than is permissible. Reference was made in the closing argument to the fact that Mr. Pickerell would not have to pay, and the jury were told, "You people know exactly who will pay that verdict." The court informed counsel that this was as far as he could go, but counsel then repeated the statement, saying, "I just simply repeat it that you people know who will pay"; and further said, "It won't hurt the other side at all."
[5] Complaint is also made to references to insurance in the examination of jurors, but the record thereof was not preserved and is not before us.
These statements, it is claimed by plaintiff, were warranted by the argument of defendant's counsel, and by the actions of his counsel throughout the case.
We have carefully examined not only the abstract and amendments thereto, but have read through the transcript of all the evidence and the arguments, which were fully reported, and we do not find any language or comment which would warrant the reference which was made by plaintiff's counsel. While it is urged that jurors often have in mind the fact that an insurance company will pay, and it has been held that reference thereto in the jury room is not sufficient ground for setting aside a verdict, yet we cannot feel that this is a proper argument or that the attention of the jury should be called to a matter of this kind which is extraneous to the issues and not proper matter for the consideration of the jury.
This court has several times passed upon this question and has frequently held that such conduct is not permissible. As has been said by this court, it is "repugnant to a fair trial or to the securing of the rendition of a just verdict on the facts that the jury should, by direction or indirection, be informed that the defendant will not suffer from an adverse verdict, and that some corporation will bear the consequences." See Miller v. Kooker,208 Iowa 687, at page 690, 224 N.W. 46, at page 47, *Page 1086
and cases therein cited; Rutherford v. Gilchrist, 218 Iowa 1169,255 N.W. 516, and cases therein referred to.
For the errors pointed out, we feel that the case should be, and it is reversed. — Reversed.
SAGER, HAMILTON, STIGER, BLISS, OLIVER, and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429378/ | [1] Plaintiff, in an action at law, sought damages for injuries received as the result of an intersection collision between an automobile which he was driving and one driven by the defendant. The issues presented by the pleadings and the evidence were submitted to a jury, which returned a verdict in favor of the plaintiff. The court overruled the defendant's motion for a new trial and exceptions to instructions and judgment was thereafter entered on the jury's verdict. The defendant has appealed.
The collision which has occasioned this litigation occurred about 1:00 p.m. on December 6, 1941. Prior to the time of the collision the appellee was driving his automobile in a northerly direction on a county highway about one mile north of Thompson, Iowa. The appellant was driving his automobile west on a county road. There was a stop sign on this road but the appellant did not stop when he got to the intersection. One of the *Page 854
contentions of the appellant is that the brakes of his automobile were frozen as the result of driving through slush the previous day. It is his claim that on the day of the collision he did not try the brakes before he got to the scene of the accident and that when he endeavored to stop his automobile, as he approached the county highway, the brakes did not function and he proceeded into the intersection, with the resulting collision. The evidence discloses that as appellant came to the intersection he was driving about ten or fifteen miles an hour but when he got about three rods from the stop sign he endeavored to make use of the foot brake but it did not work. The appellant did not testify that he tried to use the emergency brake and there is no evidence whether it would have effectively stopped the car if it had been used.
The questions presented on this appeal are: (1) the excessiveness of the verdict (2) error in giving of certain instructions and (3) the refusal to give certain requested instructions.
I. The appellant particularly complains of the allowance by the jury of the sum of $425 for loss of earnings, it being his claim that the evidence did not justify the submission of this element of damage. This claim on the part of the appellant necessitates a brief summary of the evidence. It is shown that the appellee raised about the same number of hogs in 1941 as he did in 1942; that he milked the same number of cows in 1942 as he had in 1941; and that the crops that he planted were about the same in 1942 as in 1941. The appellant claims that under these circumstances there was no basis on which the jury could allow the appellee the sum of $425 as damages for loss of earnings.
The appellee testified that he did not perform any labor on the farm in 1942 and did not engage in its supervision or management. He further testified that before the accident his health was good and that he had been able to do all the work on the farm but since the accident he had not been able to do so. He further stated, over the objection that it was improper to prove damages by an estimate of earnings, that his net earnings in 1942 were $500 less than in 1941. There was further testimony presented relative to the work he had done on the farm and as to the fact that his injuries had prevented him from carrying on his usual farming activities. *Page 855
We do not believe that there was any error in the allowance of the damage for loss of earnings which the jury included in its verdict. There was some testimony which supported this particular claim. The consideration of this element of damage finds support in 25 C.J.S. 617, 618, section 86, where it is stated:
"* * * where plaintiff's earnings are not measured by a fixed wage, it is proper to show the business in which he was engaged and the extent and amount of his ordinary business, or its average profits, together with the particular part of the business transacted by him * * * In any event, in order to establish the value of plaintiff's services in his business, it is proper to show the character of the business together with the capital and assistants employed, and it is also proper to show the profits, not as a distinct element of damage, but as showing the value of plaintiff's time and services."
We feel that the evidence as presented in this case all had a bearing upon the value of the appellee's time and services and that the court was not in error in submitting this element of damage, upon which the jury based a portion of its verdict. The case of Alitz v. Minneapolis St. L.R. Co., 196 Iowa 437, 443, 193 N.W. 423, 425, is a further authority for the submission of the element of damage of which complaint is made by appellant. In this last-cited case it is stated:
"It is true that the court permitted plaintiff to testify to the nature of his business and extent of his earnings before his injury, and the manner and extent to which his earning capacity was affected or diminished by such injury; but in its charge to the jury, the court said that, in case of a verdict for plaintiff, it was competent for the jury to include in the damages assessed, the hospital, nursing, and doctor's bills reasonably incurred, also, the reasonable value of his loss of time and earnings in his business as a farmer, but `not for profits as such, though these may be considered in connection with the amount of land he was farming, the persons employed, and the expenses and net income before and after his injury, with the amount of his own time and attention thereto, in order to determine how much his earnings from his own services in his business were worth, and *Page 856
the loss he has suffered as the proximate result of his injury.' There is nothing in this evidence or in the instruction of which the appellant can justly complaint. The justice and propriety of such rule have often been recognized." (Citing cases.)
We do not propose to quote from other authorities which authorize the allowance of damages of which complaint is here made. However, in support of this holding, reference is here made to Jordan v. Cedar Rapids M.C.R. Co., 124 Iowa 177, 179, 182, 99 N.W. 693; Mitchell v. Chicago, R.I. P. Ry. Co., 138 Iowa 283, 290, 294, 114 N.W. 622.
Annotations of the cases bearing upon this question, and particularly as to the damages that might be allowed a farmer under circumstances such as are presented in this case, are found in 9 A.L.R. 510, 514; 237 A.L.R. 430, 433; 63 A.L.R. 142, 148; 122 A.L.R. 297, 307.
[2] II. The appellant complains of one of the instructions which related to the question of the amount of damages which might be allowed the appellee, and in which instruction the court went into detail as to the appellee's earnings and the sources and manner from which he obtained his income. The instruction is a lengthy one and we shall not here set it out. It is our conclusion it was carefully prepared, the court having in mind our previous holdings and the holdings of other appellate courts throughout the country on the question involved. Citations of authorities which are referred to in Division I of this opinion are applicable to appellants's complaint concerning this instruction and we see no necessity of here repeating them. Our review of this particular instruction has caused us to reach the conclusion that there was no improper statement of the law therein set forth.
[3] III. The appellant makes particular complaint of one of the instructions given by the court wherein it instructed the jury that it was the duty of one approaching a stop sign at a public highway to bring his car to a stop, and that, in the instant case, the appellee failed to observe such law and was negligent because of such failure. The appellant also complains because of the failure of the court to instruct on "legal excuse" as suggested in requested instructions. The appellant, in the instructions which he asked to have given, set out the facts concerning *Page 857
the claimed frozen condition of the brakes and sought to have the jury pass upon the question whether or not that fact would be a legal excuse.
In Kisling v. Thierman, 214 Iowa 911, 916, 243 N.W. 552, 554, this court defined legal excuse as:
"1. Anything that would make it impossible to comply with the statute or ordinance.
"2. Anything over which the driver has no control which places his car in a position contrary to the provisions of the statute or ordinance.
"3. Where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute.
"4. Where a statute specifically provides an excuse or exception."
The evidence shows that the claimed frozen condition of the brakes resulted from the appellant's driving his car through slush and muddy water the day before the collision, which, by reason of freezing weather, caused the brakes to freeze. The evidence further shows that on the day of the accident the appellant had driven his car only one and one-fourth miles before he reached the highway where the accident occurred. The evidence also shows that in leaving the place where his car had been located during the previous night appellant in his driving had driven down several inclines but had no occasion to use his brakes. However, the appellant testified that on the previous day when he had cause to use the brakes they had properly functioned. It is also disclosed by the evidence that after the collision the brakes were found to be frozen. It is further shown that the brake drums had been rehoned and new brake lining installed less than four months before the collision.
The principal disagreement between the appellant and appellee is that the appellant contends that the question whether or not he had been negligent in not discovering the condition of the brakes was one of fact for the jury, while the appellee contends this question was one of law for the court. There is also a question as to whether or not the appellant's failure to apply the emergency brake in the brief interval between his discovery *Page 858
that the foot brake would not function and the happening of the accident might also be considered in connection with the appellant's claim of legal excuse.
It is our conclusion that it cannot be said that the appellant was negligent as a matter of law in failing to discover the condition of the brakes. We do not feel that it was necessary for the appellant to establish his legal excuse as a matter of law. We have heretofore held that where there is substantial evidence of legal excuse for the violation of the statute the question is for the jury. Sanford v. Nesbit, 234 Iowa 14, 11 N.W.2d 695, 698; Rich v. Herny, 222 Iowa 465, 474, 269 N.W. 489.
In 5 Am. Jur. 642, 643, section 252, the following statement is made relative to the law in regard to the failure of brakes to function. It is there stated:
"* * * where the brakes on an automobile have previously functioned properly, but suddenly fail to respond, their failure does not render the owner guilty of negligence * * * unless he had knowledge of the defective condition. Nor is driving on a public highway an automobile with defective brakes, contrary to the provisions of the statute, negligence per se which will render the driver absolutely liable for resulting injuries, regardless of circumstances."
For further authorities bearing upon the question whether a jury should pass upon the claimed negligence of a driver of an automobile with defective brakes, see annotation 63 A.L.R. 398; also, Lochmoeller v. Kiel, Mo. App., 137 S.W.2d 625, and cases cited.
Under all the facts presented, it is our conclusion that the instruction as given by the trial court was not justified and that the question of legal excuse and an instruction relative to it should have been submitted to the jury.
We have reviewed other claimed errors as presented by the appellant but have only given consideration to those which seemed to have particular merit.
A motion to strike a portion of the supplement to appellant's reply was submitted with the case. By reason of our ruling on appellant's claimed errors which were presented in his *Page 859
original briefs and arguments, we do not deem it necessary to pass upon that motion.
By reason of our conclusions heretofore set forth we find it necessary to reverse the trial court. — Reversed.
SMITH, C.J., and GARFIELD, MILLER, OLIVER, MANTZ, and MULRONEY, JJ., concur.
BLISS, J., takes no part. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429383/ | [1] The judgment sought to be vacated was entered in a proceeding brought by the plaintiff to set aside the probate of her father's will upon the ground, among others, that its execution was procured by the undue influence of the defendant Addison, a sister of the testator. The trial was begun January 25, 1943, and the jury returned a verdict for plaintiff February 20, 1943, on which judgment was entered April 5, 1943. This court affirmed the judgment May 2, 1944, Shaw v. Duro, 234 Iowa 778,14 N.W.2d 241. On September 26, 1944, defendants *Page 722
filed in this action in the court below the petition before us "to vacate the final judgment in this cause and to grant a new trial." After reciting the chronology of the matters of record in the district court, the petition alleged:
"Par. 11. That these defendants allege that the verdict and judgment entered thereon were obtained by irregularity and fraud practiced in obtaining the same in the following particulars, to-wit: That one Beatrice Kinser [erroneously listed as Beatrice Kinzer on the jury panel] * * * was selected to act as one of the jurors in this cause * * * that the husband of said juror, by name Merida Kinser, was unemployed and attended every day during the trial of said case which lasted several weeks; that some time before the arguments started, and before the case was submitted to the jury, the said Merida Kinser * * * and Paul W. Steward, attorney for * * * plaintiff, entered into a bet wherein the said attorney bet said juror's husband the best hat the Utica had that he, the attorney, would lose the case; that the juror spent the night after making said bet, as usual, with his wife, the said juror; that subsequently thereto, after arguments of counsel and instructions of court, said jury retired for its deliberations and rendered a verdict for the plaintiff, causing said attorney to lose his bet; that said attorney paid the bet the following Monday morning with two five dollar bills; that attached hereto, marked Exhibit `B,' and made a part hereof * * * is the affidavit of Merida Kinser * * *."
The petition also alleged that defendants could not have discovered this matter earlier with reasonable diligence and learned of it only accidentally after May 2, 1944.
The affidavit, sworn to in Omaha, August 28, 1944, where affiant was about to take up his permanent residence, stating that his wife was a juror in the Duro case, continued:
"That I was in the Court House every day during the January term of court, being at that time unemployed, and after the jury was impanelled in the aforementioned case, I was in the Court Room every day and listened to the testimony. At that time my wife, BEATRICE KINSER, and I were living together and we would at times go downtown together and home together. *Page 723
PAUL W. STEWARD, Attorney at Des Moines, Iowa, represented the plaintiff * * * and John Gillespie, represented the defendant * * * After lunch on Thursday, February 18, 1943, I went back to the Polk County Court House, and in the elevator ran into Paul W. Steward, and we had the following conversation: I just made the remark, `You've got the old maid whipped.' He said, `What makes you think so?' and I said that it's strong enough that I'll bet the best hat that Utica's got. He said `Well, it's worth several hats if I can win it.'
"After Court was over on this Thursday, I went home and my wife and I had dinner together and we came down to the Court House the next morning together. To the best of my recollection, the arguments started on Thursday, continued on into Friday, and the jury was instructed about 4 o'clock Friday afternoon, February 21, 1943. The jury returned a verdict for the plaintiff, and about 7 o'clock Friday night I called Mr. Steward at his office and said, `Well, I won my bet, didn't I?' He said, `Come on down in the morning and collect your money,' and I said, `I can't come tomorrow, I'm working,' and he said, `Well, come in the first time you're down.' I went down Monday morning to his office in the Valley Bank Building, and Mr. Steward gave me two $5.00 bills to buy my hat. I bought it and still have it. The trial lasted over two weeks and I was there practically every day of the trial."
Notice of filing the petition was served on plaintiff September 27, 1944.
Plaintiff's motion to dismiss the petition alleged failure to file petition within the times provided in Code section 11551, or in chapter 552:
"3. That said petition shows on its face that it was not filed nor commenced within one year from the date of rendition of the judgment and is barred under either or both Chapter 552 of the 1939 Code of Iowa and Rule 253 of the Iowa Rules of Civil Procedure."
The motion also alleged lack of diligence in discovering the matters stated in the affidavit, and ground 6:
"That even though defendants had proceeded by timely *Page 724
motion or petition, said petition wholly fails to allege or show any fraud, irregularity or misconduct which would entitle them to a new trial for the following reasons:"
a. The petition and affidavit fail to show that any bet was made prior to the return of the verdict. b. The alleged conversation which is claimed to constitute a bet was not with any of the jurors and there is no claim or showing that the fact of the alleged bet was ever made known to any of the jurors or that it in any manner influenced the verdict. c. The petition and affidavit fail to allege or show that plaintiff's counsel knew the said Kinser was the husband of a juror. d. The petition and affidavit show the alleged conversation was not invited or initiated by plaintiff's counsel and that he merely made a joking reply to a proposal which no reasonable person could have considered seriously. e. There is no claim, allegation, or showing that the alleged bet influenced or affected the jury in any manner or degree or that the defendants were prejudiced thereby or deprived of a fair trial upon the merits. Another ground was that there was no allegation or showing of a meritorious defense or that a retrial would accomplish a different result.
By reference the defendants made the entire record and proceedings in the trial in the district court in the will contest and on the appeal in this court a part of their petition.
The petition does not expressly show on its face whether it is at law or in equity, or under what Rule of Civil Procedure or section of the 1939 Code, if any, it was filed. The filings in this court are designated as at law. It is argued by appellee in this court, and it is not denied by appellants, that the only contention made by the appellants in the district court was that the petition was at law and was so drawn and filed, and was timely, because, as they claimed, the year of limitation began not on the rendition of the judgment in the district court but on the affirmance of the judgment in the supreme court. In other words, their only contention in the district court was that the final judgment was that of the supreme court. The ruling of the district court clearly indicates that this was the contention of the appellants.
In their printed opening argument in this court appellants assign and rely upon two errors of the trial court for reversal. *Page 725
I. The first one is that: "The court erred in holding that the petition * * * was not filed within one year from date of final judgment."
As already noted, the judgment in the district court was entered April 5, 1943, and was affirmed in this court on May 2, 1944, and the petition to vacate was filed September 26, 1944, more than a year after the entry of judgment below and less than a year after its affirmance. They insist that the affirmance constituted the final judgment, and they file the petition in the district court to vacate the so-called judgment of the supreme court.
The judgment of the district court was entered prior to the time the new Rules of Civil Procedure were effective, and at a time when sections 12787 et seq. of the 1939 Code were in force, while the petition to vacate was filed after the said new Rules took effect. The statutes should perhaps be considered as governing except as to the manner of procedure provided by Rules 252 and 253. The matter is of little or no importance as the Code sections and the Rules noted are, in substance and effect, the same.
Appellants concede that this court has held contrary to their contention, in Gray v. Coan, 48 Iowa 424, 425. In that case the court was construing sections 3154 to 3157, inclusive, of the Code of 1873, which correspond to sections 4091 to 4094, inclusive, of the Code of 1897, and to sections 12787 to 12793, inclusive, of the Code of 1939. In the cited case, the decree in the lower court was entered March 6, 1874. It was affirmed April 7, 1875, and the petition to vacate was filed February 17, 1876. The court, after referring to these dates, said:
"The plaintiff is, therefore, too late, and a demurrer to his petition was correctly sustained. But plaintiff insists that the limitation of one year provided by the statute for this proceeding, runs from the date of judgment of this court affirming the decree of the court below. Plaintiff asks for a new trial, not in this court, but in the court from which the appeal was taken. The judgment which he seeks to set aside was entered more than one year before his petition was filed. The statute provides that his petition shall be filed within one year after the judgment was *Page 726
entered which he seeks to disturb by his proceeding. This ends the matter, and leaves plaintiff without any right to prosecute his case."
The conclusion of the court and its construction of the statutes are sound, but a reason mentioned in the following paragraph of the opinion, in support of its decision, is not sound. The reason as stated is:
"The plaintiff, by taking his appeal, admits that the judgment is final, and thereupon waives his right to prosecute this proceeding for a new trial."
This court has held that an appeal from a judgment does not deprive the appellant of his statutory right to petition for a vacation of that judgment and a new trial if his procedure is timely. Cook v. Smith, 58 Iowa 607, 608, 12 N.W. 617; Chambliss v. Hass, 125 Iowa 484, 487, 101 N.W. 153, 68 L.R.A. 126, 3 Ann. Cas. 16; Kenwood Lbr. Co. v. Armstrong, 197 Iowa 1239, 1243,198 N.W. 521; Rauch v. Des Moines Elec. Co., 206 Iowa 1155, 1156,221 N.W. 788. Appellants also argue that "Under the present rules and the statutes, as set out in Code of 1939, the final judgment or order is the decision of the Supreme Court and not the verdict, judgment or order of the lower court." We do not so read the pertinent sections — 12789 et seq. — nor Rules 252 and 253. There is no difference of any materiality in the language or meaning of these sections or rules from those of the corresponding sections in the Codes of 1873 and 1897.
Appellants urge that the case of Bevering v. Smith, 121 Iowa 607,96 N.W. 1110, gives some support to their contention. The decision in that case is of no aid to them. It construed another section of the Code — section 4205, Code of 1897 (section 12255, Code of 1939) — which applies only to actions for the recovery of real property. It is to be liberally construed, and the section provides that under it a new trial may be granted "although the grounds required for a new trial in other cases are not shown." In fact, the language in 121 Iowa 613, 96 N.W. 1112, is more favorable to appellee than to the appellants. The section is specifically limited to "cases provided for by this chapter." Hinman v. Sage, 213 Iowa 1320, 1322, 241 N.W. 406, *Page 727
407. See, also, Selby v. McDonald, 219 Iowa 823, 830, 831,259 N.W. 485.
While the question of whether the affirmance of a judgment by this court was the final judgment under the Code sections and Rules of Civil Procedure above referred to, rather than the judgment appealed, was not expressly passed upon in Kern v. Woodbury County, 234 Iowa 1321, 1323, 14 N.W.2d 687, 688, it necessarily follows from the decision, which construed Rule 253 of the Rules of Civil Procedure, that final judgment under the Rule was the judgment of the district court and not the affirmance thereof by the supreme court. Appellants have cited no authority which sustains their first assignment of error, and a search of our Reports has disclosed none. The decisions of this court touching the matter indicate the contrary. Rule 337 (c) of the new Rules of Civil Procedure provides that, "No appeal [or stay] shall vacate or affect the judgment or order appealed from." Section 12861, Code of 1939, which said Rule superseded, likewise so provided. It is fundamental that a judgment of the district court which is unreversed and not set aside "isconclusive and final until set aside on appeal." Scott v. Wilson,150 Iowa 202, 207, 129 N.W. 812, 814. "The judgment remains in full force for all purposes, — subject only to determination on appeal, until which time process thereon may be suspended. * * * [It] is res adjudicata until set aside, modified, or reversed." Watson v. Richardson, 110 Iowa 698, 700, 701, 80 N.W. 416, 417, 80 Am. St. Rep. 331. "The filing of an opinion by this court doesnot constitute a decree * * *." State v. Harrison, 159 Iowa 67,70, 71, 140 N.W. 223, 224. "The affirmance was merely a ratification of what had been done in the lower court, and left the parties in precisely the same situation as though no appeal had been taken. * * * Under our practice a new decree is not entered in the Supreme Court upon affirmance, but that of the lower court confirmed * * *." Dunton v. McCook, 120 Iowa 444,447, 94 N.W. 942, 943. "And upon affirmance the order stands ratified and confirmed as originally entered, and the rights ofthe parties necessarily relate back to that time." Hendryx v. Evans, 120 Iowa 310, 315, 94 N.W. 853, 854.
See, also, Hackett v. Freeman, 103 Iowa 296, 300, *Page 728 72 N.W. 528; Lindsay v. Clayton Dist. Ct., 75 Iowa 509, 512, 39 N.W. 817; Cole v. Edwards, 104 Iowa 373, 374, 73 N.W. 863; Jefferson v. Rust, 155 Iowa 133, 137, 135 N.W. 613; Higgins v. Higgins,204 Iowa 1312, 1314, 1315, 216 N.W. 693; Partridge Co. v. Harrow,27 Iowa 96, 99, 99 Am. Dec. 643. See, also, Stevens v. Carroll,131 Iowa 170, 171, 105 N.W. 653, 654, where the court said: "Moreover, when the case reached us on appeal, the judgment was affirmed." Likewise, in this case the judgment was affirmed. Under the above authorities there never was a judgment in the supreme court. There was but one judgment: that of the district court. Necessarily it was the final judgment.
The trial court was right in sustaining the third ground of the motion to dismiss and holding that the petition was not filed within the year following the rendition of the final judgment.
[2] II. The second error assigned by appellants is as follows:
"The court erred in failing to hold that fraud extrinsic and collateral to the matter involved in the original suit is not a sufficient ground to set aside a judgment even though the action was not instituted within one year from the entry of the original judgment in the lower court."
Here appellants change their position and insist that the same petition which they contend was at law in the first division of their argument, and brought under Rules 252 and 253, was in fact a petition in a suit in equity seeking to vacate the judgment under the broad general powers of a court of equity, independently of said Rules. They have, however, entitled the proceeding as at law in the original action, as we have held it must be in a proceeding under such statutory provisions. McKee v. National Travelers Cas. Assn., 225 Iowa 1200, 1202-1204,282 N.W. 291; Bates v. Farmers L. Tr. Co., 227 Iowa 1347, 1353,291 N.W. 184. "Such an action is to be distinguished from an application for new trial in the original suit." Wood v. Wood, 136 Iowa 128,135, 113 N.W. 492, 495, 12 L.R.A., N.S., 891, 125 Am. St. Rep. 223. The general practice in Iowa, where equitable relief is sought to set aside a judgment where the grounds therefor could not reasonably be discovered, and were not discovered, within the year after the rendition of judgment, is for *Page 729
the petitioner to institute an independent action in equity against the successful party in the judgment action.
While the second assignment complains of the failure of the trial court to hold with appellants on the proposition stated in the assignment, the appellee states in argument that appellants never submitted it to that court and raised it for the first time in this court. However, appellee has consented to the submission of this assignment, and has urged as an additional ground of affirmance that appellants' petition, on its face, conceding the well-pleaded facts to be true for the purpose of the motion, has not stated a prima facie case entitling them to the relief asked, on the grounds of irregularity and fraud. We will therefore determine the matter.
It has been the uniform holding of this court that where the petitioner has not in the exercise of proper diligence discovered the fraud or other grounds upon which he relies within the year after the entry of final judgment or decree he may institute suit in equity invoking the equitable powers of the court to vacate the judgment or grant him a new trial after the time fixed in the statute for so doing has passed. But, while the proceeding is in equity, we have also uniformly held that the grounds alleged for the relief must be found among those specified in the statutory provisions noted herein authorizing the relief. Jackson v. Gould,96 Iowa 488, 490, 65 N.W. 406; Larson v. Williams, 100 Iowa 110,117, 63 N.W. 464, 69 N.W. 441, 62 Am. St. Rep. 544; McConkey v. Lamb, 71 Iowa 636, 638, 33 N.W. 146; Lumpkin v. Snook, 63 Iowa 515,518, 19 N.W. 333; Mains v. Des Moines Nat. Bk., 113 Iowa 395,400, 85 N.W. 758; Richards v. Moran, 137 Iowa 220, 227, 228,114 N.W. 1035; Hedrick v. Smith Reed, 137 Iowa 625, 627,115 N.W. 226; Ruppin v. McLachlan, 122 Iowa 343, 352, 98 N.W. 153; Yocum v. Taylor, 179 Iowa 695, 699, 161 N.W. 636; Engelbercht v. Davison, 204 Iowa 1394, 1399, 1400, 213 N.W. 225; Montagne v. Cherokee County, 200 Iowa 534, 539, 205 N.W. 228; Abell v. Partello, 202 Iowa 1236, 1240, 211 N.W. 868. There is some intimation in the last-cited case that a court of equity might exercise its power even though the equity was not a statutory ground. See, also, District Township v. White, 42 Iowa 608, 613; Young v. Tucker, 39 Iowa 596, 600; Hoskins v. Hattenback, 14 Iowa 314. *Page 730
[3] It is also essential that the fraud be extrinsic and collateral to the proceedings and issues in the original case. Holmes v. Holmes, 189 Iowa 256, 264, 176 N.W. 691; Tollefson v. Tollefson, 137 Iowa 151, 154, 114 N.W. 631; Graves v. Graves,132 Iowa 199, 205, 109 N.W. 707, 10 L.R.A., N.S., 216, 10 Ann. Cas. 1104; Swartzendruber v. Polke, 205 Iowa 382, 387, 218 N.W. 62.
If the allegations of appellants' petition justified their conclusion that appellee's attorney tampered with the jury and wrongfully sought to influence it or any of its members in favor of his client, to the prejudice of appellants, in our judgment it would have been fraud within the intent of section 12787 of the 1939 Code, or of Rule 252. And if it were such fraud it was extrinsic and collateral as above noted.
In Lumpkin v. Snook, supra, 63 Iowa 515, 518, 19 N.W. 333, 334, the court said:
"The term `fraud' is used in the section in its ordinary sense, `and it would include any act, omission, or concealment which involves a legal or equitable duty, trust or confidence, and is injurious to another, and by which an undue or unconscientious advantage is taken of another.' Story's Equity Jurisprudence, § 187."
[4] Viewing the petition in the light most favorable to appellants, and conceding the facts alleged therein and stated in the affidavit to be true, it is our conclusion that the appellants have not stated a case which entitles them to the relief prayed for. They have failed as a matter of law to make a prima facie case of irregularity or fraud within the contemplation of Rule 252 (b) or section 12787, Code of 1939.
The attorneys for appellants in this proceeding are able lawyers. Appellee stated in both the oral and written submission that they procured the affidavit and it was not denied. They no doubt stated the facts as they were reported to them and endeavored to make as favorable a showing in the affidavit for their side of the case as was possible. They knew the important facts that would aid their case. And yet the affidavit fails to state any acquaintance between the affiant and appellee's attorney, any *Page 731
knowledge that the latter knew affiant was the husband of a juror, any knowledge that he even knew who affiant was. It fails to state that the affiant ever communicated to his wife or to any other juror at any time the conversation which took place in the courthouse elevator. Surely the affiant and perhaps his wife were interrogated about these matters, and we may assume that if the answers were favorable to appellants they would have been incorporated in the affidavit. We can hardly assume that they were omitted by inadvertence. The burden was upon the appellants to plead a prima facie case. The trial court and this court should not have been required to conjecture concerning vital information which appellants had or could have obtained. It was stated in oral argument that the trial created much interest and many people were in the courtroom during the three weeks or more of the trial. The printed record of the trial was one which this court read with interest. The affiant, being in daily attendance, knew appellee's attorney, but it might be not at all likely that the attorney would know affiant. The trial was about over when the elevator incident occurred. It was apparently progressing so favorably for appellee that affiant felt very sure she would win. Under such circumstances it is hardly likely that appellee's attorney would broadcast through the courthouse that he was betting he would lose the case. He would hardly make such a bet in a public elevator. It is difficult to conceive that he thought he was making a bet. It requires a strained construction of the conversation in the elevator to say that it was a bet. It was an important case to the attorney. The estate involved in the case amounted to $75,000. It is hard to believe that he thought he was making, or intended to make, a bet that he was going to lose the case. After the verdict was returned the affiant claimed he had won the bet and the attorney paid him $10, the price of a hat, but that fact does not establish that a bet was made in the elevator. It was a thoughtless thing to do, but it falls far short of making even a prima facie case that he had any thought or purpose of trying to improperly influence the jury in favor of appellee, or that it was thereby so influenced. He did not open the conversation with affiant. He did not seek him out to make a bet or discuss the case. He simply passed off the statement of *Page 732
affiant with the casual remark that it would be worth several hats to him to win the case.
The burden upon one attempting in an equity suit to set aside a judgment or decree and to obtain a new trial is a heavy one. As said in Bingman v. Clark, 178 Iowa 1129, 1136, 159 N.W. 172, 175:
"If relief is granted at all, it must be found in the broad, equitable powers of a court of equity to grant relief against unjust and inequitable judgments, and judgments against good conscience. A court of equity, in applications of this kind, does not sit as an appellate court of review. Even if the trial court committed errors, a court of equity will not interfere unless the judgment is against good conscience. There must be a concurrence of the accident complained of, or some other ground of equitable interference, and the injustice of the judgment itself. * * * A court of equity will not interfere to set aside a judgment at law in any case, until it is made reasonably to appear that the result would be other or different than that already reached, in the event a new trial were granted."
In Abell v. Partello, supra, 202 Iowa 1236, 1241, 211 N.W. 868,870, wherein it was sought to set aside a decree in equity, we said:
"Clearly, it [a court of equity] will not exercise its power except upon a strong showing of equitable considerations."
We are familiar with the record made and the evidence introduced in the trial in the main case. It is our conclusion that the appellants have not shown themselves entitled to relief at law under Rules 252 and 253, Rules of Civil Procedure, or under section 12787 et seq. of the Code of 1939, and that there is no merit to either assignment of error. Neither are they entitled to relief in equity. It is immaterial, with respect to the result, whether the matters presented to us in Division II of appellants' opening printed brief and argument, and in their reply brief, be reviewed de novo in equity or treated as an appeal at law, for the facts pleaded in their petition charging fraud or irregularity on the part of appellee's attorney are insufficient and do not state *Page 733
a case entitling the appellants to the relief for which they prayed.
[5] III. As above stated, appellee cross-appealed because of claimed errors of the trial court in overruling certain grounds of her motion. Since her motion was sustained on one ground and the judgment of the trial court dismissed the appellants' petition, she obtained all the relief for which she asked and to which she was entitled. She was therefore not prejudiced nor in any way aggrieved by the overruling of any grounds of her motion and consequently she was not entitled to cross-appeal because of these rulings. She could not have appealed because she was not aggrieved, and for the same reason she could not cross-appeal on the appellants' appeal. A party may not appeal from a finding of fact or a conclusion of law which does not prejudice him, however erroneous such finding or conclusion may be. A decision directly in point is Ford v. Dilley, 174 Iowa 243, 247, 156 N.W. 513, in which all members of the court concurred in holding that in such case this court had no jurisdiction to entertain the cross-appeal. See, also, Boyce v. Wabash Ry. Co., 63 Iowa 70,74-76, 18 N.W. 673, 50 Am. Rep. 730; Jenks v. Smith, Lichty
Hilman Co., 129 Iowa 139-141, 105 N.W. 396; Commercial Nat. Bk. v. Gilinsky, 142 Iowa 178, 185, 186, 120 N.W. 476, 134 Am. St. Rep. 406; Northwestern Mut. L. Ins. Co. v. Blohm, 212 Iowa 89,95-98, 234 N.W. 268; Creel v. Hammans, 232 Iowa 95, 98-100,5 N.W.2d 169. We, of course, are not holding that the successful party below may not cross-appeal if the judgment or ruling below does not give him his full relief or is prejudicial to him in some respect. The appellants did not move to dismiss the cross-appeal. But we may do so on our own motion where an appeal does not lie.
[6] IV. But it does not follow that, though appellee cannot cross-appeal, she may not call this court's attention to the errors complained of on her cross-appeal and argue them on appellants' appeal, without cross-appeal and assignment of errors on her part. Appellants on their appeal urge that the trial court erred in sustaining ground three of the appellee's motion; the appellee is therefore entitled to submit to us and contend that if there were such error, the appellants are not prejudiced, because the motion should have been sustained; also, upon other *Page 734
grounds of the motion, which the court overruled. Appellee was entitled, without appealing, to protect her judgment, of which she did not complain, by showing that on the face of the record, the error, if any, assigned by appellants, was not to their prejudice. This rule announced by the decision on rehearing, in First Nat. Bk. of Marshalltown v. Wright, 84 Iowa 728, 733, 734,48 N.W. 91, 50 N.W. 23, has never been departed from. See Smith v. Knight, 88 Iowa 257, 278-280, 55 N.W. 189; Voorhees v. Arnold,108 Iowa 77, 85, 86, 78 N.W. 795; Ford v. Dilley, supra, 174 Iowa 243,247, 248, 156 N.W. 513; Taylor v. Independent Sch. Dist.,181 Iowa 544, 565, 164 N.W. 878; Eisentrager v. Great N.R. Co.,178 Iowa 713, 720, 160 N.W. 311, L.R.A., 1917B, 1245; Campbell v. Park, 128 Iowa 181, 186, 101 N.W. 861; Young v. Clark, 226 Iowa 1066,1071, 285 N.W. 633; McCuddin v. Dickinson, 230 Iowa 1141,1143, 1144, 300 N.W. 308; Kelso v. Wright, 110 Iowa 560, 565,81 N.W. 805; Thompson v. Butler, 223 Iowa 1085, 1091, 1092,274 N.W. 110; Iowa Elec. Co. v. Home Ins. Co., 235 Iowa 672, 676,17 N.W.2d 414, 416. In Collins v. Brazill, 63 Iowa 432, 435,19 N.W. 338, and in Loomis v. Des Moines News Co., 110 Iowa 515, 517,81 N.W. 790, this court held that the successful party below must appeal before it would inquire whether the lower court might not properly have also sustained the motion on grounds thereof which it had expressly overruled. This rule of these two cases has never been expressly overruled although it has been impliedly and effectively overruled by the decisions cited above. We now expressly overrule it.
The overruling of the sixth ground of her motion to dismiss is the error of which appellee most earnestly complains. Since we have already upheld her contention on this point by our holding in Division II hereof that there was no equity in appellants' petition we will discuss the matter no further. Neither is there any necessity of passing upon appellee's other assignments of error.
The judgment of the district court dismissing, at their costs, appellants' petition to set aside the judgment entered and to grant a new trial in the proceedings to set aside the last will and testament of John Heber Duro, deceased, is — Affirmed.
All JUSTICES concur. *Page 735 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7247138/ | CHRISTOPHER R. COOPER, United States District Judge
This is the second in a series of cases involving the Federal Election Commission and its (non)regulation of American Action Network, Inc. ("AAN"), a self-described "issue-oriented action tank" that ran nearly $18 million in television advertisements just before the 2010 federal midterm elections. Citizens for Responsibility and Ethics in Washington-a watchdog group known as "CREW"-contends that AAN's spending on these ads rendered it a "political committee" as defined in the Federal Election Campaign Act of 1971. And, according to CREW, because AAN did not register as a political committee during the relevant time period, it evaded the Act's recordkeeping and disclosure requirements that apply to those groups.
In 2012, CREW filed an administrative complaint with the Commission to that effect. By an evenly divided vote, the Commission dismissed CREW's complaint because a majority of the Commissioners did not find "reason to believe" that AAN violated the Act. 52 U.S.C. § 30109(a)(2). Specifically, the three controlling Commissioners concluded that AAN did not qualify as a political committee because it lacked a "major purpose" of nominating or electing a candidate for federal office, Buckley v. Valeo, 424 U.S. 1, 79, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). This Court in a previous decision held that dismissal "contrary to law" because it rested on an erroneous premise regarding Buckley's"major *86purpose" requirement. On remand, the Commission again dismissed CREW's complaint in a deadlocked decision.
CREW then filed this suit challenging the Commission's second dismissal as contrary to law. Because the Court finds that the Commission's analysis was inconsistent with the governing statutes, it will grant summary judgment in favor of CREW and remand this matter to the Commission.
I. Background
A. Legal Background
The Federal Election Campaign Act of 1971 ("FECA"), as substantially amended in 1974, regulates federal elections in two key ways. First, the law sets monetary limits on contributions to political parties and candidates. See 52 U.S.C. § 30116. Second, it imposes disclosure requirements on entities that spend money for the purpose of influencing elections, even when that spending does not go directly to a candidate's coffers. See id. § 30104.
This case is about FECA's disclosure requirements-specifically, those triggered by spending on political advertisements. In broad terms, these disclosure requirements serve "three important interests: providing the electorate with relevant information about the candidates and their supporters; deterring actual corruption and discouraging the use of money for improper purposes; and facilitating enforcement of the prohibitions in the Act." McConnell v. FEC, 540 U.S. 93, 121, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (controlling opinion of Stevens & O'Connor, J.J.).
Some of FECA's disclosure requirements are triggered by certain types of communications. For example, an entity that makes "independent expenditures"-that is, a communication "expressly advocating the election or defeat of a clearly identified candidate," 52 U.S.C. § 30101(17) -of over $250 in a calendar year must file a report with the Commission containing information about itself and its contributors, id. § 30104(c).
FECA also imposes more pervasive disclosure requirements on entities based on their campaign-related spending patterns. As relevant here, "political committees"-commonly referred to as "political action committees" or "PACs"-are subject to extensive, ongoing disclosure requirements. They must appoint a treasurer, keep records with the names and addresses of contributors, and file regular reports during a general election year with accounting information, including the amounts spent on contributions and expenditures. Id. §§ 30102-04. They must also register with the Federal Election Commission or face penalties. Id. §§ 30104(a)-(b), 30109(d)(1).
An entity qualifies as a political committee when it satisfies two separate conditions. The first was imposed by Congress in the text of FECA: the entity must receive or spend more than $1,000 in a calendar year for the purpose of influencing a federal election. Id. § 30101(4)(A), (8)(A)(i), (9)(A)(i).1 The second condition was imposed by the Supreme Court in Buckley v. Valeo as a narrowing construction of the statutory definition. Under Buckley, political committees are limited to those "organizations that are under the control of a candidate or the major purpose of which is the nomination or elec tion of a candidate *87." 424 U.S. at 79, 96 S.Ct. 612 (emphasis added). A broader definition of "political committee," the Court explained, could raise problems of vagueness under the First Amendment by threatening the speech of "groups engaged purely in issue discussion" and not just those engaged in "campaign related" activity. Id.
Several decades after Buckley, Congress in the Bipartisan Campaign Reform Act of 2002 ("BCRA") amended FECA to add important new disclosure requirements. BCRA was aimed, among other targets, at the post- Buckley rise of corporate and union spending on ads that were nominally related to political issues but were clearly intended to sway voters in upcoming federal elections. See McConnell, 540 U.S. at 126-32, 124 S.Ct. 619. To capture these "so-called issue ads," id. at 126, 124 S.Ct. 619, Congress created a new category of communications called "electioneering communications"-television advertisements that air within 60 days of a federal election, clearly identify a candidate running for federal office, and target the relevant electorate. 52 U.S.C. § 30104(f)(3)(A)(i). Corporations spending over $10,000 on those communications in a calendar year must file a statement with the Commission that discloses information about the entity, the candidates identified in the communications, the recipients of any disbursements, and any donors who gave over $1,000 toward electioneering communications since the beginning of the preceding calendar year. Id. § 30104(f)(2) ; 11 C.F.R. § 104.20(c)(9).2 Ads that qualify as electioneering communications must also include disclaimers with information like the name of the entity that paid for the ad and whether the ad was authorized by a candidate. 52 U.S.C. § 30120(a) ; see 11 C.F.R. § 100.11(c)(3).
The Federal Election Commission ("FEC"), an independent agency with six Commissioners, is responsible for enforcing FECA's disclosure requirements. See 52 U.S.C. § 30106(b)(1). The Commission has not adopted a rule that further clarifies the meaning of Buckley's"major purpose" limitation. Rather, it has taken a case-by-case approach by deciding whether particular entities have a major purpose of nominating or electing a candidate. See Shays v. FEC, 511 F.Supp.2d 19, 30 (D.D.C. 2007). This approach was ultimately upheld by a fellow judge in this District against challenge under the Administrative Procedure Act. See id.
Any person or entity may file a complaint with the Commission asserting a FECA violation. 52 U.S.C. § 30109(a)(1). If four or more Commissioners find "reason to believe" that FECA was or will soon be violated, then the Commission must investigate. Id. § 30109(a)(2). Otherwise, the complaint is dismissed. See id. § 30106(c). In the event of dismissal, the controlling group of Commissioners-here, those voting against enforcement-must provide a statement of reasons explaining the dismissal decision. See FEC v. Nat'l Republican Senatorial Comm. ("NRSC"), 966 F.2d 1471, 1476 (D.C. Cir. 1992). "Any party *88aggrieved" by an FEC dismissal decision may petition for this Court's review. 52 U.S.C. § 30109(a)(8)(A). If the Court finds the statement of reasons to be contrary to law, it can direct the FEC to take action within 30 days that "conforms with" the Court's ruling. Id. § 30109(a)(8)(C).
B. Factual and Procedural Background
1. The FEC's First Dismissal
American Action Network ("AAN") is a tax-exempt § 501(c)(4) civic organization. Joint Appendix ("J.A.") 1490-91 (ECF No. 46). The group's stated mission is to "create, encourage and promote center-right policies based on the principles of freedom, limited government, American exceptionalism, and strong national security." J.A. 1490. To advance that mission, AAN has sponsored educational activities and grassroots events. But the majority of its spending throughout the period at issue in this case-July 23, 2009 through June 30, 20113 -was on political advertisements. Of its $27.1 million in total spending over that period, just over $4 million was devoted to independent expenditures-i.e. , ads expressly advocating for or against a federal candidate. J.A. 1765. An additional $13.7 million was devoted to electioneering communications-i.e. , ads run near an election that identify a candidate and target the relevant electorate. Id.
In June 2012, CREW and its then-executive director filed a complaint with the FEC alleging that AAN's spending near the 2010 midterms rendered it an unregistered political committee. J.A. 1480-88. The FEC's Office of General Counsel reviewed the complaint and recommended that the Commission investigate it because there was reason to believe that AAN was indeed a political committee. Id. at 1659. Nevertheless, in June 2014, the Commissioners deadlocked three-to-three on whether to commence an investigation and, accordingly, the Commission dismissed CREW's complaint. Id. at 1689.
The three controlling Commissioners-those voting against investigation-issued a Statement of Reasons explaining that AAN was not a political committee because it did not have a major purpose of nominating or electing a federal candidate. J.A. 1690-723. The Commissioners first explained that, based on AAN's organizational documents, its official public statements, and its tax-exempt status, AAN appeared to have a "central organizational purpose" that was "issue-centric" and not focused on electing candidates. Id. at 1706-07. They then turned to the heart of CREW's complaint: that AAN's spending on advertisements rendered it a political committee. Id. at 1708. In this part of their analysis, the Commissioners relied on a rigid distinction between "express advocacy" for a candidate-which properly counted toward an electoral major purpose-and "issue advocacy"-which categorically did not. See id. at 1709-10. In the Commissioners' view, the Supreme Court had interpreted the First Amendment to require such a categorical distinction-first in Buckley and more recently in FEC v. Wisconsin Right to Life, Inc. ("WRTL II"), 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007), which held that a statute prohibiting corporations from funding electioneering communications could not, consistent with the First Amendment, be applied to forbid the funding of "genuine issue ads" that are not "the functional equivalent of express advocacy," id. at 480-81, 127 S.Ct. 2652.4 See J.A. 1704-05, 1709.
*89Relying on the dichotomy between express and issue advocacy from WRTL II, the Commissioners characterized all of AAN's ads that did not expressly advocate for a candidate (i.e. , its electioneering communications) as "genuine issue advertisements," the $13.7 million cost of which could not be counted toward an election-related major purpose. J.A. 1709-10. They made this determination wholesale, without discussing the content of any individual ad. Id. The Commissioners also considered AAN's spending over its lifetime-mid-2009 to mid-2011-instead of year-to-year and, in total, found that only the $4.1 million that AAN spent on express advocacy between 2009 and 2011 was aimed to elect a candidate. Id. at 1709. In their view, because that spending accounted for only 15% of AAN's total expenses during that period, the group necessarily lacked a major purpose of nominating or electing a candidate. Id. at 1709-10, 1716.
CREW filed suit in this Court challenging the FEC's dismissal of the complaint against AAN, as well as the dismissal of a similar complaint against another organization, Americans for Job Security ("AJS"). CREW v. FEC, 209 F.Supp.3d 77, 80-81 (D.D.C. 2016). CREW alleged that both dismissals violated FECA.5 AAN and AJS intervened as additional defendants and the parties filed cross-motions for summary judgment. Id. at 85.
In a September 2016 decision, this Court held that both dismissals were contrary to law and remanded them to the Commission for reconsideration. Id. at 95. As the Court explained, the FEC's reliance on a hard distinction between express advocacy and issue advocacy depended on an erroneous premise: that the First Amendment required it to exclude from its consideration all non-express advocacy in the context of disclosure requirements . Id. at 93. While the Supreme Court in WRTL II had concededly drawn such a distinction in evaluating a ban on corporate-sponsored electioneering communications, in McConnell and Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), it had expressly declined to take that approach in evaluating disclosure requirements triggered by those communications. Id. at 89-90 (quoting Citizens United, 558 U.S. at 369, 130 S.Ct. 876 ). And in the wake of those cases, "federal appellate courts ha[d] resoundingly concluded that WRTL II's constitutional division between express advocacy and issue speech is simply inapposite in the disclosure context." Id. at 90.
This Court nevertheless declined to adopt CREW's proposed rule that, to comply with FECA, the Commission must treat all electioneering communications as indicative of an election-related major purpose. As the Court explained:
CREW's citations to legislative history, past FEC precedent, and court precedent certainly support the conclusion that many or even most electioneering communications indicate a campaign-related purpose. Indeed, it blinks reality to conclude that many of the ads considered by the Commissioners in this case were not designed to influence the election or defeat of a particular candidate in an ongoing race. However, particularly *90given the FEC's judicially approved case-by-case approach to adjudicating political committee status, the Court will refrain from replacing the Commissioners' bright-line rule with one of its own.
Id. at 93 (citations omitted).
2. The FEC's Second Dismissal
On remand, the FEC again divided three-to-three and dismissed CREW's complaint against AAN. J.A. 1763. The controlling Commissioners' Statement of Reasons acknowledged that, in light of this Court's decision, it could no longer categorically exclude AAN's electioneering communications from its major-purpose calculation. Id. at 1767-68. Rather, the Commissioners explained that they would proceed ad-by-ad and weigh several factors in deciding whether each electioneering communication should count toward an election-related major purpose. These factors included (1) the extent to which the ad's language focuses on "elections, voting, political parties," and the like; (2) "the extent to which the ad focuses on issues important to the group or merely the candidates referenced in the ad"; (3) the context of the ad (but "only to the extent necessary ... to understand better the message being conveyed"); and (4) whether the ad "contains a call to action and, if so, whether the call relates to the ... issue agenda or, rather, to the election or defeat of federal candidates." Id. at 1768.
Before they turned to each ad, the Commissioners explained that all of the ads ran in a time period that-while admittedly near the federal midterm elections-also preceded an anticipated "lame duck" congressional session. J.A. 1768-70. During that session, Congress was expected to "consider several pieces of major legislation, many involving policy issues of great importance to AAN" like "Bush-era tax cuts, federal spending, health care, and energy." Id. at 1769. And, as the Commission noted, Congress did ultimately convene a lame duck session in December 2010 and considered some of those issues. Id. at 1769-70.
"With that context in mind," the controlling Commissioners then evaluated AAN's twenty electioneering communications. J.A. 1770. They concluded that four of the ads indicated an election-related major purpose: those titled "Bucket,"6 "New Hampshire,"7 "Order,"8 and "Extreme."9 Id. at 1779. "Order" and "Extreme," for *91example, sought to criticize two Democratic congressional candidates-Mike Oliverio and Annie Kuster, respectively-by linking them with Nancy Pelosi in unfavorable ways. Id. at 1778. As the Commissioners explained, "[n]either ad contains a call to action, nor do they focus on changing the voting behavior or policy stances of the named individuals." Id. Thus, in their view, those ads were best understood as aiming to defeat reelection of the named representatives.
On the other hand, the Commissioners found that AAN's sixteen other electioneering communications did not evince an election-related purpose. Conceding that these ads were critical of the incumbent representatives they identified, the Commissioners focused on the fact that each ad instructed viewers to call the representative and urge him to change his vote on a political issue, if not an actual pending bill. See id. at 1770-79. For example, the Commissioners declined to count the cost of an ad titled "Quit Critz," which accused then-Pennsylvania representative Mark Critz of supporting "the Obama-Pelosi agenda that's left us fourteen trillion in debt." J.A. 1770. The ad concluded with an exhortation to "[t]ell Congressman Critz that Pennsylvania families need tax relief this November, not more government," and it superimposed text that instructed viewers to call Representative Critz and tell him to vote "Yes on H.R. 4746," the House tax-cut bill introduced earlier that year. Id. In evaluating that ad and several similar to it,10 the Commissioners explained that the ads' references to "November" were "best understood as a reference to the time period in which the lame-duck session would commence" instead of a reference to the November midterm election, and that "the express point of [their] criticism" was "to marshal public sentiment to persuade the officeholders to alter their voting stances." J.A. 1772.
Combining AAN's spending on the four election-related ads with the $4.1 million it spent on express advocacy yielded a sum of $5.97 million, or 22% of AAN's total spending between mid-2009 and mid-2011. J.A. 1779. The Commissioners ran an alternative calculation by adding the cost of an ad called "Read This"11 -which they considered issue-focused but close to the line-and by counting AAN's spending over only the most recent year in question (mid-2010 to mid-2011). Id. Under that approach, "the amount of spending that indicate[d] a purpose to nominate or elect federal candidates would constitute less than 28% of [AAN's] total spending in that time period." Id. As a result, the Commissioners concluded that AAN did not have the requisite major purpose of nominating or electing a candidate, and they therefore *92voted to dismiss CREW's complaint against AAN.12 Id. at 1779-80.
Soon thereafter, CREW filed a motion for an order to show cause why the FEC's dismissal on remand did not contravene this Court's prior decision. Pls.' Mot. Show Cause, No. 14-cv-1419 (Nov. 14, 2016) (ECF No. 57). The Court denied the motion. Memo. Op. & Order, id. (Apr. 6, 2017) (ECF No. 74). To the extent that CREW's motion relied on new legal arguments-for example, that the Commissioners relied on a misreading of McConnell-the Court explained that those new arguments were "properly taken up in a separate suit." Id. at 5. The Court further found that nothing in the Commissioners' dismissal violated the letter of its prior decision:
[T]he Court never ordered the FEC to reach a particular result, or to consider any particular ad-or any proportion of electioneering communications-election-related. Instead, the Court directed the FEC to reconsider its decision without "exclud[ing] from its [major purpose] consideration all non-express advocacy." The FEC did just that.
Id. at 6 (citation omitted).
CREW then filed this suit against the FEC. AAN and AJS again intervened as defendants. The parties stipulated to dismissal of the claims against AJS, and thus all that remains is the allegation that the FEC's dismissal of the complaint against AAN was contrary to law. The parties' cross-motions for summary judgment are now ripe.
II. Legal Standards
Where a party challenges an FEC dismissal decision, this Court will grant summary judgment to the challenger only if the agency's decision was "contrary to law," 52 U.S.C. § 30109(a)(8)(C), meaning either that "the FEC dismissed the complaint as a result of an impermissible interpretation of [FECA]," or that "the FEC's dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary or capricious, or an abuse of discretion." Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). This same standard of review applies to all FEC decisions, whether they be unanimous or determined by tie vote. In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000). This is because the Commissioners voting for dismissal "constitute a controlling group for purposes of the decision," and so their statement of reasons "necessarily states the agency's reasons for acting as it did." NRSC, 966 F.2d at 1476.
In evaluating whether a group has an election-related major purpose, the Commission is construing the term "political committee" as it appears in FECA-a statute that the Commission is charged with enforcing. The Court thus reviews the Commission's determination of whether an entity is a political committee using the framework set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See, e.g., Orloski, 795 F.2d at 161-62. Under Chevron, the Court at "Step 1" must use "traditional tools of statutory interpretation" to decide "whether Congress has directly spoken to the precise question at issue." 467 U.S. at 842-43 & n.9, 104 S.Ct. 2778 ; see also Pharm. Research & Mfrs. of Am. v. Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001) (examining "text, structure, purpose, and legislative history"). If so, then Congress's resolution must be given legal effect no matter what *93the agency says to the contrary. Chevron, 467 U.S. at 843, 104 S.Ct. 2778. If, on the other hand, the statute is silent or ambiguous on an issue, the Court proceeds to "Step 2" and decides whether the agency's resolution of the issue was "a reasonable policy choice for the agency to make." Id. at 845, 104 S.Ct. 2778. While the Court's review at Step 1 is plenary, at Step 2 it is "highly deferential." Nat'l Rifle Ass'n of Am., Inc. v. Reno, 216 F.3d 122, 137 (D.C. Cir. 2000).
This Court also reviews whether the FEC's dismissal was "arbitrary or capricious, or an abuse of discretion." Orloski, 795 F.2d at 161. This standard largely overlaps with Chevron Step 2; the same core question is whether the agency analyzed the problem reasonably. See Pharm. Research & Mfrs. of Am. v. FTC, 790 F.3d 198, 209 (D.C. Cir. 2015). The Court will hold an FEC decision unlawful if it "entirely failed to consider an important aspect of the problem," it "offered an explanation for its decision that runs counter to the evidence before [it]," or "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Autom. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
III. Analysis
CREW contends that the controlling Commissioners' analysis on remand rested on legal errors-some repeated and some new. It first claims that the Commissioners "fabricated" a multifactor test that allowed it to disregard nearly all of AAN's electioneering advertisements, in violation of this Court's prior decision. Pls.' Mot. Summ J. at 22. More fundamentally, says CREW, the Commission's dismissal rested on a misinterpretation of Buckley and McConnell because it invoked those cases as a reason to exclude electioneering communications from its major purpose analysis. Id. at 28-33. In CREW's view, those cases require just the opposite "because every electioneering communication, by reason of its being an electioneering communication, is 'specifically intended to affect election results.' " Pls.' Reply at 13-14 (quoting McConnell, 540 U.S. at 127, 124 S.Ct. 619 ). Finally, CREW argues that the Commission's analysis was arbitrary and capricious because it ignored contextual evidence highly relevant to the ads' purpose and instead "cherry picked information" in order to "excus[e] AAN from political reporting." Pls.' Mot. Summ. J. at 41.
As the Court explained in denying CREW's motion for a show-cause order, the controlling Commissioners did not repeat their mistake of drawing a bright line between express and issue advocacy. The Court nevertheless finds legal error in the Commission's approach to analyzing AAN's status as a political committee. While the controlling Commissioners did not categorically refuse to count AAN's electioneering advertisements as indicative of an election-related major purpose, the Commissioners used a multifactor test that started from a blank slate in considering the content of each ad, with no apparent regard for the highly relevant fact that each ad fell cleanly within Congress's definition of an "electioneering communication." In the Court's view, that approach violates the unambiguous directive of Congress-made clear in the Bipartisan Campaign Reform Act of 2002-that electioneering communications presumptively have an election-related purpose. In turn, to the extent that the Commission considers an entity's spending in assessing its major purpose, it must presumptively treat spending on electioneering ads as indicating a purpose of nominating or electing a candidate.
*94A. In FECA and BCRA, Congress Made Clear that Electioneering Ads Presumptively Have a Purpose of Nominating or Electing a Federal Candidate
To understand the Court's conclusion, begin with the plain text of FECA. Its definition of "political committee" is unambiguously broad: it covers any entity that receives or spends over $1,000 within one calendar year for the purpose of influencing an election. If this is all the Court had to go on-and if it could disregard Buckley's constitutional concerns-it would conclude that AAN is a political committee under the clear terms of FECA, and therefore that the Commission was bound to determine as much. See Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc) (with respect to the definition of "political committee," "it cannot be[ ] contended that the statutory language itself is ambiguous" (emphasis added) ), vacated on other grounds , 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998).
Of course, after Buckley the Commission is not free to rely on this broad statutory definition alone. The question, then, is how the Supreme Court's imposition of the major purpose requirement changes things. Here, the context of Buckley's holding is important. The Buckley Court faced a wide-ranging constitutional challenge to FECA after it was amended in 1974. Before reaching the Act's disclosure requirements, the Court first confronted the Act's $1,000 annual limit on expenditures "relative to a clearly identified candidate during a calendar year." 424 U.S. at 39, 96 S.Ct. 612. The Court attempted to narrow this language to avoid vagueness problems under the First Amendment by construing it "to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Id. at 44, 96 S.Ct. 612. Even with that narrowing construction, however, the Court found the provision invalid because the government's purported interest "in preventing corruption and the appearance of corruption" did not support such a broad speech restriction. Id. at 45, 96 S.Ct. 612.
By contrast, the Court upheld several of FECA's disclosure requirements. But it imposed narrowing constructions on those requirements to avoid problems of vagueness and overbreadth under the First Amendment. For the disclosure requirements triggered by independent expenditures, the Court worried that the Act's definition of "expenditure"-which required only a purpose of "influencing" an election or nomination-could be read to cover "both issue discussion and advocacy of a political result." Id. at 79, 96 S.Ct. 612. So "[t]o insure that the reach of the [provision] is not impermissibly broad," the Court construed the term "expenditure" "to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id. at 80, 96 S.Ct. 612. This meant that, to trigger the Act's disclosure requirements, a communication would need to contain "express words of advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' [or] 'reject,' " Id. at 44, 96 S.Ct. 612 n.52 ; see id. at 80 & n.108, 96 S.Ct. 612. These expressions have since been called Buckley's"magic words." McConnell, 540 U.S. at 126, 124 S.Ct. 619.
The Buckley Court then reached a similar conclusion with respect to disclosure requirements triggered by "political committee" status. As the Court explained:
The general requirement that "political committees" and candidates disclose their expenditures could raise similar vagueness problems, for "political committee" is defined only in terms of amount of annual "contributions" and *95"expenditures," and could be interpreted to reach groups engaged purely in issue discussion. The lower courts have construed the words "political committee" more narrowly. To fulfill the purposes of the Act they need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.
424 U.S. at 79, 96 S.Ct. 612. Thus, the "major purpose" requirement was born.
Absent any congressional action in the decades since Buckley, this Court might find it unclear whether ads (1) mentioning candidates and (2) airing near elections but (3) not using Buckley's"magic words" should count toward an election-related major purpose. But in passing the Bipartisan Campaign Reform Act of 2002 ("BCRA"), Congress unambiguously expressed its will on this issue and foreclosed the approach that the Commission took here.
In BCRA, Congress sought to mitigate two perceived problems with federal election financing that were prompted (at least in part) by Buckley. Title I of the Act was "Congress' effort to plug the soft-money loophole"-that is, the ability to have money contributed to state and local political parties effectively channeled to national parties while evading FECA's contribution limits and disclosure requirements. McConnell, 540 U.S. at 133, 124 S.Ct. 619. Title II, the provision relevant here, aimed to stem the tide of advertisements nominally targeted at issues but airing near elections-a tide that swelled after Buckley. Id. at 122, 124 S.Ct. 619. Specifically, "[a]s a result of [ Buckley's ] strict reading of the statute, the use or omission of 'magic words' such as 'Elect John Smith' or 'Vote Against Jane Doe' marked a bright statutory line separating 'express advocacy' from 'issue advocacy.' " Id. at 126, 124 S.Ct. 619. Yet, in Congress's view, those "two categories of advertisements proved functionally identical in important respects. Both were used to advocate the election or defeat of clearly identified federal candidates, even though the so-called issue ads eschewed the use of magic words." Id. And, far more than a theoretical problem, the collapsed distinction between express advocacy and issue advocacy allowed entities-mostly corporations and unions-to spend "hundreds of millions of dollars" on ads leading up to elections that "were unregulated under FECA." Id. at 127-28, 124 S.Ct. 619. "Moreover, though ostensibly independent of the candidates, the ads were often actually coordinated with, and controlled by, the campaigns." Id. at 131, 124 S.Ct. 619. The Senate Committee on Governmental Affairs conducted "an extensive investigation into the campaign practices in the 1996 federal elections" and-while divided along party lines regarding some of these practices-agreed that the proliferation of so-called issue ads was a serious problem. Id. at 129, 124 S.Ct. 619.
In response, BCRA created a new category of political communications called "electioneering communications." The statute's definition of these communications "replace[d] the narrowing construction of FECA's disclosure provisions adopted by this Court in Buckley" by providing three clear criteria that triggered regulation. Id. at 189, 124 S.Ct. 619. Instead of covering only "communications expressly advocating the election or defeat of particular candidates," the new disclosure requirements covered ads that (1) referenced to a candidate for federal office, (2) ran within 60 days of a federal election, and (3) targeted the relevant electorate. And the Act imposed disclosure requirements on entities who funded those communications. Id. at 190-91, 124 S.Ct. 619.
*96This legislative history leaves little doubt that Congress saw electioneering communications as generally aimed at swaying voters. The Supreme Court relied heavily on this history in McConnell, where it upheld BCRA's disclosure requirements against First Amendment challenge. 540 U.S. at 189-202, 124 S.Ct. 619 (controlling opinion of Stevens & O'Connor, J.J.). The Court's reasons for doing so further suggest that electioneering communications presumptively have an electioneering purpose. In rejecting the argument that BCRA's definition of "electioneering communications" was unconstitutionally vague and overbroad, the Court explained that Buckley's distinction between express and issue advocacy "was the product of statutory interpretation rather than a constitutional command." Id. at 192, 124 S.Ct. 619. In the Court's view, BCRA's definition of electioneering communications created no similar issues of vagueness or overbreadth-its requirements were "easily understood and objectively determinable." Id. at 194, 124 S.Ct. 619. Moreover, putting aside Buckley and starting from first principles, the Court explained that the notion of "a rigid barrier between express advocacy and so-called issue advocacy" could not be "squared with [its] longstanding recognition that the presence or absence of magic words [i.e. , "vote for Jane Doe" or "vote Jane Doe out of office"] cannot meaningfully distinguish electioneering speech from a true issue ad." Id. at 193, 124 S.Ct. 619. As evidenced by their timing, their identification of a specific candidate, and their targeting of the relevant electorate, it was clear that electioneering communications-magic words or not-"were specifically intended to affect election results." Id. at 127, 124 S.Ct. 619. In short, the Supreme Court's reading of BCRA corroborates that Congress deemed electioneering communications as paradigmatically aimed at swaying voters.13
Even ignoring all of this legislative history and Supreme Court analysis, Congress's intent regarding these ads is manifest in its very choice of labelling them "electioneering communications." Instead of using a neutral term like "communications made near federal elections," Congress chose a label that by its plain meaning deems the ads to "take part actively and energetically in a campaign to be elected to public office." Electioneer, Oxford Dictionary of English 565 (3d ed. 2010); see also Electioneer, American Heritage Dictionary (5th ed. 2018) ("To work actively for a candidate or political party."). Congress's terms, like its statutory headings, surely "supply clues" about its intent. Yates v. United States, --- U.S. ----, 135 S.Ct. 1074, 1083, 191 L.Ed.2d 64 (2015) ; see also, e.g., Brotherhood of R. R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947) (explaining that "the title of a statute and the heading of a section" are "tools available for the resolution of a doubt"). Here, the clue is hardly subtle: Why would Congress call something an "electioneering communication" if that thing did not generally have a "purpose *97to nominate or elect a candidate," in the sense meant by Buckley?
It is true that BCRA did not touch the text of FECA's definition of "political committee." But a later congressional act can inform the meaning of an earlier one and, importantly here, can clarify existing ambiguities. "At the time a statute is enacted, it may have a range of plausible meanings," but "subsequent acts can shape or focus those meanings.... This is particularly so where the scope of the earlier statute is broad but the subsequent statutes more specifically address the topic at hand." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ; see also United States v. Estate of Romani, 523 U.S. 517, 530-31, 118 S.Ct. 1478, 140 L.Ed.2d 710 (1998) ("[A] specific policy embodied in a later federal statute should control our construction of the priority statute, even though it had not been expressly amended."). Here, by declaring that (by and large) electioneering communications have an inherent purpose of influencing a federal election, Congress has clarified that the broad term "political committee"-even after Buckley-should presumptively include organizations that are primarily in the business of funding electioneering communications.
Why only "presumptively"? Despite the foregoing evidence of Congress's intent regarding electioneering ads, the Court is not convinced that Congress intended to categorically foreclose the Commission from declining to treat a particular electioneering ad as supporting an election-related major purpose. In rejecting a facial challenge to BCRA's electioneering restrictions, McConnell recognized that some ads falling within BCRA's definition of "electioneering advertisements" may not have a true "electioneering purpose," even if "the vast majority of ads clearly had such a purpose." 540 U.S. at 206, 124 S.Ct. 619 ("The precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief preelection timespans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court [below].").
In other words, Congress seems to have left open a small interpretive gap after BCRA: one that allows the Commission, using its case-by-case approach, to deem an extraordinary "electioneering communication" as lacking an election-related purpose. The following ad, for example, would seem to fall within the letter of BCRA's definition: It runs 60 days before a midterm election; it does not mention the election or even indirectly reference it (e.g. , by cabining the message's timeframe to "this November"); the meat of the ad discusses the substance of a proposed bill; the ad urges the viewer to call a named incumbent representative and request that she vote for the bill; but it does not make any reference to the incumbent's prior voting history or otherwise criticize her. See 52 U.S.C. § 30104(f)(3)(A). That might be the sort of electioneering communication that could, under the Commission's case-by-case approach, properly be deemed lacking an election-related purpose under Buckley despite meeting BCRA's definition of "electioneering communication."
But the Court expects such an ad to be a rare exception. Congress has made a judgment that run-of-the-mill electioneering communications have the purpose of influencing an election; an ad meeting the statutory definition of an electioneering communication generally indicates a purpose of nominating or electing a candidate.
B. The Commission's Analysis Did Not Give Effect to Congress's Clear Intent
The controlling Commissioners' multifactor analysis ignores Congress's expressed *98intent regarding electioneering advertisements. The very first sentence of their multifactor test speaks volumes: "In evaluating major purpose, our starting point is the language of the communication itself." J.A. 1767. Starting with the language of a political ad might be justifiable if the ad aired nowhere near a federal election, or if it did not mention a candidate. But, as just explained, when it comes to electioneering communications Congress has already determined that they are presumptively designed to influence elections. The remainder of the Commission's test in no way accounts for that fact:
[W]e look at the ad's specific language for references to candidacies, elections, voting, political parties, or other indicia that the costs of the ad should be counted towards a determination that the organization's major purpose is to nominate or elect candidates. We also examine the extent to which the ad focuses on issues important to the group or merely on the candidates referenced in the ad. Additionally, we consider information beyond the content of the ad only to the extent necessary to provide context to understand better the message being conveyed. Finally, we ascertain whether the communication contains a call to action and, if so, whether the call relates to the speaker's issue agenda or, rather, to the election or defeat of federal candidates.
J.A. 1767-68. The Commission may be permitted to use these or similar factors in assessing whether an electioneering ad overcomes the presumption that it is aimed to elect a candidate. But engaging in a holistic, de novo review of the ad based on those factors allows the Commission to treat run-of-the-mill electioneering ads-those highly critical of a candidate's positions but lacking the "magic words" directing viewers to vote him out of office-as not indicating an electioneering purpose. That framework cannot be squared with Congress's views on the issue.
Indeed, the controlling Commissioners' analysis of AAN's ads in this case is strong evidence that their multifactor approach, if anything, builds in a presumption that runs in the opposite direction of what Congress intended-i.e. , that it tilts the balance in favor of finding that electioneering communications do not have an electioneering purpose. Take the ad titled "Skype," which identified Congresswoman Dina Titus, a Democrat from Nevada who was narrowly defeated in her 2010 reelection bid:
Person l: Hey, what's up?
Person 2: Hey. You have to check out the article I just sent you. Apparently convicted rapists can get Viagra paid for by the new health care bill.
Person 1: Are you serious?
Person 2: Yep. I mean, Viagra for rapists? With my tax dollars? And Congresswoman Titus voted for it.
Person 1: Titus voted for it?
Person 2: Yep. I mean, what is going on in Washington?
Person 1: In November, we need to tell Titus to repeal it. [Superimposed text: "Tell Congresswoman Titus to vote for repeal in November. Vote Yes on H.R. 4903. (202) 225-3252."]
J.A. 1776.
The controlling Commissioners did not find that this ad (nor any others mentioning healthcare) had an election-related purpose. "The criticisms contained in the ads," they explained, "are couched in terms of past votes taken by the named officeholder and are accompanied by calls to action designed to influence the officeholders' votes in the lame-duck session." J.A. 1776. Seriously? Is it really plausible that the attack on Titus's past vote for the Affordable Care Act-for supplying "Viagra *99to rapists" no less-was designed to mobilize Titus's constituents to change her view on the Obama Administration's signature legislative initiative, rather than to oust her from office for casting that vote? And would a sophisticated organization like AAN conceivably invest millions of dollars on ads in an effort to get the Democratic-controlled House that had just passed the Act to turn around and repeal it only months later? Perhaps the ad could be charitably read as having a dual purpose-maybe some viewers would indeed be motivated to call Titus and tell her to vote for a healthcare repeal bill if it came up in the anticipated lame-duck session. (That turned out to be a big "if"-the Commission cites no evidence, and the Court is aware of none, that the House actually considered a repeal bill during the December lame-duck session.) But surely the primary purpose of this ad was to convince viewers to vote against Titus. Indeed, the ad is awfully close to the hypothetical posed by the Supreme Court in McConnell to highlight the illusory distinction between express advocacy and issue advocacy: An ad that, instead of urging viewers to "vote against Jane Doe," "condemned Jane Doe's record on a particular issue before exhorting viewers to 'call Jane Doe and tell her what you think.' " 540 U.S. at 127, 124 S.Ct. 619 (quoting 251 F.Supp.2d 176, 304 (D.D.C. 2003) (Henderson, J., concurring in the judgment in part and dissenting in part) ). That the Commissioners readily characterized "Skype" and similar ads as unrelated to elections demonstrates the mismatch between their framework and Congress's understanding of electioneering ads. Their approach in fact flirts with a reverse "magic words" test: electioneering communications that harangue a candidate are exempt so long as they instruct the viewer to "call" her representative rather than to "vote against" him.
None of the Commission's arguments in favor of its approach are availing. As it did when justifying its first dismissal, the Commission cites WRTL II, which (again) found that spending on electioneering communications could be restricted only if the ads were, as an objective matter, "the functional equivalent of express advocacy," id. at 469, 127 S.Ct. 2652. Relying on that case, the Commission insists that even if it may not apply a categorical rule that turns on whether the ad contains express advocacy (or the functional equivalent), it may consider whether the ad resembles express advocacy in deciding whether it has an election-related purpose. FEC's Mot. Summ. J. at 40 ("[The Court's] determination did not preclude Commissioners from analyzing AAN's communications by reference to their content, consistent with the Supreme Court's analysis in WRTL, when considering whether the ads were electoral in nature."). That's true so far as it goes: the Commission is not outright forbidden from considering the content of an electioneering communication. But because of BCRA, that consideration must follow a strong presumption that an electioneering communication indicates a purpose of electing a candidate.
More fundamentally, the Commission continues to overread WRTL II for the idea that the primary goal in evaluating AAN's ads should be to determine whether the ads' content bears "indicia of express advocacy." FEC's Mot. Summ. J. at 39 (quoting WRTL II, 551 U.S. at 470, 127 S.Ct. 2652 ). WRTL II focused narrowly on an electioneering communication's content, to the exclusion of "contextual factors" like the ad's timing, for a particular reason: the First Amendment demanded an objective, narrowly tailored standard for bans on speech. 551 U.S. at 473, 127 S.Ct. 2652 ; see id. at 469-70, 127 S.Ct. 2652 (examining whether ad's content had "indicia of express advocacy"). But, again, McConnell *100and Citizens United v. FEC-the latter of which came after WRTL II-foreclose any argument that in the disclosure setting the First Amendment requires that a regulated communication contain the functional equivalent of express advocacy. See also Independence Institute v. FEC, 216 F.Supp.3d 176, 193 (D.D.C. 2016) (Millett, J.) (in rejecting a constitutional challenge to the donor disclosure requirement as applied to a particular electioneering communication, explaining that the challenger's "proposed constitutional exception for 'genuine' issue advocacy is entirely unworkable as a constitutional rule"). In other words, the Supreme Court has seen no problem with disclosure requirements triggered solely by an electioneering communication's context: its timing, its reference to a candidate, and its viewership. And Congress's view, made plain in BCRA, is that the presence of those contextual factors inherently suggests an election-related purpose.
The Commission falls back on Buckley. In the Commission's view, the fact that Buckley read FECA to avoid regulating "groups engaged purely in issue discussion," 424 U.S. at 79, 96 S.Ct. 612, means that the Commission must evaluate the content of an entity's political ads to determine whether the ads are, in fact, "issue discussion." But again, Congress in BCRA cabined some of the Commission's discretion by defining a subset of political ads-electioneering communications-that by definition are related to federal elections. After BCRA, the Commission cannot review electioneering communications de novo to determine whether they qualify as pure issue discussion. The statute emphatically placed electioneering advertisements on the election-related side of Buckley's line, and the Commission must pay heed to that placement when evaluating the major purpose of an entity that spends money on electioneering communications.
Finally, the Commission emphasizes this Court's prior refusal to impose a bright-line rule-one that would require it to count all electioneering communications toward an election-related major purpose. According to the Commission, that refusal implicitly endorsed its approach to electioneering communications. FEC's Mot. Summ. J. at 36. Not so. To be sure, the Court continues to believe that an inflexible rule would be incompatible with the FEC's recognized power to resolve major-purpose questions on a case-by-case basis. Such a rule would also conflict with the Supreme Court's recognition in McConnell that some "issue ads" might really be just that, even if run near elections. That does not mean, though, that the Commission has unfettered discretion to judge electioneering ads. Rather, FECA and BCRA make clear that Congress intended to foreclose the Commission from applying a major-purpose framework that does not, at a minimum, presumptively consider spending on electioneering ads as indicating an election-related major purpose.14 The Commission may in special circumstances conclude that an electioneering ad does not have such a purpose. But given Congress's recognition that the "vast majority" of electioneering ads have the purpose of electing a candidate, the Commission's exclusion of electioneering ads from its major-purpose analysis should be the rare exception, not the rule. McConnell, 540 U.S. at 206, 124 S.Ct. 619 ; see also CREW, 209 F.Supp.3d at 93 ("[I]t blinks reality to *101conclude that many of the ads considered by the Commissioners in this case were not designed to influence the election or defeat of a particular candidate in an ongoing race.").
Having found a legal error in the Commissioners' approach, the appropriate remedy here is to remand this matter to the Commission. The Court appreciates that the Commission may, on remand, yet again exclude from its analysis some of the ads that it previously excluded. But because the controlling Commissioners did not begin with a presumption that an electioneering ad evinces an election-related purpose, the Court is not so confident that they would reach the same outcome on remand to warrant affirming their decision under the principle of "harmless error."15
IV. Conclusion
The Court recognizes that the Commission, like all executive agencies, must comply with directives from the two other branches of government-directives that sometimes push the agency in opposite directions. The problem here is that the FEC has equated two directives that are plainly unequal in their relevance to the issue at hand. Congress decades ago laid down a clear, broad definition of the term "political committee" in FECA that would obviously capture AAN; the Supreme Court in Buckley then cabined that definition in a way that requires the Commission to conduct a major purpose analysis. But Congress later clarified, through BCRA, that it viewed the vast majority of electioneering communications as corroborating a purpose of electing candidates to federal office. And while the Supreme Court in several cases has struck down other aspects of FECA and BCRA, it has never suggested that its constitutional concerns apply in the realm of disclosure requirements. Indeed, the Supreme Court has now twice reaffirmed that there is no constitutional distinction between issue-based and express advocacy in the disclosure context. Absent such a distinction, FECA and BCRA require the agency to presume that spending on electioneering communications contributes to a "major purpose" of nominating or electing a candidate for federal office, and, in turn, to presume that such spending supports designating an entity as a "political committee" under FECA.
Because the Commission failed to apply those presumptions, its dismissal of CREW's complaints against AAN was "contrary to law." The Court, accordingly, will grant CREW's motion for summary judgment, deny the FEC's and AAN's cross-motions, and direct the Commission to conform with this declaration within 30 days. 52 U.S.C. § 30109(a)(8)(C). If the FEC does not timely conform with the Court's declaration, CREW may bring "a civil action to remedy the violation involved in the original complaint." Id. A separate Order accompanies this Memorandum Opinion.
More precisely, FECA defines "political committee" as "any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year." 52 U.S.C. § 30101(4)(A). "Contributions" and "expenditures" are both restricted to payments made "for the purpose of influencing any election for Federal office." Id. § 30101(8)(A)(i), (9)(A)(i).
More specifically, FECA requires electioneering communication reports to contain "the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date." 52 U.S.C. § 30104(f)(2)(F). With respect to corporations like AAN, the Commission by regulation has interpreted the statute's reference to such contributors as limited to donations "made for the purpose of furthering electioneering communications ." 11 C.F.R. § 104.20(c)(9) (emphasis added). The D.C. Circuit has upheld this "purpose requirement" against challenge under the Administrative Procedure Act. Van Hollen, Jr. v. FEC, 811 F.3d 486, 489-90 (D.C. Cir. 2016).
This timespan covers AAN's spending as reported in two of its tax returns: one return covering July 23, 2009 through June 30, 2010; and the other covering July 1, 2010 through June 30, 2011. J.A. 1490, 1518.
A few years after WRTL II, the Supreme Court in Citizens United, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), "pulled the plug on this ban once and for all, ruling unconstitutional the prohibition on corporate- and union-funded 'express advocacy.' " Van Hollen Jr., 811 F.3d at 490 n.1.
CREW initially brought a claim under the Administrative Procedure Act ("APA"). This Court dismissed that claim on the ground that FECA provided CREW with an "adequate remedy" and therefore precluded review of the FEC's determination under the APA. CREW v. FEC, 164 F.Supp.3d 113, 120 (D.D.C. 2015).
"We send tax money to Washington and what does Russ Feingold do with it? Eight hundred billion dollars for the jobless stimulus. Two point five million for a healthcare plan that hurts seniors. A budget that forces us to borrow nine million dollars. And when he had a chance at reform, he voted against the Balanced Budget Amendment. Russ Feingold and our money. What a mess. [Superimposed text: Russ Feingold, What a mess.]" J.A. 1773.
"Winter's here soon. Guess Congressman Hodes has never spent nights sleepless, unable to pay utility bills. Why else would he vote for the cap-and-trade tax? Raise electric rates by ninety percent? Increase gas to four dollars? Cost us another two million jobs? Kelly Ayotte would stop the cap-and-trade tax. Cold." J.A. 1777.
"[On screen text:] If Nancy Pelosi gave an order ... would you follow it? Mike Oliverio would. Oliverio says he would support Pelosi in Washington. After all, Oliverio voted himself a 33% pay raise. Oliverio voted for higher taxes. Even on gas. And Oliverio won't repeal Obama's $500 billion Medicare cuts. So what will Mike Oliverio do in Washington? Whatever Nancy Pelosi tells him to." J.A. 1778.
"[On screen text:] Nancy Pelosi is not extreme. Compared to Annie Kuster. Kuster supported the trillion dollar government Healthcare takeover. But says it didn't go far enough. $525 billion in new taxes for government Healthcare. Now, Kuster wants $700 billion in higher taxes on families and businesses. And $846 billion in job killing taxes for cap and trade. Nancy Pelosi is not extreme. Compared to Annie Kuster." J.A. 1778.
For example, another tax-related ad titled "Wallpaper":
Congressman Kurt Schrader is wallpapering Washington with our tax money. Schrader spent nearly eight hundred billion on the wasteful stimulus that created few jobs but allowed big executive bonuses. He threw nearly a trillion at Pelosi's health care takeover and voted to raise the national debt to over fourteen trillion. Now Congress wants to raise taxes. Call Congressman Schrader. Tell him to vote for a tax cut this November to stop wallpapering Washington with our tax dollars. [Superimposed text: "Call Congressman Schrader this November. Vote to cut taxes. Yes on H.R. 4746. (202) 224-3121."]
J.A. 1771.
"[On screen text:] Rick Boucher wants to keep you in the dark. About his Washington Cap and Trade deal. Boucher sided with Nancy Pelosi. For billions in new energy taxes. That will kill thousands of Virginia jobs. But Rick Boucher didn't just vote for Cap and Trade. The Siena Club called Boucher the "linchpin" of the entire deal. Call Rick Boucher. [Phone number at top of screen.] Tell him no more deals." J.A. 1777.
The three Commissioners who voted to investigate AAN issued their own statement of reasons, in which they excoriated the controlling Commissioners for "ignor[ing] the court's ruling and the plain language of the ads that objectively criticized candidates in the weeks preceding the 2010 elections." J.A. 1785.
While McConnell was a fractured decision, a majority of the Justices voted to uphold the disclosure requirements for the reasons stated in the controlling opinion written by Justices Stevens and O'Connor. See 540 U.S. at 201, 124 S.Ct. 619 (opinion of Stevens & O'Connor, J.J., joined by Souter, Ginsburg & Breyer, J.J.); see also id. at 286 n.*, 321, 124 S.Ct. 619 (opinion of Kennedy, J., joined by Rehnquist, C.J., and Scalia, J.) (voting to uphold the relevant disclosure provisions). And all but one of the Justices in Citizens United relied on the same rationale in rejecting a challenge to BCRA's electioneering-related disclosure requirements as applied to certain political ads. 558 U.S. at 368-69, 130 S.Ct. 876 ; id. at 396, 130 S.Ct. 876 (Stevens, J., concurring in part and dissenting in part).
This is not to say that spending on advertisements is the sole relevant factor in determining an entity's major purpose. The point here is that to the extent that spending on advertising is relevant-and surely it is to some degree-the Commission must account for spending in a way that reflects an electioneering ad's presumptive purpose of affecting an upcoming election.
Because the Administrative Procedure Act instructs courts to take "due account ... of the rule of prejudicial error," 5 U.S.C. § 706, courts reviewing agency action under that Act will not remand to the agency if "the agency's mistake did not affect the outcome." PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004). Though FECA contains no express requirement of prejudice, courts have invoked the principle in reviewing an FEC decision. See, e.g., Level the Playing Field v. FEC, 232 F.Supp.3d 130, 142-43 (D.D.C. 2017). The Court therefore assumes that, in theory, a harmless legal error would not require remanding this case to the Commission. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4323111/ | Fourth Court of Appeals
San Antonio, Texas
October 18, 2018
No. 04-18-00607-CV
IN THE INTEREST OF S.A.M., ET AL,
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-PA-02510
Honorable Susan D. Reed, Judge Presiding
ORDER
On September 27, 2018, this court issued an order instructing appellant B.J.P. to respond
with a reasonable explanation for failing to file her notice of appeal in a timely manner. The
court, having considered appellant B.J.P.’s response, finds that she has provided an adequate
explanation for filing her notice of appeal late but within the fifteen-day grace period. See TEX.
R. APP. P. 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Therefore, the appeal
brought by B.J.P. is RETAINED on this court’s docket. The appellant’s brief for B.J.P. is due
within twenty (20) days from the date of this order.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 18th day of October, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court | 01-03-2023 | 10-22-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3429377/ | By reason of the matters hereinafter set out, the original opinion filed in this case and reported in 216 N.W. 753 is withdrawn.
Certain of the heirs filed a motion to dismiss the appeal in this case. In the original opinion we held that, because the case was assigned for trial on March 9, 1927, and motion to dismiss the appeal was served on March 2d preceding, the 1. APPEAL AND motion to dismiss should be overruled, under ERROR: Section 12885, Code of 1927, and Rule 19 of this dismissal: court, because not served ten days before the timely time the case was assigned for trial. motion.
On petition for rehearing, our attention was called to the fact that the cause was not submitted at the period commencing March 9, 1927, but was continued, and reassigned for the May period following; hence the service was within the time. This matter was considered by the full bench, and it is the conclusion of the court that, as the case was finally submitted at the May period, the motion to dismiss was served in time, and our former ruling is erroneous.
The reason and purpose of Section 12885 and said Rule 19 are to prevent the raising of the question of want of jurisdiction in this court at the eleventh hour, when it is too late for the opposing party to meet such contention. In this case, however, there was abundant time between the service of the motion attacking the jurisdiction of this court and the submission *Page 591
of the case for the appellant to meet such contention and correct her record, which, in fact, was attempted, a certification of such record being filed in this court April 4, 1927. We therefore will give consideration to this motion.
There are some thirty parties interested in this case, represented by nine firms of attorneys, and it has been a laborious task to check the record as to service of notice of appeal. The point made in the motion to dismiss 2. APPEAL AND is that the appeal was not perfected because of ERROR: want of service of notice on certain of the perfecting appellees. It is clear that no service of notice appeal: was had upon DeWitt Bronson, Mary C. Moore, failure Florence Young, Martha and Abbie Moore, or Frank to serve Tamisiea, as guardian ad litem for said Martha adversely and Abbie Moore, minors. The rule in this state interested is well established that want of service of party. notice on opposing parties does not defeat the jurisdiction of this court unless the rights and interests of such parties would be adversely affected in event that this court should change the decision of the lower court.
As to Mary C. Moore, it is quite obvious that, if any of the contentions of the appellant should be sustained by this court, it would result in increasing her share; hence the failure to serve notice on her is not fatal.
It is equally obvious that the interests of Florence Young would not be adversely affected.
As to DeWitt Bronson, the lower court decreed him to be the owner of an undivided one eighth of the property, subject to payment by him of $100 to his sister Florence. Under any theory advanced by appellant, a change from the decision of the lower court of necessity will result in an increase of his share, and not a decrease; hence no harm would come to him from a failure to serve notice of appeal upon him.
Among the appellees were two minors, Martha and Abbie Moore. The district court appointed Frank Tamisiea guardian ad litem for them, and he appeared and filed answer. The court awarded to each of these minors a one-sixteenth interest in the property proposed to be partitioned. Every contention made by appellant herein, if sustained by this court, must result in a reduction of the respective shares of these two minors; hence notice of appeal was necessary as to them. No *Page 592
such notice of appeal having been served on them or their guardian ad litem, this appeal was not complete, and the motion to dismiss should have been sustained. The parties above referred to were not served with notice in either the appeal of Florence A. Piercy or that of the intervener Ella G. Hicks. — Appealdismissed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4033484/ | [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Steele v. Eppinger, Slip Opinion No. 2016-Ohio-5790.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-5790
THE STATE EX REL. STEELE, APPELLANT, v. EPPINGER, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Steele v. Eppinger, Slip Opinion No.
2016-Ohio-5790.]
Habeas corpus—Res judicata did not preclude appellant’s convictions after
reindictment—Court of appeals’ dismissal of petition affirmed.
(No. 2015-1974—Submitted July 12, 2016—Decided September 14, 2016.)
APPEAL from the Court of Appeals for Lorain County, No. 15CA010810.
_____________________
Per Curiam.
{¶ 1} We affirm the Ninth District Court of Appeals’ dismissal of the
petition for a writ of habeas corpus filed by appellant, Tracee Steele.
{¶ 2} In 2006, Steele was indicted by a Cuyahoga County Grand Jury on 13
counts of gross sexual imposition among other offenses. Before trial, the Cuyahoga
County Prosecuting Attorney obtained a second indictment, which charged Steele
with 11 counts of gross sexual imposition and alleged the same victim, facts, and
SUPREME COURT OF OHIO
circumstances as the first indictment. At trial, the judge noted the two indictments
against Steele and suggested that the state move to dismiss one of them. The judge
granted the state’s motion to dismiss the first indictment, and Steele pleaded guilty
to five counts of gross sexual imposition charged in the second indictment and was
sentenced to 15 years in prison.
{¶ 3} On July 10, 2015, Steele filed a petition for a writ of habeas corpus,
claiming that the trial court lacked jurisdiction to try him, because the matter was
res judicata. Steele argued that the doctrine of res judicata precludes his
convictions, because the first indictment was dismissed with prejudice and included
the same charges and was based on the same facts and circumstances as the second
indictment.
{¶ 4} The court of appeals interpreted Steele’s argument to be a double-
jeopardy claim and dismissed the petition, reasoning that double-jeopardy claims
are not cognizable in habeas corpus. To the extent that Steele’s petition can be
interpreted as presenting a double-jeopardy claim, the court’s analysis is correct.
Elersic v. Wilson, 101 Ohio St.3d 417, 2004-Ohio-1501, 805 N.E.2d 1127, ¶ 3,
citing Howard v. Randle, 95 Ohio St.3d 281, 2002-Ohio-2122, 767 N.E.2d 268,
¶ 6.
{¶ 5} However, Steele insists that his claim asserts res judicata, not a
double-jeopardy violation. If an indictment is dismissed on the merits, the doctrine
of res judicata precludes a reindictment based on the same facts and evidence. State
v. Lababidi, 8th Dist. Cuyahoga No. 89460, 2008-Ohio-574, ¶ 10; State v. Hay, 169
Ohio App.3d 59, 2006-Ohio-5126, 861 N.E.2d 893, ¶ 24 (2d Dist.).
{¶ 6} Steele asserts that the first indictment was dismissed with prejudice,
but the trial court’s entry does not say that. In addition, his own petition makes
clear that the first indictment was dismissed not on the merits but rather, to prevent
a double-jeopardy violation.
2
January Term, 2016
{¶ 7} Thus, because the first indictment was not dismissed on the merits,
the doctrine of res judicata did not preclude Steele’s convictions.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Tracee Steele, pro se.
Michael DeWine, Attorney General, and Paul Kerridge, Assistant Attorney
General, for appellee.
_________________
3 | 01-03-2023 | 09-14-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429380/ | The facts, briefly stated, are these: The Commercial Savings Bank of Ames, Iowa (plaintiff and appellee), on February 25, 1920, loaned to Ernest G. Carey (defaulting defendant) the sum of $5,000, and as evidence thereof, Carey executed a note due in six months. This note was renewed twice, by giving a new note bearing the signature of Ernest G. Carey only. The last renewal note (the one in suit) was signed and delivered on December 22, 1921, and on this note, appellant Sylvia S. Carey was a signer with her husband, Ernest G. Carey. Before the last note was executed, the plaintiff bank, through its president, knowing that Sylvia S. Carey had an expectancy in property coming to her, had a conversation with Ernest G. Carey, in which a tentative agreement was made that an extension of time on the past-due note would be given for a period of two years, on the condition that both Carey and his wife, Sylvia, would sign the new note and give a second mortgage on their undivided one-third interest in a certain farm described in plaintiff's petition, which farm was in the name of Ernest G. Carey. There is no dispute about the agreement in question. In fact, the new note and mortgage were executed, and delivered to the president of the plaintiff bank, and the old note was returned to Mr. Carey.
The note and mortgage in suit are prima facie a joint obligation. The mortgage recites:
"Provided always these presents are upon this express condition that if the said Ernest G. Carey and Sylvia S. Carey their heirs, executors and administrators, shall pay or cause *Page 1062
to be paid to the said Commercial Savings Bank, their successors or assigns the sum of $5,000.00 on December 22, 1923, with interest thereon at 8% annually to the tenor and effect of one promissory note of the said Ernest G. and Sylvia S. Carey bearing even date herewith then these presents to be void otherwise to remain in full force and effect."
The mortgage further provides:
"In case it becomes necessary to commence proceedings to foreclose the same, then the said mortgagors in addition to the amount of said debt, interest, and costs, agree to pay to the mortgagee herein named, or to any assignee of the mortgage herein, a reasonable attorney's fee for collecting same, which fee shall be included in the judgment in such foreclosure."
The mortgagors were able to read, write, and understand the English language. Sylvia S. Carey was a graduate of Drake University, and after her graduation, became a teacher in various schools. There is no claim that any fraud or deception was used. The one question presented for consideration is whether the defendant Sylvia S. Carey was personally liable on the note. In other words, was there a consideration for her signature to the note and mortgage? It is quite apparent, under the law and the facts, that there was a consideration for her signature. The renewal note signed by the wife, Sylvia, was executed to cover the indebtedness that was then due. The husband desired an extension of time. The appellee consented to an extension of time upon the express condition that the wife, Sylvia, would sign the new note. Both of the Careys complied with the prescribed condition, and by said compliance, an extension of a past-due indebtedness was secured, and there was a return of the old note. The written instrument imported a consideration. Section 9440, Code of 1927. The new note was a negotiable instrument, and, under the Negotiable Instrument Act, is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon is deemed to have become a party thereto for value. Section 9484, Code of 1927. An antecedent or preexisting debt constitutes value. Section 9485, Code of 1927. Nor may it be questioned that an extension of time payment to a debtor furnishes adequate consideration for the signature *Page 1063
to a new note by another for a debt owed by the principal debtor.Mohn v. Mohn, 181 Iowa 119.
The defendant maker, Sylvia S. Carey, is not in a position to question this note and mortgage, since she had every opportunity to read same before signing. By her own negligence she is precluded from asserting ignorance with respect to any part of the agreements. Under such circumstances, she is presumed to know its contents. Bank of Holmes v. Thompson, 192 Iowa 1032, with cases cited. It is a well settled rule that, where a holder of an obligation agrees to extend the due date thereof upon condition that the maker's wife sign the new note, and the wife does sign the same, and an extension is created, the defense of want of consideration for the wife's signing is precluded, since it is sufficient if the holder parted with consideration, even though the wife received none of it. American Com. Sav. Bank v.Kramer, 206 Iowa 49. See, also, First Nat. Bank of Sioux Centerv. Ten Napel, 198 Iowa 816. This is a general rule, as declared by the Supreme Courts of many states of the American Union.
The American Com. Sav. Bank case, supra, may be viewed as controlling on the facts of the instant case. That decision points out the distinction between the cases upon which the appellant herein relies, and the legal principle governing the case at bar. In the light of the premises herein stated, we hold that the instruments in question were executed and delivered to serve the purpose for which they were executed, and that there was consideration for the instruments signed by the appellant Sylvia S. Carey.
The decree entered is, therefore, — Affirmed.
ALBERT, C.J., and STEVENS, MORLING, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429307/ | On September 26, 1928, one D.F. Gingerich was the owner of the east half of the northwest quarter (E. 1/2, N.W. 1/4) and the west half of the northeast quarter (W. 1/2, N.E. 1/4), of section 15, township 78, range 7, in Johnson county, Iowa, and on said date the appellant herein issued to said D.F. Gingerich its policy of insurance, therein insuring the buildings located on said real estate against loss or damage by fire, wherein a certain dwelling house was insured in the sum of $3,000. At the time of the execution of said policy said real estate was covered by a mortgage in favor of appellee herein, in the sum of $16,000, and attached to said insurance policy was a loss payable clause being the "Uniform Standard Iowa", or the "National Board Standard Mortgage Clause" form, wherein it was provided that "loss, if any, payable to Guaranty Life Insurance Company, Davenport, Iowa, as mortgagee (or trustee) as such interest may appear." Said standard mortgage clause likewise contained the following provisions:
"This policy, as to the interest therein of the said payee, as mortgagee (or trustee) only, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property nor by the commencement of foreclosure proceedings, nor the giving of notice of sale relating to the property, nor by any change in the interest, title, or possession of the property, nor by any increase of hazard; * * * and Provided further that the mortgagee (or trustee) shall notify this Company of the commencement of foreclosure proceedings, and of any notice of sale relating to the property, and of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee) and, unless permitted by this policy, the same shall be noted thereon and the mortgagee (or trustee) shall, on demand, pay the premium for any increased hazard; * * * Failure upon the part of the mortgagee (or trustee) to comply with any of the foregoing obligations shall render the insurance under this policy null and void as to the interest of the mortgagee (or trustee)." *Page 1209
Said policy contained the articles of incorporation of appellant, and article XII thereof reads as follows:
"When the title to property insured in this Association is transferred by deed or order of Court, the policy thereon becomes void and the Association shall not be liable thereon."
Thereafter, on March 13, 1933, appellee instituted a foreclosure action upon the mortgage above referred to, therein making D.F. Gingerich and others holding interests or liens upon said premises parties defendant. Appellee notified appellant of the institution of such foreclosure proceedings, and appellant consented that such foreclosure would not invalidate said policy. In said foreclosure action two continuances were granted under the moratorium statutes, and voluntary arrangements made between appellee and Gingerich relative to the occupancy of the land.
Following the granting of these continuances, negotiations were conducted between appellee and Gingerich relative to relinquishment by Gingerich of the farm as a tenant, and relative to redemption by Gingerich and the possibility of a resale thereof to Gingerich, even after foreclosure, which negotiations culminated in said appellee and Gingerich, on December 3, 1935, entering into a written stipulation by the terms of which Gingerich, for and in consideration of the sum of $500, agreed to execute and deliver to appellee a quitclaim deed therein conveying the property above described, and in which stipulation appellee agreed to dismiss the foreclosure then pending and return to Gingerich the notes and a release of mortgage executed by him in favor of appellee, upon the condition that, if there was any lien upon said real estate subsequent to the mortgage of appellee, then the foreclosure suit would not be dismissed, but would proceed to sheriff's sale and sheriff's deed, and the notes would then be deposited in the office of the clerk of the district court of Johnson county for cancellation. In accordance with said stipulation, Gingerich did execute and deliver to appellee his quitclaim deed, therein conveying said described real estate to appellee, which deed was from then on retained by appellee, but was not filed for record. Appellee then ascertained that there were liens upon the real estate involved subsequent to its mortgage, and proceeded with its foreclosure action, which action went to decree on January 3, 1936, following which *Page 1210
the real estate was sold at sheriff's sale, and sheriff's certificate issued to appellee as the purchaser.
Appellant's first knowledge of the execution and delivery of said quitclaim deed was received on April 18, 1936, on which date Gingerich called at the office of appellant, informed appellant of the execution and delivery of the quitclaim deed, and requested that appellant cancel the policy in question. Thereafter, on April 21, 1936, appellant wrote appellee requesting the return of the policy for cancellation, followed by a letter from appellee inquiring upon what ground appellant was asking for cancellation; followed in turn by a letter from appellant stating Gingerich had requested the cancellation thereof. Thereafter, on April 24, 1936, the dwelling house above referred to was destroyed by fire, and on April 25, 1936, appellee wrote a letter to appellant informing appellant of the execution of said deed and instructing appellant to make settlement and adjustment with appellee only. Proof of loss was thereafter furnished, and, following appellant's refusal to make payment to appellee for said loss, appellee filed its petition in equity, therein praying for decree giving appellee judgment in the sum of $3,000, with interest, and that the court enter an order requiring appellant to make such assessment and collection of premiums as would be necessary to pay such judgment. Upon trial in the district court, judgment and decree was entered in favor of appellee as prayed for by it, from which judgment and decree appellant has appealed to this court.
It was stipulated that the dwelling which was destroyed by fire was of the value of $3,000, and that said dwelling was covered by insurance in said amount of $3,000 in the policy involved.
[1] Appellant in an amendment to its answer alleges that the policy in question was not in force and effect at the time of the loss on account of its cancellation thereof on April 21, 1936. The facts in connection with this claimed cancellation are set out above, and establish that on April 21, 1936, appellant wrote appellee requesting the return of the policy for the purpose of canceling same; and likewise establish that said policy was not in fact returned, but that said letter of April 21, 1936, was followed by correspondence relative to the ground upon which appellant desired to cancel the policy. Even if it is contended that this letter should be construed as a cancellation on *Page 1211
the part of appellant, yet the same cannot be urged as a cancellation affecting appellee, for the reason that the standard mortgage clause in question contains the following provision:
"This insurance may at any time be cancelled as to such mortgagee (or trustee) interest by giving the mortgagee (or trustee) a ten days written notice of such cancellation."
These facts establish that such attempted cancellation, on the part of appellant, was not consented to by appellee, and as less than ten days intervened between said letter and the date of the fire in question, appellant's claim of cancellation is without merit.
[2] It is contended by appellant that the execution and delivery of the quitclaim deed constituted a transfer of the title, and that therefore in compliance with the provisions of article XII of the articles of incorporation, as set out above, said policy became void and the appellant was not liable thereon.
In the consideration thereof it is to be recalled that we are not concerned with simply a loss payable clause, but what is designated as the "National Board Standard Mortgage Clause", which constitutes an independent contract of insurance between the insurer and the mortgagee. This particular standard mortgage clause is sometimes referred to as the "New York" or "Union" mortgage clause, and the same has heretofore been construed by various courts of last resort.
In the case of Union Central Life Ins. Co. v. Franklin County Farmers Mut. Ins. Assn., 222 Iowa 964, 965, 270 N.W. 398, 399, Mr. Justice Mitchell gives quotations from various jurisdictions, wherein this standard mortgage clause has been construed, and from a reading thereof it will be readily ascertained that this clause has been uniformly construed to constitute an independent and new contract between the insurer and the mortgagee, which removes the mortgagee beyond the control or effect of any act or neglect of the owner of the property. As the result thereof, we are confronted, not with the contract between the insurer and owner, but with the independent contract between the insurer and the mortgagee.
In the above-cited case, this court was concerned with the question of interpreting the standard mortgage clause. There, as in the instant case, the premises of the insured were covered by a mortgage, and likewise, attached to the policy, was the *Page 1212
standard mortgage clause in favor of the mortgagee, which provided among other things that the mortgagee should notify the insurance association of the commencement of foreclosure proceedings, or of any notice of sale or of change in ownership of the property which came to the knowledge of the mortgagee; and wherein the by-laws of the association, which were made a part of the policy, contained a provision that:
"In event of sale the Association shall at once be notified and the policy sent in for cancelation or assignment, subject to approval of the secretary, and failure to obtain such approval shall invalidate the policy."
However, in that particular case no foreclosure action was instituted, but the insured, being unable to meet his indebtedness, conveyed by warranty deed his entire interest in the real estate to the mortgagee, and no notice whatever of such conveyance was given the insurer until after the fire loss. Therein it was held that the conveyance from the insured to the mortgagee did not constitute such a change of ownership as to invalidate the policy, but that the same merely constituted an increase in the interest of the mortgagee, and not a change of ownership; that the insurer had theretofore passed upon and accepted the mortgagee as a proper party with whom to contract, and that as a result thereof the insurer is not permitted to complain because the interest of such party has been increased. In the opinion therein the following language is used:
"In the case of Employers' Fire Ins. Co. v. Ritter, 112 N.J. Eq. 418,164 A. 426, the owners mortgaged the property to Barbara Ritter. The Employers' Fire Insurance Company issued its fire policy to the owners. Attached to the policy was a standard mortgage clause payable to the mortgagee, as her interest might appear. The mortgage was foreclosed, and at the sale the mortgagee bought the property. Sheriff's deed was duly issued and recorded. Nine months thereafter the buildings on the property were destroyed by fire. The insurance company paid the loss without knowledge of the change of ownership, and on learning of such fact, sued to recover. The court below denied recovery and the appellate court affirmed the decree. Speaking of the standard mortgage clause, the court said at page 428 [of 164 Atl.]: *Page 1213
"`No new person became a party to the insurance contract at the foreclosure sale, and there was no change of risk except by the withdrawal of the interest of the mortgagor and the increase of the amount of interest of the mortgagee. The parties to the contract were the same after the sale. The foreclosure did not constitute such a change of ownership as would invalidate the policy, though no notice of such foreclosure was given to the company.'
"In the case at bar we have no foreclosure of the mortgage. We have a friendly arrangement, whereby the mortgagee took title to the property. There was an independent contract between the Insurance Association and the mortgagee. Under the standard mortgage clause which was attached to the policy no new risk was involved. The insurer has already passed upon and accepted the mortgagee as a proper party with whom to contract, and it cannot complain that its interest is increased. The provision that notice of foreclosure or of sale must be given, is in response to the feeling that where adversary proceedings are brought there may be some adversary feeling on the part of the mortgagor or a temptation to cash in on his property before it is lost thru foreclosure. No such considerations would dictate a requirement of notice of enlargement of title in the mortgage. This was simply an enlargement of the insured's title, and it cannot void the policy.
"This court had before it a similar question in the case of Esch Bros. v. Home Ins. Co. of New York, 78 Iowa 334,43 N.W. 229, 16 Am. St. Rep. 443. On page 343 of 78 Iowa, page 232 of 43 N.W., this court said:
"`It remains to be determined whether the policy, as reformed, has been broken by reason of the change in title, resulting from Bridget Donegan's failure to redeem. This was not a diminution of the interests of the assured, but an increase, and hence not a breach of the policy. See Bailey v. Insurance Co., supra [(C.C.) 13 F. 250], and authorities cited therein.'"
The application of the rules of law as determined in the above-cited case compels the finding that the execution and delivery of the quitclaim deed does not constitute such a change of ownership as to relieve appellant of liability under its separate and independent contract with appellee.
[3] It is, however, contended by appellant that under the *Page 1214
provision of said loss payable clause appellee was limited in its recovery as a mortgagee only, and that appellee's identity as a mortgagee only had ceased to exist prior to the fire loss in question; it being the claim of appellant that the proceedings culminating in the execution and delivery of the quitclaim deed resulted in the complete extinguishment of appellee's identity as a mortgagee, and resulted in appellee's identity being that of owner only; or that such proceedings resulted in a merger of the insured's interest with the interest of the plaintiff, and that therefore appellee was not entitled to recover for the reason that under the "standard mortgage clause" appellee's recovery was limited to that of a mortgagee only.
In connection with this claim of appellant it is to be recalled that the stipulation entered into between appellee and Gingerich provided for a dismissal of the foreclosure action and the return of the note and mortgage in the event only that there were no junior liens, and on account of the fact that there were junior liens against the real estate involved the foreclosure action was not dismissed, and likewise the note and mortgage were not delivered to Gingerich. Regardless of the fact that it might be claimed that through the execution of said deed Gingerich relinquished any right of redemption, there still existed the right of redemption on the part of all junior lienholders, and certainly it cannot logically be said that the status of the appellee herein as mortgagee had ceased to exist. It seems to us that the status of appellee as a mortgagee was still in existence, and of necessity must continue to exist until the period of redemption had fully expired and sheriff's deed had issued to the mortgagee.
If the contention of appellant as to the effect of the execution and delivery of the quitclaim deed is to be adopted, it will of course result in a complete merger of the mortgage in the legal title, resulting in appellee's title being junior to all liens and encumbrances placed against the real estate subsequent to the recording of appellee's mortgage. Such result unquestionably would be inconsistent with the interests of appellee, and the stipulation between appellee and Gingerich conclusively establishes that such was not the intention of appellee. Likewise, the law is well established that a merger will not be construed to exist if the same is against the interest and inconsistent with the intention of the mortgagee; and in the absence of evidence to the contrary the mortgagee's intention will be construed *Page 1215
to correspond with his interest. Andrew v. Woods, 217 Iowa 453,252 N.W. 112; Woodward v. Davis, 53 Iowa 694, 6 N.W. 74; Harrington v. Feddersen, 208 Iowa 564, 226 N.W. 110, 66 A.L.R. 59.
The able and learned trial court in his ruling makes the following statement: "The facts in the instant case are stronger, more persuasive and more imperative of granting equitable relief to the plaintiff herein than were the facts favoring plaintiff in the case of Union Insurance Co. v. Franklin County Farmers Mut. Ins. Assn.", and a comparison of the situation therein with the situation in the instant case causes us to give our wholehearted approval to that statement. — Affirmed.
STIGER, C.J., and all Justices concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429308/ | [1] Objections were filed to the final report of the administratrix, Gertrude E. Rush, in the estate of Paul Randle, deceased. The objectors, the heirs of Paul Randle, contended the administratrix had handled the estate irregularly by not getting orders of court to make payments; by failing to file a complete inventory; and by asking allowance to the widow of $127.75 for a payment the widow had made on the funeral bill, when in fact the latter received more than this sum, or $174, from the United Mine Workers' Union to apply on such funeral bill.
By an amendment to the final report the administratrix stated that her receipts included $112.99 which were exempt to the widow as funds earned by the deceased within ninety days of his death.
The matter was referred to the referee and after hearing he recommended an allowance of the objection with respect to the proposed payment to the widow of $127.75 which she had paid on the funeral bill and he, in effect, charged the widow with an additional sum of $46.25 which the administratrix had paid on the funeral bill, the result being that the full $174 *Page 974
which the widow received from the union was applied on the funeral bill. He overruled other objections and recommended a disbursement schedule to the widow and four heirs based upon receipts which included the $112.99 as general assets of the estate. The administratrix and the widow filed objections to the referee's report claiming that the $112.99, representing wages earned by the deceased within ninety days of his death, was exempt to the widow and should be paid over to her, and the funeral expenses the widow advanced should be refunded to her and she should not be charged with the estate's payment on the funeral bill.
The district court of Polk county accepted the recommendations of the referee's report and decreed disbursement pursuant to the referee's recommendations.
I. The referee and the district court were right in allowing the objection with respect to the proposed payment to the widow for an advancement on the funeral bill. The record shows that the widow received $174 from the United Mine Workers of America, Local Union No. 2485, to apply on the funeral expenses of the deceased. The money was raised by an assessment of $1 per member under a bylaw providing that the fund so raised was "for the purpose of applying on the payment of funeral expenses * * *." She applied $127.75 on the funeral bill and the estate paid $46.25 on this bill. She was not entitled to the refund of $127.75 and she should, in the final accounting, be charged with $46.25 paid by the estate. The authorities with respect to the right of a surviving spouse to reimbursement for funeral expenses paid by such spouse are not in point. The widow made no such advancement from her own funds. She made the payment from funds turned over to her for the purpose of paying this funeral bill. The result of the allowed objection is that the full $174 is devoted to defraying a part of the funeral expenses. The trial court was right in so holding.
[2] II. The objection of the widow and of the administratrix to the referee's report, which included the money earned by the deceased within ninety days of his death as part of the general assets, should have been sustained. It is admitted that the funds were earned within ninety days of decedent's death. *Page 975
The only authority cited by the referee in his report and by appellees in their brief is In re Estate of Angerer, 202 Iowa 611,210 N.W. 810. But the record in that case was quite different from the record here. There the widow allowed property which she could have claimed as exempt to be sold by the administrator of her husband's estate and the proceeds applied upon debts for which she was surety. We pointed out that this was the practical thing for her to do under the circumstances in that case and refused to allow her petition to set the sale aside two years later.
Under the record here, the exempt fund was not used to pay claims for which the widow was liable. The objecting heirs cannot be heard to argue that the widow intended to waive her exempt funds so that they can be turned over to them. The fact that the administratrix did not, in her inventory, set these funds apart as exempt to the widow is immaterial. These funds are given to the widow by law. Section 11918, Code of 1939. She lost no right to claim the exempt property by failing to object to the inventory. Section 11757, Code of 1939; In re Estate of Ring,132 Iowa 216, 109 N.W. 710.
For the reasons stated, the judgment of the trial court is affirmed with respect to the objection concerning the funeral expenses, and reversed with respect to the item of $112.99, which latter sum is to be turned over to the widow as exempt. — Affirmed in part; reversed in part.
All JUSTICES concur. *Page 976 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429309/ | For brevity and clarity, the City of Council Bluffs and its defending officers, and the Iowa State Highway Commission and its defending members, will be referred to, respectively, as the "City," and as the "Commission." This case was tried below, and comes to this court, by somewhat irregular procedure. It was instituted by the plaintiffs and the defendants as a "test" case. While it was alleged in the petition, and admitted in the answers, that the viaduct will be constructed unless the defendants are enjoined, it appears from the record that these allegations were simply for the purpose of stating an issue, and that the defendants did not and do not intend to build the viaduct if this court determines that the abutting owners are entitled to compensation for the taking of their property or to damages for its injury. While they seek a ruling of this court in the nature of an advisory opinion, yet the question for determination is not exactly moot or abstract, and its answer is necessary for the disposition of an actual pending controversy and concerns a matter of public importance, the settlement of which is desired by all parties to the suit. The entrance of the interveners into the case has made it one of a real adversary nature, and the judgment and decree of this court will be a final adjudication of the rights of the parties. 1 C.J.S., Actions, 1012 et seq., sections 17, 18.
The construction of the viaduct has not been started. The only questions involved are those of law, and the one which we are asked to determine is whether the City is liable to the owners of property abutting on the street, at the location of the viaduct, for compensation for the taking of their property, or for damages for its injury, growing out of the construction of the viaduct.
The defendants contend that even though the viaduct would permanently injure the property by impairing its use and depreciating its value, since the structure will be for a public purpose and wholly within the street lines and will not directly and actually invade or encroach upon the tangible abutting *Page 201
property itself, there will be, no "taking" of the property for a public use in the constitutional sense, requiring just compensation, and that any damages sustained will not be "legal" damages, but will be consequential damages, or damages for which there can never be any recovery, since they were presumably paid for or waived when the land for the highway was condemned, purchased, or dedicated.
[1] The abutting property owners, however, insist that the viaduct will destroy or seriously interfere with their rights of access to and from their property, and to the passage of light and air thereto, and that these rights are valuable, and are their "private property," which they have never parted with in any way, or for which they have never been compensated, and that the viaduct will effect a "taking" of these property rights in the constitutional sense, and that payment therefor should be made or secured before the property is taken. They also urge that the viaduct will effect a change in the established grade of the street, in conformity with which they improved their properties, and that such change will damage and diminish the value of their property, and that no alteration of the grade should be made until the damages are assessed and paid, in compliance with section 5953 et seq., Code of 1939.
We agree with the contentions of the abutting owners as above stated.
For 15 years or more before these proceedings were started, the building of this viaduct has been under consideration by the City and the Commission. In 1935 it was on the building program of the Commission, and was submitted to and was approved by the Federal Government, which was to make the funds available for construction costs, under an Act of Congress for the elimination of hazards to life at railway grade crossings, but which would furnish no money for the payment of compensation or damages to the owners of abutting property, or for right of way. F.R. White, chief engineer of the Commission, testified:
"Nothing was done about the proposed project at that time, because no provision had been made for taking care of any property damages and eventually the project was dropped *Page 202
out of the program, and was not built because no provision had been made for the payment of damages to abutting property. The matter of damages was so important that we refused to go ahead with the project until damages had been taken care of in some way. * * * the Commission has no authority to pay damages where the improvement is constructed wholly within the limits of the existing right of way."
At that time it was not within the contemplation of the Commission or of the City that abutting property owners were not entitled to compensation for any taking or impairment of their property.
In 1936, at a time when the proposed viaduct was planned to extend only from 9th Street on the east to 14th Street on the west, the City appointed three councilmen as a committee to make a complete investigation of all the property abutting on Broadway on the site of the viaduct. After making the investigation, and after collaboration with the appraisal board of the Council Bluffs Real Estate Board, they made a written report to the council. This report stated that the abutting property had a taxable value of $86,040; that the owners estimated the property damages to be $200,100; and that, in the opinion of the committee, "a reasonable and adequate settlement" could be made for approximately $91,450. This report was accepted and filed. The estimate did not include damages to tenants. One of the committee, who owned much property in the city, estimated the damages to property and business at $100,000 to $125,000.
Late in 1937, it was the thought of attorneys for the City that the viaduct might be constructed without paying damages to abutting property owners. The plan was and is that the cost of constructing the viaduct will be paid out of federal railroad-crossing funds, under an Act of Congress designed to eliminate hazards to life at railroad grade crossings. Broadway is an extension, within the city, of a number of much-traveled Iowa primary and United States roads. The Chicago Northwestern Railroad Company tracks cross Broadway at right angles between 11th and 12th Streets, and the tracks of the Illinois Central Railroad Company cross in like manner at 13th Street. *Page 203
The viaduct is not to be constructed by the railroad companies under the provisions of chapter 305 of the Iowa Code, under which damages to property must be paid, nor by the City under chapters 301, 317, or any other statutory authority. But the plan proposed is that the Highway Commission will design, supervise, and construct the viaduct, under Code sections 4626, 4626.2, 4755.21, 4755.23, 4755.25, 4755.27, and other sections. Under the construction procedure proposed, no funds are said to be available from the Federal Government or from the Commission to pay any compensation or damages to abutting owners for the taking or injuring of their property.
There has been much activity on the part of the City and its officers during the past several years. Committees have been appointed, resolutions have been adopted, lawyers hired, numerous trips have been made by these committees and city officials to Ames, Des Moines, Chicago, and Washington, for consultations with the Commission, railroad officers, and federal officers, all for the purpose of bringing about the construction of this viaduct, if it can be done without compensating abutting owners for injuries sustained. Resolutions were adopted by the City approving the tentative design and plan of construction, and authorizing the Commission to proceed. The "city plan commission" has approved and recommended the plans submitted to it as required by 1939 Code section 5829.10. The Commission has refused to proceed with the construction work until the matter of damages has been settled. The present plans have never been submitted to the U.S. Bureau of Public Roads, which has the final approval of the project. It has never been placed on the active list or program of the bureau, and the project has not reached the stage where the Commission can say that they propose to construct the project with money furnished by the United States Government.
The petition of the plaintiffs and the answers of the Commission and of the City were all filed at the same time, April 19, 1939. At the same time there was also filed a stipulation signed by the attorneys of the plaintiffs and defendants. It recited the fact that the suit, as made by these parties, involved the question of the power of the Commission to construct the viaduct without the payment of damages to abutting property *Page 204
owners, and also the question of the liability of the City to pay these damages. It also recited that it was the desire of the signatories to prosecute the cause to a decision in the district court, and an appeal therefrom to this court as early as possible. No injunction, either temporary or permanent, was ever ordered or issued.
On July 10, 1939, a resolution was passed noting the commencement of the suit, and directing the city attorney to procure certificate of title as to all abutting property, and to notify in writing all owners of abutting property of the pendency of the suit, and that its decision might be binding upon each of them, and of their right to appear in the cause and protect their rights. Such notices were served in July and August 1939. They recited the filing of plaintiffs' petition "asking that the City of Council Bluffs be restrained and enjoined from constructing and maintaining a viaduct on Broadway Street between a point137.4 feet west of the center line of 15th Street, to a point148.8 feet east of the center line of 9th Street, * * *" The notice further recited that the plaintiffs sued on behalf of themselves "and all other persons similarly situated." The petition contained no such allegation. The notice also states"that the City proposes to proceed with the making of theimprovement without awarding damages to the owners of theproperties abutting on said improvement." (Italics are ours.)
The abutting property owners are 46 in number but only about 30 have appeared. The petitions of intervention are of such length that we may note only briefly their general tenor. They alleged the substance of the petition and answers, their ownership of abutting property, the character of the same, the substantial interference or destruction of access to the property, the failure to comply with constitutional and statutory proceedings in taking property under the power of eminent domain, the establishment of the street grade in 1880, the improving of their properties in conformity to this grade, the change in the grade which will be effected by the viaduct, the lack of authority to change the grade without liability for damages, the active participation of the City in the viaduct project, the failure of the defendants to offer a complete or definite plan or specifications of the project. *Page 205
The plans for the construction of the viaduct are only preliminary. They are very general, very incomplete and indefinite. Protests were made to the council by the street railway company, whose tracks are laid on Broadway and turn off at about 13th Street at a point under the proposed viaduct. The plans do not show how this situation will be met, although engineers of the Commission testify that this is but a detail.
The railroad companies involved are not parties to the suit, but they have indicated they are not interested in land damages, as such, but were interested in ramps or approaches off the viaduct and down onto railroad property. If these are provided, they will waive damages. The plans make no provision for such ramps or approaches. No specifications of the structure have been prepared. The plans, however, are sufficiently specific to show the location of the viaduct, its general dimensions, outline, and parts. Its estimated cost will probably exceed $500,000. The east terminus of the structure commences at the west line of 9th Street. Starting at the present street grade, there is an approach rising at a plus-6 per cent grade to the floor of the overhead section. This approach is 266 feet in length and consists of two concrete retaining walls on each side, 46 feet apart, outside measurement. The space between the walls is to be filled solidly with earth. The roadway on the approaches and on the overhead section is 42 feet wide. The overhead section is 1,760 feet long. The approach at the west end is 246 feet long, and is constructed the same as the east approach and terminates at street grade at the east line of 15th Street. This makes the over-all length of the structure 2,272 feet. Broadway is 80 feet wide between the property lines. As noted, the roadway is 42 feet wide. Along each side of the roadway on the overhead section is a sidewalk 5 feet wide for pedestrians. It overhangs the floor of the roadway, and is supported upon brackets. These sidewalks do not extend onto the approaches, but only between 10th Street and 14th Street, and are reached by stairways from the surface of the street below. The overhead section of the roadway is supported by 23 sets of concrete piers, resting on the street below. These sets vary in distances apart from 53 feet to two 115-foot spans over the railways. Each set contains three piers 36 inches square. The middle pier in each set is 14 feet *Page 206
from each outside pier, leaving space for a roadway that wide between the middle pier and each outside pier. The clearance between the ground surface of the street and the under surface of the overhead roadway, between the inside abutments of the approaches and the nearest pier, is 13.6 feet. This clearance increases until it reaches 22 feet at the highest elevation of the overhead roadway. The upper surface of the roadway at this point is 30 feet above the ground below. Typical cross sections show a proposed vehicular lane, on the ground street level, 12 feet wide on each side of the approaches, with 5-foot sidewalks on each side of it, abutting the property, and between the approaches and under the overhang of the upper roadway and to its side are proposed vehicular lanes, each 15.6 feet wide, with abutting sidewalks 5 feet wide. The lanes and sidewalks are rightly referred to as "proposed," since they are so marked on the plans, and so referred to in the testimony.
Mr. F.R. White, "the executive official of the Highway Commission — similar to that of president of a corporation," testifying for defendants, said:
"I am not particularly interested in whether or not the viaduct proposed on Broadway eliminates a grade crossing or not. That isa matter which the City of Council Bluffs can determine foritself, `if and when and after or before the viaduct may bebuilt.'" (Italics are ours.)
Jack Boyne, city engineer of Council Bluffs, testifying for interveners, said:
"Exhibit 30 [prepared by the Highway Commission in 1938] does not show whether or not there was a grade crossing elimination either at the Illinois Central or the North Western tracks."
However, there is testimony by White and W.E. Jones, engineer of designs for the Commission, that the Commission proposes these lanes of travel at street grade, and the attorneys for the City of Council Bluffs argue to us that if the improvement is made these lanes and sidewalks at street grade will remain.
However, we are deciding this case upon the factual assumption *Page 207
that this project includes all of the proposed vehicular roadways and sidewalks on the ground level of the street, as above stated, and that there will be no elimination of the grade crossings.
To determine at this time, before the proposed and tentative plans have come to fruition, the full extent of the damages which may be sustained, is not possible, but they are sufficient to indicate to us that there is no question that the construction of this improvement will very substantially interfere with ingress to and egress from the properties abutting on Broadway, between 9th Street and 15th Street, and will also substantially interfere with the passage of light and air to them. There is no question that the use of the property will be greatly impaired and its value on the market substantially reduced. The damage and the interference to some will be greater than to others. The location of the viaduct is not far removed from the center of the business district. There are substantial business and residence properties abutting on Broadway at the location in question.
[2] I. The grade of Broadway was established, as required by law, in 1880. There is no claim made that the lots of the abutters were not improved in accordance with this grade.
Section 5953 of the 1939 Code is:
"When any city or town shall have established the grade of any street or alley, and any person shall have made improvements on the same, or lots abutting thereon, according to the established grade thereof, and such grade shall thereafter be altered in such a manner as to damage, injure, or diminish the value of such property so improved, said city or town shall pay to the owner of such property the amount of such damage or injury."
The defending appellees offer two answers to the claim of the appellants that they are entitled to damages because of the change in the established grade. First, they say the City has not participated, and is not now participating in this suit, and therefore will not have anything to do with, or be responsible for, any change of grade. This is but quibbling. It was because of this defense of the City and the Commission that we set out *Page 208
herein a part of the activity of the City during the past several years in an attempt to procure this viaduct. The record fully establishes that the City has been the chief and most persistent proponent of the viaduct project.
In Boal v. City of Chicago, 301 Ill. App. 536, 549,23 N.E.2d 237, 243, an action for damages to abutting property in which $8,500 was recovered, the court said:
"Where a city makes an improvement for its own benefit, it is liable for just compensation for the property damaged thereby by change of street grades and the building of viaducts thereon, and the plaintiffs suggest and this court agrees that where the city authorizes a structure upon a public street, which structure causes injury to adjacent property, it will be liable for all the damages resulting, precisely as though it had erected the structure itself."
The statute does not limit the liability to the one actually changing the grade. It appears to us that the statute places an affirmative duty on the City to see that the grade is not changed unless the provisions of the statute are complied with, and that if the City authorizes the alteration, as it has clearly done in this case, it is liable for the statutory damages. It cannot escape merely by saying it is not participating. The legislature has empowered the Highway Commission to aid in the construction of such a viaduct, but it has not said that it may do this without liability for property taken or damaged. There is no merit in this defense of the City and the Commission.
[3] Second, they urge that the viaduct will not effect, or be, any change in the established grade.
The trial court, in its decree, stated:
"Furthermore the proposed viaduct will create no legal alteration of grade. It might be termed a supplemental grade. Nevertheless the old grade will still exist."
We are not clear as to what the court meant by saying the "viaduct will create no legal alteration of grade." Whether the alteration is legal is not as important as whether it will effect an alteration, in fact. It is no doubt a "supplemental grade," a second grade superimposed upon the surface grade, *Page 209
and making an additional servitude upon the road as originally established, and materially interfering with the abutter's easements of access, light, air, and view. The old grade will not
"still exist." Under the overhead section there will be 63 concrete pillars, 3 feet square, rising from the old pavement. The east approach will extend from the surface of the present street at an incline of almost 7 per cent, almost a block, to a height of 15 feet at the inside abutment of the approach. It will be solid concrete and earth, and will occupy 22,236 square feet of the existing street. A similar but slightly shorter approach will occupy the existing street at the west end of the viaduct. It cannot be said that the present street and the present grade of the street will not be materially and extensively changed by these approaches. The overhead section will be a new roadway and a new grade 1,760 feet long, 52 feet 2 inches wide, and 30 feet above the present street level. The city engineer testified that the construction of the viaduct would require a change in grade elevation. The engineers for the Commission did not testify on this point.
We have found in almost every viaduct case involving a structure such as the proposed one, that it was held that the viaduct was a change of grade. Such was the holding in Willis v. City of Winona, 59 Minn. 27, 60 N.W. 814, 26 L.R.A. 142; Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457, 14 L.R.A. 370, 29 Am. St. Rep. 278; Colclough v. City of Milwaukee, 92 Wis. 182, 65 N.W. 1039; Benton Holden v. Central R. Co., 126 N.J.L. 340,19 A.2d 672; Hill-Behan Lbr. Co. v. State Highway Comm., 347 Mo. 671, 148 S.W.2d 499; S.B. Penick Co. v. New York Cent. R. Co., 3 Cir., N.J., 111 F.2d 1006; 18 Am. Jur., Eminent Domain, 931, section 291; Ralph v. Hazen, 68 App. D.C. 55, 93 F.2d 68; Accomac Realty Co. v. City of St. Louis, 347 Mo. 1224, 152 S.W.2d 100; Campbell v. Arkansas State Highway Comm., 183 Ark. 780,38 S.W.2d 753; 3 Dillon, Mun. Corp., 5th Ed., section 1159; Crane v. Hahlo, 258 U.S. 142, 42 S. Ct. 214, 66 L. Ed. 514; Sauer v. City of New York, 90 A.D. 36, 85 N.Y.S. 636, 180 N.Y. 27, 72 N.E. 579, 70 L.R.A. 717, affirmed, 206 U.S. 536, 27 S. Ct. 686, 51 L. Ed. 1176.
In the Sauer case, supra, much litigated in the courts of *Page 210
New York on different phases of this case, twice before the United States Supreme Court, and much relied upon by appellees herein, a viaduct much like the one here proposed, with the old street left undisturbed except by the iron supporting piers and stairways, and except that it spanned a natural depression in the contour of the street rather than artificial obstructions and hazards, the courts in all of the cases referred to the viaduct as a change of grade. The viaduct involved in those cases was completed in 1893. Sauer owned and operated a casino at the intersection of 8th Avenue and 155th Street. The viaduct extended east from St. Nicholas Place, on top of a bluff at the end of 155th Street, and 70 feet above it, across a ravine to McComb's Dam Bridge over the Harlem River. The roadway of the viaduct was about 50 feet above Sauer's place. He began his litigation after the construction of the viaduct, and his estate finally recovered damages of $42,500 over 20 years later. His claim was based upon interference with his rights of access, air, light, and view. In one of the actions brought by his administratrix, People ex rel. Crane v. Ormond, 221 N.Y. 283, 287, 116 N.E. 993, the only question tried was whether the viaduct above described was a change in the grade of the street below on which Sauer's property abutted. By section 873, chapter 410, Laws of 1882, it was made the duty of the assessors, where the established grade of any streets north of 62d Street "`shall be changed or altered in whole or in part' to estimate the damages suffered by abutting owners and to make an award therefor." In an opinion by Andrews, J., concurred in by Cardozo, J., and others, the court said:
"The serious question in the case is whether the structure in One Hundred and Fifty-fifth street changed the grade of the street within the meaning of the acts of 1882 and 1916. Wholly independent of the authorities upon the subject we are of the opinion that it did. It is true that the original surface of the street was not altered except by the erection of pillars. It is true that pedestrians and vehicles may still pass over it. But practically and substantially One Hundred and Fifty-fifth street as now used passes on a level fifty feet or more above the Sauer property. This is the level adopted by travel east and *Page 211
west. To the street so used access was denied to Mr. Sauer. * * * Under such circumstances the court should be slow to adopt a technical construction of a phrase the result of which would be to deprive the relator of any remedy. We also think that we are concluded upon this question. It is true that in the various cases brought by Mr. Sauer the courts of this state have never said definitely that the structure constituted a change of grade. The first reference to the subject is in 44 A.D. 307 [60 N Y Supp. 649]. Justice McLaughlin speaking of the viaduct says: It `was something more than a mere change of grade of the street.' In the second case Justice Laughlin (90 App. Div. [36], 39 [85 N.Y. Supp. 636]) speaks of it as a double roadway above and below. On appeal this court suggested (180 N.Y. 30
[72 N.E. 579, 70 L.R.A. 717]) that Mr. Sauer might have relief under existing statutes — referring necessarily to grade damages; notwithstanding that Judge Bartlett in a dissenting opinion had argued that there was no change of grade. But this second case was appealed to the United States Supreme Court. Upon that appeal (206 U.S. 536 [27 Sup. Ct. 686, 51 L. Ed. 1176]) Justice Moody evidently thought that a change of grade had been effected. He says that the state courts have uniformly held that the erection of such a viaduct `is a legitimate street improvement equivalent to a change of grade; and that, as in the case of a change of grade,' the abutting owner is not entitled to compensation. But he also quotes Willis v. Winona City (59 Minn. 27) [60 N.W. 814, 26 L.R.A. 142], where, speaking of a similar structure, the court says that it `in effect amounts merely to raising the grade' of the street; and that it makes `no difference in principle whether this was done by filling up the street solidly or * * * by supporting the way on stone or iron columns.' Shortly after the Sauer case was in this court Judge O'Brien refers to it and interprets what we intended to hold. In [Smith v. Boston Albany R. Co.] 181 N.Y. 137 [73 N.E. 679], he says that at common law there was no liability for the change of grade of a street. It is sufficient as an authority to refer to the Sauer case. `It was held in that case that where the original street was elevated upon columns fifty feet above the original surface that it was a change in the grade of the streets within the meaning of the principle just *Page 212
referred to.' Later Justice Scott, referring also to the Sauer case, says that this viaduct `was held in every court to constitute a change of grade.' (People ex rel. City of New York v. Hennessy, 157 A.D. 788) [142 N.Y. Supp. 841]. This case was affirmed here in 210 N.Y. 617 [104 N.E. 1137], without opinion, but no criticism was made of this statement. In view of this history we do not think that additional authority * * * is needed. But if it were the Hennessy case supports our conclusion. * * * Our holding is that such a structure as was erected in One Hundred and Fifty-fifth street constitutes a change of the grade."
In most of the cases cited above there were no statutes allowing recovery of damages for changes in the established grade of a street. It was largely for that reason that no recoveries were allowed.
At common law it was generally held that a city or town was not liable to abutting owners for consequential damages suffered by either the establishing or the changing of a street grade, where the work was authorized and properly done. This was the holding of our earlier cases. Creal v. City of Keokuk, 4 (G. Greene) Iowa 47, 52; Cole v. City of Muscatine, 14 Iowa 296; Cotes Patchin v. City of Davenport, 9 Iowa 227; Reilly v. Fort Dodge, 118 Iowa 633, 635, 92 N.W. 887; Russell v. City of Burlington, 30 Iowa 262. In the Creal case, supra, the court followed with great reluctance this "unjust doctrine," supported by the weight of authority, and stated that:
"* * * there seems to be an unreasonableness and an apparent injustice in permitting a city after she has fixed the grade, and invited persons to build to it as fixed, to re-grade greatly to the damage of those who have been governed by it, without requiring the city to pay such damage. * * * But it is lamentably true that in nearly every state in the Union, where this question has been adjudicated, there seems to be no distinction upon the question of damages between grading and re-grading. * * * We find no case strictly in point opposed to these numerous authorities except those referred to by counsel for appellant found in the Ohio reports. They stand almost or quite alone, and although webelieve them right according *Page 213 to our views of justice, still they are not sustained by British or American authorities." (Italics supplied.)
Of these English cases and the American cases which follow them, Lewis, one of the ablest writers on the subject, in his treatise on the "Law of Eminent Domain," Volume 1, 3d Ed., section 130, said:
"The English cases to which we have referred have been much cited in America to show that the owner of property damaged by works of a public nature, such as a change of grade, cannot recover compensation for such damage. But it is evident that they have no proper application in such cases. In England, as we have said, an act of parliament is the supreme law of the land. Courts cannot declare that wrong which an act of parliament has made lawful. * * * And, in case of damages caused by public works, it is necessary in this country to inquire, not only whether the works are authorized by law and have been carefully executed, but also whether the damage amounts to a taking of property within the meaning of the constitution. In solving this last question the English cases afford us no aid, or practically none. This distinction is frequently lost sight of, and we wish to insist upon it here, once for all."
As the author notes, the distinction is clearly pointed out by the Supreme Court of Ohio, in Crawford v. Village of Delaware,7 Ohio St. 459, 466.
The injustice complained about in Creal v. City of Keokuk, supra, was removed by chapter 40 of the [General and Public] Acts of the Fourteenth General Assembly (section 469, Code, 1873), which allowed damages sustained by the change of an established grade. This court has, on many occasions, upheld this statutory right to damages. Meyer v. Burlington, 52 Iowa, 560, 3 N.W. 558; Richardson v. Sioux City, 136 Iowa 436, 439, 113 N.W. 928; Chiesa Co. v. City of Des Moines, 158 Iowa 343, 345, 138 N.W. 922, 48 L.R.A., N.S., 899. It is true that the right to recover damages is purely statutory and is not a "taking" under the constitution, and the damages may be reduced by the benefits, but in the case before *Page 214
us there is no evidence that any benefits will accrue to the abutting owners from the viaduct. It is our conclusion that the trial court was in error in holding that the viaduct, as proposed, will effect no change of the established grade of Broadway, and in holding that no damages are recoverable by the abutting owners which they may sustain from the viaduct, if and when it is constructed, because it effects a change in the grade. Of course, damages caused by any change in an established grade, to be recoverable must be of material consequence. To warrant a recovery there must be something more than inconvenience or slight damage.
[4] II. The dissatisfaction of the courts, noted in the preceding division, with those decisions holding that injury to abutting property caused by altering an established street grade is damnum absque injuria, has been just as insistent and equally or better founded with respect to the decisions of many courts that the rights of ingress to and egress from abutting property, and the right to the free circulation of air and passage of light to said property, may be destroyed or substantially interfered with by the construction of viaducts or other improvements within the lines of the highway, without any liability therefor. The grounds advanced for these decisions are, that while such destruction and impairment of these rights may be a substantial damage to the property, it is not a direct invasion or appropriation of the corpus of the property, and is only consequential, and therefore there is no "taking" of the property, in the language of the constitutions, for which just compensation is required. These courts also urge that if there is any "taking," it was within the contemplation of the interested parties at the time of the condemning, deeding, or dedication of the land for the highway, and compensation was either waived or paid for, in contemplation of law.
Section 18 of Article I of the Iowa Constitution has to do with eminent domain, and states:
"Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages *Page 215
that may result to said owner on account of the improvement for which it is taken."
There is a similar provision in the Constitution of the United States [fifth amendment]. In the earlier days there was little controversy over these provisions, but as land became more valuable and its value was enhanced by improvements, and the public servitude on the highways increased with the increase of population and the growth of cities and towns, considerable controversy arose as to the meaning of the words "taking" and "property." Since the power of eminent domain is an inherent and inseparable attribute of sovereignty which existed prior to constitutions, the constitutional provisions are not grants of the power, but are limitations upon its exercise. 4 McQuillin, Mun. Corp., 2d Ed., section 1570; Smith v. Arkansas Irrigation Co., 200 Ark. 1022, 142 S.W.2d 509; Rose v. State, 19 Cal. 2d 713, 105 P.2d 302; Botts v. Southeastern Pipe-line Co.,190 Ga. 689, 10 S.E.2d 375; Ryan v. Housing Authority of Newark,125 N.J.L. 336, 15 A.2d 647; Bronx Chamber of Commerce v. Fullen,174 Misc. 524, 21 N.Y.S.2d 474; 1 Lewis, Eminent Domain, 3d Ed., section 10.
These provisions are for the protection of the individual against the excesses of the government with respect to his property, and should be broadly and liberally interpreted to effect that purpose. When the question arose as to what was meant by these limitations it was construed as expressing the intention of those who made, or adopted, the constitutions, to include therein compensation, not only for the property directly appropriated, but also damages to the property remaining in the owner.
"The general feeling that uncompensated injury to private lands from public improvements constituted a gross injustice was doubtless what gave favor to the doctrine adopted by some courts, that the terms `taken' and `damaged' were synonymous; and the feeling became so pronounced in some states in which legislatures were thought likely to be unmindful of private rights, that constitutional amendments were adopted to the effect that property should not be damaged or injured for the *Page 216
public use without compensation." 18 Am Jur., Eminent Domain, 762, 763, section 136.
The matter was very important, and to avoid any question about it the Illinois Constitution was amended in 1870 by adding to the word "taken," in the eminent-domain provision, the words "or damaged." Many other states thereafter amended their constitutions in like manner. As some indication that the provision was sufficiently broad to include damages without the amendment, the Illinois court, in City of Pekin v. Brereton,67 Ill. 477, 480, 16 Am. Rep. 629, 631, said:
"* * * the constitution of 1870 * * * provides in the `Bill of Rights,' section 13 of the second article, that `private property should not be taken or damaged for public use without just compensation.' It will not be denied this provision rests upon a great principle of right and justice which would, doubtless, be applied by courts in every proper case without constitutionalsanction." (Italics are ours.)
Chief Justice Shaw of Massachusetts, one of the really great judges of this country, speaking for the court in Old Colony
Fall River R. Co. v. Inhabitants of the County of Plymouth, Mass., 14 Gray 155, 161, said:
"The word `property' in the tenth article of the Bill of Rights, which provides that `whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor,' should have such a liberal construction as to include every valuable interest which can be enjoyed as property and recognized as such."
In State v. Superior Court, 26 Wash. 278, 286, 66 P. 385, 388, that court, in speaking of the word "property," said:
"It is used in the constitution in a comprehensive and unlimited sense, and so it must be construed. * * * It need not be any physical or tangible property which is subjected to a tangible invasion. The right to the use and possession of a lot abutting on to a public street is property. The right to light and air and access is equally property. * * * the modern *Page 217
authorities are uniform that these are rights which are guaranteed by constitutional provisions similar to ours."
The Michigan court in Pearsall v. Board of Supervisors,74 Mich. 558, 561, 42 N.W. 77, said:
"The constitutional provision is adopted for the protection of and security to the rights of the individual as against the government, and the term `taking' should not be used in an unreasonable or narrow sense."
In 1 Lewis, Eminent Domain, 3d Ed., section 63, the author, in answer to what "property really is," says: "The term is applied with many different meanings. `Sometimes,' says Austin, [2 Jurisprudence, section 1051], `it is taken in the loose and vulgar acceptation to denote not the right of property ordominium, but the subject of such a right; as where a horse or piece of land is called my property.' A little reflection, however, will suffice to convince any one that property is not the corporeal thing itself of which it is predicated, but certain rights in or over the thing. * * * We must, therefore, look beyond the thing itself, beyond the mere corporeal object, for the true idea of property. Property may be defined as certain rights in things which pertain to persons and which are created and sanctioned by law. These rights are the right of user, the right of exclusion and the right of disposition." After mentioning the rights of lateral support, access, light, air, flowing water, etc., the author, referring to them, says: "These rights, wherever they exist, and to the extent to which they are secured by law, are part and parcel of the owner's property in land." (Section 63.) Continuing in section 64, the author states: "Having indicated the true meaning of the word property, it remains to inquire what meaning it has in the constitution. Undoubtedly, in such an instrument, it should be given a meaning that accords with the ordinary usage and understanding of * * * the large body of citizens who gave it vitality by their votes. * * * What did they mean by property? The dullest individual among the people knows and understands that his property in anything is a bundle of rights. * * * Now it seems to us that the word property in the constitution should be given a meaning which, while in accord with the sense in which it is practically used *Page 218
and understood by the people, will also secure to the individual the largest degree of protection against the exercise of the power intended to be restricted."
Sedgwick in his work on Constitutional Law, 2d Ed., 462, 463, states:
"I cannot refrain from the expression of the opinion, that this limitation of the term taking to the actual physical appropriation of property or a divesting of the title is, it seems to me, far too narrow a construction to answer the purposes of justice, or to meet the demands of an equal administration of the great powers of government. The tendency under our system is too often to sacrifice the individual to the community; and it seems very difficult in reason to show why the State should not pay for property of which it destroys or impairs the value, as well as for what it physically takes. If by reason of a consequential damage the value of real estate is positively diminished, it does not appear arduous to prove that in point of fact the owner is deprived of property, though a particular piece of property may not be actually taken."
The same thought is expressed by 4 McQuillin, Municipal Corporations, 2d Ed., section 1576, as follows:
"In considering the constitutional provision forbidding the taking or damage of private `property' for public use without compensation, it is necessary to determine what is `property.' Formerly the tendency was to confine the meaning of the word to the tangible thing itself. At present, however, it is generally held that private property forbidden to be taken or damaged by the constitution for the public use without just compensation is not limited to the tangible subject-matter or corpus of the property, but includes the right of user and enjoyment of it, so that when such rights are destroyed or taken for public use, the owner thereof is entitled to compensation."
In keeping with the tendency as noted above by the text writers, we find it is the present holding of the great majority of the courts that property, in law, does not mean the material thing or physical object itself, but certain rights and powers over, and interests in, the object or thing, including the rights *Page 219
of possession, use, and disposition of it. Some of these later cases are, In re Forsstrom, 44 Ariz. 472, 38 P.2d 878; Smith v. Erie R. Co., 134 Ohio St. 135, 16 N.E.2d 310; Tatum Bros. Real Estate Inv. Co. v. Watson, 92 Fla. 278, 109 So. 623; Meek v. State, 205 Ind. 102, 185 N.E. 899; McInnes v. McKay, 127 Me. 110, 141 A. 699; Boothby v. City of Westbrook, Maine,23 A.2d 316; Pernell v. City of Henderson, 220 N.C. 79, 16 S.E.2d 449; Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871.
A further statement in section 65 of 1 Lewis, Eminent Domain, 3d Ed., is:
"If property, then, consists, not in tangible things themselves, but in certain rights in and appurtenant to those things, it follows that, when a person is deprived of any of those rights, he is to that extent deprived of his property, and hence, that his property may be taken, in the constitutional sense, though his title and possession remain undisturbed; and it may be laid down as a general proposition, based upon the nature of property itself, that, whenever the lawful rights of an individual to the possession, use or enjoyment of his land are in any degree abridged or destroyed by reason of the exercise of the power of eminent domain, his property is, pro tanto, taken, and he is entitled to compensation."
It is uniformly recognized that an owner of property abutting on a street has every right in the street that any member of the public has, and in addition, by reason of his location, certain special rights, to wit, the right of ingress and egress, and the right to light, air, and view. In 3 Dillon, Mun. Corp., 5th Ed., section 1123, these rights are thus stated:
"The full conception of the true nature of a public street in a city, as respects the rights of the public on the one hand, and the rights of the adjoining owner on the other, has been slowly evolved from experience. It has been only at a recent period in our legal history that these two distinct rights have, separately and in their relations to each other, come to be understood and defined with precision. The injustice to the abutting owner arising from the exercise of unrestrained legislative *Page 220
power over streets in cities was such that the abutter necessarily sought legal redress, and the discussions thence ensuing led to a more careful ascertainment of the nature of streets, and of the rights of the adjoining owner in respect thereof. It was seen that he had in common with the rest of the public a right of passage. But it was further seen that he had certain rights not shared by the public at large, special and peculiar to himself, and which arose out of the very relation of his lot to the street in front of it; and it has been held * * * that these rights, whether the bare fee of the streets was in the lot-owner or in the city, were rights of property, and as such ought to be and were as sacred from legislative invasion as his right to the lot itself."
Sound and pertinent comment, with Justice Miller speaking for the court, respecting the proper construction of the eminent-domain provision of the Federal Constitution, appears in Pumpelly v. Green Bay Mississippi Canal Co., 13 Wall. 166, 177, 20 L. Ed. 557, 560. This was an action of trespass for damages caused by the backing up and overflow of water upon plaintiff's land, in the construction of a dam authorized by the state of Wisconsin and built in conformity to the specifications of the statute. Under the circumstances, the damages were directly caused by an actual invasion of plaintiff's property, but the statement of the court was provoked by the argument of defendant that the damages were but consequential. The court said:
"The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision, and that the damage is a consequential result of such use of a navigable stream as the government had a right to for the improvement of its navigation.
"It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to *Page 221
change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors."
See, also, some sound comment by the annotator in 11 L.R.A. 56.
This court has many times recognized these special property rights of the abutting owner, distinct and different from those of the general public. These special rights are property having a value as certainly as the tangible property itself, and increasing the worth of the latter. Long v. Wilson, 119 Iowa 267, 268, 269, 93 N.W. 282, 60 L.R.A. 720, 97 Am. St. Rep. 315; Borghart v. City of Cedar Rapids, 126 Iowa 313, 101, N.W. 1120, 68 L.R.A. 306; Ridgway v. City of Osceola, 139 Iowa 590, 117 N.W. 974; McCann v. Clarke County, 149 Iowa 13, 15, 16, 127 N.W. 1011, 36 L.R.A., N.S., 1115. See, also, McKinney v. Rowland, 197 Iowa 180, 185, 197 N.W. 88; Perry v. Castner, 124 Iowa 386, 392, 100 N.W. 84, 66 L.R.A. 160, 2 Ann. Cas. 363; Wendt v. Town of Akron,161 Iowa 338, 343, 142 N.W. 1024; Bryan v. Petty, 162 Iowa 62, 64, 143 N.W. 987; Ritchhart v. Barton, 193 Iowa 271, 275, 186 N.W. 851; Hubbell v. City of Des Moines, 183 Iowa 715, 719, 167 N.W. 619; Hubbell v. City of Des Moines, 173 Iowa 55, 60, 154 N.W. 337; Furgason v. Woodbury County, 212 Iowa 814, 823, 237 N.W. 214; Wegner v. Kelley, 182 Iowa 259, 265, 165 N.W. 449; Western Newspaper Union v. City of Des Moines, 157 Iowa 685, 140 N.W. 367.
Keeping in mind that property is not alone the corporeal thing, but consists also in certain rights therein created and sanctioned by law, of which, with respect to land, the principal *Page 222
ones are the right of user and enjoyment, right of exclusion, right of disposition, and lesser ones, included in the right of user and enjoyment, are rights to access, light, air, view, support of soil, to be protected from unreasonable uses of neighboring property, to be protected in the natural flow of water, it is clear that the corporeal thing is taken, that property is taken, pro tanto, when any one or more of these rights are taken, of which property consists. And when the right of access to and from the tangible, corporeal thing, by way of adjacent streets, is taken, thereby preventing the use and enjoyment of the tangible property, that tangible property, itself, is taken. Two old, but very instructive and well-considered cases on the matter are Eaton v. Boston, C.
M.R.R., 51 N.H. 504, 12 Am. Rep. 147, and Thompson v. Androscoggin River Imp. Co., 54 N.H. 545.
The Ohio court early recognized and adopted the rule that the destruction or material injury by a municipality of those special rights of the owner, appurtenant to his lands located upon the street or highway, was a taking of property entitling the owner to compensation. This court, in Cook v. City of Burlington,30 Iowa 94, 102, 6 Am. Rep. 649, set out the holding of the Ohio court, as announced in its decisions, by quotation therefrom. In introducing the quotation, Justice Day, speaking for the court, said:
"The supreme court of Ohio, in the case of Street Railway v. Cummingsville, 14 Ohio 523, in an opinion which, for its ability, and the wise and just solution of the questions presented, commends itself to the professional and judicial mind, recognized the distinction between the right of the public to use the street, and the right and interest of the adjacent owners."
Preceding this comment, the court had referred to Warren v. Mayor of Lyons City, 22 Iowa 351, in which case the city officials had attempted to divert the use of a public square, and said:
"If, then, the interest of the lot owner in the square partakes so much of the nature of property, upon what principle of justice or reason shall he be denied the interposition of the *Page 223
courts, for the purpose of protecting and preserving this interest?"
The Ohio court still maintains the position which it early took. See Occo Realty Co. v. New York, C. St. L.R. Co., 33 Ohio App. 414, 169 N.E. 719; Smith v. Erie R. Co., 134 Ohio St. 135,16 N.E.2d 310.
In Long v. Wilson, supra, Justice Ladd, after referring to the case of Barr v. City of Oskaloosa, 45 Iowa 275, in which Justice Day spoke for the court, said at page 273 of 119 Iowa, page 284 of 93 N.W.:
"The writer of the opinion had spoken for the court in Cook v. City of Burlington, 30 Iowa, 94, and quoted with approval language from an Ohio case which so clearly expresses ourconclusion that it will bear repetition." (Italics ours.)
An excerpt from the quotation is then set out. Thus, again, did this court approve of the principle that an abutter's easement, or right of access, is a right of property, protected by the constitution, which cannot be taken from the owner without compensation. In Long v. Wilson, supra, the defendants had procured an adjudication against the city of Perry, narrowing the street between the property of Long and the defendants, to 13 feet. Plaintiff sued to prevent its being put into effect. In affirming a decree for plaintiff, the court said at page 269 of 119 Iowa, page 282 of 93 N.W.:
"It may not be of importance to the general public whether a particular street is vacated or not. It is important to the individual owner of abutting property that he shall be able to get to and from his residence or business, and that the public shall have the means of getting there for social or business purposes. In such a case access to thoroughfares connecting his property with other parts of the town or city has a value peculiar to him, apart from that shared in by citizens generally, and his right to the street as a means of enjoying the free and convenient use of his property has a value quite as certainly as the property itself. If this special right is of value, — and it is of value if it increases the worth of his abutting premises, — then it is property, regardless of the extent of such value. Surely no argument *Page 224
is required to demonstrate that the deprivation of the use of property is to that extent the destruction of its value.
"Under the allegations of the petition, then, shutting off theapproach to plaintiff's homestead was the taking of his property,
and of this there has been no adjudication." (Italics ours.)
The court then quoted from Heinrich v. City of St. Louis, 125 Mo. 424, 28 S.W. 626, 46 Am. St. Rep. 490, as follows:
"`This right of access is appurtenant to his lot, and is private property. To destroy that right is to damage his property, and when this is done for the public good the public must make just compensations.'"
In Borghart v. City of Cedar Rapids, supra, 126 Iowa 313, 101 N.W. 1120, the plaintiff sued to recover damages for the vacation of a public square, which afforded the only access to her abutting property. In affirming her judgment, the court, after discussing her right of access, said, pages 315 and 316 of the Iowa Report:
"That this latter right is private and personal and unshared by the community, and cannot be taken away without answering in damages, is held by substantially all the authorities. * * * As such destruction is presumed to have been for the public good, the public must make just compensation for the property to the extent taken."
In Ridgway v. City of Osceola, supra, at pages 593 and 595 of 139 Iowa, page 975 of 117 N.W., defendant had vacated a street and alley adjacent to plaintiff's property. In reversing judgment entered on a ruling sustaining a demurrer to plaintiff's petition claiming damages, the court quoted with approval from the Long and Borghart cases, supra, and from Elliott, on Roads and Streets, 1st Ed., 662, 663, and said:
"In these latter cases it is held that, where the street or alley is necessary to the free and convenient access to the premises of the particular owner, his right to such use is appurtenant to his premises, and cannot be taken away without the payment of damages. * * * Suffice it to say that a street or alley may become so appurtenant to abutting property that it cannot be *Page 225
vacated without paying compensation to the owner of that property."
McCann v. Clarke County, supra, was a successful suit to recover damages for the vacation of adjacent country highways. In affirming, and after citing with approval the Long, Borghart, and Ridgway cases, supra, the court said at page 15 of 149 Iowa, page 1012 of 127 N.W.:
"His right as one of the public is entirely different from his right to the highway as a means of enjoying the free and convenient use of his abutting property. This right is a special one, and, if it is of value to him, it is property which can not be taken from him without compensation. * * * Elliott on Roads
Streets (2d Ed.) section 877. It goes without saying that the value of the land is materially lessened by cutting off convenient access thereto, just the same as is the value of a city lot."
It is true that in the McCann case, the highway vacated was in the country, where the title to the fee is in the abutter with an easement in the public. But the principle under discussion is just as applicable as it is to a town or city street where the fee title is in the municipality in trust for the use of the public as a street.
In Hubbell v. City of Des Moines, supra, 173 Iowa 55, 66, 154 N.W. 337, 341, suit was brought to enjoin an ordinance vacating an alley adjacent to the Coliseum. There was adequate access on Grand and Locust Streets, and there were no openings from the building onto the alley. Relief was denied plaintiff because the court held that "The record does not disclose the interference with any substantial right of exit and entrance." However, on pages 60 and 61, the court said:
"The fee of the street is in the city. The peculiar right of the abutting property owner is limited to the use of the street in connection with his property. Of course, he has a common right with the public to the use of the street. As an abutting landowner, he may have a distinct and different right. The plaintiffs, as abutting property owners, have a right to a means of egress and ingress. The street or alley having been established *Page 226
by proper authority, the right through that instrumentality of ingress and egress is created. This is a substantial right, and, at certain points abutting their property, of great value; at other points, of practically no value. To interfere with the free and convenient use of ingress and egress, to shut off access to their property entirely by the vacation of streets or alleys, would be, in some instances, to destroy the value of the property itself — at least until such time as aerial navigation has been perfected. There is no question, under the rule laid down in this state, and as the law now stands, that the vacation of a public street or alley may be a substantial injury to the owner of abutting property, by the destruction of his right to the larger and fuller enjoyment of his property, resting in the existence of the street or alley."
And in the same opinion, page 64, in speaking of the reason given in the Ridgway case, supra, for overruling Barr v. City of Oskaloosa, 45 Iowa 275, the court said:
"But, whatever the purpose may have been, it still remains established as the law of this state that an abutting property owner, whose right of egress and ingress has been substantially interfered with by the vacation of a public street or alley, has the right of action for damages which may result to him personally by such vacation, and it does not matter whether you call it an easement in the street, a vested right to the use of the street, or a claim for damages. This court is committed to the doctrine that he is entitled to recover if the free access to his property and the improvements thereon, through the street and by means of the street, has been substantially interfered with."
It is true that on page 74 of the opinion in the Hubbell case, the court said:
"In vacating a public street, the damages to abutting property owners are of necessity consequential. * * * We do not think the vacation of a street is the taking of private property in contemplation of our Constitution."
Whether the last statement is correct might depend largely on the purpose of the vacation. Certainly, the permanent closing of a street or alley for its customary use would not be a public *Page 227
use as contemplated by the constitution. The statement can have no application in this case before us for here there is no vacation, since the easement of way belonging to the abutters is to be taken and appropriated to a public use in the form of an additional servitude. And the statement of the court is hardly apropos in the Hubbell case, since the alley was vacated to be joined to a public park, and might well be called a taking for a public use. Certainly the plaintiff's special right of access to the alley, and his actual entrance thereto from the Coliseum, were prevented and destroyed, because it was taken and appropriated for public use as a park in a constitutional sense. This right had a value and had the plaintiff been making use of such access at that time its appropriation would have been compensable. In the Borghart case the square was vacated and sold by the city to be used for the building of a church. The court said its destruction as a square was presumed to be for a public use. The other statement of the court, that the damages to an abutting owner from the vacation of a street are consequential, is of very questionable soundness, and results from a misconception of the true relation between the proprietary right or easement of access and the tangible abutting land to which it is an incident and without which it has no real value. The right of access and the land itself cannot and ought not be considered separately or as distinct entities. This is true notwithstanding the easement or right of access may be separately conveyed by deed. Hileman v. Chicago G.W. Ry. Co., 113 Iowa 591, 85 N.W. 800. This conception of the relation is stated by Judge Dillon, in 3 Municipal Corporations, 5th Ed., section 1125, thus:
"The private rights in a street, appurtenant to abutting lots,arise by operation of law from contiguity, like rights for the adjacent and subjacent support of land, and their existence is to be presumed. These easements are purely incorporeal rights,
having in themselves only a nominal value, and dependent for substantial value upon the effect which their destruction has upon the abutting property. Being incorporeal, they are necessarily appurtenant to the abutting property, and cannotexist severed from or independently of it."
The lot and the easement are a unit, and are used and enjoyed *Page 228
as a unit, and if the easement of access is terminated in any way the entire unit is injured, not consequentially, but directly. It would be just as reasonable to say that an impassable barricade around a business property, or the cutting of the airline to a deep-sea diver, are not direct injuries because there is no actual contact with the property, or the diver. If a farmer operates an 80-acre farm which he has access to by a roadway easement over his neighbor's adjoining land, his farm consists of the 80 acres and the roadway, and the destruction of the latter is just as much a direct injury to his farming venture as would be the loss of a part of his land. The same injury occurs, and the same principle of law applies, when the right of access to a street is taken from an abutting property. Most certainly, the destruction of or interference with the access itself, or right of access — the easement in the street — which right is actually invaded and appropriated by the city, is a direct injury and damage to that special right, and also to the corpus of the property, of which that right is a part. This damage is direct and not consequential. Suppose a farm owner has an easement for passage over his neighbor's land and the neighbor puts a fence or other barricade across that passageway, would anyone say that this interference or stoppage was not an actual invasion of and a direct taking or appropriation of his easement? And would anyone say the damages were not direct, instead of consequential?
In Dawson v. McKinnon, 226 Iowa 756, 766, 770, 285 N.W. 258, 263, 265, it is stated:
"An easement has been defined as a privilege, or right, without profit, which the owner of one piece of real estate may have in the real estate of another, or, conversely, it is a service which one tract of land owes to another tract."
In that case, the court said:
"It is our judgment that the defendant commissioners have taken the larger part of the drive, street, or way over which the appellant had an easement, and that in doing so they have destroyed a property right which she had therein, and have very seriously interfered with and impaired the access which *Page 229
she had to and from her land, causing her damage which she is entitled to have established in the manner required by law."
So, in the case before us, the City, as the owner of the street or servient estate, owes an easement of way, or service, to the abutting land, or dominant estates, which it is seeking to destroy as to them and to take and appropriate to itself. It cannot pay this obligation by destroying it or seizing it.
The case which the appellants rely upon as decisive of this division of the opinion is Nalon v. City of Sioux City, 216 Iowa 1041, 1043, 250 N.W. 166, 167. The plaintiff owned a residence lot facing south on West 13th Street. Back and to the west of the lot, Perry Creek ran in a southeasterly direction, forming a horseshoe loop with the opening thereof a short distance west of plaintiff's lot. Under a statutory provision for flood control, the city cut a new channel for the creek across the opening of the loop, just a few feet west of the lot line. The new channel extended across West 13th Street at an angle, somewhat less than a right angle. It was about 20 feet wide and 25 feet deep. It was not bridged and access to plaintiff's lot was completely cut off from the west. Plaintiff sued for damages, alleging, as grounds, trespass on the lot by piling bricks and debris thereon, removal of a shade tree, and "that access to the street is now more difficult." Defendant moved for a directed verdict, which motion was overruled, but the two first-mentioned grounds for recovery were withdrawn by the court. The parties then agreed that the jury might be discharged and the court could assess the damages, which it did in the sum of $1,250. One ground of the motion was, that only indirect damages were claimed, arising by reason of a change in the course of the stream to a position nearer plaintiff's property, and that there was no allegation of any "taking of plaintiff's property." This was the nature of the defense stated in appellant's brief and argument. The error relied upon for reversal is thus stated by the appellant:
"`1. The sole proposition presented on this appeal is that the court erred in overruling defendant's motion for a directed verdict and should have held as a matter of law that there is no right of action for an incidental injury to the value of property *Page 230
caused by a proper work of public improvement where there is no direct taking of plaintiff's property or trespass thereon.'"
The following propositions of law were stated by appellant:
"(4) There is no constitutional prohibition against damage or incidental injury to private property by public authority unless there is a `taking' in a physical sense. (5) Plaintiff is not entitled to recover damages for incidental injuries suffered due to a proper work of public improvement. (6) The right of abutting owners in Iowa to recover for a change of grade of streets is purely statutory and does not include the right to damages for any other type of public improvement."
The burden of appellant's argument was that there was no liability for indirect or incidental injury "where there was no `taking' within the constitutional prohibition." The appellee accepted this challenge. That was the only issue argued or presented to this court. Appellee cited and relied on the Long, Borghart, and Ridgway cases, supra. This court affirmed plaintiff's judgment. Justice Donegan, speaking for the court, set out the sole assignment of error noted above, and said on pages 1043, 1044, and 1046 of 216 Iowa, page 167 of 250 N.W.:
"Appellant's brief and argument is devoted to this one proposition, that there was no taking of plaintiff's property within the meaning of the constitutional provision against taking property without compensation, and that any and all damages claimed by appellee resulted indirectly from the construction of the ditch adjacent to the appellee's property and are incidental and consequential. Article 1, section 18, of the Constitution of the state of Iowa, provides as follows:
"`Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof'.
"Appellant cites authorities in support of its contention that there can be no taking of private property within the contemplation of this provision of the Constitution unless there is a physical appropriation of the property itself, and that, where *Page 231
the property is not physically taken, any damages resulting to such property because of a public improvement are indirect and consequential and, in the absence of statutory provision authorizing payment thereof, cannot be collected against a city when acting in its governmental capacity. It may be conceded that, in construing provisions such as that in our Constitution, which merely provide for compensation for the taking of property, the authorities quoted by appellant are in conformity with appellant's contention. It does not necessarily follow that there may not be, in any case, a taking of property without the actual invasion of the physical property itself. On the contrary, thereis ample authority in support of the rule that, even where theprovision is only for compensation for the taking of property,there may be a taking of property, by preventing or substantiallyinterfering with the owner's access to his property from a publicstreet. * * *
"Under the rule that a substantial interference with access toproperty by means of a public street does amount to a taking ofproperty for which damages may be collected, there was evidenceto carry this case to the jury, and the trial court did not errin overruling the appellant's motion for a directed verdict.
"As this is the only question which has been presented to thecourt under the errors relied upon for reversal, the ruling andjudgment of the trial court must be, and is, hereby affirmed."
(Italics supplied.)
The court quoted from the Long, Ridgway, and Borghart cases, supra, in support of its decision.
We have set out the record fully in the Nalon case because the appellees insist that it is neither controlling nor applicable, since the public work constructed was not for the improvement of the street, but was, in fact, a diversion from, and detrimental to, its use as a street, and that the decision for that reason is right in holding that such diversion was a "taking" of the right of access in a constitutional sense. In other words, they contend that the decision is right but a right reason was not given for it. If it be conceded, as a matter of argument, that the appellees are right in their contention, and without passing upon the merits of this supposed ground of recovery, we need only say this ground of recovery, or reason for the decision, was never mentioned at *Page 232
any time in the trial, or in the appeal proceedings. The only question presented below or on appeal was whether a substantial interference with access to an abutter's property to or from a public street was a taking of private property under the eminent-domain provision of the Iowa Constitution. The court definitely and squarely decided that it was. The appellees also insist that the Long, Borghart, and Ridgway cases, supra, have no application because they are street-vacating cases, thereby diverting the streets from their proper use as such, while the case before us is a street-improvement case. This is a distinction without a difference in the legal consequences. The abutting owner has a proprietary right, or easement, of access in the street along his property, which is subordinate to the right of the state or of a city or town in and to said street, so that the municipality may destroy the right by vacating the street, or it or the state may substantially impair or interfere with that access or right of access by improving the street for the better service or safety of the public, but in either event compensation must be made to the abutting property owner for the injury sustained by him.
Two times since the decision in the Nalon case was rendered we have cited and approved that decision. See Graham v. City of Sioux City, 219 Iowa 594, 596, 258 N.W. 902, 903, where, through Justice Mitchell, the court said:
"The city concedes that this court has heretofore held that an obstruction to access to property is a `taking' for which the property owner is entitled to damages."
And in Prymek v. Washington County, 229 Iowa 1249, 296 N.W. 467, again speaking through Justice Mitchell, the court held that the vacation of a country highway, destroying or seriously interfering with a person's right of access to his property which does not abut on the vacated highway, is the destruction of a property right entitling him to damages. The court quotes from the Nalon case that such interference with access is a taking of property.
We now hold that the destruction of the rights of access, light, air, or view, or the substantial impairment or interference with these rights of an abutting property owner in the highways or streets adjacent to his property, by any work or structure *Page 233
upon such highways or streets, intended for the improvement thereof, done by the state or any governmental subdivision thereof, is a "taking" of the private property of said owner within the purview and provisions of section 18, Article I of the Iowa Constitution.
For other authority supporting the proposition that these special rights are property which cannot be destroyed or appropriated without liability, see Occo Realty Co. v. New York, C. St. L.R. Co., 33 Ohio App. 414, 169 N.E. 719; Siemers v. St. Louis Elec. Term. Ry. Co., 348 Mo. 682, 155 S.W.2d 130 (Subway); Arrow Press Corp. v. Allegheny County, 90 P.L.J., Pa., 37; Andrews v. Cox, 127 Conn. 455, 17 A.2d 507; Rose v. State,19 Cal. 2d 713, 105 P.2d 302; People v. Ricciardi, Cal.App., 107 P.2d 647; Hirt v. City of Casper, 56 Wyo. 57, 103 P.2d 394; Boal v. City of Chicago, 301 Ill. App. 536, 23 N.E.2d 237; Crane v. Hahlo, 258 U.S. 142, 42 S. Ct. 214, 66 L. Ed. 514; Campbell v. Arkansas State Highway Comm., 183 Ark. 780, 38 S.W.2d 753; City of Atlanta v. Gore, 40 Ga. App. 70, 169 S.E. 776; In re Forsstrom, 44 Ariz. 472, 38 P.2d 878; 20 C.J. 689, section 152; 29 C.J.S., Eminent Domain, 934, section 122; Great Northern R. Co. v. State, 102 Wash. 348, 353, 173 P. 40, 42, L.R.A. 1918E, 987, where the court said:
"In our opinion, the theory that property rights are ever to be sacrificed to public convenience or necessity without just compensation * * * should find no lodgment in American jurisprudence."
Breinig v. Allegheny County, 332 Pa. 474, 480, 2 A.2d 842, 847, in which the court said:
"Where land is taken or purchased for highways, the abutting owner retains, as an incident to ownership of the remainder of his land, the right of access, or of ingress and egress. This right cannot be taken from him unless compensation is made therefor under the law. It is a property right, protected by the Constitution."
See, also, Cain v. Aspinwall-Delafield Co., 289 Pa. 535, 541,137 A. 610; Burger v. City of Wichita, 132 Kan. 105, 294 P. 670; Edmison v. Lowry, 3 S.D. 77, 52 N.W. 583, 17 L.R.A. *Page 234
275, 44 Am. St. Rep. 774; 2 Elliott, Roads Streets, 4th Ed., section 882; 3 Dillon, Mun. Corp., 5th Ed., section 1123; 25 Am. Jur., Highways, 448, 451, sections 154, 155; pages 611, 613, sections 318, 319.
"* * * an abutting owner's easement for the passage of light and air over a public highway cannot be taken or damaged without just compensation. So, also, an owner's right of access to his premises is a valuable property right. The construction of an impassable barrier around property, by which the owner's access to it would be destroyed, would be no less a taking of it in the sense of the Constitution than would be the owner's expulsion from the premises." 18 Am. Jur., Eminent Domain, 789, section 158.
When it is conceded that the easement of access is property, it necessarily follows that when it is appropriated for a public use, thereby depriving the owner of its use, this is a taking in the constitutional sense. The destruction of this means of access to a piece of land for public use is a taking of property, just as much as the destruction of a building on that land for public use is a taking.
As stated before herein, the interference with these special rights of the abutter, which will entitle him to relief or protection, must be material and not merely a matter of inconvenience. Cases involving such complaints have been before this court a number of times. In Randall v. Christiansen, 76 Iowa 169, 40 N.W. 703, relief was denied to the complainant, under a statute prohibiting the destruction of ingress or egress to property by those in charge of highway work. In Haydon v. Whitaker, 156 Iowa 87, 135 N.W. 361, relief was granted. The decision in each case must be ruled by the facts thereof.
[5] III. What merit is there in the contention of the appellees that there is no liability to an abutting owner for destroying his rights of access, light, air, and view, because he was fully compensated therefor when the roadway was condemned, purchased, or dedicated?
In our judgment, the proposition is unsound. The conclusion is unsound because the premise has no basis in fact. The abutting owner does not part with these special proprietary *Page 235
rights or easements when the land is acquired for highway purposes, therefore there is no ground for saying that he has been paid or compensated for them. These rights are inherent in the transaction and are not parted with in the acquisition of the land for highway purposes, but are reserved in the one parting with the land and run with the land for the use of all future owners, even though not mentioned or reserved in the granting instrument. Long v. Wilson, 119 Iowa 267, 272, 93 N.W. 282, 60 L.R.A. 720, 97 Am. St. Rep. 315. Being property or proprietary rights which the abutter retains, it cannot, in reason, be said that he was paid therefor, or that they were included in any assessment of damages. The fee in the highway was parted with and taken by the public subdivision, but subject to and burdened with the easements of way, light, etc. These easements or incorporeal hereditaments were never paid for. The person who purchases land from his adjoining neighbor subject to a roadway easement in the latter can acquire that easement in the future only by paying for it. So also must the public body pay for the easement of the abutting owner, if at some future time it wishes to appropriate it to better serve those who use the highway. It has a paramount right in the highway for highway purposes, and, conversely, the rights of the abutting owner are subordinate to the highway rights of the public, and the state or municipal body may appropriate the special easements of the abutter but it must pay just compensation therefor. It cannot confiscate them and glibly say to the abutter "damnum absque injuria." As said by 1 Lewis, Eminent Domain, 3d Ed., section 121:
"* * * These private rights or easements are the presumed, as well as the real, consideration for the grant or dedication of a part of the tract to public use. * * * If, instead of making a gift of the streets to the public, the proprietors should voluntarily grant the streets for a consideration agreed upon and paid by the public, it would still be true in fact, and therefore presumed by law, that, in fixing the consideration to be paid, the parties had in mind the advantages to be derived from the use of the streets. That is, the consideration to each proprietor would be the right to make use of the streets in connection with his lots, and a certain sum of money paid. The *Page 236
first part of this consideration would be utterly fallacious, unless the right in question is protected by the law of the land the same as any other right. To make the right a part consideration of the grant, and then to allow the public to invade or destroy it at pleasure, would be a fraud which the law will neither impute nor allow. Therefore, in the case of such a grant, there arises by operation of law a private right to use the streets in connection with the lots of each proprietor, which is as inviolable as any other right of property."
See, also, Lahr v. Metropolitan Elev. Ry. Co., 104 N.Y. 268, 290, 10 N.E. 528; Pearsall v. Board of Supvrs., 74 Mich. 558, 42 N.W. 77, 4 L.R.A. 193.
We think there is another answer to this contention of the appellees. It is true that when damages are assessed or compensation awarded in the condemnation of land for a highway, the assessing tribunal may be presumed to have taken into consideration all reasonably foreseeable uses, improvements, disadvantages, and servitudes in connection with the highway which might impair the use of, or depreciate the value of, the remainder of the abutter's property. And it is a sound policy that an assessment ought, if reasonably possible, be made once for all time. Of this Lewis said, in 1 Eminent Domain, 3d Ed., section 126:
"It has been said, in some cases, that a jury or other tribunal for assessing damage, when a street is laid out, take into consideration the possibility of future damage by improving the street, and increase their allowance accordingly. We think the fact is otherwise, but the impossibility of forming an accurate or even approximate estimate of such damages is sufficient to rebut any presumption of their having been included in the assessment. Who can estimate what the needs of the public will require, or the whims of public officers suggest? To attempt to include such damages is to send the jury into the realm of pure speculation. The more reasonable, the more practicable and the juster view is that such damages are not the subject of assessment in such cases."
The plats in which Broadway and the abutting properties *Page 237
are included were dedicated in 1854-1857. How can it be conclusively presumed that the conceded damages which will be sustained by abutting property if this viaduct is built were considered or reasonably foreseeable at that period? The plats and blueprints show the contour of the ground to be level. If there had been a gully or deep ravine, some street improvement necessitating a serious interference with access to the property might have been anticipated. There was no railroad crossing until 1865 and after. In the Sauer case, supra, 72 N.E. 579, affirmed206 U.S. 536, 542, 27 S. Ct. 686, 687, 51 L. Ed. 1176, 1180, frequently cited by proponents of the views of the appellees, after referring to the presumption above referred to, the court said:
"The rule may be different as to peculiar and extraordinary changes made for some ulterior purpose other than the improvement of the street, as, for instance, where the natural surface has been changed by artificial means, such as the construction of a railroad embankment, or a bridge over a railroad, making elevated approaches necessary."
For other authority that unusual or out of the ordinary changes or improvements, or those made necessary by artificial conditions, such as elevated grades over railroads, or which inflict special and peculiar damage on abutting property, will not be presumed to have been contemplated or anticipated and considered when the highway was acquired, see 18 Am. Jur., Eminent Domain, 847, section 217, and 1 Lewis, Eminent Domain, 3d Ed., section 138. See, also, City of Pueblo v. Strait,20 Colo. 13, 36 P. 789, 24 L.R.A. 392, 46 Am. St. Rep. 273.
Vann, J., dissented in the Sauer case upon the ground that such a structure as a "new and independent street in the form of a bridge, fifty feet high and sixty-three feet wide, extending lengthwise through block after block over an existing street, which, graded and paved for years, is left undisturbed except by the huge columns supporting the elevated structure, is neither the improvement of the street as a street, nor a proper street use sanctioned by precedent, or coming within the reasonable contemplation of the parties when the fee of the surface street *Page 238
was acquired from the abutting owner, who has no access to the aerial street from his own premises * * *." 180 N.Y. 27, 34, 72 N.E. 579, 580.
On the appeal to the United States Supreme Court that court did not pass upon the question before us, since it held that it was bound by the holding of the state court, but there is much unnecessary comment in the opinion on the point. Justice McKenna dissented and Justice Day concurred in the dissent. After stating that the majority had misconceived the true basis of earlier decisions on the question, and Story v. New York Elev. R. Co.,90 N.Y. 122, 43 Am. Rep. 146, McKenna, J., said:
"I am not insensible of the strength of the reasoning by which this court sustains that conclusion [that there was no additional servitude], but certainly all lawyers would not assent to it. Indeed one must be a lawyer to assent to it. At times there seems to be a legal result which takes no account of the obviously practical result. At times there seems to come an antithesis between legal sense and common sense." 206 U.S. 536, 559, 27 S. Ct. 686, 694.
[6] IV. Appellees stress the fact that the legislature has plenary power over highways; that the rights of the abutting property owner are subordinate to those of the public and must give way to the conveniences and necessities of the traveling public; and that the Highway Commission has power to construct this viaduct. These rights and powers may be conceded, but nevertheless they are not absolute or unlimited and unrestricted. They are all subject to the constitutional inhibition that private property must not be taken for public use without just compensation. Even the legislature and the other subdivisions and agencies of the state are subject to this limitation. The power of the legislature over highways and streets is plenary in that it may take any needed private property for their establishment, maintenance, or improvement, but it is restricted in that it must pay just compensation therefor. The power of the highway commission is, of course, likewise limited. The safety of the public, in these days of speedy locomotion and congested traffic, ought to be guarded and maintained, and public works and improvement *Page 239
to that end should be encouraged by the courts whenever it can be done, but the courts cannot ignore sound and settled principles of law safeguarding the rights and property of individuals. This viaduct may be of great convenience to the public generally, but the properties of the abutting owners ought not be sacrificed in order to secure it.
In support of their contention that the abutting owners will suffer no "legal" damages, that is, that they will suffer no damage for which they are legally entitled to recover, the appellees cite and rely upon Pillings v. Pottawattamie County,188 Iowa 567, 568, 176 N.W. 314; Lingo v. Page County, 201 Iowa 906, 208 N.W. 327; Talcott Bros. v. City of Des Moines, 134 Iowa 113, 109 N.W. 311, 12 L.R.A., N.S., 696, 120 Am. St. Rep. 419; Peck v. Olson Constr. Co., 216 Iowa 519, 245 N.W. 131; Sauer v. City of New York, supra, 72 N.E. 579; Id., 51 L. Ed. 1176; Willis v. Winona City, 59 Minn. 27, 60 N.W. 814, 26 L.R.A. 142; Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457, 14 L.R.A. 370, 29 Am. St. Rep. 278; Colclough v. City of Milwaukee, 92 Wis. 182, 65 N.W. 1039; Home Bldg. C. Co. v. City of Roanoke, 91 Va. 52, 20 S.E. 895, 27 L.R.A. 551; Brand v. Multnomah County, 38 Or. 79, 60 P. 209, 50 L.R.A. 389, 84 Am. St. Rep. 772; Sears v. Crocker,184 Mass. 586, 69 N.E. 327, 100 Am. St. Rep. 577. A number of these decisions from other jurisdictions have no application to the proposition discussed in division I of this opinion, since they hold that the decisions would have been otherwise had there been a statutory provision for damages caused by a change in an established grade.
Respecting the holding in these cases on matters involved in the other divisions of this opinion, we respectfully disagree.
[7] Much reliance was placed by the trial court and by the appellees upon Pillings v. Pottawattamie County and Lingo v. Page County, supra. Neither of these decisions is applicable to division I hereof since the statutory provision as to damages caused by altering established grades has no application to country highways. The first case was disposed of on a demurrer to the petition and we are bound by the facts as alleged therein. The road was graded so as to leave a cut 6 to 12 feet deep, with perpendicular sides, "destroying all means of convenient passage *Page 240
between" the residence and the barns, outbuildings, and well, on the other side of the road. The road was laid out on high ground where it passed the buildings, and then descended to a creek bottom. The hill was cut down to make a fill in the bottom, which improvement must have been anticipated when the road was laid out. We have no fault to find with the result reached. The same is true of the Lingo case. Talcott Bros. v. Des Moines, supra, does not involve an abutting property owner's rights of access, air, or light, but has to do with the right of lateral support, which is a right inhering in land just as the rights of access, etc., do, because of their very nature, and the same principles of law herein stated should apply to such right. We question the soundness of some of the views stated in the opinion. Insofar as any pronouncements of law in any of the three cases last mentioned are contrary to the questions of law decided herein, they are overruled.
The judgment and decree is reversed and remanded and the district court is directed to render judgment and decree in conformity herewith. — Reversed and remanded.
All JUSTICES concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429310/ | The record in this case is quite voluminous. It presents a situation with many singular complications. A solution of the problems presented requires only the application of well-established principles of law. In this situation we shall not incumber the reports with more than a statement of our conclusions as to a proper disposition of the case.
The Farmers State Bank of Logan, Iowa, became involved in financial difficulties in the fall of 1927. In December of that year the bank was ordered to make an assessment of 100 per cent on its stock, and this was done in January of the year 1928. There is a very serious divergence in the claims of the parties as to what was done after the assessment was made, but our conclusion is that various stockholders, who are claimants herein, left cash, checks, and notes with the officers of the bank to be held by the bank until all stockholders had paid their assessments, and in case the assessments were not all paid such items were to be returned to the owners or applied on the statutory liability to an assessment. There is no dispute but what the cash, checks, and notes given by the stockholders were placed in separate envelopes and kept in the *Page 1315
vaults of the bank apart from the assets of the bank and without being entered on the books of the bank until June 13, 1928. On that date, under direction of a bank examiner, the checks were cashed and the notes entered among the bills receivable of the bank. The next day, June 14, 1928, the bank closed its doors, and subsequently L.A. Andrew, superintendent of banking, was appointed its receiver.
The situation has caused much litigation. In another aspect these matters were before this court in the case of Andrew v. Farmers State Bank of Logan, 212 Iowa 329, 236 N.W. 392. The matters now before the court are claims of the stockholders who ask that their claims be established against the receiver as being entitled to preference. The claims are not all the same. They fall into classes and each class will have individual attention. There are, however, certain considerations which apply to all claimants.
In the first instance the receiver contends that the agreement, by which the notes, checks, etc., were to be held separate from the bank's general assets, has not been established. From the testimony of the various witnesses and the fact that the checks and notes were kept separate and apart, we have reached the conclusion that such agreement was made.
[1] The receiver contends that it was the duty of the bank to collect the assessment made pursuant to the instructions of the superintendent of banking and that consequently the agreement was void. The question whether the liability of the stockholders on the assessment was affected in any manner by the agreement is not involved in this matter. The question is whether the officers of the bank can accept cash, notes, and checks subject to certain specific conditions and retain them untrammeled by the conditions. We are agreed that, regardless of whether the officers of the bank could affect the ultimate liability of the stockholders by the agreement made, they may not secure and accept cash, checks, and notes upon specific condition, and apply them to obligations to the bank in violation of the specific conditions agreed to. Selma Savings Bank v. Harlan, 167 Iowa 673, 149 N.W. 882; Code 1931, section 9476.
[2] The receiver insists that the claims should be rejected because they were not filed at an earlier date. The trial court permitted them to be filed. The fact situation is complicated. No prejudice is shown to have resulted from delay in filing the claims. We think the claims should be disposed of on their merits. Subsequent *Page 1316
to the appointment of the receiver the liquidation of the affairs of the bank proceeded in the usual manner and the usual reports were made and certain dividends have been paid, all without objection from claimants herein. These matters present no serious obstacle to the determination of the claims.
[3] As was usual, when the affairs of the bank were acute the officers of the bank resorted to the newspapers with notices and articles in relation to the solvency of the bank. The advertisements, read as an ordinary man would read them, would create the impression that the amount of the assessment on the stockholders had been brought into the bank. In this situation the receiver asserts that claimants are estopped from pressing their claims. To sustain the estoppel the receiver produced a number of witnesses who testified to continuing their business relations with the bank after reading the article, and one who testified to having made a new deposit in the bank after reading the article. It is the thought of the receiver that claimants should have protested against the publication of the article or given some notice of the agreement by which their notes and checks were being given and held. But the fact situation is this: The article was published shortly after the voluntary assessment was made against the stockholders of the bank on January 22, 1928; there is nothing to indicate that the agreement in relation to holding the cash, notes, and checks had been entered into at that time; the earliest receipt in the record is dated April 17, 1928; the record rather indicates that the agreement was a device subsequently evolved to facilitate the collection of the assessment. In this situation we hold that the receiver's plea of estoppel must fail.
[4] The receiver began suits against the stockholders of the bank, including claimants, to recover the statutory assessment. In this suit claimants set up the facts above referred to as entitling them to offsets. The facts were held by this court to be unavailing in Andrew v. Farmers State Bank, 212 Iowa 329, 236 N.W. 392. The receiver now asserts that the act of pleading such facts was an election of remedies which precludes claimants from pressing their claims. In that suit claimants, who were there defendants, sought to avail themselves of their rights by way of set-off against their statutory liability. This was denied to them. Their claim in that respect was entirely consistent with their present position, their position in each instance being that by reason of the facts the receiver is indebted to them in such a way that they are entitled to a *Page 1317
preference in payment. Their failure in the earlier suit was due, not to the character of their demand, but to the fact that their demands arose prior to the appointment of the receiver, in virtue of which they were not available as a set-off in the suit by the receiver to recover on the right given to him by statute. There is no inconsistency in asserting that claimants have a preferred claim and a claim which they are entitled to offset against their statutory liability as stockholders. It is only in situations in which there is inconsistency that the doctrine of election applies. 20 C.J. p. 6, section 7. In no aspect does the former litigation interfere with the prosecution of the present claims.
The former case definitely determined that the claimants were not entitled to off-set their claims against their liability for the statutory assessment on their shares of stock and such is the law of the case. No judgment rendered in this action can be offset against judgments in the stock assessment suit for the obvious reason that the allowance of a claim as entitled to preference in payment does not determine that the claim will be paid in full, the allowance of preference merely establishing the class of claims with which the claim is to be grouped in the matter of the distribution of funds.
As a summary of all the preceding discussion, it may be well to express the conclusion that claimants have just and enforceable claims against the receiver. This brings us naturally to a discussion of the several groups into which the claims fall by reason of their facts.
Some of the stockholders gave notes to the bank. These notes were placed in assets of the bank the day before the bank closed its doors. Some of such notes are now in the hands of the receiver. These notes were placed in the bank's assets in specific violation of the conditions upon which they were given into the hands of the officers of the bank. The title of the bank to such notes was not good. The title of the receiver in such notes is no better than the bank's. It follows that claimants in this class are entitled to the return of their notes.
With a vigor entirely commendable the examiner in charge of the closed bank made efforts to collect the notes of the stockholders given as above stated. In some instances such efforts were successful. The receiver asserts that claimants, who with knowledge of the facts, paid their notes to the bank, may not now press their demands for a return of their money. As a legal proposition the *Page 1318
position of the receiver in this respect is true, but the record reveals such a situation in connection with such payments that we conclude the equities of the situation fairly sustain claimants in their position in pressing their claims. In connection with claims of this class it is noted that in the discharge of some of the notes an offset of deposits was allowed and only a balance paid by check or cash. In the final decree the deposits offset will be allowed as deposit claims upon which dividends in the percentages heretofore paid on deposit claims will be paid by the receiver upon the entry of decree. As to the cash by such claimants the decree will direct the receiver to repay the amount paid by the respective claimants without the allowance of interest from the time of payment. No question of the propriety of the repayment of such amounts in full can arise in view of the fact that payment was made to the receiver.
Certain claimants paid cash to the officers of the bank. Such cash was placed in the assets of the bank on June 13, the day before the bank closed. The record reveals that a substantial sum of cash was in the vault at the time the receiver took possession of the bank. It is of course presumed that the trust cash was preserved in this cash balance. The decree will provide for the allowance of claims of this kind as being entitled to preference in payment, but the decree will provide for the ultimate determination of the amount to be paid on such claims when it is finally determined what claims are entitled to participate in cash taken over by the receiver. In case the cash taken over by the receiver has heretofore been applied on other claims entitled to preference, such application will not be disturbed but will stand in view of delay in filing claims under consideration. In that event claims of this character will be established as general claims. In the event a portion of the cash taken over by the receiver remains as a result of proration to other preferred claims, such portion will be prorated among claimants, with standing of general claims as to any unsatisfied balance.
Claimants who delivered checks to the officers of the bank fall into three classes: (1) Those who gave checks on their accounts in the bank. (2) Those who gave checks on other Logan banks. (3) Those who gave checks on out of town banks.
So far as those who gave checks on their accounts in the bank are concerned, we have no difficulty in arriving at the conclusion that such claimants are entitled to have their claims allowed as *Page 1319
claims for deposits upon which the receiver will, upon the entry of decree, pay dividends in the percentages already paid on other deposit claims. As to these items the entries made prior to the appointment of the receiver are mere bookkeeping matters which cannot affect the rights of claimants who were, in truth, still depositors as to such amounts. Such book entries did not and could not affect the condition of the bank or change the assets taken over by the receiver.
On June 13, 1928, the check of claimant Fred Brauneisen in the sum of $143.81 was cleared with other checks drawn on Logan banks. In the process of such clearance the Farmers State Bank received $95 in cash. All of this check in excess of $95 has been dissipated, but $95 came into the bank on June 13, 1928. To this extent claimant has traced the proceeds of his check into the funds of the bank and it is presumed that in this amount the fund was preserved in the cash taken over by the receiver when the bank closed the following day. To the extent of $95 the claim is entitled to preference. As to the remainder this claim will be allowed as a general claim. To the extent that the claim is preferred it will share ratably with other claims entitled to participate in cash taken over by the receiver, subject to the conditions herein imposed on those who paid in cash.
The checks of claimants W.L. Yeaman and L.W. Logan were likewise cleared with the bank in Logan on which they were drawn on June 13, 1928. In this clearance process the Farmers State Bank paid to the other bank the sum of $75.97. The record thus shows the dissipation of these checks, in consequence of which such claims will be denied preference but will be allowed as general claims.
The checks drawn on out of town banks were remitted on June 13 to the Council Bluffs Savings Bank. Their total amount was $7,000. Upon the reconciliation of the account in that bank there was a final balance in favor of the Farmers State Bank of Logan of $5,135.80. The Council Bluffs Savings Bank held bills payable of the Farmers State Bank in the sum of $5,000 and rediscounts in the sum of $6,175. It held notes of the Farmers State Bank as collateral of the value of approximately $40,000. Ultimately these matters were adjusted and the collateral was returned to the receiver. In this situation it is obvious that the balance of $5,135.80 came into the possession of the receiver even though it was applied on the obligations of the Farmers State Bank. The claimants who *Page 1320
gave checks on out of town banks are ratably entitled to preference on their claims to the extent of $5,135.80, and in such amount the decree will provide for payment by the receiver without allowance of interest. The decree will provide for payment by the receiver in the view that to the extent of preference the proceeds of the checks have come into the possession of the receiver. As to the balance of such claims the same will be allowed as general claims.
The acts out of which these claims grow took place but a day before the bank closed. In this situation there will be no allowance of interest on any claims allowed, since the appointment of the receiver brings to an end the accumulation of interest.
A decree conforming to the findings above set forth will differ materially from the one entered by the trial court. Counsel for appellees will prepare a complete decree for entry in this court and serve such proposed decree upon counsel for appellant, who shall have 30 days in which to file objections thereto, without elaboration or argument, before the final entry of decree. As thus modified the decree of the trial court will be affirmed. — Modified and affirmed.
MITCHELL, C.J., and CLAUSSEN, EVANS, ANDERSON, DONEGAN, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429311/ | On December 26, 1929, the appellant filed a petition in the district court of Iowa in and for Pottawattamie county against Olaf Nelson, John J. Nugent, and six other men, alleging that they were a copartnership doing business under the name of the People's Store, and charging a conspiracy to libel and slander the appellant. This cause came to issue, a jury was impaneled, and trial was had, and at the conclusion of the appellant's case a motion for a directed verdict was interposed by the appellees. On September 24, 1931, while the court was considering the motion for a directed verdict, and before the court had rendered its decision upon the motion for a directed verdict, and no doubt anticipating what the court was about to do, the appellant dismissed said action without prejudice, and judgment for costs was entered against the appellant. On the 17th of March, 1932, the appellant filed in the office of the clerk of the district court of Iowa in and for Pottawattamie county a pleading which he designated "Petition — Continuation of Original Action", which pleading is entitled, "Lorenzo H. Bird, plaintiff, v. Olaf Nelson, John J. Nugent, et al., defendants", and is a continuation of the original action filed December 26, 1929, and dismissed by appellant without prejudice on September 24, 1931. The amended and substituted petition which was filed in the original action on September 4, 1930, is referred to and made a part of this pleading, or, at least, it is so alleged by the appellant. On the 8th day of June, 1932, the defendants (appellees herein) filed in the district court of Iowa in and for Pottawattamie county in the above entitled action a special appearance, which is as follows:
"Come now the defendants above named and each of them and appear specially for the sole and only purpose of attacking and questioning the jurisdiction of the court in this action for the following reasons and on the following grounds:
"That the action which plaintiff seeks to continue and which he has designated as a `continuation of original action' was in fact fully and completely dismissed by plaintiff without prejudice and at plaintiff's costs and that section 11017 of the 1931 Code of Iowa referred to by plaintiff in petition filed March 17th, 1932, *Page 264
contemplates a new action and that this action is not a new action but that plaintiff seeks to continue the original action after same has been fully and completely dismissed by plaintiff without prejudice and that the court has no jurisdiction of the subject matter or of the defendants in said so called `continuation of original action.'"
The special appearance was submitted to the court, and same was sustained and the action dismissed.
It is the claim of the appellant here that under section 11017, when a new action is brought within the required time, it shall for the purpose therein contemplated be held a continuation of the first, and the appellant claims that the pleading which was filed on March 17, 1932, was a new petition for the purpose of beginning a new action under said section 11017 of the 1931 Code.
Section 11017 of the 1931 Code is as follows: "If, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall, for the purposes herein contemplated, be held a continuation of the first."
Clearly, the action which is to be brought within the six-month period as provided for in section 11017 of the 1931 Code of Iowa is a new action, and, after the appellant had dismissed his original action without prejudice and the judgment had been entered against him, the mere filing by him of a petition entitled "Petition — Continuation of Original Action" is not a new action such as contemplated and provided for in said section, and his original action is not revived.
Code, section 11055, provides that an action in a court of record is commenced by the service on the defendants of a proper and legal original notice of the pendency of such action, or by the defendants appearing personally or by attorney other than specially, and the mere filing of a petition without service of such original notice or the general appearance of the defendants does not constitute the commencement of an action. This is so well known by the bar that we will not take up space in the reporter or the time of the bar in citing cases. In the case at bar no original notice was ever served. The appellant does not claim that any was served or any attempt made to serve one. The appellees did not appear generally, but appeared specially for the sole and only purpose of attacking *Page 265
the jurisdiction of the court. Section 11017 provides, in substance, that, if for any reason not due to negligence the plaintiff shall dismiss a case, a new action brought within six months thereafter shall be deemed a continuation of the former case. This section of the Code appears in the chapter on "Limitations of Actions", and by it the legislature intended to extend the period of limitation under conditions therein provided. But the statute requires the commencement of a new action, not the filing of a petition in the old action. The first action was ended by dismissal, and judgment for costs entered. The term at which the dismissal was entered had closed, and other terms had been held and closed. A new action was not begun, but it is sought by this procedure to bring to life an old one. The statute of limitations against the original action had run. There was only one method by which the time could be extended, and that is by the commencement of a new action within the time prescribed and by the proper service of original notice as provided by the Code. This was not done.
The lower court was right in sustaining the Special appearance and in dismissing the action, and the judgment of the lower court must be, and it is hereby affirmed.
KINDIG, C.J., and STEVENS, ANDERSON, and KINTZINGER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429312/ | This action is based upon a conspiracy. The appeal can be disposed of by an examination of the facts for the purpose of ascertaining whether anything was done pursuant to the *Page 998
alleged conspiracy which is actionable. This court is committed to the rule that a conspiracy cannot be the subject of a civil action unless something is done pursuant to it which, without the conspiracy, would give a right of action. Beechley v. Mulville,102 Iowa 602, 70 N.W. 107, 71 N.W. 428, 63 Am. St. Rep. 479; De Wulf v. Dix, 110 Iowa 553, 81 N.W. 779; Jayne v. Drorbaugh,63 Iowa 711, 17 N.W. 433; Dunshee v. Standard Oil Co., 152 Iowa 618, 132 N.W. 371, 36 L.R.A. (N.S.) 263.
The Maryland Casualty Company is an insurance company authorized to do business in the state of Iowa. On July 1, 1925, it entered into a contract with Olmsted Olmsted, Inc., by which the latter became its general agent in approximately thirty-five counties in the state of Iowa. On October 14, 1925, this contract was assigned by Olmsted Olmsted, Inc., to Olmsted Incorporated, plaintiff herein. The contract provided that it could be terminated by either party upon thirty days' notice in writing to the other. Subsequent to the date of the contract between the casualty company and Olmsted Olmsted, Inc., the Olmsted Company greatly enlarged the number of local agents affiliated with it. This expansion was accomplished only as a result of considerable effort and expense. The insurance business of Olmsted Olmsted, Inc., and its assignee Olmsted, Incorporated, was not confined to the business of the casualty company. On September 23, 1929, a notice was prepared by the casualty company of the termination of the contract as of the date of October 31, 1929, and this notice was given to Olmsted, Incorporated, as required by the contract. Upon the termination of the contract, the casualty company opened a branch agency in Des Moines in charge of the defendant Buckton as its agency manager. Upon the termination of the contract between the casualty company and Olmsted, Incorporated, the casualty company entered into subagency contracts with local insurance agents in many cities and towns under which such local agents were authorized to represent the casualty company in securing and writing insurance. In the course of building up its subagency force, a large number of contracts were entered into with local agents who had been and were under contract with Olmsted, Incorporated.
With this brief statement of facts it may perhaps be well to briefly state the claims of Olmsted, Incorporated, presented by the pleadings. Olmsted, Incorporated, alleged that the casualty company and Buckton entered into a conspiracy to secretly organize and *Page 999
open a branch office of the casualty company in the city of Des Moines; to surreptitiously ingratiate themselves with the subagents of Olmsted, Incorporated; to covertly alienate such subagents from Olmsted, Incorporated; and to then cancel the contract between the casualty company and Olmsted, Incorporated. It is pleaded that the casualty company had orally agreed with plaintiff, prior to July, 1929, to place a special agent in the territory of Olmsted, Incorporated, for the purpose of developing said territory for the mutual benefit of the company and the general agent; that, subsequent to the formation of the conspiracy and under the guise that he was the special agent, above referred to, Buckton was sent to the general agent; and that, in the belief that Buckton was such special agent, plaintiff disclosed to Buckton its secret and confidential agency lists and files, arranged convenient routes by which Buckton might visit the subagents and wrote letters to its subagents advising them that Buckton would call upon them shortly for the purpose of assisting them and plaintiff, as well as the defendant casualty company; that on the 1st day of November, 1929, the casualty company opened a branch office in Des Moines with Buckton as branch manager; that before and after opening such office, by means of the confidential information so given and the favorable introduction of Buckton by plaintiff and by the use of blandishments and false and defamatory statements concerning plaintiff, Buckton alienated a large number of plaintiff's subagents and induced them to enter into contracts with the branch office of the casualty company. It was also claimed that premiums on renewals of insurance were diverted from plaintiff. These allegations were denied by the defendants.
The evidence indicates that Olmsted, Incorporated, was quite energetic in the extension of its agency force, that during the years it represented the casualty company it very materially increased the volume of business which the casualty company drew from the territory of such general agency, and that the increase in volume of business compared very favorably with the volume of increase of any other general agent of the casualty company. The officers in charge of the production department of the casualty company wrote flattering and commendatory letters to the general agent. There were some matters which occasioned friction and dissatisfaction between the company and the general agent. These were occasioned by the overlapping of subagencies of Olmsted, Incorporated, in territory *Page 1000
within the state of Iowa assigned to other general agents of the casualty company, the representation by Olmsted, Incorporated, of other companies writing lines of insurance that were written by the casualty company, the execution of policies by the general agent in excess of its authority, and disputes in relation to the accounts of the general agent with the casualty company. With the merits of these matters we are not concerned, for the agency contract was not canceled on account of any claim that its terms and conditions had been breached. It fairly appears from the record that officers of the casualty company promised to send a special agent into the territory of the general agent for the purpose of aiding in the development of the business. There is, however, no provision in the contract between the parties for the services of such special agent. In the latter part of July, 1929, Buckton, who had been recently employed by the casualty company, was sent to Des Moines. He went as a special agent of the casualty company. It will be understood of course, that the term "special agent" has no defined significance. He was instructed to make a survey of the general agency situation in Des Moines and to await the arrival in Des Moines of a Mr. Irelan, who was supervisor of agents and assistant secretary of the company. While awaiting the arrival of Mr. Irelan, Buckton made a survey of the general agency situation in Des Moines, which the record indicates consisted of interviewing the general agents of other insurance companies and ascertaining, so far as possible, the volume of business transacted by them. In some instances Buckton inquired of other general agents whether they would be interested in representing another company. Buckton arrived in Des Moines a few days ahead of Irelan. The first day after Irelan's arrival was spent by Irelan and Buckton in going over the results of Buckton's survey of the general agency situation in Des Moines. On the second day Irelan and Buckton went to the offices of Olmsted, Incorporated, where Mr. Buckton was introduced by Mr. Irelan. Nothing was said about the fact that Buckton had been in the city for several days, and plaintiff's officers undoubtedly inferred that Irelan and Buckton had just arrived in the city. The witnesses do not agree as to what transpired in the offices of Olmsted, Incorporated, but the version of plaintiff's witnesses is that Buckton was introduced as the special agent that the casualty company had agreed to put in the territory; that plaintiff had a complete list of its subagents showing the name, address, volume of production and other information concerning *Page 1001
such subagents; that this was a confidential list kept by one of plaintiff's executives; that this confidential list was handed to Buckton, who made use of it for several days and who took from it such information as he desired; that plaintiff's officers wrote letters to its subagents advising them that Mr. Buckton would call upon them for the purpose of developing business; and that plaintiff's officers assisted Buckton in arranging convenient routes for visiting the subagents. These things were not asked for by Irelan or Buckton. They appear to have been voluntarily and willingly furnished by plaintiff's officers. In the last analysis, plaintiff's case is bottomed on the theory that the failure of Irelan and Buckton to tell plaintiff's officers of the fact that a survey of the general agency situation had been made, and a survey of the state situation was contemplated, coupled with their acceptance and use of the agency list, etc., are indications of a sinister purpose, and, in connection with the ultimate cancellation of the subagency contract and the employment of subagents by the casualty company warrant the finding that a conspiracy existed as a result of which such things were done. It appears without dispute that Buckton did visit some subagents. Buckton was in Iowa until about the first of September, 1929; he then returned to the home office of the casualty company and made a complete report of his survey of the Iowa situation to his superior officers. Ultimately the casualty company determined upon the termination of the agency contract, and on September 23, 1929, notice of termination of the contract was prepared and was given in due time as required by the contract, terminating the contract as of October 31, 1929. It was determined that a branch agency should be opened by the casualty company in Des Moines, and, as has been noted, such branch agency was opened under the charge of Mr. Buckton on November 1, 1929.
Under the law, persons engaged in writing insurance must be authorized to do so by the commissioner of insurance. Such authorization is obtained by the company for which business is written. The casualty company had obtained such authorization for all subagents of Olmsted, Incorporated, who were writing business for the casualty company, and the files of the casualty company disclosed the names of such subagents. When the company's branch office was opened, letters were written by the company to such subagents notifying them of the termination of the general agency contract of Olmsted, Incorporated, and of the opening of the branch office of *Page 1002
the company, and such subagents were offered an opportunity to continue to write business for the casualty company, and a contract for that purpose appears to have been forwarded with the letters. It does not appear that any letters were written by the casualty company to any agents of plaintiff who were not licensed through the casualty company. Subsequently, representatives of the casualty company traveled throughout the state in search of local agents and procured many local agents. By these means many of the subagents of Olmsted, Incorporated, entered into subagency contracts with the casualty company, but none of such subagency contracts were exclusive in the sense that they required the termination of relations between such subagent and Olmsted, Incorporated, or interfered with a subagent representing such other insurance companies as he saw fit. We have very carefully examined the record, embracing over six hundred pages, to determine whether, either prior or subsequent to the cancellation of the agency contract between the casualty company and Olmsted, Incorporated, anything was said or written by Buckton or by any officer of the casualty company to any subagent of Olmsted, Incorporated, derogatory to Olmsted, Incorporated, or which could be construed as a covetous effort to alienate subagents from Olmsted, Incorporated. Many of the subagents were witnesses upon the trial of the case. The representatives of the casualty company who solicited and obtained subagency contracts testified to what was said and done. The record is devoid of mention of defamatory statements concerning Olmsted, Incorporated. The record is conclusive that such subagents were obtained only upon the statement that the contract between the casualty company and Olmsted, Incorporated, had been terminated and representations in relation to the character of the casualty company and the class of service rendered by it. Many of the agents had written business for the casualty company for many years prior to the contract by which Olmsted, Incorporated, became general agents. Many of such agents desired to retain their connections with the casualty company.
If it be conceded that a conspiracy existed between Buckton and the casualty company or its officers, plaintiff could not recover under the record, because the casualty company had a perfect right to cancel the agency contract, as well as to secure the services of subagents in the manner employed by it as disclosed by the record. See cases cited above. *Page 1003
A conspiracy is not established by the record. There is no direct evidence that such a conspiracy was formed. A conspiracy cannot be inferred from the record, because nothing was done by the alleged conspirators which was unlawful. The casualty company had the absolute right to end the contract. After the termination of the general agency contract, the casualty company had a perfect right to secure a subagency force by the means which it used.
It was undoubtedly the casualty company's right to survey the general agency situation in Des Moines and the situation in the territory in which Olmsted, Incorporated, was its general agent. It had a perfect right to do this without advising Olmsted, Incorporated, that the survey was in progress. In fact a survey of the situation would seem to be essential to the general development of the casualty company's business in the territory unless the special agent was intended to be no more than a roving soliciting agent. The record is largely silent concerning the character of the work which the special agent contemplated by Olmsted, Incorporated, was to perform. The record is likewise largely silent concerning what Buckton did in the territory. It is in evidence that he did not send in a single application for insurance, and it is also in evidence that the business of the territory was not increased during the period of time that he was in the field. No subagent testified that anything derogatory to plaintiff was said by Buckton. One agent testified that Buckton told him that he, Buckton, might soon have some good news for the agent, but that Buckton never told him what the news was. Another agent testified that Buckton told him the Olmsted contract had been canceled, but an examination of the whole record indicates conclusively that this conversation took place after the branch agency had been opened and the Olmsted contract had been terminated. In this situation there is no basis from which it can be found that Buckton was not performing the work of the special agent, notwithstanding the fact that at the same time he was making a general survey of the whole situation. It may be that as a matter of courtesy and fairness Olmsted, Incorporated, should have been informed that one of the things which Buckton was to do was to make a general survey of the situation in the territory. But this was not a matter of legal right. The officers of the casualty company had expressed their gratification for the increase in volume of business originating in the general agent's territory, but they had likewise expressed in no uncertain *Page 1004
terms their disapproval of conduct of the general agent inconsistent with the contract. The action of the officers of the casualty company which resulted in the assignment of Buckton to the Iowa territory and ultimately in the termination of the general agency contract appears in evidence. There is no circumstance in such conduct tending even remotely to establish the conspiracy charged. This, of course, would not conclusively establish that a conspiracy did not exist. Its existence might be inferred from other circumstances, but it cannot be inferred from the fact alone that at the time Mr. Buckton came to Iowa it was not disclosed to Olmsted, Incorporated, that a survey of its territory was contemplated and would be made by Mr. Buckton. Neither can it be inferred from the fact that the agency contract was subsequently terminated, and thereupon the casualty company built up its own subagency force. The casualty company had a right to do these things, and plaintiff could not cut off such rights by voluntarily furnishing its list of agents to Buckton or by extending courtesies to him. When Buckton was sent to Iowa, Irelan gave him a letter to an acquaintance of his in Des Moines, one M.L. Dudley, who had been general agent in Des Moines for a number of insurance companies, in which Irelan stated that Buckton's first assignment was to make a complete survey of the city of Des Moines. Dudley testified that, when Buckton presented the letter from Irelan, he stated that he had come to build up a new agency and expected to make some changes, and that they were going to open an agency in Des Moines. Buckton as a witness denied having made such statements, but that is of no particular significance. Dudley immediately wrote to Irelan applying for a position as manager of a branch office for Iowa. Soon afterwards Dudley gave plaintiff's officers a copy of Irelan's letter, and the matter was then discussed by plaintiff's officers with Buckton, who stated that it was true that he was sending in reports to the home office; that he was in Iowa to help plaintiff build up its business; that the reports sent in were favorable to plaintiff; and that he felt that plaintiff was the best representative the casualty company could have and that the general agency plan was the best plan for the casualty company to follow. It is not shown by the record that any of such statements made by Buckton were not true. In this discussion Buckton denied having talked of a branch office with Dudley, and the record presents the situation in which Dudley affirms and Buckton denies that the matter was discussed. *Page 1005
The casualty company is a large corporation. Buckton did not control its policies. While Irelan was an officer of the company and supervisor of agents, he did not control the matter of canceling the agency contract of Olmsted, Incorporated. Such matters were determined by other officers of the casualty company. Such officers determined upon the cancellation of the Olmsted contract in September of the year 1929. The record does not indicate what factors were decisive of that issue with such officers. It would be purely a matter of speculation to suggest that the conclusion was based on the things that were a source of friction between the company and the general agent, but it would be equally a matter of speculation to say that a conspiracy existed between Buckton and the company or any of its officers as a result of which the matter was thus concluded. The testimony was wholly insufficient to warrant the submission of the existence of the conspiracy to the jury.
The allegations of the petition in relation to the defamation of plaintiff find no support whatever in the record, and the same is true of the claim that plaintiff's agency force was pirated by the casualty company and renewal premiums wrongfully collected by it.
At the close of plaintiff's case and again at the close of all the evidence, motions for a directed verdict were made by the defendants. The motions were overruled. They should have been sustained.
Many other errors are assigned that are in effect disposed of by the foregoing discussion. The judgment of the trial court is reversed. — Reversed.
STEVENS, KINDIG, ANDERSON, KINTZINGER and DONEGAN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429313/ | The former opinion in this case was filed under date October 15, 1929 (226 N.W. 922). On account of an erroneous statement of the record which has been corrected in this opinion, the former opinion is withdrawn and this opinion substituted in its place.
Appellants are husband and wife, and Orville Case, plaintiff's husband, is their son. Many alleged erroneous rulings of the court are assigned as grounds for reversal, but we deem it expedient to discuss a few of them only. Appellants moved for a directed verdict in their favor, upon the ground, among others, that the evidence was insufficient to carry the case to the jury. This contention was later urged in a motion for a new trial. In view of the conclusion reached upon another branch of the case, we shall not discuss this issue.
Many exceptions were preserved to the court's instructions. An examination of the charge discloses no reversible error upon the present record therein, and we deem it unnecessary to discuss *Page 1215
the exceptions in detail. Appellants also contend that error was committed by the court in its refusal to give certain requested instructions. None of the requested instructions in their entirety correctly state the law. Each requested instruction contained statements that might, perhaps, be best described as commentaries upon the duty of the jury. They are argumentative in form and substance rather than correct statements of the law applicable to the case. The court did not err in refusing to give the requested instructions. With these general statements we pass to what we deem the controlling questions in the case.
All of the parties reside in Ringgold County. Appellee and Orville were married May 3, 1922, and in May, 1926, appellee went to South Dakota on what appears to have been a visit. The day after her arrival she was served with an original notice of an action against her for divorce and also for an injunction restraining her from going upon the premises where her husband resided.
The principal bone of contention between the parties appears to have been a son born to appellee and Orville December 21, 1923. When appellee returned from South Dakota to Ringgold county, she sought to visit her son, who was living at the home of appellants, where her husband also resided. She was denied permission to visit the child, and in September obtained an order of court in the divorce action for the immediate custody thereof. Armed with this court order, she went with a deputy sheriff to the home of appellants and demanded the baby. After a somewhat angry scene and much discussion, appellee was denied admission to the house. The deputy sheriff went in, and, after the lapse of some time, Orville went to a nearby village, filed an information before a justice of the peace charging appellee and her mother, who accompanied her, with the use of obscene language and with disturbing the peace. The marshal came immediately to appellant's home and arrested the parties charged, took them to town, and, after a bond was executed, they were released.
Appellee in due time filed a cross-petition in the divorce action, in which she charged her husband with inhuman treatment, and on that ground asked for a divorce. Thereafter judgment in the sum of $500 for temporary alimony was entered in her favor on the cross-petition. This judgment has not been *Page 1216
paid. Both the petition and cross-petition in the divorce action were later dismissed.
[1] Upon the trial of the alienation suit, the court permitted appellants to introduce the cross-petition in the divorce action in evidence. This was without objection on the part of the appellee.
The appellee, over due and timely objection, was permitted to prove by the oral evidence of the plaintiff that in the divorce action the appellee obtained a judgment against her husband for $500 temporary alimony and attorney fees, and that the same was never paid. Appellee was also permitted to introduce the original notice served upon her in South Dakota in the divorce action, the informations filed by her husband against her and her mother, the verdict of the jury therein, and the entries upon the docket of the justice of the peace in evidence.
It should be stated in this connection, as necessary to a full understanding of what follows, that the first information filed by the husband was dismissed and a second filed. Both were dismissed as to appellee and the case tried only against her mother. The trial, which was to a jury, resulted in a disagreement. Appellants predicate error upon the rulings of the court admitting the foregoing documents in evidence. We shall discuss them together.
It must be remembered that the present action is by the wife against the parents of the husband to recover damages for the alienation of his affections by them. The cross-petition, which charged the plaintiff in the divorce action with inhuman treatment, was, upon familiar grounds, clearly admissible. The claim of appellee is that evidence of the judgment for temporary alimony is admissible upon two theories, one that it is in some way responsive to the matters pleaded in the cross-petition, and the other that it is a part of the res gestae. The cross-petition filed in the divorce action tended to show the state of mind of appellee toward her husband, and, to some extent at least, the causes therefor. The fact that she subsequently obtained a judgment against him for temporary alimony tended in no particular to show the relationship between her and appellants, the state of their minds, or anything else material in the case, nor was it responsive to the allegations of the cross-petition.
It is claimed by appellee, and testimony was introduced *Page 1217
tending to so show, that appellants were active in favor of their son in the commencement and prosecution of the divorce action, but the judgment for temporary alimony was but an incident in that proceeding, tending neither to prove nor disprove any of the issues tendered by appellee in the present action.
[2] Statements or circumstances which are explanatory of the main fact in a case are often admissible in evidence as a part of the res gestae. The term, however, as used in this connection, is general and indefinite, and much latitude must be left to the trial court. Encyc. of Evidence, vol. 11, p. 372; Greenleaf on Evidence (16th Ed.) Sec. 108; Reeves Co. v. Younglove, 164 Iowa 151; Duke v. Graham, 163 Iowa 272; Vernon v. Traveling Men's Ass'n, 158 Iowa 597; Dahl v. Hansen, 152 Iowa 555; State v. Broadwater, 75 Mont. 350, 243 P. 587.
The judgment for temporary alimony was wholly remote from any of the matters involved in this action, and evidence thereof is not at all necessary to a clear and perfect understanding of the transactions properly admitted in evidence. There is no controversy in this case between appellee and her husband, and no explanation of what occurred in the divorce action is here material.
[3] If appellants were responsible for, or participated in, the prosecutions instituted by Orville against appellee, this fact might tend to show the state of their minds and feelings toward her. Neither the entries upon the docket of the justice of the peace nor the verdict of the jury could have that effect. They were, we think, inadmissible, but, as to whether prejudicial or not, we express no opinion. The original notice of the commencement of the divorce action served upon appellee and the informations filed by Orville if proper foundation be laid therefor, are, we think, clearly admissible. It is suggested by counsel in argument that the admission of the judgment for temporary alimony could not have been prejudicial to appellants. This may, or may not, be true. Plausible arguments may be advanced on both sides of the question. The court cannot say, as a matter of law, that it was not prejudicial. As the admission of the evidence was erroneous, prejudice is presumed. It was clearly no part of the res gestae, nor explanatory of any material fact or circumstance in the case, and we perceive no theory upon which it was admissible. In view of the conclusion reached at this point and of a *Page 1218
possible retrial of the case, we refrain from discussing any of the other matters raised by counsel. None of them present grounds for reversal, and may easily be avoided upon a retrial. For the reasons stated, the judgment is reversed. — Reversed.
FAVILLE, C.J., KINDIG, GRIMM, EVANS, WAGNER, De GRAFF, and MORLING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3429315/ | Defendant was charged with a misdemeanor, to wit, intoxication, under an ordinance of the City of Des Moines known as ordinance No. 349, section 714, which ordinance imposes a fine or penalty. The defense was that although the said ordinance was duly passed by the city council of Des Moines, Iowa, on or about the 10th of May, 1886, and has remained in its present form since said date, it was never published in any newspaper of general circulation in the City of Des Moines as required by section 5720 of the 1939 Code. It is conceded that the City of Des Moines, in the year 1932 caused its ordinances, including ordinance No. 349, section 714, to be published in book form, and said book has been more or less widely distributed throughout the City of Des Moines, Iowa, and has been in general use by attorneys and others since the year 1932. The municipal court found the defendant guilty and she appealed to the district court of Polk county, which reversed the decision and freed the defendant. The City of Des Moines has appealed.
The sole issue in this case involves the interpretation of the last sentence of section 5721 of the 1939 Code of Iowa and its relation to section 5720 thereof.
Section 5720, 1939 Code, is as follows:
"5720. Publication. All ordinances of a general or permanent nature, and those imposing any fine, penalty, or forfeiture, *Page 346
shall be published in some newspaper published and of general circulation in the city or town; but if there be no such newspaper, such ordinances may be published in a newspaper designated by the council and having a general circulation in such city or town, or by posting copies thereof in three public places therein, one of which shall be at the mayor's office. When the ordinance is published in a newspaper it shall take effect from and after its publication; when published by posting, it shall take effect ten days thereafter. It shall be a sufficient defense to any suit or prosecution for such fine, penalty, or forfeiture, to show that no such publication was made."
Section 5721, 1939 Code, is as follows:
"5721 Book form. When any city or town shall cause or has heretofore caused its ordinances to be published in book or pamphlet form, such book or pamphlet shall be received as evidence of the passage and legal publication of such ordinances, as of the dates mentioned or provided for therein, in all courts and places, without further proof. When the ordinances are so published, it shall not be necessary to publish them in the manner provided for in section 5720."
In the case of Barrett v. C.M. St. P. Ry. Co., 190 Iowa 509, 175 N.W. 950, 180 N.W. 670, the court held that the publication of ordinances in book or pamphlet form was prima facie proof of the ordinance and that the contention of the appellant that the ordinance was unsigned, unauthenticated and unpublished must be proven. In this case the supreme court indicated that the defects in the ordinances and in their enactment are not cured by publication in book or pamphlet form in accordance with section 5721. The court quoted section 687 of the Code of 1897, now section 5721 of the 1939 Code of Iowa, and, at page 516 of 190 Iowa, at page 953 of 175 N.W., said:
"The dates appearing, the ordinances are presumed to have been properly adopted and published, as exacted in the section preceding that quoted. Their inclusion in such a book is sufficient authentication, and therefrom it is to be presumed that they had been legally adopted. * * * The statute quoted does not contemplate the re-enactment or the republication of the *Page 347
ordinances, but merely their compilation, for convenient use and to simplify the method of their proof. * * * Defects in the ordinances or in their enactment are not thereby cured. That which may be essential to adoption, — the recording of the vote and of the ordinance, the signatures of the officers, publication, and the like (Section 680 et seq. of the Code), — is not a part of the ordinances, but relates to their passage and authentication. All the objections urged by the appellant may be sound, but none were proven; and therefore the prima-facie proof of the ordinance, made out by introducing the `Revised Ordinances of 1898,' and the date of the passage of Ordinance No. 14, was not overcome, and it was rightly received in evidence."
In the case of City of Des Moines v. Miller, 219 Iowa 632, 635, 259 N.W. 205, 207, the court said:
"If the legislature had intended that a publication in pamphlet form of the general proceedings of a city council, in which an ordinance might appear, would be a sufficient publication of such ordinance, it could, and we think it would, have used language to indicate that intention. The use of the plural, `ordinances,' throughout the whole of section 5721, was not, in our opinion, without some purpose, and it seems quite apparent that such purpose was to limit the application of the statute to a book or pamphlet in which the ordinances of the city were collected and published."
The court concluded its opinion by saying, 219 Iowa, at page 637, 259 N.W., at page 207:
"As the ordinance here involved was not published in a newspaper; as the book or pamphlet in which the ordinances of the city of Des Moines for the fiscal year ending March 31, 1934, was not published until after the offenses charged had been committed; and because we hold that the publication of the ordinance in question among the proceedings of the city council for the month of November was not such a publication as is contemplated by section 5721 of the Code; we are constrained to hold that the ordinance under which it was attempted to prosecute the appellant was not in effect at the times when he is alleged to have violated its provisions."
Neither of these cases raises squarely the question involved *Page 348
in this case. By the language of the decision in the case of Barrett v. C.M. St. P. Ry. Co., supra, it is indicated that one of the purposes of section 5721 is to provide a means of establishing a prima facie evidence of an ordinance. The court did not pass upon the question of whether or not the publication in book or pamphlet form was a substitution for a publication in a newspaper or by posting. In the Miller case, at page 638, the court said that the apparent purpose of section 5721 was to limit the application of the statute to a book or pamphlet in which the ordinances of the city were collected and published.
It will be noted that section 5720 designates certain methods of publication shall be made to effectuate an ordinance. The first portion of section 5721 provides for the method by which the city or town may provide a simple and feasible means of proof of their ordinances. In the last sentence of this section the legislature has made an exception to section 5720 and provided further that when the ordinances are published in the book or pamphlet form it shall not be necessary to publish the ordinances in the manner provided in section 5720.
There is no occasion for resorting to rules of statutory construction to determine the intent of the legislature. There is no ambiguity in the last sentence of section 5721 and no conflict between that sentence and any other provision of either section 5720 or section 5721. The legislature says in plain English that when published in book or pamphlet form it shall not be necessary to publish them as provided in section 5720. No statement could be clearer than that. The only possible room for doubt is as to what the legislature meant thereby and determining what they had in mind when they said "so published" and "to publish them". This is quite clear to us when we look at the entire section and see that the only other sentence authorizes a publication in book or pamphlet form, "so published" can only refer to "book or pamphlet form". In other words the legislature could have had no other meaning than when the ordinances are published in book or pamphlet form it shall not be necessary to publish the ordinances in the manner provided for in section 5720.
To comply with section 5721, the ordinances must be published in book or pamphlet form. Simply to print is not sufficient, *Page 349
to publish means to put in general circulation. Under this record the ordinances were printed in book form in 1932, and were widely distributed throughout the City of Des Moines, and have been in general use by attorneys and others since 1932. It necessarily follows that the lower court erred in its finding, however as this is a criminal appeal, the reversal of this case does not affect the defendant. — Reversed.
CHIEF JUSTICE and all JUSTICES concur. | 01-03-2023 | 07-05-2016 |