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https://www.courtlistener.com/api/rest/v3/opinions/4033496/

[Cite as Helms v. Furman, 2016-Ohio-5810.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) JOEL A. HELMS C.A. No. 27999 Appellant v. APPEAL FROM JUDGMENT ENTERED IN THE DESTINY M. FURMAN, et al. BARBERTON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellees CASE No. CVG 1401240 DECISION AND JOURNAL ENTRY Dated: September 14, 2016 MOORE, Presiding Judge. {¶1} Plaintiff-Appellant Joel A. Helms appeals from the judgment of the Barberton Municipal Court. We affirm. I. {¶2} In July 2014, Mr. Helms, appearing pro se, filed an eviction action against Defendants Destiny Furman, Jamie Blake, and April Wilbanks (collectively “Defendants”). In the four-count complaint, Mr. Helms sought to regain possession of an apartment (count one), recover unpaid rent (count two), and recover expenses related to false claims that the Defendants allegedly made against him (counts three and four). {¶3} A writ of restitution was issued in October 2014. The matter proceeded to a trial before a magistrate on May 22, 2015. Mr. Helms appeared pro se, but the Defendants did not appear. The magistrate issued a decision finding that the Defendants were liable for past due rent, late fees, and repairs and recommended a judgment in favor of Mr. Helms in the amount of 2 $1167.00 plus interest. Additionally, the magistrate found that Mr. Helms failed to establish by a preponderance of the evidence his claim that the Defendants falsely accused him of a crime, and that even if he had met his burden of proof, his damages were speculative. {¶4} Mr. Helms filed objections to the magistrate’s decision asserting that, because the Defendants did not answer the complaint or appear at the hearing, Mr. Helms did not have a duty to present evidence. He also maintained that his damages were not speculative. Mr. Helms did not file a transcript along with his objections. The trial court overruled Mr. Helms’ objections to the magistrate’s decision, concluding that Mr. Helms could not object to any findings of fact, as he failed to file a transcript of the trial. Further, the trial court noted that Mr. Helms did have the burden of proving his claims and damages. Ultimately, the trial court approved and adopted the magistrate’s decision and entered judgment for Mr. Helms in the amount of $1,167.00 plus interest. {¶5} Mr. Helms appealed the judgment. This Court dismissed the attempted appeal concluding that it lacked jurisdiction over it because the trial court failed to enter judgment on counts three and four of the complaint and did not include Civ.R 54(B) language in its entry. Helms v. Furman, 9th Dist. Summit No. 27892 (Sept. 1, 2015). {¶6} Upon remand, the trial court issued an amended judgment entry stating that “[t]here is no just reason for delay in the filing of this journal entry and allowing an immediate appeal pursuant to [] Civ.R. 54(B), and any remaining claims by either party are moot.” Mr. Helms again appealed, pro se, raising two assignments of error for our review. II. {¶7} At the outset, we note that Mr. Helms appeared pro se in the trial court and on appeal. With respect to pro se litigants, this Court has noted that 3 [P]ro se litigants should be granted reasonable leeway such that their motions and pleadings should be liberally construed so as to decide the issues on the merits, as opposed to technicalities. However, a pro se litigant is presumed to have knowledge of the law and correct legal procedures so that he remains subject to the same rules and procedures to which represented litigants are bound. He is not given greater rights than represented parties, and must bear the consequences of his mistakes. This Court, therefore, must hold [a pro se appellant] to the same standard as any represented party. {¶8} State v. Wheeler, 9th Dist. Medina No. 13CA0051-M, 2016-Ohio-245, ¶ 3, quoting State v. Taylor, 9th Dist. Lorain No. 14CA010549, 2014-Ohio-5738, ¶ 5, quoting Sherlock v. Myers, 9th Dist. Summit No. 22071, 2004-Ohio-5178, ¶ 3. With this in mind, we turn to Mr. Helms’ assignments of error. ASSIGNMENT OF ERROR I JUDGE WAS INCORRECT TO DISMISS COUNT FOUR WITH DEFENDANTS FAILING TO ANSWER OR DEFEND[.] ASSIGNMENT OF ERROR II THE COURT HAS A RESPON[S]IBILITY TO REI[M]BURSE SU[B]P[O]ENA FEES EXTENDED[.] {¶9} Mr. Helms’ argument is difficult to follow. It appears that he asserts that the trial court erred in failing to find in his favor on counts three and four of his complaint. Specifically, it seems that Mr. Helms again challenges the magistrate’s findings that were subsequently adopted by the trial court. {¶10} This Court previously concluded that the trial court failed to enter judgment with respect to counts three and four. Upon remand, the trial court ultimately concluded that any and all outstanding claims were moot. Accordingly, the trial court found counts three and four to be moot. {¶11} Mr. Helms has not challenged this determination on appeal. Instead, he seems to challenge the magistrate’s findings that Mr. Helms failed to meet his burden and that the 4 expenses he sought as damages in count four were speculative. If the claims did become moot as the trial court determined, then the trial court could not enter judgment in Mr. Helms’ favor on counts three and four irrespective of whether the magistrate’s findings were erroneous. See Dattilio v. Brittingham, 9th Dist. Summit No. 26101, 2012-Ohio-2889, ¶ 5. Thus, Mr. Helms’ arguments on appeal would be irrelevant if the claims were moot as the trial court found. See In re A.Z., 4th Dist. Meigs No. 11CA3, 2011-Ohio-6739, ¶ 18 (“Because the [Appellants’] arguments are irrelevant, we find no merit in the[ir] appeal.”). As Mr. Helms has not argued that the trial court erred in finding counts three and four moot, and it is not this Court’s duty to create an argument on his behalf, Mr. Helms has failed to affirmatively demonstrate that the trial court committed reversible error. See id.; see also Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) (“If an argument exists that can support this assignment of error, it is not this court’s duty to root it out.”). {¶12} Mr. Helms’ assignments of error are overruled. III. {¶13} The judgment of the Barberton Municipal Court is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Barberton Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. 5 Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. CARLA MOORE FOR THE COURT HENSAL, J. SCHAFER, J. CONCUR. APPEARANCES: JOEL A. HELMS, pro se, Appellant. DESTINY FURMAN, JAMIE BLAKE, and APRIL WILBANKS, Appellees.

01-03-2023

09-14-2016

https://www.courtlistener.com/api/rest/v3/opinions/4033497/

[Cite as Barnick v. Barnick, 2016-Ohio-5808.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) LENORE A. BARNICK C.A. No. 28058 Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE WILLIAM BARNICK, JR. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. 1997-06-1492 DECISION AND JOURNAL ENTRY Dated: September 14, 2016 MOORE, Presiding Judge. {¶1} Defendant-Appellant William Barnick appeals from the decision of the Summit County Court of Common Pleas, Domestic Relations Division. We affirm. I. {¶2} After 24 years of marriage, Mr. and Ms. Barnick were granted a divorce on June 22, 2001. The parties had two children born of the marriage, one who was emancipated at the time of the divorce. At the time of the final hearing, Mr. Barnick was unemployed and was receiving $1,400 per month in unemployment compensation. The trial court found Mr. Barnick voluntarily unemployed. It concluded that if Mr. Barnick had been fully employed, he would have had probable earnings of $72,500 per year and imputed the same income for purposes of calculating child support. Mr. Barnick was ordered to pay $726.25 per month in child support and $80 per month in spousal support. However, at the time the parties’ son became emancipated, Mr. Barnick’s spousal support obligation would increase to $1,125 per month. The 2 decree provided that the award would be modifiable upon a showing of a change of circumstances by either party. {¶3} Mr. Barnick appealed the awards of spousal and child support. Barnick v. Barnick, 9th Dist. Summit No. 20666, 2002 WL 388906, *1 (Mar. 13, 2002). This Court affirmed the trial court’s judgment. Id. {¶4} In November 2013, Mr. Barnick filed a motion to terminate and/or modify spousal support based upon changed circumstances. In December 2013, Ms. Barnick filed a motion for contempt against Mr. Barnick based upon his failure to pay child and spousal support. Additionally, she sought a lump sum judgment for the spousal and child support arrearages. A hearing was held on July 2, 2014, at which no testimony was presented. Instead, counsel for both sides presented argument, and exhibits were admitted into evidence. {¶5} At the hearing, counsel for both sides acknowledged that Mr. Barnick was approximately $153,000 in arrears on his court-ordered payments. The exhibits evidenced that Mr. Barnick became disabled on October 1, 2010, and began receiving government benefits in March 2011. Included in the exhibits were reports detailing Mr. Barnick’s support payments, as well as Mr. Barnick’s affidavit of income and expenses. {¶6} The magistrate issued a decision finding Mr. Barnick disabled and concluding that he received a net monthly income of $2,228 from Social Security. Additionally, the magistrate found that Mr. Barnick received $298.66 per month from a pension, bringing his total income per month to $2,526.66. The magistrate further found that Ms. Barnick’s income had increased substantially since the divorce; she was earning $40,000 at the time of the divorce and would earn around $98,000 per year in 2014. 3 {¶7} The magistrate concluded that it was appropriate to modify Mr. Barnick’s spousal support obligation to zero due to his reduced income because of his disability. Additionally, the magistrate found that Mr. Barnick was unable to pay the spousal support award as ordered and, thus, was not guilty of contempt. Nonetheless, the magistrate determined that Mr. Barnick was $143,645.47 in arrears and granted Ms. Barnick a judgment in that amount. Mr. Barnick was ordered to pay $900 per month towards the judgment until it was paid in full and was also ordered to name Ms. Barnick as a beneficiary on his State Farm Life Insurance policy and maintain her as a beneficiary until the judgment was paid in full. {¶8} The trial court adopted the magistrate’s decision and entered judgment accordingly. Mr. Barnick filed objections to the magistrate’s decision asserting that the magistrate abused her discretion in requiring Mr. Barnick to pay $900 per month to satisfy the judgment and in requiring Mr. Barnick to designate Ms. Barnick as a beneficiary on his life insurance policy. Mr. Barnick maintained that he could not afford to pay Ms. Barnick $900 per month and meet all of his expenses, which included $1,850 in rent. After a transcript of the hearing was filed, Mr. Barnick submitted a supplemental brief that reiterated his earlier arguments. Ms. Barnick filed a brief in response. {¶9} Ultimately, the trial concluded there was no error in the magistrate’s decision and that the record supported all of the magistrate’s findings of fact. The trial court found the magistrate did not abuse her discretion in ordering Mr. Barnick to pay $900 per month towards the judgment or in requiring Mr. Barnick to designate Ms. Barnick as a beneficiary on his life insurance policy. {¶10} Mr. Barnick has appealed, raising two assignments of error for our review. 4 II. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN GRANTING THE JUDGMENT FOR [MR. BARNICK’S] SPOUSAL SUPPORT ARREARS BECAUSE THE JUDGMENT IS UNSUPPORTED BY THE EVIDENCE. {¶11} Mr. Barnick argues in his first assignment of error that the trial court erred in awarding Ms. Barnick a judgment of $143,645.47 as it was not supported by the record. Essentially, Mr. Barnick appears to challenge the trial court’s adoption of the magistrate’s finding that Ms. Barnick was entitled to an award of $143,645.47. {¶12} Here, the magistrate concluded that Mr. Barnick accumulated an arrearage of $143,645.47 and determined that Ms. Barnick was entitled to a judgment in that amount. The trial court adopted the magistrate’s decision and entered judgment accordingly. Mr. Barnick never objected to the finding by the magistrate that the arrearage totaled $143,645.47. Instead, he objected to the magistrate’s determination that he should make payments of $900 per month and designate Ms. Barnick as the beneficiary on his life insurance policy. {¶13} Civ.R. 53(D)(3)(b)(iv) provides that, “[e]xcept for a claim of plain error, a party shall not assign as error on appeal the court’s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).” See also Harrel v. Donovan, 9th Dist. Lorain No. 15CA010765, 2016-Ohio-979, ¶ 12. Thus, as Mr. Barnick failed to object to the magistrate’s decision on the basis he now argues on appeal, he has forfeited all but plain error. See, e.g., Denkewalter v. Denkewalter, 9th Dist. Medina No. 13CA0082-M, 2015-Ohio-3171, ¶ 18. Further, because Mr. Barnick has not developed a plain error argument on appeal, we overrule his argument on that basis. See id. 5 {¶14} Mr. Barnick’s first assignment of error is overruled. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN ORDERING [MR. BARNICK] TO PAY $900.00 PER MONTH WHEN IT DECLINED TO CONSIDER THAT [MR. BARNICK] HAD ANY ROOM AND BOARD EXPENSES. {¶15} Mr. Barnick argues in his second assignment of error that the trial court erred in ordering him to pay $900 per month to satisfy the judgment ordered against him. {¶16} Generally, “[t]his Court reviews a trial court’s action with respect to a magistrate’s decision for an abuse of discretion.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 17. “Under this standard, we must determine whether the trial court’s decision was arbitrary, unreasonable, or unconscionable-not merely an error of law or judgment.” Id. “In so doing, we consider the trial court’s action with reference to the nature of the underlying matter.” Id. at ¶ 18. Generally, matters relating to spousal support and spousal support arrearages are reviewed for an abuse of discretion. See Mackey v. Mackey, 5th Dist. Stark No. 2009 CA 00149, 2010-Ohio-1332, ¶ 22; Dus v. Dus, 9th Dist. Summit No. 18770, 1998 WL 733724, *6 (Oct. 21, 1998) (“As to the lump sum award of spousal support arrearages, we also find no abuse of discretion.”). {¶17} Mr. Barnick argues that the trial court erred in adopting the magistrate’s finding that he should pay $900 per month towards the arrearages judgment. He asserts that he is unable to pay that amount in light of his limited monthly income of $2,526.66 and that the trial court failed to consider his housing expenses of $1,850 per month. He points out that his affidavit stated that his housing expenses were $1,850 and no evidence was submitted to contradict that. He also notes that Ms. Barnick’s income was substantially greater than his, seeming to imply that Ms. Barnick does not need the money, but Mr. Barnick does. 6 {¶18} In the magistrate’s decision, the magistrate noted that Mr. Barnick claimed he paid “$1,850 per month for room and board at a wellness center, but declined to bring evidence of these payments.” Instead, the only evidence Mr. Barnick supplied demonstrating his expenses was his affidavit of income and expenses which merely listed his total monthly housing expenses as $1,850. Ultimately, the magistrate concluded $900 was an appropriate monthly payment. Mr. Barnick objected to this finding, and the trial court concluded that the $900 amount was reasonable because Mr. Barnick failed to substantiate that he spent $1,850 per month on room and board. Viewing the magistrate’s decision and the ruling on the objections together, it appears that the magistrate found that Mr. Barnick’s statements in his affidavit about his housing expenses lacked credibility, and that the trial court did not find the magistrate’s credibility determinations unreasonable under the circumstances. Mr. Barnick did not argue below, and has not argued on appeal, that he would still be unable to afford the $900 payment if his housing expenses were less than the amount he claimed in his affidavit. Also, Mr. Barnick has pointed to no law that requires the trier of fact to accept all assertions in an affidavit as credible merely because the affidavit is unopposed. Further, Mr. Barnick has pointed to no authority that Mr. Barnick should be subject to a lower payment merely because Ms. Barnick’s income is such that she does not require the payments to survive. See App.R. 16(A)(7). {¶19} In fact, Mr. Barnick has cited to no law, aside from law for the standard of review, to support this assignment of error. See App.R. 16(A)(7). Accordingly, in light of the foregoing, Mr. Barnick has failed to demonstrate any abuse of discretion on the part of the trial court. See Bouillon v. Bouillon, 3d Dist. Seneca Nos. 13-14-33, 13-15-02, 2015-Ohio-2886, ¶ 33 (“It is [Appellant’s] contention that he should not have been responsible for the spousal support arrears because he could not afford the payments. [Appellant] argues the two assignments of error 7 together without providing any legal support for his claims. [Appellant’s] arguments in these assignments of error do not comply with App.R. 16(A), and as such, they do not merit our review.”). Given the record before us, and Mr. Barnick’s limited arguments, we overrule his second assignment of error. {¶20} Mr. Barnick’s second assignment of error is overruled. III. {¶21} The judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. CARLA MOORE FOR THE COURT 8 WHITMORE, J. HENSAL, J. CONCUR. APPEARANCES: LESLIE S. GRASKE, Attorney at Law, for Appellant. SHUBHRA N. AGARWAL, Attorney at Law, for Appellee.

01-03-2023

09-14-2016

https://www.courtlistener.com/api/rest/v3/opinions/4048195/

In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-15-00117-CR JOSEPH LEO STREHL, III, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 4th District Court Rusk County, Texas Trial Court No. CR15-075 Before Morriss, C.J., Moseley and Burgess, JJ.  ORDER Our review of the court reporter’s record in this case indicates that volume five contains “sensitive data” as that phrase is defined in Rule 9.10 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.10(a). Sensitive data includes “a driver’s license number, passport number, social security number, tax identification number or similar government-issued personal identification number.” TEX. R. APP. P. 9.10 (a)(1). Volume five of the reporter’s record includes social security numbers. Rule 9.10(b) states, “Unless a court orders otherwise, an electronic or paper filing with the court, including the contents of any appendices, must not contain sensitive data.” TEX. R. APP. P. 9.10(b). Rule 9.10(f) provides, “A court may also order that a document be filed under seal in paper form or electronic form, without redaction.” TEX. R. APP. P. 9.10(f). Therefore, because the court reporter’s record contains sensitive data, we order the clerk of this Court or her appointee, in accordance with Rule 9.10(f), to seal volume five of the electronically filed reporter’s record in this case. IT IS SO ORDERED. BY THE COURT Date: December 15, 2015 2

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/7247140/

CHRISTOPHER R. COOPER, United States District Judge From the nation's capital, a case brought by the estate of John Joseph McLaughlin, longtime moderator of the raucous political roundtable The McLaughlin Group . Question! On a scale from one to ten-with one being the chance of a Washington, D.C. professional sports team winning a championship this year and ten being absolute metaphysical certainty-how certain is the Court that Mr. McLaughlin, upon his divorce from his former wife Christina Vidal, intended for her to benefit from two life insurance annuities that he brought to the marriage? Any answer shy of nine would be ... Wrong! Mr. McLaughlin did not wish his ex-wife to receive the annuity benefits. His estate is therefore the proper beneficiary and is entitled to a declaratory judgment saying so. I. Background In March 1996, before he married Ms. Vidal, Mr. McLaughlin designated her as the beneficiary of two annuity contracts that he purchased from Hartford Life & Annuity Insurance Company ("Hartford") and Allianz Life Insurance Company ("Allianz"). Pl.'s Supp. Br. Ex. A. Mr. McLaughlin and Ms. Vidal executed a prenuptial property settlement agreement in 1997 and were married in June of that year. Compl. ¶ 9. The agreement provided for a lump-sum transfer of $1 million from Mr. McLaughlin to Ms. Vidal in the event *117of their divorce and indicated that the payment would settle all property rights arising out of their marriage. Id. ¶ 11. The couple divorced in 2010. In granting the divorce, the District of Columbia Superior Court found their prenuptial agreement fully enforceable and incorporated it into the judgment. Pl.'s Supp. Mem. Ex. C, at 2. Mr. McLaughlin died in Washington in August 2016. Id. ¶ 14. He was not survived by a spouse or children. Id. Plaintiff, who is Mr. McLaughlin's niece and the representative of his estate, filed this suit seeking a declaration that the estate is the sole beneficiary of the Hartford annuity.1 She served Ms. Vidal personally with a summons and complaint on May 10. Ms. Vidal did not answer or otherwise respond to the complaint, and on June 26 the Clerk of the Court entered default against her. ECF No. 25. Plaintiff then moved for an entry of default judgment. ECF No. 26. On August 29, the Court issued a Minute Order to Show Cause why judgment should not be entered for Plaintiff and gave Ms. Vidal until September 20 to respond. That deadline passed over a month ago, and Ms. Vidal has not responded or sought more time to do so. In her motion for default judgment, Plaintiff relied exclusively on the common law "doctrine of implied revocation," which provides that a divorce and division of property generally revokes a former spouse's status as beneficiary of a will. Estate of Liles, 435 A.2d 379 (D.C. 1981). Plaintiff did not, however, cite authority supporting the application of that doctrine to annuities, life insurance policies, or other contract-based instruments, as opposed to wills. Noting that the District of Columbia Court of Appeals has expressly declined to extend the doctrine to contract-based instruments,2 the Court by Order dated October 6, 2017 directed the parties to file supplemental briefing on two related issues: (1) Whether the doctrine of implied revocation operates to revoke a former spouse's status as beneficiary of an annuity, and (2) assuming that the doctrine does not apply to annuities, whether Plaintiff is entitled to the requested declaratory judgment for another reason. Plaintiff filed a supplemental brief and attached the prenuptial agreement and the judgment of divorce as exhibits. II. Legal Standard Default judgment is warranted "when the adversary process has been halted because of an essentially unresponsive party." H.F. Livermore Corp. v. AktiengesellschaftGebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970). Where a plaintiff has moved for default judgment, the Court must ensure that default was properly entered and, if so, decide whether the facts stated in the complaint, accepted as true, entitle the plaintiff to judgment in her *118favor. See Boland v. Elite Terrazzo Flooring, Inc., 763 F.Supp.2d 64, 67 (D.D.C. 2011). III. Analysis The Clerk properly entered default against Ms. Vidal, as she has yet to respond to the complaint, to Plaintiff's motion for default judgment, or to the Court's show cause order. See Fed. R. Civ. P. 55. And, having resolved the following issues, the Court finds that the facts stated in the complaint entitle Plaintiff to declaratory relief. Issue number one: Subject matter jurisdiction! Do the facts alleged establish it? Yes! For purposes of diversity jurisdiction, the representative of an estate is "deemed to be a citizen only of the same State as the decedent." 28 U.S.C. § 1332(c)(2). At the time of his death, Mr. McLaughlin was a citizen of Washington, D.C. Compl. ¶ 2. Ms. Vidal is a citizen of Connecticut. Id. ¶ 5. The annuity contracts at issue each have a value greater than $75,000. Id. ¶ 9. Thus, because the declaratory relief sought in the complaint would result in the disbursement of over $75,000, and because Plaintiff and Ms. Vidal are citizens of different states, this Court has diversity jurisdiction over the case. 28 U.S.C. § 1332 ; see also, e.g., Thomas v. Metro. Life Ins. Co., 921 F.Supp. 810, 811 (D.D.C. 1996) (resolving issue of beneficiary designation through declaratory judgment). Next issue! Does this Court have personal jurisdiction over Ms. Vidal, a citizen of Connecticut? Certainly! District of Columbia law allows for specific personal jurisdiction over non-resident defendants "as to a claim for relief arising from the person's ... transacting any business in the District of Columbia," D.C. Code § 13-423, and this standard is "coextensive with the Constitution's due process limit," First Chi. Int'l v. United Exch. Co., 836 F.2d 1375, 1377 (D.C. Cir. 1988). Thus, the Court may exercise specific jurisdiction if there is a sufficient relationship between the gravamen of the complaint-that Ms. Vidal is not the beneficiary of the annuities-and the District of Columbia, "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940) ). That is the case here. As explained below, the primary issue here is whether Mr. McLaughlin and Ms. Vidal's divorce-which resulted in the enforcement of a prenuptial agreement and a settlement of $1 million-revoked Ms. Vidal's status as beneficiary of the annuities. While Hartford is a Connecticut business and Allianz is from Minnesota, all other aspects of the transactions associated with the annuities occurred in the District of Columbia. Specifically: Mr. McLaughlin purchased the annuities and designated Ms. Vidal as their beneficiary. Compl. ¶ 9. Mr. McLaughlin and Ms. Vidal were married in Washington in 1997. Id. ¶ 6. While married, the couple lived together here. Id. In 2010, Ms. Vidal obtained a divorce in District of Columbia Superior Court, which issued its final judgment of divorce in 2010. Id. ¶ 10. That judgment resulted in a settlement of $1 million paid to Ms. Vidal. And Mr. McLaughlin died in Washington in August 2016. Id. ¶ 14. These myriad connections tie Ms. Vidal, through the annuity contracts, to the District of Columbia, and thus the Court may exercise personal jurisdiction over her. Issue number three: The merits! Do the facts alleged show that Mr. McLaughlin's estate, rather than Ms. Vidal, is the beneficiary of the annuities? Clearly (but not necessarily for the reason first offered by Plaintiff). Mr. *119McLaughlin designated Ms. Vidal as the annuities' beneficiary in 1996 and never removed her after their divorce in 2010. Nevertheless, Plaintiff contends that Ms. Vidal's status as beneficiary was extinguished by the divorce and settlement payment. In her motion for default judgment, Plaintiff relied exclusively on the "doctrine of implied revocation," which provides that a divorce and division of property generally revokes a former spouse's status as beneficiary of a will. See Liles, 435 A.2d at 382 (D.C. 1981). The Court found that her motion skirted the issue-noting that District of Columbia courts have never applied this doctrine to instruments besides wills-and ordered supplemental briefing. Plaintiff in her supplemental brief raises the alternative argument that, notwithstanding any implied revocation, the prenuptial agreement between Mr. McLaughlin and Ms. Vidal establishes that the parties intended to terminate Ms. Vidal's beneficiary status in the event of divorce. The Court agrees, and therefore it need not decide whether the doctrine of implied revocation automatically terminates spousal beneficiary designations in annuity contracts after a divorce. In deciding whether a former spouse remains a beneficiary of an insurance policy after a divorce, District of Columbia courts have required "convincing evidence" that the spouses' "separation and property agreement ... was intended to deprive the named beneficiary of [the] interest." Aldridge, 595 A.2d at 396. "General expressions or clauses" in prenuptial agreements that waive interests in property are insufficient to show such intent. Mayberry v. Kathan, 232 F.2d 54, 55 (D.C. Cir. 1956) (finding insufficient: "Each of the parties hereto renounces and releases all right, title and interest which he or she now has or ever could have in the property ... of the other whether now owned or hereafter at any time acquired."); Aldridge, 595 A.2d at 398 (relying on Mayberry in finding parties' "general statements" of waiver insufficient). The Court finds that the parties' prenuptial agreement provides clear and convincing evidence that Mr. McLaughlin and Ms. Vidal intended their divorce to terminate Ms. Vidal's interest in the annuities. When Mr. McLaughlin and Ms. Vidal divorced, the District of Columbia Superior Court enforced this agreement and incorporated it into the divorce judgment, finding that it "serve[d] to resolve all issues between them incident to their marriage." Id. ¶ 11; see Pl.'s Supp. Mem. Ex. C (Divorce Judgment), at 2. Pursuant to the prenuptial agreement, Mr. McLaughlin paid Ms. Vidal a $1 million settlement of all property rights arising from their marriage. Compl. ¶ 11. As relevant here, Paragraph 8 of the agreement, titled "Pensions," provided that: (a) [E]ach of the parties hereby expressly waives any right in fact or law either may have under any federal or state law as a spouse to participate as a payee or beneficiary under the interests the other may have in any such plans including , but not limited to, the right either spouse may have to receive any benefit, in the form of a lump sum death benefit, joint or survivor annuity, or preretirement survivor annuity , pursuant to any state or federal law.... (b) Notwithstanding the foregoing, in the event that either party shall hereafter expressly designate the other as a participant or beneficiary in any of the plans, that designation shall control. Specifically, the parties intend that existing beneficiary designation under the Legg Mason IRA shall survive this agreement. Pl.'s Supp. Mem. Ex. B ("Prenuptial Agreement"), at ¶ 8 (emphasis added). *120The waiver language in Paragraph 8(a), taken alone, might not sufficiently establish an intent to terminate Ms. Vidal's beneficiary status in the event of divorce. To be sure, unlike with the generalized waivers that District of Columbia courts have held insufficient, the parties here specifically referenced death benefits and annuities like the annuity contracts at issue here. Cf. Mayberry, 232 F.2d at 55 (in finding that party had not waived interest in death benefit, noting absence of "specific reference to the death benefits" in settlement agreement). But their waiver language focused on rights arising "as a spouse," which calls to mind rights created by default rules governing payee and beneficiary status, as opposed to express designations made by contract. Taken as a whole, however, Paragraph 8 clearly shows that the parties meant for their divorce to extinguish Ms. Vidal's status as beneficiary of the annuities. By specifying that beneficiary designations made after execution of the prenuptial agreement should be honored notwithstanding the waiver, the parties manifested their intent to vitiate beneficiary designations made before the agreement, like those of the annuities here. That Ms. Vidal was designated as beneficiary before the parties executed their prenuptial agreement is also independent proof that the parties had the annuities in mind when executing the agreement. Cf. Thomson v. Thomson, 156 F.2d 581, 586 (8th Cir. 1946) ("[N]o mention was made of the insurance until after the [settlement] contract was signed, nor was any mention made of it in the [divorce] decree."). And the fact that the parties specifically identified the Legg Mason IRA as exempt from their waiver suggests they contemplated that other similar assets, including the annuities, would be subject to the waiver. The Court therefore finds that Mr. McLaughlin and Ms. Vidal's prenuptial agreement provides clear, convincing evidence of the parties' intent to terminate Ms. Vidal's status as beneficiary of the annuities in the event of their divorce. A District of Columbia court enforced that agreement in full when the parties divorced. And because Mr. McLaughlin did not designate a contingent beneficiary for the annuities, Mot. Default J. ¶ 22, Mr. McLaughlin's estate stands as their sole beneficiary. Therefore, until the next episode... It is ORDERED that: 1. Plaintiff's Motion for Default Judgment is GRANTED; 2. The Estate of John Joseph McLaughlin is hereby DECLARED the beneficiary of Annuity Contract No. 310104648 (the "Annuity") issued by Hartford Life & Annuity Insurance Company; 3. Hartford Life & Annuity Insurance Company shall immediately disburse the Annuity's death benefit to the Plaintiff Elizabeth McLaughlin in her capacity as Personal Representative of the Estate of John Joseph McLaughlin; and 4. Count Two of the Complaint is DISMISSED as moot. SO ORDERED. Plaintiff also filed a related action, No. 15-cv-502, seeking a declaratory judgment that Mr. McLaughlin's estate is the sole beneficiary of the annuity issued by Allianz Life Insurance Company. Today, the Court issued an Order in that case granting default judgment in Plaintiff's favor with respect to the Allianz annuity. The same reasons support the Court's orders in both cases, and thus this Opinion and Order refers to both annuities. In each case, Plaintiff also sought a declaratory judgment against the insurance companies. But, pursuant to this Court's Consent Orders, Plaintiff's claims against the companies have been dismissed. Hartford and Allianz have each agreed to disburse the annuity proceeds only upon a final judgment of this Court or upon a settlement between Plaintiff and Ms. Vidal. See Bolle v. Hume, 619 A.2d 1192, 1198 (D.C. 1993) ; Estate of Bowden v. Aldridge, 595 A.2d 396, 398 n.6 (D.C. 1991) (declining to reach the question of whether the doctrine applies to revoke former spouse's beneficiary status for life insurance benefits and an Individual Retirement Account).

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/3429385/

On April 11, 1934, appellee filed its petition praying for the foreclosure of a certain real estate mortgage upon premises owned by appellants. Thereafter, on September 25, 1934, decree was entered as prayed, following which the premises involved were sold under special execution to appellee on October 30, 1934. On May 14, 1935, an order of court was entered extending the period of redemption to March 1, 1937. On February 27, 1937, in compliance with the provisions of chapter 78 of the Acts of the 47th General Assembly, appellants filed an application, therein asking that the period of redemption be extended to March 1, 1939. No order was entered fixing time when said application would come on for hearing. Thereafter, on March 5, 1937, appellee filed its resistance to said application for an extension of the redemption period, said resistance in its entirety being in words and figures as follows, to wit: "That the Court has no jurisdiction of the subject matter of the above entitled cause of action and said application and is without jurisdiction to grant said application for reason that the redemption period expired February 28, 1937, and no order was made prior to the 1st day of March, 1937, setting the time and place of hearing on said application, and prescribing the kind of notice to be given the Plaintiff; that the redemption period has now expired and the Court is without jurisdiction to grant said application." Said matter was thereafter submitted to the court and on *Page 174 May 5, 1937, the court entered an order overruling and denying said application to extend the period of redemption, from which order appellant appeals. It is to be noted that appellee makes no resistance to the application for an extended period of redemption upon any contention other than that the court was without jurisdiction to grant said application, for the reason that the redemption period expired on February 28, 1937, and no order was made prior to the expiration of such redemption period setting time and place of hearing upon the application, and prescribing the notice to be given thereof. [1] The facts involved herein and likewise the contention of appellee herein are identical with the facts and contention in the case of Prudential Insurance Company v. Lowry, 225 Iowa 60,279 N.W. 132; and the opinion in that case is decisive of the instant case. Therein, in construing the provisions of chapter 78 of the Acts of the 47th General Assembly, this court determined that in all actions where an order had heretofore been granted extending the period of redemption, and wherein an application for further extension was filed before March 1, 1937, that such period was further extended until after the hearing upon the application. [2] This cause was assigned for submission before this court on March 10, 1938, and was actually submitted on March 11, 1938. On March 9, 1938, appellee filed a motion to dismiss the appeal, notice of which was not served upon counsel for appellants until March 21, 1938. Rule 19 provides that motions must be served upon the opposite party or attorney ten days before the morning on which the causes for the district are set for hearing, except where the causes thereof arise after the filing of the abstract. The basis of appellee's motion to dismiss arose long before the filing of the abstract, and for these reasons the filing of this motion to dismiss was untimely and cannot be considered. In conformity with the opinion in the Lowry case it follows that the order and ruling of the trial court herein was erroneous and that the same must be and is hereby reversed. — Reversed. STIGER, C.J., and ANDERSON, MITCHELL, KINTZINGER, DONEGAN, and RICHARDS, JJ., concur. *Page 175

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429386/

On October 14, 1943, defendant, Rand, pleaded guilty in Story county to an information charging him with the crime of illegal transportation of intoxicating liquors. Judge Rider, who heard the matter, sentenced defendant to pay a fine of $1,000 and ordered that he be committed to the county jail of Story county for one year but further provided that the jail sentence "is suspended and defendant paroled, and no mittimus shall issue * * * except in the event that the said defendant shall be convicted of a felony." About three years later, in November of 1946, the county attorney of Story county filed what is termed a "Motion On *Page 553 Application To Revoke Alleged Suspension And Parole." This motion alleged the parole was void and contrary to law in that at the time it was granted by Judge Rider, the defendant, Rand, had previously been convicted of a felony on June 12, 1917. This motion was presented to Judge John M. Schaupp, another judge in the same judicial district, and on November 13, 1946, after an ex parte hearing, without notice to the defendant, Judge Schaupp entered an order finding: "* * * from the facts presented that the defendant, Peter Alfonsa Rand, in his different aliases as set forth in the said application and report from the State Bureau of Investigation, has been previously convicted of a felony, and that by reason thereof the alleged parole and suspended sentence is in violation of the law." Judge Schaupp's order further provided that Judge Rider's order and judgment of October 14, 1943, wherein he paroled the defendant and suspended the jail sentence be "vacated and revoked" and he ordered that mittimus issue for the defendant's commitment. On December 20, 1946, defendant moved to set aside Judge Schaupp's order and after resistance was filed, a hearing was had before Judge Schaupp. At this hearing evidence was introduced showing the defendant was convicted of breaking and entering in Boone county in 1917, and sentenced to the Men's Reformatory at Anamosa, Iowa, and paroled by the Board of Parole on April 10, 1923, and that thereafter he received a final discharge from the governor of Iowa on April 21, 1924. The final discharge he received is now set forth: "STATE OF IOWA EXECUTIVE DEPARTMENT "FINAL DISCHARGE. "TO ALL TO WHOM THESE PRESENTS SHALL COME — GREETING: "KNOW YE, that by authority in me vested by law, I, N.E. Kendall, Governor of the State of Iowa, in the name and by the authority of the people thereof, do hereby discharge from further liability under his sentence Peter Randa, who was at the May Term, A.D. 1917, of the District Court of Iowa, in and for Boone County, convicted of the crime of Breaking and Entering and sentenced to the Reformatory at Anamosa and *Page 554 was paroled by the Board of Parole on the 10th day of April, 1923. "This discharge is granted upon the recommendation of the said Board of Parole, as provided by law. "And I do hereby restore the said Peter Randa to all the rights, privileges and immunities which were forfeited by reason of said conviction. "IN TESTIMONY WHEREOF, I have hereunto set my hand and caused to be affixed the Great Seal of the State. Done at Des Moines, this 21st day of April, in the year of our Lord nineteen hundred and twenty-four. "(THE GREAT SEAL OF THE STATE OF IOWA) N.E. Kendall (s)" On April 14, 1947, Judge Schaupp ruled that the above final discharge restored defendant to eligibility for a parole and he set aside his prior order of November 14, 1946, that had vacated Judge Rider's parole order. The State appeals from this last order of April 14, 1947. [1] I. The State argues that Judge Rider's order suspending the jail sentence and paroling the defendant was void. The record of testimony at the hearing before Judge Schaupp shows, by the testimony of the county attorney, that at the time defendant pleaded guilty before Judge Rider in October of 1943, Judge Rider was fully informed of defendant's previous conviction of a felony; that Judge Rider had the record from the State Bureau of Investigation on defendant before him at the time, and that this showed that he had been convicted of a felony. The State admits in argument in this court that Judge Rider "had full possession of the very facts at the time he entered the judgment of imprisonment against defendant." The record is silent as to whether Judge Rider also had before him the final discharge with respect to defendant's conviction of the felony. It is the State's argument that because of defendant's prior conviction of a felony, Judge Rider would have no authority under sections 247.20 and 247.21, Code, 1946, to grant defendant a parole, and therefore that part of his order suspending the jail sentence and paroling the defendant was void. Section 247.20, Code, 1946, provides as follows: *Page 555 "Parole by court. The trial court before which a person has been convicted of any crime except treason, murder, rape, robbery, arson, second or subsequent violation of any provision of title VI, or of the laws amendatory thereof, may, by record entry, suspend the sentence and parole said person during good behavior: "1. If said person has not previously been convicted of a felony. "2. If said person is shown to be free from venereal disease. "3. If said person, if an adult and able to labor, has obtained apparently permanent employment for a reasonable time." Section 247.21, Code, 1946, provides as follows: "Custody of court parolee. When a parole is granted under section 247.20, the court shall order said person committed to the custody, care, and supervision: "1. Of any suitable resident of this state; or "2. Of the board of parole." The State cites Dawson v. Sisk, 231 Iowa 1291, 4 N.W.2d 272, 141 A.L.R. 1219; Burnstein v. Jennings, 231 Iowa 1280,4 N.W.2d 428; State ex rel. Preston v. Hamilton, 206 Iowa 414, 220 N.W. 313; State v. Scott (Iowa), 300 N.W. 273. In Dawson v. Sisk and Burnstein v. Jennings, both supra, the defendants were fined and in each instance the order for commitment was contingent upon default in the payment of the fine. There was no sentence of imprisonment within the meaning of the parole statute. The order for imprisonment was merely to coerce the payment of the pecuniary judgment. The making of the order for jail commitment, in default of payment of the fine, is discretionary with the court. But the parole statutes do not authorize the court to make such an order and then withhold its operation. The coercive order is a remedy, in the nature of an execution, given to the State to enforce the judgment for pecuniary punishment. Any further order suspending *Page 556 the operation of this remedy was wholly void. The opinion in the Dawson case states: "* * * both sides agree that sections 3800 and 3801 [Code, 1939, now sections 247.20 and 247.21, Code, 1946] were not complied with and that the attempted suspension of the sentence was void." At page 1296 of 231 Iowa, page 275 of 4 N.W.2d. The Burnstein opinion was filed the same day as the Dawson opinion and the Burnstein opinion states that the Dawson opinion decides all questions in the Burnstein case. In both cases we held the suspensions were void and the sentences could be enforced years later. The cases are clearly distinguishable. State ex rel. Preston v. Hamilton, supra, was a certiorari proceeding to test the "suspension" portion of a judgment wherein the defendant was fined $300 and costs; the judgment further providing that defendant be confined in jail for three months. The order further stated: "`The foregoing judgment is suspended during good behavior, on condition that defendant pay the costs of this suit.'" At page 415 of 206 Iowa, page 313 of 220 N.W. Nowhere in this order does the word "parole" appear. The case was decided upon the ground that it was a virtual setting aside of the judgment and the opinion specifically states that this suspension was not made under the parole statutes. The appeal in State v. Scott, supra, reached us on a clerk's transcript. The short opinion found in 300 N.W. 273 recites that defendant was sentenced to jail for six months but paroled during good behavior and: "Thereafter, the court determined that the defendant had been previously convicted of a felony * * * and * * * the parole was revoked." The transcript on file in this court shows that the revocation was during the same term and in fact on the same day as the sentence, after the court learned of the defendant's criminal record. Of course this could be done. Section 604.41, Code, 1946. We think the rule is, and should be, that in the absence of fraud a parole and suspension of sentence made under and pursuant to sections 247.20 and 247.21, Code, 1946, is not void. *Page 557 It may be illegal or erroneous and if so it can be set aside upon appeal. But the court certainly does have jurisdiction of the person of the defendant and of the subject matter. In State v. Boston, 233 Iowa 1249, 1257, 1258, 11 N.W.2d 407, 411, we reversed the trial court's action, refusing to hear an application for a bench parole, stating: "What we hold is that this defendant was entitled to have his application considered on its merits." The statute does not seem to contemplate the filing of a formal written application for a parole but it certainly places in the trial court, before whom a defendant has been convicted, full jurisdiction to grant or deny a parole. As a matter of common practice we know the application is often oral and is frequently made by the defendant's attorney, and it is seldom that a record is made of either the application or hearing thereon. The trial court may deny a parole and as we said in State v. Boston, supra: "Where the record is silent as to the basis for denying a parole, it will be presumed there was good reason therefor." [2] Should not a like presumption prevail, namely, that there was basis for granting the parole when the parole is given? To hold otherwise would mean that the State, years after a parole was granted, could have it set aside upon proof that defendant was not free from venereal disease at the time it was granted or that an adult defendant had not obtained apparently permanent employment for a reasonable time. There is no question of fraud in this case. The county attorney knew the defendant had been convicted of a felony. Judge Rider knew the defendant had been convicted of a felony. The record does not show whether either of them knew about the final discharge which Judge Schaupp later held washed out the felony conviction, for parole purposes. But would it make any difference if they did, or did not, know of the final discharge? Assume they knew of the final discharge and Judge Rider was of the opinion, later expressed by Judge Schaupp, that it restored defendant to eligibility for a parole. Could the State *Page 558 gain a review of that holding years after the time for appeal had expired by arguing the parole was void because Judge Rider was wrong? Obviously not. The State could gain a review in the same way any other litigant could gain a review and that is by appealing from the alleged erroneous parole order. It could not be argued that if Judge Rider knew of the discharge from sentence he would be without jurisdiction to decide whether or not it did restore defendant to eligibility for parole. Would the State's position be improved if the county attorney and Judge Rider did not know of the final discharge? Judge Rider's jurisdiction did not depend upon evidence, favorable to the defendant, which the latter might have shown to convince the court that he was eligible for parole. Lack of knowledge of the final discharge on the part of Judge Rider would not mean lack of jurisdiction. In other words, upon the question of Judge Rider's jurisdiction, which rules the conclusion as to whether his parole order was void or not, the State is in no better position if the sentencing judge did not know of the final discharge. When acting under the parole statute the sentencing judge must determine whether the defendant is eligible for a parole. And this is so regardless of the showing made by the State or the defendant on the question to be determined by the court. Had Judge Rider denied the parole on the ground of the defendant's previous felony conviction, no one would contend that he was without jurisdiction to do so. If he would have had jurisdiction to determine that defendant was not eligible for a parole, then clearly he did have jurisdiction to determine he was. Jurisdiction does not depend upon the ultimate determination, or the means by which such ultimate determination is reached. Jurisdiction is the authority to decide or adjudge and it does not depend upon the correctness of the decision made by the court. By its very nature, jurisdiction in a court to determine a question, includes the right to decide wrong. As stated in 21 C.J.S., Courts, section 27: "The test of jurisdiction is the court's power to act, not the correctness of its decision." *Page 559 A case much in point is Sigmond v. Bebber, 104 Iowa 431, 434, 73 N.W. 1027, 1028. In that case an order was made, upon proper notice, authorizing an administratrix to sell real property, including the homestead, to pay claims. There was no appeal from the order. Some years later the children of the deceased started action to set aside the sale so far as the homestead was concerned because of the provisions of the law that the homestead descends to the heirs and is not liable for debts. In affirming the action of the trial court sustaining a demurrer to the petition we stated: "Nothing more can be said than that the administratrix asked an order of sale for a purpose not authorized by law. If so, it was the duty of the court to have denied the order, but not to dismiss the application, because without jurisdiction to determine the question. The determination of the question is precisely what the court should have done, and, had it denied the order, no one would say that it had not jurisdiction to do so. The jurisdiction is as complete for a decision one way as the other, but a decision one way would not be legal, while the other it would. Such an illegality would merely involve error in an authorized proceeding, while an absence of jurisdiction as to subject-matter would nullify the proceeding for any purpose. * * * That the district court had jurisdiction in the matter of the application to sell the real estate, with the parties in court, we have no doubt. If so, the remedy of those not satisfied was by appeal." In Mahaffa v. Mahaffa, 230 Iowa 679, 684, 298 N.W. 916, 919, we said: "The court had jurisdiction of the parties and the subject matter * * *. Having such jurisdiction, its decision, if erroneous, was nevertheless binding until corrected by direct proceedings to accomplish such correction." In Reinsurance Life Co. v. Houser, 208 Iowa 1226, 1228, 227 N.W. 116, 117, we said: "If the court has authority to determine the cause at all, it has authority to determine it wrongfully, as well as rightfully, *Page 560 and the decision, if wrongful, may be corrected only by direct proceedings to that end." See, also, 31 Am. Jur., Judgments, section 401; Read v. Howe,39 Iowa 553, 559; Stanley v. Noble, 59 Iowa 666, 13 N.W. 839; Sigmond v. Bebber, 104 Iowa 431, 73 N.W. 1027; Dickson Fruit Co. v. District Court, 203 Iowa 1028, 213 N.W. 803. It is our conclusion that if Judge Rider was acting under the provisions of section 247.20, Code, 1946, in suspending the jail sentence and granting the parole, then his order was not void. There remains the question of whether he was acting under the above statute or whether he was attempting to grant a mere suspension of sentence without any statutory authority, which, under prior decisions of this court, previously noted, would be a nullity. [3, 4] II. The State points to Judge Rider's order which provided no mittimus for the jail sentence was to be issued "except in the event that the said defendant shall be convicted of a felony," and also to the fact that the order did not comply with section 247.21, in that it failed to appoint a suitable resident of Iowa or the board of parole, as parole agent. Of course the statutory power of the sentencing court is to parole and suspend sentence "during good behavior." The court would have no power to provide that the parole continue until the defendant's next felony conviction. But we think this and the failure to name a parole agent are defects which the State could have had corrected by proper proceedings. Whether they could have been corrected in the proceedings before Judge Schaupp we need not decide. The State did not ask for such relief, though it seems to have been gratuitously granted with respect to the naming of a parole agent, for in the last order of Judge Schaupp he named the parole board as parole agent. We do not feel these defects, glaring as they are, indicate that Judge Rider was purporting to act without any statutory authority. In so far as his order did "suspend the sentence and parole" the defendant, it is in the words of the statute. The fact that his order did not provide for custody of the parolee under another statute (section 247.21) is insufficient to render the entire *Page 561 proceedings a nullity as an unauthorized suspended sentence. The fact that his order went too far and made revocation contingent on a felony conviction instead of providing that the parole was to continue "during good behavior" as the statute provides, is likewise insufficient to void the parole as a mere suspended sentence. This is not a proceeding to revoke the parole because of any conduct of the defendant after it was granted. In Crooks v. Sanders, 123 S.C. 28, 33, 115 S.E. 760, 762, 28 A.L.R. 940, the court was called upon to construe a governor's parole order and the rule is stated: "While the object of the courts in construing instruments of this character is to carry out the intention of the parties, wherever that is doubtful the grant is construed most beneficially for the citizen and most strongly against the Sovereign power." Here, the sentencing judge stated that the defendant was paroled. The statute authorizes courts to parole. We will construe his order, however defective, as having been made under the statute granting the general power to courts to grant a parole. [5, 6] III. Our conclusion that Judge Rider was in the exercise of statutory power to parole and suspend sentence at the time the defendant pleaded guilty, and our conclusion that he had jurisdiction to determine defendant's eligibility for parole, means that his order paroling defendant and suspending the jail sentence was not void; that it could only be set aside by appeal under the authorities previously cited under Division I of this opinion. This means that Judge Schaupp, in the later proceedings before him in November of 1946, was without authority to set aside the order entered by Judge Rider. Judge Schaupp, in the order appealed from, set aside this order of November 1946 and his action in so doing should be affirmed. It is immaterial that Judge Schaupp gave as his sole reason for setting aside his earlier order of November 1946 that the discharge from sentence restored the defendant to eligibility for parole. We are of the opinion it did not, but the reasons which Judge Schaupp recited in the order appealed from are immaterial. *Page 562 The appeal is from the judgment, not the reasons, upon which the court acted. As stated in In re Estate of Hale, 231 Iowa 1018, 1024, 2 N.W.2d 775, 779: "If this conclusion is right, any error in the judge's reasoning is not prejudicial." [7] IV. It is also of no consequence that the question of Judge Schaupp's authority or jurisdiction to set aside Judge Rider's order paroling the defendant and suspending the jail sentence does not appear to have been raised in the trial court. If Judge Schaupp had no jurisdiction to review the legality of Judge Rider's order, none was or could be gained by laches or consent. We held in Davis v. Preston, 129 Iowa 670, 106 N.W. 151, that the action of counsel in sitting by while the court continues without authority to try the case conferred no jurisdiction upon the court if jurisdiction of the subject matter was wanting. In the view we take of the case, Judge Schaupp's order of November 1946 was entered without jurisdiction. His later action in setting aside that order is affirmed. — Affirmed. OLIVER, BLISS, GARFIELD, MANTZ, and SMITH, JJ., concur. HALE and HAYS, JJ., dissent.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4070188/

ACCEPTED 03-15-00098-CR 5452804 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/28/2015 1:40:37 PM JEFFREY D. KYLE CLERK No. 03-15-00098-CR IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS TEXAS AT AUSTIN, TEXAS 5/28/2015 1:40:37 PM JEFFREY D. KYLE Clerk ******** BRIAN VINCENT ROBINSON vs. THE STATE OF TEXAS ******** ON APPEAL FROM THE 27th DISTRICT COURT OF BELL COUNTY, TEXAS Cause No. 70532 ****** STATE'S BRIEF ****** HENRY GARZA DISTRICT ATTORNEY BOB D. ODOM ASSISTANT DISTRICT ATTORNEY P.O. Box 540 Belton, Tx 7 6513 (254) 933-5215 FAX (254) 933-5704 DistrictAttorney@co.bell.tx.us SBA No. 15200000 Oral Argument Not Requested 1 TABLE OF CONTENTS ITEM PAGE Index of Authorities ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 3 Statement Regarding Oral Argument .... .. .. .... ...... .. .. .. .... .. .. .. .. .. .. .. .... .... 5 Statement of the Case ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 5 Statement of Facts ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ...... 5 Summary of State's Argument............................................................. 7 Argument and Authorities .. .. .. .. .. .. .. .. .. .. .... ...... .... .. .. .. .. ...... .. .. .. .. .. .. .. ..... 8 Issue on Appeal .. . .. ... . ... ... ... .. . ... ... .. . .. .... ... .. . .. . .. . .. . ...... .. . .. . .. . .. . .. .... 8 TRIAL COURT ABUSE DISCRETION DENYING MOTION TO SUPPRESS BASED UPON TRAFFIC STOP UNDER SECTION 545.104(b), TRANSPORTATION CODE? Standard of Review ... .. . .. . .. ... .... .. . .. .... .. . .. ... . ... ... .. . .. ... . ... ... .. .... ..... 8 Application and Analysis ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... 9 Prayer.................................................................................................... 15 Certificate of Compliance with Rule 9 ................................................. 15 Certificate of Service ............................................................................ 16 Appendix ... ... .. . ... ... .. . .. . ... ... ... .. . .. . .. . .. .... .. .... .. . .. . .. . .. .... .. ... . .. .... .. ... . .. . .. ..... 17 State v. Kidd, No. 03-09-00620-CR, 2010 Tex. App. LEXIS 10341 (Tx. App. Austin 3rd Dist. 2010 no pet), Not designated for publication. 2 INDEX OF AUTHORITIES CASES PAGE Boykin v. State, 818 S.W.2d 782 ........................................................... 12 (Tx. Cr. App. 1991) Carmouche v. State, 10 S.W.3d 323 ..................................................... 8 (Tx. Cr. App. 2000) Estrada v. State, 154 S.W.3d 604 ......................................................... 8 (Tx. Cr. App. 2005) Hargrove v. State, 40 S.W.3d 556 ......................................................... 11 (Tx. App. Houston 14th Dist. 2001 rev. ref.) Krug v. State, 86 S.W.3d 764 ................................................................ 14 (Tx. App. El Paso 8th Dist. 2002 rev. ref.) Perez v. State, No. 03-98-00465-CR, 1999 Tex. App. .......................... 13 LEXIS 5533 (Tx. App. Austin 3rct Dist. 1999 no pet.), not designated for publication State v. Elias, 339 S.W.3d 667 .............................................................. 14 (Tx. Cr. App. 2011) State v. Kidd No. 03-09-00620-CR, 2010 Tex. App. LEXIS ............... 10, 17 10341 (Tx. App. Austin 3rct Dist. 2010 no pet.), not Designated for publication Walter v. State, 28 S.W.3d 538 ............................................................. 13 (Tx. Cr. App. 2000) Weightman v. State, 975 S.W.2d 621 ................................................... 11 (Tx. Cr. App. 1998) Williams v. State, No. 05-02-00314-CR, 2002 Tex. App. LEXIS ......... 12 8077 (Tx. App. Dallas 5th Dist. 2002 rev. ref.), not designated for publication 3 OTHER Texas Transportation Code Section 521.457 .......................................................................... 9 Section 545.104 ............................................................ 8, 11, 13-14 Section 545.104(b) ......................................................... 7, 9-11, 14 4 STATEMENT REGARDING ORAL ARGUMENT The State does not request oral argument. STATEMENT OF THE CASE The Appellant, Brian Vincent Robinson, was charged by indictment with the state jail felony offense of possession of a controlled substance, to-wit: Cocaine in an amount of less than one gram. (CR-4). He filed a motion to suppress the evidence obtained as a result of the search of his person incident to arrest which gave rise to this offense. (CR-17). That motion was heard before Judge John Gauntt in the 27th Judicial District Court of Bell County, Texas and was denied. (RR2-19). The Appellant was tried before a jury in that court and found guilty. (CR-31, 34). His punishment was assessed by the trial court at 2 years in state jail. (CR-34; RR7 -17, 18). The Appellant gave timely notice of appeal (CR-40) and the trial court certified his right to do so. (CR-33). STATEMENT OF FACTS The Appellant's sole issue on appeal pertains to the trial court's ruling on his motion to suppress. During that hearing Sgt. Tyler 5 McEowen of the Killeen Police Department testified that he was working in uniform and in a marked police patrol unit on September 25, 2012 when he was advised by Detective Mallow of the Organized Crime Unit that he had been watching a particular automobile in connection with information that it had been used in narcotics trafficking. (RR2-7). Mallow suggested that it be stopped if McEowen observed the commission of a traffic violation. (RR2-7, 15). Sgt. McEowen also learned from the police dispatcher that the vehicle had temporary license tag on it that had expired. (RR2-8). McEowen subsequently located the vehicle in the downtown Killeen area and, after following it, observed that the driver failed to signal a turn within 100 feet of the intersection. (RR2-8). The driver would pull completely up to the stop sign and only then signal the turn. This occurred on two occasions. (RR2-15). The officer initiated a traffic stop and identified the Appellant as the driver. (RR2-10). The Appellant stated that he did not have a valid driver's license in his possession. (RR2-10). Sgt. McEowen checked and learned that the Appellant's driver's license had been suspended. (RR2- 11). 6 The officer arrested the Appellant for driving without a valid driver's license. (RR2-12). Incident to that arrest the officer searched the Appellant and found a small baggie containing a white powdery substance he believed, based upon his training and experience to be cocaine. 1 At the conclusion of the hearing the trial court entered findings into the record. Those findings were that: (1) the defendant's vehicle was stopped pursuant to traffic violation; and (2) the search of the defendant's person was incident to a lawful arrest for driving while license suspended. The motion to suppress was denied. (RR2-19). SUMMARY OF STATE'S ARGUMENT Article 545.104(b), in clear and unambiguous language, requires that a driver signal a turn continuously for not less than 100 feet prior to that turn. It provides no exceptions. Failure to do is a traffic violation allowing a police officer to stop the vehicle. The application of the statute to every turn is reasonable and does not lead to absurd results. 1 The Texas Department of Public Safety subsequently determined the baggie to contain cocaine in the amount of 0.04 grams. See State' s Exhibit 4. (RR8). The stop and arrest were recorded on video which was admitted into evidence at trial as State' s Exhibit 1. (RR8). 7 The lawful stop lead to the discovery that the Appellant was driving while his license was suspended and he was arrested for that offense. The Appellant was searched incident to that arrest and cocaine was found on his person. The trial court did not abuse its discretion in denying the Appellant's motion to suppress the results of that search. ARGUMENT AND AUTHORITIES Issue on Appeal Did the trial court abuse its discretion in denying the Appellant's motion to suppress because it relied upon Section 545? 104 of the Texas Transportation Code, allegedly leading to an absurd result? Standard of Review A ruling of the trial court on a motion to suppress evidence is reviewed for abuse of discretion and considered under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tx.Cr.App. 2000). The appellate court reviews de novo the application of the law to the facts of the case, however, it must also afford almost total deference to the trial court's determination of the facts where that determination is dependent upon the credibility and demeanor of the witnesses. The ruling must be upheld if it is correct under any theory of applicable law. Estrada v. State, 154 S.W.3d 8 604, 607 (Tx.Cr.App. 2005). There is an abuse of discretion when the ruling is so clearly wrong as to be outside the zone of reasonable disagreement. Application and Analysis The Appellant does not contest that he failed to signal his turn for not less than 100 feet prior to that turn as required by Section 545.104(b) of the transportation code, thus committing a traffic offense for which the officer could legally stop him. Nor does he contest the fact that he was driving while his license was suspended and lawfully arrested for that offense as provided in Section 521.45 7 of the transportation code. He does not deny that the cocaine was recovered from his person as a result of a search incident to that arrest. Instead, he relies entirely upon his contention that the interpretation of Section 545.104(b) applying its requirements to every turn leads to an absurd result and, therefore, the trial court should not have relied upon that violation to justify the stop leading to his arrest. Without any citation to authority, the Appellant opines that a literal reading of 545.104(b) "will not work in every situation". He complains that what he sees as possible exceptions were not negated in the evidence, while at the same time admitting that such exceptions are not included in the statute. The Appellant argues that it is absurd to 9 impose upon a driver the necessity of deciding whether or not to turn "before he needs or wants", where it does not further safety, because it compromises freedom of lawful movement upon the roadway. (Appellant's Brief at pg. 11). In support of his argument he cites his own question to the officer during the hearing on the motion to suppress as to whether or not he can get to an intersection and suddenly say "Hey, there's a Whataburger, I feel like turning". Absurdity is illustrated, he says, in Sgt. Eowen's correct response that he can turn, but it would be a violation of the law. Thus, he contends that he should be allowed to turn without signaling when it is, in his own judgment, inconvenient to do so and not allowing such actions is absurd. A very similar argument was raised before this court in State v. Kidd, No. 03-09-00620-CR, 2010 Tex. App. LEXIS 10341 (Tx. App. Austin 3rct Dist. 2010, no pet.), not designated for publication. (See Appendix.) In that case the sole issue was the lawfulness of a traffic stop for failure to signal intent to turn not less than 100 feet under Section 545.104(b). The defendant asserted that the requirement of the statute was unreasonable because he was unfamiliar with the area and unsure of his direction. He also said such a requirement was "foolishly oppressive in 10 a free society". The trial court agreed and granted the motion to suppress. This court, however, reversed the judgment of the trial court. It began its analysis with the plain language of the statute and noted that the language of Section 545.104(b) clearly and unambiguously requires a driver intending to turn to signal continuously for 100 feet. The court declined to find that its enforcement led to absurd results. Instead the court concluded that the plain language of the statute "provides a bright-line rule for both drivers of motor vehicles and police officers charged with enforcing the law." It also noted that the legislature must be understood to have meant what it expressed in a clear and unambiguous statute and that the courts are not to subtract from it (citing Weightman v. State, 975 S.W.2d 621,623-24 (Tx. Cr. App. 1998)). The Appellant's suggestion is that the statute should be interpreted to allow an exception to the requirement to signal a turn when the driver suddenly decided that he wanted to turn would render the statute meaningless and unenforceable. See Hargrove v. State, 40 S.W.3d 556, 559 (Tx. App. Houston 14th Dist. 2001 rev. ref.), holding that Section 545.104 is not unconstitutionally vague and that the defendant's 11 suggested interpretation that it merely allows, but does not require a signal would render the law meaningless. In Williams v. State, No. 05-02-00314-CR, 2002 Tex. App. LEXIS 8077 (Tx. App. Dallas 5th Dist. 2002 rev. ref.), not designated for publication, a complaint identical to the Appellant's that the signal requirement produced an absurd result because it required a signal to turn where safety was not furthered was raised. The court of appeals held that the statute was clear and unambiguous and its plain language required a signal and applied anytime a turn is made and not merely in situations where safety is involved, such as near a curve or grade. In interpreting statutes the courts must seek to effectuate the intent or purpose of the legislature and, where the language is clear and unambiguous, the plain meaning of the words should be applied. Boy kin v. State, 818 S.W.2d 782, 785 (Tx. Cr. App. 1991). Here the legislature clearly and unambiguously provides that a driver must signal a turn continuously for not less than 100 feet before the turn. It did not say that a driver might avoid doing so if he was hungry, or thought that it was safe not to do so, or decided to doing so 12 would hamper his freedom of the road 2 • Such an interpretation would be absurd and would render the legislatively imposed requirement of the statute utterly meaningless and unenforceable. In this case it is undisputed that the Appellant failed to comply with the statutory requirement to signal his turn for not less than 100 feet from the turn. The officer thus had the authority to initiate the traffic stop. Upon making that stop the officer discovered that the Appellant was driving with his license suspended and, therefore, had probable cause to arrest him. Incident to that arrest the officer searched the Appellant and found the cocaine on his person in his pocket. The only issue in this case is the lawfulness of the initial traffic stop. When a traffic violation is committed within an officer's view he may lawfully stop and detain the person for that violation. Walter v. State, 28 S.W.3d 538, 542 (Tx. Cr. App. 2000). A violation of Section 545.104 of the traffic code by failure to signal a turn is a violation of the highway law and grounds for such a traffic stop. Perez v. State, No. 03- 98-00465-CR, 1999 Tex. App. LEXIS 5533 (Tx. App. Austin 3rct Dist. 1999 2 It might well be argued that all criminal laws hamper one's freedom to do what one might decide to do, but that hardly renders such laws absurd in their application. 13 no pet.), not designated for publication; Krug v. State, 86 S.W.3d 7 64, 765-66 (Tx. App. El Paso 8th Dist. 2002 rev. ref.). See also State v. Elias, 339 S.W.3d 667, 676 (Tx. Cr. App. 2011), where the Court of Criminal Appeals remanded the case to the trial court to determine whether or not the traffic stop was pursuant to Section 545.104 and, therefore, lawful. The language of Section 545.1 04(b) is clear and unambiguous and provides a bright-line rule for both drivers and law enforcement. There is nothing in that statute that leads to unreasonable or unforeseen circumstances. There is no indication that the legislature intended it to be optional or subject to exceptions of driver convenience. It must be given the interpretation that effectuates the legislative intent. That requires that it apply signaling as required for all turns. That interpretation is reasonable and provides guidelines for driving and for enforcement. The trial court did not abuse its discretion in denying the motion to suppress and in finding that the Appellant's vehicle was lawfully stopped for a traffic violation and that the search of his person was incident to a valid arrest for driving while his license was suspended. 14 PRAYER The State of Texas respectfully prays that the judgment of conviction herein be, in all things, be affirmed. Respectfully Submitted, HENRY GARZA District Attorney jsj $aiJ ~- flrlmn BOB D. ODOM Assistant District Attorney P.O. Box 540 Belton, Tx 76513 (254) 933-5215 FAX (254) 933-5704 DistrictAttorney@co.bell.tx.us SBA No. 15200000 CERTIFICATE OF COMPLIANCE WITH RULE 9 This is to certify that the State's Brief is in compliance with Rule 9 of the Texas Rules ofAppellate Procedure and that portion which must be included under Rule 9.4(i)(1) contains 1,972 words. jsj $a6 Q). &r!mn BOB D. ODOM Assistant District Attorney 15 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of this brief has been served upon, Tim Copeland, Counsel for Appellant, by electronic transfer via Email, addressed to him at tcopeland14@yahoo.com on this 28th day of May. 2015. jsj $a6 ~. ffdonu BOB D. ODOM Assistant District Attorney 16 APPENDIX State v. Kidd No. 03-09-00620-CR, 2010 Tex. App. LEXIS 10341 (Tx. App. Austin 2010 no pet.), not designated for publication 17 Get a Document- by Citation- 2010 Tex. App. LEXIS 10341 Page 1 of4 Switch Client I Preferences I Help I Sign Out My LexisTM Search Get a Document Shepard's® More History Alerts FOCUSTM Terms I jjGol Advanced .. . - Get-a-Document-!- - - - - ;;>d-l{iol- - - - - - - - - · - - - - -'View -Tutorial Service: Get by LEXSEE® Citation: 2010 Tex. App. LEXIS 10341 2010 Tex. App. LEXIS 10341, * The State of Texas, Appellant v. James D. Kidd, Appellee NO. 03-09-00620-CR COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN 2010 Tex. App. LEXIS 10341 December 30, 2010, Filed PRIOR HISTORY: [*1] FROM THE TRAVIS COUNTY COURT AT LAW NO. 8, NO. C-1-CR-07-200997, HONORABLE CARLOS HUMBERTO BARRERA .., JUDGE PRESIDING. DISPOSITION: Reversed and Remanded. CORE TERMS: signal, feet, continuously, traffic stop, deputy, traffic violation, investigative detention, driver, plain language, unambiguous, intending, seizure, suppress, traffic offense, reasonable suspicion, peace officer's, leads to absurd results, driving, detain COUNSEL: For Appellee: Mr. Kyle T. Lowe,., Austin, TX. For Appellant: Ms. Giselle Horton ., Assistant County Attorne, Austin, TX. JUDGES: Before Justices Patterson .., Puryear. and Henson ... OPINION BY: David Puryear .. OPINION MEMORANDUM OPINION James D. Kidd was charged with the misdemeanor offense of driving while intoxicated (DWI). Alleging that the initial traffic stop for failing to signal continuously an intent to turn for not less than 100 feet before the turn was unreasonable under the circumstances, Kidd filed a motion to suppress the evidence related to the DWI charge. A hearing resulted in the granting of the motion, and the State appealed. The sole issue on appeal is whether the traffic stop was constitutionally unreasonable. We will reverse and remand. BACKGROUND http://www.lexis.com/research/retrieve?_m=a99defe 1f96167898... 5/28/2015 Get a Document- by Citation - 2010 Tex. App. LEXIS 10341 Page 2 of4 Around midnight on January 27, 2007, Deputy Sheriff Anthony Sampson began following Kidd's vehicle. After about five miles, Deputy Sampson observed that Kidd failed to signal continuously for at least 100 feet before turning at aT-intersection. 1 Believing that Kidd's failure to signal intent to turn "continuously for not less than [*2] the last 100 feet" was in violation of section 545.104(b) of the transportation code, the deputy initiated a traffic stop that resulted in Kidd's arrest for DWI. See Tex. Transp. Code Ann . § 545.104(b) (West 1999). FOOTNOTES 1 Kidd activated his turn signal about 30 feet from the intersection. http://www.lexis.com/research/retrieve?_m=a99defe1f96167898... 5/28/2015 Get a Document- by Citation- 2010 Tex. App. LEXIS 10341 Page 3 of4 Service: Get by LEXSEE® Citation: 2010 Tex. App. LEXIS 10341 View: Full Date/Time: Thursday, May 28, 2015- 11:12 AM EDT * Signal Legend: - Warning: Negative treatment is indicated [g) - Questioned : Validity questioned by citing refs - Caution : Possible negative treatment - Posit ive treatment is ind icated Citing Refs . With Analysis Available - Citation information available * Click on any Shepard's signal to Shepardize ® that case . http://www.lexis.com/research/retrieve?_m=a99defe1f96167898... 5/28/2015 Get a Document- by Citation- 2010 Tex. App. LEXIS 10341 Page 4 of4 lex·sNexis About LexisNexis 1 Privacy Policy 1 Terms & Conditions 1 Contact Us Copyright © 2015 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. http://www.lexis.com/research/retrieve?_m=a99defelf96167898... 5/28/2015

01-03-2023

09-30-2016

https://www.courtlistener.com/api/rest/v3/opinions/4031219/

NUMBER 13-16-00187-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG TAMRA VENYSE GORDON, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the County Criminal Court at Law No. 1 of Harris County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Rodriguez Appellant Tamra Venyse Gordon was charged by information with the offense of criminal trespass. See TEX. PENAL CODE ANN. § 30.05 (West, Westlaw through 2015 R.S.). Gordon moved to quash the information, complaining that it failed to properly allege an element of the offense: that Gordon acted “without effective consent.” The trial court denied her motion, and Gordon pleaded guilty while reserving the right to appeal the denial of her motion to quash.1 By one issue on appeal, Gordon argues that the information was deficient as a matter of law.2 We affirm. I. BACKGROUND The State set out the basis of its charge as follows: On June 27, 2015, Gordon arrived at the Eagle Trace Retirement Community in Houston, Texas. She represented herself as a member of Visiting Angels, a non-profit organization. Gordon gained access to the facility based on this representation. Once inside, Gordon entered an apartment belonging to August and Mary Look. August found Gordon in his living room, looking around. When August demanded an explanation, Gordon gave an excuse. August directed Gordon to leave. When August was later presented with a photo array of possible suspects, he identified Gordon as the intruder, albeit with some dubiety. Tammy Brown of the Eagle Trace Retirement Community contacted Visiting Angels, who confirmed that Gordon had not worked for the organization for over eighteen months. Brown filed an affidavit and sought to have Gordon charged with criminal trespass. The State filed an information, which alleged: that in Harris County, Texas, Tamara Venyse Gordon, hereafter styled the Defendant, heretofore on or about June 27, 2015, did then and there unlawfully and with notice that entry was forbidden, intentionally and knowingly enter and remain on the property of another, namely, Tammy Brown without the effective consent of Tammy Brown. 1 Pursuant to a plea bargain, Gordon pleaded guilty to a Class B misdemeanor and received deferred adjudication. See TEX. PENAL CODE ANN. § 30.05 (West, Westlaw through 2015 R.S.). Gordon was to be placed on community supervision for seven months and to pay a fine of $250.00. 2 This case is before the Court on transfer from the Fourteenth Court of Appeals pursuant to a transfer order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.). Because this is a transfer case, we apply the precedent of the Fourteenth Court of Appeals to the extent it differs from our own. See TEX. R. APP. P. 41.3. 2 Gordon moved to quash the information. The trial court denied Gordon’s motion. Gordon pleaded guilty, and this appeal followed. II. MOTION TO QUASH THE INFORMATION On appeal, Gordon argues that the trial court erred in denying her motion to quash. Gordon argues that the information failed to correctly allege the element of effective consent. Gordon contends that the allegation “without the effective consent of Tammy Brown” neglects the possibility that Gordon might have had effective consent based on permission from a duly authorized employee or perhaps a resident of the facility. According to Gordon, the information should have instead alleged that Gordon acted “without effective consent” in order to track the language of the statute and to encompass other potential sources of consent. In the absence of such an open-ended allegation, Gordon argues, the information is fatally defective. A. Standard of Review and Applicable Law We review a trial court’s decision to deny a motion to quash an indictment under a de novo standard of review. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) cert. denied, 553 U.S. 1007 (2008); see Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010); see also State v. Balandrano, No. 13-13-00536-CR, 2015 WL 5136453, at *2 (Tex. App.—Corpus Christi Aug. 31, 2015, no pet.) (mem. op., not designated for publication) (applying a de novo standard to review a motion to quash an information). A criminal defendant has a constitutional right to notice, which requires that an indictment must be “specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense.” Lawrence, 240 S.W.3d at 916; see State v. Laird, 208 S.W.3d 667, 669 (Tex. App.—Fort Worth 2006, no pet.) 3 (applying this notice requirement to an information). The inquiry must be whether the charge, in writing, furnished the required information in plain and intelligible language. Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000). An indictment tracking the language of the statute will generally satisfy constitutional and statutory requirements, subject to rare exceptions. Smith, 309 S.W.3d at 14. However, “it is not necessary to use the exact language of the statute” so long as “the substituted words . . . convey the same meaning or include the sense of the statutory word.” State v. Kinsey, 861 S.W.2d 383, 384 (Tex. Crim. App. 1993) (en banc); see TEX. CODE CRIM. PROC. ANN. art. 21.17 (West, Westlaw through 2015 R.S.). A person commits the offense of criminal trespass if the person enters or remains on or in the property of another without effective consent and the person had notice that the entry was forbidden. TEX. PENAL CODE ANN. § 30.05. “Effective consent” includes consent by a person legally authorized to act for the owner. Id. § 1.07(a)(19) (West, Westlaw through 2015 R.S.); State v. Villarreal, 476 S.W.3d 45, 57 (Tex. App.—Corpus Christi 2014), aff’d, 475 S.W.3d 784 (Tex. Crim. App. 2014), cert. denied, 136 S. Ct. 2544 (2016). Consent is not effective if it is induced by fraud. TEX. PENAL CODE ANN. § 1.07(a)(19). “It is by now well-settled that when an indictment alleges ‘without effective consent,’ the defendant is given sufficient notice that consent was lacking for any of the reasons set out in [Texas Penal Code section 1.07(a)(19)].” Palmer v. State, 686 S.W.2d 645, 646 (Tex. App.—Dallas 1985, no pet.); see TEX. PENAL CODE ANN. § 1.07(a)(19); Feldman v. State, 576 S.W.2d 402, 403 (Tex. Crim. App. [Panel Op.] 1979). B. Analysis When comparing the statute’s language “without effective consent” with the State’s 4 allegation that Gordon committed her act “without the effective consent of Tammy Brown,” “common sense dictates that the latter is merely descriptive of the former.” See Kinsey, 861 S.W.2d at 384; see also TEX. PENAL CODE ANN. § 30.05. These substituted words convey the same meaning as the statutory words, given that the same sentence in the information ascribed Brown as the person with authority to grant consent. See Kinsey, 861 S.W.2d at 384. Under Feldman and Palmer, this language necessarily gave Gordon sufficient notice that consent was lacking for any of the reasons set out in section 1.07(a)(19), which includes effective consent by an agent of Brown. See Feldman, 576 S.W.2d at 403; Palmer, 686 S.W.2d at 646. On its face, the charging information gives notice of a complete set of facts corresponding to criminal trespass which, if proven beyond a reasonable doubt, would have shown the offense of criminal trespass. See Lawrence, 240 S.W.3d at 916; Laird, 208 S.W.3d at 669. It is true that the State appears to have alleged that Brown was the sole potential source of effective consent. Gordon asks us to consider hypothetical evidence which might show this allegation to be false—for instance, what if a resident of the facility had a right to grant her consent and had granted consent? In effect, Gordon urges us to engage in a variance-review-by-hypothetical. We decline to do so. A pre-trial proceeding should not be a “mini-trial” on the sufficiency of the evidence to support an element of the offense. Lawrence, 240 S.W.3d at 916. This rule is perhaps more acute when the motion to quash addresses evidence that does not appear in the record and may not even exist. See Salazar v. State, No. 05-96-00820-CR, 1997 WL 427053, at *3 (Tex. App.—Dallas July 31, 1997, no pet.) (not designated for publication) (declining to consider a defendant’s legal sufficiency issue because it was premised on weighing 5 “hypothetical evidence” rather the evidence in the record). Contrary to Gordon’s assertion, our holding does not invert the burden of proof by requiring her to prove the presence of consent beyond a reasonable doubt. Rather, under the facts alleged in the information, it would be Gordon’s goal to create a reasonable doubt as to whether she had effective consent to enter or remain on the property. Gordon might have achieved this goal by actually producing the hypothetical evidence which she urges here: proof creating a reasonable doubt as to whether an agent of Brown had granted consent; or proof that Brown was not the sole possible source of effective consent, and that someone else at the facility had validly granted consent. We need not decide whether, by including the phrase “without the effective consent of Tammy Brown,” the State committed itself to prove beyond a reasonable doubt that Brown was the sole potential source of consent. See, e.g., Langston v. State, 855 S.W.2d 718, 721 (Tex. Crim. App. 1993) (en banc) (discussing whether, in an information for criminal trespass, the State’s specific allegations committed the State to prove those specific allegations); see also Cornwell v. State, 471 S.W.3d 458, 467 (Tex. Crim. App. 2015) (summarizing Texas law regarding material variance). Such an issue is beyond the scope of this appeal. See TEX. R. APP. P. 47.1. We simply note that the phrase in question armed Gordon with an evidentiary argument, had the case gone to trial. See Langston, 855 S.W.2d at 720; Cornwell, 471 S.W.3d at 467. Having found that the information gave adequate notice and having addressed Gordon’s other arguments, we conclude that the information was not deficient as a matter of law, as Gordon argues. See Lawrence, 240 S.W.3d at 916; Kinsey, 861 S.W.2d at 384; see also Feldman, 576 S.W.2d at 403. Based on our de novo review, we conclude 6 that the trial court did not err in denying Gordon’s motion to quash. See Smith, 309 S.W.3d at 14; Lawrence, 240 S.W.3d at 915. We overrule Gordon’s sole issue on appeal. III. CONCLUSION We affirm the judgment of the trial court. NELDA V. RODRIGUEZ Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 2nd day of September, 2016. 7

01-03-2023

09-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4070192/

Order entered May 28, 2015 In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00822-CR ANTWON CARTER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-81511-2013 ORDER The Court REINSTATES the appeal. On April 29, 2015, we ordered the trial court to make findings regarding why appellant’s brief has not been filed. We ADOPT the findings that: (1) after appellant was convicted, the trial court appointed Stephanie Hudson to represent appellant; (2) unbeknownst to the trial court, the Indigent Defense Offices of Collin County thereafter appointed Sam Rosenstein to represent appellant; (3) Mr. Rosenstein believed Ms. Hudson was representing appellant, and Ms. Hudson never received notification of her appointment as appellant’s attorney; (4) Mr. Rosenstein is closing is law practice; and (5) Stephanie Hudson is now appointed to represent appellant. We note that although Mr. Rosenstein’s name is on the front cover of the clerk’s record, this Court has David Waddill, who was appellant’s trial counsel and signed the notice of appeal, listed as appellate counsel. Therefore, it does not appear that either Mr. Rosenstein or Ms. Hudson has received notices from this Court regarding the appeal. Nor does it appear that Mr. Waddill, despite being sent correspondence from this Court regarding the appeal, ever communicated to the Court that he is no longer representing appellant. Accordingly, we DIRECT the Clerk of this Court to list Stephanie Hudson as appellant’s attorney of record in place of David Waddill. We ORDER appellant to file his brief within FORTY-FIVE DAYS of the date of this order. We DIRECT the Clerk to send copies of this order to Stephanie Hudson and to the Collin County District Attorney’s Office. /s/ LANA MYERS JUSTICE

01-03-2023

09-30-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429539/

This case comes to us on an appeal by three appellants from the district court of Pottawattamie county, Iowa; some matters connected therewith were before this court *Page 890 under the same title by the same appellants, as reported in218 Iowa 114, 253 N.W. 847, which was affirmed by this court. Hans Schlicht was a resident of Pottawattamie county, Iowa, a bachelor, who had accumulated property of the value of approximately $11,000. His parents had been divorced and his mother lived in Pottawattamie county. The father lived in Mississippi. In October, 1924, Hans Schlicht left Pottawattamie county for the purpose of visiting his father in Monroe county, Miss., and did visit with his father for about two months. He left his father's residence in December, 1924, and has never been heard from, nor heard of, by any person so far as his friends and relatives have been able to learn. He had lived in Pottawattamie county all his life. The father died within a few years after the visit of Hans, leaving the mother of Hans surviving him. A proceeding was commenced under chapter 506 of the Code, dealing with the estates of absentees. Application was made for the appointment of administrators on December 12, 1931, and one Turner was appointed to appear for the absentee and investigate the matters and things alleged in the application. On the 2d day of May, 1932, the matter was continued until the next term of court at Avoca, and in June, 1932, an order was made for hearing proofs and an order for the issuance of letters of administration upon the estate of the absentee, as though he were known to be dead. In a resistance to the appointment of administrators, the guardian previously appointed to conserve the estate of the absentee filed objections, and on December 15, 1932, filed further objections, setting forth an affidavit of a party who had seen Hans about the 9th or 10th of December, 1924, and that he knew Hans had left his father's home and had never returned, and that he left there about the 12th of December, 1924; that the affiant was around the home of Hans' father every day from December 12, 1924, up to the date of making the affidavit, October 28, 1931. The administrators set up another affidavit from Herman Schlicht and his wife, alleging Hans left about December 12, 1924; that the father died on December 17, 1926; and that they knew no letter was ever received from Hans after he left his father's. An order was made granting administration of the estate on the 19th day of February, 1933, and Honas Schlicht and Willie Schlicht were appointed administrators of the estate. From this order an appeal was made to this court, and the appeal resulted *Page 891 in the decision in the case reported in 218 Iowa 114,253 N.W. 847, under date of April 3, 1934. The decision in that case held with the administrators and that it was properly brought in Pottawattamie county; that Margarette Schlicht, the mother of the absentee Hans, died, a resident of Pottawattamie county, and on the 27th day of January, 1934. No distribution having been made of the estate prior to that time, on the 17th of December, 1934, Honas Schlicht and Willie Schlicht filed a statement of heirship setting forth that on the last day of the seventh year from the date of the disappearance of Hans, the mother was living, and that her estate was entitled to the property. Objections were filed to this report, and a number of other alleged heirs were set out, all descendants of Margarette Schlicht and her former husband. A statement of heirship by the administrators was filed on the last day of the seventh year from the date of the disappearance of Hans, and based on the thought that Hans was presumed to be dead, and the one who, under the statute, would be his legal heir on such date would be entitled to his property, and that Margarette Schlicht was such heir, being the sole surviving parent; and denied the claim of the other parties set out. In the objections filed by the appellants herein to the proposition that the mother was the sole heir, they state that at the time of the opening of the estate of Hans Schlicht, absentee, Margarette Schlicht, the mother, was living, but that prior to any distribution of the estate, and prior to the expiration of the year of administration, said Margarette Schlicht died, and that now, prior to said distribution and before the end of the year of administration of the estate of Hans Schlicht, absentee, the following were the heirs of the said Hans Schlicht, and set out the names of twenty-five persons, including the appellants. The matter came on for hearing before the district court of Pottawattamie county, and after a hearing the Honorable Earl Peters, presiding judge, made a decree, of some length, and therein gave his opinion on the law governing the case, referring to the appeal determined in 218 Iowa 114, 253 N.W. 847, and to the case of McCoid v. Norton, 207 Iowa 1145, 222 N.W. 390; Hicks v. Modern Woodmen of America, 203 Iowa 596, 213 N.W. 236, and said: "The time for determining the legal heirs and beneficiaries *Page 892 of the said Hans Schlicht is as of the time when he was presumed to be dead, to-wit: in December 1931, and his mother Margarette Schlicht was alive at that time, and was his sole surviving parent; and the court finds that Margarette Schlicht is the sole legal heir of the said Hans Schlicht, absentee, and is entitled to all the property belonging to, the estate. And that the objectors, the objectors herein, nor either of them, nor any one set out in their objections as heirs of said absentee, are entitled to share in said estate." From this order and decree an appeal was perfected, and that is the case here. The judge rendering the said opinion is one of the many able judges of Iowa, and we think that he was absolutely right in his decision in the case. Section 11909, a part of chapter 506 of the code, dealing with the estates of absentees, reads as follows: "Prior to any order of distribution, the court shall hear proof and determine the legal heirs and beneficiaries of said absentee, and their respective interests in such estate." A reading of this section shows just what it says: That before any distribution shall be made the court shall hear proof and determine the legal heirs and beneficiaries of the absentee, and their respective interest in the estate. Who was the legal heir of Hans Schlicht? Who would be entitled to his property had he died a natural death? Who would have been heir to his property at the time of his death? It is the statutory rule in this state that where one dies without children or issue, and unmarried, if the parents survive, then the parents, become the heirs and take the property. And it is further provided that if one of the parents is dead, the portion which would have gone to such deceased parent shall go to the surviving parent, including the portion which would have belonged to the testate's spouse had one been living. Sections 12017 and 12025, Code of 1931, now Code 1935. So if at any time prior to the death of his mother, Hans had actually died, his mother then would have become and would have been the heir of his estate; the father being dead. There is a presumption of law that one disappearing as Hans Schlicht did, and under the circumstances shown herein, the presumption that he is dead arises at the close of seven years *Page 893 from that time, to-wit, December 1931. McCoid v. Norton, 207 Iowa 1145,222 N.W. 390. This presumption, however, does not go as to the time of his death. The presumption simply is, under such circumstances as shown in this case, that the party who disappeared is dead. That is to say, he was presumed dead at the end of seven years. Of course, this presumption is rebuttable; but in the absence of any showing as to the disappearance of the party, and not having heard from or about him by the parties who would naturally hear from or about him, he is deemed to be dead at that time. We do not mean to hold that death may not be presumed from circumstances much shorter than at the end of seven years. In Tisdale v. Connecticut Mut. Life Ins. Co., 26 Iowa 170, 96 Am.Dec. 136, the rule is laid down that the death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing his exposure to danger which probably resulted in his death. But, of course, there being no showing of exposure to danger liable to result in death at the time of the disappearance, or after, there would be no presumption that he died short of the seven years. But the circumstances might have been such that there would be a presumption of his death, rebuttable of course, even before his father died, but a few years after his disappearance. "No one is heir, of course, while the ancestor lives," is an old adage of the law. Heirship commences when death takes place. The disappearance and continued absence under the circumstances in this case raises a very strong presumption of death, as laid down in the McCoid case. It is there held that a rebuttable presumption of death arises from the unexplained disappearance of a person for seven years from his usual place of living. Here there was no explanation whatever, no testimony to rebut this presumption, and therefore it must be held upon this record that seven years from the time he left his father's place in Mississippi the law presumed him to be dead. Hence, he being legally dead is the same as though he actually departed this life, for the purposes of determining the distribution of his property. His mother was his sole surviving heir under our statutes; the property is located in this state. Our law determines the descent. So she became seized as heir of all the rights in the property owned by the absentee in his lifetime. Hence, *Page 894 no brothers or sisters, no collateral relatives, became or were heirs. Our other statutes fix the descent of property. The application for administration was right wherein it said Margarette Schlicht was the sole heir. It would be a forced construction, not permissible, of chapter 506 to hold that any single section of that chapter repealed or modified in any way any of the sections of the chapter bearing upon the descent of property. Section 11909, relied on, does not bear such construction. It says the court shall hear proof and determine the legal heirs and beneficiaries of said absentee and their respective interests in the estate, and that this must be done prior to any order of distribution. As the mother succeeded as sole heir of his property at his death, so she succeeds as sole heir to his property when his death is presumed by law. His death was presumed seven years from his disappearance. He disappeared on the 12th day of December, 1924. The chapter quoted and relied upon cannot affect the provisions of the other sections of the Code fixing heirship. So, for the reasons pointed out in this opinion, the decision of the lower court is affirmed. DONEGAN, C.J., and ALBERT, STIGER, HAMILTON, MITCHELL, KINTZINGER, and RICHARDS, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429541/

Two vital questions are presented: First, does Rule 177, Iowa Rules of Civil Procedure, effective July 4, 1943, requiring a written demand for a jury trial, apply to a will contest? Second, do the provisions of said rules regarding pleading apply to a will contest? There is also involved a contention concerning the doctrine, the law of the case. Testator died in April 1943. On May 1st his will was filed, together with an application by his widow for its admission to probate. On July 21, 1943, an out-of-state attorney filed objections to its probate on behalf of an heir, Ted Bowers. The objections charged unsoundness of mind, undue influence by the proponent, and improper execution of the will. Similar objections were filed by the attorney on behalf of another heir, Oscar Bowers, and also for certain other heirs, Effel Westover et al. All proceedings in all three of the contests are identical except as hereinafter stated. On November 30, 1943, the objectors filed written demands for a jury trial, which proponent resisted on the ground that they were not filed within the time required by the rules. (All references herein to "rules" are to Iowa Rules of Civil Procedure.) On December 4, 1943, these demands were overruled. On December 10th, Ted Bowers filed a written dismissal of his original objections without prejudice and filed new objections. Oscar Bowers filed a written withdrawal of his objections and also filed new objections. Effel Westover et al. filed amended and substituted objections without any separate dismissal or withdrawal of their original objections. This is the only difference in the three contests. The new objections, which are identical, are broader than the original objections. They charge not only unsoundness of *Page 747 mind, undue influence by the proponent and her daughter, and improper execution of the will, but also in a separate Division (III) that the will was procured by a fraudulent conspiracy between the proponent and the subscribing witnesses and that the signature to the will was forged. It is alleged that the facts forming the basis for Division III were discovered after the original objections were filed. Endorsed upon the new objections was a written demand for jury trial. The proponent resisted this demand because it was not made in compliance with Rule 177. On December 13, 1943, this demand was overruled. On December 24, 1943, the objectors filed motions for default based on proponent's failure to file within seven days any motion or reply to their new objections. (See Rule 85 (a) and (c).) These motions for default were overruled on January 8, 1944. This court, pursuant to Rule 332, granted the objectors' application to appeal to this court from the order of December 13, 1943, denying them a jury trial, and from the order of January 8th overruling their motions for default. The appeals are from these two orders. This opinion applies to the three contests. [1] I. We think Rule 177, requiring a written demand for a jury trial, does not apply to will contests. Section 11864, Code, 1939, provides: "When the probate of a will is contested, either party to the contest shall be entitled to a jury trial thereon." Rule 1 (d) states: "After these Rules take effect courts and litigation shall no longer be governed by the statutes listed in column 1 of the Table appended to these Rules as Appendix I, and the practice and procedure shall no longer be in accordance therewith." Code section 11864 is not to be found in column 1 of Appendix I, which lists statutes of no further force and effect. Code section 11429, however, which provides, "Issues of fact in an ordinary action must be tried by jury, unless the same is waived" is listed in Appendix I of the rules as superseded by Rule 177. If this rule had been intended to apply to a will *Page 748 contest, section 11864, as well as 11429, should and we think would have been included in Appendix I. There is no apparent reason why the appendix to the rules should list section 11429 as superseded by Rule 177 and omit section 11864 except that Rule 177 was not intended to apply to will contests. Rule 177 (b) provides that written demand for jury trial of an issue must be endorsed on the party's pleading or filed "within ten days after the last pleading directed to that issue." Rule 68 lists allowable pleadings as "petition, answer, and such counterclaim, reply, amendment, cross-petition or petition of intervention, as these Rules allow." It seems reasonable to conclude that Rule 177 does not require a written demand for a jury trial in those actions which are not governed by the provisions of the rules as to pleading. As we hereinafter point out, there are no pleadings, in the technical sense, in a will contest. [2] It should not be assumed from our holding that Rule 177 does not apply to will contests that none of the rules applies even indirectly to such a contest. In re Estate of Duffy,228 Iowa 426, 431, 432, 292 N.W. 165, 128 A.L.R. 943, points out that there are but three Code sections touching the matter of will contests. One of these is 11864, above referred to. Another is 11882, which provides that wills shall not be carried into effect until admitted to probate, "and such probate shall be conclusive as to the due execution thereof, until set aside by an original or appellate proceeding." The remaining statute is 11007, paragraph 3, which fixes two years as the time within which an action must be brought to set aside a will. None of these sections is superseded by the rules. In this sense, the rules do not apply directly to will contests. However, the actual trial of a will contest is by ordinary proceedings, in the same manner as an action at law. Buttman v. Christie, 197 Iowa 661, 663, 198 N.W. 314, and cases cited. The rules, of course, apply to the trial of actions both by ordinary and equitable proceedings. And insofar as the rules apply to trials by ordinary proceedings they affect indirectly the trial of a will contest. That is, the rules make certain changes in the trial of actions at law (and also those in equity). Will contests are triable as actions at law according to the procedure now applicable to such trials. Such procedure is *Page 749 governed by the rules, together with the statutes not affected thereby. [3] II. But the proponent argues that the order of December 4, 1943, denying the contestants' demand for a jury trial on their original objections, from which no appeal was taken, is the law of the case and precludes us from reviewing the subsequent order of December 13th denying a jury trial on the new objections. The doctrine which the proponent invokes has frequently been said to express merely the practice of courts to refuse to reconsider what has once been decided. McGovern v. Kraus, 200 Wis. 64,227 N.W. 300, 67 A.L.R. 1381, 1391, and cases cited. Without determining whether the doctrine of the law of the case is applicable here, we are not disposed to deny a jury trial to the contestants upon the theory that the order of December 4, 1943, settled the law of the case. The most that can be contended is that the order determined that the contestants were not entitled to a jury trial on the issues raised in their original objections. Division III of the new objections raises an issue not previously stated — that the will was the result of a fraudulent conspiracy between the proponent and the subscribing witnesses. The ruling of December 4th did not determine that the contestants were not entitled to a jury trial on this new issue. See, as bearing on this question, Waldo Theatre Corp. v. Dondis, D.C., Maine, 1 F.R.D. 685, 687; Lader v. Dahlberg, D.C., N.Y.,2 F.R.D. 49, 50. Under our holding in Division I hereof, this new issue in any event is triable to a jury without demand, pursuant to Rule 177. If a jury trial were to be had on this new issue and the remaining issues were to be tried without a jury, there would be much duplication of effort. Much of the same evidence would be heard in both trials. If our conclusion in Division I is sound, the effect of denying the contestants a jury trial upon any of the issues stated in their new objections is a clear violation of Code section 11864. It would seem to be more important to give effect to that statute and recognize the right of jury trial here than to adhere rigidly to such a judicial practice as the law of the case which is not invariably applied. *Page 750 [4] III. We think the contestants' motions for default were properly overruled. These motions were based on the contention that the proponent was required by Rule 85 (a) and (c) to file within seven days either motions attacking their new objections or replies thereto. Proponent filed no such motion or reply. Before the rules took effect no reply was necessary in order to make an issue on objections to the probate of a will. In re Estate of Jones, 130 Iowa 177, 186, 106 N.W. 610. We find in the rules nothing that required the proponent to file a reply. Indeed, we think nothing in Division IV of the rules, entitled "Pleadings and Motions," is applicable to so-called pleadings in a will contest. This contest is a special action or proceeding. Section 10939, Code, 1939; Sisters of Visitation v. Glass, 45 Iowa 154. See, also, In re Brewer, 224 Iowa 773, 276 N.W. 766. It is, of course, in probate and not at law or in equity. See Coulter v. Petersen,218 Iowa 512, 255 N.W. 684. It is true, as we have held herein, the action is tried in the same manner as an ordinary action at law. We need not inquire whether Division IV of the rules may not have some application to some special proceedings. Indeed, Rule 107 clearly has some application to some special proceedings. But we think it clear that Division IV does not apply at least to this form of special proceeding. The list of "allowable pleadings" found in Rule 68 includes only such as are usual in ordinary actions at law or in equity. Rule 70 confirms this thought by providing: "The petition shall state whether it is at law or in equity, the facts constituting the cause or causes of action asserted, the relief demanded, and, if for money, the amount thereof." That our construction of the rules on this question is a reasonable one seems to be borne out by our numerous decisions to the effect that so-called pleadings in probate matters are usually quite informal and are not generally subject to the strict rules of pleading that govern in law and equity cases. Among such decisions are Soppe v. Soppe, 232 Iowa 1293, 1297,8 N.W.2d 243, 245, and cases cited; In re Estate of Willenbrock,228 Iowa 234, 243, 290 N.W. 502; In re Estate of Onstot, *Page 751 224 Iowa 520, 521, 522, 277 N.W. 563; Thompson v. Romack,174 Iowa 155, 159, 156 N.W. 310. In this connection we have held that a proceeding to probate a will is initiated by merely filing the will; a petition asking that the will be probated is unnecessary (although it is probably the better practice to file such petition); and a contest of the will may be undertaken when the document is filed. In re Will of Young, 224 Iowa 419,275 N.W. 558. Pursuant to the foregoing, the order of December 13, 1943, denying contestants' right to a jury trial is reversed. The order of January 8, 1944, overruling their motions for default is affirmed. — Affirmed in part; reversed in part. All JUSTICES concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429545/

Plaintiffs are two Iowa banking corporations organized in 1931 and located in adjoining towns. In their petition against the Iowa Employment Security Commission they allege that Eloise S. Thomas, as trustee, holds six hundred forty shares (of the one thousand outstanding) in the Lisbon Bank and two hundred eighty shares (of the five hundred outstanding) in the Mount Vernon Bank; that she also *Page 1167 owned ten shares individually in the Lisbon Bank and five shares individually in the Mount Vernon Bank; that of the total outstanding shares in the two banks, seven hundred sixty-five shares of the stock of the Lisbon Bank are owned by the same persons who own four hundred twenty-three shares of the Mount Vernon Bank; that the officers of the two corporations are different persons, except D.U. VanMetre who is the vice president of both banks; and that neither of the banks employs as many as eight persons but the number of employees of each bank when added together does exceed eight. The petition further prayed that the attempted act of the defendants to compel plaintiffs to pay employment-security taxes be enjoined on the ground that each of them employs less than eight persons and as applied to them the common-ownership-and-control statute of the Iowa Employment Security law (section 1551.25F4, Code of 1939) is unconstitutional under various provisions of the State and Federal Constitutions. The defendants' motion to dismiss presented the legal issues of applicability and constitutionality of section 1551.25F4, Code of 1939. The trial court held it was both applicable and constitutional, sustained the motion, and, after plaintiffs elected to stand on the ruling, dismissed the petition. The Iowa Employment Security law is found in chapter 77.2 of the 1939 Code of Iowa. In general it provides for what amounts to a tax upon employers, to be paid to the defendant Commission to provide benefits for periods of unemployment. Section 1551.25 provides as follows: "Scope. As used in this chapter, unless the context clearly requires otherwise: * * * "F. `Employer' means: 1. Any employing unit which for some portion of a day in each of fifteen different weeks within either the current or the preceding calendar year, excepting the calendar year 1935 (whether or not such weeks are or were consecutive) has or had in employment eight or more individuals (not necessarily simultaneously and irrespective of whether the same individuals are or were employed in each such day) * * * "4. Any employing unit which together with one or more *Page 1168 other employing units, is owned or controlled (by legally enforceable means or otherwise) directly or indirectly by the same interests, or which owns or controls one or more other employing units (by legally enforceable means or otherwise), and which, if treated as a single unit with such other employing unit, would be an employer under paragraph 1 of this subsection * * *." [1] I. The two banking corporations were "controlled" by the same interest within the meaning of the above statute. Control of a corporation is lodged in the majority shareholders. We said in First National Bank v. Fireproof S.B. Co., 199 Iowa 1285, 1293,202 N.W. 14, 17: "It is settled doctrine that every stockholder impliedly agrees, on becoming a member of the corporation, that the management and control of the corporate business and interests shall be vested in the majority." Appellants cite the case of Benner-Coryell Lumber Co. v. Indiana Unemployment Compensation Board, 218 Ind. 20, 31,29 N.E.2d 776, 780 [certiorari denied 312 U.S. 698, 61 S. Ct. 741,85 L. Ed. 1132], where the Indiana Supreme Court, under a similar statute, held: "* * * that in the interpretation of the act before us, control of a corporation must be regarded as something more than that remote control that arises out of the fact that a majority of the holders of its voting stock may dictate who its directors shall be." But we think the holding in the Benner-Coryell case was well answered in State v. Kitsap County Bank, 10 Wash. 2d 520, 529,117 P.2d 228, 233, where the Washington Supreme Court, in speaking of the conclusion in the Benner-Coryell case, stated: "Such a construction of the statute would render the administration of the law extremely difficult and complicated, as well as uncertain. The power of control unexercised would call for one classification, and a change of policy, including the exercise of the control, would require another. In view of the necessity for an established administrative policy, it would seem *Page 1169 that the power of control, and control, should be held to mean the same thing." In Maine Unemployment Compensation Comm. v. Androscoggin Junior, Inc., 137 Me. 154, 161, 16 A.2d 252, 256, the court, in interpreting a similar statute, stated: "The control required is not necessarily that legally enforcible. * * * Financially he [majority stockholder] had more in the corporation than either of the other stockholders. Owning the majority of the stock, he could control the election of the company's officers and determine its policies through the agencies of those so elected." In Unemployment Compensation Comm. v. City Ice and Coal Co.,216 N.C. 6, 9, 3 S.E.2d 290, 292, the court, in interpreting a similar statute, stated: "* * * when that individual or group having such control of a corporation likewise has similar control of one or more affiliated and related corporations (as in the instant case), these corporations — using the plain, natural and ordinarily accepted meanings of the words — are said to be `controlled by the same interests.'" The Iowa common-ownership-and-control statute is a definition statute. The legislature has supplied the glossary which is to be used by all who seek to define the word "employer." The term "employer" is given a meaning that might include our ordinary conception of two employers. But the legislature's right to define the terms in the statute in the way it sees fit is unlimited save by constitutional prohibitions. See State ex rel. Unemployment Compensation Comm. v. National Life Ins. Co.,219 N.C. 576, 587, 14 S.E.2d 689, 695, where the court stated: "We think it is self-evident that the Legislature, for the purpose of levying the tax, may determine what shall constitute employment subject to taxation, without regard to existing definitions or categories." Since the majority stockholder and stockholders of the two plaintiff corporations are the same, we hold that the language *Page 1170 of the act plainly brings the plaintiffs within its terms, and we pass to other questions to determine whether, with such an interpretation, the statute violates rights guaranteed to plaintiffs by the State and Federal Constitutions. [2] II. Plaintiffs argue that the statute violates section 10, Article I, of the Constitution of the United States, prohibiting impairment of the obligations of contracts, because the stockholders are not so related to the corporate entity as to be considered a part of it and it is a violation of the contract or charter between the state and the corporation to look behind the corporate entity for the purpose of imposing the tax liability based upon the actual ownership of the stock. A similar prohibition against a law impairing the obligation of contracts is found in section 21, Article I, of the Iowa Constitution. In Rodemacher v. Milwaukee St. Paul Ry. Co., 41 Iowa 297, 301, 20 Am. Rep. 592, we held that a statute fastening liability on a railway for damages resulting from fires caused by the operation of the railway was constitutional. In that case it was argued "* * * that the statute in question * * * impairs the contract existing between the state and the corporation under which its charter is conferred." In answer to the argument, we there stated: "But there is no implied contract between a state and a corporation that there shall be no change in the laws existing at the time of the incorporation which shall render the use of the franchise more burdensome or less lucrative, any more than there is between the state and an individual that the laws existing at the time of the acquisition of property shall remain perpetually in force." In New Haven Metal Heating Supply Co. v. Danaher,128 Conn. 213, 222, 21 A.2d 383, 388, the same attack of unconstitutionality was made against the common-ownership-and-control provision of the Connecticut Unemployment Compensation Act, and there the court quoted the following from an earlier Connecticut case (Converse v. Aetna National Bank, 79 Conn. 163, 169, 64 A. 341, 7 Ann. Cas. 75): "`A corporation organized under general incorporation laws, whether there be or be not a statutory reservation of a *Page 1171 power of amendment or repeal, holds its franchises necessarily subject to the right of the State to change those general laws, and their application to existing corporations, in any manner not prejudicial to vested interests of the latter or of its creditors or stockholders, nor inconsistent with the terms of the implied contract of the latter.'" It will also be noted that under section 8376, Code of 1939, the state reserves the right to alter corporate charters. We hold that the statute is not unconstitutional as impairing the obligation of contract. [3] III. Plaintiffs' chief attack upon the constitutionality of paragraph 4 goes to the "equal rights and privileges" and "due process" clauses of the Federal and State Constitutions (sections 6 and 9, Article I, of the Iowa Constitution, and the Fourteenth Amendment to the Constitution of the United States). Here, the basic charge of unconstitutionality is that the statute is arbitrary and discriminatory. Plaintiffs argue that the statute denies to them the same rights and privileges that are accorded to other employers with the same number of employees, and that a burden is placed upon them which is not laid upon other corporations with the same number of employees; that the distinction is arbitrary and capricious. The litigation involving the constitutionality of common-ownership-and-control statutes found in the various state employment- (more often called unemployment-) compensation statutes presents an interesting study. More than half of the states included a common-ownership-and-control provision in their various unemployment-compensation statutes. At the outset, the principal classification of employers with eight or more employees was assailed in the case of Carmichael v. Southern Coal Coke Co., 301 U.S. 495, 509, 510, 57 S. Ct. 868,872, 873, 81 L. Ed. 1245, 109 A.L.R. 1327, decided by the Supreme Court of the United States May 24, 1937. In the opinion, the Supreme Court of the United States, speaking through Mr. Justice Stone, held the "contributions" which the Alabama act exacted from employers were a tax, and the validity of the act under the Federal Constitution was "* * * to be determined in the light of constitutional principles applicable to state taxation." In answer to the argument that there can be *Page 1172 no reason for a distinction, for the purposes of taxation, between those who have only seven employees and those who have eight, Justice Stone stated: "Yet, this is the type of distinction which the law is often called upon to make. It is only a difference in numbers which marks the moment when day ends and night begins, when the disabilities of infancy terminate and the status of legal competency is assumed. It separates large incomes which are taxed from the smaller ones which are exempt, as it marks here the difference between the proprietors of larger businesses who are taxed and the proprietors of smaller businesses who are not. Administrative convenience and expense in the collection or measurement of the tax are alone a sufficient justification for the difference between the treatment of small incomes or small taxpayers and that meted out to others." After the constitutionality of the classification was set at rest by the decision in the Carmichael case, the common-ownership-and-control provision was assailed on the grounds here urged. About the first case to reach a court of last resort was the case of Independent Gasoline Co. v. Bureau of Unemployment Compensation, 190 Ga. 613, 616, 10 S.E.2d 58, 60, decided June 9, 1940 [certiorari denied 311 U.S. 707,61 S. Ct. 175, 85 L. Ed. 459]. In this case, Hardin, the president and treasurer of two corporations, owned the majority stock in both of them. One corporation had five employees and one four. In holding the act unconstitutional under the State and Federal "equal protection" constitutional provisions, the Georgia Supreme Court stated: "But it is contended that the legislature was authorized to place this defendant in a classification different from similar corporations and individuals, because of the fact that the owner of a majority of its stock owns a majority of the stock of another corporation, and that the two corporations are controlled by the same interests. This reasoning ignores the fact that this defendant is utterly powerless to determine who shall own its capital stock, or to fashion the business transactions and conduct of its stockholders. Since these are matters beyond the *Page 1173 control of the corporation, they do not constitute a basis justifying the classification; and a classification must be reasonable and have a fair and substantial relation to the object of the legislation." On November 8, 1940, the Supreme Court of Indiana interpreted a similar provision in the Indiana unemployment-compensation law, in the case of Benner-Coryell Lbr. Co. v. Indiana Unemployment Compensation Board, supra. With liberal quotations from the Georgia decision in the Independent Gasoline Company case, the Indiana Supreme Court held that its common-control provision would be unconstitutional if applied to two corporations with less than eight employees each, but more than eight if considered as one employing unit, where the majority stock in both was owned by one person. But the decision only concludes that the word "control" as used in the statute does not reach the situation where the only control is ownership of the majority of voting stock. The reasoning of the Georgia Supreme Court in the Independent Gasoline Company case was rejected by the Washington Supreme Court in that court's decision in State v. Kitsap County Bank, supra, holding the common-ownership-and-control provisions in its unemployment-compensation law constitutional. In the opinion the court stated, at page 529 of 10 Wn. 2d, page 233 of 117 P.2d: "We cannot follow the reasoning of the Georgia court in its holding that a classification which would otherwise be valid, is unconstitutional, because some interests may be adversely affected thereby. Some persons may complain, and often with seeming reason, of every legislative classification, but dividing lines must be drawn somewhere, and the question is not whether there is in fact some discrimination, but rather whether the discrimination is justified." We have earlier quoted the language of the Washington Supreme Court in this case, in reply to the holding in the Benner-Coryell Lumber Company case where the Indiana Supreme Court had construed the word "control" as importing something more than the mere ownership of majority corporate stock. In Unemployment Compensation Comm. v. J.M. Willis *Page 1174 B. B. Shop, 219 N.C. 709, 15 S.E.2d 4, the Supreme Court of North Carolina upheld the constitutionality of its majority-control-and-ownership clauses, after considering both the Georgia and Indiana decisions. Thereafter, similar provisions in the unemployment-compensation laws of several states were upheld in New Haven Metal Heating Supply Co. v. Danaher, supra; Florida Industrial Commissioner v. Gary-Lockhart Drug Co.,143 Fla. 293, 196 So. 845; Wiley Motors v. Unemployment Compensation Comm., 130 N.J. Law 30, 31 A.2d 39; Godsol v. Michigan Unemployment Compensation Comm., 302 Mich. 652, 5 N.W.2d 519, 142 A.L.R. 910; Wayne Apartments v. Michigan Unemployment Compensation Comm., 305 Mich. 714, 9 N.W.2d 879, and Mississippi Unemployment Compensation Comm. v. Avant, 192 Miss. 85,4 So. 2d 296, id. 684 [appeal dismissed 316 U.S. 641, 62 S. Ct. 947,86 L. Ed. 1727]. [4] We are convinced that the better rule is laid down by the majority of the cases that have decided that the common-ownership-and-control clause fixes a classification which is neither arbitrary nor capricious. It seems to us that in the earlier cases the question became involved by legalistic discussion of theories of corporate entities and the rights of majority and minority stockholders. The legislative definition of an "employer" in this statute springs from realistic considerations. The legislative purpose of the act, as expressed in section 1551.08, Code of 1939, is to provide stable employment, benefits for unemployment, and the maintenance of purchasing power through periods of unemployment. That the legislature may tax for that purpose is beyond question. That the legislature may make a reasonable classification for the imposition of the tax is likewise beyond question. By its definition of the word "employer," under the common-ownership-and-control provision, the legislature has merely used as a basis the common control that exists between otherwise separate business establishments. As said in New Haven Metal Heating Supply Co. v. Danaher, supra, at page 222 of 128 Conn., page 388 of 21 A.2d: "No justification is suggested for the claim that the legislature does not have the authority to recognize the *Page 1175 practicalities of control notwithstanding the existence of corporate entities which may be materially affected by such recognition. * * * It is only in the shadows cast by legal technicalities that a lack of common ownership and control can be discerned. Looking through these shadows to discover the substance of things, as courts are now wont to do, to the end that fraud may be defeated, obligations and responsibilities not evaded and the ends of justice subserved, one real ownership and control may be found present in the situation before us." The classification resting upon control is reasonable and it is calculated to effect the legislative purpose. The possibility that evasion, by splitting business establishments, is prevented is sufficient justification for the classification. The experience in Connecticut is interesting. Under the act as originally passed, it was possible for employers with five or more persons to split up their businesses and evade the tax. At its next session, in 1939, the legislature adopted the common-ownership-and-control provision as an amendment, upon the suggestion made by the administrator of the act and the statement that "* * * certain employers were taking advantage of this loophole in the 1937 law * * *." See New Haven Metal Heating Supply Co. v. Danaher, supra, 128 Conn. 213, 221, 21 A.2d 383,387, where the court stated that the amendment "* * * considered in connection with the avowed purpose of its enactment, leaves no doubt that the classification prescribed by it has a fair and substantial relation to the object of the legislation." The fact that here the plaintiffs did not split their businesses for the purpose of tax evasion is not important. As was said in State v. Kitsap County Bank, supra, at page 527 of10 Wn. 2d, page 232 of 117 P.2d: "It is not a prerequisite to the enforcement of such an act in each individual case, that the one against whom it is sought to be enforced be actually engaged in some practice or scheme intended to accomplish an evasion of the law. The possibility that some persons may follow such evasive practices may be sufficient justification for the classification, and the classification according to the terms of the statute being justified, it applies *Page 1176 to all, regardless of the character of the operation or organization. * * * It cannot be held that the legislature, in failing to further refine the classification now under discussion so as to exempt therefrom persons who were not actually engaged in any evasive practice, was acting unreasonably, arbitrarily, or capriciously. The practical difficulties of devising a statute which would operate to prevent such practices, while not applying to other cases, and the expense involved in connection with the administration of such refined legislation, afford ample justification for the broad inclusive features of subsection (4)." We hold that section 1551.25F4, Code of 1939, is a valid constitutional exercise of legislative power and that the classification contained therein has a fair and substantial relation to the object of the legislation. The decision of the trial court is affirmed. — Affirmed. GARFIELD, HALE, MILLER, BLISS, and OLIVER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429546/

The Cedar Rapids Cooperative Dairy Company, which will be hereafter referred to as the Dairy Company, is a corporation, organized in 1926, under the provisions of chapter 389 of the 1924 Code, which provides for the organization of cooperative associations. Its principal place of business was, at the times herein involved, in Cedar Rapids, Iowa, where it maintained an office and where it manufactured butter and bought and sold dairy products, having a large number of customers and doing a very large volume of business. At the time of its organization one Harold G. Smyth was employed as general manager and continued in that capacity until some time in 1932. He was in sole charge of the business and activities of the company. The board of directors and other officers of the company were all actively engaged in farming, residing outside of the corporate limits of Cedar Rapids, and gave but very little attention, if any, to the active business of the company. Smyth handled all of the funds of the association, bought milk and cream, made sales of butter to commission merchants, drew sight drafts, endorsed checks, deposited the moneys of the corporation in various banks, received and answered all correspondence, *Page 448 hired and discharged all employes, fixed their compensation, and was in fact in complete and unrestricted charge of the entire business of the company. He was empowered to sign checks subject to the counter-signature of some other officer of the company, but this latter provision was never complied with and Smyth had sole charge of and authority over the funds of the company. The principal checking account of the company was carried in the Peoples Savings Bank of Cedar Rapids, and during the years in which Smyth was manager thousands of checks were drawn upon this account by him, most of which passed through the clearing house at Cedar Rapids, and this manner of doing business and the authority exercised by Smyth were generally known by the banking and business interests of the city. Smyth was never specifically authorized or directed to open a checking account in the defendant bank, but savings accounts for investment purposes were opened by him in the defendant bank and many other banks in Cedar Rapids and elsewhere in Linn County. Funds were withdrawn from such accounts from time to time on Smyth's own signature and all signature cards authorizing withdrawals were signed "Cedar Rapids Cooperative Dairy Company, by Harold G. Smyth, Manager." Prior to March 19, 1931, Smyth had been solicited on various occasions by an employee of the defendant bank to open a checking account with the defendant bank, and on the date mentioned he deposited with the defendant bank a check for $4,985.81 and opened a checking account with the defendant bank in the name of the Cedar Rapids Cooperative Dairy Company, by Harold G. Smyth, Manager, with the signature card properly executed as in other banks where funds of the company had been deposited. Later and on March 8, 1932, another check for $3,923.55 was deposited in the checking account of the dairy company in the defendant bank. The funds so deposited in the checking account in the defendant bank, as well as in the savings account, were withdrawn on checks signed "Cedar Rapids Dairy Company, by Harold G. Smyth, Manager" in accordance with the signature cards, with the exception of $3,255.55 which remained in the checking account at the time Smyth was found to be an embezzler, and was later withdrawn by the dairy company. The two checks which we have indicated as having been deposited in the checking account of the defendant bank were received by the dairy company from a commission house in *Page 449 Chicago in payment for products of the dairy company sold by the commission company. There was withdrawn from the checking account in the defendant bank various amounts during the year 1931 upon checks signed "Cedar Rapids Cooperative Dairy Company, by Harold G. Smyth, Manager" and at least two of such checks were used to pay additional compensation to two of the employes of the dairy company, probably under some secret arrangement with Smyth which was unknown to the officers and directors of the dairy company. The funds represented by the first check deposited in the defendant bank were all exhausted on the last day of December, 1931, and on March 8, 1932, the additional check of $3,923.55 was deposited and withdrawals were made from the deposit up to March 21, 1932, of $668.00, and on the last date there remained in the checking account in the defendant bank the sum of $3,255.55 which was withdrawn later by the president of the dairy company. The checks drawn upon the defendant bank were practically all destroyed by Smyth as they were returned to the dairy company, as well as the monthly statements of the account issued by the bank. However, Smyth, against whom no criminal proceedings were ever instituted, when called as a witness in behalf of the plaintiff, testified that none of the funds withdrawn from the defendant bank were applied for the benefit of the company, and the defalcation or amount of funds embezzled by Smyth appears to have been $4,768.00. Smyth had also withdrawn from the defendant bank the amount of one check for $885.81 and this he deposited in the Cedar Rapids Savings Bank Trust Company, where he had deposited other moneys of the dairy company, and later withdrew from the said Cedar Rapids Savings Bank $890.00 and deposited it in the Peoples Savings Bank in the checking account of the dairy company. There was left, however, in the Cedar Rapids Savings Bank Trust Company $885.81, which was later recovered by the dairy company. The plaintiff, appellant, Fidelity Deposit Company were sureties upon the bond of the manager, Smyth, and paid to the dairy company the amount of the defalcation, and the dairy company assigned its alleged claim against the defendant bank to the surety company, and the surety company brings this action. The record shows, and the secretary of the dairy company testifies, that "there is no record any place of any action taken *Page 450 by the board of directors designating any depositories for the company's funds that I can find in these minutes. After this date, December 23, 1926, accounts were opened in a dozen or more banks, in the name of the Cedar Rapids Cooperative Dairy Association by our general manager, Mr. Smyth. He deposited the savings accounts in these banks with the knowledge and consent of the board of directors. I cannot find in the minutes anything to indicate to anyone examining the records that Mr. Smyth's authority to deposit money was limited to any specific bank." Reed, the president of the company, testified that neither he nor the directors knew of the checking account in the Merchants National Bank. However, the witness, Harold G. Smyth, testified, "Mr. Wiley (who was President of the company at the time) knew plenty about this — about the manner in which these funds were handled." In fact, the entire record indicates that no amount of inquiry or investigation in the books and records of the dairy company would have shown that there was any limitation or restriction on the authority of Smyth, its general manager, to open the account in the defendant bank or any other bank, and to withdraw the funds as he did. On the contrary, every record and transaction that could have been investigated and inquired into would have disclosed that Smyth was held out to the public by the dairy company as having full authority in respect to all its business affairs including the deposits, withdrawals, and disbursements of the company's funds. It is conceded by the appellee, bank, that it made no inquiry or investigation as to Smyth's authority to open the account with it, deposit the funds therein, and withdraw them upon checks of the dairy company signed by Smyth as manager. It is also conceded, or shown by the record without controversy, that the bank knew nothing of Smyth's speculations until it was advised by the officers of the dairy company when they discovered the embezzlement. The appellant contends that the deposit by Smyth in the defendant bank was wrongful, without the knowledge or consent of the dairy company and made with the intent to embezzle the same; that the funds so deposited were the property of the dairy company and remained its property in the defendant bank, and the bank having notice of such ownership is accountable as, trustee to the dairy company; that the defendant bank was negligent in not making any inquiry as to the express authority of Smyth, *Page 451 and that the burden was upon the defendant bank to show express authority in Smyth to deposit and withdraw the funds. While the appellee contends that Smyth as general manager had actual authority to make the deposits in the defendant bank and to withdraw the funds. The appellee further contends that Smyth was held out to the public as having authority to handle the affairs and entire business of the dairy company and that without actual notice of any restrictions or limitations upon his authority the defendant would not be charged with any knowledge of any secret limitations of his authority. It is not disputed that the funds deposited in the defendant bank were the property of the dairy company and remained the property of the dairy company until withdrawn by Smyth and converted to his own use. It must also be conceded that the defendant bank had no notice or knowledge of any limitations upon Smyth's authority. It is true that the bank made no investigation or inquiry as to Smyth's authority, but that it had knowledge of the fact that he was in sole charge and management of the business and funds of the dairy company and had over a period of years deposited the funds of the dairy company in various banks and had withdrawn the same. In fact the record shows that as far as the contract of employment of Smyth is concerned, and as far as the records of the dairy company show, there was no limitation or restriction upon Smyth's authority to conduct the affairs and business of the company, including the handling of all cash and the deposit and withdrawal thereof in the various banks. We are constrained to hold that Smyth had both actual and ostensible authority to deposit the funds in the various banks, including the defendant bank, and make withdrawals from such deposits. It is practically the universal holding that a bank is not charged with notice of, nor liability for, a misappropriation of an agent from the mere fact that the agent deposits funds to his own or his principal's account and thereafter misappropriates the funds by checks drawn upon the account. The mere fact that a bank has notice that the funds deposited belong to a principal imposes no duty upon the bank to inquire as to the agent's authority to make the deposit or withdraw the funds. Bank v. Arkenburgh (C.C.A.) 55 F.2d 130, 132; Quanah Railway Co. v. Wichita Bank (Tex.Sup.), 93 S.W.2d 701, 106 A.L.R. 821; Cigar Co. v. Bank, 134 Okla. 286, 273 P. 269; Rice v. Bank, *Page 452 140 Wash. 20, 247 P. 1009; Rodgers v. Bank, 179 Minn. 197,229 N.W. 90; Pierce Gamet v. Bank, 213 Iowa 1388, 239 N.W. 580. In Santa Marina Co. v. Bank (C.C.A.), 254 Fed. 391, the circuit court of appeals held that where an officer of a corporation had authority to collect the indebtedness due the corporation and to deposit the same in a particular bank, he had authority to collect the items by depositing them in another bank and to withdraw the same without any liability on the bank in which they were deposited in the absence of actual knowledge of bad faith on the part of the officer or agent of the corporation. In the case of Quanah Acme Pacific R.R. Co. v. Wichita State Bank, 93 S.W.2d 701, 705, 106 A.L.R. 821, decided in April, 1936, the supreme court of Texas carefully and fully considered all of the leading authorities on the questions here at issue and state the question involved in the case before it as follows: "If a person negotiates to a bank a bill of exchange payable on its face to the person negotiating it in a trust capacity, and the purchasing bank, in the very transaction by which it acquires the instrument passes its proceeds to the individual checking credit of the trustee on its books, and thereafter allows him to check out such proceeds on his individual checks, and as a result of such transactions the fund is lost to the true owner, is the bank liable for such loss to such true owner? "This question involves a case where the bank received no part of the funds, and had no actual knowledge that the funds were being checked to persons not entitled to receive them. Also, a case is involved where the bank made no inquiry. "In our opinion, the above question should be answered in the negative. In this connection, we think the great weight of and better authority is to the effect that it is not deemed a breach of trust, or such a suspicious circumstance as to put a duty on the bank to investigate, for a trustee to carry trust credits in his personal bank account, and this even though such fact is known to the bank. In this connection, it is generally held that the bank is entitled to believe that the trustee will check the trust credit out of his personal account for proper trust purposes. The main reasons for this rule are that to require the bank to investigate such transactions would put a burden on the bank for which *Page 453 it is not paid by the trust, and would clog the handling of commercial paper in a way that would be to the disadvantage generally of trust business, and also to business in general." In the case of Bank v. Arkenburgh, supra, a bank had honored checks drawn by a fiduciary against the account without any knowledge on the part of the bank that the fiduciary was converting the trust fund to his own use, and it was held that the bank was not liable, saying, "Even if the bank had known that the fund covered by the check constituted a trust in the hands of Mrs. Dunlop (fiduciary), it would not be liable to the owners of the fund merely because it allowed and honored checks drawn against that account, unless it either acquired an advantage or benefit as a result of the diversion of the trust fund or joined in the diversion with actual knowledge that such diversion was intended or was being executed, and thereby become privy to it." In the instant case there is no contention, or even intimation, that the defendant bank had knowledge of the embezzlement or intended embezzlement by Smyth, or that it in any way profited by the transaction involved. The bank could only be held liable for receiving the deposit or permitting the withdrawals if it had notice of the dishonest intention of Smyth. A different rule, of course, would prevail if the bank had used the funds deposited by the agent to pay the agent's debt to the bank, or in some manner participated in the defalcation. In such event the bank would be liable. Such was the situation in Brannen v. Bank, 190 Iowa 630,180 N.W. 886, cited and relied upon by the appellant, but that case and others like it, cited by appellant, are not controlling in the instant case for here no appropriation of any of the deposits was made by the defendant bank and the defendant bank had no knowledge and did not participate in any way in the misappropriation of the funds by Smyth. There was nothing in the manner of making the deposits in the defendant bank or in the withdrawal of the same that would serve at any time during the period of more than a year to put the defendant bank on inquiry as to the honesty or integrity of the general manager, Smyth. Some of the funds withdrawn were used to pay bonuses or additional salaries to the employees of the dairy company, and some were withdrawn and redeposited in the company's accounts in other banks. During all of the time that the account was opened in the defendant bank, the *Page 454 bank handled it as it would other accounts, and each month, or at intervals, mailed to the dairy company statements of the accounts showing deposits and withdrawals. As we have noted, most of the checks representing the withdrawals, as well as these monthly statements of account, were destroyed by Smyth, but of this the bank had no knowledge. It must be concluded that actual knowledge on the part of the defendant bank as to any claimed limitations upon the authority of the general manager of the dairy company, or the fact that the general manager was embezzling a part of the funds, was not proved, and no facts or circumstances are shown such as would put the bank on inquiry as to these matters. Under the circumstances shown in this record the defendant bank had a right to act upon the actual and ostensible authority of the agent, Smyth, and it should not be held liable for his defalcation and embezzlement. The learned trial court found that Smyth had both actual and implied authority to make the deposits and withdrawals in question, and that the dairy company and its assignee, the plaintiff herein, are and should be estopped, barred and precluded from asserting or claiming the alleged claims against the defendant, and from questioning the acts and authority of the general manager in reference to the matters involved in the transactions with the defendant bank. And the trial court found for the defendant and dismissed plaintiff's petition with costs. We are constrained to hold that the finding and judgment of the trial court has support in the record and in the greater weight of authority. We do not overlook the fact that there are a few courts of last resort supporting the theory and contentions of the appellant, but such cases are against the overwhelming weight of authority, and we cannot subscribe to rules laid down therein contrary to the rules announced in this opinion. It follows that the judgment of the trial court must be and is affirmed. — Affirmed. RICHARDS, C.J., and PARSONS, DONEGAN, MITCHELL, STIGER, KINTZINGER, and HAMILTON, JJ., concur. *Page 455

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429550/

The defendant, the Lincoln Joint Stock Land Bank of Lincoln, Nebraska, appellant herein, is the owner of some twenty farms comprising two thousand acres of land in all, situated in Clarke County, Iowa. Through its agent and fieldman, Mr. Schewe, with headquarters in Osceola, Iowa, where he resided with his family, and who in his capacity of fieldman looked after the appellant's farms in some fourteen counties in southwestern Iowa, it leased one of these farms to appellees. The negotiations were all made with the fieldman and the lease was signed up and mailed in to the company, and the company approved *Page 59 the written lease. Possession was to be given March 1, 1936. The tenant for the prior year refused to surrender possession and appellant was therefore unable to deliver possession of said farm to appellees. This suit is an action against the appellant for damages, in which appellees allege they have suffered because of appellant's failure to put them in possession of said farm. The original notice was served on the fieldman, Schewe. Appellant filed a special appearance challenging the service and jurisdiction of the court upon the following grounds: (1) That the appellant, being a federal corporation created by Congress and having its principal place of business in Lincoln, Nebraska, cannot be sued in the Iowa state courts; (2) that the appellant had no general agent and did not maintain an office or agency in Clarke County, and hence the service of notice on the fieldman conferred no jurisdiction on the court. Resistance was filed to the special appearance and evidence was introduced, and after the matter was fully heard and argued to the court, the special appearance was overruled and this appeal is from such order. [1] There was a hearing before the trial court had on oral testimony. Both parties introduced their evidence and the matter to be determined by the trial court was whether or not the defendant company had an office or agency, and whether or not the fieldman, Schewe, was employed by the company at such office or agency. It was a fact question passed upon by the trial court, and he ruled in favor of the plaintiffs, and we think rightly so. The question of what constitutes an office or agency within the meaning of sections 11046 and 11079 of the Code of 1935 was discussed in the case of Locke v. Chicago Chronicle Co., 107 Iowa 390,393, 78 N.W. 49, 50, and in that case the legal principle governing was announced in these words: "It is sufficient if the principal have an office or agency in the county in which a suit growing out of, or connected with, the business of that office or agency is brought, and service of the notice be made upon an agent or clerk employed in that office or agency. There must be an office or agency, and an agent or clerk employed therein, but no fixed rule is given for ascertaining what constitutes an office or agency. That must necessarily be determined by the facts in each case." And in that case the court found that the evidence was sufficient to establish an agency in Polk County where the suit was *Page 60 brought. The facts in the instant case bearing upon the question of the existence of an office or agency are much stronger and more conclusive than in the Locke case. While the fieldman had no designated office, except his residence, which was on the second floor of a building located upon the public square in Osceola, the county seat of Clarke County, the defendant advertised him as its fieldman and gave the telephone number at Osceola where clients interested could call him, and it was at this place that he transacted the business of the company and met the plaintiffs and drew up the very lease in question. He was looking after farms in fourteen counties, thousands of acres of land, more than two thousand acres were in the county in which this suit was brought, and he had no place of business in the whole territory except his apartment in Osceola. It was his duty to look after the leasing of these farms and the collecting of the rents and the necessary details in connection therewith. The fact that he had no authority to bind the company until after the matter was submitted to the company and approved by them does not tend to disprove the agency, but only goes to the question of the extent of his authority. His authority was limited. He was not in the broad sense of the term a general agent of the company, but was their general agent in that field of fourteen counties as to the matters left in his charge, and was such agent as is contemplated by sections 11046 and 11079 of our statutes, and on this issue appellees must prevail. [2] Appellant's second contention that the Lincoln Joint Stock Land Bank was organized under federal law and was a federal or national corporation and not suable in the state courts is not tenable. Joint stock land banks have the power of and are subject to all restrictions and conditions imposed on federal land banks, so far as the same are applicable. 12 U.S.C.A., Sec. 813. The powers of federal land banks are enumerated in 12 U.S.C.A., Section 676. In paragraph 3 it is said that such banks have power "to make contracts", and in paragraph 4 it is said that such banks have power "to sue and be sued, complain, interplead, and defend, in any court of law or equity as fully as natural persons." The corporation itself makes use of the Iowa courts in enforcing its mortgages and its property rights. Both the United States Supreme Court and this court have recognized the doctrine that the state courts have jurisdiction of such corporation where it maintains an office or agency within the state *Page 61 upon whom service of notice may be had. Federal Land Bank v. Priddy, 295 U.S. 229, 55 S. Ct. 705, 79 L. Ed. 1408; New Hampshire Fire Ins. Co. v. Utterback, 184 Iowa 661,169 N.W. 46; Baker v. Joint Stock Land Bank, 205 Iowa 1259,217 N.W. 621. And our own code of procedure, chapter 488, section 11046, under the general title, "Place of Bringing Actions", is couched in broad terms and applies to a corporation, company, or individual, and is broad enough to include defendant organization. The case of Fisher Van Gilder v. First Trust Joint Stock Land Bank, 210 Iowa 531, 231 N.W. 671, 69 A.L.R. 1340, has no application to the fact situation in this case. In the Fisher case the notice was served in Chicago and the court held that the Iowa court acquired no jurisdiction of the company by serving some officer in the city of Chicago. Likewise, in the case of Van Dresser v. Oregon R. Nav. Co. (C.C.) 48 Fed. 202, relied upon by appellant, is not in point. In that case the corporation had no office or agency in the state of Iowa, upon whom process could be served. Joint stock land banks are privately owned corporations, organized for profit to their stockholders through the business of making loans on farm mortgages, and are not government instrumentalities. 12 U.S.C.A., Sections 811, 812, and 813. Federal Land Bank v. Priddy, supra. [3] Appellant also raises in this court the question of the sufficiency of the original notice as to form. This question was not raised in the lower court and cannot be raised for the first time in this court. This question has been decided so often that no citation of authority is necessary, but see Farris v. Iltis, (Iowa) 243 N.W. 195; Reeves v. Howard,118 Iowa 121, 91 N.W. 896. The objection below was as to the legality of the service on the defendant's fieldman, Schewe, and not to the form of the notice itself. Furthermore, insofar as the form of the notice or the service thereof is concerned, it appears by the appellees' amended and additional abstracts that a new notice has been served on the agent, addressed to the defendant instead of to the plaintiff. Likewise, an amendment to the original petition has been filed, setting up the fact that the appellant is a nonresident of this state, and asking for a writ of attachment, and attachment was issued and levy has been made upon 160 acres of land in Clarke County owned by the defendant, and notice served upon the president of the corporation in the state of Nebraska, *Page 62 and it appears from this record that the defendant is the owner of two thousand acres of land in Clarke County and owns thousands of acres of land in adjoining counties, and is a nonresident of this state, which is one of the grounds for writ of attachment. No attack was made upon the method used by the appellees in presenting these facts to the court by amended and additional abstract, and the fact of the service of the additional notices and of this attachment is not denied, but mention thereof is made in appellant's argument. It is claimed by the appellees that the question insofar as the notice itself is concerned is now moot. While perhaps this is not strictly true, the fact remains that if the district court of Clarke County had jurisdiction of the subject matter of this action — a question concerning which we entertain no doubt — a reversal of this case would avail the appellant nothing. It would be immediately faced with a trial of the same issues under a sufficient notice aided by an attachment, which would be equivalent to a personal judgment against the defendant, where the defendant is the owner of twenty farms averaging more than 100 acres each in the same county where the suit is pending and upon which there is now levied in this very suit a valid attachment. The motion to dismiss the appeal for failure to observe Rule 30 of this court has been considered, and we think the contention of appellees in respect thereto is well founded. Counsel should be more careful in observing the rules of this court, but in view of the result we have reached, it is unnecessary for us to devote further time to a discussion of this matter. The order of the trial court in overruling the special appearance is affirmed. — Affirmed. RICHARDS, C.J., and PARSONS, SAGER, STIGER, DONEGAN, ANDERSON, and KINTZINGER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429552/

This is a suit brought by the beneficiary named in a policy of insurance for the face amount of $3,000 upon the life of Milo E. Wenger, husband of plaintiff, which policy contained provisions for double insurance benefits for accidental death. The contest is over the right to recover double insurance benefits; there is no dispute over the face amount. Pertinent provisions of the policy necessary to an understanding of this opinion are as follows: "This contract is made in consideration of the payment of Sixty-four and 65/100 Dollars being the premium for the first year's insurance, * * * and the payment of a like amount upon the 15th day of September in each year hereafter until the death of the insured. * * * The above premium includes $3.45 for Total and Permanent Disability Benefits and $4.50 for Double Indemnity." Under the heading "Double Insurance Benefits" it is provided: "The company will pay double the face of the policy provided premiums have been duly paid and this policy is then in force and is then surrendered properly released. * * * In event of non-payment of the premium due on this policy this benefit automatically ceases and no further premiums are payable. * * * In event any premium on this benefit remains unpaid the company will cancel this provision." Under the heading "Payment of Premium" it is provided: "Except as herein provided the payment of premium or installment thereof shall not maintain the policy in force beyond the date when the next premium or installment thereof is payable." A grace of 31 days is granted by the policy for the payment of every premium after the first, during which period the insurance shall continue in force. Under the heading "Option on Surrender or Lapse" it is provided: "After this policy shall have been in force three full years, *Page 1271 the owner, within one month after any default, may surrender this policy and elect: (a) to accept the value of this policy together with the reserve on any existing paid up additions in cash, or (b) to have the insurance continued in force from date of default, without the right to loans, for its face amount and outstanding dividend additions less any indebtedness to the Company hereon but without total and permanent disability or double insurance benefits, or (c) to purchase non-participating paid-up insurance, payable at the same time and on the same conditions as this policy but without total and permanent disability or double insurance benefits. * * * If the owner shall not, within one month from default, surrender this policy to the Company at its Home Office for its cash surrender value of paid-up insurance, as provided in options (a) and (c), the insurance will be continued as provided in option (b)." The policy contained the following provision with reference to reinstatement: "This policy upon evidence of insurability satisfactory to the company may be reinstated by payment of arrears of premiums with interest at six per centum per annum." The issue to be determined arises on the pleadings, the appeal being from an order sustaining plaintiff's motion to strike a substantial portion of the defendant's answer. The motion is in two divisions. The first division strikes at that portion of the defendant's answer which sets up the provisions of the policy, disclosing that in default of payment of premium, double insurance benefits were forfeited and ceased, and the further provision of the policy relating to options where the policy had lapsed for failure to pay premium, and alleged the fact that the insured having failed to make any election, the insurance under option (b) was continued in force for the face amount without double insurance benefits, less any indebtedness to the company thereon, the grounds of this division of the motion being that the allegations of the answer contained a sham defense setting up irrelevant and redundant matter, in that the allegations of the answer set up a defense, namely, failure to pay premium, inconsistent with the reason for denying liability set forth in a letter from *Page 1272 the company, which it is alleged is not permissible under the rule of law that where a party gives a reason for his conduct and decision touching anything involved in controversy, he cannot after litigation has begun change his ground and his defense upon another and different consideration, that he is not thus permitted to mend his hold and is estopped from doing so. Donley v. Porter, 119 Iowa 542, 545, 93 N.W. 574. Omitting the formal parts the letter reads: "Gentlemen: "On the writer's return to the office your letter of December 18 enclosing proofs of death on the above policy, has been referred to the writer for attention. "For your information, this policy lapsed because of Mr. Wenger's failure to pay the premium originally due September 15, 1934, on the extended due date, namely, November 15, 1934. Because of Mr. Wenger's failure to exercise any of the options on surrender or lapse provided for in the policy, the insurance for the face of the policy, less the policy loan indebtedness, namely $2816.00 was continued without double insurance benefits for some three years and eleven months from September 15, 1934, under the provisions of Option (b). "On November 26, 1934, Mr. Wenger handed the Cashier in our Cedar Rapids agency, an application for reinstatement, a copy of which is herewith enclosed, with a remittance of $5.00 for an additional extension of time, provided the application for reinstatement was approved. You will observe that the application for reinstatement contains a specific agreement that reinstatement shall not be in effect unless and until the application is approved by the Society at its home office during the applicant's lifetime and continued good health. The application for reinstatement and the remittance were forwarded to our home office, reaching this office on November 28, 1934. At the time when Mr. Wenger was killed, on November 30, 1934, no action had been taken by our company on the application for reinstatement. Hence the policy had not been reinstated at the time of Mr. Wenger's death, and we cannot approve the claim for double insurance benefit. We are, of course, ready at any time to pay the beneficiary the sum of $2816 due as above stated, and we are also ready and willing to pay to the executor or administrator of Mr. Wenger's estate the $5.00 remittance with interest from the *Page 1273 time when it was handed to the Cashier of our Cedar Rapids agency. "Will you kindly advise us whether such a settlement is satisfactory and call on us for any further information or explanation which you may desire regarding this matter?" Comparing this letter with the allegations of the answer which are asked to be stricken as inconsistent with the letter, we find no inconsistency in the claims of the company as contained in the answer with those contained in said letter. The answer goes a little more into detail, but the subject matter is the same. It is the contention of appellee that the only reason given in the letter for denying liability is the fact that the company had not acted upon the application for reinstatement. We think this is an unreasonable and unwarranted interpretation of the language used in said letter. The company had just received proofs of loss wherein plaintiff was claiming $6,000 less the amount of the loan, and the letter was in response to this matter. Clearly, the purpose of the letter was to point out the reason why there was nothing due on this policy under the double liability benefit clause, and the very first premise for the discussion in the letter is that the policy had lapsed for failure to pay premium when due, and insofar as double liability benefits were concerned this right had been lost. The letter then recited what had been done by Mr. Wenger in an effort to reinstate the lapsed policy and in this connection calls attention to the specific allegations in the application for reinstatement that it was necessary for the company to act on the matter, and that before the company acted the insured's death occurred, and the policy having lapsed and not having been reinstated, consequently there was no liability. We see no such inconsistency in the statements contained in the letter and the allegations of the answer stricken to justify application of the rule of law contended for. Thompson v. Iowa Traveling Men's Assn., 179 Iowa 603, 161 N.W. 655. The answer also alleged and set forth the following statement contained in the application for reinstatement: "I further agree that if reinstatement is applied for herein, it shall not be in effect by reason of any cash payment or other settlement made in connection with this application or in any other manner, unless and until this application shall have been *Page 1274 approved by the Society at its Home Office during my lifetime and continued good health." And in the second division of plaintiff's motion, this allegation of the answer was asked to be stricken because the same was a pleading of irrelevant and redundant matter and because the policy contained no such statement as a condition precedent to reinstatement, and that the defendant had no right to impose nor add to the conditions to the right of reinstatement, conditions other than those contained in the original contract of insurance, and that the same were without consideration and discriminatory. The crucial question to be decided, as appellee contends, and as stated in her brief is: "Can an insurance company enter into a contract of insurance with a person wherein it promises and agrees as in the policy now before the Court: `This policy upon evidence of insurability satisfactory to the company may be reinstated by payment of arrears of premiums with interest at six per centum per annum,' and thereafter when the occasion for reinstatement arises legally and rightfully incorporate into an application for reinstatement the following words and provisions: `I further agree that if reinstatement is applied for herein, it shall not be in effect by reason of any cash payment or other settlement made in connection with this application or in any other manner, unless and until this application shall have been approved by the society at its home office during my lifetime and continued good health.'" As we comprehend the fact situation presented by the pleadings (and we must look to the pleadings for the facts in passing on this matter), this would be the crucial question had the assured attempted reinstatement in exact accord with the stipulations in the policy. This he did not do. Instead he proffered to the Cedar Rapids agency an application for reinstatement, accompanied by a health certificate and only $5.00. The annual premium which was in arrears was $64.65. In order to claim the privilege of reinstatement under the terms of the policy this sum with interest would have to be paid. Surely, when he tendered something other and different than what the terms of the policy required, the company had the right to insist that before it was bound thereby, the new and different terms be approved by the home office, while the applicant was alive and in *Page 1275 good health. That is all this answer tendered. The motion to strike should have been overruled. The decision of the question propounded by appellee will be reserved for some future time when, and if, presented. — Reversed. RICHARDS, C.J., and MITCHELL, PARSONS, ANDERSON, STIGER, DONEGAN, and KINTZINGER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429831/

Appellant is a real estate broker. Appellees Hazel G. Walsh and John J. Walsh owned certain real estate in the city of Des Moines. Appellee Lobaugh purchased said real estate. Appellant acted as a broker in effectuating said sale. Certain incumbrances were assumed by the purchaser, and a certain amount of the purchase price was to be paid in cash. A down payment of $100 was made by check, which Walsh delivered to appellant as part payment of his commission. At the time of closing the transaction, the purchaser, Lobaugh, executed a check for a further payment of $500. This check was in the usual form, and drawn upon appellee Des Moines National Bank. *Page 1087 It was payable to the order of appellees Hazel G. Walsh and John J. Walsh. The transaction took place at the office of appellant. At that time appellant demanded that the balance of his commission be paid out of the proceeds of the said check of $500. Walsh objected to this. Thereupon appellant took the check to appellee bank and had the same certified. The certification was as follows: "4-5-23 Des Moines National Bank, Certified $500.00. [Signed] E.J. Harmon, Teller." Appellant retained the check in his possession after said certification. Subsequently, an indemnity bond was furnished to said bank by Walsh, a duplicate check was issued by the purchaser, Lobaugh, for $500, and the same was paid to Walsh. Thereafter, this appellant instituted action at law against Walsh to recover the amount of his commission, and said cause was prosecuted to a conclusion, and judgment entered in behalf of appellant for the balance due upon his commission. Thereafter, this action was instituted in equity, and by it appellant seeks to establish a lien, to the amount of his judgment, against the funds represented by the said original certified check, on the theory that he has a broker's lien upon said funds. The trial court dismissed appellant's petition. Appellees make no resistance to appellant's contention that a real estate broker has a lien upon funds, papers, or other property of his principal coming into his possession by virtue of his employment, and we make no pronouncement upon this question, but assume such to be the rule. The question then arises as to whether or not appellant had a lien upon the check which came into his possession, and upon the funds which it represented in appellee bank. The check was the property of appellees Walsh, was made payable to them, and, without indorsement by them, neither appellant nor any other person could have collected anything upon the check. The certification of the check by the bank did not vest appellant with any title to or interest in the check other or different than he had before such certification took place. He retained the check in his possession. The certification of the bank amounted, in effect, to an acceptance by the bank, and bound the bank to pay the check, upon presentation, to the party entitled to the funds. This could be none other, however, than the payee named in the check, *Page 1088 or an indorsee. The certification gave to appellant no title to the check, nor did such act of certification alone give appellant any lien upon the funds in the bank upon which the check was drawn. Appellant contends, however, at this point, that he notified the bank, at the time the check was presented for certification, that he had a lien upon the funds represented by the check. Appellant was a stranger to said written instrument. His notification to the bank, at the time, that he claimed a lien, as a broker, upon the funds, could not create such a lien which the bank was bound to protect. Here was an outstanding check, drawn by a drawer who had funds in the bank. The check was made payable to the order of a certain named payee. The bank certified that the drawer had funds on hand to the amount of the check, and the effect of the certification was that the check, when duly indorsed and presented for payment, would be paid. It being conceded that appellant was the agent of the payee of the check for the purpose of obtaining the certification thereof, he could not, by a notice to the bank that he claimed a lien upon the funds of that check, prevent the bank from paying the check in full, after certification, to any legal owner thereof who presented it for payment. The bank could legally and properly refuse payment to any person other than the original payees of the check or their indorsee. Appellant was not such indorsee. Even if we concede that, as between appellant and his principal, he might have had a lien on the funds if they came into his hands, he could not, by such notice to the bank, create a lien against the funds which were still in the hands of the bank, and subject only to be withdrawn upon the presentation of a proper check. Appellant was not a transferee of the check, nor could he draw any funds from the bank thereon, though the same was in his possession, without the indorsement of the payees. The check had not been negotiated to appellant. Section 9490, Code of 1924, is as follows: "An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer, it is negotiated by delivery; if payable to order, it is negotiated by the indorsement of the holder, completed by delivery." *Page 1089 The fact that appellant had the check in his possession and presented it to the bank for the purpose of certification did not make him a holder of the check, in the sense of the Negotiable Instrument Act, or a transferee thereof. Any person having possession of the check might have presented it for certification, and the bank could properly have certified the same; but the funds could only be withdrawn upon the presentation of the check properly indorsed for payment. At this point we hold that appellant, if he had a lien upon the check which came into his possession, and which was payable to Walsh, had no lien upon the funds in the hands of appellee bank, nor did he create such lien by notice to the bank, nor was he in any position to assert such a lien against the funds by the mere procurement of the certification of the check. He could in no wise draw the funds on said check without indorsement thereof by the payee, or other legal transfer to him. This he did not have, and never obtained. We are not concerned in this case with any inquiries as to what remedies, if any, may be available to appellant. Our sole inquiry at this point is as to whether or not appellant has an enforcible lien against the funds in the hands of appellee bank which he can enforce to the extent of the commission due him from appellees Walsh. It being conceded, for the sake of the argument, that a broker may have a lien upon any money or property that comes into his possession by virtue of his employment, and which belongs to his principal, the only thing that came into appellant's possession by virtue of his employment that belonged to his principal was a check which is payable to his principal, and which the bank has accepted as being valid, and which the bank has bound itself to pay to a legal holder thereof, upon presentation. Appellant, not being a transferee of said check by indorsement of the payee, is not in a position to demand payment upon the mere presentation of the check. His notice to the bank of his claim of a lien upon the funds in the bank represented by the check did not give him any lien upon said funds, nor constitute an assignment of the same, nor prevent the bank from paying the full amount of the check to *Page 1090 the person entitled thereto, upon due presentation of the check. The decree of the trial court will be — Affirmed. STEVENS, De GRAFF, VERMILION, and ALBERT, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429834/

The plaintiff is a copartnership, engaged as certified public accountants at Omaha. The defendant is a corporation, engaged in the manufacture and sale of various lines of dairy and creamery equipment, with its principal place of business 1. CONTRACTS: at Cedar Rapids. It is undisputed that, for the construction years 1917 to 1920, inclusive, the defendant had and reported and paid to the Federal government operation: income and war profit taxes in the amount of commission $623,717.73. It was the contention of the on "refund" defendant that it had paid an excessive amount, of taxes: and on February 27, 1923, the services of the computation. plaintiff were employed to bring about an adjustment of the matter, as between it and the government. On said date, the following written contract was entered into between the plaintiff and the defendant: "It is hereby mutually agreed by and between Gregerson Brothers of Omaha, Nebraska, and J.G. Cherry Company of Cedar Rapids, Iowa, as follows: "Gregerson Brothers agree to do all work necessary to make up all papers required in connection with securing refunds of taxes overpaid by J.G. Cherry Company for years *Page 540 1917 to 1921 inclusive; Gregerson Brothers are to pay all expenses in connection with the work including traveling expenses and appearing in Washington in the case. "J.G. Cherry Company agrees to pay Gregerson Brothers for all services indicated above a fee equal to 17 1/2% for 1st $100,000.00 and 10% above this amount of the amount refunded by the government to the said J.G. Cherry Company. This fee is payable only when the refund is received from the government, and if no refund is obtained J.G. Cherry Company is to pay nothing whatever to Gregerson Brothers." It is also undisputed that the report of the field agent from the revenue department, made under date of March 18, 1921, recommended the assessment of additional taxes for the years in question against the defendant in the amount of $42,198.27. The threatened assessment of this additional amount of taxes against the defendant was a matter of dispute, and undetermined as between it and the government on the date of the execution of the aforesaid written contract. The plaintiff presented to the commissioner of internal revenue, for the defendant, a brief and argument, giving the claimed reasons why additional taxes should not be assessed against the defendant, and why the defendant was entitled to a refund because of excessive taxes previously paid. The treasury department, in its decision of February 29, 1924, found that for the year 1917 the defendant had been over-assessed, and had overpaid in taxes the amount of $5,105.17; that for the year 1919 there had been an over-assessment and overpayment of $27,174.03, and for the year 1920, there had been an over-assessment and overpayment in the amount of $36,193.34; and that for the year 1918, there was an additional tax due from the defendant in the amount of $4,623.76. It will thus be observed that the net over-assessment was the sum of $63,848.78, and, had it not been for the finding that there was an additional amount due for the year 1918, the amount of the refund would have been $68,474.54. It is undisputed that this refund of $63,848.78 was paid by the Federal government to the defendant on August 7, 1924, and that immediately the defendant sent the plaintiff a draft for $11,173.54, said amount being computed at the contract rate of 17 1/2 per cent on the sum received by the defendant from the government as a refund. It is the plaintiff's contention *Page 541 that it is entitled to additional amounts for services rendered, while the defendant contends that the plaintiff has been fully paid. The plaintiff's petition is in two counts, the first being founded upon the aforesaid written contract, in which the plaintiff claims the amount of $809.15 and interest. It will be observed that the amount claimed in this count is 17 1/2 per cent of the aforesaid amount of $4,623.76, the amount found by the government to be due from the defendant for the year 1918. Is the plaintiff entitled to said additional sum of $809.15, under the written contract? The trial court found against the plaintiff, and dismissed said count. A refund is defined as "a return of money." See Century Dictionary. Relative to the controversy between the parties to this suit, the Federal statute, Section 252 of the Revenue Act of 1921 (42 Statutes at Large 268) provides: "That if, upon examination of any return of income made pursuant to this Act * * * it appears that an amount of income, war-profits or excess-profits tax has been paid in excess of that properly due * * * the amount of the excess shall be credited against any income, war-profits or excess-profits taxes, or installment thereof, then due from the taxpayer under any other return, and any balance of such excess shall be immediately refunded to the taxpayer." It will be observed that the department found that for the year 1918 there was an additional tax due from the defendant in the amount of $4,623.76, which amount, under the aforesaid Federal statute, was deducted by the government in making the repayment to the defendant. In other words, had it not been for said additional amount found to be due for said year, the amount of the refund would have been increased by that amount. Consequently, the defendant received as a refund $63,848.78, instead of $68,472.54. The aforesaid written contract in plain and unambiguous language provides that the plaintiff is to receive as compensation 17 1/2 per cent of the amount refunded by the government to the defendant, and that the same is payable only when the refund is received, and that the defendant shall not be liable to plaintiff in any amount if no refund is obtained. The amount of money refunded — returned — by the *Page 542 government to the defendant was only the sum of $63,848.78, and the plaintiff, by the terms of the contract, was only entitled to 17 1/2 per cent of said amount, which was the amount of the draft sent by the defendant to the plaintiff on August 11, 1924. Therefore, the plaintiff has been fully paid, and it is apparent that the court was not in error in dismissing the first count of the petition. In Count 2 of the petition, the plaintiff alleges, in substance, that, in March, 1921, the defendant was notified by the internal revenue bureau, a bureau of the treasury department of the United States, that the government had 2. CONTRACTS: listed for additional tax against the defendant actions for for the years 1917 to 1920, inclusive, the sum breach: form of $42,198.27; that, on or about the 5th day of of remedy: March, 1923, the plaintiff verbally agreed with quantum the defendant that the plaintiff would represent meruit for said defendant, and use its best offices and services skill in seeking to prevent the levying of the covered by additional assessment; that it did represent express said defendant, prepared brief and argument, and contract. succeeded in preventing the assessment of the additional tax to the extent of $37,574.51; that the reasonable value of said services was 17 1/2 per cent of the amount of the additional tax which was claimed by the government, and which was not assessed, and asks judgment in the amount of $6,575.53 and interest. For answer to this count of the petition, the defendant admitted that, sometime in March, 1921, it was notified by the internal revenue department that the internal revenue bureau had set up a claim that the defendant should be subjected to additional tax for the years 1917 to 1920, inclusive, but denied that any additional tax had ever been assessed, and denied that any refund of any tax, in any amount, in addition to the sum of $63,848.78, was secured by the plaintiff for the defendant, and denied that the plaintiff was entitled to any compensation or fee on any amount claimed in said count, and denied that any contract or agreement, other than as expressed in the aforesaid written contract, was ever entered into between the plaintiff and the defendant. As hereinbefore stated, it was found by the department that there was an additional tax due from the defendant for the year 1918 in the amount of $4,623.76; and deducting said amount *Page 543 from the claim of the government for additional tax for said years, to wit, $42,198.97, leaves the amount of $37,574.51, upon which amount the plaintiff claims compensation upon a quantummeruit basis, of 17 1/2 per cent, or the amount of $6,575.53. It must be borne in mind that this is an action at law, and was tried to the court without a jury. It is the repeated pronouncement of this court that, in actions at law tried to the court without a jury, the decisions of the court on disputed questions of fact have the same weight, force, and effect as would the verdict of a jury. See Scott v. People's Monthly Co.,209 Iowa 503; Pomeroy v. Farmers Sav. Bank of Shelby, 207 Iowa 1310; In re Estate of Sarvey, 206 Iowa 527; Forgan v. AllenBros., 207 Iowa 1198; Norton v. Catholic Order of Foresters,138 Iowa 464; Farrow v. Farrow, 162 Iowa 87; Kirkhart v. Hamilton,199 Iowa 1028. We have read the record with care, and it is apparent therefrom that, had the case been tried to the court and a jury, the court would not have been justified in directing a verdict upon this count in favor of the plaintiff. What was the situation which confronted the plaintiff in the performance of its duties under the aforesaid written contract? The defendant, through the plaintiff, was contending that there had already been an over-assessment and overpayment of taxes for the years in question. The government was contending that that was not true, and that it was entitled to an additional amount in taxes for said years from the defendant. Under the written contract, the plaintiff could not succeed in obtaining for the defendant repayment or a refund of taxes for any year in question without demonstrating to the government that it was not entitled to an additional tax from the defendant for said year. The one is necessarily involved in and affects the other, and when the fact was established that the defendant was entitled to a refund for any year, that automatically disposed of the claim of the government for any additional tax for that year, and vice versa. It is therefore manifest that the service for which compensation is asked upon a quantum meruit basis, as demanded in Count 2, was necessarily within the scope of the employment under the written contract, and unavoidably within the contemplation of the parties in entering into said written contract. Under such circumstances, while *Page 544 the plaintiff is entitled to compensation under the written contract according to its terms, there is no basis for a claim for compensation upon quantum meruit. See Prouty, Coyle Proutyv. Perry, 142 Iowa 294; Cammack Son v. Weimer, 181 Iowa 1; Ryanv. City of Dubuque, 112 Iowa 284. One of the plaintiff firm testified: "The argument I presented in my brief is exactly the argument I would have presented to the department in support of my contention that there should be a refund of tax to the Cherry Company if there had been no claim by the government for additional tax." It is therefore shown that the plaintiff did nothing which he was not required to do under the terms and provisions of the aforesaid written contract. It thus becomes apparent that the court was right in dismissing the second count of the petition. The judgment is in accordance with the law, and amply sustained by the evidence, and the motion for a new trial, based upon said grounds, was rightly overruled. The judgment of the trial court is hereby affirmed. — Affirmed. MORLING, C.J., and STEVENS, FAVILLE, and ALBERT, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429837/

This is a proceeding under the Workmen's Compensation Law. Theodore Heinen, the husband of claimant, who is the appellee, was struck and killed by a passenger train at a railway crossing of the Illinois Central Railroad Company's on January 28, 1924. The sole inquiry to which it is necessary to direct attention is: Did the death of Theodore Heinen arise out of and in the course of his employment as an automobile salesman of the defendant Motor Inn Corporation? The law that the injury, to be compensable, must arise out of and in the course of the employment is too well settled to require the citation of authorities, but see the following: Griffith v. Cole Bros.,183 Iowa 415; Sparks v. Consolidated Ind. Coal Co., 195 Iowa 334;Flint v. Eldon, 191 Iowa 845. *Page 68 It is conceded that, immediately preceding the day of his death, the deceased was employed by the Motor Inn Corporation as a salesman of Ford automobiles, and received a salary of $50 per week. It is also clearly shown that a part of his purpose in going to the country on the occasion referred to, was to sell a secondhand Ford car which he was driving, and to obtain an advance payment upon some corn which he had sold at Meriden to the Quaker Oats Company. Meriden is a small town near Cherokee, where deceased resided and was employed. The controversy arises over the terms of the employment of the deceased by the corporation and the conflicting interpretations placed thereon by the respective parties. It is admitted, or clearly established by the proof, that secondhand cars were sometimes taken by the deceased in exchange and as part payment for new ones sold by him. He was required to account to his employer for the full price of the cars. He also sold the secondhand cars received in exchange, and turned in the money to the company. The deceased and the manager of the corporation usually discussed the particular secondhand car to be taken, and apparently had some understanding as to its value. The secondhand cars were not kept in the garage of the corporation, but in another and wholly independent garage located in the immediate vicinity. The exact point made by appellant is that the secondhand cars taken in exchange and as part payment for new ones were the exclusive property of the deceased, and that, in disposing of them, he acted for himself, and that, at the time of the accident, he was acting wholly outside of the scope of his employment, and that, therefore, the injury did not arise out of and in the course of his employment. The commissioner, in his opinion reviewing the finding of the arbitrators, found that there was a contract of employment, and that the arrangement under which secondhand cars were received in exchange in part payment for new ones was a part of the contract of employment and of the plan of sale, and inseparable therefrom. The district court made substantially the same finding in the decree. It is a matter of common knowledge that the exchange of secondhand cars for new ones is a part of the business of selling automobiles, and that the custom is widely prevalent. The commissioner might well have found that the deceased was not engaged in an independent business as a dealer *Page 69 of secondhand automobiles, but that whatever he did in that respect was in pursuance of his employment by the corporation. The stenographer and bookkeeper of the corporation testified that, while the deceased usually turned in the cash when new cars were sold, he was not required strictly to do so. The theory of appellant is that, while the finding of the commissioner upon disputed questions of fact must be given the weight of the verdict of a jury, there is no conflict in the evidence in this case, and the conclusion of the commissioner is in no sense conclusive or binding upon the court. We do not so interpret the record. There is no great conflict in the direct evidence, but the commissioner had the right to draw any legitimate inference therefrom. The finding that the sale of secondhand cars which were taken in exchange for new was an inseparable part of the contract of employment is not without support in the evidence. It is true that the burden of proof was on the claimant, but the commissioner found that she had sustained this burden. The finding of the commissioner, having support in the record, is conclusive upon this court. — Affirmed. De GRAFF, C.J., and FAVILLE and VERMILION, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429621/

The American Savings Bank of Carroll, Iowa, was a corporation organized under the laws of the state of Iowa. Its name indicates that it was organized under the provisions of the law relating to the organization of savings banks. On the 19th day of September, 1931, it was adjudged insolvent, and L.A. Andrew, then superintendent of banking of the state of Iowa, was appointed receiver. In the meantime Andrew has been succeeded as such superintendent and receiver by D.W. Bates, who is now appellee herein. The capital stock of the bank consisted of 500 shares each of the par value of $100. Subsequent to the appointment of the receiver, proceedings were instituted to enforce the statutory liability for a stock assessment against the stockholders of record at the time the bank became insolvent, and judgment was obtained against such stockholders in the aggregate amount of $50,000. Of this amount $28,353.17 has been paid, and $21,646.83 remains unpaid. *Page 448 On the 20th day of November, 1923, appellant, D.W. Hanssen, became the owner of five shares of stock of said bank. He held such shares until the 11th day of May, 1931, at which time he sold the stock to E.L. Wegman, and a new certificate of stock was issued to the purchaser. Concerning the bona fides of the sale no question is raised. Included in the total unpaid judgments of $21,646.83 is a judgment against Wegman on the stock purchased by him from Hanssen in the amount of $500. The record discloses that said judgment cannot be collected. The condition of the bank was such, at the time the receiver was appointed, that, even though the 100 per cent assessment was collected in full, the creditors of the bank could not be paid in full. Subject to the objection that the fact was incompetent, immaterial, and irrelevant, it was admitted that, when the bank closed its doors, there were outstanding and unpaid $175,200.74 of certificates of deposit which were issued between the 20th day of November, 1923, the day when Hanssen acquired his stock, and the 11th day of May, 1931, when he parted with it. But there is nothing in the record to indicate that any of such certificates of deposit became due or were payable during this time or that the bank was in default in any respect in relation to such certificates of deposit. For the purpose of this appeal it may be said that this suit was brought to recover judgment against Hanssen for $500 on the theory that he is now liable to an assessment of 100 per cent upon the shares of stock owned by him on account of the fact that certificates of deposit, which were issued druing the time he held his stock in the bank, remain unpaid. The trial court rendered judgment against Hanssen, and from such judgment this appeal is prosecuted. The case presents only one question. The receiver contends that the answer to the question is reasonably obvious if the history of the legislation creating liability upon the part of stockholders in banks is examined. The provisions of article 8 of the Constitution of Iowa in relation to banks and banking were adopted by the Constitutional Convention of 1857. Among other provisions, the following section was incorporated at that time in this article of the Constitution: "Sec. 9. Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an *Page 449 amount equal to his or her respective shares so held for all of its liabilities, accruing while he or she remains such stockholder." Section 9251 of the Code, under which the present action is brought, reads as follows: "All stockholders of savings and state banks shall be individually liable to the creditors of such corporation of which they are stockholders over and above the amount of stock by them held therein and any amount paid thereon, to an amount equal to their respective shares, for all its liabilities accruing while they remained such stockholders." It will be observed that the language of the Constitution is almost identical with the language of the statute, and that the obligation imposed on the stockholders by each is for liabilities of the bank accruing while they remained stockholders. The receiver argues that on account of the practical identity of the language we have but to ascertain the sense in which the Constitutional Convention used the language in the Constitution to ascertain its meaning in the statute. An examination of the proceedings of the Constitutional Convention leaves no doubt but what the convention intended to fasten upon the stockholders a liability for debts incurred while they were stockholders. If the provisions of the Constitution under consideration applied to savings banks, we think the language used in the statute should be given the same meaning as similar language used in the Constitution, but the provisions of the Constitution apply only to banks of issue, and do not apply to savings banks. Allen v. Clayton, 63 Iowa 11, 18 N.W. 663, 50 Am. Rep. 716. Savings banks are creatures of the legislature, and the liability of stockholders in savings banks is subject to the plenary power of the legislature. It lies within the power of the legislature to adopt a policy in relation to such liability other than that adopted in the Constitution in relation to the liability of stockholders in banks of issue. Chapter 87 of the Acts of the 7th G.A. created the State Bank of Iowa. Section 42 of that act provided: "Stockholders in branches, shall each be individually and severally liable to the creditors of the branch of which they are the stockholders, over and above the amount of stock by them held, to an amount equal to their respective shares so held for all its liabilities, *Page 450 accruing while they remain stockholders and no transfer of stock shall effect such liability." Chapter 114 of the Acts of the 7th G.A. provided for the formation of "free" banks. Section 30 of the chapter provided: "Stockholders or shareholders in corporations organized under the provisions of this act shall be individually and severally liable to the creditors of the corporation of which they are stockholders or shareholders over and above the amount of stock by them held, to an amount equal to their respective shares so held, for all its liabilities accruing while they remained stockholders, and no transfer of stock shall affect such liability." These acts were approved by the voters in June of the year 1858, as required by article 8, section 5, of the Constitution. The State Bank of Iowa and the "free" banks were banks of issue, and consequently the provisions of the Constitution, above referred to, in relation to the liability of stockholders, were applicable. But it is to be noted that the legislature went beyond the terms of the Constitution in each act and provided that "no transfer of such stock shall affect such liability." The acts creating the State Bank of Iowa and the "free" banks were repealed in their entirety by the 13th G.A. in 1870 (ch. 25). Chapter 60 of the Acts of the 15th G.A. provided for the creation of savings banks. This act was passed in 1874. Section 12 of this chapter provides: "Shareholders in banks organized under the provisions of this act shall be individually and severally liable to the creditors of the corporation of which they are shareholders, over and above the amount of stock by them held, to an amount equal to their respective shares so held, for all its liabilities accruing while they remained shareholders, and no transfer of stock shall affect such liability for the period of six months thereafter." It appears that corporations organized under the provisions of law in relation to corporations for pecuniary profit had engaged in the meantime in the banking business. The provisions of the statutes in relation to corporations for pecuniary profit were contained in chapter 1, of title 9 of the Code of 1873. By chapter 208, Laws of the 18th G.A., enacted in 1880, chapter 1 of title 9 of the Code of 1873 was amended by adding thereto several provisions, among which was the following: *Page 451 "That all stockholders or shareholders in associations or corporations organized under said chapter one (1) aforesaid, for the purpose of transacting a banking business, buying or selling exchange, receiving deposits of money or discounting notes, shall be individually and severally liable to the creditors of such association or corporation of which they are stockholders or shareholders, over and above the amount of stock by them held therein, to an amount equal to their respective shares so held for all its liabilities accruing while they remained such stockholders." By the provisions of chapter 72, Acts of the 21st G.A., banks organized under the general incorporation laws of the state were designated "state banks," and were required to have the word "State" incorporated in and made a part of the name of the corporation. The law remained substantially in this condition until the adoption of the Code of 1897, when the provisions in relation to savings banks were incorporated in chapter 10 of title 9 of that Code, the provisions in relation to state banks, in chapter 11, title 9, and general provisions in relation to both classes of banks, in chapter 12 of title 9. The provisions in relation to the liabilities of shareholders in savings banks found in section 12, chapter 60, Acts of the 15th G.A., and the provisions in relation to stockholders liability in banks incorporated under the general incorporation statutes, enacted in chapter 208, Acts of the 18th G.A., were carried into the Code of 1897 as section 1882 in chapter 12 of title 9. The provisions there found are as follows: "All stockholders of savings and state banks shall be individually liable to the creditors of such corporation of which they are stockholders over and above the amount of stock by them held therein and any amount paid thereon, to an amount equal to their respective shares, for all its liabilities accruing while they remained such stockholders." The provisions of section 1882 of the Code of 1897 were divided into sections 9251 to 9253, inclusive, of the Code of 1931. Merely to complete the story, it may be noted that by section 3 of chapter 156, Acts of the 45th G.A., stock in banks may be authorized under certain circumstances which is nonassessable. The quest for assured solvency in banks has been pursued persistently and diligently. The attainment of the object of the search *Page 452 would mean much to humanity. Three major economic upheavals have overtaken the state since, as a result of the panic of the late fifties, the constitutional provisions imposing liability on the stockholders of banks of issue were adopted. Each succeeding experience has apparently led the legislature to have less faith in the stockholder's liability as a remedy for a situation in which many borrow who do not repay because economic attrition has pursued every form of wealth, no matter how artfully it may have been guarded or concealed, until a substantial proportion of every item of it has been destroyed; for it was first provided that "no transfer of stock shall affect such liability," next that "no transfer of stock shall affect such liability for a period of six months thereafter," and now nothing is said concerning the effect of a transfer of stock, and in some circumstances stock may be issued which is nonassessable. Still the word "accruing" has been used by the General Assembly in all acts under inquiry prior to the Acts of the 45th G.A., and the liability which has been fastened on the stockholders has been for liabilities accruing while they remained stockholders. The obligation imposed by the statute on stockholders is either for liabilities incurred while they remained stockholders, or for liabilities maturing while they remained stockholders. An examination of the various definitions of the word "accruing" does not enable us to say whether the statute means liabilities incurred or liabilities maturing while the stockholder remained such. When a time deposit is accepted, payable at a definite day in the future, an obligation to repay, when due, is created, and, in a sense, the liability to repay accrues when the deposit is taken. This view of the situation satisfies one definition of accrue, namely, "to vest as a right." But, when this situation is further examined, it is obvious that the depositor has no enforceable right to be repaid until the time for repayment, the due date of the certificate, arrives. In this aspect the situation does not satisfy another definition of "accrue," namely, "to come into existence as an enforcible claim." Ordinarily a change in the language of a statute indicates an intention to change its meaning. But the fact that the legislature has, at all times pertinent to the matter under consideration, retained upon the statute books the language, "For all its liabilities accruing while they remained stockholders," leads naturally to the conclusion that it did not intend to redefine the liabilities of the bank for which the stockholder was answerable. Originally this language undoubtedly *Page 453 meant liabilities incurred while the stockholder owned stock, and it is our conclusion that such was the meaning of the statute at the time Hanssen was a stockholder. In Andrew v. Commercial State Bank, 206 Iowa 1070, 221 N.W. 809, the precise question now under consideration was not before the court, but Mr. Justice De Graff, speaking for the court, said: "The word `accruing' found in the statute governing double liability must be construed to mean any liability within the purview of the statute existing while a stockholder remained a stockholder. Clearly any creditor of the bank had a right to look to all of the stockholders who were such at the time the debt existed and the bank became insolvent. The right to an assessment did not accrue until the bank became insolvent." See, also, Andrew v. Peoples State Bank of Humboldt, 211 Iowa 649, 234 N.W. 542. The record in this case indicates only that at the time the bank closed its doors there were outstanding and unpaid $175,200.74 of certificates of deposit which had been issued between the date Hanssen acquired his stock and the day when he parted with it. The record does not indicate that any of the outstanding certificates were renewals made subsequent to the time Hanssen parted with the stock. The facts before the court do not require a determination of the effect of a renewal of a certificate of deposit, after the stockholder parts with his stock, upon the liability of such stockholder, nor whether the liability of the successive owners of stock is several. The decree and judgment of the trial court is affirmed. — Affirmed. EVANS, ALBERT, KINDIG, and DONEGAN, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429623/

On March 26, 1935, appellant administrator, adopting the procedure found in section 11925, Code 1931, procured an order that James P. Griffin, appellee herein, appear and submit to an examination under oath touching his alleged *Page 604 wrongful possession of assets of the estate of Ellen Enright, deceased, who had departed this life on February 25, 1934. For many years previous to her death Ellen Enright had been in the enjoyment of the rents and income from 120 acres of land in Cass County, by reason of a life estate she had therein. Crops of corn and oats were raised by tenants on this land in 1932 and 1933, wherefrom 1,238 bushels of corn and 478 bushels of oats were acquired by decedent as crop rentals. On April 3, 1935, appellee appeared for the examination ordered by the court and this grain was the subject matter to which the examination was directed, and the question being determined was whether appellee had taken wrongful possession thereof, within the intendment of said section 11925. Upon the examination appellee testified that he had acted for decedent as her agent in managing this land from the spring of 1920 until her death, for which he received no compensation until the last year or years of the period. Quoting from the record: "Q. And did you receive any compensation during the last year or years of that period? A. Yes. "Q. State what that was. A. I received the corn and oats on the place. "Q. As compensation? A. As compensation for my labor during the period of the fourteen years. "Q. When you received those, what were corn and oats worth? A. When I received the '32 crop the spring of '33 — that was the big part of it. At that time corn was worth about 20¢, and oats was worth about 15¢, as I recollect. The balance of it, we added some to that in the fall and she turned that over to me the same. As I recollect it was about 30¢ for corn, and something about 20¢ for oats at that time." The trial court held that the title to the property was in dispute, and that appellee was claiming to be owner thereof, and denied the ownership of the property by the estate, and that therefore the question of title being involved the trial court was without jurisdiction to enter an order requiring appellee to turn the property over to the administrator, and to such extent the application was denied, but without prejudice to the rights of the administrator to bring any other appropriate proceeding to *Page 605 determine the title and ownership of said property. Therefrom the administrator has appealed. We find no error in the conclusion and order of the district court. The appellee claimed title to these crops, and based his claim of title upon an alleged state of facts which, if found to be true, in an action involving the merits of his claim, would be sufficient to establish such title. The facts disclosed upon the examination did not establish beyond controversy that appellee acquired wrongful possession of these crops. The fact situation was such that this case is controlled by the previous holdings of this court in Findley v. Jordan, 222 Iowa 46, 268 N.W. 515, Smyth v. Smyth, 24 Iowa 491, and In re Brown's Estate, 212 Iowa 1295,235 N.W. 754. The case is affirmed. — Affirmed. HAMILTON, C.J., and DONEGAN, ANDERSON, MITCHELL, SAGER, and STIGER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429625/

On June 10, 1924, judgment for $411,208.32 was entered by the district court of Lyon County in an action commenced therein May 26, 1922, wherein E.H. Hoyt, as receiver of the Interstate Automobile Insurance Company, was plaintiff, and J.J. Maloney, H.T. Hampe, H.F. Storjohann, and others were defendants. Execution was immediately issued, and, on June 12th, Park A. Findley, sheriff *Page 722 of Polk County, levied the same upon 142.4 shares of the capital stock of the Hawkeye Casualty Company, as the property of appellee Storjohann. The stock was at that time held by plaintiff-appellee as collateral security for a note of $27,112.49 payable to her. Appellee commenced this action to have the priority of her lien on the stock over that of appellant established, and to enjoin the sale thereof on execution. In addition to the question of priority, the answer of appellants joined issue on the allegation of appellee's petition that she was the owner of the stock in controversy. The determination of the issue of priority depends upon the interpretation to be given to Section 1626, Code of 1897 (Sections 8385-8390, inclusive, Code of 1924), relating to the notice to be given by the holder of stock as collateral security. On June 1, 1922, Storjohann executed a promissory note for $25,346.25, payable to J.J. Maloney, at the same time pledging142.4 shares of the capital stock of the Inter-State Automobile Insurance Company of Rock Rapids, Iowa, as collateral security for the payment thereof. This note was indorsed by the payee to plaintiff-appellee on the date of its execution. On March 1, 1924, Storjohann executed a new note, making the same payable to appellee, for $27,112.49, at the same time pledging the stock in controversy to her as collateral security therefor. Storjohann was at that time secretary of the Hawkeye Casualty Company. He had previously been secretary of the Inter-State Automobile Insurance Company, which was succeeded by the above-named corporation. The point raised by appellant is that the notice provided for by Section 1626, Code of 1897, was not given until July 12, 1924, which was after the levy was made upon the stock. Appellee contends that the secretary of the corporation had actual notice of the hypothecation of the stock; that informal notice was given to him; and that the sheriff was informed, prior to the levy, that the stock was held by appellee as collateral; and that, therefore, appellant had constructive notice thereof, and is bound thereby. The notice served in July, 1924, complied in all respects with the statute, but, as this was after the levy, it cannot be considered. On December 15, 1923, H.T. Hampe, cashier of a bank in Rock Rapids, Iowa, wrote Storjohann, *Page 723 addressing him as secretary of the Hawkeye Casualty Company, regarding the stock, as follows: "I just delivered the new stock which you sent to me the evening before you left Rock Rapids to J.J. Maloney as collateral to our notes, consisting of certificates in the Hawkeye Casualty Company, No. 452, H.F. Storjohann, 142.4 shares, and No. 451, H.T. Hampe, 47.6 shares, and procured from Maloney the 190 shares of old Inter-State stock which he had and which he gave me in lieu of that which I delivered. I also got him to sign the new note. He made no mention of the interest, so apparently must be satisfied in regard to the arrangement you made while here. "I will endeavor to make up a statement some day next week for the different bills which I have paid for the company." It is argued on behalf of plaintiff-appellee that this letter gave actual notice to the secretary of the corporation that the stock had been transferred to plaintiff-appellee as collateral security, and that constructive notice was thereby imparted to appellant. It will be observed that the letter is not signed by, nor does it purport to have been written in behalf of, appellee. The writer of this letter was also indebted to plaintiff-appellee in the sum of $9,037.49 as collateral security for the payment of which she held 47.6 shares of the capital stock of the Casualty Company owned by Hampe and transferred by him for that purpose. The letter was nothing more than a communication from one debtor to the other, advising him that the collateral security previously agreed upon had been delivered to their common creditor, and, in effect, gave notice of nothing not already known to Storjohann. Section 1626, supra, which requires a transfer of the stock of a corporation to be entered on the books of the company, or that notice thereof be given when pledged as collateral security, is imperative, and no transfer is valid unless one of these provisions is complied with. Fort Madison Lbr. Co. v. BatavianBank, 71 Iowa 270; Ottumwa Screen Co. v. Stodghill, 103 Iowa 437;Perkins v. Lyons, 111 Iowa 192; First Nat. Bank v. Way, 167 Iowa 426; National City Bank v. Fairbank State Bank, 173 Iowa 489. The provision of Section 1626 relative to notice was added *Page 724 to Section 1078 of the Code of 1873 by Chapter 81, Acts of the Twenty-sixth General Assembly. This statute has always been strictly construed. No record was made upon the books of the company by the secretary of the transfer of the stock. Actual knowledge, however, of the secretary does not supersede the necessity of notice, nor is actual notice of the secretary sufficient to protect the lien of one holding it as collateral security against the claims of creditors who have levied thereon.Ottumwa Screen Co. v. Stodghill, supra; Perkins v. Lyons, supra;First Nat. Bank v. Way, supra. Counsel for appellee also rely to some extent uponIowa-Missouri Grain Co. v. Powers, 198 Iowa 208. The controversy in that case was between the corporation and the pledgee of the stock. What is there said was addressed to the issues presented. Nothing therein said in any way runs counter to our previous decisions, but, on the contrary, they are cited with approval. The letter referred to was clearly insufficient to meet the requirements of the statute, and, as actual knowledge of the secretary is not alone sufficient, the conclusion on this point that the lien of appellee is junior to that of appellant is inevitable. Perhaps the claim of appellee that the precise question before us has not arisen in this court since the enactment of Chapter 81, Acts of the Twenty-sixth General Assembly, is correct, but the cases cited must be regarded as controlling upon the subject of constructive notice. The evidence does not sustain appellee's contention that the sheriff had notice of appellee's lien on the stock prior to the levy. On the contrary, it shows affirmatively that the levy preceded notice. Furthermore, we held in OttumwaScreen Co. v. Stodghill, supra, that knowledge of an attaching creditor or of the officer levying the execution is not sufficient to avoid the statute. The conclusion reached on the point discussed is decisive of the appeal, and other matters referred to by appellant in argument need not be considered. The levy upon the stock was valid, and the judgment and decree enjoining the sale thereof on execution is, accordingly, reversed. — Reversed. All the justices concur. *Page 725

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429626/

On the night of April 6, 1932, at about 11:30 o'clock, Charles W. Taylor, while walking on Federal Highway No. 218, a mile and three quarters south of Plainfield, was struck and killed by an automobile driven by the defendant-appellant Lloyd Wistey. Federal Highway No. 218 is a north and south paved thoroughfare. The pavement is 18 feet wide. At the time of the accident, Charles W. Taylor was walking *Page 786 northward on the right-hand side of the pavement, with his back to the oncoming traffic. Just before the accident, Charles W. Taylor had passed over a rather steep hill. It is said that the hill slopes southward for a distance of 600 feet. When measured at a point about 400 feet north from the top of the hill, the highway was about 30 feet lower than the top of the hill. This hill interrupted the view that Taylor would have of automobiles approaching beyond the hill from the south. Taylor was struck by appellant's automobile at a disputed point located somewhere between 400 to 225 feet from the top of the hill. There is a controversy concerning the exact location of the accident. As the appellant's automobile passed over the top of the hill northward to the point where it struck Taylor, it was traveling at a rate of speed of from 45 to 50 miles per hour. According to the claim made on behalf of Taylor, he was walking, when struck by the automobile, at a point about 2 feet from the east side of the pavement. On the other hand, the claim is made by the appellant that Taylor was walking nearer to the center of the highway. A second automobile, coming from the north, approached the point where Taylor was walking, as the appellant's automobile neared such point from the south. Headlights on each automobile were lighted. Harlan G. Staley was riding in the front seat of the appellant's car on this occasion. Staley was the first to observe Taylor before the accident. He saw Taylor about 20 to 30 feet ahead of the automobile just before the impact. Immediately upon seeing Taylor, Staley notified the appellant, who was driving. Thereupon the appellant put on the brakes and turned the car to the left, but could not miss Taylor. At the time that Taylor was first observed, the second automobile, above mentioned, was passing the car driven by the appellant. Concerning this, Staley testified that when the appellant's car was from 20 to 30 feet south of Taylor, the second oncoming car, just mentioned, was about 10 feet north of the appellant's car. As a result of the impact, Taylor was killed. Thereafter May F. Taylor was appointed the administratrix of his estate. In due time May F. Taylor, administratrix of the estate of Charles W. Taylor, deceased, the plaintiff-appellee, commenced this action against the appellant to recover damages for the alleged wrongful death of her intestate. The cause was tried to a jury, which returned *Page 787 a verdict for the appellee, and the district court entered judgment thereon. From that judgment, the appellant appeals. It is alleged in the appellee's petition that the appellant was negligent immediately preceding, and at the time of, the accident in the following particulars: First, that he drove his automobile without due caution and circumspection; second, that he drove his automobile at an excessive rate of speed and in an imprudent and careless manner; third, that he operated his automobile without having it under control; and, fourth, that he failed to warn the appellee's intestate of his approach. By way of answer, the appellant denied generally each and every material allegation of the petition relating to his negligence, and in addition thereto the appellant pleaded affirmative defenses. Therefore, not only was it essential for the appellee to prove the negligence of the appellant, but likewise it was necessary for her to prove that her intestate, Charles W. Taylor, did not by his negligence contribute to the accident. Consequently the contributory negligence of the appellee's intestate became a material issue. Because a new trial is necessary, we refrain from discussing the sufficiency of the evidence on the appellant's negligence, and likewise, for the same reason, we will not, except for the purpose of considering an instruction, review the evidence relating to the contributory negligence of the appellee's intestate. An instruction was given to the jury by the district court on the subject of the contributory negligence of the appellee's intestate. But it is contended by the appellant that such instruction was erroneous, and that the resulting error is sufficient upon which to predicate a reversal of the judgment of the district court. The error in the instruction, according to the appellant, lies in the definition of the due care to be exercised by the appellee's intestate when making observations for his safety while walking on the highway at the time in question. Instruction No. 8 is the one involved. There, among other things, the district court told the jury that the plaintiff's intestate "might walk on the right side of the highway in the direction he was going provided he exercised the increased care required of a pedestrian from vehicles that might approach him from his rear, and though he may lawfully travel there, he must recognize that ordinary care requires generally a greater attention and watchfulness to avoid danger than where one walks facing the *Page 788 line of travel. * * *" Then, in a concluding sentence, the district court continues: "He (the appellee's intestate) was required to use his senses in looking both ways for his safety, not at any particular point or continuously, but as often as ordinary care under the circumstances required." (Italics supplied.) It is said by the appellant that it was error for the district court to tell the jury that it was not necessary for the appellee's intestate to look both ways continuously. The circumstances were such, the appellant contends, that it was incumbent upon the appellee's intestate to continuously make observations forward and backward for his safety. On the other hand, it is argued by the appellee that it only was necessary for her intestate to use ordinary care, and that ordinary care did not require a continuous observation forward and backward. Under the instruction, the jury were expressly told that in fixing the care which the appellee's intestate was required to exercise at the time they were not to include therein the necessity for him to continuously look both ways for his safety. By the instruction, the district court did not leave to the jury the privilege of saying that due or ordinary care on the occasion would require that the appellee's intestate continuously look both ways for his safety; but rather the district court told the jury that due or ordinary care on the part of the appellee's intestate did not require that he continuously look both ways for his safety. Of course, all that is required of a traveler on a highway is that he use due or ordinary care. Hittle v. Jones, 217 Iowa 598, 250 N.W. 689. Conduct, however, that would amount to due or ordinary care under certain circumstances, might be less than due or ordinary care under different conditions. Everything depends upon the facts and circumstances of the case. When the danger becomes greater, correspondingly the degree of caution necessary to constitute due and ordinary care likewise increases. Kessel v. Hunt, 215 Iowa 117, 244 N.W. 714; Lindloff v. Duecker, 217 Iowa 326, 251 N.W. 698. As we said in Kessel v. Hunt, supra, reading on page 121, concerning the duty of a pedestrian on the paved highway in the nighttime: "His duty on whichever side of the street he walks, is to use ordinary care in the situation in which he puts himself and under all the circumstances surrounding him. `Ordinary care' is the legal *Page 789 standard. But we have also held that the degree of caution which constitutes ordinary care varies with the circumstances; that the greater the apparent danger, the greater the degree of caution, which constitutes ordinary care. In other words, `ordinary care' may expand or contract according to the circumstances in which the actor finds himself." A pedestrian who walks on the left-hand side of the paved portion of the highway where he may face the oncoming traffic is in a safer position than the pedestrian who walks on the right-hand side of the highway with his back to the oncoming traffic. Referring again to the case of Kessel v. Hunt, supra, there is found on pages 120 and 121, the following discussion: "It is quite universally accepted at the present date that the left side of the street is the safer side for a pedestrian. By putting himself close to the left edge of the pavement the pedestrian faces all traffic without the inconvenience of looking around. Nevertheless the pedestrian is not bound to adopt such a course. He may walk on the right side, if he will." To the same effect, see Lindloff v. Duecker, supra. In the case at bar the appellee's intestate chose the more dangerous side of the highway on which to walk. Had he walked on the left-hand side of the pavement and faced the traffic, he easily could have observed all oncoming automobiles. But he did not do that. On the other hand, he placed himself on the right-hand side of the pavement where his back was turned to oncoming automobiles. By so doing, the appellee's intestate increased the danger of his travel. There were shoulders on each side of the pavement. These shoulders were approximately three feet wide. While it had rained, and the ground was damp, it does not appear that the appellee's intestate could not have readily stepped upon the shoulder of the highway to permit the passing of oncoming vehicles. The night was exceedingly dark. Being on the north side of a steep hill, the appellee's intestate was obscured from the vision of automobile drivers approaching from the south side of the hill. An automobile approaching over the hill from the south at the rate of fifty miles per hour would cover, in a matter of from three to five and one-half seconds, varying according to the disputed location of the accident, before explained, the distance between the top of the hill and the point where the appellee's intestate was walking. *Page 790 Moreover, another car was approaching the appellee's intestate from the north. Consequently the reflection of the lights from that car would be apt to be confused by the appellee's intestate with the reflection of the lights from the car approaching from the south. So, too, the noise made by the approaching car from the north perhaps would be confused by the appellee's intestate with the sound of the approaching car from the south. If the car approaching from the north passed the car coming from the south at or near the place where the appellee's intestate was walking upon the highway, the danger naturally would be increased. While the car approaching from the north was opposite appellee's intestate on the highway, the vehicle coming from the south could not readily, if at all, materially turn to the left in order to go by the appellee's intestate. Recently there had been a rain, the night was dark and cloudy, and for other reasons there may have been shadows upon the pavement which might, to some extent at least, have obscured the appellee's intestate from the view of the driver of an approaching car. All these contingencies should, and must, have been taken into consideration by the appellee's intestate when determining the degree of his care while traveling northward on the east side of the highway. The fact that the vision of the appellee's intestate was obscured by the hill to the south increased the hazard of walking on the highway at the time and place in question. Because the view to the south was thus obstructed, more frequent observations to the south were essential. Safety required this. When the appellee's intestate chose the more dangerous side of the road, it was necessary for him to make observations which would be commensurate with the increased danger. Consequently, repeated observations to the south were essential for due or ordinary care under these circumstances. Referring now to the instruction under consideration, it is to be observed that the district court did not tell the jury that it was not necessary for the appellee's intestate to constantly look backward. What the court, in fact, told the jury was that the appellee's intestate in the exercise of due care need not continuously look both ways. By the use of the words "both ways," the court below, according to the context of the instructions, meant backward and forward. Perhaps under the circumstances of this case it was not so important for the appellee's intestate to look forward as it was for him to look back. However that may be, it was necessary that *Page 791 he make proper observations to his rear commensurate with the requirement that he exercise due or ordinary car. In Kessel v. Hunt, supra, the district court granted a new trial on the plaintiff's motion because that tribunal did not tell the jury, in accordance with the plaintiff's requested instruction, that "a pedestrian," in keeping "a reasonable lookout for vehicles approaching from the rear as well as from the front does not require the pedestrian to turn about constantly and repeatedly to observe the possible approach of vehicles from behind him, especially where there is ample room for a vehicle to pass him." We reversed the district court because it granted a new trial on that basis. There was a bend in the road in the Kessel case which obstructed the view of the pedestrian. Under the circumstances, we held that the district court, in the Kessel case, should not tell the jury that it was not necessary for the pedestrian to constantly look back. Due or ordinary care might have required that he do so. Consequently we refused, in the Kessel case, to prevent the jury from finding that the pedestrian, in the exercise of due or ordinary care, might be required to constantly look back. As we have said before, the district court in the case at bar did not say to the jury that due or ordinary care would not require that the appellee's intestate constantly look back. But the district court here said that due or ordinary care did not require that the appellee's intestate continuously look backward and forward for his safety. Obviously, in view of this record and our pronouncements upon the subject, it was error for the district court to thus limit the jury. The jury under the circumstances would have been warranted in finding, had they been so inclined, that an ordinarily careful and prudent pedestrian under the same or similar circumstances would have looked backward to an extent that, and as often as, would embrace not only the care required by, but also the care made unnecessary through, the district court's instruction containing the limitation of which complaint is here made. Although in the Kessel case, supra, a bend in the highway made increased observations necessary, here the obstruction caused by the hill likewise made imperative corresponding observations by the appellee's intestate. In view of the fact that the contributory negligence of the appellee's intestate was a material issue in the case, it is evident that the erroneous instruction of the district court, even when read with all the instructions in the case, was prejudicial to the appellant. *Page 792 Wherefore, the judgment of the district court must be, and hereby is, reversed. — Reversed. CLAUSSEN, C.J., and EVANS, ALBERT, and DONEGAN, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429628/

On March 10, 1930, decree was entered granting the plaintiff-appellee, divorce from the defendant-appellant. The appellee was the wife, and the appellant, the husband. The decree granted to the wife a complete divorce, and gave her the care, custody, and control of their minor daughter, who was at the time fifteen years of age, and also granted the wife alimony in the sum of $57.50 per month. The husband was an engineer on the Chicago, Burlington Quincy Railroad at the time the divorce was granted. His regular full-time wage was approximately $210 per month, which together with extra time averaged approximately $250 per month. The appellant remarried shortly after the entering of the decree. On account of decrease in railroad business, the defendant was reduced from engineer to extra engineer. During February, 1931, by mutual agreement between the appellee and appellant, the alimony payments were reduced from $57.50 per month to $45 per month. Some time after that, the appellant was reduced to the rank of fireman. His monthly wage was then reduced to approximately $150 per month. On May 23, 1931, the daughter of the parties married Vern Morris, and has since then lived apart from appellee, residing in Omaha, Nebraska. The appellant with his second wife removed from Creston to Pacific Junction, where they resided on the 15th day of June, 1931, on which date the defendant filed petition for modification of the decree of divorce, alleging a change of circumstances, and praying that he be relieved from making further payments of alimony to the appellee. The appellant claims that the marriage of the minor daughter of appellee and appellant, his demotion to fireman, and the reduction of his earning power to $150 per month, and his remarriage, constitute such a change in circumstances that the court should entirely release him from further payment of alimony. *Page 992 On the 17th day of March, 1932, after hearing evidence offered, at which hearing both appellee and appellant were represented by counsel, the district court found that the circumstance of the marriage of the minor daughter of the parties and the demotion of the appellant from engineer to fireman, with the resulting reduction in wage, constituted a change of circumstances sufficient in law to warrant a reduction of the amount of alimony payments required to be paid by the appellant from $45 per month to $35 per month, and entered decree reducing the alimony payments from $45 to $35 per month, and directed that the same should be paid in semimonthly payments of $17.50 each; same to be paid by the appellant to the clerk of the district court, and by him paid to the appellee. The appellant appealed, and alleges as grounds therefor, that the court erred in refusing to eliminate entirely the provision for payment of alimony to the appellee, in substance claiming that, under the facts and circumstances above set out, the court had no discretion, and that no allowance of alimony in any sum should be made. The remarriage of the appellant after the divorce was granted, and at a time when the decree of court required the paying of alimony by the appellant to his former wife, does not constitute a change of circumstance sufficient to require or justify a modification of the decree of divorce as to the amount of alimony payments provided for in the decree. The appellant knew at the time of his remarriage that he owed the alimony then provided for in the decree, and he should have taken that into consideration at the time of his remarriage. We are of the opinion that the circumstance of the demotion of the appellant from engineer to fireman, together with the consequent reduction in wages from approximately $250 per month to $150 per month, together with the marriage of the minor daughter of the parties and the relieving of the appellee of the expense of supporting the daughter, constituted a change of circumstances sufficient in the discretion of the court to justify a modification of the decree as to the amount of alimony payments required, either by reducing the amount of said payments, or, under equitable circumstances, to entirely eliminate provision for the payment of any alimony. See Nicolls v. Nicolls, 211 Iowa 1193. In the case at bar, the trial court, in the exercise of that discretion, reduced said alimony payments from $45 to $35 per month. *Page 993 The claim of the defendant-appellant, that under the record in this case there was no basis on which an allowance of any alimony could be made, is unsound. The trial court heard the evidence, saw the parties, and had the help of argument of counsel for both appellee and appellant. We find nothing in the record showing that the court exceeded its power or abused its discretion. The decree of the trial court is affirmed. — Affirmed. KINDIG, C.J., and EVANS, ALBERT, STEVENS, ANDERSON, DONEGAN, and KINTZINGER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429629/

In the year 1931, the General Assembly of Iowa passed the following law: "Hereafter when a proposition to authorize an issuance of bonds by a county, township, school district, city or town, or by any local board or commission, is submitted to the electors, such proposition shall not be deemed carried or adopted, anything in the statutes to the contrary notwithstanding, unless the vote in favor of such authorization is equal to at least sixty per cent (60%) of the total vote cast for and against said proposition at said election." Acts 44th Gen. Assem. c. 21 (Code 1931, section 1171-d4). Thereafter, on June 6, 1932, the Butler county board of supervisors, defendants-appellees, submitted to the voters of Butler county, at a special election, the question of whether primary road bonds in the sum of $450,000 should be issued for the construction of primary roads. 5,974 votes were cast at the election. Of that number, *Page 470 3,287 votes were in favor of the proposition, and 2,687 against it. Thus it is seen that a majority of the electors favored the issuance of the bonds for the building of the primary road. But because 60 per cent of the electors did not vote in favor of the proposition, the board of supervisors refused to levy the tax and sell the bonds. For the purpose of compelling the board of supervisors, and other county officials, to levy the tax and issue the bonds, Richard Waugh, the plaintiff-appellant, a resident and taxpayer of Butler county, and an owner of an automobile therein, commenced the present proceedings in mandamus on June 29, 1932. C.F. Shirer, S.W. Downs, and M.J. Green, defendants-appellees, are members of the Butler county board of supervisors. Lee L. Parks, a defendant-appellee, is treasurer of the county. Three general reasons are assigned by the appellant to support his application for the writ of mandamus. They are: First, that the act of the Forty-fourth General Assembly, requiring the 60 per cent vote above quoted, which is now section 1171-d4 of the Code, does not apply to the election under consideration. The election, it is claimed by the appellant, is controlled by section 4753-a10 of the 1931 Code. Under section 4753-a11, connected with the scheme of election provided in section 4753-a10, a majority vote only is required as distinguished from 60 per cent of the votes demanded by section 1171-d4 of the Code; second, that because section 1171-d4 does not refer to section 4753-a11 of the 1931 Code, as required by section 47 of that Code, the said section 4753-a11 is not repealed; and, third, that if section 1171-d4 applies in the case at bar, it is unconstitutional for several reasons hereinafter to be discussed. In attacking the appellant's petition, the appellees, county officers, filed a motion to dismiss on the theory that section 1171-d4 controlled the election. Therefore, a 60 per cent affirmative vote was necessary. Whereupon, the intervenors-appellees joined in the motion to dismiss filed by the defendants-appellees, the county officers. Charles Winkey, Fred Toll, W.C. Wilson, Albert Bramer, and Theo. Bickert, intervenors-appellees, are residents and taxpayers of Butler county and automobile owners therein. After a trial in the district court, the contentions of the appellant were rejected and judgment entered in favor of the appellees. From that judgment the appellant appeals. [1] I. At the outset, then, it is necessary to determine whether *Page 471 the election was controlled by section 1171-d4 of the 1931 Code or section 4753-a11 thereof. If the election was controlled by section 1171-d4 of the Code, the action of the district court must be sustained. On the other hand, if the election was controlled by section 4753-a11 thereof, the judgment of the district court should be reversed. Section 4753-a11 is the earlier section of the Code; while section 1171-d4 is a later section thereof. [2] This last-named section of the Code was enacted, as before explained, by the Forty-fourth General Assembly in the year 1931. So section 1171-d4 is the latest word of the Legislature. It is manifest that if both sections of the Code apply to the same subject, they are inconsistent with each other. The one anticipates that the proposition shall be carried by a majority vote in its favor, while the other demands that it shall be carried only by at least 60 per cent of the total votes cast for and against the proposition. These two sections cannot be reconciled. They are not in harmony with each other, for the one is inconsistent with, and contrary to, the other. As hereinafter will be seen, section 1171-d4 by implication repeals section 4753-a11, so far as the vote required is concerned. Repeals by implication, it is well known, are not favorites of the law. Consequently such repeals will be avoided if such result reasonably can be reached. Neessen v. Armstrong, 213 Iowa 378,239 N.W. 56; Fowler v. Board of Trustees of Water Works of Ottumwa et al., 214 Iowa 395, 238 N.W. 618; Ogilvie v. City of Des Moines, 212 Iowa 117, 233 N.W. 526. On the other hand, "it is a familiar rule of statutory construction that, where statutes are repugnant and cannot be reconciled, the one last enacted must be given effect." Owens v. Smith, 200 Iowa 261, 204 N.W. 439,441; Clear Lake Co-op. L.S.S. Association v. Weir, 200 Iowa 1293, local citation 1301, 206 N.W. 297. See also Rains v. First National Bank of Fairfield, 201 Iowa 140, 206 N.W. 821; Way v. Collins Oil Co., 187 Iowa 1375, 173 N.W. 20; Dayton v. Pacific Mutual Life Insurance Co., 202 Iowa 753, 210 N.W. 945; Solberg v. Davenport, 211 Iowa 612, 232 N.W. 477. But it is claimed by the appellant that because the primary road bonds may be paid through the state gasoline tax, or by some other method, the Legislature intended to exclude them from the operation of section 1171-d4, above mentioned. There is nothing in the legislation to indicate this intent. On the contrary, section 1171-d4 is all-inclusive and, by express language, applies to all *Page 472 bond issues of the kind contemplated "statutes to the contrary notwithstanding". Section 1171-d4 of the 1931 Code, by its own language, indicates that the Legislature intended thereby to repeal all the statutes contrary thereto. When enacting section 1171-d4, the Legislature had in mind former statutes, including section 4753-a11 relating to the vote required for bond issues by a county, township, school district, city, or town, or any other local board or commission. Nothing was covered by section 1171-d4 except the vote required to carry a bond issue of the kind contemplated. It is admitted by the appellant, and all concerned, that primary road bonds are county bonds. These bonds are obligations of the county. So they are county bonds. They, being county bonds, are included within the prohibition of section 1171-d4 of the 1931 Code. Before elections to authorize their issuance can be carried, then, it is necessary that "The vote in favor of such authorization is equal to at least sixty per cent of the total vote cast for and against said proposition." Because, then, the vote at the election under consideration in favor of the proposition did not reach the 60 per cent required, the proposition was not carried at the election. [3] II. It is further argued by the appellant, however, that section 4753-a11 was not repealed because the Legislature did not conform to the requirements made in section 47 of the 1931 Code. This last-named section provides: "Bills designed to amend, revise, codify, or repeal a law: 1. Shall refer to the number of the section or sections of the code to be amended. 2. Shall refer to the number of the chapter or chapters and title of the code to be amended. 3. Shall refer to the number of the general assembly and of the sections and chapters of the acts thereof to be amended in case the bill relates to a section or sections of an act not appearing in the code. 4. All references shall be expressed in words, followed by the numerals in parentheses, and if omitted the reporter of the supreme court in preparing acts for publication in the session laws shall supply the same." There is no claim by the appellees that the Legislature, in adopting section 1171-d4, complied with section 47 when repealing section 4753-a11. The question here raised by the appellant, *Page 473 nevertheless, has been disposed of by this court in previous cases. In Solberg v. Davenport, 211 Iowa 612, we said on page 624, 232 N.W. 477, 483: "With the latter proposition [the one now raised by the appellant in the case at bar] we cannot agree. The general rule is too well settled to need citation of authority that each Legislature is an independent body entitled to exercise all legislative power under the limitation of the Constitution of this state and the United States, and no Legislature can pass a law which would be binding on subsequent Legislatures. We think this rule applies to the situation before us [the one before us in the case at bar]. In other words, section 47 of the Code 1927 was utterly disregarded by the Legislature; yet it cannot be held invalid because thereof. Authorities on this proposition are not numerous, but those we have been able to find announce this doctrine." So far, then, as section 47 of the Code is concerned, section 1171-d4 thereof, by implication, repealed section 4753-a11 under consideration. [4] III. Remaining for consideration, then, is appellant's argument based on the theory that section 1171-d4 is unconstitutional. Several propositions are argued by the appellant on the constitutional phase of the controversy. There are involved the following provisions of the Iowa Constitution: Sections 29 and 30 of Article III and sections 2, 6, and 25 of Article I. Because of the many arguments involved, under this subject, the discussion must necessarily be somewhat disjointed. For convenience we will pursue these questions in the order of the appellant's complaints. Nowhere in section 1171-d4, as argued by the appellant, is there granted privileges contrary to section 30, Article III, of the Constitution, to certain citizens, or classes of citizens, not offered upon the same terms to the appellant. The law applies uniformly and generally, not only to the citizens of Butler county, but to each county and the citizens thereof in the state of Iowa. No bonds of the kind contemplated by section 1171-d4 can be issued in Butler, or in any other, county of the state without the vote required. Therefore, the law has uniform application and applies to every county in the state and its citizens, other than Butler county and its citizens, the same as it relates to Butler county and its citizens. [5] Furthermore, as required by section 29, Article III, of the *Page 474 Constitution, section 1171-d4, contrary to the appellant's contention, embraces but one subject. Also the objects of the act were expressed in the title. According to the acts of the regular session of the Forty-fourth General Assembly, the title of the law fully expresses the subject embraced in the act. Obviously the title expresses the very purpose of the act, and, as before said, the act contains but one subject-matter. Section 29, Article III, of the Constitution provides that "every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title". It was said in Cook et al. v. Marshall County, 119 Iowa 384, reading on page 397, 93 N.W. 372, 377, 104 Am. St. Rep. 283: "This, it has often been held, does not require a construction forbidding the inclusion in one act of all matters germane to the main proposition or purpose sought to be effected, even though they are not specifically mentioned in the title. If there is a `unity of object' in the various provisions, and that general object is indicated by the title, then, no matter how multifarious the provisions of the act, it sufficiently complies with the constitution." Again this court said in Dayton v. Pacific Mutual Life Insurance Co., 202 Iowa 753, reading on page 757, 210 N.W. 945,946: "The intent of this constitutional provision is to prevent the union in the same act of incongruous matter and of objects having no connection or relation thereto. The unity of object is to be looked for in the ultimate end designed to be attained, and not in the details looking to that end." To the same effect, see Beresheim v. Arnd, 117 Iowa 83, local citation 89 and 90, 90 N.W. 506. Incongruous matters are not embraced within the provisions of section 1171-d4 of the 1931 Code. On the other hand, the matters embraced in that section are connected with and related to each other. The section has unity of object, and therefore does not violate the constitutional provision under consideration. [6] Section 2, Article I, of the Constitution provides that: "All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it." *Page 475 Clearly, there is no basis for the appellant's contention that section 1171-d4 violates this provision of the Constitution. There is nothing in the Constitution providing that a bond issue of the kind in question may be carried by a majority vote, as distinguished from the vote required in section 1171-d4. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Tenth Amendment to the Constitution of the United States. In connection with the foregoing principles, it must be further understood at this time that the state Constitution is not an instrument which confers powers upon the people, but rather it prohibits certain powers otherwise existing. Gallarno v. Long,214 Iowa 805, local citation 818, 243 N.W. 719. Under this principle, then, the people, through our Legislature, had the power to enact section 1171-d4, unless the state Constitution prohibited it. As before suggested, there is no such prohibition in the state Constitution. Without the prohibition in the state Constitution, the state legislature had the constitutional power to enact the legislation. In re Plurality Elections, 15 R.I. 617,8 A. 881; State ex rel. Saunders v. Clark, 59 Neb. 702,82 N.W. 8. It is not claimed by the appellant that the federal Constitution in any way prohibits the enactment of section 1171-d4. Accordingly, contrary to the appellant's claim, section 1171-d4 does not violate section 25. Article I, of the Iowa Constitution. After carefully considering the appellant's arguments on the constitutional phases of this act, it is apparent that the law is not unconstitutional. Before an act will be declared unconstitutional, the unconstitutionality must plainly, clearly, and palpably appear. Gallarno v. Long (214 Iowa 805,243 N.W. 719), supra. The appellant in the case at bar has not shown the statute under consideration to be plainly, clearly, and palpably unconstitutional. It is plain, therefore, that the district court properly sustained the appellees' motion to dismiss the appellant's petition. Wherefore, the judgment and decree of the district court must be, and hereby is, affirmed. — Affirmed. STEVENS, MITCHELL, ANDERSON, and KINTZINGER, JJ., concur. *Page 476

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429630/

To the end that a fair view of the questions involved herein may be had, we gather the following facts from the record: In the fall of 1922, one C.H. Eddy agreed to purchase from plaintiff, the Sunset Park Land Company, real estate known as Lots 29 and 30, Sunset Park Addition to the 1. MORTGAGES: city of Des Moines, upon which he proposed to transfer of construct an apartment house consisting of some mortgaged 54 apartments. He seems to have had no money property: with which to pay for the lots or for the merger and building to be constructed thereon. He let the cancel- contract to one W.F. Kucharo, to construct this lation. building. To raise money for the purpose of paying the contractor, Eddy entered into an arrangement with the Old Colony Bond Company, to borrow from it the sum of $120,000 as the first loan on said property, the same to be in the form of a bond issue. On November 3, 1922, he also made a second deed of trust to the Security Trust Savings Bank, to secure a bond issue of $78,000; and it is the latter issue of bonds that is involved in this litigation. Of this $78,000 bond issue, $18,000 was to be used for payment of the lots purchased, and certain other expenses incident to the construction of the building, and $60,000 thereof was to be accepted by Kucharo as part payment *Page 434 on the building contract. The Old Colony Bond Company was unable to carry out its part of the agreement, and this necessitated the negotiation of a new loan, after the Old Colony Company had canceled its deed of trust of record. The Central Trust Company was trustee in the new deed of trust for $150,000, which was carried through successfully; and this amount, less commission, was paid to Kucharo. Prior to the time the trust deed was made to the Central Trust Company, which was dated June 1, 1923, Eddy and wife made a deed of this property to Kucharo; and about the same time, a contract was made between them, in which Eddy was given the right to sell or purchase the $60,000 in bonds above referred to at any time within two years; and if he did so, and turned the proceeds thereof over to Kucharo, Kucharo was to deed back the property. This Eddy never did, and Kucharo later served on him a notice of forfeiture, cutting out all of Eddy's rights under the contract. By special arrangement the trust deed to the Central Trust Company, although made and executed later than the $78,000 mortgage and trust deed, was, by recitation and agreement of all parties, made a first lien. At the time of the making of the Central Trust Company deed, it was demanded, in addition thereto, that Kucharo put up a bond for the completion of the building. This bond was furnished by the United States Fidelity Guaranty Company. It appears that Kucharo was engaged in the construction of other buildings in the city, and this guaranty company was on his bonds on other work. Although his contract had not been completed, Kucharo quit work on the Eddy Apartments in October, 1923, and the guaranty company furnished the money to complete the apartments, in an amount of something over $39,000. Kucharo became financially distressed in October, 1923, and the guaranty company demanded security from him, and Kucharo and his wife trust-deeded all of their property, both real and personal, to one J. Dillard Hall, as trustee, for the benefit of such guaranty company, and to protect and secure the Des Moines National Bank, and turned over said property to said trustee, among which were the second mortgage bonds, which were originally in the sum of $60,000, but which had been reduced to $57,650 by reason of the payment of the contract debt to the Des Moines Building Material Company in the sum of *Page 435 $2,350 by delivery of bonds. Hall took possession of said apartment building, and on its completion rented and cared for the same. At the time of the commencement of this suit, these bonds, in the amount of $78,000, were held as follows: Sunset Park Land Co. $6,900.00 Northern Trust Savings Bank 600.00 Van Dyck Heating Plumbing Co. 2,000.00 Vorse, Kraetsch Kraetsch 2,500.00 Bachman Steel Metal Works 400.00 U.S. Fidelity Guaranty Co. 57,650.00 Persons not parties to this action 7,950.00 The Van Dyck, Vorse, and Bachman companies all intervene in this action. What may be designated as "the first mortgage bond" is the issue of $150,000, only incidentally involved in this action. The district court held that it constituted a first lien upon the property, and of this no complaint is made, and no further attention need be given to it. The trustee under the second deed of trust, to wit, the $78,000 loan, refused to prosecute this action, and the plaintiffs brought action for foreclosure of the trust deed. The expenditure in the construction of the building was $218,079.60. At the time the contract aforesaid was made between Kucharo and Eddy, on May 17, 1923, the $60,000 in bonds had been delivered to Kucharo, and when Kucharo trust-deeded his property to Hall for the benefit of the guaranty company, he turned over the sum of $57,650 of said bonds, and these bonds were transferred by Hall to the guaranty company on account of advances made by that company to Kucharo. Any other facts necessary to an understanding of the case will be stated as the opinion progresses. The first claim by appellants is that, when Kucharo had this $60,000 in bonds in his possession, and Eddy and wife conveyed the property to him, the bonds were thereby merged and canceled by operation of law, and hence are not entitled to share in this foreclosure. The doctrine of merger is quite well defined in the case of Moore v. Olive, 114 Iowa 650, where a mortgagee purchased the outstanding title. We there said: "* * * merger, as a rule, depends upon the intention of the owner, and if there be no evidence of such intent, equity *Page 436 will not treat a mortgage as merged when it is to the interest of the owner, or those claiming under him, that it should continue in force. * * * [Citing cases.] The doctrine is of equitable origin, and is governed by equitable considerations. In the instant case it clearly appears that Olive did not intend a merger when he purchased the Lowell mortgage. Hence there was no merger, and plaintiffs are not entitled to a decree unless they show that under the facts disclosed by the record the Lowell mortgage should be treated as extinguished by reason of the foreclosure proceedings," etc. The facts in this case show that the deed from Eddy to Kucharo, by reason of the contract made at the same time, did not convey a complete title to Kucharo, and Kucharo trust-deeded these bonds before his contract with Eddy ripened into full title. It is elementary under the theory of merger that the different interests center in one party, and when taken altogether, constitute a complete title. This being the rule, it cannot be said or held by us that, when Eddy made the deed to Kucharo, the title then merged, and that by reason thereof the bonds in fact were canceled and of no further force, effect, or value. We say this by application of the general rule, not passing upon the question, however, whether these bonds held by Kucharo created any interest whatever in the property itself. The doctrine of merger nearly always applies wholly to the concentration of interests in real estate. As to the incidental thought that, when the bonds were in the hands of the United States Fidelity Guaranty Company, and the deed was procured from Kucharo, there was then a merger, what we have already said applies. Further than this, the evidence shows that the deed in possession of the United States Fidelity Guaranty Company was a deed in blank, and was procured for the purpose of assuring purchasers at the foreclosure sale that they could get an immediate title to the property if they would bid on it. It would not have been to the interest or benefit of either Kucharo or the United States Fidelity Guaranty Company to have these titles merged, under the circumstances, but would have been to the disadvantage of both; hence there was no merger here. This was the only question urged upon our attention, so far as the main case is concerned. The next question raised involves a somewhat further reference *Page 437 to the record: When J. Dillard Hall was made trustee of the property for the benefit of the United States Fidelity Guaranty Company and the Des Moines National Bank, as 2. RECEIVERS: heretofore stated, he took possession of the accounting: property, collected the rents and profits, paid expendi- the expenses, and, on the appointment of a tures: receiver, he, as trustee, turned over to allowance. himself, as receiver, the sum of $1,200, and as such receiver, proceeded to manage the Eddy Apartments, collect the rent, pay the expenses, etc. His appointment by the court was with the consent of all of the parties to this litigation. It is to be remembered that this house was being conducted as an ordinary apartment house, and needed care and attention during all of the time. The receiver, as such, filed his reports, which show that the total amount of money received by him was less than the amount expended; and the court, in its order of distribution, provided for certain payments out of the proceeds of said sale, and further provided for the payment of charges for necessary improvements and upkeep incurred by the receiver, either prior to the date of its decree or during the period of possession by the receiver, after the exhaustion of the funds which came into his hands after the entry of the decree, and that the balance should be applied pro rata on all bonds outstanding under the trust deed hereby foreclosed. The objections and complaints as to the report of the receiver are to certain amounts disbursed by said receiver, consisting of certain expenditures for completing the construction of said building, in the sum of $3,178.36, taxes paid, in the sum of $4,315.12, and payments on the first mortgage, totaling $16,800. The excess of expenditures over receipts by said receiver was in the sum of $5,687.02; and, under the above order of the court, this would be deducted from the amount which the property brought at the foreclosure sale, to wit, $10,000. In response to all of these complaints it may be said, first, that the expenditures were either made under order of the court or, after the expenditure was made, the court made an order approving the same. It is to be remembered that this man, acting as receiver, was in fact an officer of the court, and had a right to apply to the court for directions as to what he should do in the care and upkeep of this property, and when the court gave him an order to do anything in relation thereto, he was entitled *Page 438 to carry out such order, and be protected in so doing. Again, the district court in this proceeding approved this report, and anything that had not been approved at a prior date was approved by his ruling herein. It appears also that the expenditures for some small details in the completion of the building to make it habitable and useful for the tenants were necessary, and we see no reason why their allowance was not properly approved by the court. The contract under which the first trust deed was made provided for the monthly payments thereon in the sum of $1,225 per month, to apply on interest, or by way of payment on the principal of $150,000 and mortgage. When the receiver took charge, in pursuance of that contract, he made these monthly payments, in all amounting, as above stated, to $16,800. His action was approved, and further than this, it inured to the benefit of the holders of the second mortgage bond, because it prevented foreclosure and reduced the primary indebtedness accordingly; and, of course, every reduction of the primary indebtedness would tend to increase the amount that would be bid under the foreclosure sale of the second mortgage. What has just been said applies to the taxes, which were also paid by said receiver. One other item is a salary of $150 a month paid to Mrs. Katherine Reynolds by the receiver. It is quite apparent from the record that the care of this property demanded the attention of one person. The receiver could not give his attention to it in person, and of necessity had to hire someone to look after it. He employed this woman at $150 per month, and paid her, in all, about $1,800 for her services in looking after the property. The amount claimed and allowed to the receiver for his services in the instant case was the nominal sum of $200. We can see no reason why complaint should be made of this item. It was a necessity, and the payments from time to time were approved by the court. We find no error in the action of the district court. —Affirmed. EVANS, C.J., and STEVENS, MORLING, and WAGNER, JJ., concur. *Page 439

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429632/

Appellant and appellee are husband and wife. They were married in December, 1903, and have five children, two of whom are living with the appellee. Appellant is a physician, engaged in the practice of his profession at the town of Soldier. The appellee resides at Onawa. It is the contention of the appellee that, within a month or two after the parties were married, they entered into an oral agreement that appellee was to assist the appellant in connection with his business, and that, whenever there were any savings out of his business, they should be divided in such a manner that she would receive $500 and the appellant $500. Appellee had no separate business of her own. The appellant was evidently successful in his business, and accumulated a considerable amount of property. It is the appellee's contention that certain property in the form of bonds, certificates of deposit, and other forms of indebtedness, stood in her name, and belonged to her, and that the appellant has converted the same, and that she is entitled to an accounting therefor. The parties had a safety-deposit box in the defendant bank, in which securities were placed. Both parties had keys to said box. The appellant is president of the bank. A large amount of securities in the way of stocks, certificates of deposit, and other evidence of indebtedness, was in the name of the appellee. The appellant contends that all of said property belonged to him, and that it was placed in the name of the appellee solely "as a matter of business." Appellant's explanation is that he was fearful that he might sometime be sued for malpractice *Page 338 in his profession, having had one experience of that kind, and that he placed his property in his wife's name, to avoid possible complications in the event of such a suit. The wife, on the other hand, contends that she had the oral agreement referred to with her husband, by which she was to have half of the profits of the business as her own and in her own right, and that the securities which stood in her name were her own individual property, and that these have been converted by the appellant. I. It appears from the testimony that $15,000 had been invested in the stock of the American Life Insurance Company in the name of the appellee. This stock was sold in August of 1921. It appears that the check for the proceeds of the 1. HUSBAND AND sale of said stock, amounting to $15,000, was WIFE: sent by mail from Des Moines on or about August accounting: 16, 1921, in a letter addressed to the appellee. converted It is the contention of the appellee that she bank deposited said check in the defendant bank when account. she received it, and that, at the time, she gave the cashier of the bank instructions to invest it for her. She testified: "I don't know whether he did or not. He never turned over any notes to me, and I never got any proceeds for any notes, or anything like that." The deposit slip issued by the cashier of said bank for the deposit of the said $15,000 was offered in evidence, and shows that said sum was deposited for the credit of the appellee. The appellee had no pass book. The books of the bank were produced, and the ledger account showed that the credit of $15,000 was placed in the appellant's account. An officer of the bank testified that there was no record that any portion of the $15,000 shown by the deposit slip had ever been paid to the appellee or returned to her. The books of the bank showed that the $15,000 was deposited in the appellant's account, and that usually checks were drawn on that account by both appellant and appellee; but whether the appellee drew any portion of the $15,000 does not appear. Appellee testified that she did not authorize the bank to deposit said $15,000 in the joint account of said parties or in the account of the appellant. The record does show that, after the deposit of the said $15,000 in the account of the appellant, the first check drawn thereon was for $2.10; then followed six *Page 339 checks amounting to $714.79; and the seventh check was for $14,855.81. This check was drawn August 23, 1921, five days after the deposit of the $15,000. The sum of $752.28 was in the account prior to the deposit of the $15,000. The bank officers produced data tending to show that the $14,855.81 that was withdrawn from the account was invested in ten notes. A debit slip was attached to the list. There is no definite showing as to what became of said notes. The appellee testified that she had never heard of the purchase of said notes until it was testified to on the trial. The appellant testified that he bought the stock in the insurance company and paid for it, and that it was his own money that was invested in it. He testified that he attended to the sale of the insurance stock for $15,000, and that he knew of the investment of the proceeds in the purchase of notes. He contends that he told the appellee that the purchase of said notes was made with said money. It does not appear what became of the notes in which the said proceeds were invested, but from the entire record it satisfactorily appears that the appellee did not receive the proceeds of the same. The trial court awarded the appellee the said sum of $15,000, with interest thereon from the date the same was deposited, on or about August 16, 1921. Of this the appellant makes complaint. We do not deem it necessary to determine the question as to whether or not an oral contract existed between the parties for the division of the earnings of the appellant in the practice of his profession, or whether such contract, if entered into, would be legal. One thing does satisfactorily appear from the record, and that is that the appellee was the owner of stock in the American Life Insurance Company of the value of $15,000. Whether the original purchase price for said shares of stock was furnished by the appellee or not is not material to the question of her ownership. The title to said stock was vested in her. If it was a completed gift from the appellant to the appellee, the title and ownership would be perfect in her. If it was a completed gift, the appellant could not recall it, except by the consent of the appellee, and no such consent appears of record. If it was in her name because of a fraudulent purpose on the part of the appellant, the court would leave the parties where it found them. The title to the stock and to the proceeds thereof was in the appellee. She deposited the draft for $15,000 in the bank, *Page 340 and received the deposit slip therefor in her own name. We think that it satisfactorily appears from the record that the appellant did receive the proceeds of the said $15,000 in the form of notes. It does not appear that the appellee consented to this arrangement. We reach the conclusion, under the record, that the appellee was the owner in her own right of the proceeds of the $15,000 in question, and that the appellant did convert the same to his own use, and has not accounted to the appellee therefor. The conclusion of the trial court is supported by the record in the case, and we are disposed to acquiesce therein. II. Appellee claims that she is entitled to judgment against the appellant for the further sum of $11,500 and interest. It is the contention of the appellee that she examined certificates of deposit that were kept in the safety box used by 2. HUSBAND AND the parties, and that at one time she discovered WIFE: certificates of deposit in said box in her name accounting: in the sum of $11,500. She testified that these evidence: certificates aggregating $11,500 were payable to insuffi- her, and were issued at different times; that ciency. they were left in the safety-deposit box; that she left the matter with the bank officials in regard to the renewal of said certificates. Appellee testified that the last record she has of time certificates was March 1, 1922, and that said certificates then aggregated $11,500; that they were in her name, and bore 5 per cent interest. There is no sufficient evidence in the record from which we can determine what became of the proceeds of said certificates of deposit, or trace them in any specific manner. The general course of dealing was evidently one where certificates of deposit were sometimes cashed and carried into the joint open checking account, and from time to time, the checking account was transferred into certificates of deposit. It does not appear in the record from what source said certificates which the appellee says she found in the safety box were derived. Nor does it sufficiently appear from the record in what manner or by what means they were disposed of. The record is not sufficient to support the appellee's claim of a conversion of said certificates by the appellant, and we would not be warranted in entering judgment against him therefor. III. A large amount of evidence was introduced with regard to the various transactions of these parties and the property now owned by each and many other matters. We have read the *Page 341 record with care. We fail to find therefrom that the appellee has established her right to recover judgment against the appellant for any other or different sum that the amount awarded her by the trial court. IV. The court awarded judgment against the defendant bank for the sum of $139.43, which was the amount on deposit in said bank to the account of the appellee at the time the action was instituted. This amount, however, was afterward 3. APPEAL AND checked out, and the inclusion of judgment ERROR: therefor in the decree was obviously an decision: oversight on the part of the trial court. The modifi- decree must be modified to the extent of cation: eliminating judgment in behalf of the appellee erroneous and against the said bank for said sum. In all calculation. other respects, the decree is affirmed. The costs in this court will be taxed one half thereof to the appellant and one half thereof to the appellee. No costs will be taxed to the bank. It is so ordered. — Modified and affirmed. ALBERT, C.J., and EVANS, KINDIG, and WAGNER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429634/

This action was brought by the plaintiffs, Ronald W. McVay and Herbert Kerkman against defendants Albert Carpe and George C. Cessna, and therein plaintiffs asked for damages for false arrest and imprisonment at the hands of the defendants, alleging that they had been subjected to physical and mental discomfiture, embarrassment, humiliation, and loss of social standing, and, in the case of McVay, loss of employment, alleging that defendants had no reasonable or legal grounds for arrest and that in so doing defendants acted illegally. The defendants, admitting the arrest, allege that in so doing they acted within their legal rights and claimed that they had reasonable grounds for believing that the plaintiffs *Page 1133 had been participating in various breakings and enterings in the city of Des Moines, and further, that plaintiff McVay was arrested for violating a city ordinance requiring the drivers of automobiles to stop their vehicles at a stop sign then existing at the intersection of Douglas and Beaver Avenues in said city. The cause was tried to the jury and a verdict of $1,500 was rendered in favor of each plaintiff and against each defendant. A motion for a new trial was made and this was overruled on condition that each plaintiff file a remittitur for all amounts of the judgment in excess of the sum of $1,000. Such remittiturs were filed as required. Defendants have appealed. Hereinafter we will refer to plaintiffs as appellees and to the defendants as appellants. In the original pleadings there was a third defendant, one Marasco, but the case was dismissed as to him and he is not involved in this appeal. I. During the spring of 1946 there had been a series of breakings and enterings of various establishments, principally service stations in the northwestern part of the city of Des Moines, and the police department had assigned detectives to cover that area with the purpose of apprehending the offenders. The two appellants were among those so assigned. On the night of June 1, 1946, appellee McVay of Des Moines, and a visiting brother-in-law, appellee Herbert Kerkman, a resident of Bridgewater, Iowa, were proceeding to McVay's home, located west of the intersection of Beaver and Douglas Avenues in Des Moines. McVay was a returned service man, was married, with a wife and two children, and was then employed at the Walgreen Drug Store of Des Moines. Shortly after the McVay vehicle had proceeded west on Douglas Avenue from its intersection with Beaver Avenue, the appellants stopped the McVay car and informed the occupants they were under arrest. This arrest took place between two and three o'clock in the morning. Between the time of the closing of the Walgreen store and that of the arrest appellees had taken lunch, gone to a movie and also a night club located on Keosauqua Way, a main thoroughfare into Des Moines from the northwest. After the arrest they (appellees) were questioned briefly, their names and addresses taken, the car was searched and both were taken to the police station and *Page 1134 placed in separate cells. Both appellees state that when they were arrested they inquired the cause but received no information save a reply, "you will soon find out." Something was also said to the effect that the McVay automobile had run a stop sign at the junction of Beaver and Douglas. At the police station a bulletin of arrest was made for each appellee. Said bulletin gave data as to name of person, residence, sex, nationality, age, time of arrest, officer making arrest, etc. These bulletins are part of the permanent records of the police department. On each bulletin under the head of "charges" is found the notation, "Investigation Dets." Under the head of "remarks" are words, "See bulletin No. 3350." This bulletin referred to McVay; bulletin No. 3351 referred to Kirkman (Kerkman) and both gave practically the same information given in the bulletins of arrest. The only data therein showing why either appellee was held was "investigation." All these records show that the arrests were made by appellants at 3:30 a.m. on June 1, 1946. They show that both were released at 2 p.m. On the McVay bulletin under the heading of "remarks" we find the following: "This man has been running around with John Baker and John Carney. They were out to Val Air together. Might do for some of B.E. This fellow works at Walgreen's Store. Has a Chevrolet Car on Lot # 1-1495 Iowa. Has an extra set of hub caps in his car. [Signed] Castelline." Castelline under the record is inspector of detectives of the Des Moines Police Department. Castelline testified that they examined John Baker and John Carney (then in jail) and that neither of them involved either McVay or Kerkman and he released them. Appellant Carpe testified as to the arrest. On cross-examination he said: "We just had them in for investigation. We believed they had committed the crimes, but had to have further investigation on it. That I never filed charges against them. If all we wanted him for was running through the boulevard, the proper procedure was to take the name of his car, license number, and give him a summons to appear the next morning at nine o'clock. *Page 1135 In our department, take him down to the jail. We wanted him for something besides running through the boulevard. I didn't give him a summons." After McVay was released he was discharged from his employment at Walgreen's. He testified he talked to the manager, a Mr. Hayes and was told that someone else was in his place. We quote: "He said also, due to the fact that I was in jail if it got to the papers he didn't want the advertisement for the store." McVay further stated that he was out of a job for a month and at the time of the trial was a student in Drake University and worked part time in another drug store. It was not until the next day that any information was given appellees why they had been arrested and McVay was told he had been seen in the company of John Carney. The latter had worked at the Walgreen store during a part of the time McVay worked there. Kerkman was not acquainted with either Carney or Baker. [1] II. The first division of appellants' brief sets out three claimed errors. Summed up they are as follows: (1) That the court erred in refusing to direct a verdict for appellants when appellees rested; also at the close of taking evidence. (2) That the court erred in overruling the motion to withdraw from the jury the issue of false arrest as to appellee McVay. (3) That the court erred in overruling appellants' motion for a directed verdict, and to withdraw from the jury the issue as to the arrest of McVay. Taking up the first paragraph of Division I of the brief and argument of appellants we hold that there was no error in the ruling of the court when appellees rested and when all the evidence was in. The motion made when appellees rested was directed toward both appellees. As the record showed an arrest without a warrant and the incarceration of appellees, they had made out a case for the jury. The burden would then be cast upon appellants to justify their act in arresting appellees. As McVay was the driver of the automobile, certainly it could not be claimed that appellee Kerkman was liable for arrest in failing to observe the stop sign. When the evidence *Page 1136 was all in there remained the issue as to whether the appellants had shown sufficient evidence to justify the arrest — in other words, that became a question of fact for the jury; and such being the record the motion to direct a verdict for appellants was properly overruled. We will next consider the motion as directed to appellee McVay, the driver of the automobile at the time of the arrest. Kerkman was with McVay in the car. Both were arrested without warrant, taken to the police station and placed in jail. No charges were filed against either of them and they were released about twelve hours later. At the trial below, appellants claimed that McVay was arrested for failing to stop at a stop sign at the intersection of Douglas and Beaver Avenues in Des Moines. However, no charge for such claimed offense was ever filed against McVay, driver of the automobile. Evidently Kerkman was arrested and taken to jail for the reason that he was found in McVay's company. Nowhere is there made any claim that he was even remotely connected with any of the individuals who were under suspicion for the breakings and enterings. We think it is clear from the record that the arrests were not made because McVay violated the stop sign at that point. Carpe, one of the arresting officers, stated as a witness that that was not the real reason for McVay's arrest. We think it is equally clear that both appellees were arrested on suspicion that they had participated in various breakings and enterings about that time and in that neighborhood. Regarding the claim that McVay failed to obey the stop sign, thereby committing a public offense in the presence of the officers, giving them a legal right to arrest him, the court by instruction dealt with such claim as follows: "If you find by a preponderance of the evidence that plaintiff McVay, in the presence of the defendants drove his automobile through said stop sign without first stopping, then the defendants had the right, under the law, to arrest said plaintiff and take him to jail and they would not be liable in damages for so doing." *Page 1137 Appellants argue that McVay at the time they arrested him admitted that he did not stop at the stop sign, thereby admitting that he had committed a public offense and therefore could not claim that he was falsely arrested. Appellants claim that such admission made it conclusive that a public offense had been committed by McVay in the presence of appellants. We do not agree with appellants upon this claim. McVay, as a witness, at one point says that he did stop. Also, that he would not swear that he made a dead stop — he simply declared that he stopped. He testified: "When we approached the crossing, the crossing of Beaver and Douglas, we stopped, shifted into low, and turned west on Douglas." On cross-examination he said: "I think both Mr. Kerkman and myself asked them [appellants] why we were being arrested and Cessna asked me how come I went through the stop sign. I told him I slowed down and shifted gears. Mr. Cessna said, `You realize you could be taken in forthat.'" (Italics supplied.) Kerkman corroborates McVay in saying that McVay slowed down and shifted into low. When they asked why they were being arrested they were told "you will soon find out." Under the record we think that the court properly submitted to the jury the issue as to whether or not McVay failed to heed the stop sign; also, the question of whether the arrest was made for that reason. In the same instruction from which the quotation above was taken, the court qualified the same by adding the following: "If you believe that the defendants arrested the plaintiff McVay not for failing to stop before he went through the stop sign, but because they suspected him of having committed the crime of breaking and entering, then said arrest * * * would be false, unless you further find by a preponderance of the evidence that a crime of breaking and entering had been committed and that they, the defendants had reasonable grounds to believe this plaintiff had committed it." From the part of the instruction just quoted it is evident that the court had in mind that the real reason for arresting McVay might not have been for the alleged failure to heed the *Page 1138 stop sign but was because of suspicion that he might have been involved in other crimes — breaking and entering. The court very properly left that matter to the jury. The testimony of a witness is to be judged as a whole even if it is contradictory and conflicting. It is for the jury to pass upon under proper instruction. Mohn v. Mohn, 181 Iowa 119, 164 N.W. 341; Daggy v. Miller, 180 Iowa 1146, 162 N.W. 854; Holden v. Hanner, 231 Iowa 468, 1 N.W.2d 671; Thompson v. Butler, 223 Iowa 1085, 274 N.W. 110; IX Wigmore on Evidence, Third Ed., sections 2588-2595. In support of the errors claimed in Division I of their brief and argument, appellants cite many cases. We have examined these cases but in the light of the present record do not see their application. There was a conflict in the evidence as to whether McVay violated the law at the stop sign; also, as to whether appellants had reasonable cause to believe that the appellees had been involved in the breakings and enterings. The court gave the jury proper instructions on those matters and we hold there was no error in refusing to grant appellants' motion to direct a verdict for appellants. [2] III. Another error urged by appellants is that the court erred in denying them the right to open and close the argument. Under the record we hold that the court did not err. Rule 195, Rules of Civil Procedure, provides that the party having the burden of proof is entitled to the opening and closing argument. In instructions the court advised the jury that the appellees had been arrested without a warrant and imprisoned. The court instructed that the arrest of appellees was without warrant and the burden was upon appellants to establish by a preponderance of the evidence that appellants were entitled to make such arrest. Thus the court advised the jury that under the circumstances of the arrest the appellants had the burden of showing justification for such arrest. The court in the instructions placed upon appellees the burden of establishing their case by a preponderance of the evidence. Appellees were required to show that the arrest was false and in addition, their damages. The damages, of course, were unliquidated. The appellants seem to argue that they *Page 1139 assumed the burden of proof as to the issue and were entitled to open and close the argument. One of the issues raised by the pleadings was the damages, if any, appellees had suffered. Consequently, under the record, the appellees had a right to open and close the argument. Shaffer v. Des Moines Coal Hay Co.,122 Iowa 233, 98 N.W. 111. In the early case of Goodpaster v. Voris, 8 (Clarke) Iowa 334, 74 Am. Dec. 313, defendant claimed the right to open and close the argument. It was a suit on a note. Defendant admitted making the note but pleaded a setoff for a claim for damages. This court, in its opinion, held that the defendant was not entitled to open and close the argument as his answer was qualified in that it did not admit plaintiff's cause of action. In the present case by their answer appellants deny specifically appellees' allegation of claim of damages. Here, we have appellants admitting the false arrest and denying the damages. The appellees were still required to go forth and prove the issues not admitted. [3] This court has held on many occasions that a large degree of discretion is lodged in the trial court as to which side has the opening and closing argument. Woodward v. Laverty, 14 Iowa 381. In White v. Adams, 77 Iowa 295, 297, 42 N.W. 199, 200, this court said: "The question as to who had the burden of proof is properly a matter of practice, and the ruling of the court thereon will not be reviewed, unless there is evidence of an abuse of discretion." See, also, Oxtoby v. Henley, 112 Iowa 697, 84 N.W. 942. In the case of O'Conner v. Kleiman, 143 Iowa 435, 439, 121 N.W. 1088, 1089, this court said: "As a rule, large discretion must be permitted on such a question to the trial court, and we will not reverse on such ground, unless an abuse of discretion and prejudice appear." See, also, Kayser v. Occidental L. Ins. Co., 234 Iowa 310,12 N.W.2d 582; McLaughlin-Gormley-King Co. v. Hauser, 200 Iowa 210, 202 N.W. 574; Farmer v. Norton, 129 Iowa 88, *Page 1140 105 N.W. 371; Fenton v. Iowa State Trav. Men's Assn., 139 Iowa 166, 117 N.W. 251. In Schipfer v. Stone, 206 Iowa 328, 218 N.W. 568,219 N.W. 933, this court said it was erroneous to refuse to one having the burden of proof the right to open and close the argument, but such refusal was not necessarily reversible error. In the case of Shaffer v. Des Moines Coal Hay Co., supra, this court said at page 236 of 122 Iowa, page 112 of 98 N.W.: "If the burden as to one issue is on the plaintiff, he is entitled to the opening and closing, although such burden as to half dozen other issues may rest upon the defendant." In the present case, appellees alleged and were required to prove their damages. Appellants specifically denied such damages. The trial court in the exercise of its discretion awarded appellees the right to open and close the argument. The ruling of the trial court was right. [4] IV. The next claimed error of the appellants is that the court erred in instructing the jury that appellants must prove by a preponderance of the evidence that McVay drove through the stop sign without stopping. They claim that McVay admitted such claim. We have already held that the language of McVay on that matter was not such an admission as to make it conclusive; as we have heretofore said the evidence was in conflict and it was proper to give the instruction complained of and thereby permit the jury to pass thereon. [5] V. Appellants argue that the verdict of the jury is not sustained by sufficient evidence and also that it was grossly excessive and apparently the result of passion and prejudice on the part of the jury. Later, following a ruling of the court a remittitur of $500 was filed, thus leaving the judgment at $1,000 against each defendant. We think that there is ample evidence to sustain the verdict and further, that the amount to which it was reduced was not excessive. Neither does it indicate passion or prejudice. Under the record these two men were proceeding peacefully homeward. No offense had been committed, save the possible one that McVay had violated a stop sign ordinance. However, *Page 1141 the verdict of the jury in effect sustained his claim as to such offense. The evidence shows that these two men were arrested without warrant and without being apprised of the reason for such arrest; their inquiry as to the reason for such arrest elicited the statement, "you will soon find out." They were taken to the jail, were there booked and unceremoniously put in a cell. McVay was put in what was termed the "bull pen" along with about a dozen others, mostly drunks. His request to inform his family was ignored. The cell was filthy and unsanitary. There were plain cots for sleeping with no mattresses but with wide slats. Some of the drunks were sick and had vomited. No chance to rest or sleep. The toilet was dirty. He stayed there until 7:30 the next morning when he was taken out and questioned as to his acquaintance with the fellow, Johnny Carney. Said he was worried about his family, and the notoriety arising from being jailed. He lost his job and for a time was without employment. When Kerkman was at the police station attention was called to the fact that he was limping and he stated he had a sore leg. He had recently returned from Rochester following an operation. Someone present said, "Take him upstairs to one of the inner spring mattresses." Kerkman thinks it was appellant Cessna who gave that direction. He was put into a separate cell; the bed had steel slats; no mattresses, blankets, quilts or pillows. He testified that for breakfast he had a cup of black coffee and a roll — no butter. These were shoved in through dusty bars. Could not eat the noon lunch. "No officer, either before or after being put in the cell, talked to me as to why I was in. Refused to let me phone my folks. I wanted to phone the sheriff of Cass County, or to a lawyer but was not allowed to. Did not sleep either night or day — was nervous. Think such had ill effects on my leg." McVay finally used a burnt match to write a note to his lawyer and gave it to one who was being discharged. Soon after the lawyer came he was discharged. [6] Persons bringing action for false imprisonment may show the condition of the jail — the filth and unsanitary conditions. Fox v. McCurnin, 205 Iowa 752, 218 N.W. 499. *Page 1142 [7] Damages for mental pain and suffering under the rule followed in this state are treated as actual, not punitive. Young v. Gormley, 120 Iowa 372, 94 N.W. 922. As to the question of whether a verdict is excessive see Gadsden General Hospital v. Hamilton, 212 Ala. 531, 103 So. 553, 40 A.L.R. 294. In the Gadsden case the complainant had been unlawfully detained about twelve hours. Held, that a verdict of $1,500 was not excessive. In an annotation to such case (40 A.L.R. 294, 298) the headnote is as follows: "The amount of damages to be awarded in an action for false imprisonment is a question for the jury; and the general rule is that their verdict will not be disturbed on the ground of excessiveness unless it is so flagrantly large as to evince passion, partiality, or corruption." Citing cases from many jurisdictions, including the case of Young v. Gormley, supra. In the last-cited case a verdict for $1,500 for false imprisonment was held not excessive. 35 C.J.S., False Imprisonment, section 68. See, also, Noyes v. Des Moines Club,186 Iowa 378, 170 N.W. 461, 3 A.L.R. 605; Stewart v. Feeley,118 Iowa 524, 92 N.W. 670; Holmes v. Blyler, 80 Iowa 365, 45 N.W. 756. [8] Under the record the jury would have a right to conclude that the illegal arrest and the circumstances under which it was made, the jail surroundings, the humiliation, the mental pain and suffering, embarrassment, notoriety, and the permanent police record, were all proper items to consider in arriving at their verdict. We hold that it was amply supported by the record and was not excessive. We find no reversible error in the record and the judgment of the trial court is affirmed. — Affirmed. OLIVER, C.J., and BLISS, HALE, GARFIELD, SMITH, MULRONEY, and HAYS, JJ., concur. *Page 1143

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429635/

This is an action on a $1,500 policy of fire insurance which 1. INSURANCE: was issued by the defendant-company to the fire plaintiff W.M. Havirland on July 11, 1923. The insurance: policy covered the property described therein proof of until June 11, 1924. The property insured was a loss: two-story frame building located in the town of waiver. Fernald, Iowa. The fire loss, which was total, occurred October 5, 1923. It is alleged in the petition that, immediately after said fire, the plaintiff W.M. Havirland gave notice, in writing, to the defendant insurance company of the said loss. There is no allegation of furnishing the company with sworn proof of loss, but there is a plea of waiver. One of the provisions of the policy (Standard Form) reads: "If loss occur the insured shall as soon as practicable after he ascertains the facts of such loss, give notice in writing thereof to the company, * * * and shall, within sixty days from date of loss, furnish this company with notice thereof in writing accompanied by affidavit stating the facts as to how the loss occurred and the extent thereof, so far as such facts are within his knowledge." The record is barren of any evidence disclosing a compliance with the provision of the policy respecting sworn proof of loss to be filed with the defendant-company within the 60 days. There was, therefore, no issuable fact to be submitted to the jury in this particular, and in the absence of evidence to warrant a submission on the plea of waiver, the motion of the defendant for a directed verdict should have been sustained. Plaintiff did offer, and was permitted to introduce in 2. INSURANCE: evidence, over objection, Exhibit K, which was fire an affidavit prepared and signed by plaintiff's insurance: attorney and served on the defendant company. proof of Said affidavit bore date June 14, 1924, and loss: appears to be an attempt to comply with the evidence: provision of the policy requiring proof of loss. admissibi- It alleged, in substance, that the policy was lity. issued for a certain period of time, recited the *Page 337 number of the policy, described the property and use thereof, and stated that the cause of the fire was not known to him or his client, the plaintiff. Other matters are recited which are either pure hearsay or legal conclusion. The objections to this exhibit were sustainable; but, in the light of the entire record, although the admission of the exhibit was erroneous, it was error without prejudice. We now turn to the question of waiver. It is pleaded by the plaintiff that: "The defendant herein, by its own acts, has waived the requirements of the law which require that proof of loss be furnished, and are hereby estopped to set up such defense at this time." We therefore inquire whether or not the facts, as established by the plaintiff, constitute a sufficient warrant for a submission of this plea to the jury. The defendant, upon the conclusion of plaintiff's evidence, filed a motion for a directed verdict, on the primary ground that the evidence was insufficient to sustain a verdict, by reason of failure to file sworn proof of loss within the prescribed time and in conformity to the provisions of the policy; that the evidence failed to show any acts, statements, or declarations made by the insurance company which could be interpreted by any reasonable person as a waiver of the requirement that written notice, accompanied by affidavit, should be given within 60 days after such loss; and that there is no evidence that the plaintiff relied upon or changed her position by virtue of any statements made, as claimed by the plaintiff. This motion was renewed at the close of all the evidence, and the grounds were again embodied in defendant's motion for new trial. What is the evidence bearing on the plea of waiver? The facts may be summarized as follows: At the time of the fire, the insured, Mrs. Havirland, was in Hammond, Indiana, and shortly thereafter came to Fernald. She drove with her mother and husband to Cedar Rapids, and visited the home office of the defendant-company. She there met an office man, whom she did not know, and of whom she inquired for the president or the secretary of the company. At this time she handed to the unknown man the policy, which he took to someone in an inner room of the office. Upon his return, she was told that the adjuster *Page 338 of the company was not there, but was at the Allison Hotel. She then went to the hotel, and met a Mr. Kelly (deceased at the time of the trial). She testified that Mr. Kelly said "that the fire was in the state fire marshal's hands, and that he [Kelly] had nothing to do with it, and that there could be nothing done, and that there was nothing for us to do until he gave us a report; and we never heard from them. * * * Q. Did Mr. Kelly or the adjuster that you saw at the Allison Hotel give you any — state any reason why the matter was in the hands of the state fire marshal? A. No, sir. Q. In your conversation with Mr. Kelly or the adjuster at the Allison Hotel, did he state to you there had been any complaint filed that you or anyone else burned this property? A. Nothing, only that he said that it was in the hands of the fire marshal." On January 16, 1924, about three months after Mrs. Havirland's visit to the home office of the company, she wrote a letter to the company, in which she said: "It is my understanding that this property was totally destroyed by fire on or about October 6th, 1923. I called at your office in Cedar Rapids, Iowa about ten days afterwards and was unable to get any satisfactory information regarding same, and finally called on your Mr. Kelly at Hotel Allison regarding same and he did not seem to care to give any information regarding same, further than to state that same was in the hands of the state fire marshal and nothing further would be done until a report had been made by him." It may not be said that the intent and content of Mrs. Havirland's conversation with Mr. Kelly were misunderstood by her. Mr. Kelly was the adjuster, and her claimed conversation is not in dispute. The material facts, briefly reviewed, disclose that she went directly to the home office of the company with her policy, and asked to see the president or the secretary, and was referred to the adjuster. She was told in plain English that there was nothing further for her to do until she heard from the company. It is undisputed that she never did hear further from the company or any of its agents or officers. It is the general rule that mere silence cannot be construed as a waiver of the failure to furnish proof of loss; yet, if the insured is led to believe that proofs are not required of him until prepared by the insurer, there is a waiver. *Page 339 Washburn-Halligan Coffee Co. v. Merchants' Brick Mut. Fire Ins.Co., 110 Iowa 423 (80 Am. St. 311); 14 Ruling Case Law 1347, Section 519. Again, where an adjuster assures the insured that no papers need to be presented, as he has all the information he desires, or that, while proofs should have been sworn to, he will adjust the loss without requiring it, the failure of the insured to comply with the policy is waived. However, a statement by the insurer, on receiving notice of loss, that the claim will receive prompt attention, or a statement, in response to an inquiry, that the policy will show what proofs are required, does not constitute a waiver of the policy requirements. Kirkman v.Farmers' Ins. Co., 90 Iowa 457 (48 Am. St. 454). Proofs of loss required by a policy of insurance may be waived by a shuffling or evasive course of conduct on the part of the company, amounting neither to an actual denial nor a distinct recognition of liability, but sufficient to lead a reasonably prudent person to believe that proofs of loss are not required.Teasdale v. City of New York Ins. Co., 163 Iowa 596. In the case at bar, the conduct of the insurance company must be viewed as more or less evasive. It had notice of the loss by letter, and also from the insured in person. It surely knew the purpose of her visit to the home office, and the statements made to her by the adjuster were sufficient to lull her to sleep and make her believe that there were no further steps for her to take in the collection of her insurance under her policy, until the company advised her in the premises. The insurance company knew of its right to have proofs of loss, but it was also bound to know that it could waive this by such acts or conduct on its part as to justify the conclusion that it was not intending to insist upon full compliance with the terms of the policy or the statute. Nicholas v. Iowa Merch. Mut. Ins.Co., 125 Iowa 262. The case of Ervay v. Fire Association of Philadelphia, 119 Iowa 304, is distinguishable on the fact side. The insurance company in that case did nothing from which a waiver might be inferred, but it is held that, if the plaintiff has been misled into thinking that nothing further will be required of him, and has, on that account, failed to take further steps which he might have taken, then the company cannot take advantage of such *Page 340 failure induced by it, or its authorized agent acting for it in the matter, for the purpose of defeating its liability under the policy. It is argued by the instant appellant that what was said by Mr. Kelly, as claimed by plaintiff, should have put her on her guard, rather than to lull her into a feeling of security. We do not accept this viewpoint. True, the defendant-company had a right to wait for a sworn statement before attempting to settle for the amount of the loss, but it was not privileged to tell the insured, upon her explanation of her visit to the home office, that "there wasn't anything that could be done," or that "there was nothing for her to do" until the company made a report to her concerning the investigation then in progress. We reach the conclusion that the trial court did not err in submitting the question of waiver to the jury for decision. A further matter may receive brief mention. One of the defenses presented in the instant case was that the interest of the plaintiff in the property was other than unconditional and sole ownership, and as a part of its case the 3. INSURANCE: defendant offered in evidence the original fire petition, in which it is alleged that, at the insurance: time of the said loss, the plaintiffs W.M. ownership of Havirland and Roy S. Havirland were the owners property: of the said building, and that the property was inadvertent jointly owned by the said parties. The plaintiff plea: S.C. Sutherland was a mortgagee of the insured effect. property. In plaintiff's amended and substituted petition it is alleged that she (Mrs. W.M. Havirland) "was the owner of said building." The record disclosed that the plaintiff's original petition, known as Exhibit 1, was admitted in evidence, but that the trial court, during the argument to the jury, made an order withholding and excluding the exhibit from the jury room. Of this action the appellant complains, and in support of the proposition cites Arndv. Aylesworth, 145 Iowa 185. It is conclusively shown that the insured, W.M. Havirland, was the sole owner of the property. She was the legal title holder, by an unrecorded but duly acknowledged warranty deed, executed by Roy S. Havirland, single, bearing date May 29, 1922, which was about a year before the policy in question was executed and delivered. The property was, at that time, subject to a first mortgage of $1,000 and a second mortgage of *Page 341 $500. There could be no question as to the legal title in the insured at the time the policy issued, and at that time there was only a $500 mortgage against the property. The agent of the insurance company had knowledge of the title transactions involved herein. Apparently the attorney who drew the original petition was under the impression that the plaintiff Roy S. Havirland, named therein, was a joint owner of the premises with Mrs. W.M. Havirland. This was the pleading of a fact which was not true, and which was corrected in the amended and substituted petition filed by the real party in interest. We discover no reversible error in the record, and the judgment entered on the verdict is — Affirmed. EVANS, JJ., and ALBERT, MORLING, and KINDIG, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429636/

Appellant is the administrator of the estate of the decedent, Emma Josephine Brown, who died June 19, 1930. For many years prior to her death, the decedent had resided in the house adjoining that of appellee, Lila Walshire, and during much of this time decedent engaged appellee to assist her in the doing of her housework. In performing this work, appellee would go back and forth from her own home, which she cared for at the same time. Appellee was paid different sums of money for this service, but always such amount as the decedent determined, and without contract or specific agreement. On February 22, 1930, while the appellee was engaged in looking after the house work of the decedent and caring for the stove in the decedent's home, the decedent had in her possession a certain box which she kept in her home and in which she kept her papers. The decedent was in the act of examining her papers in this box when a conversation ensued between the decedent and the appellee. There was no one else present. Both appellee and appellant claim the ownership of the property in question, based upon the testimony of the appellee as to what occurred that day in the house of the decedent. We will give only portions of the testimony as illustrating the claims of either side. The following is from the direct examination of the appellee, Lila Walshire: "I have a note made by Mr. Peck in my possession. The *Page 1297 first day I ever saw this note, which is dated March 1, 1918, and signed by Chester D. Peck and payable to the Helmer Gortner State Bank, was February 22, 1930, the day she gave it to me. She took it out of a little wooden box in which she kept her papers and which she was going through to get some papers or to look up some interest. I was fixing the coal fire and she had that note, (the one in question) in her hand; she had always wanted to give me something and so then she says — well, she mentioned it right there — she says, `I want to give you something.' So I says, `Emma, what do you want to give me and how much do you want to give me,' and she says, `$2,000.00.' So she says, `I want to give you this,' and she set in her rocking chair holding it (the note in question) and says, `I want to give you this.' I had never seen this note before this day, the 22nd of February." The decedent then endorsed on the back of the note the following: "Emma J. Brown to Lila Walshire, February 22, 1930." The note was then delivered to Lila Walshire, by the deceased, and it has been in her possession, custody and control under claim of complete ownership by her, ever since, except for a few days. After the death of Emma J. Brown, the appellee took the note to one Harry Gibeaut, a banker in the town where these parties lived. Appellee testified: "Mr. Gibeaut came to my home the day Emma was buried and I handed him the note asking him to let Emma Brown's heirs know about the note. He brought it back to me more than a month ago, after he had explained matters to them, and I have held the possession of it since that time." It also appears from the record that at the time "Emma," as the decedent is called in the record, was in the act of giving the note to appellee, appellee said: "I told Emma it wasn't legal, that it could not become my property unless she would sign it, that she would have to sign it." *Page 1298 Whereupon, the decedent made the endorsement as hereinbefore set forth. Throughout the entire examination of the appellee, she stoutly maintained the note to be her property, that she always considered it her property from the date when the note was given her by the decedent. On the other hand, the appellant contends that there was not a gift by the decedent to the appellee. It appears from the record that at the time the note was passed to the appellee, the appellee said, among other things, in fact or in substance: "Well, I says to her, if there comes a time when you need the use of this, use it." In explanation of this statement, the witness later said, "It would be like me giving her what she needed at the time. I felt as though it was my property. Of course, it was my property." Another time the witness said, "Anyone so near and dear to me I would take them in my home if it came down to where she didn't have anything." The foregoing statements are illustrative of others of the same general character. Without further quotations from the record, we think it certainly appears that what was said by the appellee was a mere expression of thankfulness on her part and a declaration to the effect that if at any time the decedent should really come to want, the appellee would gladly help her out. At all events, the lower court would be warranted in reaching that conclusion, as would the lower court be warranted in concluding there was a completed gift. The statute under which this proceeding was had is as follows: "11925. Discovery of assets. The court or judge may require any person suspected of having taken wrongful possession of any of the effects of the deceased, or of having had such effects under his control, to appear and submit to an examination under oath touching such matters, and if on such examination it appears that he has the wrongful possession of any such property, the court or judge may order the delivery thereof to the executor or administrator." *Page 1299 This statute was before this court for interpretation in Barto v. Harrison, 138 Iowa 413. The court said, in commenting upon said Section 11925 (then Section 3315), as follows: "The proceeding authorized is inquisitorial in its nature, and designed especially as an economical and efficient mode of discovering property of the estate. The parties are not to be heard as on a trial. The person cited to appear only may be examined. The court or judge is not to try any issue of fact as to whether such person cited to appear is in the wrongful possession of property of the estate, but only to determine whether there is such an issue, and, if there is not and the title is conceded to be in the estate, the order should be entered. Rickman v. Stanton, 32 Iowa 134; Smyth v. Smyth, 24 Iowa 491. But if it develops in the examination that the title to the property is in dispute, or that there is some controversy as to whether the estate is entitled thereto, then the administrator or executor must be relegated to procedure usually resorted to in order to adjudicate such issues. Otherwise, the person cited would be deprived of due process of law in being compelled to submit his claim to a judge without trial or the intervention of a jury." Appellant lays stress upon In re Estate of Elliott, 159 Iowa 107. An examination of the case discloses that it is not at all analogous to the case at bar. In the Elliott case, there was not even an attempt at physical or symbolic delivery of the property in controversy. In the case at bar, there was at least a physical delivery of the note, coupled with an actual endorsement on the note by the decedent to the appellee. There has been continued physical possession of the property in the intervening time, coupled with a positive claim of complete ownership by the appellee. Appellant's claim is based largely upon the cross-examination of the appellee. As was said in Barto v. Harrison, 138 Iowa 413: "* * * the title to the property is in dispute, or that there is some controversy as to whether the estate is entitled thereto, then the administrator or executor must be relegated to procedure usually resorted to in order to adjudicate such issues." It would have been error for the court in this inquisitorial proceeding to have determined the much controverted question of ownership to the note. *Page 1300 What is herein said concerning the facts is without prejudice to any hearing which may be had in a proper procedure to determine the ownership of the note in question. The cause must be, and is, Affirmed. FAVILLE, C.J., and STEVENS, ALBERT and WAGNER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429637/

The Northern Trust Savings Bank, as plaintiff, seeks to foreclose a certain chattel mortgage executed by the Endlock Manufacturing Company, a corporation, together *Page 1214 1. BILLS AND with other security given as collateral to a NOTES: promissory note which evidenced a loan of $5,000 considera- by the bank to said corporation, and demands tion: judgment against the corporation, as maker, and indorsement against certain individuals who signed said note subsequent as indorsers. The plaintiff was in part to full successful, in that the lien sued on was execution. established, and personal judgment was entered against the Endlock Manufacturing Company on the note, and also against certain indorsers who had signed their names thereto at the time of its execution. The complaint of the appellant-bank is that the court erred in refusing to decree liability as to certain other indorsers on said note, who signed subsequently to its execution and delivery to the bank. The quest on this appeal is to discover a consideration sufficient to sustain the subsequent indorsements made by the defendants, Ivan Ellwood, Lloyd D. Ross, and Edwin E. Lucas (now deceased). The trial court was clearly correct in holding that the indorsements made by these defendants some six weeks subsequent to the consummation of the loan by the bank were not binding upon said indorsers unless a new or additional consideration is shown. This is well settled law. It is elementary. Briggs v. Downing Matthews, 48 Iowa 550; Farmers Sav. Bank v. Hansmann, 114 Iowa 49. It is admitted that the defendants signed the note as indorsers, subsequently to its execution and delivery. They pleaded in answer the absence of consideration, and that they signed merely as directors of the corporation, 2. CORPORA- and did not intend or contemplate that their TIONS: signatures would impose a personal obligation. directors: We are concerned solely with the question of personal consideration. The defensive plea that they liability on indorsed simply as directors is not meritorious, promissory and is legally meaningless. Kessel v. Murray, obligations. 197 Iowa 17. The record facts disclose that the Endlock Manufacturing Company was an Iowa corporation engaged in the city of Des Moines in the manufacture of silos. It was in need of money to prosecute its business, and, after some negotiations, secured a loan of $5,000 from the plaintiff-bank, evidenced by a promissory *Page 1215 note dated March 24, 1921, due in 90 days. This note was signed by the Endlock Manufacturing Company by its president, Edward Stewart. At the time of its execution and delivery, the following indorsements on the back of said note were made: Edward Stewart, J.W. McLaughlin, F.A. Shepard. These indorsers were directors of the corporation. It further appears that, to secure the payment of said note, the corporation executed and delivered a chattel mortgage, covering 115,000 feet of lumber which was being used by the company in making silos, and, under the terms of the mortgage, the company was permitted the continued use of this lumber, upon the agreement that all bills of lading and all proceeds from silos should be delivered to the bank. There was a compliance by the company in this particular. It may be well to observe that, as between the bank and the company, nothing remained to be done in the loan transaction. The contract was fully expressed, and $5,000 in cash passed to the checking account of the corporation. It becomes pertinent to inquire, therefore, what circumstances gave rise to the subsequent indorsements of the defendants herein. Some difficulty and personal dissension had arisen among the original directors, but this matter did not concern the plaintiff-bank. It did result, however, in two things: (1) A stop-payment order on further checks drawn by the secretary of the corporation on the bank, and (2) a denial of the further use of the silo lumber for manufacturing purposes. These prohibitions find their origin in the objections interposed by the original indorsers of the note in suit. The bank itself never refused to honor any checks drawn on this account, nor did the bank "tie up the lumber." One of the officers of the bank testified: "We had never given them permission to take the lumber and make the silos, because we never had to. They had the right to make the lumber into silos." The gist of the situation is that McLaughlin and Shepard, directors and original indorsers, felt that their interests were being jeopardized, and they desired to preserve the maximum of security in the lumber and to hold the bank account intact until new arrangements were made. To consummate this plan, a new *Page 1216 directorate was called into being, and at this time the three defendants in this action were elected. It was then suggested that the new directors should indorse the note previously given. McLaughlin himself testified: "As the new board came in, it was thought best that all of the new board should share equally in the responsibility of the note." Apparently to meet the situation and have the lumber used at the factory and the money in the bank subject to check, these men did sign, upon the solicitation and suggestion of the old directors. Operations began at once. Subsequently to the indorsements by these men, the lumber lien was released by the bank, and a chattel mortgage executed, covering the machinery owned by the corporation. Just when this was done is not definitely shown, but apparently some two or three weeks after the indorsements by these defendants. Nor does the record contain a satisfactory explanation why the lien was changed. It is plain that the bank had no right to demand other or different security, and the evidence fails to establish that the substitution of the lien constituted a part of the indorsement transaction. Upon a careful consideration of the record, we fail to discover any legal consideration for the indorsements in question. The payee-bank did not extend the term of the loan, and the due date, in fact, had not arrived. The amount of the loan was not increased, nor were the terms of the original note modified in any manner. There was no provision requiring or contemplating further indorsements or the furnishing of additional collateral upon the demand of the holder of the note. The original note contained no clause relative to security, and at the time it was signed by these defendants, $3,300 of the loan had been checked out by the corporation. As a matter of law, the bank itself could not withhold any part of the original loan placed to the credit of this corporation, nor did it attempt to do so. Clearly, the bank did not suffer any detriment or make any forbearance in the matter. The bank had extended a loan of $5,000 in cash to the account of the corporation. When this was done, the respective rights and obligations were brought *Page 1217 into being. It is a mere incident that the full amount of the loan had not been checked out at the time of the subsequent indorsements. Nor may it be said that there was any benefit flowing to the promisors, the subsequent indorsers. The new obligors received nothing for their contract of indorsement. The transaction did not constitute a novation. The original debt remained the same, and there was no substitution of a new debtor. No one was released from the original obligation, and unless a new consideration is shown, the payee-bank occupied the same position after the indorsements as it did prior thereto. No consideration is shown, and the judgment entered by the trial court is — Affirmed. FAVILLE, C.J., and STEVENS and VERMILION, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429638/

This is an action at law to recover damages to plaintiffs' land resulting from vacation of a public road, the claim for such damage being based on ownership of an easement over a tract of land between the plaintiffs' land and the vacated road. The County filed answer denying each and every allegation of plaintiffs' petition and specifically denied that the plaintiffs had an easement or right of way from the vacated road to the plaintiffs' land. Also by way of defense the defendant plead that if the plaintiffs had an easement or right of way as alleged, the same has now been abandoned and has ceased to exist. At the close of the evidence the defendant's motion for a directed verdict was sustained and the plaintiffs have appealed. In order that a clearer understanding of the facts may be had, we insert appellants' Exhibit A. On August 2, 1939, the board of supervisors of Washington County passed a resolution formally vacating all that part of road Number 17 in Highland township, which is identified on Exhibit A by dotted lines. Appellants are the owners of real estate designated as Tract A consisting of 40 acres upon which they lived; Tract B consisting of 20 acres; Tract C consisting of 20 acres; Tract D consisting of 100 acres and Tract E consisting of 30 acres. The land is used for farming purposes and is operated as one unit. *Page 1251 [EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.] In order to get from Tract A on which appellants live to Tracts C and D, they used the public road from Tract A down to point X on the vacated road and then the private roadway indicated by the line between points X and Y, from the vacated road to the east line of Tract D. The only buildings located on Tracts C and D consisted of a log house and an old corncrib. Davis Creek, which starts 10 or 12 miles to the west and passes in an easterly direction through Tract C and empties into Iowa river to the east, is about 50 to 60 feet wide from bank to bank and 6 to 10 feet deep where it passes through Tract C and about the same size for several miles both east and west of said tract. There is a cliff along this creek which is from 60 to 100 feet high through Tract C and about the same height for some distance both east and west of the same. Haw Run, which starts several miles southwest of Tract D and passes through said tract and joins Davis Creek a short distance below the Davis Creek bridge on the vacated road, is about 6 to 10 feet in width and 3 to 8 feet deep where it passes through Tract D and about the same width and depth east to where it joins Davis Creek and about the same for approximately 3 miles west of Tract D. The cliff along Haw Run is about 40 to 60 feet high east of Tract D and about the same height for about 3 miles west of Tract D. Both of these cliffs are very steep and *Page 1252 both of the streams are running streams that overflow in high water. It is impossible to cross either of the streams with farm machinery excepting where they are bridged, and it is impossible to get the necessary farm machinery up and down the cliffs along either stream excepting where there are public roads. Consequently, it is physically impossible to get to Tracts C and D with farm machinery unless the approach is made between the two streams and either from the east or the west. It would be possible to reach the west side of Tract D from the west by going over one-half mile of privately owned property from the public road running north and south between Sections 2 and 3, Township 76 north, Range 6 west of the 4th P.M. For the plaintiffs this would mean a distance of about 4 1/2 miles from where they live on Tract A, whereas, the distance they used up until the time of the vacation of the road in going from Tract A to the east side of Tract D and using the private roadway XY was about 1 1/2 miles. The other physical possibility of reaching said tracts is to approach between said two streams from the east and passing over privately owned property from the vacated road to the east side of Tract D at or near the private roadway marked XY on Exhibit A. The part of the road that was vacated took away the public roadway up and down the cliffs along Davis Creek and Haw Run and the bridges across said two streams on the road lying to the east of Tract D. [1] And so we find by the vacation of the road, the appellants have no way of traveling from the place they live to the land they owned and have farmed known as Tracts C and D in this record, except by crossing of privately owned property over which they have no right of way. That they have been damaged can hardly be questioned. Appellee argues that under the law of Iowa no recovery can be had for the vacation of a country highway unless the property for which damage is claimed abuts said highway. In Nalon v. City of Sioux City, 216 Iowa 1041, 1044, 250 N.W. 166, 167, this court said: "* * * there is ample authority in support of the rule that, *Page 1253 even where the provision is only for compensation for the taking of property, there may be a taking of property by preventing or substantially interfering with the owner's access to his property from a public street." In the recent case of Dawson v. McKinnon, 226 Iowa 756, 770, 285 N.W. 258, 265, there is a very able discussion of this question by Justice Bliss. We quote: "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 she had to and from her land, causing her damage which she is entitled to have established in the manner required by law." Appellee argues that the cases cited are exceptions to the general rule and apply only in the case of the vacation of a street in a city or town, and do not apply to highways in the country. While it is true that most of the cases apply to city streets there is no reason why the same rule should not apply to country highways. It may be true that at one time this court made a distinction in the application of the rules as between country roads and city streets but it recognized that it was in error. In McCann v. Clarke County, 149 Iowa 13, 16, 127 N.W. 1011, 1012, 36 L.R.A., N.S., 1115, 1119, this court said: "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. The distinction attempted in the Brady case cannot be sound, and it should not be longer approved or followed. In Long v. Wilson, supra, which involved the vacation of a street, we did not think it necessary to overrule the Brady case, and hence distinguished it along the line pointed out in the former, and because the land reverted in highway vacations. But, now that the question relates solely to the vacation of a country highway, we are convinced that no *Page 1254 sound distinction can be made between the two conditions, and that the Brady case and those following it, which are based entirely on its reasoning, should be overruled." Since the decision in the McCann case, the Iowa court has consistently joined with courts in other jurisdictions in applying the general rule to cases involving country roads the same as is applied in cases involving city streets. See Furgason v. Woodbury County, 212 Iowa 814, 237 N.W. 214. [2] So if this record shows that there is competent evidence upon which a jury could find that the appellants had an easement over the land designated on Exhibit A as the line from "X to Y", then they are entitled to recover the amount they have been damaged, there being no question but that they have been damaged. Appellee cites the case of Harris v. Brown, 184 Iowa 1288, 1294, 169 N.W. 664, 666, in which this court said: "The possession, to be adverse, must not only be actual, continuous, visible, notorious, and distinct, but hostile, and under claim of right or color of title. The burden of showing adverse possession rests upon the person who asserts title upon that ground. The presumptions are all in favor of the holder of the legal title." Appellee first contends that the possession of the easement was not actual because the same was not fenced and because the owner of the dominant estate did not pay taxes on the same. The cases are uniform in holding that fencing of the right of way and payment of taxes thereon are not essential. Appellee further contends that the possession was not actual because it was not always in the very same actual location, that is, when the track got rutty or when the users came to stumps, they turned out and made another track and that after a sawdust pile accumulated on one end of the private road in 1938, appellants, on occasions, used another route to get to their land. But the evidence is in conflict on the actual location of the roadway. For better than 30 years, the driveway designated as X to Y on Exhibit A was used by the owners and those farming, Tracts C and D. Certainly, it is not contemplated that each time a wagon *Page 1255 or piece of farm machinery was driven over the private roadway that it should in each case take exactly the same track as was made by other vehicles and machinery which had been previously driven through, and the fact that they varied a few feet or the width of a wagon would certainly not prevent the possession from being actual. There is evidence that there was a gate at point X and a gate at point Y and a well-beaten, clearly visible roadway between the two gates used by all of the owners of Tract D and persons who had occasion to go to Tract D during all the time from 1906 down to the time of the vacation of the road. It is next contended that the possession is not visible and the possession was not continuous. With this we cannot agree. There was evidence that the roadway was visible all of these years, and that it was used continuously. [3] Appellee argues that the possession was not notorious, not hostile and there was no evidence of a claim of right or notice of same to the owners of the servient estate. It is, of course, true that mere use in itself is not sufficient to establish the easement. The use must be under color of title or claim of right. In this case ample evidence of claim of right is shown. The record shows that about 22 or 23 years ago Joe Wieland, who was contemplating the purchase of the north 80 acres of Tract D from one Tom Prehoda, went to Sydney Coon to inquire about the right of way across Coon's land and Mr. Coon told him that the right of way across his land went with the Prehoda land and that all he, Wieland, would have to do was to keep up the gates at points X and Y. Relying on this statement, Wieland bought the Prehoda land and kept up the gates at points X and Y and used the right of way to gain access to Tract D so long as he continued to own the same. Lewis Coon and Ira Coon, sons of Sydney Coon, took the land between the vacated road and Tract D by inheritance from their father at the time of his death in 1922. Henry Prymek used this private road to gain access to Tracts C and D after he purchased them and had a conversation with Lewis Coon concerning the private road. He told Lewis Coon he wanted *Page 1256 them to fence the private road to keep his cattle from mixing with other cattle when he drove his through. Lewis Coon told him that he, Prymek, had a right to use this road and that the prior owners of Tract D had always had a right to use it but that he would rather that said roadway be not fenced. Henry Prymek kept up the gates at points X and Y and, on one occasion, someone set fire to the tree which supported the gate at point X and burned said gate and Prymek put in a new gate. He also put in a new gate at point Y. Henry Prymek also did road work on the private road many times whenever it needed it. There was no question but what the owners of Tracts C and D had the right to use the private driveway between X and Y until 1938, when Carson Sweeting bought the servient estate. This was 32 years after the original grant and after the use of the roadway had started. The rights of the parties had been fixed, the existence of the gates at Points X and Y, and the roadway clearly visible from Tract D running between the gates constituted notice to Carson Sweeting, at least there was sufficient evidence on which the jury could have so found. [4] But appellee claims that if there was an easement, it had been abandoned. Sweeting testified that after he bought the land, Henry Prymek offered to buy a right of way and to pay $25 for same. Prymek denied that he ever made any such offer. As to the abandonment there is a conflict in the evidence, and it was for the jury to decide. We are convinced that there is sufficient evidence as to the question of whether there was an easement across the land, between the points X and Y to submit the question to the jury, and the lower court erred in sustaining the motion to direct. It necessarily follows that this case must and it is reversed. — Reversed. CHIEF JUSTICE and all JUSTICES concur. *Page 1257

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429639/

This is an action at law to recover upon an account for ground feed sold to the defendants. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal. *Page 618 It appears from the evidence that at the time the account accrued A. A. Paine . Co., a partnership, were the keepers of a feed store, and that the individual members of the partnership were A. A. Paine and J. M. Janney, plaintiff in this action. W. W. Springer and C. F. Willard were at the same time engaged in the business of importing and selling highbred horses from France under the partnership style of Springer Willard. A. A. Paine Co. furnished the ground feed the value of which is in controversy in this action, which feed was consumed by the said horses. Some time after the account accrued the firm of A. A. Paine Co. was dissolved, and at the dissolution of the firm the ground feed account was assigned to Janney in the settlement of the partnership. He brought this action against the firm of Springer Willard, and against Springer as an individual member of the firm. The defendants claimed that Willard bought the feed of A. A. Paine, and paid him therefore. The real facts relied upon as a defense were that A. A. Paine was indebted to Willard upon a promissory note, and that Willard bought the feed of Paine under the agreement that the price of the same was to be applied on the note and in payment thereof. After both parties had introduced their evidence the plaintiff filed a motion for an order directing the jury to return a verdict for the plaintiff. The motion was sustained upon the ground that an agreement between Willard and Paine that Willard should purchase the feed and pay for the same by the discharge of Paine's individual indebtedness, was void as to Janney, the other member of Paine Co., unless Janney in some way assented to or ratified the transaction. We do not understand that this proposition is controverted by counsel for appellants. But it is contended in behalf of appellants that the question as to whether there was such a partnership as *Page 619 A. A. Paine Co, should have been submitted to the jury. We do not think this position can be sustained. The existence of the firm was shown by the testimony of these witnesses, and there was no evidence to the contrary. It is said there was no firm sign erected at the place of business of the partnership, and that defendants had no knowledge of the existence of the firm. This want of knowledge and omission to use a sign was in no sense conflicting evidence upon the question of a partnership in fact. It having been established beyond question that the feed was partnership property, it was incumbent on the defendants to show that Janney in some way assented to the alleged agreement to pay the. individual debt of Paine in partnership property, or that he (Janney) in some way ratified the act after it was done. Thomas v. Stetson, 62 Iowa, 537. There was no evidence of such assent or ratification. The only other question necessary to be noticed in the case is the claim of counsel for appellants that, as they had no knowledge that Janney was in partnership with Paine, they had the right to deal with Paine as though he were the sole owner of the feed. It may be this position would be sound if there were any evidence that Janney was a dormant or silent partner. Buxt there is no such evidence. The partnership existed for some three years. Janney was personally and publicly engaged in the business, and his daughter was bookkeeper of the partnership. There was no evidence of any act of concealment of the partnership. It is true that for part of the time there was no partnership sign upon the building. But there was no sign of any kind, and therefore no effort to mislead any one as to the true relation of the parties. We think that under the facts of the case the question of knowledge as to the partnership is immaterial. In our opinion the court rightfully directed a verdict for the plaintiff. AFFIRMED. *Page 519

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429640/

I. The subjects of this litigation are the boundary lines between the appellants' lots and Morton Street on the west, and between those lots and plaintiff's unplatted property on the east. The lots are in Central Park Second 1. BOUNDARIES: Addition to Cedar Rapids. This addition consists recorded of two parallel tiers of lots, extending north plat: and south, and separated by Morton Street. The conclusive- lots are platted as 120 feet in length east and ness. west. Appellant Snyder owns Lots 1 to 8, being the north 8 lots of the 24 in the east tier. Marte owns Lots 22 and 23, near the south end of the tier. The undisputed evidence is that the east fence of Snyder's lots, as Snyder claims the lots to be, is practically on the line as the addition was actually platted, many years ago. Plaintiff claims that the line between his land and this addition was marked for many years by a fence, the location of which should be established as the boundary by acquiescence. We find no satisfactory evidence of the period of existence, or of an actual and definite location of such a fence, as marking the east line of the lots now owned by Snyder, for the statutory period. There is evidence that plaintiff and his predecessors in title considered the fence as on their west line, and as marking the boundary. There is no sufficient evidence that the owners of the lots had notice of the claim of the owners of plaintiff's property that the fence marked the boundary, and that they consented or acquiesced in its location as such, for the required period. No case of acquiescence has been made. Davis v. Angerman, 195 Iowa 180. II. Morton Street has been used and worked to an uncertain extent for a number of years. Buildings of some sort have been erected along both sides of it, without much reference to the platted location of the lines. The city engineer attempted to locate the street from the improvements. He says that, if the improvements to the westward of the street were too far eastward, so as to interfere with the westerly line of the street, he *Page 264 endeavored to run the street lines so as not to interfere with the property on the west any more than on the east. In laying out the street, he used none of the "points" set forth in the recorded plat. In this operation he ran the east line of Morton Street so that it would cut about 7 feet off the west end of Snyder's lots, as Snyder had them fenced, thereby also cutting off a part of his house. Snyder says that his buildings were erected in the spring of 1914, which was less (though his west line fence, erected 2 years earlier, was there more) than 10 years before the action was commenced. He says he put his west fence on the line that the "city gave him" as the property line, and that no objections were ever made on the part of the city. He claims, therefore, that his street line has been established by acquiescence on the part of the city, and also by estoppel. His evidence, however, is altogether insufficient to establish either. Dwight v. City of Des Moines, 174 Iowa 178; Johnson v.City of Shenandoah, 153 Iowa 493; Herrick v. Moore, 185 Iowa 828;Langle v. Brauch, 193 Iowa 140. III. The city engineer replatted the two blocks of the addition and Morton Street in accordance with his location of the street lines previously noted. By his attempted replat, he gives to the appellants their depth of 120 feet, as the court seems to have thought; though, on the evidence of the actual location on the ground, this is not clear. Anyhow, the engineer's plat does not conform to the recorded plat. The judge of the trial court made a personal inspection of the addition, and adopted the city engineer's plat, possibly on the assumption that it was the best solution of the problem, in the interest of all concerned. Snyder and Marte, however, refused to concur in the court's adjustment. T.R. Warriner, civil engineer, surveyed and located the lines in accordance with the recorded plat. The blue print of his survey is in evidence, and its correctness is undisputed. The lines in controversy between the properties of the plaintiff and the appellants and between the appellants' property and the street should not be established at variance with the Warriner survey. On the appellants' cross-petition, the line between the properties of the plaintiff and the appellants should be established in accordance with the Warriner survey. Not all of the parties interested and necessary to an establishment of the street line are before the court, and the cross-petitions between the appellants *Page 265 and the city of Cedar Rapids should be dismissed without prejudice. IV. Plaintiff has moved to dismiss the appeal because, as the action was brought, other owners of lots in the 2. APPEAL AND east tier were made parties defendant, and have ERROR: not appealed, and no notice of appeal has been notice of served upon them. We are of the opinion, appeal: however, that the record fails to show that non- these other lot owners will be adversely interested affected by a reversal. The motion is overruled. coparties. Sullivan v. Sullivan, 139 Iowa 679. The decree is — Reversed. De GRAFF, C.J., and EVANS and ALBERT, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429641/

The only contention of the petitioner is that it must be shown that he was either served with the order of injunction or a copy, or had knowledge or notice of the granting of the injunction. On October 3, 1924, the defendant was served with an original notice, stating that there was then on file a petition asking, among other things, that defendant be enjoined from continuing the nuisance specified, by selling, dispensing, or keeping for sale any intoxicating liquor, in violation of law, on the premises *Page 1340 named, "or at any other place in the state of Iowa." The petition on file alleged that defendant was conducting the nuisance referred to in the original notice, by selling, etc., intoxicating liquor in violation of law, and prayed for an injunction from directly or indirectly selling intoxicating liquors in violation of law, or keeping for sale or with intent to sell or dispense intoxicating liquor, in violation of law, on said premises or at any other place in the state of Iowa. Defendant did not appear. Decree was duly rendered, enjoining him from directly or indirectly selling or keeping for sale, with intent to sell or dispense, intoxicating liquor on the described premises, "or at any place in the state of Iowa in violation of law." On the trial of information for contempt in violating the injunction, petitioner testified, on direct examination: "Q. Did you ever have any actual notice or knowledge that there was an injunction against you in this case? A. Not that I know of." On cross-examination, he testified: "Q. When you were down at 106 Fifth Street, were you served with notice of an action or of an injunction? A. No, sir; I closed up that place when they went down there and objected — Q. Now, Mr. Labozetta, wasn't it a fact that Judge Thompson locked that place up? A. I don't know anything about who locked it up, for I moved away. What they do with the place — * * * Do you know Joe Mallett [the deputy who served the original notice]? A. Sure, I know Joe Mallett. Q. Did Joe Mallett, the sheriff, come — A. Deputy sheriff? Q. — in December or November, 1924? A. What day? Q. Well, any day? A. Not that I know of. Q. Any time around December, 1924? A. No. Q. And didn't he demand of you that you pay certain costs and fees into the court? A. No, sir. Q. And you say you were not served with a notice of this action in the first place? A. I don't understand about that, Mr. Mantz. * * * Did Joe Mallett serve a notice on you, — Joe Mallett, the deputy sheriff, — about the 8th day of October, 1924, on the original notice? A. I don't remember if he did or not." The original notice was shown to him, and he was asked whether he received a copy, and said that he did not remember — couldn't say. *Page 1341 Section 2405, Supplemental Supplement, 1915, provides: "When an injunction has been granted, it shall be binding on the defendant throughout the state, and any violation of the provisions of this chapter by manufacturing, selling or keeping for sale of intoxicating liquors anywhere within the state shall be punished as a contempt, as provided in this chapter." Section 2407, Supplemental Supplement, declares a penalty for each subsequent violation. Section 2020 of the Code of 1924 is substantially the same as the above quoted provision. The injunction decree conclusively established that the defendant had been engaged in the unlawful sale of intoxicating liquors. This decree was entered on due notice, and defendant cannot dispute its binding effect. The defendant is concluded from denying that he had been illegally selling intoxicating liquors and had been enjoined from selling such liquor in the future, and he was charged with knowledge of the law that such an injunction was binding upon him throughout the state, and that any future violation of the law by selling intoxicating liquors anywhere within the state would be punished as a contempt. He was a party defendant, and had had his day in court, and was not a stranger to the proceedings. He knew, when he was engaged in the selling of liquor for which he was adjudged to be in contempt, that he was doing an illegal act and exposing himself to the penalties prescribed by law therefor. Such cases as Harris v.Hutchinson, 160 Iowa 149, in which the injunction was against the occupant and the proceedings for contempt were against the barkeeper, who was not a party to the injunction proceedings, are not in point. State v. McCoy, 122 Wash. 94 (209 P. 1112). InBunting v. Powers, 144 Iowa 65, a conviction for contempt was sustained, against the objection that no writ of injunction was served. The court said: "It does appear, however, that the injunction was entered in the form of a decree after an appearance by the complainant as a defendant in the suit. In such case no formal service of a writ was necessary." In Eaton v. De Graff, 184 Iowa 769, the court ordered service of the injunction, but service was not made. The petitioner in that case testified that he was not in court at the time of the trial; that he did not remember being enjoined or that an *Page 1342 injunction suit had been brought against him or notice served. He did finally admit that he was served with an original notice, and that he had a lawyer take care of all his business. His attorney appeared. It was held that he was affected with notice of the entry of injunction though he was not personally advised and had no actual notice that the order had been entered. It was held that the decree for injunction was self-enforcing. The principle of these case is that the defendant was within the jurisdiction of the court, and, as a party, bound by its decree. Corbett v.Bryan, 83 Okla. 39 (200 P. 450); Ayres v. Campbell, 9 Iowa 213. It is not disputed that the petitioner was selling or keeping for sale intoxicating liquors in violation of law, as charged in the contempt proceedings. He was not being prosecuted in the contempt proceedings for the innocent commission of a lawful act. He will not be heard to deny that he knew the law and knew that he was violating it, both on the occasion of the sale for which he was originally convicted and that for which he was convicted of contempt. He was brought into court on proper notice, and the law does not permit him to deny the validity of the decree that was rendered against him on such notice. Charged, as he was, with knowledge of the decree that was entered against him, he will not be heard to deny that he knew that the court was commanded by the law to enjoin him from selling intoxicating liquors in its violation at any place within the state, or to deny that he knew that the court had obeyed the law's command. The statute provides for adequate notice to the defendant of injunction proceedings for violation of the liquor laws, and secures to him ample opportunity to be heard and to protect himself if he is innocent. By defaulting, he voluntarily leaves the case with the court for determination on the evidence that shall be produced against him; and we perceive no reason why he should not be bound by and charged with notice of a resulting decree that does not transcend the notice or the petition or the law. The defendant was charged by law with notice of the entry of the decree and of its consequences and of the right to the issuance of process provided by law for its enforcement. Ayres v. Campbell, 9 Iowa 213;Phillips v. Germon, 43 Iowa 101; Endicott Johnson Corp. v. *Page 1343 Encyclopedia Press, 266 U.S. 285, and cases cited. For us to require notice additional to that required by the statute, and particularly to require the service of notice of decree upon those who by proper proceeding have been duly enjoined, would be by judicial legislation to place heavier burdens on officers charged with the enforcement of the prohibitory law, would unjustly hamper them in the performance of their duties, and would result, in a large class of cases, in granting total or partial immunity to persistent violators. The writ is discharged and the judgment affirmed. — Affirmed. FAVILLE, C.J., and EVANS and ALBERT, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429643/

I. The building which it is charged defendant broke and entered, was a store building, located in the country, near the village of Homer, in Hamilton County. In said building was kept for sale merchandise, consisting of a general line of groceries, including canned goods, potatoes, and eggs; also, clothing, shoes, and rubber boots, etc. Defendant's parents operated "The Home Hotel" in the town of Duncombe, Webster County, Iowa. Defendant and his two brothers, Percy Pardoe and Paul Pardoe, who were jointly indicted with defendant, Ross Pardoe, lived with their parents at said hotel. The town of Duncombe is about twelve miles from the town of Homer. The State offered testimony tending to show that Andrew S. Showers was in possession of the store building and stock of goods contained therein, and had control of and was conducting the business of said store; that, on the evening before the store was robbed, Showers locked the building and went to his home, about a quarter of a mile from the store; that he learned of the robbery about 4 o'clock the next morning, and immediately went to the store; that he found that a quantity of overalls, shirts, women's dresses, a case of eggs, two bushels of potatoes, two gunny sacks of canned goods, and four pairs of rubber boots had been taken; that defendant, Ross Pardoe, and his two brothers, were seen by C.H. Hill, a witness for the State, carrying merchandise from the store building and loading it into an automobile standing by the store building; that Hill notified Showers of what he had seen, and they started in search of the burglars; that Hill knew and recognized the defendant and his brothers. Only defendant, Ross Pardoe, was on trial in this case. The evidence offered by the State also tends to show that part of the goods that had been taken from the store were found concealed in bushes by the roadside; that Hill, Showers, and a man named Rusher concealed themselves near where the property was hidden, to watch for the return of the parties to the *Page 844 spot; that, about eight hours after the robbery, defendant and his brothers were seen by the watchers to come to the place where the goods were concealed; that they became alarmed at some noise made by the watching parties, and threw some of the merchandise, including several pairs of boots, into the car, and started away; that they were ordered to halt, and shots were fired at them, but they made their escape; that a shot fired broke the wind shield of the Pardoe car; that the escaping parties threw out of their car along the road three pairs of gum boots and some boxes of merchandise; that, about 5 o'clock in the morning after the robbery, Ross Pardoe and one of his brothers arrived at the home of Michaelson, about two miles south of Duncombe; that Ross asked Michaelson to take him and his brother a distance of two or three miles north of the Michaelson place; that Ross said they were in a hurry; that Ross and his brother acted scared and nervous; that Michaelson took the men in his car about two miles to the Hanrahan schoolhouse, where he told them that he was out of gas, and defendant and his brother left the car; that, shortly after defendant and his brother left Michaelson, about 8 o'clock in the morning, defendant and his brother were found north of Duncombe, and were arrested; that, when they saw the officers approaching, each threw a revolver into the grass by the roadside; that they were taken to Fort Dodge and lodged in jail, and there told, in the presence of several parties, about breaking into the Showers store, and how it was done; that a voluntary confession was made by defendant, Ross Pardoe, orally, and his statement was reduced to writing, and was signed by him. This statement is known in the record as "Exhibit 1." Evidence was also introduced by the State, tending to show that, in his talk with the officers before he made the written confession, defendant said that he and his brothers had broken into the Showers store; that they had stolen rubber boots, canned goods, and a case of eggs, which they had planned to leave along a road, and return for them; and that, when they went back to get the goods, they heard a noise, and were shot at, the shot breaking the wind shield of their car; that they abandoned the car, after something went wrong with it, and got a man to drive them to Duncombe. The written confession recites the same facts. Defendant was *Page 845 arraigned, and committed to jail. He broke jail, and was apprehended and returned to jail. Defendant was a witness in his own behalf, and denied being at the store building; denied breaking and entering the store; admitted that he signed "Exhibit 1," the confession, but claimed that it was obtained by threats and duress. Defendant also claimed an alibi, which will be later considered. At the close of the State's evidence, defendant moved for a directed verdict in his favor, the principal grounds of which were that there was fatal variance between the charge in the indictment and the proof, in that the ownership or possession of the property where the breaking and entering were alleged to have been committed, was, in the indictment, alleged to be in Andrew S. Showers, and that the evidence showed the possession and control of the store to be in Mrs. Showers; that the alibi was established by such overwhelming evidence as to show reasonable doubt of defendant's guilt, as a matter of law. The motion was not sustained, and was renewed at the close of all the evidence, and then overruled. II. Errors assigned and relied upon for reversal are: (1) Error in certain instructions, and omitting to instruct on certain propositions. (2) Admission of "Exhibit 1," the claimed confession, in evidence. (3) Overruling motion to direct verdict. (4) The possession of the property at which the alleged burglary was committed was in a person different from what the evidence shows the property was in possession and control of. (5) The evidence was insufficient to support the verdict. III. Complaint is made that, in stating the issues, the instructions omitted to specifically state that the State must prove the allegation of the indictment that the "goods, wares and merchandise and valuable things" alleged to have 1. BURGLARY: been kept in the building, "were then and there instruc- kept by said Andrew S. Showers for use, sale, tions: and deposit." This criticism is not well failure to founded. It is without dispute in the record instruct as that the store building and the stock of to merchandise in it at the time of the breaking undisputed and entering were in the possession and control fact. of Mr. *Page 846 Showers; and that the merchandise in the store was kept by Showers for the purpose of selling same. As to the merchandise in the store at the time of the burglary, Showers testified — and it was not disputed: "They were my goods. I paid for all the goods that were brought into that store." The indictment itself was set forth in the instructions. It was not necessary to specifically instruct that it must be found, to convict, that the merchandise alleged to have been kept in the store was kept by Showers for the purpose of sale, when it appeared, without dispute, that the merchandise was kept by Showers for that purpose. No prejudice could possibly result to appellant on account of the court's omission to specifically instruct on said matter. State v. Fortune, 196 Iowa 995. IV. The State introduced evidence to show that, after defendant was arrested on the charge in this case and placed in jail, he broke out of jail, escaped, and fled. The evidence of escape from jail and flight was offered as a circumstance 2. CRIMINAL indicative of guilt, and the court properly LAW: instructed on that proposition. Appellant evidence: concedes that the evidence was admissible for attempted the purpose of showing flight, but seems to escape: complain that, because breaking jail is of instruc- itself a crime, the court should have given the tions. jury an instruction limiting the evidence to the purpose of showing flight. The criticism is without merit. The court fully and properly instructed on the proposition in Instruction 12, to which no exception was taken. No instruction was requested on this proposition. V. Appellant complains of the admission in evidence of "Exhibit 1," the signed confession, on the ground that the same was not shown to have been voluntary, but was obtained by duress, threats, and compulsion. Several persons, 3. CRIMINAL present at the time the confession was signed, LAW: testified that appellant told the story recited evidence: in "Exhibit 1," willingly, and that he was not confessions: threatened by anyone, and no coercion or admissibi- promises were used. Defendant, as a witness for lity. himself, furnishes the only evidence that there was any coercion. His testimony made a conflict in the evidence as to whether the written statement was voluntarily made or not. *Page 847 Under that situation, it was proper for the court to submit to the jury the question as to whether or not the alleged confession was obtained wrongfully, — which was done. State v. Storms,113 Iowa 385; State v. Westcott, 130 Iowa 1; State v. Von Kutzleben,136 Iowa 89; State v. Foster, 136 Iowa 527. There was no error at this point. VI. Counsel for appellant insist that the evidence offered by appellant in support of his claimed alibi was so strong and overwhelming that, as a matter of law, it generated a reasonable doubt as to appellant's guilt, and that it was 4. CRIMINAL error to refuse a directed verdict, and to LAW: overrule motions in arrest of judgment and for evidence: a new trial. No complaint is made of the alibi: instruction submitting to the jury the issue of credibility. alibi. The instruction was correct, clear, and ample. It was the province of the jury to pass upon the credibility of the witnesses who testified in support of the claimed alibi. Evidently the jury did not believe the testimony of appellant's witnesses on that issue. VII. The indictment alleged the possession and control of the store building broken into, to be in Andrew S. Showers. Appellant contends that the evidence shows that the building was in the possession of Mrs. Showers, and that it was 5. BURGLARY: error to overrule his motion for a directed possession verdict, and motions in arrest and for a new and control trial. It is without dispute in the record that of building: the store building, at the time of the burglary, variance. was in the possession and control of Andrew S. Showers. Neither Showers nor his wife owned the building. True, it developed on cross-examination of Showers that his wife was interested in the business; but she was not conducting the business, and did not have possession and control of the building. The store was located in the country, and was known as the "Showers Store." There could have been no question or confusion in the mind of defendant or anyone concerning the identity of the building that it is alleged defendant broke and entered. State v. Fortune, supra. There was no error at this point. *Page 848 We have carefully examined the whole record, and find no error prejudicial to a fair trial of defendant. The judgment of the trial court is affirmed. — Affirmed. PRESTON, STEVENS, and VERMILION, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429644/

In this action plaintiff demanded from defendant an accounting of the profits of two Iowa-chartered corporations, known as Paramount Products, Inc., and the Betty *Page 80 White Corporation. The trial court, holding against plaintiff's contention that he was entitled to an accounting, dismissed the petition with judgment in favor of defendant for the costs. Plaintiff has appealed. It will perhaps make for clarity, if before discussing the questions of fact that are presented, we advert to the subject matter of the controversy and to certain salient facts that are conceded. On February 7, 1934, a certificate of incorporation was issued to Paramount Products, Inc. The incorporators were plaintiff and defendant. The incorporating was in furtherance of a verbal agreement between them that contemplated the carrying on of what they designate as "sales contests." The capital authorized was $20,200 divided into 200 shares of Class A stock, par value $100 each, and 200 shares of Class B stock, par value $1 each. The articles provided that holders of shares were to have equal voting rights, and equal rights to share in the profits, in proportion to the number of shares held and regardless of the classification of the stock. Plaintiff, an attorney practicing in Des Moines, found among his clients purchasers of approximately $9,250 of Class A stock. Defendant also effected stock sales. On July 31, 1934, all Class A stock had been issued. As shares of Class A stock were sold, shares of Class B stock in equal number were issued to defendant, for which he paid $1 per share. Defendant also held several shares of Class A stock, with the result that at all times he had voting control of the corporation. The corporation commenced transacting business soon after February 7, 1934. Its officers and directors were plaintiff and defendant. The merchandise chosen for the purpose of conducting "sales contests" consisted of cosmetics and toilet articles, none of which the corporation manufactured or produced. All was procured from various sources by purchase. During its brief existence the corporation carried out three of these "sales contests", all conducted in the same manner. The first was started in March 1934. September 29, 1934, at midnight, was the predetermined closing date. At the outset $4,305 was withdrawn from the corporation's funds and placed in a special bank deposit. This was the amount of the "grand prize list." Conspicuous advertisements, incorporating puzzles, were then published in magazines and newspapers. Each advertisement stated that to any person who solved the puzzle there would be mailed *Page 81 complete information as to the manner of awarding prizes. To each person who sent in an answer to the puzzle there was mailed the first of six "broadsides" that had been prepared, and rules governing the contest. This "broadside" was 20 by 25 or 18 by 26 inches in size, printed on both sides, in two colors, with half-tones of three automobiles, and illustrations of other prizes, allegedly amounting in all to the value of $4,305. The "broadside" stated that these "grand prizes" were to be awarded to those who sold, during the period of the contest, the largest amounts of the merchandise the corporation was putting out. If the person to whom the "broadside" was mailed remitted $2 and signed the order blank which accompanied the "broadside", there were sent to him 6 pieces of merchandise, and he was credited with a certain number of "votes", toward winning a prize. A receipt was mailed for the $2 with a request that an order for $4 be sent in. From then on approximately 150 carefully prepared form letters, in a series, were mailed, the purpose being to induce a continuation of orders. Accurate statistics of the effectiveness of these letters were kept, on the basis of which re-writes were frequently made. There were also sent out offers of small special cash prizes to those who would send in the largest amount of orders within specified periods. As testified by defendant, "In that way we maintained their interest and kept them sending us orders." At any given time during the contests, the persons contending for the prizes averaged in number from 18,000 to 28,000. (The record not being clear, the average of 28,000 may have been in one of the Betty White Corporation contests.) The publishing in magazines and newspapers of advertisements required to interest so many persons in such a project consumed a considerable portion of the money derived from those who contended for the prizes. During its three contests the amount paid by Paramount Products, Inc. for magazine and newspaper advertising was approximately $235,000. Another item of expense was defendant's salary amounting to $22,650, to September 1, 1935. Toward the end of August 1935 Paramount Products, Inc. discontinued its business. All capital stock was surrendered with written consent of the holders that the corporation be dissolved. Class A stock was retired in this manner — the corporation returned to the holders $20,000, being the sum total of their original investments, and in addition, including all dividends, *Page 82 paid them a profit somewhat in excess of $60,000. The Class B stock, all held by defendant, was retired by returning to him his original investment of $200, and by paying to defendant the same amount of profit that went to holders of Class A stock, that is an amount that exeeded $60,000. Those who were the "contestants" appear to have realized, out of the remittances they sent in, the three "grand prize lists" each valued at something like $4,305 and some small special cash prizes. On August 30, 1935, a certificate of incorporation was issued to the Betty White Corporation. Defendant Stayton was the sole incorporator. The authorized capital was $20,000 divided into shares of $100 each. The business in which this corporation engaged was the carrying on of "sales contests", three in number, similar to those that had been conducted by Paramount Products, Inc., already described. The Betty White Corporation was dissolved in October 1936. It had expended for the publishing of magazine and newspaper advertisements approximately $340,000, had paid defendant a salary of $26,000, and had paid back to the stockholders all of their $20,000 stock investment, and a profit of $131,800. The litigants concede that plaintiff was to receive one third of the profits upon Class B stock of Paramount Products, Inc., the equivalent of one sixth of the profits of the corporation, and they concede that plaintiff did receive from defendant one third of the $60,000 plus of profit paid on Class B stock. But at this point in the record the controversial matters appear. That they may be envisioned, a narration of transactions had in December 1933 and in the early months of 1934 seems to be required. In a conversation between these litigants in the latter part of December 1933, defendant made reference to his previous experiences in conducting "sales contests" and indicated his purpose to again enter that field, if capital could be obtained. He informed plaintiff that he, defendant, could procure on credit the publishing of advertising costing any amount up to $100,000, but that $20,000 of actual capital was essential. Plaintiff journeyed to Chicago, verified the matter of credit, which he found would be extended by an advertising agency, and stated that he would undertake to help raise the $20,000. Both parties testified that their original plan was to agree between themselves and with those by whom the $20,000 might be invested, *Page 83 that the profits would be distributed in equal parts, one third to such investors, one third to plaintiff, one third to defendant. But because investors could not be interested upon that basis, the plan was altered, and plaintiff and defendant agreed that the investors of the $20,000 should have one half the profits, defendant one third and plaintiff one sixth. What has been related was the entire agreement with respect to profits, according to defendant's version of these oral arrangements. That what has so far been related was merely a portion of the contents of the oral agreement between plaintiff and defendant is strenuously urged by plaintiff. He maintains that a part of the oral agreement between him and defendant was that plaintiff's share of profits would be reduced to one sixth temporarily, and that later plaintiff and defendant would buy the business, and thereafter conduct it as the sole proprietors, each taking 50% of the profits. Plaintiff relying on that assertion of fact, takes the position that he and defendant embarked upon and have been engaged in a joint adventure, and that each is entitled to one half of the profits from and after the elimination of the original investors in Paramount Products, Inc. Plaintiff seeks in this action to compel defendant to account to him for such portion of the profits of the alleged joint adventure as plaintiff has not received, that is, for one half of the profits "derived through the instrumentality of the Betty White Corporation." Concerning this dispute, as to what was the oral agreement of these parties, each testified. As corroborating his contention plaintiff points out that on direct examination, after describing the necessity that arose for increasing to one half the investors' share of the profits, defendant testified in these words: "That called for a re-arrangement of our percentage, and I told Mr. Davies that under no conditions would I be satisfied with less than one-third of the profits; that while I thought that the business would make enough money anyhow, that I would then make up the difference between my one-third and the point where the stockholders and investors would have one-half, so it worked out on the basis of the investors having fifty per cent, myself having the other fifty per cent, and under the agreement I agreed to give Mr. Davies one-third of my one-half." In commenting on this testimony plaintiff urges that the *Page 84 difference to be made up was that between his originally arranged one third of the profits and the one sixth to which his share was reduced. So, says plaintiff, in this testimony defendant has admitted what plaintiff claims was the oral contract, excepting that defendant did not mention the manner in which defendant agreed to make up this difference. But another meaning may have been intended by the witness. At the time he testified he was referring to events in retrospect. He was conscious that in the past he had acquired all the "B" stock. He recognized he was not entitled to plaintiff's one third of the profits thereon. This difference between all the profits on the "B" stock he had acquired, and the profits to which defendant was in fact entitled, may have been the difference to which he was alluding. There was no cross-examination upon this particular phase of defendant's testimony. Defendant further testified that there was no agreement that he and plaintiff would acquire the business or share its profits excepting in the manner that was carried out in Paramount Products, Inc. Each party offered testimony of other witnesses that tended somewhat to corroborate them respectively. With what the parties as witnesses said there is interwoven the evidence of their previous actions. On February 17, 1934, they signed an instrument wherein it was agreed that, for the efforts put forth by G. Scott Davies (now plaintiff) in the securing of capital stock and legal advice in the Paramount Products, Inc., "He is to share one-third interest in the profits made from Class B common stock, or one-sixth interest in the profits earned by Paramount Products, Incorporated." This instrument was subsequent to the alleged oral agreement on which plaintiff relies. Although it does not embody the matters plaintiff says were in the oral agreement, this may not be at all conclusive concerning the contents of the oral contract, because the purpose of this written instrument may have been a single one, i.e., to furnish to the advertising agency a fixation of plaintiff's interest in the profits of the corporation to which the agency was extending credit. This the agency had requested. Of perhaps greater import are other matters found in the record. In August 1935 plaintiff surrendered the stock he held in Paramount Products, Inc., accepted his profits, consented to dissolution, assisted in procuring like action on part of other stockholders, and knew the Betty White Corporation was being *Page 85 set up, but all this was without outward manifestation by plaintiff that he deemed himself entitled to a half interest in the new corporation or in its profits. If at that time it was in plaintiff's mind that there was an oral agreement whereby he and defendant would buy the business and become co-proprietors, one would naturally expect to find in the record evidence in some manner relating to the furnishing or to the reason for not furnishing, by plaintiff, of a co-proprietor's portion of the $20,000 of capital. Such evidence does not appear. What is shown is this — plaintiff, desiring stock in the Betty White Corporation, gave defendant a check for $4,000. But on or before September 3, 1935, plaintiff and his wife were alloted stock in the amount of only $1,000, and for the residue of the $4,000 notes of the corporation for $3,000 were given to plaintiff and his wife, and these were later paid. The stock and notes were accepted without protest. On September 3, 1935, plaintiff and his wife signed a writing appointing defendant as their proxy to vote their ten shares at the first stockholders meeting. The things that were done by plaintiff in acquiring this $1,000 of stock were not acts to be expected from a person claiming to be, of right, a co-proprietor. His subsequent actions as a holder of this stock have not the appearance of the acts of one having the rights plaintiff now asserts. That is, in June 1936 a dividend of 500% was being paid to the stockholders, and that plaintiff so knew is apparent, for he and his wife each received $2,500 of the dividend declared. At this time plaintiff, neither by word nor by act, indicated that he had interests in the Betty White Corporation other than as a holder of the stock he had purchased. No intimation came from him that the 500% dividend was being disbursed to those not entitled thereto. The final contest of this corporation ended July 31, 1936, and it prepared for dissolution, which was accomplished in October 1936. It was on September 17, 1936, that plaintiff first made known what he now says was a portion of the oral agreement made prior to February 7, 1934. A circumstance known to plaintiff was this. After Paramount Products, Inc. had conducted three "contests" its dissolution was the only course of action that was beneficial to the profit takers. For by that time the corporation was without future prospects, output of its merchandise was practically at an end, and as a going concern it possessed nothing in the nature of good will. There was no probability that a fourth time it *Page 86 could cultivate a profitable crop of "contestants." So in the fact of dissolution we are unable to see anything of substance that would have warranted plaintiff in believing, as he says he did, that the dissolving of Paramount Products, Inc., was being brought about by Stayton in order to carry out the alleged oral agreement. The dissolution seems to have been more a matter of natural consequence, inherent in the manner in which the business was conducted. With all of this plaintiff was acquainted. In these transactions and circumstances, prior to the appearance of the parties on the witness stand, there is such inconsistency with plaintiff's version of the oral agreement that it appears to us plaintiff has not successfully borne the burden of establishing the alleged oral contract on which he bottoms his theory of joint enterprise. The trial court correctly held that plaintiff had not established his right to an accounting. Other matters are urged by plaintiff in argument — that defendant's salary of $500 per week from and after January 1, 1935, was excessive and illegally exacted, — that there was no dissolution of the Paramount Products, Inc. because consent thereto by plaintiff was obtained by fraud, — that defendant violated fiduciary duties and relationships to the stockholders by fraudulent concealment of an intention to acquire for himself the assets of Paramount Products, Inc. The showing on which plaintiff depends does not in our opinion sustain these points to which the argument is directed. It would serve no justifiable end to set out the record in further detail. The decree and judgment of the trial court is affirmed. — Affirmed. MITCHELL, C.J., and HAMILTON, OLIVER, STIGER, HALE, BLISS, MILLER, and SAGER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429645/

Davenport, Iowa, is a municipal corporation organized under a special charter. The defendants-appellees, George Tank, Frank Hass, and Albert Schultze, are respectively the mayor, clerk, and chairman of the license committee of that city. During the times herein material, there were in force and effect, in the city of Davenport, ordinances providing as follows: "Section 19: No person, firm or corporation shall by himself, clerk, agent, employee or servant, retail or sell by the drink for consumption on the premises, or adjacent thereto, in the City of Davenport, any lemonade, seltzer water, ginger ale, mineral water, small beer, cereal beverages or other beverages, not prohibited by law, nor sell at wholesale, nor deliver to others to sell at retail, any of said goods or beverages herein described, or keep open or maintain any place of public resort for the sale of any such beverages, unless such person shall have first obtained a license therefor as herein provided. Provided, however, that nothing in this section shall be construed to prohibit the sale of pop or soda water or cereal beverages by the holder of a retailer's or grocer's license by authority of said license alone whether said pop or soda water or cereal beverages be sold for consumption on the premises or otherwise. "`A'. Any person wishing a license under this ordinance shall present to the city clerk an application in writing therefor, containing the name of the applicant, the location of the room, house or place of business where it is proposed to carry on such business, or orders are received for the purchase and delivery of such goods at wholesale. Each application shall be endorsed by the chairman of the committee on licenses of the city council, and be accompanied by the receipt of the treasurer of the city for the sum of ten dollars, *Page 188 on the presentation of which the city clerk shall issue to said person a license to sell at wholesale or retail and keep open a place of public resort for the sale of such beverages. "Such license shall entitle the person receiving the same to sell such beverages for one year, but all such licenses shall expire on the 31st day of March following the date of their issue." Connected with the foregoing section of the ordinance is Section I, which modifies it: "Section I. No license hereinafter provided for shall be assignable or transferable except with the consent of the city council. The mayor may at any time forbid the issuance of a license, or if one has been issued, may revoke the same, if, in his judgment, any business, auction sale, exhibition, entertainment, occupation, or show, conducted, or to be conducted under and by virtue of said license is or will be detrimental to public health or morals or liable to lead to the violation of any ordinance or law, or provoke a breach of the peace, or if any such licensee or any of his agents shall make any false or misleading statements or representations in the furtherance of the business conducted under said license or shall violate any ordinance or law in the conduct of the business for which such license is issued. * * * "If the mayor forbid the issuance of any license or if a license be revoked, he shall give the applicant or licensee, as the case may be, notice of his action and specify a time reasonably soon thereafter, for a hearing at which the applicant or licensee may show cause and be heard in behalf of the granting or continuance of said license." Mike Talarico, the plaintiff-appellant, is a citizen of the United States and a resident of Davenport. As such, he, on the 4th day of June, 1932, made written application under the aforesaid ordinances of Davenport for a license to sell in that city a soft drink known as near beer. According to the admissions of the parties, the mayor, under the provisions of the ordinance set forth in the above named Section I, notified the city clerk not to issue the appellant the desired license. Therefore, the clerk refused to issue the same. When the mayor instructed the clerk not to issue the license, the former, as required by said Section I, gave the appellant, as such applicant, notice that he had forbidden the clerk to issue the license. On the same occasion and in the same notice the mayor, in accordance *Page 189 with Section I, fixed the time when and place where the appellant might appear to show cause why such license should be granted him. But the appellant ignored the notice informing him of the place where and time when he could appear for such hearing, and immediately thereafter, to wit, on June 7, 1932, commenced the present action in mandamus to compel the appellees to issue the license for which application had been made. A resistance to the issuance of a temporary injunction was filed by the appellees. To this pleading the appellant replied. Later the appellees filed an answer to the appellant's petition, and again the appellant filed a reply. Generally speaking, five issues are argued by the parties. They are: First, that the ordinance of Davenport providing for the license, above mentioned, is unconstitutional if the appellees have discretion to deny the license and prevent appellant from engaging in a legitimate business; second, that the mayor, in commanding the clerk not to issue the license, acted arbitrarily; third, that the ordinance is void because it placed in the mayor discretionary powers; fourth, that the ordinance is void for the reason that it delegated the power of the city council to the mayor; and, fifth, that Section I of the ordinance is void because it conflicts with Section 19 thereof. These questions will now be considered in the following order. I. Is the act constitutional under the record? The appellant asked for a license under the ordinance, but in the alternative argues that if the appellees have the discretion to deny the license, the ordinance deprives him of the right to engage in a lawful and legitimate business. This argument on appellant's part concerning the unconstitutionality of the ordinance was not raised in the district court. He did not there ask to have the ordinance declared unconstitutional, but rather, affirmed the ordinance by asking that a license be issued to him thereunder. As before indicated, Davenport was organized and now exists under a special charter. Its special charter provides "that the city council shall have power * * * to license, tax, and regulate auctioneers, transient merchants, retailers, and grocers, taverns, ordinaries, hawkers, peddlers, brokers, pawnbrokers, and money-changers * * *." While the appellant, in his petition, claimed to be engaged in the wholesale business, yet the case was tried on a stipulation of facts wherein the parties agreed that the foregoing portion *Page 190 of the city charter is applicable to the ordinances in question. Consequently, the parties by agreement have conceded that the plaintiff's business is one of the enterprises named in the charter. This being true, there is a basis in the charter, if constitutional, for the ordinance so far as it seeks to regulate the appellant's business, as defined in the agreed statement of facts. At this juncture, it is important to understand that in Iowa there are cities under special charters and cities not under special charters. Under Section I, Article VIII, of the Iowa Constitution, special charters can no longer be granted. That does not mean, however, that the charters of municipal corporations existing at the time the present Constitution was adopted were, by such adoption, made inapplicable, null, and void. Ulbrecht v. City of Keokuk, 124 Iowa 1; Lytle v. May,49 Iowa 224; Warren v. Henly, 31 Iowa 31. So, the city of Davenport may base its ordinances aforesaid, if they are otherwise constitutional, upon the authorization contained in its special charter. Hence, if the charter aforesaid is constitutional, it is not necessary for that city to look to the general laws relating to municipal corporations for the power to license the mercantile and other businesses named in the portions of the ordinances previously quoted. For, as before explained, the power to enact the ordinances, so far as the facts involved in this case are concerned, may be found in the charter if the same is constitutional under the issues raised in the case at bar. By so concluding, it is not determined or suggested whether the power to thus license does or does not exist under the general laws relating to municipalities. The power thus contained in the charter of Davenport was granted by the legislature at a time in the constitutional history of this state when the legislature was privileged to confer special charters on municipalities. [1] As said in the beginning, however, the appellant in the district court did not raise the question that the ordinance was unconstitutional if appellees have the discretion to deny him the license. Therefore, we do not consider the hypothetical constitutional question. State ex rel. Seeburger v. Johnson,204 Iowa 150 (local citation 152); State v. Burch, 195 Iowa 427 (local citation 433); Peverill v. Board of Supervisors, 201 Iowa 1050 (local citation 1056). See State v. Altomari, 199 Iowa 43 (local citation 44). When reaching this conclusion, we do not indicate or suggest whether the city of Davenport can or cannot permanently prohibit the appellant from engaging in the mercantile business. Such question *Page 191 is not involved under the pleadings and facts in this case. See, however, Manker v. Tough, 98 P. 792 (Kans.); City of Troy v. Harris, 76 S.W. 662 (Mo.); 17 Ruling Case Law, 525-26-27, Sec. 45. Under the present record, the city only attempted to license, regulate, and tax. Neither it nor any of its officers had finally refused to issue a license to appellant. On the other hand, as set forth in the statement of facts, the appellant was afforded a hearing on that very question, but he refused to avail himself of it. [2] II. Nevertheless, it is said by the appellant that the mayor, in commanding the city clerk to withhold the license, acted arbitrarily. It is to be noted in the first place that the mayor did not finally deny the issuance of the license to the appellant. His action in the premises was analogous to the issuance of a temporary order. Because of Section 19 of the ordinance, it is incumbent upon the clerk to issue a license in each instance where the fee of $10 had been paid and the proper application made, containing the endorsement of the chairman of the committee on licenses. So far as that portion of the ordinance is concerned, the machinery for obtaining a license is self-operating. Apparently, under this portion of the ordinance, the license, if the preliminary prerequisites have been met, shall be issued by the clerk automatically. According to the system of the city, it appears from the brief record presented to us that the license committee controls the issuance of licenses in all cases where the mayor does not interfere under the provisions of Section I of the ordinance. But Section 19 of the ordinance, as before explained, is modified and controlled by Section I thereof. When, under Section I, the mayor determines that in his judgment the morals and safety of the city's inhabitants will be jeopardized by the issuance of a license, he can temporarily prevent the issuance thereof by commanding the city clerk to withhold the same. This the mayor did in the case at bar. Immediately after so doing, that official, in accordance with the ordinance, notified the appellant of the place where and the time when he might be heard upon the merits of his application. The appellant admits that this notice was duly served. For some reason the notice is not set out in the record, and it is rather difficult to determine from the record before whom the hearing was to be. A fair construction of the ordinances presented, however, indicates that the hearing was to be before the license committee or the council, which, under the ordinances and charter of *Page 192 the city, has the final power in granting or refusing the license. As before stated, the appellant did not appear in accordance with the notice, but ignored his right to the hearing contemplated by the ordinance. He, on the other hand, immediately commenced an action in mandamus. Because of those circumstances, it cannot be said that the mayor acted arbitrarily. That official is endowed with a legal discretion in making the temporary order aforesaid. Although the district court, under a proper record, can hold that an official has abused his discretion and therefore acted arbitrarily, yet, as above stated, it cannot be found under this record that the mayor in question acted arbitrarily. Gundling v. City of Chicago, 177 U.S. 183; Taylor v. Smith,124 S.E. 259 (Va.); Yee Bow v. City of Cleveland, 124 N.E. 132 (Ohio); Tighe v. Osborne, 133 A. 465 (Md.); People ex rel. Schwab v. Grant, 27 N.E. 964 (New York); Noble v. English, 183 Iowa 893; See also Cecil v. Toenjes, 210 Iowa 407; Marquis v. City of Waterloo, 210 Iowa 439; Loftus v. Department of Agriculture,211 Iowa 566. [3] III. Continuing his attack upon the ordinance, the appellant declares that the same is void because it placed in the mayor discretionary powers. This question was necessarily involved in Division II above. It is legal for the legislature, or the city council in proper cases, to confer certain discretionary powers upon a mayor. Decorah v. Dunstan Brothers,38 Iowa 96, and cases above cited. A further discussion under the circumstances is unnecessary, because to say more would only result in a repetition of the previous discussion on the same subject-matter. [4] IV. In the fourth place, the appellant argues that the ordinance is void for the reason that it delegated the power of the city council to the mayor. Again the appellant is mistaken. There is no attempt in the ordinance to confer the power of granting the license upon the mayor. The power to grant the license is reserved in the city council or the license committee, according to the legislative grant through the special charter. Under the ordinance, the mayor, in respect to the license, acts as an individual only in the capacity of an administrative officer. See cases cited above. At this point the thought is clearly expressed in Loftus v. Department of Agriculture (211 Iowa 566), supra, reading on page 583, in the following language: "Discretion is frequently lodged in ministerial officers. Thus *Page 193 lodging discretion does not necessarily violate any constitutional prohibition. O'Brien v. Barr, 83 Iowa 51; Brady v. Mattern, 125 Iowa 158; McSurely v. McGrew, 140 Iowa 163; State v. Mason City F.D.R. Co., 85 Iowa 516; Hunter v. Colfax Cons. Coal Co., 175 Iowa 245. Administrative officers may, within proper limitations, exercise discretion, find facts, and exercise judgment. Hunter v. Colfax Cons. Coal Co. (175 Iowa 245), supra; 6 Ruling Case Law, 174 to 181, inclusive." [5] V. Finally, it is maintained by the appellant that Section I of the ordinance is in conflict with Section 19 thereof. Manifestly this position is untenable. Clearly the ordinance must be considered as a whole. When an attempt is made to interpret the municipal legislation, consideration must be given to every section thereof. Section 19 is not complete without Section I. Therefore there is no conflict between the foregoing sections of the ordinance, but rather, the one is in harmony with the other. In fact, the ordinance does not exist without Section 19 as modified by Section I. To determine what the ordinances of Davenport mean, then, it is necessary to consider Sections 19 and I together. It was not intended by the city of Davenport that Section 19 should exist except as it is modified by Section I. There is no conflict between them, but rather, the one supplements and modifies the other. Wherefore, the judgment and decree of the district court should be, and hereby is, affirmed. — Affirmed. STEVENS, C.J., and EVANS, FAVILLE, ALBERT, and BLISS, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429646/

Plaintiff's petition as finally constituted asserted two counts. Count I alleged that plaintiff, at the time of his injury, was riding in an automobile owned and operated by defendant, as a guest and not for hire, while defendant was proceeding on a mission of his own, and that plaintiff was injured by reason of reckless operation of the automobile by defendant. Defendant's answer to this count admitted that, at the time of the collision, plaintiff was riding in defendant's automobile upon defendant's invitation, as a guest and not for hire, and while defendant was proceeding on a mission of his own. Defendant denied that he was reckless in the operation of the automobile. Count II of the petition asserted that, at the time and place of the collision that plaintiff received his injuries, the relationship of master and servant existed between the plaintiff and defendant; plaintiff was engaged in doing work beneficial to defendant at defendant's request and was injured as a result of defendant's negligence. The answer to Count II of the petition denied that, at the time and place of the collision, the relationship of master and servant existed between plaintiff and defendant; denied that plaintiff was then engaged at the request of defendant in doing work beneficial to defendant; denied that defendant was negligent. Trial was had to a jury. The evidence that is material to the questions presented for our decision may be briefly summarized as follows: Plaintiff and defendant are farmers. Their homes are about three fourths of a mile apart. Defendant called plaintiff on the telephone and asked plaintiff to help him find out what was wrong with a pump and fix it. Plaintiff drove over to defendant's farm about 1 p.m. The leather had become unscrewed from the bottom of the pump rod. They tried to pull it up but could not; called Mr. McCain, a well man from Logan, but still they could not pull it. McCain suggested that if they got a steel hoist they might get it up. Defendant *Page 497 started toward his car to go for a steel hoist. Plaintiff went over and sat on the running board of his own car. Plaintiff testified that defendant said to him, "Come and go with me and get it;" that he (plaintiff) got in defendant's car and went with him. Defendant testified that he said to plaintiff, "You should go with me; couldn't do nothing here until I get back"; that plaintiff then got into the car and went along. On the road to Logan, defendant's car collided with another automobile head on and plaintiff was severely injured. For the past two years plaintiff and defendant had exchanged work with each other. Defendant testified as follows: "Practically anything we needed extra help for we would call on each other. When I had gone over to help him on his farm as a neighbor, he had not paid me in money for my work I did. And when he had come to my place to help me I had not paid him in money except in silo-filling time when I generally hired more work than average and I paid him. Neither Ganzhorn nor I kept any account of the time that each helped the other." At the close of the evidence defendant made four motions. First was a motion to withdraw Count I from the consideration of the jury because the evidence was insufficient to warrant a verdict that the collision was caused by reckless operation of the automobile by defendant. Subject to the ruling of the court on the motion to withdraw Count I from the jury, the defendant moved for a directed verdict on Count I because of insufficiency of the evidence on the issue of reckless operation of the automobile. Defendant also moved the court to withdraw Count II from the consideration of the jury because the evidence was insufficient to warrant the jury's finding that the relationship of master and servant existed between the parties at the time and place of plaintiff's injury. Subject to the ruling on the motion to withdraw Count II from the jury, the defendant made a motion for directed verdict as to Count II for the same reasons as stated in the motion to withdraw said Count II. The court determined that, under the record, the evidence was insufficient to warrant a finding that plaintiff was a guest under the guest statute (section 5037.10, Code, 1939) and for *Page 498 that reason withdrew Count I of the petition from consideration of the jury. Defendant's other motions were overruled and the cause was submitted to the jury on Count II of the petition alone. The jury returned a verdict for the plaintiff for $3,000. Exceptions to instructions and motion for a new trial were overruled. Defendant appeals, asserting three assignments of error: (1) the overruling of the motion for directed verdict as to Count I of the petition (2) the overruling of the motion for directed verdict as to Count II of the petition (3) the overruling of exceptions to instruction 3 which stated the basis on which plaintiff might recover. [1] I. In assigning error to the overruling of the motion for directed verdict as to Count I of the petition defendant contends that the trial court erred in finding that the evidence was insufficient to warrant a finding that plaintiff was a guest within the contemplation of section 5037.10, Code, 1939. We see no occasion to discuss or decide this question. Defendant challenged the right of plaintiff to have Count I submitted to the jury. The court's ruling gave defendant what he wanted. No matter what the ground stated by the trial court, the effect of the ruling was in defendant's favor. It was not prejudicial. An appeal cannot be based on a ruling in effect favorable to the appellant. [2] II. Defendant's challenge of the ruling on the motion to direct a verdict as to Count II raises the vital question in the case. To support his contention that the evidence is insufficient to sustain a finding that the relationship of master and servant existed, reliance is had upon Pace v. Appanoose County, 184 Iowa 498, 168 N.W. 916; Meredith Pub. Co. v. Iowa Emp. Sec. Comm.,232 Iowa 666, 6 N.W.2d 6; Stiles v. Des Moines Council Boy Scouts,209 Iowa 1235, 229 N.W. 841. The cases do not appear to be controlling. In the first two cases, this court found that the relationship of independent contractor existed. In the Stiles case, we held that an Eagle Scout, who merely attended a scout camp, was not an employee. Plaintiff relies upon Porter v. Decker, 222 Iowa 1109, 270 N.W. 897. It will be referred to later. We have made considerable search of the authorities and have not found a case squarely in point. On principle, however, *Page 499 it would seem that a jury question was presented as to this issue. In the case of Napier v. Patterson, 198 Iowa 257, 260, 196 N.W. 73, 74, we stated: "To constitute the relation of principal and agent or master and servant, it is not necessary that there be an express contract between them, or that the services be rendered for compensation. The relationship may be either express or implied." In the case of Lembke v. Fritz, 223 Iowa 261, 266, 272 N.W. 300, 303, we reviewed a number of our decisions, and stated: "All the cases agree that the test of the relationship of master and servant is not the actual exercise of power of control over the details and methods to be followed in the performance of the work but the test is the right to exercise such control." Applying such rules to the evidence herein, the jury was warranted in finding that the status of master and servant existed. Plaintiff was not a volunteer or interloper. At defendant's express invitation plaintiff came to defendant's farm, pursuant to an admitted custom, to render service. It was defendant's farm, defendant's work. Obviously, the jury might draw the conclusion that defendant had the right to exercise control over the details, means, and methods of doing the work. The custom furnished consideration for the implied contract, and, as above stated, it was not necessary that the services be rendered for compensation. The case of Porter v. Decker, supra, relied upon by plaintiff, furnishes some support for our conclusion. That was an action such as this for injuries received by plaintiff while riding in defendant's vehicle. At pages 1111 and 1112 of 222 Iowa, page 898 of 270 N.W., we stated: "The appellant's first contention is that the court erred in overruling a motion for a directed verdict in his favor, because, he claims the evidence was not sufficient to show that the plaintiff was other than a passenger who was riding in defendant's truck as a guest and not for hire. There was evidence, however, tending to show that, in the evening of the day on which *Page 500 the defendant left Fort Dodge to go to Omaha with his truck, he called at the plaintiff's home * * * he told the plaintiff he wanted plaintiff to go along with him (defendant) to Omaha to help him; that the plaintiff had been with defendant on prior trips, on which he had assisted defendant in unloading and loading his truck, and knew what such help meant; that the plaintiff did go along with defendant on the trip to Omaha, helped him to unload his truck at a brewery there, helped him to load it with filled kegs and cases, and accompanied him on his return trip to Fort Dodge; and that it was while on this return trip that the accident occurred out of which the plaintiff's injuries resulted. There was also, it is true, evidence on the part of the defendant tending to show that no work or services were contemplated, or were performed by the plaintiff upon this trip, and that, if the plaintiff rendered any help at all to the defendant, it was rendered merely as a matter of courtesy, without any agreement to do any work or expectation of compensation on the part of the plaintiff, and without any intention on the part of the defendant to employ or require the performance of any services by the plaintiff. We think the most that can be said for the evidence is that it presents a conflict, and, this being true, there was, of course, a question for the jury. We find no error in the action of the trial court overruling the appellant's motion for a directed verdict." Defendant's principal contention is that, even if there was evidence of a relationship of master and servant, it did not show such relationship to be in existence at the time of the collision. We fail to agree with this contention. We think that it was a question for the jury whether plaintiff accompanied defendant to assist him in getting the steel hoist. Accordingly, we find no merit in the second assignment of error. [3] III. The only other assignment of error challenges the overruling of exceptions to instruction 3 which advised the jury as follows: "3. In order for the plaintiff to recover in this action it is necessary for him to establish by a preponderance or greater weight of evidence all of the following matters, to-wit: "(1) That the relationship of master and servant existed *Page 501 between plaintiff and defendant at the time of the collision in question. "(2) That the defendant was negligent in some one or more of the particulars alleged by plaintiff, as heretofore set forth. "(3) That such negligence on the part of the defendant was the direct and proximate cause of the collision, and the injuries and damages complained of by the plaintiff. "(4) That the plaintiff was damaged, and the amount. "If each and all of the above and foregoing matters are thus shown by a preponderance or greater weight of evidence, then plaintiff is entitled to recover against the defendant. But if any one or more of said matters are not thus shown, then the plaintiff cannot recover from the defendant." It will be noted that the instruction ignores the issue of contributory negligence. Defendant concedes that section 11210, Code, 1939, relieves plaintiff of the burden of proving freedom from contributory negligence if, at the time of the collision, plaintiff was acting within the scope of his employment as a servant of defendant. The contention is that subparagraph 1 of instruction 3 did not require the jury to find that plaintiff was acting as a servant of defendant at the time of the collision. Of course, the instructions must be read together. Instruction 7 devoted four paragraphs to the determination whether "the relationship of master and servant existed between plaintiff and defendant at the time of the collision in question." One of the exceptions to instruction 7 in the court below (not urged here) was that the instruction was insufficient to require a finding that plaintiff was acting in the course of his employment at the time of his injury. However, another exception to instruction 7 (also not urged here) was as follows: "Instruction No. 7 is erroneous, misleading and without evidence to support it in that there is no evidence that at the time of the collision defendant was employing the services or labor of plaintiff or that at said time plaintiff was rendering labor or services to the defendant, at his request, beneficial to him or otherwise within the scope of his employment." *Page 502 This exception, by implication at least, asserted that instruction 7 supplied what defendant here contends was lacking. We think that the implication is justified. In the absence of a request for amplification, we hold that instruction 7, when read with instruction 3, adequately advised the jury that, for plaintiff to recover, the jury had to find that plaintiff was rendering services, at defendant's request, beneficial to him or otherwise within the scope of the employment, at the time of plaintiff's injury. Accordingly, there is no merit in the contention asserted here. By reason of the foregoing, the judgment is — Affirmed. MULRONEY, C.J., and GARFIELD, BLISS, WENNERSTRUM, SMITH, HALE, and OLIVER, JJ., concur.

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https://www.courtlistener.com/api/rest/v3/opinions/3429835/

[1] Four witnesses testified for the State. Cora Peterson testified she worked for appellant at New Rex Hotel, Sioux City, Iowa, as maid and night clerk; that appellant procured Lavina Abraham to practice prostitution there; that appellant and the witness directed numerous men to Lavina's room at night for that purpose and Lavina's illicit earnings were collected by or paid to appellant. Lavina Abraham testified that for several months she worked at the hotel as day clerk for her board and room and practiced prostitution there at night under supervision and control of appellant and Cora Peterson; that her earnings were paid to appellant and that he gave her some money for food and clothing. Two police officers testified to the reputation of the hotel and that appellant operated it. No evidence was offered by the defense. I. Appellant assigns as error the overruling of his motion for a directed verdict. Said motion asserted Cora Peterson and Lavina Abraham were his accomplices; that their testimony was not corroborated by other evidence as required by section 13901, Code of 1939; and that without their testimony the evidence of appellant's guilt was insufficient to warrant the submission of the case to the jury. A witness is an accomplice if he could be indicted and convicted of the same crime. State v. Clay, 220 Iowa 1191,1199, 264 N.W. 77; State v. Farris, 189 Iowa 505,178 N.W. 361. In view of our conclusion, hereinafter noted, that the corroboration was sufficient, we will assume, without so deciding, that the two women were accomplices of appellant. See State v. Chauvet, 111 Iowa 687, 83 N.W. 717, 51 L.R.A. 630, 82 Am. St. Rep. 539; State v. Weston, 235 Iowa 148, 15 N.W.2d 922; State v. Clough, 181 Iowa 783, 165 N.W. 59. The statute does not require that the corroborated evidence go to the whole case. It is sufficient if some material part of the accomplice's evidence be corroborated by direct or circumstantial evidence which shall tend to connect the accused with the commission of the offense charged. State v. Dorsey, 154 Iowa 298,134 N.W. 946; State v. Arhontis, 196 Iowa 223, 194 N.W. 209. In the case at bar the police officers testified the hotel was appellant's place of business and that he admitted he had been operating it for about one year. They also testified the general *Page 131 reputation of the hotel in the community, as operated by appellant, was that it was a house of prostitution. State v. Chauvet, supra, 111 Iowa 687, 688, 83 N.W. 717, 51 L.R.A. 630, 82 Am. St. Rep. 539, involved a wagon used as a house of ill fame. Upon the question of corroboration, the court said, referring to the defendant: "His admission, and his apparent control of the wagon and team, authorized the jury to find as it did, for they tended to connect him with the commission of the offense, and this is all the statute requires." So in this case we conclude the testimony of the two women was sufficiently corroborated by other evidence and that the question of appellant's guilt was for the jury. [2] II. Appellant complains of certain rulings of the trial court permitting the two police officers to testify to the reputation of the hotel over his objections. The basis of the objections was that the minutes of their evidence before the grand jury were insufficient to qualify them to testify upon this point at the trial as witnesses for the State, under section 13851, Code of 1939. It is the established rule that a witness examined before the indicting grand jury, minutes of whose evidence are properly returned and filed, may be examined in the trial concerning material matters not disclosed by such minutes. State v. Perkins,143 Iowa 55, 56, 57, 120 N.W. 62, 21 L.R.A., N.S., 931, 20 Ann. Cas. 1217, and decisions there cited. Appellant concedes this to be the rule but asserts the minutes of the grand jury indicate the evidence of the police officers was wholly hearsay and inadmissible and that they gave no real evidence upon which the indictment could have been based, even in part. Hence appellant argues the rule should not be here applicable. No authorities are cited in support of this contention. The record does not warrant the construction suggested by appellant. The minutes of the evidence of the officers before the grand jury recite in part that appellant operated the premises in question. This was an essential element of the case against appellant and the evidence of these witnesses thereon appears to have been admissible. Under the rule above noted the court did *Page 132 not err in refusing to limit the examination of the witnesses to matters shown in the minutes of their evidence before the grand jury. Another assignment of error concerns the instructions and involves a proposition which was not raised in the trial court. Hence it will not be considered upon appeal. — Affirmed. All JUSTICES concur.

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07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429651/

In the year 1921, the town of Sharon was constructing a 1. EMINENT sewerage system and disposal plant. It had not DOMAIN: acquired the land for the disposal plant or for proceedings the outlet therefor. Appellees herein, to condemn: Longstreet and Jones, owned certain land, a part joint of which was to be crossed by the main sewer application leading to the disposal plant, and the other by different part of which was to be crossed by the outlet owners. leading from the disposal plant. The condemnation proceedings instituted before the sheriff seem to be regular in all respects, and due and timely notice was served on the town. The sheriff's jury awarded a lump sum of $10,000 to the appellees; and on appeal to the district court, the damage to the two pieces of land hereinafter described was severed, and $500 was allowed on the 10-acre tract, and $2,300 was allowed on the 38-acre tract. It appears from the evidence that Charles T. Longstreet was the owner in fee of the 10-acre tract, and that the record title to the 38-acre tract was in Lacel Jones, who was the father-in-law of Longstreet. It further appears that there was a written contract between Jones and his children, one of whom was Mrs. Longstreet. By the terms of the contract Lacel Jones divided his property between his two children, made deeds to the same, — one of which conveyed the 38 acres to Mrs. Longstreet, — and provided further that, inasmuch as said land was covered by a $4,000 mortgage, Mrs. Longstreet was to pay $1,000 thereon, and both children were to build a room on the house for the use of the father. Each child was to pay $100 per year during Jones's lifetime, and they were to pay the expenses of his *Page 725 last sickness and burial. Possession of the property was given at once, and the children were to pay all interest and taxes thereon from the date of the execution of the contract, hence. The contract was signed on the 7th of September, 1918, by the father and his two children. Under written instructions to the depository, the deed was to be delivered at his death. It is apparent under this contract that, while the record title to the 38 acres was in Lacel Jones, in equity Mrs. Longstreet had an interest therein. If she had an equity, of course her husband also had an interest. The summation of this matter is that as to the 38 acres Longstreet and his wife and Jones had an interest therein. This gives rise to what the appellant designates as the main error relied on for reversal: to wit, that there is no authority, under the statute or in law, for the parties to file a joint proceeding in condemnation when one of the tracts of land involved is owned by one of the parties individually. This proceeding, having been instituted prior to the time the 1924 Code was effective, must be governed by the Code of 1897 and supplements thereto. Sections 795 and 848 of the Code of 1897 and Sections 880 and 881 of the Supplemental Supplement, 1915, confer power on cities and towns to construct sewerage and disposal plants, and provide that proceedings for condemnation shall be in accordance with the provisions relating to the taking of private property for works of internal improvement, except that the jurors shall have the additional qualification of being freeholders of the city or town. This makes Section 1999 of the Code of 1897 applicable, the material part of which is as follows: "If the owner of any real estate necessary to be taken for either of the purposes mentioned in this chapter refuses to grant the right of way or other necessary interest in said real estate required for such purposes, or if the owner and the corporation cannot agree upon the compensation to be paid for the same, the sheriff of the county in which such real estate may be situated shall, upon written application of either party, appoint six freeholders of said county * * * who shall inspect said real estate, and assess the damages which said owner will sustain by the appropriation of his land * * *" Section 2000 provides for the giving of ten days' notice in *Page 726 writing to the other party, of the day and the hour when such commissioners will view the premises, which shall be served in the same manner as original notices. The record in the case shows that these statutes were complied with, and application was made and notice served as therein specified. This undoubtedly gave jurisdiction, and we have so held in Carlile v. Des Moines K.C.R. Co., 99 Iowa 345; Hartleyv. Keokuk N.W.R. Co., 85 Iowa 455; Cedar Rapids, I.F. N.W.R.Co. v. Whelan, 64 Iowa 694; Security Sav. Bank v. Carroll,131 Iowa 605. We therefore start this discussion with the proposition settled that whether or not these parties were properly joined as plaintiff is not a jurisdictional question. The appellant practically concedes this in its argument, but still insists that the case should have been dismissed in the district court because of the misjoinder of parties plaintiff. After this case reached the district court, in August, 1923, appellant filed an answer. Later, in March, 1924, it filed an amendment to its answer, and this is the first time that anything is said by appellant about the misjoinder. Even at that late date it did not file a motion to strike any cause of action improperly joined with others. Section 3547 of the Code of 1897 provides: "The court, at any time before the answer is filed, upon motion of the defendant, shall strike out of the petition any cause or causes of action improperly joined with others." Section 3548 provides: "All objections to the misjoinder of causes of action shall be waived, unless made as provided in the last preceding section." As heretofore noted, the appellant did not, before answer, file a motion of severance or to strike out the cause not properly joined. Aside from these provisions of the statute, this has ever been the rule of practice in this state. Lull v. Anamosa Nat.Bank, 110 Iowa 537; Steber v. Chicago, G.W.R. Co., 139 Iowa 153;Campbell v. Spears, 120 Iowa 670. In the face of these statutes and this line of decisions, we cannot be expected to hold with the appellant on this matter. Counsel makes quite persuasive argument as to why the damages *Page 727 should not have been assessed in a lump sum for both tracts of land, yet the argument loses much force in view of the fact that the district court directed, and the jury found, the damage to each piece of land separately; so that we are unable to see where appellant was harmed. More than this, this court is committed to the doctrine that the only appealable issue in matters of this kind is from the award of damages. Witham v. Union County,198 Iowa 359; Burgess v. Bremer County, 189 Iowa 168, and cases therein cited: Appellant complains that Instructions 5, 6, 7, and 8 asked by it were refused by the court; but because the matters involved in these instructions were fully covered by those given by the court, we give no attention to them. Certain evidence of several witnesses tendered by defendant was objected to, and the objection was sustained. We have gone over this record in the light of the errors assigned, and find that the ruling of the lower court was correct, except in certain instances, but in those instances the matters were wholly immaterial, and would be of no weight in determining any of the issues involved. It is further urged that the verdicts are excessive. A condemnation case is one in which the amount allowed is peculiarly within the province of the jury; and unless the same be shown to be so extravagant as to be wholly 2. EMINENT unfair and unreasonable, this court has DOMAIN: repeatedly refused to interfere with the verdict compen- of the jury. Such is the rule in the other sation: states. Kosters v. Sioux County, 195 Iowa 214; excessive Bracken v. City of Albia, 194 Iowa 596; Darst v. award: Fort Dodge, D.M. S.R. Co., 194 Iowa 1145, and review. cases therein cited. Also see Longview, P. N.R. Co. v. Olson, 131 Wash. 4 (228 P. 699); Sewer Imp. Dist.v. Fiscus, 128 Ark. 250 (193 S.W. 521); Haggard v. IndependentSch. Dist., 113 Iowa 486; Kukkuk v. City of Des Moines, 193 Iowa 444; Bennett v. City of Marion, 106 Iowa 628. We have given attention to all contentions made by the appellant herein, and find nothing that would warrant our reversing the judgment entered in the lower court. — Affirmed. FAVILLE, C.J., and EVANS and MORLING, JJ., concur. *Page 728

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On June 20, 1928, Ellen Bopp Billmeyer executed a deed to land owned by her, including the tract in controversy, naming as grantees her grandsons Ellis Billmeyer Shepard and Gordon Kenneth Shepard. The deed was delivered in escrow to Clare Shepard, father of the grantees, with instructions to place of record when the grantor died. The grantor reserved possession during her life and continued in occupancy. The deed was never placed of record. On April 16, 1934, the same grantor, Ellen Bopp Billmeyer, deeded the tract in controversy and other land to her daughter, Mabel Billmeyer Pickworth. On July 24, 1934, Julius Boeckh, receiver of the First National Bank of Hawkeye, obtained a judgment against Ellen Bopp Billmeyer, and on August 19, 1935, *Page 1308 commenced action against Mabel Billmeyer Pickworth and Ellen Bopp Billmeyer to set aside the deed of April 16, 1934. The action was settled by the conveyance on April 10, 1936, by Mabel Billmeyer Pickworth and husband and Ellen Bopp Billmeyer of the land involved here to Julius Boeckh, receiver. On March 16, 1937, Boeckh, receiver, under proper orders of court, deeded the land in controversy here to C.N. Freligh, plaintiff herein. All of the above deeds, except that of June 20, 1928, were duly recorded. On June 10, 1941, Freligh, claiming to be an innocent purchaser for value and without, notice, brought this action to quiet his title against the grantor Ellen Bopp Billmeyer, the two grantees in the unrecorded deed of June 20, 1928, and Clare Shepard, their father and escrow agent. The trial court found for plaintiff. Defendants other than Ellen Bopp Billmeyer have appealed. [1] The court's decree is based upon the finding that appellee Freligh was a good-faith purchaser of the land for value and without notice of appellants' rights under their unrecorded deed, which was therefore of no validity against said appellee because of section 10105, Code, 1939, providing: "No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration, without notice, unless filed in the office of the recorder of the county in which the same lies, as hereinafter provided." We see no escape from the conclusion reached by the trial court. It appears without dispute that appellee Freligh is a subsequent purchaser for value and that he had no knowledge or notice of appellants' rights under their unrecorded deed until long after he acquired the property and paid for it. He is clearly entitled to the protection of the Recording Act. Bailey State Bk. v. Heinse, 178 Iowa 1203, 160 N.W. 903; Lindberg v. Thomas, 137 Iowa 48, 56, 114 N.W. 562; McGinnis v. Edgell,39 Iowa 419, 423; 66 C.J. 1159, section 1006. [2] Appellants rely upon a decree in a case commenced by Mabel Billmeyer Pickworth, grantee under the deed of April 16, 1934, in which decree the validity of the unrecorded deed of June 20, 1928, as against said Mabel, was adjudicated. See Pickworth *Page 1309 v. Whitford, 228 Iowa 658, 293 N.W. 47. The suit brought by Mrs. Pickworth was not instituted until after appellee Freligh acquired his deed. Freligh was not a party to the suit. The decree upon which appellants rely, pursuant to the opinion of this court, was not entered until August 1, 1940, more than three years after the deed to said appellee. Mabel Billmeyer Pickworth was not entitled to the protection of the Recording Act because she had full knowledge of the deed to appellants of June 20, 1928, at the time the deed to her was made. There is a dispute as to whether the case of Pickworth v. Whitford involved the tract in controversy here or was confined to other lands conveyed by the two deeds of June 20, 1928, and April 16, 1934. Appellants' contention that the Pickworth case involved the tract deeded to appellee Freligh may be accepted. Nevertheless, it is clear that the decree in Pickworth v. Whitford, supra, is not binding upon said appellee, who was not a party to that case, and who, unlike Mrs. Pickworth, is entitled to the protection of Code section 10105. As having some bearing, see Duke v. Park, 220 Iowa 889, 893, 262 N.W. 799; Cassidy v. Woodward, 77 Iowa 354, 360, 42 N.W. 319; Hume v. Franzen, 73 Iowa 25,28, 34 N.W. 490; Goodnow v. Stryker, 62 Iowa 221, 223,14 N.W. 345, 17 N.W. 506. It should be remembered that the Pickworth litigation was not commenced until after appellee Freligh's rights accrued. There can be no claim that by the filing of the petition or the decree in that case said appellee was charged with notice of appellants' rights under their unrecorded deed. No question of lis pendens is involved. See Noyes v. Crawford,118 Iowa 15, 91 N.W. 799, 96 Am. St. Rep. 363. Appellants argue that appellee Freligh, upon discovering the unrecorded deed to appellants, could have rescinded the purchase from his grantor and been restored to statu quo. They cite Strothers v. Leigh, 151 Iowa 214, 219, 130 N.W. 1019, and other cases. We are also told that Freligh could have proceeded against his grantor for breach of the warranty in his deed. Assuming, without deciding, that either of these remedies was open to said appellee at his election, he was not confined thereto, but could avail himself of the protection of the Recording Act and have his title quieted. Equally without merit is the claim that the Recording Act does not apply because the deed was placed in *Page 1310 escrow and it was not possible for appellants to place it of record. The statute does not except from its operation an unrecorded instrument which has been placed in escrow. The decree is — Affirmed. All JUSTICES concur.

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07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429656/

Defendant was indicted by the grand jury of Polk County, Iowa, on May 5, 1944, for second offense, operating a motor vehicle while intoxicated, as defined in section 5022.02 of the Code of Iowa, 1939. He pleaded not guilty, was tried and convicted, and sentenced to pay a fine of $600 and costs, and in default of the payment of such fine was to be confined in the county jail of Polk County, Iowa, for a period of six months, and he appealed to this court. The case came to this court on a clerk's transcript. We have examined the same and find no error therein. However, by reason of Code section 13964, the sentence should be modified to require the defendant, in default of payment of the $600 fine, to serve one hundred eighty days in the county jail of Polk County, Iowa. The sentence so modified is affirmed. — Modified and affirmed. *Page 142

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429658/

In this case plaintiff brought suit against one Perdue, an employee of Cass County, Iowa, and the Hawkeye Casualty Company. The petition is in one count and alleges that Perdue while working for Cass County, Iowa, negligently drove a truck belonging to said county in such a manner as to cause damages to a truck belonging to plaintiff, and asks damages therefor. The petition alleges that prior thereto the defendant Hawkeye Casualty Company issued an insurance policy to Cass county covering all automobiles and trucks owned by said county and insuring them on any liability caused by the negligent operation of said vehicles by any employee of Cass county. Said petition in paragraph 15 thereof contains the following: "That at the time said Hawkeye Casualty Company issued said policy on the 3rd day of April, A.D., 1943, it was with their knowledge and consent, by issuing said policy, that action could be brought against said defendant, Hawkeye Casualty Company, in case of any accident by any vehicle owned by Cass County, Iowa, and included in said policy." Neither the policy nor a copy thereof was attached to the petition. Each defendant, Charles V. Perdue and the Hawkeye Casualty Company, appeared. Separate motions to dismiss and to strike said petition were filed by each defendant. In effect these motions were along similar lines. The motions to strike were conditioned to be considered in the event the motions to dismiss were overruled. The motions to dismiss were to a large extent based upon the claim of each defendant that the facts stated in plaintiff's petition did not entitle plaintiff to the relief demanded or to any relief. The motions to strike were largely based upon the claim that the petition of plaintiff failed to allege any contractual relationship between him and the Hawkeye Casualty Company; also, that plaintiff had misjoined the cause of action for the reason that he sought to recover from the Hawkeye Casualty Company on an ex contractu basis and against defendant Perdue on an ex delicto basis; also, that plaintiff failed to allege that the defendants are jointly liable. *Page 1032 The trial court overruled both motions save as to two minor particulars. The trial court recognized the fact that as Cass county was a governmental agency it could not be held liable for the torts of its employees, but held that this immunity did not extend to its employees who committed torts while engaged in the work of the governmental agency. The trial court held that the Hawkeye Casualty Company, by the issuance of its policy is substituted in the place of Cass county with the same force and effect as if Cass county were not immune because of its governmental agency. The trial court further ruled that it was proper for plaintiff to maintain an action ex delicto against defendant Perdue and one ex contractu against the defendant Hawkeye Casualty Company in the same action. Also, the trial court held that the Hawkeye Casualty Company knowing the immunity of Cass county in issuing said policy had waived the immunity and assumed to stand in the place of Cass county. The court also held that there was no misjoinder of causes of action. Both defendants have appealed. The appeal is from the interlocutory order and was pursuant to stipulation of the parties and the order of court authorizing same. By stipulation of parties the motion to dismiss is not involved in this appeal; the correctness of the ruling of the trial court denying the two motions to strike is alone involved. I. The defendant Hawkeye Casualty Company moved to strike from the petition Charles V. Perdue, as defendant, on the ground that plaintiff had misjoined the causes of action in that he sought recovery from Perdue on an ex delicto basis and from the Hawkeye Casualty Company on an ex contractu basis; further, that there was a failure of plaintiff to allege any contractual relationship, and also, a failure to allege that defendants are jointly liable. The court ruled that under the record an action ex delicto and an action ex contractu were properly joined. Appellee argues that such ruling is correct. The motion of defendant Perdue to strike the Hawkeye *Page 1033 Casualty Company was based upon grounds similar to those set forth by the casualty company and relating to the allegations of the petition. The only theory upon which liability of defendant Hawkeye Casualty Company is predicated assumes that such liability is the same as would exist if there was no governmental immunity in favor of the insured county. If there were no such immunity it is clear the county and its indemnitor, the casualty company, could not be joined. The claim would have to be established against the county before the indemnitor could be sued. 46 C.J.S., Insurance, section 1191; Lasecki v. Kabara and Farmers Mut. Auto. Ins. Co.,235 Wis. 645, 294 N.W. 33, 130 A.L.R. 883; Elliott v. Indemnity Ins. Co., 201 Wis. 445, 230 N.W. 87; Fehr v. General Acc. F. L. Assur. Corp., 246 Wis. 228, 16 N.W.2d 787, 160 A.L.R. 1402. This is especially true by reason of Rule 28, Rules of Civil Procedure. [1] But here the county cannot be held liable. Plaintiff's contention implies that Perdue, the driver of the car, becomes the indemnitee. Surely it cannot be argued that the policy was issued for plaintiff's benefit. He could not recover against the indemnitor without establishing that someone was negligent. The casualty company's liability, if any, must depend upon whether Perdue is liable. See cases above cited. [2] Our conclusion is that there was such misjoinder as to require separation. We reach this conclusion for the reasons heretofore stated and not because one action is ex contractu and the other ex delicto. The appropriate remedy was by motion to strike. Krausnick v. Haegg Roofing Co., 236 Iowa 985,20 N.W.2d 432, 163 A.L.R. 1413; Rule 27 (b), Rules of Civil Procedure. This rule provides that "on such motion the court shall either order the causes docketed separately or strike those causes which should be stricken, always retaining at least one cause docketed in the original case." [3] II. Appellants next urge as error the ruling of the trial court in holding that while Cass county acting as a governmental agency could not be held liable for the torts of its employees, still this immunity did not extend to an employee who committed a tort while engaged in a governmental function. *Page 1034 This claim is without merit. In the case of Shirkey v. Keokuk County, 225 Iowa 1159, 275 N.W. 706, 281 N.W. 837, the matter of the liability of a county while carrying on governmental functions was considered and passed upon. Numerous cases were cited and discussed. The essence of the holding of this court was that the county was not liable for the torts of its employees while carrying on work of a governmental agency but that such tort-feasor could not claim a like immunity. Citing Montanick v. McMillin, 225 Iowa 442, 458, 280 N.W. 608, 616. We think that what the court there said is controlling here. We quote: "An act of misfeasance is a positive wrong, and every employee, whether employed by a private person or a municipal corporation, owes a duty not to injure another by a negligent act of commission. It is the breach of this duty which the law imposes on all men that is involved, and this general obligation to injure no man by an act of misfeasance is neither increased nor diminished by the fact that the negligent party is an employee of a municipal corporation." In that case it was held that public service should not be a shield to protect a public servant from the consequences of his own misconduct. In the case of Goold v. Saunders, 196 Iowa 380, 384, 194 N.W. 227, 228, this court said: "A public official may be guilty of negligence in the performance of official duties, for which his official character gives him no immunity." III. The last error urged by the defendants and particularly the Hawkeye Casualty Company is that the trial court erred in holding that said Hawkeye Casualty Company assumed such liability as Cass county might have if it had not been for the county's immunity. We are not in a position to pass upon this question. The terms of the policy are not pleaded. It was issued April 3, 1943. Section 332.3 (20), Code, 1946, authorizes counties to insure county employees under some circumstances. This legislative enactment became effective April 8, 1943. Acts of the Fiftieth General Assembly, chapter 167, section 1. Appellee alleged that by issuing such policy and being aware of the immunity of Cass county, the Hawkeye Casualty Company thereby assumed *Page 1035 any liability which Cass county might have had save for its immunity. We cannot determine on this record whether the cited statute has any significance or is or could be shown to be applicable here. As bearing on the question of the casualty company's liability in the absence of statute see Ayers v. Hartford Acc. Ind. Co., 5 Cir., Ga., 106 F.2d 958. Upon the considerations we have stated the case is reversed and remanded in order that the two pleaded actions may be separately docketed for such further proceedings as may be proper. — Reversed and remanded. All JUSTICES concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429958/

On June 4, 1925, final decree was entered enjoining plaintiff and his wife from maintaining a liquor nuisance and from selling or keeping for sale intoxicating liquors. The proceedings in contempt before us were instituted for the violation of that injunction. The body or substance of the original notice in the injunction proceeding is not in the record here. No question as to the sufficiency of the body of the original notice nor of the return of service, in substance or form, as one of substituted service, is made. The return shows service at plaintiff's usual place of residence, by leaving copy with Mrs. Ray Dickerson, a member of the family, etc. The objection to the injunctive decree asserted at this point is that the place of service was not in fact petitioner's place of residence, and petitioner's wife was not in fact a member of his family, because he had separated from her; and that, therefore, there was no service in fact and no jurisdiction to grant the injunction. It is also claimed that petitioner did not have actual knowledge of the injunction. On the face of the record, the court did have jurisdiction, and the decree is valid, whether petitioner knew of the original notice or not. Hass v. Leverton, 128 Iowa 79; Wells v. Wells, 279 Mo. 57 (213 S.W. 830); Cooper v. Fourth Nat. Bank, 26 Ga. App. 44 (105 S.E. 375); Carroll v. Muller, 31 Ga. App. 209 (120 S.E. 548). The petitioner seems to think that the burden is on the State to prove the existence of jurisdiction in rendering a judgment on substituted service, though shown by a return fair and regular on its face. This is not correct. The presumption is in favor of the regularity and validity of the judgment and of the proceedings on which it was based, and not in favor of the defendant, who has violated it. The question of fact is whether the place of service was the *Page 257 petitioner's usual place of residence, and whether his wife was a member of his family. The petitioner has produced no testimony but his own, which, on direct examination, was: "Mr. Dickerson, were you served with an original notice on the 17th day of April, 1925, notifying you that there was an injunction suit pending in the district court of Polk County, Iowa, against you? A. Not as I remember. Q. Mr. Dickerson, were you living with your wife on the 17th day of April, 1925, in Des Moines, Polk County, Iowa? A. No, sir, we had had trouble. Q. Mr. Dickerson, were you ever served with a decree, — with an order of court, — saying that there was an injunction against you? A. I couldn't say as to that. Q. I call your attention to the decree which has been offered in evidence by the plaintiff, and ask you if a copy of that decree was ever served upon you? A. Not to my knowledge, that was not served on me. Q. Mr. Dickerson, did you know that there was an injunction suit pending against you in the district court? A. I did not. Q. Injunction Docket 21 — or Docket 1, Case 28? A. Not as I know of." On cross-examination, he testified that he was never divorced. "We had trouble; we didn't live together. Q. Where did you live, then, in April? A. Well, she had rented the place here; she told me she was going to get out, and I told her, `All right;' told her I would take care of her and the kids and give her money every week. Q. Where did she live at? A. She had moved from 817 up to the Normandy Apartments." He says he had nothing to do with the renting of those apartments. "Q. Where were you living up there at the time? A. I was up there off and on, — yes, sir." He says his children were there and his wife was there. "Q. And that was in April, 1925? [The service was April 17, 1925.] A. Yes, sir; when the law was up there, I happened to come in. We had been out riding, and I brought her back some ice cream. She wanted a quart of ice cream. Q. And then the police came in, and you were arrested? A. They were there when I came in. Q. And took you down to the station? A. Yes, sir. Q. Didn't they serve you with a notice right then and there? A. Notice of what? Q. Notice of the injunction suit? *Page 258 A. No, sir. Q. Well, while they were taking you down to the station, or after they got you there? A. Oh, what do you mean? Q. Well, during the time — from the time that they arrested you there, in April, 1925, — took you down to the station, and while you were there at the station, — didn't they serve you with a notice of some kind? A. I don't know. Q. You don't know of any? A. No, sir. Q. Didn't they give you any papers at all? A. Not as I know of." It will be noted that he was expressly asked where he lived, and that he in answer made reference to the apartments which his wife had rented. He was again asked whether he was living there at the time, and answered that he was there off and on; that his wife and children were living there, and "when the law was up there, I happened to come in," and he was taken to the station; that he evades and equivocates as to whether he was served with notice, and does not give any place of residence other than that of his wife and family. The appearance docket shows personal service, but the deputy clerk, after finding the original notice, which had been mislaid, thought that such record was not correct. The place of residence of petitioner's family is presumed to be his domicile. Nugent v. Bates, 51 Iowa 77; Botna Valley St. Bankv. Silver City Bank, 87 Iowa 479. The officer's return is strong evidence of its correctness, and is not overcome by such testimony as that offered by petitioner. Galvin v. Dailey,109 Iowa 332. It would be a travesty on the administration of justice to accept petitioner's testimony as sufficient to overcome the solemn decree of the court. The petitioner was fined $500, committed to jail for six months, and in lieu of payment of fine and costs, committed to jail for a period not exceeding one day for each three and one-third dollars, in addition to the six months. We think that the court was authorized to find that the petitioner was fully informed of the pendency and result of the injunction proceedings, and that petitioner was in willful contempt. The punishment is not excessive. The other questions raised have been ruled against petitioner's contention. Touch v.Bonner, 201 Iowa 466; Labozetta v. District Court, 200 Iowa 1339 *Page 259 ; State ex rel. Robbins v. Anderson (Iowa), 207 N.W. 137 (not officially reported). The writ is discharged, and the judgment — Affirmed. De GRAFF, C.J., and EVANS and ALBERT, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3216694/

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : No. 96 WAL 2016 : Respondent : : Petition for Allowance of Appeal from : the Order of the Superior Court v. : : : DARYL PROVANCE, : : Petitioner : ORDER PER CURIAM AND NOW, this 23rd day of June, 2016, the Petition for Allowance of Appeal is DENIED.

01-03-2023

06-23-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429659/

In Carlton v. Grimes, 237 Iowa 912, 23 N.W.2d 883, a citizen of Iowa sought to have the law providing for the one-cent additional tax on gasoline held unconstitutional as violative of certain provisions of the Iowa Constitution. When *Page 596 this court upheld the constitutionality of the statute, another citizen of Iowa was quick to challenge the constitutionality of the same act, and the constitutionality of the entire motor-vehicle fuel-tax law of Iowa, selecting other Iowa constitutional provisions and federal constitutional provisions as the basis for his attack. By a petition and amendment thereto, that occupies some thirty-five printed pages in the record, citizen Plank sought an injunction against the defendant state treasurer to permanently restrain him from collecting the motor-vehicle fuel tax provided for in chapter 324, Code, 1946, on the ground that the law violates the due process clause contained in the Fourteenth Amendment to the Constitution of the United States, and denies to him and other citizens who purchase gasoline the equal protection of the laws, as guaranteed by sections 6 and 9 of Article I, and section 30 of Article III of the Constitution of Iowa. The trial court sustained the treasurer's motion to dismiss plaintiff's petition and plaintiff appeals from the judgment entered upon his election. [1] I. No good purpose would be served by attempting to arrange the multitude of propositions urged by plaintiff so as to treat all of them in detail. They are all based on the idea that the tax is on property. It is useless to press upon the attention of courts propositions which have been met over and over again by the courts with the uniform result upholding the validity of such laws as imposing excise taxes. The Iowa law is a use-tax law, laying an excise upon the use of fuel for the propulsion of vehicles on the highways of this state. More than ten years ago Mr. Justice Cardozo, of the Supreme Court of the United States, in the case of Henneford v. Silas Mason Co., 300 U.S. 577, 583, 57 S. Ct. 524, 527, 81 L. Ed. 814, said: "A tax upon the privilege of use * * * is now an impost so common that its validity has been withdrawn from the arena of debate." It is enough to state that plaintiff first argues that the law imposes a property tax and as such it violates the constitutional provisions named, in that the tax is on a gallonage *Page 597 basis rather than on the basis of value; that the exemption provisions (for nonhighway uses) are arbitrarily discriminating; and that the method of apportioning a part of the tax collected constitutes the taking of tax money from one taxing district and using it for the benefit of other districts, thereby denying equal protection of the laws. The entire argument is unsound because the first premise is wrong. The law does not impose a property tax. In 1934 the Supreme Court of the United States held the Iowa motor-vehicle fuel-tax law was not a property tax. In the case of Monamotor Oil. Co. v. Johnson, 292 U.S. 86, 93, 54 S. Ct. 575, 578, 78 L. Ed. 1141, that court, speaking through Mr. Justice Roberts, said: "The appellant insists that the tax is a direct tax on motor vehicle fuel imported. The court below concluded that the law laid an excise upon the use of fuel for the propulsion of vehicles on the highways of the state. The [Iowa] state officials have administered the tax on this theory. We think this the correct view. The levy is not on property but upon a specified use of property." In State v. City of Des Moines, 221 Iowa 642, 650, 266 N.W. 41, 45, decided in 1936, this court, speaking through Justice Hamilton, said: "* * * the license fee or tax imposed upon users of motor vehicle fuel is not a tax on property but an excise tax, so say all the authorities." (Citing many cases, including the Monamotor Oil Company case, supra.) While the Iowa motor-vehicle fuel-tax law has been amended since the decisions in the above cases, the amendments have not changed the character of the law as a tax upon the use of motor-vehicle fuel for the propulsion of vehicles on the highways of the state. As an excise tax, to be paid by users of motor-vehicle fuel to propel vehicles on the highways of this state, the law operates with uniformity upon all within the class, and the equality and due process provisions of the state and federal constitutions are satisfied. Plaintiff does not seem to argue *Page 598 otherwise. Indeed, to so argue at this late date one would be wading upstream against a torrent of decisions from courts of final authority from nearly every jurisdiction in the United States. Plaintiff pounces upon one statement in the Carlton v. Grimes case, supra, and argues that by this statement the Iowa motor-vehicle fuel tax has been changed from an excise tax to a property tax. In that opinion, at page 943 of 237 Iowa, page 899 of 23 N.W.2d, we said: "While the four-cent charge per gallon of gasoline or motor-vehicle fuel is spoken of as a license fee, it is clear that the statute providing for it was never intended as a license measure in the true sense. It was intended largely as a revenue measure and not for the sole purpose of regulation. Its purpose and effect is that of a tax law." [2, 3] Upon this language plaintiff founds his first premise that the law is a property-tax law. The conclusion is utterly unwarranted. The statement in the opinion is correct and it had its proper setting in the discussion of the proposition in that case involving the constitutionality of the bill under the constitutional provisions as to titles of bills. There is, as stated in Solberg v. Davenport, 211 Iowa 612, 232 N.W. 477, and cited in the Carlton case, much confusion in the decisions from the careless use of language and terms. The motor-vehicle fuel tax is not a license tax in the sense of a regulatory charge imposed under police power, which was the early concept of a license tax. The distinction between a license tax and an excise tax is not always recognized in later decisions. See 51 Am. Jur., Taxation, section 37. The law was intended as a "revenue measure" and its purpose and effect is that of a "tax law," the same as any other sales or use-tax law, under the legislature's exercise of taxing power, is a tax law. In any event, in passing on the constitutionality of a tax statute courts are concerned only with its practical operation, not its name. Ingels v. Riley, 5 Cal. 2d 154,53 P.2d 939, 103 A.L.R. 1; Wisconsin v. J.C. Penney Co.,311 U.S. 435, 61 S. Ct. 85 L. Ed. 267, 130 A.L.R. 1229. There is not the slightest indication in the Carlton case that this court considered the Iowa motor-vehicle *Page 599 fuel tax a property tax. Plaintiff's conclusion that there was is wholly unfounded. [4] The mere fact that part of the money which will be paid into the state treasury by the residents of one county may or will be used to build roads in other counties does not make the act invalid. The legislature had the power to determine the roads which were to be improved with the funds raised by taxation. Gafill v. Bracken, 195 Ind. 551, 145 N.E. 312. It is our conclusion that the Iowa motor-vehicle fuel-tax law does not offend against the afore-mentioned clauses of the state and federal constitutions. [5] II. Plaintiff argues section 324.49, Code, 1946, violates the Amendment of 1942 [Article VII, section 8] to the Constitution of Iowa. The section authorizes the treasurer to pay rewards to persons who bring to his attention any evasion of the tax, and the constitutional provision provides: "* * * all licenses and excise taxes on motor vehicle fuel, except cost of administration, shall be used exclusively for the construction, maintenance and supervision of the public highways * * *." The statute is well within the exception for costs of administration in the constitutional provision. The so-called reward, when paid, is payment for enforcement services performed by the recipient of the payment. See Kinn v. First Nat. Bk.,118 Wis. 537, 95 N.W. 969, 99 Am. St. Rep. 1012. The trial court was right in dismissing plaintiff's petition on the treasurer's motion. The judgment is affirmed. — Affirmed. OLIVER, C.J., and SMITH, HALE, BLISS, GARFIELD, MANTZ, and HAYS, JJ., concur. *Page 600

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429661/

Plaintiff's petition was the ordinary action on an insurance policy for the death, by accidental means, of her husband. The answer of the defendant, aside from a general denial, pleaded in substance that, under the provisions of the policy and the law, the policy was not in force at the time of the death of the said Joseph Wall. By way of reply plaintiff pleaded first, that the company had no right to forfeit or suspend said policy, because the notice provided for in section 8959 of the Code was not given in the manner prescribed by said section and at no time did the defendant ever give said notice to the assured as was prescribed by said law; second, that under the terms of the policy and under certain conditions the policy was to participate in the surplus of the company, and in the second division of the reply it was pleaded that it was the custom of the company to give written notice in advance of the due date of the amount of the premium and the amount of the dividend apportioned to such policy, and also stating the gross premium less the dividend apportioned to such policy and payable on the same date. The amount of the dividend was unknown to the plaintiff and the defendant never informed the insured or the plaintiff of the amount of such dividend payable at the end of the first policy year. Plaintiff also denied that the defendant company ever gave any written or other notice to the insured of the amount of the dividend apportioned to such policy. Later, in the same division, it is alleged that the insured never received notice "of the amount of the dividend apportioned to said policy and by the defendant payable to the insured at the end of the first policy year." Later it is averred that the failure to give written notice to the insured of the date of said premium "and of the amount of the annual dividend thereon which insured could *Page 1108 have used in reduction of the gross premium when due" was the cause of the insured's not paying the premium. On motion the court struck all the above allegations from the second count of plaintiff's reply, and plaintiff stood on this ruling and appealed. [1] The first question raised is whether or not, under section 8959 of the Code (1924), co-ordinated with section 8673, the notice therein provided is necessary in this case to a forfeiture or suspension of the policy. This policy was dated June 14, 1924. It is the ordinary life policy for $5,000, and in addition provides for double indemnity if the insured die from external, violent, and accidental means, within sixty days after the date of such bodily injury. The premium on the policy was $141.07, and the first premium was paid on the issuance of the policy, and the policy provided for "a like amount to be paid on each 14th day of June hereafter until the death of the insured." As to the payment of premiums, the policy provided: "All premiums are payable in advance, at said Home Office * * * on or before date due. * * * A grace of thirty-one days shall be granted for the payment of every premium after the first during which period of grace the insurance shall continue in force. * * * If any premium be not paid before the end of the period of grace, then this Policy shall immediately cease and become void, and all premiums previously paid shall be forfeited to the Company except as hereinafter provided." The due date of the second premium was the 14th of June, 1925. Under the terms of the policy, adding the days of grace given, the last day on which the premium could be paid, under the terms of the contract, would be the 15th day of July, 1925. The insured met his death on the 14th day of August, 1925. Passing the statutory provisions hereinafter referred to, under the terms of the contract, this policy had lapsed and was forfeited at the time of the death of the insured, but the plaintiff insists that under section 8959 of the Code (1924), notwithstanding the provisions of the policy, the same could not be forfeited unless the provisions of said section, together with those of section 8673 of the Code, were complied with. Without these provisions of the Code there is no question but that the insurance company had the right to make provisions for forfeiture *Page 1109 and voiding of policies similar to the ones contained in this policy. In dividing our Code into chapters, life insurance companies are provided for in one chapter (chapter 398), and all insurance companies other than life are treated of in a separate chapter (chapter 404). In 1880, the Eighteenth General Assembly of this state, by chapter 210, passed an act entitled: "An Act to Secure Policyholders in Fire Insurance Companies From Unjust Forfeitures of Policies." This was the basis of what is now section 8959 of the Code, but applies only to fire insurance companies. On the adoption of the Code of 1897, section 1727 enlarged the scope of the aforesaid enactment and provided that: "No policy or contract of insurance provided for in this chapter (404) shall be forfeited or suspended for nonpayment of any premium, assessment or installment provided for in the policy, * * * unless within thirty days prior to, or on or after the maturity thereof, the company shall serve notice in writing upon the insured that such premium, assessment, or installment is due or to become due, stating the amount, and the amount necessary to pay the customary short rates, up to the time fixed in the notice when the insurance will be suspended, forfeited, or canceled, which shall not be less than thirty days after service of such notice. * * *" The section provides that the notice may be served personally or by registered mail. This provision, of course, by reason of its setting in the Code, had no application whatever to life insurance policies. In 1919, the Thirty-eighth General Assembly (chapter 348, section 8) attempted to carry over and make partially effective the aforesaid section 8959 to life insurance companies. That enactment (8673) reads as follows: "Every life insurance company issuing a separate policy, or maintaining a separate department, for the purpose of writing any of the classes of insurance authorized by the preceding section shall also be subject to all of the provisions applicable to companies authorized to write a similar kind of insurance under the provisions of chapter 404." The preceding section (8672) authorizes: "Any life insurance company organized on the stock or mutual *Page 1110 plan and authorized by its charter or articles of incorporation so to do, may in addition to such life insurance, insure, either individually or on the group plan, the health of persons and against personal injuries, disablement or death, resulting from traveling or general accidents by land or water, * * *" It is apparent that the defendant company had availed itself of the benefits of section 8672, and, in addition to its usual life policy, added this double indemnity clause in case of accidental death. It will be noticed by a careful study of section 8673 above set out that the full force and effect of the aforesaid section 8959 is not carried over to life insurance companies by reason of the aforesaid section 8673. It is carried over to the extent, however, of providing that the notice required by section 8959 is necessary to be served in two instances: First, where the life insurance company undertakes to cover liability for accidents and issues a separate policy therefor; and, second, when the said company maintains a separate department for the purpose of writing accident insurance. Aside from these two conditions, section 8959 is not effective as against life insurance companies writing this kind of a policy. And aside from these two particular instances, the notice to the insured provided for by section 8959 is not required of life insurance companies when issuing such a policy. The allegations in plaintiff's reply in relation to this matter do not bring them within the provisions of section 8673, and therefore the matters thus alleged with reference to the two aforesaid sections of the Code were immaterial and insufficient to raise an issue on this proposition, and were therefore properly stricken. [2] As to certain other allegations stricken by the court, it is insisted that they are material because the company had no right for the forfeiture or lapsing of the policy because notice was not given by the company to the assured of the amount of dividends due on the policy, to the end that he might, if he saw fit, apply the dividends as a part payment on his premium and thus know how much cash he must send the company in addition thereto. Very able briefs are presented on this question, and numerous cases are cited, but, as we view the proposition, none of them is applicable here because of the wording of the policy issued. One of the provisions of the policy is: *Page 1111 "This policy shall participate in the surplus of the Company and the proportion of the surplus accruing hereon shall beascertained and distributed upon payment of the second year'spremium and thereafter at the end of the second and of each subsequent policy-year." The insured by the same provisions is given the option to use each of said dividends as follows: 1. To be paid in cash; 2. to be used in payment on any premium; 3. to be applied to the purchase of paid-up participating additions to the policy; 4. left to accumulate to the credit of the policy, with 3 per cent compound interest. There is no claim that the insured ever elected any one of said options. The policy itself is not uncertain or ambiguous. The right to participate in the surplus (dividends) arises in this case only upon the payment of the second year's premium. The company is not bound to ascertain and distribute said dividend until the insured makes payment of his second year's premium. Such are the exact terms of the agreement, and until that time and circumstance arrive there is no duty on the company to ascertain said dividend, and it necessarily follows as a matter of course that if there be no duty to ascertain this until that time, there could, of course, be no duty upon the company to notify the policyholder of the amount thereof, even if the law contended for with reference to the notice applied. It follows, therefore, that the court's action in striking the allegations with reference to failure to give notice of the dividend, under the pleading as it stood, was proper. [3] It is further pleaded that it was the custom of the company to notify policyholders with relation to the due date of the premium and also as to the amount of the dividends. Without attempting to discuss the difference between custom and use or to discuss this subject generally, there are certain fundamentals which are controlling here. It is a well-settled principle that where the terms of a contract are clearly expressed and unambiguous, they cannot be varied or contradicted by evidence of custom and usage. McDowell v. Bowles, Billings Kessler Grain Co., 177 Iowa 744, 157 N.W. 173; Bowell v. Draper,149 Iowa 725, 129 N.W. 54; Dillow Co. v. City of Monticello,145 Iowa 424, 124 N.W. 186; 17 C.J. p. 508, section 77. [4] It is another well-settled principle that where a claim is made of particular custom and usage the same must be known by *Page 1112 the parties affected by it or it will not be binding. Or, to say it another way, where one seeks to advantage himself of a particular custom or usage, the same must have been known to him at the time he acted and he must have acted and relied thereon. Rindskoff Bros. v. Barrett, 14 Iowa 101; Bradford v. Homestead Fire Ins. Co., 54 Iowa 598, 7 N.W. 48; Sherwood v. Home Savings Bank, 131 Iowa 528, 109 N.W. 9; 17 C.J. p. 458, section 18. Further than this, under the pleadings herein the decedent had no dealings with the company from the time he bought and paid for the policy in the first instance until the time of his death. Under this situation, there being no other transactions whatever between the company and the insured, the doctrine of custom and usage could under no circumstances apply. We think the ruling of the district court in sustaining the motion to strike these various matters was correct. — Affirmed. CLAUSSEN, C.J., and EVANS, KINDIG, and DONEGAN, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429662/

The petition as it stood at the time of the submission of the case to the jury alleged "that * * * plaintiff at the invitation, insistence and request of said defendant's agents went onto and upon the premises of the said defendant corporation and while walking on the regular laid out path * * * for the purpose and intent of carrying out the instructions of the defendant's agents, as given him, the said plaintiff stepped into a mound of ashes which were in the path and in the road of his walking and which from all appearance, were placed there for the purpose of passing and walking over the same; that said ashes were hot * * * That because of said ashes maintaining excessive heat, which from all outward appearances did not show or indicate that the same were hot, being so hot, that the said plaintiff caused his feet to become severely burned * * * That the existence of the dangerous and hot ashes and cinders upon the defendant's property in the condition as the same were at the time the plaintiff sustained his injuries was a dangerous situation under the complete control of the defendant and the failure of the defendant to find the same and to remove the same or to protect the plaintiff from entering into the same, constituted negligence and the maintenance of a nuisance by the defendant." At the conclusion of plaintiff's evidence defendant moved for a directed verdict because among other grounds "upon the petition as now substituted there is no sufficient allegation there of negligence to warrant the court in submitting the case to a *Page 1009 jury upon any theory. * * *" Motion was overruled, was at the conclusion of all the evidence renewed and again overruled. The jury brought in a verdict for plaintiff upon which judgment was on the same day entered. The next day defendant was given ten days to file motion for new trial and motion for judgment notwithstanding the verdict. After the five days but within the ten days defendant filed "exceptions to instructions, motion for new trial and motion for judgment notwithstanding the verdict," the first part of which consisted of exceptions to instructions, the second "motion for new trial" on the usual grounds, and the third "motion for judgment notwithstanding the verdict," among other grounds "for each and every reason set forth in the motion for a directed verdict at the close of plaintiff's testimony * * *." The judgment entered on this motion recites that the matter came on "for final determination on the defendant's exceptions to the instructions and the defendant's motion to set aside the verdict of the jury and defendant's motion for new trial, and defendant's motion for judgment notwithstanding the verdict of the jury, and the Court * * * finds that defendant's motion to set aside the verdict of the jury heretofore rendered should be sustained. The court further finds that the defendant's motion for judgment notwithstanding the verdict of the jury should be sustained." It was adjudged that defendant's motion for judgment notwithstanding the verdict be sustained, and the petition dismissed on its merits. Plaintiff appeals. I. Plaintiff argues that the motion was not timely. He ignores in his abstract and arguments the order granting an extension made the next day after the verdict was returned. On the record the motion was filed in time. [1] II. Defendant contends that the petition at the time of the submission did not state a cause of action upon which the court could submit to the jury with any reasonable accuracy whether or not the defendant was or was not in any manner negligent; that it is not claimed in the petition that the omission of defendant to do or not to do anything was the proximate cause of the injury; that "it would have been subject to a demurrer for the reason that it did not contain sufficient allegations of negligence to cast any liability upon the defendant." The petition did state that plaintiff was on defendant's premises by invitation, that there was thereon a mound of hot ashes in the *Page 1010 path or road "placed there for the purpose of passing and walking over the same," that the existence thereof "was a dangerous situation under the complete control of the defendant and failure of the defendant to find the same and to remove the same or to protect the plaintiff from entering into the same constituted negligence and the maintenance of a nuisance by the defendant." Whether or not a motion for more specific statement would lie is a question not before us. See Grinde v. M. St. P.R. Co.,42 Iowa 376; Scott v. Hogan, 72 Iowa 614; Hanen v. Lenander,178 Iowa 569, 576; 45 C.J. 1082. The facts out of which plaintiff's injury arose were set out. The petition contained a general averment of negligence. It was good as against general demurrer or motion in arrest. 45 C.J. 1079; 34 C.J. 34; Code, 1927, Section 11553. [2] III. Plaintiff contends that the motion for judgment notwithstanding the verdict is a waiver of the motion for new trial. There was but one motion in which there were three divisions. By his ruling the court set aside the verdict of the jury. This but for the further ruling as one on motion for judgment notwithstanding the verdict would have operated as an award of a new trial. The court sustained the motion to the further extent that it asked for judgment notwithstanding the verdict. The trial court has a wide discretion in setting aside a verdict and granting a new trial. White v. Walker, 212 Iowa 1100. No abuse of discretion is asserted. Though the motion united different objects that ordinarily, and perhaps more properly, are asked for by separate motions, yet the motion was, and was submitted as, a single one. The ruling is before the court in its entirety. The ruling to the extent to which it granted the motion as a motion for judgment notwithstanding the verdict and dismissed the petition upon the merits was erroneous and is reversed. To the extent to which it set aside the verdict with resultant grant of new trial the ruling was within the discretion of the court and is affirmed. — Reversed in part; affirmed in part. FAVILLE, C.J., and EVANS, STEVENS, ALBERT, KINDIG, WAGNER, and GRIMM, JJ., concur. *Page 1011

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07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429663/

In February, 1926, H.E. Smith and others, executed a mortgage securing $29,000, to George A. Rich, who, during the same month, transferred the mortgage to the plaintiff herein. The mortgage was duly recorded in Hancock county, Iowa, and also indexed as a chattel mortgage therein on February 27, 1926. The mortgage pledged the rents and profits for the payment of the amount due under the mortgage, and provided for the appointment of a receiver to take possession of the property and collect the rents and profits and distribute the same under order of court. Thereafter the mortgagor executed a deed of his interest in the land to the Clarion Savings Bank as security for an indebtedness to the bank. Thereafter, on June 30, 1931, the Clarion Savings Bank became insolvent, and L.A. Andrew was appointed receiver thereof. A few days thereafter a new deed to the land was executed to Andrew, as receiver, and the old deed was returned to the mortgagors. The consideration was an existing debt of Mr. Smith to the bank. The foreclosure proceedings were begun on September 11, 1931. On September 12, 1932, and more than a year after the foreclosure proceedings were commenced, the defendant Andrew executed a lease of the land in question to a tenant for the year 1932. The record fails to show any other lease for that year. The only rentals in controversy are for the year 1932. The court entered judgment and decree of foreclosure for $30,779. The property was sold under execution for $2,000 less than the amount of the judgment, leaving a deficiency judgment of $2,000, for which amount plaintiff claims the rents of 1932 and the appointment of a receiver to collect. [1] I. The defendant L.A. Andrew did not assume to pay the mortgage in question. The main controversy is whether or not Andrew, the receiver, is entitled to the rents of 1932, under his deed. A similar question has been squarely decided by us in the case of Northwestern Mut. Life Ins. Co. v. Gross, 215 Iowa 963,247 N.W. 286. In that case we held that, at the time Andrew took his *Page 1054 deed, he took the rights of his grantor and no more. In that case, as here, Gross, the mortgagor had given a deed of the property in question to Andrew, as receiver. There we said: "He can therefore claim no higher rights in said property than Gross had. In other words, he `stepped into Gross' shoes' as they then existed." The mortgage in question was duly recorded, both as a real estate and chattel mortgage, and, at the time defendant Andrew received his deed from the grantor, he took it subject to the duly recorded mortgage then held by the plaintiff. In the Gross case we also said: "We are aware that the pronouncement we make in this case is squarely contrary to the rule laid down in Schlesselman v. Martin, 207 Iowa 907, 223 N.W. 762, and some other cases in which that case is followed, but, after a reconsideration of the questions involved herein and in the Schlesselman case, we reach the conclusion that the Schlesselman case was wrongly decided, and the same is hereby overruled." So, in the case at bar, Andrew, as receiver, took no higher rights than were held by his grantor, the mortgagor. Under this rule, the grantee of the property in question cannot interpose this defense. In view of such ruling, we believe the judgment of the lower court appointing a receiver was correct, unless the appointment of a receiver was not justified for failure to conclusively show the insolvency of H.E. Smith, the grantor of the Clarion Savings Bank. [2] II. We think the question of the court's right to appoint a receiver, in the absence of a showing of insolvency on the part of the former owner of the real estate, is controlled by the case of American Comm. Sav. Bank of Davenport v. McCammond, 213 Iowa 957,238 N.W. 77, 78. In the case at bar, an execution was issued to the sheriff of Hancock county, whose return showed there was no property of the defendant Smith found in his county. Smith lived in another county, and appellant contends the return does not conclusively prove his insolvency. It is true that, where the title of the property under foreclosure is still in the original mortgagor, it is necessary to show his insolvency before a receiver may be appointed. We have, however, *Page 1055 recognized a different rule in actions where the property is no longer in the name of the mortgagor, and the mortgagee seeks to enforce his rights under the mortgage. In American Comm. Sav. Bank v. McCammond, supra, we said: "It is true that we have held that we will not award receivership to a foreclosing plaintiff unless the insolvency of his debtor be shown. The reason for such rule is that in such a case the plaintiff has adequate remedy at law to collect personally from his debtor and no equitable reason is left why the debtor should be disturbed in the possession of his land. Such rule of equity is of our own making and is intended for the benefit of the debtor. These defendants are neither debtors nor mortgagors. On the face of the rule therefore it has no application to them. If they had assumed the mortgage and thereby had become personally liable therefor, a showing of their insolvency might have been requisite on the part of plaintiff. If solvent, the plaintiff could have recourse to their personal liability. Likewise the intervener could have the same recourse. The question of their solvency or insolvency is quite immaterial herein, either to the plaintiff or to the intervener. No personal remedy against them is available in either event." (Italics are ours.) In view of this rule, it seems unnecessary to conclusively prove the insolvency of the original debtor as a condition precedent to the appointment of a receiver. We believe the action of the lower court in appointing a receiver was correct. Its judgment and decree is therefore affirmed. — Affirmed. KINDIG, C.J., and STEVENS, ALBERT, DONEGAN, ANDERSON, MITCHELL, and UTTERBACK, JJ., concur. EVANS, J., dissents. *Page 1056

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429664/

The plaintiff, as the assignee of C.A. Dillard, on January 28, 1931, filed his petition at law, claiming damages of the defendant in the sum of $20,000.00, caused by the latter's assault upon Dillard. On July 3, 1930, Dillard, while seated in an automobile on a street in Oskaloosa, was asked by the defendant to pay a debt owing to the latter. Dillard told the defendant to get into the automobile and he would go uptown and get the money. Dillard started the car without giving defendant much time to get aboard. After defendant got in and the car had proceeded a short distance, an altercation was started. Neither of the participants, nor the only other eyewitness, differs much in the account of the fight. Defendant testifies that Dillard pulled out a knife and said he was "going to fix" defendant, and then defendant grabbed the knife and took it from Dillard, and that he slapped the latter in the face, causing his nose to bleed. Defendant then left the car, taking with him the knife. Dillard was not a witness. His version of the affair was disclosed in an affidavit, Exhibit 1, to wit: "State of Iowa, Mahaska County, ss. "Affidavit of Charles Dillard. "I, Charles A. Dillard, being duly sworn, depose and say that on or about the 3rd day of July, 1930, I had a controversy with one Walter Moots in the City of Oskaloosa; that Moots got into my car and he made some demands on me for money, and after Moots had made some threats against me I drew a pocket knife from my pocket and tried to scare him out of the car by threatening him with the pocket knife, and that he then struck me with his fist and grabbed my arm to prevent my using the knife; that while I did not intend to strike him with the knife I did want to scare him out of the car; that Moots got out of the car but took nothing from me except the knife with which I had threatened him. *Page 128 "That this statement is made voluntarily by me, and the same is true as I verily believe. "Charles A. Dillard." This affidavit was subscribed and sworn to by Dillard on November 4, 1930. Another witness on behalf of plaintiff testified that he saw defendant hitting Dillard several times in the face and heard him threaten to kill Dillard. He saw no knife. Defendant denied making any threat to kill. John E. Lake, in his behalf as plaintiff, testified that he saw Dillard on the day following the altercation and that the latter had a black eye and his nose was badly swollen. The foregoing is substantially all of the evidence. The items of damages going to make up the $20,000.00 claim were $150.00 for medical attention; $7,500.00 for mental suffering; $7,350.00 for physical suffering; $5,000.00 for exemplary damages. There was no direct testimony to establish any item of damage. The amount of damages suffered was left solely to be inferred from the fact of the injury. At the close of the testimony, the defendant moved for a directed verdict, which was granted. The gist of the motion was that plaintiff had failed to make a case. Appellant assigns as error: (1) The admission of the Dillard affidavit, Exhibit 1; (2) the direction of the verdict. [1] While the appellant has not set out any proposition of law or authorities in support thereof on the error first assigned, we have nevertheless considered the point, and find there was no error in the admission of the exhibit. Plaintiff brought his action as the assignee of Dillard's claim for damages. This written assignment, executed and acknowledged by Dillard, was as follows: "Whereas I am indebted to John E. Lake for a considerable sum of money and have recently obtained additional money from him, now therefore in consideration of the premises and of the sum of One Dollar at this time in hand paid which has been paid to me I do hereby sell, transfer, set over and assign unto John E. Lake all my right, title and interest in and to the proceeds from claim which I have against Walter Moots except the sum of FiftyDollars which I retain, because of injuries sustained by me because of *Page 129 Walter Moots having assaulted and beaten me and I do hereby authorize him to make full and complete settlement of the case and to give a release and satisfaction thereof as fully as I could have done and any release of the said claim by John E. Lake shall be as binding upon me as though I had executed the same myself." (The italics are ours.) The plaintiff stood, as it were, in the shoes of Dillard. He had no higher or greater rights than Dillard. His right of recovery was based solely on Dillard's right of recovery. Any evidence which would have been admissible to defeat Dillard's recovery, were he the plaintiff, instead of Lake, was admissible to defeat Lake. The plaintiff's right of action was not a new one, but was the same right of action which Dillard had until he assigned it to the plaintiff. Where there is such a succession of rights, there is privity between the parties. This being so, the plaintiff was bound by the acts and words of Dillard. The plaintiff claimed not only under, but in the interest of, Dillard, as will be noted by the italicized portion of the written assignment. It is a well settled principle of law that the assignee of a claim or a chose in action is bound by such admissions, made by the assignor, as would have bound the assignor himself. Evidence of such admissions or declarations in relation to a claim is admissible against the assignee in an action between the latter and the party against whom the claim exists. This is true, regardless of the nature of the claim or the instrument assigned, unless it be a negotiable instrument in the hands of a holder for value. The admissibility of such evidence is bottomed upon the general rule of evidence that declarations against the interests of the party making them are receivable against him, and upon the further ground that a purchaser is in privity with his seller and takes the property encumbered with the latter's declarations, and that an assignee must recover through the title of the assignor and succeeds to that title only as it stood at the time of the transfer. Such admissions or declarations, to be admissible, must have been made at a time when the declarant had or owned an interest in the claim or property, which ordinarily means that they must have been made before the assignment. In this case, the assignment was made on September 8, 1930, and the affidavit on November 4, 1930. But it will be observed by the very *Page 130 terms of the assignment that Dillard reserved and retained an interest to the amount of $50.00 in the claim sued upon. The plaintiff was thus suing in behalf of himself and of Dillard, and he was bound by any statements in the affidavit. Plaintiff and Dillard were jointly interested in any recovery against the defendant, and while Dillard was not a party of record, he was a party in interest, and because of the identity of interest with the plaintiff, Dillard's admissions were receivable against the latter. The rule is thus expressed in Section 424, pages 360 and 361, of 22 Corpus Juris: "As a general rule the generally accepted view is that declarations of the assignor of a chose in action, which amount to admissions so far as he is concerned, are competent against the assignee and persons claiming under him." In I Elliott on Evidence, Section 243, the rule is stated as follows: "It is the general rule that the admissions of a party to the record, or of one identified in interest with him, are admissible against such party. This rule applies in general, where such party to the record has any interest in the suit or action, whether large or small, and however it may appear * * *." (Writer's italics.) The rule is well expressed by Justice Richardson in Snelgrove v. Martin, 2 McCord, * 241 (S.C.), in the following language: "I take the general rule of the common law to be, that wherever the act or declaration of a party then interested, would be evidence against himself, such will be evidence against his subsequent assignee, or party claiming under him." Others of the numerous authorities laying down the same rule are I Greenleaf on Evidence, 15th Edition, Section 190; Stephen's Digest on the Law of Evidence, Article 16; McCornick v. Sadler,47 P. 667 (Utah); Westbury v. Simmons, 35 S.E. 764 (S.C.); Anderson v. Lee, 76 N.W. 24 (Minn.); Scott v. Coleman, 5 Littell (Ky.) 349, 15 American Decisions 71; Jones on the Law of Evidence, 3rd Edition, Sections 237, 238 and 248; Kelley v. Schupp, 18 N.W. 725 (Wis.); Hayward Rubber Company v. Duncklee,30 Vt. 29, 39; 1 R.C.L., Paragraph 20, pages 484 and 485. See also Goldstein v. Morgan, 122 Iowa 27. *Page 131 An analogous holding has been made by this court with respect to the admissions of the vendors of real and personal property made prior to the sale in disparagement of declarant's title. See Stephens v. Williams, 46 Iowa 540, 543; Nodle v. Hawthorn,107 Iowa 380; Taylor v. Lusk, 9 Iowa 444; Ross v. Hayne, 3 G. Greene (Iowa) 211; Keystone Manufacturing Company v. Johnson, 50 Iowa 142; Finch v. Garrett, 102 Iowa 381. [2] With respect to the second assignment of error, the question is closer. It is purely a question of fact, and under the whole record, it is our judgment that the direction of the verdict for the defendant was right. The participants in the affray differ little in their version of what took place. There was no justification for the attempted use of the knife by Dillard. He states that he drew the knife with the thought of simply scaring the defendant. What he did was thus not in self-defense and was not justified by the conduct of the defendant. Dillard was thus the aggressor, and an aggressor who the defendant might reasonably believe was a dangerous one. The defendant disarmed him, and save for the few blows or slaps to Dillard's face, did nothing more than disarm him. If Dillard received the slight injuries complained of in being disarmed, there can be no liability on the part of the defendant, unless the defendant was excessive in his defense. We do not believe that the jury could have rightly found that what the defendant did was more than self-defense. This being our judgment in the matter, we do not determine whether the question of the amount of damages should have been submitted to the jury. However, there was no direct evidence of any damages. The physical injuries were slight, and the aggressor in an encounter of this kind has little warrant to ask recovery for mental suffering, when that suffering is merely the humiliation of one who couldn't successfully finish a fight which he had started. The judgment is, therefore, — Affirmed. STEVENS, C.J., and EVANS, FAVILLE, De GRAFF, ALBERT, and KINDIG, JJ., concur. *Page 132

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429666/

The individual parties plaintiffs and defendants, with others, organized the defendant Farmers Union Exchange, as a corporation, adopted articles of incorporation, and had them recorded. The articles provided that the private *Page 372 property of the members should be exempt from liability for corporate debts. There is no proof or serious claim that the Farmers Union Exchange operated otherwise than as a corporation, or that it was defectively organized. Plaintiffs' contention, in substance, is that they were directors of the corporation and, by instruction of the stockholders, borrowed funds to carry on the business; that thereby defendants are estopped to deny their liability to contribution. At a meeting of the proposed stockholders, at which the officers and directors were selected, a motion was, according to the minutes, carried, "that we use the money paid in by the stockholders to buy grain with, and give note for the purchase price of the elevator and invoice goods." An elevator and its contents were purchased, and notes of the corporation given for the price. Losses were sustained in the conduct of the business, resulting in a large bank overdraft, for which the plaintiffs gave their personal notes. There is testimony that, at the meeting at which it was decided to purchase the elevator, "we did not have any money, but they were to satisfy by a note, and were authorized to sign the note ** * We were directed to purchase the equipment of the elevator at about $4,000, and that was also to be paid for by a note; and after the money which might be paid in for capital stock to run the business had been exhausted, we were to borrow money; and this was in the presence of all of the 60 people. The capital stock of $8,000 was soon exhausted in the conduct of the business; and the board of directors, acting under the direction of this meeting, borrowed money. I do not know just how much, but I was at one meeting when I know they were over $22,000 in debt. It was a stockholders' meeting. They discussed this as an overdraft, and had a note afterwards." One witness says, over objection, that he would not have signed the notes "if the members and stockholders then present had not directed it, and would indemnify and hold me harmless against loss by doing so." There is no plea or evidence that defendants made any promise to indemnify. Different versions are given of the reason which actuated plaintiffs in giving their individual notes. We need not detain ourselves with a discussion of them. The petition alleges: "That, in the execution of both of said notes, said parties *Page 373 were simply loaning their names to said corporation as an accommodation to the Farmers Union Exchange, and received no valuable consideration therefor; and that the debt which was evidenced by the last note of $18,000 was the debt of the Farmers Union Exchange, and not the debt of the parties who executed said note. * * * That, before the execution of the * * * note, * * * at a meeting of the stockholders, and of which all defendants were legally notified, and said stockholders' meeting legally called, at said meeting, the plaintiffs who executed said notes were directed so to do by the stockholders of said alleged corporation, and were directed to go on with the business, and were directed by the stockholders of said corporation to incur the indebtedness which resulted in an overdraft upon the bank, * * * and were authorized by said stockholders of said corporation to incur the indebtedness of $18,000 * * * That, in the execution of said note and in the creation of said indebtedness, same was done by and with the direction of the stockholders of said corporation at a regularly called meeting thereof. * * * the defendants should pay $80 per share * * * that the balance of said indebtedness, after deducting the amount of $80 per share that should be paid by the defendants upon their respective shares of stock, to be paid by prorating said balance between the plaintiffs and defendants in accordance with the amount of stock held by the plaintiffs and defendants." It is not proved or argued that defendants agreed to become personally liable for the debts to be incurred, or that they authorized the plaintiffs to become personally liable, or agreed that the stockholders should make the corporate business or debts their own. The authority to the directors was to them as officers of the corporation, to incur for the corporation corporate indebtedness, and to execute corporate obligations. There is nothing in the proof to support the allegation that the stockholders should, besides paying $80 per share for the stock, prorate among themselves the balance of the corporate indebtedness, in proportion to their stock or otherwise. Plaintiffs' proposition is that the court erred in holding that the appellees are not estopped in being required to contribute their proportion of the amount paid for them by plaintiffs at their instance and request in the conduct of the business. The debt in question is a corporate debt (so alleged), incurred in corporate business. The *Page 374 corporation is an entity distinct from its stockholders. The purpose of doing business under the form of a corporate organization is to avoid individual liability of the stockholders. If a stockholder (or, for that matter, a director), by voting to authorize the officers of the corporation to enter into an obligation for the corporation, — to obligate the corporation, — thereby becomes liable individually for the corporate obligations so incurred, it is obvious that the law which exempts the stockholders from personal liability for corporate indebtedness is void of any meaning or force, — corporate organization becomes an empty form. The stockholders authorized the incurring of corporate liability, not individual liability. They agreed that the corporation would be bound thereby, not that they as individuals would be bound. In denying individual liability, they are in no wise acting inconsistently with their conduct in consenting to and authorizing corporate liability. The essence of equitable or quasi estoppel is wanting. 21 Corpus Juris 1202; 2 Pomeroy's Equity Jurisprudence (4th Ed.), Section 805 et seq.; 10 Ruling Case Law 688. — Affirmed. ALBERT, C.J., and STEVENS, De GRAFF, and WAGNER, JJ., concur.

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07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429667/

[1] Appellees, J.H. Bagley and Stella A. Bagley, own the Northeast Quarter of the Northwest Quarter of Section 32, and two forty-acre tracts south and southeast thereof. Appellants, Lou Petermeier and Edward Petermeier, own the South one half of the Southwest Quarter of Section 29. The east forty acres of the Petermeier eighty lies directly north of and adjoins the Bagley forty, first above described. Along the west line of said sections is a road, known as Melbourne Highway. For many years the only means of access to this highway from the Bagley land was a twenty-foot right of way through the Petermeier land. Prior to 1927, a railroad line ran in a northwesterly direction diagonally through the southwest corner of the Petermeier land and across Melbourne Highway. This left a triangular tract of a few acres in the southwest corner of said land, separated from the main body. *Page 507 Originally the right of way or lane started at the northwest corner of the Bagley forty and ran west along the south twenty feet of the Petermeier land until it reached the railroad. The right of way did not cross the railroad but swung to the north-west and ran beside the railroad diagonally to Melbourne Highway. The record history of this right of way starts in 1891. Siebert, then the owner of the Petermeier eighty, deeded said twenty-foot strip to A. Poffenberger (the Bagleys' remote grantor) for a stated consideration of $55, "* * * for road purposes. To revert back to said farm [the Petermeier eighty] when ceased to be used for said purposes." About the same time Siebert conveyed the Petermeier eighty to the Petermeiers' remote grantor "subject to a right-of-way 20 feet in width [describing it] for road purposes, as per contract with A. Poffenberger, to revert to grantors when ceased to be used for said purposes." A similar exception appears in each subsequent deed to the Petermeier land, except the deed to the Petermeiers, who acquired their title in 1917, in partition proceedings following the death of their mother, the last previous owner. All the foregoing instruments were recorded. The right of way was fenced on each side and was regularly used by occupants of the Bagley land. In 1927 the railroad abandoned the line intersecting the corner of the Petermeier farm and the railroad right of way reverted to said farm. At that time Joe Halter was in possession of the Bagley farm, which was then owned by his wife and sister-in-law. Halter testified one of the Petermeiers suggested that the west end of the lane (right of way) be changed and placed at the south side of the Petermeier eighty, which "would be better for him and better for us." Halter told him "it was immaterial to me where the road was, just so we had a road there." Shortly thereafter the diagonal part of the right-of-way fence was changed by the Petermeiers so that the lane, after reaching the abandoned railroad line, continued straight west across it to Melbourne Highway. This made the lane straight and somewhat shorter, and consolidated with the Petermeier eighty the triangular tract, which theretofore had been cut off therefrom. *Page 508 For most of its length the right of way or lane remained as established in 1891. In 1935 Highway 64 was constructed. That highway runs southwest across the Bagley land and intersects Melbourne Highway one-half mile south of the Petermeier right of way. However, the use of the right of way, as changed, continued until 1939, when the Petermeiers closed the lane to traffic and removed the eighty rods of fence which they had previously maintained on the north side thereof. Thereafter, the Bagleys brought this action. The foregoing is a recital of the facts necessarily found by the trial court, which we regard as essential to the decision. In an action at law tried to a court such findings have the effect of the verdict of a jury. It is sufficient to say the same are supported by substantial evidence. Hence we adopt them. [2] Appellants' principal argument is predicated upon the theory that the right of way became a way of necessity which terminated in 1935, when the necessity therefor was terminated by the construction of Highway 64, which afforded the Bagley land another outlet. The principle relied upon is that where a tract of land, separated from the highway by other lands of the grantor and third persons, is conveyed, there arises, by implication, in favor of the grantee, a way of necessity across the premises of the grantor to the highway, which easement terminates on the termination of the necessity by the construction of a road affording the grantee other reasonably convenient outlet. Fairchild v. Stewart, 117 Iowa 734, 89 N.W. 1075; Rater v. Shuttlefield, 146 Iowa 512, 125 N.W. 235, 44 L.R.A., N.S., 101; 17 Am. Jur. 959, 960, section 48. In this case appellees' remote grantor secured the Bagley land from one source and the right of way by grant and for a consideration from a different source. The right of way was an easement, permanent in nature, appurtenant to the Bagley land. It subsequently passed to appellees through mesne conveyances of the Bagley land. It was not a way of necessity. Cassens v. Meyer,154 Iowa 187, 134 N.W. 543; Thul v. Weiland, 213 Iowa 713,239 N.W. 515; Dawson v. McKinnon, 226 Iowa 756, 285 N.W. 258; Levine v. Chinitz, 233 Iowa 212, 8 N.W.2d 735. *Page 509 Appellants concede the right of way was not originally a way of necessity, but contend it became such in 1927 when appellants straightened the west end thereof. Thereafter, say appellants, the possession and use by the owners of the Bagley land of the right of way was based upon necessity, and was permissive only, and the use and maintenance thereof, from 1927 to 1939, by said owners and appellants respectively, would furnish no basis for a claim of right to continue such use after the construction of Highway 64 in 1935. We do not agree with this contention. Although neither the owner of the dominant estate nor the owner of the servient estate may ordinarily change the location of all or part of a right of way, established by grant, without consent of the other, the location may be changed by mutual consent of both parties and such consent may be implied from their acts and acquiescence. 17 Am. Jur. 988, 989, sections 87, 88; 28 C.J.S. 733, 763, 764, sections 65c, 84, 85. Appellants, for their own convenience, substituted the new (west) part of the right of way for the old. They fenced it and maintained the fence for twelve years. It may be assumed the recited conversation between Joe Halter and Petermeier was not legally binding upon the owners of the Bagley land and that the latter did not expressly agree to the change. However, they acquiesced in the change made by appellants and used the entire right of way, including said substituted portion, for twelve years. Though not legally obligated to do so, they, in effect, consented to accept the substitute. Robbins v. Archer, 147 Iowa 743,126 N.W. 936. Their use was not merely permissive. Nor was it based upon necessity. It was in consideration of and based upon the rights granted the Bagley land by the original grant to Poffenberger. [3] Just when the acts and acquiescence of the parties became equivalent to an agreement, so that neither thereafter could have undone the change, need not be determined. Dickinson v. Crowell,120 Iowa 254, 94 N.W. 495. In any event, appellees' rights in the easement, as modified, became fixed after ten years' acquiescence by both parties in the change. See Thompson v. Schappert,229 Iowa 360, 294 N.W. 580. *Page 510 The conclusion of the trial court that the owners of the Bagley land have the same rights in the modified right of way as they formerly had in the original grant is sustained by the record. Appellees' motion to dismiss the appeal or to strike certain divisions of appellants' brief is overruled. — Affirmed. All JUSTICES concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429668/

This litigation grew out of the following facts: In 1915, C.L. Voss was the owner of 200 acres of land in Crawford County, Iowa. He secured a loan thereon from plaintiff in the sum of $12,000, evidenced by two promissory notes, dated November 1, 1915, and due March 1, 1921, with 6 per cent interest. To secure the same, he executed in due form a mortgage on said tract of land, bearing even date with the promissory notes, which mortgage was duly entered of record. On March 1, 1921, an extension was made on said loan for a term of five years from that date. In the intermediate time, however, and on February 9, 1920, this land was deeded by Voss, by warranty deed, to August Brensel, and Brensel assumed and agreed to pay the aforesaid notes and mortgage. On June 4, 1919, Brensel contracted to sell this land to William C. Miller for $43,000, and Miller assumed and agreed to pay *Page 810 the $12,000 mortgage on the land. The last payment under this contract was to be made on March 1, 1930. Parenthetically it may be said at this point that, after Miller made some payments of interest on plaintiff's $12,000 mortgage, he rued his bargain, and by agreement with Brensel, the contract was canceled, and Miller and wife executed a quitclaim deed of this land to Brensel. Prior to the making of this quitclaim deed, and in the early part of 1921, when the Burlington Savings Bank mortgage was about to become due, Miller made an application to the Peters Trust Company of Omaha for a loan of $12,000, to take up the existing loan held by the Burlington Savings Bank. This application was signed and sworn to by William C. Miller. Brensel did not sign the same, but stated in the application that he and his wife would join in the mortgage. This application was made in November, 1920. The same was submitted to the Prudential Insurance Company of America (which, for brevity, will be hereinafter referred to as the Prudential), and the application was accepted. A detailed history of this transaction is necessary, for the reason that on it rests largely, if not wholly, the decisive point in the case. The Peters Trust Company, the representative of the Prudential, was furnished with a properly executed note and mortgage on this land, signed by Brensel and wife and Miller and wife, payable to the Prudential. The same was duly recorded, and an abstract furnished, apparently showing on its face that the mortgage was the first lien on the land. This was accomplished by a release of the mortgage of the Burlington Savings Bank, which is confessedly a forgery. When the mortgage and notes now held by the Prudential were submitted to the Peters Trust Company, they were accompanied by a writing addressed to the Trust Company, signed by Miller and Brensel, which reads as follows: "Please deliver to my agent, Bank of Denison, Denison, Iowa, the proceeds of my loan for $12,000.00 secured by mortgage on my farm [then follows a description of the land] after paying the existing loan of $No to and oblige." Printed thereon also were these words: "Unless this order is properly signed and returned with the bond, the check for proceeds of the loan will be made payable to the borrower, after payment of any existing liens." *Page 811 At this point it may be said that Brensel, by way of defense, claims that he is a German, and cannot read or write English, and that his signature was procured to this order by fraud and false representations. The evidence in the case, however, under the well recognized rules, does not support this contention, and we will give no further attention to this claim, except for its evidential value. See, however, Nesmith v. Platt, 137 Iowa 292;Exchange Nat. Bank v. McCaffery, 175 Iowa 451; Jenkins Lbr. Co.v. Cramer Bros., 182 Iowa 161; Lynch v. Kerslake, 186 Iowa 983;Parsons v. Rinard Grain Co., 186 Iowa 1017; Stephenson Petersonv. Svenson, 187 Iowa 802. In pursuance of this order, the proceeds of this loan, less commission and incidental expenses, were credited by the Peters Trust Company to the Bank of Denison, and the Bank of Denison subsequently drew the proceeds thereof. It failed to pay the Burlington Savings Bank loan, and in no way accounted to either Miller or Brensel therefor. It is conceded that the Bank of Denison was a private bank, owned and controlled by Kuehnle Voss. Aside from what is noted as to the defense made by Brensel, these facts are admitted by all parties, or are abundantly proven: The extension of the loan to the Burlington Savings Bank by Voss was made after he had executed a warranty deed of the land to Brensel; hence he was in no position to become a party to such extension. As stated, the release of the Burlington Savings Bank mortgage was confessedly a forged release. So far, then, neither the Prudential, Brensel, nor Voss had any defense as against the Burlington Savings Bank mortgage and note. We hold this because the court so found, and the Prudential does not urge or argue the incorrectness of the decree so far as it is held that the Burlington Savings Bank mortgage was the first lien on the land, and the order and foreclosure thereof as against all parties. The real bone of contention left in the case is whether or not the Prudential is entitled to a judgment against the Brensels. Briefly stated, the defense of the Brensels is that, in all of the transactions between them and the Prudential, Kuehnle Voss were the agents of the Prudential, not agents of the borrower. They claim, therefore, that, when the money was paid to Kuehnle Voss, the Prudential was simply paying it to its own agent, *Page 812 and if they failed to account for the same, or embezzled it, the loss was on the Prudential, and not on the borrower. The Brensels say that the mortgage and note were without consideration. The question for determination, therefore, is whether Kuehnle Voss were acting as agents of the borrower or the lender, at the time this money passed into their hands. A large amount of evidence was introduced on this proposition, showing the history of the dealings between the Prudential and Kuehnle Voss, covering a number of years, commencing with 1909, and extending down to about the time of the trial of this case. It is to be remembered that the Prudential is a New Jersey corporation, with its home office at Newark, New Jersey; that the Peters Trust Company is a corporation with its principal place of business at Omaha, Nebraska; that the Bank of Denison (Kuehnle Voss) was situated at Denison, Iowa; and that the Brensels were the owners of a farm near Denison. Much of the evidence introduced along this line was correspondence between Kuehnle Voss and the Prudential or the Peters Trust Company. Among other exhibits introduced was a contract between Kuehnle Voss and the Prudential, under date of February 14, 1913, which, in a general way, tends to mark out the relations between them. It is therein stated that the first parties (Kuehnle Voss) desired to submit applications for loans upon the security of mortgages on lands located in the state of Iowa, and that the Prudential was willing to receive applications and make loans where the applications were approved by it. The contract then proceeds to describe the method in which these loans were to be submitted, providing for an abstract of record, attorney's report, and making numerous other provisions, the purpose of which seems to be to require Kuehnle Voss to pay all outstanding taxes, loans, and incumbrances upon the property, and take a receipt from the borrower for the balance due, and to forward the same, with the mortgage, duly recorded, notes, and abstract showing the mortgage to be a first lien on the property, to the Prudential; and the money was then to be paid to Kuehnle and Voss. Kuehnle Voss at no time received any commission or payment for services from the Prudential. The contract further provides that, in all transactions arising out of the performance of this agreement, the party of the first part was acting and would act as agent of the borrower *Page 813 in negotiating said loans, and in no instance was acting or was authorized to act as agent of the Prudential. There are numerous other provisions in the contract which need not be set out. It is the claim of the defendants that the course of dealing between Kuehnle Voss and the Prudential shows on its face that, notwithstanding the provisions of the contract, Kuehnle Voss were the agents of the Prudential. Where the 1. PRINCIPAL dispute is, as it is in this case, whether the AND AGENT: person is the agent of the borrower or the the lender, a stipulation in the contract between relation: the lender and the intermediary as to this lender and relationship is not conclusive, but it is borrower. permissible to show by testimony just what the course of business was between the lender and the intermediary, and if such evidence shows, as a matter of law, that the relation of principal and agent did in fact exist, such relationship cannot be disguised by any form of contract. The court will ascertain the facts as they actually are, and therefrom determine the true relationship between the parties. Youtsey v. Union Cent.Life Ins. Co., 191 Iowa 1120; Donaldson v. Kenegy, 197 Iowa 893, 898; Trotter v. Grand Lodge, 132 Iowa 513; Harrison v. Legore,109 Iowa 618; McLean v. Ficke, 94 Iowa 283, 289. We have reviewed the evidence with care, and are satisfied, under the showing here made, that, notwithstanding the provisions of the contract above referred to between Kuehnle Voss and the Prudential, their relation was that of principal and agent. We may then start with the assumption that, in the making of this loan, the relation between the Prudential and Kuehnle Voss was that of principal and agent. This, however, does not solve the problem before us. The question is, when the money was delivered by the Peters Trust Company to Kuehnle Voss, were Kuehnle Voss then acting as agents of the Prudential, through the Peters Trust Company, or did they, in the receipt of this money, receive the same as the agents of the borrower? Could the borrowers by this order make Kuehnle Voss their agents to receive this money on the final closing of this loan? The law is universally settled that primarily an intermediary cannot be the agent of both parties. The exception to this rule is that, where both parties are fully advised as to all of the *Page 814 facts, and each consents that the intermediary 2. PRINCIPAL may act as agent for the other, such agency is AND AGENT: valid. We have recognized this doctrine in the Seymour v. Shea, 62 Iowa 708; Morey v. Laird, relation: 108 Iowa 670; Merrill v. Sax, 141 Iowa 386; dual agency Larson v. Thoma, 143 Iowa 338. See, also, 2 for borrower Corpus Juris 712. Where the interest of the two and loaner. principals is not conflicting, and loyalty by the agent to one of them is not a breach of his duty to the other, then the intermediary may act for both parties. 2 Corpus Juris 713. The evidence in the case shows that this money was paid by the Peters Trust Company, representing the Prudential, to Kuehnle Voss by reason of the written order above set out, signed by the borrowers, directing the Peters Trust Company to pay the same to Kuehnle Voss, as the agents of the borrower. The testimony shows that this money would not have been thus paid, had it not been for the said written order. Under the general rule of law above referred to, we see nothing to prevent the borrowers from legitimately making Kuehnle Voss the borrower's agent, to receive this money for them. By so doing, no breach of duty or loyalty to the Prudential occurred. See Youtsey v. Union Cent.Life Ins. Co., supra; Hedges v. Holland, 203 Iowa 1149. The fact that Kuehnle Voss may have afterwards embezzled this money, and failed to apply it on plaintiff's mortgage, is in no way controlling in determining the question we have before us. The evidence shows that, had it not been for this receipt, the borrowers would not have paid any money to Kuehnle Voss, but would themselves have applied it directly on the satisfaction of plaintiff's mortgage. The loss having been brought about by reason of the acts and conduct of the borrowers, they must, therefore, be the losers. One other question is discussed, as bearing on this proposition, and that is that Kuehnle Voss furnished to the Prudential an abstract of title which was false, in that it showed the Prudential mortgage to be the first lien on the property, and disposed of plaintiff's mortgage by showing a satisfaction thereof which it is conceded never existed, and the Burlington mortgage was never in fact satisfied. The relation here is somewhat peculiar. The borrower, of course, was required to furnish an abstract. The abstract was made by Kuehnle Voss, and falsified *Page 815 by them. If Kuehnle Voss are to be treated as agents of the borrower in the making of this abstract, then, of course, by furnishing a false and fraudulent abstract they perpetrated a fraud upon the lender. If, on the other hand, Kuehnle Voss are the agents of the lender in furnishing this abstract, then a fraud was perpetrated on the Prudential by its own agent, and it should not be permitted to complain. There is much in the correspondence between the Prudential and Kuehnle Voss to the point that the Prudential was complaining about the kind of abstracts that were furnished by Kuehnle Voss, even threatening at times to sever their relations if this matter were not rectified; but, as we view this case, this question is not controlling. It is patent on the face of the record that, if Kuehnle Voss had furnished an accurate abstract of title, it would have shown the plaintiff's mortgage unpaid; and the evidence further shows that, had such been the fact, the Prudential, through the Peters Trust Company, would have paid the plaintiff's mortgage directly, and therefore no loss would have occurred, because no money would have passed into the hands of Kuehnle Voss. The controlling point, however, as we view it, is that the money in the instant case was paid out to Kuehnle Voss wholly because of the written order signed by the borrowers; and by so doing, the Prudential paid the money to the agent of the borrower, and not to its own agent. This case is materially different from the case of BurlingtonSav. Bank v. Prudential Ins. Co., 206 Iowa 475, in the following particular: In that case, reliance was put upon a receipt, signed by the borrower, certifying that: "Kuehnle Voss have made full settlement with me for the loan I made with the Prudential Insurance Company of America, for twenty-four thousand dollars." The opinion in that case, however, holds that such receipt was procured by fraud, and therefore void. In the instant case, we have the written direction of the borrower to the Trust Company, directing the delivery of the proceeds of the loan to the Bank of Denison (Kuehnle Voss), which is in no way successfully attacked, but is a valid and binding instrument; and therein lies the difference between these two cases. *Page 816 The action of the district court in entering judgment of foreclosure against all other parties defendant is affirmed. As to the cross-petition of the Prudential against the Brensels, the district court erred in dismissing the same. —Affirmed in part; reversed in part. STEVENS, C.J., and EVANS, De GRAFF, and WAGNER, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429669/

To the petition of plaintiff the defendant interposed two challenges: (1) by motion to strike certain allegations, and (2) by a demurrer. From the rulings adverse to plaintiff, this appeal is taken. The pleaded facts pertinent and material on the consideration of this cause are as follows: "That, on July 2 and 3, 1921, the plaintiff was a passenger in a certain automobile owned by the defendant, 1. NEGLIGENCE: Gilman H. Wisner, and then being driven and operation of operated solely by Carroll Crockett, a half automobile: brother of Gilman H. Wisner, who was using and liability of operating the said automobile by and with the owner. consent of the owner thereof, *Page 1390 and with his knowledge; and the automobile was being driven on the public streets and highways in and about the town of Eldora by said Carroll Crockett, with the plaintiff and others as his guests and passengers, and at his invitation. That the defendant, Gilman H. Wisner, for a long time prior thereto had been in the habit of permitting said Carroll Crockett to drive, use, and operate automobiles that belonged to the defendant, Wisner, and to drive other persons as passengers therein, and the said defendant, Wisner, was fully aware of these things' having been done by the said Crockett and that said Crockett was doing so on July 2 and 3, 1921. That, while the automobile was being driven and operated by said Crockett, and without the interference or direction of any other person, during July 2 and 3, 1921, he drove the same onto and over the public highway west and north of the town of Eldora at a high and dangerous rate of speed, and thereby caused the automobile to run into a ditch and be wrecked, and the occupants were thrown out and injured, as hereinafter stated." We may first briefly note the appellant's contentions bearing on the motion of defendant to strike certain matters alleged in the petition. The trial court sustained a motion 2. PLEADING: to strike this sentence: motions to strike: "Carroll Crockett, the driver of the immaterial automobile, lost his life by reason of said allegations. accident." We approve the ruling. The allegation is immaterial, and does not constitute any part of the cause of action. This was the primary ground of the motion. The alleged matter was an incident of the accident, and would probably find lodgment in the proof upon the trial of the cause. It was not a causative fact. The court also struck from the petition certain paragraphs making reference to the fact that the defendant was the owner and holder of a certain policy of insurance and indemnity issued by the Traveler's Indemnity Company. This matter was properly stricken, as it had no relevancy to the pleaded cause of action. We now pass to the ruling on the demurrer and the grounds upon which said demurrer is predicated. It is therein alleged: (1) That the petition shows that the injuries to plaintiff, if any, were caused by the negligence of Carroll Crockett, and not by *Page 1391 the negligence of the defendant, Wisner; (2) that there is no showing in said petition that said Carroll Crockett was the employee or servant of the said Wisner or a member of his family, or that he was transacting any business on behalf of the said Wisner; (3) that Section 12, Chapter 275, of the Acts of the Thirty-eighth General Assembly of Iowa (Section 5026, Code of 1924), does not create liability on the part of the owner of a car for the negligence of one who is permitted to use his car, in the absence of the relationship of master and servant or employer or employee, or where the user of the car is not transacting business for the owner of the car, or is not a member of the household of the owner; (4) that, if said section of the Code attempts to create a liability upon the owner of a car who permits an adult person to operate his car, in the absence of relationship of master and servant or employer and employee, or creates and imposes a liability where the user of the car is not transacting the business of the owner, or is not a member of the household of the owner, then said section is unconstitutional, for the reason that said statute attempts to take the property of the owner without due process of law, in violation of Section 9, Article 1, of the Constitution of Iowa. It may be observed that the statute in question, as originally enacted, is written in one section; but in the Code of 1924, the provision relating to the age limit of an operator is in one section and the provision relating to liability for damage is in another. The sections read as follows: "Sec. 5025. No person under fifteen years of age shall operate or drive a motor vehicle by permission from the owner of the car unless such person be accompanied by a person of mature years." "Sec. 5026. In all cases where damage is done by any car driven by any person under fifteen years of age and in all cases where damage is done by the car, driven by consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage." The legislature in the enactment of the law recognized that an automobile is a dangerous instrumentality. Upon this theory, the police power of the state may be exercised, and it is broad enough to make the owner of an automobile liable for injury *Page 1392 and damage caused through the negligent use of a car by a person who has the consent of the owner to use it. Stapleton v.Independent Brew. Co., 198 Mich. 170 (164 N.W. 520, 1918A L.R.A. 916). See note in Wolf v. Sulik, 93 Conn. 431 (4 A.L.R. 356). If the constitutionality of a statute involves two possible interpretations, a court should adopt that construction which upholds its constitutionality. 6 Ruling Case Law 78. The statutory provisions governing the situation disclosed by the pleadings do not attempt to prescribe a liability on the owner of a car whether driven with or without his consent. It is obvious, if damages result from the use of an automobile driven by a person without the owner's consent, that the owner would not be liable, and a statute which attempts to fix liability on such owner without reference to his consent in the operation of the car, would result in taking his property without due process of law. We have heretofore construed the provisions of this statute. No liability on the part of the owner, independently of the negligence of the driver, is created by the statute applicable to the pleaded facts. The liability depends upon two things: the consent of the owner to the use of the car by the driver, and second, the negligence of the driver. Maine v. Maine Sons Co.,198 Iowa 1278. We have also held that an allegation of ownership carries with it an inference of law: to wit, that the car was operated by the owner, or, if by someone else, that it was with the owner's consent. This is a mere inference, and is recognized as a weak one, but sufficient to compel the owner to identify those operating the vehicle and explain by what authority, if not his own, the car was operated. Halfpap v. Gruis, 199 Iowa 757. See, also, Rowland v. Spalti, 196 Iowa 208; Mooney v. Canier, 198 Iowa 251. We must differentiate between a matter of pleading and the proof offered upon the trial to sustain a judgment. Proof of ownership of an auto per se imposes no civil liability on the owner for damages resulting from the negligence of some other person in the use thereof. The statute under consideration (Section 5026, Code of *Page 1393 1924) was reviewed in Maine v. Maine Sons Co., supra. It is there written: "This statute merely says that the owner of the car shall be liable for the negligence of one who is using the car with his consent. * * * The statute defines a new relation or situation of the parties, where a liability on the part of one for the negligence of the other shall exist. In effect, it makes the one who uses an automobile with the consent of the owner, the agent of the latter. * * * As the principal or employer is not liable for every tortious or negligent act of one who is his agent or employee, but only for those committed while the latter is engaged in the employment or agency, so it has been held, under the statute, that, where the owner has consented to a particular use of his car, the negligence of the driver, while using the car for some purpose of his own, and beyond or outside the terms of the consent given, will not render the owner liable. Rowland v.Spalti, 196 Iowa 208; Curry v. Bickley, 196 Iowa 827." It is thus seen that the statute in question applies only when the person in possession and operating the automobile is acting with the consent of the owner. The latter has the right to prove the nature and limitations of that consent. In brief, the theory of legal liability does not find application regardless of the surrounding facts and circumstances. Did the petition in the case at bar state a cause of action? We answer in the affirmative. The petition avers the ownership of the car and the consent of the owner to its use by the driver, whose negligence, as alleged, resulted in damage to the plaintiff. This stated a prima-facie case. Plaintiff having elected to stand on his petition, the judgment entered against the plaintiff dismissing the cause with costs is — Reversed. FAVILLE, C.J., and STEVENS and VERMILION, JJ., concur. *Page 1394

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429840/

This is the second presentation of this case to this court. SeeClinton v. Des Moines Music Co., 223 N.W. 882. The defendant was a corporation, engaged in selling, among other things, musical instruments, and the plaintiff was employed as a salesman, under the following contract: "November 1, 1927. "Mr. Henry Clinton, "Care Des Moines Music Co., "Des Moines, Iowa. "Dear Mr. Clinton: "Relative to our conversation covering the new working arrangements, please be advised that the following constitutes an agreement between the Des Moines Music Co., Inc., and yourself for a period of twelve months dated October 25th, 1927. "The Des Moines Music Co., Inc., to pay you forty dollars per week as a drawing account. An allowance of one per cent. of the net sales to cover car expenditures with a maximum of twenty-five dollars per month. Your sales quota on this basis at twenty-fivethousand dollars ($25,000.00) net. "$26,000.00 to $40,000.00 net, 5 per cent. additional. "$40,000.00 and over, net, 7 per cent. additional. "The above agreement can be cancelled by either party upon thirty days' written notice. *Page 638 "Trusting that the above agreement will prove mutually beneficial. "Yours very truly, "Des Moines Music Co., Inc., "[Signed] Theo Hohtanz, Vice Pres. "[Signed] H. Clinton." (Italics by the court.) The plaintiff continued to work under this contract until February 4, 1928, during which time he had made sales in the aggregate of $11,028. It is claimed by the plaintiff that, on January 24, 1928, the defendant breached the contract, by reason of the defendant's refusal, as is claimed by the plaintiff, without justification, to allow a commission of $5.00 on a $500 sale reported by the plaintiff and accepted by the defendant. On account of this refusal on the part of the defendant, plaintiff, on January 4, 1928, tendered his resignation in writing, in the following terms: "Jan. 24th, 1928. "Mr. Theodore Hohtanz, "Des Moines Music Co., "Des Moines, Iowa. "Dear Sir: "Please accept my resignation effective February 24th, 1928. "Yours truly, "[Signed] H. Clinton." Later, on February 1, 1928, plaintiff wrote a letter amplifying his letter of January 24th. This was followed by a peremptory discharge by the defendant of the plaintiff on February 4, 1928. The case turns largely on three points: First, what was the legal effect of the plaintiff's written resignation, tendered on January 24th; second, what was the legal effect of the defendant's breach of contract on January 24th in denying the commission, and on February 4th in the peremptory discharge of the plaintiff; and third, if the contract was terminated through the fault of the defendant, what was the measure of the plaintiff's recovery? *Page 639 I. What was the legal effect of the plaintiff's written resignation, tendered on January 24th? Under the terms of the contract of November 1, 1927, the employment had an absolute limitation of twelve months after October 24, 1927; but in addition thereto, it reserved to each of the parties the definite right to terminate the contract on thirty days' notice. Plaintiff's letter of January 24th cannot be construed otherwise than as an election on his part to terminate the contract February 24, 1928. II. If the defendant breached the contract on January 24th by failure to pay the commission which the plaintiff demanded, the plaintiff was not bound to cancel the contract on that account. He might have continued to work, and reserved his right to recover, if possible, that item of compensation at a later date. On the contrary, however, he elected to avail himself of the thirty-day cancellation clause in the contract, by serving a notice on January 24, 1928. Furthermore, the defendant's peremptory discharge of the plaintiff on February 4th did not deprive the plaintiff of his right to recover under the terms of his contract for the thirty days following January 24, 1928, or the disputed $5.00 commission, if properly proven. III. We now come to a consideration of the measure of plaintiff's recovery. The court instructed the jury, in substance, that the plaintiff was entitled to recover: First, cash at the rate of $40 per week up to February 24, 1928; second, 1 per cent of the net sales, to cover car expenditures; third, a 5 per cent additional commission for all net sales made up to and including February 24, 1928, in excess of $2,083 plus per month, this being the monthly ratio of a $25,000 minimum net amount of sales for the twelve months covered by the contract. In other words, the court construed the words "your sales quota on this basis at twenty-five thousand dollars ($25,000.00) net" to mean that, upon sales made month by month in excess of one twelfth of $25,000, the plaintiff is entitled to 5 per cent commission, additional to all other sums of payment, and this regardless of whether a total of $25,000 net in sales has been made. On this presentation to this court, it is conceded that the plaintiff is entitled, first, to a judgment against the defendant for $35.99 car allowance, and second, for $86.33 salary, or drawing account; but the defendant complains of the ruling of the court *Page 640 in construing the contract concerning commissions as above set forth. As the case is presented to us at this time, the sole controlling question is, What is meant by the words "your sales quota on this basis at twenty-five thousand dollars ($25,000.00) net?" It is the contention of the plaintiff that from month to month the plaintiff is entitled to 5 per cent commission on all sales in excess of one twelfth of the $25,000; and it is the contention of the defendant that the plaintiff is not entitled to any commission except the 1 per cent car expenditure coverage until a total of the $25,000 net has been sold, after which the plaintiff is entitled to 5 per cent additional on all amounts between $26,000 and $40,000 net, and 7 per cent on all amounts in excess of $40,000 net sales. Manifestly, this is a layman's form of contract. It is far from clear. This whole contract has been very carefully studied, and given much thought. The original record and the record on resubmission have been carefully read, and we reach the conclusion that the plaintiff is not entitled to recover any commission except the car expenditure commissions until a total of $25,000 net of goods has been sold. Great stress is laid in the argument on the use of the word "quota." Its use is an inapt one. The whole contract must be read together. The mere fact that the rights of the parties are not carefully guarded is not persuasive. We cannot make a new contract for them. We think the words "your sales quota on this basis" mean that the defendant agreed to pay the plaintiff by drawing account $40 per week, and 1 per cent of net sales to cover car expenditures, with a maximum of $25 per month for this purpose, on the agreement that the plaintiff would sell $25,000 in the twelve-months period. In other words, it being impossible to know just how much the plaintiff could sell, the defendant fixed a quota of $25,000 a year net, for which he agreed to pay $40 a week drawing account and 1 per cent car expenditure. Manifestly, the plaintiff might have dragged along, and, instead of selling $2,083 plus per month, he might have sold less than $1,000; nevertheless he would have been entitled to his drawing account and his 1 per cent car expenditure; but the defendant protected itself by being able, if it saw that the plaintiff was not likely to make good on his $25,000 net in the twelve *Page 641 months, to serve notice on the plaintiff and terminate the contract. We think it clearly appears that it was not the intention of the parties that the additional 5 per cent should be paid until $25,000 net of goods had been sold, and then only on goods sold amounting to $26,000 and up to $40,000, and that the 7 per cent applied only to all goods sold over $40,000. In other words, these commissions were not to be paid when the goods were sold atthe rate of more than $25,000 a year, but only paid when more than $25,000 net of goods had been sold. Any further discussion on this contract would be of no service to either bench or bar. IV. There is no conflict in the evidence, and the only reversible error in the record arises on the question of the instruction given concerning the measure of damages. The appellee may, within 30 days from the filing of this opinion, remit from his judgment the sum of $222.97, leaving a balance of $122.32 in his favor. Upon plaintiff's election, the judgment will be accordingly affirmed on condition; otherwise reversed. —Affirmed on condition. All the justices concur except De GRAFF, J.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429843/

The Consolidated Independent School District of Randalia, Fayette County, and certain individuals, are relators. The Independent School District of Donnan is made a defendant. The other defendants are the directors and officers of the said last named district. They were elected and began their duties as such officers soon after June 1, 1922. On June 1, 1922, an election was held on the question as to the dissolution of the original Consolidated Independent School District *Page 53 of Donnan and the organization of the territory thereof into two independent school districts. No question is made as to the legality of the organization of the defendant Independent School District of Donnan and the other district, provided that the dissolution of the consolidated district was legal. The action is brought, as relators state, to oust the defendants from the offices assumed by them as directors and officers of the Independent School District of Donnan, for the reason, as it is claimed, that the consolidated district had never been dissolved. Appellees contend that the real purpose of the action is to secure for relator School District of Randalia a large portion of the territory included in defendant district. In March, 1922, there was filed in the office of the county superintendent a petition and affidavit for a dissolution, with the requisite number of signers residing in the consolidated district, and a plat correctly describing the boundaries of the district sought to be dissolved, and the boundaries of the two new independent school districts proposed to be formed, upon the dissolution. The petition was approved, and proper notice thereof published. The proceedings up to this point were regular and legal. The illegality alleged is largely in regard to the published notice of the election. The superintendent was in doubt as to which of two newspapers was the nearest, and, as a precautionary measure, published it in two papers in two different towns. The copy of the notice prepared by the superintendent and furnished to the newspapers correctly described all boundaries; but in setting up the notice, there were some typographical errors in the notices and ballot as printed. As illustrative of the character of these mistakes, one of the notices and the ballot describes Section 33 twice; whereas it should have been Section 35 in one place; and in the long description of the different sections and quarter sections, there is a mistake as to the quarter or half section, in one or two instances. Appellants contend that the county superintendent changed the boundary lines, and that this may not be done, under our holding in Brooker v. Ludlow, 189 Iowa 760, 770; State v.Orr, 192 Iowa 1021. It is clear from the record that the superintendent did not do this; and the evidence is undisputed that it was the mistake of the printer. The proposition to dissolve was carried by *Page 54 a vote of 96 for, to 53 against. All the individual relators were present at the election, and all voted but two. These two refused to vote. None of them testify as witnesses. But two witnesses were used on the entire trial: one, the secretary of the Randalia District, relator, to the fact that relators were residents of the Consolidated Independent School District of Donnan, and citizens of Iowa; and the other, the county superintendent, who testified as to the petition for election to dissolve, notices, and other documents, and the proceedings had. There is no evidence of any kind or from any source that any of the voters in the district or those present and voting were misled in any manner by the variance in the published notice. The statutes relied upon by both sides are cited from the Compiled Code, or the Compiled Code Supplement of 1921, which are contained in Chapter 175, Acts of the Thirty-ninth General Assembly. The statutes require notice, but do not prescribe what the contents of the notice shall be. The different provisions in regard to notice and publishing the order of the superintendent are found in Sections 5, 6, and 7, and those on dissolution, in Sections 30, 32, 33, and 38. Section 38 seems to apply in this case, and it provides that: "If the petition for dissolution is approved, the county superintendent with whom such petition is filed shall call a special meeting in such school corporation, by giving notice by one publication in a newspaper published in the school corporation; or if none be published within the corporation, then in a paper published in the nearest town in any county in which any part of the corporation is located." If the order referred to in some of the sections of the statute above cited describes the boundaries, or if the notice attempts to describe the boundaries, they should be correctly described, whether the statute requires it or not. The notice is for the information of the electors. Unless the boundaries are correctly described, the electors might be misled; and this might be so, whether the error was that of the printer or of the superintendent. It appears from evidence in this case that no elector was misled or prejudiced in any way. Furthermore, the records of the district correctly described its boundaries. This was open to the electors. The petition filed also correctly described *Page 55 the boundaries. The relators were residents within the district, and doubtless had some knowledge as to the boundaries; and they could, by inquiry, have gone to the records. They were simply voting on the question as to the dissolution of their own district. Gallagher v. School Township, 173 Iowa 610, 618;Calahan v. Handsaker, 133 Iowa 622, 627; Lehigh Pipe Tile Co.v. Town of Lehigh, 156 Iowa 386, 392, 396. We held, in Smith v.Blairsburg Ind. Sch. Dist., 179 Iowa 500, 506, that it is enough if the petition as a whole indicated the boundaries of the proposed district in any definite manner. In some cases, we have held that a petition and notice will be construed as embracing certain territory, though not specifically mentioned, when fairly susceptible of such construction, and where so treated by the school board, county superintendent, and voters. Smith v.Blairsburg Ind. Sch. Dist., supra; Independent Sch. Dist. v.Independent Sch. Dist., 153 Iowa 598, 602; State v. Rowe,187 Iowa 1116. In the last named case it was held that jurisdiction attaches for the establishment of a consolidated district when the petition is filed and approved; that thereafter, irregularities in the exercise of such jurisdiction should be corrected by appeal, and not by quo warranto. Without further discussion, we are of opinion that the trial court correctly decided the issue; and the judgment is —Affirmed. ARTHUR, C.J., and EVANS and FAVILLE, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429845/

We granted defendant an appeal from the order of the trial court overruling defendant's special appearance to the action in quo warranto brought by the attorney general. The petition charged appellant corporation was organized under chapter 390, Code of Iowa, 1927, for a purpose not contemplated by said chapter, to wit, the practice of the profession of embalming, and that it did illegally so operate without an embalmer's license and without being eligible for such license. Rule 300 (b) of the Rules of Civil Procedure provides: "If on demand of any citizen of the state, the county attorney fails to bring the action, the attorney general may do so * * *." In this case the citizen who made the demand that the county attorney bring the action was the assistant attorney general who had charge of the matter for the State. In its special appearance and in argument appellant asserts the official position of the attorney general rendered him and his assistants ineligible to demand as citizens that the county attorney institute a quo warranto action, and hence, that the county attorney's failure to bring the action would not empower the attorney general to institute such action. Rule 300 (a) authorizes the governor, general assembly, *Page 1198 and certain courts to direct that the action be brought. Otherwise, the proper county attorney may bring the action in his discretion. Although the attorney general has certain supervisory powers over county attorneys, the rule does not empower him to direct a county attorney to bring an action in quo warranto. If, on demand, the county attorney fails to bring action, the attorney general may do so. Any citizen of the State is qualified to make the demand. No private interest in the question is required. The demand is not a part of the suit but is merely a request that the county attorney bring the action. It is the method provided whereby any citizen may ascertain whether the county attorney will do so. The provision that the attorney general may bring the action does not rest upon the demand but upon the failure of the county attorney to act after such demand. With reference to the procedure under a prior statute, State ex rel. Fullerton v. Des Moines City Ry. Co., 135 Iowa 694, 712, 109 N.W. 867, 874, states: "* * * although this remedy is of a special and extraordinary character, it is designed, nevertheless, to effect a speedy and effective means of settling a class of disputes affecting public interests, and the salutary purposes of the statute which provides it should not be thwarted by a narrow and technical construction." Appellant contends the official position of the attorney general deprives him of the right of a citizen to make the demand. The attorney general is the head of the department of justice of the State. Actions in quo warranto affect public interests. Upon failure of the county attorney to bring action after demand, the attorney general may do so. If, in his discretion, he concludes such action should be instituted, it is his duty to bring it. There would be little justification for a rule which would require the attorney general to sit by without power to perform such duty for the protection of the rights of the public unless and until some other citizen might see fit to make the demand and ascertain that the county attorney would not bring the action. Nor may Rule 300 be properly so interpreted. The provision that any citizen may make the demand *Page 1199 does not except the attorney general. It clearly includes every citizen of the State. We are satisfied that the official position of the attorney general does not make him, or members of his staff, ineligible to make such demand, or upon noncompliance therewith to bring the action officially. Our conclusion makes it unnecessary to consider appellee's contention that the attorney general of the State had power to bring the action in addition to that granted by Rule 300 and without demand upon the county attorney. — Affirmed. MANTZ, C.J., and SMITH, MULRONEY, GARFIELD, HALE, MILLER, and WENNERSTRUM, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3209044/

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC., Appellant, v. Case No. 5D15-474 JOSE L. PATINO, ET AL., Appellees. ________________________________/ Opinion filed May 27, 2016 Non-Final Appeal from the Circuit Court for Osceola County, Robert J. Pleus, Jr., Senior Judge. David S. Ehrlich and Manuel S. Hiraldo, of Blank Rome, LLP, Ft. Lauderdale, for Appellant. David E. Borack, of Borack Law Group, P. A., Longwood, for Appellee, Jose I. Partino. No Appearance for other Appellees. PER CURIAM. Deutsche Bank National Trust Company, as Trustee of the Indymac INDX Mortgage Trust 2006-AR25, Mortgage Pass-Through Certificates Series 2600-AR 25, under the Pooling and Service Agreement Dated July 1, 2006 (“Bank”), appeals the order denying its Florida Rule of Civil Procedure 1.540(b) motion to vacate final judgment. We reverse because the judgment granted relief on a matter which was outside of the pleadings and which was not tried by consent of the parties. Bank filed an action against Jose L. Patino (“Appellee”) to foreclose a mortgage on real property owned by Appellee in Osceola County. The case proceeded to trial and the trial court entered final judgment in favor of Appellee, essentially concluding that Bank had failed to establish its standing at the time the suit was filed and failed to comply with one of the conditions precedent necessary to bringing suit. Bank did not appeal. Approximately seven and one-half months after the judgment became final, Bank filed a motion pursuant to rule 1.540(b), asserting that the final judgment was void because it provided relief to Appellee that was not requested by Appellee in his pleadings. Specifically, Bank objected to paragraph five of the Final Judgment, which provided: 5. The mortgage lien, which is the subject matter of this lawsuit, recorded in the public records of Osceola County, Florida at Book 3177, Page 210 through 230 is no longer of legal effect. Bank argued that Appellee did not plead for this relief nor seek this relief at trial and, therefore, the court lacked jurisdiction to nullify or cancel the mortgage lien. The lower court denied Bank’s motion, and this appeal ensued. Rule 1.540(b)(4) provides, in part, that a court may relieve a party from a final judgment or decree that is void. It is axiomatic that “[a] trial court is without jurisdiction to award relief that was not requested in the pleadings or tried by consent.” Wachovia Mortg. Corp. v. Posti, 166 So. 3d 944, 945 (Fla. 4th DCA 2015) (citations omitted). “[A] judgment which grants relief wholly outside the pleadings is void.” Id. (quoting Bank of N. Y. Mellon v. Reyes, 126 So. 3d 304, 309 (Fla. 3d DCA 2013)). 2 Our review of the pleadings and the trial transcript show that Appellee did not affirmatively plead for or seek a determination at trial that the mortgage lien be cancelled or declared to be “no longer of legal effect.” Accordingly, the trial court lacked jurisdiction to grant Appellee this relief, rendering this portion of the judgment void.1 See Posti, 166 So. 3d at 945. Therefore, we reverse the order denying Bank’s motion to vacate the final judgment. We remand this case with directions that the trial court vacate the final judgment and enter an amended final judgment that deletes the aforementioned paragraph five. REVERSED and REMANDED, with DIRECTIONS. BERGER, LAMBERT, and EDWARDS, JJ., concur. 1We reject, without further discussion, Appellee’s argument that the invited error doctrine bars Bank from obtaining relief from a void final judgment. 3

01-03-2023

06-03-2016

https://www.courtlistener.com/api/rest/v3/opinions/4033527/

Cite as 2016 Ark. App. 408 ARKANSAS COURT OF APPEALS DIVISION I No. CV-16-124 FORD MOTOR CREDIT COMPANY, Opinion Delivered September 14, 2016 LLC, f/k/a FORD MOTOR CREDIT COMPANY APPEAL FROM THE ASHLEY APPELLANT COUNTY CIRCUIT COURT [NO. CV-2015-138-4] V. HONORABLE DON GLOVER, FIRST NATIONAL BANK OF JUDGE CROSSETT APPELLEE AFFIRMED IN PART; REVERSED AND REMANDED IN PART CLIFF HOOFMAN, Judge Appellant Ford Motor Credit Company, LLC, f/k/a Ford Motor Credit Company (FMCC) appeals from the circuit court’s order granting summary judgment in favor of appellee First National Bank of Crossett (FNBC) in FNBC’s suit for declaratory judgment. On appeal, FMCC argues that the circuit court erred by (1) granting summary judgment to FNBC and (2) denying its cross-motion for summary judgment. We reverse and remand the order granting summary judgment in favor of FNBC and affirm the denial of FMCC’s countermotion for summary judgment. On July 16, 2015, FNBC filed a declaratory- judgment action against FMCC, seeking to have the circuit court declare that it (FNBC) held prior, perfected liens on two vehicles that were owned by Crossett Ford Lincoln, LLC (Crossett Ford). According to the facts alleged in the complaint, FNBC had a history of providing new and used motor-vehicle-inventory financing for Crossett Ford. Floor-plan Cite as 2016 Ark. App. 408 agreements signed on August 5, 2010, and on January 28, 2011, gave FNBC a security interest in Crossett Ford’s new and used vehicle inventory during the time period relevant to this case. The agreements were signed by James (Jimmy) Murphy, the owner of the dealership, as well as by several other joint obligors. In July 2012, Crossett Ford purchased a new 2012 Ford F-150 truck (F-150) from Ford Motor Company. FNBC financed the purchase price of the F-150 by advancing $34,072.98 to Crossett Ford on August 2, 2012. In accordance with the terms of the floor- plan agreement, FNBC retained the certificate of origin (COO) for the vehicle, which was issued in the name of Crossett Ford and identified FNBC as the source of financing. The agreement provided that when Crossett Ford sold a vehicle from its inventory and FNBC was repaid the amount it had advanced for the vehicle, FNBC would then release the COO or certificate of title to the dealer. FNBC alleged that it had perfected its interest in the new and used vehicle inventory, including the F-150, by filing financing statements with the Arkansas Secretary of State’s office on August 6, 2010, and March 11, 2011. On August 20, 2012, Murphy executed a Tennessee vehicle retail installment contract to purchase the F-150 from Crossett Ford. The contract was then assigned to FMCC, with Murphy signing his name as the buyer and signing on behalf of Crossett Ford as the seller and assignor. That same day, on August 20, 2012, FMCC filed a direct lien on the F-150 with the Arkansas Department of Finance and Administration (DFA) that listed Murphy as the owner of the vehicle. Crossett Ford did not remit the funds received for the F-150 to FNBC, and FNBC remained in possession of the COO. FNBC thus alleged that it had a 2 Cite as 2016 Ark. App. 408 prior, perfected security interest in the F-150 and that FMCC’s direct lien was invalid due to the “fraudulent conduct” of Murphy in attempting to sell the vehicle to himself and granting FMCC a lien without paying off FNBC. FNBC further alleged that FMCC was on notice of its prior lien based on the financing statements it had filed with the secretary of state. The second vehicle for which FNBC requested declaratory judgment was a 2012 Ford Expedition (Expedition). This vehicle was traded to Crossett Ford on August 28, 2014, by Bobby and Stephanie Knight. FNBC advanced the funds to Crossett Ford to pay off the Knight’s remaining vehicle loan with State Farm Bank in the amount of $38,747.85, and a cashier’s check dated September 24, 2014, was sent by Crossett Ford to State Farm Bank. The Expedition’s title was then sent to FNBC. On September 23, 2014, Murphy executed a Tennessee vehicle retail installment contract with Crossett Ford to purchase the Expedition, and the contract was again assigned to FMCC. FMCC filed a direct lien on the Expedition with the DFA on September 23, 2014. In March 2015, Crossett Ford defaulted on its inventory loan with FNBC, and FNBC repossessed all of the vehicles at the dealership, including the F-150 and the Expedition. FNBC applied for and received a repossession title on the Expedition from the DFA on May 13, 2015. There were no other liens or encumbrances reflected on this title. FNBC alleged that its certificate of title on the Expedition should be declared free and clear of any lien claimed by FMCC. In its answer, FMCC denied the allegations and asserted that FNBC’s security interest 3 Cite as 2016 Ark. App. 408 in the F-150 and the Expedition had been released following the disposition of the collateral pursuant to the floor-plan agreements and the Uniform Commercial Code. FMCC claimed that the repossession title on the Expedition was issued in error and that the DFA should be made a party to the suit. FMCC prayed that the circuit court enter an order confirming that it held a first-priority purchase-money security interest in the F-150 and in the proceeds of the Expedition, which FNBC had sold following its repossession. On September 4, 2015, FNBC filed a motion for summary judgment, claiming that there were no material facts in dispute and that it was entitled to its request for a declaratory judgment. In support of its motion, FNBC attached an affidavit by Gary Brannon, its chief lending officer, who stated that FNBC had held a perfected, first security interest in the F- 150 since August 2, 2012, when it had advanced the funds to Crossett Ford to purchase the vehicle and received the COO reflecting it as the source of financing. Brannon asserted that Crossett Ford currently owed FNBC $366,397.57 on its new-vehicle floor-plan debt and that it had a first lien on the F-150 as security for that debt. Brannon further stated that FNBC had clear title to the Expedition when it was sold to a third party on May 30, 2015, based on the repossession title that was issued to FNBC on May 13, 2015. According to Brannon, Crossett Ford owed FNBC a balance of $701,442.94 at the time of the sale, which was secured by its perfected, first lien on the Expedition. Attached as exhibits to Brannon’s affidavit were the floor-plan agreements, the financing statements filed with the secretary of state, the COO for the F-150, the original title and the repossession title on the Expedition, and the loan transaction history and cashier’s check showing the money it had advanced for 4 Cite as 2016 Ark. App. 408 Crossett Ford to purchase both vehicles. FNBC claimed that Murphy never had title to either the F-150 or the Expedition when he attempted to “fraudulently grant [FMCC] a lien on those vehicles” and that FMCC did not acquire any better title than Murphy had. In addition, FNBC asserted that FMCC could not stand in the shoes of Murphy as a “buyer in the ordinary course of business” because Murphy, from whom FMCC had obtained its lien, was not a person in the business of selling goods of that kind; because FMCC never had possession of either vehicle; and because FMCC could not establish that it took the lien without knowledge that the sale violated the rights of another person in the vehicles. On September 24, 2015, FMCC filed a response to the summary-judgment motion and a countermotion for summary judgment. FMCC claimed that FNBC’s inventory liens in the F-150 and Expedition had been released when the vehicles were sold to Murphy. FMCC attached the August 20, 2012 retail installment contract for the sale of the F-150 that was subsequently assigned to FMCC by Crossett Ford. This contract reflected that Murphy had traded in a 2008 Lincoln to Crossett Ford and had financed the remaining purchase price of $34,072.98, plus interest, over sixty months. The contract and dealer documents indicated that the F-150 had been purchased for Murphy’s personal use. FMCC also attached a copy of the electronic funds detail report showing that it had deposited the balance of the contract into Crossett Ford’s bank account at FNBC in exchange for the assignment of the contract. FMCC claimed that it had obtained a purchase-money security interest in the F-150 and had perfected its interest by filing a direct lien with the DFA on August 20, 2012. A copy of this 5 Cite as 2016 Ark. App. 408 lien was attached to the response. FMCC also attached a copy of the September 23, 2014 retail-installment contract for the Expedition. This contract reflected that the purchase price of $37,000, plus interest, was to be paid over a period of forty-eight months and that the vehicle had been purchased for Murphy’s personal use. Crossett Ford assigned the contract to FMCC, which deposited the contract balance into Crossett Ford’s account at FNBC via an electronic funds transfer. FMCC attached a copy of this electronic-funds-transfer report. FMCC claimed that it took a purchase-money security interest in the Expedition at the time of the assignment and that it perfected this interest by filing a lien with the DFA on September 23, 2014. A copy of this lien was attached to the countermotion. In addition, FMCC attached the affidavit of Murphy, who stated that he had purchased the F-150 to use as a “shop truck” and that it was not marketed for sale on the lot of Crossett Ford. Murphy indicated that he had made approximately thirty of the sixty monthly installment payments on this vehicle to FMCC at the time he declared bankruptcy in 2015. With regard to the Expedition, Murphy stated that it had been purchased for his wife’s personal use, although she did not drive it, and it remained on the lot. He indicated that he had made approximately five monthly payments on this vehicle prior to his bankruptcy filing. Murphy further attested that he had purchased a 2014 Ford Explorer in April 2014 for his daughter and that the floor-plan lien on this vehicle was paid in full. He stated that FNBC was aware of this transaction and had not offered any objection. According to Murphy, the floor-plan agreements, as well as the course of his dealing with 6 Cite as 2016 Ark. App. 408 FNBC, authorized him to sell vehicles free and clear of FNBC’s security interest in the regular course of his business, without prior approval by FNBC. He stated that the transactions at issue were the same as any other transaction between Crossett Ford and a retail customer. Murphy further indicated that FMCC had no knowledge that FNBC’s floor-plan liens on the F-150 and Expedition were not paid in full. He stated that FNBC performed monthly floor-plan audits, that each time there were multiple vehicles missing, and that this was considered to be the “norm.” Finally, Murphy asserted that in March 2015, when FNBC seized Crossett Ford’s inventory and equipment, it also seized its bank account at FNBC where the proceeds of the sales of the F-150 and Expedition had been deposited. FMCC claimed that it was entitled to summary judgment because its lien on the F- 150 and the proceeds of the Expedition were superior and prior to the rights of FNBC. FMCC alleged that it was authorized, pursuant to the floor-plan agreements and the established course of dealing between Crossett Ford and FNBC, to sell the vehicles free and clear of FNBC’s security interest pursuant to Ark. Code Ann. § 4-9-315 (Repl. 2001). Furthermore, FMCC claimed that it was not necessary that Murphy be a “buyer in the ordinary course” to come within the protection of this code section. Once the vehicles were sold to Murphy, FMCC claimed that they no longer qualified as “inventory” but were instead “goods” and that it properly perfected its liens by filing with the Arkansas Department of Motor Vehicles (DMV). Even if Murphy’s purchase of the vehicles was not “authorized” under section 4-9-315, FMCC alternatively claimed that Murphy was a buyer in the ordinary course and that he took the vehicles free of FNBC’s security interest under 7 Cite as 2016 Ark. App. 408 Ark. Code Ann. § 4-9-320(a). In its response to FMCC’s countermotion for summary judgment, FNBC asserted that Murphy did not purchase the vehicles in question because he did not have the COO or certificate of title to either vehicle and therefore could not register the vehicle with the office of motor vehicles as required under Arkansas law. Because FNBC claimed that Murphy never had legal title to the F-150 or Expedition, it argued that he could not grant FMCC a valid lien on the vehicles. FMCC filed a reply in which it alleged that Murphy’s failure to obtain certificates of title to the vehicles in his name did not affect the sale of the vehicles from Crossett Ford to Murphy. With respect to the repossession title obtained by FNBC for the Expedition, which failed to reflect FMCC’s lien on the vehicle, FMCC contended that the issuance of this title by the DMV was in clear error. In support of its argument, FMCC attached an “Arkansas Interactive Title Registration and Lien Report Summary,” which reflected that FMCC’s lien on the Expedition was created on September 23, 2014, and that Murphy was the debtor. FMCC asserted that FNBC’s repossession lien was not created until May 11, 2015, subsequent to its prior lien. FMCC further argued that FNBC had failed to meet proof with proof by failing to address the claims in its countermotion for summary judgment, including the claim that Crossett Ford was authorized to sell the vehicles free and clear of FNBC’s inventory lien. After a hearing held on December 8, 2015, the circuit court entered an order granting FNBC’s motion for summary judgment and denying FMCC’s countermotion. The court 8 Cite as 2016 Ark. App. 408 found that the “undisputed facts establish that James N. Murphy was not a buyer in the ordinary course of business” and that FNBC’s liens on the F-150 and Expedition were prior to FMCC’s liens. FMCC filed a timely notice of appeal from the circuit court’s order. On appeal, FMCC argues that the circuit court erred when it granted summary judgment to FNBC because material issues of fact remain on the issue of whether Murphy was a buyer in the ordinary course of business. FMCC further contends that the circuit court erred in denying its countermotion for summary judgment.1 Summary judgment is to be granted by the trial court only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. McGhee v. Ark. State Bd. Of Collection Agencies, 368 Ark. 60, 243 S.W.3d 278 (2006). In reviewing a grant of summary judgment, the appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion for summary judgment was filed and resolve all doubts and inferences against the moving party. Id. The purpose of summary judgment is not to try the issues but instead to determine whether there are any issues to be tried. Po-Boy Land Co., Inc. v. Mullins, 2011 Ark. App. 381, 384 S.W.3d 1 While the denial of a motion for summary judgment is not ordinarily appealable, such an order is appealable when it is combined with a dismissal on the merits that effectively terminates the proceeding below. Gammill v. Provident Life & Acc. Ins. Co., 346 Ark. 161, 55 S.W.3d 763 (2001) (addressing appeal from denial of motion for summary judgment where same order also granted summary judgment to appellee and dismissed appellant’s claims with prejudice). 9 Cite as 2016 Ark. App. 408 555. Even where there are cross-motions for summary judgment, the proceeding is not converted into a bench trial; if material issues of fact remain to be decided or it is impossible to determine on appeal whether either party is entitled to judgment as a matter of law, summary judgment should be reversed. Id. We first address FMCC’s argument that the circuit court erred in granting summary judgment to FNBC because material issues of fact remain regarding whether Murphy was a buyer in the ordinary course of business. FNBC acknowledges that a buyer in the ordinary course of business takes free of any underlying security interest created by the seller, even if the security interest is perfected and the buyer knows of its existence. Ark. Code Ann. § 4-9- 320 (Repl. 2001); Duke Wholesale, Inc. v. Pitchford , 75 Ark. App. 223, 56 S.W.3d 399 ( 2001); Merchs. & Planters Bank & Trust Co. v. Phoenix Housing Sys., Inc., 21 Ark. App. 153, 729 S.W.2d 433 (1987). FNBC further agrees that FMCC stands in Murphy’s shoes, so that if Murphy was a buyer in the ordinary course of business, then FMCC also takes free of FNBC’s security interest. Duke, supra. Arkansas Code Annotated section 4-1-201(9) (Supp. 2015) defines a “buyer in the ordinary course of business” as follows: “Buyer in ordinary course of business” means a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind. A person buys goods in the ordinary course if the sale to the person comports with the usual or customary practices in the kind of business in which the seller is engaged or with the seller’s own usual or customary practices. A person that sells oil, gas, or other minerals at the wellhead or minehead is a person in the business of selling goods of that kind. A buyer in ordinary course of business may buy for cash, by exchange of other property, or on secured or unsecured credit, and may acquire goods or documents of title under a preexisting contract for sale. Only a buyer that takes possession of the goods or has a right to recover the goods from the seller under chapter 2 may be a buyer in ordinary course of business. “Buyer in ordinary 10 Cite as 2016 Ark. App. 408 course of business” does not include a person that acquires goods in a transfer in bulk or as security for or in total or partial satisfaction of a money debt. Based on this definition, the court in Merchants, supra, stated that there are five requirements for a buyer to qualify as a buyer in the ordinary course of business: (1) he must be a buyer in the ordinary course; (2) he must not take the goods in total or partial satisfaction of a preexisting debt; (3) he must have bought the goods from one who was in the business of selling goods of that kind; (4) he must buy in good faith and without knowledge that the purchase was in violation of another’s security interest; and (5) the competing security interest must be one created by his seller. “Good faith” is defined as “honesty in fact and the observance of reasonable commercial standards of fair dealing.” Ark. Code Ann. § 4-1- 201(20). FNBC argued in its summary-judgment motion that Murphy was not a buyer in the ordinary course of business because he was the principal owner of Crossett Ford, he was personally obligated on the floor-plan loans, he left both vehicles on the lot after he had financed them with FMCC, and he could not title the vehicles in his name because he did not have possession of the COO or the certificate of title. FNBC thus alleged that Murphy did not buy the vehicles in good faith and without knowledge that the purchase was in violation of its security interest. As FMCC asserts, however, whether a party has acted in good faith in a commercial transaction is generally a question of fact. Midway Auto Sales, Inc. v. Clarkson, 71 Ark. App. 316, 29 S.W.3d 788 (2000). The mere fact that Murphy was the principal owner of Crossett Ford does not automatically mean that his purchase of the vehicles was not in good faith or 11 Cite as 2016 Ark. App. 408 in the ordinary course of business. Merchants, supra; Crystal State Bank v. Columbia Heights State Bank, 203 N.W.2d 389 (Minn. 1973). We held in Merchants that the buyer, who was the chief executive officer of the modular-home manufacturer, was not a buyer in the ordinary course under the facts in that case because he was personally liable on the note with the bank, he admitted that his unusually large down payment on the unit was an attempt to infuse capital into the business, and he also admitted that he knew the bank would receive none of the down payment. Merchants, 21 Ark. App. at 159, 729 S.W.2d at 436. Here, while Murphy was obviously aware of FNBC’s inventory lien due to his position with Crossett Ford, there is no evidence that the price he paid for either the F-150 or the Expedition was out of the ordinary or that he intended to defeat FNBC’s security interest by his purchases. Murphy stated in his affidavit that his purchases from the dealership were the same as any other retail customer. He explained that he purchased the F-150 as a “shop truck” and that he purchased the Expedition for his wife. Although Murphy did not have possession of the COO or the certificate of title for the vehicles and did not title them in his name, we have held that such documents are merely evidence of title, not title itself; thus, the failure to obtain a new certificate of title does not affect a transfer between parties. Commercial Credit Corp. v. Assocs. Discount Corp., 246 Ark. 118, 436 S.W.2d 809 (1969). See also Midway Auto Sales, Inc., supra (holding that the failure of a buyer to obtain a certificate of title from the seller or to register the vehicle does not necessarily prevent the buyer from obtaining bona-fide purchaser status). FNBC also seems to argue that FMCC could not be a buyer in the ordinary course of 12 Cite as 2016 Ark. App. 408 business because it obtained its security interest from Murphy, not Crossett Ford, and because Murphy was not engaged in the business of selling Ford vehicles as required under Ark. Code Ann. § 4-1-201(9). However, the retail installment contracts clearly reflect that the contracts were between Murphy as the buyer and Crossett Ford as the seller of the vehicles. Crossett Ford then assigned the contract to FMCC, with Murphy signing in his position as a principal/salesman on behalf of Crossett Ford. Thus, FNBC is incorrect that Murphy and/or FMCC would be prevented from qualifying as a buyer in the ordinary course of business for that reason. Because material questions of fact remain as to whether Murphy acted in good faith and whether he and FMCC would qualify as buyers in the ordinary course under the circumstances in this case, we agree with FMCC that the circuit court erred in granting summary judgment to FNBC on this basis. Thus, we reverse the grant of summary judgment in favor of FNBC. That does not end our inquiry, however, as FMCC further argues that the circuit court erred in denying its countermotion for summary judgment. Relying on Ark. Code Ann. § 4-9-315, which codifies former Uniform Commercial Code (“UCC”) section 9-306, FMCC first argues that its lien on both vehicles takes priority over FNBC’s inventory lien because the floor-plan agreements between Crossett Ford and FNBC authorized the sale of the vehicles free and clear of FNBC’s security interest. Section 4-9-315(a) provides as follows: (a) Except as otherwise provided in this chapter and in § 4-2-403(2): (1) a security interest or agricultural lien continues in collateral notwithstanding sale, lease, license, exchange, or other disposition thereof unless the secured party authorized the disposition free of the security interest or agricultural lien; and 13 Cite as 2016 Ark. App. 408 (2) a security interest attaches to any identifiable proceeds of collateral. As FMCC contends, where the secured party has authorized the disposition free of its security interest, section 4-9-315 does not require that the buyer be a “buyer in the ordinary course” in order to come within its protection. Gen. Motors Acceptance Corp. v. Frank Meador Leasing, Inc., 6 B.R. 910, 913 (W.D. Va. 1980) (quoting 4 Anderson 311 § 9-306:18 (2d ed. 1971)). “A sale under this section destroys the interest of the secured party not because of the meritorious character of the buyer but because the secured party has agreed that a buyer may acquire rights by resale.” Id. Thus, it must be determined whether the terms of the floor- plan agreements between FNBC and Crossett Ford authorized the dealer to sell the vehicles covered under those agreements free and clear of FNBC’s security interest. The agreements at issue here provided that as collateral for the line-of-credit loans, Crossett Ford agreed to grant FNBC “a first security interest in all new, program, and used motor vehicles in its inventory, all proceeds therefrom, all replacements, increases, additions, and substitutions to such inventory and on all tools and equipment located at the Dealer’s place of business, 301 E. 1st. Ave., Crossett, Arkansas[.]” The agreements stated that the exclusive purpose of the loans was “to enable the Dealer to purchase new, program, and used vehicles or to finance used trade-in vehicles” and that “[e]ach time the Dealer requests an advancement, the Dealer shall be required to execute a separate promissory note in favor of the Bank and deliver to the Bank the manufacturer’s certificate of origin for all new, and program vehicles, and certificates of title for all used vehicles.” The agreements further provided that “[e]ach time the Dealer sells a motor vehicle from inventory, the Dealer shall 14 Cite as 2016 Ark. App. 408 pay to the Bank the full amount due on the promissory note which was advanced by the Bank at the time the Dealer purchased that vehicle, at which time the Bank will release the certificate of origin or title to the Dealer.” Murphy further stated in his affidavit that the floor-plan agreements and his course of dealing with FNBC authorized him to sell vehicles free and clear of FNBC’s security agreement in the regular course of his business. He indicated that he was never required to obtain prior approval before selling any vehicle. Based on this evidence, FMCC contends that Crossett Ford was both implicitly and explicitly authorized by FNBC to sell the F-150 and the Expedition and that FMCC was therefore entitled to summary judgment pursuant to Ark. Code Ann. § 4-9-315. FNBC responds by first arguing that section 4-9-315 does not apply to the facts of this case because it does not involve the “entrustment doctrine” and cites to Commercial Credit Corp., supra, in support of its argument. However, that case discussed the applicability of Ark. Code Ann. § 4-2-403, which is often referred to as the “entrustment doctrine”; it did not involve the statute at issue here, section 4-9-315. FNBC also argues that, even if section 4-9-315 does apply to this case, its introductory sentence qualifies it by reference to section 4-2-403(2), which requires that the buyer purchase the goods in the ordinary course of business. There is no merit to this argument because the comments to section 4-9-315 make it clear that the reference to 4-2-403(2) is intended to add another exception to the general rule set forth in section 4-9-315 that a security interest survives disposition of the goods. As discussed above, there is no buyer-in-the-ordinary-course requirement under section 4-9-315 if the security 15 Cite as 2016 Ark. App. 408 agreement authorizes the disposition free and clear of the security interest. FNBC does not necessarily refute that Crossett Ford had general authorization to sell vehicles out of its inventory but instead argues that the sale of the specific vehicles in question was not authorized because Crossett Ford did not pay off the loans on the vehicles as the floor-plan agreements required. FNBC also asserts that the agreements specifically prohibited Crossett Ford from having any motor vehicles on the premises except those financed by FNBC. Contrary to FMCC’s argument that it is entitled to judgment as a matter of law pursuant to section 4-9-315, we conclude that material questions of fact also remain on the issue of whether Crossett Ford was authorized to sell the vehicles at issue in this case. The floor-plan agreements did not contain a general provision authorizing Crossett Ford to sell vehicles from its inventory free of FNBC’s security interest; instead, the agreements specifically stated that each time the dealer sold a vehicle from inventory, it was required to pay FNBC the full amount that had been advanced for the vehicle, at which time FNBC would release the certificate of origin or title. In addition, although Murphy stated that he never had to seek approval from FNBC prior to selling a vehicle, he also stated in his affidavit that he was authorized to sell vehicles free and clear of FNBC’s security interest “in the regular course of his business,” an issue as to which we have already determined that there remain material issues of fact. Given the unique circumstances of the sale of the vehicles in this case, further factual development is needed as to whether the exception in section 4-9- 315 applies here, and FMCC was not entitled to summary judgment on this basis. 16 Cite as 2016 Ark. App. 408 FMCC also argues with respect to the F-150 that its security interest takes priority over FNBC’s floor-plan lien because the vehicle was no longer “inventory” when FMCC filed and perfected its direct lien on August 20, 2012. “Inventory” is defined as “goods, other than farm products, which . . . are held by a person for sale or lease or to be furnished under a contract of service.” Ark. Code Ann. § 4-9-102(48)(B) (Repl. 2001). FMCC cites to Ark. Code Ann. § 4-9-324(a) (Repl 2001), which states that a perfected security interest in goods other than inventory or livestock has priority over a conflicting security interest in the same goods, if the purchase-money security interest is perfected at the time the debtor receives possession of the collateral or within twenty days thereafter. FNBC argues, however, that the F-150 was not removed from its inventory because it was never paid by Crossett Ford for the vehicle, because it retained the COO for the vehicle, and because the vehicle remained on the premises of Crossett Ford in violation of the floor-plan agreements. Based on the unresolved questions discussed above, there are also questions remaining as to whether section 4-9-324(a) would apply to the facts in this case, and FMCC was not entitled to summary judgment as to the F-150 on this ground. Finally, FMCC contends, as an alternative to its other arguments, that it was entitled to judgment as a matter of law on the basis that Murphy was a buyer in the ordinary course of business. While FMCC argues that its proof on this issue was unrebutted, we have previously concluded that material issues of fact remain regarding this issue. Thus, the circuit court did not err by denying FMCC summary judgment on this basis. Accordingly, we reverse and remand the circuit court’s order granting summary judgment to FNBC, and we 17 Cite as 2016 Ark. App. 408 affirm the denial of FMCC’s countermotion for summary judgment. Affirmed in part; reversed and remanded in part. GLADWIN, C.J., and BROWN, J., agree. Nixon & Light, by: John B. Buzbee, for appellant. Streetman, Meeks & Gibson, PLLC, by: Thomas S. Streetman, for appellee. 18

01-03-2023

09-14-2016

https://www.courtlistener.com/api/rest/v3/opinions/4033536/

Cite as 2016 Ark. App. 399 ARKANSAS COURT OF APPEALS DIVISION III No. CV-16-299 ANTHONY VILLAROS Opinion Delivered: September 14, 2016 APPELLANT V. APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT ARKANSAS DEPARTMENT OF [NO. JV-2014-23] HUMAN SERVICES AND MINOR CHILD HONORABLE LEIGH ZUERKER, APPELLEES JUDGE AFFIRMED RITA W. GRUBER, Judge Appellant, Anthony Villaros, appeals from an order of the Sebastian County Circuit Court terminating his parental rights to his daughter, R.A., born August 11, 2012. He contends on appeal that the evidence was insufficient to support the circuit court’s decision that termination was in R.A.’s best interest. We find no error and affirm the circuit court’s order.1 The Arkansas Department of Human Services (DHS) removed R.A. from appellant’s custody on January 7, 2014, when appellant was arrested for domestic battery for allegedly attacking his girlfriend after having become intoxicated. R.A.’s mother lived in California, and 1 The circuit court also terminated the parental rights of the mother, Cassandra Alvarado, but she is not a party to this appeal. Cite as 2016 Ark. App. 399 appellant’s arrest left R.A. with no caregiver. R.A. was found to be dependent-neglected in an order entered on April 17, 2014. Although the court found that appellant had made “a good deal of progress” between the probable-cause hearing and the adjudication hearing—stable housing, employment, completion of parenting classes, submitting to a psychological evaluation, and visiting regularly—appellant did not fully comply with the case plan after that time. After a review hearing on August 14, 2014, the court found that DHS had made reasonable efforts to provide services but that appellant was then living in a motel in Oklahoma; did not have a stable form of transportation; had submitted to a drug-and- alcohol assessment but had not complied with the recommendation for treatment; and had not visited R.A. on a regular basis. After a permanency-planning hearing on January 8, 2015, the court again found that appellant had only partially complied with the case plan and orders of the court, noting that he had submitted to random drug screens, but that some had been positive for THC; that he had submitted to a psychological evaluation but had not attended the recommended counseling; and that he had submitted to a drug-and-alcohol assessment but had not attended the recommended treatment. The court also found that appellant had not resolved his criminal charges and had attended only five of the twenty-six court-ordered domestic-violence classes, which had been ordered in his criminal case as a condition of his sentence and with which the circuit court in his case plan had ordered him to comply. After a fifteen-month review hearing on April 2, 2015, the court found that it was in the best interest of R.A. for the goal of the case to be termination of parental rights and 2 Cite as 2016 Ark. App. 399 adoption. The court found that the child had been in foster care since January 7, 2014; that the child was not in the home of a relative; and that neither parent had made significant progress toward reunification. Although appellant was attending therapy, he had not complied with a drug-and-alcohol-assessment recommendation that he complete a twelve-week outpatient treatment program. He had exercised only seven of eleven visits during the review period and had attended only eight of twenty-six domestic-violence classes. Shortly after that review hearing, on May 3, 2015, appellant was arrested for kidnapping and possession of an incendiary device. DHS filed a petition for termination of parental rights on June 5, 2015, and on June 10, 2015, pursuant to the attorney ad litem’s request, due in large measure to appellant’s continued criminal behavior, R.A. was placed with her paternal aunt in California. After a hearing on August 20, 2015, the court found from the bench by clear and convincing evidence that termination was in R.A.’s best interest, specifically noting that she had been out of the home for nineteen months and that appellant was “in no better position than he was the day she came into care.” The court found that appellant had not completed domestic-violence classes as ordered, had additional criminal felony charges that could amount to significant imprisonment, had not sought treatment for drug and alcohol issues, was incarcerated at the time of the hearing, had no stable housing or transportation, and that “there was a risk of harm if [R.A.] were to be returned to [him].” The court also specifically found that the child was adoptable. The court entered an order terminating appellant’s parental rights on January 4, 2016, 3 Cite as 2016 Ark. App. 399 finding that DHS had proved three grounds for termination by clear and convincing evidence: (1) the child had been adjudicated dependent-neglected, had been out of the parent’s custody for twelve months, and the parent had failed to remedy the conditions that caused the child’s removal; (2) other factors arose subsequent to the filing of the original petition that demonstrated placement of the child with the parent was contrary to the child’s health, safety, or welfare and, despite the offer of appropriate family services, the parent manifested incapacity or indifference to remedying the subsequent issues; and (3) aggravated circumstances: there was little likelihood that services to the family would result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i), (vii), (ix) (Repl. 2015). The circuit court also found by clear and convincing evidence that it was in the child’s best interest to terminate appellant’s parental rights, specifically considering adoptability and potential harm. The court found that R.A. was adoptable and that the relatives with whom she had recently been placed intended to pursue adoption. Noting that appellant had not remedied his issues, his circumstances had declined significantly, and he was facing a substantial prison sentence, the court also found that R.A. would be at great risk of harm if returned to him. We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341. In making a “best interest” determination, the trial court is required to consider two factors: (1) the likelihood that the child will be adopted, and (2) the potential of harm to the child if custody 4 Cite as 2016 Ark. App. 399 is returned to a parent. Id. Adoptability is not an essential element but is rather a factor that the trial court must consider. Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1. Likewise, the potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. The potential-harm analysis is to be conducted in broad terms. Id. It is the “best interest” finding that must be supported by clear and convincing evidence. Id. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Credibility determinations are left to the fact-finder. Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541, at 8, 444 S.W.3d 366, 370. For his sole point on appeal, appellant argues that the evidence was insufficient to support the circuit court’s finding that termination was in R.A.’s best interest in light of R.A.’s placement with a relative and the fact that he had participated in services throughout the case. He argues that because R.A. had a “permanent placement” with a relative, the court should not have terminated his parental rights. The intent behind the termination-of-parental-rights statute is to provide permanency in a child’s life when it is not possible to return the child to the family home because it is contrary to the child’s health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Ark. Code Ann. § 9-27-341(a)(3). This need for permanency overrides a parent’s request for 5 Cite as 2016 Ark. App. 399 additional time to improve circumstances, and courts will not enforce parental rights to the detriment of the well-being of the child. McElwee v. Ark. Dep’t of Human Servs., 2016 Ark. App. 214, at 7, 489 S.W.3d 704, 708. Arkansas Code Annotated section 9-27-338(c)(1)–(7) lists the permanency goals that the circuit court is to consider in determining the best interest of the children. The top preference is to return the juvenile to the parents if it is in the best interest of the juvenile and the juvenile’s health and safety can be adequately safeguarded if returned home. Ark. Code Ann. § 9-27-338(c)(1)–(3). Adoption is then listed before permanent placement with a relative, unless the juvenile is being cared for by a relative and termination of parental rights is not in the best interest of the juvenile. Ark. Code Ann. § 9-27- 338(c)(4)&(6). Appellant argues that the facts of the present case are similar to Cranford v. Arkansas Department of Human Services, 2011 Ark. App. 211, 378 S.W.3d 851, in which we reversed the circuit court’s finding that it was in the best interest of the child to terminate parental rights where the minor child had been placed with his grandparents. Contrary to our conclusion in Cranford, we conclude in this case that the facts support the circuit court’s finding that it was in R.A.’s best interest to terminate appellant’s parental rights. In Cranford, the child was placed with maternal grandparents immediately after the case had been initiated, where the child and his parents had been living before the case had begun. The grandmother testified that they had always played a significant role in the child’s life and that, whether there was an adoption or a guardianship, she would like for both parents to remain in the child’s life. Here, there was no evidence that R.A. knew the aunt with whom she was placed, and R.A. was not placed 6 Cite as 2016 Ark. App. 399 with her aunt until two months before the termination hearing. While the caseworker testified that the aunt was interested in pursuing adoption, there was no other evidence regarding this arrangement or whether permanent custody with the aunt without termination of parental rights would have been feasible or in R.A.’s best interest. Appellant also argues that he participated in the case plan. He did not, however, complete the case plan or comply with court orders that the court deemed important. The court specifically mentioned that appellant had not resolved the criminal charges that had been incurred at the initiation of the case, that he had incurred additional felony charges in Oklahoma, that he was incarcerated at the time of the termination hearing, and that his circumstances had gotten worse since the case had begun despite the offer of services. The court also found that appellant had failed to attend and complete a twelve-week outpatient program that was recommended after his drug-and-alcohol assessment. Finally, R.A. was taken into custody when appellant was arrested for domestic battery, and despite the court’s continued orders to do so, appellant had attended a negligible number of domestic-violence classes. Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Ford v. Ark. Dep’t of Human Servs., 2014 Ark. App. 226, 434 S.W.3d 378. And a parent’s past behavior is often a good indicator of future behavior. Id.; Stephens v. Ark. Dep’t of Human Servs., 2013 Ark. App. 249, 427 S.W.3d 160. Accordingly, we conclude that the circuit court’s ruling that termination of appellant’s parental rights was in the child’s best interest is not clearly erroneous. 7 Cite as 2016 Ark. App. 399 Affirmed. ABRAMSON and VIRDEN, JJ., agree. Tabitha B. McNulty, Arkansas Public Defender Commission, for appellant. Jerald A. Sharum, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child. 8

01-03-2023

09-14-2016

https://www.courtlistener.com/api/rest/v3/opinions/4033543/

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Sep 14 2016, 9:30 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Gregory F. Zoeller Kokomo, Indiana Attorney General Lyubov Gore Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Mitchell Maddox, September 14, 2016 Appellant-Defendant, Court of Appeals Case No. 34A02-1605-CR-1124 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray, Appellee-Plaintiff. Judge Trial Court Cause No. 34C01-1409-F5-196 Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 34A02-1605-CR-1124 | September 14, 2016 Page 1 of 6 Case Summary Mitchell Maddox pled guilty to Level 5 felony carrying a handgun without a license, and in exchange the State dismissed numerous felony and misdemeanor charges. The trial court sentenced him to five years, with one year suspended to probation. Maddox now appeals, arguing that his sentence is inappropriate. Because Maddox has failed to persuade us that his sentence is inappropriate, we affirm. Facts and Procedural History [1] In September 2014—two months after being released from the Indiana Department of Correction—twenty-two-year-old Maddox was charged with Level 5 felony carrying a handgun without a license (based on a previous felony conviction within fifteen years), Level 5 felony obliterating identifying marks on a handgun, Level 6 felony auto theft, Level 6 felony possession of a narcotic drug, and Level 6 felony possession of a syringe in Cause No. 34C01-1409-F5- 196 (“F5-196”). [2] Less than a month later, in October 2014, Maddox was charged with Class A misdemeanor resisting law enforcement, Class B misdemeanor leaving the Court of Appeals of Indiana | Memorandum Decision 34A02-1605-CR-1124 | September 14, 2016 Page 2 of 6 scene of an accident, and Class B misdemeanor public intoxication in Cause No. 34C01-1410-CM-215 (“CM-215”).1 [3] Then, in May 2015, Maddox was charged with Class A misdemeanor possession of marijuana in Cause No. 34C01-1505-CM-59 (“CM-59”). The following month, Maddox was charged with Level 2 felony dealing in a narcotic drug in a fourth case.2 [4] In January 2016, Maddox and the State entered into a plea agreement. Specifically, Maddox agreed to plead guilty in F5-196 to Level 5 felony carrying a handgun without a license. Appellant’s App. p. 64. In exchange, the State agreed to dismiss the other charges in that cause number as well as the misdemeanor charges in CM-215 and CM-59. Tr. p. 4-5; Appellant’s App. p. 66. The plea agreement did not address the Level 2 felony dealing charge. Tr. p. 5. In addition, the parties agreed that “the sentence [would] not exceed five (5) years.” Appellant’s App. p. 64. The trial court accepted the plea agreement, entered judgment of conviction for the Level 5 felony, dismissed the remaining charges in F5-196 and cause numbers CM-215 and CM-59, and set the case for sentencing. 1 The State cites page 126 of the Appellant’s Appendix (which is part of Maddox’s PSI) for this information, but this page is missing from the appendix on file with this Court. Because Maddox does not dispute this information, see Tr. p. 20 (defense counsel noting only one correction to be made to PSI), we take it to be true. 2 The State also cites page 126 for both of these cases. Court of Appeals of Indiana | Memorandum Decision 34A02-1605-CR-1124 | September 14, 2016 Page 3 of 6 [5] Following the sentencing hearing, the trial court identified Maddox’s guilty plea as a mitigator but gave it “basically no weight” because of the “considerable benefits” he received in the number of dismissed charges. Tr. p. 24. The trial court found “significant” aggravators: (1) Maddox had a criminal history despite being “a fairly young man”; (2) he had multiple probation violations, including refusing to complete alcohol and drug treatment; and (3) he committed several crimes after his arrest in this case. Id. at 24-26. The trial court sentenced Maddox to five years, with one year suspended to supervised probation. [6] Maddox now appeals his sentence. Discussion and Decision [7] Maddox contends that his five-year sentence with one year suspended to supervised probation is inappropriate and should be revised to “five (5) years, with one (1) or two (2) years incarceration and the remainder suspended to supervised probation.” Appellant’s Br. p. 8. [8] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. Because sentencing is a highly case-sensitive endeavor, it is generally a decision that is best made at the trial-court level. Gibson v. State, 43 N.E.3d 231, 241 (Ind. 2015) (citing Saylor v. State, 808 N.E.2d 646, 649 (Ind. Court of Appeals of Indiana | Memorandum Decision 34A02-1605-CR-1124 | September 14, 2016 Page 4 of 6 2004)). When reviewing the appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal consequences imposed by the trial court in sentencing the defendant, including whether a portion of the sentence was suspended. Weedman v. State, 21 N.E.3d 873, 894 (Ind. Ct. App. 2014), trans. denied. It is the defendant’s burden on appeal to persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). [9] A person who commits a Level 5 felony shall be imprisoned for a fixed term of between one and six years, with the advisory sentence being three years. Ind. Code § 35-50-2-6(b). Here, Maddox’s plea agreement provided that his sentence would not exceed five years, and the trial court sentenced him to five years with one year suspended to probation. [10] Maddox claims that there is nothing violent about the nature of the offense because “[c]arrying a handgun is not a violent act.” Appellant’s Br. p. 7. Even if that is true in this case, it is Maddox’s character that convinces us that his five-year sentence with one year suspended is appropriate. As even Maddox concedes, “he is willing to knowingly commit a crime” and “has trouble following rules of probation.” Id. Indeed, after his arrest for carrying a handgun without a license (which occurred a mere two months after his release from the DOC), Maddox was arrested for five offenses under three separate cause numbers—two of which were dismissed by the plea agreement in this case. In addition, Maddox has failed to take advantage of the opportunities that the courts have given him before by violating his probation multiple times. Maddox has failed to persuade us that his sentence is inappropriate. Court of Appeals of Indiana | Memorandum Decision 34A02-1605-CR-1124 | September 14, 2016 Page 5 of 6 [11] Affirmed. Baker, J., and Najam, J., concur. Court of Appeals of Indiana | Memorandum Decision 34A02-1605-CR-1124 | September 14, 2016 Page 6 of 6

01-03-2023

09-14-2016

https://www.courtlistener.com/api/rest/v3/opinions/4260996/

STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED April 3, 2018 Plaintiff-Appellee, v No. 335955 Wayne Circuit Court JOHNATHAN LAMAR BURKS, LC No. 16-002935-03-FC Defendant-Appellant. Before: K. F. KELLY, P.J., and MURPHY and RIORDAN, JJ. PER CURIAM. Following a jury trial, defendant appeals as of right his convictions of first-degree home invasion, MCL 750.110a(2), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a third-habitual offender, MCL 769.11, to consecutive prison terms of 18 to 40 years for the home invasion conviction and two years for the felony-firearm conviction. We affirm. Defendant was convicted for aiding and abetting his two co-defendants, one of whom burst into a home, shooting three people in retaliation for an earlier incident. A three-year-old child died as a result of the shooting and two adults were injured.1 On appeal, defendant sets forth claims of error regarding the defense of duress, along with maintaining that his home invasion sentence, which reflected a departure from the minimum guidelines range, was not reasonable. With respect to the defense of duress, it was not raised by defense counsel at trial, so there was no jury instruction on duress and the jurors were not directed to resolve any questions concerning duress. However, the jury posited a question during its deliberations regarding 1 The jury acquitted defendant of first-degree premeditated murder, MCL 750.316(1)(a), first- degree felony murder, MCL 750.316(1)(b), two counts of assault with intent to commit murder (AWIM), MCL 750.83, and discharge of a firearm at a building causing death, MCL 750.234b(5). -1- whether duress or coercion negated criminal responsibility, 2 and the trial court informed the jurors that such a defense had not been presented and that duress is not a defense to the charged crimes, certainly as to the murder, AWIM, and discharged-firearm offenses that defendant was facing, for which he was later acquitted. Defendant argues that he was denied due process and a fair trial when the court refused to explain to the jury that duress is indeed a defense to home invasion and felony-firearm. In People v Lemons, 454 Mich 234, 245-247; 562 NW2d 447 (1997), our Supreme Court explained the defense of duress: Duress is a common-law affirmative defense. It is applicable in situations where the crime committed avoids a greater harm. The reasons underlying its existence are easy to discern: “The rationale of the defense of duress is that, for reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person.” In order to properly raise the defense, the defendant has the burden of producing some evidence from which the jury can conclude that the essential elements of duress are present. . . . [A] defendant successfully carries the burden of production where the defendant introduces some evidence from which the jury could conclude the following: A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm; B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant; C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and D) The defendant committed the act to avoid the threatened harm. [Citations and quotation marks omitted.] Duress concerns a situation where a defendant admits having committed the charged crime, but attempts to justify, excuse, or mitigate it; it does not negate the elements of the crime. Id. at 246 n 15. A threat of future injury does not support the defense of duress; rather, the threatening conduct or act of compulsion must be impending, imminent, and present. People v Henderson, 306 Mich App 1, 5; 854 NW2d 234 (2014). The threat underlying a claim of duress must not 2 Evidently, the jurors, on their own initiative, conceived of the possibility that defendant acted under duress or was coerced. -2- have arisen out of the negligence or fault of the person pursuing the defense. Id. Duress is not a defense to murder, aiding and abetting a murder, and AWIM. Id. at 5-8. Finally, we note that jury instructions must include all of the elements of the charged crimes and cannot exclude material issues, defenses, or theories where there is supporting evidence. People v McKinney, 258 Mich App 157, 162-163; 670 NW2d 254 (2003). We shall proceed on the assumption that duress is a defense to first-degree home invasion and felony-firearm. The trial court should have simply informed the jury that duress was not a defense being raised by defendant. Instead, the court proceeded to additionally state that duress is not a defense under the law to any of the charged crimes, with the court then backtracking somewhat by indicating that duress is certainly not a defense to homicide, AWIM, and discharging a firearm, thereby perhaps suggesting that it might be a defense to first-degree home invasion and felony-firearm. However, the trial court’s overall answer could reasonably have been construed as indicating that duress could not be considered by the jurors on all of the charged crimes. Defendant insists that the trial court should have expressly and clearly told the jury that duress is a defense to the crimes upon which defendant was convicted, i.e., first-degree home invasion and felony-firearm. The problem with this argument is that there existed no basis for giving a duress instruction in the first place, as there was inadequate evidence supporting an instruction on duress under the elements enunciated in Lemons, 454 Mich at 246-247. Therefore, given that defendant was not entitled to a jury instruction on duress even had it been requested, the fact that the trial court effectively removed the issue from the jury’s consideration cannot be deemed a violation of due process or the right to a fair trial. Defendant had no right to have the jury contemplate the defense of duress, and reversal is unwarranted.3 Additionally, we also reject defendant’s associated argument that defense counsel was ineffective for not requesting that the trial court, in response to the jury’s inquiry, explain to the jurors that duress is a defense to first-degree home invasion and felony-firearm. Again, defendant was not legally entitled to a duress instruction, which is essentially what he would have received had the court informed the jury that duress is a defense. Counsel is not ineffective for failing to raise futile or meritless arguments. People v Erickson, 288 Mich App 192, 201; 793 NW2d 120 (2010).4 3 Moreover, even if there was adequate evidence of duress, it would not have been appropriate for the trial court to allow the jurors to consider the defense, as, once again, it was not a defense raised by defense counsel at trial. Because a duress defense was not raised, the prosecutor had no need or reason to present evidence to attempt to counter the defense or to argue against the defense. Defendant’s position on appeal would have effectively and unfairly deprived the prosecution of challenging the defense of duress. 4 To the extent that defendant is arguing that counsel was ineffective for not raising a duress defense at trial, which does not appear to be an argument presented in his brief, we cannot conclude that counsel’s performance fell below an objective standard of reasonableness, where counsel chose to present and focus on a “mere presence” defense, which succeeded in part given the acquittals on the more serious charges. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). -3- Defendant next argues that his sentence on the home invasion conviction was not reasonable and was based on acquitted conduct. Defendant’s minimum sentence guidelines range was 57 to 142 months; however, the trial court imposed a home invasion sentence with a minimum term of 216 months (18 years), exceeding the top end of the guidelines range by approximately six years and two months. The trial court reasoned as follows: Well, [defendant], if you have a small child, then you of all people should have known that possible harm and what possible heartache could come from gunfire being utilized in a small residential place where there was a three-year-old child. In this particular case you mobilized an angry, volatile young person that you knew to be angry and volatile, and who had a penchant for using guns to come over and rally with you because of someone’s missing tennis shoes. A three-year old child has no future. There is a heartache for that family because it was your idea. You were the one who instigated the phone call and all of the action that led to a three-year old child being murdered on Easter Sunday. I know that your position has been that you did not do anything, that you were just there watching. Well, the jury didn’t believe that, and I don’t believe that. Nobody brings spectators to a murder. You were involved. You were there in the car with the shooter driving there, and you were there with the shooter driving away, and you were prepared to be the wheel man to drive away. And, but for your active involvement, that three-year old child would be alive today. You bear enormous responsibility. The trial court further remarked that the guidelines did not adequately reflect the serious harm that occurred in this case. In People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015), the Supreme Court held that a sentence that departs from the guidelines range is to be reviewed “for reasonableness.” And in People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017), the Supreme Court clarified that the reasonableness of a departure sentence is to be reviewed for an abuse of discretion, applying the principle-of-proportionality from People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), “ ‘which requires the sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.’ ” Defendant argues that his sentence was not reasonable or proportionate because he was acquitted of aiding and abetting in the three-year-old’s death, because he did not carry a gun to the scene of the crime, and because he did not have any previous “high” felonies. However, despite the jury’s determination that the prosecutor failed to prove beyond a reasonable doubt that defendant aided and abetted in the murder or as to AWIM, there was evidence that defendant’s actions set in motion the events leading to the shooting death and injuries. As noted by the trial court, defendant’s behavior in being a part of the group that produced the death and injuries in retaliation for what defendant thought had been an assault on his brother was not adequately accounted for in the sentencing guidelines. Contacting a violent person, knowing that -4- he is violent and utilizes firearms, immediately after learning of his brother’s situation, along with participating in the retaliation, defendant properly shares the blame for the carnage, at least for purposes of a sentencing departure. The trial court’s view that defendant’s phone call to the gunman over stolen shoes was the catalyst for the crimes, in contrast to defendant’s view that he was merely a spectator, was supported by the evidence. Defendant also has two prior felonies. The trial court did not abuse its discretion in imposing the upward departure, as the minimum sentence of 18 years was proportionate to the seriousness of the circumstances surrounding the offense and the offender. Finally, with respect to defendant’s arguments concerning judicial fact-finding, the Court in Lockridge, 498 Mich at 392 n 28, expressly allowed for such fact-finding in relationship to the offense variables for purposes of advisory guidelines, and defendant’s anticipation that the Supreme Court’s ruling in Steanhouse might alter Lockridge on the matter did not come to fruition. And defendant has not presented a viable or persuasive argument that judicial fact- finding is improper relative to establishing the basis for a sentencing departure. Affirmed. /s/ Kirsten Frank Kelly /s/ William B. Murphy /s/ Michael J. Riordan -5-

01-03-2023

04-04-2018

https://www.courtlistener.com/api/rest/v3/opinions/4141821/

Honorable0. P. Lockhart,Chairman OpinionNo. O-4521 Board of InsuranceCommissioners Re: Whetherthe combinedpolicy Austin,Texas of The AmericanHospitaland Life InsuranceCompanyprovidesfor pay- ment of any life insurancebenefits, Dear Sir: and can be classeda8 life insurance? Your letter of March 31, 1942, requestingthe opinionof this department,reads as follows: "EuclosedIs specimen,combinationpolicy of the Ameri- csn Hospitaland Life InsuranceCompanyof San Antonio,Texas. "We inviteyour attentionespeciallyto the first three paragraphsin bold face type on the front page, and Part III 'AllPremiumsReturnedIn Event of Death' on page three there- of. "This'Departmenthas heretoforeruled consistentlythat policiesof this nature.constitute life insuranceinsofaras they providefor payment'ofany benefitscontingentupon the cessationof human life under Article4716. Because soms questionhas been raisedas to the correctnessof our ruling as appliedto this particularpolicy we ask you to advise us whetheror not it does providefor paymentof any life insur- ante benefitsand whether it can thereforebe classedas life Insurance. " The statutesof Texas do not definethe tern)"life insurance" but merely defineswhat shall be deemeda life, accidentor health in-. 5urancecompany. For the purpose of supervisionby the InsuranceDepart- meat, all of such companies,descrlbedare placed under the supervision of the Life InsuranceCommissioner, thus dividingthe duties as distln- gulshedfrom fire and casualtyinsurancebusinesssupervisedby the Fire and CasualtyInsuranceConunissioners. We quote from Cooley'sBriefs on Insurance,Vol. 1, Second Edition,page 27: "A contractof insuranceis an agreementby which one party for a consideratioq, which is usuallypaid in money, either in one sum or at differenttimes duringthe continu- awe of the risk, promisesto make a certainpaymentof Honorable0. P. Lochhart,page 2 (O-4521) money, on the destructionor injuryof somethingin which the other party has an interest. In fire and marine in- surance,the thing insuredis property;in life or acci- dent lneurance,it la the life or the health of a person. All that is requisiteto constitutesuch a contractla the paymentof the consideration by the one and the prom- ise of the other to pay the amountof the insuranceupon the happeningof injuryto the subjectby the contingency contemplatedin the contract," In the Cyclopediaof InsuranceLax by~couch,Vol. 1, par. 34, we find life insurancedefinedin the abeenceof a statuteas a contract "dependentupon human life, wherebyone for a stipulatedconslderationj customarilycalleda'premium,agreesto pay anothera certainsum of money upon the happeningof a given contingency, usually death, or upon the terminationof a specifiedperiod." As early as 1691, the SupremeCourt of this'state,in an adopted opinion,found in SupremeCouncilof AmericanLegion of Honor v. Larmour, 16 S.W. 633, recognizeda life insurancecontractin substantially the same languageas quotedfrom the foregoingauthorities,and we quote from the opinion: ". . . an agreement,in consideration of a specified sum in the aggregate,or at statedinterval6of time dur- ing the contract,to make a paymentin money upon the de- structionor Injury of somethingin which the insuredhas an interest. Propertyis the subjectof fire and marine insurance. Life, healthand soundnessof the person con- stitutes,usually,the subject-matter of life and acci- dent insursnce. This questio+e fully consideredand decidedin Commonwealthvi Weatherbee,105 Mass. 160~ State v. Association,~lSNeb. 291, 25 N. W. Rep.7 S. W. Rep. 220. . . ."' ;. In defininga "life insurancecompany",Arti& 47i6,Revised Civil Statutes, providesthat such a companyshallbe deemed a corpora- tion doing businessunder any charterinvolvingthe paymentof money or other thing of value; conditionedon the continuanceor cessation of human ldfe, or involvingan insurance,guaranty,contractor pledge for the payment of endowmentsor annuities. Thus, in characterizing the businessof and definingsuch companies,the Legislaturehas accepted and closelyfollowedthegeneral definitionlaid down by Cooley and nu- merous other authoritivetext writersand court decisionsin a majority of the states. The specimencontractsubmitted,providesthat in the event of death of the contractholder from any causewhile insured.thereuuder the companywill immediately,upon receipt,ofdue proof of death and . Honorable0. P. Lockhart,page 3 (C-4521) of the interestsof the claimant,pay to the designatedbeneficiarys amount equal to the sum of all the premiumpayments,without interest, which have been made on the contracti The contractform in questionundoubtedlycontainsfeatures providingfor the paymentof life benefitsunder the above authorities; To say, however,t@at such policy I8 or la not classedas a life insur- ance contractwould be, strictlyspeaking,overlookingits,accidentand health features. We are not aware of any statutein Texas, relating to the InsuranceDepartment,as would requireor make it necessaryfor your Departmenttomdeterminewhetheror not with certainty,the character of the insurancecontractsubmittedis one of life Insuranceas against its being classedas an accidentand healthpolicy. By reason of its accidentand healthprovisions,we are inclinedto view the policy form as a combinedlife, accidentand health insurancecontract. It is, therefore,the opinionof this departmentthat the GFl-51 policy form of The AmericanHospital& Life InsuranceCompanyof San Antonio,Texas, providesfor the paymentof liferinsurancebenefitsand shouldbe classedas a combinedlife, accidentand health insurancecon- tract since it is not exclusivelya contractof life insurance. Yours very truly ATTORNEYGENFLMLOF TFJ#E By s/ Wm. J. R. King Assistant wMK:m:IM AppRovH)APR 23, 1942 s/ Zollle C. Steakley Acting ATTORNEYQ%NRRALOFTEXAS APPROVEDOPINIONCCMMI!lTgg BYBWR CRAIRMAN

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4064567/

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01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429762/

I. The original action in which this intervention was filed is one brought by the superintendent of banking, for the purpose of liquidating the affairs of the Farmers Savings Bank of Harper, Iowa. In March, 1921, J.M. White was appointed receiver. November 1, 1921, was fixed by the court as the time within which all claims against the bank should be filed. Up to that date, claims of various kinds in the aggregate of $135,421.29 were filed with the receiver, classified, and reported to the court. In Schedule A of the report were the claims based upon deposits, as claims having a preference under Section *Page 1157 1877 of the Code of 1897. On September 10, 1921, the town of Harper filed its claim with the receiver, as follows: "September 6, 1921. To balance of town funds $593.36 and interest from March 1, 1921, until paid." On March 13, 1922, at the regular February, 1922, term of the Keokuk district court, an order was entered, fixing April 10, 1922, at 10:30 A.M. of said day, as the time for hearing and determining the claims, with the objections thereto, and objections and exceptions to the classification of claims made by the receiver in his report. It was ordered that the receiver give notice to all known claimants by publication in two specified newspapers published at the county seat of Keokuk County, at least ten days prior to the time set for hearing. Notices were published in accordance with the order. The report of the receiver was heard, and on May 22, 1922, the court entered an order in which he found and recited that: "After due notice had been given, in compliance with the orders of this court, on all the creditors of said bank and the receiver, and the court having heard the evidence of all claims filed with the receiver, and also on the pleadings of the claimants filed herein, whether by objections to the report, claims against the bank and the receiver, or petitions of intervention, * * * approves the report of the receiver and allows all claims as recommended by him for allowance, and in the classifications as reported therein." In the report of the receiver, so approved, under Schedule A, appears the claim above set forth of the town of Harper, which was approved and allowed as a depositor's claim, under Section 1877 of the Code of 1897. As will be observed from the claim above set forth, it was filed as an ordinary depositor's claim. No preference was asked or referred to, as provided by Section 3825-a, Code Supplement, 1913. On September 21, 1922, the town of Harper filed what it styles an "Appearance, Application, Intervention and Objections to Report," in which, among other matters, it states that, in the receiver's report, the town of Harper is listed as the holder of a claim based upon a checking account in the sum of $593.36; that said claim represents a checking account for the money of said town received by said bank, said fund so received being *Page 1158 money belonging to said municipality arising from the collection of taxes; that said claim represents an indebtedness due from said bank and said receiver to said town for money assessed and levied as taxes for the benefit of said municipality; that said claim is entitled to preference in payment in accordance with the provisions of Division 2 of Section 3825-a, Code Supplement, 1913; that the order of court of March 13, 1922, fixing April 10, 1922, for hearing upon the report of the receiver, was of no force and effect, and was void for want of jurisdiction of the court to prescribe such notice; that no legal hearing was had upon said report as to the rights of intervener; that no default was entered upon said notice, as against intervener; that all hearings upon matters set forth in the receiver's report were ex-parte, and without jurisdiction of intervener; that no general distribution has been made by the receiver, and the major portion of the funds arising from the assets of said bank are now in the hands of the receiver; that the rights of parties will not be unduly prejudiced by the intervention of claimant and its claim, properly classified under Section 3825-a, Code Supplement, 1913, as entitled to preference over general depositors; that intervener is entitled to a hearing upon its claim, under Section 3796, Code of 1897, providing that, where notice is had by publication, the case may be opened and a new trial had. Claimant, intervener, moved to set aside the order entered in the original cause; that the notice given by publication be held for naught; that the order of court allowing intervener's claim as a depositor, under Code Section 1877, be set aside or modified; that said claim be entitled to have preference in accordance with the provisions of Section 3825-a, Code Supplement, 1913. On October 3, 1922, the receiver filed a motion to strike the pleading and motion of intervener to set aside the order entered March 13, 1922, approving the classification and allowance of intervener's claim, on the ground that the claim was filed as an ordinary depositor's claim; that the claim, among others, was heard without appearance or objections on the part of said town; and that the court approved the claim and its classification with other claims, in Schedule A of the report, as an ordinary depositor's claim. On December 2, 1922, the motion of receiver to strike was by the court sustained, and the motion *Page 1159 of the town of Harper to modify the former order of the court and to reopen the case was overruled. This appeal is from said rulings. II. Questions presented are: Did intervener, by filing its claim with the receiver as an ordinary claim of deposit, without asking for any preference, submit itself to the jurisdiction of the court; and, upon hearing of the report of the receiver, was it bound by the order entered on the report, approving and allowing the claim according to the terms and language of the claim? Or was the receiver required to serve personal notice on claimant of the time and place of hearing of the report of the receiver, the same as provided for the commencement of civil actions, in order to acquire jurisdiction? The receivership had been instituted and the proceedings for winding up the affairs of the bank were pending. Of this, claimant was advised. It came into the jurisdiction of the court, and filed its claim with the receiver. It must 1. APPEARANCE: take notice of proceedings thereafter. It had acts filed its claim, and thereby submitted to the constitu- jurisdiction of the court; and no notice was ting: filing necessary, to give the court jurisdiction. The claims in notice given by the receiver of the time and receiver- place of hearing claims is not a notice required ship. by any statute, but is a notice usually given to creditors, as a convenience, and reasonable and beneficial, but not necessary in order to give the court jurisdiction of claimants. The court already had acquired jurisdiction of appellant, along with other claimants who had filed their claims with the receiver, and whose claims had been presented to the court by the receiver. The order entered by the court approving and allowing the claim was with jurisdiction, and was not void. Appellant cites some cases holding that an order allowing a claim in probate is not technically a judgment, and may be corrected, set aside, or modified, for fraud, mistake, or equitable reasons. In the instant case, no claim 2. PARTIES: is made of fraud or mistake, and no equitable interveners: reasons are pleaded. The receiver classified and forfeiture recommended allowance of the claim as it was of right. presented. The order allowing the claim was entered on May 22, 1922. It was a final judgment on said claim. No appeal was taken by the town *Page 1160 because the claim was allowed under Code Section 1877, and not under Section 3825-a of the Code Supplement, 1913. Not until September 21, 1922, was this intervention attempted. Section 3594, Code of 1897, provides: "Any person who has an interest in the matter in litigation, * * * may become a party to an action between other persons, * * * either before or after issue has been joined in the cause, and before the trial commences." In Edwards v. Cosgro, 71 Iowa 296, having before us the intervention statute, we said: "It is very clear that this provision empowers a person to become a party by intervention, to an action or controversy between others, only during the pendency of the action. Under it he cannot come into the case after judgment or final order." Appellant having filed its claim as an ordinary claim for deposit, and the receiver having classified the claim as such, and so reported it to the court, and the court having passed upon the claim and approved and allowed same, and the town having failed to intervene at the hearing on the claim, it could not, after such final hearing, intervene, and have reviewed and set aside the final order of the court made at the hearing. Neither was there abuse of discretion. The court was right in dismissing appellant's petition of intervention. The judgment of the lower court is affirmed. —Affirmed. EVANS, PRESTON, and FAVILLE, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429770/

There is but little dispute in the facts. It appears that on May 4, 1922, George W. Huffman had two married daughters, Mary A. Klingaman, whose husband was C.C. Klingaman, and Mrs. Carl Haymond. The wife of George W. Huffman had died many years before, and he lived the major portion of the time with his daughter Mrs. Haymond. He was the owner of some land in Iowa, and on May 4, 1922, he entered into a written contract with Mary Klingaman, the material portions of which are as follows: "That the party of the first part (Huffman) has this day leased unto the party of the second part (Mrs. Klingaman) from and after March 1st, A.D. 1923, the following described real estate, to wit: The North East Quarter of the South West Quarter; and the North Half of the South East Quarter of Section 12, Township 75 North, Range 29, West of the 5th P.M., Iowa, for the annual cash rent of One Hundred and Eighty ($180.00) Dollars to be paid by the party of the second part to the party of the first part beginning with, and on the 1st day of March, A.D., 1924, and One Hundred Eighty ($180.00) Dollars annually thereafter on the 1st day of March each year during the life of the said party of the first part. And the said *Page 69 party of the second part further agrees to pay the taxes assessed against said real estate each and every year during the life of the said party of the first part, and to keep the buildings situated thereon insured, and also to keep the buildings and fences now on said land, or which may hereafter be placed on said land in good reasonable repair during the natural life of the said party of the first part, provided the party of the second part lives up to, and complies with all the terms of this contract and if the said party of the second part fulfills all the requirements of this contract strictly according to its terms then at the death of the said party of the first part she is to become the owner of said real estate in fee simple, and the deed this day executed by the party of the first part to the party of the second part is to be delivered to her. And the said party of the second part is in that event to accept said real estate as an advancement made to her by the party of the first part in the sum of Fifteen Thousand ($15,000.00) Dollars. It being understood that the said party of the first part has this day executed to the party of the second part a quit claim deed for said premises which is to be held by Nelson Bertholf until the death of the party of the first part, and it is not to be delivered during the life of the party of the first part, but, if the said party of the second part fully complies with all the terms of this agreement, then the said deed is to be delivered to her upon the death of the first party. It is further agreed by the party of the second part that she will farm the said premises in a good farmerlike manner during the term of this agreement. That she will not sell, or encumber said real estate in any manner during the lifetime of the said party of the first part and the said party of the first part reserves, and is to hold, the title to said real estate until his death. It is further agreed by and between the parties that in case the party of the second part fails to pay the rent herein stipulated at the times agreed upon, or if she fails to pay the taxes upon said real estate or fails in any respect to comply with this agreement then and in that event the party of the second part will forfeit all her rights under this contract and the deed hereinbefore mentioned. And in such event the party of the first part may forfeit the rights of the party of the second part herein by giving her written notice of such forfeiture thirty (30) days before the 1st day of March any year. *Page 70 It is further understood and agreed that in the event of the death of the party of the second part occurring before the death of the first party the first party shall then have the right to declare this agreement null and void, and all rights of the second party hereunder shall cease and determine and the legal representative of the second party shall not have the right to carry out this agreement without the written consent and permission of the first party, and the deed of conveyance herein referred to shall, if the first party so desires, be declared null and void and shall be returned to the party of the first part. It is further stipulated that in case of the death of Nelson Bertholf, the custodian of said deed, then said deed is to remain in the custody of the Madison County State Bank under the same terms and conditions it has been placed in the hands of Nelson Bertholf. "Dated and signed May 4, 1922." This contract was placed in escrow with one Nelson Bertholf, who was then cashier of the Madison County State Bank. The Klingamans owned another tract of land of about the same number of acres, upon which they lived. This tract, covered by the foregoing contract, for convenience will hereinafter be referred to as the "Huffman Land." There was no house on this land to which the quitclaim deed was made by Huffman, but the farm was operated by Mrs. Klingaman and her husband. During the time these properties were being operated by the Klingamans, they became badly involved financially. In February, 1925, what is known as the Cassiday judgment was obtained against the Klingamans. They had a first mortgage of $18,000.00 and a second mortgage of $5,000.00 on the farm upon which the Klingamans lived. These mortgages were in process of foreclosure in January, 1929. The Madison County State Bank also had a chattel mortgage on the property of the Klingamans which was also in process of foreclosure in January, 1929. The rental from the Huffman land which would fall due March 1st was unpaid. Taxes for the year 1929, payable in 1930, were not paid. The record shows that the Klingamans undertook to borrow $180.00 with which to pay the rent on the Huffman land, but they were not able to borrow it. Much of the proceeds of their farming operations had been absorbed in payments under the chattel mortgage to the bank, and it quite clearly appears that the Klingamans were utterly unable to pay the rent which *Page 71 was to fall due March 1, 1930, nor were they able to pay, when due, any portion of the taxes for 1929, payable in 1930. It was under such circumstances that, on February 1, 1930, the parties executed an agreement of cancellation in words and figures, to wit: "Whereas, on or about the 4th day of May, 1922, a contract was made by and between the undersigned, whereby under certain conditions Mary A. Klingaman was to accept as her share of the real estate belonging to the estate of Geo. W. Huffman, at and for an approved valuation, and a Deed conveying said land to her was executed and placed in escrow with one Nelson Bertholf to be delivered upon the death of the said Geo. W. Huffman. Now therefore it is hereby mutually agreed by and between the undersigned that said contract shall be cancelled and set aside, and the said Nelson Bertholf, is hereby authorized to cancel and surrender the said contract in his hands to Geo. W. Huffman, and to deliver to him the said Quit Claim Deed. "Witness our hands this 1st day of February, A.D. 1930. "Mary A. Klingaman, Geo. W. Huffman, C.C. Klingaman." On February 25, 1930, Mary A. Klingaman petitioned and was adjudicated a bankrupt. Claims were filed and allowed in excess of $5,700.00. The list of assets contained no reference to the Huffman land or any interest she had therein. Huffman, while he had complained about the Cassiday judgment, obtained about 1925, nevertheless had not served any notice of forfeiture of the lease by reason thereof. I. The first and controlling question before us is, Did the contract of February 1, 1930, amount to a conveyance of an interest in property in fraud of the then existing creditors of Mrs. Klingaman? To properly answer this question, we must analyze the undisputed facts. In the first place, this farm belonged to Huffman. He could sell it, mortgage it, lease it or give it away, without consideration of any kind. No one makes any claims to the property and no one asserts any interest in the property by reason of any claim of any kind or character against Huffman. *Page 72 This situation obtained when, on May 4, 1922, he made the lease to his daughter, Mrs. Klingaman. The contract is by the parties designated as a "lease," not a deed or a conveyance of any kind. Manifestly, inasmuch as Mrs. Klingaman was to pay an annual rental and pay the taxes until either she died or he died, the term of the lease was for the term of the joint lives of the two of them. In the meantime, by the express terms of the instrument, Huffman "is to hold the title to said real estate until his death." In this same connection, the instrument expressly provides that: "in the event of the death of the party of the second part (Mrs. Klingaman) occurring before the death of the first party (Huffman), the first party (Huffman) shall then have the right to declare this agreement null and void, and all rights of the second party (Mrs. Klingaman) hereunder shall cease and determine and the legal representative of the second party (Mrs. Klingaman) shall not have the right to carry out this agreement without the written consent and permission of the first party (Huffman) and the deed of conveyance herein referred to shall, if the first party (Huffman) so desires, be declared null and void and shall be returned to the party of the first part (Huffman)." Thus, Huffman not only reserved the title to the property himself, but the agreement between the parties expressly provides that at the death of Mrs. Klingaman, if prior to the death of Huffman, all the rights of Mrs. Klingaman shall immediately cease and terminate, at the option of Huffman. In its last analysis, then, the only present right which Mrs. Klingaman had was the right of possession in consideration for the payment of an annual rental, the payment of taxes, proper farming of the land, keeping up the buildings, etc. She had neither legal nor equitable title to the land. She had a contract by the terms of which she might or might not ever become the legal title holder. She could only become the legal title holder by first complying with each and every one of the provisions of the contract to be by her performed, and secondly, by the death of her father during her lifetime. Until the death of the father during her lifetime, no title, legal or equitable, passed *Page 73 to her. It became of no force and effect until Huffman died during the life of Mrs. Klingaman. If Mrs. Klingaman died first, the deed passed immediately back to Huffman. She could not enforce, by action for specific performance or otherwise, the transfer of any title to her. Her right to a title could in no event mature until Huffman died. If she in the meantime died, no title would pass even at his death to her heirs, except at his option. In other words, if she died, Huffman could do with the land as he wished. What she had paid would be only payment of rent. It appears, then, that even the possibility of a title which Mrs. Klingaman had might be absolutely terminated either by her failure to comply with the provisions of the lease or by her death prior to the death of Huffman. The lease contains another provision to the effect that Mrs. Klingaman should not sell or encumber the real estate during the lifetime of Huffman. Apparently this was a measure of extreme precaution or warning, and nothing more, for manifestly she could not sell or encumber that which she did not own. This lease is a purely personal contract. By it, Huffman was bestowing upon his daughter the benefit of the possession of the land for a very nominal consideration. He was in no sense dealing with her as a purchaser in the ordinary acceptation of the term. He was not giving her anything which should pass to and become the property of her creditors. He definitely negatived this idea by his warning that she should not sell or encumber the land. He retained not only the title, but the absolute control of the property save and except that if she complied with all the terms of the lease she would be entitled to the possession of the premises from year to year, and at his death, if she survived, the land would pass to her. Any possible ownership of the land by her was entirely contingent. Manifestly, her creditors could not acquire any rights higher than those which she possessed. See Johnson vs. Smith, 210 Iowa, 591. In that case, this court said: "The appellant, as a judgment creditor of Charles R. Smith's, was entitled to take no portion of the personal property or real estate not owned by the debtor. `His right can rise no higher than that of his debtor.' Cumming vs. First Nat. Bank, 199 Iowa, 667; Vanderwilt vs. Broerman, 201 Iowa, 1107 *Page 74 (local citation, 1115); Hunter vs. Citizens Sav. Tr. Co., 157 Iowa, 168 (local citation, 171); Watson vs. Bowman, 142 Iowa, 528. `A judgment creditor is not a subsequent purchaser for value of the land'. Cumming v. First Nat. Bank (199 Iowa 667), supra." The plaintiff asks to have the cancellation contract of February 1, 1930, set aside, thus treating it in the nature of a conveyance by Mrs. Klingaman to her father. In the last analysis, the plaintiff, trustee in bankruptcy, is seeking to enforce what is claimed to be a lien of the judgment of creditors on the land in controversy, on the theory that the land belonged to Mrs. Klingaman. See Hoskins v. Johnston,205 Iowa 1333, l.c. 1339, in which this court said: "II. An action in equity in the nature of a creditor's bill is not, in a strict legal sense, the `setting aside of a conveyance.' This is not what, in fact, takes place. The conveyance is not set aside, in a literal sense, but the lien of the plaintiff is established against the real estate as prior and superior to the rights of the grantee, and a deed to the real estate is voided only so far as to permit the lien of the creditor to be established as prior and superior to the rights of the grantee. In other words, it is a pro tanto or quasi setting aside of the deed, so as to permit the rights of creditors to intervene. It is not the setting aside the conveyance absolutely, so as to vest title in the trustee. This is the quite universal doctrine, and is the settled law in Iowa. Crowley v. Brower,201 Iowa 257; Bond v. Warren County State Bank, 201 Iowa 1175." Section 11602 of the Code of 1931 (Section 3801 of the Code of 1897) provides for liens of judgments upon real estate. Sub-section 8, Section 63, Code, 1931 (Paragraph 8, Section 48, Code, 1897), defines lands and real estate. In Saunders v. Wilson, 207 Iowa 526, this court said: "It remains to consider the question whether a contingent remainder is subject to seizure and judicial sale in favor of a creditor. * * * In the Taylor case (Taylor v. Taylor, 118 Iowa 407), we said: `Under our statute, judgments "are liens upon the real estate owned by defendants" (Section 3801, Code [1897]), and real estate "includes lands, tenements, hereditaments, *Page 75 and all rights thereto and interests therein" (Paragraph 8, Section 48, Code). These sections contemplate a present tangible right to or interest in the land: that is, it must be owned by the judgment defendant at the very time the lien is claimed to have attached.' * * * In that case (McDonald v. Bayard Sav. Bank,123 Iowa 413), we construed the Taylor case as holding that a contingent remainder in land is not subject to execution sale. * * * Pursuant to our holding in the Taylor case, we must now hold that a mere contingent remainder is not subject to sale on execution." In Noonan v. State Bank of Livermore, 211 Iowa 401, this court had under consideration the rights of a trustee in bankruptcy to a remainderman's contingent interest, and said: "In 1 Federal Statutes Annotated (2d. Ed.) 1150, it is said that a trustee in bankruptcy is vested by operation of law with the title of the bankrupt in (Subdivision 5, Page 1171) property which, prior to the filing of the petition, he could by any means have transferred or which might have been levied upon and sold under judicial process against him. It will be noted that this section covers two kinds of property: First, any property which could by any means have been transferred by the bankrupt; second, which might have been levied upon and sold under judicial process against him. It is evident under this section of the Federal statute that the question of whether any interest in property would pass to the trustee of a bankrupt depends upon the statutes and decisions of the local state." Manifestly, Mrs. Klingaman had no interest which she could convey. The lease, by its express terms, prohibited any conveyance. Moreover, she had no interest which could be the subject of conveyance. It is apparent she had no such interest as "might have been levied upon and sold under judicial process against her." It appears then that the lease gave Mrs. Klingaman the right of possession, providing she paid the rent and complied with the other terms of the lease. It also gave her what amounted to an option to receive the land at the death of Huffman, if she survived. This option was dependent entirely upon a complete performance of all the terms and conditions of the lease on her part and her survival of her father. Surely such a purely *Page 76 personal option contract passed no present title to her, and it was of such a character that it could be cancelled by agreement of the parties thereto. No third parties, under the facts in this case, could have any interest therein. The provision providing for a notice of forfeiture inured entirely to the benefit of Mrs. Klingaman, and she had a perfect right to waive the same. Under the particular and somewhat peculiar provisions of the lease from Huffman to his daughter, nothing passed to the trustee in bankruptcy by the voluntary petition in bankruptcy of Mrs. Klingaman. There was no preference to Huffman. The title to the 120 acres of land remained always in Huffman, and by the settlement of February 1, 1930, all present and possible future interest of Mrs. Klingaman therein was voluntarily terminated and renounced. It follows that the cause must be, and is, — Reversed. FAVILLE, C.J., and EVANS, MORLING, and KINDIG, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429772/

[1] The appellant's brief and argument contains the following as the only statement of errors relied upon for reversal: "The errors relied on for a reversal of this case are the decision of the Court overruling the motion to direct the jury to return a verdict in favor of the Defendant and in sustaining plaintiff's motion to direct a verdict in his favor, and in entering judgment for the plaintiff." The motion for a directed verdict in behalf of the appellant contained fifteen separate grounds. The appellee's motion for a directed verdict rested upon five separate and distinct grounds. The court overruled the appellant's motion for a directed verdict and sustained the appellee's motion generally, and entered judgment for appellee. I. Appellee challenges the sufficiency of the errors relied upon for reversal to comply with Rule 30 of this court. Unless we are to overrule a long line of decisions, the position of the appellee must be sustained. Many of the cases are collected and reviewed in the opinion in Dailey v. Standard Oil Co., 213 Iowa 244. It is unnecessary that we repeat the citations herein. As particularly applying to a situation such as is presented in the case at bar, when the errors relied upon for reversal refer to a motion which is based on several different grounds and which is ruled upon generally, see Reynolds v. Chehak, 199 Iowa 561; *Page 229 Central Trust Co. v. City of Des Moines, 204 Iowa 678; Bodholdt v. Townsend, 208 Iowa 1350. The cited cases and many others that are referred to therein have definitely and repeatedly established the rule of this court. The errors relied on for reversal in the instant case, under the record and under our repeated holdings, present nothing for our consideration. [2] In this connection we deem it not improper to refer to the fact that there seems to be a somewhat general misapprehension among the bar as to the effect of Code 12869, which is as follows: "No assignment of errors shall be required in any case at law or in equity docketed in the supreme court." As early as 1918 we considered this statute in the case of Wine v. Jones, 183 Iowa 1166. We then said: "The rule requires that appellant state the errors relied on for reversal. Sections 4136 and 4137 of the Code exacted the assignment of errors as a condition of having them reviewed, but these statutes were repealed by the thirtieth general assembly, and it enacted that: `No assignment of errors shall be required in any case at law or in equity now pending or hereafter docketed in the Supreme Court.' Section 4136, Code Supplement, 1913. (Code, 1927, 12869). "Counsel for appellant contend that the rule is in conflict with this statute, and if so, the authority of this court to adopt the same is rightly challenged. The manifest purpose of the statute was to do away with certain abuses which had grown up under the practice under the statutes repealed, sometimes as high as 400 or 500 errors being assigned in a single case, and much refinement being indulged in ascertaining whether the assignment of error complied with Section 4136, which declared that it `must clearly and specifically indicate the very error complained of.' In remedying this abuse, however, the legislature had no notion of impinging upon the Constitution, which, in Section 4 of Article 5, declared that: "`The Supreme Court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may by law prescribe; and shall have power to issue all *Page 230 writs and process necessary to secure justice to parties, and exercise a supervisory control over all inferior judicial tribunals throughout the state.' "The legislature may impose restrictions, as by limiting appeals by the amounts in controversy (Andrews Smith v. Burdick Goble, 62 Iowa 714); but it may not, by the enactment of restrictions, so change the character of the court as that it shall be other, in reviewing a law action, than `a court for the correction of errors at law.' It cannot be assumed that all adverse rulings are challenged as erroneous. On the contrary, they are conclusively presumed to have been correct, in so far as the particular cause is concerned, until complaint, in some manner, is lodged against them. How shall those of which complaint is raised be ascertained by the reviewing court? The rulings cannot well be reviewed unless the reviewing tribunal is informed of the particular rulings of which complaint is made. In other words, it cannot well correct a ruling without ascertaining in some manner what it is called upon to examine and, if erroneous, correct. This is inherently essential to any review of a ruling the correctness of which is challenged, and cannot be prohibited by the general assembly. Nor do we think such was its purpose in enacting Section 4136 of the Code Supplement, 1913 (Code, 1927, 12869). All intended was to dispense with the so-called assignment of errors as a separate pleading in the case, formerly included separately in the abstract and required to be served on appellee 10 days before the first day of the trial term, in the absence of showing of good cause for failure, to avoid dismissal or affirmance. Technically, an assignment of errors is a pleading, in the nature of a petition, reciting the rulings complained of and invoking the jurisdiction of the appellate court. Lamy v. Lamy, 4 N.M. 29 (12 P. 650); Hinkle v. Shelley, 100 Ind. 88; Wells v. Martin, 1 McCook (Ohio St.) 386, 388; Powell on Appellate Proceedings, 277; Ditch v. Sennott,116 Ill. 288 (5 N.E. 395); Associates of Jersey Co. v. Davison, 29 N.J.L. (5 Dutch.) 415. The statute dispenses with this formal pleading, but does not undertake to prescribe the manner of arguing errors complained of, in presenting a cause to this court." To the cases cited in the Wine case regarding the nature of an assignment of errors there may be added the following: *Page 231 Scott v. Great Western Coal Coke Co., 223 Ill. 271 (79 N.E. 53); First National Bank v. William R. Trigg Co., 106 Va. 327 (56 S.E. 158); Jones v. Atlantic Coast Line R. Co., 153 N.C. 419 (69 S.E. 427). It is perfectly obvious that the statute in question (Code, 12869) in no manner relieves counsel of the necessity of presenting a proper statement of errors relied upon for reversal. The necessary particularity required to make such statement comply with Rule 30 of this court has been repeatedly reiterated and emphasized by many decisions. We must enforce the rule as to all litigants in this court or abrogate it entirely. The latter alternative we cannot adopt. [3] II. After appellee had filed his motion to dismiss, directing attention to the failure of appellant to properly set out errors relied upon for reversal, the appellant, by an additional and amended brief and argument, seeks to avoid the appellee's contention by attempting in said additional and amended brief and argument to amend the errors relied upon for reversal, setting out the pages of the abstract where the motions of the respective parties are set forth. Even if this had been included in appellant's original brief and argument it would have been insufficient. Bodholdt v. Townsend, supra. Upon the case as presented to us, the judgment of the district court must be affirmed. A ruling on the motion to dismiss which was submitted with the case is obviated by the conclusion we reach. The judgment is — Affirmed.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429842/

The defendant, by county attorney's information, was accused of the crime of rape, by force and against her will, of a woman over seventeen years of age, as defined in section 698.1, Code of 1946 (section 12966, Code of 1939). The crime is alleged in the information to have been committed October 13, 1945. Following a plea of not guilty the cause was tried to a jury, which returned a verdict of guilty, and on the overruling of exceptions to instructions and motion for new trial defendant was sentenced to imprisonment in the reformatory. From the judgment and sentence defendant appeals. The evidence showed admissions of the defendant as to intercourse, and neither on the trial of the case nor here did he deny the fact of such intercourse but alleged consent. His appeal is based only on certain claimed errors in instructions. So it is not necessary to go into the testimony to any great extent. The act occurred late at night, in a secluded place, after a drive by a party of two men and two women in an automobile from Cedar Rapids to Marion. After leaving one of the two young women at her home in Marion, the other woman and the two young men returned to Cedar Rapids, thence to a factory shed on the outskirts of the town, where the prosecuting witness testified she was overcome by the violence of her escort, the defendant. She testified she made resistance for a considerable time — she says two hours — and claims she called to the other man, who remained in the car at some distance. He says he did not hear. Either he did not hear or did not want to interfere. At any rate, the defendant accomplished his purpose. On their *Page 20 return the woman made immediate complaint to the police. The above is an outline of the facts as developed by the testimony. The sufficiency of the evidence to constitute a question for the jury is not challenged. It is enough to say that there was evidence of resistance on the part of the woman sufficient to authorize the jury to return a verdict of guilty. She testified fully to the facts and extent of the resistance offered and there were circumstances which tended to support her testimony. [1] I. Defendant's first assignment of error is that the court erred in giving the last paragraph of Instruction No. 3, which instruction sets out included offenses. This paragraph of the instruction directs the jury to acquit the defendant of any and all offenses of which they have a reasonable doubt and convict him, if at all, of the highest offense submitted of which they are satisfied beyond a reasonable doubt he is guilty. The objection made is that such paragraph "singles out the highest offense and directs the jury's attention to convict the defendant if at all of the highest offense." His objection is also that the paragraph gave undue prominence to the highest offense "and secluded the lesser offenses." Defendant's argument, however, in referring to the paragraph omits the line, "of which you are satisfied beyond a reasonable doubt he is guilty." The paragraph is not subject to the objection made and is clear and could not be misunderstood. [2] II. The defendant claims that the court erred in giving written additional Instructions No. 4-A and No. 9-A to the jury after the jury was in disagreement and after they had deliberated for about nineteen hours. The jury were instructed and retired at 2:25 in the afternoon of November 29th, and at 9:25 a.m. the next day, at their request, were returned to the courtroom for additional instructions. After some delay additional instructions were given them and they retired to the jury room at 11:15 a.m. and returned with their verdict at 12:20 p.m. It seems that the question in the minds of the members of the jury was as to resistance. The action of the court in giving such instructions was fully authorized by law and upheld by our decisions. Section 784.2, Code of 1946 (section 13911, Code of 1939), is as follows: *Page 21 "After the jury has retired for deliberation, if there be any disagreement as to any part of the testimony, or if it desires to be informed on any point of law arising in the cause, it must require the officer to conduct it into court, and, upon its being brought in, the information required must be given as provided by law, in the presence of or after oral notice to the county attorney and defendant's counsel." See State v. Hunt, 112 Iowa 509, 84 N.W. 525; State v. Pitts, 11 Iowa 343; 23 C.J.S. 1045, 1046, section 1376 (c), cited by the State. Defendant cites various cases concerning the giving of additional instructions: State v. Peirce, 178 Iowa 417, 159 N.W. 1050; State v. Mace, Mo. Sup., 278 S.W. 718; State v. McNabb, Mo. Sup., 267 S.W. 606; none of which supports his contention. The Peirce case, in particular, was of the type sometimes given urging agreement, but itself points out that the court may give such instructions. They were given in this case at the request of the jury, as was proper. [3] III. As to the additional instructions: Defendant does not claim that they are incorrect statements of the law but that they repeated original instructions "marshalling the evidence by special mention" and gave undue prominence to a particular phase or feature that the jury asked about. The complaints as to the wording of the instructions have little foundation. Instruction No. 4 consisted of explanations and definitions of the crime and referred to proof of force or violence and to the showing of resistance necessary in order to constitute the crime. Number 4-A merely amplified that part of the former instruction as refers to the necessary proof of want of consent, explaining the wording "resistance to the extent of her ability." It necessarily referred to and repeated portions of the previous instruction in so amplifying it but did not emphasize any particular part. The same may be said of Instruction No. 9 and No. 9-A. No. 9-A was an extension of No. 9 but was not open to the criticism of defendant. It referred only to assault with intent to commit rape. It correctly supplements the original by telling the jury that if there was consent, but if, before consent was given, it appears from the evidence, beyond a reasonable doubt, that defendant used such force as to *Page 22 evince an intention to commit rape, defendant may nevertheless be convicted of an assault with intent to commit rape. The instruction was correct. State v. Atherton, 50 Iowa 189, 32 Am. Rep. 134; State v. Cross, 12 Iowa 66, 79 Am. Dec. 519; State v. Pilkington, 92 Iowa 92, 60 N.W. 502; 52 C.J. 1031, section 43. And, since the defendant was convicted of the higher offense, he cannot now complain of this instruction as to assault with intent to commit rape. State v. Neitzel, 155 Iowa 485, 136 N.W. 532, cited in State v. Evenson, 237 Iowa 1214, 1221, 24 N.W.2d 762, 766. These additional instructions were connected with the original instructions by No. 9-B, which directed that they should be considered with Nos. 4 and 9, as well as with all other instructions given. There was no error in these instructions, given at the jury's request. They correctly answered the question of law as to which the members of the jury seemed in doubt and supplied the needed information. Under the statute it was the duty of the court to assist the jury to a clearer understanding of the questions involved. Some suggestions were made in argument as to the shortness of time between giving of the additional instructions and the return of the verdict. Also as to the use of the word "evince" as being unusual. We find no merit in these contentions. The State, before the case was submitted, filed a motion to strike from the record defendant's second amendment to the record. This motion was, by the court, ordered to be submitted with the case. This motion is overruled. Having considered the record and arguments, we find no error in the proceedings and the cause is affirmed. — Affirmed. All JUSTICES concur. *Page 23

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429854/

The case is before us on rehearing. Counsel have very considerately presented an agreed statement of the record, which removes the uncertainties of the record upon which the case was first heard. A carload of coal was sold to the Brooks Coal Company. The Brooks Coal Company was unable to take up the bill of lading or pay for the coal, and never acquired its ownership or possession. A drayman, Couch, with a view of getting the hauling, suggested to plaintiff that plaintiff purchase the coal, promising to take orders, do the hauling, weigh the coal, and give scale tickets to the purchasers. Plaintiff thereupon purchased *Page 920 the car of coal from the original seller, on whose order it was released by the carrier to the plaintiff. Couch delivered to defendant 7 loads, aggregating 15 tons, 590 pounds, for the price of which this action is brought. A scale ticket for each load, showing the amount of coal, naming plaintiff as deliverer and defendant as deliveree, was given to defendant's janitor. "Immediately after the first of January, 1922," plaintiff called defendant Hood, who was doing business under the name of "Greenwood Grocery Company," demanding payment, which Hood refused. Later, plaintiff's employee presented a bill to Hood. Hood told him that he had purchased the coal from Brooks; that Brooks owed defendant, and he had purchased the coal from Brooks in order to realize on his bill. He said that he was going to credit Brooks's account and was not aware that he had purchased any coal belonging to plaintiff. Defendant was not acquainted with either Couch or Brooks. Plaintiff's original petition alleges that: "On or about the 30th day of December, 1921, the plaintiff sold and delivered to said defendants 30,590 pounds of coal at the price of $7.50 per ton." An amendment states that the sale was by oral agreement: that "A copy of the statement of said account is set out below, as follows: "Greenwood Grocery John E. Hood, in account with Chandler Milling Manufacturing Company, 12-30-21 4000 lbs. * * *" (so continuing five items totaling 15 tons, 590 pounds, at $7.50, $114.50.) This amendment also alleges that the coal was ordered by Hood, and another amendment alleges that it was ordered from Couch. There is no allegation of any contract price or any agreed quantity or any agreed terms. The answer denies that defendants purchased any coal from plaintiff, and alleges that defendants purchased from Brooks, and "that within five days thereafter defendants paid" Brooks. There is no evidence (there is the unsupported declaration referred to) that defendant did purchase, or that he understood he was purchasing, from Brooks, or that he had any account *Page 921 against Brooks or paid Brooks or gave Brooks credit for the coal. The evidence shows without controversy that the reasonable value of the coal at the time and place of delivery was $7.50 per ton. There was no objection to this evidence, no objections were taken to the pleadings, and no question of variance was raised. Defendant's contentions here are that the action is on an express contract and there can be no recovery upon an implied one, and that, where one of two innocent persons must suffer from the acts of a third, he whose acts occasioned the loss must bear it. If the objection of variance had been made in the lower court, it could have been immediately corrected. On the record, plaintiff's right to have the defendant pay him for this coal cannot be doubted. The allegations of the amendment are sufficient to permit the introduction of evidence of delivery of the coal and of its market value. The plaintiff was not required to prove any more of his allegations than were necessary to constitute a cause of action. On the undisputed evidence, the defendant received from plaintiff a definite quantity of coal of a definite market value. He retained it after he was informed of plaintiff's rights. To sustain defendant's contention would be to pervert the law of pleading and to bring reproach to the law. On the pleadings and the evidence, plaintiff is entitled to recover.Lee v. Coon Rapids Nat. Bank, 166 Iowa 242; Hunt Co. v. Higman,70 Iowa 406; Harrison v. Palo Alto County, 104 Iowa 383, 390. Defendant's affirmative claims are without support in the evidence. The judgment is — Affirmed. FAVILLE, C.J., and EVANS and ALBERT, JJ., concur. *Page 922

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4031173/

REVERSE and REMAND; and Opinion Filed August 31, 2016. Court of Appeals S In The Fifth District of Texas at Dallas No. 05-15-01373-CV JSC LAKE HIGHLANDS OPERATIONS, LP D/B/A VILLAGES OF LAKE HIGHLANDS, METROSTAT DIAGNOSTIC SERVICES, INC., RICHARD M. WILLIAMS, M.D. AND RICHARD M. WILLIAMS, M.D., P.L.L.C., Appellants V. KAREN MILLER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF BETTY RUTH HATHCOCK AND BETTY CROCKETT, INDIVIDUALLY, Appellees On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-15-00297-C MEMORANDUM OPINION Before Justices Bridges, Lang, and O’Neill 1 Opinion by Justice Bridges Appellants JSC Lake Highlands Operations, LP d/b/a Villages of Lake Highlands (JSC), Metrostat Diagnostic Services, Inc., Richard M. Williams, M.D., and Richard M. Williams, M.D., P.L.L.C. filed motions to dismiss pursuant to chapter 74 of the Texas Civil Practice and Remedies Code based on the expert reports filed by appellee Karen Miller, individually and as representative of the Estate of Betty Ruth Hathcock and Betty Crockett, individually (collectively Miller). The trial court denied the motions. On appeal, all four appellants argue the trial court abused its discretion by denying their motions to dismiss because none of the expert 1 The Hon. Michael J. O’Neill, Justice, retired, sitting by assignment. reports sufficiently identify causation. JSC further argues Miller’s expert reports fail to adequately state the standard of care. Because we conclude the trial court should have granted the motions to dismiss as to all three appellants, we reverse and remand this cause to the trial court for rendition of judgment dismissing with prejudice Miller’s claims and for a determination of reasonable attorneys’ fees and costs. Background In February 2013, Betty Ruth Hathcock was discharged from Presbyterian Hospital and admitted to JSC for rehabilitation. On March 22, 2013, around 11:45 a.m., Hathcock received a phone call from her daughter, Betty Crockett. Hathcock was slow to answer the phone, and Crockett thought Hathcock’s voice sounded strange. Around 5 p.m. that same day, Hathcock told the nursing staff at JSC her dental bridge was missing. Staff searched her room but did not locate the bridge. They also told laundry staff to be on the lookout for it. JSC called Karen Miller, also Hathcock’s daughter, and told her Hathcock was upset over the loss of the bridge. Miller sent her husband to JSC to look for the bridge; however, his search was unsuccessful. Miller talked to her husband and Hathcock around 7 p.m. Miller thought Hathcock’s voice sounded “raspy.” By 8 p.m., Hathcock started coughing and exhibited signs of chest congestion. Dr. LeJeune ordered Robitussin and a “stat” chest x-ray. The staff did not inform him that Hathcock’s bridge was missing. Metrostat provided portable, onsite x-ray services to JSC. Casey Oaks, a radiologic technologist, took a chest x-ray of Hathcock between 9 p.m. and 10 p.m. on March 22. He forwarded the images to Dr. Richard M. Williams for review. Dr. Williams’s report noted that Dr. LeJeune ordered the chest exam because of a cough. Dr. Williams’s findings stated, “The heart is normal in size and configuration. The aorta and other mediastinal structures are in the –2– midline. There is bilateral lower lobe infiltrate.” His report did not mention any foreign object in the proximal trachea. The record does not indicate when Dr. Williams sent his final report to JSC, but the first mention of the chest x-ray in nursing notes was around 6:30 a.m. on March 23. It states the doctor was notified of the results and ordered 500 mg of Levoquin. JSC staff found Hathcock unresponsive in her room at approximately 7:10 a.m. Hathcock was transported to the hospital and upon her arrival, she was unresponsive, hypotensive, and having seizure-like movements. When ER doctors tried to intubate, they discovered the missing bridge lodged in her throat. After the bridge was extracted, Hathcock was transferred to ICU. Despite aggressive treatment and support, Hathcock did not improve and her family requested removal of life support. Hathcock died at approximately 2 p.m. Her death certificate listed pulmonary edema, pneumothorax, and aspiration as the causes of death. Miller filed suit under the Texas Medical Liability Act against JSC, Metrostat, and Dr. Williams and his professional corporation alleging various breaches of the applicable standards of care, which proximately caused her mother’s death. Miller argued the delay in discovering Hathcock’s bridge led to her death. Miller filed four expert reports in support of her claims: (1) Dr. Teresa Albright opined on JSC’s conduct; (2) Dr. David Naeger opined on Dr. Williams’s conduct; (3) Dr. Ravi Patel’s opinion did not reference any specific individual’s conduct but discussed causation; and (4) Christi Carter, M.S.R.S., RT(S), CIIP opined on Metrostat’s conduct. Appellants filed objections and moved to dismiss the suit for failure to serve adequate expert reports under section 74.351 of the Texas Civil Practice and Remedies Code. After a hearing, the trial court sustained the objections and granted Miller a thirty-day extension to cure the deficient reports. –3– Miller served amended reports, and appellants again moved to dismiss for failing to satisfy the requirements of section 74.351. The trial court held a hearing and denied appellants’ motions to dismiss. This interlocutory appeal followed. Standard of Review and Applicable Law We review a trial court’s decision on a motion to dismiss under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The trial court abuses its discretion if it acts unreasonably, arbitrarily, or without reference to any guiding rules or principles. Id. We may not reverse a trial court’s discretionary ruling simply because we may have decided it differently. Id. Trial courts are instructed that they “shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with [the Act.]” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l) (West Supp. 2015). Under the statute, the expert report must provide a “fair summary” of the expert’s opinions regarding applicable standards of care, the manner in which the care rendered by the defendant physician or healthcare provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6). The causation requirement is met if the report explains the basis of the expert’s statements, linking his conclusions to the facts. Christus Spohn Health Sys. Corp. v. Lackey, No. 13-10-00222-CV, 2010 WL 3279706, at *2 (Tex. App.—Corpus Christi Aug. 19, 2010, no pet.) (mem. op.). Causation may not be inferred; therefore, a conclusory report does not meet the statutory requirements of chapter 74. See Castillo v. August, 248 S.W.3d 874, 883 (Tex. App.— El Paso 2008, no pet.); see also Lackey, 2010 WL 3279706, at *2. –4– An expert report need not marshal all of the plaintiff’s proof, but it must include the expert opinion on each of the elements identified in the statute. Kelly, 255 S.W.3d at 672. The report must provide only enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the trial court to conclude that the claims have merit. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Kelly, 255 S.W.3d at 672. In deciding whether the statutory standard has been met, the trial court examines only the four corners of the expert’s report and curriculum vitae. Kelly, 255 S.W.3d at 672. A court may not fill gaps in a report by drawing inferences or guessing what the expert meant or intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.). With this standard in mind, we consider the expert reports filed against each appellant. Dr. Patel’s Expert Report Because Miller relied partly on Dr. Patel’s expert report for causation as to all four appellants and all four appellants argue his report is insufficient as to causation because it does not address how each named defendant’s conduct caused the injury, we begin by determining the sufficiency of this report. A causal relationship is established in an expert report by proof that the negligent act or omission was a substantial factor in bringing about the harm, and that absent the act or omission, the harm would not have occurred. Nexion Health at Garland, Inc. v. Townsend, No. 05-15- 00153-CV, 2015 WL 3646773, at *4 (Tex. App.—Dallas June 12, 2015, pet. denied) (mem. op.). An expert may show causation by explaining a chain of events that begins with the defendant health care provider’s negligence and ends in injury to the plaintiff. McKellar v. Cervantes, 367 S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no pet.). While a claimant is not required to conclusively prove the case through preliminary expert reports, the reports may not merely state –5– conclusions but must link the causation opinions to the alleged breach. Townsend, 2015 WL 3646773, at *4. Merely providing some insight into the plaintiff’s claims does not adequately address causation. Tenet Hosps. Ltd. v. De La Riva, 351 S.W.3d 398, 404 (Tex. App.—El Paso 2011, no pet.). Further, when a plaintiff sues more than one defendant, the expert report must set forth the standard of care applicable to each defendant and explain the causal relationship between each defendant’s individual acts and the injury. Id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6) (a claimant must provide each defendant with an expert report that sets forth the manner in which the care rendered failed to meet the standards of care and the causal relationship between that failure and the injuries claimed). An expert report may not assert that multiple defendants are all negligent for failing to meet the standard of care without providing an explanation of how each defendant breached the standard of care and how that breach caused or contributed to the cause of injury. Tenet Hosps. Ltd., 351 S.W.3d at 404. Here, Dr. Patel’s report does not reference multiple defendants but rather does not identify any of the alleged responsible defendants in this case. His report provides the following opinion as to Hathcock’s death: Ms. Hathcock expired on March 25, 2013. Her final diagnosis was cardiorespiratory failure secondary to anoxic brain injury secondary to cardiac arrest. Had the lodged denture implant been timely discovered and had she received appropriate treatment to remove the denture implant at an earlier stage, it is reasonably medically probable that Ms. Hathcock would have survived. It is my medical opinion, based upon my care and treatment of Ms. Hathcock and in all reasonable medical probability, that the denture implant lodged in the throat/trachea area of her airway was the cause of the aspiration which produced the pulmonary edema and pneumothorax which, collectively, was a proximate cause of death. –6– This is deficient for causation. Looking to the four corners of the report, as we must, Dr. Patel’s report does not explain, identify, or describe what conduct, act, or omissions are attributable to any of the appellants, that is, the report does not explain the causal relationship between any of the appellants’s individual acts and Hathcock’s injury. See Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d 636, 639 (Tex. App.—Dallas 2003, pet. denied) (concluding expert report did not meet statutory requirements when it failed to mention any defendants by name or summarize the ways they breached the standard of care or caused plaintiff’s injuries). Rather, the report would have us infer which party was responsible and caused the injury. We may not make such inferences. See Austin Heart, P.A., 228 S.W.3d at 282. We are unpersuaded by Hathcock’s argument that Dr. Patel’s report should be read in conjunction with the other expert reports to fulfill the requirements of chapter 74. It is true that the expert requirement may be satisfied by utilizing more than one expert report, and thus, we may read those reports together to supply the missing elements. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(i). However, Dr. Patel’s report does not state that he reviewed any of the other expert reports in reaching his conclusions. See Tenet Hosps. Ltd., 351 S.W.3d at 405 (concluding report was insufficient to support causation, in part, because expert did not reference other reports in arriving at his conclusion and court would not infer who caused injuries). His report does not indicate he knew that Hathcock was a patient at JSC, that Metrostat took the x- ray, or that Dr. Williams read and interpreted the x-ray. Consequently, because we cannot determine whose conduct Dr. Patel’s causation opinion implicates, we must conclude the report is insufficient to establish the same. See Bogar v. Esparza, 257 S.W.3d 354, 364 (Tex. App.— Austin 2008, no pet.) (concluding expert report deficient when it failed to identify in any way the person whose conduct was the subject of opinions “because it would require the reader to infer or make an educated guess as to whose actions the expert is complaining”). –7– In reaching this conclusion, we also note in the original hearing on the motions to dismiss, the trial court raised concerns about the conclusory nature of Dr. Patel’s report and suggested to Miller’s attorney, “It’s only going to take him a couple of sentences” to explain the sequence of events that caused her death. The trial court allowed for a thirty-day extension for Miller to amend Dr. Patel’s report. After filing an amended report, the court held another hearing. During that hearing the trial court made it clear that it was not concerned with Dr. Patel’s report, but believed that the remaining physicians’ expert reports were sufficient standing alone or that Dr. Albright’s causation opinion was sufficient to “fill the gaps” between the defendants. Thus, although it does not appear the trial court relied on Dr. Patel’s expert report, to the extent it may have, we conclude the trial court abused its discretion. We now consider whether the remaining expert reports satisfy the requirements of chapter 74 as to Metrostat, JSC, and Dr. Williams. Metrostat In support of her claim against Metrostat, Miller relied on the expert reports of Dr. Patel and Christi Carter, M.S.R.S., RT(S), CIIP. In a single issue, Metrostat argues the trial court abused its discretion by denying its motion to dismiss because the reports do not provide a valid causation opinion. As discussed above, Dr. Patel’s opinion may not be used to satisfy causation because the report neither discusses Metrostat nor states Dr. Patel reviewed Carter’s expert report in reaching his conclusions. See Tenet Hosp. Ltd., 351 S.W.3d at 405; Eichelberger, 99 S.W.3d at 639. Carter’s opinion, while it discusses Metrostat’s standard of care and alleged breaches of the standard of care, is inadequate to establish causation because she is not a physician; therefore, she is not qualified to provide a causation opinion. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(r)(5)(C), 74.401(g). Thus, Miller did not file any expert report sufficiently linking the –8– alleged breaches of the standard of care to any conduct by Metrostat that proximately caused Hathcock’s injuries. Accordingly, Miller failed to comply with the expert report requirements of Chapter 74. Because Miller failed to comply with the expert report requirements of chapter 74, the trial court abused its discretion by denying Metrostat’s motion to dismiss. In reaching this conclusion, we are mindful of the fact the record indicates the trial court read Dr. Albright’s opinion in conjunction with Carter’s opinion to establish causation as to Metrostat. However, Miller has not argued in response on appeal that Dr. Albright’s opinion is sufficient to establish causation as to Metrostat. Moreover, Dr. Albright’s expert report analyzed the “care and treatment provided by [JSC],” and made no mention of Metrostrat. As such, we shall not consider Dr. Albright’s report. We sustain Metrostat’s issue. Accordingly, we reverse the trial court’s order denying Metrostat’s motion to dismiss. We remand this cause to the trial court for rendition of judgment dismissing with prejudice Miller’s claims against Metrostat and for a determination of Metrostat’s reasonable attorneys’ fees and costs. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1), (2). Dr. Williams In support of her claim against Dr. Williams in the trial court, Miller relied on the expert reports of Dr. Patel and Dr. Naeger to establish causation. On appeal, she further argues Dr. Albright’s report supports causation. Dr. Williams contends none of the reports provide an adequate expert opinion as to causation because they provide nothing more than conclusory statements. Moreover, he argues Dr. Albright is not qualified to give an expert opinion as to causation. Having concluded that Dr. Patel’s expert report is insufficient, we address only the adequacy of Dr. Naeger’s and Dr. Albright’s reports. We begin with Dr. Naeger’s report, in –9– which Dr. Williams specifically challenges his causation opinion as conclusory and not linked to any of his conduct. Miller alleged in her original petition that Dr. Williams “failed to detect and report the high density foreign object” in the March 22, 2013 chest x-ray and “failed to contact and alert the ordering provider on any immediate basis of the need for an intervention for removal of [the] foreign object,” thereby proximately causing Hathcock’s death. Dr. Naeger’s report states Dr. Williams did not meet the applicable standards of radiologic care by “failing to detect and report the high density foreign object” and “failing to contact and alert the ordering provider on an immediate basis of the need for an intervention for removal of a foreign object to prevent possible harm.” 2 He stated by not identifying the foreign object and calling the ordering provider, “this delayed a timely removal of the object.” Dr. Naeger further opined: Not removing the foreign body in a timely manner can lead to aspiration, which can be deadly. Aspiration was listed on Ms. Hathcock’s death certificate as one of the “significant conditions contributing to death.” In my opinion, the failure to meet these minimum standards of care were negligence. Further, my interpretation of the subsequent chest X-rays taken at Doctor’s Hospital, as outlined and discussed in my report, are consistent with the conditions stated in the death certificate as the cause of Ms. Hathcock’s death. In reviewing whether an expert report addresses the causal relationship between the health care provider’s failure to meet the applicable standard of care and the injury, there are no “magical words” required to establish causation. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (per curiam). Rather, a causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm, and that absent the act or omission, the harm would not have occurred. Townsend, 2015 WL 3646773, at *4. An 2 Dr. Williams does not challenge these opinions as to the standard of care. –10– expert may show causation by explaining a chain of events that begins with the defendant health care provider’s negligence and ends in injury to the plaintiff. McKellar, 367 S.W.3d at 485. While a claimant is not required to conclusively prove the case through preliminary expert reports, the reports may not merely state conclusions but must link the causation opinions to the alleged breach. Townsend, 2015 WL 3646773, at *4. Here, Dr. Naeger’s opinion stops short of stating that Dr. Williams’s conduct caused or contributed to Hathcock’s death. Rather, he stated, “Not removing the foreign body in a timely manner can lead to aspiration, which can be deadly.” Such statements are conclusory and fail to establish the alleged negligent act or omission was “a substantial factor in bringing about the harm.” See Clapp v. Perez, 394 S.W.3d 254, 261–62 (Tex. App.—El Paso 2012, no pet.). Dr. Naeger failed to explain how Dr. Williams’s failure to detect and report the bridge caused Hathcock’s injury. While it is tempting to infer that Dr. Williams’s alleged breach precluded Hathcock from obtaining a quicker diagnosis, thereby receiving medical treatment sooner, we cannot make such inferences. See Bowie Mem’l Hosp., 79 S.W.3d at 53. Rather, the report must include the required information within its four corners. Id. Instead, Dr. Naeger’s opinion is nothing more than his conclusion that the breach caused the injury. He simply opines that one event caused another without explaining how the failure to detect and timely remove the bridge resulted in aspiration and ultimately her death. See, e.g., Clapp, 394 S.W.3d at 261–62 (concluding report insufficient to establish causal link when expert simply opined that had doctor placed a nasal-gastric tube prior to surgery the contents of patient’s stomach would have emptied and prevented aspiration that eventually occurred and led to, among other things, aspiration pneumonia and death). As such, Dr. Naeger’s report fails to explain the basis of his statements linking his conclusions to the facts. We conclude Dr. Naeger’s report is conclusory, and therefore deficient, as to Miller’s negligence claims against Dr. Williams. –11– We now consider whether Dr. Albright’s expert report is sufficient under chapter 74 to establish causation. Although Dr. Albright’s report does not mention Dr. Williams by name, she states she reviewed, in addition to other documents, Dr. Williams’s medical records and the radiology films and report from Metrostat. She also references the “radiologist” and the “radiologist narrative” in the section titled, “MEDICAL FACTS OF THIS CASE.” While the more prudent practice is to specifically identify the doctor whose conduct is questioned in the expert report, Dr. Williams is the only radiologist involved in this suit; therefore, based on the facts of this case, Dr. Albright’s report has sufficiently identified Dr. Williams. See Troeger v. Myklebust, 274 S.W.3d 104, 110 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (“a report does not fail to implicate a defendant’s conduct solely because the defendant is not identified by name”); Bogar, 257 S.W.3d at 364 (where a defendant is not identified at least in some manner within the “four corners” of the report, the report is deficient for that reason alone). Thus, we may consider her opinions in determining whether Miller has satisfied the causation requirements of chapter 74 as to Dr. Williams. Dr. Albright’s report states, in relevant part, the following: There is no mention of the appearance of a foreign object in the throat area contained within the radiologist medical narrative, which, when I was able to review copies of the X-Rays several months after my original review of this case, was clearly visible. There is no record of whether this result was called to the facility by the radiologist. . . . Had the radiologist medical narrative accurately identified the appearance of a foreign object in the throat area and, had such information been timely reported by the [JSC] staff to the treating doctor, Ms. Hathcock’s whole course of care and treatment would have probably changed as she most likely would have been immediately transported to a hospital on an emergent basis. A more timely assessment of Ms. Hathcock’s throat area would have been critical to an earlier extraction of the foreign object and, in all reasonable medical probability, would have saved her life. CONCLUSION –12– As the medical records reflect, Ms. Hathcock’s swallowing of her dental bridge required emergent care. The delay of her receiving proper medical attention was critical to Ms. Hathcock’s condition which led to her untimely death. It is my medical opinion, based upon reasonable medical probability, had the dental bridge been recognized and assessed in Ms. Hathcock at an earlier and timelier manner and had she received the necessary emergent medical treatment to extract the dental bridge from her throat area, she would have likely survived. Further, it is my medical opinion, the dental bridge embedded in Ms. Hathcock’s throat area was a cause of the aspiration, pulmonary edema and pneumothorax as stated in the death certificate and was a proximate cause of her death. Her opinion is similar to that which the Texas Supreme Court found conclusory in Bowie Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex. 2002) (per curiam). In that case, Wright sustained injuries in a car accident and while at Bowie, a physician assistant x-rayed her knee and foot and diagnosed her with a fractured patella, but misread her foot x-ray and failed to discover she also fractured her foot. Id. at 50. Nearly a month after the accident, her orthopedic surgeon discovered her fractured foot. Id. She filed suit against Bowie, the physician assistant, and a doctor for medical malpractice because, among other things, they failed to review the diagnostic tests her and diagnosis foot fracture. Id. Wright filed an expert report in which the doctor stated, in part, “If the x-rays would have been correctly read and the appropriate medical personnel acted upon those findings then Wright would have had the possibility of a better outcome.” Id. at 52–53. Bowie argued the causation opinion was conclusory because it did not explain how Bowie’s failure to correctly read or act upon the x-rays caused her injury. Id. at 53. The Texas Supreme Court agreed. The court determined the report did not represent a good-faith effort to summarize the causal relationship between Bowie’s breach of the standards of care and Wright’s injury “because the report simply opines that Barbara might have had ‘the possibility of a better outcome’ without explaining how Bowie’s conduct caused injury to Barbara.” Id. It concluded, “Because the report lacks information linking the expert’s conclusion (that Barbara –13– might have had a better outcome) to Bowie’s alleged breach (that it did not correctly read and act upon the x-rays), the trial court could have reasonably determined that the report was conclusory.” Id. Similarly, Dr. Albright’s report states, “[B]ased upon reasonable medical probability, had the dental bridge been recognized and assessed in Ms. Hathcock at an earlier and timelier manner and had she received the necessary emergent medical treatment to extract the dental bridge from her throat area, she would have likely survived.” This statement fails to link her conclusion (that Hathcock would have likely survived) to Dr. Williams’s alleged breach (not identifying the dental bridge in the x-ray and contacting the ordering provider). In reaching this conclusion, we are mindful that Dr. Albright stated in the “MEDICAL FACTS OF THE CASE” section of the report that if the information had been “timely reported” Hathcock’s “whole course of care and treatment would have probably changed as she most likely would have been immediately transported to a hospital on an emergent basis,” and a “more timely assessment of Ms. Hathcock’s throat area would have been critical to an earlier extraction of the foreign object and, in all reasonable medical probability, would have saved her life.” However, we have previously held expert reports fail to establish causation when they do not explain how the failure to evaluate and timely manage a patient would have prevented or lessened the injury, and we cannot make such inferences. See Hollingsworth v. Springs, 353 S.W.3d 506, 523 (Tex. App.—Dallas 2011, no pet.) (expert report failed to establish causation when it did not explain how the timely solicitation of assistance would have avoided or mitigated hypoxic brain injury); see also Knightstep v. Jeffers, No. 05-12-01067-CV, 2013 WL 3487933, at *3–4 (Tex. App.—Dallas July 10, 2013, no pet.) (mem. op.) (expert report failed to establish causation when it did not explain how the timely examination and intervention or additional testing by doctor would have prevented worsening of hypoxia); Mitchell v. Satyu, No. 05-14- –14– 00479-CV, 2015 WL 3765771, at *7 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op.) (expert report failed to establish causation when it did not provide a “temporal insight” as to when transfer of patient to an ICU setting was needed in order for conditions to remain treatable and reversible). Here, Dr. Albright fails to explain “how and why” Dr. Williams’s failure to timely identify the bridge in the x-ray, thereby causing its delayed extraction, resulted in the aspiration that allegedly caused pulmonary edema and pneumothorax. While she makes the broad and sweeping statement that had Dr. Williams’s report “accurately identified the foreign object” Hathcock’s “whole course of care and treatment would have probably changed,” this is nothing more than her conclusion that Dr. Williams’s breach caused the injury. She fails to explain the underlying facts necessary to link the delay in identifying and removing the bridge to the ultimate outcome. While our conclusion should not be interpreted to mean experts are required to specify an exact time in which diagnosis or treatment must occur to establish when a better outcome would likely have happened, a report that simply states a healthcare provider’s failure to timely assess a condition or a healthcare provider’s delayed diagnosis caused an injury, without more, is not sufficient to satisfy the requirements of chapter 74. This is particularly true in this case because it involves multiple actions by multiple defendants over a twenty-one hour period. Accordingly, Dr. Albright’s expert report is insufficient to supply the causation link necessary to support Miller’s claims against Dr. Williams. As such, the trial court abused its discretion by denying Dr. Williams’s motion to dismiss. We sustain Dr. Williams’s issue. Because we have concluded Dr. Albright’s opinions are insufficient as to causation, we need not address Dr. Williams’s argument that Dr. Albright is not qualified to render such opinions. See TEX. R. APP. P. 47.1. Accordingly, we remand this cause to the trial court for entry of judgment dismissing with prejudice Miller’s claims against Dr. –15– Williams and for a determination of reasonable attorneys’ fees and costs. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1), (2). JSC In support of her claim against JSC, Miller relied on the expert reports of Dr. Albright and Dr. Patel. In two issues, JSC challenges the adequacy of both reports and argues regardless of whether the reports are read individually or together, neither states the applicable standards of care nor causally connects the alleged breaches of the standard of care to the injuries; therefore, the trial court abused its discretion by denying its motion to dismiss. Having concluded that Dr. Patel’s expert report is insufficient, we address only the adequacy of Dr. Albright’s report. Dr. Albright opines that JSC breached numerous standards of care. These breaches include (1) failing to check her throat for the missing bridge and/or failing to notify Dr. LeJeune of the missing bridge; (2) ignoring Miller’s request to transport Hathcock to the hospital; (3) failing to follow up on a “stat” chest x-ray and timely deliver the results to Dr. LeJeune; (4) failing to monitor her condition for approximately eight hours; and (5) creating discrepancies in nursing documentation. As part of her conclusion, she then states, “This negligence caused a delay of almost eleven (11) hours in her receiving medical assessment and necessary critical emergent care which was the proximate cause of the death of Ms. Hathcock.” As we concluded above with respect to her causation opinion as to Dr. Williams, Dr. Albright’s report also fails to provide the causal link between JSC’s alleged breaches of any standard of care and Hathcock’s death. An expert report fails to establish causation when it does not explain how the failure to evaluate and timely manage a patient would have prevented or lessened the injury, and we cannot make such inferences. See Hollingsworth, 353 S.W.3d at 523; see also Knightstep, 2013 WL 3487933, at *3–4; Mitchell, 2015 WL 3765771, at *7. Here, Dr. Albright fails to explain “how and why” any of the alleged breaches of the standards of care –16– by JSC caused delayed extraction of the bridge thereby resulting in aspiration, pulmonary edema, and pneumothorax. Rather, her statements are nothing more than her conclusion that JSC’s breaches caused the injury. For example, she cites 42 C.F.R. § 483.75(k) to explain the standard of care for radiology and diagnostic services. Section 483.75(k) states, “The facility must provide or obtain radiology and other diagnostic services to meet the needs of its residents. The facility is responsible for the quality and timeliness of the services.” However, Dr. Albright’s report does not explain how quickly a “stat” x-ray should occur once a doctor gives such orders or why a “stat” x-ray ordered at 8 p.m. and performed at 9:38 p.m. is untimely. She also fails to explain how an earlier x-ray would have changed the outcome. Moreover, she states JSC was responsible for the timeliness of the x-ray results. Under 42 C.F.R. 483.75(k), the facility is responsible for the timeliness of the services, not results. Dr. Albright also cites to 42 C.F.R. § 483.75(j)(2)(iii), which states, “The facility must promptly notify the attending physician of the findings.” However, even if JSC had received the report earlier and promptly informed Dr. LeJeune of its findings, the report did not indicate the dental bridge was embedded in Hathcock’s throat. Thus, receiving the report earlier would not have resulted in Hathcock “most certainly” being transported to the emergency room and receiving “immediate medical treatment, preventing her decline and death which occurred.” Dr. Albright also states JSC breached the standard of care by failing to check Hathcock’s throat for the bridge and failing to notify Dr. LeJeune that it was missing “so he had a complete picture of Ms. Hathcock’s situation,” and these failures contributed to the delay ultimately leading to her death. However, Dr. Albright’s report states a JSC nurse sent a note to Dr. LeJeune at 8 p.m. explaining Hathcock had “cough and congestion, 96% O2 saturation on room air, normal respiratory rate, blood pressure, and pulse.” The nurse then received orders from Dr. –17– LeJeune for Robitussin DM and a “stat” chest x-ray. Again, Dr. Albright does not explain how or why Dr. LeJeune’s course of treatment would have been different had he known Hathcock lost her bridge. Dr. Albright’s opinions that JSC failed to monitor Hathcock’s condition and did not keep accurate records regarding her condition are conclusory statements that simply state nothing more than JSC’s breaches caused the injury. She fails to explain how monitoring Hathcock’s condition or keeping accurate records would have resulted in earlier extraction of the bridge and prevented aspiration, pulmonary edema, and pneumothorax. We acknowledge her report indicates Hathcock’s condition went from “cough and congestion, 96% O2 saturation on room air, normal respiratory rate, blood pressure, and pulse” to “coughing and had wet lung sounds, with 75% O2 saturation” during the alleged eight hours she was unmonitored. However, the report neither explains the significance of the drop in oxygen levels during that time and how it relates to aspiration, pulmonary edema, and pneumothorax—the ultimate cause of death—nor provides a temporal insight into when earlier monitoring could have changed the outcome. See, e.g., Mitchell, 2015 WL 3765771, at *7 (expert report failed to establish causation when it did not provide a “temporal insight” as to when transfer of patient to an ICU setting was needed in order for conditions to remain treatable and reversible). Lastly, Dr. Albright opines, “It was below the standard of care for the staff at [JSC] to ignore the [family] request and choose not to transport Ms. Hathcock to the ER, but instead wait on the X-ray result.” She then concludes, “The failure to comply with this request caused a delay in Ms. Hathcock’s receiving lifesaving care which was a proximate case of her untimely death.” First, we agree with JSC’s argument that Dr. Albright fails to provide the specificity required for the standard of care as to this allegation. Identifying the standard of care is critical because whether a defendant breached his or her duty to a patient cannot be determined without –18– specific information about what the defendant should have done differently. Senior Care Ctrs, LLC v. Shelton, 459 S.W.3d 753, 757 (Tex. App.—Dallas 2015, no pet.). Here, Dr. Albright’s statement that it was below the standard of care for JSC to ignore Miller’s request to transport Hathcock to the hospital does not explain what the standard of care is in such a situation but rather states in a conclusory fashion its actions were below some unarticulated standard. Her report fails to explain why a healthcare provider should ignore a doctor’s orders to wait for x-ray results and instead follow the orders of a family member. In addition, Dr. Albright fails to provide a causal link, outside of conclusory statements, that JSC’s failure to follow the family’s request caused the delay in Hathcock’s treatment resulting in her death. Her report provides no insight into when transfer of Hathcock to a hospital setting was necessitated in order for her condition to be reversible. See, e.g., Mitchell, 2015 WL 3765771, at *7. As previously stated, our conclusion should not be interpreted to mean experts are required to specify an exact time in which transfer to the hospital must occur to establish when a better outcome would have likely happened. However, a report that simply states a healthcare facility’s failure to timely assess a condition or delay of a diagnosis caused an injury, without more, particularly in this case in which there are multiple actions by multiple defendants over a twenty-one hour period, is not sufficient to satisfy the requirements of chapter 74. Accordingly, Dr. Albright’s expert report is insufficient to supply the causal link necessary to support Miller’s claims against JSC. As such, the trial court abused its discretion by denying JSC’s motion to dismiss. We sustain JSC’s second issue. Because we have concluded Dr. Albright’s opinions are insufficient as to causation, we need not address its remaining arguments challenging the standard of care. TEX. R. APP. P. 47.1. Accordingly, we reverse and remand this cause to the –19– trial court for rendition of judgment dismissing with prejudice Miller’s claims against JSC and for a determination of reasonable attorneys’ fees and costs. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1), (2). Conclusion Having found in favor of appellants, we reverse and remand this cause to the trial court for rendition of judgment dismissing with prejudice Miller’s claims against JSC, Metrostat, and Dr. Williams and the P.L.L.C. and for a determination of reasonable attorneys’ fees and costs pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code. /David L. Bridges/ DAVID L. BRIDGES JUSTICE O’Neill, J., concurring in part and dissenting in part. 151373F.P05 –20– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT JSC LAKE HIGHLANDS OPERATIONS, On Appeal from the County Court at Law LP D/B/A VILLAGES OF LAKE No. 3, Dallas County, Texas HIGHLANDS, METROSTAT Trial Court Cause No. CC-15-00297-C. DIAGNOSTIC SERVICES, INC., Opinion delivered by Justice Bridges. RICHARD M. WILLIAMS, M.D. AND Justices Lang and O’Neill participating. RICHARD M. WILLIAMS, M.D., P.L.L.C., Appellants No. 05-15-01373-CV V. KAREN MILLER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF BETTY RUTH HATHCOCK AND BETTY CROCKETT, INDIVIDUALLY, Appellees In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for rendition of judgment dismissing with prejudice appellees’ claims and for a determination of appellants’ reasonable attorneys’ fees and costs. It is ORDERED that appellants JSC LAKE HIGHLANDS OPERATIONS, LP D/B/A VILLAGES OF LAKE HIGHLANDS, METROSTAT DIAGNOSTIC SERVICES, INC., RICHARD M. WILLIAMS, M.D. AND RICHARD M. WILLIAMS, M.D., P.L.L.C. recover their costs of this appeal from appellees KAREN MILLER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF BETTY RUTH HATHCOCK AND BETTY CROCKETT, INDIVIDUALLY. Judgment entered this 31st day of August, 2016. –21–

01-03-2023

09-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4031258/

THE THIRTEENTH COURT OF APPEALS 13-16-00112-CR Douglas Wayne Brandon v. The State of Texas On appeal from the 36th District Court of Aransas County, Texas Trial Cause No. A-10-5059-CR 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/4143906/

Honorable Thomas A. Wheat County Attorney Liberty County Liberty, Texas Dear Sir: Opinion No. O-2479 Re: Authority of Liberty County Commis- sioners' Court to widen pavement of County road through the unincorpor- ated town of Daisetta. We are in receipt of your letter of June 24, 1940, where- in you request the opfnion of this department upon the question hereinafter stated. Thank you for the authorities submitted with your request. Your question may be stated substantially as follows: Does the Commissioners' Court of Liberty County have the power and authority to use the unexpended portion of the road bond funds al- located to the paving of the Raywood-Daisetta county road for the purpose of paving the space between the 18 foot slab and the curb along such road in certain portions of the unincor- porated town of Daisetta? The funds for the paving were provided by a bond issue voted last October or thereabout, "for the purpose of construc- tion, maintenance ana operating macadamized, graveled or paved' roads and turnpikes or in aid thereof" and the Raywood-Daisetta road was among those named in the bond issue, the petition and in the orders and notices of the Commissioners' Court. After the bonds were voted, $185, 117.00 was allocated to the paving of' this road, but only about $165,000.00 was used, leaving a balance of approximately $20,000.00, which the Commissioners' Court wishes to expend as stated in your inquiry. Section 52 of Article III of the State Constitution provides, In part, as follows: ....under legislative provision any county......may issue bonds......for the following purposes: Honorable Thomas A. Wheat, page 2 O-2479 “.e....s.o "(c) The construction, maintenance;~and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof." Article 752a (Vernon's Ann, Statutes) provides the statutory authority required by the constitution, using almost the identical language. The county commissioners' court is the governing body of'the county and its control extends over the streets Andy' roads of unincorporated cities or towns within the county and over incorporated cities and towns which have no de factor .. municipal government. Feris v. Bassett, et al (Civ, Ap ., Gal- veston, 1920) 227 S.W. 233; Article 6730 (R.C.S.~,1925.P With the consent of the governing body of an'incorporated town.'or ,citg, It may improve streets therein which are integral parts of~the county road sustem, City of Breckenridge v. Stephens County, 120 Tex, 318, 40 S.W. (2a) 43. It has often been pointed out by our courts that, where jurisdiction or control over a subject is conferred upon the county commissioners' court, the special power or jurisdiction confided to that court must be exercised according to Its dis- cretion. Haverbekken v. Coryell County, (Corn.App., Sec. A., g3) 112 Tex. 422, 247 S.W. 1086; Holt & Co. v. Wheeler County, v. APP., Amarillo, 1921) 235 S.W. 226. The Legislature in its wisdom has seen fit to place no limits upon the width of pavement on county roads nor upon the extent'of the improvements on such roads. There are no consti- tutional or statutory provisions in Texas requiring the pavement on such roads to be of uniform width. It is, therefore, the opinion of this department that the Commissioners' Court of Liberty County has, within its sound discretion, the power and authority to make the improvements contemplated, and you are respectfully advised that your ques- tion Is answered in the affirmative. We have assumed that there is no specification as to width of the Ray-wood-Dalsettaroad In the record of the bond issue by which the funds were provided. APPWQVED JCL 8, 1940 Yours very truly s/Glenn R. L.ewis, (Acting) Attorney General of Texas ATTCRNEY GENERAL OF TEXAS Approved~Opinion Committee by By s/Peter Maniscalco s/%X3 Chairman~ Assistant

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4158425/

NO. 12-17-00092-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN RE: § MICHAEL KENNEDY, § ORIGINAL PROCEEDING RELATOR § MEMORANDUM OPINION PER CURIAM Relator, Michael Kennedy, has filed this original proceeding, in which he raises complaints regarding events that occurred before and during trial, as well as complaints that he has not been allowed to file pro se appellate briefs. However, Relator appealed his conviction several years ago and this Court affirmed; thus, Relator’s conviction has been final for several years, and cause number 29326 is no longer pending in the trial court. See Kennedy v. State, No. 12–11–00041–CR, 2012 WL 3201924, at *8 (Tex. App.–Tyler Aug. 8, 2012, pet. ref’d) (mem. op., not designated for publication) (affirming judgment on punishment); see also Kennedy v. State, No. 12–08–00246–CR, 2009 WL 4829989, at *3–4 (Tex. App.–Tyler Dec. 16, 2009, pet. stricken) (mem. op., not designated for publication) (affirming judgment of conviction). Under these circumstances, this Court lacks jurisdiction to consider Relator’s complaints regarding his final felony conviction.1 See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also In re Briscoe, 230 S.W.3d 196, 196-97 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding); In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). We dismiss Relator’s petition for want of jurisdiction. 1 On February 15, 2017, the Texas Court of Criminal Appeals issued an abuse of writ order against Relator, in which it found that he (1) had filed seven applications regarding his conviction, (2) “continues to raise issues that have been presented and rejected in previous applications or that should have been presented in previous applications[,]” and (3) “[b]ecause of his repetitive claims, … Applicant’s claims are barred from review under Article 11.07, § 4, and are waived and abandoned by his abuse of the writ.” Ex Parte Michael Allyn Kennedy, No. WR-75,385-24 (Tex. Crim. App. Feb. 15, 2017). Opinion delivered April 5, 2017. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH) 2 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT APRIL 5, 2017 NO. 12-17-00092-CR MICHAEL KENNEDY, Relator V. HON. MARK A. CALHOON, Respondent ORIGINAL PROCEEDING ON THIS DAY came to be heard the petition for writ of mandamus filed by Michael Kennedy; who is the relator in Cause No. 29326, pending on the docket of the 3rd Judicial District Court of Anderson County, Texas. Said petition for writ of mandamus having been filed herein on April 3, 2017, and the same having been duly considered, because it is the opinion of this Court that it lacks jurisdiction, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby dismissed for want of jurisdiction. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J. 3

01-03-2023

04-06-2017

https://www.courtlistener.com/api/rest/v3/opinions/3209907/

IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA15-461 Filed: 7 June 2016 Johnston County, Nos. 13CRS002400, 13CRS055161, 13CRS055189, 14CRS001313 STATE OF NORTH CAROLINA v. TIMOTHY TERRELL CRANDELL, Defendant. Appeal by defendant from judgments entered on or about 23 September 2014 by Judge Claire V. Hill in Superior Court, Johnston County. Heard in the Court of Appeals on 21 October 2015. Attorney General Roy A. Cooper III, by Special Deputy Attorney General Patrick S. Wooten, for the State. Kimberly P. Hoppin, for defendant-appellant. STROUD, Judge. Timothy Terrell Crandell (“defendant”) appeals from the trial court’s judgments entered upon a plea agreement. Defendant argues that the trial court erred in denying his motion to suppress, because the police officer who stopped defendant’s car lacked reasonable suspicion. Defendant also filed a petition for writ of certiorari. We deny defendant’s petition and affirm the trial court’s judgments. I. Background STATE V. CRANDELL Opinion of the Court “Blazing Saddles” is a partially burned, abandoned building in Johnston County. It is not a residence or a business—at least not a business allowed by law— and is “known for one thing and that is selling drugs and dealing in stolen property.” Around 3:00 p.m. on 17 September 2013, Deputy Clifton, a member of the Johnston County Sheriff’s Aggressive Field Enforcement (“SAFE”) team, observed defendant drive into the area adjacent to “Blazing Saddles.” He also noticed that a metal cable, which served as a gate, was down, which in his experience indicated that “Blazing Saddles” was “open for business.” About two minutes later, Deputy Clifton observed defendant drive away from “Blazing Saddles.” Deputy Clifton then stopped defendant’s car and found that defendant possessed some marijuana. During the stop, Deputy Clifton also noticed that defendant had a ring which matched the description of a ring which had recently been reported as stolen. The following day, the police arrived at defendant’s house and asked to search defendant’s car; defendant consented. The police found the stolen ring in defendant’s car. During the search, a detective noticed a tub “with some miscellaneous items” in the yard. The detective returned the following day to arrest defendant and noticed that the tub contained “quite a few tools that . . . [had not] been there the day before.” The police discovered that these tools had recently been stolen from defendant’s neighbor’s shed. The police later discovered that defendant had repeatedly instructed his girlfriend to testify that she had not given the police consent to search his house. -2- STATE V. CRANDELL Opinion of the Court On 16 December 2013, a grand jury indicted defendant for attaining the status of a habitual felon. See N.C. Gen. Stat. § 14-7.1 (2011). On 5 May 2014, a grand jury indicted defendant for second-degree burglary, larceny after breaking or entering, felony possession of stolen goods, and common law obstruction of justice. See N.C. Gen. Stat. §§ 14-3(b), -51, -71.1., -72(b)(2) (2013). On 5 May 2014, a grand jury indicted defendant for breaking or entering, larceny after breaking or entering, and felony possession of stolen goods. See N.C. Gen. Stat. §§ 14-54(a), -71.1., -72(b)(2) (2013). On 21 July 2014, a grand jury indicted defendant for five counts of common law obstruction of justice. See N.C. Gen. Stat. § 14-3(b) (2013). On 2 April 2014, defendant moved to suppress evidence obtained as a result of Deputy Clifton’s stop. At a suppression hearing on 4 September 2014, the trial court rendered its order denying defendant’s motion to suppress, which was memorialized in a written order entered on 17 October 2014. On or about 22 September 2014, the State and defendant executed a plea agreement in which the State dismissed two counts of possession of stolen goods and one count of common law obstruction of justice and defendant pled guilty to the remaining charges pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970). In the plea agreement, defendant gave notice of his intent to appeal the trial court’s denial of his motion to suppress. On or about 23 September 2014, after a plea hearing, the trial court convicted defendant of one count of second-degree burglary, two counts of larceny -3- STATE V. CRANDELL Opinion of the Court after breaking or entering, five counts of common law obstruction of justice, and one count of breaking or entering. The trial court adjudged defendant to be a habitual felon and sentenced him to 117 to 153 months of imprisonment. At the conclusion of the plea hearing, defendant gave oral notice of appeal in open court. II. Petition for Writ of Certiorari Defendant filed a petition for writ of certiorari “asking this Court to permit appellate review in the event the Court should conclude that the notice of appeal was defective.” [I]n order to properly appeal the denial of a motion to suppress after a guilty plea, a defendant must take two steps: (1) he must, prior to finalization of the guilty plea, provide the trial court and the prosecutor with notice of his intent to appeal the motion to suppress order, and (2) he must timely and properly appeal from the final judgment. State v. Cottrell, 234 N.C. App. 736, 739-40, 760 S.E.2d 274, 277 (2014). In the plea agreement, defendant gave notice of his intent to appeal the trial court’s denial of his motion to suppress. At the conclusion of the plea hearing, defendant gave oral notice of appeal in open court. Accordingly, we hold that defendant gave timely, proper notice of appeal. See id. We therefore review the merits of defendant’s appeal and deny defendant’s petition. III. Motion to Suppress Defendant’s only argument on appeal is that the trial court erred in denying his motion to suppress, because Deputy Clifton lacked reasonable suspicion to stop -4- STATE V. CRANDELL Opinion of the Court defendant’s car, in contravention of the Fourth Amendment of the U.S. Constitution and article I, section 20 of the North Carolina Constitution. See U.S. Const. amend. IV; N.C. Const. art. I, § 20. A. Standard of Review The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court’s findings of fact and whether the findings of fact support the conclusions of law. However, when . . . the trial court’s findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal. Conclusions of law are reviewed de novo and are subject to full review. Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal. State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citations and quotation marks omitted). B. Findings of Fact Defendant argues that competent evidence does not support the trial court’s Findings of Fact 2, 5, and 27 in its order denying his motion to suppress. Defendant challenges the underlined portion of Finding of Fact 2: 2. Defendant was charged with Second Degree Burglary, Felony Breaking and or Entering, 2 counts of Felony Larceny after Breaking and/or Entering, 2 counts of Felony Possession of Stolen Goods and Obstruction of Justice. The defendant also attained the status as a Habitual Felon and Habitual Breaking and/or Entering Offender. -5- STATE V. CRANDELL Opinion of the Court (Emphasis added.) Defendant contends that at the time of the suppression hearing, he had not yet attained the status of a habitual felon although he had been indicted for attaining the status of a habitual felon. See N.C. Gen. Stat. § 14-7.1. It is possible that some words were inadvertently omitted from this sentence, since it appears that in this paragraph the trial court was listing the offenses with which defendant had been charged. But in any event, we need not address this issue as it has no bearing on the issue of whether the trial court erred in denying his motion to suppress. Defendant next challenges Finding of Fact 5, which states: 5. Deputy Clifton and other officers on the Safe Team routinely share information regarding these high crime areas, including the area referred to as “Blazing Saddles[,”] to stay informed of what type of criminal activity is going on throughout high crime areas. Defendant contends that “[t]here is no evidence to support a finding that this sharing occurred prior to [his] arrest.” (Emphasis added.) We note that this finding of fact does not state that the sharing occurred prior to defendant’s stop, but we agree with defendant that if Deputy Clifton had never heard of “Blazing Saddles” before and had no knowledge either directly or by reputation of its “business,” he may have had far less basis for a suspicion of criminal activity. But there is abundant evidence that Deputy Clifton was quite familiar with “Blazing Saddles,” both from personal experience and from the sharing of information with other officers, well before he ever saw defendant there. Deputy Clifton gave the following testimony: -6- STATE V. CRANDELL Opinion of the Court [The Court:] So since the date of this incident, how many times have you been out there? [Deputy Clifton:] Since the day—about 15 or so— [The Court:] Okay. [Deputy Clifton:] —or more charges since then. [The Court:] Okay. [Deputy Clifton:] And that’s just me personally. [There have] been other officers that have made drug charges, been search warrants executed at this location. [The Court:] These other officers are part of the S.A.F.E. Team? [Deputy Clifton]: S.A.F.E. Team and our narcotics division. [The Court:] So, generally when they make arrests out there, do they come back and brief the rest of the S.A.F.E. Team with regard to the activity there? [Deputy Clifton:] Yes. The information is constantly passed back and forth between them and us. (Emphasis added.) Although Deputy Clifton testified to the sharing of information among SAFE team members after he had mentioned the number of stops he had made since defendant’s stop, nothing in his testimony suggests that this sharing of information did not take place before defendant’s stop. In addition, Deputy Clifton further testified that before defendant’s stop, from January 2011 to 17 September 2013, the date of defendant’s stop, he had made 23 stops in connection with activity -7- STATE V. CRANDELL Opinion of the Court at “Blazing Saddles” which led to drug-related charges. It is clear from his testimony generally and from other uncontested findings of fact that he was quite familiar with “Blazing Saddles” before he observed defendant there. Deputy Clifton testified: “This particular place, ever since I have been at the sheriff’s office, has been known for one thing and that is selling drugs and dealing in stolen property.” (Emphasis added.) We hold that this evidence is competent to support Finding of Fact 5 that Deputy Clifton and other police officers on the SAFE team “routinely share information” about criminal activity at “Blazing Saddles,” as well as any implication that this “routine[]” sharing of information had occurred both before and after defendant’s stop. See Biber, 365 N.C. at 167-68, 712 S.E.2d at 878. Defendant also challenges Finding of Fact 27, which states: 27. Based upon the location, the time of day, the amount of time Defendant was on the premises and his training and experience, Deputy Clifton, through his testimony, articulated specific facts that gave rise to his suspicion that criminal activity was afoot. Defendant “does not challenge this statement to the extent that the trial court found that Deputy Clifton articulated some facts which gave rise to his suspicion that some criminal activity was afoot.” (Emphasis added.) Rather, he argues that these facts were insufficient to constitute reasonable suspicion that defendant, in particular, was engaged in criminal activity. Because defendant’s argument is more properly -8- STATE V. CRANDELL Opinion of the Court characterized as a challenge to the trial court’s conclusion of law that Deputy Clifton had reasonable suspicion to stop defendant’s car, we address this argument below. C. Conclusion of Law Defendant argues that the findings of fact do not support the trial court’s conclusion of law that Deputy Clifton had reasonable suspicion to stop defendant’s car. The Fourth Amendment protects individuals against unreasonable searches and seizures. The North Carolina Constitution provides similar protection. A traffic stop is a seizure even though the purpose of the stop is limited and the resulting detention quite brief. Such stops have been historically viewed under the investigatory detention framework first articulated in Terry v. Ohio, 392 U.S 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Despite some initial confusion following the United States Supreme Court’s decision in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), courts have continued to hold that a traffic stop is constitutional if the officer has a reasonable articulable suspicion that criminal activity is afoot. Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence. Only some minimal level of objective justification is required. This Court has determined that the reasonable suspicion standard requires that the stop be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. Moreover, a court must consider the totality of the circumstances—the whole picture in determining whether a reasonable suspicion exists. State v. Barnard, 362 N.C. 244, 246-47, 658 S.E.2d 643, 645 (emphasis added and -9- STATE V. CRANDELL Opinion of the Court citations, quotation marks, brackets, and ellipsis omitted), cert. denied, 555 U.S. 914, 172 L. Ed. 2d 198 (2008). The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio, . . . said that, “this demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” [See Terry, 392 U.S. at 21 n.18, 20 L. Ed. 2d 906 n.18] (emphasis added). United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 629 (1981) (emphasis added and brackets omitted). In Barnard, around 12:15 a.m. “in a high crime area of downtown Asheville - 10 - STATE V. CRANDELL Opinion of the Court where a number of bars are located[,]” a police officer stopped the defendant’s vehicle after the defendant remained stopped at an intersection for approximately 30 seconds after the traffic light had turned green “without any reasonable appearance of explanation for doing so.” Barnard, 362 N.C. at 244, 247, 658 S.E.2d at 644-45. At a suppression hearing, the officer testified that the defendant’s delayed reaction was an indicator of impairment. Id. at 247, 658 S.E.2d at 645. Our Supreme Court held that “[b]ecause [the] defendant’s thirty-second delay at a green traffic light under these circumstances gave rise to a reasonable, articulable suspicion that [the] defendant may have been driving while impaired, the stop of [the] defendant’s vehicle was constitutional[.]” Id. at 248, 658 S.E.2d at 645. Here, the trial court made the following findings of fact in support of its conclusion that Deputy Clifton had reasonable suspicion to stop defendant’s car: 3. [Deputy Clifton] has been a law enforcement officer since 1999, then moved from patrol to the narcotics division to sergeant of patrol, subsequently deployed by the military and since returning to the sheriff’s office has been a member of the SAFE (Sheriff’s Aggressive Field Enforcement) team. 4. The SAFE team is responsible for responding to high crime areas where complaints have been made, and those areas of surveillance, where sometimes checkpoints and traffic stops are set up. 5. Deputy Clifton and other officers on the Safe Team routinely share information regarding these high crime areas, including the area referred to as “Blazing Saddles[,”] to stay informed of what type of criminal activity is going - 11 - STATE V. CRANDELL Opinion of the Court on throughout high crime areas. 6. “Blazing Saddles” consists of a piece of property that includes an abandoned building that is partially burned down, containing no electricity and where people frequent when dealing in drugs and/or stolen property. 7. People often frequent the property at all hours, all the time. 8. From the year 2011 to the date of this hearing Deputy Clifton had made a total of 37 arrests at this location. 9. [Thirty-two] (32) of those arrests at this location were made during the day and the other 5 were made at night. 10. [Twenty-three] (23) of those arrests were made prior to September 17, 2013 at [3:00 p.m.], when the arrest of the Defendant occurred. 11. Deputy Clifton’s other vehicle stops originating from this area were made as a result of his observation of motor vehicle violations and ultimately resulted in arrests for possession of narcotics. 12. At the “Blazing Saddles[,”] there is a cable fence connected to the property. 13. Deputy Clifton testified that his experience is that when the gate is down, the property is “open for business[,”] or it is the time period when people are selling or doing drugs on the property. 14. On the date of this incident, the gate was down, indicating to Deputy Clifton that drug or other criminal activity may be occurring. 15. On September 17, 2013, Deputy Clifton was on - 12 - STATE V. CRANDELL Opinion of the Court routine patrol. 16. On September 17, 2013, Deputy Clifton observed Defendant turn into the premises of the “Blazing Saddles[,”] which is known to him and other officers, as a place where drugs are sold and where stolen items are possessed and sold as well. 17. On September 17, 2013, there were at least 5 to 10 people already present at the “Blazing Saddles” location. 18. Based upon Deputy Clifton’s training, experience, conversations with drug suspects and arrestees and his own observations, the usual time period for a drug transaction occurs within approximately two minutes. 19. Deputy Clifton had previously observed numerous drug transactions occurring at “Blazing Saddles” frequently for a period of time, lasting no more than five minutes. 20. Deputy Clifton observed the defendant turn into the premises of the “Blazing Saddles” while [Deputy Clifton] proceeded down the road. 21. Deputy Clifton then turned around, looped back, and then observed the Defendant exit the premises of the “Blazing Saddles.” 22. Deputy Clifton did not observe Defendant’s activities at the “Blazing Saddles” but observed that the Defendant was on the premises of “Blazing Saddles” for approximately two minutes. 23. Deputy Clifton testified that he didn’t pull into the premises directly in his marked patrol car, because based upon experiences, perpetrators of drug crimes at “Blazing Saddles” flee when marked patrol cars enter the premises. 24. Deputy Clifton further testified that Defendant’s car - 13 - STATE V. CRANDELL Opinion of the Court turned [onto] the property and when [Deputy Clifton] saw the car exiting the property, based on [his] training and experience, the length of time was consistent with drug activity. 25. After seeing the defendant enter the “Blazing Saddles” and then leave in a time frame consistent with a drug transaction, [Deputy Clifton] initiated an investigatory stop. On the date of the stop, based on his experience making 23 arrests in connection with drug activity at “Blazing Saddles” and other police officers’ experiences at “Blazing Saddles,” Deputy Clifton was aware of a steady pattern that people involved in drug transactions visit “Blazing Saddles” when the gate is down and stay only for approximately two minutes. Defendant followed this exact pattern: he visited “Blazing Saddles” when the gate was down and stayed approximately two minutes. Deputy Clifton’s stop was “based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.” See id. at 247, 658 S.E.2d at 645 (citation omitted). Deputy Clifton had observed a “pattern[] of operation of [a] certain kind[] of lawbreaker[]” and “[f]rom these data” had drawn inferences and made deductions “that might well elude an untrained person.” See Cortez, 449 U.S. at 418, 66 L. Ed. 2d at 629. Accordingly, we hold that the totality of the circumstances gave rise to a reasonable, articulable suspicion that defendant was engaged in criminal activity. See Barnard, 362 N.C. at 248, 658 S.E.2d at 645. - 14 - STATE V. CRANDELL Opinion of the Court Defendant also specifically challenges the trial court’s Conclusion of Law 4, which states: 4. This case is distinguishable both from [State v. Fleming, 106 N.C. App. 165, 415 S.E.2d 782 (1992)] and from [Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357 (1979)] because [Deputy Clifton] had specific knowledge of activity that was going on there because he had previously made arrests at the location for possession of narcotics and had been previously briefed by his colleagues regarding criminal activity being conducted at the location. We agree with the trial court that Brown and Fleming are distinguishable. In Brown, a police officer stopped the defendant after he and another police officer observed the defendant and another man “walking in opposite directions away from one another in an alley” in a neighborhood which “has a high incidence of drug traffic.” Brown, 443 U.S. at 48-49, 61 L. Ed. 2d at 360. The police officer testified that “[a]lthough the two men were a few feet apart when they first were seen, . . . both officers believed the two had been together or were about to meet until the patrol car appeared.” Id. at 48, 61 L. Ed. 2d at 360. The U.S. Supreme Court held that the police officer lacked reasonable suspicion to stop the defendant for the following reasons: [The police officer] testified at [the defendant’s] trial that the situation in the alley “looked suspicious,” but he was unable to point to any facts supporting that conclusion. There is no indication in the record that it was unusual for people to be in the alley. The fact that [the defendant] was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that [the defendant] - 15 - STATE V. CRANDELL Opinion of the Court himself was engaged in criminal conduct. In short, the [defendant’s] activity was no different from the activity of other pedestrians in that neighborhood. When pressed, [the police officer] acknowledged that the only reason he stopped [the defendant] was to ascertain his identity. Id. at 52, 61 L. Ed. 2d at 362-63 (footnote omitted). The U.S. Supreme Court was careful to narrow its holding: “This situation is to be distinguished from the observations of a trained, experienced police officer who is able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.” Id. at 52 n.2, 61 L. Ed. 2d at 362 n.2. This Court in Fleming held that the facts in that case were analogous to the facts in Brown: [A]t the time [the police officer] first observed defendant and his companion, they were merely standing in an open area between two apartment buildings. At this point, they were just watching the group of officers standing on the street and talking. The officer observed no overt act by defendant at this time nor any contact between defendant and his companion. Next, the officer observed the two men walk between two buildings, out of the open area, toward Rugby Street and then begin walking down the public sidewalk in front of the apartments. These actions were not sufficient to create a reasonable suspicion that defendant was involved in criminal conduct, it being neither unusual nor suspicious that they chose to walk in a direction which led away from the group of officers. At this time, [the police officer] “stopped” defendant and his companion and immediately proceeded to ask them questions while he simultaneously “patted” them down. We find that the facts in this case are analogous to those found in Brown. [The police officer] had only a generalized suspicion that the defendant was engaged in - 16 - STATE V. CRANDELL Opinion of the Court criminal activity, based upon the time, place, and the officer’s knowledge that defendant was unfamiliar to the area. Should these factors be found sufficient to justify the seizure of this defendant, such factors could obviously justify the seizure of innocent citizens unfamiliar to the observing officer, who, late at night, happen to be seen standing in an open area of a housing project or walking down a public sidewalk in a “high drug area.” This would not be reasonable. Fleming, 106 N.C. App. at 170-71, 415 S.E.2d at 785-86. Defendant argues that he, like the defendant in Fleming, made “no overt act” sufficient to create a reasonable suspicion. See id. at 170, 415 S.E.2d at 785. But we distinguish this case from Brown and Fleming, because Deputy Clifton observed defendant follow a specific pattern that was closely consistent with his knowledge and experience of a certain kind of lawbreaker at this particular location: defendant visited “Blazing Saddles” when the gate was down and stayed only for approximately two minutes. In addition, this was not just a “high drug area”; it was a location with no use or purpose other than criminal activity. See id. at 171, 415 S.E.2d at 785-86. “Blazing Saddles” was notorious for “selling drugs and dealing in stolen property.” It was an abandoned, partially burned building with no electricity, and there was no apparent legal reason for anyone to go there at all, unlike the neighborhood in Brown or the apartment complex in Fleming, where people actually lived. See id. at 170-71, 415 S.E.2d at 785-86; Brown, 443 U.S. at 52, 61 L. Ed. 2d at 362-63. The U.S. Supreme Court in Brown was careful to distinguish the facts in - 17 - STATE V. CRANDELL Opinion of the Court that case from factual situations like the one present here: “This situation is to be distinguished from the observations of a trained, experienced police officer who is able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.” See Brown, 443 U.S. at 52 n.2, 61 L. Ed. 2d at 362 n.2. This case is much more comparable to Barnard, where our Supreme Court held that the “defendant’s thirty-second delay at a green traffic light under [those] circumstances gave rise to a reasonable, articulable suspicion that [the] defendant may have been driving while impaired[.]” 362 N.C. at 248, 658 S.E.2d at 645. Following Barnard, we hold that the trial court did not err in holding that Deputy Clifton had reasonable suspicion to stop defendant’s vehicle and thus did not err in denying defendant’s motion to suppress. See id. IV. Conclusion For the foregoing reasons, we affirm the trial court’s judgments. AFFIRMED. Judges STEPHENS and DAVIS concur. - 18 -

01-03-2023

06-07-2016

https://www.courtlistener.com/api/rest/v3/opinions/1635605/

60 Mich. App. 204 (1975) 230 N.W.2d 378 PEOPLE v. TOWNSEND Docket No. 19316. Michigan Court of Appeals. Decided April 7, 1975. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, Patricia J. Boyle, Principal Attorney Research, Training and Appeals, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people. Keller, Cohn & Svenson, for defendant on appeal. Before: V.J. BRENNAN, P.J., and D.E. HOLBROOK, Jr. and O'HARA,[*] JJ. V.J. BRENNAN, P.J. Defendant, Robert Townsend, was convicted by a jury in Wayne County Circuit Court of breaking and entering an occupied dwelling house in violation of MCLA 750.110; MSA 28.305. He was sentenced to from 10 to 15 years in prison and now appeals. We affirm. Defendant first contends that his conviction must be reversed because the trial judge abused his discretion in refusing to suppress defendant's prior criminal record. See People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). We disagree. Prior to trial defendant sought to prevent the prosecutor *206 from using his prior criminal record for impeachment by filing a motion to suppress. A hearing was held wherein both parties agreed that the decision to suppress this evidence rested in the sound discretion of the trial judge, but then presented competing factors for the trial judge's consideration. Defendant's attorney argued that since two of the crimes were of the same kind as that for which defendant was presently being tried, any probative value they may have was outweighed by their prejudicial effect. The prosecutor, on the other hand, seeking to use only defendant's felony convictions for impeachment purposes, argued that the evidence of defendant's prior convictions was relevant, not remote in time and, therefore, admissible despite their similarity to the present offense. The trial judge, after listening to the arguments, denied defendant's motion. After reviewing the record we find ourselves unable to say that the trial judge abused his discretion. The convictions, which were ultimately introduced into evidence by defendant's own attorney after defendant took the stand to testify, were not for offenses violent or assaultive in nature, were not remote in time, and did reflect on defendant's honesty. While it is true the offenses were similar to the one for which defendant was on trial, this alone does not require their exclusion. We find no error. Defendant next contends that his conviction must be reversed because the trial judge erred in not granting his pretrial motion to suppress evidence of allegedly improper and prejudicial photographic identifications. In support of his claim in this regard, defendant first argues that he was denied his right to an attorney when certain photographs, at the request of the police, were shown to a witness by the complainant at a time when *207 defendant was not provided the opportunity to have counsel present. Defendant, arguing that at the time the photographs were shown the police investigation had focused on him, maintains he was entitled to have counsel present when the photographs were shown to the witness. We disagree. This same claim was recently considered by our Supreme Court in the case of People v Lee, 391 Mich 618; 218 NW2d 655 (1974), and decided adversely to the position espoused by defendant herein. On the basis of Lee, therefore, we find no merit to defendant's claims in this regard. Defendant next claims that the procedure by which the witness was shown the photographs was so suggestive as to prejudicially taint the identification process. We disagree. Judging this claim in light of the totality of the surrounding circumstances, Simmons v United States, 390 US 377, 384; 88 S Ct 967, 971; 19 L Ed 2d 1247, 1253(1968), we find ourselves unable to say that the procedure was so unnecessarily suggestive "as to give rise to a very substantial likelihood of irreparable misidentification". Simmons, supra. The witness had previously seen the defendant when he stayed at the complainant's house, had a good opportunity to view the intruder on the night in question and, on the night the crime here occurred, recognized the intruder as one who had previously stayed at complainant's house and so informed the complainant. Under these circumstances we hold that the identification procedures here employed did not serve to deny defendant due process of law. Lastly, we have considered defendant's remaining assignment of error and find it to be without merit. Affirmed. NOTES [*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/3429956/

I find myself unable to agree with the majority opinion and therefore respectfully dissent. The State of Iowa brought this action under section 8402 of the 1935 Code, for the purpose of having a receiver appointed and to dissolve the corporation. The decree that was entered granted all of the relief which the State of Iowa asked for and determined the case in its favor. There was a cross-petition filed by W.H. Wells against certain parties to the action, but not against the State of Iowa. The State of Iowa did file a voluntary answer to the cross-petition, and the case was tried out. Decree was entered in favor of the State of Iowa on its original petition and in favor of W.H. Wells on his cross-petition. It must be kept in mind that the State of Iowa secured all of the relief it asked for and all of the relief to which it was entitled, by the decree entered. The majority recognize the fact that the State secured all it asked for and all it was possible to get. But they say that the cross-petitioner, Wells, should have filed a motion to strike the answer of the State of Iowa to his cross-petition, and, not having done that, he cannot for the first time raise the question in this court. The answer to that, it seems to me, is that the State of Iowa, by the decree entered on the cross-petition, was not in any way injured or affected except for the amount of costs which might be taxed against the State. This court has held time and again that it will not entertain an appeal where the only question involved is that of costs. In the case of Hampton v. McKeehan, reported in 187 Iowa 1141, at page 1143, 175 N.W. 5, 6, this court said: "Appellees have moved a dismissal, one ground of which asserts, in substance, that appellees have removed themselves, and that appellant is at liberty to take possession, without the help of any court. We find this assertion in the motion to be true. It is, therefore, our opinion that a consideration and decision of this appeal will effect nothing, except to settle who shall pay costs. We cannot decide the appeal when nothing but that will be accomplished by the decision. Moller v. Gottsch, 107 Iowa 238,77 N.W. 859; Young v. Olson (Iowa), 115 N.W. 1020; Kelley v. Kelley,187 Iowa 349, 174 N.W. 342. See, also, State v. Richmond D.R. Co., 74 N.C. 287; State v. Loomis (Tex.), 29 S.W. 415; 2 Century Digest, sections 63 to 84; 3 Century Digest, section 3122." *Page 477 The decree of the lower court having granted the State of Iowa all of the relief it sought, and the State having no interest in this appeal except as to the question of costs, it should not be permitted to maintain the appeal. The other question involved is that of fraud. I have gone over this record. It appears that Wells had secured title to the mine involved in this case. There was no employment for the miners of the locality and so an arrangement was entered into, in writing, whereby the miners were to work at the going wage and a part of their earnings was to be withheld and stock in the corporation was to be issued for the amount of wages not paid. The amount that Wells was to receive for the mine was agreed upon. The theory of the defense is that Wells was guilty of fraud, and that representations were made to the miners to secure their signatures to the contract, that when the amount checked off from the wages due them had reached the sum of $10,000 the mine would be theirs. The record is an exceedingly interesting one. Only one witness (and there were some fifteen or eighteen) testified that Wells made any direct statement to him, and all he testified was that Wells said it was a good mine and they simply owed $2700. Not a single witness testified that he signed the agreement upon any representations directly made by Wells. There are two or three witnesses who testified that Wells was present when other officers and directors of the company made statements in regard to the financial condition of the company, and they claimed Wells sat by and made no objections to these statements. It is very doubtful if any of the statements were admissible. There was a written contract entered into by these miners. The statements which they claim to have been made by other officers and directors are not very specific, but Wells made none of them, and, to charge him with fraud in face of his failure to make any statements, and simply because he sat by and listened while some officer or director was alleged to have made a fraudulent statement (and there is no proof that it was fraudulent), it seems to me is entirely out of line with the requirements of proof of fraud that this court has laid down in other cases. There was a large number of witnesses. The distinguished and able trial court had the opportunity of listening to them. He did listen and then entered the decree in favor of the cross-petitioner. I think he was right, and I would affirm the decision of the lower court. *Page 478

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4063503/

PD-0910-15 IN THE OF TEXAS CRIMINAL APPEAL COURT ASUTIN,TEXAS CLIFTON DEAN MONTGOMERY,Jr.,Appellant FILED IN ^RECEIVED COURT OF CRIMINAL APPEALS v V • '•'"•^OFCRWAL"" JUL 2 2 2015 THE STATE OF TEXAS JUL 2 2 2015 Abel Acosta, Cierk TRAIL COURT NO.12-01245-CRF-272 'Abe! Acosta, Clerk APPEAL NO.10-13-00298-CR PRO SE MOTION FOR EXTENSION OF TIME TO FILE PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE COURT OF CRIMINAL APPEALS: Comes now Respectfully,CLIFTON DEAN MONTGOMERY,Appellant in the above style and number cause whom are proceeding pro se files and submit this his Pro se Motion For Extension of Time to File Petition For Discretionary Review,and in support,the Appel- lent will show: 1. )The.r.style and number of this case in the Tenth District court of Appeals Waco,Texas is; CLIFTON DEAN MONTGOMERY V. THE STATE OF TEXAS Appeal no.10-13-00298-CR. 2).The style and number of the case in the trial court is: THE STATE OF TEXAS V.CLIFTON DEAN MONTGOMERY Cause No. 12-01245- CRF-272 Brazos County,Texas . 3).The conviction was affirmed juyl 3,2015. 4)The deadline for filing Appellant's Petition For Discretionary Review is August 3,2015. 5). An extension of time for a period of sixty(60) days is re quested that would make the date due, October 3,2015. 6). No prior requet for an extension of time has been made. 7). The facts relied upon to show good cause for the requested entension are,as follows: The Appellant was represented by court appointed attorney during the appeal and after the appeal was affirmed the Appellant has to file rehearing pro se as well as Petition For Discretionary Review. WHEREFORE,PREMISES CONSIDERED,the Appellant respectfully request this Honorable Court to extend time for filing Petition For Discretionary Review in this cause until October 3,2015. ON THIS THE DAY OF ,2015 RESPECTFULLY SUBMITTED,, CLIFTON DEAN MONTGOMERY #1874480 Polunsky Unit 3872 FM 350 South Livingston,Texas 77351

01-03-2023

09-29-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429776/

Defendants are trustees of the Rock Island Railroad. The collision occurred at a country grade crossing about 7:30 a.m., on April 28, 1942. The automobile, a 1936 Chevrolet four-door sedan, was proceeding east on a graveled highway. The railroad runs northwest and southeast. The train was a passenger train from the southeast, propelled by a Diesel motor to which were attached three other cars. The automobile collided with the fore part or middle of the second of the four cars. Faber drove the automobile. Decedent sat in the front seat at the driver's right. Two ladies sat in the rear seat. Frideres and one of the ladies were killed. This action was brought by Frideres' administratrix on behalf of his estate. Defendants have appealed from verdict and judgment against them. [1] I. Defendants first contend that as a matter of law the sole proximate cause of the collision was the negligence of the driver, Faber, and that no negligence of defendants had any causal connection therewith. The court instructed the jury that Faber was negligent and his negligence was a proximate cause of the collision but left it to the jury to say whether the trainmen were also negligent in not giving the required signals of the train's approach and whether such negligence was also a proximate cause of the collision. We think the question of proximate cause was for the jury. Defendants' answer alleged as an affirmative defense that decedent's death was proximately caused by the negligence of *Page 642 Faber in driving his automobile into the side of the train. While, of course, plaintiff had the burden to prove direct causal connection between defendants' negligence and the happening of the collision, the burden to prove this affirmative defense by a preponderance of the evidence rested upon defendants. Johnson v. McVicker, 216 Iowa 654, 658, 247 N.W. 488; Reddick v. Grand Union Tea Co., 230 Iowa 108, 115, 296 N.W. 800, 803; Maland v. Tesdall,232 Iowa 959, 963, 5 N.W.2d 327, 329. In effect, the jury was so instructed. Since defendants have not complained of this instruction (13a), it is the law of the case. Commercial Credit Co. v. Hazel, 214 Iowa 213, 215, 242 N.W. 47; Loran v. City of Des Moines, 205 Iowa 1349, 1350, 219 N.W. 418; Lange v. Bedell,203 Iowa 1194, 1202, 212 N.W. 354. In the absence of an admission by the adverse party, it is not often that a party having the burden of proof upon such an issue establishes it as a matter of law. Maland v. Tesdall, supra. See, also, Kellogg v. Rhodes,231 Iowa 1340, 1342, 4 N.W.2d 412, 413. [2] In considering this and the other assignments of error we will view the evidence in the light most favorable to plaintiff. Decedent was a nephew of Mrs. Faber, who died on April 26, 1942, and a cousin of George Faber, driver of the car and son of the lady who died. Frideres sat up in the Faber home all of the night before the collision. George Faber slept only about four hours that night. Mrs. Faber was to be buried on the morning the collision occurred. In the early morning of April 28th George Faber started for West Bend, about four miles west of the Faber farm, to buy groceries and get the two ladies who later became passengers in his automobile. The ladies were to help in the Faber home with the extra work due to the funeral. Frideres accompanied his cousin on the trip to West Bend because he was drowsy but did not want to go to sleep. Frideres was a farmer who had worked in the field all the preceding day, which was windy, warm, and dusty. The railroad crossing was about a mile west of the Faber farm. Faber and Frideres crossed it going into West Bend. Faber was very familiar with the crossing but Frideres had never seen it before. After getting the groceries and the two ladies in West Bend, they started back to the farm, driving east at the time of collision. *Page 643 A blinding sun was low in the east or somewhat south of east. Faber pulled down the sunshade on his side of the car. There was no sunshade on the right side where Frideres sat. One of the ladies wore dark glasses. The windows of the Chevrolet were closed except that the small ventilator window in the left front door was open. While the ladies exchanged a few words, there was no other talking. Faber appeared to be giving strict attention to his driving. There were four trees, spaced about evenly, on the south side of the highway west of the railroad. The trunk of the east tree, nearest the railroad, was about two hundred forty feet west of the track. The trunk of the west tree was about ninety feet farther west. When Faber was about even with this west tree (three hundred thirty feet west of the railroad) he looked to the left or north up the track. Since the railroad ran northwest it was necessary for him "to turn clear around" to make this observation. Faber then looked down the road to the east. When the front of the automobile was about eighty-five feet west of the crossing Faber looked to his right along the track and discovered the approaching train about one hundred twenty-six feet southeast of the intersection. The train was traveling fifty-five to sixty miles per hour. The engineer estimated the speed at fifty miles per hour. The train was fifty minutes behind schedule. The Chevrolet was traveling forty to forty-five miles per hour. When Faber saw the train he slammed on his brakes as quickly and as hard as he possibly could. The passengers were thrown forward and to the top of the car. Although the brakes functioned perfectly, Faber was unable to stop before his automobile struck the fore part of the second car of the train. When the Chevrolet came in contact with the train "it was not going very fast" but "had pretty well stopped." While the view of the railroad from the road was not obstructed for the two hundred forty feet between the four trees and the crossing, the sun and Traub's grove made it more difficult to see the train. This large grove was on the east side of the railroad, southeast of the crossing, and formed a dark background for a train. *Page 644 Defendants argue that, even though the warning signals of the train's approach were not given, Faber's negligence was a superseding, intervening cause which in itself produced the actionable result and rendered the alleged negligence of the railroad a remote, rather than a proximate, cause. In effect, it is contended that the failure of warning signals is a mere circumstance rather than a cause of the collision. The authorities cited by defendants do not sustain the contention, as applied to this record. In Wright v. Chicago, R.I. P.R. Co., 222 Iowa 583,268 N.W. 915, cited by defendants, we held that failure of warning signals was not a proximate cause and, in effect, was immaterial, where the driver of the automobile had full knowledge of the approach of the train in ample time to have avoided the collision. Such knowledge of the driver in the Wright case not only was shown but was admitted by both parties. That decision follows Frush v. Waterloo, C.F. N.R. Co., 185 Iowa 156, 169 N.W. 360, where it appeared by the plaintiff's evidence that the automobile driver not only saw the train in time to stop but did in fact stop before he reached the railroad; the collision was caused by the driver's starting his car again before the train had cleared the crossing. The cited decisions are not applicable here. It does not appear as a matter of law that Faber knew of the train's approach in time to have avoided the collision. The jury could have found that from the time he saw the train he exercised reasonable care in an attempt to avoid the collision. Faber's negligence primarily was in not sooner discovering the presence of the train. The two principal witnesses for defendants were the engineer of the train and Ludwig, a trucker who saw the collision. The engineer testified, "I knew that he wasn't going to get stopped * * * At the time the engine got about 150 ft. from the crossing I decided that he wasn't going to get stopped." Ludwig testified, "as the train began nearing the crossing I kind of foreseen the accident." This testimony is consistent with Faber's claim that he could not have avoided the collision after he discovered the train. Of course, it cannot be demonstrated to a certainty that failure to give the warning signals was a direct cause of the *Page 645 collision. Possibly Faber might not have heard nor heeded the signals if they had been given. But absolute certainty of proof is not required. Even though there may be some degree of doubt that the signals, if given, would have prevented the collision, it does not follow that the question of proximate cause was not one for the jury. Smith v. Chicago, B. Q.R. Co., 227 Iowa 1404,1413, 291 N.W. 417, 422; Swaim v. Chicago, R.I. P. Ry. Co.,187 Iowa 466, 471, 170 N.W. 296, 174 N.W. 384; Kuehl v. Chicago, M. St. P. Ry. Co., 126 Iowa 638, 640, 102 N.W. 512; 2 Restatement of the Law, Torts, 1161, 1163, section 432. We think the jury could properly have found that if the required signals had been given Faber would have discovered the approach of the train in time to have avoided the collision and that decedent would not have been killed. We cannot say as a matter of law that the required signals would have proved unavailing or that the collision would have occurred even though the signals had been given. That the issue of proximate cause was for the jury, see Reysack v. Joyce, 232 Iowa 415, 419,3 N.W.2d 535, 537; Saeugling v. Scandrett, 230 Iowa 153, 296 N.W. 787; 2 Restatement of the Law, Torts, 1161, 1163, section 432. [3] II. Defendants challenge the sufficiency of the evidence that the required signals were not given. It is contended the testimony that signals were not heard is without probative value because unaccompanied by proof that the witnesses were in a position or mental attitude to have heard such signals if given. Section 8018, Code, 1939, provides in substance that a whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle a bell shall be rung continuously until the crossing is passed. We think there is substantial evidence that such signals were not given. Faber testified that he knew he was coming to a railroad crossing and was listening for a whistle and bell but heard neither. Mrs. Bauman, the surviving passenger, testified she knew the railroad crossed the highway at some place; she heard no whistle or bell until after the collision; she was rendered unconscious by the collision; when she "came to" the whistle *Page 646 was blowing and the bell was ringing "real loud"; while she was still sitting on the ground, dazed by the accident, she said, "If the train had whistled like you are whistling now we would have heard you." There is evidence that neither of the deceased passengers heard any signal. Neither gave any indication of knowledge of the train's approach until after the brakes were applied. As stated, the left ventilator window was open. There was no visiting. The car had recently been overhauled and made no unusual noise. There was nothing to prevent the occupants of the car from hearing the signals had they been given. Traub lived about one hundred ten steps east of the railroad and roughly a quarter of a mile south of the crossing. He testified: "I was in the house eating breakfast at about seven-thirty the morning of the accident. I can hear the sound of the horn on the north-bound passenger train as it comes by my farm when I am in the house. I didn't hear the whistle of the train that morning until after the accident. Then I heard the whistling and we mentioned it. I said, `Well, somebody's stock is out in the right-of-way.' Up to that time I heard nothing. The sound of the whistle or horn came from the direction of the crossing. * * * The first I heard the whistle was when the stock alarm was sounded; a kind of special or sharp quick blast, one after another." The engineer testified that he pulled the cord to sound the whistle or horn at the whistling post, which he said was one thousand feet southeast of the crossing (actually it was about fifteen hundred feet); when he was six hundred feet from the crossing he turned on the bell, and at one hundred fifty to two hundred feet from the crossing he started sounding the "stock alarm," a succession of short blasts of the whistle or horn; he heard none of the signals, because of the noise of the motor, until after the train was brought to a stop and he put his head out the window, but the signaling equipment was in working order. The conductor testified that the only time he paid any attention to the whistle was when the stock alarm was sounded *Page 647 about the time the brakes were applied. The engineer said he applied the brakes when the train was one hundred to one hundred fifty feet from the crossing. A farmer who lived a half mile north and a little west of the crossing said he heard the stock alarm but no bell; he did not know where the train was when the alarm was sounded; the train stopped about seventeen hundred feet northwest of the crossing. Another farmer, a mile north and forty rods east of the crossing, said he heard a whistle but did not know whether it was from the train or what it was. Ludwig, in his truck, was following Faber. He heard no bell but said he did hear a whistle before the collision. His testimony, however, is inconsistent in different respects. We cannot say there was a failure to prove that the signals as required by law were not given. No witness testified he heard any bell before the collision and several (some of whom were offered by defendants) who were in a position and mental attitude to hear said they heard none. There is a conflict as to whether the whistle was sounded, but there is ample evidence that there was no whistle, at least until the "stock alarm" was sounded. Even under the testimony of the conductor and engineer, the jury could have found the train was then within one hundred feet of the crossing. Testimony that a whistle was heard must be considered in connection with the admitted fact that the whistle was sounded after the collision. Among the numerous cases in support of our conclusion are: Finley v. Lowden, 224 Iowa 999, 1001, 1002, 277 N.W. 487; Hines v. Chicago, M. St. P. Ry. Co., 196 Iowa 109, 112, 113,194 N.W. 188; Brose v. Chicago G.W.R. Co., 185 Iowa 867, 871,171 N.W. 149; Burnett v. Chicago, M. St. P. Ry. Co., 172 Iowa 704, 706,707, 154 N.W. 919; Selensky v. Chicago G.W. Ry. Co., 120 Iowa 113,115, 94 N.W. 272. [4] III. We think the issue of decedent's freedom from contributory negligence was also for the jury. It may be conceded that if Faber had been injured his negligence would have barred recovery by him. But this case for the death of a guest is controlled by different considerations. Finley v. Lowden, supra; Miller v. Union Pac. R. Co., 290 U.S. 227, 54 S. Ct. 172,78 L. Ed. 285, 288. Decedent had no right of control over the *Page 648 automobile. Faber's negligence, therefore, is not to be imputed to decedent. Churchill v. Briggs, 225 Iowa 1187, 1190, 1191,282 N.W. 280, and cases cited; Carpenter v. Wolfe, 223 Iowa 417, 426,427, 273 N.W. 169, and cases cited; Crowley v. Chicago, B. Q.R. Co., 204 Iowa 1385, 1387, 213 N.W. 403, 53 A.L.R. 964; Miller v. Union Pac. R. Co., supra. The question is whether Frideres, rather than Faber, exercised ordinary care for his own safety. It is probably true to a limited extent that decedent entrusted his safety as well as the direction of the automobile to Faber. But this was not necessarily negligence on his part. Finley v. Lowden, supra, 224 Iowa 999, 1003, 277 N.W. 487. A passenger in an automobile is not under an absolute duty to see an impending danger in time to interfere and prevent it. Within reasonable limits he may rely upon the skill and judgment of the driver. A passenger is not required to exercise the same degree of vigilance in looking and listening as is required of the driver. Jensvold v. Chicago G.W.R. Co., 234 Iowa 627, 12 N.W.2d 293,295, and cases cited; Finley v. Lowden, supra, 224 Iowa 999,1004, 1005, 277 N.W. 487, and authorities cited. See, also, Carpenter v. Wolfe, 223 Iowa 417, 424, 273 N.W. 169. On this issue it is proper to consider that Frideres worked in the field all the preceding day and sat up all night with the dead body of his aunt; he appeared to be tired out; he was not familiar with the locality and had never seen this railroad crossing before the trip into West Bend, if, indeed, he observed it at that time; there is no indication that he knew they were approaching the crossing until the brakes were applied; the sun was shining in his eyes and there was no sunshade on his side of the windshield; Faber, however, was protected by a sunshade; Frideres knew that Faber was thoroughly familiar with the highway and was a competent and experienced driver; also that Faber had slept four hours the night before and presumably the two ladies had gotten a full night's sleep; Faber appeared to be paying strict attention to his driving and the car was moving at moderate speed; there was no apparent cause for alarm; decedent sat facing Faber, away from the direction from which *Page 649 the train came, with his left arm over the back of the front seat; he appeared to be relaxing and resting. On the question of plaintiff's freedom from contributory negligence, the evidence that the required signals were not given by the trainmen is also properly to be considered. Carpenter v. Wolfe, supra, 223 Iowa, 417, 424, 273 N.W. 169; Johnson v. Omaha C.B. St. Ry. Co., 194 Iowa 1230, 1234, 190 N.W. 977, and cases cited; Butterfield v. Chicago, R.I. P. Ry. Co., 193 Iowa 323,328, 185 N.W. 151, and cases cited; 3 Blashfield Cyclopedia of Automobile Law Practice, Perm. Ed., 155, 156, section 1757. The occupants of the automobile had a right to assume, until they had knowledge or notice to the contrary, that the required signals would be given. Saeugling v. Scandrett, supra, 230 Iowa 153, 156,296 N.W. 787, 788; Nederhiser v. Chicago, R.I. P. Ry. Co.,202 Iowa 285, 290, 208 N.W. 856; Barrett v. Chicago, M. St. P. Ry. Co., 190 Iowa 509, 515, 175 N.W. 950, 180 N.W. 670, and cases cited; 44 Am. Jur. 718, section 480. In support of our conclusion that contributory negligence was a question for the jury, see Finley v. Lowden, supra, 224 Iowa 999,1003-1005, 277 N.W. 487, and authorities there cited; Johnson v. Omaha C.B. St. Ry. Co., supra, 194 Iowa 1230,190 N.W. 977; Bradley v. Interurban Ry. Co., 191 Iowa 1351, 1354,183 N.W. 493. See, also, Jensvold v. Chicago G.W.R. Co., supra,234 Iowa 627, 631, 12 N.W.2d 293, 295; Teufel v. Kaufmann, 233 Iowa 443,447, 6 N.W.2d 850, 852, 853; Muirhead v. Challis, 213 Iowa 1108,1115, 240 N.W. 912. [5] IV. Finally, it is contended the amount of the verdict is so excessive as to indicate passion and prejudice on the part of the jury. The verdict and judgment were for $7,840.82. However, plaintiff had received $2,000 in return for a covenant not to sue George Faber and the estate of Mrs. Faber as a result of the collision. The jury was instructed that defendants were entitled to a credit of this $2,000, with interest from date of payment, upon any amount it should allow plaintiff. See, on this question, Greiner v. Hicks, 231 Iowa 141, 146, 147, 300 N.W. 727, 730, 731. Evidently the jury found the pecuniary loss to the estate was substantially $10,000. Presumably the verdict would have been for that amount if the payment by the Fabers *Page 650 had not been made. We are not prepared to hold such amount excessive. Decedent was twenty-seven years old, married, and the father of three children. He had been farming a rented quarter section for two or three years without hired help except for once or twice in the busy season. He earned between $2,000 and $3,000 a year after paying his rent. Before farming for himself he had worked as a farm hand. He had a tractor, a set of farm machinery, a few head of livestock, and household goods. His father gave him the tractor and disc but he acquired the other property himself during the two or three years he had been farming for himself. He was in perfect health. His expectancy was 37.43 years. He was a good worker and farmer, a good husband and father. He saved his money and was trying to get ahead. There is nothing in the record to indicate passion or prejudice on the part of the jury. It is not contended the jury was incorrectly instructed on the measure of recovery. Defendants waived argument to the jury. That the size of the verdict does not justify interference on our part, see Engle v. Nelson, 220 Iowa 771, 784, 785,263 N.W. 505, and cases there cited; Scott v. Hinman, 216 Iowa 1126, 1132,1133, 249 N.W. 249. — Affirmed. HALE, C.J., and OLIVER, BLISS, SMITH, and MULRONEY, JJ., concur. MANTZ, J., takes no part.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429771/

This is the second appeal of this case, the opinion *Page 96 in the first appeal being reported in 201 Iowa 1050. After a reversal, and on August 12, 1926, the plaintiff filed an amended and substituted petition, and on March 16, 1927, John Reuter filed a petition of intervention. As the case was disposed of in the lower court on motion to dismiss each of the petitions, it may be necessary to later summarize their contents. The first division of our former opinion in this case simply holds that plaintiff, H.G. Peverill, was not entitled to complain of the constitutionality of Chapter 48, Laws of the Fortieth General Assembly, because his petition did not allege that he had signed any agreement with the commissioner of animal health (the secretary of agriculture). The second division holds that the pleading does not assault Chapter 23 of the Laws of the Extra Session of the Fortieth General Assembly. Division 3 holds that, because plaintiff does not allege that he is a breeder of cattle, or that he signed an agreement consenting that his herd, — if he is in fact a breeder, — might be tested under the act, and because it does not appear that he is in any way prejudiced by the change in the law, he is not, therefore, in a position to question the validity of the enactment upon the ground alleged. Next, that the invalidity of a particular provision of one section of the chapter will not invalidate the full chapter. Division 4 deals with Section 25 of Chapter 23 of the Laws of the Extra Session of the Fortieth General Assembly and Chapter 94, Supplement to the Laws of the Extra Session, which in express terms legalizes the act of the secretary of agriculture of which complaint is now made. The holding is that there were no proper pleadings calling into question the constitutionality of Chapter 23 of the Laws of the Extra Session of the Fortieth General Assembly, and therefore the question was eliminated from the discussion. The opinion closes with the statement that "the petition does not state a cause of action, nor is appellee entitled to the relief prayed. The demurrer should have been sustained;" and the case was remanded. On its reappearance in the district court, plaintiff filed an amended and substituted petition, in which he substantially added the elements necessary to the making of a good petition which the former opinion in this case held were wanting. The intervener, John Reuter, thereupon filed a petition of intervention, in which he made substantially the allegations *Page 97 contained in plaintiff's amended and substituted petition, and the further allegation that said intervener had signed the petition or agreement required by the statute. Both of these petitions contained the necessary allegations, and raised the constitutional questions hereinafter referred to. Each was attacked by a separate motion to dismiss. These motions were substantially the same, and sufficiently raise all questions hereinafter discussed. The first division of the appellant's argument is devoted to the question of whether or not injunction is the correct remedy in this proceeding. This question is raised in the motion to dismiss, wherein it is said that the proper remedy is certiorari, and not injunction; but in argument the defendants waive this question, and say they do not care to urge the same. We will, therefore, give it no further attention. Division 2 is devoted to a discussion of the question that the secretary of agriculture was guilty of fraud, acted fraudulently, failed to discharge his duty, and was guilty of a breach of trust. By reason of a question to be discussed later, we will give no attention to this proposition at the present time. The third division is devoted to a discussion of the constitutionality of the legislative acts which it is claimed impair the obligation of the contracts. The agreements were signed under the original law, which provided 1. CONSTITU- for compensation in case of the slaughtering of TIONAL LAW: animals found to react to the tuberculin test. vested Later, by amendment, it was provided that five interests: per cent of the value of the whole herd should impairment be deducted before the owner should receive any of contract. compensation (see Section 10-k, Chapter 48, Acts of the Fortieth General Assembly); hence it is claimed that this impairs the obligation of contracts. Whatever merit there is in this contention is eliminated by reason of Section 1, Chapter 54, Acts of the Forty-second General Assembly, which repealed the provision as to the deduction of 5 per cent of the value of the whole herd. This latter law went into effect before the decision of this matter in the lower court; hence the question becomes entirely moot. Division 4 is devoted to a discussion of the constitutionality of the law as it existed at the time it was sought to establish Black Hawk County under the accredited-area plan. If found necessary, this matter will be given further attention later. *Page 98 The next proposition is that the curative act did not render valid the act of the board of supervisors and secretary of agriculture, — make constitutional that which was previously unconstitutional. Under this proposition, it is 2. CONSTITU- argued that neither the board of supervisors nor TIONAL LAW: the secretary of agriculture had jurisdiction to legalization perform the acts they did in respectively acts: declaring Black Hawk County to be a "county permissible area" and an "accredited area." Narrowed down, legaliza- the claim is that, where an inferior officer or tion. body acts without jurisdiction in the first instance, such action cannot be given life and vitality by a legalizing act later passed by the legislature. In Coggeshall v. City of Des Moines, 78 Iowa 235, a pavement assessment was held void because of want of jurisdiction, as the city had no power to make the same because of its failure to follow certain statutory requirements. Subsequent thereto, the legislature, by the enactment of Chapter 44 of the Acts of the Twenty-second General Assembly, sought to legalize these assessments. In the case of Tuttle v. Polk Hubbell, 84 Iowa 12, the question was raised as to the legality of this legalizing act. In the latter case it is said: "It is conceded that it is within the power of the legislature to legalize any defect in proceedings of this kind if the defect or omission or want of compliance with the law is such that it might have been dispensed with by a prior statute. We understand this to be the rule in all courts in this country. Boardman v.Beckwith, 18 Iowa 292; State v. Squires, 26 Iowa 340; Richman v.Board of Supervisors, 77 Iowa [513], 517 * * *. Some of the cited cases hold that the defective proceedings may be made valid by subsequent legislation, where, by reason of the defect or omission, the proceeding was absolutely void. It was, therefore, competent for the legislature to have passed an act legalizing the proceedings by declaring that the contracts for the paving should be valid, notwithstanding the omission to comply with the statute in the matter of determining the kind of material before advertising for bids. It was competent for the legislature to have provided that the work might be let to bidders without first determining the material to be used, and to take bids for any kind of *Page 99 material, and let the contracts for that kind which it was thought would best subserve the public interests. And the authorities cited hold that this curative legislation may be enacted while suits are pending in the courts involving the validity of the defective proceedings." In the case of Richman v. Board of Supervisors of MuscatineCounty, 70 Iowa 627, a ditch levy was held to be void for want of jurisdiction. The twenty-first general assembly passed a curative act, legalizing the proceedings, and in Richman v. SupervisorsMuscatine County, 77 Iowa 513, we held that the legalizing act was constitutional. See, also, Iowa Railroad Land Co. v. Soper,39 Iowa 112. In the latter case, another point raised by the appellant was disposed of adversely to his contention, where it was held that such legislation is not obnoxious to Section 30, Article 3, of the Constitution, providing against local or special laws. In the case of Utter v. Franklin, 172 U.S. 416 (43 L. Ed. 498), the United States Supreme Court had before it this identical question. The territory of Arizona had issued certain bonds which were void, because not authorized by an act of Congress. The Supreme Court of the United States so held. Later, Congress passed a legalizing or curative act, validating said bonds. In the Utter case, that court said: "The fact that this court had held the original Pima County bonds invalid does not affect the question. They were invalid because there was no power to issue them. They were made valid by such power, being subsequently given, and it makes no possible difference that they had been declared to be void under the power originally given. The judgment in that case was res adjudicata only of the issues then presented, of the facts as they then appeared, and of the legislation then existing." The case holds that Congress had the power to thus validate said bonds. We said in the former opinion in this case (Peverill v. Boardof Supervisors), 201 Iowa 1050: "It is, of course, conceded by all parties that the legislature *Page 100 may legalize any act which might have been omitted from the law or which it had constitutional power to enact." We further said in that case: "Whether or not, if the legislature had omitted the provision requiring petitions or agreements to be filed, such omission would have rendered the act invalid, it is certain that the legislature could have fixed the percentage at less than 75 per cent, e.g., 52 per cent. If the legislature has such power, then why can it not legalize the act of the secretary, if it were doubtful as to whether the required number of agreements was on file, or if it was difficult or impossible to determine the question accurately? The designation of the percentage as 75 per cent of the owners of breeding cattle in any county was purely arbitrary, and could as well have been made greater or less. We perceive no reason, therefore, why Chapter 94 was not effective as a curative act operative upon all matters argued, including the plea of fraud." The legalizing act was, in our opinion, valid. Narrowed down, the situation in the case (if we take the appellant's contention under the allegations of his petition) is that, according to the last assessment rolls in Black Hawk County, the number of owners of breeding cattle was 2,356. The number of agreements and petitions filed with the secretary of agriculture was 1,858, which, of course, exceeds the 75 per cent limit. But appellant's claim is that, if the duplications and nonresidents, the signers who were not owners of breeding cattle, the forgeries, and 225 withdrawals were stricken therefrom, there were left only 1,235 so-called "live and valid" petitions or agreements; hence that the secretary of agriculture had no jurisdiction. It is apparent, therefore, on the face of the filings with the secretary of agriculture, that more agreements were filed than were required by the statute. One of the questions for determination by the secretary of agriculture, before he made the order establishing Black Hawk County as an accredited area, was whether or not the statute with reference to the number of agreements required had been complied with. This probably, as contended by appellant, was a judicial act. But with this situation, how can it be said that the secretary of agriculture did not have *Page 101 jurisdiction in the matter? His action was not reviewed, by certiorari or otherwise, and it is now sought to be collaterally attacked in this proceeding. It seems to us, therefore, that there are two answers to appellant's contention in this matter: (1) That, under the prima-facie record made, the secretary of agriculture did have jurisdiction; and (2) that, if he did not have jurisdiction, under the line of authorities already cited from this state and other states, it was such a situation as that it could be and was remedied by the curative act passed, which was constitutional. As suggested in the first opinion, the legislature could have required a petition signed by any number of breeders of cattle it chose. It might have said that a petition signed by one cattle breeder would be sufficient; or it might have fixed 25 per cent of the owners of breeding cattle in the county as the required number. In other words, it was wholly within the power of the legislature to require such number as it deemed wise, to file petitions with the secretary of agriculture. No one disputes this power on the part of the legislature. If it had the power, therefore, to so fix the number of petitioners required in the first instance, under the well settled line of authority in this state, and, in fact, in all of the states, it had the power to legalize the defects herein claimed by the appellant. We see no escape from this conclusion. In other words, if we had the facts in this case as alleged by the plaintiff, and the statute had required petitions or agreements from 50 per cent of the owners of breeding cattle in the county, the appellant would have no reason to complain, because, under the admitted facts, more than 50 per cent of the owners of breeding cattle in the county did file such petitions and agreements. We therefore hold against appellant's contention in this respect, and conclude that the legalizing act which is here attacked was a valid exercise of legislative power. A review of the legislation on the subject of bovine tuberculosis will aid in the understanding of the questions involved in this case. The first statute 3. CONSTITU- touching this subject is Chapter 287, Laws of TIONAL LAW: the Thirty-eighth General assembly. Section 10 police thereof provides for applications to be made by power: due the owners of herds and who desire the same to process as be examined and tested, to be accompanied by an limitation. agreement that the signer will conform *Page 102 to and abide by the rules and regulations laid down by said commission, and follow instructions of the commission, etc. The act further provides for the slaughtering or quarantine of infected animals; also, for accrediting herds approved by the commission. It will be noted that this statute is purely permissive, providing means by which owners of breeding cattle may have the same examined and tested, with a view of detecting the presence of tuberculosis, at the expense of the state. Chapter 48, Acts of the Fortieth General Assembly, provides first for a county-area testing unit, the substance of which is that, whenever 51 per cent of the owners of breeding cattle within a county present to the board of supervisors petitions, with the agreements provided for in Section 10 of the original act, the board shall be given the right to make application to the commission of animal health of the state for the enrollment of said county under the county-area plan; and the commission is directed, on the filing of the required number of agreements, to designate such county as a county-area testing unit; and the commission of animal health then appoints an inspector, whose duty it is to test the breeding cattle of such owners as shall have signed agreements provided for in Section 10 of the original act. It will be noticed here that, under this law, neither the board of supervisors nor the commission of animal health is required to give notice or hearing on any matters involved. This also provides for what is designated as an "accredited area," and provides that, whenever 75 per cent of the owners of breeding cattle in any county operating under the county-area plan shall have signed agreements with the commission of animal health, said commission shall notify the board of supervisors of such county of such fact, and such board of supervisors shall, at the next regular meeting, by resolution, declare such county's intention to become an accredited area, and it shall thereafter become the duty of every owner of breeding cattle within said county to cause his breeding cattle to be tested, under the accredited-area plan. A divergence is to be here noted between this plan and the original plan, as marked out, the point being that, after the county has been declared to be an accredited area, the statute requires every owner of breeding cattle in the county to have the same tested; whereas, under the prior law, only those who filed *Page 103 petitions and signed agreements were required to have their cattle tested. In other words, where a county is already operating under the county-area plan, this statute permits 75 per cent of the owners of breeding cattle, by filing the applications and agreements with the proper authorities, after the proper action by such authorities, to compel all owners of breeding cattle within the county to submit their cattle to the test. It is also to be noted that, in the establishment of this county accredited-area plan, there is no provision whatever for notice and hearing; and it follows, as a matter of course, that none of the parties who have signed petitions and agreements can complain of want of notice and opportunity to be heard. But what about the parties who are owners of breeding cattle within the county who have not signed such petitions and agreements? This question is of importance, in view of the fact that this statute carries a penalty for any owner of breeding cattle who fails to have his cattle tested after the county-area-eradication plan has been so adopted. It may also be noted that, up to this point, no requirement is made that either the board of supervisors or the commissioner of animal health is required to pass upon the sufficiency of the petitions or agreements, or make any finding whatever in relation thereto. The extra session of the fortieth general assembly passed House File No. 68, part of which appears in the Code of 1924 as Sections 2683 and 2684. Section 2683 provides that, when such petitions and agreements are filed with the board of supervisors of the county, notice shall be published of the date of hearing on said petitions; and Section 2684 gives opportunity for objections to be filed, and requires the board of supervisors to pass upon the sufficiency of the petition, and provides, if it is found to be sufficient, then, upon proper application by them, the secretary of agriculture (who by law succeeded the commission of animal industry), upon receiving such application, shall enroll the county under such county-eradication plan. Section 2694 provides for the accredited-area plan to be declared by the secretary of agriculture, upon the filing of signed agreements of 75 per cent of the owners of breeding cattle of any county operating under the county-area plan. It then provides that the secretary of agriculture shall so notify the board of supervisors. Section 2695 requires the board to publish notice *Page 104 for two weeks thereof, and provides that thereafter every owner of breeding cattle shall cause his herd to be tested for tuberculosis, etc. At this point, it is still to be noted that the secretary of agriculture exercises his powers without notice of hearing, and without any requirements that he pass upon the sufficiency of the agreements filed with him. By Section 2700, Code of 1924, any owner of breeding cattle who does not apply for and sign an agreement for such test, or fails to have his cattle tested as provided therein within a period of 90 days from the publication of notice of enrollment, shall be guilty of a misdemeanor, and shall be punished by a fine of not more than $100. Chapter 23 of the Acts of the Extra Session of the Fortieth General Assembly is a recodification of the law relative to the county-area-eradication plan and the accredited-area plan. The first plan is practically identical with the law as it existed prior to the passage of this act, providing for the filing of a petition of 51 per cent of the owners of breeding cattle in the county and their agreements for a notice and hearing before the board of supervisors, and for an application by the board to the secretary of agriculture for the enrollment of the county under such plan. This law was also re-enacted, giving to the secretary of agriculture the right to enroll the county under the accredited-area plan, upon the filing of a petition signed by 75 per cent of the owners of breeding cattle in any county operating under the county-area plan, and providing that, after so doing, he shall notify the board of supervisors, who shall publish notice thereof. At this point, it is still to be noted that, so far as the department of agriculture is concerned, its action is without notice and opportunity to be heard, and without any requirement that it pass upon the sufficiency of the agreements signed. The penalty here provided is that, where the county has been enrolled under the accredited-area plan, every owner of breeding cattle may be penalized for failing to have his cattle tested within 90 days from the publication of the notice by the board of supervisors of the enrollment of said county as an accredited area. As applied to the instant case, at this point Chapter 94 of the Acts of the adjourned Extra Session of the Fortieth General Assembly was passed, which purports to legalize the acts of the *Page 105 secretary of agriculture heretofore made and done in enrolling any county in the state under the accredited-area plan for the eradication of bovine tuberculosis, under the provisions of Chapter 23 of the Acts of the Extra Session of the Fortieth General Assembly, making the same valid and legal in the same manner as all provisions of the law preliminary and relating thereto that had been fully complied with; and said counties are declared to be so enrolled. This act was approved on July 28, 1924, and was published on July 30, 1924, under a publication clause in the act. The preamble of this act (Chapter 94) reads as follows: "Whereas, as the law now reads, it is quite difficult for the secretary of agriculture to determine accurately the number of owners of breeding cattle in any county, who have signed agreements in force, under the provisions of law relating to the accredited-area plan for the eradication of bovine tuberculosis, and "Whereas, ostensibly there has been filed in good faith with the secretary of agriculture the required number of such agreements in certain counties, to authorize the secretary of agriculture to enroll said counties under the said accredited-area plan, and "Whereas, certain counties have been in good faith enrolled by the secretary of agriculture of Iowa under the accredited-area plan for the eradication of bovine tuberculosis, therefore, "Be it enacted by the General Assembly of the State of Iowa:" It is apparent, therefore, that this act is intended to legalize and validate in the same manner as if all of the provisions of law preliminary and relating thereto had been fully complied with. The question is, Can the legislature, by this legalizing act, supply the want of notice and opportunity to be heard before the secretary of agriculture, in so far at least, as those owners of breeding cattle in the county are concerned who did not sign such agreement? Later, the legislature provided for notice and hearing, by Chapter 54 of the Acts of the Forty-first General Assembly, which went into operation by publication on April 17, 1925, providing that the secretary of agriculture shall publish notice of the hearing on said agreements, giving the right to file objections before the secretary of agriculture, and that he is to determine *Page 106 whether or not the county shall become an accredited area. If the secretary of agriculture finds the petitions sufficient, he shall so enter of record, establishing the county as an accredited area, and notify the board of supervisors of the county accordingly. By Chapter 54 of the Acts of the Forty-second General Assembly, which went into operation on April 15, 1927, the number of signers required before the secretary of agriculture was reduced from 75 per cent to 65 per cent, but the provision was still retained for notice and hearing. It is apparent, therefore, from the various mutations of this law, that Black Hawk County was duly and legally established under the county-area plan, and that none of the objections raised by the appellant are tenable as to its establishment as such under the county-area plan. The question is as to the validity of the designation of this county by the secretary of agriculture as an accredited area, and the real point is whether or not the secretary of agriculture had the power to establish this county as an accredited area, thus forcing the owners of breeding cattle within the county who have not signed an agreement with the secretary of agriculture to subject their herds to the tuberculosis test, as provided by law, without notice and opportunity to be heard. This gives rise to the question of the kind or character of the Bovine Tuberculosis Law. If the legislature, in enacting this law, was exercising its rights under the police power, then it could, if it so elected, authorize the testing of these cattle and the destruction of those found infected, without notice and hearing, and without even providing compensation therefor. That laws of this character have been held by this court and other courts to come within the purview of the police power is now settled. Waud v. Crawford,160 Iowa 432. We discussed this question elaborately in the case of Fevold v.Board of Supervisors, 202 Iowa 1019, and that discussion need not be repeated here. The state of Minnesota, under a similar law, made a similar pronouncement in Schulte v. Fitch, 162 Minn. 184 (202 N.W. 719). The latter case, after citing authorities, concludes as follows: "As the statute is clearly a measure for the protection of the public against disease, it is not within the constitutional inhibition against taxation for private purposes, nor within the *Page 107 inhibition against the state, engaging in work of internal improvement. That dairy products certified as coming from a `modified accredited area,' as defined in the Federal regulations, bring higher prices in the markets than such products from other areas, a fact shown by the record, does not establish that the act is for a private purpose, as claimed by plaintiffs, but that the public recognizes that such areas are comparatively free from infection, and that food products therefrom may be consumed with little or no danger of contracting the disease." At this point we refer to the reply argument of the appellant herein, where he says: "We desire to call your honor's attention to the fact that it is one of our contentions that the constitutional questions we are discussing have nothing to do with, or are not concerned with, health legislation. The constitutional questions discussed are not ones involving police power, or the authority of the legislature to enact health legislation. The question involved is not whether the law is unconstitutional in its provisions as to what can be done after a county has been legally and constitutionally established under the area and accredited-area plans, but the question is, Is the law unconstitutional in its preliminary steps which, under the law, are required, in order to establish a county under the county-area-eradication plan and the accredited-area plan? It is our contention that the preliminary steps provided for in the Bovine Tuberculosis Law are unconstitutional, for the reason that they do not provide due process of law. It is our position that due process of law requires a hearing and the notice of a hearing. This is true even though the proceedings are clearly within and are authorized by the police power." This presents the question of where the legislature enacts a statute under the police power, and whether, in so doing, it is bound by the rule of due process to the extent of requiring the provisions for notice and opportunity to be heard. The contention of the appellant is that the statute is unconstitutional in that it violates due process of law, independent of the question of whether the statute was enacted under the exercise of the police power. With this we cannot quite agree. The *Page 108 question rather is, stated in a simple form, Is the due-process rule a limitation on the right to exercise the police power? The due-process rule is not confined alone to our system of jurisprudence, but is common to thoughtful men everywhere. The heart of it lies in the thought that a right to present defenses must precede judgment; and, necessarily involved therein, the right of notice and opportunity to be heard is the very foundation of the doctrine. As heretofore noted, the law as it existed at the time of the action of the secretary of agriculture in declaring Black Hawk County to be an accredited area, made no provision whatever for notice and opportunity to be heard, as to those parties who had not signed agreements with the secretary of agriculture, as provided by the statute. This, of course, primafacie was not due process of law as to them. The question is, Does this failure to observe due process of law in this respect make this statute unconstitutional, where the statute, as it is in this case, was enacted under the exercise of the police power? Many general statements are found in the books to the effect that the due-process rule does not limit the right to exercise the police power. When we analyze the proposition, this general statement seems too broad. We had before us, in the case of Smithv. State Board of Medical Examiners, 140 Iowa 66, a question of the right of the board of medical examiners to revoke the certificate previously issued by them to Smith as a physician. The claim was that the statute authorizing the revocation was void because the action of the board in so doing was without due process of law. We there said, arguendo, that statutes regulating the practice of medicine fell clearly within the police power of the state, and said: "* * * they cannot be permitted to override the Constitution, but they must be reasonable; and when a valuable right is sought to be disturbed thereunder, the provision of the Constitution prohibiting the taking of property without due process of law is paramount, and must be observed." This pronouncement is not, however, in harmony with State v.Schlenker, 112 Iowa 642, involving the question of the constitutionality of a statute penalizing the sale of adulterated milk. This question was raised, and we there held that the statute was constitutional, as a police regulation. We there said: *Page 109 "Appellee further contends that the statute in question is in violation of the Fourteenth Amendment to the Federal Constitution. Such contention is not sound, for it is fundamental that this amendment does not impose any restraints on the exercise of the police power of the state for the protection of the safety, health, or morals of the community," — citing several United States Supreme Court cases. The first time this question of due process of law was held to be a limitation of the police power was suggested in the case ofWynehamer v. People, 13 N.Y. 378, in which case the statute provided for the destruction of liquor by summary process as soon as the law went into effect. The law was held invalid, as violating due process. This case had a somewhat stormy career, even though it was epoch-making in its effect. It is discussed and followed and denied by various courts; and, while not made a basis of the decision, it was referred to in the famous DredScott Decision, by Justice Taney. Fifteen years later, in the Supreme Court of the United States, the argument was again used in the Legal Tender Cases, 12 Wall. (U.S.) 457, 551, Justice Strong declaring that: "* * * due process * * * has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon, or to inhibit, laws that indirectly work harm and loss to individuals." This was rather a setback to the doctrine that due process was a limitation on the police power. Later, Justice Strong, in a dissenting opinion in the Sinking-Fund Cases, 99 U.S. 700 (25 L. Ed. 496), acceded to the doctrine that it was in some respects a limitation on the police power. It was referred to again in theSlaughter-House Cases, 16 Wall. (U.S.) 36 (21 L. Ed. 394), and again in the Granger cases, Munn v. Illinois, 94 U.S. 113 (24 L. Ed. 77); but the question is left shrouded in mystery in that case, although Justice Field, in his dissenting opinion, intimates quite clearly that the police power was limited by the due-process amendment. Later, Justice Field flatly declared that the Fourteenth Amendment was not designed to interfere with *Page 110 the power of a state sometimes termed "its police power." See, also, Barbier v. Connolly, 113 U.S. 27. In the case of Missouri Pac. R. Co. v. Humes, 115 U.S. 512 (29 L. Ed. 463), Justice Field expressed surprise at the increasing number of cases in which due process was being urged. In 1887, the case of Mugler v. Kansas, 123 U.S. 623 (31 L. Ed. 205), was decided by the United States Supreme Court. This case involved the Kansas prohibitory law. The court there admits the early dictum of Justice Field that due process was no limitation on the police power, but qualifies it with the statement that: "There are, of necessity, limits beyond which legislation cannot rightfully go. * * * If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. * * * Undoubtedly, the state, when providing, by legislation, for the protection of the public health, the public morals, or the public safety, is subject to the paramount authority of the Constitution of the United States, and may not violate rights secured or guaranteed by that instrument * * *." Although this doctrine has been frequently recognized by the Supreme Court of the United States, it refused to apply the same in many cases until 1894. In the case of Reagan v. Farmers' L. Tr. Co., 154 U.S. 362 (38 L. Ed. 1014), a police regulation was declared unconstitutional because it was inconsistent with due process of law as a substantive requirement, in that the particular statute was not a police regulation in fact. The doctrine is again announced in Gulf, C. S.F.R. Co. v. Ellis,165 U.S. 150 (41 L. Ed. 666), and in the case of Smyth v. Ames,169 U.S. 466 (42 L. Ed. 819), where a statute enacted under the police regulation was held void because it violated due process. These latter cases, however, were all railroad rate cases, and the doctrine was not applied generally by the United States Supreme Court in other fields. Later, in the case of Lochner v.New York, 198 U.S. 45 (49 L. Ed. 937), that court declared a statute regulating labor conditions void because it violated due process of *Page 111 law and was not proper exercise of the police power. The doctrine laid down by the Lochner case has been repeatedly recognized by that court. McLean v. State of Arkansas, 211 U.S. 539 (53 L. Ed. 315); Coppage v. State of Kansas, 236 U.S. 1 (59 L. Ed. 441);Reinman v. City of Little Rock, 237 U.S. 171 (59 L. Ed. 900);Buchanan v. Warley, 245 U.S. 60 (62 L. Ed. 149); Adams v. Tanner,244 U.S. 590 (61 L. Ed. 1336). In the Lochner case, supra, the state of New York passed a law providing, among other things, that employees in bakeries should not work more than 60 hours in one week, and the court, in discussing the constitutionality of this law, said: "Therefore, when the state, by its legislature, in the assumed exercise of its police powers, has passed an act which seriously limits the right to labor or the right of contract in regard to their means of livelihood between persons who are sui juris (both employer and employee), it becomes of great importance to determine which shall prevail, — the right of the individual to labor for such time as he may choose, or the right of the state to prevent the individual from laboring, or from entering into any contract to labor, beyond a certain time prescribed by state. * * * It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute concerning this general proposition. Otherwise the Fourteenth Amendment would have no efficacy, and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext, — become another and delusive name for the supreme sovereignty of the state, to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him *Page 112 appropriate or necessary for the support of himself and his family? Of course, the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor. This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the state, it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police power of the state? and that question must be answered by the court." In the dissenting opinion of Justice Harlan in the Lochner case, he quotes the following from Barbier v. Connolly, supra: "`But neither the [14th] amendment, — broad and comprehensive as it is, — nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people.'" It is upon this quotation that Judge Vermilion bases his ruling in the case of Fevold v. Board of Supervisors, supra. In McLean v. State of Arkansas, supra, the question under consideration was the constitutionality of a statute penalizing miners or operators where the employees were paid quantity rates, from contracting for wages based upon the basis of screened coal. The court there said: "It is, then, the established doctrine of this court that the liberty of contract is not universal, and is subject to restrictions passed by the legislative branch of the government in the exercise of its power to protect the safety, health, and welfare of the people. It is also true that the police power of the state is not unlimited, and is subject to judicial review, and when exerted in an arbitrary or oppressive manner, such laws may be annulled, as violative of rights protected by the Constitution. While the courts can set aside legislative enactments upon this ground, the principles upon which such interference is warranted are as well settled as is the right of judicial interference itself." In Reinman v. City of Little Rock, supra, the defendant passed an ordinance reciting that "the conducting of a liverystable *Page 113 business within certain parts of the city of Little Rock, Arkansas, is detrimental to the health, interest, and prosperity of the city;" and the conducting of such business was held unlawful. The attack made on the ordinance was that it violated rights guaranteed by the Fourteenth Amendment. The court held that the ordinance was well within the range of power of the state to legislate for the health and general welfare of the people, and continued: "* * * so long as the regulation in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular district, the district itself not appearing to have been arbitrarily selected, it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial of the equal protection of the laws, within the meaning of the Fourteenth Amendment." In Adams v. Tanner, supra, the state of Washington, by initiative and referendum, passed a law which prohibited employment agencies from charging persons any fee or remuneration, where such person secured employment at the hands of the employment agency. The court there said: "`The Fourteenth Amendment protects the citizen in his right to engage in any lawful business, but it does not prevent legislation intended to regulate useful occupations which, because of their nature or location, may prove injurious or offensive to the public. Neither does it prevent a municipality from prohibiting any business which is inherently vicious and harmful. But, between the useful business which may be regulated and the vicious business which can be prohibited lie many non-useful occupations, which may or may not be harmful to the public, according to local conditions, or the manner in which they are conducted.'" In Buchanan v. Warley, 245 U.S. 60 (62 L. Ed. 149), the defendant refused to specifically perform a contract for the sale of certain lots in the city of Louisville, on the ground that the purchaser, a colored man, expected to build a residence thereon, to be occupied by him, and that the city ordinances of the city of Louisville provided that it was unlawful for any colored person *Page 114 to "move into and occupy as a residence, * * * any house upon any block upon which a greater number of houses are occupied as residences * * * by white people than are occupied as residences * * * by colored people." The question was as to the constitutionality of this ordinance. The court there said: "We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution, preventing state interference with property rights except by due process of law. That being the case, the ordinance cannot stand." In Radice v. State of New York, 264 U.S. 292 (68 L. Ed. 690), the city of Buffalo passed an ordinance prohibiting women from working in restaurants between the hours of 10 at night and 6 in the morning. The court held that this was a proper exercise of police power, and was a proper police regulation, and that, therefore, the due-process rule did not invalidate the ordinance. In Terrace v. Thompson, 263 U.S. 197 (68 L. Ed. 255), the state of Washington passed a statute prohibiting aliens from owning or leasing land within the state. The opinion holds that in so doing the state was properly exercising its police power; hence there was no infringement of the due process of law. In Ohio Util. Co. v. Public Util. Com. of Ohio, 267 U.S. 359 (69 L. Ed. 656), it is held that limiting a public utility to a return of less than 5 per cent upon the value of its property unconstitutionally deprives it of its property without due process of law. In Missouri, K. T.R. Co. v. Oklahoma, 271 U.S. 303 (70 L. Ed. 957), the state corporation commission ordered the railroad company to construct a subway under certain of its tracks; and this action was attacked as unconstitutional, as violating the due-process rule. It was there held that this was within the police power of the state, and the court said: "The legitimate exertion of police power to that end does not violate the constitutional rights of railroad companies." In Weaver v. Palmer Bros. Co., 270 U.S. 402 (70 L. Ed. 654), it was held that a statute prohibiting the use of shoddy, *Page 115 new or old, even when sterilized, in the manufacture of comfortables for beds, is unreasonable and arbitrary, and deprives the manufacturer of due process of law. In Fiske v. Kansas, 274 U.S. 380 (71 L. Ed. 1108), it was said, as to the Criminal Syndicalism Act of that state: "The result is that the Syndicalism Act has been applied in this case to sustain the conviction of the defendant, without any charge or evidence that the organization in which he secured members advocated any crime, violence, or other unlawful acts or methods as a means of effecting industrial or political changes or revolution. Thus applied, the act is an arbitrary and unreasonable exercise of the police power of the state, unwarrantably infringing the liberty of the defendant, in violation of the due-process clause of the Fourteenth Amendment." In the case of Miller v. Schoene, 276 U.S. 272 (72 L. Ed. 568), it was held that an act of the state of Virginia authorizing the state entomologist to destroy all cedar trees within a radius of two miles from an apple orchard was a proper and reasonable exercise of the police power, and hence was not subject to challenge under the due-process law clause of the Fourteenth Amendment. In Sprout v. City of South Bend, 277 U.S. 163 (72 L. Ed. 833), the city of South Bend by ordinance prohibited (with exceptions not material here) the operation on its streets of any motor bus for hire unless licensed by the city. This license could only be procured when the applicant had taken out liability insurance, as therein provided. The court there said: "But it does not appear that the license fee here in question was imposed as an incident of such a scheme of municipal regulation; nor that the proceeds were applied to defraying the expenses of such regulation; nor that the amount collected under the ordinance was no more than was reasonably required for such a purpose. It follows that the exaction of the license fee cannot be sustained as a police measure." The conclusion we draw from this review of the decisions of the Supreme Court of the United States is that the due-process rule is not a limitation upon the right of the state to exercise its police power unless the attempted exercise of such power is *Page 116 arbitrary or unreasonable or an improper use of such power. This seems to be the necessary conclusion from these cases. Turning now to the instant case, we find nothing to sustain the contention that the exercise of the police power of this state, by reason of the enactments herein referred to, is arbitrary or unreasonable. Since we hold that the state of Iowa properly exercised its police power in enacting these statutes, it necessarily follows that the due-process clause of the Fourteenth Amendment of the Constitution of the United States does not restrict or limit the right of the state to exercise its police power as it did. In short, when the legislature, within proper bounds, exercises its police power, the due-process clause of the Fourteenth Amendment of the Constitution of the United States does not operate. One other question that deserves attention is the claim that the secretary of agriculture acted fraudulently, in that the status of the record, at the time he acted on it, was such that the required number of signed agreements was not 4. ANIMALS: before him, to warrant his ordering the county Bovine an accredited area. With this claim we cannot Tuberculosis agree. One of the questions which were before Act: him to decide, at the time, was whether or not enrollment there was a sufficient number of signers to of county: warrant his action. If the contention of the fraud. appellant is true, he erred in this respect, and nothing more. In other words, his decision was erroneous, and, so long as his decision is final, — subject only to review, if at all, by way of certiorari, — an error on his part in so deciding would not be reached by a collateral attack of this kind. No dispute is made in the case that prima facie there was a sufficient number of signed agreements before him to meet the requirements of the statute. This gave him jurisdiction, and the withdrawal of some of said signatures before final action would not take away such jurisdiction. Seibert v. Lovell, 92 Iowa 507. We find nothing in the record which warrants a reversal. —Affirmed. STEVENS, C.J., and EVANS, FAVILLE, De GRAFF, MORLING, KINDIG, and WAGNER, JJ., concur. *Page 117

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429773/

In 1943 defendant issued plaintiff its insurance policy providing for payment at $110 per month for such time, not exceeding twelve months, as he should be totally disabled by sickness. Alleging a heart attack suffered about July 6, 1944, had caused such disability for more than twelve months, plaintiff brought suit upon the policy. Trial to a jury resulted in judgment for plaintiff for $1,320.44, with interest, and this appeal. All the errors assigned are based upon the overruling of defendant's motion for directed verdict. No error *Page 667 is assigned to the instructions. Nor are they set out in the record. I. Defendant contends there was no substantial evidence plaintiff's sickness resulted in his continuous disability. Plaintiff was thirty-nine years of age. Aside from some heavy labor in a machine shop, farming had been his only occupation. He had helped in the operation of the farm upon which he had been reared and had attended college for one year. About 1927 he took a course in a business college but never did any work along that line except keeping records on the farm. He testified he was not trained nor qualified to do any work other than farming. For nine years he had grown produce and raised livestock and poultry on a small farm. Thereafter he operated a 280-acre dairy and stock farm near Cedar Falls for some years. He employed one farm laborer. He kept 179 acres in crop, about 300 hogs, 125 cattle of which 30 or 35 were milch cows, some sheep and poultry. This required regular manual labor by the two men. On account of the war he was unable to hire a farm hand in June 1944. He became sick. "I think I just overdone, and by the end of June * * * I couldn't hardly walk." From July 6, 1944, he was confined to his bed about two weeks and in the house about six weeks. He had a "mitral lesion in his heart, and a damaged myocardium, a damaged muscle of the heart." By September he was able to walk about the yard with the aid of two canes. Throughout the ensuing year his condition gradually improved but he was unable to work. His wife managed and operated the farm and supervised the farm laborers with some suggestions and assistance from him. A doctor reported he would never again be able to do farm work. Defendant concedes plaintiff was unable to do any appreciable amount of physical labor in connection with his farm work but contends there was no evidence that plaintiff was unable to enter into some other business. However, there was substantial evidence tending to show that, aside from other types of work involving heavy physical labor, farming was the only occupation for which plaintiff was fitted. [1] We conclude the evidence of plaintiff's total disability *Page 668 for the twelve-month period following July 6, 1944, was sufficient to require submission to the jury of that question. [2] In Hoover v. Mutual Tr. L. Ins. Co., 225 Iowa 1034, 1040, 282 N.W. 781, 784, the insured was unable to perform labor on his farm but was still able to direct the farming operations of his hired men. The practical effect of the disability in that case was substantially the same as in the case at bar. The decision points out that a jury could well find a person in such physical condition could not secure a position as a farm operator for others, and holds whether he was totally disabled was a jury question. It states: "The liberal rule is that the `total disability' contemplated by a life insurance policy of this character does not mean as its literal construction would require — a state of absolute helplessness; on the contrary, the disability contemplated means, under the liberal rule, inability to do all the substantial and material acts necessary to the prosecution of the business or occupation of the assured or some other business or occupation which he might enter in a customary and usual manner." The decision cites among others, Prusiner v. Massachusetts Bonding Ins. Co., 221 Iowa 572, 265 N.W. 919; Wood v. Federal L. Ins. Co., 224 Iowa 179, 277 N.W. 241; Kurth v. Continental L. Ins. Co., 211 Iowa 736, 234 N.W. 201. In turn the rule of the Hoover case, supra, was approved in Eller v. Preferred Acc. Ins. Co., 226 Iowa 474, 477, 284 N.W. 406, and Smith v. Penn Mut. L. Ins. Co., 233 Iowa 340, 7 N.W.2d 41. The definition of total disability recited in the policy is substantially the same as that enunciated in the Hoover case. We reaffirm the rule of that decision. II. Defendant asserts the evidence conclusively establishes plaintiff's failure to furnish proofs of loss and that the court should have sustained that ground of the motion for directed verdict. Defendant concedes it received written notice of plaintiff's disability within the sixty days provided by the policy. Hence failure to give notice is not here in question. August 31, 1944, defendant received proofs of disability executed by plaintiff on one of defendant's printed forms, with a report by his attending physician, who stated he was a *Page 669 chiropractor. Defendant did not make the payment called for by the proofs. In December 1944 defendant was again furnished formal proofs of loss showing continued total disability. Therein plaintiff applied for payment on account. December 29th defendant sent plaintiff its check for $123.33 infull payment of his claim, stating the policy did not cover partial loss of time, that the proofs of loss showed plaintiff was totally disabled from July 6th to the middle of August and that the disability rate was $100 per month (instead of the $110 provided by the policy). Plaintiff refused the check. January 3, 1945, defendant's agent wrote defendant plaintiff was still totally disabled and "there has been a big mistake someplace." January 10th defendant replied it could not "throw the matter open completely" and instructed the agent to offer payment for two additional months in full settlement. January 24th defendant wrote the agent that plaintiff would not be totally disabled if he was able to do some supervising, that the $123.33 check covered everything owed plaintiff, that he should contact and notify plaintiff the offer to pay for two additional months would be withdrawn in three weeks. February 20th defendant was furnished a report by R.S. Gerard, M.D., dated January 26th, which recited plaintiff had a rheumatic heart with a systolic murmur and that the electrocardiograph showed some myocardial damage. The agent wrote defendant that if it would send plaintiff the check for three months disability, "last fall", he would try to get plaintiff to take that in settlement up to January 26th, but suggested the case be reopened as of January 26th. March 1st defendant wrote the agent stating "a new claim is to be entered as of January 26." The letter stated "we haven't contended at all that he was able to do any appreciable amount of physical labor in connection with his farm work", however, plaintiff would not be totally disabled while doing lighter work, and defendant would not "throw the entire matter open" on the theory plaintiff was totally disabled. The agent was instructed to tell plaintiff to write defendant "fully about what he is doing to get a job." *Page 670 March 4th plaintiff wrote defendant expressing disappointment that he had not received his monthly disability checks and stating "I have been unable to work since July 6, 1944 and the doctor tells me I may never be able to work again"; that plaintiff would welcome any examination or investigation defendant would like to make and hoped he could start receiving checks soon. May 17th defendant wrote plaintiff enclosing preliminary claim forms for the period of disability beginning January 26, 1945. May 23d plaintiff wrote defendant he saw no sense in starting another claim in January but would do so if paid up till then. He asked defendant, "Frankly why have you questioned my disability claim?" Apparently this question was not answered. June 4th plaintiff again furnished defendant formal proofs of loss. July 12, 1945, the agent reported plaintiff had complained his letters were unanswered and was becoming impatient to get the matter settled. Late in July defendant advised plaintiff it would have a claim adjuster call upon him. A month later the agent reported plaintiff complained of defendant's failure to do this, that plaintiff was "very put out", insisted he was entitled to a full year's disability benefits and threatened to consult an attorney. September 7, 1945, defendant wrote plaintiff, stating no information had been submitted indicating he had been totally disabled for more than a short time and offering to pay plaintiff $30 in addition to $123.33, in final payment of his claim. [3] The policy provides for such proofs of sickness as defendant may reasonably require, including proofs after the termination of the disability period. The function of proofs of loss is to advise the insurer of the essential facts upon which its liability depends. Generally speaking, provisions for the furnishing of such proofs will be liberally construed in favor of the insured. 29 Am. Jur., Insurance, section 1120. The insurer may not arbitrarily demand any particular form of proofs and is not the sole judge of their sufficiency. Robertson v. Mutual L. Ins. Co., 232 Iowa 743, 748, 6 N.W.2d 153; Garden v. New England Mut. L. Ins. Co., 218 Iowa 1094, 1098, *Page 671 254 N.W. 287; Forman v. New York L. Ins. Co., 267 Mich. 426,255 N.W. 222; annotation in 109 A.L.R. 825. [4] In the case at bar proofs of loss made upon defendant's forms were furnished defendant in August and December 1944 and in June 1945. These were supplemented by the report of a doctor, and also by letters between plaintiff and defendant and negotiations between defendant's agent and plaintiff, both before and after the termination of the period for which disability was claimed. The evidence that proofs of loss were furnished was ample to warrant the overruling of the ground of the motion for directed verdict based upon their asserted insufficiency. [5-8] Moreover, the overruling of the motion was proper for another reason. An insurer's denial of liability on grounds other than failure to furnish proofs of loss operates as a waiver of the right to require proofs. Jones v. Automotive Ins. Co.,197 Iowa 513, 197 N.W. 448; Robertson v. Mutual L. Ins. Co., 232 Iowa 743, 751, 6 N.W.2d 153; Nicholas v. Iowa Merchants Mut. Ins. Co., 125 Iowa 262, 101 N.W. 115; Wood v. Federal L. Ins. Co.,224 Iowa 179, 191, 277 N.W. 241. Shuffling, tricky or evasive conduct of the insurer amounting neither to an absolute denial nor recognition of liability may also constitute a waiver. Teasdale v. City of New York Ins. Co., 163 Iowa 596, 601, 145 N.W. 284, Ann. Cas. 1916A, 591; Havirland v. Farmers Ins. Co., 204 Iowa 335, 213 N.W. 762; Griffith v. Anchor Fire Ins. Co., 143 Iowa 88, 120 N.W. 90. Likewise a waiver of proofs may result from an attempt to negotiate a settlement. Lee v. Farmers Mutual Hail Ins. Assn., 214 Iowa 932, 241 N.W. 403. Waiver may result also from insurer's failure to object to the sufficiency of the proofs. Green v. Des Moines Fire Ins. Co., 84 Iowa 135, 50 N.W. 558; Teasdale v. City of New York Ins. Co., supra; Nicholas v. Iowa Merchants Mut. Ins. Co., supra. [9] Except for the period from July 6 to August 15, 1944, defendant in effect denied liability. However, it made no objection to the sufficiency of the proofs. It took the position benefits were payable only for the period plaintiff was absolutely helpless and that plaintiff was able to do work requiring no physical exertion. It also attempted to scale down his claim *Page 672 and to negotiate settlements. Some of plaintiff's letters requesting attention and payment were unanswered. Many of defendant's statements in its letters were equivocal and evasive. A number of its letters contained blank proofs of loss and requested their execution and return although it appears defendant knew the only question or pretended question was "the meaning of total disability." We hold there was sufficient showing of waiver to have warranted the submission to the jury of that question. [10] III. Another ground of the motion for directed verdict was the asserted breach of a policy provision requiring the attendance of a physician. The provision is neither contained in nor referred to in the insuring clause which merely provides for payment during continuous total disability from sickness. However, a paragraph in another part of the policy states continuous disability shall mean the period "during which the Insured receives personal medical attendance at least once in every ten days by a licensed physician * * *." This so-called definition would give a meaning to disability different from that expressed in the insuring clause. Disability in and of itself certainly does not mean nor include regular attendance by a physician. We need not determine whether the quoted language results in an ambiguity to be resolved in favor of the assured by giving effect to the language of the insuring clause. Brush v. Washington Nat. Ins. Co., 230 Iowa 872, 299 N.W. 403, and citations. Cook v. Benefit League, 76 Minn. 382, 79 N.W. 320. In any event, it is merely an exception in the guise of a definition. Its breach would be a matter of defense, to be proved by defendant. Jones v. United States Mut. Acc. Assn., 92 Iowa 652, 657, 658, 61 N.W. 485; Sutherland v. Standard L. Acc. Ins. Co., 87 Iowa 505, 54 N.W. 453; Christy v. Great Northern L. Ins. Co., 238 Mo. App. 525, 181 S.W.2d 663. The breach asserted concerns plaintiff's having been attended by a chiropractor. It is defendant's theory that a chiropractor is not a "licensed physician" within the meaning of the policy. Whether this theory is sound need not be determined. Decisions based upon statutes of other states are not in agreement. Erdman v. Great Northern L. Ins. Co., 253 Mich. 579, *Page 673 235 N.W. 260; Williams v. Capital Life Health Ins. Co.,209 S.C. 512, 41 S.E.2d 208; Isaacson v. Wisconsin Cas. Assn.,187 Wis. 25, 203 N.W. 918. [11] However, the right to claim a forfeiture for breach of this condition may be waived. Decisions of this court hereinbefore cited enunciate the rules governing waiver and are here applicable. See, also, Sanborn v. Income Guaranty Co.,244 Mich. 99, 221 N.W. 162; Commercial Cas. Ins. Co. v. Campfield,243 Ill. App. 453; DeSoto Life Ins. Co. v. Barham, 210 Ark. 467,196 S.W.2d 592. In this case the evidence shows the various proofs of loss advised defendant plaintiff was attended by a chiropractor. Defendant made no objection to this but tendered payment for part of the disability covered thereby. Its refusal to pay was predicated solely upon its theory that total disability meant helplessness. It negotiated with plaintiff upon that theory. Not until the motion for directed verdict did defendant claim plaintiff's rights to disability payments were forfeited because he was attended by a chiropractor. We are satisfied the evidence of waiver by defendant of this provision was sufficient to warrant submission to the jury of that question. Furthermore, there was evidence that of various physicians contacted none would come to the farm to attend plaintiff. Eventually his wife brought the chiropractor. Later when plaintiff became able to travel he was taken to the office of various doctors. Some of these were too busy to see him. Others examined and prescribed for him. They agreed rest was the basic treatment for his heart ailment. [12] Provisions in policies of health insurance requiring the attendance of a physician are valid, if reasonable. 1 Appleman Insurance Law and Practice, section 655; 29 Am. Jur., Insurance, section 1174. However, most authorities hold such provisions should be liberally construed in favor of the insured and there is considerable authority that such provisions are only evidentiary in effect or that failure to comply therewith may be excused. World Ins. Co. v. Johnson, Tex. Civ. App., 193 S.W.2d 275; Davidson v. First American Ins. Co., 129 Neb. 184, 261 N.W. 144; Hodgson v. Mutual Benefit Health *Page 674 Acc. Assn., 153 Kan. 511, 112 P.2d 121; Brandt v. Mutual Benefit Health Acc. Assn., Tenn. App., 202 S.W.2d 827; Commercial Cas. Ins. Co. v. Campfield, 243 Ill. App. 453; Conaway v. Commonwealth Cas. Co., 225 Mo. App. 421, 37 S.W.2d 493; Rechtzigel v. National Cas. Co., 143 Minn. 302, 173 N.W. 670; 45 C.J.S. 1177, Insurance, section 980; 115 A.L.R. annotation 1062 et seq. [13] It is stated in the briefs that the trial court submitted to the jury the question whether the circumstances shown were sufficient to excuse a strict and literal compliance with the provision of the policy requiring the attendance of a licensed physician. Assuming, without deciding, that plaintiff did not strictly and literally comply with the provision in question, we hold the evidence was sufficient to make the question one of fact for the jury. [14] Plaintiff has moved to dismiss the appeal upon the theory it was taken from the order overruling the motion for directed verdict. We understand the appeal was from the judgment. Having thus appealed defendant could properly limit its assignment of errors to the order overruling its motion for directed verdict. The motion to dismiss is overruled. However, the record does not comply with Rule 340, Rules of Civil Procedure. It was not certified by the trial court. All the evidence is in question-and-answer form and appears to have been copied verbatim from the transcript. The excuse presented by counsel for appellant for failure to comply with the Rule is lack of time under the Rule. If such time was insufficient counsel should have applied for additional time. — Affirmed. All JUSTICES concur. *Page 675

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429774/

W.T. Shepherd and Elizabeth Booth entered into a marriage contract under date of June 9, 1924, by the terms of which it is provided: *Page 14 "1. Each of said parties shall retain all property that he or she now has or may hereafter acquire free from all claims of inheritance, distributive share, homestead, support or any other interest commonly given by law to parties becoming husband and wife, and on the death of either of said parties or on the dissolution of the marriage relation, all property, real or personal, then held by either party shall belong to such party, and shall descend according to law to his or her heirs, or be disposed of by will as fully as if no marriage relation had ever existed between the parties hereto, subject only to the provisions hereinafter set out. "2. The party of the first part hereby further agrees that in the event of the death of the party of the first part during the lifetime of the party of the second part the personal representative of the party of the first part shall pay to the party of the second part within eighteen months after the death of the party of the first part the sum of Fifteen Thousand Dollars ($15,000.00), and the party of the second part hereby agrees to accept said sum in full satisfaction of all her claims against the party of the first part or his estate on account of the marriage relation hereafter existing between the parties hereto." Then follows provision for payment in addition thereto of $150 per month for a period of one year after the death of the husband, or for such further time as may thereafter elapse before the payment of the $15,000 and this $150 monthly payment is referred to as "an adequate widow's allowance for the support of the party of the second part." It is further provided that the second party, the prospective bride, shall have the right to occupy the homestead property for life and to use the furniture in the home. It is then provided: "5. It is further hereby agreed by and between the parties hereto that during the continuance of the marriage relation each of said parties shall retain the full power and right of disposition and control of all the property now possessed or hereafter acquired by said party excepting only the house and lot now occupied by the party of the first part as his homestead * * * to the same extent as if no such marriage relation had ever existed," etc. This contract was signed by both parties and witnessed by two witnesses, but was not acknowledged and was never recorded. *Page 15 The parties were married and lived together as husband and wife until the death of W.T. Shepherd on October 20, 1931. On June 21, 1930, said W.T. Shepherd executed his last will and testament, and on the 13th day of August, 1930, he executed a codicil thereto, which instruments, following his death, were duly admitted to probate, and his son, Allan Ramsey Shepherd, referred to in the record as A.R. Shepherd and Allan R. Shepherd, was duly appointed executor of his estate. The estate, as shown by the files in the clerk's office, consisted of real estate of the estimated value of $38,500, including a homestead in the town of Harlan, Iowa, personal property of the estimated value of $51,718.80, indebtedness of $45,297.80, including a mortgage of $22,839.75 on the 240-acre farm, and special bequests of $2,400. In addition to this, decedent had life insurance of $20,510.48, $1,000 of which was payable to the widow, and the balance to the son. The record discloses that the executor has received or realized from the property of said estate in cash $13,604.25; that he has, paid out for funeral expenses and expenses of last sickness and costs of administration the sum of $5,681.67, and has paid from said funds on claims $6,884.93. In addition to this, he has filed personal claim for more than $12,500, which consists of an indebtedness of $3,875 owing to him by his father at the time of his death, $3,751.09, paid by the son upon claims of other creditors, assignments of which claims were taken by him, and $4,050 paid by him on the widow's monthly allowance under the antenuptial contract. A temporary administrator was appointed to pass on the son's claim, and his report, approving the claim in toto, was presented for approval in this proceeding. There is no issue on this report except the question of interest. The widow by answer objected to the allowance of interest upon the son's claim. On May 4, 1934, Elizabeth Booth Shepherd, as widow of said decedent, filed in this estate what is designated "Application and Declaration of Widow," setting forth the antenuptial contract, the fact of their marriage, and that they remained husband and wife up until the death of the decedent on the 20th day of October, 1931, and resided on certain property in the city of Harlan, Iowa, as their homestead; alleging and claiming that she is entitled to have the property so settled upon her and stipulated to be given her under said antenuptial contract first to be paid to her from said estate after payment of expenses of *Page 16 administration, funeral expenses, and expenses of last sickness; and praying that whatever claims, if any, are approved and established against the estate of W.T. Shepherd, deceased, be decreed junior and inferior to her rights and property coming to her under said antenuptial agreement or marriage settlement, and that she be decreed to have thereunder the amounts provided for in said antenuptial contract, together with the use of the home and the household goods and that the amounts so due unto her both in money and property be decreed to be a first lien upon the property of the estate of decedent, and that said executor be required to pay over to her the amounts so due her under said antenuptial agreement and under said will, and that the same be in lieu of her dower or distributive share of said estate. To this declaration A.R. Shepherd filed an answer admitting the execution of the antenuptial agreement and marriage of the parties, the occupation by the widow of the homestead property, the payment of the monthly installments provided for the widow, and admitting that she is entitled to receive the sum of $15,000 from the estate of the decedent in accordance with the antenuptial contract, and denying all other allegations. For further answer he alleges that the widow is entitled to receive as a creditor of the estate of said deceased the sum of $15,000 to be paid at such time as the executor may elect; that by the provisions of said agreement no particular time for payment is fixed, and that the executor within reasonable limits is entitled to designate when the principal sum shall be paid; that the monthly payments were intended to be in lieu of interest on the $15,000; and that said claim for said principal sum should be established as a general claim of equal priority with all other claims of a like class and of equal priority with the claim of said executor. The executor filed an appearance to the application and declaration of the widow, waived notice of hearing thereon, and consented to immediate trial and determination of the issues presented by said application and declaration and answer filed by A.R. Shepherd, and to immediate trial and hearing upon all issues presented by said application as between said Elizabeth B. Shepherd and A.R. Shepherd, executor, without further notice. Trial was had to the court on June 20, 1934, and, by stipulation of the parties, the issues to be determined and decided were agreed upon as follows: (1) Whether or not under the said contract *Page 17 and agreement Elizabeth B. Shepherd is entitled to the payment of her claim thereunder, prior to the payment of other claims in this estate as prayed therein; (2) whether or not the principal sum provided for in said agreement to be paid from the estate of W.T. Shepherd, deceased, draws interest, and at what rate and for what period of time; (3) whether or not the payments of a monthly stipend or allowance provided for in said contract are to be construed as payments in lieu of interest, and whether said Elizabeth Shepherd is required to elect to either take said monthly payments or interest on the principal sum therein provided for. It was further stipulated that the issues presented by the claims herein filed by A.R. Shepherd and the report of the temporary administrator, and the answer and objections to said claim and said report of temporary administrator, shall be as follows: Whether or not the claims set out and referred to in the report of temporary administrator which were paid by or purchased by A.R. Shepherd in his individual capacity draw interest and at the rate not to exceed 6 per cent from the time of the purchase or payment of said claim. It was further stipulated between the parties that as to the $15,000 principal amount, under the antenuptial contract herein referred to, the liability of the estate in said amount is conceded; that as to the principal amount of all claims filed by A.R. Shepherd the liability of the estate is conceded; that the report of the executor of his current accounts and receipts herein filed and prior reports are to be approved and confirmed; that, with reference to the claim of A.R. Shepherd, claims purchased by him or paid by him were just and lawful claims at the time of said purchase or payment; and that he paid to the holder of such claims the amounts as shown by the claims filed by said A.R. Shepherd. It was further stipulated that, at the time of the purchase or payment of said claims by A.R. Shepherd, he was executor of said estate, and is now such executor and had been long prior thereto, and that the court may take judicial notice of all files, reports, and claims and other matters of record filed in the estate of W.T. Shepherd, or so much thereof as shall be necessary for him to determine the case. The lower court found that the widow was entitled to payment of the sum of $15,000 and interest, prior to the payment of the third and fourth class claims filed in said estate and prior *Page 18 to the payment of legacies. He further found that the claims of A.R. Shepherd against the estate were just and correct and that the report of R.F. Swift, temporary administrator, appointed to pass upon said claims, should be approved, and that as to the sum of $4,050 advanced to the widow by A.R. Shepherd, as shown by the report of the temporary administrator, the claim made thereon was entitled to priority of payment over the amount of $15,000 and interest due the widow, the same being claim for advancements of money to said widow by the claimant, A.R. Shepherd, and that the other items due said Shepherd were junior and inferior to the $15,000 claim of the widow, and that the claimant, A.R. Shepherd, was entitled to interest on the items of his claim and additional claims at the rate of 6 per cent per annum as reported by the temporary administrator. The court further found that the report of the executor, A.R. Shepherd, should be approved, except so far as the same shows the payment of any third and fourth class claims and bequests as being prior and superior to the said amount of $15,000 and interest due the said widow, and that as to such payments said report should not be approved. All parties were given exceptions, and both parties have appealed from this order. The claimant, A.R. Shepherd, and A.R. Shepherd, executor, will be designated herein as appellant. [1] It will thus be seen from the issues stipulated that there are two separate and distinct matters presented to the court. We will first determine the issue between the widow on her application and declaration, based on her antenuptial contract, and A.R. Shepherd as claimant against said estate on his answer, the issue being as to whether or not the claim of the widow under the antenuptial contract is prior and superior and entitled to preference over the third and fourth class claims against said estate. In considering the questions involved under the terms of the antenuptial agreement, we have treated the action as in equity. The appellee, in her brief, states: "The case was tried without the intervention of a jury or the demand for one by either party, by the court as if in equity." And likewise, on the title page, she states that the action is "In Probate and Equity", and it appears to have been so tried and determined by the lower court on this theory, and no question was raised by appellant, *Page 19 nor does he now raise any such question, although the abstract of record contains no statement, either by the parties or the court, to the effect that it was to be so considered and tried as in equity. We have held that an antenuptial contract is in the same category as other contracts, and is construed by the same rules as other contracts, and, if fair on its face and free from fraud, it is as legal and enforceable as other contracts. Cummings v. Wood, 197 Iowa, 1356, 199 N.W. 369, 370; In re Estate of Uker, 154 Iowa, 428, 134 N.W. 1061. As said in Cummings v. Wood, supra: "Its primary purpose is to make a property settlement before marriage between the parties, whereby their rights respectively are determined independently of the marital statute, and which would otherwise obtain. In construing such a contract, the intention of the parties is the thing indispensable to be discovered, and in searching for the intent, an antenuptial contract, like a will, is to be taken by its four corners. * * * The intention of the parties must be determined from the language of the instrument itself, the circumstances and conditions of the contracting parties, the property existent at the time of entering into the contract, and other matters which would constitute the inducement or reason for the making of the antenuptial agreement. In re Estate of Hubinger v. Weismann, 150 Iowa, 307, 130 N.W. 155. * * * Agreements of this character are looked upon by the courts with favor, and are liberally interpreted to carry out the intentions of the parties thereto. * * * The very purpose in the execution of such a contract is to fix and determine the interest that the parties have respectively in the property of the other." [2] Antenuptial contracts of this character are valid, binding, and enforceable, and are based upon the consideration of marriage, which is looked upon by the courts as of the very highest known to the law. Veeder v. Veeder, 195 Iowa, 587, 192 N.W. 409, 29 A.L.R. 191; Fisher v. Koontz, 110 Iowa, 498, 80 N.W. 551; In re Estate of Mansfield, 185 Iowa, 339, 170 N.W. 415. There is very little dispute over the facts. In construing antenuptial contracts, the courts endeavor to arrive at the intention of the parties by taking the instrument by its four corners and endeavoring to ascertain just what the parties meant. We *Page 20 not only have the antenuptial contract in this case, but we have the will of W.T. Shepherd, both of which throw some light upon what was in the minds of the parties at the time the antenuptial contract was entered into. From the inventory filed in the estate, it will be noticed that there are listed some sixty-five or seventy thousand dollars worth of bonds and stocks, in addition to real estate valued at $30,000, subject to a mortgage indebtedness of $22,839.75, and a homestead property valued at about $6,000. At the time of the trial, these bonds and stocks were apparently of little value, but at the time the antenuptial contract was entered into and the will of W.T. Shepherd was executed, it is plainly evident that the parties assumed that upon the death of W.T. Shepherd there would be ample funds to pay all his indebtedness and to pay the amount agreed upon by the antenuptial contract and leave a considerable balance in his estate. This is plainly evident from the residuary clause in his will, whereby he provides that his executor and trustee shall pay from the income of said residuary estate the sum of $1,500 per year to his wife, for the remainder of her natural life. This was in addition to what he had provided for her under the antenuptial contract. We think it is fair to assume that neither of the parties to this contract had in mind, when they entered into the antenuptial agreement, that the debts against his estate were to be taken into consideration at all. Not having contemplated any shortage in funds, there was no effort in this antenuptial contract to create an express trust or provide for a lien upon any specific property. The parties evidently believed that this was unnecessary in an estate which was probably valued at that time at over $100,000. There is no claim in this record anywhere of bad faith or fraud of any kind upon the part of either of the parties to this contract or on the part of the son, A.R. Shepherd, the other claimant, who is likewise the executor and trustee of this estate. Under the antenuptial agreement, the husband was left free to dispose of his property as he saw fit. He could have executed deeds of conveyance, bills of sale, and sold and disposed of his entire estate without the consent of his wife or without her joining in the execution of the instruments, save and except as to the homestead tract. It is plain from the antenuptial contract and the will that W.T. Shepherd was very solicitous of the interests and welfare of his wife, and desired to provide for her in the *Page 21 event she outlived him. The court is thus confronted with a condition brought about by the shrinkage in values of property which was not contemplated by the parties to the contract. However, the court is powerless to make contracts for the parties, and we are compelled to take the contract as we find it. There is not very much dispute between the parties about the law. The entire dispute is over the application of the law to this particular contract. The contract, it will be observed, is purely executory. The relation between the estate and Mrs. Shepherd is that of debtor and creditor, evidenced by this executory contract. It is the contention of the appellee that the widow was entitled to a preference over the third and fourth class claims. It is difficult from the argument to understand exactly upon what this claim is based. There is no provision for such preference under our statute. That this is an enforceable contract against this estate is conceded and admitted by both parties. Marriage has always been considered as of the highest consideration, and courts have uniformly upheld such contracts when fairly entered into between the parties. Justice Story of the United States Supreme Court, in the case of Magniac et al. v. Thompson, 7 Pet. 348, 349, 395, 8 L. Ed. 709, at page 725, said: "`The consideration being valuable, if the contract, whetherexecuted or executory, is made in good faith, with one having no notice or knowledge of any fraud, covin or collusion to defraud creditors, performance may be enforced, or voluntarily made, and the contract carried into execution, at any time, either in the whole or in part, as is in the power of the party.' * * * `That a settlement made before marriage, makes the intended wife a purchaser for a valuable consideration; if agreed to be made, she is a creditor, and protected in the enjoyment of the thing settled, and entitled to the means of enforcing what isexecutory, if the transaction was bona fide and without notice or fraud.'" (Italics ours.) In the case of Collins v. Collins, 72 Iowa, 104, 33 N.W. 442, 443, in construing an antenuptial contract which contained the following language: "Third. `In addition to the amounts above mentioned, there is, at the death of said E.A. Collins, Sr., to be paid out of his estate to said Maria, $1,000, the same to become due and *Page 22 payable at the death of E.A. Collins, Sr.,'" this court said: "The $1,000, under the contract, was to be paid upon the death of Mr. Collins. It became and was a debt and charge against the estate, and we see no reason why the administrator should ask any directions of a court of equity in relation thereto." In the case of Otis v. Spencer, 102 Ill. 622, 40 Am. Rep. 617, an action to set aside a deed on behalf of the creditors, the deed having been made in accordance with an antenuptial settlement, the Illinois court said: "Marriage, from the earliest period of the common law, has ever been held to be a sufficient consideration to support a conveyance of land, and such conveyances have ever been regarded as entitled to as full protection as conveyances made on the most ample pecuniary considerations, — that the grantee is entitled to hold the property precisely as if she had paid in money the full value of the property." There being no provision in this contract either for the settlement of any specific property or providing for a lien upon any specific property, the widow is relegated to the position of a creditor of equal priority with other creditors of the same class. In the case, In re Warner's Estate, 158 Cal. 441, 111 P. 352, 353, we find this language: "The part of the agreement providing that the appellant was, upon Warner's death, to receive `from his estate, without any administration, the sum of $1,000' is not in our opinion to be interpreted as requiring Warner to provide this sum by will, or by other affirmative means. It made her a creditor, and authorized collection of her claim in the mode applicable to creditors of estates. The phrase `without any administration' is given full effect by reading it as allowing the appellant to receive the sum in advance of complete administration and distribution of the estate. As a creditor she could so receive it." In the case of Huguley v. Lanier, 86 Ga. 636, 12 S.E. 922, 22 Am. St. Rep. 487, the court construed the antenuptial contract as testamentary in character, and Chief Justice Bleckley, in discussing this question, said: "This was a total misconception. The instrument is not a conveyance, but a covenant to pay money. There was no attempt *Page 23 to establish between the parties the relation of donor and donee, or of testator and legatee, but the relation established by the covenant was that of debtor and creditor. In contemplation of marriage, the prospective husband, on behalf of himself, his heirs, executors, and administrators, covenanted under his hand and seal, for and in consideration of the marriage to be had and solemnized, that his executors, upon his death, should pay over to his prospective wife the sum of $4,000, this sum to be her full and complete distributive share in his estate." We think the court was in error in establishing the claim of the widow for the $15,000 provided for in the antenuptial contract as a preferred claim against said estate. [3] It is well to note that this antenuptial agreement was not acknowledged and not made a matter of record. Neither is there any evidence that any of the claimants had notice or knowledge of the existence of said contract prior to the death of decedent. They were therefore "existing creditors" within the meaning of the recording statute, section 10015 of the 1931 Code. [4] It is contended by the appellant that the provision for the monthly payments which is designated in the antenuptial contract as "an adequate widow's allowance" was intended to take the place of interest on the $15,000. There is no merit in this contention. Clearly, this money was due at the expiration of eighteen months from the date of the decedent's death by the terms of the antenuptial agreement, and she is entitled to interest from said date as found by the trial court. [5] The appellee concedes the validity of the appellant's claims. The lower court found that as to the amount of $4,050 advanced to the widow by A.R. Shepherd, and for which he had filed claims against this estate — that as to said amounts "his claim should be prior to the payment of the $15,000.00 and interest due the widow." In this we think the lower court was correct, as this was in the nature of an allowance to the widow for her support and was paid to her out of his own pocket as an expense of the estate, for the reason that there was not sufficient cash available belonging to the estate to pay the same, and the widow, having received the benefit thereof, should not be permitted to complain. As to all other claims of the third class, including the claims of appellant, they should be established in accordance with the *Page 24 report of the temporary administrator with interest thereon as shown by said report and to be of equal priority with the claim of the widow for $15,000, with interest thereon at 6 per cent per annum, payable annually, beginning 18 months after the death of said decedent. It is strenuously contended by the appellant that, inasmuch as there was a concession made in the stipulation between the parties to the effect "that the report of the executor of his current accounts and receipts herein filed and prior reports are to be approved and confirmed," the judgment of the trial court, as to claims already paid and payment of which is shown by this report and prior reports, is contrary to the facts as stipulated and against the express concessions of the parties. We think this concession cannot be construed as having reference to the priority of payment, but only in the approval of the reports as to the amounts of the receipts and the amounts of the payments. We think the third-class claims, whether paid or unpaid, should stand on an equal priority with the widow's claim. [6] It is also contended on behalf of the appellee that no interest should be allowed on the claim of the executor for money paid out of his own individual account, that there was money in the estate at certain times which could have been used, and therefore he was not warranted in paying money out of his own pocket, and at this time claiming interest thereon. This contention is borne out to a small extent. However, the evidence shows that ordinarily the payments advanced by the executor from his individual funds were made in the interest of the estate to avoid disposition of property on an unfavorable market, and we are therefore inclined to agree with the holding of the lower court in allowing interest on all claims allowed and established by the order and judgment of the lower court. The motion to strike abstract and to affirm, which was ordered submitted with the case, is hereby overruled, and cost of this appeal is to be taxed to appellee. The case is therefore reversed in part, affirmed in part, and remanded, with instructions to prepare an order in accordance with the findings of this court. Reversed in part, affirmed in part, and remanded, with instructions. All the Justices concur. *Page 25

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429777/

Appellant sued appellee for rent of land. Appellee admitted liability therefor and counterclaimed for various items. The only item here involved is: Agreed fee due appellee for securing Charles S. Brady to purchase farm from appellant, $500. It was stipulated that there was such oral agreement; that appellee procured the purchaser to whom the sale was made; that appellee was not by occupation a real-estate broker or salesman but was a farmer and a dealer in livestock; that the procuring of said purchaser by appellee was an isolated transaction; and that appellee was not licensed as a real-estate broker or salesman under chapter 91.2, Code of Iowa, 1939. Trial to the court resulted in judgment for appellee which included said $500 item. Code section 1905.20, in said chapter, provides: "It shall be unlawful for any person * * * to act as a real estate broker or real estate salesman, or to advertise or assume to act as such real estate broker or real estate salesman, without a license issued by the Iowa real estate commissioner." Code section 1905.22 defines a salesman as one employed by a real-estate broker to perform some or all of the various acts therein listed. Appellee was not employed by a broker. Therefore, he was not a salesman as above defined. Section 1905.23 provides the chapter shall not apply to certain persons. It makes no reference to isolated transactions. Section 1905.41 provides no person engaged in the business or acting in the capacity of a real-estate broker may maintain an action for compensation for services performed as such without alleging and proving he was licensed at the time. Section 1905.56 provides a person convicted of violating a provision of said chapter shall be fined not more than $500, or imprisoned not more than six months, or both. Chapter 91.2 of the Code is a regulatory law as distinguished from a statute for revenue only. Appellee concedes that had he been acting as a broker as a regular business his failure to have procured a license thereunder would have barred *Page 1178 his right to recover. Richardson v. Brix, 94 Iowa 626,63 N.W. 325; Baehr-Shive Realty Co. v. Stoner-McCray System, 221 Iowa 1186,268 N.W. 53. See, also, Lynch v. Kathmann, 180 Iowa 607,163 N.W. 408; Rader v. Elliott, 181 Iowa 156, 163 N.W. 406, which concern the practice of a profession rather than a business or vocation. The question is whether a person engaged in other business, and not holding himself out as a real-estate broker, who acts as such on a single occasion but not as a regular business, is precluded from recovering compensation by reason of his failure to have procured a broker's license. In Blakeley v. Miller, 232 Iowa 980,7 N.W.2d 11, this court considered some of the penal provisions of the chapter. However, we have not passed upon the precise question now before us. In 8 Am. Jur. 1077, section 155, and 12 C.J.S. 155, 156, section 67, it is stated, upon authorities there cited, that most brokers' statutes do not apply to a single transaction or isolated case of this character. (A few statutes, unlike those of this state are, in direct words or in substance, made applicable to single transactions.) Annotations 30 A.L.R. 858, 42 A.L.R. 1230, and 118 A.L.R. 657, cite many decisions upon the proposition. Among such cases are Kolb v. Burkhardt, 148 Md. 539,129 A. 670; Wensley v. Godby, 101 N.J. Law 325, 128 A. 590; Morris v. O'Neill, 239 Mich. 663, 215 N.W. 8; Woods v. Heron,229 Pa. 625, 78 A. 1128. Some of the decisions holding such statutes inapplicable to a single or isolated transaction by one engaged in a different business and not holding himself out as a real-estate broker reason that the statutes are designed to regulate a vocation or partial vocation and one transaction by such person does not usually constitute engaging in such vocation or business. That reason appears sound. We hold a broker's license was not a prerequisite to a recovery by appellee, under the circumstances of this case. — Affirmed. All JUSTICES concur. *Page 1179

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429775/

This is an action at law upon a $2,500 promissory note which was made payable to one Roy Haney and the plaintiff, Emma J. Jones, and was signed by J.F. Wilson and Minnie Florence Wilson. The note in question was secured by a mortgage upon real estate. This action was upon the note alone. No defense was made by the defendant J.F. Wilson, but his codefendant Minnie Florence Wilson, the appellee herein, made separate answer alleging that the note was made without consideration as to her, and that the she simply signed the said note and the mortgage securing the same for the sole and only purpose of releasing her inchoate right of dower in the real estate described in the mortgage. A jury was waived, and the issues involved were tried to the court, resulting in a finding and judgment sustaining the defense of Minnie Florence Wilson, the appellee, and dismissing the action as to her. The plaintiff, Emma J. Jones, appeals. The record discloses the following facts: J.F. Wilson and Minnie Florence Wilson are, and were at all the times in which the transactions here involved took place, husband and wife. In 1920, the defendant J.F. Wilson purchased 140 acres of real estate from a partnership composed of Roy Haney and George W. Jones. At the time of this original purchase a contract was entered into between said J.F. Wilson and said partnership. The wife, Minnie Florence Wilson, was not a party thereto and did not sign the same. The contract provided that the defendant J.F. Wilson should pay a consideration amounting to $16,000 for the land involved; that he paid $5,500 in cash, assumed a first mortgage for $6,800, and executed and delivered to the sellers a second mortgage for $3,700. *Page 326 This second mortgage was signed by the appellee Minnie Florence Wilson, but she testifies that she made inquiry of Mr. Haney, one of the partners, as to what she was signing and was advised by him that she was merely releasing her dower interest in the land. In 1925, the first mortgage having been reduced by payments to $4,500, a new mortgage was secured for that amount, and in order to complete this transaction, the second mortgage payable to Haney Jones was released and a new second mortgage made in its stead of $4,000. This second mortgage was signed by the appellee Minnie Florence Wilson, and she testified that at the time of so signing she was told by Mr. Haney that it was merely for the purpose of releasing her dower interest. In March, 1930, the defendant J.F. Wilson paid the sum of $1,500 on the second mortgage, and a new note and new mortgage were executed in the sum of $2,500; this latter being the note now in suit. The appellee testifies that at the time of the execution of this new mortgage and note she again asked Mr. Haney if she were signing for any other purpose than to release her dower, and he answered, "No." Prior to the execution of this last note and mortgage, George W. Jones, one of the members of the partnership mortgagee, departed this life, and his widow, Emma J. Jones, the appellant herein, succeeded to the ownership of her husband's interest in the obligations here involved, and the new note and mortgage were taken in the names of Roy Haney and Emma J. Jones. Mr. Haney had exclusive charge, however, of the transaction of taking the new note and mortgage, and in doing so acted as the agent of Emma J. Jones. Later he transferred his interest in the $2,500 note to Emma J. Jones, the appellant herein. He testifies that he talked with Mr. J.F. Wilson about the execution of the new note and mortgage, and that he retained the note and mortgage in his possession up to the time of the trial. The record shows without dispute that Minnie Florence Wilson, the appellee, received no consideration whatever for the signing of the $2,500 note, and she testified that she signed the same together with the mortgage securing it for the sole and only purpose of releasing her dower in the real estate described in the mortgage. Mrs. Wilson's testimony in reference to her conversation with Haney at the time of signing the note and mortgage in question is contradicted by Mr. Haney. However, the facts and history of the transaction fairly presented a question of fact to be determined by the trial court. Such question, as we have indicated, was determined *Page 327 adversely to the contention of the appellant by the court, and under our repeated holdings the findings of fact by the court in a law action has the same force and effect as a verdict of the jury. The trial court found that the appellee Minnie Florence Wilson received no consideration for the signing of the note and mortgage, and signed only to release her contingent right of dower, and such finding, if based upon competent evidence, precludes a consideration and determination of such questions by this court. The questions raised by the appellant have been repeatedly before this court, and we have consistently held that where the original parties to the instruments are involved it is permissible to show by parol evidence that such instruments were executed by one of the parties without consideration, and, as in this case, for the purpose of releasing dower interests only. In the case of Cooley v. Will, 212 Iowa 701, 237 N.W. 315, we had a case involving facts almost parallel with those in the instant case. In that case the original transaction was with the husband only. Several mortgages including notes and interest coupons were signed both by the husband and the wife, and the action sought to hold the wife liable upon the obligations. In that case the wife did not participate in any way in the transaction except by signing the notes and mortgages. There was more conflict in the testimony in reference to the signing of the notes and mortgages by the wife than we find in the case at bar. In that case the holder of the notes and mortgages testified directly that she at all times insisted that the wife of the principal maker sign the papers. However, in the original contract, as in the case at bar, nothing was said and no requirement made that the wife should sign the purchase-money notes and mortgages. In that case, as in the present one, the husband alone had requested his wife to join in the execution of the papers. No consideration passed to the wife. This court held that the wife could not be held liable for the payment of the notes and mortgages. Many of our cases are reviewed in the opinion in the Cooley-Will case. In the case of Hinman v. Treinen, 196 Iowa 701, 195 N.W. 345, the case was decided upon a question of pleading only. In Le Fleur v. Caldwell, 196 Iowa 727, 195 N.W. 234, a defense of want of consideration was sustained upon the basis that the transaction was wholly with the husband, and that the wife received no independent consideration for her signature. Insell v. McDaniels,201 Iowa 533, 207 N.W. 533, and Gorman v. Sampica, *Page 328 202 Iowa 802, 211 N.W. 429, involved transactions similar to the case under consideration, and our decision in each of these cases was based upon the holding of our prior cases. The same rule is fully recognized in American Com. Sav. Bank v. Kramer, 206 Iowa 49, 219 N.W. 931; Millard v. Curtis, 208 Iowa 682, 223 N.W. 489; First National Bank v. Mether, 217 Iowa 695, 251 N.W. 505, 507; and Andrew v. Ingvoldstad, 218 Iowa 8, 254 N.W. 334. The appellant especially relies upon the Kramer case, supra, and First National Bank v. Mether, supra. Neither of these cases is inconsistent with the rule announced in Cooley v. Will, and the other cases cited. In the Kramer case we cited the cases above referred to as announcing the rule, and concluded: "None of the foregoing cases are in point. In none of those cases was the principal maker of the obligation under any promise or duty to procure the wife's signature. Her signature was attached by her to a contract already complete. It was not done pursuant to any previous promise or condition. The payee parted with nothing on the faith thereof, nor did the principal maker receive anything. Such is not the case before us." In that case the principal maker sought an agreement for an extension of the time of payment of the obligation involved, and an agreement was entered into that the time should be extended on condition that both the husband and wife sign an agreement to pay the amounts due. Such an agreement was drawn up and signed by the husband and wife, and for this consideration an extension of time of payment was effected. In that case the personal liability of the wife was predicated upon this specific agreement. The extension of time of payment was granted on the specific and undisputed condition that the wife would sign the contract. The same state of facts were shown in the Mether case, and an extension of the time of payment of the obligation was granted upon the express agreement that the principal maker would secure the signature of his wife to the obligations. In the Mether case, Mr. Justice Kindig, who wrote the opinion, after citing and referring to our prior cases upon the question involved, uses this language: "In each of these cases thus cited by the appellee there was no consideration for the wife's signature on the note made by her husband. That is true because the original transaction was entirely with the husband, and the wife was not required, by previous *Page 329 contracts or by the demands of the payee to sign the instrument. Her signature was merely voluntary, and she affixed it to the instrument through inadvertence." In the Ingvoldstad case, the testimony showed that the wife knew the purpose of the execution of the papers, and that it was necessary for her to sign the note in order for her husband to obtain the loan, and nothing in that case is inconsistent in any way with the rule announced in the case of Cooley v. Will, and prior decisions of this court. The facts in the case at bar bring it squarely within the rule announced in the Cooley-Will case, and prior decisions of this court. Mrs. Wilson was not a party to the transaction. She neither signed the original contract for the purchase of the land in question, nor did she in any way become a party thereto. There was no demand or agreement that she become obligated upon the promissory note in suit. The execution of the note and mortgage in suit was but a continuance of the matters involved in the original transaction. It was no new transaction. We are constrained to hold that the finding and judgment of the trial court is sustained by the record and by our former pronouncements. An affirmance necessarily follows. — Affirmed. MITCHELL, C.J., and KINDIG, KINTZINGER, DONEGAN, ALBERT, STEVENS, and POWERS, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4302403/

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-17-00149-CR Jimmy Wayne COOK, Appellant v. The STATE of Texas, Appellee From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2016CR4105 Honorable Sid L. Harle, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice Delivered and Filed: August 8, 2018 AFFIRMED AS MODIFIED A jury convicted Jimmy Cook of two counts of solicitation to commit capital murder. Upon the jury’s recommendation, the trial court sentenced Cook to two concurrent terms of twenty-seven years’ imprisonment. Cook raises six issues on appeal in which he challenges the sufficiency of the evidence supporting his conviction and the jury’s rejection of his renunciation affirmative defense; contends the trial court erred by denying his request for a mistrial based on the State’s closing argument; and argues he was denied due process of law. Cook additionally points out that the judgments of conviction reference the incorrect penal code sections and requests 04-17-00149-CR that we reform the judgments of conviction accordingly. We modify the judgments of conviction and affirm the judgment of the trial court as modified. BACKGROUND During a late-night delivery on December 30, 2015, delivery truck driver Cook, complained to receiving dock worker Christopher Cowan about his ex-girlfriend, later identified as Jessica. Cowan, who did not know Cook or Jessica, characterized the things Cook said about Jessica as “horrible.” According to Cowan, Cook seemed particularly angry that Jessica was in a new relationship. At some point in the conversation, Cook informed Cowan that he wanted Jessica “taken out.” Eventually, Cook asked if Cowan would “take [Jessica] out.” Cowan feigned interest, and Cook offered payment, but stated he couldn’t afford to pay a lot. The pair did not agree upon a payment amount at that time. Cook provided Cowan with his phone number and emphasized to Cowan that “it couldn’t come back on him.” Cowan immediately went to the police station to report the incident. Working with San Antonio Police Department (SAPD) Detective Lawrence Saiz, on January 4, 2016, Cowan sent Cook a text message, asking if Cook still wanted “someone to take care of [his] ex-[g]irlfriend.” Cook answered “yes,” and Cowan replied he needed information and that the cost would be $1,000. Cook responded “ok” and followed up by telling Cowan “[i]t’s not her you’ll be doing.” Cook went on to provide Cowan with the name and description of Jessica’s new boyfriend, Richard; the town in which the couple lived; a description of Jessica’s vehicle; the location of Jessica’s employment; and a location where the couple could usually be found on Friday evenings at 7:00. Cook emphasized, “Got to make sure whoever does it don’t know about me and can’t remember my name or anything about me.” On January 5, 2016, Cowan assured Cook he had not been speaking with anyone else and verified Cook still “want[ed] it done.” Cook responded he did, but that he “want[ed] it down low.” -2- 04-17-00149-CR On January 6, 2016, Cowan attempted to arrange an in-person meeting with Cook, but Cook indicated his truck was broken down and he could not meet. On January 7, 2016, Cowan again attempted to arrange a meeting, and Cook responded, “I’ve got other things going try any way.” On January 8, 2016, Cowan asked Cook whether he “still want[ed] it done,” and Cook responded “No got other things going right now.” Following further investigation that included interviews with Jessica and Richard, Detective Saiz learned Jessica had contacted authorities in Pennsylvania where she lived regarding Cook’s continued threatening behavior against her. Detective Saiz received the emails, text messages, and voice mail messages attributed to Cook from Pennsylvania State Trooper Patrick McGuerin. Detective Saiz obtained an arrest warrant for Cook on February 10, 2018, and members of the U.S. Marshal’s task force arrested Cook in South Carolina on February 18, 2018. SUFFICIENCY OF THE EVIDENCE In his first issue, Cook challenges the sufficiency of the evidence supporting his conviction for solicitation to commit capital murder. Cook specifically argues the evidence is insufficient because the only evidence connecting him to the offense was provided by the person he solicited. Standard of Review In reviewing the sufficiency of the evidence to support a criminal conviction, “we view the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017) (internal citation omitted). We “defer ‘to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Each fact need not point directly and -3- 04-17-00149-CR independently to the [appellant’s] guilt …, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Applicable Law “A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.” See TEX. PENAL CODE ANN. § 15.03(a) (West 2011). The capital felony involved in the underlying case was capital murder. The type of capital murder at issue was that encompassed in section 19.03(a)(3) of the Penal Code, that is, the solicitation to commit murder by employing another to commit it for remuneration or the promise of remuneration. See id. § 19.03(a)(3) (West Supp. 2017). To the extent the person solicited to commit the crime testifies at trial, the Penal Code specifically requires that his testimony be corroborated. The Penal Code states that a “person may not be convicted ... on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation.” See id. § 15.03(b) (West 2011). In conducting a sufficiency review of corroborating evidence, we eliminate from consideration the accomplice testimony and then determine whether there is other incriminating evidence tending to connect the defendant with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). Therefore, Cowan’s testimony will be eliminated from our analysis when evaluating corroborating testimony. The non-accomplice evidence does not have to directly link appellant to the crime, nor does it alone have to establish appellant's guilt beyond a reasonable doubt; rather, it merely must -4- 04-17-00149-CR tend to connect appellant to the offense. Id. Such corroboration may come from insignificant incriminating circumstances. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999). Further, although evidence of motive is insufficient in and of itself to corroborate an accomplice’s testimony, it may be considered with other evidence tending to connect the accused with the crime. Reed v. State, 744 S.W.2d 112, 127 (Tex. Crim. App. 1988). Discussion The State presented Exhibit No. 11, which includes the SMS (text) message conversations between Cook and Cowan that took place between January 4, 2016 and January 8, 2016. In their text message conversations, Cook provided Cowan with specific details about Jessica and Richard, including where they lived, where Jessica worked, the couple’s regular Friday evening schedule, and what vehicle Jessica drove. Additionally, when Cowan stated a payment price of $1,000, Cook responded “Ok.” Further, in the text messages, Cook anticipated another carrying out the murders and asserted to Cowan that “it” could not be attributed to Cook. Later, when Cowan asked Cook if he still wanted to go forward, Cook responded yes. During Jessica’s testimony, the State presented several text and email messages that Jessica received from Cook in which Cook told Jessica she could “[c]ount [her]self as a murder,” that she was “going to be missing” and “going to get [hers] in the end,” would not see another holiday, and “the best thing for [her] is a bullet in [her] head.” Cook also accused Jessica of cheating. Additionally, the State played voice mail messages attributed to Cook in which Cook referred to Richard as Pee Wee Herman, which corresponded to the description of Richard that Cook gave Cowan. In the voice mails, Cook also threatens Jessica that her life is going to be short, she should watch over her shoulder, he was watching and going to get her, and that her time is coming. Viewing all the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found Cook requested, commanded, or attempted to induce Cowan to -5- 04-17-00149-CR murder Jessica and Richard. Based on the non-accomplice testimony and evidence, Cowan’s testimony about being solicited to kill Jessica and Richard was “strongly” corroborated as required by Penal Code section 15.03(b). Therefore, the evidence is sufficient to find Cook guilty of solicitation of capital murder. We overrule Cook’s first issue on appeal. RENUNCIATION In issue two, Cook contends the trial court erred by overruling his motion for directed verdict because the evidence established renunciation. Cook reasons the evidence is factually insufficient to support the jury’s rejection of his renunciation defense, and therefore, the trial court should have granted his motion for directed verdict. In issue three, Cook contends the evidence is “factually insufficient to support the jury’s rejection of his renunciation mitigation issue at punishment.” Standard of Review “A motion for instructed verdict is essentially a trial level challenge to the sufficiency of the evidence.” Smith v. State, 499 S.W.3d 1, 6 (Tex. Crim. App. 2016). We may review a jury’s rejection of an affirmative defense for factual sufficiency. Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015). In a factual sufficiency review, we examine the evidence in a neutral light and overturn the factfinder’s decision only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased. Id. Renunciation Defense It is an affirmative defense to prosecution for criminal solicitation if “under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor countermanded his solicitation ... before commission of the object offense and took further affirmative action that prevented the commission of the object offense.” TEX. PENAL CODE ANN. -6- 04-17-00149-CR § 15.04(b) (West 2011). Thus, under the statute, a defendant must countermand the solicitation and the renunciation must be voluntary. Id. Evidence that a defendant renounced his criminal objective by countermanding his solicitation before the criminal offense was committed and that he made a substantial effort to prevent commission of the object offense is admissible as mitigation evidence at the punishment phase of trial if he has been found guilty of criminal solicitation. See TEX. PENAL CODE ANN. § 15.04(d). If the factfinder finds the defendant renounced his criminal objective, the punishment shall be one grade lower than that provided for the offense committed. Id. Renunciation of an offense under section 15.04(d) is a punishment-phase affirmative defense. Id. The defendant bears the burden of proof by a preponderance of the evidence on the issue of an affirmative defense. See id. § 2.04(d); Madrid v. State, 595 S.W.2d 106, 110-11 (Tex. Crim. App. [Panel Op.] 1979). The penal code does not define “countermand.” Where a statutory term is not defined by the Legislature, we give that term its ordinary meaning. Morrow v. State, 862 S.W.2d 612, 614 (Tex. Crim. App. 1993). “In consulting dictionaries for the meaning of a particular word, we look to the lexicographical alternatives that the Legislature most likely had in mind, taking into account the context provided by the phrase, subsection of the statute, and overall statutory scheme in which the word appears.” Cornet v. State, 359 S.W.3d 217, 222 (Tex. Crim. App. 2012). The term “countermand” is defined by Webster’s Dictionary to mean “to revoke (a former command)” or to “cancel or rescind (an order) by giving a contrary order”; “to recall or order back by a superseding contrary order”; or “to stop or prohibit by revoking an order or issuing a contrary order.” WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 519 (2010). Thus, to have countermanded his solicitation of Cowan, appellant must have revoked, rescinded, or recalled his earlier order to kill Jessica and Richard. -7- 04-17-00149-CR Discussion In his brief, Cook presents issues two and three together. Cook contends he “cancelled and rescinded his earlier order to kill [Jessica] by responding that the new target would be her “new man.” Cook further contends he completely renounced the solicitation by: “waffl[ing]” and “flak[ing]” out by responding that his truck was broken down when Cowan tried to arrange an in- person meeting; not responding to Cowan’s text message that the cost would “250 up front;” and answering Cowan’s inquiry whether Cook “still want[ed] it done” with “no I have other things going right now” constituted a complete renunciation. As noted above, the Penal Code requires a “manifest[ation] of a voluntary and complete renunciation of his criminal objective.” See TEX. PENAL CODE ANN. § 15.04(b). Section 15.04 further provides that “renunciation is not voluntary if it is motivated in whole or in part … by a decision … to transfer the criminal act to another … victim.” Id. § 15.04(c)(2). A reasonable juror viewing the evidence in this case, specifically the text messages and Cowan’s testimony, could infer that Cook did not countermand his solicitation or make a substantial effort to prevent the commission of the object offense. Cook’s message to Cowan that his new target was Jessica’s “new man” was not an order telling Cowan not to commit murder — rather it showed Cook transferred the solicitation to commit murder from Jessica to Richard, which according to the Penal Code is not a voluntary renunciation. See id. Further, Cook’s text messages to Cowan stating he could not meet because his truck was broken down and he had other things going on, which were followed by the statement “try anyway” did not contradict or revoke Cook’s order to kill Jessica and Richard. Additionally, Cook’s response to Cowan’s text message regarding a down payment of $250 was silence, which is not a contrary order that revoked or recalled the order to murder Jessica and Richard. Although Cook responded “no” and he had “other things going right now” to Cowan’s question of whether Cook “still want[ed] it done,” the -8- 04-17-00149-CR statement did not give an order that was contrary to Cook’s earlier order to kill Jessica and Richard. Finally, the record does not contain any indication that Cook took any steps to prevent the murder of Jessica or Richard. Therefore, reasonable jurors could have determined the statements to which Cook points on appeal did not prove voluntary and complete renunciation by a preponderance of the evidence. Even viewing the evidence in a neutral light, we conclude the evidence supports the jury’s determination that Cook did not renounce his criminal objective nor take affirmative steps to prevent the commission of the offense. The jury’s rejection of Cook’s renunciation affirmative defense is not so against the great weight and preponderance of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased. Further, based upon this conclusion, we cannot say the trial court erred by overruling Cook’s motion for directed verdict. Issues two and three are overruled. DENIAL OF MISTRIAL In issue four, Cook complains the trial court erred by denying his requests for a mistrial during and following the State’s closing argument. Preservation and Scope of Review “To preserve error in prosecutorial argument, a defendant must pursue to an adverse ruling his objections to jury argument.” Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). The usual sequence to be followed in preserving error in this context is “objection, instruction to disregard, and motion for mistrial.” Id. The Court of Criminal Appeals, however, has stated: this sequence is not essential to preserve complaints for appellate review. The essential requirement is a timely, specific request that the trial court refuses.... Similarly, the request for an instruction that the jury disregard an objectionable occurrence is essential only when the such an [sic] instruction could have had the desired effect, which is to enable the continuation of the trial by a [sic] impartial jury. The party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been “cured” by such an -9- 04-17-00149-CR instruction. But if an instruction could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal. Id. (quoting Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2004)). When a party moves for a mistrial without requesting an instruction to disregard, “the scope of appellate review is limited to the question whether the trial court erred in not taking the most serious action of ending the trial; in other words, an event that could have been ... cured by instruction to the jury will not lead an appellate court to reverse a judgment on an appeal by the party who did not request [this] lesser remed[y] in the trial court.” Young, 137 S.W.3d at 70. Standard of Review and Applicable Law We review a trial court’s denial of a mistrial for abuse of discretion. Archie, 221 S.W.3d at 699. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id. Because a mistrial is a drastic remedy, it is only required when an “error is so prejudicial that expenditure of further time and expense would be wasteful and futile.” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). In determining whether a trial court abused its discretion by denying a motion for mistrial in this context, we balance “three factors: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).” Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). The four proper areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to opposing counsel’s argument; and (4) pleas for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). A prosecutor is - 10 - 04-17-00149-CR allowed wide latitude in drawing inferences from the evidence if the inferences drawn are reasonable and offered in good faith. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). Discussion Cook moved for a mistrial twice during the State’s closing argument. The first request for mistrial occurred after the jury heard a recording of the voice mail messages left for Jessica by Cook. [The State]: Your time is coming. I would make your life as happy as possible because it’s gonna be short. That’s Jimmy Wayne Cook’s intent. It was his intent back in November. It was his intent on December 30th, January 4th, and I can guarantee you it’s his intent today. Okay? The minute he gets the chance – [Defense]: Objection, Your Honor, that’s facts not in evidence. The Court: All right, sustained. [The State]: The minute he gets the chance – [Defense]: Move for a mistrial, Your Honor. The Court: Denied. Cook did not request the trial court instruct the jury to disregard the comment. Our review of the record indicates the prosecutor completed this complained-of argument by stating there was no indication Cook ever renounced his plan to have Jessica and Richard murdered. Thus, the prosecutor’s argument was a reasonable deduction from the evidence, as well as a response to Cook’s renunciation defense. Therefore, the statement fell within the allowable areas of argument. Even if the prosecutor’s argument was improper, the statement was not so extreme that, had Cook requested the trial court instruct the jury to disregard the statement, the trial court’s instruction would have been ineffective. See Young, 137 S.W.3d at 70. The trial court did not err by “not taking the most serious action of ending the trial” when it denied Cook’s first request for mistrial. - 11 - 04-17-00149-CR The second request for mistrial occurred following the State’s final argument. [Defense]: Your Honor, I object to the entire closing statement, the cumulative effect of all of these egregious misstatements of the fact, the egregious misstatement of the law, poisoning the mind of the jury and I ask for a limiting instruction and a mistrial. The Court: All right, ladies and gentlemen, I’m going to deny the motion for mistrial. Please rely on the Charge of the Court for the law, that will be the limiting instruction. If you have questions about it, you’re entitled to send it out. In his brief, Cook argues the trial court’s limiting instruction was insufficient to protect his rights. Upon our review of the State’s entire closing argument, we cannot conclude that there was a willful and calculated effort to deprive Cook of a fair and impartial trial. Further, viewing the record as a whole, we cannot conclude that Cook was prejudiced by the prosecutor’s complained-of arguments. Therefore, we conclude the trial court did not err by denying Cook’s second motion for mistrial. Issue four is overruled. Prosecutorial Misconduct In his fifth issue, Cook contends the State engaged in prosecutorial misconduct during its closing argument. Cook argues he “was denied Due Process and the right to present a defense when the prosecutor in this case engaged in deliberate misconduct by egregiously misstating the law and the facts of the case, which confused and poisoned the mind of the jury resulting in the improper rejection of [Cook]’s renunciation defense and an improper conviction.” To properly preserve error in cases of prosecutorial misconduct, a defendant must (1) object on specific grounds, (2) request an instruction that the jury disregard the comment, and (3) move for a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); see also TEX. R. APP. P. 33.1. - 12 - 04-17-00149-CR A complaint on appeal must comport with the objection made in the trial court. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Orcasitas v. State, 511 S.W.3d 213, 220 (Tex. App.—San Antonio 2015, no pet.). The Texas Court of Criminal Appeals has further held that constitutional errors can also be waived if a party failed to properly object to the errors at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). If a party’s objection at trial does not correspond with its issue on appeal, the party has waived the issue. Id. In this case, Cook refers to the facts and arguments presented in issue four where he noted he “was forced to make 12 objections during the [S]tate’s closing argument based on egregious misstatements of the law and facts of the case.” However, Cook’s issue on appeal is the denial of his due process rights and the right to present a defense. Although Cook briefly discusses compulsory process in the context of prosecutorial misconduct, our review of the State’s entire closing argument and specifically the portions of the record cited by Cook indicates Cook did not specify “prosecutorial misconduct” as a basis for his objections. Nor does the record reflect that Cook requested a new trial because of prosecutorial misconduct. The record is simply devoid of a due process objection or an objection specifying prosecutorial misconduct. Cook’s appellate issue does not comport with his trial objection, and his trial objections did not preserve the appellate issue he raises. See Orcasitas, 511 S.W.3d at 220. Therefore, Cook has waived this issue. JUDGMENT ERRORS In his sixth issue, Cook points out the judgments of conviction for both Count I and Count II properly reflect his conviction for solicitation of capital murder for remuneration but incorrectly refer to Texas Penal Code section 19.03(a)(3). The State agrees the judgments of conviction are incorrect and should be corrected to reflect the correct Penal Code section, which is section 15.03(a). Accordingly, we modify the judgments of conviction for Count I and Count II of Trial - 13 - 04-17-00149-CR Court No. 2016CR4105 in the 226th District Court which identify the Statute for the Offense is identified at “19.03(A)(3) PC” to “15.03(a).” Issue six is sustained. CONCLUSION Based on the foregoing reasons, the judgment of the trial court is affirmed as modified. Irene Rios, Justice DO NOT PUBLISH - 14 -

01-03-2023

08-09-2018

https://www.courtlistener.com/api/rest/v3/opinions/3209948/

This opinion is uncorrected and subject to revision before publication in the New York Reports. ----------------------------------------------------------------- No. 82 In the Matter of Columbia County Support Collection Unit, &c., Respondent, v. Joshua A. Risley, Appellant. (And Two Other Related Proceedings.) Theodore J. Stein, for appellant. Daniel Gartenstein, for respondent. GARCIA, J.: We are called upon to decide whether Family Court, in revoking two prior suspended orders of commitment, was authorized to order consecutive six-month sentences for each to run consecutively with a third six-month sentence imposed for a current violation. We conclude that it was. - 1 - - 2 - No. 82 Enforcing child support obligations has long been a priority in New York. More than fifty years ago, this State enacted the "Family Court Act," establishing the Family Court and its powers of enforcement, including the power to commit an individual "to jail for a term not to exceed six months" for a willful failure to obey a support order (Family Ct Act § 454 [a], L 1962, ch 686). Subsequently, this State enacted the "New York State Support Enforcement Act of 1986" (Support Enforcement Act), aimed at addressing the harmful effects of the pervasive disregard of court-ordered support obligations. In approving this legislation, then Governor Mario Cuomo admonished, "[t]he absence of an effective child support system has been a major factor in the alarming rate of poverty among children in this country, who are owed nearly $3 billion in unpaid child support" (Governor's Mem approving L 1986, ch 892, 1986 McKinney's Session Laws of NY at 3213).1 The Support Enforcement Act's primary purpose was to "ensure that the children of this state . . . receive the support that is their legal right" by addressing "support enforcement issues vigorously and comprehensively" (id. at 3214) and it "[s]et forth all the remedies available for enforcing a support order upon failure of a respondent to comply, 1 Today, that number has increased to over $115 billion (see U.S. Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement, Preliminary Report FY 2015 at 90, http://www.acf.hhs.gov/sites/default/files/programs/css/fy2015_pr eliminary.pdf [accessed May 9, 2016]). - 2 - - 3 - No. 82 including . . . commitment" (L 1986, ch 892, Governor's Program Bill Mem No. 84, Bill Jacket at 20). As a result, Family Court is empowered "to use any or all enforcement powers in every proceeding brought for violation of a court order" of support (Family Ct Act § 454 [1]). Such powers include the authority to sentence willfully non-compliant parents to jail "for a term not to exceed six months[,]" but also to suspend such orders of commitment when appropriate (see Family Ct Act §§ 454 [3] [a], 455 [1]). Here, the Appellate Division rejected the contention that consecutive commitments were not authorized by Family Court Act § 454 (3) and concluded that "[g]iven the father's failure to contest the amounts due and his willful refusal to voluntarily pay them despite repeated opportunities afforded to him over more than three years, we find no abuse of discretion in the determination to run the sentences consecutively" (122 AD3d 1097, 1098 [3d Dept 2014]). We agree and affirm. "[T]he problems of enforcing a support order could fill a book" (Matter of Powers v Powers, 86 NY2d 63, 65 [1995]). To address such problems, Family Court has various tools to use in achieving the ultimate goal of providing children with the financial support that is their right. For instance, even absent a willfulness finding, such enforcement remedies include entry of a money judgment, income deduction, undertaking, sequestration, and the suspension of drivers' and recreational licenses (Family - 3 - - 4 - No. 82 Ct Act § 454 [2]). Incarceration is an option when the Family Court determines that a respondent willfully failed to comply with "any lawful order of support," in which case, the court may: "[C]ommit the respondent to jail for a term not to exceed six months. For purposes of this subdivision, failure to pay support, as ordered, shall constitute prima facie evidence of a willful violation. . . . Such commitment does not prevent the court from subsequently committing the respondent for failure thereafter to comply with any such order . . . " (Family Ct Act § 454 [3] [a]). Even when the commitment provision is invoked, Family Court has the discretion to "suspend an order of commitment upon such reasonable conditions, if any, as the court deems appropriate to carry out the purposes of [article four] . . . " (Family Ct Act § 455 [1]). That suspension may, however, be revoked "at any time" for "good cause shown" (id.). The father in this case demonstrated the willful flaunting of support orders the Legislature sought to address in passing the Support Enforcement Act. Without making any attempt at an excuse for inability to pay, the father repeatedly failed to meet his court-ordered support obligations. His conduct resulted in a substantial amount owed in arrears and two suspended orders of commitment, one each in 2010 and 2012, for willfully violating Family Court support orders. Both suspended commitments were conditioned upon the father making timely child support payments. In 2013, Family Court found yet a third willful - 4 - - 5 - No. 82 violation of a prior order, revoked the two suspended orders for the past violations, sentenced the father to a new six-month sentence, resulting in three consecutive six-month sentences. Once again, the father made no attempt to plead an inability to pay or seek modification of the support orders. In ordering the term of incarceration, Family Court determined that the father willfully failed to comply with his child support obligations on three separate violation petitions and found good cause existed to revoke the father’s two suspended commitments. The Appellate Division affirmed this conclusion (122 AD3d at 1098). Here, the father does not challenge the willfulness findings, but challenges only the Family Court's authority to order his six-month sentences be served consecutively. Family Court's action was taken well after the initial suspension of the earlier orders of incarceration, raising an issue of the timing of the revocation. The statute expressly provides that Family Court "has continuing jurisdiction over any support proceeding brought under [article four] until its judgment is completely satisfied and may modify, set aside or vacate any order issued in the course of the proceeding . . . " (Family Ct Act § 451 [1]; see also Matter of Damadeo v Keller, 132 AD3d 670, 672 [2d Dept 2015]). In conjunction with this continuing jurisdiction, Family Court has authority to both suspend an order of commitment and to revoke such suspension “at - 5 - - 6 - No. 82 any time” for “good cause shown” (Family Court Act § 455 [1]; see Matter of Horike v Freedman, 81 AD3d 1091, 1091 [3d Dept 2011], lv denied and dismissed 16 NY3d 899 [2011]). These sections make clear that Family Court may reinstate a suspended commitment at any time while respondent has failed to satisfy the judgment. This is consistent with Appellate Division Departments that have held Family Court has the discretion to revoke a previously suspended judgment despite the fact that significant time has lapsed since the suspension (see Matter of Bonneau v Bonneau, 97 AD3d 917, 917-918 [3d Dept 2012]; see also Matter of Putnam County Probation Dept. v Dimichele, 120 AD3d 820, 820-821 [2d Dept 2014]). Therefore, Family Court retained jurisdiction over the father on the two suspended commitments because he failed to "completely satisfy" the judgments against him and failed to comply with ongoing support obligations. "Jurisdiction continues until such time as all arrears have been paid, no matter how long, and regardless of the age of the child" (Merril Sobie, Practice Commentaries, McKinney's 2016, Family Ct Act § 451). With this jurisdiction, Family Court had statutory authority to revoke the father's suspended sentences at any time for good cause shown, despite the lapse in time from the initial suspension. Once the determination was made to revoke the suspensions, Family Court had discretion to impose consecutive - 6 - - 7 - No. 82 sentences for each willful violation. In Walker v Walker, relied on by the Appellate Division below, this Court held that Family Court had authority under Family Court Act § 846-a to impose three consecutive six-month sentences for three separate violations of one protection order (86 NY2d 624 [1995]). While Walker involved three violations of one protection order –- not the suspended sentence issue we have here -- this Court held "that the Family Court is not generally precluded from imposing, in the exercise of prudent and appropriate discretion, a maximum six-month jail commitment for each separate and distinct violation of an order of protection, to be served consecutively" (id. at 627). The language in Family Court Act § 454 (3) (a) and § 846-a, the statute at issue in Walker, which prescribe Family Court's power to commit respondents to jail for willful violations of support and protection orders respectively, is nearly identical and has been so since each was originally drafted in 1962 (compare Family Ct Act § 454 [3] [a] with Family Ct Act § 846-a; see also L 1962, ch 686 at 3087 § 454 [a], 3128 § 846). Although Walker is at some level distinguishable based on the policy behind orders of protection, namely to prevent physical harm, while orders of support are intended to enforce child support obligations, similar enforcement goals underlie both statutes. As was the case with orders of protection, the judicial authority to commit prescribed in § 454 (3) (a) was - 7 - - 8 - No. 82 intended to prevent violations, deter further violations and vigorously and comprehensively enforce Family Court orders. Accordingly, as with Family Court Act § 846-a, consecutive sentences are authorized by the language and policy goals of article 4 of the statute. With respect to concerns over lengthy incarceration of those simply unable to pay, the statutory scheme provides protection: "any respondent against whom an order of commitment has been issued, if financially unable to comply with any lawful order . . . may make application to the court for an order relieving him or her of payments directed in such order and the commitment order” (Family Ct Act § 455 [2]). It is conceded that the father here never claimed an inability to pay or sought adjustment of his child support obligations. To the contrary, the father repeatedly affirmed his ability to make weekly payments and never sought reduction or modification of his child support obligations. Willful violators of Family Court orders should not in effect be given immunity for past violations -- conduct which would have justified incarceration at the time -- solely because the trial court exercised restraint in fashioning a remedy that provided yet another opportunity to meet support obligations. We conclude that it was within the discretion of the Family Court judge to impose consecutive sentences for each willful violation. Accordingly, the Appellate Division order should be affirmed, - 8 - - 9 - No. 82 without costs. * * * * * * * * * * * * * * * * * Order affirmed, without costs. Opinion by Judge Garcia. Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam and Fahey concur. Judge Stein took no part. Decided June 7, 2016 - 9 -

01-03-2023

06-07-2016

https://www.courtlistener.com/api/rest/v3/opinions/3209925/

****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** LISA J. CEFARATTI v. JONATHAN S. ARANOW ET AL. (SC 19444) Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js. Argued January 21—officially released June 14, 2016 Ellen M. Costello, for the appellants (named defen- dant et al.). Kelly E. Reardon, with whom, on the brief, was Robert I. Reardon, Jr., for the appellee (plaintiff). Opinion ROGERS, C. J. The issue that we must resolve in this certified appeal is whether the plaintiff’s medical malpractice action is barred by the statute of limitations or, instead, the statute of limitations was tolled under the continuing course of treatment doctrine. The plain- tiff, Lisa J. Cefaratti, brought this action against the defendants, Jonathan S. Aranow, Shoreline Surgical Associates, P.C. (Shoreline), and Middlesex Hospital (Middlesex), alleging that Aranow had left a surgical sponge in the plaintiff’s abdominal cavity during gastric bypass surgery. She further alleged that Middlesex was both directly liable for its own negligence and vicari- ously liable for Aranow’s negligence, and Shoreline was vicariously liable for Aranow’s negligence.1 Thereafter, Middlesex filed a motion for summary judgment claim- ing, among other things, that the claims against it were barred by the applicable statute of limitations, General Statutes § 52-584.2 Aranow and Shoreline subsequently filed a joint motion for summary judgment raising the same claim. The trial court concluded that the direct claims against Aranow and Middlesex were barred by the statute of limitations and, therefore, the derivative claims against Middlesex and Shoreline were also barred. Accordingly, the trial court rendered judgment for the defendants, and the plaintiff appealed to the Appellate Court, which reversed the judgment of the trial court on the ground that there was a genuine issue of material fact as to whether the statute of limitations had been tolled by the continuing course of treatment doctrine.3 Cefaratti v. Aranow, 154 Conn. App. 1, 22, 105 A.3d 265 (2014). We then granted Aranow and Shoreline’s petition for certification to appeal from that ruling, limited to the following issue: ‘‘Did the Appellate Court properly apply the ‘continuing course of treat- ment’ doctrine in determining what constitutes an ‘iden- tifiable medical condition’ under that doctrine?’’4 Cefaratti v. Aranow, 315 Conn. 919, 919–20, 107 A.3d 960 (2015). We answer that question in the affirmative and, therefore, affirm the judgment of the Appellate Court. The record, which we view in the light most favorable to the plaintiff for purposes of reviewing the trial court’s rendering of summary judgment, reveals the following facts and procedural history. On December 8, 2003, after having diagnosed the plaintiff as being morbidly obese, Aranow performed gastric bypass surgery on the plaintiff at Middlesex. Thereafter, the plaintiff had follow-up appointments with Aranow on January 14, 2004, May 11, 2004, October 22, 2004, May 10, 2005, November 16, 2005, December 17, 2007 and March 20, 2009. The plaintiff testified at her deposition that, start- ing approximately one year after her surgery, she began to experience uncomfortable sensations in her abdo- men. She described the sensations as follows: ‘‘When [the sponge] was in there it was so large that I could barely bend over without it getting caught on my ribs and the pain was very, very intense. I felt like I was carrying a child in my abdomen.’’ She further stated that she felt that ‘‘something was pushing out . . . and it felt like somebody was stabbing me . . . . [W]hen- ever I had to have a bowel movement it felt like some- body was twisting something inside of me . . . .’’ The plaintiff testified that she described these sensations exactly to Aranow at every appointment, except per- haps the first two.5 On August 6, 2009, after being diagnosed with breast cancer by another physician, the plaintiff underwent a computerized tomography (CT) scan of her chest, abdomen and pelvis. The CT scan revealed the presence of foreign material in the plaintiff’s abdominal cavity. On September 9, 2009, the plaintiff met with Aranow, who informed her that the object in her abdominal cavity was a surgical sponge. After the sponge was surgically removed, she no longer had the sensations of having something caught on her ribs and of carrying a child.6 On August 18, 2010, the plaintiff brought a medical malpractice action alleging that Aranow had negligently failed to remove the surgical sponge from her abdomi- nal cavity during the gastric bypass surgery, and that Middlesex and Shoreline were both directly liable for their own negligence and vicariously liable for Aranow’s negligence. Thereafter, Middlesex filed a motion for summary judgment claiming that, because the plaintiff had not brought the action within the three year statute of repose provided for in § 52-284,7 the action was barred. The defendants filed a separate motion for sum- mary judgment raising the same claim. The plaintiff opposed the motions, claiming, among other things, that the statute of limitations was tolled by the continuing course of treatment doctrine. The trial court observed in its memorandum of deci- sion that, to establish the elements of the continuing course of treatment doctrine, the plaintiff was required to prove: ‘‘(1) that . . . she had an identified medical condition that required ongoing treatment or monitor- ing; (2) that the defendant provided ongoing treatment or monitoring of that medical condition after the alleg- edly negligent conduct, or that the plaintiff reasonably could have anticipated that the defendant would do so; and (3) that the plaintiff brought the action within the appropriate statutory period after the date that treat- ment terminated.’’ (Footnotes omitted.) Grey v. Stam- ford Health System, Inc., 282 Conn. 745, 754–55, 924 A.2d 831 (2007). The trial court concluded that the iden- tified medical condition at issue in the present case was the sponge in the plaintiff’s abdomen and, because the plaintiff did not know about that condition, she could not have sought treatment for it. Accordingly, it concluded that the doctrine did not apply and the action was, therefore, barred by the statute of limitations, enti- tling the defendants to summary judgment. The plaintiff appealed from the judgment to the Appellate Court. The Appellate Court concluded that the plaintiff’s morbid obesity was an identified medical condition for purposes of the continuing course of treat- ment doctrine and that there was a genuine issue of material fact as to whether Aranow had provided ongo- ing treatment for that condition. Cefaratti v. Aranow, supra, 154 Conn. App. 21–22. Accordingly, it concluded that there was a genuine issue of material fact as to whether the continuing course of treatment doctrine tolled the statute of limitations; id., 22; and reversed in part the judgment of the trial court. Id., 45. This certified appeal followed. The defendants con- tend that the Appellate Court incorrectly determined that the plaintiff’s morbid obesity was an identified medical condition for purposes of the continuing course of treatment doctrine. Rather, the defendants contend, the plaintiff’s identified medical condition was either the retained surgical sponge, for which the plaintiff could not have sought treatment because she was unaware of it, or the plaintiff’s morbid obesity, which was not an identified medical condition for purposes of the doctrine because it did not have any connection to the injury of which she complained. The plaintiff contends that she sought treatment both for her morbid obesity and for postoperative complications, such as her abdominal discomfort. Accordingly, she contends, her abdominal discomfort was an identified medical condition for purposes of the doctrine. In turn, the defendants respond that this claim fails because the plaintiff was required to and did not establish a connec- tion between the medical condition for which she sought treatment—her abdominal discomfort—and the alleged negligence—leaving the sponge in the plaintiff’s abdominal cavity. They further contend that, even if there is evidence that the sponge caused the plaintiff’s abdominal discomfort, the plaintiff cannot prevail because she has not alleged or presented evidence that Aranow’s continuing failure to diagnose the true cause of her discomfort was negligent. We conclude that, to establish that there are genuine issues of material fact as to whether the continuing course of treatment doctrine tolled the statute of limita- tions, the plaintiff was required only to present evidence that her abdominal discomfort was caused by the sponge and that she sought continuing treatment for her discomfort from Aranow. We further conclude that the plaintiff has established that there is a genuine issue of material fact as to whether the doctrine applies. ‘‘The standard of review of a trial court’s decision granting summary judgment is well established. Prac- tice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is ple- nary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.’’ (Citation omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 253, 811 A.2d 1266 (2002). ‘‘[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by dem- onstrating that the action had commenced outside of the statutory limitation period. . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the stat- ute.’’ (Citation omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 321, 77 A.3d 726 (2013). Thus, in the present case, because there is no dispute that the plaintiff filed her complaint after the limitations period set forth in § 52-584 had expired, the burden is on the plaintiff to establish that there is a genuine issue of material fact as to whether the statute of limitations was tolled by the continuing course of treatment doctrine. We begin our analysis with a review of our case law involving the continuing course of treatment doctrine. ‘‘As a general rule, [t]he [s]tatute of [l]imitations begins to run when the breach of duty occurs.’’ (Internal quota- tion marks omitted.) Grey v. Stamford Health System, Inc., supra, 282 Conn. 751. ‘‘We have . . . recognized, however, that the statute of limitations, in the proper circumstances, may be tolled under the continuous treatment . . . doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date.’’ (Internal quotation marks omitted.) Id. Under that doctrine, ‘‘[s]o long as the relation of physician and patient continues as to the particular injury or malady which [the physi- cian] is employed to cure, and the physician continues to attend and examine the patient in relation thereto, and there is something more to be done by the physician in order to effect a cure, it cannot be said that the treatment has ceased.’’ (Internal quotation marks omit- ted.) Id. As we have indicated, to establish the elements of the continuing course of treatment doctrine, a plaintiff is required to prove: ‘‘(1) that he or she had an identified medical condition that required ongoing treatment or monitoring; (2) that the defendant provided ongoing treatment or monitoring of that medical condition after the allegedly negligent conduct, or that the plaintiff reasonably could have anticipated that the defendant would do so; and (3) that the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated.’’ (Footnotes omitted.) Id., 754–55. To constitute an ‘‘identified medical condition’’ for purposes of the doctrine, the medical condition for which the plaintiff received ongoing treatment must be connected to the injury of which the plaintiff complains. See id., 754 n.6, citing Watkins v. Fromm, 108 Ohio App. Div. 2d 233, 244, 488 N.Y.S.2d 768 (1985) (‘‘continuous treatment doctrine applies only to treatment for the same or related illnesses or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship’’ [internal quotation marks omitted]); Miccio v. Gerdis, 120 Ohio App. Div. 3d 639, 640, 990 N.Y.S.2d 863 (2014) (doctrine applies ‘‘where [the physician] treated the patient con- tinuously over the relevant time period for symptoms that are ultimately traced to [the underlying] condition [of which the plaintiff complains]’’). With these principles in mind, we turn to the evidence in the present case. The plaintiff testified that, starting approximately one year after the surgery, she developed severe abdominal discomfort. She further testified that she complained to Aranow of this discomfort at each of the subsequent follow-up appointments. Finally, she testified that, after the surgical sponge was removed, a number of symptoms disappeared.8 On the basis of this evidence, we conclude that there are genuine issues of material fact as to: (1) whether the plaintiff’s abdomi- nal discomfort was caused by the presence of the surgi- cal sponge and, therefore, whether it was an ‘‘identified medical condition’’ for purposes of the continuing course of treatment doctrine; and (2) whether the plain- tiff sought continuing treatment for that medical condi- tion. Accordingly, we conclude that the Appellate Court properly determined that there are genuine issues of material fact as to whether the continuing course of treatment doctrine tolled the statute of limitations. The defendants contend, however, that the doctrine does not apply because the plaintiff has not alleged that Aranow’s treatment of her after the surgery was negligent.9 Specifically, they contend that she has not alleged that Aranow negligently failed to discover dur- ing the follow-up appointments that a surgical sponge had been left in her abdominal cavity during the surgery. Thus, the defendants implicitly contend that we should adopt the ‘‘single act’’ exception to the continuing course of treatment doctrine, under which the doctrine does not apply when the plaintiff’s injury was caused by a single act of negligence rather than by a continuous course of negligent treatment. See Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 146, 929 S.W.2d 713 (1996) (‘‘the continuous treatment doctrine becomes relevant when the medical negligence consists of a series of negligent acts or, a continuing course of improper treatment’’ [emphasis in original; internal quotation marks omitted]); Langner v. Simpson, 533 N.W.2d 511, 522 (Iowa 1995) (‘‘[t]o prevail under the continuum of negligent treatment doctrine, the plaintiff must show [1] that there was a continuous and unbro- ken course of negligent treatment, and [2] that the treat- ment was so related as to constitute one continuing wrong’’ [internal quotation marks omitted]); Swang v. Hauser, 288 Minn. 306, 309, 180 N.W.2d 187 (1970) (doc- trine does not apply when alleged tort was single act and no continued course of treatment could cure or relieve it). We disagree. Our cases have consistently stated that the policy underlying the continuous treatment doctrine seeks to ‘‘[maintain] the physician/patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure.’’ (Internal quotation marks omitted.) Grey v. Stamford Health System, Inc., supra, 282 Conn. 752; Blanchette v. Barrett, 229 Conn. 256, 276, 640 A.2d 74 (1994); Connell v. Colwell, 214 Conn. 242, 253, 571 A.2d 116 (1990) (same); see also Grey v. Stamford Health System, Inc., supra, 752 (‘‘[t]he doc- trine rests on the premise that it is in the patient’s best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit because the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so’’ [internal quotation marks omitted]), quoting Nykor- chuck v. Henriques, 78 N.Y.2d 255, 258, 577 N.E.2d 1026, 573 N.Y.S.2d 434 (1991); Grey v. Stamford Health System, Inc., supra, 752 (policy underlying doctrine is to avoid creating ‘‘a dilemma for the patient, who must choose between silently accepting continued corrective treatment from the offending physician, with the risk that his claim will be time-barred or promptly instituting an action, with the risk that the physician-patient rela- tionship will be destroyed’’ [internal quotation marks omitted]), quoting Rizk v. Cohen, 73 N.Y.2d 98, 104, 535 N.E.2d 282, 538 N.Y.S.2d 229 (1989). In addition, we have repeatedly recognized that, ‘‘[s]o long as the relation of physician and patient continues as to the particular injury or malady which [the physician] is employed to cure, and the physician continues to attend and examine the patient in relation thereto, and there is something more to be done by the physician in order to effect a cure, it cannot be said that the treatment has ceased.’’ (Internal quotation marks omitted.) Grey v. Stamford Health System, Inc., supra, 751; Blanchette v. Barrett, supra, 274 (same); see also Giambozi v. Peters, 127 Conn. 380, 385, 16 A.2d 833 (1940) (‘‘when . . . injuri- ous consequences arise from course of treatment, the statute [of limitations] does not begin to run until the treatment is terminated’’), overruled in part on other grounds by Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638 (1966). Thus, to require that the continuing treatment itself must be negligent before the doctrine can be applied would be fundamentally inconsistent with one of the primary policies underlying the doctrine, namely, to allow the patient to seek ongoing treatment for a medical condition caused by a single act of negli- gence.10 Accordingly, we decline to adopt this excep- tion. See Nobles v. Memorial Hospital of Laramie County, 301 P.3d 517, 527–29 (Wyo. 2013) (rejecting single act exception to continuing course of treatment doctrine because exception is ‘‘at odds with the basic policies at the heart of the continuous treatment rule’’).11 The defendants also contend that, even if evidence of continuing negligence is not required, the continuing course of treatment doctrine does not apply here because ‘‘the plaintiff certainly could not have antici- pated [that] the defendant would have treated her for a retained foreign object of which no one was aware.’’ See Grey v. Stamford Health System, Inc., supra, 282 Conn. 755–56 (‘‘when the plaintiff had no knowledge of a medical condition and, therefore, had no reason to expect ongoing treatment for it from the defendant, there is no reason to apply the doctrine’’). Thus, the defendants contend that a plaintiff should be required to prove that the medical condition for which continuing treatment was sought was ‘‘identified’’ in the sense that the plaintiff knew its true nature and cause. We dis- agree. Rather, we conclude that the medical condition must be ‘‘identified’’ in the sense that it was the specific condition that either gave rise to or was caused by the defendant’s negligence. See McDermott v. Torre, 56 N.Y.2d 399, 406, 437 N.E.2d 1108, 452 N.Y.S.2d 351 (1982) (‘‘Included within the scope of continuous treat- ment is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment. Thus, there will be con- tinuing treatment when a patient, instructed that he or she does not need further attention, soon returns to the doctor because of continued pain in that area for which medical attention was first sought.’’ [Internal quotation marks omitted.]);12 Miccio v. Gerdis, supra, 120 Ohio App. Div. 3d 640 (‘‘a physician . . . cannot defeat the application of the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where [the physician] treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition’’); D. Peck, ‘‘The Continuous Treatment Doc- trine: A Toll on the Statute of Limitations for Medical Malpractice in New York,’’ 49 Alb. L. Rev. 64, 77 (1984) (‘‘Although the [defendant] may be aware that its actions caused the injury which necessitated the subse- quent treatment, this knowledge is not a necessary ele- ment of affirmative treatment. The essential factor is that the subsequent treatment is related to the act or omission which gave rise to the cause of action.’’ [Foot- note omitted.]). This conclusion ‘‘is compelled by the policy underlying the continuous treatment doctrine, i.e., that a patient should not be required to interrupt corrective medical treatment by a physician and under- mine the trust in the physician-patient relationship in order to ensure a timely claim . . . .’’ (Citation omit- ted.) Couch v. Suffolk, 296 A.D. 2d 194, 197, 746 N.Y.S.2d 187 (2002). ‘‘Although it seems incongruous that subsequent treatment can occur without affirma- tive action by the physician since the term treatment connotes the presence of action, in certain situations treatment can occur by omission. This treatment by omission arises when the patient returns to the treating physician complaining of problems in the mistreated area but the physician disregards the complaints. The significant factor is that even though the physician may not have provided literal treatment to the afflicted area, the patient, by returning to the physician, has provided him with an opportunity to correct his previous error.’’ (Footnote omitted; internal quotation marks omitted.) D. Peck, supra, 79. Thus, in the present case, the plaintiff was required only to show that there is a genuine issue of material fact as to whether her symptoms of abdomi- nal discomfort were connected to the retained surgical sponge and that she sought treatment for those symp- toms, not that she knew about and sought treatment for the presence of the sponge.13 Accordingly, we conclude this court’s statement in Grey v. Stamford Health System, Inc., supra, 282 Conn. 755–56, that ‘‘when the plaintiff had no knowledge of a medical condition and, therefore, had no reason to expect ongoing treatment for it from the defendant, there is no reason to apply the doctrine’’ refers either to the situation in which the plaintiff was suffering from an asymptomatic medical condition and, therefore, had no reason to seek treatment for it, or to the situation in which the plaintiff sought treatment for certain symp- toms, the defendant determined that the symptoms required no further treatment and the plaintiff sought no further treatment. It does not refer to the situation in which a plaintiff continually sought treatment for symptoms related to the act of negligence for which the true cause was unknown.14 To the extent that the defendants contend that rou- tine appointments can never constitute a continuing course of treatment for purposes of the doctrine, we again disagree. Rather, we conclude that routine post- operative appointments for the purpose of tracking the progress of the plaintiff’s condition and postoperative complications, if any, constitute continuing treatment for any identified medical condition that was caused by the surgery. See Miller v. Rivard, 180 A.D. 2d 331, 339, 585 N.Y.S.2d 523 (1992) (routine postoperative procedures are part of same course of treatment as surgery); Callahan v. Rogers, 89 N.C. App. 250, 255, 365 S.E.2d 717 (1988) (it is irrelevant for purposes of doctrine whether postoperative appointments were ini- tiated by plaintiff or were scheduled office visits). Of course, as with any application of the doctrine, the plaintiff must present evidence in such cases that he or she sought treatment for a specific medical condition that was related to the injury of which he or she com- plained. For example, in the present case, if the plaintiff had failed to present any evidence that the presence of the sponge in her abdominal cavity had caused symp- toms for which she sought treatment at the follow- up appointments, the mere fact that the defendants provided ongoing monitoring of the condition that the surgery was intended to cure—the plaintiff’s morbid obesity—would not have been sufficient. For the foregoing reasons, we conclude that the Appellate Court properly determined that there are gen- uine issues of material fact as to whether the continuing course of treatment doctrine tolled the statute of limita- tions. Accordingly, we affirm the judgment of the Appel- late Court reversing the judgment of the trial court that the plaintiff’s action was barred by the statute of limi- tations. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. 1 The relevant complaint has four counts. The first count is against ‘‘Jona- than S. Aranow, M.D. of . . . Shoreline . . . .’’ The second count is against Middlesex. The third count is against ‘‘Middlesex . . . and Aranow . . . [respondeat] [s]uperior.’’ The fourth count is against Shoreline. Both the first and the fourth count allege that Aranow is Shoreline’s employee but, unlike the third count, they do not expressly allege that Shoreline is vicari- ously liable for Aranow’s negligence under the doctrine of respondeat supe- rior. Because the trial court apparently assumed that that was the case, and the defendants do not contend otherwise, we also make that assumption. 2 Middlesex also claimed that the plaintiff did not have a viable claim of vicarious liability against it because Aranow was not its actual agent or employee and the doctrine of apparent agency is not recognized in tort actions in this state. The trial court agreed with Middlesex and granted its motion for summary judgment on the vicarious liability claim. The plaintiff appealed to the Appellate Court, which affirmed the judgment of the trial court. Cefaratti v. Aranow, 154 Conn. App. 1, 45, 105 A.3d 265 (2014). We then granted the plaintiff’s petition for certification to appeal on the following issue: ‘‘Did the Appellate Court properly conclude that the doctrine of appar- ent authority does not apply to actions sounding in tort?’’ Cefaratti v. Ara- now, 315 Conn. 919, 107 A.3d 960 (2015). In the companion case of Cefaratti v. Aranow, 321 Conn. , A.3d (2016), issued on the same date as this opinion, we answer that question in the negative and conclude that the case must be remanded so that the plaintiff may have an opportunity to present evidence sufficient to create a genuine issue of material fact under our newly adopted standard for establishing apparent agency in a tort action. 3 The plaintiff has not claimed on appeal to the Appellate Court or to this court that the continuing course of treatment doctrine tolls the statute of limitations with respect to her claim that Middlesex is directly liable for its own negligence. Accordingly, the trial court’s summary judgment rendered in favor of Middlesex on that count still stands. See Cefaratti v. Aranow, supra, 154 Conn. App. 6 n.3 (‘‘Count two of the complaint is not at issue in this appeal. . . . Any possible negligence on the part of [Middlesex] is not at issue on appeal.’’). To the extent that the plaintiff claims that Shoreline is directly liable for its own negligence before and during the surgery, any such claim is also barred for the same reason. 4 As we have explained, the only remaining claim against Middlesex is that it is vicariously liable for Aranow’s negligence. See footnote 3 of this opinion. Middlesex did not join in the present appeal, presumably because the derivative claim against it would be barred if this court were to agree with Aranow and Shoreline that the claim against Aranow is barred. For convenience, we hereinafter refer to Aranow and Shoreline as the defendants. 5 The plaintiff filled out a questionnaire at each of the follow-up appoint- ments that specifically asked whether she was suffering from abdominal pain. She indicated that she had abdominal pain only on the questionnaire for the November 16, 2005 appointment. The plaintiff explained at her deposition that she did not indicate that she had abdominal pain on the other question- naires because she ‘‘didn’t consider it at that time to be abdominal pain, and the way I described [it] to [Aranow] was different than what I would describe [as] abdominal pain.’’ 6 Although it is not absolutely clear, the plaintiff’s deposition testimony strongly implies that she underwent surgery to have the surgical sponge removed. Specifically, she stated that ‘‘[w]hen the sponge was in there’’ she had a specific type of discomfort, and that she had not had that type of discomfort ‘‘[s]ince the surgery . . . .’’ The plaintiff’s attorney confirmed at oral argument before this court that the sponge was surgically removed two years after it was discovered. 7 General Statutes § 52-584 provides: ‘‘No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discov- ered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.’’ 8 Accordingly, we reject the defendants’ contention that ‘‘[t]here was not one scintilla of evidence in this case that the alleged abdominal pain was ultimately traced to the retained sponge.’’ There is sufficient evidence to create an issue of fact as to whether the sponge caused the discomfort given that some of the discomfort disappeared after the sponge was removed. Sherman v. Bristol Hospital, Inc., 79 Conn. App. 78, 89, 828 A.2d 1260 (2003) (‘‘An exception to the general rule with regard to expert medical opinion evidence is when the medical condition is obvious or common in everyday life. . . . Similarly, expert opinion may not be necessary as to causation of an injury or illness if the plaintiff’s evidence creates a probability so strong that a lay jury can form a reasonable belief.’’ [Citations omitted; internal quotation marks omitted.]). 9 Although we conclude in this opinion that it is not necessary for a plaintiff to prove that there must be a continuing failure to diagnose in order for the doctrine to apply, in her opposition to the defendants’ motion for summary judgment, we note that the plaintiff contended that the defendants ‘‘continu- ally breached their duty from 2003 to 2009 by failing to properly examine and follow up with the [p]laintiff to determine that a surgical sponge had been left behind.’’ In other words, the plaintiff contended that the defendants’ failure to diagnose the true nature of her condition constituted continuing negligence. The only evidence that the plaintiff cited to support this claim, however, was Aranow’s deposition testimony that a sponge had been left in the abdominal cavity of a former patient and that he had discovered the sponge several years after the surgery when he ordered a CT scan. We conclude that this evidence is not sufficient to raise a genuine issue of material fact as to whether Aranow breached the governing standard of care when he failed to diagnose the plaintiff’s true condition when she complained of abdominal discomfort after the appeal. Rather, the plaintiff was required to present expert testimony as to whether Aranow breached the standard of care. See Doe v. Yale University, 252 Conn. 641, 687, 748 A.2d 834 (2000) (‘‘[e]xcept in the unusual case where the want of care or skill is so gross that it presents an almost conclusive inference of want of care . . . the testimony of an expert witness is necessary to establish both the standard of proper professional skill or care on the part of a physician’’ [citation omitted]); Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn. App. 750, 767, 785 A.2d 588 (2001) (‘‘[b]ecause it was evident that the substitute plaintiff did not produce an expert witness who would have testified that the defendants had breached the standard of care in their treatment of the plaintiff, the court properly found that the defendants were entitled to judgment as a matter of law’’). 10 We recognize that our cases previously have contrasted situations in which the alleged medical malpractice was ‘‘ ‘a single act of a physician or surgeon’ ’’ with situations involving a ‘‘ ‘course of treatment.’ ’’ Blanchette v. Barrett, supra, 229 Conn. 274, quoting Giambozi v. Peters, supra, 127 Conn. 385. These cases also may be interpreted as suggesting that the continuing course of treatment doctrine does not apply when the only malpractice was the initial single act of negligence. Blanchette v. Barrett, supra, 274 (when malpractice was single act, ‘‘[t]he [s]tatute of [l]imitations begins to run when the breach of duty occurs’’); Giambozi v. Peters, supra, 385 (same); Giambozi v. Peters, supra, 384 (‘‘where the injury was inflicted at the time of the operation and not occasioned by subsequent treatment or neglect, and there has been no fraudulent concealment by the surgeon, the period of limitation for actions of this kind commences from the date of the wrongful act or omission’’). In Giambozi v. Peters, supra, 385, how- ever, there was no treatment at all after the initial act of negligence. Blanchette also does not definitively answer the question of whether the doctrine applies in the absence of ongoing negligence because the court in that case found both that the defendant had a continuing duty to the plaintiff after the initial act of negligence and that the defendant provided continually negligent treatment. See Blanchette v. Barrett, supra, 279. Moreover, since Giambozi was decided, this court has recognized that, in addition to allowing a plaintiff to use the last date of the defendant’s negligent conduct as the date that the negligence occurred, ‘‘[t]he policy underlying the continu- ous treatment doctrine [also] seeks to maintain the physician/patient rela- tionship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure.’’ (Internal quotation marks omitted.) Connell v. Colwell, supra, 214 Conn. 253. In light of the strong policy in favor of allowing the plaintiff to seek treatment for the negligently inflicted injury, we conclude that our suggestions in Giam- bozi and Blanchette that, when ‘‘[t]he term malpractice . . . [is] applied to a single act of a physician or surgeon . . . [t]he [s]tatute of [l]imitation[s] begins to run when the breach of duty occurs’’; [internal quotation marks omitted] Blanchette v. Barrett, supra, 274, quoting Giambozi v. Peters, supra, 385; were intended to apply to cases in which there has been no continuing course of treatment for an identified medical condition, negligent or oth- erwise. 11 See also Gomez v. Katz, 61 A.D. 3d 108, 109–17, 874 N.Y.S.2d 161 (2009) (doctrine applied when defendant caused injury during allegedly negligent eye surgery); Jauregui v. Memorial Hospital of Sweetwater County, 111 P.3d 914, 915, 918–19 (Wyo. 2005) (doctrine applied when defendant left sponge in plaintiff’s shoulder during surgery), overruled on other grounds by Harmon v. Star Valley Medical Center, 331 P.3d 1174, 1184 and n.9 (Wyo. 2014). 12 In McDermott v. Torre, supra, 56 N.Y.2d 403, the plaintiff consulted the defendant dermatologist and requested that he examine a mole on her ankle. The defendant conducted tests and concluded that the mole did not require any treatment. Id., 404. The plaintiff then received continued treatment for other ailments with the defendant, but received no further treatment for the mole. Id. She continued to complain, however, about pain and discolor- ation in her ankle. It was ultimately determined that the mole was cancerous. Id. The plaintiff brought an action against the defendant after the limitations period had expired, claiming that the continuing course of treatment doctrine applied. Id., 404–405. The Court of Appeals of New York concluded that the fact that the defendant had continually misdiagnosed the plaintiff’s condition as benign was irrelevant for purposes of the doctrine. Id., 406. Rather, the court concluded, the dispositive question was whether the ‘‘plaintiff’s concern about her ankle was one of the purposes for her subsequent visits’’ to the defendant. Id. Thus, the plaintiff was not required to prove either ongoing negligence or that the plaintiff and the defendant were aware of the true nature of the plaintiff’s condition in order to invoke the doctrine. 13 The defendants contend that ‘‘[t]he trial court made a finding of fact that the retained sponge was the identified medical condition,’’ not the plaintiff’s abdominal discomfort, and that we must defer to this finding. Trial courts do not make findings of fact, however, in ruling on motions for summary judgment. Rather, viewing the evidence in the light most favorable to the nonmoving party, they determine whether there are genuine issues of material fact, which is a question of law. Because this court is in as good a position as the trial court to make this determination, our review is plenary. Gold v. Greenwich Hospital Assn., supra, 262 Conn. 253. 14 To support its conclusion that the continuing course of treatment doc- trine does not apply in the present case, the trial court relied on our statement in Martinelli v. Fusi, 290 Conn. 347, 364, 963 A.2d 640 (2009), that, although evidence that the defendant was unaware of the true nature of the plaintiff’s condition may indicate that the defendant was negligent, ‘‘it does not indicate that the defendant was actually aware that the plaintiff’s condition required further treatment, such that an ongoing duty to diagnose and treat that condition could be imposed.’’ That principle, however, relates to the continu- ing course of conduct doctrine, which is distinct from the continuing course of treatment doctrine. See id., 357, 365–66 (analyzing doctrines separately); Grey v. Stamford Health System, Inc., supra, 282 Conn. 755 (‘‘the primary difference between the doctrines is that the [continuing course of treatment doctrine] focuses on the plaintiff’s reasonable expectation that the treat- ment for an existing condition will be ongoing, while the [continuing course of conduct doctrine] focuses on the defendant’s duty to the plaintiff arising from his knowledge of the plaintiff’s condition’’ [emphasis in original]).

01-03-2023

06-07-2016

https://www.courtlistener.com/api/rest/v3/opinions/4031267/

THE THIRTEENTH COURT OF APPEALS 13-16-00314-CV Chantella Marie Rosales v. Robert Jacob Morales On appeal from the 148th District Court of Nueces County, Texas Trial Cause No. 2012-FAM-5741-E JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes the appeal should be dismissed. The Court orders the appeal DISMISSED in accordance with its opinion. Costs of the appeal are adjudged against appellant. We further order this decision certified below for observance. September 2, 2016

01-03-2023

09-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4323129/

DISMISS; and Opinion Filed October 19, 2018. In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00932-CV IN RE JIMMY HENSLEY, JR. AND DEE BROWN, INC., Relators Original Proceeding from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-02065 MEMORANDUM OPINION Before Justices Bridges, Brown, and Boatright Opinion by Justice Brown Before the Court are relators’ petition for writ of mandamus and relators’ motion to dismiss this proceeding. We grant the motion and dismiss this original proceeding. See TEX. R. APP. P. 42.1(a)(1). /Ada Brown/ ADA BROWN JUSTICE 180932F.P05

01-03-2023

10-22-2018

https://www.courtlistener.com/api/rest/v3/opinions/3429954/

On March 16, 1939, the superintendent of parks of the city of Des Moines appointed Keeling custodian of Woodland cemetery. This appointment was confirmed by the city council. On April 7th the plaintiff Board, by majority vote, appointed Kounce custodian of the same cemetery. Both were in good standing under the civil service. On April 17, 1939, Keeling appealed to the civil service commission for confirmation which was given on the 23d day of May of the same year. The members of the park board, contending the power of appointment to be within their sole jurisdiction, sought by the writ to challenge the appointment of Keeling. After the writ was issued, defendants filed their motion to set aside and to quash on the grounds: First, that it was issued without notice; and second, the plaintiff Board was not a corporation; was without power to sue or be sued and was merely a legal subdivision of defendant city for governmental purposes; that the district court was without jurisdiction for the reason that the real issue was the right to hold office, and that quo warranto was the only proceeding available to the contestants; and that the park board was not the real party in interest. The trial court deeming it unnecessary to consider all the grounds of the motion sustained it as having been improvidently issued for the reason that "plaintiff, Des Moines Park Board, has not legal capacity to sue or to be sued in this: Plaintiff is merely a board created as a legal subdivision of the City of Des Moines for governmental purposes, and the law has not clothed the plaintiff with corporate capacity or given it the right to sue or be sued." [1, 2] The diligence and learning of counsel have invited us into many legal fields into which we find it unnecessary to enter. For the most part the authorities cited in the briefs deal with well understood principles of law not involved here. Appellant argues at considerable length over the propriety of the court having quashed the writ because "improvidently" issued. We regard this use of the term unimportant. The question was: Would the writ have issued under the circumstances if the court had been advised of the true situation? *Page 907 Or should it have sustained the writ after learning of the questions actually before it and the legal status of the persons interested therein? The trial court held as stated that the plaintiff board had no capacity to sue. In so holding it was right. [3, 4] An examination of chapter 293-D1, under which the plaintiff board was constituted, fails to disclose any of the characteristics of a distinct or corporate organization. Section 5813-d6, which defines its powers and duties, discloses that it is merely an agency or instrumentality of the defendant city and has no independent existence. So far as we have been able to determine wherever it has been the purpose of the legislature to authorize any of the agencies of government to proceed independently of parent municipality, the power to sue or be sued has been expressly given. See Code sections 5738 (cities and towns); 5798 (park commissioners); 5128 (counties); 4123 (school districts); 5822 (river-front improvement commissioners); and 6176 (board of waterworks trustees). It would be a strange doctrine to hold that the various boards and agencies set up by legislative authority to further the functions of municipal corporations could at will challenge its principal's actions or decisions. [5] We expressed ourselves on the general principles involved, in Orvis v. Park Commissioners, 88 Iowa 674, 680, 56 N.W. 294, 296, 45 Am. St. Rep. 252. That case is stronger against appellant than the one before us. We there held that park commissioners have no independent or corporate existence. A reading of the Orvis case indicates that the title of the act there under consideration is very much like the one which created the plaintiff, Park Board. As indicating the intent of the legislature we there discussed the fact that the title of the act made no reference to the creation of a separate corporation. We called attention to the constitutional requirement that the subject of every act should be expressed in the title. Following this discussion, Granger, J., speaking for the court, said: "Our purpose, in this particular branch of the opinion, *Page 908 is not to indicate that the act, because of its title, or the subject itself, is in any way invalid, because unconstitutional, but to more clearly show that the act, in none of its parts, gives evidence of a legislative purpose to create a municipal corporation. The utter silence of the act upon the subject, if it was intended, in the face of the constitutional requirement that it should be prominent, really forbids an inference of such a purpose." What we have said makes it unnecessary to discuss the other matters argued in the brief. We hold that the trial court was right in its conclusion that the plaintiff had no power to sue and, therefore, properly quashed the writ. The decree of the trial court is accordingly affirmed. — Affirmed. HAMILTON, C.J., and HALE, BLISS, RICHARDS, and MITCHELL, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429955/

Section 8402, Code 1935, is in these words: "Courts of equity shall have full power, on good cause shown, to dissolve or close up the business of any corporation, and to appoint a receiver therefor, who shall be a resident of the *Page 468 state of Iowa. An action therefor may be instituted by the attorney general in the name of the state, reserving, however, to the stockholders and creditors all rights now possessed by them." Pursuant to this statute, and shortly prior to July 2, 1936, this suit in equity was instituted in the name of the State, to dissolve, and to close up the business of the Exline Fuel Co., an Iowa corporation. Besides the corporation, a number of individuals were made defendants. One of these individuals, W.H. Wells, filed a cross-petition on July 27, 1936, alleging that he held a chattel mortgage upon the property of the corporation. He alleged also the existence of a conditional sales contract in which he had agreed to sell to the corporation the coal mine it operated, and rights under the mining lease of the land on which the mine was located, but with reservation in himself (Wells) of the title to the property and of the possession as security for payment of the purchase price. Both instruments were dated March 13, 1936. In an amendment to the cross-petition filed August 21, 1936, Wells alleged that he had declared to be due the debt secured by the chattel mortgage, and that the unpaid portion of the purchase price named in the conditional sales contract was due on account of default in payment of one of the installments. The prayer in the amendment was that the chattel mortgage and the conditional sales contract be established as first liens on the property and that Wells have judgment against the corporation and the receiver for the amounts shown in said instruments, and that the property be sold and the proceeds applied first upon such judgment. Plaintiff filed answer to the cross-petition and amendment, to which Wells filed reply. On September 30, 1936, the cause proceeded to trial in the district court upon the pleadings and evidence of plaintiff and cross-petitioner. A decree was entered dissolving the corporation, making permanent the temporary receivership that had been previously ordered, directing the manner of closing up the business of the corporation, and also decreeing that by virtue of the chattel mortgage and conditional sales contract the amounts claimed by Wells thereunder were prior and preferred claims against the property of the corporation described in said instruments. The decree ordered foreclosure of both instruments by sale of the property by the receiver. It also was adjudged in the decree that the State of Iowa pay one-half *Page 469 of the court costs, including cross-petitioner's statutory attorney fees upon the notes secured by the two instruments, in event the proceeds of the sale should be insufficient to pay same. Plaintiff has appealed from the decree. Appellant urges that the court erred in decreeing that the claims of Wells were secured by first liens because fraud, constructive or actual, inhered in each of the written instruments that purported to afford the security. Appellant says that when Wells procured these instruments he was sustaining a fiduciary relationship to the creditors and stockholders, as an incorporator, director, president, and the one in management of the corporation, and that the obligations and duties of such relationship measure the degree of fair, open, and honest dealing Wells must exhibit in the procuring of the security for his own personal advantage, if the instruments are to be countenanced in a court of equity. This was one of the defenses made by the State in its answer to the cross-petition. The transactions on which the fraud is said to rest have their beginning in the summer of 1934 when Wells, through foreclosure of a chattel mortgage, acquired the property of an earlier corporation known as the Exline Coal Co. The property so acquired consisted of a coal mine and its equipment, the lessee's interest in the mining lease, and an undivided one-third interest in the lessors' rights to royalties fixed by the terms of the same mining lease. In August or September of 1934 there were negotiations in which Wells and a number of miners, some of them defendants in this action, took part. The reopening and operating of this mine was discussed. Wells offered to accept $1500 for the mine and lease, the amount approximately that he had bid at the foreclosure sale. The price was satisfactory to the miners. Later in 1934 labor was expended and new materials used in preparing the mine for operation. Much of this preliminary labor was donated by the miners. Wells advanced funds for necessary materials and was later reimbursed. The actual mining of coal began toward the end of 1934, and to carry on the project the defendant corporation was formed in January 1935. The articles provided that the general nature of the business of the corporation should be coal mining, etc.; that the business should be cooperative; that the amount of authorized capital stock should be $10,000, divided into 100 shares of $100 each; that the officers should be a president, vice president, secretary *Page 470 and treasurer. Wells was one of the incorporators, and in the articles was named as the president and one of the directors until the first annual meeting of the corporation to be held in April 1935. No annual stockholders' meeting was held, and Wells continued to act as such president and director from the incorporation until the decree of dissolution, and at all times had the general management and direction of the corporation's affairs. Much stressed by appellant are the written contracts that were entered into between the corporation and each miner at the commencement of his employment. In the words of these instruments, each employee "does purchase stock in Mine #1 of the corporation," upon the following terms: The corporation agreed to pay the union wage scale; the employee agreed to have the corporation check off from his wages whatever the board of directors might see fit in the running of business, paying of indebtedness and pay rolls, and upkeep of the property and whatever it might take to carry on the corporation's business, with the limitation that at no time should the check-off exceed 40% of the wages. Each contract also contained an agreement that for every $100 so checked off the corporation would issue to the employee "a stock certificate in the Exline Fuel Company." Under this arrangement with the employees, mining operations were carried on. On March 16, 1936, the amount checked off had reached the sum of $14,768.89. Of this $14,768.89 the portion that had been checked off in full one hundred dollar amounts was $10,900.00. The balance of the $14,768.89 is made up of sums less than $100. No stock of this corporation was issued to any of these employees. No order was made by the executive council permitting capital stock of this corporation be paid for in any other thing than money. Nor was application made for such permission. The record also shows that the corporation was insolvent at the time of and previous to the execution of the chattel mortgage and conditional sales contract. [1] From the foregoing it is quite evident that the record sustains appellant's proposition that when Wells procured the two instruments upon which he declares, he, Wells, as an incorporator, director, president, and person having the management and control of the affairs of an insolvent corporation, was occupying a fiduciary relation toward the stockholders and also the creditors. Dawson v. National L. Ins. Co., 176 Iowa 362, 157 N.W. 929, L.R.A. 1916E, 878, Ann. Cas. 1918 B, 230; Wabash *Page 471 R. Co. v. Iowa S.W. R Co., 200 Iowa 384, 202 N.W. 595; Hoyt v. Hampe, 206 Iowa 206, 220, 214 N.W. 718, 724, 220 N.W. 45; Clapp v. Wallace, 221 Iowa 672, 266 N.W. 493. A general rule governing the acts of a fiduciary is that he may not, directly or indirectly, appropriate the funds to himself without the concurrence of the cestuis with full knowledge of the facts. Hoyt v. Hampe, supra. "The policy of the law is to put fiduciaries beyond the reach of temptation, by making it unprofitable for them to yield to it. To that end, an act by a fiduciary in which personal interest and duty conflict, is voidable at the mere option of the beneficiary, regardless of good faith or results." Hoyt v. Hampe, supra. When the appropriation of assets by the fiduciary is accomplished by procuring execution of mortgage or lien instruments to secure the fiduciary to his personal advantage as a creditor, the policy of law just stated has application if personal interests and duty conflict. In Garrett v. Burlington Plow Co., 70 Iowa 697, 702, 29 N.W. 395, 398, 59 Am. Rep. 461, it is said: "It is true that the courts will scan with care, and even with suspicion, such transactions, and demand that they be accompanied by the utmost good faith." Not only is the sustaining of such contracts dependent upon a showing of utmost good faith and fairness but the holding in this jurisdiction is that the burden is on the fiduciary to make the showing. Wabash R. Co. v. Iowa S.W.R. Co., supra; Hoyt v. Hampe, supra. [2] Appellant claims that, in respect to the procuring of the two instruments as security for his own personal advantage, Wells has not sustained the burden just mentioned. In our opinion the record before us is such that this contention must be sustained. Wells' position was such that his personal interests and his duties as fiduciary conflicted. He elected to serve his personal interests. It is to be noted that the security he obtained was not because of a loan of money or credit made at that time for the benefit of the corporation. Its purpose was to make certain the payment to him of debts previously created. And at the time of the execution of the mortgage and sales contract an assignment *Page 472 of the bills receivable was also made to Wells, with the result that he was ostensibly placed in position to absorb all the assets of the corporation if needed for payment of his claims. From the record it is very probable that all would be absorbed if all the claims and security of Wells were sustained. Wells was bound to know the result he was bringing about, in thus serving his personal interests, rather than preserving, as fiduciary, the assets for the creditors and stockholders. That is, it was apparent to him, with his superior knowledge of the affairs of the corporation, that ordinary general creditors, who had dealt at arms length for gain, would largely or wholly be barred from participation in the assets of the corporation. It was equally to be anticipated that, by procuring the security for his own advantage, he was barring the employees who had become creditors, not by dealing with the corporation in the ordinary manner of general creditors, but involuntarily, and as a result of a wrong they had suffered in receiving nothing for the check-off, in which wrong Wells was one of the participants. Law and equity accorded to the employees what they might realize as creditors, as a source of possible recoupment of loss at the hands of wrongdoers. But Wells, though one of the wrongdoers, asserts that he has possessed himself of liens on the assets that are superior to any equitable rights the employee-creditors may have. We will point out here some further matters found in the record, that aid in appraising such assertion. Appellant says that it affirmatively appears that fairness and good faith did not accompany the execution of the chattel mortgage, in that the note of the corporation secured by the chattel mortgage included a sum of $149.64 not owing to Wells. This $149.64 represented one-third of royalty upon coal mined by the corporation. The point made by appellant is that Wells sold to the corporation all interests he had in the lease including the one-third of the royalty. Examination of the record leads us to that conclusion. Without reviewing all the testimony, it may be said that the recitals in the conditional sales contract made by Wells are that he sold to the corporation all his right, title and interest in and to the lease. In Wood v. Scott, 55 Iowa 114,116, 7 N.W. 465, 466, we have said: "The fact that a mortgage is taken for more than is due, from a person known to be insolvent, would, of course, be a *Page 473 strong circumstance tending to impeach the mortgage, and if it was known to the mortgagee that he was taking a mortgage for more than was due, and no reasonable explanation was given for so doing, it would be difficult, if not impossible, to resist the conclusion that it was taken with a fraudulent intent." No explanation of the inclusion of the $149.64 was offered. See, also, Lombard v. Dows Co., 66 Iowa 243, 23 N.W. 649; Taylor v. Wendling, 66 Iowa 562, 24 N.W. 40. Another feature has to do with the conditional sales contract. It is the only reasonable deduction from the record that long prior to the execution of this instrument the mine property and lease had been sold by Wells to the corporation and the corporation had been placed in full possession. This is confirmed by Wells' own attitude. He claimed that $1,500 was due him for the mine and lease, and the item was entered on the books of the corporation to his credit. When the entry was made is not shown but the date was so long before the execution of the conditional sales contract that Wells claimed $150 of interest at 8% had accumulated, which was added to the $1,500 resulting in the purported sale price appearing to be $1,650 in the sale contract. In other words, Wells had sold the property and thereafter his rights had long since been those of an unsecured creditor. But into the subsequent conditional sales contract on March 13, 1936, was written the pretense of reservation by Wells of title and possession, although he had neither. Whether the corporation as a party to this contract would be bound by its terms is beside the question. The point and query is whether Wells exercised the utmost good faith and fairness. A representation that he was entitled to a reservation as security of that which he had voluntarily surrendered, unexplained, would seem to point away from utmost good faith. We are called upon to look into the acts of Wells with far greater scrutiny than we should if he sustained no other relation to this corporation than that of creditor, and we are justified in setting aside the securities he procured upon much slighter ground. Hallam v. Indianola Hotel Co., 56 Iowa 178, 9 N.W. 111. Upon the whole record we are satisfied that Wells has not carried the burden of proving that the utmost good faith accompanied the transactions in connection with the two instruments. The district court should have decreed that neither instrument created a lien. *Page 474 Our conclusion is necessarily based solely on the record as it appears. It is argued by appellee that the trial court had the opportunity of hearing the evidence first hand and of observing the witnesses, and after considering all such evidence sustained the contentions of Wells. Appellee also says that an examination of the amount of stock to which each witness would have been entitled will reveal that those whose check-offs were heaviest were the ones who stated they believed that Wells should be paid for his mine. Appellee also points out that Wells made no charges excepting for expenses in rendering service to the corporation and says that in fact Wells' incentive was to reopen the mine, furnish employment, and revive the town of Exline. If such was the situation, and if miners were in fact cooperating, and looked upon their rights to stock or reimbursement for labor contributed for stock as a mere matter of form and not of substance, it is unfortunate that the affairs of the corporation were not so conducted that these things could be made to appear in the record upon which we are compelled to determine the issues. [3] Appellee contends that the State of Iowa cannot be heard on this appeal. The reason assigned is that section 8402, in an action of this character, reserves "to the stockholders and creditors all rights now possessed by them." Appellee says that because of said reservation the stockholders and creditors were the only parties entitled to make a defense to the cross-petition, and that consequently on this appeal the State of Iowa cannot present for review any adjudication in the court below upon the issues raised solely in the cross-petition. If this be true, the question might arise whether the decree was not rendered in the absence of necessary parties defendant, as it will be noted that the cross-petition and amendment were filed prior to any adjudication upon the dissolution of the corporation, and was tried at the same time with the petition for dissolution, both matters being determined by the same decree. The question whether the State was a proper party to urge the defense, that has already been discussed, could have been raised by motion or other pleading to the answer the State filed. In order that the question be here reviewed it should have been there raised. But instead of so doing, cross-petitioner replied to the answer, joining issue thereon, and thoroughly tried the merits of the defensive matter. Under section 10972 the cross-petitioner could make defendant any person who had or claimed an interest in the controversy *Page 475 adverse to the cross-petitioner. What cross-petitioner did in substance though not in technical form, by joining issue in the manner stated, was to make plaintiff a defendant to the cross-petition, and to procure a decree that precluded the State to whatever extent the State under section 8402 may have had an interest in the litigation. It may well have been that the cross-petitioner looked upon the State as a defendant claiming a possible interest in the controversy, and sought to have an adjudication against the State to whatever extent the State had an interest. Cross-petitioner procured such adjudication precluding the State upon the question raised in its answer, and incidentally a provisional judgment was rendered against the State for one-half of the court costs including cross-petitioner's attorney fees upon the notes. That the question of plaintiff's right to appear as defendant should have been raised in the trial court finds support in Walker v. Speeder Machinery Corp., 213 Iowa 1134, 1138, 240 N.W. 725, 727, an action under the workmen's compensation laws. A judgment was rendered in the district court against the employer and his liability insurance carrier. On appeal it was claimed there was error in rendering judgment against the insurance carrier because, under the statutes, there was no authority therefor. In the opinion it is stated: "Nowhere was the question raised that the insurance carrier was not a proper party defendant. The case was tried throughout in behalf of both parties defendant without such objection. Under such a record, the question of jurisdiction over the insurance carrier cannot be raised in this court for the first time. We make no pronouncement as to whether the insurance carrier is a proper or necessary party in such a proceeding." [4] So far as the provisional judgment against the State was for attorney fees upon notes signed by this corporation it was of course erroneous, and should be expunged. The case is reversed and remanded for proceedings in conformity herewith. — Reversed and remanded. HAMILTON, C.J., and ANDERSON, PARSONS, DONEGAN, STIGER, KINTZINGER, and SAGER, JJ., concur. MITCHELL, J., dissents. *Page 476

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429959/

Vera Gage, a minor, and a student at the school for the deaf in Council Bluffs, was, on November 28, 1925, while about her duties, severely and permanently injured. Upon application to the legislature, the forty-second general assembly passed an act appropriating $10,000, to pay her for the injuries received. Chapter 307, Acts of the Forty-second General Assembly. The claimant, Thomas O. Tacy, is an attorney at law, who was employed by Vera's parents to present a claim in her behalf to the legislature. The agreement between them was for the allowance as attorney fees of one half of the amount secured. This contract was later abrogated, and the claim now involved is for the fair and reasonable value of the claimant's services. The court, upon a prior hearing, which was subsequently set aside, allowed attorney fees in the sum of $3,500. Upon a second hearing, the allowance was in the sum of $1,250. The claim is resisted by the trustee, who appeals, and is represented by the attorney-general. The act authorizes the district court of Harrison County to appoint a trustee to administer the fund, requiring him to qualify by filing a bond in the office of the clerk of the district court of Harrison County, with appropriate sureties, to protect the said fund against loss. The trustee is by said act specifically authorized, empowered, and directed to invest and reinvest the fund in state, county, or municipal bonds, or first mortgages upon Iowa farms, or otherwise, as directed by the court, so as to yield the largest rate of interest consistent with safety. The act further provides: *Page 605 "Sec. 4. Said trustees shall use the interest derived from said fund, and part of the principal, as may be approved by the district court of Harrison County, Iowa, for the education, care, and keep of the said Vera Gage, and for no other purposes, except such compensation as the said district court of Harrison County, Iowa, may allow the trustee, and except such reasonable amount as said trustee may pay out for a bond, until said sum, and the income therefrom, shall have been consumed, and said trust funds shall be exempt from taxation. "Sec. 5. The said trustee shall make annual reports of his doings to the district court of Harrison County, Iowa, and the said district court of Harrison County, Iowa, is hereby authorized to make such orders touching the investment and disbursement of said sum and the income therefrom as may be recommended by the said trustee or his successors and as may be approved by said court; provided, however, that no disbursements shall be made from said sum or the income therefrom, except for the education, care, and keep of the said Vera Gage, and for such amount as the district court of Harrison County, Iowa, may allow the trustee for his services and such reasonable amount as the trustee may expend for a bond." It will be observed that Section 5 provides that no disbursement shall be made from said fund or the income therefrom except for the education, care, and keep of Vera, compensation to the trustee, and the expense of procuring a bond. There is no doubt but that the claimant rendered meritorious services in procuring evidence and presenting the claim to the legislature. No part of the claim is for services rendered to the trustee or in the administration of the fund. It is contended by the claimant that the legislature was without power or authority to limit a court of equity strictly to the uses to be made of the fund, and that the court possesses inherent power to allow the claimant reasonable compensation for services rendered prior to the creation of the trust and securing the allowance. The general principle that a trust estate must bear the expenses of its administration, and that, where one having a common interest in the fund has, at his own expense, taken proper proceedings to preserve such fund and to maintain it for the purpose of the trust, he is entitled to reimbursement out of *Page 606 the fund, is invoked. Trustees v. Greenough, 105 U.S. 527 (26 L. Ed. 1157); Lomack Home for the Aged v. Iowa Mut. Tornado Ins.Assn., 155 Iowa 728; Strong v. Taylor, 82 Ala. 213 (2 So. 760);Graham v. Dubuque Specialty Mach. Wks., 138 Iowa 456. As to the power of the legislature, in creating the trust, to limit the uses to which it may be put, there would seem to be little, if any, doubt. The question is, rather, what construction shall be given the act? The state could not have been sued by Vera for damages, without its consent. Recognizing the justness of her claim, the legislature sought, by plain and unmistakable language, to preserve and maintain the allowance made, for her use and benefit. The conditions prescribed are a part of the terms of the trust. There is a clear distinction recognized by the authorities between expenses that may properly arise in the administration of the trust after it has been created, and expenses that may have been incurred prior thereto, but in behalf of its creation. A court of equity has power to direct the administration of a trust estate, but it could have nothing to do with the creation of a trust such as we have here by legislative enactment. The allowance by the district court was upon the theory that the court is clothed with power to allow expenses to the trustee necessarily incurred in the preservation of the estate, and that this exists, notwithstanding the fact that a strict construction of the language of the statute would result otherwise. Reasoning from this premise, the court held that the act should not be so construed as to prevent the allowance of something to claimant for the services rendered. The trouble with this reasoning is that the services were not rendered to the trustee, in the administration or for the preservation of the estate. The subject of attorney fees was discussed between the claimant and members of the legislative committee having the matter in charge. It was first suggested that the fund be placed in the custody of a guardian. There was objection to this plan. Whatever may be the power of a court of equity to allow expenses and disbursements other than those designated in the act, should occasion require, in the administration of the trust, the specific language of the act clearly restricts the expenditure by the trustee to matters therein designated. We are clear that this language cannot be so construed as to allow to the claimant attorney fees for services, however meritorious, the rendition of which antedates the trust. We *Page 607 know of no principle of law or equity that may be invoked to sustain the allowance complained of. The trust was created by the legislature for the sole use and benefit of the injured minor. This court is bound by the limitations placed upon the uses that may be made of the fund. Particularly is this true as to matters arising prior to the passage of the act. The judgment appealed from must be, and is, reversed. — Reversed. ALBERT, C.J., and FAVILLE, De GRAFF, and MORLING, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4031265/

NUMBER 13-16-00314-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ CHANTELLA MARIE ROSALES, Appellant, v. ROBERT JACOB MORALES, Appellee. ____________________________________________________________ On appeal from the 148th District Court of Nueces County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Longoria Memorandum Opinion Per Curiam Appellant, Chantella Marie Rosales, appealed a judgment entered by the 148th District Court of Nueces County, Texas. On June 17, 2016, the Clerk of this Court notified appellant that the notice of appeal failed to comply with Texas Rule of Appellate Procedure 9.5, and 25.1(d),(e). See TEX. R. APP. P. 9.5, and 25.1(d),(e). The Clerk directed appellant to file an amended notice of appeal with the district clerk's office within 30 days from the date of that notice. On August 16, 2016, the Clerk notified appellant that the defect had not been corrected and warned appellant that the appeal would be dismissed if the defect was not cured within ten days. Appellant has not responded to the notice from the Clerk or corrected the defect. An appellate court may dismiss a civil appeal for want of prosecution or failure to comply with a notice from the clerk requiring a response or other action within a specified time. See TEX. R. APP. P. 42.3(b),(c). The Court, having considered the documents on file, and appellant’s failure to correct the defect, is of the opinion that the appeal should be dismissed. See id. 37.3, 42.3(b),(c). Accordingly, the appeal is DISMISSED for want of prosecution and failure to comply with a notice from the Court. See id. PER CURIAM Delivered and filed the 2nd day of September, 2016. 2

01-03-2023

09-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429961/

The appellant, John Clark, was on March 24, 1927, indicted in three separate indictments, growing out of one seemingly continuous transaction, in the district court of Adair, Iowa. In the first indictment there was a dispute as to whether or not the appellant was charged with the crime of larceny of poultry or of larceny from a private building in the nighttime. The second *Page 561 indictment charges the appellant with the crime of larceny of a motor vehicle; and the third indictment charges the appellant with the crime of assault with intent to commit murder. Appellant pleaded guilty on February 27, 1928, to the three indictments, and the court sentenced the appellant on the first indictment as follows: "It is the judgment of this court that the defendant, John Clark, be, and he is hereby, sentenced for a term of ten years at hard labor to the Men's Reformatory at Anamosa, Iowa, unless sooner paroled as provided by law, and that he pay the costs of this prosecution." On the same day, February 27, 1928, the court sentenced the appellant on the indictment charging larceny of a motor vehicle, as follows: "It is the judgment of the court that the defendant, John Clark, be, and he is hereby, sentenced to the Men's Reformatory at Anamosa, Iowa, at hard labor for a period of ten years, unless sooner paroled as provided by law, said sentence to commence at the expiration of the sentence imposed on said defendant in this court on February 27, 1928, for the crime of larceny." On the same day the appellant was sentenced by the court on the indictment charging him with the crime of assault with intent to commit murder, as follows: "It is the judgment of this court that the defendant be and he is hereby sentenced to the Men's Reformatory at Anamosa, Iowa, at hard labor for a period of one year, unless sooner paroled, said sentence to begin at the expiration of the sentence imposed on this defendant on February 27, 1928, for the crime of larceny of a motor vehicle." On presentation of the petition, a writ of habeas corpus was granted by the trial judge. Appellant was brought before the court in obedience thereto. The appellee, C.H. Ireland, warden, filed a demurrer as follows: "(1) That the petition shows upon its face that the sentences imposed were by a court having jurisdiction of the defendant and of the offenses charged in the informations. "(2) That whether the larceny indictment is for larceny of *Page 562 poultry, for which the penalty is an indeterminate sentence of five years, or for larceny from a building in the nighttime, for which the penalty is ten years, there is no showing that the minimum of five years has expired and that the petitioner is entitled to his liberty. "(3) The petition shows upon its face that the sentences for larceny of a motor vehicle and assault with intent to commit murder were imposed to be served after the expiration of the sentence imposed for the larceny of poultry or larceny from a building in the nighttime, and there is no showing or allegation that the first sentence has expired; or if it has expired, that the second sentences have been served and the petitioner is entitled to his liberty. "(4) That under the allegation of the petition it is apparent that by no construction of the sentences have they been served, and the petitioner is not entitled to his liberty, and court in this action has no authority to determine when his sentence will expire. "(5) That the petition shows upon its face that the petitioner is not entitled to the relief asked, and is not entitled to his liberty and is not entitled to any relief whatever." [1] The first indictment, to which the appellant pleaded guilty, is as follows: "The Grand Jury of the County of Adair in the name and by the authority of the State of Iowa, accuses John Clark of the crime of larceny of poultry committed as follows: "That said John Clark on or about the 3rd day of March, in the year of our Lord one thousand nine hundred and twenty-seven, in the County and State aforesaid, did then and there in the nighttime, on said day, in a certain building of Had Sivage, located in Orient Township, Adair County, Iowa, wilfully, unlawfully and feloniously steal, take and carry away about forty-six hens and one rooster, a more particular description of which is to the Grand Jury at this time unknown, of the aggregate value of $42.00 in lawful money of the United States, being then and there of the personal property, goods and chattels of the said Had Sivage, a more particular statement of the facts constituting the offense herein charged, being to the Grand Jury at this time unknown, all contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State of Iowa." *Page 563 The indictment above set out, to which the appellant pleaded guilty, charged the appellant with the crime of larceny in the nighttime from a private building. It is clear that this offense is charged, rather than that of plain larceny of poultry. This appears clear in both the indictment and the judgment. Poultry is property, and, being admittedly worth more than $20, the requirements of Section 13008 are met, and the sentence of ten years may be imposed. We can see no error in the sentence imposed on this indictment. [2] The lower court, upon the plea of guilty by the appellant to the indictment charging the appellant with the crime of larceny of a motor vehicle, sentenced the appellant to ten years at hard labor in the men's reformatory at Anamosa, Iowa, said sentence to commence at the expiration of the sentence imposed on said appellant by the lower court on February 27, 1928, for the crime of larceny. The lower court, upon the plea of guilty by the appellant to the third indictment, charging the appellant with the crime of assault with intent to commit murder, sentenced the appellant to one year, said sentence to begin upon the expiration of the sentence imposed on the appellant on February 27, 1928, for the crime of larceny of a motor vehicle. Section 13959 of the 1931 Code of Iowa provided as follows: "If the defendant is convicted of two or more offenses, the punishment of each of which is or may be imprisonment, the judgment may be so rendered that the imprisonment upon any one shall commence at the expiration of the imprisonment upon any other of the offenses." This court, in the very recent case of State v. Van Klaveren,208 Iowa 867, passing upon the question involved in this case, said: "It will be observed that the court, by its judgment in Cause No. 6167, made the imprisonment of the defendant under the sentence imposed in said cause to begin at the expiration of the imprisonment imposed under the sentence in Cause No. 6114. This is permissible, under Section 13959 of the Code. In Cause No. 6114, he was duly punished for the charge contained in the first count thereof. In Cause No. 6167, he was punished for the crime therein charged. We are content with the action of the court in making the term of imprisonment in the latter cause begin with the expiration of the term of imprisonment in the former cause." *Page 564 It is clear that, under the Code section and the case cited, the lower court had a right to have the sentence commence at the expiration of the imprisonment upon the other offenses. The petition of the appellant, upon its face, shows that the appellant was not entitled to the relief asked, and therefore the lower court was right in sustaining the demurrer to the appellant's petition. — Affirmed. KINDIG, C.J., and EVANS, STEVENS, ALBERT, ANDERSON, KINTZINGER, and DONEGAN, JJ., concur.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429962/

I. The Riverside Garage is located in the west part of Nora Springs. It is near the Shell Rock River. Early in the year 1927, the appellant and one Duvall were partners in the operation of said garage. It is the contention of the 1. INTOXICATING appellant that he dissolved partnership with LIQUORS: Duvall about the middle of March, 1927, but that nuisance: thereafter he kept his car in said garage, and evidence: was in and about said garage, with more or less sufficiency. frequency, from that time until the 30th of April following. Mrs. Duvall is the only witness who testifies in regard to such claimed change in relationship. On the 23d day of April, 1927, the evidence tends to show, the appellant and Duvall were both at said garage in the evening, and at said time, two men drove up to said garage in a Ford coupé, and appellant and Duvall were seen to have a conversation with them, whereupon Duvall disappeared, and shortly thereafter returned with a bottle, which he delivered to said men in the presence of the appellant. On the 30th day of April, said place was under surveillance, and at said time, the appellant was seen at the said garage, at one time at the back end of the garage, *Page 1035 and later at the front. A Federal officer was in hiding on the river bank back of said garage. A number of bottles, some of which contained intoxicating liquors, were hidden at various places along said river bank. This was south of the line fence of the garage property, and 50 or 60 yards south of the garage. The appellant was not seen at this spot. Duvall, however, came to this place where one of the officers was concealed, and was arrested. The appellant was standing in front of the garage, and was arrested at approximately the same time that Duvall was. We have not attempted in this statement to review all of the evidence in the case, and it is unnecessary that we do so. The foregoing is merely a brief outline. The appellant moved for a directed verdict at the close of the State's testimony. The motion was overruled, and the appellant did not renew the same at the close of all the testimony. Under such circumstances, alleged error in the ruling on the motion for a directed verdict is deemed to have been waived. Willis v. Schertz, 188 Iowa 712. Appellant contends, however, that in the motion for a new trial he challenged the sufficiency of the evidence to sustain a verdict against him. We have held that, even though the motion for a directed verdict is not renewed at the close of all the testimony, a party may raise the question of the sufficiency of the evidence to sustain the verdict, on motion for new trial.Willis v. Schertz, supra; Warren v. Graham, 174 Iowa 162; Heimanv. Felder, 178 Iowa 740; State v. Chambers, 179 Iowa 436; Statev. Asbury, 172 Iowa 606; Nuessle v. Western Asph. Pav. Corp.,194 Iowa 616. Conceding, therefore, that the appellant, by his motion for a new trial, raised the question of the sufficiency of the evidence to support the verdict, we are of the opinion that the court did not err in overruling the motion for new trial on this ground. The facts and circumstances disclosed by the record made a case for the jury. The record is not so lacking in evidence pointing to appellant's guilt as to require the granting of a new trial, and the trial court did not err in overruling appellant's motion for a new trial upon this ground. II. It is contended that the court erred in admitting in evidence certain bottles and a can that were discovered by the officers in the rear of said garage, concealed along the river bank. These articles were properly identified, as having been seized at *Page 1036 or about the time of the arrest of the appellant and Duvall, and there was no error in admitting them in evidence. III. Error is charged in the giving of Instruction No. 9, which was as follows: "If in fact William Duvall entered a plea of guilty to the crime of maintaining a nuisance at the place in question, such fact in itself is not sufficient to warrant the conviction of the defendant Tibbits of maintaining a nuisance. In 2. INTOXICATING order to warrant you in finding the defendant LIQUORS: Tibbits guilty of the offense charged in the trial: indictment, it must be proved, beyond a instruc- reasonable doubt, that said Tibbits was an tions: accessory of said Duvall in maintaining such correct but nuisance, or aided and abetted therein; and in unelabo- the event you so find, you should find the rated. defendant guilty, as charged in the indictment." Complaint is made that the court did not amplify said instruction by defining the word "accessory," or by enlarging upon and defining the term "aided and abetted." The court might well have enlarged upon this instruction; but the instruction was not erroneous as given, and the jury could not have been misled thereby. Nor did the failure of the court, on its own motion and without request, to amplify and enlarge upon the terms used in the instruction, constitute reversible error. IV. The appellant complained of the giving of Instruction No. 8, as follows: "If in fact intoxicating liquor was found by the officers upon the premises used by William Duvall as the Riverside Garage, or immediately adjacent to such garage, then such fact is proper to be considered by you, in connection with all of the other evidence in the case, in determining whether or not said premises were so used as to constitute a nuisance, as charged in the indictment." The particular portion of such instruction against which the appellant's complaint is leveled is the clause, 3. INTOXICATING "or immediately adjacent to such garage." The LIQUORS: argument of the appellant is to the effect that nuisance: the bottles of intoxicating liquor that were location. found hidden along the river bank were shown by the evidence not to be upon the *Page 1037 tract of ground properly belonging to the Riverside Garage; in other words, the bottles were hidden beyond the lot line, on the property adjacent thereto. Appellant contends that he could not be held guilty for maintaining a liquor nuisance, even though liquor was found upon property "immediately adjacent to the garage." There is no merit in appellant's contention at this point. The indictment did not charge the appellant with maintaining a liquor nuisance in the Riverside Garage. The charge was that the appellant "did erect, establish, continue, and use a building, erection, and place, with intent and for the purpose then and there and therein to sell intoxicating liquor, contrary to law," and so forth. If the appellant was engaged in keeping intoxicating liquors unlawfully at "a place," he violated the statute, even though the "place" where such liquors were kept was outside the legal boundary of the property which the appellant could lawfully occupy. It was immaterial that the liquor was not found in the garage itself, or within the legal boundary lines of the property upon which the garage was situated. The instruction of the court, under the indictment and the evidence in the case, was proper. The statute is broad and comprehensive in its terms. A liquor nuisance may be maintained outside of any building or erection. The statute uses the word "place," and one may be guilty of liquor nuisance, under the statute, by maintaining a "place" where intoxicating liquors are kept, even though there is no building. State v. Johnson, 200 Iowa 324; State v. Elliott,198 Iowa 71; State v. Shackleford, 198 Iowa 752; State v. Japone,202 Iowa 450. There was no error in the giving of the instruction, under the record in this case. The rules of law applicable to cases of this character have been frequently announced by this court. The case presented a fact question, which was properly submitted to the jury, and we cannot hold, as a matter of law, that there is not sufficient evidence to sustain the verdict. We find no reversible error. The judgment of the district court must be, and it is, — Affirmed. STEVENS, C.J., and EVANS, ALBERT, MORLING, and WAGNER, JJ., concur. *Page 1038

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429963/

The prayer of plaintiff in her petition is that the defendant "be ordered to reconvey said premises to the 1. DEEDS: plaintiff." In brief, the plaintiff asks for the validity: cancellation of the deed in question. There was duty to set no prayer for reformation. There was no aside competent evidence which warrants the finding fraud- made by the trial court and embodied in the induced decree entered, reserving to the grantor a life deed. estate. The plaintiff is entitled to cancellation if she is entitled to anything. We first turn to the facts. At the time the deed was executed, the appellant, Ida P. Guenther, was a resident of Des Moines, a widow about 69 years of age, and with no children. She had spent practically 40 years of her life at hard labor on a 6-acre truck garden in East Des Moines. The first 30 years of her life she had lived in Germany, which was the country of her nativity. Her education was quite limited, and prior to the death of her husband, she had little, if any, business experience. The appellee, Neva K. Kurtz, is her niece, with whom she had a slight personal acquaintance. In fact, she had not seen the niece since the latter was a little girl. At the time of the transaction in question, the niece, who was employed as a domestic in the home of a Mrs. McDonald, was 22 years old. The appellee's father, Oswald Kurtz, was the brother of appellant. *Page 734 He came to Des Moines at the special instance and request of his daughter Neva, and for the apparent purpose of consummating the arrangement which was subsequently evidenced by the execution of certain deeds, including the one in suit. It further appears that the appellant was the legal title holder, under the will of her husband, to three different parcels of real estate situated in Des Moines. One of these parcels, conveyed in fee to appellee, is a residence property locally known as Lot 32, Drake University Addition to the city of Des Moines, and valued at between three and four thousand dollars. On the 27th day of March, 1922, the brother, accompanied by his daughter Neva, drove to the residence of the appellant, and took the appellant to the office of a Mr. Lowenberg in the city of Des Moines. This was not done at the request of Mrs. Guenther. At that time and place, it was represented to the appellant by her brother that it was necessary for her to sign certain papers, in order that she could avoid trouble which a sister-in-law was attempting to cause her by commencing a contest of the will of appellant's deceased husband. It further appears that at that time and place there were presented to the appellant certain instruments in writing, of which she had no previous knowledge, and concerning which no explanation was made, except that she should sign same, to avoid future trouble. These instruments were not read to her, nor were the true contents thereof explained. She did sign, and a notary public, who did not know her, and who could not subsequently identify her, took her acknowledgments. The appellant did not learn their import until a considerable time later, when she went to the office of the county treasurer in 1925, to pay her taxes. Forthwith, she demanded the return of the papers she had signed. She had then learned that two of her properties had been conveyed by warranty deed to her brother, who had engineered the deal at Lowenberg's office, and that the third property had been conveyed to appellee. In passing, it may be said that the brother did reconvey to the appellant the two parcels of real estate which, on the mentioned occasion, had been deeded by the appellant to him. The record is silent as to any further connection with the brother, as he did not appear as a witness upon the trial of this cause. The appellee, Neva, refused to comply with the demand of *Page 735 the appellant, and claims that the deed constituted a gift to her. In the light of the record facts, we have no hesitation in holding that the contention of the appellee is not sustained, and that the deeds were fraudulent in their inception, and were without consideration. The deed to Neva recited, as a consideration, "the sum of valuable consideration and one dollars, in hand paid by Neva K. Kurtz." The appellant denies that even the sum 2. DEEDS: of one dollar was received by her. This deed validity: purports to be founded on a valuable fraud: consideration, and it may be impeached by impeaching showing that no consideration was paid. The recited relationship of aunt and niece between the conside- grantor and the grantee is not sufficient to ration. constitute a valuable consideration. Deloach v.Turner, 7 Rich. (S.C.) 143; Buford's Heirs v. Mc Kee, 1 Dana (Ky.) 107; Hayes v. Kershow, 1 Sandf. Ch. (N.Y.) 258. Furthermore, the consideration recited in the deed is grossly inadequate; and when this fact is coupled with the mental and physical impairment of the grantor, as is shown in the instant case, equity will not permit the deed to stand. This bears on the question of fraud. See Casaday v. Bickford, 183 Iowa 973;Galbraith v. McLaughlin, 91 Iowa 399; Herron v. Herron, 71 Iowa 428. The evidence clearly discloses that the instruments were signed by the grantor through a groundless fear on her part that she was about to be involved in litigation and that the possibility existed that she would lose her property. A representation of a fact as existing, which does not exist, whereby a deed or contract is procured, is an indicium of fraud. Bruguier v. Pepin,106 Iowa 432; Norton v. Norton, 74 Iowa 161. It must also be remembered that the grantor had no independent advice in the matter. Her attorney was not consulted, and it would appear that the grantee and her aids saw to it that no independent advice or counsel should be secured. The grantor was as inexperienced in business matters as a child. She was unable to speak or understand the English language with ease. It was quite natural for her, in her then condition, to rely upon her brother and her niece, when she was told that steps would be taken by a certain relative to take her property from her. Implicit confidence could be expected from this old *Page 736 lady under such circumstances. Whether we view the transaction as within the zone of fraud or undue influence, it makes little difference. Sufficient that, from the circumstances, imposition or undue influence will be inferred. Allore v. Jewell,94 U.S. 506; Jordan v. Cathcart, 126 Iowa 600. It cannot be said that the grantee Neva Kurtz was entitled to the bounty of the appellant. She was almost a total stranger to the appellant. It is also shown that the appellant had not been in personal association with her brother, Oswald Kurtz, the grantee in the other two deeds. The appellant did not know where her brother lived. He was, in fact, a resident of St. Louis, Missouri. He had made a trip to Des Moines for a special purpose, and, his plan having been completed within his visit of two days, he returned to his legal domicile. The entire transaction is undeniably shown to have been improvident on the part of the appellant. She received nothing, and surrendered title to all of the real estate of which she was then seized. It was the very property that her deceased husband had left her for her support and comfort in old age. The instruments were the deeds of an aged and infirm person, executed to one who was in a position to exercise influence over her, and who, in fact, misrepresented not only suggestio falsi, but suppressio veri. After the execution of the deeds in question, the appellant-grantor remained in possession of said real estate at all times subsequent thereto, and exercised all the incidents of ownership. She collected rents, made repairs, paid taxes, and met with no objection from either of the grantees in the deeds. We have said enough. This is a case wherein equity will grant the relief prayed. The deed in question is subject to cancellation. The grantor is entitled to have restored to her the fee. The decree entered by the trial court is — Reversed. EVANS, C.J., and ALBERT, MORLING, and WAGNER, JJ., concur. *Page 737

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429964/

This is the third submission of this cause in this court. The opinion in the original submission is found in 213 N.W. 442, and the supplemental opinion on rehearing is found in 217 N.W. 426. Appellee's action is for compensation for services rendered to the appellant in securing contracts for the construction of a number of buildings in the city of Des Moines. The appellee's petition is in three counts. One of said counts seeks recovery on a written contract between the parties, executed March 1, 1922, providing for the payment of a commission to the appellee for services in developing and assisting in financing the construction of income-bearing properties; and appellee alleges that he performed services thereunder in connection with the property known as the Commodore Apartments. Appellee avers that, on or about September 15, 1922, the appellant and appellee entered into an oral contract respecting the amount that should be paid to appellee under the contract of March 1st for his services connected with the Commodore Apartments, and alleges that appellant agreed to purchase and deliver to him for his said services common stock of the Commodore Building Company of the par value of $6,250 and preferred stock of the Commodore Building Company of the par value of $20,000, and alleges that appellant has failed and refused to purchase and deliver said stock to appellee; and damages are prayed therefor in the sum of $26,250. *Page 461 In another count, the appellee sued in quantum meruit for services performed in connection with obtaining the contract for the construction of the Commodore Apartments. This count was not submitted to the jury. In another count, the appellee claimed that he had rendered services under the contract of March 1, 1922, and obtained for the appellant a contract for the construction of three apartment houses in the city of Des Moines, known as The Oaks, The Birches, and the Elmwood; also a contract for the construction of a property known as the Bolton Apartments, and another property known as the Frederick. Appellee also set up a contract dated June 22, 1922, alleging the same to be supplementary to the contract of March 1, 1922, and referring to the last three described properties. Appellee claimed that there was a balance due under said contracts of $6,700. The appellant in its answer admitted the execution of the contract of March 1, 1922. By way of counterclaim, appellant avers that the appellee had breached said contract of March 1, 1922, by failing to give his entire time to the business of appellant and by diverting business to others, and sought damages therefor in the sum of $5,000. This counterclaim was withdrawn by the court. Appellant also pleaded that it had paid appellee $12,161.01, and alleged appellee's breach of contract, and sought recovery of said sum by way of counterclaim. This counterclaim was withdrawn from the consideration of the jury. Appellant further pleaded that, on or about the 25th day of October, 1922, it entered into a written agreement with the appellee, with supplement thereto, by which the latter agreed to buy from the appellant 62 1/2 shares of the common stock of the Commodore Building Company at par, and prayed judgment for $6,250 under said contract. Appellant's motion for a directed verdict was overruled. I. We first consider the question with regard to the 62 1/2 1. EVIDENCE: shares of stock for which appellee sought parol as recovery. Appellee relied on an alleged oral affecting agreement of September 15, 1922, under which he writings: claims that appellant agreed to buy and deliver similar but said stock to appellee for his compensation for independent work in connection with the Commodore contracts. Apartments. It *Page 462 appeared, however, that, on October 25, 1922, the parties entered into a written contract, which, among other things, provides: "The company does hereby agree to sell to each of the parties of the second part, sixty-two and one-half (62 1/2) shares of the common stock of said Commodore Building Company at par, and guarantees that there will be no claims against said company or liens against said premises including building, except those which are herein mentioned. "Each of the parties of the second part does hereby agree to purchase sixty-two and one-half (62 1/2) shares of the common stock of said Commodore Building Company from the party of the first part at par, and pay for the same at such time as the building has been delivered to the Commodore Building Company and upon the delivery of said stock." Appellant is the "company" referred to in said contract, and appellee is one of the "parties of the second part." Appellant contends that the court erred in admitting the evidence of the appellee of the alleged parol agreement of September 15, 1922, the claim being that the written agreement of October 25, 1922, alone must govern. Appellant invokes the familiar rule that, between the parties, parol evidence of a prior oral agreement is not admissible to vary the terms of a written agreement. The oral testimony in regard to the alleged parol contract of September 15, 1922, is as follows: "Q. What was said between you and Mr. Fleisher about this common stock of the Commodore Building Company? (Objected to as incompetent, tending to vary the terms of the written instrument by parol, in the contract, the execution of which is admitted in the pleadings, and the $6,250 which this plaintiff offered to buy is merged in the contract. Overruled. Excepted to.) A. Mr Fleisher said `all right' to my receiving $20,000 of the preferred stock and one fourth of the common stock; he agreed to pay for that and give that to me as part of my commission. (Move to strike the statement `He agreed to pay for that,' as a conclusion of the witness. Sustained. Excepted to.) "Q. What did you say to Mr. Fleisher about his paying for the $20,000 of preferred stock and the $6,250 of common *Page 463 stock and delivering it to you as a commission on the Commodore Apartments? A. I accepted it." It is unnecessary to cite authorities sustaining the familiar rule that parol evidence is not admissible between the parties to change or vary the terms of a written instrument. We have, however, recognized the rule that, where the parol evidence tends to show an independent oral contract which is not a contradiction, modification, or qualification of the written contract, evidence of the parol contract is admissible. Ingram v.Dailey, 123 Iowa 188; Hall v. Barnard, 138 Iowa 523; Sieberts v.Spangler, 140 Iowa 236. The question at this point is whether the alleged oral contract is so independent of the written contract that evidence in regard to it is admissible. Both contracts deal with 62 1/2 shares of common stock in the Commodore Building Company. Both contracts refer to a transfer of that number of shares of stock from the appellant to the appellee, but there is a distinct variance between the two agreements as to the payment for said shares. While both contracts refer to the same number of shares of stock, it by no means follows that they refer to and deal with the same shares. It is the contention of the appellee that by the oral contract of September 15, 1922, he was to receive 62 1/2 shares of the common stock of the Commodore Building Company as a part of his commission. The written contract of October 25, 1922, requires the appellee to purchase and pay for 62 1/2 shares of said stock. The oral contract required said number of shares of stock to be delivered to the appellee in part payment of his services. The written contract required the appellee to purchase and pay for the same number of shares of stock. 2. EVIDENCE: This latter required payment in money. The parol as written contract is complete in itself, and the affecting attempt to show that the payment for the said writings: shares of stock therein provided for was to be parol to by services or in some other way than as contradict expressed in said written instrument — that is, cash by an oral agreement — is, we think, clearly in payment. contravention of the parol-evidence rule.Witthauer v. Wheeler, 172 Iowa 225; Blackledge v. Puncture ProofRetread Co., 190 Iowa 1303; Edwards v. Wagner, 191 Iowa 822;Jones v. Sargent, 193 Iowa 1256; Griffey v. Lubben, 19 Iowa 465;Cady v. Lyman, 198 Iowa 661. *Page 464 The appellee was entitled to go to the jury on the question of his right to receive 62 1/2 shares of stock from the appellant under his oral contract of September 15, 1922, as part payment of his commission, and the appellant was entitled to recover upon its counterclaim under the written contract of October 25, 1925, for the 62 1/2 shares of stock which the appellee agreed by said contract to purchase, and for which he has not paid. II. In one count of his petition the appellee claimed that, on or about the 15th day of September, 1922, he entered into an oral contract with the appellant, determining the amount of commission the appellee was to receive for his services in 3. APPEAL AND developing and assisting in financing and ERROR: obtaining the contract for construction of the review: Commodore Apartments, and that, under said oral scope and contract, the appellant agreed to deliver to the extent: appellee for the services so performed 62 1/2 fatally shares of common stock, and also preferred stock belated of the Commodore Building Company of the par objection. value of $20,000. The appellee contends that the preferred stock of the par value of $20,000 was never turned over, and he seeks to recover the value thereof, which he alleges to be $20,000. It is argued by appellant that the court erred in admitting testimony of certain witnesses whose evidence tended to show the value of said preferred stock in the Commodore Building Company. It is contended that the evidence of said witnesses with regard to the value of the stock refers to a time too remote from the time when appellee contends the stock was to be delivered to him to fix any proper measure of value. It does not appear that any objection of this kind was urged against the evidence of these witnesses. The motion for a directed verdict was general in its terms, and to the effect that "there is no competent evidence of the value of the stock which plaintiff claims was to be delivered to him as compensation." No motion to strike the testimony of the witnesses was made. The appellant offered no evidence whatever with regard to the value of the stock. The appellee testified in regard to the value of the stock. The evidence of value is meager, but there is no such showing of error in the admission of testimony on the question as would warrant interference on our part. There was sufficient evidence of the value of the stock to carry the question to the jury. III. Appellant contends that the trial court erred in refusing *Page 465 to allow appellant to show the cost of the construction of the Commodore building. The assignment of error on this question is indefinite and uncertain. Monona County v. Gray, 200 Iowa 1133;Goben v. McGee (Iowa), 196 N.W. 1005 (not officially reported). We fail to find any prejudicial error pointed out in excluding the offered testimony as to the alleged cost of the Commodore property. It is contended that the court erred in giving Instruction No. 16 in regard to such subject-matter. This will be considered later. IV. Appellant contends that the court erred in overruling appellant's motion for a directed verdict, made at the close of all of the testimony. Appellant contends that appellee's evidence in regard to the alleged oral agreement of September 15, 1922, by which he was to get $20,000 of the preferred stock of the Commodore Building Company, was so indefinite, uncertain, conflicting, and inconsistent that the court should not have submitted appellee's claim to the jury. We think that the appellee made a case for the jury on this question, under the entire record. The appellee's evidence is not so utterly wanting in credibility, nor so wholly inconsistent, as to warrant the court in holding, as a matter of law, that it did not present a question for the determination of the jury. The written contract of March 1, 1922, contained the following provision: "Further, the party of the second part [appellee] agrees to devote his whole time to the business of the party of the first part [appellant] and to hold himself at all time subject to the disposition and instructions of the party of the first part [appellant] as it shall apply to the intent of this contract." One ground of appellant's motion to withdraw appellee's claim from the consideration of the jury was as follows: "The undisputed evidence shows that the plaintiff was, during the time when the contract of March 1, 1922, was in force, devoting part of the time to other business of his town, and is therefore not entitled to recover any compensation, even if it had been previously agreed upon." Appellant now argues that the evidence tends to show that the appellee had breached the contract, in that he had not devoted *Page 466 his whole time to the business of the appellant, and therefore had been guilty of fraudulent conduct towards his employer, and was not entitled to recover any compensation. There was evidence from which the jury might have found that the outside work performed by appellee was done with the knowledge and consent of the appellant. Under the entire record, we do not think the court erred in overruling the appellant's motion upon this ground. The court submitted the question to the jury, and instructed them as follows: "That the burden of proof is upon the plaintiff to show by a preponderance of the evidence that he did devote his entire time and energy to developing, assisting, and financing the buildings for construction by the defendant, and that he did devote his entire time and energy to the defendant's business. And if he has failed so to do, then plaintiff would not be entitled to recover any balance which might have been due under the terms of said contracts Exhibits A and B." There was no reversible error at this point. V. The appellant contends that the court erred in not giving any instruction on the quantum meruit count contained in plaintiff's petition. The court did not in specific terms withdraw this count from the consideration of 4. TRIAL: the jury, but the court did not submit this instruc- count in any way to the jury, either in a tions: statement of the issues or otherwise. This was inferential as effectual a withdrawing of the count from the withdrawal consideration of the jury as though it had been of count. done in express terms. There was no error at this point of which appellant can complain. Instruction No. 10, complained of by appellant, could not have been misunderstood by the jury as referring to the quantum meruit count. By agreement, two cases had been consolidated, and, technically, the numbering of the counts in the combined petitions was not followed by the court in its instructions; but neither the jury nor counsel could have been misled by the court's statement of the counts that were in issue and which were submitted to the jury. It cannot be successfully contended that the court submitted the quantum meruit count to the jury, under any reasonable construction of the instructions. VI. Appellant challenges Instruction No. 11. The exceptions *Page 467 to this instruction were upon the grounds: (1) "That it involves an assumption that the execution of the contract between the Commodore Building Company and the Fleisher 5. TRIAL: Construction Company constituted a compliance instruc- with the contract which plaintiff claims was tions: entered into, fixing his compensation;" and (2) construction that the court erred "in failing in said as a whole. instruction or elsewhere to define to the jury what would constitute a performance on the part of the plaintiff of the contract which he alleges was made, relating to his compensation." It is a well established rule that the instructions are to be read and construed as a whole, and when they are so read, we do not think that there was error in giving Instruction No. 11 that would warrant a reversal of the case. In said instruction the jury were told that the plaintiff claimed that he had duly performed all of the terms and conditions of the contract on his part. The court did not tell the jury in said instruction that the execution of the contract between the Commodore Building Company and the Fleisher Construction Company constituted a full compliance with the contract between the appellant and the appellee. There was no dispute in the evidence in regard to the execution of said contract. In other instructions, the court specifically told the jury that the burden of proof was on the appellee to show by a preponderance of the evidence that he had complied with the contract and had fully performed and rendered the services required of him by said contract. We do not think Instruction No. 11 is subject to the exceptions urged against it, especially when said instruction is considered, as it must be, in connection with the other instructions in the case. VII. Appellant complains of the giving of Instruction No. 13. There was no exception taken to said instruction before the lower court, and therefore we cannot consider it on appeal. Peterson v.McManus, 187 Iowa 522; In re Estate of Champion, 190 Iowa 451. VIII. Appellant predicates error upon the giving of Instruction No. 14. This instruction had to do with the claim of mutual abandonment of the written contract between the appellee and the appellant. The appellee contended that the sums due him for which recovery was sought had become due him prior to the time of such claimed abandonment. In said Instruction 14 *Page 468 the court told the jury that the burden of proof rested on the appellee to establish by a preponderance of the evidence that there was an abandonment of said contract, and further told the jury that, if they found that the contract was in fact abandoned, and that the appellee failed to devote his whole time and energy to the business of the appellant, and that such failure occurred after the contract had been abandoned, then such failure on the part of the appellee to devote his whole time and energy to the business of the appellant would not defeat his right of recovery. We do not think the instruction is vulnerable to the only exceptions that were urged to it. There was evidence of a mutual abandonment of the contract sufficient to carry that question to the jury, and the exceptions urged to the instruction were not well taken. It may well be that the instructions might properly have been more specific in regard to appellee's duty to complete his contract with respect to the properties involved, even if he was not required to secure new business; but no instruction of this kind was asked by the appellant, and no exception of this character is lodged against the instruction that was given. We cannot predicate reversible error upon the giving of Instruction 14 in the form in which it was. IX. Instruction No. 15 is as follows: "Plaintiff further claims that, if there was any failure on his part to devote his whole time and energy to the business of the defendant, the same was consented to by the defendant prior to the time of such failure by the plaintiff, and that the defendant knowingly agreed thereto, and waived any right on the part of the defendant that he might have, requiring the plaintiff to devote his whole time and energy to the business of the defendant by reason of the knowledge on the part of the defendant and his consenting thereto. "The burden is upon the plaintiff to prove by a preponderance of the evidence such waiver on the part of the defendant, if any there was; and before you can find that there was such waiver on the part of the defendant, it must clearly appear that the defendant was in possession of all the material facts upon which waiver is based, and with a full knowledge of such facts he consented to the failure on the part of the plaintiff to devote his whole time and energy to the defendant's business, and thathe *Page 469 knowingly omitted to inform plaintiff, so that plaintiff mighthave taken the precaution for his own protection, and have actedin some manner otherwise than he did. If you find that there was such waiver on the part of the defendant, then the failure of the plaintiff to devote his whole time and energy to the defendant's business would not defeat plaintiff's right to recover in this action." Appellant's attack is particularly directed against the clause of the instruction which we have italicized above. Appellant contends that by said clause of the instruction the court placed the burden upon the appellant to advise appellee 6. CONTRACTS: to desist from breach of contract, and that the breach: effect of the instruction is that there would be non-waiver. waiver by appellant if he did so omit to inform the appellee. If the construction contended for by the appellant is correct, the instruction was clearly erroneous. It is not the law that one can be held to have waived the performance of a contract by another where he knows that the other party has breached the contract and omits to inform him of his knowledge of such breach, so that the opposite party may take precaution for his own protection. In other words, one does not waive a breach of contract on the part of another party by failure to notify such party that he has knowledge of such breach. As bearing on this question, see Richardson v. Hoyt, 60 Iowa 68. We think the instruction as a whole is not susceptible of the construction contended for by the appellant, and that the jury were not misled thereby. The instruction is not as clear, lucid, and concise as the court might well have made it, but we think a fair interpretation of the instruction, when read as a whole, does not leave it justly open to the criticism contended for by the appellant that it placed too heavy a burden upon it. X. Complaint is made of the giving of Instruction No. 16, in 7. TRIAL: which the court told the jury that, if they instruc- found appellee entitled to recover, the amount tions: of his recovery would be: (1) The fair and inconse- reasonable market value of the $20,000 of quential preferred stock in the Commodore Building error. Company; and (2) the fair and reasonable value of the 62 1/2 shares of common stock in the Commodore *Page 470 Building Company. In connection with the last item, the court told the jury as follows: "The fair and reasonable value of said 62 1/2 shares of common stock is a fact to be determined by you, and may be arrived at by determining the market value of the property represented by such stock, and earning capacity thereof, together with the amount of stock and other capitalization issued against the same, and the incumbrance thereon, together with all other facts in evidence and all circumstances bearing upon the question of value." Appellant argues, first, that the court erred in referring to the recovery as being on "Count 2 of the petition," and that this referred to the quantum meruit count. As we have previously pointed out, the court in no way submitted the quantum meruit count, and it was perfectly obvious that the "Count 2" which the court set out in his instructions and referred to all the way through was not the quantum meruit count. Even though it was numbered otherwise in the consolidated cases, the court did not err by giving it a different number and submitting it as such. The jury could not have been misled. As before pointed out, there was some evidence in the record in regard to the value of the property represented by the stock. We think the instruction is not vulnerable to the criticism urged against it. XI. Instruction No. 17 pertains to the 62 1/2 shares of common stock of the Commodore Building Company. The court instructed the jury that the contract of October 25, 1922, and supplement thereto, were admitted by both parties, and told the jury that: "Under and by virtue of the terms of said contract, defendant would be entitled to recover the sum of $6,250, unless you find that said common stock was to have been purchased by the defendant and delivered to the plaintiff by the defendant as a part of the commission for the services rendered by the plaintiff in developing and assisting in financing and securing the contract for said Commodore Apartments. So that, if you find, under these instructions, that the 62 1/2 shares of common stock of the Commodore Building Company was to be received by the plaintiff from the defendant as compensation for services *Page 471 rendered in connection with the Commodore Apartments, and the defendant had agreed to pay for the said common stock and deliver the same to the plaintiff, then defendant would not be entitled to recover against the plaintiff on his counterclaim, and you need inquire no further, but find for the plaintiff on said counterclaim. If, however, you find that plaintiff has failed to prove that said 62 1/2 shares of common stock was to be purchased by the defendant and delivered to plaintiff, then defendant would be entitled to recover on his counterclaim against plaintiff in the sum of $6,250, with interest thereon at the rate of 6 per cent from the 9th day of August, 1923." The effect of this instruction is to tell the jury that the appellant was entitled to recover under the written contract of October 25, 1922, and the supplement thereto, unless the jury found that the appellee had proven that the 8. APPEAL AND contract in regard to said 62 1/2 shares of ERROR: stock was as claimed by the appellee. The effect modification of this instruction was to tell the jury that on appeal: the written contract between the parties in deducting regard to the subject-matter of the 62 1/2 excess shares of stock was binding upon the parties verdict. unless the appellee had proven by parol that the contract was other and different than as recited in said written instrument. As we have previously pointed out, the court erred in admitting parol proof to change and vary the terms of the written instrument, and necessarily erred in submitting the question to the jury as to whether or not the written instrument had been so changed by the proof of parol contract that necessarily contradicted, varied, and changed its terms. The undisputed evidence showed the existence of the written contract of October 25, 1922, and also showed that the appellee had failed to pay for the said 62 1/2 shares of stock at the par value thereof. The court erred in giving Instruction No. 17, and in failing to instruct the jury peremptorily that, under the undisputed record in the case, the appellant was entitled to recover on its counterclaim for the par value of the said 62 1/2 shares of stock, which was $6,250. For the reasons pointed out, the verdict of the jury is excessive in the amount of $6,250, with interest thereon at the rate of 6 per cent from the 9th day of August, 1923. The appellee has heretofore filed a remittitur in the sum of *Page 472 $6,250, with 6 per cent interest thereon from August 9, 1923, to the date of filing said remittitur. If the appellee now elects to allow said remittitur to stand, with 6 per cent interest to the date of the filing of this opinion, then the judgment appealed from, as so reduced, will be affirmed; otherwise reversed. The costs in this court will be taxed three fourths to appellant and one fourth to appellee. — Affirmed on condition. ALBERT, C.J., and STEVENS, FAVILLE, MORLING, and KINDIG, JJ., concur. EVANS, J., takes no part. WAGNER, J., dissents.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429975/

The facts are stipulated. Under date of January 14, 1922, Peter Hopley signed and acknowledged a deed to defendant Wayland A. Hopley of a tract of land, "subject to grantee herein, his heirs or assigns, paying to Wayland A. Hopley, trustee, for the benefit of Eda May Hedges, the sum of $25,000 within ten years after the death of said grantor herein, with interest thereon at five per cent per annum from and after the March first following the death of said grantor herein, payable annually on March first of each year to said Eda May Hedges, during her natural life and at her death the said principal sum of $25,000 shall go to her surviving brothers and sisters, share and share alike, said Wayland A. Hopley being hereby named as the trustee of said trust fund * * *. Said grantee, his heirs or assigns having the right to pay said principal sum to himself as such trustee at any time before said ten-year period * * *. Should said Wayland A. Hopley not survive said Eda May Hedges then at his death the court shall appoint his successor who shall administer said trust fund and pay the net income therefrom to said Eda May Hedges during her natural life as above provided, and at her death said principal of said trust fund to go to her surviving brothers and sisters * * *." The deed was "delivered * * * to James G. Whitley to be held by him in escrow and to be delivered by the said James G. Whitley to the said Wayland A. Hopley upon the death of the said Peter Hopley * * * said deed was delivered by said James G. Whitley to said Wayland A. Hopley shortly after the death of Peter Hopley [which occurred March 9, 1926], who accepted said deed." The deed was recorded May 22, 1926. Before the date of the deed, two judgments, and after its date (but in grantor's lifetime), a third judgment, were recovered by plaintiff against Eda (May) Hedges and Clarence Hedges in large amounts. Eda Hedges was insolvent for more than five years prior to the trial in May, 1928. Wayland A. *Page 274 Hopley on May 26, 1926, purchased another judgment against Eda Hedges. The stipulation is: "That the said Wayland Hopley claimed the right to retain the sum of $1,250 per annum until said judgment was satisfied; that said Wayland Hopley was notified on the ninth day of February, 1928, by Eda Hedges delivering to him a certain document of her intention not to accept the annuities created in her behalf by said deed * * * that this renunciation * * * is the first notice that Wayland Hopley had from his sister Eda Hedges in reference to her intention regarding said annuity, and that he never paid her any sum or sums under said annuity * * *; that the said Eda Hedges had never assigned or taken any act in relation to said annuity * * *; that, in his capacity as trustee, if such capacity now exists, he [Wayland Hopley] has received no sum or sums of money under the provisions of said deed, either as annuity or principal." Eda Hedges, on February 9, 1928, executed an instrument by which she did "finally renounce and reject any and all benefits, interest, gifts and annuities which do, may or might accrue to" her under the deed in question, "and all provisions of said deed * * * whether the same merely constitute a contract obligation in my behalf or as the beneficiary of a trust, either actual, constructive, resultant or implied." Original notice in the present suit, accompanied by copy of the petition, was served on Wayland A. Hopley and Eda Hedges July 7 and 9, 1926. Plaintiff's argument is: "The so-called renunciation was not a renunciation in the sense that renunciation is usually interpreted, because the grantee had accepted the deed, which by its terms bound him to pay Eda Hedges a certain annual income. His acceptance of the grant with the reservation immediately vested in Eda Hedges a definite, certain, ascertainable property. This being true, the legal effect of the renunciation was a release or waiver in favor of the reversioners, the other heirs of Peter Hopley, who, under the deed, took upon the death of Eda Hedges. * * * the reservation in the deed in favor of Eda Hedges created in her an equitable interest in the land. It was a burden upon the land, attached to it an equitable mortgage, which the grantee, Wayland Hopley, assumed to pay when he accepted the deed. * * * *Page 275 An absolute interest was established in favor of Eda Hedges, and under the equitable proceedings, her right and interest therein are reached by the lien therein established. * * * The $1,250 per year was intended by Peter Hopley, the grantor, to be a provision against want to his daughter, Eda. It was for her maintenance and support, and she acquired a mortgage or an equitable interest in this land when it was accepted by the grantee. * * * Eda Hedges had a property, a right, and interest that was accessible to the lien, under the statute, in equitable proceedings. If it was reached, then her renunciation does not avail her, nor does it avail the reversioners anything." "Acceptance vested in Mrs. Hedges at once the interest payable to her. * * * She can waive, release, or renounce, as she desires, and extinguish her right to the property, but not to the detriment of a creditor who had, under equitable proceedings, instituted by way of Section 11815 of the Code of 1927, fastened upon this property an equitable lien before she renounced. * * * a covenant in a deed of a grantee is of much deeper legal import than any legacy in a will, because not a legatee is present in this case to make an acceptance, but the grantee of the deed did accept the land, and thereby accepted for the beneficiary. * * * It took no express acceptance by Mrs. Hedges to make it good." The provision made in the deed in favor of the judgment debtor was, as to her, a gift. We need not pause to discuss the question of who would take the gift in the event of renunciation by the donee. A gift, however created, whether by will or inter vivos, is wholly inoperative unless accepted by the donee. Cases post; 28 Corpus Juris 643. A creditor of the donee has no such interest, legal or equitable, as to enable him to control the right of the donee to refuse acceptance or renounce the gift.Funk v. Grulke, 204 Iowa 314; Schoonover v. Osborne, 193 Iowa 474; Robertson v. Schard, 142 Iowa 500; Piekenbrock Sons v.Knoer, 136 Iowa 534, 540; In re Estate of Stone, 132 Iowa 136. While acceptance of a gift which is beneficial to the donee and which imposes no burden upon him may be presumed (Kneeland v.Cowperthwaite, 138 Iowa 193; In re Estate of Bell, 150 Iowa 725; 28 Corpus Juris 672), the presumption prevails only in the absence of evidence of renunciation. Mahoney v. Martin,72 Kan. 406 (83 P. 982). The donee may, notwithstanding the presumption, renounce the gift, and thereby non-acceptance *Page 276 is proved. Gray v. Nelson, 77 Iowa 63, and cases above cited. The gift in the present case would, in view of the judgments against the donee, be of at least doubtful benefit to her. There might be various reasons (whether morally good or bad is legally immaterial), why she should prefer that its benefits go to her brothers and sisters, or other heirs of her father, rather than to her creditors. It is not argued that the delay in renouncing is such as to be evidence of acceptance. The record does not set out the original answer in this suit of the judgment debtor. By her substituted answer she pleads the renunciation. The renunciation is fully established. The grantee in the deed, while by its acceptance he bound himself to pay the $25,000 and the interest to whoever would, under the law, be entitled to it, could not, by his agreement to pay it, bind the judgment debtor to an acceptance of the obligation as one to pay her, or bind her to acceptance of it as a gift to her. — Affirmed. ALBERT, C.J., and EVANS, FAVILLE, KINDIG, WAGNER, and GRIMM, JJ., concur. STEVENS, J., not participating. De GRAFF, J., dissents.

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429832/

Prior to the death of A.J. Clarke, the defendant James E. Remley had been the guardian of his property for several years and as such guardian borrowed money from the Niles Watters Savings Bank of Anamosa, Iowa, for the benefit of his ward's estate. The bank closed in January, 1932, and L.A. Andrew, superintendent of banking, was appointed receiver and B.E. Rhinehart of Anamosa was appointed attorney for the receivership. At the time the bank closed, the guardianship estate owed the bank about $750, which indebtedness was represented by two notes. Mr. Clarke, a resident of Anamosa, passed away in November 1932, and Mr. Remley, on application of the heirs, was appointed administrator of his estate on November 19, 1932. He published notice of his appointment for four consecutive weeks in a weekly newspaper of Anamosa, the first publication being on December 1, 1932. On July 3, 1934, Mr. Remley filed his guardian's final report and, pursuant to an order of court, gave notice of the hearing on said report by posting the notice in three public places. The report was approved and the guardian authorized to turn the assets of the guardianship estate over to the administrator of the estate, which was done. The assets consisted of a note in the sum of $1,650 secured by a first real estate mortgage and a small amount of cash. Early in 1933, the owner of the mortgaged real estate delivered a deed in blank to Mr. Remley. At the time Mr. Remley published his notice of appointment as administrator in December 1932, W.J. Roberts was examiner in charge of the bank and resided in Anamosa. In January 1933, Mr. Roberts was transferred and was succeeded by Mr. O.U. Conwell. Code section 11972 provides that: "All claims of the fourth of the above classes, not filed and allowed * * * within twelve months from the giving of the notice aforesaid will be barred, * * * unless peculiar circumstances entitle the claimant to equitable relief." Plaintiff commenced this action in April 1936 and bases his *Page 656 right to equitable relief on the following allegations: He alleges that he did not directly have charge of the bank, the receivership being handled exclusively by examiners in charge and assistant examiners; that the notes owed by the guardianship were listed among the assets of the receivership; that neither the plaintiff nor his predecessor or their representatives knew that A.J. Clarke was deceased until March 1935, and supposed that James E. Remley was still acting as guardian; that they had no notice that a guardian's final report had been filed or notice given of the time of hearing on said report and did not know of the publication of the notice of filing claims against the estate of Mr. Clarke; that O.U. Conwell has been the examiner in charge of said bank for more than two years and during that time he had conferred with James E. Remley with reference to the payment of said notes and at no time was his attention called to the factthat A.J. Clarke was deceased and assumed from said conversation that Mr. Remley was still acting as guardian and would take care of the indebtedness as soon as he could realize on said mortgage. Plaintiff filed an amendment to his petition stating that James Jensen, an assistant examiner in charge, had the active management and control of the receivership from January 15, 1934, to April 1935; that, during said time, he had conversations with Mr. Remley as guardian of Mr. Clarke with reference to the paying of said notes and was given to understand that Mr. Remley was trying to sell the real estate, and when sold, said indebtedness would be paid. The plaintiff prayed that he be authorized as receiver of the bank to file a claim against said estate and, when filed, the administrator be ordered to allow the claim against the estate. Defendant filed an answer stating: "That from the time of the appointment of administrator, notice of which appeared December 1, 1932, until on or about the month of November or December, 1935, there was an examiner in charge of the receivership of the Niles Watters Savings Bank, either the examiner in charge or an assistant. That such examiners in charge maintained their residence in Anamosa, Iowa, and lived here from the time the administrator was appointed herein until October or November of 1935. That in addition to the examiners in charge, the receiver of the Niles *Page 657 Watters Savings Bank had a local attorney duly appointed and acting in all their matters during all of said time. That the plaintiff herein knew, or had reason to know, that the guardianship of A.J. Clarke was being closed and was closed, and that the estate of A.J. Clarke was being probated in the district court of Jones County, Iowa. That the plaintiff filed no claim of any kind or character against said estate and no claim is now filed except it be in this suit. That the statute of limitations has long since run against plaintiff's claim, or the right to file the same or have the same allowed, and that the defendant does not have any right to allow or pay the same, and that the court does not have any legal right to allow or pay the same. That there are no equities or reasons why this claim should be allowed or ordered paid at this time and that the petition fails to show any reason or equity why the statute of limitations should not apply thereto." Mr. Jensen, assistant examiner in charge from January 15, 1933, to April 1, 1934, during which time he resided in Anamosa, testified for the plaintiff that there were two notes secured by a mortgage given by Remley as guardian in the files of the bank; that he had several conversations with Mr. Remley about the notes, the main subject of the conversations being hard times, and the difficulty of selling land; that in a conversation had in the latter part of 1933, Mr. Remley informed him that the land securing the notes was not worth the amount of the notes and there would have to be a concession. The witness further stated: "I approached him (Remley) as the one that made the loan and signed as guardian, and I considered him the proper party to take it up with because he, as I understood it, was guardian of Mr. Clarke." Mr. Conwell, examiner in charge, who succeeded Mr. Roberts in January 1933, lived in Cedar Rapids, Iowa, and went to Anamosa from one to three times a week on the business of the receivership. Mr. Conwell testified that he recalled talking with Mr. Remley in November 1935 on the street; that he asked Mr. Remley what the prospect was of getting the Clarke guardianship notes cleaned up and he said that they would have to sell the property. That he suggested to Remley that the property be sold at auction and that Mr. Remley replied that it would be more just to all parties that it be worked out by private sale. *Page 658 Mr. Conwell further testified that he first learned in February 1936 (over three years after Mr. Clarke's death) that Mr. Clarke had died and discovered the fact when he went to the clerk's office and asked for the papers in the guardianship. Excepting certain documentary evidence, the above testimony of Jensen and Conwell is all the material evidence in the case. [1] Plaintiff's assignment of error is that the court erred in holding that plaintiff had failed to show peculiar circumstances that would entitle the claimant to equitable relief, and in denying claimant the right to file the claim and in disallowing the same. The first contention of appellant is that he and his representatives had no notice that notice was given of the time of the hearing on the final report of the guardian and that the guardianship was closed and did not know of the appointment of Mr. Remley as administrator and that he published notice of his appointment, and, though the examiner conferred with Mr. Remley with reference to payment of the notes, that Remley did not call his attention to the fact that Mr. Clarke had passed away. Plaintiff's position is untenable. Remley gave a proper, adequate notice of his appointment as administrator. Plaintiff, being a resident of the state of Iowa, was bound to take notice of the appointment and the fact that he did not have actual notice thereof is not a peculiar circumstance entitling him to equitable relief. Hawkeye Insurance Co. v. Lisker, 122 Iowa 341,98 N.W. 127. The defendant was under no legal obligation to personally call the attention of this particular creditor of the estate to the death of Mr. Clarke. Mr. Rhinehart, attorney for appellant, and Mr. Roberts, the examiner in charge, were residents of Anamosa at the time of the appointment of defendant as administrator and when the notice of his appointment was published. There is nothing in the record to suggest that Mr. Remley knew that plaintiff and his agents did not know of the death of Mr. Clarke and of the appointment of administrator of his estate. Appellant urges that the fact that Mr. Remley did not file his final report as guardian and give notice of hearing thereon until July 1934, seven months after the year for filing claims had passed, and the conversations between Remley and the examiners, Jensen and Conwell, led plaintiff and his agents to believe *Page 659 that he was acting as guardian, and constitute peculiar circumstances that entitle him to equitable relief. The conversations testified to by the examiners do not disclose that he said a single word to them that would reasonably mislead them into believing that he was talking to them as the guardian of Mr. Clarke and that Mr. Clarke was living. During the year 1933, Mr. Remley held a deed to the land securing the notes and his statement that the land would have to be sold before settlement was made was true. Mr. Remley would only have authority, at the time he had the conversations with the examiners, to sell the real estate as administrator and his statement is one that he would naturally make as administrator to a creditor of the estate. As stated in plaintiff's petition, the examiners"supposed that James E. Remley was still acting as guardian," and "assumed from said conversation that Remley was still acting as guardian." This assumption and supposition could not be based on any statement made by Remley. The only reason appearing in the record for such an assumption is that the bank held the notes of Remley as guardian. As stated by Mr. Jensen, examiner, "I approached Remley as the one that made the loan, and signed as guardian." Mr. Conwell testified that in November 1935, nearly two years after the time for filing claims had expired, he had a conversation with Mr. Remley about working the indebtedness out by a sale of the land. Such a statement by Mr. Remley manifestly could not be considered a circumstance that would excuse failure on the part of the appellant to file its claim within the limited period, that is, December 2, 1932, to December 2, 1933. [2] Appellant strongly relies on the fact that Mr. Remley did not file his guardian's report until July 1934, as a peculiar circumstance. He contends that by not filing the report, that Remley held himself out to the plaintiff and his agents as a guardian and misled them into believing that he was in fact acting as guardian and that his ward was living, and that his silence in failing to inform them of the facts constituted at least constructive fraud. We find no merit in this contention. Mr. Remley had qualified as administrator and given notice of his appointment. By promptly giving notice, he represented to all interested parties that he was acting as administrator of his former ward's estate and that he was no longer acting as *Page 660 guardian. He did not undertake to act as guardian except in the performance of his duty to file a final accounting and report. The probate court approved the report. There is no trace of fraud or deception, constructive or actual, in the actions of the guardian from the time he was appointed as administrator until he was discharged as guardian. Mr. Jensen testified: "I never looked in the records in the clerk's office concerning the guardianship of A.J. Clarke and never filed any claim against the guardianship or against the estate." Mr. Conwell testified that he first learned about the death of Mr. Clarke when he went to the clerk's office in February 1936 and asked for the papers in the guardianship. The appellant cannot be heard to say that he was misled by the failure of Mr. Remley to file his guardian's final report because it appears that his representatives did not examine the guardianship records and did not know whether the guardian had or had not filed a final report. Appellant could not be deceived or influenced by not knowing of the fact of which he complains. There was a clear lack of diligence on the part of plaintiff and his representatives. The receivership held the notes of the guardian, and appellant was satisfied to assume that Mr. Clarke was alive and that the active guardianship continued. The appellant quotes from Howard v. McMillen, Executor,101 Iowa 453, 457, 70 N.W. 623, 625, as follows: "But, where silence would be misleading, a duty to speak may arise. A person may, under some circumstances, by passive conduct or silence, knowingly and intentionally deceive and mislead another, and thus perpetrate a fraud. 1 Bigelow, Frauds, 16, 597." He cites in support of the rule the following cases: Iowa State Bank v. Rons, 203 Iowa 51, 212 N.W. 362; Foreman et al. v. Dugan,205 Iowa 929, 218 N.W. 912. The appellant has cited a correct rule of law which has no application to the facts in this case. The record does not reveal that Remley made any statement, did anything or omitted to perform any duty imposed on him as administrator or guardian that could have reasonably influenced or induced appellant not to file his claim. Failure to file the claim can be attributed only to lack of diligence on the part of appellant. In determining whether a *Page 661 claimant is entitled to equitable relief under the statute, the facts that the claim is just, the estate solvent and unsettled are entitled to consideration, but they are not "peculiar circumstances" within the meaning of the statute. The peculiar circumstances must exist independent of said facts. In re Estate of Palmer, 212 Iowa 21, 236 N.W. 58; Doyle v. Jennings, 210 Iowa 853,229 N.W. 853; Chicago N.W.R. Co. v. Moss, 210 Iowa 491,231 N.W. 344, 71 A.L.R. 936. Equitable relief will not be granted to relieve a claimant from negligence or lack of diligence. First Tr. Joint Stock Land Bank v. Terbell, 217 Iowa 624, 252 N.W. 769. In arriving at our conclusion, we have not overlooked our decisions holding that the statute should be given a liberal construction in order to effectuate justice. Chicago N.W.R. Co. v. Moss, 210 Iowa 491, 231 N.W. 344, 71 A.L.R. 936. [3] While an action brought under Code section 11972 to establish peculiar circumstances as a basis for equitable relief from the bar of the statute is properly cognizable in equity, this action is one at law and the finding of the trial court has the same weight as the verdict of a jury and will not be disturbed on appeal if there is substantial evidence in the record to support it. Guardianship of Baldwin, 217 Iowa 279,251 N.W. 696; In re Estate of Plendl, 218 Iowa 103, 253 N.W. 819. The judgment of the trial court that there were no peculiar circumstances shown to entitle appellant to equitable relief against the bar of the statute is supported by substantial evidence. It follows that the case must be and is affirmed. — Affirmed. (All italics ours.) RICHARDS, C.J., and SAGER, ANDERSON, MITCHELL, DONEGAN, KINTZINGER, and HAMILTON, JJ., concur. *Page 662

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/3429833/

The appellant claims to have lost his right arm on February 19, 1931, as a result of injuries received arising out of and in the course of his employment with the defendant-appellee. He was a young man about twenty years of age, and when injured was engaged in shoveling sawdust from a pit under a three-foot *Page 128 saw. The sawmill and its entire equipment was the property of appellee. The sole defense raised is that the claimant, when injured, was in the employ of one De Camp, an independent contractor, and that he was not in the employ of appellee. The only question in this case therefore is whether the claimant was in the employ of appellee or S.A. De Camp, an independent contractor. Appellee claims it entered into the following contract with S.A. De Camp on September 30, 1930: "Whereas, Party of the First Part is the owner of a sawmill in * * * Redfield, Iowa, and desires to secure the services of Second Party to operate said sawmill: "It is agreed by and between the parties: First Party agrees toemploy Second Party and Second Party agrees to accept said employment and to operate said sawmill for and on behalf of First Party. Second Party agrees to furnish all labor necessary for the operation of said sawmill and First Party agrees to pay said Second Party therefor the sum of One Half Cent per board foot of lumber sawed while the same is being operated by Second Party, said payments to be made not later than the tenth day of the month following and should be based on the number of feet sawed during the month. "The Company will furnish the use of the equipment owned by it and all power necessary for the operation of said sawmill and * * * all necessary sawteeth. Said Second Party will furnish all * * * oil, belting, dressing, rags, etc. This agreement shall be for a period of thirty days and thereafter until terminated by either party giving thirty days notice. * * *" "[Signed] "Iowa Electric Company, First party. "S.A. DeCamp, Second party." Appellee contends that under this agreement De Camp became an independent contractor; that as such he was claimant's employer, and appellee is therefore not liable for his injuries. The Board of Arbitration and the Industrial Commissioner both held that appellant was in the employ of appellee and entitled to compensation. Appellee appealed from the award of the commissioner to the district court. The district court reversed the ruling of the commissioner, held that De Camp was an independent contractor, that claimant *Page 129 was his employee, and therefore not entitled to compensation. Appellant contends that the court erred in holding, as a matter of law, that under the evidence De Camp was an independent contractor and that claimant was in his employ. Appellant also contends that under the evidence in relation to the manner of performing the work, after the contract was signed, De Camp never in fact became an independent contractor, and that appellant was at all times an employee of the defendant. The sawmill in question was operated only intermittently; there was no continuous employment for either Mr. De Camp or the men. When a sufficient number of logs had accumulated, Mr. Mabbitt, the appellee's superintendent, would direct Mr. De Camp to get the men together for the purpose of sawing the logs into boards. This intermittent work lasted only a few days at a time. This was the manner in which the sawmill was run both before and after September, 1930. The facts show that said De Camp had been employed as a sawyer for the appellee for many years before September, 1930, and that claimant and several other men were in appellee's employ a long time prior to September, 1930, and during all that time they performed the same kind of work they performed thereafter. A man named Anthony Mabbitt was also in appellee's employ as superintendent of the sawmill both before and after September, 1930. The evidence also tends to show that Mabbitt kept the time of the claimant and the other workmen, and had complete charge, control of, and direction of all the men working at the mill, before and after September, 1930; that Mabbitt was in name, as well as in fact, superintendent at the mill, and gave all directions to the men working there; that he at all times notified De Camp when the mill would begin work, and at all times ordered him to have the men go to work; that Mabbitt had control of the mill and gave orders to the employees at the mill, and directed them where to work, when to work, and how to do it; all the employees at the sawmill, including claimant, both before and after September, 1930, assisted in piling lumber, piling slabs, handling logs, shoveling sawdust from a pit under the saw, and such other work as Mabbitt directed; that Mabbitt gave Niemann orders and directions as to his work on the very day he was injured. It also shows that after September, 1930, Mabbitt discharged some of the men and told them and De Camp they could not work there any longer. Such orders were also given before September, 1930. Mabbitt always told De Camp when to get *Page 130 the men and when to commence work. De Camp never began work until after getting orders from Mabbitt. There is no evidence in the record tending to show that claimant or any of the other employees at the mill, after September 30, 1930, knew anything about the alleged independent contract or that they were no longer working for the company after that time. Before that time their pay was 35 cents an hour. They received the same amount thereafter. There is evidence tending to show that Mabbitt kept entire track of the employee's time both before and after September, 1930. De Camp had no voice in fixing their wages either before or after September 30, 1930; he was directed by the company to pay them the same wages they had received before September, 1930. They were paid twice a month both before and after that time. Their pay was received after their time had been sent in by Superintendent Mabbitt. There was also evidence tending to show that De Camp had no more control over the operation of the sawmill after September, 1930, than he had before. Before September, 1930, their pay checks came to the men individually; after that time the pay checks came to De Camp with directions to pay the men 35 cents an hour as before. According to the alleged contract, the men were to be paid once a month, but they continued to receive their pay twice a month as before. Of great significance in this case is the fact that De Camp had no voice whatever in fixing the wages of the men employed at the mill. The company told him to pay them 35 cents an hour. This is the amount they had received before, and this is the amount he was ordered to pay them afterwards. The contract also provides that De Camp was to furnish all oil, dressing, belting, rags, etc. But these materials were all furnished by the company after September, 1930, the same as before. The evidence tends to show that the only part of this contract ever given any effect was that relating to De Camp's pay. Before September, 1930, he was receiving 50 cents per hour. What he received thereafter amounted to only 28 cents. He complained of the reduction and was advised that he would receive 50 cents as before. De Camp was not engaged in any particular business; that he had no means of his own in carrying out the contract; that up to September, 1930, he had always been an ordinary day laborer receiving 50 cents an hour. After September, 1930, his status did not in fact change; he still remained an ordinary day laborer, doing *Page 131 the same kind of work he did before, with no change in his relationship to his employer, with reference to the control or direction of the employees at the mill; he did not furnish his own assistants and was himself at all times subject to the orders of Mabbitt, the superintendent. The logs brought to the mill belonged to various owners, and were turned over to the Superintendent Mabbitt, who kept track of those brought in and the lumber sawed therefrom and had it placed on piles by the men. No one ever delivered the logs to De Camp, and he knew nothing about the ownership thereof, or the lumber cut therefrom. Any complaints made about the logs or lumber were made to Mabbitt and never to De Camp. The rule seems to be well settled in this state that if a person is in fact an employee of an independent contractor, he cannot recover. Likewise the rule is well settled that although a contract be entered into for the doing of certain work, it does not necessarily make the contractee an independent contractor. In Mallinger v. Webster City Oil Company, 211 Iowa 847, loc. cit. 851, 234 N.W. 254, 256, in defining the term "independent contractor" we said: "An independent contractor under the quite universal rule may be defined as `one who carries on an independent business and contracts to do a piece of work according to his own methods, subject to the employer's control only as to results.' The commonly recognized tests of such a relationship are, although not necessarily concurrent or each in itself controlling: (1) The existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of his business or of his distinct calling; (3) his employment of assistants with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progress of the work, except as to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer. If the workman is using the tools or equipment of the employer, it is understood and generally held that the one using them, especially if they are of substantial value, is a servant." In Arne v. Western Silo Co., 214 Iowa 511, 242 N.W. 539, we said: *Page 132 "An independent contractor within the generally accepted legal definition of the term is: A person who, in the pursuit of an independent business, undertakes to do specific work for another person, using his own means and methods without submitting himself to the control of such person in respect to all of its details. An independent contractor represents the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. Mallory v. La Pure Ice Supply Co., 320 Mo. 95, 6 S.W.2d 617; Moody v. Industrial Acc. Commission, 204 Cal. 668, 269 P. 542, 60 A.L.R., 299; Arthur v. Marble Rock Consol. School Dist., 209 Iowa 280, 228 N.W. 70, 66 A.L.R. 718. An independent contractor is defined as `one who contracts to do a specific piece of work furnishing his own assistants, and executes the work entirely in accordance with his own ideas or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work.' 26 Cyc. 970. * * * If the employer has control of what is to be done, * * * as well as the material details as to how the work is to be done, then clearly the laborer is an employee or servant of his employer." The authorities generally hold that notwithstanding a written contract, if the master retains control and direction of the men, with the right of fixing their pay and the right of discharging whom he pleases, with power of control over the employees, the relationship of independent contractor is not created, and the acts and conduct of the parties will govern their relationship. Franks v. Carpenter, 192 Iowa 1398, 186 N.W. 647; Root v. Shadbolt Middleton, 195 Iowa 1225, 193 N.W. 634; Mallinger v. Webster City Oil Co., 211 Iowa 847, 234 N.W. 254; Hansen v. Rainbow Mining Mill Co., 52 Idaho 543, 17 P.2d 335; State ex rel. Virginia Rainy Lake Co. v. District Court of St. Louis County, 128 Minn. 43, 150 N.W. 211; Dominic v. Faucett, 245 Mich. 337,222 N.W. 758. In Franks v. Carpenter, 192 Iowa 1398, loc. cit. 1401, 186 N.W. 647, 648, we said: "Carpenter, at the time Hudson was employed by him, knew that Hudson understood the work of constructing sewers and would be a good man to place in charge of the work at Conroy. Nothing was said between Carpenter and Hudson as to the manner of doing the work, nor is there anything in the contract or arrangement *Page 133 between them, or the manner in which it was carried out, to indicate that Carpenter in any respect waived his right to control or direct the time or manner of making the excavation and laying the drain. There was no occasion for any specific reservation of this right. It is true that Carpenter was not present at any time during the progress of the work, but, manifestly, he had the right to discharge Hudson, Franks, or any other employee on the job and to absolutely direct Hudson in everything he did in the work of putting in the drain. * * * He kept the time of himself and the other men, delivered it to Carpenter, who gave or sent him a check for the amount shown thereby to be due the men. * * * Significance is also given by counsel for appellants to the fact that Hudson and the men employed with him determined how the work should be done, the number of hours they would work each day, at what time they would begin, and at what time they should quit and what time they would take at noon for lunch. These were all matters within the control of Hudson as foreman. There was nothing in the contract between Hudson and Carpenter to prevent the latter from fixing the time for the men to commence work and the number of hours they should work each day. He simply refrained from doing so and left it all to the discretion of Hudson. This did not make him an independent contractor." In Root v. Shadbolt Middleton, 195 Iowa 1225, loc. cit. 1232, 193 N.W. 634, 637, we said: "Claimant was entitled to show the actual relations, contractual and otherwise, between Middleton and Twigg; that it was competent to show such relationship by the conduct of the parties, and what they said and what they did in the premises; the manner in which they dealt with the operations that were being carried on under the contract between them." There was evidence in the record in this case tending to show that the parties to the contract did not regard it as one under which the employees of the mill were to be considered employees of an independent contractor. If there was any evidence in this case tending to show, from the relationship of the parties and the manner under which the work was performed, that De Camp was not an independent contractor, such evidence would raise a question of fact for the determination of the Industrial Commissioner, and his findings based *Page 134 upon such facts are binding and not reviewable. Likewise if there was any such evidence tending to show that the relationship between appellant and appellee was that of employer and employee, then the determination of such question became one of fact for the commissioner, and his finding thereon is final and cannot be disturbed by this court. Franks v. Carpenter, 192 Iowa 1398, 186 N.W. 647; Mallinger v. Webster City Oil Company, 211 Iowa 847, 234 N.W. 254; Rish v. Iowa Portland Cement Co., 186 Iowa 443, loc. cit. 453, 170 N.W. 532. There was evidence in this case tending to show that De Camp did not even have power to control or direct the men; that he did not have even the rights of a foreman; that the full control and direction of the manner in doing the work reposed in Mr. Mabbitt, appellee's superintendent; that Mabbitt gave the orders to and directed all the men at all times, both before and after 1930, as to when and how the work was to be done; that he directed De Camp when the work was to be done or ordered him to get the men. This was done in the same manner after 1930 as before; that Mabbitt had the power to and did discharge some of the mill employees; that the alleged contract did not contemplate the performance of any other work by De Camp except running the saw as before. The company furnished the entire equipment and supplies with which to do the work; De Camp was over 70 years of age and the only work performed by him was that of operating the saw. It is also significant to note the following statement contained in the contract: "Whereas, Party of the First Part * * * desires tosecure the services of Second Party to operate said sawmill; It is agreed * * * First Party agrees to employ Second Party and Second Party agrees to accept said employment and to operate said sawmill for and on behalf of First Party." (Italics ours.) This part of the agreement tends to show that it was entered into as a contract of employment and not as a contract for the performance of any certain piece of work, and should be given consideration with all the other evidence offered in relation to the performance of the work under the contract, in determining whether or not De Camp was in fact an independent contractor. There was sufficient evidence from which the commissioner could find that the work of the men was ordered and directed by Mabbitt, the superintendent. De Camp had been employed at the mill as sawyer for many years. He secured the men to do the work after *Page 135 signing the contract the same as before. The force of men and the work moved along in the same way. There is a clear distinction between the cases cited by appellee supporting their contention that De Camp was an independent contractor, and the case at bar. In practically all of the cases cited, the entire control and supervision of the work, in all of its details, was given to the contractee. There is evidence in this case, however, tending to show the contrary. It was competent for the plaintiff to show that, as a matter of fact, the parties had put a different construction upon the contract by their conduct, and that defendant had in fact exercised supervision and control over the work, in its details, inconsistent with the presumed character of an independent contractor. In Humpton v. Unterkircher, 97 Iowa 509, 66 N.W. 776, we said: "Many rules have been laid down for the determination of the question as to who are independent contractors. But the best definition we have been able to find is that given in Powell v. Construction Company, 88 Tenn. 692, 13 S.W. 691: `An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of his work.'" The arbitration committee before whom this case was submitted and the industrial commissioner before whom it was reviewed, both found from the evidence that Eugene Niemann, the claimant, was in the employ of the Iowa Electric Company at the time he received his injuries. We are constrained to hold that the evidence offered raised a question of fact for the determination of the commissioner. It is therefore our conclusion that it cannot be said, as a matter of law, that De Camp was an independent contractor. There was sufficient evidence in the record to sustain such finding by the commissioner. His findings under the facts are binding upon this court and must be sustained. For these reasons the judgment of the lower court is hereby reversed, and the case is remanded for the entry of a judgment in harmony herewith. — Reversed and remanded. CLAUSSEN, C.J., and STEVENS, MITCHELL, ANDERSON, and KINDIG, JJ., concur. *Page 136

01-03-2023

07-05-2016

https://www.courtlistener.com/api/rest/v3/opinions/4158429/

NO. 12-17-00088-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN RE: § MICHAEL KENNEDY, § ORIGINAL PROCEEDING RELATOR § MEMORANDUM OPINION PER CURIAM Relator, Michael Kennedy, has filed this original proceeding, in which he presents multiple arguments that all arise out of his criminal conviction in trial court cause number 29326. Relator’s conviction has been final for several years, and cause number 29326 is not currently pending in the trial court. See Kennedy v. State, No. 12–11–00041–CR, 2012 WL 3201924, at *8 (Tex. App.–Tyler Aug. 8, 2012, pet. ref’d) (mem. op., not designated for publication) (affirming judgment on punishment); see also Kennedy v. State, No. 12–08–00246–CR, 2009 WL 4829989, at *3–4 (Tex. App.–Tyler Dec. 16, 2009, pet. stricken) (mem. op., not designated for publication) (affirming judgment of conviction). Thus, Relator’s petition for writ of mandamus constitutes a collateral attack on his conviction. Only the Texas Court of Criminal Appeals has authority to grant post-conviction relief from final felony convictions.1 See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also In re Briscoe, 230 S.W.3d 196, 196-97 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding); In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). Accordingly, we dismiss Relator’s petition for writ of mandamus for want of jurisdiction. 1 On February 15, 2017, the Texas Court of Criminal Appeals issued an abuse of writ order against Relator, in which it found that he (1) filed seven applications regarding his conviction, (2) “continues to raise issues that have been presented and rejected in previous applications or that should have been presented in previous applications[,]” and (3) “[b]ecause of his repetitive claims, … [his] claims are barred from review under Article 11.07, § 4, and are waived and abandoned by his abuse of the writ.” Ex Parte Michael Allyn Kennedy, No. WR-75,385-24 (Tex. Crim. App. Feb. 15, 2017). Opinion delivered March 31, 2017. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH) 2 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT MARCH 31, 2017 NO. 12-17-00088-CR MICHAEL KENNEDY, Relator V. HON. MARK A. CALHOON, Respondent ORIGINAL PROCEEDING ON THIS DAY came to be heard the petition for writ of mandamus filed by Michael Kennedy; who is the relator in Cause No. 29326, pending on the docket of the 3rd Judicial District Court of Anderson County, Texas. Said petition for writ of mandamus having been filed herein on March 29, 2017, and the same having been duly considered, because it is the opinion of this Court that it lacks jurisdiction, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby dismissed for want of jurisdiction. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J. 3

01-03-2023

04-06-2017